Director of Public Prosecutions v Bale

[2022] VCC 34

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 20-00287

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARLEY BALE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	25 January 2022
CASE MAY BE CITED AS:	DPP v Bale
MEDIUM NEUTRAL CITATION:	[2022] VCC 34

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy	Office of Public Prosecutions
For the Accused	Ms L. Andrews	Daniel Taylor Lawyers

HIS HONOUR: 

1Harley Robert Bale, you have pleaded guilty to one charge of armed robbery.  That crime carries a maximum penalty of 25 years' imprisonment.  You were 27 years of age at the time of the offending and now 31.  You pleaded guilty at a reasonably early opportunity and I accept that that plea of guilty is accompanied by appropriate remorse.  You must also of course get the utilitarian benefit of that plea of guilty.

2In your particular situation, the decision of Worboyes has a very significant role and the benefit that you get for pleading guilty in such circumstances must be recognisable as such.  I also accept that in these circumstances, were I to impose a custodial sentence it would be undergone in COVID circumstances. 

3There are two co-accused in this matter.  I will be going through that in a bit more detail later on.  One had received six months with a CCO and one had received eight months with a CCO.  It is important to note that neither of those two co-accused pleaded in the time of Worboyes and neither of those two co-accused underwent their sentences under COVID restrictions.  That appears to me to be significant. 

4You do have prior convictions.  They are of some concern.  You have been in custody before and I take all those matters into account.

5A summary of the offending is that on 11 June 2017 at approximately 6.35 am in the morning, you and two others went into a service station in Brandy Creek Road in Warragul.  The three of you approached the service counter and a Mr Francis proceeded to menace the attendant with an axe.  As he did so, he made the following demand, 'I need money, give me money.  Open your till.  Open your safe.' 

6Mr Paul walked behind the counter and into the office while the attendant was being held at the counter by Mr Francis.  Mr Francis continually tapped the blade of the axe on the counter to reinforce his demand.  The attendant obeyed the demand and placed the cash drawer on the counter.  Mr Francis then took approximately $300 in cash notes and during this time, you and Mr Paul were near the rear of the service counter near the office.  You were clearly reinforcing the demands of Francis.  Eight packets of Alpine Original Menthol cigarettes were also stolen.  Mr Francis then proceeded to the entrance of the shop where he waited for you two and the three of you then left on foot in a northerly direction along Brandy Creek Road.

7The victim was traumatised but not physically injured and as I understand it is said later on that he did not think that you would actually hurt him but you were just trying to scare him.  The property was not recovered. 

8Mr Francis and Mr Paul later went to the Warragul Country Club apparently in Warragul and gambled some of the money that was stolen on gaming machines. 

9It is important to note that within a week or so of this occurring, as I understand it, you had been positively identified by a former partner and police were aware of that identification.  You were not in fact taken to custody until 5 June 2019.  By that time, each of your co-accused had already pleaded and been sentenced and apparently in situations where it was said that the co-offender was unknown. 

10The delay in this matter which has now been exacerbated by the COVID situation is extraordinary.  There is no explanation as to why you were not even interviewed for two years, bearing in mind there was a positive identification.  What is of perhaps some significance is that you yourself were the victim of a shooting and the committal involving the person who shot you was to come up some two months after you were arrested.  You had been in touch with police beforehand.  There is no reason why you could not have been arrested and interviewed.  It is a guess I suppose but I am at a bit of a loss to know why that delay took place.

11When interviewed, you said no comment which of course was your right. 

12There is no victim impact statement but clearly this is the sort of behaviour that terrifies people.  It has to be regarded as serious.  It calls for the application of general deterrence and specific deterrence, denunciation and appropriate punishment.  I then look at matters personal to you. 

13The first think I will look at is parity.  Mr Paul received six months and a CCO; Mr Francis eight months with a CCO as I have said.  Mr Francis was 25 and made admissions but did have an assault prior.  Mr Paul was 21 and had already done 244 days in custody which I found astonishing even when he had no prior convictions; and I note that he had an IQ of only 63. 

14On the face of it at least, if you had been charged at the time you would have very great difficulty in arguing that you should not receive a similar sentence bearing in mind the nature of the armed robbery.  However, as I have indicated, they pleaded under very different circumstances and the delay in your particular situation is a very powerful one.  It has been a long time and I simply refer to the words of Callaway J in R v MWH, where he said,

'It is the effects of delay that are important for sentencing.  As in R v Law, the prisoner's age at the time of sentencing may mean that he is less likely to re-offend.  His health or life expectancy may make service of a sentence of imprisonment more onerous than usual.  There may be considerations of fairness, especially where the delay is attributable to the prosecution or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light.  There may be practical considerations that require a marked degree of leniency to be extended.  The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation.  The person standing for sentence may have been rehabilitated in one or more ways.  He may have given up a form of substance abuse that contributed to the offending.  He may have reordered his life.  He may have suffered genuine remorse in the sense of repentance.'

15And as His Honour said,

'So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed.'

16I accept that in your situation you have - it is always a double-edged sword but the delay has put you in a situation where you have very largely been rehabilitated.  I am sure, that rehabilitation is not complete by any means but it is a genuine attempt.  It has been going on over an extended period of time and I am well aware, as I have said and just read out, what Callaway J had to say about that. 

17In DPP v Leach, the Court of Appeal said,

'It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped.  That, after all, may be a decision which redounds very much to the benefit of the community.'

18And I think this is precisely one of those situations. 

19The situation regarding yourself is that you were born and raised in Warragul.  You are one of five children.  You had a normal family setting.  Your mother worked as a receptionist and your father was a bricklayer.  Your parents separated when you were 20 years of age and you struggled to come to terms with their separation.  You left school after completing Year 10 and you have successfully completed a bricklaying apprenticeship.  It was put in the material on your behalf you became interested in the mechanics of machinery and that you then worked as a plant operator in earth moving and excavation.  I will have something to say about that in a moment.

20You, in 2016, formed a relationship which ended up somewhat in disaster and I do not need to go into the details of all that.  In 2018, you also commenced a relationship with a Ms Wallan and that relationship continues and you and she - it now involves a total of three children and I think that relationship clearly if successful will have a stabilising effect on you. 

21After this offending occurred in July 2020, your younger brother committed suicide.  That was unexpected.  You shared a close relationship with your brother and continue to struggle with his death.  After he died, your drug use increased and you were arrested and placed on a CCO in relation to other matters.

22In early July last year, your first child was born and at that time you obtained work and then returned to Traralgon.  At that point in time, you resided with your father and stepmother and you were assisting them with farm work.

23In the middle of 2021, you completed an eight-day residential detox in Dandenong.  You then spent three days at Windarra so you obviously made attempts.  You continued with DayHab in the Salvation Army in Berwick four times a week till that program went online due to the current lockdowns.  There is a report from a psychologist Gina Cidoni which I have read that says there is evidence of a bipolar affective disorder and a stimulant use disorder which does not really take us anywhere but the bipolar affective disorder is something that can be dealt with and can be dealt with by way of a CCO in terms of mental health treatment.  You still have ongoing difficulties with the acceptance of your brother's suicide. 

24As I have indicated, you were the victim of a shooting and have given and gave evidence against the accused in that matter and he has now stood trial.  You gave evidence at the trial and he has been found guilty.  As I understand it he is - I think I am right with this - currently on remand.  And accordingly, were you to be incarcerated you would undoubtedly have to be in protection which is another factor I take into account which would appear to be different from that of your co‑accused.

25You apparently cooperated with the authorities throughout in relation to that other matter.  It seems pretty clear to me as your counsel pointed out that the risk of you reoffending is dependent upon what you are able to do with drug use.  You are now in a situation where you have the support of your father and partner.  I accept that the birth of your daughter has provided you with additional motivation to address your drug use and your mental health and you are working with the Department in trying to get a situation going where you are able to live with your partner and the three children.

26You are currently employed.  I have a reference from your employer which speaks highly of you; that you are working six days a week.  You are working 7 am to 5 pm.  And it is quite clear that you get on well with him and he described you and how your life has been turned around.  That reference is on file and is a powerful document in circumstances such as this.

27You clearly have stable accommodation and overall, there are a number of comforting factors.  I accept that the risk of your reoffending is high on an objective basis.  But the fact of the matter is that if you continue with assistance and are able to finally rid yourself of any form of drug habit then the risk of you reoffending should be low. 

28I had you assessed for a community corrections order.  I do not propose to go through authorities in relation to that.  R v Bradshaw says that a CCO - adopting Boulten CCO as punishment enables the reformation of an offender and in many situations, even in serious offending, is the appropriate disposition. 

29Corrections have found you suitable and I agree with that.  They do have some concerns about your high risk of offending and I agree with that.  Their report recommends the following conditions:  community work, and if you agree there will be 250 hours; treatment and rehab for drugs; treatment and rehab for mental health; treatment and rehab programs to reduce reoffending and supervision.  They also suggest judicial monitoring but in these times and these circumstances, it might be all right for a Magistrates' Court but it is virtually impossible for a County Court judge to do that.

30Their report goes into some detail and your honesty when you are dealing with them, I must say, is impressive.  They indicated what they would like, be able to do and I think that they are very sensible suggestions that they make. 

31The corrections order will be over a period of three years which is a significant period of time and will be with conviction which of course is a form of punishment in itself.  That is if you agree to that community corrections order.  Do you agree to such an order?

32OFFENDER:  (Indistinct words) yep.

33HIS HONOUR:  Mr Bale?

34OFFENDER:  Yes. 

35HIS HONOUR:  Yes, he does.  All right.  Right, that order - that will be made and accepted orally. 

36Section 6AAA, but for your plea of guilty, parity would have played a much greater part in all of this and I would have imprisoned you for six months with a CCO.

37OFFENDER:  Yes, sir.

38HIS HONOUR:  All right.  Now, bear in mind with a CCO if you breach it that you get brought back for a resentencing.  All right?  If you breach it by something like this, I am going to have no option, all right?  Time has, is in one sense, and your own attitude saved you.  If you get brought back for resentencing on an armed robbery for something similar, it's 'Good night, nurse'; all right.

39OFFENDER:  Yes, sir.

40HIS HONOUR:  Yes.  Thanks for that.

41OFFENDER:  I just - could I just ‑ ‑ ‑ 

42HIS HONOUR:  Sorry?

43OFFENDER:  I just want like, I would just like to say that like I'm sincerely sorry for the mistakes I made and I do appreciate the corrections order.

44HIS HONOUR:  Thank you for that.  Sorry, the CCO will also - any hours spent on programs will be deducted - any hours spent on programs is to be deducted from the work component.

45OFFENDER:  Yes, sir.  Thank you.

46HIS HONOUR:  All right.  Nothing else I need to do, Mr Darcy?  Nothing else I need to do, Ms Andrews?

47MS ANDREWS:  No, Your Honour.  

48HIS HONOUR:  No.  All right.  What we will do is I just need to talk to Mr D'Arcy for a moment in open court.  So yes, we can say thank you to Ms Andrews and we'll ‑ ‑ ‑ 

49MS ANDREWS:  As Your Honour pleases.

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