Director of Public Prosecutions v Barallon
[2014] VCC 1335
•20 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-13-00626
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADEN ROLAND BARALLON |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2014 | |
DATE OF SENTENCE: | 20 August 2014 | |
CASE MAY BE CITED AS: | DPP v Barallon | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1335 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited: Hogarth v R [2012] VSCA 302, DPP v Vellaand Ray [2014] VSCA 140
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP (Plea) For the DPP (Sentence) | Ms D. Hogan Ms L. Stevenson | Solicitor for Office Public Prosecutions |
| For the Accused | Mr D. Sala | Balmer & Associates |
HIS HONOUR:
1 Aden Barallon, you have pleaded guilty to one count of aggravated burglary and one count of recklessly causing injury. The circumstances of your offences were set out in the Summary of Prosecution Opening. In the early hours of 28 October 2012, you and one Jason Pearson attended at a private residence in Bunyip. Mr Pearson had until a short time before, been involved in a relationship with your sister. She had ended that relationship. She had, it seems, formed a new relationship with one Peter Shegog. Pearson was, it seems, unhappy with this turn of events.
2 You and Pearson had set out to find your sister. You first attended at premises in Drouin where your sister generally resided with your grandmother. Your sister was not there. You proceeded to an address in Bunyip where Shegog resided with his parents. He lived in a bungalow at the back of the main residence.
3 You and Pearson proceeded to the bungalow where Shegog and your sister were located. Pearson ripped off the fly wire door off its hinges. He entered the bungalow and assaulted Shegog on a number of occasions to the head. Shegog fell to the floor. Not surprisingly, your sister was distressed at these events. At this point, you had remained outside the bungalow but in close proximity. Shegog was dragged outside the bungalow. Shortly afterwards you punched Shegog to the head. He then managed to escape from the two of you. It would appear that you then left the premises whilst Pearson remained and caused further damage to the bungalow and its contents.
4 Shegog suffered injuries consisting of a bloodied and bruised right eye, scratches on his hands and a laceration to his knee. He was referred to a plastic surgeon, although it would appear that no treatment along those lines has been provided to him.
5 You were arrested on 29 October 2012. You were interviewed by police and provided “no comment” answers.
6 You are currently aged 20. Your parents separated when you were aged approximately 10. From your early teenage years, you commenced consuming alcohol and engaged in drug use. Initially, you used cannabis and later progressed to amphetamines and to methylamphetamine (ice).
7 You left school initially when aged 14 as a consequence of disruptive behaviour and failing to attend, but later returned to school when you were aged 15 and did in fact complete Year 12.
8 Throughout, you have resided with your mother and siblings.
9 You have a number of prior convictions which are of relevance to these charges:
(i)In August 2008, when you were aged 14, you were sentenced in the Children’s Court for recklessly causing serious injury. You were released on a youth supervision order for a period of nine months and ordered to undergo alcohol abuse counselling.
(ii)In May 2010, when you were aged about 16, you were sentenced for recklessly causing serious injury and released on a youth supervision order for a period of six months, again with an order that you undergo alcohol abuse counselling.
(iii)In September 2010, you were sentenced for wilfully damaging property and released on a good behaviour bond.
(iv)In November 2010, you were charged again with wilfully damaging property. That charge was dismissed on the condition that you comply with the good behaviour bond.
(v)In January 2013, you were convicted of intentional criminal damage, unlawful assault, assault in company, failing to answer bail and intentionally damaging property. You were convicted and released on a community correction order for 12 months upon conditions that you perform unpaid community work for 50 hours and undergo treatment for drug abuse and dependence.
It would appear that the offences the subject of this order were committed in about mid-2012. It was only a few months later that the subject offences were committed in October 2012.
10 Since the commission of these offences, it appears that in July 2013 you were convicted of offences committed on 4 February 2013 consisting of making a threat to kill, burglary, theft, failing to stop a vehicle on police request and using an unregistered motor vehicle. These offences constituted a breach of the earlier community corrections order. You were resentenced for those earlier matters and a further community corrections order was made. That community corrections order is still current. Although it was scheduled to have been completed by late July 2014, it appears that you have yet to complete the number of unpaid hours of community work. I was told by your counsel that there is still some 70 hours of unpaid community work to be performed.
11 That requirement to perform unpaid community work is presently on hold because some weeks ago you fractured your collar bone playing football and are temporarily unfit to perform such work.
12 For someone aged only 20, your criminal record could only be described as breath-taking. There would be very few people of your age with anything like your criminal record. If you are proud of it then that is a very sad thing. Your counsel has submitted on your behalf that since the offences were committed in February 2013, you have become a different person. Your mother gave sworn evidence in this Court supporting that allegation. According to her, a number of years before February 2013 you were obviously and regularly affected by drugs; you associated mainly with older people; you were depressed; and you were unable to be trusted with the simplest of things like looking after younger members of your family.
13 Your mother is of the view that since February of 2013, you have not consumed drugs and that you have woken up to yourself. She believes that the drugs are out of your system. She gave evidence that you have remained in a steady relationship with your girlfriend and that you are now living a relatively normal life around her home. You apparently engage in cooking. You look after your younger sibling. You appear to love the work that you are performing at the moment and your independence. You have resumed playing football and enjoy that activity. Until your recent collar bone fracture, she told me that you have rarely, if ever, missed a training session or game. You help out with the Auskick organisation which involves younger children and you do that on a voluntary basis. Your mother regards you as having returned to the family.
14 Your counsel tendered a number of written character references. Ms Van Der Headen, the secretary of the Longwarry Football Club, has described you as a hardworking and enthusiastic member of the club, popular and well-liked by everybody from the club. She specifically mentions your contribution to the Auskick organisation.
15 Your current employer is Lactalis Jindi Pty Ltd, a cheese manufacturer. Clint Bransgrove of that company describes you as an excellent employee, punctual, competent, and diligent. He describes your standard of work as high and is happy to have you continue to work for him. He is well aware of your record because you have been unable to work on Tuesdays with the company due to your performance or your requirement to perform unpaid community work as part of your community correction order.
16 Cheryl Bachelor, who seems to have known you for about seven years, also speaks highly of you.
17 Your counsel has pointed to your relatively impressive record in the context of your community correction order. Counsel for the DPP has confirmed that she has spoken to Corrections Victoria who has confirmed that, although you have 70 hours remaining out of a total 200 hours of unpaid community work ordered, your compliance with the terms of that order have generally been “really good”.
18 I have been provided with a report from Corrections Victoria indicating that your general compliance with your existing community corrections order has been good and that you are considered to be suitable for a further community correction order in respect of these offences.
19 The charge of aggravated burglary is a serious one. The Parliament of this State has legislated that a maximum period of imprisonment of 25 years is applicable to that offence. That is indicative of how seriously the community, through Parliament, assesses the offence to be.
20 The Court of Appeal has described an offence such as yours as being a “confrontational aggravated burglary”.
21 I am aware that in an earlier case, Hogarth v R[1], the Court of Appeal was critical of light sentences imposed by this Court for this offence. However, in the later decision involving two people, of DPP v Vellaand Ray[2], the same Court emphasised that the decision in Hogarth did not set a revised guide post for confrontational aggravated burglaries generally. The ranges of penalties was held to only relate to the appellant in that particular case. Clearly, each case needs to be assessed on its own merits and circumstances. In this case, your counsel has submitted that I should take into account the following matters:
[1] [2012] VSCA 302
[2] [2014] VSCA 140
(i)You are a relatively youthful person and you were aged only 18 at the time of the offences.
(ii)The offences were committed with a co-offender who was approximately six years older than you. He appears to be the main culprit in the assaulting of Mr Shegog and the person who ripped off the door of the bungalow and caused extensive damage to the contents of it. Although you clearly aided and abetted him, your direct involvement appears to be limited to one punch of Mr Shegog at a time after he had exited the bungalow and when he was plainly attempting to escape from the two of you.
(iii)There has been a delay of almost two years since these offences were committed.
(iv)You were intoxicated at the time, at least to some extent.
(v)No weapons were used in the commission of the offences.
(vi)You had no particular motivation for any of these offences as compared with your co-offender. You personally had nothing to gain.
(vii)Your behaviour since February 2013 has, it would seem, been exemplary. He points to the evidence of your mother that you have quit drugs and have, in effect, become part of the family again. Those matters are said to be indicative that you have excellent prospects of rehabilitation.
22 On the other side of the coin, there are a number of aspects of this case which are of great concern to me and would arguably point to the imposition of a custodial sentence. These include:
(i)The nature and extent of your prior convictions as previously outlined.
(ii)The fact that since the commission of these offences, you have been involved in other serious and violent offences.
(iii)The nature of your assault of Mr Shegog when he appears to have already been suffering the consequences of the serious assault by your co-offender at a time when he was endeavouring to escape from the bungalow, constituting no danger whatsoever to you, was decidedly cowardly.
23 It seems to me that you have reached a position where it is no exaggeration to say that your life is on a precipice. It would be understandable for many people to think that you have received enough chances so far and you have received lots. It would be understandable for people to say, and with reason, that the time has now come for you to gaol and spend a considerable amount of time there. Such a view would be perfectly understandable.
24 Notwithstanding the reasonableness of those views, I have determined not to send you to prison. I have determined to give you one further chance for you to demonstrate to the court and to the community that you are able to adjust your behaviour, you are able to stay off drugs and you are able to resist violent crimes such as you have committed on a number of occasions now. It is up to you to demonstrate that you are capable of becoming a law abiding citizen and a contributor to your community and to your family.
25 I have received a report from Corrections Victoria, as I say. It indicates that you are considered to be a person suitable for yet another community correction order. If you consent to such an order, I intend to order that you be convicted and impose a community correction order in respect of you for a period of 18 months from today. The terms of such an order will include the usual terms which are set out in s45(1) of the Sentencing Act – namely:
(a)that you must not commit, whether in Victoria or outside Victoria, during the period of the order, that is 18 months, an offence punishable by imprisonment;
(b)that you must comply with any obligations or requirement prescribed in the regulations;
(c)that you must report to and receive visits from the Secretary to the Department of Justice or his or her nominee during the period of the order;
(d)that you must report to the Community Corrections Centre specified in the order within two clear working days of this order coming into effect. So that is by Friday;
(e)that you must notify the Secretary of any change of address or any change of employment within two clear working days after that change;
(f)that you may not leave the State of Victoria except with the permission of the Secretary; and
(g)that you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with these orders.
26 In addition to those standard orders, there will be conditions that:
(i)that you must perform unpaid community work of 150 hours during the course of the 18 months of this order. That is over and above the 70 hours that you have still to perform, assuming that is still the right number of hours;
(ii)you be the subject of a Supervision Order in accordance s48E of the Sentencing Act 1991.
(iii)you must undergo treatment as directed by the Secretary with regard to:
(a)assessment and treatment (including testing) for drug abuse and dependency;
(b)assessment and treatment (including testing) for alcohol abuse or dependency;
(c)any program that addresses the factors relating to your offending behaviour; and
(d)any mental health assessment and treating including psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility.
27 The reason I intend or propose making these orders, the effect of which is to avoid sentencing you to prison, is because of the following:
(i)your relatively youthful age; currently 20, 18 at the time of the offences;
(ii)the fact that you appear to be currently in a reasonably stable home;
(iii)that you are in stable employment at present, that you enjoy your work and that your employer speaks highly of the quality of your work;
(iv)that you have, it would seem, shown an ability to lead a law abiding life at least since February 2013 in contrast to earlier years;
(v)that you appear to be finally making some contribution to the community in which you reside, in that you are engaged in what is virtually full time employment and that you are partaking in local sporting activities and contributing your time on a voluntary basis to children’s sporting activities and you are to be commended for that.
(vi)you have, to a large extent, complied with your earlier community correction order;
(vii)Corrections Victoria consider you are at present a suitable person for a community correction order; and
(viii)that I am reluctant to send a person of your age to prison. If I did so, it is likely that you would come under the influence of older and more hardened prisoners and that your task of achieving some degree of rehabilitation and re-entering the community would become much harder.
28 It must clear to you that should you reappear before a Court in the future, charged with the sort of offences that bring you before the Court on this occasion, it is virtually certain that you will go to prison and go to prison for some considerable time.
29 Do you consent to a community correction order with those conditions?
30 PRISONER: Yes, Your Honour.
31 HIS HONOUR: Yes, just remain standing, please.
32 Aden Roland Barallon, you are convicted of one count of aggravated burglary and one count of recklessly causing injury and sentenced to a community correction order for 18 months from this date. The order will contain the conditions to which I have previously referred.
33 Pursuant to s6AAA of the Sentencing Act, I declare that, had you not pleaded guilty to these charges, I would have sentenced you to imprisonment for a term of 18 months with a minimum non-parole period of 9 months.
34 MR SALA: As Your Honour pleases.
35 HIS HONOUR: Just be seated, Mr Barallon, for the moment. In terms of ancillary orders, the prosecutor, is there orders sought under s.464ZF?
36 MS STEVENSON: There is, Your Honour.
37 HIS HONOUR: Mr Sala - - -
38 MR SALA: It was by consent, Your Honour.
39 HIS HONOUR: Yes, thank you. I will make an order. That order, Mr Barallon, is effectively that you must undergo a forensic procedure where a scraping is taken from your mouth. Scraping is a bit of an overstatement I think but a sample is taken from your mouth or a blood sample can be taken by means of an identification matter in case it is relevant in the future. I make that order because of the seriousness of the circumstances of the offending and also because it is by consent and I shall tell you that if you do not consent to the taking of the mouth scraping under supervision then a blood sample may be taken from you by the use of reasonable force.
40 Are there any other ancillary orders?
41 COUNSEL: No, Your Honour.
42 HIS HONOUR: The community correction order is required to be signed by Mr Barallon. Do you want to look at it, Mr Sala?
43 MR SALA: No, Your Honour, but if I might be excused from the Bar table I will escort your associate down. Thank you, Your Honour.
44 MS STEVENSON: Sorry, Your Honour, with the new 464 orders you need to specify which charges the orders relate to.
45 HIS HONOUR: Can I just have a look at that?
46 MS STEVENSON: Yes.
47 HIS HONOUR: I see. Is it sufficient that I identify them simply as Charges 1 and 2?
48 MS STEVENSON: Yes or all charges on the indictment; that's sufficient too.
49 HIS HONOUR: They were the only two on the indictment?
50 MS STEVENSON: They are, yes.
51 HIS HONOUR: Anything else?
52 MR SALA: No, Your Honour.
53 HIS HONOUR: I wish you all the best, Mr Barallon, but it would indeed be unfortunate if we were to see you again in this court.
- - -
0
2
0