Director of Public Prosecutions v Abela-Rogers

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-02307
CR-19-02315

DIRECTOR OF PUBLIC PROSECUTIONS

RHYS ABELA-ROGERS
CHARLIE FARRUGIA

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2020; 16 June 2020; 17 June 2020; 28 July 2020
DATE OF SENTENCE:	3 September 2020
CASE MAY BE CITED AS:	DPP v Abela-Rogers & Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 1412

REASONS FOR SENTENCE
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Subject: Criminal law

Catchwords: Aggravated home invasion; aggravated burglary – person present; aggravated burglary – offensive weapon; burglary; theft; attempt to commit indictable offence – aggravated burglary; traffick cannabis
Legislation Cited: Sentencing Act 1991

Cases Cited:R v Myers [2014] 44 VR 486; DPP v Wol [2019] VSCA 268; R v Sikoulabout [2018] VSCA 268; R v Dean [2020] VSC 100; DPP v O'Brien [2019] VSCA 254; R v Bugmy (2013) 249 CLR 571; Wait Marrah v The Queen [2014] VCSA 119; R v Verdins & Ors [2007] 16 VR 269; Azzopardi, Baltatzis, Gabriel [2011] 35 VR 43, Brown v The Queen [2020] VSCA 60; DPP v Hudgson [2014] VSCA 254
Sentence:Offender Abela-Rogers: TES of 7 years 11 months imprisonment with a non-parole period of 5 years
Offender C. Farrugia: TES of 5 years 11 months imprisonment with a non-parole period of 3 years 10 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For Accused Abela-Rogers	Mr N. Goodfellow	Emma Turnbull Lawyers
For Accused Farrugia	Mr W. Barker	Balmer & Associates

HER HONOUR:

1Between 10 September 2018 and 17 January 2019, a series of house break-ins were committed across Melbourne by a team of offenders.
The incidents occurred in the early hours of the morning on six separate days within those dates. In total, seven houses were entered and one house was the subject of an attempted entry which in effect formed a total of eight incidents. The offending group varied between those incidents.
2Seven offenders were charged. Those persons are you, Rhys Abela-Rogers, you, Charlie Farrugia, Dylan Farrugia, Abdulahi Ali, Jackson Balshaw,
Jake Synan and Damien Monro.
3The plea hearings of all but Jackson Balshaw commenced on 15 June 2020 and took place over three days before being adjourned to 28 July 2020 for further plea. On that day, Jackson Balshaw was arraigned on a separate indictment and entered pleas of guilty to the offending for which he takes criminal responsibility.
4There was a familial link between at least four of the offenders, being
Rhys Abela-Rogers, Dylan and Charlie Farrugia and Damien Monro.
5On any view of it, it was a well organised and sophisticated methodology used to commit the offences where the primary aim was to locate and seek cannabis crops to steal. Essentially, the modus operandi involved the following - firstly, houses were identified prior to the morning of the actual house break in. A FLIR, which is a Forward Looking Infrared Radar was used. This device can identify areas of higher temperature in which cannabis plants thrive and indoor plantations are often heated. The FLIR was used by the group to identify homes likely to be growing cannabis. Once, the target was identified, members of the group would travel to the address in the early morning. False number plates were fixed to the vehicles used in the offending. A getaway driver would be nominated and remain with the vehicle. The other participants would then enter the target premises with their faces covered and equipped with crowbars, garden shears and poles used to gain entry and collect any cannabis crop located. Items other than cannabis would also be taken if readily available and/or there was no cannabis located.
6The offending involved premeditation, planning and was highly orchestrated. It was extremely serious. Those involved in each incident had their role to play. As already described one person was responsible for remaining with the vehicle whilst others entered the premises, disguised, and with items to assist in their intention, that being to steal. I accept the submission that there was no identifiable instigator or leader.
7The police investigation was equally sophisticated. It involved direct evidence from some witnesses of victims noting, as was anticipated by the offenders, most were not as interested in complaining when a cannabis crop was stolen. The investigation also involved telephone intercepts on telephones linked to Rhys Abela-Rogers and Charlie Farrugia from 20 December 2018. Listening and tracking devices were installed into Rhys Abela-Rogers' car just prior to the final offending day of 17 January 2019. There was a detailed piecing together of traffic camera information and call charge records. The recording from the listening device was tendered.
8Various relevant items were seized under warrants and searches of the offenders' property and vehicles, CCTV was also sourced.
9You, Rhys Abela-Rogers, participated on each occasion. All seven offenders participated on the final day. You, Charlie Farrugia, participated in five of the eight events. In addition, there were one or more still unidentified offender or offenders who participated.
10During the offences, doors and surrounds were damaged on some occasions. Given the timing of the house break ins, which tended to be between 2 am and 3 am in the morning, it is reasonable to expect that someone was likely to be present in the targeted premises. It would appear that the break-ins proceeded regardless but would be terminated if the offenders were challenged, particularly if the residents were non-Asian. The group were of the view that Asian persons were likely to be less resistant to demands so that break-ins continued when Asian residents were found to be at home. This racial link to your decision making will not be used against either of you in sentence, it was just part of the methodology employed.
11I now turn to the actual offending.
12The first incident in time, Charge 1, aggravated burglary, occurred on 10 September 2018 at 78 Huxley Avenue, Mulgrave. Each of you, Rhys Abela-Rogers and Charlie Farrugia, were involved in that offence and are charged with an aggravated burglary particularised as entering that premises with intent to steal, knowing or being reckless as to a person's presence.
13It was at 2.43 am on 10 September 2018 that you broke into 78 Huxley Avenue. That premises had an external CCTV camera which shows a dark coloured station wagon parked on the street at the front of the address.
Three offenders, with faces covered, exit the vehicle and approach the house carrying garden shears and a jemmy bar. You, Rhys Abela-Rogers, remained with the vehicle.
14You, Charlie Farrugia, went to the front door first and attempted to look through a window. One of the unknown offenders went to the CCTV camera at the front door and attempted to remove it. A second unknown offender attempted to force open the front door using a crowbar or a jemmy bar but was unsuccessful. You, Charlie Farrugia, forced the front door open by kicking it. Three offenders then entered the house
15Chris Ballas and his wife resided at that address. Mr Ballas was watching television when he heard the front door being forced open. When he went to investigate, he found offenders in the house and chased them out.
The offenders were in the house for less than 10 seconds, returned to the Commodore, and drove away. Mr Ballas called ‘000’. There was no cannabis plantation at the house.
16Whilst an unsuccessful initial foray into your offending spree, the aggravated burglary was complete on entry and on this occasion, involved early morning entry to a private residence by multiple offenders who were disguised, targeted premises and a confrontation with a resident - albeit this confrontation was on a relatively low level. It was the first offence in time, and while serious, was not as objectively serious as some of the offending which was to follow.
17Incident 2, reflected in Charges 2 and 3 on the indictment as charges of burglary and theft, occurred about two weeks later on 26 September 2018 at 578 Main Road West, Kings Park. You, Rhys Abela-Rogers and
Charlie Farrugia, were undeterred by the offence of 10 September 2018, despite having clear opportunity to reflect on those actions and to desist.
On this occasion, Dylan Farrugia was also involved.
18At 00.34 am on 26 September 2018, an external CCTV camera of a house in the street recorded a Commodore parked at the front of 578 Main Road West, Kings Park. False number plates were fixed to the vehicle - as they were on each occasion.
19Three persons left that vehicle and entered the premises whilst one remained with the car. There was a cyclist riding home who observed a male in the driver's seat and another male run from the address carrying a large television as he passed by the Commodore.
20CCTV footage records two persons to leave the premises carrying bags that were put in the boot of the vehicle. AT 00;42 a.m the vehicle drove off.
21Three identified offenders being you, Rhys Abela-Rogers, you, Charlie Farrugia, and Dylan Farrugia are each charged with the theft of cannabis and of a television.
22The cyclist called ‘000’ soon after he made his observations. Police attended at the house and found damage to the door frame and a room containing seven cannabis plants and cultivation equipment.
23Again, this involved entry in the early morning by more than one offender on targeted premises. No one was identified as being present at the time of entry, hence the charge of burglary.
24Charges 4, 5 and 6 occurred on 3 October 2018 at two separate address being 45A Ferndale Road, Sunshine North and 22 Meadowbank Drive, Sunshine North. I accept that it was part of your initial intention for 3 October 2018 that two addresses be approached, marking an increased determination in your endeavours.
25You, Rhys Abela-Rogers, were involved in each of these events, effectively comprising your third and fourth offence approximately a week after your second. Again, the opportunity for reflection after 26 September 2018 was ignored.
26Dylan Farrugia, Jackson Balshaw and Abdulahi Ali were also involved, comprising Dylan Farrugia's second involvement and the first for Abdulahi Ali and Jackson Balshaw. Each is charged with the offences of burglary on 45A Ferndale Road and all but Jackson Balshaw with the aggravated home invasion of 22 Meadowbank Drive, from which a television, iPhone and handbag was stolen and theft is charged. In relation to this event, Jackson Balshaw is charged with aggravated burglary.
27On 2 October 2018, you, Rhys Abela-Rogers, purchased a Toyota Aurion to which false registration plates were fixed.
28At around 2.30 am on 3 October 2018, CCTV footage from external cameras at residences in Ferndale Road, Sunshine North, show a light-coloured vehicle driving in the street, park and persons from that vehicle walk towards a townhouse at 45A Ferndale Road. The resident was not at home, hence the charge of burglary.
29A neighbour heard loud noises and banging coming from inside 45A and contacted ‘000’. He observed multiple torch lights within the residence and a number of persons to leave.
30Police attended later and observed that 45A appeared to have been broken into as the front security door had been removed and the door had been damaged. They located seven cannabis plants in the garage.
3122 Meadowbank Drive, Sunshine North, is approximately two kilometres from Ferndale Road, Sunshine North, and it had internal and external CCTV cameras fitted. The CCTV footage shows that at 2.45 am, you,
Rhys Abela-Rogers, Dylan Farrugia, Abdulahi Ali and an unknown male approached the house masked and wearing gloves. Dylan Farrugia and Jackson Balshaw were carrying garden shears and you, Rhys Abela-Rogers, were carrying a crowbar that had a torch attached. Entry was forced through the front door. As already outlined, a large television, an Apple iPhone and a purse was stolen from these premises.
32This was the home of Linh Nguyen. Also in the house at that time were his partner, Phuong Doan and two others. They were all in bed sleeping.
Nguyen heard a noise and got up. He found intruders inside the house and confronted them. They pushed Nguyen away and ordered him to lie on the floor. They searched the house but there was no cannabis.
33Internal CCTV footage shows you, Rhys Abela-Rogers, standing close to Nguyen when speaking to him with a crowbar pointed towards his chest and stomach area. At one point, Jackson Balshaw was searching through his jacket. Nguyen walked towards Balshaw. Balshaw faced Nguyen, raised his garden shears above his head and pointed them at Nguyen, threatening him, forming the basis for a charge of common assault on the indictment which is particular to Jackson Balshaw.
34You, Rhys Abela-Rogers, used the crowbar to hook Nguyen by the back of the neck and pull him back before then raising the crowbar above your head and poking Nguyen in the chest.
35Being confronted by a resident apparently posed you little challenge.
I have no doubt that he was likely to have been terrified - for himself and for the other occupants of his premises. This represents a serious example of a confrontation with an innocent victim and elevates your role, Mr Abela-Rogers, and that of Mr Balshaw in this offence. It also elevates the objective gravity of it. The objective gravity is high in any event.
36This was a far more serious example of a confrontation than that demonstrated in Charge 1 where confrontation led to flight.
37This particular offence otherwise carried all the hallmarks of those that preceded it in the sense that it was highly orchestrated and highly sophisticated offending, involving the entry of multiple and disguised intruders to targeted premises with scant regard for those that inhabited them.
38This was the second occasion in which your offending, Mr Abela-Rogers involved confrontation with occupants at the home you chose to invade, albeit for Charge 1, you were in the vehicle.
39Your offending Mr Abela-Rogers was becoming more brazen, more fearless and showed callous disregard for those that were the victims of your criminal behaviour. This must be reflected in the penalty imposed.
40Yet you were again undeterred by this experience.
41Charge 7 is the next event in time and occurred on 13 November 2018 at
16 Gardenia Road, Balwyn North. It is you, Rhys Abela-Rogers and Abdulahi Ali who are charged with aggravated burglary which is particularised as entering with an intent to steal, knowing or being reckless as to a person's presence in what was your fifth involvement in this kind of offending,
Mr Abela-Rogers.
42On 6 November 2018, an address close by, being 13 Gardenia Road, was pinpoint marked on a map on Ali's phone, reflective of the general research employed prior to the offences taking place.
43On 13 November 2018, between 1.52 and 1.56 am, an external CCTV camera at a residence in Gardenia Road recorded an Aurion driving in the street.
44Hope Windon and Samuel Wilkinson resided at 16 Gardenia Road.
There was no cannabis plantation at the house. At 1.57 am, Windon awoke when she heard noise at the front door and she got up to check.
Wilkinson got up shortly after. He saw a torch light reflecting off a wall near the front door. Windon found offenders forcing open the front door, the door was damaged. Both Windon and Wilkinson attempted to keep the door closed. They were unable to do so.
45Two offenders entered, they had face coverings. One was carrying a crowbar and the other was carrying some sort of implement. Wilkinson yelled at the offenders to get out. The offenders responded with 'Back off.' There was a short standoff. The offenders then left and drove away in the Aurion.
46Whilst relatively limited in terms of the actual incursion into the home, the incident lasted about one minute and was terrifying. Wilkinson immediately called ‘000’ and police arrived shortly thereafter.
47Samuel Wilkinson provided a victim impact statement. The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
48Mr Wilkinson recalled waking up to his partner's screams of terror and to battling to keep the door shut as two masked men forced their way into the home. He believed he was going to die and he thought his partner was to be killed. He speaks of having his life changed forever. They never slept in that house again. He describes life afterwards as having an ominous cloud that hung over both of them and made it harder to feel happy and to just enjoy life. It affected the relationship between them and they simply did not feel safe in their home.
49Mr Wilkinson read his victim impact statement to the court. Your offending upon him and his partner has been profound in terms of both its immediate effect and its enduring impact. It demonstrates clearly the lasting ramifications from invading the private and personal space of others, an environment in which people are entitled to feel both safe and secure.
This entitlement was clearly destroyed for both Mr Wilkinson and for his partner. Whilst other victims of your offending have chosen not to make victim impact statements, Mr Wilkinson's is perhaps a stark example of how they might also have been affected.
50This was the third occasion in which your offending involved a confrontation with the occupants of the home you chose to invade, Mr Rhys Abela-Rogers.
51Approximately four weeks later, your offending resumed, Mr Abela-Rogers.
It had been some three months for you, Mr Charlie Farrugia. Each of you had again had a considerable period in which to rethink your actions, yet you chose to offend again, increasing your already high moral culpability.
52Charge 8 occurred on 10 December 2018 at 38 Jonah Parade, Deer Park. You, Rhys Abela-Rogers and Charlie Farrugia, are charged with aggravated burglary which is particularised as entering with an offensive weapon and an intent to steal, knowing or being reckless as to a person's presence at that premises. This would involve your sixth home entry, Mr Abela-Rogers, and your third, Mr Charlie Farrugia. Dylan Farrugia was also present and for his fourth occasion.
53Anh Tuan Vo resided at 38 Jonah Parade, Deer Park. Several rooms in his house were set up for cannabis cultivation. Some houses in Jonah Parade had external CCTV cameras. At 3.12 am on 10 December, CCTV footage showed the Aurion in Jonah Parade. It backed into the driveway of number 38 with the rear boot against the garage roller door. As was well established, a driver remained with the vehicle. Three masked offenders then exited the vehicle and forced entry to the house through the front door.
54Vo was in bed. Two offenders entered his bedroom and an offender threatened Vo with a stick or similar and demanded to know 'Where is the money?' Vo said there was no money. One of the offenders remained with Vo most of the time whilst the others searched through the house. Vo recalls that the offender with him had a stick or hammer or similar.

55Approximately 20 cannabis plants were cut and removed. The offenders demanded Vo's car keys, which he gave them. The offenders loaded the cannabis into the Aurion. Two offenders got into the back of the Aurion which left the scene whilst another offender drove away with Vo's vehicle.
56It was a neighbour who called ‘000’. Police arrived soon after and observed there were cannabis plants in the house. Vo's vehicle was found abandoned the next day.
57Neither the theft of the motor vehicle or theft of cannabis is charged.
Neither of you will therefore be punished for those events. Rather, they further demonstrate the well-established method of offending where entry was gained with an intention to steal, preferably cannabis, but also items of value should they be available.
58Obviously, this offence also involved the direct confrontation with the occupant of the premises, increasing its objective gravity. It further demonstrates the general fearlessness of your offending by this time. The particularised presence of a weapon also elevates the seriousness.
59I accept the submission by the Crown that all persons are entitled to protection of the law, no matter what their circumstances. The fact that a victim is engaged in criminal activity, in this case the growing of cannabis, at the time of the offending against them may be relevant in assessing the harm caused to the victim by the offending. I have no victim impact statement from Mr Vo, yet I accept the invasion of a private residence in the early hours of the morning by masked offenders with weapons would have, at the very least, been frightening.
60On the late evening of 19 December 2018 and the early morning of
20 December 2018, police conducted surveillance and observed you,
Rhys Abela-Rogers, and you, Charlie Farrugia, with Dylan Farrugia and Jackson Balshaw driving in the Aurion. Different false plates had been affixed to the Aurion at Damien Monro's residence. From midnight until about 3 am on 20 December, the Aurion drove around numerous suburban streets in Dingley, Noble Park, Springvale South and Deer Park. At 3.15 am, the Aurion returned to Damien Monro's residence where the false plates were removed and correct plates affixed.
61You are not punished for these observations, it is said to be part and parcel of the methodology being employed at the time. This included the scouting for and locating of potential targets which serves to highlight the sophistication, determination and planning involved - relevant to the assessment of the overall gravity.
62The next offending, chronology wise, involves the charges each of you face for trafficking in cannabis. This perhaps also highlights the value to you of the item which you were stealing.
63In terms of the traffick cannabis charge, Charge 12, Mr Farrugia, that offending is comprised by 10 SMS messages exchanged between you and a man by the name of Colin Berryman on 22 December 2018 over a period of about an hour. In those messages, you offered to sell Berryman three pounds of cannabis at $2,300 per pound. You told Berryman that you were buying it at $2,250 per pound so were making $50 per pound on sales and said the cannabis was dry and clean. Ultimately, Berryman declined to proceed with the purchase. This charge is put on the basis of an offer for sale on one occasion and is not at the lowest end but is relatively low in terms of a charge of trafficking in cannabis.
64In terms of the trafficking in cannabis charge relating to you, Mr Abela-Rogers, you are said to have trafficked cannabis on four occasions between the dates of 26 December 2018 and 9 January 2019. On 26 December 2018, you agreed to sell to a person named Hayes two pounds of cannabis at $2,800 per pound. On 8 January 2019, Hayes told you that he would split the two half bags of cannabis you had supplied him that day and that it was “two and a half short.” You agreed to “fix it up.” The minimum quantity that a bag may refer to is said to be 28 grams. On 4 January, you offered to sell a pound of cannabis to another person, again for $2,800. Between 8 and 9 January 2019, you agreed to sell to that same person half a bag of cannabis, telling the purchaser to collect it from your house.
65Notably, your trafficking, in effect, involves a similar amount of cannabis to that of Mr Farrugia, albeit between dates. The Crown could establish at least
Mr Hayes received what was offered. Your offending for this charge is more serious than that of Mr Farrugia. It is not suggested that you are co-accused for that offending.
66However, totality and the assessed level of seriousness overall will dictate that the sentences to be imposed for each of you for the offence of trafficking will be concurrent with the other sentences I am otherwise to impose.
67I will now return to the break ins.
68Charges 9, 10 and 11 occurred on 17 January 2019 and involved two premises. One at Thurbro Drive, Keysborough and the other at 15 Aloomba Street, Chadstone. All offenders are charged with aggravated burglary particularised as entering with an intent to steal, knowing or being reckless as to a person's presence of 14 Thurbro Drive and with the theft of cannabis plants from that address. All seven offenders are also charged with the attempted aggravated burglary of 15 Aloomba Street.
69On 16 January 2019, you, Rhys Abela-Rogers, told Abdulahi Ali on the phone that they needed another car as there were four in your vehicle. Ali was told to take Jackson Balshaw.
70A listening device and telephone intercept picked up the conversation on
17 January during which you, Rhys Abela-Rogers, you Charlie Farrugia, Dylan Farrugia and Damien Monro discuss using FLIR devices, identifying cannabis grow houses, breaking into those premises and to meeting with Ali, Balshaw and Synan. The aim on 17 January 2019 was break into five houses overall.
71Things were clearly escalating in terms of the number of offenders intended to be involved on that particular night and with an ambitious target of five premises, hence the need for more manpower.
72Abdulahi Ali, Jake Synan and Jackson Balshaw were in Ali's Camry. A FLIR was put into that vehicle and stolen number plates were subsequently attached.
73At 2.20 am, your Aurion, Mr Abela-Rogers, and Abdulahi Ali's Camry met and target addresses were discussed.
74At about 2.55 am on 17 January 2019, Abdulahi Ali, Jake Synan and you each, Rhys Abela-Rogers and Charlie Farrugia, and Dylan Farrugia broke into a house at 14 Thurbro Drive, Keysborough. It was the role of Damien Monro and Jackson Balshaw to stay with the two vehicles which had been used to travel to that location. Loud banging could be heard on the listening device, cannabis plants were taken and put into the Camry.
75You, Charlie Farrugia, returned to the Aurion with Dylan Farrugia and you, Rhys Abela-Rogers, returned to the Aurion a short time later. In the Aurion, a discussion occurred which is referred to in the Crown opening. The Asian female of the house declined to provide any information to police. As agreed, the evidence of that discussion can be used to show that you,
Mr Abela-Rogers, were not quietly being led through this particular incident.
It also shows that you were again prepared to have some form of active involvement with the occupants of those premises.
76A local police unit later attended at the house and observed that the front door had signs of forced entry with a trail of cannabis leaves from the front door down the driveway. Cannabis was located inside the premises. You were all charged with and have pleaded guilty to the theft of cannabis from that residence, being Charge 10.
77At around 3.25 am, the Aurion parked near 15 Aloomba Street, Chadstone. You, Rhys Abela-Rogers and Charlie Farrugia, Damien Monro and
Dylan Farrugia had checked that house earlier that morning when strong readings on a FLIR had been obtained. Abdulahi Ali was also present in the vicinity in his Camry.
78You, Rhys Abela-Rogers, and the Farrugia’s left the Aurion. Damien Monro remained as driver. Loud banging and a male yelling loudly could be heard on the listening device. You each returned to the Aurion soon thereafter and discussed being confronted at the front door of the house by a large Aussie bloke - not a “nip” - and then leaving.
79When police attended the address on 25 January 2019, they observed that the front door had signs of attempted forced entry and 51 cannabis plants were in the garage and rear shed. The male resident would not provide information to police.
80Undeterred by those events, you then drove towards a third house, which you intended to break into, that house being at 22 Ruby Street, Preston. You are not charged with the approach to these premises, rather it is outlined in the Crown opening to further inform the circumstances of the planning and as an indication that this address was probably likely to be next of the five premises to be entered that morning as part of your audacious plan. However, as the address was neared, a police van approached. The Camry flashed its headlights at the Aurion and the Camry took off at a fast rate of speed on the wrong side of the road. The police van pursued the Camry, attempting to intercept it, but was unsuccessful.
81The Aurion was driven back by Damien Monro to your father's address,
Mr Rhys Abela-Rogers, in St Albans. It was found at that address by police later that day.
82On 17 January 2019, you Rhys Abela-Rogers and Charlie Farrugia, were arrested as were Dylan Farrugia, Abdulahi Ali and Damien Monro.
On interview, you exercised your rights to make a ‘no comment’ record of interview.
83Various searches by police were conducted and items of relevance to the police investigation were located. These were particularised in the Crown opening but included items used in the offending, such as three FLIR, a crowbar with a torch attached, walkie talkies, gloves, garden shears, a jemmy bar and face masks - further supporting the sophistication of this offending. Items of relevance were found at each of your respective premises.
84On a search of your premises, Mr Abela-Rogers, by police on 17 January 2019, the amount of $7,850 in cash was located in your bedside table, forming the basis of the summary charge of dealing with property suspected of being the proceeds of crime. That is also an offence to which you have pleaded guilty. Again, it is an offence which is relatively minor in the scheme of things. Any application for forfeiture in relation to these monies will be granted.
85You, Rhys Abela-Rogers, have pleaded guilty on indictment to each and every one of the events briefly outlined by me, which therefore includes the aggravated burglary at 78 Huxley Avenue, Mulgrave, the burglary and theft at 578 Main Road West, Kings Park, the burglary at 45A Ferndale Road, Sunshine North, the aggravated home invasion and theft at 22 Meadowbank Drive, Sunshine North, the aggravated burglary at 16 Gardenia Road, Balwyn North, the aggravated burglary at 38 Jonah Parade, Deer Park, the aggravated burglary and theft at 14 Thurbro Drive, Keysborough and the attempted aggravated burglary of 15 Aloomba Street, Chadstone.
86You have pleaded guilty on the same indictment to the charge of trafficking, being in cannabis, between 26 December 2018 and 9 January 2019.
You have pleaded guilty to the summary charge that I have outlined.
87Charlie Farrugia, you pleaded guilty on indictment to the offending which occurred at 78 Huxley Avenue, Mulgrave, 578 Main Road West, Kings Park, 38 Jonah Parade, Deer Park, and 14 Thurbro Drive, Keysborough, comprising Charges 1, 2, 3, 8, 9 and 10 on the indictment as well as Charge 11, the attempted aggravated burglary at 15 Aloomba Street in Chadstone. You were involved in five of the eight home entries.
88You also pleaded guilty on the same indictment to trafficking in Cannabis on the single date of 22 December 2018.
89In sentencing you for your crimes I must have regard to the maximum penalties for each of the offences to which you have entered your pleas of guilty. The maximum penalty for the charges of burglary and theft is one of ten years imprisonment. The maximum penalty for attempted aggravated burglary is 20 years imprisonment. The maximum penalty for aggravated burglary and aggravated home invasion is 25 years imprisonment. The maximum penalty for trafficking in cannabis is 15 years imprisonment. The summary offence carries a maximum of two years imprisonment.
These maximum penalties reflect the seriousness with which Parliament regards these offences.
90The circumstances of your offending were set out in a document entitled 'Summary of prosecution opening on plea' dated 20 May 2020. This was tendered as an agreed document. It was very detailed and confirmed your acceptance of all the elements of the offence and the factual basis on which I am to sentence. I have referred to the document in part already but have had recourse to its full contents.
91In general terms, with regards to sentencing where theft is charged, being Charges 3, 6 and 10, whilst representing a successful outcome for you, no value has been determined. On each occasion the theft is part of the intent on entry. I accept that the physical appropriation and the theft offences represents additional criminal conduct that is not the element of the burglary committed in whatever form it is charged. Each burglary is the more serious charge on every occasion. It is my intention in sentence that any term of imprisonment imposed for these thefts be concurrent with any sentence imposed for the related burglary.
92Whilst the same methodology was employed on each and every occasion in terms of the way the offending was committed, Charges 2 and 4 are charged as burglary; Charges 1, 7, 8 and 9 are charged as aggravated burglary (noting Charge 8 involves the additional particularisation of the use of an offensive weapon) and Charge 5 is charged as an aggravated home invasion. Care must be taken in sentence to take into account the differing maximum penalties, the differing particularisation and different circumstances and gravity of each event. In so saying I refer also to the attempted aggravated burglary.
93Charge 2 and 4 are each burglaries having previously noted the ten year maximum for that charge. They are similar however in their objective circumstances and seriousness in that they follow the established mode of multiple offenders entering each premises in the early hours of the morning, those premises being targeted premises. You, Mr Abela-Rogers, are charged with each of those events and you, Mr Farrugia, with Charge 2 only.
94In terms of the charges of aggravated burglary relevant to each of you - Charges 1, 7, 8 and 9 and the attempted aggravated burglary, Charge 11, for you, Mr Abela-Rogers, and Charges 1, 8 and 9 and the attempted aggravated burglary at Charge 11 for you, Mr Farrugia - I am assisted by the decision in R v Meyers [2014] 44 VR 486 which includes a non-exhaustive range of factors to be considered in assessing the objective gravity of an aggravated burglary. These include the offender's intent at the point of entry- being whether to steal or commit assault or cause damage; the mode of entry- such as forcing a door or breaking a window; whether the offender was carrying a weapon; whether the offender was alone or in company; the time of day at which the burglaries took place; what the offender knew or believed about who would be inside and/or about where the person would be; and whether the offender was someone of whom the victim was particularly frightened.
95Your offences were well planned and orchestrated and involved research as to the intended targets, the coordination of multiple offenders and vehicles with false registration plates, the obtaining and use of the FLIR, disguises, garden shears and implements to effect the intended theft. That intended theft of cannabis was likely to be of value to the offenders or it simply would not have been targeted.
96On each occasion of aggravated burglary the offending represented violent entry into a residence in the early hours of the morning by multiple offenders, wearing disguise, carrying implements to affect the theft - but clearly having the added advantage of being part and parcel of what could only be described as highly intimidating entry. The circumstances would naturally be frightening for any residents and undoubtedly was intended to be. It is perhaps obvious and highly probable that residents would be at home at the hour entry was effected. Darkness, of course, provided you with the extra element to avoid detection and create fear. Premises were targeted in circumstances where, as expected, and in this case often realised, there would be no complaint made.
97Charge 8 - as distinct from the aggravated burglaries where otherwise charged - is particularised as including the presence of an offensive weapon elevating its seriousness. However, it did follow the same modus operandi. The intention to steal, possession of the crowbar and garden shears and the state of mind as to the presence of victims formed part of the elements of the offence. As such they cannot be described as aggravating factors that are additional to the offence itself.
98Offences which involved a direct confrontation with your victims, more particularly Charges 7 and 8, are the most concerning. I see those two charges of aggravated burglary as the most serious where this offence is charged.
99I have been referred to and had access to the current sentencing snapshot of the Sentencing Advisory Council, number 237, in relation to the charge of aggravated burglary for offences committed between the years 2014 to 2015 and the years 2018 to 2019. Such that it assists, this tells me that the medium imprisonment length in the higher Courts for the charge of aggravated burglary, as the principle offence, was one of three years. Total effective imprisonment lengths ranged from three days combined with a community corrections order to 12 years and, non-parole periods, where imposed, ranged from eight months to nine years.
100Overall, I assess the aggravated burglaries the subject of this indictment to be at the mid moving towards the high range for offences of their type.
101You, Mr Abela-Rogers, are charged with the aggravated home invasion, Charge 5, at the address in Meadowbank Drive, Sunshine North. The charge of aggravated home invasion carries the same maximum penalty as aggravated burglary being 25 years. However, s.10AC of the Sentencing Act 1991 requires that a term of imprisonment be imposed with a non-parole period of not less than three years for the offence of aggravated home invasion unless the court finds that ‘special reasons’ exist.
102Again, the intention to steal, entry in company, possession of the crowbar and garden shears and the state of mind as to the presence of victims form part of the elements of the offence. As such they cannot be described as aggravating factors that are additional to the offence itself.
103Nevertheless, the sentence to be imposed on those involved in this particular offence, the aggravated home invasion of 22 Meadowbank Drive, must have sufficient regard to the maximum penalty of 25 years. The offending must be assessed using both maximum sentence and a mandatory minimum non-parole period as guideposts. It must reflect the clear indication from Parliament that the offence of aggravated home invasion intends to capture the most serious instances of home invasion.

104I have been referred to or have had recourse to the decisions in DPP v Wol [2019] VSCA 268, R v Sikoulabout [2018] VSCA 268, R v Dean [2020] VSC 100 and DPP v O'Brien [2019] VSCA 254.
105From R v Sikoulabout I draw the following quote:
'Given its recent introduction at the time of sentence there are few, if any, cases from which current sentencing practice for the specific offence which refers to aggravated home invasion might be discerned. However, there is a clear relationship between the elements of s.77B and those of aggravated burglary under s.77 of the Crimes Act. Within the limits that attend permissible use of current sentencing practices sentences for aggravated burglary provide a relevant touchstone for the consideration of current sentencing practice.'

106Wol, dealt with an offender who was only 18 years at the time of offending whose offending included aggravated home invasion. His offending was assessed by the Court of Appeal as being ‘particularly egregious’ with regard to a number of criteria. Those which have relevance to your case include, firstly, that the offending was planned - the victim's home in Wol was deliberately targeted in order to steal (in Wol's case that related to a particular motor vehicle he desired to possess). The offenders wore disguises. The home was entered in a violent manner by breaking down the front door in the early hours of the morning and entry was by multiple offenders.
107I do find the circumstances of Wol's case to be objectively more serious than yours, Mr Abela-Rogers, as at the time of entry he knew there was at least one occupant at the home, he had a serious criminal history, he took a loaded firearm into the premises and carried it with him during the offending and he used it to confront two of the victims by pointing the firearm at them. I believe the firearm was discharged at one point. However, in terms of your case there was still a likelihood of persons being home as high. You had with you garden shears and a crowbar although I accept they are less serious weapons then a loaded firearm. I accept that the confrontation which occurred would have been frightening for your victim.
108Bearing in mind at the time of the aggravated home invasion you had already been involved in similar burglaries, however charged, your moral culpability was again high. This was supported by the well planned and orchestrated nature of the offending which involved two events on 3 October 2018. The subject of the aggravated home invasion was deliberately targeted, you were undeterred by previous experience and you were undeterred by the presence of your victim to whom, again, disregard was shown. I do see the objective gravity of this offence as high.
109In Wol the Court of Appeal said “those who contemplate committing the offence of aggravated home invasion will forfeit their right to live freely in the community for a very long time if they are caught.”
110The gravity of the offending itself and its continuing nature warrant denunciation, protection of the community, general deterrence and specific deterrence to loom large in the sentencing mix.
111Totality is of course relevant. The totality principle requires that where an offender is being sentenced to multiple terms or is otherwise to serve multiple sentences then the sentences should ensure that the total sentence remains one which can be described as just and appropriate for the whole of the offending. This is a fundamental principle in any event but has particular relevance in the sentencing on this indictment involving multiple offences and multiple factors to be taken into account.
112There needs to be an appropriate relationship between the totality of the criminality and the totality of the effective length of the sentence. In my view a total effective head sentence that satisfies the requirements of totality is more properly achieved by imposing appropriate individual terms that satisfy all the sentencing objectives and then making them wholly or partially concurrent. Proportionality must also be reflected - the sentence imposed should be proportionate to the gravity of the offence considered in light of the circumstances.
113I accept the submission that on days where two offences occurred in close proximity timewise - that is those represented by Charges 4 and 5, the burglary on Ferndale Road and the aggravated home invasion which both occurred on 3 October 2018; and Charges 9 and 10, the aggravated burglary and the attempted aggravated burglary which both occurred on 17 January 2019 - that there is more scope for moderation of any cumulation between counts than that between charges which occur on disparate dates.
114I will deal with the personal circumstances of Mr Abela-Rogers first.
115In terms of your personal circumstances Rhys Abela-Rogers, I understand you are presently aged 20 and were between the years of 18 and 19 at the time of the offending outlined.
116You had a poor relationship with your father, Alfred or Fred Abela, with whom you now have little contact. Your mother, Fiona Rogers, was unfortunate to be the regular victim of his domestic violence which you were unfortunate to witness on many occasions.
117At various stages your mother sought the assistance of refuges which your father would ultimately locate. Your parents finally separated when you were approximately 17 years of age.
118You have a close relationship with your mother and were living with her prior to your arrest.
119You have six siblings aged between 12 and 33, three of whom are your half siblings. Your co-accused, Damian Monro, is your half-brother.
120I am told you completed a Year 9 education before leaving school.
You struggled significantly through your schooling and received assistance through a number of support services which included a mental health nurse, autism coach, psychologist, family support worker and speech pathologist.
121You are apparently a talented football player and played football from the ages of ten through to 17 for St Albans.
122You have a relatively limited employment history. You spent approximately five months working as a plasterer and labourer and three months in a fruit business stacking shelves. At the time of the offending you were unemployed.
123You have no prior criminal history and your resort to drug and alcohol use is relatively recent. You commenced drinking alcohol around 17 to 18 years of age and were drinking heavily and to become intoxicated. You started using cannabis and methylamphetamine around the same time with methylamphetamine being your primary drug of choice. You were using this substance and alcohol at the time of your offending.
124Your counsel raises a number of personal circumstances on which he relies as being relevant to the sentencing process.
125The first of those is what are referred to as the Bugmy principles which are said to be relevant to your upbringing in a home blighted by family violence. Without turning to the dire personal circumstances and upbringing of
Mr Bugmy which was in an environment of extreme dysfunction and disadvantage, the High Court in R v Bugmy made a number of significant findings which include (1), a person's background of social disadvantage may mitigate sentence; (2) the effect of a person's background of social disadvantage may vary but it does not diminish over time; (3) the impact on an individual sentence of a person's history of social disadvantage can and should vary as the weight to be afforded social disadvantage requires individual assessment; (4) most importantly, in any case which is sought to rely on an offender's background of depravation in mitigation of sentence it is necessary to point to material tending to establish that background.
126Other sentence and sentence appeal judgments since have reinforced the Bugmy principle that the effects of profound deprivation do not diminish over time and are to be given full weight in the determination of the appropriate sentence in every case. For example, I refer to Wati Marrah v The Queen [2014] VSCA 119. Because the effects of childhood deprivation do not diminish over time in repeated offending, it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision.
127Your childhood experiences such that they are described would have been shocking, but they do little to inform your resort to such high-level offending. Apart from submissions from the Bar table, counsel points to reference material tendered from family members which refers to family violence as being part and parcel of the household in which you grew up. I do not doubt that you were at least a witness to family violence and the terror that instils in a child and the constant fear involved would have been your experience.
I accept that this is likely to have a profound effect upon you. I accept that experience of growing up in an environment surrounded by alcohol abuse and violence may also leave its mark throughout life. I accept that your father was a poor role model. I accept that these were extremely difficult personal circumstances occurring for you from a very young age and doubtless must have impacted both your emotional and psychological wellbeing. I do take into account the unfortunate aspects of your upbringing in that general sense.
128Materials tendered from professionals and family indicate that you otherwise had an extremely supportive family and considerable resources were accessed to support your education and allocate appropriate resources.
129I do not accept the submissions made on your behalf that the principles of Bugmy have a substantial, if any, role to play. I do however indicate, as I already have, that the unfortunate aspects of your upbringing will be taken into account in a general sense.
130Your counsel also relies on you suffering an intellectual disability. It was not clear to me how it was said to be relevant to the sentencing exercise in your case.
131I have had recourse to the confidential psychological assessment report from the Department of Education and Early Childhood Development, dated 16 September 2010, when you were 10 years of age. The report was authored by Denise Cran, psychologist. That report details that you were presenting with quite severe behavioural disturbance at that time. A mental health nurse, autism coach, psychologist and family support worker were engaged and attempted to work with you to assess what might be occurring. She states “Rhys is a 10 year old boy that has experienced considerable behavioural and learning difficulties throughout his schooling and has attracted many professionals in order to assist him.” You were being tested for Autism Spectrum Disorder at that time. Your adaptive behaviour composite was said to be below the first percentile, meaning that some 99 per cent of same age peers would perform better or equal to you. You were assessed at that time as functioning in the ‘range of intellectual disability’ and were eligible to apply for funding under the program for students with disability.
132According to a letter dated 3 February 2020, you attended Jackson School in St Albans for approximately five years between May 2011 and December 2016 on recommendation of psychologist, which I presume to be Ms Cran. That referral was made as you were deemed to have an intellectual disability. Jackson School provides a specialised curriculum for students with special needs. In a reference from your mother dated 15 May 2020, she confirms her understanding that you were diagnosed with an intellectual disability which she also says negatively affected you throughout your life. She was undoubtedly reporting what she had been told. No evidence was called on this point and you are not recognised, as I understand it, as having an intellectual disability under the Disability Act.
133A medical report from Deer Park Central Medical Clinic, dated 2 March 2020 and authored by Dr Enni Hamidi details various reasons which you sought medical assistance prior to May 2017. Apparently, he was very concerned about your home situation and recommended that you see a psychologist for review. He does not refer you to presenting with an intellectual disability.
134A report authored by Ian Mackinnon, consultant psychologist, dated 17 May 2020. was also tendered on your behalf but ultimately was not relied upon. Instead, a report was commissioned from Dr Linda Borg, neuropsychologist.
135Her report dated 16 July 2020 was tendered and is relied upon. I have had recourse to this comprehensive report and accept its contents.
136To Dr Borg, you acknowledged exposure to domestic violence committed against your mother. She in fact spoke with your mother who confirmed your familial history and informed her that you had been diagnosed with what was described as “low cognitive” and had difficulties with socialisation, your mother believed you suffered from bad anxiety.
137In terms of her actual findings, that is Dr Borg's, your presentation was extremely complex. Her findings include, firstly, that there were deficiencies in the assessment undertaken by Ms Cran in 2010. She accessed the listening device transcript which led her to observe that you demonstrated adequate function recall and planning ability. You appear to have the ability to divide attention between competing information and were able to provide directives to your co-accused which all indicated a degree of reasoning regarding consequences, judgment, planning and insight under what she described as “typically anxiety provoking circumstances.” She assessed your premorbid intellectual functioning as to be likely within at least the ‘borderline range’. You were unable to satisfactorily compete all independent and embedded measures designed to assess motivation and she was concerned that you were not motivated to your best effort. Overall, her ability to reliably and accurately interpret the neuropsychological results was, in her view, impeded. It was considered likely that your presentation was in fact multifactorial in nature including a history of learning difficulties, potential contribution from childhood trauma and underlying antisocial personality tendencies.
138Dr Borg was not of the opinion that you demonstrated mental illness, acquired brain injury or Autism Spectrum Disorder. She was of the view that your continued exposure to inappropriate behaviour modelling throughout childhood contributed to a pattern of emotional dysregulation and ineffective management of emotional distress and discomfort. You do, in her opinion, have an appreciation of right from wrong, adequate capacity to plan and consider consequences, adapt behaviour under different circumstances and appreciate the experience of others.
139Dr Borg accepted that you cope well enough in the prison environment but was concerned that if you were moved to a different facility, such as Youth Detention, it could potentially disrupt your routine and may destabilise you from a mental health perspective. She is of the view that you seem to have drawn some stability from the routine of the prison environment.
140She sees your prospects of rehabilitation as contingent on an exposure to a positive peer and family support network upon your release. She describes your current family network as chaotic and lacking the presence of such stabilising and adaptive support. She assesses your risk of reoffending upon release as high, if not moderated through placement outside your family context. If this is not realistic, she encourages links with supported employment and exposure to adaptive peer connections such as mentoring programs.
141Unfortunately, Dr Borg was unable to finalise a definitive neuropsychological opinion regarding the nature and extent of any cognitive deficits as she was not of the opinion she had enough accurate evidence to support a quantifiable and more definitive judgment.
142The weight of the evidence is such that I can be satisfied that when you were 10 years of age, it was of the opinion of those dealing with you at that time, and for the school years that followed, that you suffered from an intellectual disability. Dr Borg, as I have said, accepts that your premorbid intellectual functioning was likely within at least the ‘ borderline range’. I have no issue on the available evidence accepting that your functioning now is likely to be “at least within the borderline range.”
143Be that as it may, a poor level of intellectual functioning can be relevant to sentencing in a number of ways. These include a reduction in moral culpability; a moderation of deterrence; and increased need to protect the community.
144Your counsel does not call into your aid the principles of R v Verdins & Ors [2007] 16 VR 269. In submissions dated 23 July 2020, your counsel submits that your intellectual disability was in existence at the time of your offending but was not causally linked to the commission of the offending. He further submits that the condition does not significantly increase the burden of imprisonment.
145Based on the state of the evidence before me, it is difficult to see an evidentiary basis to form the view that your intellectual capacity, or lack thereof, reduces your moral culpability or necessarily requires moderation of deterrence. Nor does it appear that there is a basis to find any sentence would weigh more heavily upon you than a person not suffering from your disability.
146However, accepting that low cognitive function is not something likely to be the subject of significant positive change and that there appears to be some uniformity about that reality, on very fine balance, I am prepared to take into account that existence for limited moderation of deterrence.
147I do have a basis to be concerned about protection of the community. I do not base that concern on your level of intellectual functioning, rather on the constant and serious nature of your offending over a three month period as well as the additional concerns raised by Dr Borg as to the circumstances upon your release.
148I do accept that your youth, at 18 to 19 years at the time of your offending, is a relevant consideration. Sentencing principles in relation to young offenders have their focus on rehabilitation. In the decision of Azzopardi, Baltatzis, Gabriel [2011] 35 VR 43, Redlich JA explained that there are several reasons to prioritise youth as a sentencing consideration. These include that young offenders are immature and may not fully appreciate the nature, seriousness and consequences of their criminal conduct. Courts recognise the increased potential for young offenders to be rehabilitated which is in the public interest. Incarceration can impair, rather than enhance, a young offender's prospects of rehabilitation.
149It has long been recognised that there is genuine merit from a sentencing perspective in such focus. It can however be displaced by other concerns including the gravity of the crime, the need to promote other sentencing objectives, an offender's refusal to accept responsibility or by history of prior offending.
150Whilst you have no prior matters, the serious nature of your offending and my assessment of your high moral culpability for it leaves me to conclude that there should be some moderation of the principles normally afforded to youth.
151The weight to be given to rehabilitation on account of your age is reduced by the gravity of your offending over a period of some months and my perceived need that weight needs to be given to protection of the community. I still see merit in extended supervision upon your return to the community - related to your youth and also as a means of protecting the community.

152The parity principle has been referred to and demands that any sentence imposed reflects differences in the culpability and personal circumstances of co-offenders and avoids unjustifiable differences in co-offender sentences.
As already outlined, multiple offenders were involved in these events and none of you have committed exactly the same offences.
153As was the combined understanding of those involved, the offenders' role varied in each incident - from remaining in the vehicle to entering a home with a crowbar or some other implement. There is not much to distinguish between you and any co-accused involved in each particular incident in which you were respectively involved in terms of actual role. The same could not be said in terms of Charge 5, the aggravated home invasion. In that sense,
Mr Abela-Rogers, that was your fourth burglary and secondly, you were one of the established perpetrators of direct confrontation with the victim. With the confrontations which occurred in relation to Charge 1 you were in the vehicle, and in Charges 7 and 8, those involved could not be accurately identified, albeit it was part and parcel of what occurred.
154In terms of any comparison between you and your co-offender for Charge 5, being Dylan Farrugia and Abdulahi Ali, I see your role in that incident at Meadowbank Drive as being elevated above the other offenders involved.
155I accept in general terms that you were one of the primary offenders in the incidents, after all, you were involved in all eight. I also accept that you played a role in the planning and organisation, increasing again your moral culpability.
156The personal circumstances of your young age, lack of prior history and low cognitive function do not leave me to form the view that in your case there should be any real difference in your favour in the sentence imposed.
157This is your first exposure to the custodial setting and I accept that in itself is capable of acting as both a sanction and a deterrent into the future. In terms of your history, your use and abuse of drugs and alcohol has been relatively short lived and as a direct result of your remand, abstinence has been enforced.
158I am told that you completed approximately 15 urine screens in custody, all of which were clean. In addition, you have completed a number of occupational programs as well as therapeutic programs including ‘Alcohol and Me’ and ‘Ice and Me’. Materials supporting this have been tendered.
159Prior to your involvement with drugs and alcohol, you had no criminal history. In this context, it is hoped that your eventual release will allow you to live a drug free lifestyle and reduce your future risk.
160The impact of the COVID-19 pandemic has been raised on your behalf.
I have had recourse to recent decisions in terms of this pandemic and its relevance to sentencing. In Brown v The Queen [2020] VSCA 60, Priest and Weinberg JJA considered how the pandemic might impact on sentencing. Their Honours stated that:
'In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court and others should deal with this crisis as regards to its effect upon relevant sentencing principles. We do accept however that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account if at all will be a matter to be resolved in the particular facts of any individual case.'

161I accept that the pandemic has altered the conditions for those on remand. More time must be spent in cells. There has been a suspension of physical visits and restricted access to programs. You would otherwise have had visits from family members and had been undertaking vocational and therapeutic courses that you are no longer able to access. In addition, I accept that there remains an understandable anxiety about the virus impacting on the prison system. I do take these aspects into account in a general sense.
162Your counsel contends the fact that you have pleaded guilty during the pandemic has additional utilitarian value. I disagree. I note that your intention to plead guilty was made clear to the court in late 2019, early 2020. At a Directions hearing on 19 February 2020, it was indicated that you will be pleading guilty and your matter was adjourned to a future date for arraignment. By that stage, COVID-19 was in Australia. Trials in Victoria were suspended on 16 March 2020. From what I understand of the chronology of your matter, it was never likely to be a trial.
163Instead, I accept that you pleaded guilty at an early stage. This encompasses the reality that there were contested committal proceedings in relation to seven offenders which occurred over several separate days over a period of some months. Whilst your matter did not resolve at the committal, the court was advised, as I have said, of your intentions to do so at an initial directions hearing in November 2019. There was an extensive brief of evidence, with a complicated intersection of police evidence - including direct witnesses - traffic camera evidence, listening devices, telephone intercepts and call charge records. These matters simply take time to absorb and resolve. I see little utility in trying to realistically distinguish whether your plea was slightly later than that of your three co-accused in terms of the sentencing discount that should attach.
164I do accept, as I said, that you have pleaded guilty at an early stage and that your plea has utilitarian value. I accept it saved the court the time and expense in a ccontext of complex proceedings that would have been of some length. In addition, it saved the witnesses the need to give evidence and for some, the additional trauma of having to relive illegal entry into their private domain. From what I have read, I also accept your plea of guilty is one of remorse - referred to in the character references tendered and expressed by you to Dr Linda Borg. All of these factors will certainly be taken into account in your favour.
165I turn now to the mandatory provisions.
166Section 10AC of the Sentencing Act 1991 confirms that for Charge 5, aggravated home invasion, the court must, as I have said, impose a sentence of imprisonment and it must have a non-parole period of at least three years unless the court finds that ‘special reasons’ exist. This reflects the clear indication from Parliament that the offence of aggravated home invasion intends to capture the most serious instances of home invasion.
167Section 10A provides that a court may make a finding that ‘special reasons’ exist if there are substantial and compelling circumstances that justify doing so. There are other bases, but it is on this basis on which you seek to rely.
168In determining whether there are substantial and compelling circumstances pursuant to s10A (2)(e), the court is required to have regard to the fact that Parliament's intention that a sentence of imprisonment of not less than three years should ordinarily be imposed for an offence covered by s.10AC and to whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.
169In your case, it is submitted that special reasons do exist and the court should instead impose a sentence placing you in a Youth Justice Centre.
This position was maintained despite the opinion of Dr Borg as to its potential detriment.
170Should ‘special reasons’ be found, s.32 of the Sentencing Act requires that a court contemplating a Youth Justice Centre order receive a pre-sentence report if it believes there are reasonable prospects for the rehabilitation of the young offender or it believes the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult system. There would be no evidentiary basis for me to form this view.
171Section 32(2C) prevents the making of a Youth Justice Centre order in respect of an offender who has committed a Category A serious youth offence (aggravated Home Invasion is a Category A serious youth offence) unless satisfied that exceptional circumstances exist. I presume if you overcame the threshold of ‘special reasons’ that that threshold may be met.
172The maximum period, even as an aggregate, that a court may detain a young offender in a Youth Justice Centre is for a period of four years. You have pleaded guilty to eight separate incidents of burglary in its various forms.
I find your offending simply too serious to even contemplate a Youth Justice Centre order independently of the provisions contained in s.10AC.
173In terms of you seeking that I still make a finding as to ‘special reasons”, in DPP v Hudgson [2014] VSCA 254, it was held at paragraphs 111 to 112 that:
'It was plainly the intention of Parliament that the burden imposed on an offender who sought to escape the operation of s.10 should be a heavy one, and not capable of being lightly discharged.
'More specifically, we accept the Director's submission that the word "compelling" connotes powerful circumstances of a kind wholly outside what might be described as "run of the mill" factors, typically present in offending of this kind.'

174Hudgson was decided in accordance with the test at the time of your offending. That test was adjusted 25 days after your offence of aggravated home invasion to one of “substantial and compelling reasons that are exceptional and rare.” You will of course be assessed on the basis of the test that applied at the time.
175In your case, it is argued that there are substantial and compelling reasons that would justify finding that special reasons exist. Considerations relating to your intellectual function and psychosocial immaturity were not relied upon.
176Instead, you rely on a combination of circumstances to meet the test in s.10A(2)(e), which include your youth and immaturity, your lack of prior convictions, what was described as your unique and complex mental health history, your traumatic upbringing and the impact of COVID-19.
177These considerations can only have real relevance in circumstances where the fixing of an appropriate sentence is one where the court would ordinarily consider a non-parole period below the minimum non-parole period, when using its intuitive synthesis, and in consideration of all relevant sentencing principles. Only then would a judge have to start with a minimum non-parole period and then turn to consider ‘special reasons’.
178I have already referred to my assessment of the gravity of your aggravated home invasion factoring in the actual circumstances of it, your active participation in what was your fourth home entry in a matter of weeks and my recourse to recent decisions. These include the Court of Appeal decisions to which I have referred and a range of County Court sentences for the same offence. They have all been of some assistance in the assessment of gravity and in providing some, albeit limited, guidance as to current sentence practice. I find your offence of aggravated home invasion, as I have said, to be at least at the mid-range, if not towards high, in terms of its objective gravity. The sentence warranted is not one which leads me to consider special reasons. Even if I have been called upon to do so, I would not have been satisfied that you would overcome that threshold noting, as to which I have already referred, the guidance from Hudgson that “”compelling” connotes powerful circumstances of a kind wholly outside what might be described as run of the mill factors typically present in offending of this kind.”
179I turn now to Charlie Farrugia.
180In terms of your personal circumstances, you were 20 years of age at the time of your offending and are currently 21. Your upbringing was also characterised by alcoholism, not yours, drug use, and violence perpetrated by your father, Vince. You recall physical violence against your mother as well as yourself and your sisters. Your recall your father damaging the household by punching holes in the wall and smashing property. You report being scared of your father.
181Your parents separated on two occasions and your mother, Ann, required the assistance of intervention orders to try and protect her from your father. They were finally able to separate in 2016 to 2017 and you had limited, if any, contact with your father from that time. I accept also that your exposure to such violence and abuse is likely to have stayed with you. There is an unfortunate and enduring legacy of being brought up in a home of violence and one which must, by its very nature, involve constant fear. That fact will be taken into account.
182You are the fourth of six siblings, aged between 17 and 26 years, born of your parents' union and you also maintain a good relationship with your mother and your siblings. Your mother has been present for your plea hearing and sentencing, as was the mother of Mr Abela-Rogers.
183Your older brother, Dylan, is a co-accused in some of your offending, as is your cousin, Damien Monro.
184You completed a Year 10 education at Victoria University Secondary College but suffered from a learning disability throughout your schooling and required assistance. You recall being teased and bullied whilst at school but were apparently a good footballer.
185Since finishing your education, you have had a number of jobs. You have worked in cold storage, with your uncle in plastering, and as a floor tiler.
You do wish to secure a trade qualification upon your release.
186You commenced using drugs at 14 years of age, using cannabis, which developed into a strong dependency. Since then, you have experimented with a range of drugs and developed an addition to cocaine and methamphetamine. You also abused alcohol. Your offending is closely connected to your drug use.
187You were in a long-term relationship with Damla from 2015 to 2016 and were devastated when that relationship finished. You also lost a young cousin around the same period who died after swallowing a battery.
188You were in a long-term relationship with Brooke prior to your arrest and have one child together, Layla, who was born whilst you have been on remand. You were seeing your daughter weekly until custody visits were suspended in March due to the COVID-19 pandemic. Whilst your relationship with Brooke is strained, you do intend to continue a relationship with your daughter, regardless of what occurs in your relationship with her mother.
189Tendered on your behalf were a series of character references from family which include your mother and your maternal grandmother, your paternal grandfather, your sisters, Stacey, Chantelle and Melanie, your aunts, Sharon, Allison, Kylie and Amanda, as well as your Aunt Judy and your cousin, Te’Arney. I have taken each of these references into account. It appears from those that your family were well aware of the violence and abuse perpetrated by your father. You were described in that reference material as losing interest in schooling and football as a result and turning to drugs. They also speak of your qualities in terms of being a dependable, loveable and loving family member. You have expressed remorse for your offending to various family members who are finding it difficult, as are you, not to have actual visits during the COVID-19 pandemic. You are described by them as maturing from your experience of remand.
190I have also had regard to a refence from Kris Vasilovski, who met you through Burnside Heights Football Club in 2014 and had also been visiting you regularly in custody until COVID-19. He speaks of your understanding of the consequences for your actions and of your remorse. He otherwise describes you as kind-hearted, loving and caring. He works full time as a scaffolder and is confident that he can assist you to obtain employment upon your release. Your aunt, Amanda Rees, is also able to offer you a casual labourer’s position in her bricklaying business.
191You have written a letter to the court in which you detail your recognition that you needed help with your addictions and offending behaviour but had been too proud to ask. You have seen genuine benefits in being free of drugs whilst on remand. You have benefitted from courses in custody and state ‘jail is a horrible place to be, but as much as this place is horrible, it has probably saved my life.' Whilst I generally find such letters to be relatively self-serving, you express genuine insights into how you came to be on drugs and to offend and a desire to find a different path. You are to be encouraged to maintain your goals and those insights.
192Six clean urine screens have been tendered as well as certificates of achievement or completion in courses and programs which include ‘Ice and Me’, ‘Better Connection’’, Healthy Mind’, ‘Managing Money’, ‘Parenting’, ‘Cannabis and Me’, ‘’Alcohol and Me’, ‘Building Better Relationships’, ‘Wellness’, ‘Knowing the Score’’ and Coping Inside’. These are focused on your wellbeing and rehabilitation.
193In addition, you have completed educational programs such as ‘Work Readiness and Life Skills’, Traffic Control and Traffic Management, which offer you job related skills. You are also undertaking the Rebuild program.
On your behalf, a letter authored by Damien Carmody, the manager of the program, dated 27 July 2020 confirms your participation. He states you had been, at the time of his letter in any event, with the program for 14 months, which he says is a testament to both your attitude and your work ethic. He also indicates a willingness to employ you in Commercial Rebuild upon your release, given his assessment of your motivation, work ethic, attitude and commitment.
194You have clearly chosen to use your time wisely whilst in custody, which confirms your intention to move towards a more positive way of life.
195A report from Dr Aaron Cunningham, psychologist, dated 16 April 2019 has been tendered on your behalf. It was clearly for use in an application for bail. He assesses your full-scale IQ at 75, placing you in what he described as the borderline intellectual disabled range. At the time of his report,
Dr Cunningham was of the view that you presented with Post-Traumatic Stress Disorder related to your family background. Given the basis for which it was prepared, this report does not link your cognitive function or
Post-Traumatic Stress Disorder directly to your offending, other than explaining your resort to drug use.
196A psychological report authored by Carla Lechner, clinical psychologist, dated 19 May 2020 has also been tendered.
197In her opinion, you present with a longstanding and chronic substance abuse problem. You told Ms Lechner you were using cocaine, cannabis and alcohol on a daily basis at the time of your offending and needed funds to support your addiction. You told her that you would readily go along with the plans of your co-offenders whilst substance affected and had little thought at that time for the potential consequences. Ms Lechner is of the view that you were also subjected to complex developmental trauma in your formative years related to the domestic violence.
198She does not appear to accept nor reject Dr Cunningham's findings in relation to your overall intelligence. She recommended a neuropsychological evaluation which has not taken place.

199Ms Lechner does find that you have genuine cognitive limitations that limit your problem solving and stress management skills. She finds you are cognitively, socially and emotionally immature. She describes you as being easily influenced by those whose acceptance and approval you desire which, in this case, is likely to be that of your co-offenders.
200She is of the view that you would benefit from ongoing drug rehabilitation, counselling and psychotherapy to assist you with mood management, using adaptive coping skills and strategies which, in themselves, would have to be tailored, if they are employed, to your cognitive limits.
201Your counsel does not call into your aid the principles of Verdins & Ors either.
202However, Ms Lechner's assessment of you is unchallenged and the combination of your multifaceted immaturity and accepted cognitive limitations lead me to the view that there should be some limited moderation to your moral culpability and to deterrence in what can otherwise only be described as extremely serious offending.
203I accept that you have also entered your pleas of guilty at a relatively early opportunity. You participated in contested committal proceedings but negotiated a settlement after those proceedings were completed and in the context of what I have already described as a complex brief of evidence. In your case, I also accept that your plea of guilty has utilitarian value, having saved the court the time and expense of convoluted proceedings and the witnesses having to give evidence and make themselves available for
cross-examination. On the materials before me, I accept your plea as one of genuine remorse. All of these factors will be taken into account in your favour as it was in the case of Mr Rhys Abela-Rogers.
204You have a relatively limited history for criminal behaviour. On 19 April 2018, you were fined by the Sunshine Children's Court the amount of $100 without a conviction being recorded for offences of affray and handling stolen goods. Shortly thereafter, on 21 June 2018, you were convicted by the Melbourne Magistrates' Court in relation to charges of possessing cannabis, unlawful assault, theft and common law assault. You were placed at that time on a community corrections order of 15 months' duration with a requirement that you perform 100 hours community work as well as undertake various treatment conditions. I note that you would have been subject to this order that the time of the offences on the indictment, which is an aggravating feature to your offending. Otherwise, your criminal history has limited relevance to the matters before the court, other than your clear association with cannabis in close proximity to the offending.
205On any view, the offences the subject of the indictment are a marked escalation in the seriousness of your offending. I am told this was motivated by potential financial reward in order to further your drug habit. This is obviously an issue with which you must deal in order to reduce your future risk.
206Relevant to that risk is also your youth, I have referred to those principles.
I accept that your age at the time of the offending means you are to be sentenced as a young offender. You are the second youngest on this indictment. Apart from your actual age, the psychological material at least places you as immature and, in my view, the principles of youth should carry their full weight.
207This is your first exposure to the custodial setting. I am satisfied that your time in custody also represents a portion of the specific deterrence which must apply and that overall, there can be some reduction in the need to protect the community from you.
208Your prospects are further supported by the efforts you have made in custody to rehabilitate and the extensive assistance available to you upon your release.
209Your limited prior criminal history, family supports, job prospects, and courses undertaken in custody would indicate that, if you can address your drug problem, you do present with good prospects of rehabilitation. I accept that the birth of your first child and the desire to obtain a trade are strong motivating factors towards a more positive life and lifestyle.
210You also raise the impact upon you on remand of the COVID-19 pandemic. For you, it has reduced direct access to family members who were visiting regularly. In your case, this includes your daughter, who is just over
12 months old and at an important stage of her bonding with her parents.
You also have lost the ability to access programs where materials tendered would indicate that you were also doing your utmost to access anything that might assist your return to the community. I accept also in your case that there is anxiety about the pandemic reaching the prison system and take all of those factors into account in a general sentence.
211There is merit overall that an extended period of supervision upon your release to provide for a supportive transition into the community, with a supportive base and ability to respond should you not comply with the requirements of parole.
Sentence
212Otherwise, the basic purposes which a court may impose a sentence are punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims. I am also required to balance the interests of the community in denouncing criminal conduct with the clear interest for the community in seeking to ensure as far as possible that offenders are rehabilitated and are reintegrated into society.
213I have taken into account the relevant sentencing guidelines referred to in
s.5 of the Sentencing Act where relevant to your case. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty and, importantly, the principles of both totality and proportionality.
214I wait for the ancillary orders to be sorted out between your respective counsel, at which time the required orders will be made.
215I do now turn to the actual sentence.
216Mr Abela-Rogers, Charge 1, aggravated burglary on 10 September 2018, that was your first offence in time, you are convicted and sentenced to three years imprisonment which I make wholly concurrent with the other sentences imposed on this day.
217Charge 2, burglary on 26 September 2018, you are convicted and sentenced to 18 months imprisonment, of which two months is cumulative on the base sentence and the other sentences imposed this day.
218Charge 3, the theft associated with the burglary on Charge 2, you are convicted and sentenced to 12 months imprisonment which, for reasons indicated, will be wholly concurrent.
219Charge 4, burglary, the first of your offences committed on 3 October 2018, you are convicted and sentenced to two years imprisonment of which two months is made cumulative on the base sentence and the other sentences imposed this day.
220Charge 5 is the aggravated home invasion. This will form the base sentence. For that offence, you are convicted and sentenced to five years and eight months imprisonment.
221Charge 6, theft associated with the aggravated home invasion, you are convicted and sentenced to 18 months imprisonment which I make wholly concurrent.
222Charge 7, aggravated burglary on 13 November 2018, you are convicted and sentenced to five years imprisonment, of which six months is cumulative on the base sentence and other sentences imposed this day.
223Charge 8, aggravated burglary, you are convicted and sentenced to five years and two months imprisonment of which six months is made cumulative on other sentences imposed this day.
224Charge 9, aggravated burglary committed on 7 January 2019, you are convicted and sentenced to five years and two months imprisonment of which seven months is made cumulative on other sentences imposed this day, including the base sentence.
225Charge 10 is the associated theft. For that you are convicted and sentenced to 12 months imprisonment, which is also wholly concurrent.
226Charge 11, attempted aggravated burglary, for that offence, you are convicted and sentenced to three years imprisonment of which four months is made cumulative on other sentences imposed this day.
227The final charge relates to the trafficking in cannabis. For this charge, you are convicted and sentence to four months imprisonment which will be made wholly concurrent, considering the issue of totality.
228The summary charge of dealing with the proceeds of crime, for that offence, you are convicted and fined the amount of $1,000.
229In your case, the total effective sentence is one of seven years and
11 months imprisonment. I set a period of five years before you become eligible for parole, 595 days will be reckoned as already having been served.
230Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 11 years with a minimum of eight years before being eligible for parole.
231In your case, Charlie Farrugia, Charge 1 is also the first in time. For the aggravated burglary committed on 10 September 2018, you are also convicted and sentenced to three years imprisonment, which will be made concurrent with the other sentences imposed this day.
232Charge 2, the burglary on 26 September 2018, you are convicted and sentenced to 18 months imprisonment of which two months is made cumulative on the other sentences imposed this day, including the base sentence.
233Charge 3, the theft associated with that burglary, you are convicted and sentenced to 12 months imprisonment, also wholly concurrent.
234Charge 8, the aggravated burglary at Jonah Parade on 10 December 2018 forms the base sentence. For that offence, you are convicted and sentenced to five years imprisonment.
235Charge 9, aggravated burglary on 17 January 2019, you are convicted to five years imprisonment of which six months is made cumulative on the base sentence and other sentences imposed this day.
236Charge 10 is the associated theft. For that, you are convicted and sentenced to 12 months imprisonment, made wholly concurrent.
237Charge 11, attempted aggravated burglary, you are convicted and sentence to three years imprisonment of which three months is made cumulative on other sentences imposed this day.
238For reasons of totality and my assessment of its overall seriousness, for the offence of trafficking, you are convicted and sentenced to two months imprisonment, which will be made wholly concurrent.
239Your total effective sentence is one of five years and 11 months. I fix a
non-parole period of three years and 10 months and reckon 595 days as already been served.
240In terms of s.6AAA of the Sentencing Act, in terms of the sentence I would have imposed had you not pleaded guilty. If not for your pleas of guilty,
I would have sentenced you to a total of seven years with a non-parole period of five years and six months before being eligible for parole.
241I will now give the opportunity for you to speak with your respective counsel and for anyone to correct my mathematical ability and I will close the court.

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[2020] VCC 1412

3 September 2020