Director of Public Prosecutions v Bayless (a pseudonym)
[2025] VCC 533
•1 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYAN BAYLESS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARINGS: | 20 March 2025; 24 March 2025 | |
DATE OF SENTENCE: | 1 May 2025 | |
CASE MAY BE CITED AS: | DPP v Bayless (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 533 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated burglary; Theft; Handling stolen goods; Driving whilst disqualified
Legislation Cited: Crimes Act 1958 (Vic); Road Safety Act1986 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:R v Todd [1982] 2 NSWLR 517; The Queen v McKee and Brooks [2003] VSCA 16; R v Verdins & Ors (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 57; DPP v Meyers [2014] VSCA 314; Tones v The Queen [2017] VSCA 118; DPP v Kachami [2020] VCC 1849; DPP v Ede [2021] VCC 191
Sentence: Drug and Alcohol Treatment Order, custodial part of 46 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. J. Malobabic | Office of Public Prosecutions |
| For the Accused | Mr M. Habib | Leanne Warren & Associates |
HIS HONOUR:
Introduction
1Ryan Bayless,[1] on 20 March 2025 you appeared before me at a determination hearing in the Drug and Alcohol Treatment Court. On that day you entered pleas of guilty to an indictment containing one charge of aggravated burglary which carries a maximum penalty of 25 years’ imprisonment, one charge of theft which carries a maximum penalty of 10 years’ imprisonment, and one charge of handling stolen goods which carries a maximum penalty of 15 years’ imprisonment. You also entered pleas of guilty to one related summary offence of driving whilst disqualified, which carries a maximum penalty of two years’ imprisonment.
[1] A pseudonym.
2You also admitted the contents of your criminal history.
Circumstances of the offending
3The circumstances of your offending were set out in the summary of prosecution opening on plea dated 6 December 2025, Exhibit 1 at your determination hearing. Through your counsel, you accepted the facts contained in that document.
4Your offending can be briefly summarised.
5Your offending on 20 May 2023 is captured by Charges 1 and 2 on the indictment and took place at a hotel in Dandenong. Your co-accused, Jenna Gia,[2] was an employee at the hotel, and you were an associate of Ms Gia’s brother, Adam Gia.[3]
[2] A pseudonym.
[3] A pseudonym.
6In the month leading up to the offending, Ms Gia received numerous phone calls from her brother Adam, who was in custody, and these conversations were recorded on the Arunta prison telephone system. The conversations essentially involved Adam asking Ms Gia to assist him with paying his legal fees. On 5 May 2023, Adam contacted Ms Gia again to discuss his legal fees and indicated that you may be in contact with her to assist.
7A few days prior to the offending, you were contacted by Brendon Smith,[4] an associate of both Adam and yourself, immediately after he was released from the same custodial facility where Adam was imprisoned. Mr Smith was messaging both you and Ms Gia around the same time. Ms Gia asked Mr Smith to bring you around to her house so that she could talk to you about a 'top opportunity where [you could] make [Adam’s] money plus money for [yourself]'. She messaged you via Mr Smith that this opportunity could be completed on Saturday morning and would result in $20,000 in your pocket. The day after, you visited Ms Gia house in Mulgrave with Mr Smith on the morning of 18 May 2023. During this meeting, you and Ms Gia planned the aggravated burglary.
[4] A pseudonym.
8In the very early hours of Saturday 20 May 2023, you travelled across Dandenong towards the hotel.
9At around 5.44 am, you walked along a nearby street in Dandenong towards the hotel and CCTV footage showed you using your mobile phone and wearing a backpack. You then turned off your phone, to attempt to hide your whereabouts during the offending.
10At around 5.53 am, CCTV captured you entering the laneway which leads to the back roller door staff entrance to the hotel. At around 5.57 am, the hotel duty manager completed her shift and departed the hotel via the front entrance. At around the same time, Ms Gia who was rostered to perform venue opening duties that morning, drove down the laneway, opened the back roller door and parked in the garage. You waited near the roller door and once Ms Gia had opened it, you ran inside the garage wearing a black tracksuit top and pants, black gloves, a black balaclava, distinctive Reebok shoes and a black backpack with a red logo.
11After entering the garage, you appeared to forcefully remove Ms Gia from her car. You held her at gunpoint with an imitation firearm and walked her to the hotel office, where the cash safe was located. Ms Gia opened the safe and two ATMs and handed out cash for you. The cash totalling $80,704.50 was placed by you in your backpack. This conduct forms the basis of Charge 1 on the indictment, aggravated burglary, and Charge 2, theft. You left the office and walked back into the garage, placing your items in Ms Gia’s car. You were unable to leave the garage due to the door’s self-locking mechanism. So, you picked up a keg and broke through the plaster wall to obtain the roller door fob key, located on the other side of the door.
12At around 6.20 am, you drove out of the garage in Ms Gia’s car, despite being disqualified from driving a motor vehicle at this time. This conduct forms the basis of the related summary charge, driving whilst disqualified.
13Ms Gia then called Triple 0. In response to the Triple 0 call, the police attended the hotel and obtained statements from other hotel employees. One statement was made by the closing manager responsible for activating the security alarm before Ms Gia’s opening shift started. She stated that on the morning of the offending she had had trouble with the alarm system. Ms Gia had called her and told her not to turn on the security alarm or put away the cash because she was on her way to the hotel.
14Later that morning, after you left the hotel, you activated a new phone SIM card in your phone under a false name. That evening, you booked a hotel room at Chadstone Sofitel Hotel using Mr Smith’s bank card and name, and during this stay, you took a photo of a large sum of cash in the hotel room.
15You were arrested on 9 June 2023 when you were found by police passed out in a vehicle. Amongst other items located by police, they located a diary containing handwritten notes used in the preparation and execution of your offending. You have been in custody since that date. On 6 July 2023, you were interviewed by police and provided a 'no comment' interview.
16A search warrant was executed on 12 July 2023 at a storage unit leased by you in Vermont South. Police located several identification, bank and other cards with false names other than yours. This conduct forms the basis for Charge 3 on the indictment, handling stolen goods, namely various identification cards and bank cards.
17You have been in custody since your arrest on 9 June 2023, a period of almost two years. However, you were sentenced at the Ringwood Magistrates’ Court on 28 February 2024 for other matters, with 264 days declared as time served.[5] Regarding this matter before me, 428 days in custody are attributable by way of pre-sentence detention, up to today.
[5]Exhibit A, paragraph 4
Nature and gravity of your offending and your level of responsibility for it
18The applicable maximum penalties for the offences to which you have pleaded guilty in a general sense reflect the seriousness of your offending. Aggravated burglary in particular is a serious crime which carries a maximum penalty of 25 years’ imprisonment. However, this was an unusual example of the crime of aggravated burglary. Your offending lacked the genuine confrontational aspect that often elevates the seriousness of the crime of aggravated burglary.[6] In reality, there was no genuine victim placed in fear as a result of your conduct. Nevertheless, your conduct represents an invasion of a business premises, a hotel.
[6]DPP v Meyers (2014) VSCA 314 at [6]
19As I indicated in the course of oral submissions, this was in reality a staged aggravated burglary, that is to say a theft with props or an armed robbery. Together with your co-accused, Ms Gia, you carefully crafted a scheme, utilising Ms Gia’s know-how as an employee of the hotel, to embark upon a significant theft of cash. Your endeavours were carefully planned and executed, with efforts on your part to conceal your identity. This was not spontaneous offending. You met with Ms Gia on 18 May to discuss the plan and you therefore had ample time to appreciate the gravity of your offending. To all intents and purposes, your role was that of the armed offender, bringing with you the imitation firearm and forcing your way into the premises and forcing an employee to provide you with a significant amount of cash. The diary containing handwritten notes reveals the extent of planning. The day prior to your offending you switched a SIM into a different mobile phone. You had this phone with you on the day of your offending, however, shortly before your offending you turned your mobile phone off so that it was not connected to any cell towers, in an attempt to hide your whereabouts at the time of the aggravated burglary. In the hours following the aggravated burglary you activated a new SIM card in the same handset that you had been using since the previous day, with this new number being registered in a false name, with identification cards in that false name subsequently located in the storage unit leased by you, this being relevant to the handle stolen goods charge. All of these aspects highlight the concerted efforts on your part to commit the crime and avoid detection.
20The amount of money stolen was significant, an amount in excess of $80,000, a proportion of which remains unrecovered.
21As accepted by the prosecution, your co-accused, Ms Gia, was essentially the orchestrator of this offending, utilising her role and knowledge of the hotel to facilitate the offending. In contrast to Ms Gia, your conduct did not involve any breach of trust which would otherwise have aggravated your offending. The weapon, which has not been located, was not said by the prosecution to be a real or loaded weapon. As I have stated, there was no real or genuine violence associated with your offending, as this was essentially all an act for the benefit of CCTV. Further, as I indicated in oral submissions, having viewed the CCTV footage, whilst your conduct was self-evidently concerning, there is a degree to which your conduct was somewhat hapless. By way of example, your rather chaotic attempts to flee the scene whilst the roller door continued to come down, do not reflect in my view the actions of a sophisticated offender.
22Although this was clearly serious offending, the objective gravity of your offending is not as serious as that engaged in by Mr Kachami and Mr Ede,[7] cases referred to in submissions from your counsel, noting that I sentenced Mr Ede in 2021. The amount stolen in that offending exceeded $3,000,000. The ruse was more elaborate, there was a greater level of sophistication and planning in the offending, and the co-accused who played the role of victim was physically tied with cables. A portion of the stolen gold bullion in that case was later buried, and there were attempts to destroy incriminating items in a fire pit.
[7][2020] VCC 1849 and [2021] VCC 191
23In all the circumstances, your offending with regards to the events at the hotel must in my view be seen as serious. Whilst the aggravated burglary carries the higher maximum penalty, in my view the gravamen of your criminality is related more to the theft charge, as this was the true motive of your offending conduct. Given your role in this endeavour, which was critical to the success of the offending, your culpability must be seen as high. Your explanation for your involvement in this offending, essentially that you owed money for drugs, does not in any way diminish your level of culpability. Your counsel did not submit that your culpability was reduced in any way due to any mental impairment, pursuant to the relevant Verdins principles. As conceded by your counsel, your concerning criminal history, the details of which I will soon describe, elevates your level of culpability for this offending. You have previously received sentences of imprisonment for serious misconduct. That you would again engage in serious offending, knowing the likely serious consequences, elevates in my view your level of moral culpability for your offending.
Personal circumstances
24I turn now to your background and personal circumstances. You are currently 45 years of age. You identify as an Aboriginal man, though you have reported that you currently have no sense of your cultural identity and have expressed a desire to verify your origins.
25Having reviewed your counsel’s submissions and the supporting materials tendered at your determination hearing, I accept that your upbringing was dysfunctional.
26Your parents separated when you were seven years old, and you were then raised by your mother. You believe that your father was unfaithful to your mother.
27You remain close to your mother, who has been present remotely at each of your hearings before me. You had intermittent contact with your father as you grew up, however, you have not had a relationship with him it seems for some 20 years. Throughout your childhood you were apparently subjected to excessive physical discipline by your father and also to verbal, emotional and physical abuse by your stepfather, who was apparently alcohol dependent.
28You have three siblings and four half-siblings, and you have limited contact with them. You have reported that most of your siblings have experienced issues with alcohol and drugs and have served time in custody.
29You attended Healesville Primary School and then Caulfield Community School for two years, before attending Healesville High School and then Lilydale High School for several months. You finished Year 9 and almost completed Year 10. You have reported that you were introverted throughout your schooling and afterwards.
30Subsequent to your schooling, you have worked intermittently as a plumber's labourer, then a stonemason, a construction labourer and an assistant arborist.
31You have four children from three previous relationships. Your eldest is 27 years old and your youngest is six years old. You also have two grandchildren. You have expressed that you feel immense regret and shame regarding your relationship with your children. You have a great desire to reconnect with your youngest child, whom you have not seen since your arrest in 2023.
32You began dating your current partner whom you had previously known for some time, while you were in custody, she apparently remains a strong support to you. She has also been present remotely at your hearings and has provided a supportive character reference for you dated 10 March 2025, Exhibit E at your determination hearing.
33You apparently commenced your drug use at the age of nine, initially using cannabis after being introduced to it by a teenage neighbour. You smoked cannabis frequently until the age of 33, at which point you started to smoke methamphetamine. You have, over the years, experienced problems with gambling, associated with your methamphetamine use. Prior to your arrest in 2023, you were apparently injecting one to three points of methamphetamine daily, around three times per day. You were consuming GHB more randomly, every other day, and between 10 and 20 millilitres at a time. You have reported to psychologist Jeffrey Cummins that at the time of the offending you were dependent on GHB and methamphetamine, and according to Mr Cummins you would have satisfied the diagnostic criteria for a moderately severe stimulant use disorder at the time of your offending. You have reported to the Drug and Alcohol Treatment Court assessors that at the time of your offending you owed money for drugs, and you reported that this offending would result in both clearing the drug debts, but also leaving some money for you to continue to aid your drug addiction.
34I have already referred in passing to your criminal record. Running to some 25 pages, and commencing in 1998, your criminal history is both extensive and concerning. You have prior convictions for offences of dishonesty, drug related offending, weapons offences, and violent offending. Between 2002 and 2021 you have been sentenced to five terms of imprisonment, ranging from 63 days to two years and six months’ imprisonment with a non-parole period of 18 months. In September 2021 you were sentenced to a term of two years’ imprisonment followed by a community correction order of two years' duration. As confirmed in the contravention report from November 2022, that community correction order was breached. Indeed, you have multiple prior convictions for contravening court orders. In 2002 you received a sentence of imprisonment for multiple charges of armed robbery. In 2021 you received a sentence of imprisonment for offending which included robbery, blackmail, and attempting to pervert the course of justice. Most recently, in February 2023 you received a sentence of imprisonment for offending which included trafficking methamphetamine. I have already referred to the impact of your criminal history upon your moral culpability for the current offending. Clearly, you cannot be sentenced twice for the same offences, but your criminal history is relevant to your moral culpability for the offending, together with an assessment as to your prospects for rehabilitation, and the application of the sentencing purposes of specific deterrence and community protection.
35Helpful reports from psychologist Jeffrey Cummins dated 23 January 2020 and 10 December 2024 were tendered on your behalf at your determination hearing. Those reports contain helpful background material which have assisted me in obtaining an understanding with regard to your personal circumstances and background. Mr Cummins referred to your extensive offending history apparently being integrally linked with your dependency on cannabis and more recently on methamphetamine and GHB. You have never previously undergone any residential drug detoxification or rehabilitation. Mr Cummins provisionally diagnosed you with complex post-traumatic stress disorder on a background of a dysfunctional upbringing. According to Mr Cummins, you also meet the diagnostic criteria for borderline personality disorder, and since your teenage years you have experienced symptoms associated with intermittent Major Depressive Disorder. You presented to Mr Cummins as remorseful for your offending and, it seems, motivated with regards to the possibility of a Drug and Alcohol Treatment Order.
36As I earlier indicated, you have now been in custody for a period of almost two years, a proportion of which is comprised of a sentence for other offending. You have 428 days in custody attributable to this matter. I accept as submitted by your counsel that you have used your time in custody productively. Having perused the reasons for sentence of Her Honour Judge Gaynor from 2014 with regard to previous violent offending, you do appear to have a capacity for valuable contributions within the prison system. Her Honour then described you as excelling in your custodial position as a disability mentor, making a valuable contribution to the prison and to those persons with an intellectual disability in the prison system. This was despite your life then being described as difficult and largely marred by drug and alcohol use.
37Whilst in custody for these current matters you have been housed at the Fulham Correctional Centre, where you have achieved the enhanced status of an activities billet – having previously been assigned the task of cleaning the office in the prison officers' post for over a year. These are essentially positions of trust or authority. You have also been housed in enhanced accommodation, a lodge which contains an eight-bedroom unit where, along with other men, you are able to cook for yourself with provisions provided. These matters indicate that indeed you have achieved a trusted status with the authorities in the custodial setting.
38According to the Drug and Alcohol Treatment Court case management assessor, Ms Helena Souris, in her report to the court dated 11 March 2025, you have engaged in numerous prison urinalysis testing, between June 2023 and November 2024, with all test results being negative for illicit substances.
39Unusually in my view, whilst in the custodial setting you have engaged in privately funded AOD counselling with Ms Karly Doyle, a forensic clinician with previous experience as a clinical advisor at the Melbourne Magistrates’ Court Drug Court. Ms Doyle set out her findings with regard to her professional dealings with you in her report dated 24 October 2024. In that report Ms Doyle refers to conducting eleven sessions via teleconference from the Fulham Correctional Centre with you. Your counsel subsequently informed me that the sessions continued beyond the report date, and that you had engaged in 14 sessions with Ms Doyle, with the contact ending due to funding constraints. The report from Ms Doyle is extremely positive. She refers to you presenting with multiple goals and protective factors, including your close bond with your mother and your supportive relationship with your partner Katrina, who represents a very supportive and stabilising influence. You presented as being motivated to remain offence-free, with positive goals which include reconnecting with family, securing full-time employment, engaging in regular fitness training and maintaining positive physical and mental health. You expressed to Ms Doyle a desire to engage in further treatment.
40At the further determination hearing before me on 24 March 2025, you gave evidence. I appreciate that this was not an easy thing to do, given the stage in the proceedings at which you gave evidence, and the significant consequences which at that time were very much up in the air. Because you gave evidence, I had the benefit of conducting my own assessment of you. In my view you, acquitted yourself well to the task of you giving evidence and, as I then indicated, you were obviously genuine and conscientious in answering questions. You impressed me as being insightful with regard to your professional relationship with Ms Doyle, and I have concluded that you were indeed genuine with regard to a desire to alter your life trajectory through meaningful rehabilitation. You also impressed as having a good working understanding so to speak of the intensive rigours of a Drug and Alcohol Treatment Order.
Matters relevant to the Drug and Alcohol Treatment Court Determination Hearing
41I turn now to matters relevant to the making of a Drug and Alcohol Treatment Order. The purposes of a Drug and Alcohol Treatment Order are to facilitate your rehabilitation, to take account of your drug or alcohol dependency, to reduce the level of criminal activity associated with drug or alcohol dependency, and to reduce your health risks associated with drug or alcohol dependency.[8] Importantly, if I am considering making such an order, I must regard your rehabilitation and the protection of the community from you, achieved through your rehabilitation, as having greater importance than other sentencing purposes such as denunciation and general deterrence. This is in my view is a significant matter in your case. Section 18X(2) of the Sentencing Act 1991 essentially gives priority to your rehabilitation, and community protection achieved through you rehabilitation, over the other sentencing purposes which would otherwise have significant prominence in your case – in particular denunciation and general deterrence given the nature and seriousness of your offending.
[8]s18X(1) of the Sentencing Act 1991
42The criteria for the making of a Drug and Alcohol Treatment Order are set out in s18Z of the Sentencing Act 1991.
Dependency (s18Z(1)(c)(i))
43I am satisfied on the balance of probabilities that you are dependent on drugs or alcohol. The prosecution did not dispute that this criterion had been met, citing your longstanding history of substance use.
Contribution (s18Z(1)(c)(ii))
44I am also satisfied that your dependency contributed to the commission of the offending now before me. I note that the prosecution viewed the nexus between your drug dependency and the commission of the offending as tenuous. In my view, having regard to your personal and criminal history, and the materials tendered at your determination hearing, in particular the most recent psychological report of Mr Cummins and the two assessment reports from the Drug and Alcohol Treatment Court, I am satisfied that your stimulant use disorder was operative at the time of your offending, and as you stated to case manager Ms Souris you reported being on substances which affected your judgment at the time of the offending. In assessing the contribution criteria, I am of course bound by the wording of the relevant provision in s18Z, which does not qualify the level of contribution. In my view, a common-sense analysis of your offending, having regard to your history, leads me to the conclusion that your drug dependency contributed to your offending conduct, such that on the balance of probabilities, the contribution criteria is met in your case.
Sentence duration (s18Z(1)(d)(ii))
45In order to place you on a Drug and Alcohol Treatment Order, I must be satisfied that it would be appropriate to impose a sentence of imprisonment of no more than four years. The prosecution in this case submitted that given the objective seriousness of your offending and your extensive criminal history, it would not be appropriate to impose a sentence of imprisonment of no more than four years. Your counsel submitted to the contrary. Ultimately of course, it is a matter for me, having regard to orthodox sentencing principles referable to s5 of the Sentencing Act 1991, and having regard to the reordered sentencing purposes and the primacy of rehabilitation as contained in s18X(2) of the Sentencing Act 1991.
46In my view, there are eight matters relevant to an analysis of the 'four-year criteria':
(i)Having considered your personal background, I am satisfied that your experiences of deprivation and disadvantage, particularly in your formative years, justify a reduction in your moral culpability for the offending pursuant to a general application of the Bugmy principles.[9] This matter was conceded by the prosecution. As a particular instance of your background of disadvantage, I note your introduction to illicit substances from the age of nine, enlivening the mitigatory principles articulated in the decision of The Queen v McKee and Brooks [2003] VSCA 16.
(ii)As accepted by the prosecution, your pleas of guilty can appropriately be described as early pleas in the particular circumstances of your case. As set out in your counsel’s written submissions, you were initially discharged at committal on the charge of aggravated burglary, where you then indicated your intention to plead guilty to burglary and theft. You were subsequently directly indicted by the Director of Public Prosecutions on the charge of aggravated burglary. The matter proceeded to pretrial argument in the County Court on the discrete issue of whether the facts could properly amount to an aggravated burglary. I note in your defence response dated 30 September 2024 you indicated a preparedness to plead guilty to the charges of burglary and theft, with the discrete issue relevant to aggravated burglary remaining in dispute. Following a pretrial ruling by Her Honour Judge Karapanagiotidis on 14 November 2024, you indicated your intention to plead guilty to the aggravated burglary charge on that date. Importantly, through your lawyers, you had indicated a desire to be referred to the Drug and Alcohol Treatment Court as early as the committal hearing. As conceded by the prosecution, in these circumstances your plea of guilty is appropriately described as early, warranting a significant sentencing discount.
(iii)According to psychologist Jeffrey Cummins you expressed both regret and remorse regarding your offending.[10] Having regard to Mr Cummins' reference to your remorse, together with your early preparedness to plead guilty, in combination with the sentiments expressed during your evidence before me on 24 March 2025, I am satisfied overall that you appreciate the gravity of your offending, and are remorseful for it, warranting a further sentencing discount.
(iv)You have been in custody since June 2023, with these matters hanging over your head for a protracted period of time, in circumstances where the primary charge was discharged at committal which was then the subject of a direct indictment. I accept that for an extended period of time you have been in custody awaiting resolution of these proceedings, whilst no doubt appreciating the distinct possibility of a custodial disposition. I accept that this has likely left you in a state of uncertain suspense, and the anxiety associated with the delay does represent a significant mitigating factor in the sentence to be imposed in accordance with well-known authority.[11]
(v)Your productive progress in custody represents a significant mitigatory factor in the sentencing exercise. Unusually, you have engaged in protracted counselling with an AOD counsellor, and I accept that you have shown a dedication of your own volition to better yourself, and to address matters that go to your risks of recidivism and the question of community protection. In addition to that you have undertaken various courses, provided negative urine screens, and have obtained an enhanced status within the prison system both in terms of prison responsibilities and your type of accommodation.
(vi)Your rehabilitation, and the protection of the community achieved through your rehabilitation, represents an important focus of the sentencing exercise in your particular case. The prosecution described your prospects of rehabilitation as guarded, having regard in particular to your extensive criminal history which includes multiple breaches of court orders. In my view, whilst your prospects of rehabilitation must be seen as challenging, there are positive aspects to your case. You have, as I have stated, used your time in custody productively. You clearly retain the love and support of both your mother and your current partner. Having regard to your evidence before me on 24 March 2025, I was impressed both with your level of insight, and your degree of motivation to alter your life trajectory. In my view, you are certainly not without rehabilitative hope, particularly if you are able to meaningfully engage in targeted and sustained rehabilitation with appropriately qualified experts. Drug and Alcohol Treatment Court clinical advisor Krishna Jones in her report dated 7 March 2025 referred to the following under the heading of 'Recovery Capital':
'Mr [Bayless] engaged and participated openly during the assessment process. He presented with insight into his past substance use and offending and articulated internal resolve to cease his ongoing pattern of release, relapse and offending. He articulated wanting to continue to understand the motivators underpinning this cycle and of wanting to continue counselling and engage in treatment.'[12]
(vii)In undertaking an assessment with regard to the four-year criteria, I have considered the issue of current sentencing practices, and I have concluded that a sentence exceeding four years’ imprisonment is far from inevitable in this case, having regard to the particular constellation of mitigatory factors that exist. I have considered in particular the decisions of DPP v Kachami [2020] VCC 1849 and DPP v Ede [2021] VCC 191, the details of which I have previously outlined. For the reasons I earlier explained, I have concluded that your case is not as serious as those decisions.
(viii)The prosecution in this case conceded that the totality principle has application in your case. You were sentenced at the Ringwood Magistrates’ Court on 28 February 2024 for numerous offences to an aggregate sentence of 264 days’ imprisonment, with this period declared as time served. From a global perspective, the reality is that you have been in custody now for almost two years since your arrest for the aggravated burglary offending. This is a matter of some significance in my view, in circumstances where I have been asked to consider imposing a significant disposition in your case, namely a Drug and Alcohol Treatment Order with a custodial component, and therefore an operative period, of up to four years.
[9]Bugmy v The Queen [2013] HCA 37
[10]Paragraph 32 of Report dated 10 December 2024
[11]R v Todd [1982] 2 New South Wales Law Reports 517, and Tones v The Queen [2017] VSCA 118 at paragraphs [36]-[40]
[12]Page 6
47In all the circumstances, I am satisfied that it would be appropriate to impose a sentence of imprisonment of no more than four years in your case. Accordingly, the four-year criteria is satisfied in your case.
Residual discretion – s18Z(3)
48Finally, pursuant to s18Z(3) of the Sentencing Act 1991, I must not make a Drug and Alcohol Treatment Order unless satisfied in all the circumstances that it is appropriate to do so.
49The assessment reports from Ms Souris and Ms Jones from the Drug and Alcohol Treatment Court are favourable in your case. According to Ms Souris, you have been assessed as suitable for a Drug and Alcohol Treatment Order. According to Ms Jones, the treatment and supervision component of a Drug and Alcohol Treatment Order would be an appropriate intervention to address your substance use disorder.
50As I made clear in oral submissions, both the nature and seriousness of your offending and in particular your extensive and troubling criminal history have caused me to hesitate with regard to the making of a Drug and Alcohol Treatment Order. However, after multiple hearings, having had the opportunity to conduct my own assessment of you in evidence, and having regard to the extensive materials tendered on your behalf and submissions made, I have concluded that it is appropriate to make a Drug and Alcohol Treatment Order in your case. Having carefully considered all relevant matters, I have determined, notwithstanding your extensive criminal history, that the time is right for the imposition of an extensive and intensive therapeutic disposition which has embedded within it a significant degree of accountability. That is, any inability or refusal on your part to wholeheartedly embrace the rigours of a Drug and Alcohol Treatment Order is likely to trigger the activation of a significant custodial component to the sentence I am about to announce. Ultimately, I have concluded that the community will be best protected through your meaningful rehabilitation, under the auspices of a carefully constructed Drug and Alcohol Treatment Order.
Sentence to be imposed
51Mr Bayless, would you please stand.
52In relation to all charges on the indictment and the related summary offence of driving whilst disqualified, you are convicted and placed upon a Drug and Alcohol Treatment Order. This order commences today.
53A Drug and Alcohol Treatment Order has two parts, the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts which are as follows.
54The core conditions, which are that:
(a) you must not commit whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the order is in force;
(b) you must attend Drug Court when required by the Court to do so;
(c) you must report to the Melbourne Drug Court house within two clear working days after the order is imposed;
(d) you must report to and accept visits from the members of the Drug Court;
(e) you must undergo treatment for alcohol and drug dependency as specified in the order or by the Drug Court;
(f) you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;
(g) you are not to leave Victoria without the permission of the Drug Court; and
(h) you are to obey all lawful instructions and directions from the Drug Court team.
55The core conditions will operate for three years and 10 months, or until further order.
56The program conditions, which are that:
(a) you must comply with the individual treatment plan dated 7 March 2025 and signed by you today;
(b) you must submit to drug and alcohol testing as directed;
(c) you must submit to detoxification or other treatments specified in the order as directed;
(d) you must attend vocational, educational and employment programs as directed;
(e) you must submit to medical, psychiatric and psychological treatment as directed;
(f) you must reside as directed by the Drug and Alcohol Treatment Court;
(g) you must comply with a curfew that you remain at your address between the hours of 9.00 pm and 6:00 am;
(h) you are not to use a drug of dependence without lawful authorisation;
(i) you are to abstain from alcohol;
(j) you must not drive a motor vehicle;
(k) you must engage with the Family Violence Social Support Worker as directed, to understand the impact of violence on partners and children, take responsibility for behaviour and develop safe and appropriate communication skills;
(l) you must not attend gaming venues, including but not limited to Crown, TAB venues, RSLs or any other venue with slot machines;
(m) you must not gamble online or via any smart device;
(n) you must not access any online gaming platforms;
(o) you must only access the internet through one device, which is nominated within seven days, and inform the Drug and Alcohol Treatment Court if you change devices and reasons for the change;
(p) you must only have one mobile phone, and inform the Drug and Alcohol Treatment Court if you change your phone or phone number and reasons for the change;
(q) you are to do or not do anything else that the Drug Court considers necessary or appropriate concerning your drug and alcohol dependency, and the personal factors that the Drug Court considers contributed to your criminal behaviour.
57These program conditions will operate for two years or until further order.
58The custodial part of the Drug and Alcohol Treatment Order is the term of imprisonment that I would have imposed had I not placed you on a Drug and Alcohol Treatment Order, and it is a term of imprisonment of three years and ten months. That is made up as follows:
(a) On Charge 1 of the indictment, aggravated burglary, three years’ imprisonment.
(b) On Charge 2 on the indictment, theft, three years and four months’ imprisonment. This is the base sentence.
(c) On Charge 3 on the indictment, handling stolen goods, 12 months’ imprisonment.
(d) On the related summary offence, driving whilst disqualified, one month imprisonment.
59Six months on Charge 1 is cumulative upon the base sentence imposed on Charge 2 on the indictment. The sentences imposed on Charge 3 and on the driving whilst disqualified related summary offence are concurrent with the base sentence. This makes a total effective sentence, as far as the custodial portion of this order is concerned, of three years and ten months' imprisonment.
60I declare that you have served 428 days of presentence detention.
61Pursuant to s6AAA of the Sentencing Act, had you pleaded not guilty but been found guilty at trial, I would have sentenced you to a total effective sentence of five years and three months’ imprisonment with a non-parole period of three years and nine months’ imprisonment.
62Pursuant to s28(1)(b) of the Road Safety Act 1986, I order that any driver's licence held by you is cancelled, and you are disqualified from obtaining another driver's licence for 12 months from today.
63Just take a seat for a moment, Mr Bayless. Ms Malobabic, first, any issues or ambiguities with regards to the sentence I have announced?
64MS MALOBABIC: No, Your Honour, not at all.
65HIS HONOUR: Same question to you, Mr Habib.
66MR HABIB: No questions, Your Honour.
67HIS HONOUR: No problem. Thanks. I will temporarily stand down.
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