Director of Public Prosecutions v Bayamis

[2020] VCC 566

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01238

DIRECTOR OF PUBLIC PROSECUTIONS

v

EVANGELOS BAYAMIS

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2020
DATE OF SENTENCE:	6 May 2020
CASE MAY BE CITED AS:	DPP v Bayamis
MEDIUM NEUTRAL CITATION:	[2020] VCC 566

REASONS FOR SENTENCE
---

Subject: Home Invasion, Intentionally Causing Injury, Extortion with Threat to Inflict Injury
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland
For the Accused	Mr C. Terry

HIS HONOUR: 

1Evangelos Bayamis, you have pleaded guilty to three charges contained in indictment J10152324.  In addition, you have pleaded guilty to two related summary charges, and you have agreed to those summary charges being dealt with by me in this court.

2Dealing with the indictment charges first, Charge 1 is a charge of home invasion which occurred when you entered the complainant's home with others as a trespasser, and you entered it for the purpose of assaulting the complainant, who was present in the home.  The maximum penalty for this offence is imprisonment for 25 years.

3Charge 2 relates to offending by you once you were inside the complainant's home.  It is a charge of intentionally causing injury to the complainant. 
The maximum penalty for this offence is imprisonment for 10 years.

4Charge 3 also relates to what you did once inside the complainant's home. 
It is a charge of extortion with threat to inflict injury.  The maximum penalty for this offence is imprisonment for 15 years.

5As you can see from the maximum penalties prescribed by the Parliament for each of these indictable offences that you have pleaded guilty to, the Parliament rightly regards offending of this kind most seriously.

6In sentencing for crimes of this kind, the court must appropriately have regard to general deterrence, denunciation, just punishment and protection of the public.  Applying these sentencing principles, the court must have regard to all of the circumstances of the case, and to your prospects for rehabilitation.

7The summary charges are firstly a charge of driving a motor vehicle whilst your license was suspended, for which the maximum penalty is imprisonment for two years or 240 penalty units, and secondly, a charge of committing an indictable offence whilst on bail.  The maximum penalty for this offence is imprisonment for three months, or 30 penalty units.  This charge relates to the fact that when you committed Charge 1 on the indictment, you were in fact on bail, having been charged with other unrelated offending.

8I heard your plea at the same time with the plea made on behalf of co-offender William Thomason.  He was charged on a separate indictment with offences arising out of the same facts in part, especially as they related to the charge of home invasion.  I have dealt with him separately.

9The circumstances surrounding your offending are summarised in the prosecution summary opening dated 14 April.  That document was read in open court by the prosecutor, Mr Buckland, and your counsel, Mr Terry, accepted that the prosecution opening was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.

10In those circumstances, it is not necessary for me to again set out in detail that which is already set out in the prosecution summary.  I do so only in an abbreviated way.

11The victim in this matter operated a cleaning business.  You had previously performed work as a subcontractor for the victim.  You were in dispute with him about money, and you believed that he owed you $2,300.  Prior to the offending, you had visited the victim at his home, enquiring about payment.  There had also been exchanges of emails about the alleged debt.

12Shortly prior to the offending, you were responsible for the recruitment of two co-offenders - namely, William Thomason and Jason Everett.  Together with them, you travelled to the victim's home in Wollert at about 10.30 pm.

13The victim and another man who was also at home heard knocking on the front door.  The victim went to the front door, where he saw and spoke to you, whilst Thomason and Everett remained out of sight.  The two of you began to speak about the money which you said the victim owed you.

14You asked the victim to open the front door so that you could talk face-to-face.  As the victim opened the front door, you were heard to say, 'Boys', whereupon your two co-offenders suddenly appeared.  The victim tried to close the door, but was prevented from doing so by Thomason, who was already entering with his left arm through the door and his right arm on the door.  Also Everett forced the door, as you and your co-offenders entered the house, forcefully and without permission.

15In summary, you and your co-offenders overpowered the victim by weight of number and forced your way into the home.  Everett was armed with a torch, laser type, and a knife.  It is not alleged by the prosecution that either you or Thomason had knowledge of this fact.

16The victim began to scream for help.  You yelled to your co-offenders:

'Make him shut the fuck up.'

17Everett punched the victim, knocking him to the floor, and then hitting him on the back of the had with the torch laser object, causing a large gash to his head - which is depicted in a vivid Photo 7 at p.296 of the depositional material.

18The victim was then dragged into the kitchen, where he was assaulted further.  He was hit several times by Everett with the torch laser object, receiving a number of injuries depicted in the photographs.

19The other person in the house at the time that you entered was in the garage.  He came into the house and observed what was happening, and was threatened by Everett and told to sit down and not move, and he would not be hurt.  Other than that, he was not threatened or injured.

20Thomason held the victim whilst he was hit by you and Everett and he suffered blows all over his body.  You threatened the victim, saying:

'If you scream one more time, the boys will fuck you up without thinking.'

21You repeatedly demanded money whilst making these threats.  You demanded that the victim show you how much money was in his bank account.  The victim showed you the balance in his bank account on his phone and told you you could have it all and to just leave him alone.  The victim was then sat on a chair by Everett where he was not allowed to move.

22He unsuccessfully tried to transfer money to you from his bank account via his mobile phone.  He then gave you his ATM card and PIN number. 
You demanded his wallet and phone, and you told him that he would get them back when you received the money that you were owed.  You threatened that if the victim's PIN did not work, you would chop the victim's legs and put him in the fridge alive.  You told him he would not be allowed to leave until you had received your money.

23Everett left the house, taking with him the victim's car and other objects.  It is not alleged that you or Thomason were complicit in this offending.

24You left the house, leaving the victim and his associate under the guard of Thomason.  You drove to the Commonwealth Bank at Epping Plaza at about 11.14 pm, and using the victim's ATM card and PIN number, you withdrew $2000 from the victim's account.  You then drove back to the house and returned to the bank after midnight to withdraw a further $300 from the victim's account.

25You did not withdraw more than you claimed that you were owed.  You have not been charged with theft, and it is implied that the prosecution accepts that you thought that you had a claim of right to this money.

26The license to drive had been suspended for six months on 17 December 2017.  This relates to the summary charge offence of driving whilst license suspended.

27After the second withdrawal, you returned to the house and you handed back the victim's phone and watch and ATM card before leaving the house, accompanied by Thomason.

28The victim was soon after taken to the Northern Hospital where he was treated for a large laceration to the back of his head and laceration above his right eye, depicted in Photo 12, at depositions 298.

29He was initially too afraid to report the matter to the police, and he initially told the hospital staff that his injuries were the result of having fallen off a ladder.  The victim's family later that day reported the incident to the police.

30The victim, on medical examination, was found to have a Y-shaped laceration to the right eyebrow, requiring stitches, and an occipital laceration to the back of the head which was glued, as well as an abrasion and tenderness on his right elbow.  He was also noted to have bruises and a number of patterned injuries to his torso.

31Everett was arrested at about 1.30 pm on 15 January 2018.  Thomason, who was thought to have previously been with Everett, could not then be located.  You were arrested later in the day on 15 January 2018, and interviewed by the police, and remanded in custody.

32There was a filing hearing the following day, and the matter was listed for committal mention on 10 April 2018.  And on that day, the charges were listed for a contested committal, which was heard on 13 June 2018, with the complainant and his housemate and the informant cross-examined.  The trial was listed in the reserve list on 29 March 2019.  There was some pre-trial argument in the original trial, and the original trial judge became unavailable, and the trial was adjourned until 28 October 2019.

33I heard a bail application on your behalf on 9 April 2019 and refused your application.  On 18 June 2019, Justice Hollingworth in the Supreme Court heard a further bail application by you which was also refused.

34You had originally been charged with aggravated home invasion, but on
4 September 2019, the prosecution filed an amended trial indictment which alleged home invasion in Charge 1.  The trial was again listed in the reserve list on 28 October 2019 and the trial resolved at that time when you pleaded guilty to the charges on the indictment.  Everett is still contesting the charges.

35You were granted bail on 17 December 2019, and you have remained on bail until the time of your plea on 29 April 2020, by which time you had served
701 days pre-sentence detention. 

36At the time that you committed these offences, you were on bail.  This accounts for the related summary charge of committing an indictable offence, home invasion, whilst on bail.  The fact you were on bail at the time is an aggravating factor in your offending.

37As can be seen from the description of your conduct set out above, your offending is very serious.  It may have been motivated by a belief that you were entitled to moneys owed to you by the victim, but that does not excuse what you did.

38To help you obtain the sum of $2,300, which you claim to have been owed by the victim, you recruited two men who were relatively unknown to you to accompany you to the victim's house so that you could impart violence and the threat of violence in order to get paid.  You went to the victim's house late at night, and because you were accompanied by your two co-offenders, you were able to force your way into the house, where you assaulted and injured the victim, and you threatened him with further violence if you were not paid.

39I accept that you did not know that Everett was armed, and I accept that you did not know that Everett would steal objects and the car from the victim, and you have not been charged in relation to those matters.  But your intent at all times was to forcefully intimidate the victim by violence and threats of violence in order to get your money.  You were the mastermind of this offending, and must regarded as the principal offender.

40The prosecution did not file any victim impact statements.

41In sentencing for offending of this kind, the court must have proper regard to the sentencing principles of deterrence, both general and specific, denunciation, protection of the public, and to your prospects for rehabilitation.  The sentence I impose must amount to just punishment in all the circumstances.

42When you pleaded guilty, you also admitted some prior criminal convictions from nine previous court appearances in the Magistrates' Court between 2007 and 2015.  Those prior convictions are mostly for driving, drug and dishonesty offences.  You have no prior convictions for offences involving violence. 
Until these matters, you had not previously served a term of imprisonment.  Your prior criminal history has only marginal relevance in the sentencing of you.

43You have pleaded guilty to the charges and that is to your credit.  By your pleas of guilty, you have acknowledged responsibility for your offending and you have advanced the administration of justice.  Because you have pleaded guilty to the charges, you have saved the time and cost of a trial, and you have saved the victim especially from having to give evidence about these matters and be cross-examined by your counsel.

44Although you did not indicate that you would plead guilty at the earliest possible opportunity, I nevertheless treat you, for the purposes of sentencing, as having pleaded guilty at the time early enough to avoid a trial.

45You did not offer to plead guilty to the offence of home invasion as an alternative to aggravated home invasion, but you indicated that you would plead guilty immediately after the prosecution filed an amended indictment in which Charge 1 was a charge of home invasion.

46Because you pleaded guilty before trial, you are entitled to a reduction in sentence, and this will be reflected in the sentence that I will shortly pass.  I also treat your pleas of guilty as an indication of your remorse. 

47Further, when interviewed by a psychologist, Mr Jeffrey Cummins, you told him that you knew that you should not have gone to the victim seeking payment.  You acknowledged to Mr Cummins that ever since you injured your back at work, you have had an anger management problem.  You apparently feel that the world has not been fair to you.  You told Mr Cummins:

'I just thought, well, there's no point in getting solicitors involved or trying to go to court, I just have to sort this out myself.  And so that's what I did.  I know I should never have done this.  I've already spent nearly two years on remand.  I'm just hoping I won't have to spend any more time in custody.'

48You went on to acknowledge that you should not have attended the address of the victim with your co-offenders.

49Mr Terry submitted that what you told Mr Cummins was further evidence of your remorse.  I accept that submission.

50In submissions, Mr Terry told me, and I accept, that urine screening shows that you have not used drugs whilst in custody or whilst on bail.

51Mr Terry submitted that your conduct in this offending was towards the lower end for this kind of offending.  He submitted there was no real plan and that you never used a weapon, unlike in other cases.  He submitted that this was an example of a home invasion towards the lower end for that offence. 
He submitted that the objective gravity of the offence must be seen or informed by the fact that you were genuinely owed money by the victim.

52In argument, I challenged Mr Terry on that submission.  In my view, your offending falls towards the mid-range for this kind of offending.  As I said earlier, you were the person who conceived of the plan to recover moneys from the victim by force, violence and threats of further violence.

53You were the only person who stood to gain from this offending.  You recruited two other men to assist you, whom you called in aid as soon as the victim opened the front door of his home late at night.  What you and your co-offenders did brought about what must have been a terrifying experience for the victim to have endured.

54I turn to some matters relevant to your background.  I admitted into evidence the psychological report from Mr Jeffrey Cummins, dated 28 February 2020.

55You are 53 years of age.  As a condition of bail, you have been residing with a friend at an address in Sunbury, and you have been reporting three days per week, subject to a curfew.  You have also been undergoing urine analysis twice monthly.  Your friend in Sunbury has been diagnosed with Stage 4 cancer, and you have been assisting with his care.

56Your parents, who are both from Greece, are now deceased.  You described your father to Mr Cummins as an alcoholic who was dependent upon gambling and who was often physically abusive towards your mother.  Your mother was killed when struck by a motor vehicle as a pedestrian in Greece in 1994. 
You have a married sister, aged 57, who lives in Greece.

57You told Mr Cummins that your girlfriend, aged 18, died in a motor vehicle accident in Greece.  You told Mr Cummins that after that, you abruptly left Greece to escape the pain of her death.

58You were born in Melbourne, but soon after, your parents returned to Greece.  Most of your schooling was in Greece, where you were educated from age eight through to Year 12.  You completed an art sketching course at Preston TAFE.

59In 1987, aged 21, you suffered a serious back injury at work, and you were on compensation for some time.  You underwent spinal fusion in 1991,
and contrary to medical advice, you returned to the workforce as a panel beater, but there have been ongoing effects of the back injury, and you have suffered from sciatica in both legs on a frequent, often daily basis.

60I received into evidence a medical report from Rochdale Medical Centre, dated 8 June and 27 April 2020 respectively, confirming these matters - Exhibits 3 and 4.

61You had been operating your own panel beating business, but because of ongoing pain in your back, you closed this business in 2005.  Thereafter, you rented a factory where you restored cars and did some panel beating work for two to three years.  Since 2010 or thereabouts, you have been in receipt of a disability support pension.

62Between 2016 and 2018, you did some cleaning work, and some of that was for the victim for whom you worked for about three months.  You presently hold a full driver's license.  Between the ages of approximately 42 and 45, you were dependent on playing poker machines, but you managed to rid yourself of these.  You turned to amphetamine use on a casual basis, and I was told and accept that your use of amphetamines never escalated to the point that you were more than an occasional user.

63Your prior convictions involving drugs are for possession or use of amphetamines, ecstasy and cannabis.  I was told and accept that your most significant dependency has been in relation to opiates and pain medication.  You are currently prescribed Tramadol, Endep, Panadol Osteo and Pariet, an ulcer medication.

64In 2013, you were diagnosed with Hodgkin's' disease and treated with chemotherapy, radiotherapy and skin cell therapy.  You told Mr Cummins that in the course of this treatment, you became more depressed.

65You have previously been married, and you have two children, both of whom live in Melbourne.  You were divorced in the 1990s.  Your son is aged 31 and your daughter 26.  Both of your children visit you in prison.  They could not be present in court because of current restrictions caused by coronavirus.

66Mr Cummins was of the opinion that you were suffering from a major depressive disorder which has developed in response to your back injury and ongoing chronic back pain.  He was of the opinion that your risk of committing a further offence of violence was moderate, trending towards low.  He added:

'In my opinion, Mr Bayamis could benefit from participating in an anger management program which may provide him with useful skills in better managing his feelings, including what he admitted were at times still overwhelming feelings of frustration, regret and disbelief that he now finds himself unable to work on a full-time basis because of residual physical pain.  In addition, it is my opinion he could benefit from receiving mental health treatment with a focus on his ongoing symptoms of depression (primarily negative ruminative thoughts) which he reports he is continuing to experience, effectively on a daily basis.'

67I received into evidence a brief report from psychologist Danielle Atherton, dated 6 April 2020, Exhibit 5.  She reported that you have had four sessions with her since your release on bail, and you have received counselling for anxiety and depression. 

68Mr Terry did not rely on application of any Verdins principles in sentencing.

69Mr Terry relied upon the consequences of the coronavirus restrictions and the fact that because of those restrictions, prisoners undergoing sentence have been impacted.  Not only is there the possibility of the spread of the virus within a confined community, but also steps taken to reduce the risk of the spread of the virus within a prison have meant that prisoners have had a number of rights impacted.  Prison visits have been cut back, and in some cases, removed entirely, and the right to exercise within the prison has been severely curtailed.

70I am not presently aware of there having been a case of a prisoner testing positive to the coronavirus in custody, but there is always the prospect. 
In passing sentence, I have had regard to the impact of the coronavirus on prisoners undergoing sentence.  I am of the view that any sentence of imprisonment imposed in these circumstances of the coronavirus will be more burdensome as a consequence.

71Mr Terry acknowledged that having regard to the seriousness of your offending, I must impose a term of imprisonment for this offending.  However, he submitted that I should impose a total effective sentence of imprisonment equating to time served and make a community corrections order with conditions.

72The prosecution submitted that in all the circumstances, your offending was so serious that I should impose a term of imprisonment and fix a non-parole period.  The prosecution relies upon the sentencing principles referred to by the Court of Appeal in Hogarth v The Queen [2012] 37 VR 658. That was a decision where the principal offence was that of aggravated burglary. The prosecution submits the offending in this case has similar features.

73Both the decision in Hogarth and the decision of the Court of Appeal in O'Brien v The Queen [2019] VSCA 254 have emphasised the need for stern sentences in offending of this kind to deter others who might seek to offend in a similar way.

74Having given the matter considerable thought, both prior to the plea and during the course of the plea, at the conclusion of it, I expressed the view that the imposition of a term of imprisonment equivalent to time served and the making of a community corrections order in combination would not serve to properly meet the purposes of sentence in all of the circumstances of this case.  I remain of that view.

75I am of the opinion that you have reasonable prospects for rehabilitation.  However, the level of seriousness of your offending with others in the context of the prescribed maximum penalties for the offences involved means that you must serve further time in prison for this offending before being eligible for release on parole.

76On Charge 1, home invasion, you are convicted and sentenced to a term of imprisonment of three years.

77On Charge 2, intentionally causing injury, you are convicted and sentenced to a term of imprisonment of two years.

78On Charge 3, extortion with threat to inflict injury, you are convicted and sentenced to a term of imprisonment of two years.

79On summary Charge 16, driving whilst suspended, you are convicted and sentenced to a term of imprisonment of one month.

80On summary Charge 17, committing an indictable offence on bail, you are convicted and sentenced to a term of imprisonment of one month.

81I direct that one year of the sentence imposed on Charge 2 and six months of the sentence imposed on Charge 3 be cumulated on the sentence imposed on Charge 1 - making a total effective sentence of four-and-a-half years' imprisonment.

82I direct that you serve a minimum term of three years' imprisonment before being eligible for release on parole.

83I declare that there has been 706 days' pre-sentence detention relating to the sentences passed this day, and I direct that 706 days be reckoned as having been already served, be entered into the record of interview, and be deducted administratively.

84For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of seven years' imprisonment, and I would have directed that you serve a minimum of five years' imprisonment before being eligible for release on parole.

85I have been asked to sign some ancillary orders which were not opposed,
and I have signed them.

86Are there any questions arising out of that from any of the parties?

87MR TERRY:  Your Honour, the only issue arising from my perspective is that both my learned friend and I have calculated the PSD as 708 days.

88HIS HONOUR:  I beg your pardon.  I will amend that to 708 days, Mr Terry.  Thank you for bringing that to my attention.

89MR TERRY:  Your Honour, there's nothing further.

90HIS HONOUR:  Thank you.  I will have the transmission terminated, Mr Terry and Mr Bayamis.  Thank you. 

‑ ‑ ‑