Director of Public Prosecutions v Badey
[2023] VCC 650
•20 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-00925
CR-22-00927
CR-22-00926
CR-22-00924
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HELEN MEREDITH HALL WAYNE THOMAS TRAILL STEVEN JOHN HALL SEBASTIAN JEAN-PIERRE BADEY |
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JUDGE: | HER HONOUR JUDGE ELLIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 February 2023 |
DATE OF SENTENCE: | 20 April 2023 |
CASE MAY BE CITED AS: | DPP v Badey & Ors |
MEDIUM NEUTRAL CITATION: | [2023] VCC 650 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: One charge of aggravated burglary - Two charges of common law assault – plea of guilty – following sentence indication – no prior criminal history
Legislation Cited: Criminal Procedure Act 2009 (Vic), Crimes Act 1958 (Vic) , Bail Act 1977 (Vic), Sentencing Act 1991
Cases Cited:The Queen v Okutgen (1982) A Crim R 262; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] 46 VR 308
Sentence: H Hall: CCO for 3 years with 300 hours unpaid community work – S Hall: CCO for 3 years with 300 hours unpaid community work – Badey: CCO for 2 and a half years with 200 hours unpaid community work – Traill: CCO for two and a half years with 200 hours unpaid community work – Compensation order in the sum of $8,947.23, each accused to contribute equally
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Goetz | Office of Public Prosecutions |
| For the Accused H. Hall For the Accused W. Traill For the Accused S. Hall For the Accused S. Badey | Mr C. Edwards Mr A. Pyne Mr A. Malik Ms D. Caruso | Daniel Taylor Lawyers Pty Ltd Sullivan Braham Pty Ltd |
HER HONOUR:
1Helen Meredith Hall, Wayne Thomas Traill, Sebastian Jean-Pierre Badey and Steven John Hall, on 3 February 2023 after receiving submissions at an earlier hearing I granted your application for a sentence indication. I indicated that should you plead guilty to the three charges proposed as set out below and pursuant to s 207(1)(a) of the Criminal Procedure Act 2009 I would impose a sentence of a specified type, being a community correction order alone. You each then pleaded guilty on arraignment on 10 February 2023. I note that each of you were re-arraigned this morning given the amendment to the indictment.
2Mr and Mrs Hall, Mr Badey and Mr Traill, you have all pleaded guilty to
·one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958, which carries a maximum penalty of 25 years' imprisonment; and
·two charges of common law assault, which each carries a maximum penalty of five years' imprisonment.
Circumstances of Offending
3The circumstances of your offending were set out in a summary of prosecution opening tendered on the plea as Exhibit A. By way of background,
Steven and Helen Hall are husband and wife. In 2019 they owned and operated the Dargo Hotel as well as the Dargo Motel. The hotel and motel are
two separate buildings and businesses. Wayne Traill was a regular visitor to Dargo and was well known to the Halls. Sebastian Badey was employed as a chef at the Dargo Hotel and occasionally resided there at the time of the offending.4The complainants in this matter are Richard Peters, who was aged 54 and
his son, Jake Peters, then aged 21. At the time of the offending the complainants were living together in Dargo in a home on the western side of the Dargo Motel which is approximately 200 metres from the hotel and is separated by a vacant lot owned by John Phelan. On this lot there were several wrecked cars kept in poor condition.5Both complainants were known to Helen Hall and Steven Hall. Jake Peters had previously been banned from the Dargo Hotel and had been informed that he was prohibited from entering the premises.
6Over the Easter period the Dargo Hotel had an influx of visitors and on Saturday 20 April 2019 the hotel had a band playing which attracted a large number of patrons who were present until approximately 1am. Extra security was engaged due to the number of patrons.
7That Saturday evening, Jake Peters decided to visit other friends who were at the Dargo Hotel while Richard Peters stayed at home. Despite being banned from the Dargo Hotel, Jake Peters went there sometime after 11 pm and bought a drink from the bar. Shortly after his arrival Helen Hall noticed Mr Peters there and requested he leave. Security then ejected him from the premises.
8Jake Peters went home and, a short time later, Helen Hall also returned to her home at the rear of the Dargo Motel. Jake Peters then got into a car and drove into Phelan's paddock. He began circling the paddock in his car. Helen Hall became aware of Mr Peters, believing he was driving the paddock in order to agitate her.
9She entered the paddock to ask him to stop. At some point Mrs Hall sat on the front of one of the wrecked cars. The car had no bonnet or engine and Mrs Hall fell backwards into the empty engine bay area. She became stuck on her back and was unable to get out. Mrs Hall called out for help. Her daughter,
Tegan Hall, heard her and came outside. Believing that her mother was having some sort of issue with Jake Peters, she called her father, Steven Hall, who was still at the Dargo Hotel. Mr Hall then came out to assist his wife accompanied by Mr Badey and Mr Traill. Along the way Mr Hall picked up a baseball bat from the tray of his utility parked at the hotel.10Meanwhile Jake Peters, having seen Mrs Hall fall into the engine bay of the car, drove towards the car and stopped directly beside it. He lowered his window, said words to Mrs Hall and then used his mobile phone to film her stuck in the engine bay of the car. Jake Peters was still filming when Steven Hall, Mr Badey and Mr Traill arrived at the paddock. Upon seeing them he reversed away towards his house, parked and went inside.
11After being assisted out of the wrecked car Mr and Mrs Hall, Mr Badey and Mr Traill continued approximately 200 metres through the paddock and onto the Peters' property along with some others. The door on the side of the property was unlocked and all offenders entered the house. Mr Hall was armed with a baseball bat and another offender carried one length of wood. The intention was to confront Jake Peters who, Mr Hall, Mr Badey and Mr Traill believed was responsible for Helen Hall being in the engine bay.
12Whilst it is unclear who entered the premises first, Mr Hall believes he was the first to the door and that he opened it. Jake Peters immediately asked the offenders to leave. A loud argument ensued and amongst the commotion Richard Peters awoke and came downstairs to find all offenders arguing with Jake Peters. As Richard Peters approached the group the argument escalated and became physical. Jake Peters believes Mr Hall grabbed him by his neck while another person tried to hit him. Jake Peters fell to the ground whilst trying to defend himself.
13Meanwhile, Richard Peters remained in the kitchen area telling everyone to leave and tried to push the offenders out of the house. In the process, Richard Peters was pushed to the floor and, whilst on the floor, he was kicked by one of the offenders. Another offender struck Jake Peters with the baseball bat causing him to fall back on the ground where he was struck repeatedly. Helen Hall punched Jake Peters whilst he was on the ground and said words to the effect, 'Payback is a bitch'. One of the offenders accused Jake Peters of having assaulted Helen Hall.
14During the offending some property was damaged within the Peters' home which is not the subject of a charge here. The complainants estimate the offending lasted for approximately 10 minutes. Both suffered cuts, bruises and general pain as a result of being physically assaulted. Another male, not
one of the four offenders here, was seen carrying a large piece of wood which was displayed as a weapon.Records of Interview
15Each of the accused participated in a record of interview. Steven Hall and Helen Hall were interviewed on 21 April 2019. Sebastian Badey and
Wayne Traill were interviewed of 22 April 2019.16Steven Hall told police that sometime after closing the hotel he was with Mr Badey and Mr Traill and that his daughter, Tegan, had arrived and told him that Helen was involved in an altercation with Jake Peters. He was aware that Jake Peters had attended the hotel, being ejected during the evening. Steven Hall recalled that he walked from the hotel to the motel with Mr Badey and Mr Traill. Steven Hall admitted that as he walked through the car park he walked past his car and took a small baseball bat from the tray. He said that once they arrived at the Peters' property he opened the door and entered first. Mr Hall said that he carried the baseball bat just in case. He said that he had acted in 'the heat of the moment' and that his actions were 'a stupid move'. He stated that there was some pushing and shoving but could not recall who did what and did not recall seeing any blood or any person sustain injuries.
17Helen Hall told police that after she finished work she consumed a number of alcoholic drinks and was intoxicated. Shortly after returning home she was outside at the back of the Dargo Motel when she saw Jake Peters driving in Phelan's paddock. She stated that she entered the paddock intending to speak with Jake Peters so that he would stop driving in the paddock. When she walked into the paddock Mr Peters drove too close to her and she jumped into a nearby wrecked car and fell into its engine bay and became stuck as Mr Peters recorded her. She told police that after calling out for help
Steven Hall, Mr Badey and Mr Traill came to her aid. She conceded that once they had all entered the Peters' property there was a heated verbal altercation which resulted in people wrestling and falling on furniture. She told police that Jake Peters pushed her over onto the ground.18Sebastian Badey told police that at some point in the night he was at the hotel with Steven Hall and Mr Traill and was told that Helen Hall was in an accident and that he believed that she was run over by a car. He told police that he left the hotel with Steven Hall and Mr Traill and made his way with the accused to Helen Hall. He told police that when the accused arrived at the Peters' property he waited outside the door until he heard an altercation occurring inside. He stated that he entered the Peters' property and upon seeing a male on top of Steven Hall he grabbed this male by the shirt and pulled him away. He recalled being struck to the head at some point.
19Wayne Traill told police that he was at the hotel when he became aware of an incident involving Helen Hall and Jake Peters who had been ejected from the hotel earlier. He told police that he left the hotel with Steven Hall and Mr Badey and made his way with the others and saw Helen Hall stuck in the engine bay. He told police that he believed that they were then going to confront Peters about it at his house. He stated he entered the Peters' property after
Steven Hall and conceded that an altercation occurred in the property and that he was involved in some pushing and shoving. Mr Traill recalls seeing a small baseball bat.20Each of the accused have been on bail and there is no pre-sentence detention.
Victim Impact
21Victim Impact Statements have been prepared by Jake Peters and
Richard Peters. Jake Peters describes how the offending has affected him psychologically and physically and that he had to take eight weeks off work as a result of the offending and has since suffered from anxiety and depression. He avoids going out and fears for his safety. He has difficulty sleeping.22Richard Peters described the fear he experienced on the night. He said he thought he was going to die. Afterwards he was fearful of further attacks and felt anxious and jittery. He finds it difficult to engage with his community and feels intimidated. He has trouble sleeping and feels depressed. He states that he was hurt during the offending and has been unable to work. Mr Peters has required ongoing medical attention which has been costly. He describes ongoing shoulder and neck pain amongst others. As a result he has been without an income and he is restricted in what he feels he can do. His home was damaged during the course of the offending.
Procedural history
23Each of the accused were charged on 21 October 2019. A contested committal took place on 30 March 2022 wherein both Jake and Richard Peters were cross-examined. Each of the accused were committed for trial on 31 May 2022. An earlier sentence indication hearing set down in September last year was vacated due to a public holiday being declared. These matters ultimately resolved on 10 February this year, following earlier hearings in January and February.
Nature and gravity of offending
24Aggravated burglary is, by its very nature, a serious offence. This is reflected in the maximum penalty applicable. Moreover, appellate authorities are clear that given the gravity of this type offending confrontational aggravated burglaries are particularly serious. Here, there were multiple offenders who entered the premises with the purpose of confronting Jake Peters.
25Significantly, Steven Hall was armed with a baseball bat. Another offender who was present was armed with a piece of wood. The purpose of entry into the Peter's residence was to confront Jake Peters in response to a misconceived belief by the accused, with the exception of Mrs Hall, that he had somehow been responsible for Helen Hall either being stuck in the vehicle or involved in some sort of incident involving a car.
26Richard Peters, who had not been involved in the altercation between
Helen Hall and Jake Peters, found himself in the midst of a physical confrontation in his own home. In the course of the offending the victims were assaulted and it is indeed fortunate that neither did not sustain more serious injuries.27Ordinarily this type of offending would attract a significant term of imprisonment. People are entitled to feel safe in their own home. Regardless of Jake Peters' behaviour in the paddock and no matter how provocatively you may all have viewed that conduct, he was entitled to be able to retreat to his home safe from any violence.
28Likewise his father, who was in bed at the time when you came into their home. Richard Peters had the sanctity of his home violated and found himself caught up in an inexplicable display of aggression whereby he, along with his son, were assaulted by a group of people from the community, some of whom were armed with items that were ultimately used in the scuffle that ensued. Clearly this offending would have been very frightening for both of the victims, to be confronted by a group of people who were angry and seeking retribution. Clearly this offending has had a significant impact on both victims.
29However, I accept that the offending in this case was unplanned. It was spontaneous.
30Dealing first with Mrs Hall's conduct. Mrs Hall, you found yourself stuck in an engine bay of a wrecked vehicle once you had gone outside to confront Jake Peters. You were intoxicated. You experienced the indignity of being filmed by Jake Peters whilst you were stuck. No doubt this would have been distressing and upsetting but this, in no way, excuses your conduct.
31Once you were extracted from the engine you, Mrs Hall, made the decision to follow your husband and co-offenders to the home of Jake Peters in order to confront him. Whilst there was a short distance between the Phelan paddock and the house and therefore perhaps very little time for you to explain the true circumstances to the co-offenders, it seems that Mr Hall, Mr Badey and Mr Traill were not dissuaded at any point from the misconception that Jake Peters had been responsible for the position that you, Mrs Hall, found yourself in.
32In the case of the other offenders, each of you attended at the Peters' home in the heat of the moment seeking to confront Jake Peters. In doing so you each conducted yourselves in an aggressive and antisocial way.
33Mrs Hall, once inside the premises you were an active participant in the verbal and then physical altercation which ensued. After Jake Peters had been assaulted with the baseball bat and was on the ground you punched him.
Your words, 'Payback is a bitch', indicate that you were angry and seeking some form of retribution. You told police that during the fracas you were pushed by
Jake Peters.34Steven Hall, you had been informed by your daughter that Helen had become involved with some trouble with Jake Peters. Mr Hall you, by your own admission, armed yourself with a baseball bat and once at the Peters' home you believe you were the first to enter. You were involved in the physical altercation that followed after entry though it is unclear which of the group who actually entered used the baseball bat to assault Jake Peters. Mr Hall, you were angry and aggressive and you entered the house with the purpose of confronting Jake Peters.
35Both you, Mr Badey and Mr Traill, also got caught up in the misunderstanding regarding how Mrs Hall came to be in the engine or what had transpired in Phelan's paddock. You went along to the house entering it at some point, it seems, after Mr Hall.
36Mr Pyne, who appears on behalf of Mr Traill submits that Mr Traill's behaviour was unhinged but there was no preplanning involved.
37It is submitted on behalf of you, Mr Badey, that you entered after Mr Traill.
Your counsel, Ms Caruso, submits that your complicity in the assaults was at the very lowest end. You are not said to have been involved directly in the assaults but it is agreed that you did place the victims in fear.38Each of your conduct on this evening was most appalling. You all have the wisdom and experience of people in their late 40s or 50s and the reality is you should all know better than to get yourselves caught up in a fit of anger or a desire for confrontation no matter how well justified you considered it to be at the time.
39You should all be ashamed of your behaviour on the night and more so given that you, until that point, had been, in effect, pillars of your community. The fact that you arrived in a group would have been particularly terrifying for your victims.
Personal circumstances
40Turning now to each of your personal circumstances. In each case your counsel has submitted detailed submissions which were supplemented by oral submissions at the sentence indication hearing and which were tendered today.
Steven Hall
41I will turn to you first Mr Steven Hall. You are now 54 years of age. You were born in August 1968 in Sale where you spent the first four years of your life before relocating to Buchan with your family. You are one of four children with two older sisters and a younger brother. You continue to maintain a close relationship with your siblings. Your mother worked part time in home help, cooking and cleaning for the elderly and your father worked driving trucks. Your mother passed away in 2000 and your father resides in a nursing home in Sale where he suffers from dementia.
42You have described your childhood as “pretty rough”. Your father would drink excessively and was physically violent towards your mother and you and your siblings. You estimate this would happen about once a month. On these occasions you felt responsible to look after your family and often hid with your siblings behind the house until the violence was over. You would observe injury to your mother as a result of your father's violence and you would care and comfort her in the aftermath of that violence.
43At one point in your childhood your father lost his driver's licence due to drink driving and consequently your father worked away from home for a fortnight at a time. During this period, you took more responsibility to help support your family by doing extra work around the house, as your mother would
spend significant time in hospital due to her frail health. You left school at the
age of 15. You were not coping with the violence at home, exacerbated by the additional responsibility of caring for your family in the absence of your father.44You then moved to Coolah, New South Wales and obtained a job on a sheep and cattle station where for three years you worked as a roustabout. During this time you learned how to drive heavy machinery. Once you turned 18 you moved back to East Gippsland and gained employment in the logging industry driving bulldozers, excavators and skidders. You continued to work in this industry for a further two years before you moved to Western Australia to undertake part-time work doing fruit picking. You then moved to Darwin where you worked as a locksmith for three years installing safes. During this time you also lived part-time in Indonesia assisting your employer expand their locksmith business abroad.
45When you were 23 you returned to Victoria and the logging industry. One year later you met and married your first wife, Katrina. This marriage lasted around two years and in that time you and Katrina had two children, Amy now aged 30 and Emily now 29. Both Emily and Amy are married and live in the Morwell area. You lost contact with both of them approximately six years ago.
46After separating from Katrina at the age of 26, you moved to Dargo and worked at the Dargo Hotel as a maintenance worker and part-time barman. At the time, the hotel was owned by your co-accused and now wife, Helen Hall. You began a relationship with Ms Hall and worked together for several years before getting married. During this time you helped renovate the hotel while starting your own earthmoving business.
47In the year 2000 you and Mrs Hall sold the hotel and focused on your earthmoving business full-time, employing up to 15 workers and running three major crews undertaking work for VicRoads and the Wellington Shire. In 2017, you and Mrs Hall decided to buy back the Dargo Hotel as it had become rundown and as a result you cut back on the earthmoving business. That business still operates around the Dargo area. You employ two part-time staff and two full-time staff members. The hotel currently employs up to 22 staff members at various times throughout the year.
48With Mrs Hall you had two further children, Tegan aged 21 and Harry aged 20.
Tegan lives in Traralgon and works in a government department whilst Harry lives in Dargo and works with you in the earthmoving business. You describe yourself as a social drinker and you have not previously used illicit drugs. You have no diagnosed mental health issues. You have no prior criminal convictions.49A number of character references were tendered on your behalf prepared by friends, colleagues and others who have known you both personally and professionally. Those with whom you have worked in the course of your earthmoving business speak very highly of you, in particular, regarding your involvement in volunteering within the community, particularly in times of need such as natural disaster relief. According to your referees you have volunteered your time, trucks, equipment, food and accommodation to successfully help others in need, including during a significant police investigation within the region. You are viewed as reliable and a dependable member of the community.
50You have frequently assisted tourists who have become lost or stuck in the difficult terrain around the Dargo area. Your wife and children are said to be your world. Character referees describe your offending as totally out of character. You are said to be generous with your time and in ensuring that those around you, whether they be members of the local community or tourists, are safe. You have not been known to those who know you to be physical or aggressive to anyone. Character referee Ms Healy describes you as
'An example of all that a country town is and all that a good person should be'.51You have expressed your remorse, regret and sadness for your offending to others. You are said to be truly ashamed and embarrassed by your behaviour. Mr Mack, a referee, describes that you have been very distressed since the offending. You appreciate the impact of the offending including that it may have implications for those whom you employ and you are concerned that this will impact on the community itself as well as the collaborations and relationships you have fostered to help promote the community. Both you and your wife are the major employers in a small and remote community with limited employment opportunities. I accept that you are very remorseful for your behaviour.
52I also accept that this behaviour was entirely out of character. You engaged in this behaviour out of concern for your wife and your misunderstanding as to what had transpired leading to Mrs Hall being in the engine bay of the car. You have clearly overreacted to the situation as you saw it. Again, this does not in any way justify your behaviour but it does provide the context for your conduct.
Helen Hall
53Helen Hall, you were born in March 1968 and you are now aged 55. You were born to a loving and close family, were raised in Dargo and you are the fourth generation of your family to do so. Your family were all very well known within the community. Both of your parents have now passed away including more recently your father. You sadly lost your brother in a tragic workplace accident approximately 15 years ago. You have been with your husband, Steven, for many years and together you have had two children, both of whom are adults now. You purchased the Dargo Hotel in 1992 and you have worked tirelessly during the period that you operated the hotel. During the time that you have worked in the hotel, you have made the hotel available to community groups and for local events. Furthermore, the hotel was made available to emergency workers during the Black Summer bushfires in 2019.
54A number of character references have also been tendered on your behalf. Some of those referees have known you since you were a child. You are described by your referees as an intelligent, trustworthy, loyal and kind woman with an enormous generosity of spirit. I accept the fact that you have been a hardworking member of the community. You have had multiple businesses, managed staff, while also demonstrating, it is said, your absolute devotion to your family. You are said to have been a key member of the Dargo community and have served on many community committees, including the Dargo Bush Nursing Centre and various other clubs. According to your referees you are always willing to help people within the community including helping out local firefighters by providing food and washing clothing for them during the bushfires. Your offending is said to be very out of character. You are described as a gentle, caring person who is ashamed of her behaviour.
55There has been a ripple effect within the community. The offending has had a deleterious effect on your reputation and you are described as being utterly sorry, regretful and remorseful. You have had considerable experience in dealing with unruly customers at the hotel and you are said to have handled these situations professionally and without any form of aggression. You too have expressed to others that you are devastated by what has occurred. You have expressed to Corrections that you feel remorse towards your victims. I accept that this offending was very out of character and that by conducting yourself in this manner you have potentially underdone over 30 years or even a lifetime of hard work and contribution to the community. The reputation that you have developed over many years has been jeopardised by your conduct.
56Your counsel submits that you are well aware that this was something of a sliding doors moment that led to this offending. Had you not gone outside to confront Jake Peters you may not have found yourself in the situation in which you became ultimately embroiled. Being intoxicated does not offer an excuse for your behaviour but it does go some way towards explaining why a person with no history of antisocial behaviour, a person who is respected and admired within the community, one who is generally not the sort of person to seek out confrontation, according to your referees, would find herself caught up in offending of this nature.
57I accept that the offending was spontaneous and occurred in response to you experiencing distress at being stuck in the engine bay of a car and the embarrassment associated with Jake Peters filming your humiliating circumstances. Again however, this does not justify your behaviour.
Wayne Traill
58Wayne Traill, you are now aged 49. You were born in Sale and raised in Dargo. You have become a well-known local identity and much respected member of the community. You are currently in a relationship with a lady called Megan. You sadly lost the mother of your child, Luke, when your son was eight years old due to her suffering a heart attack at a young age. When you were younger your father farmed cattle and sheep and later became a successful dingo trapper. Your father also worked as a fencing contractor and was a captain of the Country Fire Authority. Your mother worked around your home on a dairy farm and later ran a walnut farm. You have a twin brother who works as an auto electrician.
59You attended Dargo Primary School and what is now called Bairnsdale Secondary School where you remained until Year 9. You left school to work with your brother as roustabouts in shearing sheds and you later became a sheep shearer for approximately three years. After this you worked with various logging companies as a truck driver and in machine operations. It was during this period that you met your wife who was working on the Peninsula Link project. At the time your wife had three young children from a previous relationship and you would go on to have one child together. You became an accomplished machine operator and driver with scrapers, loaders and graders and came to work on the Peninsula Link project.
60Sometime later you and your wife moved to the east coast of Australia working on road building projects on the Pacific Highway of New South Wales and in Queensland. During this time, you lived in Gladstone, Coffs Harbour,
Byron Bay, Ballina and Port Macquarie. You both then moved back to Melbourne when the Victorian government was seeking experienced supervisors in the level crossing removal project. You were engaged in a project between Caulfield and Dandenong which you have described as one of the most demanding jobs you have ever had. After three years you felt burnt out and for a further period of 12 months you worked casually as a machine operator and truck driver, in your words 'enough to keep things together'. Around this period your mother died and this was a time of significant personal stress.61During the COVID-19 pandemic you and your wife moved back to Dargo. Your wife was able to work mostly online as a safety manager and she later began working with you at the Dargo Hotel. All four of you and your wife's children are now adults. One of your step-sons works in the kitchen with you at the Dargo Hotel, another was in the army and served in Afghanistan for four years. Since returning to civilian life he has not been the same and has attempted suicide. You have helped him secure employment with Peninsula Link and you report that he now seems to be on the right track. He has since moved interstate. Your other children work full time. You too have no prior criminal history.
62As part of your plea a number of character references from friends and colleagues were tendered. They have described you as being caring, considerate and community minded. The offending is described as out of character. You are known to be an upstanding citizen, well respected in the community and relied upon by your family. You have expressed your remorse and regret for your offending to your character referees.
63I accept that this offending is out of character and that similarly you became embroiled in this offending upon learning that Mrs Hall had possibly been injured. I accept that you acted on your feelings of concern for the well‑being and safety of Helen Hall but again this does not excuse your aggressive behaviour.
Sebastian Badey
64Sebastian Badey, you are 45 years of age and you currently work as a chef. You have no prior criminal history. Both of your parents immigrated to Australia from France and they continue to run French restaurants in regional Victoria. After leaving school you completed a cooking apprentice with your father at a French restaurant and worked with him for the first six years of your career at Le Metro in Gardenvale. During the summer you have worked as a chef at
The Servo Lakes Entrance and during winter you work as a head chef at the Mount Hotham Skiing Company. You also run your own catering business that operates at music festivals, catering for staff members. Your most recent event was the Beyond The Valley Festival.65Your skills as a chef are in demand, particularly in high pressure hospitality environments. You aspire to being able to cook for the Australian Border Force on one of the agency's patrol vessels. You have recently sought to complete the necessary qualifications to enable you to perform such a role. You are currently working in Western Australia as a chef at a luxury resort. Your counsel has indicated that this contract will be in existence until 16 May this year and it is then anticipated that you will return back to Victoria.
66You have been engaged in community activities and have done considerable volunteer work including with Youngcare in Beresfield, New South Wales. You have volunteered your time driving a support vehicle and cooking for participants in a reconnaissance trip through the Simpson Desert in preparation for an annual ride for military and law enforcement personnel to raise awareness for mental health.
67A character reference tendered today from Heidi Miller, retired ABF superintendent and friend of your parents, describes you as a man of honesty and integrity. She describes how out of character this conduct is for a person she has usually regarded as being calm and friendly. She notes that you appear to be both remorseful and embarrassed by your involvement in this offending.
68In the case of each of you accused, you have all come before the court having led a law abiding life and with good character. You have each been a hardworking member of the community and you have also contributed to the local community in your own way. Each of you have found yourselves involved in a situation that quickly became out of hand.
69I take into account the good character of each accused and I give this
significant weight. In each case the remarks of Starke J in the case of The Queen v Okutgen (1982) A Crim R 262 are apposite, in which His Honour said:'The fact that the applicant has reached maturity and indeed perhaps one might say middle age without any breach of the law, that he has lived a decent honourable live, that he has raised a family, that he has been in constant work while he could work and has engaged in community activities, particularly in respect of the migrant community. A man of this age when first convicted can, I think, call in aid his character and is entitled to ask the court to rely very strongly indeed on the fact that he is of exemplary character and has been at all times up until the moment of conviction.'
Prospects of rehabilitation
70Each of you have been assessed by Corrections as a low risk of re-offending. Given that each of you have come before the court with no criminal history and have been of good character I am of the view that each of you is unlikely to reoffend. I accept that you are each remorseful, gainfully employed, well supported and thus each of you, I consider, to have excellent prospects of rehabilitation.
Delay
71I take into account that there has been considerable delay between the offending which occurred in April 2019 and sentence. During that four year period each of you have continued to live law abiding lives and you have had the added pressure of the uncertainty of the outcome of those proceedings weighing upon you. I note there has been some delay as a result of there being a contested committal which is the right of each of you to conduct.
Plea of Guilty
72I take into account your plea of guilty. In each case this was not a plea of guilty entered at an early stage. As I have said, the matter proceeded with a contested committal and the victims were required to give evidence. The matter only resolved upon an indication from the court that you would receive a sentence of a particular type and one that did not involve imprisonment. However, the fact that it is not an early plea does not detract from its significance. Your guilty plea demonstrates a willingness to facilitate the course of justice and is of considerable utilitarian value. You have each spared the community and the witnesses the time and expense from having to give evidence at trial.
73Furthermore, given that your plea was entered at a time when the court has faced a considerable backlog of jury trials as a consequence of the pandemic it has an additional utilitarian value. As the Court of Appeal articulated in Worboyes v The Queen [2021] VSCA 169 your plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic's effects. As a result your plea should result in a perceptible amelioration of sentence. You are entitled to a discount in sentence both for the plea of guilty itself and taking into account that this plea of guilty has occurred during the COVID-19 pandemic.
Relevant sentencing factors
74The basic purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In determining an appropriate sentence, I must have regard to these sentencing principles and I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case, including the gravity of the offending, your culpability, the effect on the victims and your personal circumstances.
75The sentences that I must pass in each instance must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated. I am also to have regard to the principles of parsimony and I do so.
76General deterrence is an important sentencing consideration. Other members of the community must understand that entering the home of another with the intention of confronting an individual or committing an offence involving an assault will not be tolerated. Furthermore, the community should understand that to then assault a person within their own home will also attract significant penalty.
77The community should not have to tolerate this sort of violent and antisocial behaviour by people who, for whatever reason, have worked themselves into a state of anger and seek to confront the person that they believe has wronged them in the sanctity of their own home. As I have already indicated, you should be ashamed of your behaviour on this night and I denounce your conduct. Just punishment and community protection must also be given consideration.
78The prosecution have submitted that a term of imprisonment is warranted in this case given the seriousness of the offending and the need for the court to denounce your conduct and to impose a sentence that would deter others from engaging in similar behaviour. However, there are a number of factors that must be considered.
79The starting point is that the law says that a court must always regard imprisonment as a disposition of last resort and may consider, even in cases of serious offences, that a community correction order is a punitive disposition which is capable of addressing all relevant sentencing considerations. As the Court of Appeal noted in Boulton v The Queen [2014] 46 VR 308 a community correction order may be suitable even in cases of relatively serious offences which might previously have attracted a median term of imprisonment.
80Having considered all of the material before me, including the seriousness of the offending, your culpability, the impact this offending has had on the victim, I have come to the conclusion that ultimately the community is best served in this case by you having a sentence that does not involve a term of imprisonment. I have given considerable weight to your previous good character, your community contributions and the strong prospects of rehabilitation that you each have. I am of the view that each of you can contribute to the community whilst remaining part of society by way of unpaid community work.
81In your case, Mr Badey, your counsel submitted that I could consider a fine. In my view the offending is too serious for the imposition of a fine.
82You have each been assessed as suitable for a community correction order. It is accordingly my intention to place each of you on a community correction order as I am of the view that this would adequately address each of the sentencing considerations that I am required to have regard to.
Sentence
83Accordingly, in relation to each of the charges, on Charges 1, 2 and 3 you are each convicted and sentenced to a community correction order. I am going to deal with the order and duration of the order for each of you.
84Helen Hall, you will be placed on a community correction order for a period of three years. You must perform 300 hours of unpaid community work over that three year period.
85Steven Hall, you too will be placed on a community correction order for a period of three years. You too must perform 300 hours of unpaid community work over that three year period.
86Mr Badey, you will be placed on a community correction order for two and a half years. You must perform 200 hours of unpaid community work. The shorter period of the order and fewer number of hours reflects that you played a less active role in the offending than Mr and Mrs Hall. This is also the case with respect to Mr Traill. Mr Badey, given that you are currently interstate I am going to make an order that the community correction order will commence on
18 May 2023 when you return to Victoria. I make this order pursuant to
s 38(2) of the Sentencing Act.87Mr Traill, you will be placed on a community correction order for a period of
two and a half years. You must perform 200 hours of unpaid community work. Again, this reflects that you played a lesser role than Mr and Mrs Hall.88In relation to a community correction order there are a number of core conditions attached to any such order. I am going to read out what those mandatory conditions are. I have already taken you through what the individual conditions will be in terms of the duration and the unpaid community work. At the conclusion of that I need to ask each of the accused whether or not you understand those conditions and whether or not you agree to abide by those conditions.
89There are a number of core conditions as I have mentioned. You must not commit any offence punishable by imprisonment during the operational period. You must comply with any and all obligations or requirements. You must report to and receive visits from Corrections. You must report to your local Community Corrections Centre, which I believe is in Bairnsdale. For you, Mr and Mrs Hall and Mr Traill, that will be within two clear working days from today. In your case, Mr Badey, you must do so by 18 May 2023.
90You must let Community Corrections know within two working days of a change of address or job. You must not leave Victoria without getting permission from Corrections and you must obey all lawful instructions from Corrections. As I have said, these are the mandatory core conditions that attach to any community correction order in addition to the orders that I have made regarding unpaid community work.
91If any of you were to breach any conditions of this order, if you were to decide not to complete the work component, for example, or if you committed further offences, then it is likely that you would be brought back before me on a breach and I would need to resentence you for this offending.
92I make the order for compensation which I note is by consent and that it has been agreed between the parties that each accused will contribute equally to the compensation sought. The total sum being $8,947.23. The compensation relates to the damage sustained to the Peters' residence during the offending.
93Mr and Mrs Hall, I indicate pursuant to s 6AAA of the Sentencing Act that but for your pleas of guilty I would have sentenced you to a term of imprisonment for 18 months with a non-parole of 12 months.
94Mr Badey and Mr Traill, but for your pleas of guilty I would have sentenced you to 14 months' imprisonment with a non-parole period of eight months.
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