Director of Public Prosecutions v Baensch

[2020] VCC 746

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 15-02267

DIRECTOR OF PUBLIC PROSECUTIONS

v

RHYS BAENSCH

---

JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2020
DATE OF SENTENCE:	28 May 2020
CASE MAY BE CITED AS:	DPP v Baensch
MEDIUM NEUTRAL CITATION:	[2020] VCC 746

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes
For the Accused	Mr J. Barrera

HIS HONOUR: 

1Rhys Baensch, on indictment K12529561, you are to be sentenced for one charge of armed robbery.  This offence occurred on 24 September 2019. 
The maximum sentence for armed robbery is 25 years' imprisonment.

2You are also to be dealt with for breach of a community corrections order made in June 2016.  You will be resentenced for those offences, which were two charges of armed robbery.  The offending occurred in late September and early October 2015.

3You pleaded guilty to indictment K12529561 before me on 11 May. 
When interviewed by police on 27 September 2019, effectively, you exercised your right to silence.  At committal in February 2020, you pleaded guilty after a hand-up brief procedure.  You admit the breach of the 2016 community corrections order. 

4You receive the benefit of your plea of guilty, that admission of breach and the cooperation.

5That brief history of the proceedings shows your plea admission, and that cooperation had facilitated the interests of justice.  Your plea is an expression of remorse and an acceptance of responsibility. 

6At the plea and breach hearings which ran on 11 May, Ms Holmes for the Crown tendered a written prosecution summary on the more recent indictment, and related them at the victim impact statement of Kamahl Shahi.

7There has also been filed documents and materials related to the breach matter.  That includes a chronology of events setting out, amongst other things, contravention proceedings, variation and other orders or court hearings in respect of the community corrections order made on 14 June 2016 by Judge Maidment of this court.  It also includes Judge Maidment's reasons for sentence on that day, and the breach report dated 25 October 2019 by Alyce Morton of Community Correctional Services.

8Mr Barrera, for you, tendered various medical and like materials which include psychological, neuropsychological and psychiatric reports dated from March 2013 to April 2020.  They are tendered as Exhibit 1.  Both counsel provided written outlines of submissions.

9The circumstances of your offending on 24 September 2019 are set out in the tendered prosecution opening, which is Exhibit A.  My own summary may be short.

10On that date, at about 7.40 pm, you entered the 7-Eleven convenience store on Bellarine Highway, Newcombe in Geelong.  Armed with a knife, you robbed the attendant, Kamahl Shahi.  You swung the knife in the direction of his face and demanded money.  He moved to a rear room and activated the alarm system.  Using the knife, you disconnected the cash register and then left with it. 
There was no money in the register.  Comparison of CCTV footage with images of you in the Victoria Police LEAP database lead to your arrest on
27 September.

11In his victim impact statement, Kamahl Shahi describes sleeping problems for a time, feelings of fear and suspicion of others.  He states that decision-making is affected, thereby reducing performance at work.  He has been helped by the support of his family and friends.  This victim impact must be taken into account in my sentence of you.

12On 14 June 2016, Judge Maidment sentenced you for two charges of armed robbery to a total sentence of 23 months' imprisonment, and upon release, a community corrections order of three years' duration.  There were conditions of supervision and compliance with a Justice Plan under Disability Client Services of the Department of Health and Human Services.

13Because of the fact of two indictments and the inadequacy of the County Court electronic recording system, it was necessary to make two concurrent community corrections orders.  It is really one.

14You committed those two armed robberies on 13 September and 1 October 2015.  They were, similar to your 2019 offence, upon convenience stores in Geelong.  Your weapon was a knife.  You stole $1,300 cash from one store and, similarly less successful as in 2019, only paperwork from the other. 
You pleaded guilty to both.  There was a prior sentence for armed robbery in March 2013.

15Since June 2016, Judge Maidment has retired and the management of his order and necessary proceedings arising mainly out of your breaches of it has ultimately fallen to me.  The history is set out in the filed chronology.  Judge Maidment in his reasons stated a high risk of your institutionalisation, then, at only 24.  That has come to be.

16In short, including the prior 2013 sentence, there have been the following: 
(1).  That sentence of three years with a minimum term of 18 months - as stated by Judge Maidment, you were not released on parole but served the whole term upon release, unsupported.

17(2).   4 October 2018 sentence of 187 days with pre-sentence detention of that time served at the Magistrates' Court for offending mainly of dishonesty.

18(3).  17 September 2019 sentence of 90 days with pre-sentence detention of that time served at the Magistrates' Court for the offence of robbery.

19There have been breach proceedings and variation of the original order. 
On 19 April 2019, I varied the order to include a judicial monitoring condition. 
I shall return to this.  The duration of the order had earlier been varied to two years.

20You have spent  very little time out of prison custody since March 2013.

21You are now aged 27 and have suffered a badly disadvantaged and damaging early life.  Your parents had mental health problems and were drug users,
your father serving a number of sentences of imprisonment.  Child Protection was involved by the age of four.  Accommodation moved without stability between foster care and the care of your grandmother, who has been over time your main support.  You were sexually abused by a member of the extended family.

22You used alcohol at eight, cannabis at 10, heroin and methylamphetamine at 14.  Drug abuse has continued into your adulthood.  Your first appearance and sentence in the Children's Court was in February 2007 at 14.  Your first sentence to Youth Justice Detention was in June 2008, aged 15. 

23Over time, there are various diagnoses related to your mental health and cognitive deficits.  In particular are those of acquired brain injury associated with heroin overdose.  There was also a skull fracture a year later, but also, intellectual disability in 2010. 

24You are a client of Disability Client Services under the Department of Health and Human Services.  There are also diagnoses of attention-deficit hyperactivity disorder, depression and possible schizophrenia. 

25You left school after failing to complete Year 7 and have no employment history.  More recent assessments suggest less certainty about the diagnoses of cognitive or intellectual disability, or perhaps better put, its causes.  I refer to the 2020 neuropsychological assessment of Dr Linda Borg, who, for example, had concerns about motivation to best effort in her testing.

26I find, in accordance with the preponderance of expert opinion, that you suffer significant cognitive deficits and disability.  It seems to me likely that precise diagnosis and finding of cause psychiatrically and neuropsychologically is more difficult because of the effects of the damaged, chaotic and destructive nature of your life thus far. 

27You should be sentenced on the basis of significant disability and mental health conditions, and also, the impact of your highly deprived early life - principles stated in R v Bugmy apply.

28As to Verdins principles, it cannot be said, for example, that moral culpability is very much reduced because of your disability.  However, it cannot be ignored that your disabilities are part of a range of highly detrimental factors in your developing and present life, many not of your doing, which have contributed to your offending lifestyle and its consequences for you.

29You have, for only 27 years of age, a very substantial criminal record including offending the same as this before me.  It is estimated that you have spent over seven-and-a-half years of the last nine in custody.  I have set out earlier sentences since 2013.

30There have been a number of failures over the course of the 2016 community corrections order, mainly reoffending.  There have been attempts to stabilise your life and move you towards rehabilitation by various agencies, including Community Correctional Services and Disability Client Services, under the Justice Plan set in place in 2016.

31In June 2019, you were placed on a community treatment order to treat your mental health conditions.  You offended and were remanded on 19 June. 
There is no choice but to resentence you for these 2015 armed robberies, together with this recent September 2019 offence. 

32You were more recently released from prison on 17 September 2019. 
You committed the armed robbery on this indictment seven days later.  I was told by Mr Barrera that you had no stable accommodation and that you wanted to return to custody.  At 27, there is a high risk if not the fact of your institutionalisation.

33I must sentence in accordance with the sentencing considerations and purposes of moral culpability, deterrence  that is, both general and specific deterrence - denunciation, proportionate punishment, and in your case now, community protection.

34On the basis of these, a sentence of considerable length is called for.  However, there are also relevant moderating factors.  These include the following:

35(1).   Your plea of guilty and cooperation;

36(2).  Your personal history and circumstances - this includes consideration,
as I have described, of your disabilities, mental health and the impact of early life deprivation;

37(3).    The additional hardship of custody caused by the present COVID-19 health situation, as submitted by Mr Barrera.  I bear in mind higher courts' statements about, for example, increased anxiety, restriction of movement, access to family and other supports, and reduction of programs usually available;

38(4).  As stated, the risk of your institutionalisation is high.  Prospects for your rehabilitation cannot be seen as good.  At 27, rehabilitation should not be utterly discounted.  You have the support of your grandmother when you leave prison;

39(5).   This is a case in which the principle of totality plays a significant role.  I must factor into my sentence what custody you have served since 2016 since the 2016 community corrections order, and also what compliance, albeit very limited, there has been in respect of that order.  Related to this is that I must declare what is here a long period of pre-sentence detention applicable to the total sentence.

40Finally, bearing in mind your personal history and circumstances, I see your case as one in which the discretion of mercy should be applied.  This and all of these moderating factors must be balanced against the adverse matters and sentencing purposes I have earlier raised.

41I sentence you as follows.

42On this indictment, .K12529561, on one charge of armed robbery, you are sentenced to four years' imprisonment.

43As to the breach proceeding on the community correction orders imposed on 14 June 2016, I cancel both community corrections orders.  I impose no penalty for the breach or breaches.  I set aside Judge Maidment's sentences. 
I resentence as follows.

44On indictment F13388299, one charge of armed robbery, you are sentenced to three years' imprisonment. 

45HIS HONOUR:  On the other indictment before Judge Maidment, on one charge of armed robbery, you are sentenced to three years' imprisonment.

46I direct that six months of each of these sentences  be cumulative upon the sentence of four years, and upon each other. 

47That is a total effective sentence of five years' imprisonment. 

48I set a minimum term of three-and-a-half years before eligibility for parole.

49I declare pre-sentence detention of 959 days in respect of that total sentence of five years with a three-and-a-half-year minimum.

50And had you not pleaded guilty, I would have imposed, in relation to the recent indictment, that is the one before me, a head sentence or a sentence of six years. 

51Ms Holmes, I think that is my only obligation.  That is the only thing I could do sensibly, I think. 

52MS HOLMES:  I think that's right, Your Honour.  And look, whether it's technically correct or not, if both parties are consenting to Your Honour having dealt with it that way, then I can't see that it will arise as an issue.

53HIS HONOUR:  All right.  It is very often a difficult provision to apply sensibly bearing in mind the fact of the plea and other matters that flow from it.  Is there anything else I need to order?

54HIS HONOUR:  Yes, that was under 6AAA:  had you not pleaded guilty to this indictment, I would have imposed a sentence of six years.  It would not astonish if a forensic sample had not been taken from Mr Baensch. 

55MS HOLMES:  I agree.  It's been taken.

56HIS HONOUR:  So I do not make any other orders.  Those are my reasons for sentence.

57I seek to make this comment:  parole release is a matter for the Adult Parole Board and there are no doubt serious problems and considerations related to that.  However, both Judge Maidment and myself have remarked upon the lack of support existing for Rhys Baensch when he committed these offences. 
It seems to me that his rehabilitation from an entrenched criminal life and the interests of the community is heavily dependent upon support and supervision upon release.  I repeat, I do not seek to understate the problems.

58MS HOLMES:  If Your Honour pleases.,

59HIS HONOUR:  So I now stand this matter down and I will await the next matter before me this morning.  Thank you both for your assessment, and you will be turned off.

60MS HOLMES:  Thank you, Your Honour. 

‑ ‑ ‑