Director of Public Prosecutions v Balichandran
[2023] VCC 503
•31 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01144
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAJURAN BALICHANDRAN |
---
| JUDGE: | HIS HONOUR JUDGE MULLALY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 March 2023, 31 March 2023 |
| DATE OF SENTENCE: | 31 March 2023 |
| CASE MAY BE CITED AS: | DPP v Balichandran |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 503 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – Sentence
Catchwords: Plea – Obtain financial advantage by deception – Aggravated burglary
– Criminal damage – Possession of a drug of dependence
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen
[2021] VSCA 175; Boulton v The Queen [2014] VSCA 342
Sentence: Total effective sentence of 430 days’ imprisonment with a 2-year
Community Correction Order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr C. Thomson | Office of Public Prosecutions |
| For the Accused | Mr C. Grant | Paul Vale Criminal Lawyers |
HIS HONOUR:
1Majuran Balichandran, in 2021 you were in a relationship with a young woman. The relationship ended in December 2021, but you were still in regular communications with the young woman who was living in a house in Lower Templestowe with friends or associates of yours.
2Around 15 January 2022, the young woman contacted you, expressing, so you say, concern for her safety and indicating that she thought those friends of yours would not let her leave. Whether all this was in fact the case is unclear, but what is clear is that you believed you had to do something to help her. The problem is what you did was unfortunate, and in fact was serious criminality.
3You drove to the address with two unknown associates. You armed yourself with a golf club and came to the house. You yelled at the male in the house and used the golf club to smash windows either side of the door. The male and your ex-girlfriend or young woman yelled at you asking you to leave. You demanded that your ex-girlfriend leave with you.
4You then reached inside the broken window and unlocked the door. At the same time, the male and your ex-girlfriend ran and hid upstairs. Ultimately, you left the property within a very short time thereafter, said to be 30 seconds or so.
5Within that time, two computer screens inside the house were smashed. You have pleaded guilty to aggravated burglary and criminal damage, that is to the computers and the door or the windows that were caused in these events.
6You were later seen, that is later that day, in a Toyota Ute by police at a service station or something similar. The Ute itself had been hired some days earlier by you using false identification. You have pleaded guilty to obtaining a financial advantage by deception in relation to that Ute.
7On 25 January 2022, the police came to your address. Of some note was that the young ex-girlfriend - that is the young woman who was at the centre of why you broke into your friend's house in Templestowe - was at your house when the police arrived.
8She let them in and a search of your premises found three different types of drugs of dependence, as well as the false identification cards or documents used by you in the deception charge.
9You were arrested and remanded in custody where you have remained to date. That is now approximately 430 days, but that will be confirmed. You ran a committal and then the case was intensively managed in this court, but ultimately it resolved close to the trial date. I will speak more of the utilitarian benefit of your plea of guilty shortly.
10What is clear is your offending was serious. Your motivation, as you would have it, was to rescue your young friend. There are examples of aggravated burglary where the motivation is much more sinister and concerning. However, you did bring a weapon, and two others to reinforce your demands.
11Ultimately the whole frightening episode was over quickly and you left without causing anything other than the fear and damage to the property. There are no victim impact statements, but it can be said that everyone is entitled to feel safe in their own house.
12The circumstances of the offending, especially the aggravated burglary, requires weight to be given to the sentencing purposes of denunciation and deterrence to others, but also deterrence to you, as you have a concerning criminal history.
13Your criminal history commenced when you were young, that is about 20 in 2003, though it was essentially from 2014 onwards that you have been regularly before the courts. You are now 40.
14You have many prior convictions for drug offences, driving, some for violence and weapons as well. You have had community orders and suspended sentences imposed, most, if not all, of which have been breached.
15You have been sentenced to a number of terms of imprisonment, though this period on remand is your longest time in custody by a significant amount. As mentioned, you have been troubled by drug addiction, that is your drug addiction coincided with your commencement of the serious criminal history in the period 2012, 13, 14 and so on.
16As to your other personal circumstances, your early upbringing and work history were settled and promising. You were born in Sri Lanka and came to Australia in 1995 as a 12-year-old. Your parents, and sister and two brothers are law abiding and hardworking people. Your working life has been as a mechanic at mainly large tyre businesses. Until your drug use became rampant in 2012 you had a lengthy stable employment history, which is to your credit.
17It does show you can be a useful member of society. In the earlier community corrections order imposed by magistrates it seems your level of commitment to deal with your drug problems was not strong. You now say you are more mature, have learnt from this longer time in prison, and want to at your age put crime and drug use behind you.
18You have renewed your relationships with your parents and have their support to live with them and work with your father in a Geelong window frame business. At this point I should note that I had you assessed for a community corrections order.
19The assessment in the report of the assessor noted your positive attitude and insight and commitment to reform. However, the assessor considered the fact of your previous breaches of earlier community corrections orders meant you were unsuitable for a community corrections order at this time.
20I am of a different view. Indeed, the broad question for me is what is the just and appropriate sentence. Within that, I must consider the purposes of sentence. The words used in s 5(1)(c) of the Sentencing Act 1991 (Vic) are the following:
A purpose for which sentences may be imposed are: (c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated.
21In my view, a targeted community corrections order is the best way I can establish conditions to facilitate your rehabilitation. It is for Corrections to implement whether or not an individual assessor has a view as to your suitability based on one aspect of your past history.
22There are other mitigating matters that operate to mean that a sentence of imprisonment, combined with a targeted community corrections order, is the just and appropriate sentence, the first of which is the significant utilitarian benefit that attaches to your plea of guilty.
23As the Court of Appeal in Worboyes v The Queen [2021] VSCA 169 and Chenhall v The Queen [2021] VSCA 175 made clear, I must give you an augmented benefit for your plea of guilty in these times when the lists of the court are under such pressure. The benefit must be palpable to you and encouraging to others.
24All that said, your plea did come late in the piece. Your remand through 2022 was when there were some ongoing restrictions within the Corrections system, and I take that into account as well.
25Finally, as the Court of Appeal in Boulton v The Queen [2014] VSCA 342 made clear, the sentencing purposes of punishment and rehabilitation can be achieved simultaneously by a community corrections order, more so than the dead weight of time in prison.
26A community corrections order is not to be seen as a soft option because in practical terms it is no such thing. You will be under long term supervision. Your participation in targeted programs is mandated. Any failures or resort back to offending will see you back before this court to be re-sentenced for the aggravated burglary and the dishonesty offences, that is those that involved the false ID and the use of a hire car without paying.
27While any re-sentence will take into account your time on remand and what you have achieved on the community corrections order, you should understand that the time that you have spent on remand would likely be seen as far too short for re-sentencing purposes and a significant term of further gaol would likely be imposed.
28In other words, do not breach this community corrections order as you have with earlier corrections orders.
29Doing the best I can I impose the following sentences:
(a) For the charge of obtaining a financial advantage by deception, you are sentenced to a term of imprisonment of 60 days;
(b) For the crime of aggravated burglary, you are sentenced to a term of imprisonment of 430 days;
(c) For the crime of criminal damage, you are sentenced to a term of imprisonment of 120 days;
(d) For the possession of 1-4 Butanol, you are sentenced to a term of imprisonment of 60 days;
(e) For the crime of possession of methylamphetamine you are sentenced to 120 days' imprisonment;
(f) For the crime of possession of the diazepam you are sentenced to one day’s imprisonment;
(g) For the summary offences that I have not referred to, nonetheless there were unlicensed driving offences, you are convicted and fined an aggregate of $100; and
(h) For possession of weapons, being a sword and other weapons, you are sentenced to seven days' imprisonment.
30All the sentences that I have announced the terms of imprisonment are concurrent with the base sentence, that is Charge 2.
31On Charge 2 and Charge 1, you are also placed on a community corrections order that will operate for two years. The special conditions that apply to your program conditions are that you must be assessed and treated for drug abuse. You must be assessed and treated for your mental health and you must undergo programs that you are directed to undergo to reduce your risk of reoffending. You also must be under supervision.
32I make it clear that you have spent 430 days in prison thus far. This figure having been reckoned, and I declare pursuant to the provisions of the Sentencing Act 1991 (Vic), that those 430 days are part of the sentence that I have just imposed, in fact they are every single day of the sentence I have just imposed.
33I will ensure that this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have served every day of the sentence, and you are, according to my sentence, let alone any other administrative or emergency days, eligible for release.
34Had you pleaded not guilty to these offences, I would have imposed a sentence of three years and three months with a non-parole period of two years and three months.
35There needs to be a document produced that sets out all the details of the corrections order and we will get that done now, but I will run through what I know is on it.
36Firstly, that everyone on a corrections order must abide by the following conditions, the first of which is the most important, and if you commit an offence that is punishable by imprisonment in the next two years then that will breach this order and you will come back to me. I will resentence you and you have heard the terms that I have already spoken about. The second aspect that I will refer you to in the corrections order are all the aspects of cooperation, so you have got to let them know if you change your job or your address, so you have just got to let them know within two clear working days of any change of job or address. You have got to get permission from them to leave the State of Victoria. You have got to abide by all lawful directions from them. You have got to attend down there - we have got the South Morang Community Corrections Centre. Does that make sense to you, Mr Grant? You have got to go to the South Morang Community Corrections Service that is there in South Morang. You have got to do that within two clear working days after this order starts, which is today, so get onto it straight after your release into the next week. They are all the mandatory conditions.
37The conditions that apply to you specifically are that you have got to be under supervision of the corrections officer for the whole two years. You have got to be assessed for your drug abuse and treated, assessed and treated for your mental health issues, and you must participate in programs and courses that address your offending.
38I will sign this shortly, Mr Balichandran, but do you consent to the order being made?
39OFFENDER: Yes, I do, yes.
40HIS HONOUR: What will be noted is that you gave your consent in the oral hearing, you gave your oral consent in the virtual hearing, I think is the words I use. Is there any other orders?
41MR THOMSON: Your Honour, the disposal orders in relation to the drugs and weapons, and other various items.
42MR GRANT: By consent.
43HIS HONOUR: I make those orders; they will be made. Anything else?
44MR GRANT: No, Your Honour.
45HIS HONOUR: Thank you very much for all your assistance. If there is nothing further, I will just give you a minute or two with your client.
46MR GRANT: I would be grateful, yes, thank you, Your Honour.
47
HIS HONOUR: Do not keep my staff, we have been working non-stop since
9 o'clock.
48MR GRANT: I will not, Your Honour, thank you.
49HIS HONOUR: Thank you.
‑ ‑ ‑
0
2
0