Director of Public Prosecutions v Baksh-Cowen
[2025] VCC 375
•28 March 2025
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00178
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARLEY BAKSH-COWEN |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2025 | |
DATE OF SENTENCE: | 28 March 2025 | |
CASE MAY BE CITED AS: | DPP v Baksh-Cowen | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 375 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleas of guilty to 3 charges of aggravated burglary, 5 charges of theft, 1 charge of obtaining a financial advantage by deception, 2 charges of aggravated recklessly exposing an emergency worker to risk by driving, 1 charge of resisting an emergency worker on duty, 2 charges of possessing a drug and one charge of possessing an imitation forearm – recidivism –drug rehabilitation- Bugmy principles – mental impairment – totality – risk of institutionalisation – undeclared time on remand (521 days) taken into account.
Legislation Cited: Sentencing Act 1991 s.5(2H)
Cases Cited: Bugmy v R [2013] HCA 37; 249 CLR 571
Sentence: 12-month imprisonment (6 months reckoned as already served) with two-year CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. Rossi | Office of Public Prosecutions |
| For the Accused | Mr A. Marshall | Chris McLennan & Co |
HER HONOUR:
1Harley Baksh-Cowen, you have pleaded guilty to 15 charges listed on the indictment. They are:
· Three charges of aggravated burglary, with a maximum penalty of 25 years' imprisonment;
· Five charges of theft, each with a maximum penalty of 10 years;
· One charge of obtaining a financial advantage by deception, maximum 10 years;
· Two charges of the aggravated offence of recklessly exposing an emergency worker to risk by driving, maximum 10 years;
· One charge of resisting an emergency worker on duty, maximum five years;
· Two charges of possessing a drug of dependence, maximum one year for methylamphetamine and a fine of five penalty units for cannabis; and
· One charge of possessing an imitation firearm contrary to a firearm prohibition order, maximum 10 years.
2All the offending occurred over about four weeks in March and April 2023.
3The details are set out in the prosecution opening dated 13 March 2025. That summary shows that your modus operandi was to go to people’s houses at night and steal their cars and other belongings.
4The first incident was on 20 March at about 10.00 pm. You went to a house in Glenroy where the resident, Shaun Palipane, was asleep. You entered the garage which had a connecting door to the house and stole multiple items including a skateboard, a bicycle and a vacuum cleaner. Those matters are Charges 1 and 2.
5A Nissan Ute belonging to Shuo Peng was parked in the same driveway. The vehicle was unlocked, and you took from it a wallet and multiple bank cards belonging to Peng. That is Charge 3.
6On 22 March you used those cards to buy items at a service station to the value of $235.90. That is Charge 4.
7On 15 April at about 12.30 am you went to a house in Wicklow Street, Glenroy, and entered the house of Renato Ignarro who was in the house alone. You entered through an unlocked door and stole a handbag and car keys for a Suzuki Swift belonging to Lucinda Ignarro. You drove away in that car. Those matters are Charge 5, the aggravated burglary, and Charge 6, a rolled-up charge of theft.
8A week later, on 22 April, police found a Suzuki Swift in Broadmeadows bearing stolen registration plates. Found in the car were a phone and paperwork in your name. Later the car was examined for fingerprints which were found to match yours.
9On 26 April a further victim, Dianna Korndorffer, parked her Volkswagon outside her address in Coburg. While it was parked there you stole from it a pink backpack containing various items. That is Charge 9.
10On 27 April you entered the house of Katie Dance in Coburg, through the back door. She was asleep in her bed. That is Charge 10.
11While in her home you stole a Fossil handbag and its contents, a PlayStation 4, a Nintendo Switch, Lenovo laptop, Apple Mac Book Pro and Apple iMac desktop, and car keys. You left the house and drove off in the Ford Focus vehicle parked outside. That is Charge 11, a rolled-up charge of theft.
12On 27 April 2023 police used tracking from Ms Dance’s Apple devices to locate the Ford at South Preston shopping centre. They attended the car park and drove around looking for the Ford. You came out of Woolworths at 8.39 am and got into the Ford. The police located you as you began to reverse from the parking bay. The police driver, Officer Petsas, angled the police car at about 45 degrees behind the Ford.
13Officer Lawson got out of the car to deploy 'stop sticks', and as he did so you reversed sharply and collided with the police car, then reversed into a pole.
14The Ford then mounted a gutter and you accelerated sharply towards the police car, with Lawson standing about five metres in front of the Ford. He ran and took cover behind the police car, pulling his firearm from its holster to protect himself and others.
15When Lawson was still in front of the Ford, Petsas believed he was at risk of being struck so he drove towards the Ford. You then veered to the left in an apparent attempt to drive between the police car and a parked vehicle. The Ford then collided with the police car and a parked Hyundai, causing the Hyundai to move about a metre, leaving space for you to accelerate sharply through the car park.
16Those combined circumstances give rise to Charge 7.
17Charge 8 occurred in the circumstances which followed. Two police constables were patrolling the Preston area when they saw the Ford approaching the police car from about 30 metres away. You accelerated between the police car and a truck the police had stopped for and struck the passenger side of the police car.
18You were then seen to drive away fast, swerving to the wrong side of the road and turning right on the wrong side of a roundabout. Later the damaged police car had to be towed away.
19You drove on Newlands Road in Reservoir, and lost control of the Ford while taking a slight bend at speed. You jumped out of the car as it was still moving and ran through an adjacent vacant property, where you were seen by police. Two officers chased you and attempted to arrest you. You actively resisted, pulling your hands away from being handcuffed. During this process your elbow connected with the bottom lip of Senior Constable Gacevski, causing swelling and a laceration. Other police attended and assisted in arresting you. That is Charge 12.
20In the Ford police found approximately nine grams of cannabis in small zip-lock bags, 0.1 of a gram of methylamphetamine in a small zip-lock bag and a black imitation handgun, known as a gel blaster. Those are Charges 13, 14 and 15.
21The date of the arrest was 27 April, and you have remained in custody a total of 691 days as of 18 March 2025. When arrested you began to be interviewed by police, but you became distressed, so the interview ceased. Later you said you were 'off your head on Xanax' and that you could not remember anything that happened.
Background and personal circumstances
22You are now aged 28 and you were 26 when you committed these offences. You identify as being a First Australian, through your mother as a Tasmanian Palawa woman and your father a Yorta Yorta man.
23I was provided with two psychological reports from Ms Carla Lechner and Mr Ian Mackinnon. A neuropsychological assessment was performed by Dr Loretta Evans in 2021, and a report was provided to the court when you were sentenced by Her Honour Judge Gwynn of this court in December 2021. This report was described as 'password protected' and access to it has proved impossible. Accordingly, I am limited to the references made to it by Judge Gwynn in her sentencing remarks.
24Her Honour drew from Ms Lechner’s report that: '…[you] presented as socially, cognitively and emotionally immature with limited capacity to engage in reflective and consequential thinking.'[1] In Ms Lechner’s opinion you are in the extremely low to mildly disabled range of verbal intelligence.
[1] Sentencing remarks of Her Honour Judge Gwynn dated 17 December 2021 at [62]
25Dr Evans reported that you do not present with an intellectual disability but that your various cognitive deficits suggest a learning difficulty. She considered that acute drug intoxication from the age of 10 has hampered your brain maturation and negatively impacted on your ability to learn. She concluded that you have a mild substance-induced brain injury.
26From this Judge Gwynn concluded that there should be some moderation of both specific and general deterrence in your case, because of the reduction in your moral culpability for the offending.
27Mr Mackinnon’s report is more recent, dated 12 November 2024. He assessed you by video-link to Port Phillip Prison. The report sets out considerable detail as to your early life and family circumstances.
28At the time of that assessment, you were being treated in prison with monthly Sublocade injections, medication used to help with symptoms of withdrawal from opioid drugs.
29Mr Mackinnon diagnosed substance abuse disorder and complex post-traumatic stress disorder, currently at a mild level, emanating from early exposure to domestic violence and including the death of your infant sister when you were probably less than five years old. Mr Mackinnon thought that this broad experience of trauma was a central factor in shaping the state of your mental health, your social development and your general character.
30You were expelled from school, attended alternative schools for a while and then left at the age of 14. You were diagnosed at some stage with ADHD, the symptoms of which can overlap with complex post-traumatic stress disorder, as Mr Mackinnon explained. He said it is not entirely possible to be definitive in this regard.
31After leaving school you did not develop any vocational or recreational pathway, as Mr Mackinnon put it, instead your criminal history suggests you have struggled with entrenched anti-social and criminal traits, with a propensity for sometimes engaging in aggressive and violent behaviour.
32You told Mr Mackinnon that the Sublocade injections have increased your mental stability and improved your mood, and this had become a strong motivator to make continued efforts at rehabilitation once you are released. Mr Mackinnon was of the strong view that you need an extended period of residential rehabilitation treatment when you are released. Without it you are likely to relapse into illicit substance abuse and associated recidivism.
33Your childhood was marked by family dysfunction, through your parents’ heroin use and your father’s violence towards your mother. Your younger sister died at 18 months and your mother died when you were 20. You were estranged from your father but have now re-established contact, and with an older sister and her daughter as well.
34You have stated that you did not go to school much and were eventually expelled from primary school before attending alternative schools, as I mentioned earlier. You struggled with reading and writing and still need help with filling in forms. You have had little paid employment, other than some casual labouring for cash-in-hand. You state that you have not had any mental health treatment and that you have attempted suicide several times.
Gravity of the offending
35The prosecution estimated the level of gravity of your offending as being of moderate range but being an ongoing incident involving two sets of officers makes each of Charges 7 and 8 a serious example of a serious offence. They are Category 2 offences, requiring imprisonment rather than a sentence combining prison with a community disposition, unless certain exceptions apply.[2] I am satisfied by the evidence as to your impaired mental functioning so that s5(2A)(c)(i) applies, and I am able to sentence you at large meaning a Community Correction Order is an option. The relevance of that provision in this case is the elevation of the seriousness of the offence as considered by the legislature.
[2] S.5(2A)(c)(i) Sentencing Act 1991
36As I said earlier, you were sentenced by Her Honour Judge Gwynn on 17 December 2021 to two years and four months' imprisonment, with a non-parole period of 18 months. You had pleaded guilty to charges bearing some strong similarities with the current offending. You stole items from a house, you stole a car, and you stole registration plates. When seen by police in the stolen car you sped away, colliding with the unmarked police car as you did so. Soon afterwards you were seen by other police and again you sped away, ramming the police car. A second police car arrived and pulled up behind your stationary car. You reversed into the second police car, then continued to accelerate forwards and backwards into both police vehicles, causing moderate damage to them and causing a risk to the safety of the four police officers.
37I have set out these details to demonstrate the similarities. You had been sentenced for that previous offending just over a year earlier, and according to my calculations you may have been released from prison having completed the sentence imposed by Judge Gwynn only a few months previously.
38This recidivism points to the need for an appropriate sentence which protects the community, punishes you and at the same time reduces the likelihood of your further offending. Treatment for drug abuse would appear to be fundamental to your rehabilitation, without it your prospects are grim.
Other sentencing factors
39Both general and specific deterrence are relevant sentencing considerations. Your criminal culpability is somewhat reduced by reason of your mental impairment, as I have already described, and your recidivism and guarded prospects for reform should be addressed by the sentence as far as possible. To this end I asked the Corrections officer responsible for your assessment last week to address the recommendation for residential drug rehabilitation. The response was that once placed on a Corrections order and assessed for such a program, if found suitable you would be placed on a waiting list with a likely wait of three months or more. That waiting time is regrettable, but it is an administrative matter, and not a matter for me.
40You were also assessed by a mental health nurse as part of the CCO suitability assessment. This resulted in a very helpful report, indicating that notwithstanding the absence of any referral for assessment for residential drug treatment, some considerable planning has been put into your anticipated release from prison. It is your understanding that you will be practically supported and assisted by a prison-based re-integration program and an Aboriginal support worker when you are released.
41You have been spending time working on your Koori art paintings. You have converted to the Muslim faith and have been observing Ramadan. You indicate that you are willing to engage in psychological counselling and to continue taking prescribed monthly medication to help you to remain abstinent.
42All these factors are positive indicators for better prospects for rehabilitation than at earlier times. Despite that, specific deterrence remains of significant importance.
43The need for general deterrence is tempered by the deprivation you experienced in your childhood, which has the effect of reducing your culpability. It was established as a matter of law in the case of Bugmy that the effects of childhood deprivation do not diminish with time, and that is particularly so where a young child suffers a brain injury caused by substance toxicity, as you very likely did. Ms Lechner thought that your formative years were: '…strongly suggestive of exposure to trauma, environmental impoverishment and a lack of adequate intervention to assist with behavioural dysregulation.'[3]
[3] Report of Carla Lechner dated 27 November 2021 p.1
44Other mitigating factors include the quite long delay in the progress of this case. All but one charge had resolved into a plea of guilty by May 2024, and the remaining charge depended on an interpretation of the nature of your attempts to escape from the car park, and whether, conversely, it was your intention to target the police. This was resolved in your favour and the case was finally resolved last November. You have had the matter hanging over your head for nearly two years and of course have remained in custody. I take into account that delay.
45Your plea of guilty has utilitarian value in having avoided a trial and saved that expense and inconvenience. You are entitled to a discount on your sentence for that plea. I also accept it as an indication of remorse. You told Ms Lechner that it was bad behaviour, and you should not have done it. The Corrections officer who assessed you last week considered you demonstrated some remorse, but with limited insight.
46I must also take into account that for a relatively young man you have spent a lot of time in prison. The sentence I impose should take account of this time in a global sense. The background is that your criminal history began when you were 20, and you were soon serving short sentences for aggressive and violent offending. You breached the two CCOs you were placed on as part of combination sentences, and within months you were remanded in custody for the offending which brought you before Judge Gwynn in December 2021.
47Mr Marshall on your behalf submitted that there is also the risk of you becoming institutionalised by having spent a considerable part of your adult life in and out of prison, never fully adapting to a settled, stable life. I take that into account with the other matters I have raised.
48You have been assessed as suitable for a CCO, albeit as being at high risk of re-offending, according to the assessment test used. I will explain the details of that order shortly.
49First, I turn to the orders for imprisonment. I am satisfied that the offending occurred over a short timeframe and in a similar way. Consequently, I sentence you to 12 months' imprisonment for each of the most serious charges, which are numbers 1, 5, 6, 7, 8, and 10. These are the charges of aggravated burglary, recklessly exposing emergency workers to risk by driving, and theft of a car.
50For Charge 4, I sentence you to one month imprisonment.
51For Charges 2, 3, 9 and 11, charges of theft of items, three months for each charge.
52For Charges 12 and 15, six months for each charge; for Charge 14, one month.
53And for Charge 13, you are fined $200.
54All these prison terms are to be served concurrently, resulting in a total effective sentence of 12 months.
55It is appropriate that you spend further time in custody before your release. I declare that six months of the sentence I impose today be reckoned as already served and that means your release date will be six months from today.
56You have been in pre-sentence detention for 701 days, not including today. With six months, or 180 days, of that time now being declared as time served, it leaves 521 days, by my calculation, as time which is not declared. However, I take it into account in relation to totality and as being relevant to the risk of you becoming institutionalised by spending long periods in custody.
57The Community Correction Order will apply to all charges except Charge 13. It will begin on the day of your release and will last for two years. You will be required to attend the Corrections office in Ballarat within two working days of your release, by 4.00 pm that day. The office is at 22 Camp Street, Ballarat. You will be under supervision, and you must be assessed for drug treatment and for mental health treatment. You must perform 100 hours of unpaid community work. Any time that you spend in treatment programs will be credited against those work hours. I order that there be judicial monitoring as well, meaning that you must come to court from time to time to discuss your progress with me, in the presence of your Corrections officer. Do you agree to be bound by these conditions?
58ACCUSED: Yeah, Your Honour.
59HER HONOUR: Very well. You will need to understand also that any breach of that Community Correction Order, if found proved, would see you being brought back to court to be re-sentenced by me for all the charges again.
60The first date for judicial monitoring will be 26 November at 9.30 am.
61If you had pleaded not guilty to these charges, I would have sentenced you to four years and six months' imprisonment with a non-parole period of three years and nine months.
62Your licence to drive is cancelled and you are disqualified from obtaining any further licence or permit for two years. This order applies to Charges 6, 7, 8 and 11.
63Mr Rossi, is there anything I have neglected or omitted.
64MR ROSSI: No, Your Honour, nothing from the prosecution.
65HER HONOUR: Mr Marshall.
66MR MARSHALL: No, Your Honour.
67HER HONOUR: Now, Mr Baksh-Cowen, the Community Correction Order form will be sent to you in custody for you to sign and then it will be returned here.
68ACCUSED: Yep.
69HER HONOUR: That's everything, thank you. Adjourn the court please, Mr Butler.
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