Director of Public Prosecutions v Ali&Anor

[2020] VCC 1457

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02323
CR-19-02315

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDULAHI ALI
DYLAN 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:	2 September 2020
CASE MAY BE CITED AS:	DPP v Ali&Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 1457

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; deal property suspected proceed of crime

Legislation Cited:  Sentencing Act 1991

Cases Cited:R v Meyers [2014] 44 VR 486; DPP Victoria v Wol [2019] VSCA 268; Sikoulabout v The Queen [2018] VSCA 268; Dean v The Queen [2020] VSCA 100; DPP v O'Brien [2019] VSCA 254; R v Verdins & Ors [2007] 16 VR 269; Brown v The Queen [2020] VSCA 60; DPP v Hudgson [2016] VSCA 254

Sentence:Offender Ali: TES of 6 years 7 months imprisonment with a non-parole period of 4 years 4 months

Offender D. Farrugia: TES of 6 years 9 months imprisonment with a non-parole period of 4 years and 4 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For Accused Ali	Mr C. Morgan	James Dowsley & Associates
For Accused Farrugia	Ms A. Addamo	Leanne Warren & 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 incidents.

2Seven offenders were charged.  Those persons are Rhys Abela-Rogers, Charlie Farrugia, you, Dylan Farrugia and 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 steal cannabis crops.  This occurred in circumstances where the offenders were of the belief that the victims were unlikely to complain about any theft.   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 clear premeditation, planning and was highly orchestrated.  It was extremely serious.  Those involved in each incident had their role to play.  As described, one person was responsible for remaining in the vehicle while others entered the premises disguised 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 and 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 in searches of the offenders' property and vehicles.  CCTV was also sourced.

9Rhys Abela-Rogers participated on each occasion.  All seven offenders participated on the final day.  In addition, on some occasions, one or more still unidentified offender or offenders were involved.

10During these events, 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 was reasonable to expect that someone was likely to be present in the targeted premises. It would appear that the break-ins proceeded regardless of the presence of occupants, but would be terminated if intruders 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 the break ins continued when Asian residents were found to be home.  This racial link to your decision making will not be used against any of you in sentence, it was just part of the methodology employed.

11I now turn to the offending. 

12Charges 2 and 3 on the indictment, burglary and theft, occurred on 26 September 2018 at 578 Main Road West, Kings Park.  Rhys Abela-Rogers and Charlie Farrugia had been undeterred by their involvement in an aggravated burglary committed in Mulgrave on 10 September 2018, which comprises Charge 1 on the indictment.

13It was on 26 September 2018 that you, Dylan Farrugia, became involved.  At 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.

14Three persons left the vehicle and entered the premises whilst one remained with the car.  A cyclist riding home observed a male in the driver's seat and another male to run from the address carrying a large television as he passed by the Commodore. 

15CCTV footage records two persons leave the premises carrying bags that were put into the boot of the vehicle.  The three identified offenders, being Rhys Abela-Rogers, Charlie Farrugia and you, Dylan Farrugia, are each charged with the theft of cannabis and of the television.  At 00.42 am, the vehicle drove off.

16The cyclist called ‘000’ soon after he made his observations and police attended at the house, finding damage to the doorframe.  They also found a room containing seven cannabis plants and cultivation equipment.  No one was identified as being present at the time of the entry, hence the charge of burglary.

17Charges 4, 5 and 6 occur on 3 October 2018 at two separate addresses being 45A Ferndale Road, Sunshine North, and 22 Meadowbank Drive, Sunshine North.  I accept it was part of the intention at the outset of 3 October 2018 that two addresses be approached, marking an increased determination to your endeavours.

18For Rhys Abela-Rogers, his participation on this day comprised his third and fourth offence, approximately a week after his second.  For you, Dylan Farrugia, these events comprised your second involvement.  This was the first involvement for you, Mr Ali, and for Jackson Balshaw.

19Each of you are charged with the offences of burglary of 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.

20At 2.30 am on 3 October 2018, CCTV footage from external cameras at residences in Ferndale Road show a light coloured vehicle driving in the street, park and persons from that vehicle to walk towards a townhouse at 45A Ferndale Road.  The resident was not home, hence the charge of burglary.

21A neighbour heard loud noises and banging from the inside of 45A and contacted ‘000’.  He observed multiple torchlights within the residence and a number of persons to leave. 

22Police attended and observed that 45A appeared to have been broken into as the front security door had been removed and the door was damaged.  They located seven cannabis plants in the garage.

2322 Meadowbank Drive, Sunshine North is approximately two kilometres from Ferndale Road, Sunshine North and had internal and external CCTV cameras fitted.  The CCTV footage records that at 2.45 am, Rhys Abela-Rogers, you, Dylan Farrugia, you, Mr Ali, and another male approached the house, masked and wearing gloves.  You, Dylan Farrugia, and Jackson Balshaw were carrying garden shears and Rhys Abela-Rogers was carrying a crowbar that had a torched attached to it.  Entry was forced through the front door.

24This 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 at the time of your entry.  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 of the floor.  They then searched the house but there was no cannabis.

25Internal CCTV footage records Rhys Abela-Rogers standing close to Nguyen when speaking to him with a crowbar pointed at his chest.  At one point, Jackson Balshaw was searching through his jacket.  Nguyen walked towards Balshaw who faced Nguyen, raised his garden shears above his head and pointed them at Nguyen.  Jackson Balshaw is charged with assault on separate indictment. 

26Rhys Abela-Rogers used the crowbar to hook Nguyen by the back of the neck and pulled him back before then raising the crowbar above his head and poking Nguyen in the chest. 

27Being confronted by a resident apparently posed 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 was a serious example of a confrontation with an innocent victim and elevates each of the roles of Mr Balshaw and Mr Abela-Rogers in this offence and the objective gravity of it.  The objective gravity is high in any event.

28This particular event otherwise has 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 offenders to targeted premises who had little or no regard for those that inhabited them.

29Whilst your first foray, Mr Ali, this was the second burglary on
3 October 2018.  The offending overall was becoming more brazen, more fearless and, as described, showed callous disregard for those that were the victims of your criminal behaviour.  This simply must be reflected in the penalty imposed.  As already outlined, a large television, an Apple iPhone and a purse was stolen.

30Charge 7 occurred on 13 November 2018 at 16 Gardenia Road, Balwyn North and is one of aggravated burglary.  Rhys Abela-Rogers and you, Abdulahi Ali, are charged with aggravated burglary, which is particularised as entering with an intent to steal, knowing or being reckless as to the persons presence at those premises.  For you, Mr Ali, this was your third involvement in this crime spree, some six weeks after your offending of 3 October 2018.  You had not used that period for quiet reflection.

31On 6 November 2018, 13 Gardenia Road, Balwyn North, was pinpoint marked on the map on your phone, Mr Ali, reflective of the general research employed prior to the offences taking place.  It was on 13 November between 1.52 and 1.56 am that an external CCTV camera at a residence in Gardenia Road, Balwyn North, recorded a Toyota Aurion driving in the street. 
Mr Abela-Rogers had purchased that vehicle on 2 October 2018.

32Hope Windon and Samuel Wilkinson resided at 16 Gardenia Road.  There was no cannabis plantation at the house.  Like Linh Nguyen and his household, they were innocent victims. At about 1.57 am, Windon awoke when she heard noise at the front door.  She got up to check.  Wilkinson got up shortly thereafter.  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 and Windon and Wilkinson attempted to keep that door closed.  They were unable to do so.  Two intruders 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 intruders responded with 'Back off.'  There was a short standoff.  The intruders then left and drove away in the Aurion.

33Whilst the physical entry was limited in the extent of that entry, this incident lasted about one minute and left the occupants terrified.  Wilkinson immediately called ‘000’ and police arrived shortly thereafter.

34Samuel Wilkinson has 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.  Mr 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 thought that 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 their relationship and they simply did not feel safe in their home.

35Mr 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 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 safe and are entitled to feel secure.  This was clearly a feeling which was destroyed for both Mr Wilkinson and for his partner. 

36Whilst 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.

37Approximately two months after your previous involvement, your offending resumed, Dylan Farrugia.  For you, that gap provided a considerable period to rethink your actions, yet you chose to offend for a fourth time, increasing what was already your high moral culpability.

38Charge 8 occurred on 10 December 2018 at an address at 38 Jonah Parade, Deer Park.  You, Dylan Farrugia, Rhys Abela-Rogers and Charlie Farrugia are charged with this aggravated burglary which is particularised as entering with an offensive weapon and an intent to steal, knowing or being reckless as to persons present at that premises.

39Anh 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 2018, CCTV footage recorded the Aurion in Jonah Parade.  It backed into the driveway of No.38 with the rear boot against the garage roller door.  As was well-established, the driver remained in the vehicle.  Three masked offenders then exited that vehicle and forced entry to the house through the front door.

40Not surprisingly, Vo was in bed.  Two offenders entered his bedroom, 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 remembers that offender had a stick or a hammer or something similar.

41Approximately 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 back into the Aurion which left the scene, whilst another offender drove away in Vo's vehicle.

42It 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 following day.

43Neither the theft of the motor vehicle or theft of cannabis is charged.  You will therefore not be punished for those events.  Rather, those facts further demonstrate that well-established method of offending where entry was gained with an intention to steal, preferably cannabis, but also other items of value should they be available.

44This offence also involved a direct confrontation with the occupant of the premises, increasing the objective gravity.  It further demonstrates the general fearlessness of your offending by this time, the particularised presence of a weapon also elevates the seriousness.

45I accept the submission by the Crown that all persons are entitled to protection of the law no matter what the circumstances. The fact that a victim is engaged in criminal activity at the time of the offending against them may  be relevant to assessing the harm caused to the victim by the offending.  Whilst I have no victim impact statement from Mr Vo, I accept that the invasion of his private residence in the early hours of the morning by masked offenders with weapons would have had to have been at least frightening. 

46On the late evening of 19 December 2018 and in the early morning of
20 December 2018, police conducted surveillance and observed Rhys Abela-Rogers, Charlie Farrugia and you, Dylan Farrugia, with Jackson Balshaw driving in the Toyota Aurion.  False plates had been affixed to that vehicle.  From midnight until about 3 am on 20 December 2018, 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 the correct plates were affixed. 

47You are not punished for these observations, it is said to be part and parcel of the methodology being employed at that time, that is the scouting for and locating of potential targets which serves to highlight the sophistication, determination and the planning involved.  It adds to the object gravity of the offending overall and to the moral culpability for those involved in the role of scouting and researching, which in this particular does include you, Dylan Farrugia. 

48Charges 9, 10 and 11 occurred on 17 January 2019 and also involved two premises, one at 14 Thurbro Drive, Keysborough and the other at 15 Aloomba Street, Chadstone.  All offenders are charges with aggravated burglary, particularised as entering with an intent to steel, knowing or being reckless as to a person's presence of 14 Thurbro Drive and with theft of cannabis plants from that address.  All seven offenders are also charged with the attempted aggravated burglary of 15 Aloomba Street. 

49On 16 January 2019, Rhys Abela-Rogers told you, Mr Ali, on the phone that they needed another car as there were four in his car.  You, Mr Ali, were told to take Jackson Balshaw. 

50A listening device and telephone intercept picked up a conversation on 17 January during which Rhys Abela-Rogers, Damien Monro, Charlie Farrugia and you, Dylan Farrugia, discussed using FLIR devices, identifying cannabis grow houses, breaking into houses and meeting with you, Mr Ali, Jackson Balshaw and Jake Synan to break into what was intended to be five houses overall that morning.

51Things were escalating in terms of the number of offenders intended to be involved on a particular night and with an ambitious target of five premises, hence the need for more manpower. 

52You, Abdulahi Ali, Jake Synan and Jackson Balshaw were in your Camry.  A FLIR was put into that vehicle and stolen numberplates were subsequently attached. At 2.22 am, Mr Abela-Rogers' Aurion and your Camry met and target address were discussed.

53At about 2.55 am, you, Abdulahi Ali, Jake Synan, Rhys Abela-Rogers, Charlie Farrugia and you, 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 used to travel that location.  Loud banging could be heard on the listening device.  Cannabis plants were taken and put into the Camry.  

54Charlie Farrugia returned to the Aurion with you, Dylan Farrugia, and Rhys Abela-Rogers returned to the Aurion a short time later when a discussion took place from which it would appear that Rhys Abela-Rogers had again been involved in an exchange of some sought with  an occupant.  The Asian female at that house declined to provide any information to the police.

55A police unit later attended at the address 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 are all charged with and have pleaded guilty to the theft of cannabis from that residence in Charge 10. 

56At around 3.25 am, the Aurion parked near 15 Aloomba Street, Chadstone.  Rhys Abela-Rogers, Charlie Farrugia, Damien Monro and you, Dylan Farrugia, had checked that house earlier that morning from which strong readings on a FLIR had been obtained.  You, Abdulahi Ali, were also in the vicinity in your Camry but were not part of the group to enter.  This was not one of the premises allocated to your group.

57Rhys Abela-Rogers and the Farrugias left the Aurion.  Damien Monro remained in his assigned task as the driver.  Loud banging and a male yelling could be heard in a listening device with a return to the Aurion soon thereafter.  There was discussion about being confronted at the front door of the house by a large Aussie bloke – not a “nip” - and then to leaving. 

58When police attended the address, 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 the police.

59Undeterred by this experience, you all drove towards a third house at
22 Ruby Street, Preston.  Neither of you, nor is anyone, charged with the approach to these premises, rather it is again outlined in the Crown opening to further inform the circumstances of the planning and as an indication that this address was likely to be one of the five premises to be entered that morning as part of the audacious plan.  As the address was neared, a police van approached.  The Camry flashed its headlights at the Aurion and took off at a fast rate of speed on the wrong side of the road.  The police van chose to pursue the Camry attempting to intercept it but was unsuccessful.  Meanwhile the Aurion was driven back by Damien Monro to the premises of Rhys Abela-Rogers' father in St Albans where it was located by police later that day. 

60On 17 January 2019, each of you were arrested by police and chose to give ‘no comment’ records of interview, as is your right. 

61Various searches were conducted and items of relevance to the police investigation were located.  These are particularised in the Crown opening document but include 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.  Relevant items were found at each of your respective premises.

62In terms of the indictment, Dylan Farrugia, you have pleaded guilty to the burglary and the theft of 578 Main Road West, Kings Park, Charges 2 and 3;  the burglary of 45A Ferndale Road, Sunshine, Charge 4; the aggravated home invasion and theft at 22 Meadowbank Drive, Sunshine North, Charges 5 and 6; the aggravated burglary at 38 Jonah Parade, Deer Park, Charge 8: the aggravated burglary and theft of 14 Thurbro Drive, Keysborough, Charges 9 and 10, and the attempted aggravated burglary of 15 Aloomba Street, Chadstone, Charge 11.  In effect you were involved in six of the eight events.

63Abdulahi Ali you have pleaded guilty on the indictment to the burglary at 45A Ferndale Road, Sunshine North, Charge 4; the aggravated home invasion and theft at 22 Meadowbank Drive, Sunshine North, Charges 5 and 6; the aggravated burglary at 16 Gardenia Road, Balwyn North, Charge 7; the aggravated burglary and theft of 14 Thurbro Drive, Keysborough, Charges 9 and 10, and the attempted aggravated burglary of 15 Aloomba Street, Chadstone, Charge 11.  In effect you were involved in five of the eight events.

64You, Mr Ali, have also pleaded guilty to a related summary offence of deal with property suspected of being the proceeds of crime relating to $750 in cash located by police at your property upon their search on 17 January 2019.  The totality principle and the level of criminality in this offence compared with the criminality overall will see your punishment for that particular charge as being nominal.

65In sentencing each of you for your respective crimes, I must have regard to the maximum penalty for each of the charges to which you have pleaded guilty.  The maximum penalty for the charges of burglary and theft is 10 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 summary offence of dealing with property suspected of being the proceeds of crime carries a maximum penalty of two years imprisonment.  These maximum penalties reflect the seriousness with which Parliament regards these offences.

66Whilst 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 7, 8 and 9 are charged as aggravated burglary - noting Charge 8 involved the additional particularisation of the use of an offensive weapon - and Charge 5 is charged as aggravated home invasion.  Care must be taken in sentence to take into account the differing maximum penalties, the different particularisation and the different circumstances and gravity of each event regardless of its similarity.

67In terms of the circumstances of the offending, they are set out in a document entitled ‘Summary of Prosecution Opening on Plea’ which is dated 20 May 2020.  This is an agreed document confirming your acceptance of all the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence.  I have referred to that document in part but have had recourse to its full contents.

68Where 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 in 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 in my view on each occasion.  It is my intention in sentence to make any term of imprisonment imposed for the theft to be concurrent with any sentence imposed for the related burglary.

69Charges 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, Dylan Farrugia, are charged with each of these offence and you, Mr Ali, with Charge 4 only.

70In terms of the aggravated burglary relevant to each of you - Charges 8, 9 and an attempted burglary at Charge 11 for you, Mr Farrugia, and Charges 7, 9 and an attempted burglary at Charge 11 for you, Mr Ali - I am assisted by the decision of R v Meyers [2014] 44 VR 486, which includes a non-exhaustive range of factors to be considered in assessing the objective gravity. 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.

71Your 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. 

72On 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. 

73Charge 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.

74The offences that involved a direct confrontation with your victim, 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. 

75I have been referred to and have access to the current sentencing snapshot of the Sentence Advisory Council No.237 in relation to the offence of aggravated burglary for offences committed between the years 2014 to 2015 and between the years 2018 to 2019.  Such that it assists, this tells me that the median principal imprisonment length for the charge of aggravated burglary in the higher courts 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.

76Overall, I assess the aggravated burglaries the subject of this indictment to be at least at the midrange but moving towards the high range for offences of their type. 

77Each of you are also charged with aggravated home invasion, Charge 5, of the address in Meadowbank Drive, Sunshine North. The charge of aggravated home invasion carries the same maximum penalty as aggravated burglary, that 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 charge of aggravated home invasion unless the court finds that ‘special reasons’ exist. 

78The 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 which, like aggravated burglary, is complete on entry.

79Nevertheless, the sentence to be imposed on those involved in this particular offence, the aggravated home invasion of Meadowbank Drive, must have sufficient regard to the maximum penalty of 25 years.  The offending must be assessed using both the maximum sentence and the 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.

80I have been referred to or had recourse to the decisions in the
DPP Victoria v Wol [2019] VSCA 268, Sikoulabout v The Queen [2018] VSCA 268, Dean v The Queen [2020] VSCA 100 and DPP v O'Brien [2019] VSCA 254.

81In Sikoulabout v The Queen some assistance was provided in the following paragraph:

'Given its recent introduction at the time of sentence there are few, if any, cases from which current sentencing practice for the specific offence 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 the permissible use of current sentencing practice, sentencing for aggravated burglary provides a relevant touchstone for the consideration of current sentencing practice'.

82Wol, dealt with an offender who was only 18 years at the time of offending and 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. 

83The circumstances of Wol's case are objectively more serious than yours as at the time of entry, he knew there was at least one occupant in the house.  He took a loaded firearm into the premises and carried it with him during the offending and used it to confront two of the victims by pointing the firearm at them.  I believe the firearm was discharged at one point.  In comparison, in your case the likelihood of persons being at home was, of course, high.  You had with you garden shears and a crowbar which I accept are less serious weapons than a loaded firearm.  I accept that the confrontation which did occur would have been frightening for your victim. 

84Bearing in mind that at the time of the aggravated home invasion you had each already been involved in burglaries, however charged, your moral culpability was high.  This is 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. 

85In 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'.

86The 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. 

87However, the totality principle is crucial to sentencing in this case.  It is a principle that requires that where an offender is being sentenced to multiple terms or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains what is just and appropriate for the whole of the offending.  This is a fundamental principle in any event but does have particular relevance in the sentencing on this indictment involving multiple offences and multiple factors to be taken into account.

88There must 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.  Obviously, proportionality must also be reflected - that is, the sentence imposed should be proportionate to the gravity of the offence considered in light of the circumstances.

89I 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.

90I will now turn to your individual personal circumstances. 

91Dylan Farrugia, you are the older brother of Charlie Farrugia who is your co-accused in relation to Charges 2, 3, 8, 9, 10 and 11.  I understand you to be the cousin of Damien Monro. 

92In terms of your personal circumstances, you were 22 years of age at the time of the offending and you are now 24 years old.  You are the second child of your parents, Anne and Vincent and have one older sister, two younger brothers and two younger sisters.

93Your upbringing and family life were characterised by domestic violence at the hands of your father.  You witnessed this violence as well as his drug and alcohol abuse.  You recall literally standing between your mother and father in an effort to protect her from his abuse.  Not surprisingly, these events have had a significant impact on you.  I accept the unfortunate and enduring legacy of existing in a household laden with both fear and brutality. 

94You enjoy a close relationship with your mother and siblings.  Indeed, your mother was present for your plea hearing and is present for this sentencing hearing today.

95You managed to complete a year nine education at Deer Park High School and were engaged with local football clubs up until early 2018.  On leaving school in around 2011, you commenced an apprenticeship as a plasterer and completed your second year.  In 2014 you returned to your education at Harvester Technical College where you completed an equivalent of year 11 and a pre-apprenticeship in plumbing. 

96Following trade school, you commenced employment at a cold storage factory in 2016 and continued working on and off until mid-2018.  You found it difficult to obtain work in the plumbing industry and found work at the cold storage facility to be unfulfilling.  You were not employed at the time of your offending.

97Indeed, you ceased employment in mid-2018 following the breakdown, finally, of your parent’s relationship where you determined that you should stay at home in order to protect your mother and sisters from potential threats of violence from your father. 

98It was in your mid to late teens that you first tried cannabis and immediately commenced regular if not daily usage.  Shortly thereafter you commenced using methamphetamines and also became a regular user of that substance and, intermittently, cocaine.  You had to use benzodiazepines to assist you to sleep.

99In August 2018 your relationship of some four years also ceased, and you reconnected with negative peers and increased your use of illicit substances.  These events led, in combination, to your involvement in this serious criminal offending to which you have pleaded guilty and was motivated by your need to obtain moneys to purchase further drugs. 

100You have a relatively limited prior criminal history. On 15 May 2014, you were placed on a good behaviour bond without conviction by the Sunshine Children's Court in relation to charges of reckless conduct endangering serious injury, using an unregistered motor vehicle and unlicensed driving.  On 20 May 2016, you received an adjourned undertaking without conviction from the Sunshine Magistrates' Court in relation to a series of driving offences.  On 31 May 2018, you were placed on an adjourned undertaking with conviction by the Sunshine Magistrates' Court, again in relation to driving offences, as well as bail offences.  These matters overall have little relevance to the matters the subject of the current indictment other than you appear to be the subject of an adjourned undertaking at the time of your offending.  That fact represents an aggravating feature to your offending.  Your offending the subject of this indictment represents a significant escalation from your criminal behaviour of the past.

101Your remand period has been your first time in custody.  It has been a lengthy period to date and for you, and other offenders in the same situation, is capable of acting as both a sanction and a deterrent into the future.

102This is perhaps evident by the way you have approached your remand period.  Firstly, you have remained abstinent from drugs whilst in custody.  Five urine screens have been tendered, all of which are negative for drug use.  You have completed vocational certificates in cleaning and a number of engineering-based courses.  You have completed a work readiness and life skills training program and an ‘Alcohol and Me’ program.

103You have engaged in the ReBuild program run in the prison system through the YMCA.  This program is designed to upskill prisoners in trade roles and to support them to find employment upon release from custody.  You have found this program to be extremely positive and as a result have obtained a position as a billet.  A letter has been tendered from Damien Carmody, the manager of the ReBuild program.  He refers to it as being a six-week trade and employability skills program that is only offered to six participants at a time.  You have been involved with the program for some 14 months which Mr Carmody describes as a testament to your attitude and to your work ethic.  He further indicates that if you continue to show your current motivation, work ethic, attitude and commitment, that you will be employed in Commercial ReBuild as soon as you are released.  In my view this offers you considerable encouragement and opportunity towards a positive lifestyle.

104When you return to the community, you are keen to take up a trade.  It appears you will be in a good position to do so given the skills you already hold and the support which you will have from family who offer you both accommodation and also potential employment in addition to that indicated by Mr Carmody. 

105I have taken into account various character references tendered on your behalf which are authored by your mother Ann, your sisters Stacey, Chantelle and Melanie, your maternal grandmother, your paternal grandfather, your aunts Allison and Kylie Rees and Judy Batey, and your cousin, Te’Arney. It appears from those references that your family were well aware of the violence and abuse perpetrated by your father.  Your mother confirms that you would step in to protect her from your father's abuse.  Otherwise family members describe you as hardworking, loyal and caring.  They were understandably disappointed to see your descent into drug use and abuse but have seen significant and positive change since your remand. 

106In a letter to the court, Kris Vasilovski describes you as his best friend and that he met you through the Burnside Heights football club in 2014.  Up until the
COVID-19 pandemic he had been visiting you regularly in custody. He speaks of your remorse for your actions and acknowledgment of the mistakes that you have made.  He is also confident that he can help you find employment immediately upon your release. 

107You have also written a letter to the court in which you express your sorrow to the victims and recognition that your offending has had its impact on both yourself and your family.  You speak of enjoying programs in custody and your position as a billet which involves training and helping new inmates progress and learn new skills.  You have realised that the life you had been leading is not the life that you wish to live.  Whilst in general terms, I find such letters to be self-serving, I also encourage you to maintain the insights and the goals expressed for your future. 

108Charges against you resolved to those on the indictment on the fourth day of committal proceedings and therefore earlier by a few months than the pleas of Charlie Farrugia, Rhys Abela-Rogers and Jake Synan were confirmed. I accept that your plea has occurred at an early opportunity.  I accept it has utilitarian value.  I accept it has saved the court the time and expense of contested proceedings as well as the need for witnesses to give evidence.  Having had recourse to all of the materials, I am satisfied that your plea is one of remorse.  All of these factors will be reflected in your favour. 

109Tendered on your behalf is an assessment authored by Dr Laura Anderson, registered psychologist and clinical neuropsychologist.  Her report is dated
12 June 2020.  You explained to her that your offending was related to your desire to purchase drugs and that you thought it was ‘spur of the moment’ and went along with the idea of committing these offences because, 'it seemed like a good idea at the time'.  As an aside, I simply do not accept that this offending was ‘spur of the moment.’

110You told Dr Anderson that you also associated with a negative peer group and that you hoped to change this peer group into the future.  In your case this would lead to a significant change in the family dynamic. 

111In Dr Anderson's opinion, you suffer from an adjustment disorder with depressed mood as well as alcohol abuse disorder and stimulant use disorder.  She sees a nexus between those conditions and your offending behaviour but this is perhaps obvious.  She does not see you as someone with antisocial attitudes or values and sees your family as a protective factor.  She assesses you as having strong prospects for rehabilitation.

112Your counsel does not call into your aid the principles of R v Verdins & Ors [2007] 16 VR 269. There is nothing in Dr Anderson's report that would reduce your moral culpability or the objective gravity of your offending.

113However, factoring in the psychological assessment, the considerable supports you have in terms of accommodation, emotional support and job prospects, together with the work you have undertaken in custody and your limited prior history in terms of its relevance,  I am satisfied that with additional assistance, particularly in relation to your drug use and abuse, you do present with good prospects of rehabilitation.  This must factor into the sentencing exercise. 

114I have already discussed to some extent Charge 5, the one of aggravated home invasion.  As I have already referred, the court must impose a minimum non-parole period of three years for this charge unless the court finds that ‘special reasons’ exist. 

115Your counsel argues that they do exist pursuant to s.10A(2)(e) from a combination of circumstances.  This requires that there are substantial and compelling circumstances that justify doing so.  The circumstances are said to relate to the separation from your family and Dr Anderson's opinion that this may lead to a further deterioration in your mood state and contribute to a further sense of hopelessness regarding your circumstances in combination with your early plea, family support and positive response to your exposure to the custodial setting. It is also argued that in relation to Charge 5 you played a somewhat lesser role and that you did not use a weapon as it said that two of your co-accused did. 

116I have had regard to detailed written submissions made on your behalf as well as oral submissions. 

117Also raised was the impact of the COVID-19 pandemic as part of the circumstances which meet the’ special reasons’ test.  I have had recourse to the recent decisions of this pandemic and its relevance to sentencing.  The first of those is contained in the decision of Brown v The Queen [2020] VSCA 60 where Justices of Appeal Priest and Weinberg considered how the pandemic might impact on sentencing. Their Honours stated:

'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'. 

118In your particular case, Mr Farrugia, you had been visited regularly by family members whilst on remand but had reduced those visits of your own calling as you found the visits distressing.  The response to the COVID-19 pandemic in the prison system has suspended all physical visits and you now communicate by electronic means.  Your access to therapeutic and educational courses has been reduced when you had demonstrated a willingness to engage in such programs. Understandably you are concerned about the pandemic entering the prison system.  I will in any event take those factors into account in a general sense but note they are raised in your argument as to the existence of ‘special reasons’. 

119In terms of the test, it was in DPP v Hudgson [2016] VSCA 254 in which it was held at paragraphs 111 to 112 that:

“It was plainly the intention of Parliament that the burden imposed upon 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.”

120Hudgson was decided in accordance with a test of the time of your offending.  The test was adjusted 25 days after your offence of aggravated home invasion to ‘substantial and compelling reasons that are exceptional and rare.’ 

121The relevant considerations can only have real work to do 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 turn to consider ‘special reasons’.  In terms of my assessment of the objective gravity of Charge 5 and your moral culpability for it, it is such that any sentence for Charge 5 far exceeds one of three years, as will any non-parole period once sentenced for all matters.  I would not have formed the view that the factors relied on by you were ‘special reasons’ in any event. 

122Whilst I have assessed your prospects for rehabilitation as being good, this is clearly contingent on you remaining drug-free and utilising supports available to you when you do return to the community.  As such, this factor plus your active participation in a series of serious offending means there is still need to give weight to protection of the community.  Obviously, as I have already referred, general deterrence, denunciation and just punishment also have a role to play.

123The parity principle demands that any sentence imposed reflects differences in the culpability and personal circumstances of co-offenders and avoids unjustifiable differences in co-offender sentences.  Each of you have contributed to different offences which have occurred over the defined period.  You had an equal role in the offending with that where you do have co-offenders, save you are not said to have been involved in the direct confrontation with the victim of Charge 5, the aggravated home invasion, as were Rhys Abela-Rogers and Jackson Balshaw.

124In a general sense your personal circumstances have some commonality in being brought up in an environment where domestic violence was rife, an unfortunate personal circumstance faced by at least four others of your co-accused.  The youngest offender was Rhys Abela-Rogers at 18 years of age at the relevant time and the oldest your cousin, Damien Monro, who was 25 years at the time of your offending.  Your age is otherwise somewhat in common with the majority of your co-offenders.  Your criminal history, as I have indicated, is relatively limited and your prospects of rehabilitation I have assessed as being good if you can avoid the use of drugs. The prospects of Mr Monro and Mr Ali are not so assessed, and the sheer level of Mr Abela-Rogers' criminality also raises concern.  Otherwise there is little to distinguish between offenders, noting that you were involved in six of the eight events committed over a period of some four months. 

125I have accepted the submission that there is merit in you having an extended period of supervision upon your return to the community.  Given my assessment as to your future prospects, overall, I afford less weight to specific deterrence and protection to the community.

126I turn now to you Abdulahi Ali. 

127In terms of your personal circumstances, you were born in New Zealand to a Somalian father and a Kenyan mother.  Your parents settled and met in New Zealand after escaping violence in their respective home countries. 

128You are currently 22 years of age but were 20 at the time of the offending. 

129It was in 1999 that you, your mother and father and an older brother moved to Australia.  At this stage you were aged approximately two years.  You became an Australian citizen in 2001.

130You now have four younger siblings all of whom were born in Australia. 

131You commenced your life in Australia in government housing before your family purchased a home in Deer Park in 2009. 

132You completed a year 10 education at Brimbank Secondary College in 2014 and then enrolled in a Certificate IV TAFE course in carpentry, beginning an apprenticeship in April 2015.  You worked for some 18 months before leaving your employment as you had not been paid for a number of months and you have not worked since that time.

133In 2015 your mother and younger siblings returned to Kenya to care for your maternal grandmother.  You have not had physical contact with them since this time. 

134Between 2015 and 2017 your father travelled between Australia and Kenya on a regular basis.  Otherwise you and your older brother were left alone for extended periods of time. 

135In 2017, your father sold the family home and moved into a rental property to facilitate his movement between countries and the care he wanted to give you and your older brother.

136In February 2018, your father returned to Kenya, again leaving you and your older brother alone in Australia.  Notably your offending occurred in his absence and in circumstances where you were using cannabis.  You had apparently met the Farrugias in your school years and had become reacquainted. 

137You have an admitted and concerning criminal history for one so young. 

138In November 2013 you appeared at the Sunshine Children's Court in relation to charges of robbery, armed robbery, recklessly cause injury, theft of motor vehicle, fail to answer bail, damaging property and other related offences. You were placed on a series of probation orders for six, eight and twelve months' duration, each of which were without conviction.  You breached those probation orders by further offending which included driving in a manner dangerous, theft of a motor vehicle, further bail offences, reckless conduct endangering serious injury and going equipped to steal.  For breaching probation, the original orders were confirmed by the Sunshine Children's Court on 27 March 2014.  In relation to the new offending, you were placed on a youth supervision order for a period of 12 months.

139You were placed on an accountable undertaking for a period of six months by the Sunshine Children’s Court on 3 April 2014 for charges of possess cannabis and using unregistered vehicle.  On 16 July 2014, you appeared at the Melbourne Children's Court in relation to theft of a motor vehicle and failing to stop a vehicle on police request.  It would appear that these offences breached the accountable undertaking you made to Sunshine Children's Court on 3 April 2014.  You were placed on probation for a period of nine months for that breach and an additional nine months probation for the new offending.

140On 3 December 2015 you appeared at the Sunshine Children's Court in relation to possessing cannabis and unlicensed driving and were placed on a good behaviour bond for a period of 12 months.  On 19 May 2017, you appeared at the Sunshine Children's Court in relation to a charge of affray and were also placed on a good behaviour bond for a period of 12 months. 

141Your criminal history appears to have all been dealt with by the Children's Court of Victoria.  It obviously includes offences of violence, dishonesty, disobedience, drug possession and represents difficulties in complying with court orders. Whilst not to be punished for that history a second time, it does have relevance to the assessment that needs to be undertaken as to the weight to give to specific deterrence, denunciation and indeed protection of the community.  It also has obvious relevance to the assessment of your prospects for rehabilitation.  Whilst I accept your obvious immaturity at the time of your prior matters, you have not been deterred or assisted by the more benevolent sentencing options available in the Children's Court jurisdiction.

142Your father has since returned to Australia.  Indeed, your father attended your plea hearing, provided a written reference and gave evidence at your plea hearing. 

143In his written reference he speaks of your well educated family and to you straying from the path that he had hoped for you.  He remains convinced that you possess a desire and determination to learn from your offending and  your experience of remand to move in a more positive direction with your life. He speaks of the large and committed support system within your family and community.  He also speaks of an awareness of the stress that you are under due to your mother leaving the country with your four younger siblings and of his own absence.  He speaks of visiting you within the custodial setting and your remorse for your actions. 

144Your father gave evidence at your plea hearing on 16 June 2020 and was an impressive witness.  He detailed the family transition to New Zealand and then Australia.  You father has risen to a person of high and well-regarded profile in the Somali community. He spoke of trying to give you what he did not have in purchasing a family home and funding your private education.  In 2014 he left a position with the ANZ bank because at that time you were getting into trouble and not doing well at school and he wanted to assist you.  This ultimately coincides with a break in your offending. 

145Your father spoke of you beginning your apprenticeship and to you working and studying and your father was satisfied you were on the right track, so that he returned to Kenya.  He returned to Australia in January 2019 when he learnt of your arrest for these matters. He believes that you were more vulnerable to undesirable influences when he left you and your older brother on your own.  You have expressed your remorse for your offending to him and for the impact your wrongdoing has had on your family.  It is his intention that upon your release you return with him to Africa. 

146Your mother has also provided a written reference given she remains in Kenya.  In her reference dated 4 June 2020, she speaks of the entire family being troubled and traumatised at seeing you in prison. She speaks of having regular contact with you, particularly over Skype and that in those conversations you have shown remorse and regret for what you have done. 

147In addition, I have had recourse to a letter authored by Zam Zam Aden dated 10 June 2020.  He has known you for a period of some seven years.  He notes that from an early age you showed a desire to learn and excelled in mathematics and received positive reports from your teachers.  He also refers to the great support network you have from extended family and social support organisations. Mr Aden notes that you apologised profusely to family members for your criminal behaviour and spoke of your regret for the path that you have taken.  He is of the view that your criminal activity was related to your experimentation with drugs and alcohol and to you finding it difficult to reconcile your African identity with your Australian upbringing.  You lacked, in his view, a sense of belonging which he believes you then found in drug use and peer associations at that time.  Otherwise it is difficult to see how you strayed from the path that your father had set out for you. He sees you as presenting with a lot of potential. 

148You indicated your intention to plead guilty at the conclusion of committal proceedings.  I accept that your plea of guilty was one made at an early opportunity.  The brief of evidence in this case was extensive.  I accept that your plea has utilitarian value in saving the court time and expense and the need for witnesses to attend for the purposes of cross-examination.  Having regard to the materials, for me, I am also satisfied that your plea is one of remorse.  These are all factors that will be taken into account in your favour.

149On your behalf it is submitted that there should be a substantial amount of concurrency for the offences which occurred as part of the same incident as between those that occurred across on the same day.  I have already indicted my intention to do so.  Your counsel also highlights the principle of totality which I accept and have already indicated has considerable relevance to the sentences which must be imposed. 

150It is not argued on your behalf that in relation to the charge of aggravated home invasion, which attracts the minimum non-parole period, that any ‘special reasons’ are said to exist.  In any event, I am satisfied that the sentence which must be imposed for Charge 5 is one that far exceeds that minimum non-parole period.

151Five negative urine screens have been tendered on your behalf, as has a certificate of completion in six-hour ‘Managing Cravings’ program.  Otherwise I have little information as to your experience on remand. 

152It is also, however, your first time in the custodial setting which I accept is capable of acting as a sanction and deterrent.  It has occurred during the COVID-19 pandemic and, as indicated, I take that into account in a general sense. 

153Your youth is also a relevant factor as you were 20 years of age at the time of your offending. This would normally lead to greater emphasis being placed on rehabilitation in the sentencing mix.  Given your relevant prior history, the serious nature of your offending and high moral culpability for it, in my view, you should be afforded only some moderation in sentence related to your youth.  The weight to be given to rehabilitation on account of your age is diminished to some extent by that history, the gravity of your offending and the need that still exists to protect the community.

154Again, in terms of parity, you have been involved in different offending in the sense that no one was involved in exactly the same range of offending.  Otherwise there is little to distinguish you from that of your co-accused in terms of your role.  I accept that, in relation to the charge of aggravated home invasion, that you were not involved in the physical confrontation that occurred with the victim as werer Mr Abela-Rogers and Mr Balshaw.  However, you were involved in five of the eight incidents and your age at the time is relative to that of your co-offenders. In terms of your personal circumstances, your criminal history is of concern when compared to that of your co-offenders and your prospects of rehabilitation are, in my assessment, more guarded.  This will feed into the period of transition when you return to the community. 

155Overall, the basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing each of 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.  This does not leave out the requirement to balance the interest of community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

156I have also 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 current sentencing practices for the offences to which you have pleaded guilty and the principles of totality and proportionality.  I accept that the sentencing practices for aggravated home invasion are less able to be discerned but have had access to the Court of Appeal decisions to which I have referred, the outline from the Sentencing Advisory Council and a range of County Court sentencing decisions. 

157I note ancillary orders are sought and yet to be finalised.

158I do now turn to sentencing. 

159Dylan Farrugia, Charge 2, burglary on 26 September 2018, you are convicted and sentenced to 18 months imprisonment.  This is the first offence in time and there will be no cumulation on the base sentence which attaches to Charge 5. 

160Charge 3 is one of theft on the same date.  You are convicted and sentenced to 12 months imprisonment, wholly concurrent with the other sentences imposed. 

161Charge 4, burglary on 3 October 2018, you are convicted and sentenced to two years imprisonment of which two months is cumulative on the base sentence and other sentences imposed.

162Charge 5 is that of aggravated home invasion on 3 October 2018.  For that offence you are convicted and sentenced to five years and four months imprisonment and it does form the base sentence. 

163On Charge 6, theft associated with the same aggravated home invasion, you are convicted and sentenced to 18 months imprisonment which is wholly concurrent with the other sentences imposed this day. 

164Charge 8 is the aggravated burglary committed on 10 December 2018 for which you are convicted to five years and two months imprisonment of which six months is cumulative on the base sentence and the other sentences imposed this day.

165Charge 9, aggravated burglary on 17 January 2019, you are convicted and sentenced to five years imprisonment of which six months is also cumulative on the base sentence and other sentences imposed this day. 

166Charge 10, the theft associated with the aggravated burglary the subject of Charge 9, you are convicted and sentenced to 12 months imprisonment which is also wholly concurrent with the other sentences imposed. 

167Charge 11 is the attempt to commit aggravated burglary.  For that charge you are convicted and sentenced to three years imprisonment of which three months is cumulative on the base sentence and other sentences imposed. 

168The total effective sentence is one of six years and nine months imprisonment.  I fix a non-parole period of four years and four months to allow for an extended and supported return to the community. 594 days are reckoned as having already been served.

169Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you have not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced you to a total effective sentence of nine years with a non-parole period of six years and six months. 

170Mr Ali, I now turn to your sentence.

171In relation to Charge 4, burglary on 3 October, you are convicted and sentenced to 18 months imprisonment.  It is the first in time and will be made wholly concurrent on the base sentence.

172On Charge 5, aggravated home invasion committed on the same day, you are convicted and sentenced to five years and four months imprisonment which forms the base sentence. 

173On Charge 6 the theft associated with the aggravated home invasion, you are convicted and sentenced to 18 months imprisonment which is wholly concurrent with the other sentences imposed. 

174On Charge 7 the 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 the other sentences imposed this day.

175On Charge 9, aggravated burglary, on 17 January 2019, you are convicted and sentenced to five years imprisonment of which six months is also cumulative on the base sentence and the other sentences imposed this day. 

176The associated theft, Charge 10, you are convicted and sentenced to 12 months imprisonment which is also wholly concurrent. 

177The attempted aggravated burglary on the same day, Charge 11, for that offence you are convicted and sentenced to three years imprisonment of which three months is cumulative on the base sentence and other sentences imposed. 

178The summary charge, deal with property suspected to be the proceeds of crime, you are convicted and fined the amount of $500. 

179Your total effective sentence if therefore one of six years and seven months imprisonment.  I also fix a non-parole period at four years and four months and reckon 594 days as having already been served.

180Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you have not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced you to a total effective sentence of nine years with a non-parole period of seven years before being eligible for parole. 

181I will now leave the Bench to give the legal representatives the opportunity to speak with their clients and if I need to return due to possible concerns with my maths I will do so.

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