Director of Public Prosecutions v Baensch

[2021] VCC 225

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01304

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN BAENSCH

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JUDGE:	HANNEBERY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2021
DATE OF SENTENCE:	9 March 2021
CASE MAY BE CITED AS:	DPP v Baensch
MEDIUM NEUTRAL CITATION:	[2021] VCC 225

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                15 months' imprisonment, non-parole period of 9 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Goetz	Solicitor for the Office of Public Prosecutions
For the Accused	Ms J. Warren	Geelong Lawyers, Barristers & Solicitors

HIS HONOUR:

1Shaun Baensch, you have pleaded guilty to a single charge of armed robbery pursuant to s 75A of the Crimes Act 1958.  The maximum penalty for that charge is 25 years' imprisonment.

Circumstances of Offending

2The circumstances of the offending were set out in the Summary of Prosecution Opening (Exhibit P1).  Those facts as stated were not the subject of challenge.  I will, however, outline the offending now in a somewhat truncated form.

3

The victim in this matter was a 31 year old man previously unknown to you or your

co-accused.  At 6.45 pm on Saturday 2 May 2020 the victim sent Danielle Misiti, then the girlfriend of your co-accused Christopher Tolj, a message through an online dating application.  The message suggested that they meet up for a 'puff session'.

4Tolj used Misiti's telephone to respond to that message at 2.53 am on Sunday 3 May 2020.  Tolj pretended to be Misiti and told the victim that they ought to meet up.  The victim responded to this message with a further message that included photographs of methylamphetamine and his penis.  Tolj continued to engage with the victim and arranged a meeting at the victim's residence in Ocean Grove.

5You, Tolj, Misiti and an uncharged second female then travelled from Geelong to Ocean Grove and arranged to meet the victim in the carpark of the Ocean Grove Hotel.  All four of you went in Tolj's vehicle to a location in the vicinity of  the carpark.  Once there, you and Tolj got out of the car, and Misiti and the uncharged female got into the front seats.

6Once out of the car, you armed yourself with a garden stake from the ground near the vehicle.  Tolj removed a long-arm firearm from the boot of the car.

7Misiti drove with the uncharged female in the front passenger seat to the carpark and met the victim, who directed them to the location of his residence.  Whilst talking to the victim, Misiti executed a 'U' turn in the carpark to face the car towards the road.  At this time the victim heard yelling voices behind him.

8He turned around to see you and Tolj approaching.  Tolj pointed the firearm at the victim's head and said, 'Do you like creeping chicks out online do ya? I'll fucking shoot ya, do you think I won't give a fuck.'

9Tolj said to him, 'What have you got in your house that we can take?'  The victim was walked to his residence approximately 200 metres away.  Tolj and the victim entered the premises and you remained outside.  Tolj searched the premises and continued to point the firearm at the victim.

10Tolj left the premises with a ten dollar note, a bag of white crystalline substance believed to be methylamphetamine, and a red Apple iPhone 8.  The money and the mobile phone are particularised in the indictment as belonging to the victim (Charge 1 – Armed Robbery).

11You and Tolj then returned to the car and went to Misiti's premises in Grovedale.  You threw the victim's telephone out of the window of the car on the way there.

12You were arrested on 13 May 2020 and when interviewed by police made full and frank admissions and subsequently signed a statement attesting to the truth of that interview.

Effect on the Victim

13The victim has been afforded the opportunity to provide a Victim Impact Statement but has declined that offer.

Gravity of Offending

14The offence of Armed Robbery is inherently serious.  This is evident from the maximum penalty of 25 years' imprisonment.  There are a number of features of the offending that are relevant to an assessment of its gravity in this instance and your conduct specifically.

15The offence involved the use of a firearm.  The weapon was not discharged at any point during this incident, and there is no evidence as to whether the weapon was loaded.  As such I do not sentence you on the basis that the involvement of the weapon in this robbery carried some inherent risk to life.  I can, however, conclude that  the firearm was specifically intended to make the victim fear that his life was in danger.

16

I cannot, however, conclude that you were aware of the presence of the firearm, or of any plan by the co-accused to arm himself with the firearm, at any point prior to the

co-accused taking it out of the boot of the car.

17Neither can I conclude that you were aware that the firearm was intended to be used to rob the victim up until the point that the co-accused Tolj uttered the words of demand to the victim in the carpark.  What is clear though, is that you did not cease engagement with the co-accused once that firearm was produced.

18It is also relevant that you were aware that the purpose of going to Ocean Grove to meet the victim was to scare him because of unhappiness that he had sent the penis picture to Misiti's telephone.

19By arming yourself with a garden stake immediately upon alighting the car, you showed that you were prepared to brandish a weapon yourself to scare the victim.  Once you became aware of Tolj’s possession of a firearm at the time he removed it from the car, you were prepared to participate with the co-accused in the use of that firearm to scare the victim.

20Somewhat significantly, the confrontation did not occur immediately upon your arrival at Ocean Grove.  Rather, having armed yourself with the stake and becoming aware that Tolj had a firearm, you came to approach the victim from behind after Misiti had performed the 'U' turn in the carpark.  There was time for you to reconsider whether to stay involved in the event you now knew involved a firearm, and you chose not to.

21Whilst I cannot conclude that there was any premeditation on your part in the decision to rob the victim, you clearly knew of a plan to scare him.  You were willing both to arm yourself with a stake and to participate with Tolj in an activity you knew was going to involve the use of a firearm to scare the victim.

22

Neither can it be said that your participation in the robbery itself was fleeting.  At no time during the period that followed the initial demand for property were you other than a fully complicit participant.  With Tolj, you walked an unarmed and outnumbered victim

200 metres to his premises.  You then remained outside knowing Tolj was inside with the victim and armed with a firearm whilst attempting to find property to steal.

23You then left in the same vehicle as Tolj with the two females and threw the victim's telephone out of the car.

24All in all, this was a serious example of the offence of armed robbery and your culpability for the offence, whilst slightly lesser than that of Tolj, was significant.

25The nature of the offending means that sentencing purposes of both general deterrence and denunciation of the conduct must have significant weight in the sentencing process.

Personal circumstances

26You are now 26 years old.  You were 25 years old at the time of the offence.  Whilst you are now too old to be sentences as a 'youthful offender', you are still a young man.  This in combination with what has been put before the court about your relative level of maturity at the time of the offending has some relevance in assessing your prospects of rehabilitation.

27You were born and raised in Geelong and have no siblings.  Your mother suffers Muscular Dystrophy and requires assistance with daily activities.  Your father worked as a cleaner and maintenance worker at various schools and tertiary institutions.  He is now retired from that role but is the full-time carer for your mother.  I am instructed that you regularly fill this role as your mother's carer yourself when required.

28You have been in a relationship with Stephanie Dunlop for over two years.

29By way of education, you attended Belmont High School and completed Year 10 in 2010, then did Year 11 VCAL through Diversitat, Geelong, in 2011.

30After finishing school you commenced work as a painter.  Whilst you have not done a formal apprenticeship, you have worked with four different employers in this field, and you have also undertaken work as an independent contractor (Exhibit D9).  I note that you have an open offer of employment with Kazem Kafikhani, the owner operator of Jim's Painting in Geelong.  A reference confirming this offer and attesting to your work ethic and his positive view of your personal characteristics has been tendered on the plea (Exhibit D5).

31Similar positive sentiments on those topics can be found in the reference from your previous employer Darren Pedersen (Exhibit D6).  I accept without reservation the observations of both those referees.

32I am also told something of your history in relation to the use of drugs.  This carries some significance in this case given that you have attested that your involvement in this matter was preceded by drug taking that evening.

33You began using methylamphetamines at around age 16.  Your use of drugs seems to have been ongoing but somewhat variable since that time.  You admit through your counsel to having been a regular user of GHB, ecstasy, cocaine, LSD, Valium and Seroquel in addition to methylamphetamine.  I also note that you have a prior matter for the possession of GHB which is consistent with the history provided.

34There was some discussion as to whether your ongoing drug use showed that you had a physiological addiction as you have stated in your letter to the court (Exhibit D8).  In submissions on the plea your counsel puts that you have 'used to varying degrees up until the period of the offending'.  Ms White also states that your 'criminal history is directly tied to drug use' and that the current offending occurred whilst under the influence of 'ICE and GBH'.  It was not put, however, that the offending was motivated by a need to finance a drug habit that was otherwise beyond your means.

35I do accept that your use of drugs has contributed to the poor decision making revealed by your involvement in this entire enterprise.  Insofar as that has relevance to sentencing, I am prepared to accept that if you can remain drug free, as you have instructed Ms Lechner you have been since the commission of this offence, that you are less probable to re-offend in a similar way, or indeed any way.

36

I have had the benefit of a comprehensive psychological report prepared by

Ms Carla Lechner (Exhibit D4).  Whilst the report does not reveal any underlying psychiatric or psychological disorder relevant to sentence, she does conclude that you are 'psychologically immature and very easily influenced especially in group situations'.  She also notes that you present with 'symptoms of methylamphetamine and GHB abuse'. These matters provide some valuable insight which I have regard to in assessing your actions since the offence and what it shows as to your prospects of rehabilitation as they are assessed at this time.

Matters in mitigation

37There are other matters in mitigation of sentence that I take into account.

38You have pleaded guilty at the earliest possible opportunity. You are entitled to have that fact taken into account in your favour and I do so.

39That plea was made following an interview containing full and frank admissions and a statement attesting to the truth of those matters.  There is significant utilitarian value in your plea, which is heightened at a time of pandemic restrictions and consequent listing challenges for the courts.  Even if the choices of your co-accused mean that a committal and trial do proceed in relation to this matter, your plea still has the effect of saving the time and resources that might otherwise have been added to those proceedings had you also contested the matter.

40I accept that your plea reveals that you have genuine remorse for your involvement in this offence.  This is evident also from your admissions and direct expressions of remorse in the interview, similar statements to Ms Lechner, and most particularly through your undertaking to give evidence.  I have also had regard for the fact that you personally have expressed both remorse, empathy for others, and a level of insight into your offending in the letter you provided to the court.

41There is reason for genuine, but not unbridled, optimism about your prospects of rehabilitation.  As I have already noted, you are no longer a youthful offender but are still a young man, and I accept that your decision to engage in this offending was reflective of a level of immaturity.  I place significant weight in assessing your prospects of rehabilitation on what has occurred subsequent to the offending.  You made full and frank admissions in your interview.  I have heard nothing from the prosecution to suggest that those admissions were unreliable or in some way crafted to minimise your true involvement.  This is consistent with the prosecution's apparently unqualified reliance upon your account in prosecuting their case against Mr Tolj.

42Your choice to make a statement, then undertake to give evidence, is consistent with a desire for you to break ties with the co-accused and perhaps more generally the lifestyle that led you to participation in this offence.  I also note that you have ceased drug use since this offence, have made plans to engage in drug counselling, and that no subsequent matters have arisen, nor do you have any pending matters.

43You are both capable and well regarded as an employee.  You have work awaiting once this matter is no longer an impediment.

44You are also fortunate to have supportive parents and remain close to them.  Your father John Baensch provided a letter for the court confirming this ongoing support and providing some further insight into your past and current circumstances.

45Overall, there are a number of factors suggesting that rehabilitation is both in prospect and achievable for you.

46There are, however, some matters that somewhat temper that optimism.  By your own admission, drug use has been a part of your life now for more than a decade.  This has been a contributing factor to the prior history that includes drug possession, driving offences, and dishonesty.  You describe being 'at the peak of a debilitating drug addiction' at the time of the offence committed in May 2020.  Your abstinence since the offending is commendable but has thus far been for only a period of months.  It is certainly an encouraging start to your rehabilitation, but necessarily some caution is warranted.

47I am also mindful of your prior history regarding the breach of court orders, in particular Community Corrections Orders.

48For all these reasons I would describe your prospects of rehabilitation as reasonable at this stage, and I have regard for that conclusion in formulating this sentence.

49I also conclude that some consideration in sentencing must be placed on specifically deterring you, though your actions subsequent to the offending have significantly diminished the weight that would otherwise have been given to that purpose of sentencing.

50

I have already mentioned the nature of your co-operation with the police and then the prosecution.  This co-operation involved you making voluntary disclosures to police in your interview and in a subsequent statement.  Those admissions and that statement were provided before any negotiation about your legal position had been contemplated by you.  You have now undertaken to give evidence in accordance with that statement in the prosecution of Mr Tolj if required.  I am satisfied that your motivation for this

co-operation was one of genuine remorse.

51

Moreover, I conclude that your co-operation is of significant value to the prosecution. Whilst it is not the case that the charges against Mr Tolj could not proceed but for your promise to give evidence, it undoubtedly strengthens the prosecution case.  Your statement provides important corroboration for key aspects of the victim's account.  

I note that but for your statement, the prosecution case about the presence of the firearm would be wholly dependent on the victim's evidence, as the weapon has not been located.  I also accept your counsel's submissions about the potential vulnerability of the victim to attacks upon his credibility and reliability arising from the broader circumstances in which the offence occurred.  Your evidence is a highly valuable part of the prosecution case against Mr Tolj.

52I also accept that in undertaking to give evidence you reasonably perceive that you are at risk of retributive violence.  Whilst making an assessment as to the precise degree of risk to which you are exposing yourself is not possible, I accept that the subjective anxiety this choice causes you is significant.  I regard this concern for your personal safety as something that makes imprisonment more burdensome for you than for someone without these concerns.

53I do not have any specific evidence about whether your status as a prosecution witness will adversely impact upon the conditions you may face in prison.  As such I cannot conclude that this is an additional matter that will make imprisonment more burdensome for you, beyond the subjective anxiety I have already noted.

54I have had regard for the fact that you are being sentenced at a time when the pandemic has made imprisonment more onerous than it would otherwise have been for the indeterminate future.  The reasons include but are not limited to the current restrictions to personal visits and the understandable concern that a person might reasonably feel being in a prison environment at a time of pandemic.

Operation of s 5(2)(H) Sentencing Act 1991

55An offence against s 75A of the Crimes Act 1958 is designated as a 'Category 2’ offence under the Sentencing Act 1991 in certain circumstances, one of which is where the offence is committed in company with one or more persons or where the offender has with him/her a firearm at the time of the offence.  The circumstances of this case thus mean that this is a 'Category 2' offence.

56Where an offence is designated as 'Category 2', s 5(2H) of the Sentencing Act 1991 provides that a court must impose a custodial sentence unless one of the special exceptions set out in paragraphs (a) – (e) apply.  One of these exceptions is paragraph (a), which provides that 'the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence.'

57

In your interview with police on 13 May 2020 you made admissions about your own involvement in this offence and the identity and participation of a co-accused

(Exhibit D1). You then made a statement acknowledging the contents of that interview to be true and correct (Exhibit D2). At the commencement of your plea on this charge you provided a sworn undertaking to give evidence in accordance with that statement if and when requested by the prosecution in proceedings against the co-accused Christopher Tolj. It is conceded by the Crown that your undertaking to give evidence enlivens the exception set out at s 5(2H)(a), and as such the compulsion to imprison imposed by s 5(2H) is not a matter I consider myself bound by in sentencing today.

58Further, I note for the record that pursuant to s 5(2AB) of the Sentencing Act1991 that the sentence imposed today is less severe than I would otherwise have imposed because of your undertaking to give evidence as required in the prosecution of Mr Tolj's matters.

59

You have admitted to a prior criminal history, which on its face seems quite voluminous but on analysis reveals that you have never been convicted for an offence of violence before, nor have you ever been sentenced to a term of imprisonment.  Of most relevance for present purposes are the dishonesty offences, including burglary, theft,

31 charges of obtaining property by deception, and handling stolen goods for which you were given a Community Correction Order from Geelong Magistrates' Court in 2014.  That matter appears to have returned to court on five occasions for breaches and subsequent variations of that CCO.  Beyond that matter, I note you have a prior conviction for the possession of GBH, which has some relevance to the matters put on your behalf on the plea, especially given your admission to the use of drugs prior to the commission of this offence.

Submissions on disposition

60I have noted the submissions of counsel in relation to what is an appropriate sentence in this case.  Your legal representatives provided very comprehensive written submissions (Exhibit D3) which were supplemented by oral argument.  The prosecution submissions on sentence were done orally in the course of the plea hearing.

61The prosecution have submitted that the purposes of sentencing can only be achieved by a sentence that involves the setting of a head sentence and a non-parole period.  In response to my direct question in the course of the plea hearing, the prosecution contended that neither a Community Corrections Order alone nor one imposed in combination with a term of imprisonment were reasonably open in the circumstances of the case.

62Your counsel, Ms Warren, submitted that a Community Corrections Order is both open and appropriate.  She provided examples of two recent County Court sentences for armed robbery in which such orders, without any imprisonment, were imposed.  It is of course always difficult to compare cases with different facts and Mr Goetz made what I regard as accurate observations as to the pertinent distinctions between the cases provided and the one currently before the court.  It should also be noted that in every case there is a range of sentencing outcomes that are within the legal discretion of the court to impose, so it does not necessarily follow that even similar cases necessarily will result in identical outcomes.

63I have had careful regard for those submissions as well as what can be gleaned about current sentencing practices for armed robbery from recent cases in this court and in the Court of Appeal.

Sentence

64Taking all of these matters into account as best I can, I have determined that I cannot accede to Ms Warren's submissions on sentence.  In weighing all the purposes of sentence that are applicable in this case, a term of imprisonment must be imposed.  As well as the matters personal to you, the nature of the offence means that general deterrence has considerable importance in sentencing.  I must also impose a sentence that adequately expresses the community's denunciation of the offending and imposes a punishment that is just in all the circumstances.  The period of imprisonment imposed is, however, much reduced from what might otherwise be the case because of the significant matters in mitigation, most especially your co-operation with the prosecution.  I have also had regard for your prospects of rehabilitation in setting both the head sentence and the non-parole period.

65Mr Baensch, on the charge of armed robbery I convict you and sentence you to a term of 15 months' imprisonment and I set a period of 9 months before you are eligible for parole.

66Pursuant to s 18(4) Sentencing Act 1991, I declare that you have spent one day in custody by way of pre-sentence detention and I direct that that be entered into the records of the court.

67Whilst it is highly artificial in the circumstances of this case, especially having regard to the undertaking to give evidence, I declare that pursuant to s 6AAA of the Sentencing Act1991 that but for your plea I would have imposed a sentence of 20 months' imprisonment with a non-parole period of 14 months.

68Thank you, is there anything further.

69MR GOETZ:  May it please the court.

70HIS HONOUR:  Thank you.  Adjourn the court until 9.30 tomorrow.

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