IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT LA TROBE VALLEY
CRIMINAL JURISDICTION

CR-22-01915

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
RONALD ALLEN 
KANE AUSTIN		

---

JUDGE:	HIS HONOUR JUDGE GEORGIOU	
WHERE HELD:	Melbourne	
DATE OF HEARING:	22 May 2023 	
DATE OF SENTENCE:	9 June 2023	
CASE MAY BE CITED AS:	DPP v Austin & Anor	
MEDIUM NEUTRAL CITATION:	[2023] VCC 995	

REASONS FOR SENTENCE
---
Subject:	CRIMINAL LAW
Catchwords: 	Pleas of guilty – home invasion – intentionally damaging property – prohibited person possess firearm – use firearm in public place – conduct endangering life – guilty pleas entered at earliest opportunity – Koori Court – Bugmy – mental health – childhood deprivation. 
Legislation Cited:	ss 5(2H), 16, 6AAA Sentencing Act 1991 (Vic). 
Cases Cited:	Clark v The Queen [2020] VSCA 125; DPP v O’Brien [2019] VSCA 254; Bugmy v The Queen [2013] HCA 37; R v Lacey [2007] VSCA 196; Jones v The Queen [2021] VSCA 114. 
Sentence:	Allen – 5 years and 10 months’ imprisonment with a non-parole period of 3 years and 9 months’ imprisonment. Possess drug of dependence and possess shotgun ammunition total fine of $1000.  
	Austin – 4 years and 8 months’ imprisonment with a non-parole period of 3 years’ imprisonment. 
---

APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms A. Liantzakis	Office of Public Prosecutions	
			
For the Accused Allen

For the Accused Austin	Ms K. Rolfe

Ms A. Brennan 
(For Plea)

Ms L. Bowden
(For Sentence)	Sullivan Braham Barristers and Solicitors 

Victoria Legal Aid 	

HIS HONOUR:
1	Ronald Allen and Kane Austin you have both pleaded guilty to charges of home invasion and intentionally damaging property.  
2	Ronald Allen, you have also pleaded guilty to a rolled-up charge of being a prohibited person possessing a firearm, a rolled-up charge of using a firearm in a public place, a charge of conduct endangering life and a charge of possession of a drug of dependence.  You have also pleaded guilty to a related summary offence of possession of ammunition without a licence or permit.
3	Kane Austin you have also pleaded guilty to being a prohibited person in possession of a firearm and to a charge of using a firearm in a public place.  You have also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail.
Circumstances of offending 
4	The summary of prosecution opening for plea, Exhibit P1, sets out the circumstances in which you each offended.  
5	At the time of the offending, you were both aged 24 years.  It is alleged that a third co-offender was present at the time you both committed the home invasion.  His matter is proceeding to trial.
6	On 10 June 2022, Terri-Anne Stewart and Saolopu Umi were present at their address in Howard Street, Sale.  Mr Umi was known to you, Mr Austin, and you were both known to Ms Stewart.  
7	At approximately 6.20 am that day, Ms Stewart heard a knock at her kitchen window.  She asked who was there and you, Mr Austin, walked to the front door and said, 'It's Kane'.  Ms Stewart went to the front door and identified you through the closed security door.   You, Mr Austin, asked to see Mr Umi.  
Ms Stewart closed the main door and went to get Mr Umi.  
8	Mr Umi attended at the front door and a discussion followed regarding the purchase of a $100 voucher for $50.  Mr Umi gave you, Mr Austin, $50 for the voucher. You then walked away from the house.  
9	The house was fitted with internal and external CCTV cameras and recording equipment.  Ms Stewart saw you, Mr Austin, on the CCTV cameras return to the house.  Mr Umi went and spoke to you again and there was further discussion about borrowing money. Mr Umi stated he would need to talk to Ms Stewart and went to speak to her. As he did, Ms Stewart saw you, Mr Austin, on the CCTV monitor, place your hand over the doorbell camera. She then saw a person enter the house holding a cut-down shotgun and walk towards the bedroom. That person was you, Mr Allen. You, Mr Austin, were seen closely following Mr Allen. As you walked through the kitchen you picked up a knife from the kitchen bench. 
10	The initial entry, it would appear, was through the unlocked front door. 
11	Mr Umi retreated to the bedroom where Ms Stewart was and attempted to deadlock the door. You, Mr Allen, kicked the bedroom door three times in an effort to get into the bedroom, and you, Mr Austin, kicked the door twice. Mr Allen, you then attempted to push the door open with your hand, followed by a further kick. This conduct constitutes Charge 6, intentionally damaging property. Your conduct in entering the house in the manner you did form the basis of Charge 5, home invasion.  
12	While you were both trying to get into the bedroom Mr Umi was attempting to prevent your entry by pushing his body against the bedroom door to stop it from opening.
13	Not being able to get into the bedroom you, Mr Austin, proceeded to the lounge room and rummaged through the property.  You disconnected the CCTV hard drive that connects to the front door security camera and took it with you.  
You also stole several other items including clothing and a duffle bag.  
This conduct is the basis of Charge 8, theft.
14	Not being able to enter through the door you, Mr Allen, went to the backyard.  You approached the same bedroom from the backyard.  You knocked on the external door to the bedroom pointing towards it with your gun before returning inside the house. Once inside the house, you again attempted to gain entry to the bedroom by kicking the door. You then discharged the firearm in the direction of the door. After that, you approached the door and kicked it. You then discharged a second shot at the door. This conduct, shooting twice at the door, forms the basis of Charge 7, recklessly engaging in conduct that placed Ms Stewart and Mr Umi in danger of death. 
15	At the time you discharged the firearm, Mr Umi was pushing his body weight on the other side of the door in an attempt to keep it closed.  The second shot narrowly missed his left shoulder.
16	As this was occurring Ms Stewart fled from the bedroom into the backyard.  Shortly after that, Mr Umi also left the bedroom and went to the backyard.  
It is not clear where he then went. Ms Steward ran down the driveway and jumped over a gate. As she was doing this you, Mr Allen, went out onto Howard Street and called out, ‘Stop Terri-Anne or I’ll shoot your fucking head off’. You are not charged in relation to that threat. Ms Stewart managed to get to a neighbour’s premises where she phoned police. 
17	You both then left the area and were not able to be located once police arrived.
18	Ballistic and fingerprint officers attended and located your left-hand print, 
Mr Allen, on the bedroom door.  They identified features of a discharged firearm in the roof and door of the bedroom that Ms Stewart and Mr Umi were in.
19	On 11 June 2022 police arrested you, Mr Allen, at an address in Dandenong. Police found and seized a double barrel, sawn-off shotgun alleged to have been used during the offending, nine shotgun cartridges, a container containing 1.8 grams of 1.4-Butanediol, and a mobile phone. You were deemed unfit to be interviewed.   
20	On 16 June 2022 you, Mr Austin, were arrested at the Bairnsdale Court House.  You were also deemed unfit for interview.
21	Police examination of your phone, Mr Allen, showed numerous photographs and videos of each of you with firearms. There were three videos, made on 4 March 2022, of you Mr Austin, holding a shotgun different to that used in the offending. There were also seven images of you holding a shotgun between 4 March 2022 and 6 March 2022. Those videos and images form the basis of Charge 2, being a prohibited person possessing a firearm.  
22	The phone material also shows a video of you, Mr Austin, discharging a shotgun out of the window of a moving car on 5 March 2022.  This is the basis on which Charge 3 is made, using a firearm in a public place.
23	There were also two videos of you, Mr Allen, discharging a different shotgun from a moving vehicle on the 6th and 18 March 2022.  There is another video that shows you discharging the shotgun used in the Sale incident into bushland on 13 May 2022.  This conduct forms the basis of Charge 4, using a firearm in a public place.
24	The mobile phone images also show you, Mr Allen, holding various firearms between 5 March 2022 and 28 April 2022, as well as three videos of you holding various firearms between 1 March 2022 and 12 May 2022.  All of these images form the basis of Charge 1, being a prohibited person possessing a firearm.
Victim Impact Statement
25	Ms Stewart made a victim impact statement dated 13 January 2023, which details the impact your offending has had upon her.  Ms Stewart did not want her statement read in Court so I will only make brief mention of it in my reasons. Ms Stewart believed that she and Mr Umi were about to be killed. She described running for her life after you, Mr Allen, pointed the firearm at her, telling her to stop or you would blow her head off. 
26	Following the incident, Ms Stewart and Mr Umi went to great lengths to try and secure themselves within their house.  She describes having locked themselves in for around two months and sleeping on a camping mattress in the lounge area. She describes isolating themselves out of fear and being riddled with anxiety, living on the edge all the time. She continues to live in fear and has difficulty sleeping and in with her daily functions. The trauma suffered as a result of your conduct, Ms Stewart states, destroyed her relationship with Mr Umi. She does not think she will ever recover and continues to live in fear. 
27	Ms Stewart also states that she tried to return to work but was unable to focus and was on edge the whole time.  She states that she suffers from debilitating depression and anxiety, meaning that she rarely leaves her home.  
28	It is clear that your offending has had a profound and enduing impact upon her. While Mr Umi has not provided an impact statement it is open to infer that the events have also had a terrifying impact upon him. 
Personal circumstances and background – Ronald Allen  
29	Ronald Allen, you are now 25 years of age.  You were born in Sale in
August 1997.  You are an Aboriginal man.  Your father is a member of Gunai-Kurnai community and your mother is of the Wiradjuri community.  
30	You are the second of five children whose ages range from 27 to 16.  You are the only male child.
31	You have three children of your own, each born to different mothers.  They are aged six, two, and five months.  They live variously in Sydney, Melbourne, and Bairnsdale.  Your youngest child was born during your remand.
32	You describe a chaotic home environment in which you were exposed to verbal and physical violence and neglect.  You report taking on a protective role for your mother and sisters.  You describe your parents’ relationship as volatile and impacted by alcohol abuse. You have a close relationship with your maternal grandparents and often stayed with them during your childhood. Your parents separated in recent years and both remain living in Sale. They are both employed and you have had some contact with them during your time on remand. 
33	Your education was limited.  You were expelled from Sale High School in either Year 8 or Year 9.  You recall behavioural problems at school, which was made more difficult by reason of your parents’ heavy drinking. On leaving Sale High School you moved to Dandenong to live with your maternal aunt and her husband. You enrolled at a TAFE college but lasted only some months. You instructed your counsel you were frequently associating with negative peers. 
34	You have had some brief periods of employment in bricklaying and cabinet making.  You also have an interest in football, playing for the Sale Magpies during your teenage years.  
35	You have, throughout your years, experienced difficulty with substance abuse.  You commenced to abuse cannabis at the age of 12, and alcohol at the 
age of 13.  You began using methylamphetamine when you were 14 years of age.  You have also abused Xanax and Valium.
36	You have a number of mental health issues which I will address shortly.
37	You also have a significant criminal record, having served numerous periods of imprisonment.  You have numerous convictions for violent behaviour and weapons offences.  Your history dates back to 2013, where you appeared in the Sale Children's Court. Most recently, on 24 November 2021, at the Latrobe Valley Magistrates’ Court, for offences including recklessly causing injury, criminal damage, contravening a family violence order, unlawful assault, making a threat to kill, and possessing a prohibited weapon without exemption or approval, you were sentenced to a term of imprisonment of 10 months and placed on an 18-month Community Correction Order to commence following your release from prison. At the time of your offending for the offences before me you were on that Community Correction Order. 
38	You are not to be punished again for your previous offending but it is a relevant consideration in regard to specific deterrence, protection of the community and your prospects of rehabilitation.
39	Your offending in the matters before me, it was submitted, followed a relapse into methylamphetamine abuse following your release from prison. You report that your use escalated to the point of daily use and, at the time of this offending, you were using on a daily basis and not sleeping for days on end. 
40	Dr Jacqueline Rakov, psychiatrist, in her report dated 24 September 2021, considered you have pre-disposing factors for serious mental illness.  She stated, however, that your history of aggression and violence was most probably as a result of your family of origin and the family violence you witnessed as a child between your parents. Dr Rakov stated you have not learnt more appropriate methods of dealing with life stressors. Adverse childhood experiences, she said, are well appreciated risk factors. She stated that you were ‘parentified’ at a young age where you provided for the family through the proceeds of crime. Dr Rakov also stated you did not have secure attachments to learn to regulate distress through appropriate modelling. Dr Rakov was of the opinion that you suffered from a major depressive disorder. She also considered you experience problematic substance use of cannabis and methylamphetamine. 
41	Dr Rakov considered you have insight into your past experiences and current offending behaviours, and you are aware that you are vulnerable to repeating those patterns without appropriate support.
42	Dr Rakov agreed with the opinion of Dr Smith, psychologist, that your experience in your family of origin largely informs your violent attitudes and that you have not developed productive means of coping with distress other than through substance use and aggression. Dr Smith’s report dated 26 October 2019 was also tendered. Dr Smith also reported that you have been significantly affected by experiencing family violence as a child and the loss of significant male figures throughout your life. 
43	A report of Meagan Rodgers, psychologist, dated 21 April 2023, was also tendered on your behalf.  Ms Rodgers noted that you were exposed to substance use in your developmental years as your parents frequently drank alcohol and had parties at your home with excessive substance use. You reported your own substance use commenced at the age of 12, with tobacco and cannabis, initially introduced to you by your older cousins. You reported drinking alcohol from the age of approximately 13, and smoking methylamphetamine from the age of 14. 
44	While you did not identify instances of overt abuse to Ms Rodgers, she considered it likely that your experiences, including witnessing excessive substance use and verbal and physical abuse in the home, led you to feel unsafe. The impact of that trauma likely contributed to the development and maintenance of anxiety and depression, as well as substance abuse which alleviated some of your distress. Ms Rodgers considers it likely that you were experiencing symptoms of anxiety and depression, as well as chronic substance dependence at the time of your offending. 
45	Ms Rodgers stated you offer no excuse or justification for your offending and demonstrated remorse and shame.  You said you wished you could make amends.
46	The results of the psychometric assessments Ms Rodgers conducted indicate that you experience symptoms consistent with a moderate level of anxiety and depression, and high overall distress.  She considers that a sentence of imprisonment may bear more heavily upon you as a result of your mental illness and apparent lack of treatment while remanded in custody. You endorsed a number of factors which raise the risk of suicide, including previous attempts, and as such, according to Ms Rodgers, there is a serious risk of adverse effects of imprisonment.
47	With regard to your prospects of rehabilitation, it is Ms Rodgers' opinion that if you are able to maintain abstinence and engage meaningfully with mental health professionals and the supports available to you, those prospects are good.
48	Ms Rodgers provided an addendum report dated 18 May 2023.  In that report, she stated that her earlier references to your mental illness and related symptoms were based solely on your self-report, including self-report psychometric assessments, as well as your presentation at the assessment interview. Ms Rodgers stated it was not possible to comment with any certainty on the symptoms you experienced at the time of your offending. You reported to her that your mental state at that time was ‘not good’ and that you were under the influence of methylamphetamine which may have accounted for your functioning. 
49	Also tendered on your behalf was a letter dated 19 May 2023 from Tiana Koehrer, manager of Aboriginal programs at Ravenhall Correctional Centre. 
50	Ms Koehrer states that you are in the Koori Unit at Ravenhall and enrolled in full-time education. You are in a lodge with other Aboriginal and non-Aboriginal persons. She states that together with the others you ‘cook, paint and yarn’. 
51	Ms Koehrer states you are an exemplary member of the Ravenhall Aboriginal Community.  You actively contribute to activities such as the Torch, where you have expressed yourself through your art. You are enrolled in a Certificate course in Aboriginal Cultural Art to further develop your skills. You are a key participant in ‘men’s business’ and the leader of the NAIDOC Committee. You contribute to ‘yarning circles’. 
52	Ms Koehrer states you have expressed interest in healing programs and one of your goals is to be reunited with your children.  She describes you as respectful and polite.
53	Whilst on remand you have completed two programs in ‘Ice and Me’ and the ‘Money Wise - Life Skills Program.’
Personal circumstances and background – Kane Austin 
54	I turn now to your personal circumstances and background, Mr Austin. 
55	Kane Austin, you were born in June 1997.  You are 25 years of age.  
You are also a person of Aboriginal heritage.  You are the oldest of seven children and grew up in the Gippsland area mainly around Drouin and 
Lakes Entrance.  
56	You come from a very troubled background that is well set out in the reports tendered on your behalf.
57	Your childhood years were marked by physical violence and mental abuse.  Your father was frequently violent towards your mother, you, and your siblings. Your father was in and out of prison throughout your childhood.  There was respite whenever he was in prison, but the violence would resume upon his release.
58	Your formal education was to Year 8.  Due to your unstable and abusive family circumstances, at the age of 13 you ran away from home, moving to Melbourne.
59	You were put up for short periods of time with relatives. However, it would appear they had their own issues with substance abuse and would ask you to ‘move on’, often resulting in you living on the streets. While living on the streets, you made a number of friends and were, at times, taken in by their families who provided you with some care. 
60	You commenced drug use at an early age.  You report commencing ‘hard drugs’ at the age of 13, to help you cope with life, and provide some relief from your unhappy experiences.
61	At the age of 17, you met your former partner, Kiera.  Together, you have three children aged eight, seven, and three.  You report having stopped drug use following the birth of your children.  However, after your second child was born in 2016, your relationship with Kiera commenced to have difficulties and you returned to drug use.
62	At the time of your remand for these matters, you were in a relationship with Shari Orphanos.  You are still together.  Ms Orphanos attended Court during the plea hearing.  She also provided a letter to the Court that sets out a number of positive aspects regarding your current insight into your offending, relationships, and future.
63	You have a history or criminal offending dating back to 2013.  Your criminal history includes numerous convictions for theft and other dishonesty offences, as well as armed robbery for which you were sentenced on 9 May 2019 to an aggregate penalty of six months’ imprisonment and placed on a two-year Community Correction Order.  That Order was later breached. You also have previous convictions for possession of controlled weapons. I was informed of subsequent convictions for two charged of armed robber for which you are currently serving prison terms of 15 and 21 months. Your current total effective sentence is 26 months’ imprisonment with a non-parole period of 16 months’ imprisonment imposed on 23 June 2022. The circumstances of each of those three armed robberies were helpfully set out in brief in your counsel’s outline of plea submissions. 
64	As in the case of Mr Allen, you are not to be punished again for your previous offending, but it is a relevant consideration in regards to specific deterrence, protection of the community, and your prospects of rehabilitation.
65	Tendered on your behalf were two reports from Carla Lechner, psychologist, dated 9 March 2019 and 28 December 2022.
66	In her first report Ms Lechner noted a long-standing, chronic poly-drug use problem.  She noted that you had been exposed to violence as both a victim and witness in your formative years; that you never felt safe or protected; and you were essentially on your own from the age of 14. When she assessed you on that first occasion, your father was in the same prison, in a different unit. 
67	You told Ms Lechner you attended five primary schools and experienced bullying as a result of your weight and skin colour.  You also stated you needed glasses but never received any.  This made your schooling more difficult.
68	You told Ms Lechner that your father was often in prison during your childhood, but there were a lot of aunties and uncles around, a lot of them being alcoholics, and some were drug users. You have witnessed your father being stabbed in the neck and you have also been the subject of violence and verbal abuse. At the time of that report, Ms Lechner considered you had specific symptoms of cannabis and stimulant use disorder in addition to an underlying Major Depressive Disorder against a history of complex developmental trauma. She considered that you began using drugs, while still at primary school, as a means of blocking out emotions related to the considerable violence and upheaval you experienced in your formative years.  
69	In her more recent report, obtained for the purpose of the plea hearing in relation to the charges before me, Ms Lechner noted that this reoffending occurred after you completed a six-month period of drug rehabilitation at the Bunjilwarra Program. Ms Lechner stated that you have since been diagnosed with Bipolar Mood Disorder, Type 1, by the Frankston Mental Health team in addition to Complex Post Traumatic Stress Disorder and Borderline Personality Disorder. You reported that you have attempted suicide on many occasions, most recently in March 2022, when you took an overdose of Lyrica, slit your wrists, and tried to crash your car. You also reported that at the time of these offences, you were abusing a cocktail of substance triggered by a relationship breakdown and loss of contact with your children. You state you have limited recollection of what occurred. 
70	Ms Lechner is of the opinion that your clinical presentation is complex, requiring a multidisciplinary approach to intervention, including pharmacological management of your mood, psychological intervention and support in relation to your history of trauma, and substance counselling supports.
71	In addition to the trauma you previously advised, you have in recent times also disclosed that you were the victim of sexual abuse when you were aged around six or seven years.
72	Ms Lechner noted that you were bailed to the Bunjilwarra rehabilitation program. You were stabilised on a methadone program and medicated with Seroquel and Avanza. You also had two psychiatric admissions during 2021, the first to the Flynn Unit and the second at the Monash Hospital Psychiatric Ward. On each occasion, you appeared to be suffering psychotic symptoms, most likely drug-induced, as well as depression and suicidal threats. 
73	You told Ms Lechner that you relapsed into heavy drug use, smoking and injecting methylamphetamine, about one to two grams a day, after your last meeting with her in May 2022.  It was her belief however, that you relapsed before then.
74	You told Ms Lechner that you met Ms Orphanos in March 2022 and moderated your drug use.  However, you began using heavily again after you and she had relationship difficulties. You stated you like using drugs because such use makes you feel numb without any emotional pain. In custody, you are prescribed Seroquel, Avanza and methadone. You have attended two drug programs, ‘Ice and Me’ and ‘Cannabis and Me’. 
75	With regard to your offending, you said you were in a drug induced psychosis injecting ice, and you were awake for a couple of days.  You said you could not remember why you broke into the house, but you just recall going there to get ice.
76	You told Ms Lechner you did not know how you felt about your offending.  
You have regrets about being back in prison.  When asked about the victims, you said you did not really feel sorry for them, but you do not know why.  
77	You told Ms Lecher that being in prison will give you time to put your priorities in order, rehabilitate, and focus on yourself and your mental health.  You have been actively engaging in the Aboriginal art program.  
78	Ms Lechner assessed your risk of violent reoffending. She is of the view that you pose a high risk of future violent offending compared with the average violent offender.
79	Ms Lechner was of the opinion that during this period of offending, you suffered symptoms of cannabis, stimulant and opioid use disorder, Complex PTSD, Borderline Personality Disorder and Bipolar Mood Disorder, Type 1.  
She considered your level of depression, coupled with your reportedly significant drug use, would have impaired your ability to make good decisions.
80	As for your prospects of rehabilitation, Ms Lechner considered they are hampered by chronic drug addiction problems and underlying mental health problems. Unless you are able to remain abstinent from drugs and engage with appropriate psychological work, you are at risk, she said, of being caught in a revolving door of offending and gaol.
81	Given your numerous mental health issues, particularly the Complex PTSD, 
Ms Lechner considers imprisonment will be particularly onerous for you.  
82	You were also assessed by Martin Jackson, neuropsychologist, in June 2020. His report, dated 20 June 2020, was tendered on your behalf.  
83	You told Mr Jackson that you started smoking marijuana at the age of 10 or 11.  You said you would generally smoke 28 grams per day, but could in fact smoke up to 48 grams per day.  You generally smoked on a daily basis and had been smoking up until the time of your then incarceration on 31 March 2020. You commenced to use methylamphetamine at around the age of 13 or 14 and have been smoking up to three grams of ice per day on and off since then. You also reported having used heroin on and off for approximately 10 years. You would use it generally to ‘come down’ off the ice and would do so about three times a week. You also regularly abused benzodiazepines, pain-killers, and antipsychotic medication in the past. 
84	You provided Mr Jackson a detailed history of past trauma and psychiatric issues.  Before your remand, you have not sought formal treatment with regard to your extensive history of trauma, self-harm and mental health issues, although your general practitioner had prescribed for you Seroquel.
85	Regarding your personal history, Mr Jackson noted that you have worked with the Aboriginal Land Council on and off for a number of years, and also the Bunurong Land Council in Frankston.
86	Following assessment, Mr Jackson concluded you are a man of estimated low to average premorbid abilities who demonstrates mostly intact cognitive functioning with the majority of your performance on tests of verbal intellectual abilities, perceptual intellectual abilities, new learning and memory and executive skills being in the low-average range or better. You demonstrate lower than expected performances in the areas of processing speed, some aspect of working memory, high level attention, visual logical thinking, and delayed recall. You do not have an acquired brain injury. Your current impairments, he said, were consistent with the effects of heavy recent drug use, having only stopped when incarcerated some two and half months before testing. 
87	A report from Melanie Canning, psychologist, dated 27 November 2020, was also tendered on your behalf.  Ms Canning first saw you for counselling on 
10 August 2021, following your acceptance in the Bunjilwarra program. Therapy with her consisted largely of psychoeducation and cognitive behavioural therapy. As at the date of her report you had completed six therapy sessions. It would appear that your progress with her and at Bunjilwarra was positive.
88	Finally, an ‘Aboriginal Community Justice Report’, authored by Rachael Benbow, under the supervision of Professor Thalia Anthony, was tendered on your behalf. The report details your background circumstances and life story. It was prepared following six video and telephone calls with you, and one call with Ms Orphanos, who provided further detail concerning your background. 
89	There are some clear positives in what you discussed with Ms Benbow, including your focus on positive relationships with the Koori men you have met in custody, on your art and music, and your relationship with Ms Orphanos and her two young children. You speak to Ms Orphanos at least daily on the phone and she visits you twice weekly in prison. You have also maintained regular communication with your mother and have occasional calls with your siblings and grandparents. The report notes that you are a skilled artist and have been involved in the Torch program where you have sold a number of your paintings. You communicated your hope to Ms Benbow, upon you release, to live with Ms Orphanos and her children, reunite with your own children, and make a living through your paintings. You also hope to obtain a qualification that will enable you to work as a tattooist. You also have the opportunity for work as a cultural heritage advisor where you have previously worked in a family run business. 
Sentencing Considerations
90	The maximum penalties that may be imposed in respect to each charge reflect the seriousness with which each charge is considered by Parliament.  
The maximum penalties are as follows:
•	Charges 1 and 2, being a prohibited person in possession of a firearm – 10 years’ imprisonment.
•	Charges 3 and 4, using a firearm in a public place – 10 years’ imprisonment.
•	Charge 5, home invasion – 25 years’ imprisonment.
•	Charge 6, damaging property – 10 years’ imprisonment.
•	Charge 7, conduct endangering life – 10 years’ imprisonment.
•	Charge 8, theft – 10 years’ imprisonment.
•	Charge 9, possession of 1,4-Butaindiol – 12 months’ imprisonment.
91	The related summary offence of possessing ammunition without a licence 
40 penalty units, and the related summary offence of committing an indictable offence whilst on bail, three months’ imprisonment.
92	You have both pleaded guilty to the charges. I was informed that the charges against each of you resolved at a committal mention. In your case, Mr Allen, on 15 November 2020, and in your case, Mr Austin, on 12 October 2022. These are pleas entered at the earliest reasonable opportunity. There are significant utilitarian benefits attached to each of your pleas of guilty. You have each facilitated the course of justice, you have acknowledged responsibility for your offending, you have spared the Court and the community the cost and time associated with a committal hearing and trial. Importantly, you have spared witnesses from having to give evidence. Your pleas of guilty take on added benefit given the impact of the COVID-19 pandemic on the Court’s backlog of cases. You are both entitled to a significant reduction in penalty by reason of your pleas of guilty.   
93	Your pleas of guilty are, in your case Mr Allen, also an indicator of your remorse. The question of your remorse, Mr Austin, is not so clear. Whilst you expressed to Ms Lechner regret for being back in prison, you frankly told her that you did not ‘really feel sorry’ for the victims of your offending. You were not able to explain why you felt that way. This attitude is a matter of some concern and suggests a lack of insight into the harmful impact of your offending, particularly of the home invasion. I am not able to find, on the balance of probabilities, that you are remorseful for your offending behaviour.  
94	Home invasion is a Category 2 offence meaning that I must impose a sentence of imprisonment unless one of the criteria in s5(2H) Sentencing Act 1991 applies. 
95	The offence of home invasion, it has been said, invariably involves a terrifying experience for the direct victims and threatens the wider community’s sense of security. The invasion of Ms Stewart’s and Mr Umi’s home, in the early hours of the morning, whilst still dark, with you, Mr Allen, armed with a sawn-off shotgun, was clearly a terrifying experience for both victims. 
96	I accept the prosecution submission that that offence was premeditated given the circumstances in which it was committed, including the possession of a firearm by you, Mr Allen, and your attempt at a rudimentary disguise. However, in other respects it was unsophisticated with you, Mr Austin, engaging with 
Ms Stewart and Mr Umi at the front door just before the home invasion occurred. You, Mr Austin, were known to both victims. You, Mr Allen, were at least known to Ms Stewart. In this regard, your conduct was extremely brazen. 
97	You were both inside the victims' home for approximately five minutes.  
Mr Allen, you knew that the firearm was loaded with cartridges.  Ms Brennan, on your behalf, Mr Austin, submitted there is no evidence that you knew the shotgun was loaded.  I accept that submission. However, by your plea to Charge 5, you knew that Mr Allen had with him a shotgun when you entered the victims’ home. 
98	Your reason for trespassing into the premises, consistent with each of your pleas of guilty to Charge 5, was that you intended to commit an offence involving an assault to a person therein. You were both aware that Ms Stewart and Mr Umi were present at the premises when you entered. It is a particular of Charge 5 that you were in company with a third co-accused. It is not suggested that that third person entered the premises and I was not informed of the role that that person played. 
99	Your conduct, in attempting to enter the bedroom in which both victims sought refuge, by pushing and kicking at the door was both threatening and violent. You, Mr Allen, then shot at the door on two separate occasions thereby endangering the lives of Ms Stewart and Mr Umi. You alone are charged with that offence. Such conduct was particularly serious given Mr Umi had his body placed against the door to prevent your entry and both victims were in the room. It is fortunate that he and Ms Stewart were not shot. I am not able to find beyond reasonable doubt that the tear to Mr Umi’s T-shirt was caused by a projectile, as was suggested by the learned prosecutor. 
100	Your conduct at the house appeared to be deliberate and with purpose. You, Mr Austin, had the presence of mind to place your hand over the front doorbell camera and to later disconnect the CCTV hard drive connected to the front door security camera and take it with you.   
101	In Clark v The Queen, a decision referred to by the learned prosecutor, the Court stated: 
The fact that the appellant was carrying a loaded firearm was a very significant aggravating feature of the home invasion offence.  It revealed premeditation on his part; it greatly increased the danger associated with the act of entry into the premises; and it shed relevant light on the appellant's intention at the point of entry.  The fact that May became aware of the firearm after they had jumped the fence does little to moderate the significance of this differentiating factor, in our view.

102	Those considerations are apt in each of your cases. 
103	The seriousness of the offence of home invasion cannot be gainsaid. It carries a maximum penalty of 25 years’ imprisonment.  In DPP v O'Brien the Court stated:
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.

104	In my opinion, this was a serious instance of home invasion, itself an inherently serious offence.  You each violated the right that all persons in our community should have, namely, the right to be and feel safe in their own homes.  
You terrified each of your victims.
105	As I understand the prosecution submissions, it was submitted that your overall offending falls within the mid to high range level of seriousness.  I accept that characterisation in respect to the charge of home invasion.
106	In relation to the conduct endangering life charge, I also find this to be a serious instance of such an offence. As I have already stated, your conduct in firing at the door twice, Mr Allen, was particularly serious. It was an exceptionally dangerous act. You knew that the victims were in the room trying to prevent your entry. You recklessly placed Mr Umi and Ms Stewart in danger of death. You are fortunate not to be facing a more serious charge. 
107	You are both charged with separate firearms offences. 
108	Mr Allen, Charge 1, is a rolled-up charge that on a number of days between 1 March 2022 and 11 June 2022, you, being a prohibited person, possessed two shotguns, one of which was used in the home invasion. I have viewed a number of images of you posing with the firearms. Your possession of these firearms is a matter of particular concern given your preparedness to use one of them for a specific criminal purpose, namely, the home invasion, and to shoot it during the incident on 10 June. 
109	You also pleaded guilty to a rolled-up charge of using a firearm in a public place, namely in bushland and on a highway.  On two occasions, 6 and 18 March 2022, you discharged a shotgun, different to that used during the home invasion, from a moving car. On 13 March 2022, you discharged a shotgun used in the home invasion, into bushland.
110	Ms Rolfe, on your behalf, accepted that your possession and use of firearms was very concerning given the obvious risks that such possession and use involves.  She submitted that there were elements of bravado and invincibility about your possession and use of the firearms.  That may be so, but as I have said, you were also prepared to use a shotgun in the course of your offending on 10 June.
111	In sentencing you on these rolled up counts, I have regard to the entire circumstances in which you possessed and used firearms, including the period of time over which you possessed and used those firearms. However, each rolled up offence represents a single charge with a maximum penalty of 10 years’ imprisonment in both the possession and use charges.
112	You, Mr Austin, possessed a shotgun between the 4th and 6 March 2022.  
You were a person prohibited from possessing a firearm. You also used a firearm in a public place on a highway on 5 March 2022.  You discharged a shotgun out of the window of a moving vehicle. I was not told how you came to be in possession of the firearm or why you possessed it. I do not make any finding that you possessed the firearm for any particular criminal purpose. 
113	You, Mr Austin, were on bail at the time you committed the home invasion.  
As you are separately charged with the summary offence of committing an indictable offence on bail, I make it clear that you are not again to be punished for it in respect to Charge 5.
114	With regard to the drug possession charge, Mr Allen, the prosecution accepts that possession was for a non-trafficking purpose.  I will sentence on that basis.
115	The property damage charges are based on you both kicking at the door when you tried to enter the bedroom.  The value of the damage is not known.
116	Mr Austin, the items you stole have not been recovered.  Those items being a hard drive, a duffle bag and clothing belonging to Ms Stewart.
Bugmy Considerations
117	Both defence counsel relied on the application of the Bugmy principles, in a general way, as reducing the level of your moral culpability. 
118	In Bugmy, the High Court stated:
	The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience.  It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. 
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision.

119	I accept the submissions of each of your counsel that the principles referred to in Bugmy are enlivened in a general way. The learned prosecutor did not dispute the application of those principles in each of your cases.  
120	I accept, on the evidence before me, that you have each suffered the effects of profound childhood deprivation.   I have already referred in some detail to each of your backgrounds and the reports tendered on behalf of each of you.
121	I accept in your case, Mr Allen, that the environment in which you grew up was one marked by alcohol abuse, domestic violence perpetrated on your mother, physical and emotional abuse, and neglect. As a child you were introduced to drugs through older relatives. As Ms Rodgers stated, the impact of that trauma likely contributed to the development of anxiety and depression. Dr Rakov and Dr Smith both considered your childhood experience informed your violent attitudes and that substance abuse was your means of coping with your distress.
122	You, Mr Austin, also grew up in an environment of alcohol and drug abuse. Your father was frequently in gaol. You witnessed and were subjected to violence as a child and suffered demeaning, belittling, verbal abuse. You were homeless at a very young age. You began using drugs while still at primary school as a means of blocking out your emotions. As reported by Ms Lechner, this has undermined your subsequent vocational, social, and emotional development. 
123	In each of your cases your moral culpability for your offending is reduced by reason of your background of childhood deprivation. 
	Verdins’ Considerations  
124	Your counsel, Mr Allen, submitted that the diagnoses of depression, anxiety and distress are such that each of the Verdins principles 3, 4, 5 and 6 are enlivened. I accept that there should be some moderation in sentence on the basis of principles 5 and 6, having regard to the matters set out in Ms Rodger’s report, including the risk of suicide. However, I am not able to agree that your sentence be moderated having regard to principles 3 and 4. Having regard to the reports tendered on your behalf, particularly the findings of Dr Rakov and Ms Rodgers, in my opinion, the severity of your symptoms is not such as to call for any reduction in the need for general or specific deterrence. 
125	In your case, Mr Austin, given your mental health issues referred to in the reports of Ms Lechner, Ms Brennan submitted you will experience prison with greater difficulty than a prisoner without mental health issues. I accept that submission and moderation of sentence will be made on that basis. 
	Koori Court
126	You both voluntarily participated in a sentencing conversation with respected Aboriginal elders. I accept that it was not an easy process for either of you. You were both respectful in listening to the elders and you each participated and responded in a positive manner. I also had the benefit of hearing from your supporters. In your case, Mr Allen, your mother, and your sister. In your case, Mr Austin, your mother, and your partner. They each spoke during the sentencing conversation. 
127	It could not have been lost on either of you that your actions impacted not only on the direct victims of your offending, but also on your family members and, importantly, upon the Aboriginal community of this area. 
128	You, Mr Allen, said you were going to change, grow up, and be the man you should be.  You acknowledged the shame you brought to yourself, your mother and your sister.  You expressed remorse for your offending and your victims.  You recognise that drugs and antisocial peers have left you at risk of institutionalisation.
129	You, Mr Austin, were less forthcoming, but this may have been as a result of your shyness.  However, you did demonstrate some insight into the effect drugs were having on your life.  You expressed a desire to move on with your life, start a family and pursue a career in art and tattooing. 
130	Your participation in Koori Court is a matter that weighs in your favour in my consideration of an appropriate sentence.  I accept that each of you are genuine in your stated desire to avoid spending more and more time in gaol.  However, in both of your cases, unless you receive the psychological treatment recommended by those who assessed you, and unless you avoid negative peer association and drug use upon your release, then you are at significant risk of relapse and further offending.
Drug Addiction
131	Ms Brennan, on your behalf Mr Austin, submitted that because of your chronic drug addiction and the fact that your offending was complicated, if not motivated by that addiction, I should have regard to this in assessing your level of moral culpability.  Ms Brennan emphasised that you were introduced to drugs prior to puberty.  
132	Reliance was placed on the decisions of The Queen v Lacey and 
Jones v The Queen.  In Lacey, the Court stated:
The offender's addiction will only call for mitigation of punishment where it is established on the balance of probabilities that there was a link between that addiction and the commission of the offences.  Sentencing error will only arise when it can be shown that, on the material presented on the plea, the sentencing judge was bound to find the requisite link between the offender's addiction and the offences.

133	The above passage was cited with approval in Jones. 
134	While you, Mr Austin, assert that you were drug affected at the time you offended, I am not able to find, on the balance of probabilities, the link between the offences committed by you and your addiction.  Apart from your assertions to others, there is no evidence as to you being under the influence of drugs at the time, or if so, what effect it had upon you. In my opinion, you acted purposefully in seeking to exchange a voucher for money and then asking for money.  You acted purposefully in placing your hand over the doorbell camera.  You acted purposefully in disconnecting the CCTV hard drive and taking it with you.
135	The evidence does not establish why you offended in the way you did in each of the offences with which you are charged.  There is no evidence as to your motive for such offending.  With regard to the home invasion, your intention, as charged, was to commit an assault.  The relationship between you and the occupants of the house, and why you intended to commit an assault and upon whom, was not the subject of submissions or evidence. I do not accept your explanation to Ms Lechner that you were there to get ‘ice’. That explanation was not made on by your counsel during oral submissions. Moreover, such an explanation is not consistent with the prosecution summary, which was not disputed by you. 
Rehabilitation Prospects
136	In my opinion, Mr Allen, your prospects of rehabilitation are guarded.  You have a lengthy history of drug abuse and criminal offending.  You have been given the benefit of rehabilitative dispositions in the past and you were in fact on a Community Correction Order when you committed these offences.  Although you appear to have been making very good progress in custody, the real test for you is how you will cope upon your release.
137	You acknowledged to Ms Rodgers having attempted a ‘fresh start’ a number of times but you were unable to sustain this despite support from your family members.  According to Ms Rodgers, you are in need of treatment for substance abuse and mental health issues.  Until such time as you are able to deal with those issues in a sustained and meaningful way, I am not able to take a favourable view of your prospects.
138	It was submitted on your behalf, Mr Allen, that I should impose a sentence that has a longer parole period to facilitate your rehabilitation.  I do not accept that submission given you were on a Community Correction Order at the time you committed these offences, given the seriousness of these offences and the need for community protection, and my findings as to your prospects for rehabilitation.
139	In your case, Mr Austin, I consider your prospects are guarded.  You have a lengthy history of drug abuse and a significant criminal record.  In coming to this view, I have also taken into consideration your progress in custody, the support you are receiving from Ms Orphanos, and your stated desire to reform.  I note that you have previously had the benefit of participation in the Bunjilwarra program between July 2020 and February 2021. Mr Dawson, clinical lead of that program, in his letter dated 5 February 2021, sets out the many therapeutic programs in which you participated. He states that you presented and engaged well throughout your time at Bunjilwarra. He found you to be honest and motivated to address challenges with your mental health, family connections and drug use. He noted you were shy, lacking in confidence, and struggled to communicate your needs. However, you re-offended after leaving the program. 
140	I accept the opinion of Ms Lechner that you represent a high risk of future violent offending, and that a high level of intervention is required to reduce this risk level.  Ms Lechner states that unless you are able to remain abstinent from drugs and engage in psychological work addressing your past trauma, you are at risk of being caught in a revolving door of offending and gaol time.  
Your history of offending is also relevant to the assessment of your prospects.
Deterrence, Denunciation and Protection of the Community
141	In my opinion, the considerations of deterrence, denunciation, and protection of the community are the paramount sentencing considerations.  Others who are minded to engage in similar criminal activity, particularly offending involving firearms, should understand that they risk stern punishment.  
142	Given each of your criminal histories, the sentences that I impose must also deter each of you from further offending. You should understand that if you continue to offend you will face increasing sentences.  You will risk becoming institutionalised, as was mentioned to each of you by the Elders during the sentencing conversations.  The home invasion, the discharging of the shotgun in circumstances where two persons lives were endangered by you, Mr Allen, and the firearms offences, must be strongly denounced by the Court on behalf of the community.  
143	In determining an appropriate sentence, I have also had regard to current sentencing practice.  I have had regard to the cases to which I was referred by counsel, as well as other decisions of the Court of Appeal and this Court.  While each sentence must be determined having regard to its own circumstances, decisions of other courts for comparable offending may be of some assistance in providing guidance as to sentencing range.
144	I have had regard to the impact of your offending upon the victims.  I have also had regard, in sentencing each of you, to the fact that during your time on remand there have been certain restrictions in place as a result of the 
COVID-19 pandemic. 
145	In endeavouring to achieve a just and proportionate sentence, I have also had regard to the principle of totality to ensure that the total effective sentence reflects your overall criminality and that the sentence is not crushing.
146	With regard to the charge of home invasion and property damage of which you are jointly charged, I see no reason to impose different sentences, notwithstanding the fact that you, Mr Allen, entered the house in possession of the firearm.  You both entered the house, you, Mr Austin, were an active participant in the offence and, I find, you were aware that Mr Allen was armed with the firearm.
Sentence 
147	Mr Allen on – 
Charge 1 – being a prohibited person in possession of a firearm you are convicted and sentenced to 15 months’ imprisonment.  
Charge 4 – using a firearm in a public place you are convicted and sentenced to 15 months’ imprisonment.  
Charge 5 – home invasion you are convicted and sentenced to four years and three months' imprisonment.  
Charge 6 – property damage you are convicted and sentenced to two months’ imprisonment.  
Charge 7 – reckless conduct endangering life you are convicted and sentenced to three years and three months' imprisonment.
Charge 9 – possession of a drug of dependence you are convicted and fined $500.  
On the related summary charge of possession of shotgun cartridges you are convicted and fined $500.
148	Charge 5 is the base sentence.  I direct that three months of the sentence imposed on Charge 1; four months of the sentence imposed on Charge 4; and 12 months of the sentence imposed on Charge 7 be served cumulatively on the base sentence and on each other.  This makes a total effective sentence of five years and 10 months’ imprisonment.  The total fines imposed are $1,000.
149	I direct that you serve a period of three years and nine months’ imprisonment before becoming eligible for parole.  I consider that this is the minimum period that justice requires you to serve having regard to all of the circumstances of the case.  
150	Pursuant to s 18 of the Sentencing Act the period of pre-sentence detention of 363 days not including today is to be reckoned as already served under the sentence imposed.
151	Had it not been for your pleas of guilty, the sentence I would otherwise have imposed is one of seven years and six months with a non-parole period of 
five years and three months.  You may be seated, thank you, Mr Allen.
152	Mr Austin on – 
Charge 2 – being a prohibited person in possession of a firearm you are convicted and sentenced to eight months’ imprisonment.
Charge 3 – using a firearm in a public place you are convicted and sentenced to eight months’ imprisonment.
Charge 5 – home invasion you are convicted and sentenced to four years and three months’ imprisonment. 
Charge 6 – property damage you are convicted and sentenced to two months’ imprisonment.
Charge 8 – theft you are convicted and sentenced to three months’ imprisonment.  
On the related summary offence of committing an indictable offence on bail you are convicted and sentenced to one month imprisonment.
153	Charge 5 is the base sentence.  I direct that two months of the sentence imposed on Charge 2; two months of the sentence imposed on Charge 3; one month of the sentence imposed on Charge 8 be served cumulatively on the base sentence and on each other.  This makes a total effective sentence of four years and eight months’ imprisonment.
154	Mr Austin, you are currently undergoing other sentences.  As mentioned on 
23 June 2022, you were sentenced to a total effective sentence of 26 months with a non-parole period of 16 months.  I note that 121 days pre-sentence detention was reckoned as already served pursuant to s 18 of the 
Sentencing Act.  Accordingly as of today, you have served, it would appear, some 16 months of that sentence.  You are, it would seem, close to being eligible for parole, if not already eligible for release on parole.  
155	I have had regard in a general way to the fact that you have been in custody for that period of time.  It is relevant, in my opinion, to the question of totality.  I do not intend to order any cumulation of the sentence I have imposed today on the sentence you are currently undergoing.  However, I am required to set a new non parole period. I direct that you serve a period of imprisonment of three years from today's date before becoming eligible for parole.  
156	Had you not pleaded guilty to the charges, the sentence I would otherwise have imposed is one of six years with a non-parole period of four years and three months. 
157	Pursuant to s 18 of the Sentencing Act the period of eight days is reckoned as already served under this sentence. 
158	Ms Liantzakis, are there any other orders that are sought?
159	MS LIANTZAKIS:  Your Honour, there are three ancillary orders with respect to Mr Allen.
160	HIS HONOUR:  Yes.
161	MS LIANTZAKIS:  The draft orders should already be filed with the court, 
Your Honour.
162	HIS HONOUR:  Yes.
163	MS LIANTZAKIS:  It's a disposal order for the 1,4-Butanediol, a forfeiture order for the double barrel shotgun and ammunition and a forfeiture order with respect to the mobile phone.
164	HIS HONOUR:  Yes.  I think on the last occasion they were not opposed by 
Ms Rolfe.
165	MS ROLFE:  That's right, Your Honour.
166	HIS HONOUR:  Thank you.   I'll make those orders if I didn't already say so on the last occasion.  
- - -