DPP v Taleb [2019] VCC 2206

25 years' imprisonment, and theft contrary to s.74(1) of the Crimes Act 1958 (Vic), which carries a maximum penalty of 10 years' imprisonment.

2 You have also pleaded guilty to a number of related summary offences: committing an indictable offence whilst on bail (charge 5), which carries a maximum penalty of three months' imprisonment; failing to stop a motor vehicle when directed by a police officer (charge 6), which carries a maximum penalty of six months' imprisonment; driving whilst disqualified (charge 7), which carries a maximum penalty of two years' imprisonment in your case, and three charges of failing to comply with a condition of bail (charges 8, 9 and 10) which carries a maximum penalty of two years' imprisonment.

4 In relation to the most serious offence of home invasion, this is a Category 2 offence under the Sentencing Act 1991. There is a requirement to impose a custodial order for this offence unless certain circumstances outlined in the Sentencing Act 1991 exist.

5 The circumstances of your offending were set out in the Summary of Prosecution Opening dated 23 August 2019, tendered at your original plea hearing on 9 October 2019 and marked Exhibit "A". At your plea hearing on

9 October 2019, your counsel indicated that the factual circumstances as set out in the Prosecution Summary were accepted, and, accordingly, I regard the Prosecution Summary document as an agreed summary of facts.

6 By way of a brief summary, the criminal offending for which you now fall to be sentenced predominantly occurred on the evening of 27-28 March 2018. As at 27 March 2018, you were 37 years of age. You had been bailed some weeks earlier, on 1 March 2018, following the execution of four warrants for failing to answer bail, theft of motor vehicle, and driving whilst disqualified.

7 Also involved in the criminality that took place on 27-28 March 2018 were your co-offenders, Alaa Chakik, Daniel Karvountzis and Trung Pham.

8 Phillip and Wayne Miller lived at Unit 3, 6 O'Shanassy Street, Sunbury. At about 10.00 pm on 27 March 2018, they received a knock at their front door. Two unknown men stated that they were looking for someone called "Mark" but were told that no one of that name lived there. The two men left the property.

9 Later that night, at approximately 4.00 am on 28 March 2018, Phillip Miller heard the sound of a dog barking and the sound of the front wire door rattling. He opened the internal wooden door to see who was there. The larger male of the group, who is said by the prosecution to be you, said, "Alright Mark, there are two ways we can do this, the hard way or the easy way". Phillip Miller replied he was not "Mark", but the offenders, including yourself, began to force their way into house, using a tool to jemmy the wire door. The wooden door began to splinter and both Philip and Wayne Miller tried to hold the wooden door closed whilst Wayne Miller called 000. At this point, one of the offenders said, "Fuck the cops, we're not leaving until this is sorted out. You know what you have done."

10 As the group comprising yourself and the other individuals was unable to get through the front door of the unit, the group went around to the back door, forcing entry by splintering the backdoor jamb, and breaking off the lock from the timber frame. The conduct which caused damage to the front and rear doors of the property forms the basis of Charge 1 on the Indictment, criminal damage.

11 Three offenders, including yourself, then entered the unit. The entry to the property forms the basis of Charge 2 on the Indictment, home invasion.

12 Wayne Miller was trying to deter the group by using a fire extinguisher, whilst Phillip Miller used a spray can of black paint.

13 You were described by Phillip Miller as being the one who was in his 30's, of swarthy Middle-eastern or Mediterranean appearance. A second offender was described to be in his late 20's and carrying a meat cleaver, whom the prosecution alleged was Mr Chakik. The third offender, alleged by the prosecution in this case to be Mr Pham, was described as being smaller. The co-offender, Mr Karvountzis, is alleged by the prosecution to have remained in the car outside.

14 Once inside the premises, there was a confrontation between Phillip Miller and the group, when Phillip Miller was again accused of being "Mark".

Mr Chakik at this point brandished the meat cleaver and passed three cannabis plants in pots near the rear door to the individual whom the prosecution allege was Mr Pham. The conduct in removing the cannabis plants forms the basis of Charge 3 on the Indictment, theft.

15 As Mr Chakik raised the meat cleaver towards Phillip Miller, you stood in the way and remonstrated with Mr Chakik. At this point, Phillip Miller showed

Mr Chakik his wallet to prove his identity, and Mr Chakik grabbed the wallet. This conduct also forms the basis of Charge 3 on the Indictment, theft.

16 As a result of the earlier 000 call, police arrived at the front door and chased the offenders, including yourself, who then ran out of the back door of the unit and escaped over the fence. You were later collectively met by

17 Another police vehicle pursued the group but stopped the pursuit when it became unsafe.

18 Some months later, on 17 August 2018, you were intercepted driving a Holden Rodeo in the forecourt of the United petrol station in St Albans. You were directed to stop whilst your licence details were checked; however, when police returned to their vehicle to make the check, you reversed out of the service station and drove away. At this time, you were disqualified from driving for a period of four years from 20 January 2016. Your conduct in this regard forms the basis of failing to stop and driving whilst disqualified.

19 As your conduct on 27 and 28 March 2018 occurred whilst you were on bail, your conduct on that date forms the basis of the summary charge of committing an indictable offence whilst on bail.

20 Your failure to comply with your bail on 1 August 2018, 8 August 2018 and

14 August 2018, when you failed to appear on bail, forms the basis of the three related summary charges of failing to comply with conditions of bail.

21 You were arrested on 15 October 2018 during a search of a property in Malvern Road, South Yarra. You were taken to the Prahran Police Station and there participated in a recorded police interview. Whilst you made admissions in relation to various aspects of the offending, you indicated that you had been contacted by a friend to go to the victim's property because you had been told that someone at the house was selling cannabis to children. You also maintained that at the property there was no violence, and that you had tried to stop the others.

22 You have been in custody since your arrest on 15 October 2018, though I note, on 11 April 2019 at the Melbourne Magistrates' Court, you were sentenced to an aggregate sentence of six months' imprisonment in relation to offending which largely predated the offending on 28 March 2018. As at the initial plea hearing on 9 October 2019, you had served 179 days of

pre-sentence detention referrable to this offending. As of today's sentencing date but not including today, there is an agreed period of 249 days of

pre-sentence detention, which can be declared pursuant to s.18 of the Sentencing Act 1991 as pre-sentence detention in relation to this matter.

23 Having originally been charged with the more serious offence of aggravated home invasion, your matter resolved to a plea of guilty on the first morning of your committal hearing on 4 June 2019, prior to any witnesses being

cross-examined. It was conceded by the prosecution therefore that your plea of guilty in this case has been entered at the earliest reasonable opportunity.

24 Victim Impact Statements from Phillip Miller (Exhibit "B") and Wayne Miller (Exhibit "C") tendered at the initial plea hearing, both dated 3 October 2019, were read out by the Prosecutor at your plea hearing. I have considered both Victim Impact Statements carefully, in consideration of the formulation of an appropriate sentence in your case.

25 Victim impact statements are an important mechanism through which victims of crime can have meaningful participation in the criminal justice process, through informing the sentencing judge of the impacts of offending on them.

26 Phillip Miller explained the emotional, physical, financial and social impacts of your offending on his life, which have been considerable. On the night in question, he described being beyond terrified, and thinking he was going to die. He described his ongoing anxiety in relation to his personal security, and the measures that he has taken in order to attempt to feel safe, particularly at night. He also described the impact on his social activities, saying that since the incident, he does not go out much, particularly at night. Whilst I note in Mr Phillip Miller's Victim Impact Statement he makes reference to suffering a stroke sometime after the incident, Mr Pickering, who appeared on behalf of the Director of Public Prosecutions, confirmed that the prosecution does not submit that the stroke was a direct consequence of your offending.

27 Likewise, Wayne Miller describes his terror at the incident unfolding in his presence.

Nature and gravity of offending and your culpability and degree of responsibility for it

28 The gravity of your offending, particularly the most serious charge of home invasion, is reflected in the relevant statutory maximum penalties, notably

25 years for home invasion. As the Court said in Hogarth v The Queen:[1]

"Home invasion is a particularly nasty form of criminal conduct. Typically, a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders - acting in anger and often fuelled by alcohol - is itself a terrifying experience for the householder(s), irrespective of what may occur after entry."[2]

29 In this case, you fall to be sentenced for a concerning and serious example of the crime of home invasion. You, in company with others, invaded the sanctity of your victims' home in the middle of night. The conduct revealed persistent and determined behaviour, as entry was initially attempted through the front door, before entry being successfully obtained at the rear door of the property. A tool was used to jemmy the front wire door at the point when the group forced their way into the house. The wooden door began to splinter, with both of the victims trying to hold the wooden door closed.

30 When the group were unable to gain entry through the front door, they went to the back door, forcing entry by splintering the door jam and braking off the lock from the timber frame. This was clearly a determined endeavour, with a degree of force used to facilitate entry to the property.

31 Due to the fact that Mr Chakik, on the prosecution case, brandished a meat cleaver once he had gained entry to the property, clearly, at least one of you was armed with a dangerous item when the home invasion was effected. I accept that there is no evidence to suggest that you yourself were armed. I also accept that, unlike the case in other home invasions, neither you nor your group were disguised, which would have otherwise added to the terror felt by your victims.

32 Whilst, as the prosecution conceded, there is no evidence that you were the ringleader of this criminal endeavour, you were, in my view, an active participant in it. You are large in stature, which no doubt added to the terror felt by your victims as the criminal endeavour unfolded. Furthermore, the comment attributed to you at the front door of the property prior to gaining entry, "Alright Mark, there are two ways we can do this, the hard way or the easy way", has a clearly menacing flavour to it. I note in plea submissions before me, your counsel Mr Ranjit conceded that the words attributed to you as contained in the prosecution summary were accepted on your behalf.

33 Whilst the conduct of yourself and those with you did not perhaps rise to the level of a truly confrontational aggravated burglary or home invasion in the sense described in the earlier decision of Hogarth, a matter fairly conceded by Mr Pickering in submissions before me on 29 November 2019, your conduct, both individually and collectively, clearly had a confrontational aspect to it. As you made clear in your police interview, your involvement appears to have stemmed from your perception that someone in the property was selling drugs to children. Your attendance on this night was, according to you, to attempt to persuade such behaviour to stop. Such vigilante behaviour, in the circumstances in which your offending ultimately took place, is completely unacceptable, antisocial, and inherently dangerous.

34 Whilst your conduct which forms the basis of the home invasion charge was completed upon your entry to the property, I accept that your subsequent behaviour in physically preventing Mr Chakik from using the meat cleaver on your victims is relevant to your overall moral culpability for your criminality on this evening. This much was conceded by Mr Pickering on behalf of the prosecution in submissions before me on 9 October 2019, where it was conceded that your behaviour in prohibiting Mr Chakik from using the weapon is a matter that goes to your credit in terms of sentencing.

35 Furthermore, in relation to your moral culpability, I note that a psychological report from Mr Warren Simmons dated 5 November 2019 (Exhibit 3) and a psychological report dated 20 November 2019 from Dr Kiara Bird from Forensicare, were provided to the court during the sentencing hearings, and that your counsel conceded that in light of the opinions there expressed, there was no reduction of your moral culpability pursuant to the well-established authorities dealing with mental impairment.[3]

36 The gravity of your conduct was accentuated by the fact that you were then on bail from just a few weeks earlier, for dishonesty and driving related matters.

37 Finally, in relation to your moral culpability, I note that you fall to be sentenced as a person with a reasonably substantial criminal history. Whilst the majority of your prior convictions relate to driving offences, I note that you have prior convictions for matters of violence which have resulted in terms of imprisonment, and that your most recent prior conviction dating from 10 March 2016 involved a sentence of imprisonment imposed for matters which included dishonesty offences. The fact that you engaged in the behaviour for which you now fall to be sentenced, in the face of a considerable criminal history, as I have just described, is relevant to an assessment of your moral culpability.

38 I now turn to your background and personal circumstances. Your chronological account of your upbringing and personal circumstances appears to have differed somewhat when speaking with psychologist Warren Simmons and Dr Bird from Forensicare. However, I accept that chronological discrepancies are not uncommon in these circumstances.

39 You are currently aged 39 years of age. The child of Lebanese parents, you were born and raised in the Newport area of Melbourne. You are the third oldest of nine siblings, having four brothers and four sisters.

40 Both of your parents are alive and together, but are apparently both in ill health, suffering with diabetes and high cholesterol.

41 You have reported overall that your childhood had been good but a bit rough, with the family not having a great deal of money. You have spoken in loving terms of both of your parents, though you have described them as very strict, in the context of wanting the best for you.

42 It appears that somewhere between the ages of nine and eleven, you were the victim of inappropriate touching by a group of older males, the details of which do not appear to be particularly relevant to my sentencing discretion. Nevertheless, it is clear that this incident or incidents have caused you embarrassment and discomfort over the years.

43 In terms of your education and employment, you attended Newport Primary School and, subsequently, attended secondary schooling, variously described as being Bayside Secondary College and/or Altona North High School. In any event, it appears you left after completing Year 11 to work in a pizza shop on a part-time basis, before embarking on a number of other jobs in different trades, including cleaning, demolition, and working in a meat factory. Your cleaning job lasted for some three years and your demolition work lasted for some four-and-half years.

44 At the age of 24, you purchased the pizza shop, where you had then been working, and then ran that business on a full-time basis for the next ten years, eventually selling the business to one of your brothers and working for him until he sold the business some two years ago.

45 You last worked approximately two years ago in this capacity and have since then sustained yourself via Centrelink and disability pension payments.

46 In terms of your relationship history, you appear to have had three significant relationships. You were with Fiona from your late teens for a period of some five years, and you planned to marry but broke off that relationship prior to this occurring. You subsequently married your paternal step-cousin, a woman by the name of Intissar, in 2003, having met her on a family holiday in Lebanon in 2002. Together you and Intissar had three children; Fatima, aged 13, Soloman, aged 12, and Farah, aged 11. That relationship was initially a positive one but became fractured after your wife discovered your

long-term affair with another woman, variously described as Leila or Natalie, to whom you also have a daughter, Amira, aged 10. You and Intissar were divorced some four years ago in acrimonious circumstances. You were granted full custody of the children, who I understand currently live with your parents, with your ex-wife having only limited contact with them.

47 In terms of your medical and psychiatric history, you described to Dr Bird a number of physical health complaints, including diabetes, high cholesterol, a heart condition, and a thyroid problem. You denied a significant psychiatric history, and a search of the Victorian Psychiatric Register by Dr Bird indicated that you had had no prior contact with public mental health services. You reported that you had been diagnosed with depression and anxiety some four years ago by your general practitioner and had been prescribed the medication Pristiq, with which you had been intermittently compliant.

48 In your dealings with psychologist, Warren Simmons, you reported having been diagnosed with Type 2 diabetes two years ago and being on four types of medication. You also referred to blood thinning medication in relation to high cholesterol, and you reported that you had been given anti-psychotic medication for anxiety which had commenced in October 2019. You also referred to an ulcer on your tongue which had been treated at St Vincent's Hospital recently, in the absence of sedation and in circumstances where you were handcuffed to a chair whilst the lesion was cut from your tongue, an experience which you understandably found to be quite distressing and had refused to attend subsequent medical treatment for that ailment. You also reported a recent identification of a lump on your right thyroid gland, reporting that you were awaiting a biopsy. According to Mr Simmons:

"... it is difficult to know what to make of this as Mr Taleb is not on medication for this condition, either to decrease or increase his thyroid function."[4]

49 These ailments were referred to by your counsel in both written and oral plea submissions.

50 In terms of your drug use history, you reported a considerable history of use of various illicit substances for some years. You began using cannabis from around the age of 17, progressing to amphetamines at the age of 23, methamphetamine at the age of 25, and heroin at the age of 26. You described having been introduced to drugs by a cousin.

51 You have reported previously ceasing the use of heroin, though continuing methamphetamine use, but returning to heroin use following the breakdown of your marriage. You have reported to Dr Bird that prior to your incarceration, you were using both heroin and methamphetamine on a daily basis, using approximately 1.7 grams a day of methylamphetamine and one gram per day of heroin. In your assessment with Mr Simmons, you reported consuming up to 3.5 grams of heroin a day in the last two years, and you reported that you would smoke amphetamines and then a small amount of heroin, with this pattern alternating all through the day. You described limited prior counselling for drug addiction issues.

52 As I earlier indicated, you have a significant number of previous convictions, the vast majority of which relate to driving offences, and, according to Dr Bird, "demonstrate a consistent pattern of reckless behaviour in this context".[5]

53 You have four prior convictions for violence in 2001 and 2012. You also have convictions for breaching a Family Violence Intervention Order.

Recent circumstances, and psychological assessments

54 Your counsel informed me that you were originally remanded at the Metropolitan Remand Centre but more recently have been at Ravenhall Correctional Centre. You are in mainstream. You are a general billet and have been doing a number of courses including a first aid course. You do not accept any visits whilst in custody, but have almost daily contact with your family, and write to them regularly. You have instructed that otherwise you have attempted to keep yourself busy whilst in prison.

55 I was provided with a document summarising your medical ailments

(Exhibit 2) and I have taken into consideration those ailments, and the earlier mentioned difficulties you have experienced in relation to medical treatment whilst in custody. I have been provided with various documents detailing your progress in custody, including a number of urine screens which were negative to illicit substances, and various certificates in relation to courses undertaken by you whilst in custody. I have taken into consideration that material, tendered at your plea hearing and marked Exhibit 4, in formulating an appropriate sentence in your case.

56 At the initial plea hearing on 9 October 2019, I indicated that I had insufficient material with which to sentence you. The matter was adjourned so that such material could be obtained.

57 A psychological report from Warren Simmons dated 5 November 2019 (Exhibit 3) was subsequently obtained on your behalf. Save for setting out your personal history, I must say I have found Mr Simmons' report to be of limited utility. By way of example, in relation to the offending for which you now fall to be sentenced, according to Mr Simmons, it would appear that you intervened on behalf of the victim, and otherwise it would appear that it was a case of mistaken identity.[6] Save for the vigilante motivation to which I have earlier referred, this comment from Mr Simmons appears to be of limited utility. Likewise, Mr Simmons' final opinion that, due to the offending appearing to be atypical for you, you would appear to be at low risk for such behaviour in the future is, in the absence of any recognised risk assessment testing, of limited assistance to the court.

58 As I have earlier mentioned, a psychological court report from Forensicare was obtained from Dr Kiara Bird, and her report is dated 20 November 2019.

59 According to Dr Bird, you acknowledged your part in the offending for which you now fall to be sentenced. Your intention in attending at the premises on the evening in question was apparently never to inflict violence onto the victims, but to convince them to cease the behaviour which you had been erroneously led to believe they were engaging in. Whilst it must be said that to a degree you appeared to minimise your involvement in the offending, according to Dr Bird, you stated that you were "disgusted with [yourself] about [your] behaviour on the night in question," and, according to Dr Bird, "[You] appeared to demonstrate genuine remorse for [your] part in the offending".[7]

60 According to Dr Bird, after conducting a risk for general offending assessment, Dr Bird concluded that you fell into the high risk category for general recidivism.[8]

61 In relation to your progress in custody, Dr Bird opines that you appeared to be coping reasonably well:

"... Mr Taleb's self-report of the severity of his symptoms of depression suggest he is currently experiencing high levels of distress; however, functionally the level of impairment would appear to be mild to moderate. Mr Taleb was not experiencing significant symptoms of anxiety at the time of the assessment. He appears to have used his time in custody to date well, engaging in vocational courses and employment, along with stabilising on a methadone program. ... ."[9]

62 In relation to the underlying causes of your offending, Dr Bird refers to what she describes as proximal factors, namely your acrimonious divorce, your relapse back into heroin use and an increase in your use of methylamphetamine, in combination with physical health problems, unemployment, and associating more frequently with antisocial peers who are likely to have normalised your behaviour. According to Dr Bird:

"... against this background of general stress and antisociality it would appear that on the day of offence Mr Taleb initially felt that he was engaging in vigilante type behaviour for a positive purpose, which then escalated into a home invasion. This clearly demonstrates a lack of problem solving and consequential thinking on Mr Taleb's part, and such impairments in judgment are likely to have been exacerbated by

Mr Taleb's intoxication through heroin and methamphetamine use at the time."[10]

63 Dr Bird concludes by setting out a number of matters which would likely significantly reduce your risk of re-offending, which can be broadly categorised as the obtaining of appropriate supports and interventions in relation to substance use, offence-specific treatment, and mental health medication and treatment.

64 In formulating an appropriate sentence in your case, I have had regard to the sentencing factors set out in s.5(2) of the Sentencing Act, including the maximum penalties, the nature and gravity of your offending, your culpability and degree of responsibility for it, and the impact of the offence on your victims. I refer to my earlier remarks in my Reasons for Sentence in these regards.

65 I have also taken into consideration the fact that you pleaded guilty to the charges for which you now fall to be sentenced and that your plea of guilty was entered at the earliest reasonable opportunity in the circumstances. Your plea of guilty has a utilitarian benefit by saving the community the time and expense of a committal and trial, and it evidences a desire to facilitate the course of justice. Whilst I do regard some of your answers in your police interview to reflect your minimisation of your role in the offending, I accept that your interview as a whole reflects your co-operation with authorities, and your acknowledgement of wrongdoing.

66 Furthermore, whilst some of your comments to Mr Simmons may suggest insight issues on your part, you were clearly disgusted with yourself in your consultation with Dr Bird, who concluded that you appeared to demonstrate genuine remorse for your part in the offending. I also accept that, to some degree, your remarks to others in seeking to limit your involvement in the offending need to be considered in light of your understandable frustration regarding the extremely favourable dispositions imposed on your

co-offenders, a matter to which I will refer shortly. In contrast to your

co-offenders, you made full admissions and resolved your matter to a plea of guilty prior to the conduct of any committal hearing. In those circumstances, I am satisfied that your plea of guilty is reflective of remorse, warranting a further sentencing discount in your case.

67 I have also taken into consideration your previous character. I have already referred in some detail to your criminal history, which bears upon an assessment as to your moral culpability for this offending. Your significant criminal history is also relevant in relation to an assessment as to your prospects for rehabilitation. Whilst it would seem that you have a fairly established pattern of prior criminality, I note that your last prior conviction dated back to 2016. However, it must be remembered that the offending for which you now fall to be sentenced occurred whilst you were on bail for other offending, and, subsequent to the home invasion, you have received a

six month term of imprisonment. Based upon the psychological material and indeed, your counsel's submissions, it seems clear that you have a significant substance abuse problem, coupled with matters related to your acrimonious divorce, health problems, loss of employment, and exposure to the negative influences of others. In my view, you are in need of significant drug-related and psychological intervention. Whilst according to Dr Bird your risk of general recidivism is high, that risk is likely to reduce should you embark upon the interventions recommended by Dr Bird at the end of her psychological report.

68 As I understand it, you retain the love and support of your parents, and will be able to reside with them upon your release from prison. Furthermore, your children are currently cared for by your parents. Presumably, you will be able to reunite with your children, who should be a primary motivating factor for your rehabilitation. These matters all bode well for your rehabilitation, though for the reasons I have outlined, your prospects of rehabilitation are rather speculative at present.

69 For the reasons I have already outlined, I do not regard the mental impairment principles which have been articulated in various well known authorities,[11] to have applicability in your case.

70 I have also had regard to current sentencing practices in formulating an appropriate sentence in your case.

71 Mr Pickering, who appeared on behalf of the prosecution, in the course of submissions referred to Hogarth v The Queen[12] and Director of Public Prosecutions v Meyers[13] in relation to the gravity of the crime of home invasion. Those authorities were considered in the recent decision of Director of Public Prosecutions v O'Brien,[14] a decision handed down on 8 November 2019. That decision made clear that earlier sentences concerning home invasion as a form of aggravated burglary remain directly relevant to sentencing for the new offence of home invasion, and that the decisions of Hogarth and Meyers made clear the need for higher sentences for "this egregious form of conduct".[15] The factual matrix in O'Brien was, in my view, more serious than the current case. In O'Brien, the offender was the leader of a violent attack on the house, using a sledgehammer to break down the front door and then smash windows, before terrorising those inside. A co-offender was carrying a rifle which was produced during the offending and pointed at a victim. Nevertheless, O'Brien was able to draw upon a considerable body of mitigatory material, including a relatively limited statement assisting authorities. According to the Court in O'Brien:

"This home invasion had all of the terrifying features referred to by this Court in Hogarth. Sentencing courts must continue to respond to conduct of this kind with substantial sentences. General deterrence is 'a sentencing principle of great importance in cases such as these'."[16]

72 On a Director's appeal, O'Brien was sentenced to a total effective sentence of six years' imprisonment, with a non-parole period of three years and six months, noting that the home invasion sentence of six years' imprisonment was the base sentence.

73 Whilst it is frequently said that all cases are fact specific, and sentencing should not be reduced to a mathematical equation or comparison, clearly, the recent decision of O'Brien highlights the gravity of the crime of home invasion, the need for significant punishment in the form of a term of imprisonment, and the importance of general deterrence in cases such as these.

74 I have considered the decision of Hogarth, which involved a considerable analysis of previous decisions involving what could be described as confrontational aggravated burglaries, together with the recent decision of O'Brien, in considering current sentencing practices as one of the sentencing factors relevant to the formulation of an appropriate sentence in your case.

75 I now turn to a consideration of the principle of parity, which occupied considerable time in terms of both the prosecution and defence submissions regarding sentence.

76 Your counsel placed considerable reliance upon the principle of parity in sentencing, arguing that any significant disparity from the sentence imposed on your co-offenders would lead to a justifiable sense of grievance on your part.

77 In relation to your co-offenders, I was informed by Mr Pickering at the initial plea hearing on 9 October 2019 as follows:

78 Due to an identification issue, all charges originally faced by Mr Pham were withdrawn prior to committal.

79 Mr Karvountzis' charges resolved at the committal hearing stage. He was said to be the getaway driver who did not enter the premises. He pleaded guilty to a single charge of aggravated burglary on the basis that he was part of a plan to enter the property as trespassers whilst armed, with an intention to steal. He also pleaded guilty to negligent driving in relation to the police pursuit and committing an offence on bail. His matter was dealt with by way of a plea of guilty in the summary jurisdiction, over the opposition of the prosecution, and the magistrate imposed an aggregate sentence of 273 days' imprisonment, all of which was declared as time served.

80 I was provided with the criminal history of Mr Karvountzis, which included an aggravated burglary from 2004 and a burglary from 2015.

81 Mr Chakik was the individual whom the prosecution allege wielded the meat cleaver inside the property. His matter proceeded to a contested committal hearing, but due to various issues, the only charge that survived the committal was the aggravated burglary charge. Mr Chakik's matter then proceeded as a summary plea of guilty to that charge, over the opposition of the prosecution. Mr Chakik was sentenced to 181 days' imprisonment, declared as time served, together with a 12 month community correction order with no unpaid work condition, simply treatment conditions. According to Mr Pickering,

Mr Chakik was sentenced on the basis that he was present and complicit in relation to the aggravated burglary but was not sentenced on the basis that he was definitely inside the premises and wielding the meat cleaver. I raised with the prosecution the obvious tension that exists in that regard, as part of the factual scenario underpinning your plea of guilty involved an acceptance by the prosecution that Mr Chakik was inside the premises, wielded the meat cleaver, and that you physically intervened to prevent him from using the weapon on the victims.

82 I was provided with the criminal history of Mr Chakik. Whilst it is limited in the number of appearances, significantly, in 2012, Mr Chakik received a gaol term for a large number of burglaries and thefts.

83 In submissions before me, your counsel submitted that you would have a justifiable sense of grievance if you were to receive a term of imprisonment that exceeded that of your co-accused, given what was said to be your lesser role in the offending, together with your co-operation with police, and your admissions in your record of interview. I might say at this point that save for your physical intervention in preventing Mr Chakik to use the meat cleaver, I do not find that your role in the offending was substantially less than

84 As at the date of the initial plea hearing, you had been in custody in relation to this matter for 179 days. Your counsel submitted that should any further imprisonment be required, it should be imposed in combination with a community correction order, particularly in relation to the sentences imposed on your co-offenders, as I have just described. Whilst indicating that I had insufficient material with which to sentence you, and that the ordering of a community correction order suitability assessment report should not be taken as an indication as to my likely sentence, I ordered a community correction order assessment report. That report dated 6 November 2019 subsequently found you to be a suitable candidate for a community correction order.

85 At the initial plea hearing before me on 9 October 2019, the prosecution submitted that a sentence of imprisonment with time served would not be within the range of appropriate dispositions, and that a further period of custody was warranted. It was submitted by Mr Pickering that a term of imprisonment with a non-parole period was within range, but that a term of imprisonment in combination with a community correction order is not within range.

86 In further submissions before me on 29 November 2019, the prosecution maintained their submission that, given the circumstances of the offending, a term of imprisonment with a non-parole period was the only appropriate disposition. It was submitted that whilst the factual circumstances were not entirely consistent with the decision of Hogarth, the fact that this was a home invasion, coupled with your age, prior convictions, and some tensions in relation to the psychological reports regarding your level of insight, meant that a term of imprisonment with a non-parole period was appropriate.

87 It was also submitted by the prosecution that I should not impose an artificially low sentence purely because of the results of the co-accused, in particular,

Mr Chakik, who received a limited term of imprisonment and a community correction order. The prosecution submission was, essentially, that the penalty imposed on the co-offenders, particularly Mr Chakik, were unusually low, and notwithstanding that those sentences had not been the subject of Director's appeals against their manifest inadequacy, I had an overarching duty as the sentencing judge to impose an appropriate sentence in your case. Your counsel maintained that the appropriate penalty in your case, particularly given the parity principle, would be a combined term of imprisonment and community correction order.

88 As conceded by both prosecution and defence, an application of the parity principle is fraught with difficulty in your case. Given the current sentencing practices to which I have earlier referred, I regard the sentences imposed on your co-offenders, particularly that of Mr Chakik, to be inexplicably low. Further adding to the complication in this case is that for whatever reason, those sentences have not been appealed by the prosecution.

89 Subsequent to the further plea on 29 November 2019, the very recent decision of Topal v The Queen,[17] a decision of the Court of Appeal handed down on 6 December 2019, was made available to the parties, and an opportunity for further submissions was made available to the parties. That decision deals with the issue of the application of the parity principle, where there is a differential treatment between co-offenders, in the form of unusually low sentences imposed on co-offenders. According to the Court in Topal:

"... difficulties in applying the principle become acute where the first sentence is considered to be very lenient or even manifestly inadequate."

90 After considering relevant authorities, including the (unrelated) decision of Taleb v The Queen[18] and the decision of Director of Public Prosecutions (Cth) v Peng,[19] the Court stated:

"It is clear, on the basis of the decisions in Taleb and Peng, that parity does not require the reduction of a sentence to an inappropriately low level. This conclusion reflects what was said by the High Court in Green v The Queen."[20]

91 As stated in Topal, the High Court decision of Green v The Queen[21] stands as authority for the proposition that it is not an error for a judge to decline to impose a sentence which, viewed alone, would be manifestly inadequate in order to avoid unjustified disparity with a co-offender's sentence.[22]

"The approach required where the co-offender's sentence is inappropriately low is different. A sentence that is manifestly inadequate will require that a co-offender's sentence be placed toward the lower end of the range of sentences that are available. But a sentence that is viewed as excessively lenient cannot justify the reduction of a

co-offender's sentence to one that is inappropriately low. ... ."[23]

93 Applying the principles set out in Topal's Case as best I can to this matter, I am not able to impose a sentence that is inappropriately low in light of your co-offenders' sentences, which could be described as excessively lenient. As I have stated, in my view, I have an overarching duty to impose what I consider to be an appropriate sentence, in accordance with orthodox sentencing principles, taking into consideration all of the sentencing factors set out in s.5(2) of the Sentencing Act. Having given this matter anxious consideration, those factors in combination compel me to the view that the only appropriate sentence in your case is a sentence of imprisonment with a non-parole period. In my view, the gravity of your conduct, the need to reflect the sentencing principle of general deterrence, and the need to impose just punishment for your offending means that a term of imprisonment combined with a community correction order is not an appropriate disposition. A combined imprisonment and community correction order disposition can only be imposed if the length of imprisonment from the date of sentencing does not exceed 12 months. In my view, such a disposition is inadequate to reflect the applicable sentencing factors and sentencing principles in your case.

94 In light of the principle articulated in Peng:

"... a sentence that is manifestly inadequate will require that a

co-offender's sentence be placed toward the lower end of the range of sentences that are available. ... ."[24],

I have reduced the length of the sentence of imprisonment, to appropriately take into account the sentences imposed on your co-offenders, particularly that of Mr Chakik. In conformity with Peng, I will impose a sentence of imprisonment toward the lower end of the range of sentences that are available, taking care not to reduce the sentence to an inappropriately low level.

95 In relation to Charge 1 on the Indictment, damaging property, you are convicted and sentenced to four (4) months' imprisonment.

96 In relation to Charge 2 on the Indictment, home invasion, you are convicted and sentenced to three (3) years' imprisonment. This is the base sentence.

97 In relation to Charge 3 on the Indictment, theft, you are convicted and sentenced to three (3) months' imprisonment.

98 In relation to the related summary offence of committing an offence whilst on bail, Charge 5, you are convicted and sentenced to one (1) month's imprisonment. Pursuant to s.16(3C) of the Sentencing Act, a presumption of cumulation applies to this offence.

99 In relation to the related summary offence of failing to stop when directed by police, Charge 6, you are convicted and sentenced to one (1) month's imprisonment.

100 In relation to the related summary offence of driving whilst disqualified, Charge 7, an offence for which you have a significant criminal history, you are convicted and sentenced to three (3) months' imprisonment.

101 In relation to the three related summary charges of failing to appear, Charges 8, 9 and 10, you are convicted and sentenced to fourteen (14) days' imprisonment in relation to each of the three charges.

102 I direct that one (1) month in relation to Charge 1 on the Indictment, one (1) month in relation to Charge 3 on the Indictment, and the one (1) month sentence on the summary charge of committing an offence on bail (Charge 5) be served cumulatively upon each other and cumulatively upon the base sentence of three years' imprisonment imposed in relation to Charge 2, the home invasion charge. I direct that all other sentences be served concurrently with each other, making a total effective sentence of three (3) years and three (3) months' imprisonment. I direct that you serve a period of twenty-two (22) months' imprisonment before becoming eligible for parole. I note that I have imposed a lower than usual head sentence, and a lower than usual non-parole period, in light of the sentences imposed upon your co-offenders, and the application of the parity principle in this case.

103 Pursuant to s18 of the Sentencing Act, I declare a period of 249 days as

pre-sentence detention and direct that this period be deducted administratively from your sentence.

104 Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty I would have imposed a sentence of five years' imprisonment with a non-parole period of three years.

105 In relation to the related summary charge of driving whilst disqualified

(Charge 7), pursuant to s.28 of the Road Safety Act, I direct that you are disqualified from obtaining a driver's licence for a period of 12 months.

106 The prosecution has made application for a Disposal Order regarding various items of clothing, a Forfeiture Order regarding a mobile phone, and a Compensation Order in the sum of $1235.51. Those applications not being opposed by you, I will make those orders accordingly.

107 Mr Pickering, any queries in relation to the sentence, the maths, any orders I have forgotten to make?

108 MR PICKERING: None of the above, Your Honour.

111 HIS HONOUR: Thank you very much. Mr Taleb can be removed, thank you.

[1] [2012] VSCA 302; [2012] 37 VR 658 ("Hogarth")

[3] R v Verdins & Ors [2007] VSCA 102; (2007) 16 VR 269

[4] Report of Mr Simmons dated 5 November 2019 at paragraph 22

[5] Report of Dr Bird dated 20 November 2019 at paragraph 16

[11] R v Verdins & Ors [2007] VSCA 102; (2007) 16 VR 269

[12] [2012] VSCA 302; [2012] 37 VR 658 ("Hogarth")

[13] [2014] VSCA 314; [2014] 44 VR 486 ("Meyers")

[14] [2019] VSCA 254 ("O'Brien")

[17] [2019] VSCA 289 ("Topal")

[18] [2014] VSCA 96; (2014) 42 VR 666

[19] [2014] VSCA 128 ("Peng")

[21] [2011] HCA 49; (2011) 244 CLR 462

[22] Topal at paragraphs [27]-[28]