Director of Public Prosecutions v Batsanes
[2024] VCC 1702
•25 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-00928
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL BATSANES |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 August 2024, 18 October 2024 | |
DATE OF SENTENCE: | 25 October 2024 | |
CASE MAY BE CITED AS: | DPP v Batsanes | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1702 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentence
Catchwords: Offending across eight incidents. Causing serious injury recklessly, attempted theft, theft, handling stolen goods, burglary, dangerous driving while pursued by police, and possession of a drug of dependence. Profound victim impact. Serious offending. Accused 18 at time of offending, still only 19 years old, with background of deprivation and trauma. Application of Bugmy and Verdins. Suitability for Youth Justice Centre Order (YJC). Not suitable for YJC and prospects for reform enhanced in adult system.
Legislation Cited: Crimes Act 1958, Sentencing Act 1991, Bail Act 1977, Road Safety Act 1986, Drugs poisons and Controlled Substances Act 1981, Control of Weapons Act 1990.
Cases Cited:Betrayhani v The Queen [2019] VSCA 150. R v Mills (1998) 4 VR 235. DPP v Tokava [2006] VSCA 156. R v Merrett, Piggott and Ferrari (2007) 14 VR 392. Azzopardi v The Queen [2011] VSCA 372. R v Verdins (2007) 16 VR 269. Ellis v The Queen [2021] VSCA 229. Bugmy v The Queen (2013) 249 CLR 571. DPP v Hermann [2021] VSCA 160. Bergman (a pseudonym) v The Queen [2021] VSCA 148. R v Chol [2022] VSC 341. R v Beary (2004) 11 VR 151. Young-Green and Ellis [2020] VCC 1793. Amr [2022] VCC 1381. Petrie [2021] VCC 731. Richardson [2020] VCC 1886. Rigoli [2019] VCC 1191. DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148. R v Novakovic(2007) 17 VR 21. Koukoulis v The Queen [2020] VSCA 19.
Sentence: Total effective sentence of 4 years and 10 months imprisonment with non-parole period of 2 years and 10 months.
PSD of 326 days.
s.6AAA: 6 years 8 months with a non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Hardisty | Office of Public Prosecutions |
| For the Accused | Ms C. Blakeney | Greg Thomas |
HIS HONOUR:
OVERVIEW
1You, Daniel Batsanes, were born in March 2005. You were only 18 years of age at the time that you engaged in the offending before me. You are still only 19.
2Over a period of about six weeks in late 2023, and during the course of eight episodes of criminality, you committed a staggering 22 offences.
The charges and related summary offences (RSO’s)
3You have pleaded guilty to the following charges on indictment P12557442.[1]
[1]By way of written plea, see s. 216 CPA.
1.Reckless cause serious injury (to PG) on 19 October 2023, maximum penalty of 15 years.
2.Attempted theft (spare tyre) on 19 October 2023, maximum penalty of five years.
3. Theft (of motor vehicle) on 17 October 2023, maximum penalty of
10 years.
4.Handle stolen goods (number plates) on 19 October 2023, maximum penalty of 10 years.
5.Theft (of motor vehicle Nissan Maxima) on 25 October 2023, maximum penalty of 10 years.
6.Theft (petrol) on 27 October 2023, maximum penalty of 10 years.
7.Theft (garage door remote) on 29 November 2023, maximum penalty of 10 years.
8. Burglary (residential premises in Mulgrave) 29 November 2023, maximum penalty of 10 years.
9. Theft (of motor vehicle), 29 November 2023 maximum penalty of
10 years.
10. Dangerous driving whilst being pursued by Police on 4 December 2023 maximum penalty of 3 years.
11. Possess a drug of dependence (Cannabis), on 4 December 2023 maximum penalty in these circumstances is 5 penalty units.
12. Possession of a drug of dependence (namely 1,4-Butanediol) on 4 December 2023 in circumstances that mean the maximum penalty is one year.
13. Possession of a drug of dependence (Methylamphetamine) on
4 December 2023, again in circumstances where the maximum penalty is one year imprisonment.
4You have also consented to this Court hearing and determining the following related summary offences.
RSO 5 Commit an indictable offence while on bail (Recklessly cause serious injury and theft of motor vehicle), maximum penalty of 3 months imprisonment – s 30B Bail Act 1977
RSO 8 Drive whilst disqualified (rolled up charge), maximum penalty of 2 years imprisonment – s 30 Road Safety Act 1986
RSO 10 Contravene conduct condition of bail (rolled up charge), maximum penalty of 3 months imprisonment – s 30 A Bail Act 1977
RSO 17 Failing to stop after an accident, being a subsequent offence (17 May 2019), minimum penalty of 14 days imprisonment and a maximum of 1 month imprisonment – s 61(5) Road Safety Act 1986
RSO 19 Possession of a controlled weapon (knife), maximum penalty of 1 year imprisonment - s 6 Control of Weapons Act
RSO 23 Fail to answer bail, maximum penalty of 2 years imprisonment – s 30 of the Bail Act 1977
RSO 27 Fraudulently use registration plate, maximum penalty of 2 months imprisonment – s 72(1) of the Road Safety Act 1986
RSO 30 Dealing with property suspected of being the proceeds of crime (various identification cards, bank cards, mail and keys), maximum penalty of 2 years imprisonment – s 195 Crimes Act 1958
RSO 32 Possess Sch 4 poison (Quetiapine), maximum penalty of 10 penalty units - s 36B(2) of the Drugs poisons and Controlled Substances Act 1981
The offending incidents
5The most serious by some margin of your offending is that which occurred during Incident 2. This involves the reckless infliction of serious injury on victim PG, then 52 years of age. Your co-accused for part of that incident is Calay Lyddy who was 19 at the time.
6Incidents 1, 4 and 7 involve thefts of motor vehicles from three separate victims:
7Incident 3 involves your non-compliance with bail
8Incident 5 involves a petrol drive off from Coles.
9Incident 6 involves your fail to answer bail.
10Incident 8 involves dangerous driving whilst being pursued by Police in a stolen car and includes a traffic collision with another driver during your attempt to evade Police
Orders that you were subject to
11On 2 September 2022 the Melbourne Children's Court disqualified you from obtaining a driver's license for 24 months, which encompassed the entire offending period.[2]
[2]That period has only just ended.
12On 5 July 2023 you entered into an undertaking of bail for an unrelated matter where the informant is Coppel at the Narre Warren police station, as well as two (2) further undertakings on 15 August 2023 for summary matters where the informants are Lardner and Negri.
13On 2 October 2023 the conditions of bail were consolidated by the Melbourne Magistrates' Court to include:
(a) Residential condition to reside at an address in Port Melbourne;
(b) Curfew condition to be at that property between 9:00 pm to 6:00 am, with a requirement to present at the front door upon request by Police; and finally
(c) Condition not to drive a motor vehicle.
14Despite the residential condition, you were known by Victoria Police to reside between two (2) properties. Namely the bail address with your ex-partner and in Hallam with your sister.
15You breached the above orders against your licence and orders regarding bail in a multitude of ways by the substantive offending before me.
Submissions and penalty
16You are very young and you have engaged in serious offending. You have a tragic personal history, even by the standards of tragedy that this Court sees regularly. You were assessed for a term of detention in Youth Justice Centre but are not suitable for such a disposition.
17I am going to sentence you to a term of adult custody and allow for what I consider to be a meaningful period on parole, should you be given that opportunity by the Adult Parole Board (APB) in due course.
18This case involved serious offending, a number of different offences, and often competing sentencing principles regarding deterrence, punishment, protection of the community and denunciation as well as the principles involved in sentencing young offenders and those who have suffered from real deprivation as a child and adolescent.
19I am indebted to Counsel for the way that they assisted me, both in writing and in their oral submissions.[3] I should note for their benefit that they will get a copy of my unrevised reasons before the close of business today, so they ought not think they need to take everything down quite so diligently.
[3]Exhibit D: Prosecution Submissions for Plea dated 7 August 2024 and Exhibit E: Crown Further Submissions dated 17 October 2024 furnished by Mr Hardisty and Exhibit 1: Pea Submissions dated 6 August 2024 and Exhibit 6: Further Submissions dated 18 October 2024 by Ms Blakeney.
OFFENDING [4]
[4]Taken from the (mercifully) abridged SPO 7 August 2024.
Incident 1 on 16 October 2023
20At 4:30 pm, Mr Condick parked his Ute on the nature strip outside his house in Mornington.
21At 4:30 am the next morning, his wife woke to discover the Ute was missing and the car keys had been taken from a table just inside the front door. Charge 3: Theft (motor vehicle)
Related incident on 17 October 2023
22At 9:00 am Ms Lipham parked her 2017 White Holden Astra with registration plates, on the nature strip directly outside her residence in Cranbourne.
23At 4:00 pm when she returned to her car, that both of her registration plates had been taken.
Incident 2 on 19 October 2023
24At 9:10 am, PG attended the Fountain Gate Shopping Centre in Narre Warren. He arrived in his 2015 Ford Falcon utility, parking on the top level, before entering the shopping complex.
25After finishing shopping 15 minutes later, he exited the complex and immediately noticed a white Ford Ute parked next to his Ford Falcon on the driver's side. This Ute was an early 2000s Ford Ute with checker plate steel on the rear tray and mag wheels.
26He immediately noticed this Ute because he felt that something was unusual, as the driver's door was open, and the car was still running. He noticed someone sitting in the passenger seat and the Ute's proximity to his own vehicle where there were so many free spaces in the lot.
27He approached the driver's door of the Ute and asked what they were doing. At this point, Lyddy stood up from the back, behind the rear tray of his Ford Falcon. Charge 2: Attempted theft (from motor vehicle - of a spare car tyre)
28PG believed that they were attempting to steal something from his car, so he said 'you're not going anywhere', and reached into the cabin of the Ute in an effort to remove the keys from the ignition, but was unsuccessful.
29Lyddy came over to him and slammed the driver's door of the Ute shut. PG had begun to back away, but the top of the door hit his right forearm causing a scratch.
30PG continued to back away and then you got out of the passenger seat. You walked directly towards PG who was about two (2) meters away and continued to back up. Lyddy remained hovering around the driver's door of the Ute.
31PG then observed you, holding a black machete about 50 centimetres in length. He asked 'what are you doing?', but he did not receive a response.
32Once you were within about half a meter of him, you raised the machete. As the victim raised his left arm to protect himself, you brought the machete down, connecting with the top of his left forearm. Charge 1: Recklessly cause serious injury; Charge (RSO): Commit an indictable offence whilst on bail (rolled up offence between 19 October 2023 and 25 October 2023)
33PG looked down. He saw that his forearm had been sliced open all the way down to the bone. He asked 'what did you do that for?' but received no response.
34You looked at his arm, before turning and walking back to the passenger seat of the Ute. One gathers from the description of your behaviour you were detached in some way from what you were doing, given your ingestion of drugs.
35The Ute drove off, with PG estimating the whole encounter to have lasted about 30 to 40 seconds.
36He entered the shopping complex in search of help. He approached a café to request an ambulance and was assisted by a security guard who called an ambulance and administered first aid. While waiting for the ambulance, his belt was used to tourniquet his left arm and towels were used to cover the wound.
37Paramedics arrived at 9:25 am and observed blood in the surrounding area and the victim to be pale, distressed and diaphoretic.
38Paramedics placed PG in the ambulance on a stretcher to treat by elevating his legs to increase the blood pressure and intravenously had to administer Fentanyl for pain relief. As well as properly bandaging the laceration.
39They transported him quickly to the Dandenong Hospital.
40Officers arrived at Fountain Gate and established two crime scenes, first in the carpark and second in the café. Officers Sanders and Hall located the victim's Ford Falcon and noticed the wire attaching the spare tyre to underneath the tray had been damaged, with the tyre still attached but laying low the bitumen.
41Officer Macdonald obtained CCTV footage covering the external surroundings of the Fountain Gate shopping complex, which at 9:03 am captured the stolen Ute. I note that on the Ute, the registration plates that would be, had been stolen. Charge 4: Handle stolen goods (registration plate)
42At 9:09 am the footage also captures the Ute at the top level of the car park, before leaving at a fast rate of speed at 9:13 am.
43At the Dandenong Hospital PG was assessed with the assistance of CT imaging as having:
(a) A fracture at multiple points along the ulnar with the resulting fragments having been pushed towards the internal body;
(b) A 15-centimetre laceration with adipose and muscle visualized; and
(c) A recorded a loss of finger and thumb extension.
44PG was treated with pain medication, such as oxycodone and underwent surgery to repair/restore multiple lacerated tendons of the exterior muscle of the finger site and to the left forearm, as well as the insertion of metal pins and plates to repair the fractured ulnar.
45PG was discharged from the Hospital two days later on 21 October 2023. He attended follow-up appointments with an Occupational Therapist who is a hand and upper limb surgeon. The outcome was:
(a)
Following an X-ray on 12 January 2024, after PG attended at
Dr Mandaleson's rooms who found no recovery of the extensor digitorum communis and extensor pollicis longus at that time; and
(b) In February 2024, the Occupational Therapist determined PG's left hand to have overall reduced grip and inability to raise fingers.
Incident 3 on 23 October 2023
46On that date at 10:30 pm and again 25 October 2023 at 1:06 am, Officer White conducted a bail compliance check at your purported address in Port Melbourne. On both occasions, you were not present in contravention of the curfew conditions of your bail.
47On both occasions, Julie Piper, your former partner, informed the attending Officers that you no longer lived there and she was unsure if you were still in a relationship. Charge (RSO): Contravene conduct condition of bail (rolled up between 23 October 2023 and 27 October 2023)
Incident 4 on 24-25 October 2023
48On 24 October 2023 at 6:00 pm, Fabian Puntaroni returned home to Noble Park, in his mum's Nissan Maxima.
49At 6:00 am the next morning he discovered the car was no longer in the driveway where he left it. Although both sets of keys were still in the house. He reported the car missing to police. Charge 5: Theft (of motor vehicle) Charge (RSO): Commit an indictable offence whilst on bail (rolled up between 19 October 2023 and 25 October 2023)
Investigation on 24-25 October 2023
50At around 7:30 am, Officer Kirk recovered the Ute bearing the stolen plates, in the Cranbourne area.
Investigation on the following day, 26 October 2023
51At 7:45 am Informant Rutherford attended the Quest Apartments in Narre Warren, an address linked to you. Footage exists of you in the Ute, being driven by Lyddy on the morning of the 19th.
52You were identified through a social media connection to Lyddy, your distinctive forearm tattoo and a composite image produced with the assistance of PG.
Incident 5 on 27 October 2023
53Anoop Kaura works as the manager at the Shell Coles Express in Endeavour Hills.
54During a shift at about 10:00 am, you drove the Nissan Maxima and parked next to pump 8 and filled the car with unleaded petrol, worth $70.37. You got back in the car and drove away without paying. That drive off was reported to police. Charge 6: Theft; RSO 8: Drive whilst disqualified (rolled up between 27 October 2023 and 4 December 2023) RSO 10: Contravene conduct condition of bail (rolled up charge between 23 October 2023 and 27 October 2023)
55Mr Kaura provided a copy of the receipt for the petrol taken and a copy of the CCTV to provide to police capturing the offending. The Police noticed the distinctive tattoo on your left forearm and that you were wearing all black clothing.
Investigation on 30 October 2023
56At 10:30 am, Crime Scene Officers examined the Ute and located the:
(a) Outstanding registration plate, still affixed to the Ute; and
(b) One outstanding stolen registration plate found behind the driver's seat, being the plates stolen from 17 October and previously affixed to the Ute during the incident that I have referred to as incident 2 on 19 October.
Incident 6 on 28 November 2023
57You answered your bail on 2 October and again on 2 November at the Melbourne Magistrates' Court, however, failed to attend on 28 November 2023.
Investigation on 28 November 2023
58Investigators executed a search warrant at your sister's house in Hallam.
59Located within the spare room was a pair of black pants, as well as a pair of black and white Nike Runners, matching those seen by you on the CCTV on 19 October 2023.
Incident 7 on 29 November 2023
60At around 7:30 am, victim Wijeyewickrema parked their Audi in the northern carpark off Sandown Park railway station.
61They locked the car and caught a train into work. You subsequently attended and smashed the front passenger side window of the Audi. You used VicRoads to learn Mr Wijeyewickrema's address and took possession of the garage remote. Charge 7: Theft (from motor vehicle)
62You then attended the Victim's address and gained access via the internal door from the garage. Once inside you stole the spare key to the Audi. Charge 8: Burglary
63You returned to the station carpark and drove away in the Audi. Charge 9: Theft (motor vehicle)
64When the victim returned at 4:00 pm, they could not locate their car. They searched the carparks for about 30 minutes before calling Triple 0.
65Later after being contacted by police, the victim noticed that the spare key for the Audi was missing from the kitchen drawer but nothing else had been taken from the house.
Incident 8 on 4 December 2023
66Officers Donnell and Lyons were patrolling Dandenong in an unmarked police vehicle as part of an active search for you. At 10:20 am, they located you in the driver's seat of the Audi, parked in the service lane outside 39 Princes Highway.
67To box in the Audi, Lyons positioned the vehicle behind you and then activated the lights and sirens, and Donnell exited the vehicle and began to approach the car.
68This caused you to start the engine and drive forward at speed over the nature strip onto Princes Highway, entering on the wrong side of the road against the flow of traffic.
69At this time, Mr Alam was driving along in his Hilux along Princes Highway in the middle of the three lanes. He saw you drive over the medium strip and continue in his direction from the left. He slammed on the brakes to try and avoid a collision, but that was too late.
70You crashed into his front passenger side. This caused damage to the front left panel and front bumper. The collision also jammed the front passenger door shut, and the front bumper of your car became detached.
71Alam was not injured in the collision, just in shock and a little dizzy. Remarkably, his Hilux was still in a drivable state following the collision.
72You did not stop though, even after you crashed. Instead, you continued to drive about 250 meters along Princes Highway, remaining on the wrong side of the road and had several near misses with oncoming vehicles. RSO 17: Fail to stop vehicle after accident; RSO 8: Drive whilst disqualified (rolled up between 27 October 2023 and 4 December 2023)
73Lyons took pictures of the damage to Alam's Hilux and collected the bumper from the Audi. Upon closer inspection, Donnell realised it was a cloned registration plate affixed to the bumper. RSO 27: Fraudulently use registration plates
74Officer Brookes obtained footage from the City of Greater Dandenong CCTV camera positioned at the intersection of Princes Highway and Clow Street. The footage captures you driving on the incorrect side of the Princes Highway into oncoming traffic, narrowly missing a white hatchback that was turning into the Princes Highway
75Police Air Wing attended the vicinity and maintained aerial observation of you, as you continued to drive erratically throughout Endeavour Hills, Dandenong, Keysborough and Noble Park. Charge 10: Dangerous driving whilst being pursued by police
76At 11:08 am, Air Wing observed you drive to the Sandown Park Railway Station and abandon the Audi on Flinders Street in Noble Park
77From there, you ran through the station underpass onto Lightwood Road. Officers caught up with you. Officer Read announced himself, causing you to throw a sheathed knife to the north and a mobile phone to the south. You then lay down, and did not resist and gave the officer your correct details.
78You were transported to Narre Warren police station for interview.
79Officers located the following items of interest from the recovered Audi and from you:
(a) A watch;
(b) Apple iPhone 11
(c) Knife in sheath; RSO 19: Possess controlled weapon
(d) Small container of 1.4 Butanediol, with total weight of 17.2 grams; Charge 12
(e) Zip lock bag containing 0.1 grams of cannabis;
(f) Tin containing of 0.4 grams of cannabis mixed with another substance;
(g) Zip lock bag containing seven white pills of Quetiapine, with a total weight of 5.4 grams; RSO 32: Possess Schedule 4 poison (Quetiapine)
Interview and remaining investigation
Investigation on 4 December 2023
80At 1:30 pm, investigators reviewed the contents of your iPhone on which they found a message that you had sent to Lyddy on 19 October 2023, at 10:21 pm stating:
'Okay bro but oi look seriously yeah I'm sorry brother work I went abit far on that one word I'm sorry you had to witness that brother that was the bad side of me work but love ya be safe plz bro.'
81At 3:20 pm, you participated in a Record of Interview (ROI) at Narre Warren, conducted by Officer Hodgens and corroborated by Officer Macdonald.
82When asked about your involvement with the Ute (incident 1), you stated you were in the car when it was stolen, but had nothing to do with entering the owner's property.
83When asked about your involvement in incident 2, at Fountain Gate, you made admissions.
(a) Initially when you were asked what happened, you stated 'some cunt tried to be a hero… I went a bit too far yeah;'
(b) And when asked to expand on that comment, you stated 'He was being a hero and being smart by trying to fuckin' - you know, if you see something happening, unless you wanna fuckin' get some - unless you want something to happen you stay the fuck – keep your mouth shut. That's all I can say. And I – I bet you - youse know that, too. Anyone that fuckin' wants to jump in the way and try to be a hero is gunna get fuckin' hurt';
(c) You stated you could not remember why you had attended Fountain Gate that day or remember much of the day's events. When asked, you confirmed you were drug affected at the time, having used methylamphetamine.
(d) When asked what you wanted to have happen by using the weapon, stated 'not that bad' and that 'drug use and adrenaline, and, yeah, with everything going on, I didn't know my own strength. And turned out worse than I wanted it to be… to scare him'; and
(e) You expressed remorse, commenting 'it's fucking sad' and 'It's fucked up, yeah. It's not fuckin' nice.'[5]
[5]There are other statements of remorse which I will come to later.
84When asked about incident 3 and your involvement with the Nissan Maxima, you admitted to stealing it from somewhere in the city.
85When asked about your involvement in Incident 4, that is the petrol drive off, you said
(a) you could not recall the drive off itself, but did not deny the allegations and identified yourself in CCTV;
(b) When asked for your reason for engaging in this, you responded that you had to sleep somewhere other than in a park;
86When asked about how you came into possession of the Audi (incident 6),
(a) you admitted attending the train station and smashing the car window, allowing you to gain access to the victim's address and garage remote.
(b) You detailed using the stolen garage remote to collect the key from the kitchen drawer, before returning to the station and driving off in the Audi.
87Regarding the general circumstances leading to your arrest, you made the following representations:
(a) Prior to being intercepted by police, you had consumed cannabis and driven to buy some alcohol, which you had consumed;
(b) When asked about the collision you stated, 'Got, yeah, a bucket. Went out into the slip lane on Princes Highway, parked up, was on the phone, eating. Seen the detective car pull up behind me, start the car, drove off, driving over the gutter and - onto Princes Highway over the slip lane gutter ripping off the front bumper, and - yes, unfortunately, stacking into another vehicle, giving it a nice little kiss. And continued to drive down the wrong side of the road, as you'd … and then, from there, I dunno,'
(c) 'there's a really big blur from there. I sorta went here, there, everywhere, didn't know what to do, my head was all up in the air;'
(d) When asked, you admitted that what items might be found in the Audi would likely be yours, including paperwork in other peoples’ names, cannabis and the 1.4 butanediol;
88In regard to the offending as a whole, you said
(a) you had separated from your partner (bail addressee) at around the time of the first incident on 19 October 2023;
(b) You take a weapon with you the majority of time you are going to take a car;
(c) You had not been ‘sober’ throughout all of this period. You demonstrated an awareness that it was dangerous to be driving while drug affected;
(d) You stated that your learners permit was ‘suspended;’ and
(e) When asked the reason for the offending, you stated ‘no reason’, but when you have been disadvantaged you look for the easiest option.
Investigation on 5 December 2023
89Crime Scene Officers attended to search and examine the Audi, at the towing premises, during which the following relevant items were located:
(a) Small zip lock bag containing Methylamphetamine with a purity of 84 per cent, (Charge 13: Possess drug of dependence (methylamphetamine))
(b) A Coles shopping bag in the boot, which contained;
(i)Various cards in the name of another;
(ii)Moonah Links Golf card;
(c) Loose within the boot;
(i)Paperwork in the name of another;
(ii)Paperwork in the name of yet another individual;
(iii)Mail in the name of yet another individual;
(iv)Black Tomahawk in a black back pack;
(v)Commonwealth Bank card in the name of yet another person;
(d) Located in the driver’s seat;
(i)Mail in the name of yet another individual;
(ii)National Australia Bank card in the name of yet another individual;
(iii)Two Gumbaya World passes in the name of two individuals;
(iv)Key ring with an address on it;
(v)Also the cloned registration plate, affixed to the rear of the Audi;
RSO 30: Deal with proceeds of crime (various identification cards, bank cards, mail and keys)
Case history
90The case history in this matter will be set in my written reasons in fairly detailed form, counsel. What I can say is, the matter has proceeded quite quickly from arrest on 4 December to 25 October 2024, being today's date, when I am sentencing Mr Batsanes.
Victim Impact: PG
91PG made a victim impact statement (VIS) [6] on 27 July 2024 and did not want that to be read into open Court. I respect that degree of privacy. It is important though to state publicly just what the effect is on your victim. It is a matter that I must take into account.
[6]Exhibit B: Victim Impact Statement of PG dated 27 July 2024.
92PG’s victim impact statement is a most dignified and moving document. He appears to be a private man, who does not wish for others to know the extent of his suffering. And Mr Batsanes, he has suffered.
93He has flashbacks of the horrific serious injury you caused him. He thought he was going to lose his arm. His thoughts about this are constantly intruding into his daily life. The horrific images that he sees of his own arm[7] have not gone away over time. He has PTSD. He will require help to deal with it. It would be remarkable if he did not.
[7]See Depositions p.242: Photos on the brief confirm just how horrific the injury was.
94He has endured multiple surgeries. He has restricted movement in his arm that makes his ability to work just that much harder. Put more accurately, it does not just affect his ability to work but affects all aspects of his life. He is self-conscious about how it looks, or that people will know that this is what happened to him. He is anxious in groups or at busy places when he never used to be.
95This ordeal has cost him a substantial amount of money in lost work, which appears likely never to be recovered.
96All of this occurred because you wanted a spare tyre off the back of his Ute, and he had the temerity to call you out for your offending. [8]
[8]I make it clear I am not sentencing you for the offence of attempted armed robbery, I simply say that as context.
97The severity of the impact of the offending on him cannot be understated. It is an important factor in the sentence I impose.
Other victims
98No other victim impact statements were furnished. I can comfortably infer that those who had their cars taken suffered at least something more than a ‘minor inconvenience’.
99The victim of incident 7 had to deal the knowledge that you had found out where he lived, broken into his home and then returned to a train station to steal his car.
100Mr Alam would have been rightly shocked and frightened by your driving. He says as much in his statement. [9]
[9]See Depositions p.98.
MATTERS PERSONAL TO THE ACCUSED
Background
101You are a young offender. You were 18 years of age when you offended and you are still only 19.
102Your personal history has been marred by profound deprivation, trauma, grief and instability. Your young life has been shaped in the most unfortunate ways possible.
103You were born in Dandenong, and initially raised in Endeavor Hills. Your parents separated when you were eight.
104You became the subject of Court orders to protect you from harm and to protect you from neglect from the age of 10. You were exposed to family violence, poor parental mental health and serious substance abuse concerns in relation to your mum.
105This meant that you were placed in a range of residential care units during your childhood and adolescence. With the greatest respect to those who attempt to care for people, particularly children at risk, care units are less than ideal ways to raise stable, well-adjusted individuals. Your life in residences like this are not very far behind you.
106Your education was interrupted in that context; you attended a multitude of primary schools, ultimately completing Year 6 at a mainstream primary school. You have never attended a mainstream secondary school.
107You viewed your relationship with your mother as the strongest of your familial relationships. You loved her deeply even though she was not able to care for you because of her own immense difficulties. You loved her, despite the strains caused by her mental health and substance abuse, and the fact that Child Protection intervention meant that you were removed from her care.
108During your adolescence, you first witnessed her have a stroke, and then had to deal with the anguish of her diagnosis of cancer. Her cancer spread quickly. She died in palliative care when you were only 15. That is just three years ago.
109It is in the context of your life as I have outlined above, that you commenced using drugs and alcohol at around the age of 12. You could not have hoped to have known the damage such drug use would do to your life at that age.
110Your drug use, entrenched by the time you were 15, escalated following the death of your mother, and you became increasingly reliant on drugs to cope with trauma, grief and loss.
111None of this is surprising, but that does not diminish the tragedy of it. You had no solid foundation upon which to build a life. You were denied real parental care. You had few familial supports and no positive way to model your behaviour. Your place in the world and your ability to cope in it was shaped by this deprivation.
112When one reads the early thorough report of Mr Bob Ives back from 2018, it is insightful. His opinion, based on a comprehensive assessment of then your very young life, can be isolated to a single line:
‘While growing up, Daniel Batsanes appears to have experienced none of the conditions conducive to moral development.[10]
[10]Exhibit 3: Psychological Report of Mr Bob Ives dated 28 May 2018, 30.
113I will return to how this deprivation is taken into account in sentence later in these reasons.
114You have a fraught relationship with your father who is in contact with you, who has attempted to parent and guide you but was unable to. You have a relationship with him that you are attempting to salvage. You are trying to strengthen it and wish to prove to him that you can be reclaimed.
Forensic history
115Consistent with the history I have just detailed, especially that of extensive drug use, you have a likewise extensive, recent and relevant criminal history.
Date Court Charges Outcome 20/03/2023 Melbourne Children's Court [11] AGGRAVATED BURGLARY - PERSON PRESENT
DISHON U/TAKE IN RETENTION STOLEN GOODS
DRIVE WHILST DISQUALIFIED
DRIVING A MOTOR VEHICLE DANGEROUSLY WHILE BEING PURSUED BY POLICE RETENTION OF STOLEN GOODS
THEFT
THEFT OF A MOTOR VEHICLE (x 5)
THEFT-FROM SHOP (SHOPSTEAL) (x 2)3m Youth Justice Centre Order (31 days PSD) 17/11/2022 Melbourne Children's Court ATTEMPT ROBBERY
ESCAPE FROM A YOUTH JUSTICE CENTREYouth Justice Centre Order 7 days 02/09/2022 Melbourne Children's Court AGGRAVATED BURGLARY AGGRAVATED CARJACKING - CAUSE INJURY ANOTHER PERSON
ATTEMPT TO COMMIT INDICTABLE OFFENCE (x 5)
GO EQUIPPED TO STEAL/CHEAT NEGLIGENTLY DEAL WITH PROCEEDS OF CRIME
THEFT
THEFT OF A MOTOR VEHICLE (x 4)
4m Youth Justice Centre Order 21/04/2022 Melbourne Children's Court AGGRAVATED BURGLARY - PERSON PRESENT (x 3)
ATTEMPT TO COMMIT INDICTABLE OFFENCE (x 2)
DISHON U/TAKE IN RETENTION STOLEN GOODS
NEGLIGENTLY DEAL WITH PROCEEDS OF CRIME
POSSESS METHYLAMPHETAMINE
THEFT (x 2)
THEFT OF A MOTOR VEHICLE (x 4)
THEFT-FROM SHOP (SHOPSTEAL)
6m Youth Justice Centre Order
5m Youth Supervision Order Centre Order21/01/2022 Melbourne Children's Court AGGRAVATED BURGLARY (x 1)
AGGRAVATED BURGLARY - PERSON PRESENT (x 3)
ATTEMPT AGGRAVATED BURGLARY - PERSON PRESENT (x 2)
ATTEMPT TO COMMIT INDICTABLE OFFENCE (x 6)
DEAL PROPERTY SUSPECTED PROCEED OF CRIME (x 2)
HANDLE/RECEIVE/DISPOSE OF STOLEN GOODS (x 3)
THEFT (x 6)
THEFT FROM MOTOR VEHICLE (x 5)
THEFT OF A MOTOR VEHICLE (x 7)
5m Youth Supervision Order without conviction 6/10/2021 Moorabbin Childrens’ Court AGGRAVATED BURGLARY - PERSON PRESENT (x 1)
AGGRAVATED BURGLARY-OFFENSIVE WEAPON
COMMIT AN INDICTABLE OFFENCE WHILST ON BAIL
DRIVE IN A MANNER DANGEROUS
FAIL TO STOP VEHICLE WHEN DIRECTED TO STOP BY POLICE
THEFT
THEFT OF A MOTOR VEHICLE (x7)
9m Youth Supervision Order 11/12/2020 Dandenong Children's Court POSSESS CANNABIS
POSSES OXYCODONE
POSSESS POISON x 2
THEFT OF MOTOR VEHCILE (x6)
COMMIT OFFNCE ON BAIL
DRIVE MANNER DANGEROUS
UNLCIENCED DRIVING
AGGRAVATED BURLGARY – OFFENSIVE WEAPON
6m Youth Supervision Order without conviction 06/04/2020 Frankston Children's Court ATT. THEFT FROM MOTOR VEHICLE (x 23)
ATTEMPT TO COMMIT INDICTABLE OFFENCE (x 15)
COMMIT AN INDICTABLE OFFENCE WHILST ON BAIL (x 3)
DISHON U/TAKE IN RETENTION STOLEN GOODS
DRIVE WHILST DISQUALIFIED
DRIVING A MOTOR VEHICLE DANGEROUSLY OR NEGLIGENTLY WHILE BEING PURSUED BY POLICE
FAIL TO STOP VEHICLE WHEN DIRECTED TO STOP BY POLICE
INTENTIONALLY DAMAGE PROPERTY (x 56) OBTAIN PROPERTY BY DECEPTION (x 2)
THEFT (x 23)
THEFT OF A MOTOR VEHICLE (x 3)
8m Youth Justice Centre Order
123 days PSD06/09/2019 Dandenong Children's Court BREACH OF PROBATION (17/05/2019
ASSAULT YOUTH JUSTICE CUSTODIAL WORKER ON DUTY
ATT. THEFT FROM MOTOR VEHICLE (x 27)
ATT. THEFT FROM MOTOR VEHICLE (x 30)
ATT. THEFT OF A MOTOR VEHICLE (x 3)
COMMIT AN INDICTABLE OFFENCE WHILST ON BAIL (x 6)
DEAL PROPERTY SUSPECTED PROCEED OF CRIME
DISHON U/TAKE IN RETENTION STOLEN GOODS
DISHONESTLY RECEIVE STOLEN GOODS
FAIL TO STOP VEHICLE WHEN DIRECTED TO STOP BY POLICE
GO EQUIPPED TO STEAL/CHEAT (x 4)
POSS PROH WEAPON W/O EXEMPTION/APPROVAL (x 2)
POSSESS CONTROLLED WEAPON WITHOUT EXCUSE
POSSESS DRUG OF DEPEND. -PRESCRIPT DRUG
RECKLESS CONDUCT ENDANGER SERIOUS INJURY
THEFT (x 15)
THEFT (x 26)
THEFT FROM MOTOR VEHICLE (x 6) THEFT OF A MOTOR VEHICLE (x 2) THEFT OF A MOTOR VEHICLE (x 3) UNLICENSED DRIVING (x 3)
USE PROH WEAPON W/O EXEMPTION/APPROVAL
58 days YRC
6m Youth Residential Order17/05/2019 Dandenong Children's Court ASSAULT YOUTH JUSTICE CUSTODIAL WORKER ON DUTY
ATT. THEFT FROM MOTOR VEHICLE (x 27)
ATT. THEFT OF A MOTOR VEHICLE (x 3)
COMMIT AN INDICTABLE OFFENCE WHILST ON BAIL (x 6)
DEAL PROPERTY SUSPECTED PROCEED OF CRIME
DISHON U/TAKE IN RETENTION STOLEN GOODS
DISHONESTLY RECEIVE STOLEN GOODS
FAIL REPORT TO POLICE OWNER NOT PRESENT
FAIL TO STOP VEHICLE AFTER AN ACCIDENT
GO EQUIPPED TO STEAL/CHEAT (x 4)
POSS PROH WEAPON W/O EXEMPTION/APPROVAL (x 2)
POSSESS CANNABIS
POSSESS CONTROLLED WEAPON WITHOUT EXCUSE
POSSESS DRUG OF DEPEND. -PRESCRIPT DRUG
THEFT (x 14)
THEFT OF A MOTOR VEHICLE (x 2) UNLICENSED DRIVING (x 3)
USE PROH WEAPON W/O EXEMPTION/APPROVAL
12m Probation without Conviction
[11]The summary for this offending was tendered as Exhibit C: Relevant Prior Summary of Prosecution Opening dated 01.08.22. Like the offending before me, it involves a spree of serious uncontrolled behaviour over 3 days, mostly when you were under the influence of drugs.
116You admit something like 10 prior Court appearances in a little over four years. You have amassed prior convictions for aggravated burglary, burglary, thefts that are simply too numerous to count (especially of motor vehicles), driving contrary to licence condition, breaches of bail, drug offences and weapons offences.
117The Courts have accommodated your youth and personal circumstances for the past four years. You have been subject to all manner of supervisory orders designed to help you reform. You have been removed from the community in the past (YJC or YRC specifically no less than six times, the longest single period being six months) in an effort to curb your behaviour. So far, none of them have worked.
118You now find yourself in adult custody for the past 10 months which you realise is a very different proposition to the regime of Juvenile detention.
Context to offending
119You turned 18 years of age in March 2023, and were exited then from the Child Protection system.
120You were released from Youth Justice custody two months later in May 2023 upon completion of your most recent sentence. I note that you were released without the benefit of parole or any other supervisory services or parts of your sentence. You are not a naturally well-resourced or well-connected young man and left to your own devices, things would inevitably unravel, and they did.[12]
[12]The bail conditions imposed on you were designed to set boundaries on your behaviour but it appears there were no mandated supports accompanying those grants of bail.
121By October 2023, you had offended in this most serious of ways.
122You very quickly relapsed into illicit substance abuse post-release, resided with your ex-girlfriend for a period of time in Port Melbourne. She too experienced substance abuse difficulties.
123The offending before me occurred when you were homeless and almost perpetually under the influence of drugs. You had been abusing methamphetamine and GHB heavily during this period. None of this, I stress, provides an excuse for this offending, but it does place it into an important context.
Post offence
124You made full admissions upon being interviewed.
125You indicated an intention to plead guilty to the offences at an early opportunity, that is the Committal Mention on 16 May 2024.
126Your admissions and your early plea of guilty can be taken as accepting responsibility for the offences, a demonstration of remorse in relation to the offences.
127While discussing this current offending to the YJC assessor, you showed insight to the impact of your conduct, although sadly that did not differ from the level of insight displayed during previous periods of incarceration or offence specific discussions with Youth Justice.[13]
[13]Exhibit 2: Psychological Report of Ms Gina Cidoni dated 29 July 2024, [20]. This doesn’t diminish the remorse you exhibit but rather is part of a pattern of appalling offending, then seeing your conduct clearly (and in negative terms) in hindsight.
128For completeness I note that you have a summary matter pending on 28 October 2024. The sentence to be imposed there is a matter for the presiding Magistrate.
Pre-sentence detention and endeavours in prison
129You have accrued 326 days (or around 10 months) of pre-sentence detention. All of this period has been in adult custody. This is your first experience of adult remand.
130You have been able to engage in programs related to your offending and substance abuse. You are engaged in counselling through Forensicare, where you have been discussing strategies with respect to self-regulation. You have commenced EMDR, which is eye movement desensitisation reprocessing, a treatment that focuses on traumatic memory, whilst simultaneously exploring eye movements to properly process memories and emotions connected to that trauma. You are finding it useful apparently. Importantly, I note that this is not a therapy available to you in Youth Justice.
131You are apparently beginning to appreciate the impact of your past trauma upon your substance use and offending.
132In addition to the course certificates provided by your counsel, you completed a barista and OHS course.
133You have held positions of employment when in custody however, unfortunately suffered an injury to your finger following an accident which required medical treatment.
134You are on antidepressants and on methadone.
135These might seem like very modest improvements, but in the context of your life they are very promising signs, albeit at a very early stage of your possible reform. I note they are very different signs from those that you showed whilst in Juvenile Justice in the past.
MATTERS OF SENTENCING PRINCIPLE
Specific statutory matters
136The provisions imposing a minimum non-parole periods under Division 2 of Part 3 of the Sentencing Act 1991, do not apply.
137Nor are the charges Category 1 or 2 pursuant to the Sentencing Act 1991. They are not standard sentence offences either.
138The offence of dangerous driving whilst being pursued by police, carries a mandatory minimum disqualification period for your licence that I will come to in due course.
139Offences of theft where property taken is a motor vehicle, carry a loss of licence too.
Seriousness of offending
140Each of the offences occurred whilst you were released on bail. That alone accentuates all of your offending, and I have opted to treat your substantive offending as being more serious for that reason. I have imposed standalone sentences for the offences related to your breaches of bail, that are to run wholly concurrently with other sentences to avoid the risk of doubly punishing you.
141The infliction of serious injury as part of incident 2 is grave. I do not sentence you on the basis you armed yourself that day with a view to using it later, but you certainly had no qualms at the time in striking PG with it in public, in broad daylight
142He was alone and unarmed. He had done no more than to try and stop you from offending. He posed no threat to you. You and Lyddy could have just as easily left. But you decided to attack a man who was retreating with such an inherently dangerous weapon as a machete.
143The force of one blow to his arm was enough to slice open that arm and expose the bone underneath. It shattered his arm. Your act was accompanied by a high degree of recklessness that serious injury would inevitably result. The seriousness of the probable injury foreseen by the use of a machete must have also been high.[14] It has had long and serious consequences for the victim. It is abhorrent, terrifying conduct. It matters little in the end that you were substance affected here. That this offending was not planned or protracted does not matter that much either. It did not need to be. A significant amount of damage was caused within an interaction that took only seconds to achieve its ends. It is a serious version of a serious offence in my view.
[14]Betrayhani v The Queen [2019] VSCA 150.
144The offending committed as part of incident 8 is also serious. You drove dangerously, substance effected for the sole reason of avoiding apprehension. This was no brief moment of madness either. It was protracted and endangered the safety of a number of road users, during daylight hours, including driving on the wrong side of the road for a period of time and actually being involved in a collision. What is more, you have done this before in 2020 and 2023.
145The balance of the offending mostly involves dishonest, acquisitive offences and drug possession.[15] This is consistent with your history and the bulk of it is triable summarily. Alone they may not be offences at the higher end of the scale, but they are part of a persistent pattern of behaviour, characterised as a spree of offending which must be reflected in the sentence I impose to reflect your overall criminality.
[15]I accept you were homeless though and on at least one instance stole a car to sleep in, rather than sleep on the streets.
Plea of guilty
146You pleaded guilty early, in a way that is consistent with your admissions.
147This plea of guilty and admissions can be taken as you accepting responsibility for the offences and a demonstration of remorse in relation to them.[16] Your latter statements are very different to the bravado that you express to your co-offender or the blunt true way in which you express your thoughts in the Record of Interview.
[16]See also Exhibit 5: Youth Justice Pre-Sentence Report where you indicate that it was wrong for you to behave as you did and that words cannot fix it.
148The remorse you express needs to be viewed in two important ways. The remorse you express comes when you are sober, looking back at what you did when you were substance affected. This, I said, is not new to you. I do not doubt your regret once you are thinking clearly and have time to consider the consequences. Second the way you express yourself is not always articulate or considered, but I do accept that you express appropriate contrition. Whether that contrition can be harnessed to aid in your reform remains to be seen.
149I take into account the very strong utilitarian benefits in a plea of guilty, the saving of court resources, and time in particular. There is also a human cost that is saved by your plea of guilty, involving as it does, no necessity for victims to give evidence. I give your plea due weight.
Youth
150You are a young offender. Your offences occurred when you were just 18 and you are still only 19.
151The principles outlined in R v Mills[17] are applicable with regard to sensible moderation of general deterrence in favour of a sentence promoting your rehabilitation.
[17](1998) 4 VR 235.
152The principles outlined in R v Mills[18] are applicable with regard to sensible moderation of general deterrence in favour of a sentence promoting your rehabilitation:
(a) The youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(b) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender
(c) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s5(4) of the Sentencing Act.)
[18](1998) 4 VR 235.
153Age is of course a very significant factor for the Court to consider. Youth is important in the sentencing synthesis and should carry a primary consideration where it properly impacts upon any assessment of moral culpability, the deleterious effect of adult prison, and emphasis must be placed on rehabilitation.
154Whilst the offending is serious and general deterrence is relevant, it must be balanced against the significant weight to be given to the principles governing the sentencing of youthful offenders.[19]
[19]Mills [1998] 4 VR 235; DPP v Tokava [2006] VSCA 156; R v Merrett, Piggott and Ferrari (2007) 14 VR 392.
155In Azzopardi,[20] the 'considerations which underlie the general primacy of an offender's youth as a sentencing consideration' were outlined as follows:
(a) Firstly, the court said, 'young offenders being immature and therefore more prone to ill-considered or rash decisions. They may lack the degree of insight, judgment and self-control possessed by an adult. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.'[21]
(b) Secondly, 'courts recognize the potential for young offenders to be redeemed and rehabilitated. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that rehabilitation of young offenders, "is one of the great objectives of the criminal law". The added emphasis for the purposes of sentencing on the realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending.'[22]
(c) Thirdly, 'courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, an offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment us imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.'[23]
[20]Azzopardi v The Queen [2011] VSCA 372.
[21]Azzopardi v The Queen [2011] VSCA 372 at [34].
[22]Azzopardi v The Queen [2011] VSCA 372 at [35].
[23]Azzopardi v The Queen [2011] VSCA 372 at [36]
156The Court in Azzopardi went on to consider the above consideration in the context of crimes that are either particularly serious or particularly persistent in nature.[24] The court concluded 'only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed all but extinguished'.[25]
[24]Azzopardi v The Queen [2011] VSCA 372 at [37]–[40].
[25]Azzopardi v The Queen [2011] VSCA 372 at [44].
157It is submitted you still have reasonable prospects of rehabilitation because of your youth. I find whatever prospects you enjoy are presently guarded, mostly due to the seriousness and persistence of your prior offending. I do not yet find that your prospects are extinguished though. Whatever prospects you enjoy are curiously more likely to be achieved first in the structure and discipline of adult custody, followed by supervised release governed by the Adult Parole Board (APB) than they would be if you were detained in YJC. More of this later.
158This is your first adult Court appearance. This is your first time in adult custody. This state of affairs though has not been as damaging to you as one might first think.
159It was urged on me quite sensibly to have you assessed for a YJC sentence. The Crown certainly did not oppose that investigatory process.
160For reasons I will come to, you were unsuitable for such an order.
Verdins
161You have been previously diagnosed with PTSD, Major Depressive Disorder and Conduct Disorder.
162Ms Blakeney submitted your mental health and substance abuse impacted upon your offending, and the principles outlined in R v Verdins[26] have application, namely that:
i. Your mental health should have a bearing on the type of sentence imposed;
ii. General and specific deterrence should be moderated
iii. Given your mental health, imprisonment will weigh more heavily upon you; and
iv. There is a serious risk that imprisonment will have a significantly adverse effect on your mental health
[26](2007) 16 VR 269.
163It was submitted you were vulnerable in custody due to your youth and mental health presentation, and you are more susceptible to the negative influence of older prisoners in adult custody.
164The Crown argues that it is not made clear (and it must be) how your poor mental health is connected to the offending as is required to establish limbs 2 and 3 of Verdins.
165For instance, Ms Cidoni concludes at [101] that your conditions [sans substance use disorder] impaired your thinking and self-regulation, where your ability to consider the impact of your actions and make rational decisions is severely affected. Though regrettably, the report does not go on to say just how this would have contributed to the present offending in respect of the individual incidents.
166The report does not disentangle your drug use from your poor mental health condition. Significantly, the report opines that your drug use increased your instability which contributed to your offending.[27]
[27]It was raised by the Crown but without much conviction that not only is intoxication not a mitigating factor, in circumstances where the Offender is made aware of their susceptibility to engaging in antisocial behaviour when disinhibited. Such may be an aggravating factor. Based on the 2024 Report, it appears that drug use was a recognised contributing factor in past offending.
167For limb 5, there must be evidence to establish the likely effect that your impairment will have on your experience of imprisonment.
168For limb 6, evidence has to be required of a 'serious risk' that imprisonment will have a 'significantly adverse effect’ on your mental health, which must be greater than the mental deterioration imprisonment generally causes persons to suffer.
169While Ms Cidoni makes reference to your mental state potentially deteriorating due to imprisonment, this is phrased in a speculative way. The report does not make mention of any such observation during past periods of confinement. The identified risk is seemingly at odds though too with the observed improvement of insight into offending, and your engagement with psychiatric and other services as well as your forced abstinence from drugs in a structured environment.
Findings
170The multitude of conditions you suffer from have their genesis in the deprivation that you suffered.
171Without the cogent evidence the authorities refer to, I am not able to find that any of the Verdins limbs apply.
172A principle complicating factor is that ‘there are a number of contributing factors to Mr Batsanes' offending behaviour, specifically, negative peer association, anti-social behaviours, impulsivity, lack of consequential thinking and excessive drug use.’
173That is not to say the way in which you are made is irrelevant. It is. Verdins is a separate and discrete way in which an offender's poor mental health is treated.[29] The stringent requirements for me to take it into account have not been established. That is not to say the principles of Bugmy and Marrah do not apply, and I turn to those now.
Application of Bugmy / Marrah principles
[29]Ellis [2021] VSCA 229.
174In terms of the application of Bugmy and Marrah, you rely on the reports in support of the proposition that your traumatic childhood reduces your moral culpability in the general and specific ways considered in Bugmy v The Queen.[30]
[30] (2013) 249 CLR 571.
175The impact of disadvantage is complex, multilayered, non-linear and not easily diagnosed or measured.[31] However, it was submitted that your moral culpability should not be assessed in the same light as someone who did not experience the pitiable disadvantage that you did.
[31] DPP v Hermann [2021] VSCA 160, [45].
176Your exposure to trauma has significantly shaped all aspects of your life, from instilling maladaptive tendencies from a very early age.
177You developed not just maladaptive coping strategies, but ongoing poor mental health, instability, and drug addiction.
178One disadvantage that you suffer is diminished decision-making and impulse control. To some extent, there are supervening complicating and destabilising influences of drugs, but I see that more as a consequence of the way that you were shaped in those formative years. It is submitted that general deterrence ought to be moderated in light of your dysfunctional upbringing.
179It is sometimes accepted the corollary to the specific approach is usually an increased need for community protection. This should not swamp the mitigatory effect of your upbringing and its contribution to the present offending.
180Whilst disadvantage will always remain relevant, at some point mitigation must yield in the face of serious violent offending and the need for community protection. But as with youth, a disadvantaged upbringing may elevate the importance of rehabilitation and so the need to avoid or minimise incarceration as a sentencing consideration in order to end a cycle of offending that is of great detriment to the community and of the accused.[32]
[32] Bergman (a pseudonym) v The Queen [2021] VSCA 148, [90]–[100].
181I have tried to give due weight to the deprivation that you have suffered and tempered the sentence I impose accordingly.
General governing principles
182Plainly, general deterrence, specific deterrence, denunciation, punishment and protection of the community are all very relevant factors in this sentencing exercise. The proper application of those principles (even taking into account the constellation of mitigating circumstances here) compels a conclusion that you require some form of detention or incarceration, followed by supervision post-release.
183In light of your age, early plea of guilty, poor mental health, and identifiable treatment needs, it was submitted that a disposition that facilitates your rehabilitation in the community with support and oversight is appropriate. It was submitted originally that a term of imprisonment combined with a CCO is appropriate.
184I concluded that a CCO, even in combination with the time you had spent in custody, was a wholly inadequate penalty to impose in the circumstances.
185In the alternative, it was submitted that you be assessed for suitability for YJC.
186To that end, I had you assessed for YJC after the initial part of the plea on 8 August.
187I made it clear the maximum penalty I could impose for all offending under a YCS order is four years, and possibly, by reference to the authority of Chol, I could necessarily decline to take into account your PSD in order to ensure the availability of this penalty.[33]
[33]S.32(3)(b). I referred Counsel to the case of Chol [2022] VSC 341 where in a situation sufficiently similar enough to yours for sentencing purposes, Justice Beale acknowledged the desirability and appropriateness of having the accused serve a sentence for manslaughter in YJC. In the circumstances of that case, this was in part facilitated by expressly not declaring the Pre-Sentence Detention (PSD) in adult custody. I considered this a possibility should you be suitable for YJC, but you are not.
188In the end I have obviously not taken that course.
Suitability for a Youth Justice Centre Order
189The thorough and helpful Pre-sentence Report authored by Kayla Del Monte dated 18 September 2024 was furnished and Counsel made further submissions about its contents on the return date of the plea.[34]
[34]Ms Del Monte attended on this occasion.
190The Report addresses your suitability for YJC. I can only make an order if I find:
(a) There are reasonable prospects of your rehabilitation; or
(b) The Offender is particularly impressionable, immature or would likely become subject to influence in adult prison.
191The report does not support a finding that these criteria are made out.
192The factors which a Court must have regard to in making either determination, are set out in subsection 32(2) of the Sentencing Act. The Prosecution submissions on these criteria[35] are useful and I have adopted the reasoning that underpins them as part of these reasons;
[35]Exhibit E: Crown Further Submissions dated 17 October 2024.
(a) Nature of the offending;
(i)I have already noted my findings about this. The offending I am dealing with is persistent and at times, serious.
(b) The age, character and past history of the offender:
(i)You are 19 years and 7 months of age, having spent just under a year in adult custody at Ravenhall;
(ii)Your history can properly be described as one that is disadvantaged and traumatising, certainly to a level that has been reportedly instilled maladaptive tendencies sufficient to attract the principles in Bugmy;
(iii)You have been involved with Youth Justice commencing in November 2018, including as part of bail supervisions, community based sentences, Youth Justice Centre Orders and parole periods, very few were complied with;
(iv)Finally, expressing your future intention to still perhaps carry weapons in ‘certain areas' in public is concerning.
193Returning to the limbs under 32(1), firstly in respect of rehabilitation. The report of Ms Cidoni advised that you were a high risk of re offending and the current protective factors of mitigating risk of reoffending include engagement in prison based counselling and Opioid Substitution Therapy to support substance abuse recovery.
194In contrast to the ostensibly poor engagement with youth-based services, at Ravenhall you successfully engaged in:
(a) Drug rehabilitation - Opioid Substitution Therapy, as well as the Ice and Me program; and
(b) Mental health treatment – now regularly engaging with a psychiatric nurse and psychiatrist, developing strategies and receiving pharmacological care.
195Much to your credit, prior to entering the current period of remand, you expressed a desire to work with adult services describing YJC as 'a bit of a holiday'.
196With real insight which is not to be sensationalised or confused with callousness or indifference, after experiencing the environment at Ravenhall and the wider range of programs realistic to your age (for instance, noting that the EMDR therapy is only available in adult custody),[36] you noted that unlike the present experience, YJC had not really deterred you. Ravenhall, you say 'puts it in [my head] I don't want to come back'.[37]
[36]Ms Del Monte confirmed as much in Court on 18 October 2024.
[37]Exhibit 4: Youth Justice Pre-Sentence Report, 9.
197There is a marked difference between your behaviour exhibited in the past in YJC as opposed to the current remand at Ravenhall.
(a) During your previous time at YJC the pre-sentence report notes there is 21 category incidents recording you as a participant. You accrued 16 Significant Event Case Notes (SECNs) for behaviours including
non-compliance with staff direction, entering another person's room, smoking contraband, sexualized behaviour, possession of contraband, verbal abuse to staff, threats towards other young people, spitting in another person's food, physical assaults on others, physical assaults on staff members. As well as detailing an attempted escape plan.
(b) By contrast in adult custody, you have continued to infract very minor custodial rules such as possessing a contraband 'brew' and a single pill.
198When looking for ways in which to deter you from further criminality, your own assessment of what you yourself might say is worthy of real weight in this exercise, especially given that you have a preference for a more rigid and objectively harsher regime in adult custody than YJC.
199To deal again with your prospects of reform, I do not regard them as extinguished, but rather very much guarded. There are encouraging signs, but you will need to work hard with others and on yourself both in and out of custody.
200As regards the second limb, that the offender is particularly impressionable, I acknowledge Ms Cidoni says that 'age and vulnerability make him particularly susceptible to learning maladaptive behaviours from other inmates, further embedding criminal norms and values.'
201I do not wish for you to be exposed to older men, with longer criminal histories than yours, for longer than is absolutely necessary. I certainly do not want you to become comfortable where you are, where a situation is created whereby you can only function within the walls of a prison.
202There are matters that tell against your impressionability.
203Your susceptibility to influence by other inmates is reduced owing to your extensive history with Youth Justice
204You also appear to be settled within prison and do not present to the assessor as particularly immature and you have not raised any issues about your safety. You developed appropriate relationships with other prisoners.
205Ultimately, while conventional wisdom begins with the ideal of placing young people in YJC to foster rehabilitation, in this instance your rehabilitation appears to be best fostered by adult detention and that is where you will serve your sentence.
Totality
206I am mindful of the significance in this case of the application of the principle that requires me when sentencing you for multiple offences to ensure that the aggregate term I impose is a just and appropriate measure of the total criminality involved. There must be an appropriate relativity between the totality of all criminality and the total effective length of the sentence. This is true when I consider the interaction between the charges on the indictment as well as the related summary offences. I have determined an appropriate length for each charge, taking the applicable sentencing considerations into account and designated the highest term of the base, and then I determined the extent to which there should be any cumulation regarding each count and finally stood back and considered in light of totality what the appropriate sentence ought to be.
207Your totality of offending encompasses acts of vicious sickening violence, dishonesty offences as well as truly dangerous conduct behind the wheel of a car. Your offending involves different harms to different victims, some of which are worthy of measures of cumulation to reflect your overall criminality.
Parity
208Your co-accused Lyddy's matter is not yet finalised. I cannot conceive or consider the issue of parity.
Rolled-up counts
209Charge 5, 8 and 10 are all rolled up charges and they are different from representative counts because they are a collection of identifiable charges bundled together in a single one. They require the offender's agreement and they are only for the purpose of a guilty plea and they simplify to some extent the court's sentencing task and work to the benefit of the accused by allowing multiple instances of similar offending to be dealt with as a single charge rather than numerous separate charges. That is the case here with respect to some of the matters, and it confirms the cooperative approach you have taken in resolving the matter.
210When sentencing a rolled-up charge, the court must consider all of the offences of the offence and the offender including if the offending was carried out over an extended period, victimised multiple persons, and the totality of the harm described.
211While the Court may consider all of the relevant circumstances of a rolled-up charge, the pleading must still be treated as presenting a single formal charge. The maximum penalty is limited to the maximum penalty for a single charge.[38]
[38]R v Beary (2004) 11 VR 151, 157 [14].
Formulation of sentence
212In formulating an appropriate sentence in your case, I had regard to current sentencing practices as one of the many factors I have to have regard to.
213Neither your counsel, nor counsel for the Crown, referred me to any so called comparable cases, but I nonetheless had regard to decisions of this court and the Court of Appeal in order to give appropriate weight to current sentencing practices particularly when it comes to offences such as causing serious injury recklessly[39] and dangerous driving whilst pursued by Police.[40]
[39]See 4.1.1 Court of Appeal Case collection of recklessly cause serious injury cases, 4.4.2 County Court case collection. See also Sentencing snapshot 264 provided by SAC
[40]This offence has a 3 year maximum penalty available. Many of the cases I have reviewed also involved offending in addition to the dangerous driving whilst pursued offence. See Young-Green and Ellis [2020] VCC 1793, Amr [2022] VCC 1381, Petrie [2021] VCC 731, Richardson [2020] VCC 1886 and Rigoli [2019] VCC 1191
214Sentences of other courts are not binding precedents, they are merely historical statements of what happened in the past,[41] and current sentencing practices represent just one of the factors I need to be aware of. Sentences for serious violence such as what I am dealing with here, have often involved significant sentences of imprisonment of years' duration.
[41]See Dalgliesh [83].
215In formulating an appropriate sentence in your case, I have had regard only to the purposes for which sentences must be imposed.
216Previous sentencing decisions have made it clear the importance of general deterrence, specific deterrence and protection of the community in relation to offences of serious violence.
217I am satisfied in the circumstances of this case, the need for specific deterrence and community protection are important. There is also a need to sentence you in a way that facilitates your rehabilitation as appropriate. Ultimately, your offending must be denounced on behalf of the community, and you must be justly punished.
218Finally, in fixing a sentence for you and allowing for a parole eligibility component, I have had regard to the principle of parsimony; that is, the requirement not to impose a sentence more severe than that which is necessary to achieve the purpose for which sentence is imposed.
219The purpose of parole is to provide for the mitigation of punishment in favour of reform through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. Due to the constellation of mitigatory features in your case, I have concluded it is appropriate to allow you a meaningful parole period in your sentence.
220Accordingly, the non-parole period, that is, the period of imprisonment to be served before you become eligible, will be somewhat shorter than might be considered usual, to take into account your youth and the other mitigatory factors in your case and to facilitate your reintegration into the community and hopefully ultimate rehabilitation.
221The period I set is not the date you will be released. It is simply the earliest date the Adult Parole Board may release you, should they form the view you can be safely managed in the community under their supervision.
Sentence to be imposed
222I come now, Mr Batsanes to the portion of my sentencing remarks where I pass sentence. As I said, there is no alternative to me but to impose a head sentence and non-parole period.
223Counsel, you are about to be forwarded a copy of the chart. Because of the sheer number of charges, I will take you through it when it arrives. So I might just stand down for a moment and wait until you receive that.
224MR HARDISTY: Yes, Your Honour.
225MS BLAKENEY: As Your Honour pleases.
226(Short adjournment.)
227HIS HONOUR: Counsel, did you receive a chart?
228MR HARDISTY: Yes, Your Honour.
229MS BLAKENEY: Yes, thank you.
230HIS HONOUR: All right. I have not been able to fix my camera.
SENTENCE
231The sentence, Mr Batsanes, is as follows:
#
OFFENCE, PROVISON & MAX PENALTY
SENTENCE
CUMULATON
On base on each other
1 Recklessly cause serious injury (to PG) on 19 October 2023, maximum penalty of 15 years imprisonment – s 17 Crimes Act. 3 years 10 months 3y 10m
Base
2 Attempted theft (spare tyre) on 19 October 2023, maximum penalty of 5 years imprisonment – s 321P Crimes Act. 1 month 3 Theft (of motor vehicle Ford XR6) on 17 October 2023, maximum penalty of 10 years imprisonment – s 74 Crimes Act. 4 months 1m 4 Handle stolen goods (number plates) on 19 October 2023, maximum penalty of 10 years imprisonment – s 88 Crimes Act. 1 month 5 Theft (of motor vehicle Nissan Maxima) on 25 October 2023, maximum penalty of 10 years imprisonment – s 74 Crimes Act. 4 months 1m 6 Theft (petrol) on 27 October 2023, maximum penalty of 10 years imprisonment – s 74 Crimes Act. 1 month 7 Theft (garage door remote) on 29 November 2023, maximum penalty of 10 years imprisonment – s 74 Crimes Act. 8m as part of aggregate with
8 & 93m 8 Burglary (residential premises in Mulgrave) 29 November 2023, maximum penalty of 10 years imprisonment – s 76 Crimes Act. 8m as part of aggregate with
7 & 99 Theft (of motor vehicle Audi A5), 29 November 2023 maximum penalty of 10 years imprisonment – s 74 Crimes Act. 8m as part of aggregate with
7&810 Dangerous driving whilst pursued by police on 4 December 2023 maximum penalty of 3 years imprisonment –
s 319AA Crimes Act.12 months 4m 11 Possession of a drug of dependence (Cannabis), on 4 December 2023 maximum penalty in the circumstances is 5 penalty units – s 73(1)(a) of the Drugs poisons and controlled substances Act. $50 fine 12 Possession of a drug of dependence (1,4-Butanediol), 4 December 2023 in the circumstances carries a maximum penalty of 1 year imprisonment - – s 73(1)(b) of the Drugs poisons and controlled substances Act. $100 fine 13 Possession of a drug of dependence (Methylamphetamine) 4 December 2023, in the circumstances carries a maximum penalty of 1 year imprisonment - – s 73(1)(b) of the Drugs poisons and controlled substances Act. $100 fine RSO 5 Commit an indictable offence while on bail (Recklessly cause serious injury and theft of motor vehicle), maximum penalty of 3 months imprisonment – s 30B Bail Act. 2 months RSO 8 Drive whilst disqualified (rolled up charge), maximum penalty of 2 years imprisonment – s 30 Road Safety Act.
6 months 1m RSO 10 Contravene conduct condition of bail (rolled up charge), maximum penalty of 3 months imprisonment – s 30 A Bail Act.
1 month RSO 17 Failing to stop after an accident, being a subsequent offence (17 May 2019), minimum penalty of 14 days imprisonment and a maximum of 1 month imprisonment – s 61(5) Road Safety Act. 14 days RSO 19 Possession of a controlled weapon (knife), maximum penalty of 1 year imprisonment - s 6 Control of weapons
4 months 1m RSO 23 Fail to answer bail, maximum penalty of 2 years imprisonment – s 30 of the Bail Act.
3 months RSO 27 Fraudulently use registration plate, maximum penalty of 2 months imprisonment – s 72(1) of the Road safety Act.
$200 fine RSO 30 Dealing with property suspected of being the proceeds of crime (various identification cards, bank cards, mail and keys), maximum penalty of 2 years imprisonment – s 195 Crimes Act.
3 months 1m RSO 32 Possess Sch 4 poison (Quetiapine), maximum penalty of 10 penalty units - s 36B(2) of the Drugs poisons and controlled substances Act.
$100 fine
232This brings about a total effective sentence of 4 years and 10 months.
233I will order that you serve a minimum term of 2 years and 10 months.
234Mr Batsanes, you have been sentenced to close to 5 years in adult custody. To give some perspective, that is approximately a quarter of your life so far. Your head sentence will not expire for another 4 years from today, so around October 2028.
235I have allowed for the possibility of 2 years of parole, that will be a possibility for you in October 2026. I invite you to work hard towards achieving that and doing all that is required of you to secure parole and be offence free while you are on it.
236Counsel, can I confirm that the mathematics of the structure of the sentence accords with my intention through you.
237MS BLAKENEY: Yes, Your Honour.
238HIS HONOUR: Are you calculating away there, Mr Hardisty?
239MR HARDISTY: I am embarrassed to say that I was, but I can now confirm that the mathematics (indistinct) - - -
240HIS HONOUR: (Indistinct) Thank you.
OTHER MATTERS
241
Pursuant to s18 of the Sentencing Act 1991, I declare that you have served
326 days by way of pre-sentence detention. This will be deducted from your sentence.
242Section 6AAA of the Sentencing Act 1991 (Vic), requires me to state that but for your plea, what the sentence you would receive would have been.
243But for your plea of guilty, I would have sentenced you to a total effective sentence of 6 years 8 months with a non-parole period of 5 years
244I make the requisite disposal orders against: Charges 1, 3, 7, 9, 11-13 inclusive and Related Summary Offences 19, 27, 30 and 32.
Licence Disqualification
245The offence of dangerous driving whilst being pursued by Police, carries a mandatory minimum disqualification of licence for a period of 12 months, per s 89(3) of the Crimes Act.
246Offences of theft where the property taken is a motor vehicle, carries a mandatory loss of licence as per s89(4) of the Sentencing Act 1991.
247I have set the licence disqualification period in your case at 2 years 6 months years. [42] That is to commence on 1 October 2026. [43] That is approximately the earliest time for your release.
[42]This is against charges 3, 5 9 & 10.
[43]Requiring any re-licencing to be done only via an applicant to a Magistrate.
248It is necessary to impose such a long period because of the serious nature of your offending and the fact you often drove substance affected and your history. I understand that this period may be seen to create a barrier for you to comply with parole or obtain employment. This disruption to your life is both necessary and unavoidable.[44]
[44]I have had regard to the principles in R v Novakovic(2007) 17 VR 21, and Koukoulis v The Queen [2020] VSCA 19, when arriving at this period.
249I would expect that you would not let the lack of a licence interfere with your commitment to get parole and successfully complete it.
250Are there any other matters? Mr Hardisty?
251MR HARDISTY: Nothing from the prosecution, Your Honour, thank you.
252HIS HONOUR: Thank you. Ms Blakeney?
253MS BLAKENEY: No, thank you, Your Honour. As Your Honour pleases.
254HIS HONOUR: There are a number of typos in my draft, so you might have to wait until Monday, but you will have a draft copy of my reasons. When I say 'draft' I mean unrevised.
255MR HARDISTY: Thank you, Your Honour. Much appreciated.
256HIS HONOUR: All right. Thank you. Would you like me to leave Mr Batsanes on the link for you to debrief with, Ms Blakeney, because we can do that.
257MS BLAKENEY: Thank you, Your Honour. I would be grateful.
258HIS HONOUR: All right. Thank you for your considerable help, both of you. Thank you very much.
259MR HARDISTY: As the court pleases.
260MS BLAKENEY: As Your Honour pleases.
- - -
[28]Exhibit 5: Youth Justice Pre-Sentence Report.
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21
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