Director of Public Prosecutions v Baensch

[2016] VCC 819

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00382
CR 15-02267

DIRECTOR OF PUBLIC PROSECUTIONS

v

REECE TAYLOR BAENSCH

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 June 2016
CASE MAY BE CITED AS:	DPP v BAENSCH
MEDIUM NEUTRAL CITATION:	[2016] VCC 819

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

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms M. A. Mahady
For the Accused	Ms M. Tittensor

HIS HONOUR:

1Reece Taylor Baensch, you have pleaded guilty to two indictments.  The first in time charged you with armed robbery on 1 October of 2015, and possessing a drug of dependence, namely 3-4 Methylenedioxy-N-Methylamphetamine. The second indictment charges you with an offence of armed robbery occurring on 30 September 2015.

2In the first of the armed robberies, that is the first in time, you committed the offence at the Apco Service Station on the corner Portarlington Highway and Wilsons Road, Newcomb. You threatened the attendant Mr Char with a butcher's knife and you stole $1,300 in banknotes and cigarettes valued at $300.  You also demanded Mr Char's car keys which he handed over fearing for his safety.

3On the other armed robbery committed on 1 October, you committed the offence at the 7-Eleven store situated at Sydney Parade in Ryrie Street, Geelong.  Again, you threatened the store attendant and the owner with a knife and demanded money.  On this occasion, you stole property namely an iPad and paperwork, although you were clearly after money.

4You have admitted prior convictions and court appearances, including conviction on 27 March of 2013, for armed robbery for which you were sentenced in this court to a term of imprisonment of three years, with a non-parole period of 18 months.  It seems that you did not get parole from that sentence and remained in custody until 17 September of last year.  In other words, you were at large for less than two weeks before committing these serious offences of armed robbery.

5The prosecution has also tendered and relied upon victim impact statements from the offence committed at the 7-Eleven on 1 October and I take those into account.  Naturally, in all cases of armed robbery, the victims suffer ongoing psychological effects, even though physical injury was not inflicted.

6The maximum term of imprisonment for armed robbery is 25 years imprisonment.  Turning to matters personal to you, your counsel provided me with helpful written outline of submissions in which she referred to previous psychiatric, psychological reports upon you and set out a deal of history about your background, which shows that you have had a very difficult start to life indeed.  You were born to parents who were both heroin addicts and you began to misuse drugs from an early age, certainly by the age of 12 and you have been a drug misuser on and off since that time.

7I need not go into much detail about your history, it is an appallingly bad start to life and one which, naturally, failed to give you the kind of structure that would enable you to grow up in a nurturing environment and one which would equip you to deal with adolescence and adulthood and transfer into the workforce.

8As your counsel pointed out, you have been in and out of custody and/or care for many years and it is a sad fact that over the last five or six years, you have spent something in the order of one month at large. You have not yet turned 24 years of age.

9To say that the risks of institutionalisation are enormous is an understatement, to say that the probability is that you have become very significantly institutionalised, to say that you are ill-equipped at present to deal with life in the community, to say that you are anything other than a very significant risk of reoffending, in all those circumstances is to understate the situation.

10It leaves the court in a position where the balancing exercise between imposing just punishment, denouncing conduct of this kind, deterring others and deterring you has to be balanced against the long term community interests and that is very substantially linked it seems to me, to your rehabilitation.  I cannot say that your prospects of rehabilitation are other than poor at the present time.  You have not demonstrated the capacity to stand on your own two feet and to lead a law abiding life.  But you have not had much chance either.

11I do not know the reasons why it was that you did not get parole when you were sentenced by this court in 2013, but the unfortunate result of that is that you were released into the community as a 23 year old with no support structures.  Your father died during the period that you were serving your sentence.  He was the closer of your two parents to you and you had little prospect of finding adequate support structures when you came out.

12For a young man of your age, with your background, that was a very unfortunate consequence, and one which almost inevitably was going to lead to you committing further offences. Indeed that proved to be the result.

13The prosecution has I think quite rightly pointed to the seriousness of these offences, and to the fact that you have already served a sentence for a similar offence.  The need to protect the community and the need to deter others from committing offences of this kind upon soft targets who are shops, retail outlets that are manned through 24 hours a day and with workers, attendants who are particularly vulnerable to attack from persons like yourself armed with a knife.

14That said, the question arises as to what is going to be best for the community in the long term.  Community protection would be served by imposing a substantial term of imprisonment for the period that you are in custody.  The court has the duty to impose adequate sentences.  On the other hand, the court has a duty also to look to the future and to long term community protection.

15It seems to me that if you are as a 23 year old, almost 24 year old to be rehabilitated, then something has to be done now.  You have not had the benefits of a community correction order or other support within the community to show your capacity to respond to that kind of assistance.

16For those reasons, your counsel submitted that I should consider a combined order, a term of imprisonment, coupled with a community correction order and having regard to the previous history as set out in the reports to which I was referred, it was submitted that I should have you assessed as being suitable for a justice plan. I acceded to that application and reports have now been provided.

17They show that you are eligible for Disability Services and that a justice plan has been compiled.  The justice plan sets out a case management program which is aimed at addressing your intellectual disabilities, your drug and alcohol and mental health issues and aimed at providing you with some training and making you fit for employment in the community.  You have not had the opportunity of demonstrating capacity to do that since you were 17, other than the short periods during which you have been in the community since then. 

18You pleaded guilty to these offences, that is to your credit. You pleaded guilty at the earliest reasonable opportunity and I am bound to reduce your sentence accordingly.  There is no doubt that a term of imprisonment is the only sentence that I can impose, one involving a term of immediate imprisonment, but it does seem to me that something has to be done to promote your long term rehabilitation at this stage.  Not just for your benefit, but for the benefit of the community in the future.  That time it seems to me has to be now.

19In all those circumstances, I am ready to pass sentence upon you.  Would you please stand?  On the first indictment, that is F13388299, on the charge of armed robbery, I convict you and sentence you to imprisonment for a period of 23 months.  On Charge 2 of possessing a drug of dependence, I convict you and discharge you.

20In relation to the indictment G10219019, on the charge of armed robbery, I convict you and sentence you to imprisonment for a period of 23 months.  Those sentences will run concurrently and subject to your consent, I order that you be the subject of a community correction order for a period of three years, on conditions that you be the subject of the justice plan that has been provided to the court and under the supervision of the Department of Corrections during that period of three years.

21The order would commence upon your release from custody.  It would require you to comply with the terms of the order.  You would have to obey lawful directions in relation to your attendance at appointments, your attendance at counselling, your attendance at medical appointments and the like, and otherwise to comply with the terms of the order.

22If you breach the order, in any way, then you could be liable for up to three months imprisonment for merely breaching the order.  If you breach the order by committing a further offence punishable by imprisonment during the period of the order, then you will be up for three months for that.  You will be up for the punishment that you would be receiving for the offences that put you in breach, but you would also, for any of the breaches, be liable to be brought back here and resentenced for these matters.

23Now you leave the court with no alternative other than to impose a substantial term of imprisonment.  So it is necessary for you to comply with the terms of the order ‑ ‑ ‑

24OFFENDER:  Thank you, Your Honour.

25HIS HONOUR:  ‑ ‑ ‑ and comply strictly.  Now I cannot put you on that order unless you are willing to comply with it. 

26OFFENDER:  I do want to comply.

27HIS HONOUR:  Are you willing to comply with it?

28OFFENDER:  Yes.

29HIS HONOUR:  All right.  Well I will make the order in those terms.  That will be drawn up and you will be asked to sign that in a few moments.  Now the pre-sentence detention was what I am sorry?

30MS MAHADY:  Two hundred and fifty-seven days.

31HIS HONOUR:  Two hundred and fifty-seven days.  I declare 257 days pre-sentence detention as time be reckoned as served on the sentence of imprisonment that I have imposed and deducted administratively.  I order that that fact be noted in the records of the court.  I make the disposal order in terms of the draft with which I have been provided.  Yes, take a seat for a moment
Mr Baensch, sit down for the moment.  Would it be Geelong Community Corrections Ms Tittensor?

32MS TITTENSOR:  I notice in one of the ‑ ‑ ‑

33HIS HONOUR:  I see your client nodding, but ‑ ‑ ‑

34MS TITTENSOR:  I expect it will be for now, but I do notice in one of the reports, Your Honour, that there's no certainty about his accommodation when he's released.

35HIS HONOUR:  No, well the Salvation Army would help with that.

36MS TITTENSOR:  Yes.

37HIS HONOUR:  But I think if we start with that.

38MS TITTENSOR:  Yes.

39HIS HONOUR:  Is that satisfactory Mr Baensch?

40OFFENDER:  Yes.  Yes, Your Honour.

41HIS HONOUR:  I think it seems to be necessary to impose two separate community correction orders, that will be in relation to each of the indictments.  I think that is the way it works.  They will run them concurrently of course and be in precisely the same terms.

42MS TITTENSOR:  Yes, Your Honour.

43HIS HONOUR:  That is the reason for two documents. 
Ms Tittensor would you accompany my associate to your client? 

44MS TITTENSOR:  Certainly, Your Honour.

45HIS HONOUR:  Ensure he knows what he is signing.  All right, no other orders I need to make?

46MS TITTENSOR:  No, Your Honour.

47HIS HONOUR:  All right, thank you.

48(At this stage the court proceeded with another matter.)

49OFFENDER:  Thank you, Your Honour.

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