Director of Public Prosecutions v Anagnostou

[2018] VCC 785

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00441

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICK ANAGNOSTOU
MATTHEW THOMAS
JOSE VARGAS

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 May 2018
CASE MAY BE CITED AS:	DPP v Anagnostou & Ors
MEDIUM NEUTRAL CITATION:	[2018] VCC 785

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Grant
For Accused Anagnostou	Mr N Hutton
For Accused Thomas	Mr B Lindner
For Accused Vargas	Mr T Cooper

HER HONOUR:

1Jose Vargas, Nick Anagnostou and Matthew Thomas, you have each pleaded guilty to a single count of aggravated home invasion and recklessly causing injury.  Each of these offences are alleged to have been committed at the home of Oliver Graykowski at 23 Hackett Court in Delahey on 18 October 2017.

2The details of your offending are set out in a document entitled "Summary of prosecution opening on plea" dated 2 April 2018.  It is exhibited as P1.  It is a document which is admitted by the accused, Vargas, and accused, Thomas.  Not all of the alleged facts are admitted by Mr Anagnostou.  I will return to this at a later stage.

3In short compass, all three of you attended at the home of Oliver Graykowski in the early hours of 18 October 2017, bringing balaclavas, a baseball bat and a machete with you.

4Your entry to the house was facilitated by co-offender Rachel Sacco who had been in a short-term relationship with Graykowski and a long term, on-again, off-again relationship with you, Jose Vargas, for a period of some seven or eight years.  Vargas and Anagnostou had been friends for many years, as had Sacco and Anagnostou.  You, Thomas, were an associate of Anagnostou.

5Some five days prior to 18 October 2017, you, Vargas and Anagnostou, discussed with Sacco as to whether or not Graykowski would have drugs and money at his premises, and discussed doing what is called a "run through".

6Sacco was able to give you both information about Graykowski.  She did so on offer of support by you for her then-heroin habit.  It was agreed that she would ensure that the front door to the premises, and to Graykowski's bedroom, would be left unlocked on the occasion, once determined that the offending was to take place.  It was agreed between you, Vargas, Anagnostou and Sacco, that a baseball bat would be brought to use as a threat.  You, Thomas, were subsequently contacted by Vargas and it was agreed that you would also assist.

7Later, on 17 October 2017, Sacco and Graykowski were in contact via SMS message.  It was agreed that Sacco would visit him at 23 Hackett Court in Delahey.  It was then agreed between all three of you, and Sacco, that the planned offending would be committed that night.

8Around midnight, you, Anagnostou, picked up Sacco and drove her to Graykowski's residence.  She was aware that the run-through would take place that night.  Upon arriving at Graykowski's residence, Sacco commenced and continued to send messages to you, Vargas, updating you regularly as to what was happening.

9She was able to advise you where Graykowski was in his room, what he was wearing, that he had drugs, that he had brought out some heroin, and of other items which he had in his room which might also be worth stealing.  You advised that he had a shotgun behind his bedroom door.  She confirmed that the front door was unlocked and that she would have to unlock the bedroom door, messaging you once this had been done.  She also keep you up to date as to Graykowski's presentation so that your offending could be best timed.

10All three of you drove to the vicinity of Graykowski's house in Vargas' black BMW which was parked in the street nearby.  All three of you were aware that Graykowski resided with his parents, Sveta and Kiro Graykowski.

11Each of you were wearing balaclavas and gloves as you walked from Vargas' BMW to Graykowski's house.  You, Anagnostou, were carrying a black bag containing a baseball bat and machete.  You opened the front door, and all three of you entered the premises.  All three of you went straight to Graykowski's bedroom, which was two metres from the front door, entered the bedroom and closed the door.  You also had cable ties with you.

12At the time of your entry, Graykowski and Sacco were in bed.  You, Vargas, went to Sacco and held and restrained her to give the appearance that she was not involved.  Meanwhile, Anagnostou and Thomas struggled with Graykowski as you attempted to tape his hands and mouth and cable tie his feet.

13Graykowski was threatened and hit with a baseball bat and machete, such that his left hand was cut by the machete.  He was made to kneel at the side of the bed.  A gold necklace he was wearing was ripped from his neck and has not been recovered.

14The Crown opening alleges that Graykowski managed to get his hands on his shotgun and struggled with Anagnostou over the weapon.  This struggle is disputed by you, Anagnostou.  I am not asked to make any factual finding.

15Either way, Graykowski's parents were woken by the commotion and went to his bedroom door, attempting to open it.  At the same time, it was continually being pushed closed.  Kiro Graykowski managed to open the door and enter into the bedroom whilst his wife remained outside the room.  You, Thomas, struggled to get free from Kiro Graykowski whilst Anagnostou left the bedroom.  Vargas and Thomas followed shortly thereafter.

16Graykowski followed, holding his shotgun at waist height.  At this point, Anagnostou was running away from the house.  Graykowski fired one shot in the direction of Anagnostou which hit you in the upper left-hand side of your back.  You managed to find your way back to the passenger side of your vehicle.  I note that Graykowski has been charged, as a result, with having intentionally and/or recklessly causing serious injury to you.

17You, Vargas and Thomas, left Anagnostou and the area on foot.  Sacco grabbed her personal items and went to the BMW and assisted Anagnostou.  Emergency services were called, with police attending first and an ambulance shortly thereafter.

18You, Anagnostou, were taken by ambulance to the Royal Melbourne Hospital and placed on life support, where you remained for approximately two and a half weeks.

19Graykowski was also taken by ambulance to another hospital.  He suffered a deep laceration to his left hand ring and little finger, with sheet damage to the tendons requiring plastic surgery.  He also suffered a laceration to the right side of his head, requiring five sutures.  There were linear abrasions to the back of his neck below the hairline, swollen and tender ear and earlobe with bruising, as well as bruising to his right cheek, chest wall, thigh area and upper abdomen.  He suffered abrasions to both knees.  Graykowski remained in hospital for some three days.

20No victim impact statements have been filed.  Nevertheless, I expect for Mr Graykowski and his parents that this is an event likely to have some impact upon them, given the nature of it and that it occurred in their own home, an environment in which they are entitled to feel safe.

21The plea of Rachel Sacco.  Rachel Sacco appeared before plea hearing on
23 February 2018, at which time she pleaded guilty to the offences of aggravated burglary and recklessly cause injury.  She pleaded guilty before me and at the earliest opportunity, and on the same factual basis as each of you.  During that hearing, on 23 February 2018, Sacco gave an undertaking to give evidence against each of you if called upon to do so, in accordance with her statement dated 19 October 2017.

22Her legal representatives and the Crown each submitted that in all the circumstances of her case, a community corrections order would adequately reflect all relevant sentencing considerations.

23The matter was adjourned for further plea and sentence to 1 March 2018 in order that an assessment could be undertaken as to her suitability for a community corrections order.  Each of you were listed for committal case conference in advance of that date.  The adjourned period was to enable the prosecution to communicate to the legal representatives for each of you that Ms Sacco had made such an undertaking.  I note also that Ms Sacco is to be a relevant witness in the prosecution of Mr Graykowski.

24On 1 March 2018, Ms Sacco was placed on a community corrections order for a period of 22 months with conditions, including an onerous community work requirement.  The court was informed on that occasion that during the adjourned period, your legal representatives had been advised of Ms Sacco's undertaking.  Mr Vargas and Mr Anagnostou had determined they would plead guilty to charges of aggravated home invasion and recklessly causing injury.  Their matters were set down for plea.  In early April, Mr Thomas made the same decision and joined the plea hearing.  He has avowed through his counsel that Ms Sacco's undertaking made no difference to his decision-making.

25The sentencing reasons, as they relate to Ms Sacco, are available and indeed, were tendered on the plea of Mr Vargas.  The primary matters taken into account at arriving at the sentence imposed on Ms Sacco was her lack of prior convictions.  It might have been actually Mr Thomas that the sentencing reasons were exhibited.  Either way, they were before me.

26The primary matters taken into account at arriving at the sentence imposed on Ms Sacco was her lack of prior convictions together with her undertaking to give assistance to the prosecuting authorities in relation to each of you.  Given her lack of prior matters and this undertaking, Ms Sacco was assessed by me as having reasonable prospects of rehabilitation.  It was also accepted by me that her decision to assist was borne of both contrition and of remorse.

27It was accepted by me that her involvement in the offending came about as a result of her addiction to heroin and the offer by co-accused Vargas and Anagnostou to support her habit if she agreed to be involved, as well as her long-standing relationship with Mr Vargas, the father of two of her children, a relationship in which she had been subjected to domestic violence.  She also had a long-standing friendship with Mr Anagnostou.

28I accepted that her agreement to be involved was due to these relationships and her drug addiction, and that she was vulnerable to the approaches that were made to her.  The import of these relationships is perhaps in part supported by the fact that she was the only one who remained at the scene to assist Mr Anagnostou once he had been shot.

29In Ms Sacco's plea hearing, the objective gravity of her offending, particularly as it relates to the aggravated burglary to which she pleaded, was assessed to be in the mid-range in terms of its objective seriousness, such that such labels assist.

30The charge of aggravated home invasion, which each of you have pleaded guilty to, is not one yet that has been dealt with the courts on multiple occasions.  Nevertheless, in my view, this example of such an offence could also be accurately described as "mid-range" in terms of its objective seriousness, given the planning involved, the involvement of four offenders in total, three of whom have entered the private premises of the victim with balaclavas and in possession of weapons and equipment to restrain the victim, in the early hours of the morning, with an intention to steal and in a position to overpower the intended victim.  It was also with the knowledge that Mr Graykowski's parents resided at the same address.

31Given the target was both drugs and money, the offence was also committed in circumstances where it was not expected that there would be a complaint made.  I note that the description was not challenged by either the prosecution or your legal representatives.  Moral culpability, as it applies to each of you, was high.

32The charge of aggravated home invasion carries a maximum penalty of 25 years' imprisonment, the same as that for aggravated burglary, the charge to which Ms Sacco pleaded guilty.  The charge is particularised in this particular instance to include entry to the premises with an intention to steal in company with two or more persons, and at the time of entry, had offensive weapons, namely a baseball bat and machete, and knowing, or being reckless, as to whether or not there would be another person present in the home.  Of course, in this instance, it was within the knowledge by each of you that there were persons present at the premises, particularly Mr Graykowski.

33Section 10AC of the Sentencing Act requires that a term of imprisonment be imposed with a non-parole period of not less than 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. The charge of recklessly cause injury carries a maximum five years' imprisonment and does not require the fixing of a minimum non-parole period. The maximums reflect the seriousness with which Parliament regards these offences.

34Section 10A, "Special reasons relevant to imposing minimum non-parole periods".  Much of the discussion in the first two days of your plea hearing related to the provisions of s.10A.

35Section 10A, relevant to the argument raised in relation to each of you, provides that sub-s.1 in this section, "Impaired mental functioning" means, sub-s.3, "an acquired brain injury", or sub-s.2(A), "A court may make a finding that a special reason exists if", sub-s.C, "the offender proves on the balance of probabilities that at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender's culpability, or, he or she has an impaired mental functioning that would result in the offender being subject to significantly more than the ordinary burdens of risks of imprisonment."

36Or, sub-s.(E), "there are substantial and compelling circumstances that justify doing so." Sub-section 3: "In determining whether there are substantial and compelling circumstances, under sub-s.2(E), the court must have regard to", at sub-s.AD, "the 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 sub-s.B, "whether the cumulative impact of the circumstances of the case would justify a departure from that sentence, where relevant, from the minimum non-parole period."

37The only real case of assistance thus far in considering such minimum non-parole periods is that of DPP v Hudgson (2016) VSC 254. It was held that, 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 one capable of being lightly discharged.  More specifically, we accepted 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."

38These 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 the minimum non-parole period and then turn to consider special reasons.

39In a plea hearing over two days, as it relates to each of you, I was told by the learned Crown prosecutor that the decision to prosecute Ms Sacco for a charge of aggravated burglary, as opposed to aggravated home invasion, to which each of you have pleaded guilty, was based on the discretion available to the Director to do so, which occurred in circumstances where she indicated a willingness to plead guilty at an early stage and where the view was taken by the Director that Ms Sacco would have been able to avail herself of the provisions of s.10A(2A) - that is, the offender has assisted, or given an undertaking to assist after sentencing, law enforcement authorities in the investigation or prosecution of an offence.

40Turning to Jose Vargas.  Jose Vargas, you were arrested by police on 20 October 2017 in relation to the offending the subject of this indictment.  In terms of that record of interview with police, I am told you made full admissions but did not implicate Rachel Sacco.

41You claimed, at that time, that the home invasion of Graykowski's premises was a "spur of the moment" decision.  This would appear to be in conflict with other evidence available, and I simply do not accept on that evidence that your involvement was "spur of the moment."

42There is clear evidence that you initiated contact with co-accused Sacco and Anagnostou some five days in advance of the events taking place.  There is clear evidence that it was you that made contact with Mr Thomas, and involved him in the offending.  Further, it was you, on the day of the offences, that was in constant contact with Ms Sacco as to when was the best time to enter the premises.

43In my view, you were the initiator of the offending, actively involved in its planning and orchestration, were responsible for recruiting each of your co-accused into the offending, and also played a crucial role in what ultimately transpired.

44Each of the four offenders involved in the invasion of Mr Graykowski's house on 17 October 2017 and the recklessly causing of injury to him then played an important role, were allocated a particular role, and bear fairly equal culpability in what occurred as a joint criminal enterprise.

45You, Vargas, have a criminal history which spans the years 2005 to 2017 and encompasses some seven court appearances.  Your offending history includes dishonesty, drug trafficking, driving offences and breaches of community corrections orders.  You have no history for violence.

46On 5 March 2009, the County Court sitting at Melbourne imposed a sentence upon you of some 27 months' imprisonment with a minimum of 12 months' imprisonment to be served before you would be eligible for parole, in relation to charges of trafficking in a drug of dependence in not less than a commercial quantity.

47On 5 July 2017, you were convicted and sentenced to five months' imprisonment for offences relating to driving, drug trafficking and breach of community corrections orders.  As such, you had been released from this sentence for approximately one month at the time of the offences which occurred at Mr Graykowski's premises, as 77 days had been reckoned as already served when that five-month sentence was imposed.

48You are not to be punished again for this prior history.  It is relevant, however, to the assessment of the need to protect the community from you, your prospects of rehabilitation, and the weight to be given to specific deterrence.  It is also a history which differentiates you from your co-accused and then-partner Rachel Sacco.  You could not call into your aid prior good character in mitigation.

49I do take into account matters personal to you raised by your counsel in written and oral submissions.  In short compass, these include:  you are now aged 33 years, your parents are of South American origin and you came to Australia when you are aged approximately five years.  Your parents were said to be hard workers.  As such, you and your two siblings were largely raised by your grandparents.  Your father was physically abusive.

50You apparently struggled academically throughout your schooling years and left in Year 11 where you subsequently obtained a TAFE certificate for computer studies.  You initially worked as a cabinetmaker for approximately two years and then commenced fitting caravans and furniture-making.

51When your grandmother died, you commenced the use of heroin.  You last worked in approximately 2014.  You met Ms Sacco around 2009 after serving a prison sentence to which I have already referred.

52You have two children together:  Cooper, aged six years, and Javier, aged two years.  These children have been the subject of intervention by the Department of Health and Human Services and currently reside with their maternal grandparents.

53You have had a long-term problem with drug use and abuse, primarily heroin and amphetamine-based drugs.  I am told that you stopped using heroin approximately two years ago, but that you have had a methamphetamine habit for the past five years.  On your plea, it was submitted that you are not using drugs post-your release from your most recent prison sentence.

54Tendered on your behalf, on Exhibit V3, was a neuropsychology assessment report authored by Dr Lindsay Vowels, neuropsychologist, who assessed you on 6 July 2015.  I have had recourse to its contents.  Whilst extremely difficult to read, the report indicates that you presented at that time with several risk factors for an acquired brain injury.

55These included possible brain injuries from a rear-end collision in 2001, a single car collision in 2014, two motor vehicle accidents in 2015, a fall from a tree when aged approximately 15 years, an assault when aged 24 years as well as the continued use of cannabis and amphetamines over approximately two decades.

56At the time of the assessment conducted by Dr Vowels, your full-scale IQ was assessed as being in the probable range of 77.  She was of the opinion that this would impact on your capacity for decision-making and for recognising the implications of your decisions.  She also assessed your ability for new learning to be remarkably competent, but that you could not always reliably unlearn old habits at a cognitive level.

57In the opinion of Dr Vowels:

"Any brain injury is most likely to be left-sided and hence, more subtle issues such as judgment and capacity to recognise outcomes and the impact of his behaviours and other people, are most likely to be compromised."

58This of course raises obvious concern with prospects for rehabilitation.  At the time of her report, Dr Vowels indicated that, whilst not a qualified forensic psychologist, she did have concerns about you entering the prison system with presenting cultural issues, a more recent acquired brain injury, both of which would add to your vulnerability and make it difficult to comply with the prison regime.  As I have already referred, you had completed a term of imprisonment of some five months since that report and had completed a lengthy sentence prior.

59I was also provided with a psychological assessment report authored by Ms Gina Sidonie, consultant psychologist, and dated 3 April 2018.  It is exhibited at V2.  The contents of this report were unchallenged.  You told Ms Sidonie that your offending was motivated by your frustration over Ms Sacco purchasing drugs from a known drug dealer, and your desire to remove her from the dealer's home to stop the supply.  You told her that you lost control over the events that followed.

60Whilst I accept that you lost control over the events as they transpired on 18 October 2017, I reject any suggestion that your motivation was to rescue Ms Sacco from the relationship with Mr Graykowski.  At your plea hearing, it was put that you were not a drug user at the time, and that your motivation for the offending was to get drugs for Ms Sacco as it would relieve the costs associated with their purchase.

61It is clear from the accepted evidence that you enquired of Ms Sacco five days prior to the offending as to whether Mr Graykowski would have drugs and money, and sought to exploit, in my view, her relationship with him and your history with her to your advantage.  It is clear, in my view, that your offending was motivated by getting access to drugs, money and possibly other items of value.

62Ms Sidonie's assessment was later in time to that of Dr Vowels'.  In her assessment, your intellectual testing yielded full scale IQ of 64, which would represent a considerable decline.  In the opinion of Ms Sidonie, there has been a deterioration of your intellectual and memory functioning and your overall IQ falls in the impaired range.  She was of the view that your reported used of methamphetamines just prior to the commission of the offences, and in conflict with your instructions, would have further impaired your judgment and decision-making on the day.

63She does not, in my view, draw a direct link between your acquired brain injury and the offending behaviour.  Ms Sidonie was of the view that your acquired brain injury presented a barrier to changes in thinking and learning, problems with memory, concentration and intention, planning and organisation, and that your problem-solving and decision-making is reduced.

64This also reinforces concerns with your prospects for rehabilitation, which on the available evidence and taking into account your prior history, would appear to be guarded.  She further opined:

"The consequences for him in a prison environment can be intensified in terms of risk of victimisation, coercion, difficulty accessing services and system rigidity that does not accommodate his needs where everyday tasks can be a struggle."

65I do find her assessment somewhat in conflict with the planning involvement by you in your offending.  I also find her opinion in relation to the difficulties you would face in the prison environment in some conflict with the fact that you have completed two prison terms.  There is no evidence before me as to the difficulties with either of those prison terms in relation to your ability to cope in that environment.

66However, I cannot see Ms Sidonie's report in isolation given the report some two years earlier authored by Dr Vowels, and that neither of the reports were subject to challenge.  I accept that you have an acquired brain injury.  It is also clear there has been d deterioration in your level of intellectual functioning.

67As such, there is a basis to form the view that your time in custody would be more burdensome and more difficult to negotiate than someone without your intellectual deficits.  The decision of R v Verdins was raised on your plea, and after discussion, I accept that limbs five and six have application.

68Also tendered on your behalf was a confidential court report dated 28 November 2017 in relation to proceedings in the Melbourne Children's Court relating to your children with Ms Sacco, Cooper and Javier Vargas.  At that time, the children were in the care of their maternal grandparents, where they remain.

69The protective concerns of Department of Health and Human Services related to your parental substance abuse, family violence between you and Ms Sacco, and your incarceration for violent offences which related to the matters for which you are currently on remand.

70Your children remain in the care of the maternal grandparents, as I have already referred, and are presently able to visit you in the custodial setting.  Whilst in custody, you have completed a six-hour "managing cravings" program.

71You were interviewed by police on 20 October 2017, as I have already referred, and made admissions to your involvement.  You did make a statement at the completion of that interview, although there was never any indication that you would give evidence in accordance with that statement.  You did not include Ms Sacco in that statement.

72You indicated an intention to plead guilty to the charge of aggravated home invasion and recklessly cause injury at the committal case conference stage on 28 February 2017, and have maintained that plea before me at what could be considered an early stage.  I accept your plea has utilitarian value, has saved the court time and expense, the witnesses the trauma of having to give evidence, and also, bears a representation of remorse.

73I was told that your family are present in court and remain supportive of you.  Evidence was called from your mother, Gladys Vargas.  She spoke of your motivation not to return to court and desire to work with disabled children.  She gave evidence that your family have been visiting you in custody and that she believes, as any mother would, that you are capable of change.

74You do clearly have family support, which should be available to you upon your release from custody.  Contact with your children should continue to give you positive motivation.  As of today's plea, you have spent some 221 days in custody by way of pre-sentence detention.

75Nick Anagnostou.  You, Anagnostou, were arrested by police on or about
28 November 2017, upon your discharge from hospital.  I am told that, as is your right, you predominantly answered "No comment" to questions put to you in a record of interview conducted by police that day.

76There is some challenge by you to the prosecution opening.  I accept that events and conversations attributed to you in the record of interview with
Mr Vargas are not admissible against you.  In terms of your involvement in this matter, I do accept, as previously referred, that you played an essential role in the offence as it was undertaken.

77Furthermore, in her statement, Ms Sacco does put you as discussing with her and Vargas five days prior to the offences being committed what Graykowski would have in the premises in terms of drugs and money, had you actively involved in the planning, attributed you with driving her to the premises on the night that the offences took place, and placed a baseball bat or machete in your hands whilst events unfolded on 18 October 2017.  It was this statement which she gave the undertaking to give evidence if required to do so.

78You also have a prior criminal history which spans the years 2011 to 2017.  There are some eight prior appearances for offending, which includes driving offences, dishonesty, drug and weapon possession, and breaches of community corrections order.

79You have no priors for violence and have not previously received a term of imprisonment by way of sentencing disposition.  In May 2015, you were dealt with in the Sunshine Magistrates' Court for a charge of aggravated burglary, for which you were placed on an 18-month community corrections order which was subsequently breached.

80Like Mr Vargas, you are not to be sentenced again for these prior offences, but they remain relevant in the assessment of your prospects of rehabilitation and the weight that needs to be given to both protection of the community and specific deterrence.  Your criminal history would not appear to be quite as serious as that of Mr Vargas.  It does, however, also distinguish you from
Ms Sacco.

81It was you that was shot by Mr Graykowski as you left his premises on
18 October 2017.  I accept that as a result, you suffered serious and life-threatening injuries.  I am told that you were hospitalised for a period of approximately six weeks ,and that at this stage you require the use of the colostomy bag.

82I am told that this is something that you have managed to hide from other prisoners, as you see the use of the colostomy bag as giving you a particular vulnerability that would place you at risk from others.  I accept that you remain cautious of other prisoners in this sense, and fearful that your need to use the colostomy bag could be seen by prisoners as a sign of weakness.  I am told that you are likely to require the use of that bag until the end of this year.

83Medical records from the Royal Melbourne Hospital have been tendered on your behalf and are marked at Exhibit A2.  I have had recourse to those records.  They confirm that you presented to that hospital with a gunshot injury, with pellets within the chest and abdomen, a shattered left lateral eighth and ninth rib, stomach perforation, pulmonary haemorrhage, bowel perforation, pneumothorax, fever and tachycardia.

84A number of operations were performed and you were discharged on
28 November 2017.  There is no up-to-date medical material which has been filed, or any evidence or information as it relates to your custodial setting and medical treatment, or as to what might be required into the future.  There is no basis to find that you would be unable to receive appropriate medical treatment for your condition whilst incarcerated, nor is it contended that you would be unable to do so.

85There is no evidence before me that there was any difficulty managing your recovery from a medical perspective, or that you are receiving any form of inadequate treatment.  In the absence of such evidence, I do not accept that the ongoing physical sequelae from the gunshot injury makes your time in custody more difficult.

86A report from Dr Aaron Cunningham, dated 29 March 2018, was also tendered on your behalf and is exhibited at A3.  I have had recourse to that document.  According to Dr Cunningham, you do not have a mental illness nor did you so at the time of the offending.  He finds that you do present with symptoms of anxiety and trauma associated with the fact that you were not shot.  This finding is not surprising.

87Dr Cunningham was of the view that your drug abuse and association with drug-abusing peers was the primary contributor to your offending behaviour, both historically and in this instance.  He was of the opinion that your present experience in the custodial setting would be more onerous, as opposed to a person without your injuries, and in the context of feeling vulnerable and anxious because of the need to have a colostomy bag.

88He found that your prospects of rehabilitation were dependent upon you abstaining from drug use and relevant associations.  This also appears to be axiomatic.  He found that the support of your mother and partner were pro-social rehabilitative factors.  Dr Cunningham was of the view that the injuries which you suffered are likely to motivate you towards a different lifestyle.  I do accept this analysis.

89In the absence of other evidence, I cannot, in the circumstances, find that despite your concerns about other prisoners as it relates to your use of a colostomy bag, that your time in custody is made more burdensome.  Where your physical injury is relevant, and no issue was taken by the Crown with this aspect as a relevant consideration, is that it does represent a form of extra-curial punishment.

90In the decision of the New South Wales Court of Criminal Appeal in The Queen v Dates, Justice James, with whom Justices of Appeal Tobias and Hung agreed.  Said:

"Whilst it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence.  This is so even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence.

In sentencing the offender, the court takes into account what extra-curial punishment the offender has suffered because the court is requires to take into account all material facts, and is required to ensure that the punishment the offender receives is what, in all the circumstances, an appropriate punishment and not an excessive punishment.  How much weight a sentencing judge should give an extra-curial punishment will of course depend on the circumstances of the case.  Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight."

91In your particular case, you have suffered a serious physical injury requiring an extensive period of hospitalisation and then rehabilitation and recovery.  At this stage, you do still require the use of the colostomy bag, about which you are embarrassed and have ongoing fears for your safety should other prisoners find out.

92These matters are all relevant to the proper consideration of a detriment that you have suffered as a result of having committed the offences before this court, and I do give them weight in the sentencing mix.

93I have also taken into account matters personal to you, as raised by your counsel in both oral and written submissions.  Again, in short compass, you are now aged 32 years and were raised by your mother as an only child but have a younger half-brother.  On the separation of your parents, you were able to see your father every second weekend, but he was a hard worker and your contact with him was somewhat limited by this.

94When aged 14 years, your mother suffered a severe motor vehicle accident and has been heavily medicated since.  You then had to play an increased role in the care of your brother.  You left high school at approximately Year 9 level and worked as an apprentice tiler.  In your mid-20s, you owned a car wash business with your father, but this was lost when the lease ended.  You have also worked as a courier driver and in building caravans.

95You commenced using cannabis from the age of approximately 16 years, ceasing at 22 years.  Later, you began using ecstasy and methylamphetamine socially.  Ultimately, you developed a problem with methylamphetamine, and were smoking approximately 1 gram a day at the time of this offending.  As such, I find that your offending was motivated by your relationship with Vargas and Sacco, but primarily, to access to both drugs and money.

96You left the family home at approximately 25 years, living with a girlfriend in Tullamarine.  This relationship ended after approximately two years.  You are in a new relationship with a woman named Payton.  This is a serious relationship.  She lives in Cobram and your aim is to reside with her and her four-year-old child Charlotte upon your release.

97I accept that your mother and Payton are significant supports for you, and that in all likelihood, the fact that you have been shot is likely to be, as was described, a life-changing experienced.  It should motivate you towards a different life and lifestyle.

98A number of references were tendered on your behalf and are marked as Exhibit A4.  These include a reference from your mother, Natasha Christopoulos, your grandmother, brother, and family friends.  These references speak of the care you have shown towards your mother and younger brother, and that away from drugs and your associates, you are hard-working and kind.

99I have had recourse to all these documents which were not under challenge.  I find that your prospects of rehabilitation, in all the circumstances to which I have been referred, remain live albeit express some caution.  I accept that your prospects remain contingent on your absence from drugs and peer associations.  You would benefit from extended supervision in the community under parole.

100You also pleaded guilty at committal case conference held on 28 February 2018.  I accept that your plea of guilty is also one of utilitarian value, has saved the court time and expense, has saved the witnesses the trauma of being involved in contested proceedings, and does represent an expression of remorse.  It has occurred, also, at a relatively early stage.

101These are all matters which will be taken into account in your favour.  As of today's plea, you have spent some 183 days in custody by way of pre-sentence detention.

102Matthew Thomas.  You, Matthew Thomas, were interviewed by police upon arrest on 17 November 2017.  In short compass, you deny being involved in the aggravated home invasion at Graykowski's premises on 18 October 2017.  At the time of your involvement, you had known Mr Anagnostou through mutual friends for about a year, and had met Mr Vargas through Mr Anagnostou on approximately four occasions.  You did not know Ms Sacco.

103Through your plea, and particularly in relation to the charge of recklessly cause injury, you denied handling either the machete or the baseball bat but accepted complicity in the offence of recklessly causing injury.  As such, I see no real reason to make factual findings as to whether or not you did hold a weapon.  I note, however, that Mr Vargas was occupied with Ms Sacco, there were only two other offenders in the room, of which you were one, there were two weapons in the room which had been brought into the premises.

104Ms Sacco, in her statement dated 19 October 2017, would place either a baseball bat or machete in your hand at the relevant time, and Mr Graykowski suffered injury consistent with the use of each weapon.

105Your involvement was somewhat later in the piece than that of your three co-offenders.  Your counsel described you as a "Johnny come lately", and submitted that you joined a plan that was already on foot by the time that you agreed to be involved.

106I accept that your agreement to be involved was somewhat later than that of your three co-accused, but in my view, the difference is relatively marginal.  Your preparedness to be involved was with the relevant knowledge as to what was intended to take place, and with you having an allocated role in it.

107I also reject the submission that Ms Sacco was the only co-accused who had the ability to call off the intended offending, and that she was the only one with the ability to organise the timing of entry.  I reject the submission that Ms Sacco was in charge of the whole operation for an hour before the offending occurred, in that it was submitted that she determined the timing and the fact that there would be a home invasion.

108In my view, any one of the offenders had the ability to call off the agreement.  I do not accept that Ms Sacco was in charge at any point in time.  She was simply communicating, through Vargas, the best opportunity.

109It was argued on behalf of you, Thomas, that I should consider the decision of the Director to indict you on aggravated home invasion as opposed to the charge of aggravated burglary as faced by Ms Sacco as a fettering of my decision-making.

110It was argued that a decision by the director to determine that three accused should face a minimum non-parole period of three years' gaol, absent special reasons, whilst another was charged such as to artificially avoid consideration of a minimum sentence of three years, comprises a substantial and compelling reason such as to amount to a "special reason."

111Further, it was argued that this position provided strong public policy reasons for imposing a lesser sentence than the three years' imprisonment otherwise required absent special reasons.

112I reject this submission.  I accept that, firstly, the Director has such a discretion and it is not one that should be interfered with by the courts.  Further, I accept that the provisions of the relevant section allow for a discretion where it can appropriately apply.  I note also that should Ms Sacco have been charged with aggravated home invasion, she would have been able to avail herself of "special reasons" because of her undertaking.

113Leaving that to one side, in any event, you instructed your counsel to, and did, plead guilty to the offence as is currently before me, and would've been aware of the minimum non-parole period.

114I have had regard to your personal circumstances as put before me in both written and oral submissions.  Again, in relatively brief compass, they include the fact that you are now 36 years of age, having been born in December 1981.

115You were born in Melbourne of Anglo-Indian parents, both of whom came to Australia when they were young.  Your parents separated when you were ten years of age and you have two younger siblings, a sister aged 30 and a younger step-brother aged approximately 15 years.  Your family were present for your plea hearing.

116Your mother, Gillian Fawty, works in recruitment and resides in Sydney.  Your father, Terrence Thomas, owned a cleaning business and resides in Moorabbin.  I am told that you grew up with your mother and maternal grandparents in the western suburbs.

117You completed your VCE at Deer Park Secondary College and initially commenced your employment in sales and marketing, where you worked with the Hilton Hotel chain for some nine years before resigning.  You later worked at StarTrak Recruitment for approximately three years, and for Oxford Cold Storage for about one year.

118In terms of your education and employment history, it would have to be said that you initially had a relatively bright future and that you were well-educated and gainfully employed, and were clearly capable of sustaining employment.

119I am told that your resignation from Hilton Hotels overlapped with your drug use, which commenced with cannabis at the age of 18 years and then continued on to heroin usage and methylamphetamine usage, which was initially on weekends but later escalated.  You appeared to be able to manage your drug usage with your employment.

120You have previously undertaken rehabilitation programs with First Step between August 2003 until February 2009, and received regular prescriptions for suboxone and then buprenorphine, according to materials tendered before me and exhibited at T4.

121These documents clearly demonstrate periods of abstinence from drugs.  It would appear from your criminal history that there's been some limits on the success of that rehabilitation program, given there were two matters which occurred during that period which directly related to drug trafficking and drug cultivation, and the fact that you re-offended in the context of the offending before this court.

122I am told, at the time of this offending, you were using both heroin and methylamphetamine.  Your offending on 18 October 2017 was motivated by gaining access to drugs and money.  You had relapsed after the breakdown of a two-and-a-half year relationship and had continued to use drugs up until the time of your arrest.

123Tendered on your behalf, and to which I have had recourse, were a number of personal references including one from your godmother, Marie Picton, from an uncle, Andrew LaFontaine, Anthony Thomas, and from your mother.  These references speak of your great remorse for your offending, your embarrassment and a desire to make amends.  References directly link your offending behaviour to your drug addiction, and that you are otherwise "a good person."  You clearly also have family support upon your release into the community.

124You have a prior criminal history of some eight prior appearances.  You have been dealt with for unlawful assault, drug trafficking, dishonesty offences, breaches of court orders and driving offences.  You have never served an immediate term of imprisonment.  Apart from one breach of an intensive corrections order, you have otherwise completed imposed corrections orders, and a suspended sentence.

125This history would also reflect that you had no involvement with the criminal justice system from 9 January 2015, at which time you were placed on a community corrections order for a period of 15 months in relation to drug possession, failing to answer bail, driving offences, and obtaining financial advantage by deception.  There is no alleged breach of that order.  Prior to that point in time, you had some four-year gap in your criminal history.

126Like your two male co-accused, you will not be punished again for this prior history but it does assist also in the assessment of the weight that needs to be given to specific deterrence, the need to protect the community from you, and your prospects for rehabilitation.

127What also differentiates you in terms of this history from that of your co-accused, Vargas and Anagnostou, is the fact that you did have that period of two years without further offending between January 2015 - that is in excess of two years - up until 18 October 2017.  You had had compliance with previous court orders, and you had that four-year gap in your history.  You are clearly distinguished because of that history from that of Ms Sacco, who had no prior history.

128Tendered on your behalf was a psychological assessment report prepared by Alice Kroll, consultant psychologist, and dated 18 April 2018.  Not surprisingly, you meet the criteria for severe substance use disorder.  You do not present with any mental impairment relevant to the sentencing task.

129Ms Kroll did assess your risk of recidivism as low, and there was no challenge to this assessment.  She indicated that you were deterred by the injuries which were caused to Mr Anagnostou, and acknowledged the self-analysis that you have now undertaken in prison such that you feel your life is wasting away.  I have taken the contents of her report into account.

130The differentiation in your criminal history, such that is, from your two male
co-accused, together with the assessment of Ms Kroll, leads me to the conclusion that you present with slightly better prospects of rehabilitation than do Mr Vargas and Mr Anagnostou, and that you would also benefit from a period of extended supervision in the community under the auspices of parole.

131You indicated a willingness to plead guilty to the charges now before the court at committal case conference on 6 April 2018.  This indication of a willingness to plead guilty came about sometime after that of your co-offenders, but I am satisfied that it still represents a plea of guilty at an early opportunity, is of utilitarian value, has saved the court time and expense, and the witnesses the trauma associated with having to give evidence, and combined with the other evidence before me, is an expression of remorse.  As of today's plea, you have spent 194 days in custody.

132In terms of sentence, 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 victim.

133These factors all loom large in the sentence to be imposed upon each of you, particularly both general and specific deterrence, denunciation, and protection of the community.  I am also required to balance the interests of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are given the opportunity to rehabilitate and reintegrate into society.  I have referred to your prospects as I have assessed them to be.  Relevant also are the principles of totality and proportionality.

134I accept that, for the charge of recklessly cause injury, there should be some moderate cumulation with the sentence to be imposed in relation to the sentence for aggravated home invasion.  There seems to be no basis to differentiate between the three of you as to the sentence which should be imposed for the charge of recklessly causing injury.

135The recent decisions of the Court of Appeal in relation to aggravated burglary are relevant to the sentencing process for aggravated home invasion.  The learned prosecutor referred me to the decisions of Bowdem, Hogarth, and Meyers.  I have had recourse to each of those decisions.

136In Meyers [2012] 44 VR 486, the court referred to Hogarth and said that:

"Hogarth established that current sentencing practices for serious forms of aggravated burglary needed to change as they did not reflect the objective seriousness of such offending.  Aggravated burglaries, which involve confrontation and violence or threats of violence, should be viewed very seriously whether the target of the attack is a former domestic partner or a person against whom such other grievance is held."

137I accept the submission by Mr Lindner that the decision in Hogarth should be viewed as having removed the constraint of current sentencing practices for aggravated burglary in all of its more serious forms.  I am assisted by the referral to the decision of the Court of Appeal in Mazlin.

138Further, the decision of Meyers referred to determining the appropriate sentence of an offence of aggravated burglary through an assessment of the seriousness of the offence and included a number of considerations as being relevant to such an assessment.  I have had recourse to all those decisions, as well as the considerations as referred to in Meyers, and they have been detailed at an earlier stage of this sentence.

139In subsequent decisions of the Director of Public Prosecutions in Dalgliesh, the High Court held that a sentencing court will fall into error treating current sentencing practices as restrictive on the position of a sentence that would otherwise be appropriate in all the circumstances of the case.

140Dalgliesh does not affect the conclusion of the Court of Appeal in relation to sentences for aggravated burglary, but the current sentencing practice has been inadequate.  It does not affect the principles which I took to be applied by sentencing judges in assessing the objective gravity of the offending in such cases which, in my view, do have relevance and provide some guidance to sentencing for aggravated home invasion.

141In terms of parity, it is a matter relevantly raised by all counsel.  It was raised in the context of "special reasons", and put that parity was a matter that could be taken into account as a substantial and compelling reason for not imposing for a mandatory minimum non-parole period of three years' duration.

142In my view, it is a relevant consideration anyway.  Essentially, not doing it proper justice, parity refers to equality before the law and is important for consistency in sentencing.  In Bowden, the Court of Appeal confirmed long-standing principle that:

"The parity principle is not confined to co-offenders who committed the same crime, but includes those who are engaged in the same criminal enterprise.  At the same time, there can be no legitimate complaint where more lenient outcome in an co-offender's case can be explained by differences in the nature of the offences or role each has played, and/or the personal circumstances of the co-offenders."

143Whilst your offending is relatively equal, unless I have otherwise referred, that is where the similarities between each of you and Ms Sacco ends.  As I have already referred, she pleaded guilty at the earliest opportunity, had no prior history, had given an undertaking to give evidence against each of you, and was assessed as having reasonable prospects of rehabilitation.  Further, it would appear that her involvement in the offending was directly related to her heroin addiction and the nature of her relationships with Mr Vargas and
Mr Anagnostou.

144I have applied considerations of parity as it relates to the sentence imposed on Ms Sacco in fixing a sentence for the charge of aggravated home invasion, which is lower than would have been appropriate had the constraint of parity not been relevant.  In parity, as it relates between the three of you, there are differences between each of you, but not such as to make a significant impact on the appropriate sentence.

145I have referred to these considerations, but in broad sense, Mr Vargas is able to appropriately rely on his acquired brain injury as being relevant to sentence in the way to which I have already referred, but was, in my view, the initiator of the offending and has a more serious criminal history.  Mr Anagnostou can properly avail himself of the extra-curial punishment he has suffered, and
Mr Thomas, in my view, has slightly better prospects of rehabilitation.

146Whilst argument has concentrated on submissions that I find that there are "special reasons", and hence should not consider fixing a minimum non-parole period of not less than three years, an assessment by me of the objective gravity of the offending, my intuitive synthesis and all other relevant sentencing considerations to which I have referred is such that the arguments have no relevance as I am of the view that the appropriate sentence for each of you is one that would require a non-parole period in excess of three years.

147I now will sentence.

148Mr Vargas, in relation, to the charge of aggravated home invasion, you are convicted and sentenced to five years and seven months' imprisonment.  This is the base sentence.

149In relation to the charge of recklessly cause injury, you are convicted and sentenced to eight months' imprisonment of which two months is made cumulative on the base sentence.

150This comprises a total effective sentence of five years and nine months' imprisonment.

151I fix a period of three years and eight months before you become eligible for parole, and reckon a period of 221 days as already served pursuant to that sentence.

152Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed, had you not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of seven years and six months' imprisonment with a non-parole period of five years and six months' imprisonment.

153Mr Anagnostou, in relation to the charge of aggravated home invasion, you are convicted and sentenced to five years and four months' imprisonment.  This is the base sentence.

154In relation to the charge of recklessly cause injury, you are convicted and sentenced to eight months' imprisonment, of which two months is made cumulative on the base sentence.

155For you, this comprises a total effective sentence of five years and six months' imprisonment.

156I fix a period of three years and six months before you become eligible for parole, and reckon a period of 183 days as already served pursuant to this sentence.

157Section 6AAA of the Sentencing Act requires me to state the sentences that I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of seven years and four months, with a non-parole period of five years and four months.

158Mr Thomas, in relation to the aggravated home invasion, you are convicted and sentenced to five years and four months' imprisonment.  This is also the base sentence.

159And in relation to the charge of recklessly causing injury, you are convicted and sentenced to eight months' imprisonment of which two months is made cumulative on the base sentence.

160For you, this comprises a total effective sentence of five years and six months' imprisonment.

161I fix a period of three years and four months before you become eligible for parole, and reckon a period of 194 days as already served pursuant to this sentence.

162Pursuant to s.6AAA of the Sentencing Act, I am required to state the sentences that I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of seven years and six months with a minimum of five years and four months before you would be eligible for parole.

163If you could remove the prisoners.

164Other than the need to check my maths, which is usually apparent ‑ ‑ ‑

165MR LINDNER:  There were ancillary orders as well, I think.

166HER HONOUR:  I made those this morning.

167MR LINDNER:  Sorry.  Thank you.

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