Director of Public Prosecutions v Balshaw
[2020] VCC 1837
•18 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-02322
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACKSON BALSHAW |
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| JUDGE: | HER HONOUR JUDGE GWYNN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 September & 29 October 2020 |
| DATE OF SENTENCE: | 18 November 2020 |
| CASE MAY BE CITED AS: | DPP v Balshaw |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1837 |
REASONS FOR SENTENCE
---Subject: Criminal law
Catchwords: Aggravated burglary; Burglary; common assault; theft; attempt to commit indictable offence
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Meyers [2014] VSCA 314, 44 VR 486; R v McKee [2003] VSCA 16; R v Renzella [1999] VSCA 85; Akoka v The Queen [2017] 214; Azzopardi v The Queen [2011] VSCA 372, 35 VR 43
Sentence:Total effective sentence of 5 years imprisonment, with a non-parole period of 2 years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Albert (For Plea) | Office of Public Prosecutions |
| For the Offender | Mr G. Chisholm with Mr M. Murphy (For Plea) Mr M. Murphy (For Sentence) | Victoria Legal Aid |
HER HONOUR:
1Between 10 September 2018 and 17 January 2019 a series of housebreaking offences were committed across Melbourne by a team of offenders. The incidents occurred in the early hours of the morning and on six separate days within those dates. In total, seven houses were entered and one house was the subject of an attempted entry, forming a total of eight housebreaking incidents. The offending group varied between incidents.
2As a result, seven offenders were charged. Those persons were Rhys
Abela-Rogers, Charlie Farrugia, Dylan Farrugia, Abdulahi Ali, Jake Synan, Damien Monro and you, Jackson Balshaw. There was a familial link between at least four of the offenders, being Rhys Abela-Rogers, Dylan and Charlie Farrugia, and Damien Monro. A plea hearing for your six co-offenders commenced on 15 June 2020 and took place over three days, before being adjourned to 28 July 2020 for further plea. On that day you, Jackson Balshaw, were arraigned on a separate indictment and entered pleas of guilty to the offending for which you take criminal responsibility. Each of the other six offenders have now been sentenced.3The offending itself involved a well organised and sophisticated methodology where the primary aim was to locate and steal cannabis crops. This obviously occurred in circumstance where the offenders were of the belief that the victims were unlikely to complain about any theft. The intended theft of cannabis was presumably of value to the offenders or it simply would not have been targeted.
4Essentially, the modus operandi involved the following:
a. Firstly, houses were identified in advance of the actual house breaking. A FLIR (forward-looking infrared radar) was used. This device can identify areas of higher temperature. Cannabis plants thrive in a warmer environment and indoor plantations are often heated. The FLIR was used by the group to identify homes likely to be growing cannabis.
b. Once the target home was identified, members of the group would travel to the address in the early morning.
c. False numberplates were fixed to the vehicles used in the offending.
d. A getaway driver would be nominated and remain with the vehicle.
e. The other participants would then enter the targeted premises with their faces covered and equipped with items such as crowbars, garden shears and poles used to gain entry and to collect any cannabis crop located.
f. Items other than cannabis would also be taken if readily available or there was no cannabis located.
5The offending involved premeditation, planning and was highly orchestrated. It was extremely serious. Those involved in each incident had their role to play. One person was responsible for remaining with the vehicle whilst others entered the premises disguised and with items to assist in their intention, that being to steal. I accept the submission that there was no identifiable instigator or leader.
6The police investigation was equally sophisticated. It involved some direct evidence from witnesses or victims, noting, as anticipated by the offenders, most were not as interested in complaining to police when a cannabis crop was stolen. The investigation otherwise involved telephone intercepts on telephones linked to Rhys Abela-Rogers and Charlie Farrugia from 20 December 2018, listening and tracking devices installed into a car belonging to Rhys Abela-Rogers just prior to the final day of offending, and a detailed piecing-together of traffic camera information and call charge records. Various relevant items were seized under warrants executed at the offender's property and of their vehicles. CCTV was also sourced.
7You, Jackson Balshaw, participated on two occasions but at four premises. All seven offenders participated on the final day, being 17 January 2019. There are one or more participants who remain unknown.
8During the offences, doors and surrounds were damaged on some occasions. Given the timing of the housebreakings, which tended to be between two and three in the morning, it was reasonable to expect that someone was likely to be present in the targeted premises. It was also reasonable that these hours offered you the protection of being harder to identify and the circumstances of your entry to be more intimidating.
9It would appear that the break-ins proceeded regardless of the presence of occupants but would be terminated if challenged, particularly if the residents were non-Asian. The group were of the view that Asian persons were likely to be less resistant to demands, so the break-ins continued when Asian residents were found to be home. These observations are certainly reflected in the offences in which you were involved. This racial link to the decision-making on entry will not be used against you in sentence, it was simply part of the methodology employed.
10Jackson Balshaw, you have pleaded guilty on indictment to the burglary at
45A Ferndale Road, Sunshine North; an aggravated burglary, common assault and theft occurring at 22 Meadowbank Drive, Sunshine North; an aggravated burglary and theft of 14 Thurbro Drive, Keysborough; and an attempted aggravated burglary of 15 Aloomba Street, Chadstone.11In sentencing you for your crimes, I must have regard to the maximum penalties. The maximum penalty for theft is 10 years imprisonment; the maximum penalty for attempted aggravated burglary is 20 years imprisonment; the maximum penalty for aggravated burglary is 25 years imprisonment; and for common law assault is five years imprisonment. These maximum penalties reflect the seriousness with which Parliament regards these offences.
12The circumstances of your offending were set out in a document entitled “Summary of prosecution opening for plea”, dated 18 August 2020. This was an agreed document confirming your acceptance of all the elements of the offences and the factual basis on which I am to sentence. It is a detailed document and has only been summarised by me in the admitted facts to which I will now refer.
13I start with the offending on 3 October 2018. Charges 1 to 4 occurred on that date at two separate addresses, being 45A Ferndale Road, Sunshine North and 22 Meadowbank Drive, Sunshine North.
14I accept that it was part of your initial intention on 3 October 2018 that two addresses be approached. On this occasion your co-accused were Rhys Abela-Rogers, Dylan Farrugia and Abdulahi Ali. At this point in time, Mr Abela-Rogers had been involved in two previous home entries in a similar manner on 10 and 26 September 2018, Mr Farrugia in one previous home entry on 26 September 2018 and, similar to you, this was Mr Ali's first involvement.
15At around 2.30 am on 3 October 2018, CCTV footage from external cameras at residences in Ferndale Road, Sunshine North record a light-coloured vehicle driving in the street, park and then persons from that vehicle walk towards a townhouse at 45A Ferndale Road. The resident was not at home, hence the charge of burglary.
16A neighbour heard loud noises and banging coming from inside 45A and contacted 000. He observed multiple torch lights within the residence and a number of persons to leave.
17Police attended and observed that 45A appeared to have been broken into, as the front security door had been removed and the door had been damaged. They located seven cannabis plants in the garage.
18That completes Charge 1, that of burglary.
1922 Meadowbank Drive, Sunshine North is approximately 2 kilometres from Ferndale Road and had internal and external CCTV cameras fitted. That CCTV footage records that at 2.45 am, Rhys Abela-Rogers, Dylan Farrugia, Abdulahi Ali, you and an unknown male approach the house. Both you and Dylan Farrugia were carrying garden shears. The five who then entered the premises were masked and wearing gloves. The Crown concedes that at the time of entry, you did not know that the shears you carried might be used as an offensive weapon. However, Rhys Abela-Rogers was carrying a crowbar that had a torch attached to it. It is accepted that you were aware that this item was available for use as an offensive weapon. The charge in those circumstances is particularised as entry with an offensive weapon in circumstances where you knew that a person was then so present or were reckless as to that presence. Entry was forced through the front door.
20That house was the home of Linh Nguyen. Also in the house at that time were his partner, Phuong Doan, and two others. At the time of your entry, they were all in bed sleeping. Nguyen heard a noise and got up. He found offenders inside the house and confronted them. They pushed him away and ordered him to lie on the floor. They then searched the house but there was no cannabis.
21Internal CCTV footage records Rhys Abela-Rogers standing close to Nguyen when speaking to him, with a crowbar pointed at Nguyen's chest or stomach. At one point, you, Jackson Balshaw, searched through a jacket. Nguyen walked towards you. You then faced him, raised you garden shears above your head and pointed them at Nguyen, forming the basis for Charge 3, common assault. Rhys Abela-Rogers used the crowbar to hook Nguyen by the back of the neck and pull him back, before then raising the crowbar above his head and poking Nguyen in the chest. Shortly thereafter all offenders left, taking with them a large television, an Apple iPhone and a purse, the subject of the theft charge.
22It is submitted the assault on Mr Nguyen is low level. Whilst I accept that you did not make physical contact with your victim, this assault did occur in circumstances where there were five intruders in the victim's home, of which two, being you and Mr Abela-Rogers, were remonstrating with him in an extremely confronting manner. Each of you had weapons. Your role was an active one, with an air of impending physical violence, which I have little doubt Mr Nguyen would have found distressing in terms of his own safety and for that of the other occupants.
23This particular event is extremely serious offending. It was clearly well planned and highly sophisticated, involving the entry of targeted premises by multiple and disguised intruders carrying shears and a crowbar to effect theft and intimidate with little or no regard for the occupants.
24Whilst your first involvement, being confronted by a resident appeared to pose you with little challenge. Your victim, as I said, had genuine reason to fear for his safety and that of the other occupants. You, alternatively, had the safety and intimidation of disguise, the weight of numbers and also the implements carried. This circumstance with the occupant was alarming and in my view elevates the seriousness of this particular offence on the indictment.
25On the late evening of 19 December 2018 and the early morning of 20 December 2018, police conducted surveillance and observed Rhys Abela-Rogers, Charlie Farrugia with Dylan Farrugia and, you, Jackson Balshaw, driving in Abela-Rogers' Toyota Aurion with false registration plates. It was for a period of some three hours in the early morning of 20 December 2018 that the Aurion drove around numerous suburban streets in Dingley, Noble Park, Springvale South and Deer Park. At 3.15 am, that Aurion returned to Damien Monro's residence, where the false plates were removed and the correct plates fitted.
26The purpose of this expedition was to identify locations for future burglaries.
27You are not to be punished for these observations; it is said to be part and parcel of the methodology being employed at the time - the scouting for and locating of potential targets. This does serve to highlight the sophistication, determination and planning involved. It also demonstrates that you were prepared to be involved in this planning and had not been deterred in any way by the events of 3 October 2018, only two and a half months earlier, an observation further supported by your next set of offending.
28Your involvement in the scouting and preparedness to be involved in a second set of offending, after considerable opportunity for quiet reflection, increases your moral culpability for the offending which then followed.
29That offending occurred at two premises on 17 January 2019. Charges 5, 6 and 7 all occurred on that date, one at 14 Thurbro Drive, Keysborough and the other at 15 Aloomba Street, Chadstone. All seven offenders were involved and are charged with aggravated burglary, particularised as entering with an intent to steal, knowing or being reckless as to a person's presence, of 14 Thurbro Drive, and with the theft of cannabis plants from that address. All seven offenders were also charged with the attempted aggravated burglary of 15 Aloomba Street.
30On 16 January 2019, Rhys Abela-Rogers told Abdulahi Ali that they needed another car as there were already four in his car. Ali was told to take you. He made contact with you and you made your way to his premises.
31A listening device and telephone intercept picked up a conversation on 17 January 2019, during which Rhys Abela-Rogers, Charlie Farrugia, Dylan Farrugia and Damien Monro discussed using FLIR devices, identifying cannabis grow houses, breaking into houses and meeting with Abdulahi Ali, Jake Synan and you to break into five houses overall that morning.
32Things were clearly escalating in terms of the number of offenders intended to be involved on a particular night and with an ambitious target of five premises, hence the need for “more manpower”.
33Abdulahi Ali, Jake Synan and you were in Ali's Toyota Camry. A FLIR was put into that vehicle and stolen numberplates were subsequently attached. At 2.22 am, Mr Abela-Rogers' Aurion and Abdulahi's Camry met and target addresses were discussed.
34At about 2.55 am on 17 January 2009, Abdulahi Ali, Jake Synan, Rhys Abela-Rogers, Charlie Farrugia and Dylan Farrugia broke into a house at 14 Thurbro Drive, Keysborough. It was you and Damien Monro given the role of staying with the two vehicles used to travel to that location, as was the usual arrangement. Post entry, loud banging could be heard on the listening device. Cannabis plants were taken and put into the Camry.
35Local police later attended at that house. The front door had signs of forced entry, with a trail for cannabis leaves from the front door, down the driveway. Cannabis was located inside the premises and you have pleaded guilty to the theft of cannabis from that residence.
36The Asian female present at the house at the time of entry declined to provide any information to the police.
37It was submitted on your behalf that you played a lesser role for the offending at 14 Thurbro Drive as you remained in the car whilst the other accused committed the actual aggravated burglary. As previously outlined, this was part and parcel of the modus operandi in which you had previously been involved - that is, each offender had their own role to play and this included someone remaining with the vehicle. Given your offending in October 2018, you would have been well aware of this when you chose to re-engage in this activity in January 2019 and having also participated in recognisance in December 2018. In this context and agreed understanding, remaining outside with the car at Thurbro Drive does not lessen your role. However, I note it is not suggested that you were involved in the planning stage for the approach to five premises on 17 January 2019 and that does reduce your role to some degree.
38After leaving 14 Thurbro Drive, the Aurion parked near 15 Aloomba Street, Chadstone at around 3.25 am. Rhys Abela-Rogers, Charlie Farrugia, Damien Monro and Dylan Farrugia had scouted that house and strong readings on a FLIR had been obtained from it. I accept you were not said to be involved in that scouting.
39Rhys Abela-Rogers and the Farrugias left the Aurion. Damien Monro remained as the driver. Abdulahi Ali's car was also in the vicinity, in which I understand you were a passenger. Loud banging and a male yelling loudly could be heard on the listening device. The four who entered returned to the Aurion shortly thereafter and discussed being confronted at the front door of the house by a large, Aussie bloke - not a “Nip” - and to then leaving. I correct myself from earlier: you and Synan were also said to be present at the house.
40When police attended the address on 25 January 2019, they observed that the front door had signs of attempted forced entry and 51 cannabis plants were in the garage and rear shed. The male resident would not provide information to police.
41Undeterred, you and your co-offenders then drove towards a third house that you intended to break into, that being at 22 Ruby Street, Preston.part of the ambitious plan to target five premises that evening. As you neared that address, a police divisional van approached. The Camry flashed its headlights at the Aurion as the police van approached. The Camry took off at a fast rate of speed on the wrong side of the road. The police van pursued the Camry attempting to intercept it but the Camry got away.
42Again, you will not be punished for your approach to 22 Ruby Street, Preston, but it does continue to inform the intention for 17 January 2019 and the well-planned nature of it. You returned to Abdulahi Ali's premises with Jake Synan and with Mr Ali.
43On 17 January 2019, Rhys Abela-Rogers and Charlie Farrugia were arrested, as was Dylan Farrugia, Abdulahi Ali and Damien Monro. You were arrested at the premises of Mr Ali on the same date and upon interview chose to make no comment, as is your right.
44Various searches of respective premises and vehicles were conducted by police and items of relevance to their investigation were located. These are particularised in the Crown opening document but included items used in the offending such as three FLIR, a crowbar with a torch attached, walkie-talkies, gloves, garden shears, a jemmy bar and facemask, further supporting the sophistication of this offending. No items of relevance were located by police in your possession.
45In general terms for this indictment, where theft is charged, being Charges 4 and 6, whilst representing a successful outcome, no value has been determined. On each occasion the theft is part of the intent on entry. I accept that the physical appropriation in the theft offences represents additional criminal conduct that is not an element of the burglary, committed in whatever form it is charged. Each burglary is the more serious charge on every occasion. It is my intention to make any term of imprisonment imposed for the thefts to be concurrent with the relevant burglary, as is conceded by the prosecution. This also reflects the basis on which your co-offenders have been sentenced. I take the same approach to the charge of common law assault, Charge 3.
46Whilst the same methodology was employed on each and every occasion in terms of the way the offending was committed, Charge 1 is charged as burglary, whilst Charges 2 and 5 are charged as aggravated burglary, noting Charge 2 involves the additional particularisation of the use of an offensive weapon.
47The burglaries are similar in their objective circumstances and seriousness in that they follow the established mode of offending: multiple offenders entering each targeted premises in the early hours of the morning. But care must be taken in sentence to take into account the different maximum penalties, the different particularisation and differing circumstances and gravity of each burglary event.
48For the incident at Meadowbank Drive, your co-offenders were charged with aggravated home invasion. The charge of aggravated home invasion carries the same maximum penalty as aggravated burglary, that being 25 years. However, s.10AC of the Sentencing Act requires that a term of imprisonment be imposed with a non-parole period of not less than three years for the charge of aggravated home invasion unless the court finds that ‘special reasons’ exist. ‘Special reasons’ were argued but not found in relation to Mr Abela- Rogers and Mr Dylan Farrugia and were not argued on behalf of Mr Ali.
49The sentence imposed on those involved in this particular offence - where charged as aggravated home invasion of Meadowbank Drive - must have sufficient regard to the maximum penalty of 25 years. The offending must be assessed using both the maximum sentence and the minimum non-parole period as guideposts. It must reflect the clear indication from Parliament that the offence of aggravated home invasion intends to capture the most serious instances of home invasion.
50However, as already stated, your participation in the offending at these premises - charged as aggravated burglary - represents extremely serious offending in my assessment of its objective gravity.
51I note that no victim impact statements have been filed. I accept the submission by the Crown that all persons are entitled to protection of the law, no matter what the circumstances. The fact that a victim is engaged in criminal activity at the time of the offending against them may be relevant to assessing the harm caused to the victim by the offending.
52Ms Nguyen, however, was entirely innocent. I accept that the invasion of his private residence in the early hours of the morning by masked offenders would have had been at least frightening, if not terrifying. Each of your victims had their private residence invaded, even if some of those residences had a combined usage. Nevertheless it remained an environment in which they were entitled to feel a degree of safety. It was also their home.
53In terms of the charges of aggravated burglary, being Charges 2 and 5 and an attempt at Charge 7, I am assisted by the decision in DPP v Meyers (2014) 44 VR 486, which includes a non-exhaustive range of factors to be considered in assessing the objective gravity. These include the offender's intent at the point of entry (whether to steal or commit assault or cause damage); the mode of entry (such as forcing a door or breaking a window); whether the offender was carrying a weapon; whether the offender was alone or in company; the time of day at which the burglary took place; what the offender knew or believed about who would be inside and/or about whether the person(s) would be; and whether the offender was someone of whom the victim was particularly frightened.
54On each occasion of aggravated burglary the subject of this indictment, the offending does represent violent entry into a residence in the early hours of the morning by multiple offenders wearing disguise and carrying implements. This circumstance would naturally be intimidating and frightening to any resident, and was undoubtedly meant to be. As referred to previously, it is highly probable that occupants would be at home at the hour that entry was effected. Residents indeed were home in three of the four break-ins in which you were involved Their presence did not deter you.
55Charge 2, as opposed to the other aggravated burglary where charged, is particularised as including the presence of an offensive weapon. This does represent an elevated seriousness. Otherwise, the intention to steal, possession of the crowbar and the state of mind as to the presence of the victims form part of the elements of the offence. As such, they cannot be described as aggravating factors that are additional to the offence itself. The offence, of course, is complete on entry.
56If not already obvious, I remain particularly concerned by the offences that involved a direct confrontation with a resident, particularly that which occurred at 22 Meadowbank Drive and reflected in Charges 2, 3 and 4.
57I have also been referred to and had access to the current “Sentencing Snapshot” of the Sentencing Advisory Council, No.237, in relation to the offence of aggravated burglary for those offences committed between the years 2014 to 2015, and 2018 to 2019. Such that they assist, they tell me that the median principal imprisonment length for the charge of aggravated burglary in the higher courts was one of three years. Total effective imprisonment lengths ranged from three days combined with a community corrections order to 12 years, and non-parole periods, where imposed, ranged from eight months to nine years.
58Overall, I assess the aggravated burglaries the subject of your indictment to be at the mid to high range for offences of their type.
59I turn now to your personal circumstances. Born in May 2000, you were 18 years of age at the time of your offending and were the youngest by six months of those involved. Your parents are Jodie Clark and Scott Balshaw and you have an older sister, Caitlyn. When aged 11 years, your maternal grandmother died. Your mother became emotionally distanced and came to suffer from depression. In that context she also came to abuse drugs. When you were approximately 15 years of age, your parents had been growing cannabis in the household to repay your mother's drug debts, leading to your parents then separating.
60Your mother effectively disappeared following the separation and you discovered her about three weeks later during an attempt to self-harm from within a motor vehicle. She was rescued, in effect, by you and your father. I accept that this event would have been extremely confusing, traumatic, and distressing for anyone, let alone a child of that person and a boy of only 15 years. It had come on the back of a fractured relationship with your mother and family upheaval.
61After this event, your mother initially returned to live with her sister and your father with his parents. You moved between these two homes before your parents then reconciled. It would appear to me that your parents have done their best to provide you with a solid foundation since this time, if not also before your mother's depression and the events associated with that which then followed.
62Your education has been somewhat tumultuous. You attended Victoria University Secondary College for year 7 to 8 and then moved to Creekside College, Caroline Springs for year 9. You regularly experienced difficulties at school and had periods of suspension. It may well be that these also coincided with the difficulties at home.
63Your parents then enrolled you in the Frank Dando Sports Academy which, whilst having an academic basis, has a particularly sports-related focus. You did extremely well at that school. Indeed you apparently attained the position of school captain before leaving part-way through year 11 and attending Holmesglen TAFE, where you completed a three-month pre-apprenticeship for plumbing.
64A reference was tendered authored by Ziad Zakharia, vice principal of Frank Dando Sports Academy. He describes that during your involvement with that school from 2014 to 2016 you “cheerfully submitted to our very rigorous physical education and academic programs and continued to do so throughout his stay with us”. He further notes that you were popular with fellow students and had a good relationship with all teachers. I take the contents of his reference into account.
65You have experienced your own difficulties with drug use. You tried alcohol at ages 14 to 15, began using cannabis at the same time and were using this drug daily by the age of 17 years. By then you had also abused MDMA on weekends and were regularly using cocaine from the age of 18. You also used methamphetamine two to three times a month over a six-month period coinciding with the period of your offending, at which time you were also abusing Xanax.
66I accept the submission made on your behalf that you were likely to be affected by drugs at the time of your offending in October 2018 and again in January 2019. I accepted that position in relation to each of your co-accused.
67It was submitted on your behalf, by reference to a decision of
McKee and Brooks [2003] VSCA 16, that when a person gains an addiction to drugs at a tender age, that is not an age of rational choice and there can therefore be a reduction of moral culpability for the offending. That decision is also authority for the converse - that is, self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice.68The combination of your youth, evidence of drug use without intransigent addiction, and the view that, whilst you have experienced traumatic events, your childhood could not be described as one with particular deprivation, abuse or disadvantage, leads me to the view that there should not be a reduction of your moral culpability for your offending in circumstances where you were also using drugs. My decision is also based on the written submissions made on your behalf that your motivation for the offending was for financial gain, as reported by you to psychologist, Mr Simon Candlish.
69The period of time from which you were initially charged, being 17 January 2019, until present, has also not been without its hiccups along the way. These indicate that at this stage, despite the significant supports of your family, an intimate relationship and employment, you are still struggling with your direction.
70On 8 March 2019 you were granted bail after being on remand for close to two months.
71On 1 July 2019 you were arrested in relation to drug possession and breach of bail and returned to the custodial setting. For these offences you were convicted and fined the amount of $600 on 5 December 2019. I do take the period between 1 July 2019 to 5 December 2019 into account in what has been described in discussions as Renzella time.
72On or about 6 December 2019, you were again granted bail and were released from custody and taken to the Bendigo Bridge Program, where you remained until around 8 February 2020, a period of some eight to nine weeks. This placement was part of your bail conditions.
73Material was tendered from the Bendigo Bridge Intensive Rehabilitation Program. During your stay there at one stage you were put on a behavioural management plan. The materials tendered indicated that there were some problems with your general behaviour in that setting but overall it was reported that you successfully participated in all program activities. You accomplished most of the goals established in your case plan.
74Reliance was placed on this time with reference to the decision of the
DPP v Akoka. I am told today, and it was probably raised on the previous occasion, that that submission was ultimately resiled from. Have I got that right, Mr Murphy?75MR MURPHY: That's correct, Your Honour.
76HER HONOUR: You were not working at the time of your offending. By contrast, in February 2020 you obtained employment the very day after you finished the Bridge Program as a labourer in the stonemason industry. This is work you apparently very much enjoy and in which you are very well regarded. Whilst there has been a hiatus in your employment due to the COVID-19 pandemic, you were recently able to return to full-time work. Your employer, Ashley Stevenson, has provided a reference. He describes meeting you the day after you got out from drug rehabilitation. He describes you as honest and upfront about your previous drug use and the pending court hearing. He describes you as dedicated, honest, reliable and as a valued employee. He describes you as well liked and well regarded in the workplace and I do take the contents of his reference into account.
77You live with your parents and are in a serious relationship which began in March of this year, having known your partner, Angela Camilleri, for several years. This is a healthy and positive relationship. Ms Camilleri has also provided a reference and speaks of your passion in the context of your employment and of your positive approach to the future. She describes you as remorseful for your offending and that, in her knowledge of you, your offending was out of the character that she understands. I do take the contents of her reference into account.
78You seem to have drawn benefit from the time in the Bridge Program and were obviously released into a stable and supportive environment with your parents, managed and established a stable relationship and full time employment, which in theory put you in good stead for the future.
79Subsequently and unfortunately, you have been charged with further offending related to drug possession and driving charges alleged to have occurred on 26 August 2020. I am told it is your intention to plead guilty to these matters at some time next year. Whilst relatively minor offending, it was in the week prior to your plea and again whilst on bail. It does demonstrate that your learnings from both periods of remand and your drug rehabilitation program require reinforcement and impacts, albeit slightly, on the assessment of your future prospects, given the positives you had in your life at that time.
80I remain concerned about what would be a continued return to drug use when you would otherwise have little reason to do so. If this continues, your future prospects will be marred. However, your considerable supports and the value gained from the Bridge Program still lend themselves to an assessment that you should have positive prospects for rehabilitation.
81Your mother gave evidence at your initial plea hearing on 4 September 2020. She had previously prepared a written reference dated 17 August 2020 in which she explained that you started using drugs from around 14 to 15 years of age, in what she believed was a coping mechanism due to family stress. She explained that she was severely depressed around the time and had used drugs herself from 2012 to 2015. She explained that in June 2015 she did attempt suicide and was found by you. Since this time she has maintained her sobriety but believed, undoubtedly rightly, that her attempt at suicide has had a traumatic effect upon you.
82In her evidence she confirmed the contents of her reference and I take both her reference and her evidence into account. She believes you started using drugs when she was recovering at her sister's house. She believes that you did not trust her, you resented her and she observed the relationship between you to deteriorate. She believes you turned to heavy drug use after you left the Dando Sports Academy but prior to that had been using some marijuana. You apparently left the family home in August 2018 in the context of arguments and, as we know, were arrested in January 2019 in relation to the charges the subject of the indictment. You mother made observations of your response to the two periods of remand prior to your plea and gave evidence that the first remand did not impact on you in the same way as your second period of remand. She believes the second remand led you to want to make positive changes and saw that the Bridge Program was beneficial. You have been at home since your stint in rehabilitation. Whilst it does not appear at the time of giving her evidence she was aware of your offending in August of this year, she believes you are honest about your drug use and that your relationship is greatly improved. You continue to have the support of your mother and father.
83References were also tendered from your grandfather, who notes your shame and disappointment in being involved in the offending. He remains supportive of you. Your sister, Caitlyn, has provided a reference as to the transformation you have undertaken since being in drug rehabilitation. She considers you to be her best friend. I take the contents of these references into account in terms of additional supports available to you, your expressed remorse and your future prospects.
84A psychological report authored by Mr Simon Candlish dated 15 August 2020 was also tendered on your behalf and Mr Candlish gave evidence on
4 September 2020.85You explained to Mr Candlish that at the time of the offending you were associating with peers from your neighbourhood who had been involved in criminal activity and became interested in making money through stealing cannabis and selling this drug. Mr Candlish commented that testing results suggest a personality style with a degree of adventurousness, risk-taking and a tendency to be impulsive. You were not considered to meet the criteria for major depression or anxiety related disorder. You were not considered to meet the criteria for a personality disorder.
86In terms of the risk of future offending, Mr Candlish found that you fell into the low risk category for reoffending in an aggressive manner whilst committing a general offence such as burglary. He found that you presented with a moderate low risk for a physical fight with a stranger male. Your risk, perhaps obviously, is likely to increase in the context of substance abuse and association with negative peers.
87Mr Candlish viewed that the period of time, a composite of your two remand periods prior to your plea, appeared to have a deterrent effect.
88He further opined:
“If Mr Balshaw was sentenced to a period of imprisonment, this might impact on his employment prospects and if this occurred, this might then contribute to a sense of pessimism and self-destructive behaviours such as re-associating with negative peers, relapse to substance abuse and possible re-engagement in general offending. Further imprisonment might expose him to further antisocial behaviours and attitudes that are more prevalent within this environment at an age where he is still impressionable and socially immature.”
89I accept these assessments as to your potential response and potential impacts of imprisonment. They are also perhaps obvious. He recommends that you might benefit from psychological intervention and treatment for your substance abuse, both of which also appear to be obvious. In his evidence, Mr Candlish referred to your avoidant personality style. In terms of your periods of remand, he described you as “bullet-proof” the first time but agreed that the penny began to drop during your second remand. Whilst he also did not appear to be aware of your offending in August 2020 at the time of his evidence, he assessed your prospects of rehabilitation as being relatively good as you responded well to appropriate interventions. I doubt that your reoffending in August 2020 would have had great impact on that assessment.
90I accept the contents of his report and his evidence.
91You have one prior appearance at the Sunshine Children's Court on 5 April 2018 in relation to charges of possessing amphetamine, exceeding the prescribed concentration of alcohol, stating a false name and learner driver offending. You were placed on a good behaviour bond until 5 April 2019 and would have been subject to this order at the time of the offending on the indictment, aggravating your offending. Nevertheless, you would have been 17 at the time of this appearance for relatively minor offending, which in my view has little import into the sentencing mix other than supporting your admitted attraction to cannabis.
92Chronologically, you pleaded guilty at a relatively late stage, certainly in comparison to each of your co-accused. Your plea of guilty, as I have said, was entered on 27 July 2020 in circumstances where I am told there was one particular charge in dispute. You were also originally charged with aggravated home invasion and theft at 22 Meadowbank Drive on 3 October 2018. After further discussions between the parties you entered a plea of guilty, as we know, to aggravated burglary, theft and common law assault, where the factual basis was substantially the same but for your knowledge as to the use of the garden shears you carried upon entry to the premises. I am told you were always likely to enter a plea of guilty to the earlier burglary on 3 October 2019 but that your offending in January 2019 was to be put to its proof.
93It seems that closer examination of this chronology allows some assessment of the plea occurring at a point in advance of the latest stage, and certainly after what would be described as an early stage. I will still attach some weight in your favour to the timing of your plea but the real benefit from your plea of guilty comes in its utilitarian value in sparing the need for witnesses to re-live the various events, and the time and impact on the court.
94Relevantly, your plea has occurred during the COVID-19 pandemic. Your plea in the context of that pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and trial dates as yet remain unfixed.
95I do accept your plea as one of remorse and these factors will all be taken into account in your favour.
96However, denunciation, protection of the community, general deterrence and specific deterrence do loom large for your offending, given its highly orchestrated nature, its ambition and your preparedness to be involved on two separate occasions and the recognisance.
97The totality principle requires that where an offender is being sentenced to multiple terms or is to otherwise serve multiple sentences, then the sentencer should ensure that the total sentence remains just and appropriate for the whole of the offending. This is a fundamental principle in any event but has particular relevance in the sentencing on this indictment involving multiple offences and multiple factors to be taken into account.
98There must be an appropriate relationship between the totality of the criminality and the totality of the effective length of the sentences.
99When sentencing for multiple offences, a court should not impose artificially inadequate sentences to accommodate cumulation. A total effective head term that satisfies the requirements of totality prefers the imposition of appropriate individual terms that satisfy all the sentencing objectives, and then to make them wholly or partially concurrent.
100I accept the submission that on days where two offences occurred in close proximity timewise, such as the charges reflected in numbers 1 through to 4, which all occurred on 3 October 2018, and then Charges 5, 6, and 7, which occurred on 17 January 2019, there is more scope for moderation of any cumulation between offences to reflect that overlap than there is between offending which occurred on disparate dates.
101Proportionality must also be reflected. That is, the sentence imposed should be proportionate to the gravity of the offence considered in light of the circumstances.
102The parity principle demands that any sentence imposed reflects differences in the culpability and personal circumstances of co-offenders and avoids unjustifiable differences in co-offender sentences. Each offender involved in this serious criminal activity contributed to different offences which have occurred over the defined period. You had an equal role in the offending with that where you do have co-offenders, although your role is slightly elevated in Charge 2 where there was a direct confrontation with a victim, as it was for Rhys Abela-Rogers.
103Be that as it may, the offending on 3 October 2018 was your first when, by that time, Mr Abela-Rogers, also 18 at the time, and Mr Farrugia, 22 at the time, had been involved in home entries prior. Mr Ali also entered this crime spree at the same time but was over two years older than you and had a serious criminal history. His prospects of rehabilitation were more limited and in my reasons he did not attract the full benefit of the sentencing considerations in relation to young offenders.
104In terms of those principles, in Azzopardi, Baltatzis, Gabriel (2011) 35 VR 43, at paragraphs 34 to 36, Redlich JA made clear the reasons to prioritise youth as a sentencing consideration. These include that, firstly, young offenders are immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct. Secondly, it is recognised by the Courts the increased potential for young offenders to be rehabilitated, which is in the public interest. And, thirdly, incarceration can impair rather than enhance a young offender's prospects of rehabilitation.
105I accept that each of these considerations have full application to your case and have indeed been specifically referred to by Mr Candlish. In his evidence he referred to your immaturity.
106Whilst there are occasions on which the sentencing principles as they relate to youth can take a back seat, this is not one of those cases in terms of your circumstances, and your youth will be given full weight in the sentencing mix.
107It was initially submitted on your behalf that I could impose what is referred to as a “combination sentence”, in that I could consider a period of imprisonment in combination with an extensive period on a community corrections order. Section 44 of the Sentencing Act states that when sentencing an offender in respect of one or more than one offence, a court may make a community corrections order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (and after deduction of any period of custody that is reckoned under s.18) is one year or less. I was not satisfied that your period of time on remand, even combined with any future period of imprisonment being restricted to one year or less, was sufficient to reflect the relevant sentencing considerations.
108The Crown position has always been that the seriousness of the offending require the fixing of both a head sentence and a non-parole period.
109I have been referred to numerous cases by both the prosecution and defence and have had recourse to each of those decisions.
110Submissions were then made on your behalf that I should consider sentencing you to detention in a Youth Justice Centre. The submission was that a combination of your youth, plea in the time of the COVID-19 pandemic and the different charge in respect to the offending at 22 Meadowbank Drive allowed for a sentence that was disparate, and justifiably so, from that of your co-offenders. I note that only Rhys Abela-Rogers argued for a Youth Justice Centre sentence in relation to his offending at 22 Meadowbank Drive and a number of your offenders could not avail themselves of such a disposition.
111I did have you assessed as to your suitability for a Youth Justice Centre order. This was to ensure that I was properly informed. Whilst I note that you were assessed as suitable, on close and considered reflection I am of the view that the offending itself and your role in it is simply too serious to be reflected in an order of that type, particularly as I am restricted by s.32(3) of the Sentencing Act to a total of four years in detention. I do not see this period as sufficient to reflect the overall gravity of your offending, even taking into account the relevant sentencing considerations which are considerably in your favour.
112I am well aware that gaol is a situation of last resort.
113I do accept the submission that there is merit in you having an extended period of supervision upon your return to the community, which in itself affords community protection in supporting your rehabilitation and being able to respond should you not meet the expectations of parole.
114The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.
115I must also balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.
116I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act were relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of totality, proportionality and parsimony.
117I do now turn to sentence.
118Charge 1, burglary, you are convicted and sentenced to 15 months imprisonment.
119Charge 2, the aggravated burglary at 22 Meadowbank Drive, you are convicted and sentenced to four years and eight months imprisonment. This is the base sentence.
120Charge 3, common assault, you are convicted and sentenced to four months imprisonment.
121Charge 4, theft, you are convicted and sentenced to 12 months imprisonment.
122Charge 5, aggravated burglary at 14 Thurbro Drive, Keysborough, you are convicted and sentenced to three years and eight months imprisonment, of which three months is cumulative upon the sentence imposed on Charge 2.
123Charge 6, theft of cannabis plants, you are convicted and sentenced to 12 months imprisonment.
124Charge 7, attempted aggravated burglary at Aloomba Street, Chadstone, you are convicted and sentenced to two years and six months imprisonment, of which one month is cumulative on the sentences already imposed on Charge 2 and Charge 5.
125The total effective sentence is therefore one of five years.
126I fix a period of two years and 10 months before you are eligible for parole and reckon as already served a period of 196 days.
127Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of five years and 10 months imprisonment with a minimum of four years and six months before being eligible for parole.
128Thank you, I will close the court till 10.30 tomorrow.
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