IN THE COUNTY COURT OF VICTORIA	 Revised
Not Restricted
 Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

CR-22-01720

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SHAURYA TOMAR		

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JUDGE:	HER HONOUR JUDGE ELLIS	
WHERE HELD:	Melbourne	
DATE OF HEARING:	26 March 2024	
DATE OF SENTENCE:	3 April 2024	
CASE MAY BE CITED AS:	DPP v Tomar	
MEDIUM NEUTRAL CITATION:	[2024] VCC 399	

REASONS FOR SENTENCE
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Subject:		   CRIMINAL LAW
Catchwords:	        one charge intentionally damaging property- one charge of aggravated home invasion- one charge of intentionally cause injury- two co-offenders- finding of guilt by jury- parity
Legislation Cited:  Crimes Act 1958, Sentencing Act 1991, 
Cases Cited:         Akoka v The Queen [2017] VSCA 214, R v Verdins [2007] VSCA 62; 16 VR 269; DPP v O’Brien [2019] VSCA 254; DPP v Meyers [2014] VSCA 314; (2014) 44 VR 486
Sentence:		Total effective sentence of three years and nine months’ imprisonment.  Non-parole period of three years imprisonment.
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr. T. Crouch (Plea)

Mr. N. Cescato (Sentence)	Office of Public Prosecutions	
			
For the Offender	Mr. N. Rolfe	Rolfe Criminal Law	

HER HONOUR:
1	Shaurya Tomar, on 25 August 2023 after a 10-day trial, you were found guilty by a jury of:
•	One charge of intentionally damaging property contrary to s197(1) of the Crimes Act 1958 ('Crimes Act'), which carries a maximum penalty of 
10 years’ imprisonment;
•	One charge of aggravated home invasion contrary to s77B of the Crimes Act, which carries a maximum penalty of 25 years’ imprisonment; and 
•	One charge of intentionally cause injury contrary to s18 of the Crimes Act, which carries a maximum penalty of 10 years’ imprisonment.
2	On the same date you were found not guilty of the charge of armed robbery.
Circumstances of Offending 
3	Given the jury’s findings, I sentence you on the basis of the facts as they were alleged at trial pertaining to the three charges for which you were found guilty. 
4	You were aged 28 years at the time of the offending. The co-accused in this matter, Jordan Winsor and Andile Radebe, were aged 18 and 33 respectively. 
5	The complainant in this matter is David Hope, then aged 35 years, who resided in Lilian Street, Bulleen. 
6	On 30 January 2021, Mr. Hope arranged with his friend, 16-year-old Lily MacNeil ('Lily') to meet up at a residence in Elgar Road, Doncaster for a drink. At the time you were residing at this address with your mother.
7	Before going to the apartment, Mr. Hope met with Lily at an industrial estate near Elgar Road where they then met with Mr. Winsor and a female named Anna. The four of them travelled to your apartment in Elgar Road. You greeted them and the five of you were drinking and smoking together. At one point you fell asleep on the couch before your mother returned home, prompting Mr. Hope and Lily to leave. 
8	Later Mr. Winsor and the two young women went back to David Hope’s home in Lilian Street, Bulleen. Mr. Winsor and Hope became involved in an altercation which led to Mr. Winsor being evicted from the house after being assaulted by Mr. Hope. Winsor later returned to the house looking for Anna at around 2:35 pm. Some time later, Lily and Anna left the house separately.
9	A few hours later, at around 7:30 pm, Winsor and another male (who was unknown to Mr. Hope but who was later referred to as Mr. Lawther) returned to Hope’s residence. The visit was captured on Mr. Hope’s Ring doorbell footage. The two men indicated that they were there because a friend had left something there and that there was a misunderstanding. There has been some suggestion that the items they were seeking were two gel blasters. They left without gaining entry to the premises. 
10	At around 3.20 am the next morning, a neighbour who was finishing work spotted three men in a white Toyota Corolla stopped on Lilian Street near Mr. Hope’s residence. This car was later confirmed to be leased by your 
co-accused, Mr. Radebe. 
11	At 3.40 am, the Ring doorbell footage shows yourself and your two co- accused, Mr. Radebe and Mr. Winsor, attending to the front door of Mr. Hope’s residence in Lilian Street. Although some efforts were made by your co-offenders to hide their facial features by way of caps or sunglasses, you made no attempts to conceal your face nor appearance. The prosecution case was that you were holding a knife. On the jury's verdict it is clear that the jury were satisfied beyond reasonable doubt that you carried with you an offensive weapon.  The same can be said for your co-accused, Mr. Winsor, in whose hand a silver object was visible from the footage. 
12	The CCTV footage depicts Mr. Radebe pick up a garbage bin and throw it towards the front door, causing the door and glass to shatter. At this stage Mr. Hope was awoken from the living room where he had earlier fallen asleep. His evidence was that he heard the words 'Police, police, police - this is a search warrant'. He realised it was not the police and he tried to go to the kitchen to arm himself, at which point you and your co-offenders gained entry through the broken glass door. Mr. Hope claimed to recognise you from the previous day, as well as your neck tattoo.
13	One of the neighbours gave evidence at trial that she heard shouting, glass smashing and banging. She said she heard men shouting words to the effect of 'Doncaster police, open up', and consequently did not call police. 
14	Once the three of you had gained entry you repeatedly shouted 'police'. Mr. Hope recalls seeing each of you and your co-accused holding what he described as big and shiny kitchen knives which he says you were all swinging around. Mr. Hope said that at one point during the ordeal a knife was pressed to his neck. 
15	You and your co-accused forcefully grabbed Mr. Hope and threw him into a bedroom next to the front door. Each of you began to smash furniture and strike the complainant using bed palings from the damaged bed. This caused injuries to Mr. Hope’s head, resulting in bleeding. Mr. Hope was threatened and told not to contact police. It was the prosecution case at trial that the three of you stole items from Mr. Hope and consequently you were all charged with the offence of armed robbery but ultimately found not guilty of that offence by a jury.
16	The audio of the home invasion was captured in part of the Ring doorbell footage. You and your co-accused can be heard yelling words to the effect of 'Room clear' and Mr. Hope recalls you using words such as 'This is the police', 'Room clear' and 'No suspects here'. 
17	The three of you then left the residence and returned to the white Toyota. 
18	Police attended at the address at approximately 3:45 am and observed broken glass panels in the front door and blood on the footpath in front of the house. Mr. Hope was visibly bleeding from the top of his head and the premises appeared to be ransacked. 
19	Mr. Hope was treated at the scene by paramedics for a laceration to the top of his head and an abrasion to his lower back. He declined transportation to hospital.
20	Later that morning a credit card in the name of Mr. Radebe was located by a locksmith at the premises.  DNA swabs located from blood found within one of the rooms at the premises was forensically analysed and matched the DNA profile of Mr. Radebe.
21	Some months later, on 9 September 2021, you were arrested at your Balwyn North home. At Doncaster Police Station you essentially gave a 'no comment' interview but you told police you had been staying with your mother at the Elgar Road address at the beginning of that year, being 2021.
22	You were remanded in custody on the same day. On 11 February 2022 you were bailed, having spent 155 days in custody. The issue in contention at trial was one of identification. Secondary to that, as far as I can glean, were questions of whether the elements could be made out particularly in terms of intention upon entry, whether you carried an offensive weapon and whether you intentionally caused injury or robbed Mr. Hope.
23	Given the jury verdict, I sentence you on the basis that you did enter the property with an intent to assault Mr. Hope and that at the time of the entry you had on you an offensive weapon, being a knife.
24	You were remanded in custody following the verdict.  A plea hearing was set down but later adjourned in order to obtain relevant reports and there was a further adjournment of proceedings which was not attributable to you.
Victim Impact 
25	There is no victim impact statement in this matter.
Sentencing Act 1991
26	Aggravated home invasion is a Category 1 offence pursuant to the Sentencing Act 1991 ('the Act') which requires that a term of imprisonment must be imposed for offences of this type.
27	Furthermore, s10AC of the Act directs that a non-parole period of not less than three years must be fixed unless the court finds that a special reason exists pursuant to s10A. The Act directs that a non-parole period must be at least six months less than the sentence imposed.  
28	Your counsel concedes that special reasons cannot be established pursuant to s10A of the Act and accordingly the minimal non-parole period is applicable. 
Personal Circumstances 
29	These were set out in plea submissions and in the psychological reports tendered on your behalf. You were born in Agra, India in October 1992 and you have an older brother from whom you are estranged. You are now 31 years old.
30	As a child you were encouraged by your father to play professional tennis from the age of four. When you were six years old your family relocated to Australia; the move was motivated by increased tennis opportunities. Your childhood was characterised by excessive tennis training. You have described your father as highly critical and authoritative, frequently pressuring and denigrating you for failing to meet academic and sporting expectations. Your professional tennis career came to an end following a shoulder reconstruction which meant that you were no longer able to serve.
31	Your father worked for Yarra Trams and your mother worked in hospitals as a nurse, sterilising surgical instruments. Your parents' marriage was marked by verbal conflict as a result of infidelity.
32	In your teenage years you began exhibiting challenging behaviour and you were expelled from a number of schools. You ultimately completed Year 10 by distance. You have reported that your behavioural problems were as a result of boredom and inattention but this was compounded by your affiliation with a local gang.
33	For a period you resided with your grandparents in India. This was an unpleasant time as they were critical of your mother. You report growing up afraid of your father who you now consider did not know how to handle your challenging behaviour and you were kept away from the rest of the family as much as possible. As a result you moved frequently between India and Australia.  You report that you moved to New Delhi on eight separate occasions between 2014 and 2018. During this time you experienced great stress and difficulty adjusting between countries. You worked as a tennis coach.  Your relationship with your family was a difficult one. 
34	In 2018 you entered into an arranged marriage which you previously described as the best decision you ever made. You and your wife resided together in the same apartment complex as your parents. The two of you have an 11-year-old daughter together.  She is reportedly a profound motivation in ceasing substance use. However, your relationship with your partner came to an end and the two of you now have an acrimonious relationship with no agreement regarding childcare or custody. An intervention order was ultimately put in place.  In those circumstances, you do not expect to be able to see your daughter while you are in custody. 
35	You have had various forms of employment including tennis coaching, working in retail, fast food franchises and traffic control which you ceased due to spinal degeneration. More recently you worked with a COVID-19 information hotline.
36	You have a long history of substance abuse. You began drinking and smoking cannabis at the age of 17 and within a year you were consuming entire bottles of whiskey and smoking half an ounce of cannabis a day.
37	In 2012 you began using nitrous oxide daily and you calculate you had inhaled approximately 500 canisters within an eight-month period. You have also reported using other drugs such as methylamphetamine, cocaine, GHB, LSD, but have avoided heroin and other opiates.
38	You have reported abnormalities in liver function due to alcohol abuse. You have been hospitalised previously for associated spinal and neurological injuries.
39	You purportedly have a limited recollection of this offending due to intoxication using amphetamines and alprazolam at the time. You have denied any significant affiliation with either of your co-accused.
40	A psychiatric report dated January 2022 prepared by Dr. Danny Sullivan was tendered in order to provide the court with the background to a current psychological report. According to Dr. Sullivan you have reported previous psychiatric consultations. You reported longstanding anxiety to Dr. Sullivan and attributed this to fear of punishment and denigration experienced in childhood. You consider that much of your substance use had been to quell feelings of anxiety and manage distress.
41	Dr. Sullivan was provided with your Eastern Health records which set out previous hospital admissions, some of which relate to substance abuse.  I have had regard to this.
42	You saw Dr. Neha Dave, registered psychologist, from July 2021. In a report from September 2021, Dr. Dave notes that you reported having attended some 
sessions of Men's Behavioural Change programs and Anger Management programs
43	You have previously been diagnosed with insomnia and in 2012 you were diagnosed with attention deficit hyperactivity disorder for which you were treated with medication. In 2013 you were diagnosed with drug induced psychosis and you have reported a historical diagnosis of schizophrenia characterised by psychotic experiences and auditory and visual hallucinations.
44	Dr. Sullivan opines in his report that your intoxication at the time of the offending was associated with marked impairment of judgment, disinhibition and reduced capacity to think clearly and make calm and rational choices.
45	Whilst on bail you spent a period of approximately five weeks at the Cottage, a residential rehabilitation program, between 17 November and 28 December 2022, but you were ultimately discharged from this program before completion. Operations manager, Aaron Gilhooly, considered that you had shown commitment to recovery by trying your best to engage.  Whilst there you met with a counsellor, Maria Hutchison. Following your discharge you voluntarily made contact with Ms. Hutchison in February 2023 to engage in one-on-one counselling, which you then undertook for a number of months. A letter dated 21 April 2023 confirms your involvement in this program until that time. 
46	Since being remanded in custody you have undertaken few courses due to lack of availability, but you have enrolled in a Business Management Course at TAFE. You have worked as a cleaner and a billet whilst on remand. You hope to work with your cousin in construction upon release.
47	I take into account the efforts that you have made at your own rehabilitation. As you have no doubt discovered, rehabilitation is not a straightforward process and clearly you have experienced some setbacks, but your willingness to persevere is encouraging. At the end of the day, Mr. Tomar, the only person who can make a change to your life is you. 
48	I take into account the time that you have spent at The Cottage which involved a period of confinement and restriction of your freedoms. Applying the principle set out in Akoka v The Queen, I take this into account as part of the instinctive synthesis and have moderated the sentence accordingly.
49	According to psychologist, Megan Socat, in her January 2024 report, you meet the criteria for a substance use disorder. Your drug use has resulted in mental destabilisation and significant physical health problems. She also considers that you currently meet the criteria for major depressive disorder. She opines that it appears that imprisonment has exacerbated your depressive disorder and it is likely that these symptoms will persist in the absence of psychological intervention. I take these matters into account, although Ms.Socat does not suggest that your condition is likely to further deteriorate but rather persevere whilst in custody. Notwithstanding this, in line with the principles set out in 
R v Verdins, namely Limbs 5 and 6, I am prepared to accept that your time in custody is more burdensome than for a prisoner with no depressive disorder and that your condition will likely persist without treatment (though as to this latter aspect I do not give it enormous weight).
Prospects of Rehabilitation
50	When discussing this matter with Ms.Socat you denied any involvement in the offending. You have always denied that you were present, even in the face of the CCTV footage and the evidence of Mr. Hope.  I cannot find that you have any insight into your offending behaviour given that you continue to deny it. You come before the court with no prior criminal history, but you have a long-established history of drug use which appears to have compromised your mental and physical health. In that sense it is somewhat remarkable that you have not found yourself before the courts before this offending. The reality is that if you continue to use drugs you will likely find yourself in this position again. To your credit you have recognised your issues with drugs and sought treatment which does bode well for your rehabilitation prospects. You are also fortunate to have the support of your family which enhances those prospects. Your father and other family attended court during your trial and on the plea hearing. I find that you have good prospects of rehabilitation and that these are considerably improved if you remain abstinent and if you receive treatment for your mental health. 
Parity
51	I must have regard to the issue of parity. You committed this offending with Mr. Winsor and Mr. Radebe. You all played significant and equally important roles, although in Mr. Radebe’s case he was found guilty of the lesser charge of home invasion, which although a serious charge, does not carry a mandatory minimum sentence. On the charges of home invasion, criminal damage and intentionally cause injury, Mr. Radebe received a total effective sentence of two years and 10 months' imprisonment with a non-parole period of 20 months.
52	Mr. Winsor was found guilty of the same charges as you. He too was subject to a mandatory minimum sentence. He was sentenced two days before his 21st birthday to a charge of aggravated home invasion, criminal damage and intentionally cause injury. He received a total effective sentence of three and a half years’ imprisonment with a non-parole period of three years. However, Mr. Winsor’s personal circumstances were different to yours. He was sentenced as a young offender and accordingly rehabilitation assumed primacy in the sentencing process.
53	I take parity into account, but I note for the reasons that I have just given, that you are in a somewhat different position as compared with each of your co-offenders.

Nature and Gravity of Offending
54	Aggravated home invasion is by its very nature a serious offence. This is reflected in the maximum penalty applicable and the fact that Parliament deemed it appropriate to set down a mandatory minimum period of imprisonment. Prior to changes in legislation this offence might have been charged as an aggravated burglary. In DPP v O’Brien, the Court of Appeal confirmed that sentencing decisions concerning home invasion as a form of aggravated burglary remain directly relevant to sentencing for this offence.
55	Home invasion-style aggravated burglaries were discussed in Hogarth v The Queen as particularly serious noting:
'Typically, a home invasion involves multiple offenders entering a person’s home, carrying weapons, intending to rob or injure the victims in revenge. The entry of offenders acting in anger and often fuelled by alcohol is itself a terrifying experience for the householders, irrespective of what may occur after entry.'
56	This encapsulates what occurred here.
57	When assessing the objective gravity of home invasion, regard should be had to the list of non-exhausting sentencing factors set out by the Court of Appeal in DPP v Meyers relating to the offence of aggravated burglary, but equally applicable here. Some of these factors are an element of the offence of aggravated home invasion in any event, such as the use of a weapon and offending in company. The matters set out in Meyers include:
a)	the intent at the point of entry;
b)	the mode of entry;
c)	whether the offender was carrying a weapon;
d)	whether the offender was alone or acting in company, (and pausing there, both of these last two matters are factors which are required for the offence of aggravated home invasion);
e)	the time of day at which the offending took place;
f)	what the offender knew or believed about who would be inside; and
g)	whether the offender was someone of whom the victim was particularly scared.
58	As I have said, here, by virtue of the offending being one of aggravated home invasion, the jury were clearly satisfied that you entered in company armed with a knife. The smashing of Mr. Hope’s front door forms part of a separate charge and you are not to be sentenced twice for this, however, this was the mechanism by which you gained entry. That you entered by violent means and in the early hours of the morning would have added to the terror and the confusion experienced by Mr. Hope. He had some limited familiarity with you but I accept that you were not someone of whom he was particularly scared. 
59	There was a degree of planning and co-ordination, although the execution of the offending was not particularly sophisticated. The constant references to being 'police' under the pretext of conducting a search suggests an attempt to make it sound as though what you were doing was legitimate. The offending lasted approximately five minutes and so it was not a fleeting episode.
60	I do not have much information about your role specifically or as to why the three of you were present, or what your understanding was as to what had transpired prior to your entry. Each of your co-offenders have given some context to provide possible reasons for going to Mr. Hope’s home, or about the extent of their role in the decision to invade his home. Mr. Winsor was the person who had previously been to that address, and he had spent more time with Mr. Hope the previous day.  Again, you claim to have a limited recollection. In your account to Ms. Socat you maintain that you were not present or involved in the offending.
61	As to who instigated the idea of the three of you attending at the premises, I cannot be satisfied to the requisite standard. Whichever of you formulated the decision to travel there and to enter in the way that you did, again I cannot say. I sentence you on the basis that you attended with the co-accused and that you were an active participant upon entry and once inside.
62	I accept that the injury sustained by Mr. Hope was towards the lower end, and consequently when it comes to sentencing you for this offence, I do not propose to make any orders for cumulation.
Sentencing Purposes
63	The basic purposes for which a court may impose a sentence under the Sentencing Act are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. I must consider those objectives when passing sentencing when having regard to the maximum penalties, the objective gravity of the offending, your culpability and your personal circumstances.
64	The sentence I pass must balance the interests of the community in denouncing criminal conduct with the community's interests in seeking to ensure that as far as possible you are rehabilitated. I must have regard to the principles of parsimony.
65	General deterrence assumes considerable importance here. Other members of the community must understand that violent aggravated home invasions will not be tolerated. Offences like this strike at the very heart of an individual’s sense of safety. Mr. Hope was entitled to feel safe in his own home. The court denounces your conduct. 
66	I have had regard to current sentencing practices and this is not a single controlling factor.
Proportionality and Totality
67	You have been found guilty of three offences and some cumulation might ordinarily be warranted, but I note that the offending occurred as part of a single episode and there should be a degree a concurrency appropriate to satisfy the principle of totality. I must ensure that the overall sentences imposed for these closely connected, yet separate crimes, is met with a total and proportionate sentence.
Sentence
68	Mr. Tomar, I now sentence you as follows:
69	On Charge 1, the charge of damaging property, you are convicted and sentenced to two months' imprisonment.
70	On Charge 2, aggravated home invasion, you are convicted and sentenced to three years and nine months' imprisonment.
71	On Charge 3, intentionally cause injury, you are convicted and sentenced to three months' imprisonment.
72	The sentence imposed on Charge 2 will be the base sentence. I order that the sentences imposed on Charges 1 and 3 be served concurrently with the sentence imposed on Charge 2 and with each other.
73	The total effective sentence is therefore three years and nine months' imprisonment. 
74	I fix a period of three years' imprisonment before you can become eligible for parole.
Pre-sentence Detention
75	Pursuant to s18 of the Sentencing Act 1991, I declare 378 days pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
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