Director of Public Prosecutions v Bosworth, Busuttil and Sheehy

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-01097,
CR-19-01094
& CR-19-01095
Indictment C1812205

DIRECTOR OF PUBLIC PROSECUTIONS

ANTHONY BOSWORTH
BRODY BUSUTTIL
BROCK SHEEHY

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2019, 2 December 2019
DATE OF SENTENCE:	9 December 2019
CASE MAY BE CITED AS:	DPP v Bosworth, Busuttil and Sheehy
MEDIUM NEUTRAL CITATION:	[2019] VCC 2076

REASONS FOR SENTENCE
Subject: Armed robbery, trafficking (ALL co-accused) Sheehy conduct endangering Serious injury, possess unregistered handguns (rolled-up), possess handgun; Busuttil RCI; Bosworth prohibited person possess imitation firearms (rolled-up).
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Cookson (10 Oct 2019) Ms Foot (2 December 2019)	Office of Public Prosecutions
For the Accused	Ms Dempsey for Bosworth, Mr Lindner for Busuttil Mr Backwell for Sheehy	Victoria Legal Aid Ann Valos Criminal Law Valos Black & Associates

HIS HONOUR:

Anthony Bosworth, you have pleaded guilty to one charge of trafficking in drugs, one charge of armed robbery and also one charge of being a prohibited person in possession of imitation firearms. You were the oldest person involved, 27 years old at the time, 28 now, and you have the longest criminal record of those charged.
You, Brody Busuttil, have pleaded guilty to the same armed robbery and trafficking charge but you have an additional charge of recklessly causing injury. You were the youngest player involved here, just 18 at the time, 19 now, and with no prior criminal record at all.
You, Brock Sheehy, have also pleaded guilty to the armed robbery and trafficking charges as well as charges of reckless conduct endangering serious injury and two firearms offences, being possession of unregistered handguns (that is a rolled up charge) and possession of a handgun. You were 20 at the time, 21 now, and you have a short criminal history.
The agreed summary sets out the maximum penalties and I see no need to restate them.
The matter was opened to me on 10 October of this year by Mr Cookson, who at that stage appeared on behalf of the Director of Public Prosecutions of this State. An amended written opening dated 9 October 2019 was tendered on the plea and marked as Exhibit A. The prosecutor opened in accordance with that document and I was told by your various counsel that this was an agreed summary.
It is then quite unnecessary for me to descend to the full factual detail of the offending. These reasons will be very long already. I will sentence in accordance with the agreed factual statement. That is important here as there were some intricacies spelt out in the opening. For instance, the hitting of the victim, Mr Williams, in the face with the weapon as part of the armed robbery is only laid at your feet, Mr Sheehy, falling as it did outside the scope of the agreement reached with the others. Further, though you engaged in those acts, it cannot be established that those acts caused the serious injuries sustained by Mr Williams given the later unusual and sustained attack upon him by one of his own colleagues, Mr Mansfield. Indeed it seems apparent that those later acts caused the serious injuries. So those injuries are not laid at your feet. Or in your case, Mr Busuttil, there is the single punch delivered by you to
Mr Chapman. The recklessly causing injury charge relates to that single blow. That is laid only against you. Neither Mr Sheehy nor Mr Bosworth are to be sentenced for that conduct. There was another later punch thrown at
Mr Chapman that sent him to the ground a second time but that is not laid at any of your feet.
Nor is it established beyond reasonable doubt that either you Mr Busuttil or you Mr Bosworth knew that the gun was loaded. You knew that there was a gun and one that was to be employed in the armed robbery. You on the other hand Mr Sheehy had actually loaded that gun. It was yours. You knew it was loaded. You discharged it and that is covered by the conduct endangering serious injury charge that is laid only against you. Neither Mr Busuttil or Mr Bosworth are to be sentenced for that conduct.
So there are these various complications, which I was alerted to. I sentence on the basis of the agreed facts. That is very important.
It is though conceded by all members of counsel that this was serious offending. Plainly you had reached an agreement to commit an armed robbery under the guise of offering for sale some ecstasy. You were the lead player in the set-up of that deal Mr Sheehy but the others didn’t just happen to be there at the time. You must have alerted them to some degree of the discussions that you had had with the prospective “purchaser” and you must have discussed amongst yourselves how to proceed. The three of you were together in a bar when Sheehy spoke to the prospective purchaser, Mr Williams, on the phone. You all at one point left the bar and went home to Sheehy’s house first and that is where you collected your firearm Mr Sheehy. The meeting was arranged and took place at 2:00am when the purchaser’s group of four came to the designated address by car to buy the drugs. Drugs you did not have Mr Sheehy, but had offered to sell as a ruse. The three of you got out of the car. That is the three of you as well as another man who remains uncharged but was obviously part of your group. You, Mr Bosworth stood next to that fourth man who got out of the car you had been in. That person, as later events disclosed, was soon to produce a sawn off shotgun. You Mr Bosworth got into a scuffle with Liam Mansfield who had come in the other car and was obviously drunk and behaving erratically, and to that extent you were distracted by his conduct. You Mr Busuttil together with Mr Sheehy who had the concealed weapon alleged in the armed robbery charge, approached the would be “purchasers”, that is Mr Williams and
Mr Chapman. You, Mr Busuttil stood adjacent to the “purchaser” Mr Chapman who was looking at the zip lock bag with the tablets which had been handed to him by you, Mr Sheehy and as Chapman turned away to reach into his pocket to get the cash, you Mr Busuttil without any warning or indication at all punched him to the side of the head, a blow that sent him crashing down to the bitumen. He lay unconscious and shaking on the ground.
You held the sawn-off rifle Mr Sheehy and as I say you knew it to be loaded. You menaced Williams with that weapon hitting and jabbing him a number of times in the face with what you knew to be a loaded firearm and you made demands of him. That nasty physical conduct as I say falls only at your feet as it fell outside the scope of the agreement but the same cannot be said of the production of the weapon or the demands which were made. The armed robbery was then underway with the gun that all of you must necessarily have known existed. There was another weapon brandished by as I say an as of yet uncharged fourth offender. The armed robbery related to three victims with, an item taken from the man lying unconscious on the ground, that is Mr Chapman, and other items taken from the car. It is impossible for me to discern who took which item. It does not matter.
This serious criminal exercise came to an end with you Mr Sheehy discharging the sawn off .22 rifle back in the direction of the victims from the driver’s seat just prior to departing. It was incredible conduct really and it served no purpose. You then drove off.
Mr Chapman’s injuries involved unconsciousness, pain and a graze to his cheek. In that you are most fortunate Mr Busuttil as I think you understand. The sort of blow that you delivered not that infrequently can seriously injure or even kill a person when they hit the ground as this man did. You could so easily be sitting in the dock in the Supreme Court facing a manslaughter charge but happily for all concerned you are not. I must sentence you for what you did, and that is a single blow, causing the injuries described and with that reckless state of mind.
The firearms offences relate in each case to various weapons found upon subsequent searches. In your case Mr Sheehy charge 4 also embraces the .22 rifle carried in this crime. It is a rolled up charge relating to three unmistakably serious and sinister firearms, the sawn off .22, a sawn off shotgun and a home-made shotgun. All of them operational and all of them with ammunition in the vicinity. Indeed the .22 was loaded when it was seized. Charge 5 relates to an equally sinister sawn off shotgun which had been stolen from a man in April 2016. There is no suggestion that you stole it or shortened it but you possessed it and it was a sawn down weapon. Again an operational weapon. So this was a cache of weapons all functioning and all of them sinister. There is no other reason to possess a sawn down weapon.
In your case, there are three imitations Mr Bosworth, imitations possessed by you as a prohibited person but they were found in a cupboard and there is really no sinister overtone that I can discern in your possessing those weapons.
I am not going to set out the arrest dates or the extent of the admissions made in interviews or the details of admissions that then were made to covert officers that had been placed into the cells.
You Mr Sheehy have been in custody from the day of your arrest. You
Mr Bosworth spent 155 days in custody before being bailed. I remanded you back into custody last Monday so of course that total has risen. You Mr Busuttil spent 16 days in adult custody before being bailed. Though the matter went to a contested committal, it settled on that day prior to any witnesses being called. In each case I will treat the plea as an early one given that there were serious injury charges relating to Mr Williams and the progress of the matter to the committal which was listed on 3 June 2019 unearthed the fact that those serious injuries were almost certainly caused by one of his own colleague. Statements were taken that day from two of the other witnesses at the scene. The case settled on that day. Indeed you had offered to plead earlier still Mr Busuttil in February of this year, and so had you Mr Sheehy, in January. So those plea offers by the two of you to the charges ultimately placed onto this indictment occurred well prior to the committal and no doubt if the prosecution knew then what they came to learn on day one of the committal as to the likely cause of Mr Williams serious injuries, the offers would have been accepted much earlier. You had made an earlier offer to plead guilty to robbery, Mr Bosworth, and that offer had been correctly rejected.
Victim Impact
I have received a number of victim impact statements. Mr Williams’ amended impact statement was read by the prosecutor. It was of course heavily redacted and there was much in the original that could not be relied upon obviously.
Ms Kerr read her own impact statement out aloud including an addition dealing with the impact of seeing the gun. I have listened to the tape of Ms Kerr as she read out the impact statement as the few lines that she had I think jotted by way of an amendment have seemingly been misplaced and I do not think they were ever actually received by the Court or marked as an exhibit. Mr Chapman read out his impact statement as well. It is very obvious that this was a frightening and confronting incident. How could it not be? It was a planned armed robbery. I am not going to wade and wade through the impact statements in these my reasons. I have read them all again since the plea. Ms Kerr has sustained sizeable impact from these crimes. As she described, the gun was in front of her face. She feels lost and confused and has had negative feelings since the crimes as well as sleep difficulties and nightmares. There has been a sizeable emotional impact. Hardly surprising. So too does Mr Chapman speak of the negative consequences and emotions felt since this dreadful night. So too Mr Williams who became introverted and withdrawn and distrustful and fearful of people. He too has had flashbacks. As I have said there was redaction of the portions of his impact statement dealing with the physical injuries as of course they are not embraced by these crimes so I do not take those identified portions into account in any way. Obviously those sorts of things would have had a very large impact upon him and I must not have any regard to those physical aspects at all.
This evening had frightening elements to it. Confrontation on a public street at 2 am by a group of four, with firearms, and members menaced and even one of the group felled. A victim lying unconscious on the ground shaking. A gun discharged by you Mr Sheehy. How could it not shake a person’s confidence and trust. They were by all accounts a happy group having a good night and that changed drastically. It has had a sizeable impact which I take into account. In each case though I only take into account the impact consistent with the charges you have individually pleaded guilty to and the agreed factual basis placed before me.
Plea in mitigation
Plea - Busuttil
I turn then to describe the brief outline of the pleas in mitigation conducted in each case. In your case, Mr Busuttil, Mr Lindner made submissions on your behalf. He had prepared a written outline marked as Exhibit BUSSUTIL1. He tendered a number of reports, amongst them one from Lester Walton and three reports from those supervising you on bail and one related to drug counselling that you had engaged in. There were also two reports from a treating psychologist Mr Bilyk. Your counsel took me to your background, then to the immediate context and he made submissions as to the relative seriousness of the offences and your role.
Mr Lindner relied upon:
·    your early guilty plea;
·    the presence of remorse;
·    your background;
·    your youth, lack of any prior history and what he said were your good prospects of rehabilitation;
He argued that notwithstanding the serious nature of the offending that it was open to release you onto a community corrections order, failing that, if confinement was actually required, to consider detention in a youth justice facility rather than sending you back to an adult prison.
Plea - Mr Bosworth
Ms Dempsey made submissions on your behalf Mr Bosworth. She had prepared a written outline marked as Exhibit BOSWORTH 1. She tendered a number of documents including course results and personal and work references. There were also some medical materials and a report from
Mr Simmons. She took me to your disadvantaged background and also made submissions as to the relative seriousness of the offences and your role.
She relied chiefly upon:
·     your early guilty plea;
·     the presence of remorse;
·     your background;
·     the presence of family support and the changes that you have made in your life including movement to Ballarat, steady employment, and caring for your younger brother;
·     She relied upon a risk of deterioration in custody and hence the application of what she said was the sixth limb of the case of Verdins
·     She argued that you had very good rehabilitative prospects;
She argued in favour of a combination type order that is a term of imprisonment combined with a community corrections order. She argued that it might be open to impose a prison term equivalent to your pre-sentence detention and thereby avoid the need to return you to prison. Failing that a term to serve with release onto a community corrections order and failing that a head sentence with a non-parole period that may permit, as she put it, a longer than usual period on parole. I interpose, there is no such thing as a usual non parole period.
Plea - Mr Sheehy
Mr Backwell made submissions on your behalf Mr Sheehy. He also had prepared a written outline marked as Exhibit S1. He tendered a report from Lester Walton and one from Mr Jackson. Also a letter from a clinic in relation to your father, some course completion documents, a letter of apology and a bundle of written references including an excellent letter from your aunt and one from your father as well. He also took me to your disadvantaged background and also made submissions as to the relative seriousness of the offences and your role.
He relied mainly upon:
·   your early guilty plea;
·   the presence of remorse;
·   your background;
·   your youth and limited criminal history;
He also argued that you had reasonable prospects of rehabilitation and urged me to impose a combination type sentence.
Prosecution
After arraignment on 10 October the matter was opened and I received the victim impact materials. Then I adjourned the hearing on the request of
Mr Lindner and Mr Backwell as there was a desire to obtain some further expert reports which ultimately were placed before me.
Ms Foot appeared on behalf of the prosecution on the second day of the plea last Monday and she made submissions then on behalf of the Director of Public Prosecutions calling for incarceration in each case, disputing the availability of a combination type order in your cases Mr Sheehy and Mr Bosworth, but conceding that confinement in a youth justice facility may well be open in your case Mr Busuttil subject to the assessment. Further Ms Foot argued that the Verdins limb 6 argument was not made out in your case Mr Bosworth and that your prospects of rehabilitation really should not be assessed as being as high as was being suggested by your counsel who described them as being very good. The prosecutor urged me to find that they were reasonable. She pointed to your lead role in this offending Mr Sheehy.
I clarified with all counsel that none of these offences were category 2 offences at the time. That was important. The armed robbery would now be a category 2 offence but the amendments bringing that about applied to crimes committed shortly after the commission date of this one. That amendment does not apply to any of you.
Background
These reasons will be quite long enough without me descending chapter and verse to the details of your various backgrounds. I have no reason not to accept the materials and submissions dealing with your personal backgrounds and I really see no utility in repeating in these reasons all that I have been told. Just a brief sketch of some salient features and then I will move on to the submissions made on your behalf but rest assured I take into account the full personal history placed before me. The truth is as I reflected on these matters over the weekend and read all the materials placed before me, none of you have had enviable backgrounds. You could probably squabble amongst yourselves to try to establish who had had the worst upbringing and it might even be a draw. Each of you has had, it seems to me, significant disadvantage in your lives and I am not going to set out all the detail. There has been exposure to poor role models, to people who have misused alcohol and drugs, to violence or domestic violence or even abandonment.
Background - Busuttil
As to you, Mr Busuttil, You were born 14 May 2000 so you were 18 at the time of this offending and you are only 19 now and you are still very young. You are the second youngest of a large blended family and you were brought up in the Melton South area with your mother. Your parent’s relationship had been a stormy one and they had separated when you were about 10. You were exposed to domestic violence. Your mother has had also some significant mental health issues. You completed year 10 or 11 it is unclear which and it does not really matter, at an alternative school and have had a pretty sparse employment history since. Drugs have been problematic. You were in a relationship for 2 years with a woman 10 years your senior with a 2 year old daughter of that relationship. She is also now pregnant. You now live with your mother and a number of your sisters. You have formed a new relationship and are expecting a child in that relationship as well so there are two children on the way, one with your new partner, one with your former partner. It is a pretty complex setting for a young fellow to be dealing with. You have no prior criminal history at all and nothing subsequent. That is obviously very important. You spent 16 days in custody and were released on supervised bail. That has been of great benefit to you. You have had drug counselling. Your response to the supervision provided has been excellent though it seemingly waned a touch in recent times. It is described in one report as outstanding. The most recent report that was placed before me last week was less enthusiastic however the Youth Justice Centre assessment report suggests that you have picked up your game again. In common with the others in the dock, you have obviously had a disadvantaged background which I take into account as far as I am able to.
Background - Bosworth

You Mr Bosworth were born in back in December 1990, so you were 27 years old at the time and are now 28. You were the only child born to your parents but you have a half-sister who is older. You went to primary school up in Ballarat but the family moved out to Melton at some point. Again it was not a happy marriage, there was much violence and use of alcohol and your parents separated when you were in your early teens, I think 13 or so. It is apparent that you saw many things you should not have seen as a young person. You stayed with your father whilst you mother moved up to Queensland. At one point you joined her in Queensland when you were a teenager. She had gone on to form an equally toxic relationship up there with a new partner. You returned down to Victoria to your father and you completed schooling. You did not finish year 11. You have actually had a decent enough employment record and were working at the time. Since release on strict bail you have been living in Ballarat with your new partner, Hayley, who has written an excellent letter on your behalf. Your 14 year old brother Rhys has come to live with you. Rhys is your mother’s son from a relationship she formed many years ago. Also living with you is your partner’s son from a previous relationship, and as I understand it, your elder sister has joined you.
You also have had issues with alcohol and with drugs. You have a criminal record. It has some relevance as there are some crimes of violence including threat to kill and assault. You have also breached a community corrections order in the past. However it is not that long a record and there is nothing even coming close to the seriousness of these offences that I am dealing with. Now there is far more material placed before me as to your background in particular a very useful letter from your mother. It was a very unpleasant developmental background for you and I take it into account as far as I am able to. Growing up in that sort of environment it just leaves a mark. That is just unavoidable and I take that into account as far as I am able to. See the case of Bugmy [2013] HCA 37. It was hardly that surprising then that you would develop issues with alcohol and substances. So there is some moderation of your culpability but it is not sizeable.
Background - Sheehy
You Mr Sheehy were born on 28 May 1998. You were 20 at the time of the offences but are now 21. You were one of three children. Your parents separated when you were 8. It was not an easy background at all for a variety of reasons and I take that into account in your case as well. Again in your case there is much before me in the expert reports (Exhibit S2 and S3) and the letters marked as Exhibit S5. One of your brothers died in tragic circumstances when you were in year 8. You really have never come to terms with that it seems to me. You were educated to year 11 in VCAL at an alternative school and you are scarcely literate. There were a large range of issues as you grew up as the source documents mentioned in Mr Jackson's report make plain. Attendances at the Royal Children’s Hospital and at Austin child psychiatric unit to investigate your behaviour. There is coverage of some reasonably complex developmental issues in that report and in some of the references. None of the actual conditions spoken of reduce your culpability for this offending however. You have had a pretty sketchy employment record. You left home at a very young age. Your father has had a raft of very serious health issues and it is plain that you have provided some support to him as exhibit S4 makes clear. There is an excellent letter from your aunt and from your father as part of exhibit S5 together with other letters including one from Ms Trusler who is a person who knew you through her work as a wellness co-ordinator at the primary school where you attended. Your father speaks with a level of regret about the lack of stability provided to you. You had been in a long term relationship which produced a daughter who is now about 2 years of age.
You also have had issues with drugs and alcohol. You have a brief criminal record comprising only three court dates. It cannot be said to be entirely irrelevant as there is a prior appearance for assault and affray and possession of a dangerous article. Also you appeared at the Sunshine Magistrates Court on 3 May 2018 and were placed on an adjourned undertaking for some weapons offences. You were on that undertaking when you committed these serious offences that I must deal with. Unlike your two co-accused, you have remained in custody since arrest.
In common with your co-accused is having a most unenviable background which I take into account as far as I am able to in your case as well.
Expert Report
There is a large range of expert material placed before me. I am not going to descend to the detail of the various expert psychological or psychiatric reports placed before me. Turning then to the reports in just very brief compass if I may.
Expert Report - Busuttil
Firstly to you, Mr Busuttil, Mr Walton’s report does not greatly assist me and I think really to be fair Mr Lindner conceded that. You also gave to him an inaccurate account of the factual setting. You were not striking Mr Chapman out of anxiety and as you left the scene. As with the other accused no doubt you were under the influence of drugs. You say as much and so I suppose it is possible your memory of the event is flawed. Mr Walton thinks you are remorseful. So do I actually. Frankly there is not much of value in Mr Walton’s report though it gives me a better insight into your background.
The other reports relied upon however are far more useful. The reports from
Ms Alexander describe your mostly outstanding and positive engagement and attendance at 41 of 42 appointments arranged. Then I have the report of Mr Cahill from YSAS as to the treatment program. I have also the Youth Justice Assessment report that has been tendered today. Those things are far more useful to me than the report of Mr Walton or even the reports from your treating psychologist Michael Bilyk. There are no Verdins factors relied upon in your case at all.
Expert Report - Bosworth
I have the report from Mr Simmons in your case Mr Bosworth. The letter from your partner if I may say so is far more influential as she actually knows you. So too the letter from your mother. Mr Simmons has seen you on one occasion. He sees fit to say that in his judgment you are on the periphery. That judgement has nothing to do with him at all. He seems not to probe as to why you were mixing with an 18 year old and a 20 year old at the time and why you were out of the car. He also seemingly accepts your account of just meeting up and not knowing all that was to occur and not knowing about a weapon and only knowing of that when it was produced. He may accept all of that but of course I do not. That of course is impossible. You did not just meet up. This was a planned armed robbery. That was the setting. You, the two others in the dock and one other travelled by car to this arranged spot. Two of the four had guns. The four men got out of that one car and critically you admit complicity in the armed robbery. No one is suggesting you played a lead role, you did not. You were to come extent distracted by Mansfield who was roaming around drunkenly. You did not hold the gun but you knew of the plan to rob at gun point. In common with the others, you also had used drugs and alcohol and no doubt you were disinhibited and I have no doubt at all that you deeply regret the crimes. I do not need Mr Simmons to tell me that. I am not satisfied that there is any serious risk of deterioration in your case. Mr Simmons' view is speculative and he acknowledges that should there be exacerbation of your depressive symptoms, there are services on hand to treat that. Your counsel was urging me to find the existence of the 6th limb of Verdins to have some very modest application. She was explicit in relying only on the 6th limb. I do not believe the evidence rises to the level where I can be satisfied that there is a serious risk of prison having a significant adverse effect on your mental health. That really is not the tenor of that report. Still I take into account in a non Verdins' fashion the fact that prison will not be easy for you at all. It is your first experience of it and you have not looked forward to returning there and had to send you back there last Monday.
Expert Report - Sheehy
Mr Jackson gives an account of some of your issues Mr Sheehy and has the advantage of some old source documents from 2006, 2007, 2012 and 2018. Plainly there have been significant issues for many years as those letters or reports he has seen attest. Also the references placed before me. The “why” is a bit harder to know. You seemingly do not have an intellectual disability in his view at least, nor an acquired brain injury. He thought you more likely to have traits of a personality disorder of some description though Mr Walton suggests that is not the position. You certainly do not function at a high level but one of your seeming strengths is impulse control.
It was a difficult upbringing as I have described and the reports and this other material confirm that view. He sees no basis to think you are susceptible to influence or vulnerable in custody. Your account to Mr Walton of the sale of drugs falling through and an altercation taking place because of that failure to pay and your belatedly becoming involved is not accurate at all Mr Sheehy. The fact is you were front and centre, you were not doing it belatedly, you were hitting Williams in the face with a loaded weapon, a weapon that you had collected from home as this drug sale was just a ruse. It was an armed robbery and it always was. Mr Walton observed that you were remorseful. I am prepared to accept that is the position anyway and I have no reason on the materials before me including Mr Jackson’s report to think that there is any increased custodial burden in your case. There are no Verdins factors at play. Still those reports are of use to me. Mr Backwell relied upon them as demonstrating that there is the absence of some factors that might impede a person's rehabilitative prospects.
There are no matters in any of the reports leading to any significant reduced culpability though of course there is some reduction in culpability in your case
Mr Busuttil and to a lesser degree, in your case Mr Sheehy by virtue of your youth. I take into account your background Mr Bosworth which attracts some reduction in culpability. The same can be said of the backgrounds though of
Mr Sheehy and Mr Busuttil. None of you have had anything remotely close to a decent upbringing. There was disadvantage at every turn and as I have said those things do not actually diminish over time.
Guilty Plea
I turn then to some of the other matters that have been raised in mitigation for each of you. The first of those is the guilty plea which you have all entered. You have each pleaded guilty and at what I will treat as an early stage and that has to be rewarded by the court. You have each facilitated the course of justice. You have each taken responsibility for your crimes and at that early stage. The various victims have been spared the experience of actually giving evidence in a contested hearing. That is of importance as reliving the matter whilst giving evidence can itself be a stressful event and that has not occurred here, either in this Court or for that matter in the Magistrates’ Court.
The community has been saved the time, the cost and the effort associated with a committal in the Magistrates' Court or a trial up in this court. So I take those various matters into account in mitigation, as I am required to. Also the extent to which you co-operated with the police. Frankly there were variations in the level of your completeness in the accounts given to the police as the secretly recorded covert discussions in the cells made clear enough. You were probably the most forthright Mr Sheehy.
The fact is two of you (Mr Busuttil and Mr Sheehy) offered to plead to these very charges at a stage well prior to the committal. Those offers were rejected. You pleaded guilty on the day of the committal Mr Bosworth but as I have said you had previously at least offered to plead to robbery, not armed robbery.
Remorse
Your respective counsel argued that you are each remorseful. They rely upon the guilty plea as indicating remorse as well as references to remorse either in the expert reports or in letters placed before me or in your explicit apology
Mr Sheehy. I am prepared to find then in each case that there is actual remorse here. I have no doubt that you each regret these crimes and that is not driven purely by self-pity. You have had ample opportunity to reflect on what you actually did. Significant time in custody for some of you. You regret exposing these victims to the conduct they were exposed to. I take that into account in your favour. You also know how you have placed yourselves in jeopardy and the ramifications of that in terms of your loved ones or those who depend on you, for instance your partner and your brother Mr Bosworth. So I am satisfied each of you have remorse and I take that into account.
Youth
I turn then to the issue of youth. You Mr Sheehy were only 20 at the time of this offending and 21 now and with a shortish criminal history so you are still very young. You have lost the ability for this Court to consider youth justice detention in your case as your early plea offer was not accepted even though ultimately the indictment was framed with those same charges. That is not to say though that a court could or would have detained you in a youth justice facility given the seriousness of the charges and your role but it is not even an option I am now able to consider. I take that into account as far as I am able to.
You Mr Busuttil were younger still, you were 18 years of age at the time, 19 now, and with no prior history at all and nothing since. So genuinely a youthful first offender.
Your youth is in each case, of importance. I take into account those principles as set out in cases such as Mills and Azzopardi to which I have been referred.
Mr Linder also referred me to some other cases as well which I heed. Young people are just not fully developed. They can make poor decisions without necessarily considering the consequences. They are more amenable to successful rehabilitation because they are young and less set in their ways. They are also far more vulnerable to the corruptive influences which exist in adult prisons. The law generally treats youth as involving some reduction in culpability and as generally leading to some moderation of the purposes of sentencing including the need to deter and to punish. It should not be forgotten, but often enough it seems to me at least in the popular media, that the rehabilitation of a youthful first offender or even one with some short criminal history serves to actually protect the community. Investing in rehabilitation pays dividends not just for the offender but also for the community. A rehabilitated offender is after all no threat to anyone. Prison can often enough corrupt a youthful offender. There is, for good reason, generally a much stronger focus on rehabilitation and less weight given to other purposes including punishment and general deterrence. The benchmark for sending a youthful offender to prison is a high one indeed. The weight to be given to youth varies from case to case. However enough youthful first offenders are sent to prison. That is because sometimes there is just no choice. The more serious the crime the less weight can be given to youth and rehabilitation and more weight given to other purposes such as general deterrence and punishment. I do not lose sight of your youth in each case but it is only one matter which I must consider. You are the youngest here Mr Busuttil, and were only a few months past your 18th birthday. Of course that is important. You were and still are young Mr Sheehy but not as young as Mr Busuttil but regrettably you played a lead role in this offending.
You do not have any of the benefits arising from youth Mr Bosworth. You were not some silly teenager or youth with lesser culpability arising from that young age. You have full adult culpability here but with the modest reduction I spoke of earlier owing to your disadvantaged background. Heaven knows what you were thinking getting mixed up in something as serious as this but that was your choice and it was an adult making that choice, a mature man. It is a choice that I am sure you deeply regret.
Rehabilitation
What then of the various prospects of rehabilitation? I cannot just pronounce on this topic in a job lot. I have three separate offenders but of course in each case I have an early guilty plea and remorse which is a pretty decent start actually.
You have the strongest prospects of the three sitting in the dock Mr Busuttil. You are the youngest and have no criminal history at all nor anything since. There is the more sizeable reduction in your culpability owing to your youth which I mentioned a moment ago. You went to prison for 16 days and you emerged affected by that experience and determined not to go back to an adult prison and it is greatly to your credit that you have engaged as well as you have on the supported bail. The four reports as to your progress which I mentioned earlier are impressive. I am not going to descend to describe what the authors say in great detail. The fact is being bailed could have been a bad thing for you and it would have been had you re-offended or not engaged well. It would not have improved your position at all. That is not what happened so your time on bail is illuminating to me. You have matured to a degree but there is still room for much greater maturity but that could be said of any 19 year old I imagine. Your response had been outstanding with 36 appointments attended and none missed. That waned slightly with the more recent report describing a dropping off of effort and to some extent an observation of you going through the motions. You have a fair bit going on in your life it must be said as I described earlier. You have insight into how serious this conduct was and a strong desire never to repeat it. You have completed some drug counselling as well. I accept
Mr Lindner’s submission that you have good prospects of rehabilitation. Indeed I would rank them higher still if, and it is if, you can keep going in the way that you formerly did. I believe in fact your prospects are very good if you can revert to that level of effort which was on display for several months before the more recent dropping off. It seems from the youth justice assessment report that you have picked up your game again. If you go through the motions as you had more recently then your prospects of rehabilitation will dip very sharply.
As to you Mr Sheehy, it is a bit harder to judge your prospects but that sometimes is the problem when a person is imprisoned. I just do not have the range of materials commenting on the efforts you have made that I have in the case of your two co-accused. You have youth on your side and so you have that level of reduction in culpability but obviously not as much as Busuttil. You were older than him by two years. You also have a criminal history but it is a short one. You were on a court order at the time of the offending. Then of course there is your role in this offending. You were front and centre loading up a sawn off weapon with live ammunition and hitting a man to the face with such a weapon as that, all over a small amount of money or property in the offing. You also had guns aplenty upon arrest. Real guns. These are sinister guns, make no mistake. I have your apology and I have some impressive written references that cast a good deal of light on your background and your response. By all accounts you have matured a good deal. I have no reason not to accept your apology as a heartfelt and genuine one.

You also have pleaded guilty and you are remorseful. It is your first experience of prison and surely that will serve to deter you to a degree. You have done some courses in custody and have been working as well. You are keenly aware of what you have missed out on. You have missed out on a lot whilst you have been held in custody.
I am though less upbeat in your case. I find that you have reasonable prospects of rehabilitation. That is what your counsel urged me to find. I think that is the correct assessment.
You Mr Bosworth as I said cannot point to youthful foolishness. You were 10 years older than Mr Busuttil and many years older than Mr Sheehy as well. I do not even know why you were mixing with these younger men. You were a mature man involved in unmistakably serious offending and you must have known as much. You also have some history before the Courts and have not taken all of your chances in the past. You have committed some violence offences and breached a community corrections order and intervention order. But the offending I am dealing with is of an altogether different dimension. So much more serious than the past conduct. There is nothing in that past conduct, disclosed in that history, that suggests to me that you cannot turn your life around. You were imprisoned for a sizeable period and did some programs in custody before you were bailed having served 155 days. You too have done well on bail. The material is nowhere near as impressive as that placed before me for Mr Busuttil but I am actually very impressed by the letter from your partner and the letter from your mother. I have read those again over the weekend. You have very strong support and you are providing care for your younger brother who has joined you having come down from Queensland. You have also reunited with your sister and there has been some conflict in the past between the two of you. You have made some significant changes in your life and desperately were seeking to continue on without being returned to prison. I am awake to that. You had steady employment and I sense that you are a different man from the man who committed these serious crimes in September of last year. I find that your prospects are not as good as your counsel suggests (she suggested they were very good) nor do I find them as low as the Crown would have me conclude (they would suggest they are reasonable). In fact I think that you have pretty good prospects of rehabilitation actually.
I really should say to each of you and I think that you will each understand this, that your prospects of rehabilitation in the future will sharply dip if you use drugs or alcohol to excess in the future. Would you have all been offending in this way if you had been clear headed and unaffected by drugs and/or alcohol? Who knows but I seriously doubt it. But taking drugs and alcohol and becoming disinhibited and doing something you might not otherwise do that is I am afraid ‘horses for courses’. We see it every day of the week in this court. It is not mitigatory. Waving around what you know to be a loaded gun whilst affected by drugs Mr Sheehy is a serious business indeed.
General remarks
I want to now make some general remarks about your offending. I must have regard to the nature and the seriousness of the offences before the court. Your counsel in each case conceded the seriousness of the offending for which you have pleaded guilty. The armed robbery was an unmistakably serious crime. It had a level of planning there can just be no doubt about that. Its genesis was the enquiry about the purchase of drugs made to you while on the phone,
Mr Sheehy. That brought the two groups into contact but the three of you at some point reached an agreement to commit an armed robbery. That is a serious business and all over a very small potential yield. You spoke of that with some regret in the covert tape Mr Bosworth. Each of you understood a gun would be employed though only you are fixed with knowledge that it was loaded Mr Sheehy. You actually loaded it which is quite incredible to take a loaded weapon to an offence such as this. The risks of committing a crime such as this, an armed robbery with a loaded weapon, are pretty clear. I already have commented on the risks that Mr Busuttil took of finding his way to another court on a manslaughter charge. Well any mishap with a firearm in the course of an armed robbery and we would take manslaughter off the table for you. A murder charge would beckon. It is incredibly dangerous conduct to have a loaded firearm in such a setting as this.
You then struck Williams repeatedly to the face, jabbing him with that loaded gun. That is incredible conduct. That is part of the armed robbery in your case but of course it has no application when I come to sentence Mr Busuttil or Mr Bosworth for that crime.
Mr Bosworth and Mr Busuttil say through their counsel “I didn’t hold the gun”. Well you did not. Neither of you did. So what? The fact that you Mr Sheehy held the gun and not they is academic in that it was a group or team crime. A joint affair. Each knew that a robbery was to take place at gunpoint. The fact that you had loaded the gun, your knowledge that it was a loaded gun is a feature of real seriousness but only as against you Mr Sheehy. So too the physical violence with the gun; that was an add-on which of course they are not to be dealt with for. You are.
Parties mentioned the lack of disguise as a matter touching upon the lack of sophistication and planning. It really is not a matter of any great significance at all it seems to me. This was not the nature of this armed robbery. It was a rip off of people who were trying to buy drugs. Disguising your appearance was not necessary as no doubt you hoped that people buying drugs may not report the conduct. If you had fronted in disguises, in balaclavas, you might have had difficult convincing these purchasers that drugs were on offer or to even get out of the car! I do accept though that it was not sophisticated offending. The events unfolded rapidly. Chapman was struck to the ground with a nasty blow from you Mr Busuttil. No-one one else falls to be dealt with for that. You do. His injuries fortunately were not serious but that act was a serious one. It was totally unexpected and forceful physical contact. It knocked him out cold and there he was shaking on the ground, unconscious. He was robbed as he lay unconscious. That is part of the armed robbery. The discharge of the weapon is laid purely at your feet Mr Sheehy. It was quite extraordinary conduct really and endangered four people and by then of course the armed robbery had ended. All of this occurred in a public place in the early hours of the morning.
I have to take into account the maximum penalties and I have to also of course take into account the impact and here there has been sizeable impact.
The firearms offences are unmistakably serious in your case Mr Sheehy. As I have said this was a sinister cache of weapons. Operational and functioning and with ammunition. It is hard to think of any purpose other than a sinister one for possessing weapons such as those. Protection does not cut it when one of them has actually been used in this armed robbery. How many operational weapon do you need?
It was far less serious in your case Mr Bosworth given that they were imitations found in a cupboard and with no sinister purpose that I can discern, but of course you were a prohibited person. I cannot just ignore that.
Armed robbery is an inherently serious offence as all of your counsel readily concede. The drug trafficking is something of a distraction actually involving offer for sale and it was a part of the ruse here. So I do not regard it as particularly serious example of that crime at all. In a way, it is almost a particular of the armed robbery it seems to me.
I do accept that none of this was sophisticated offending and it ran away from the plan pretty quickly with individual players taking steps that were steps not taken pursuant to the agreement, so Mr Busuttil with the blow, Mr Sheehy using the weapon to strike. It also had the unusual intervention of Mansfield at the start and at the end. Who knows if this would have ever even been reported to the police had there been a demand made and cash just handed over and no person sustaining the serious injuries that Williams sustained albeit not at any of your hands. But once he had sustained those injuries and the police were called, away it went. The whole event I am confident did not run according to plan.
But plainly there was some planning here. You did not just happen to all meet up at the scene or have a firearm.
It was serious and frightening offending.
The armed robbery is the most serious charge on the indictment by far. Whilst I accept that it is a long way removed from the most serious examples of armed robbery, it is nowhere close to the least serious examples. I do not think it is a profitable exercise to compare this style of armed robbery to a soft target armed robbery of a person entering a 7-Eleven or a service station. What is the point in comparing those? No one was suggesting it was a low level example of the offence of armed robbery. It was committed upon multiple victims. Even without knowledge that the gun was loaded, it was a sinister looking weapon to use being a sawn off rifle. You knew it was loaded Mr Sheehy and you used it to strike blows as well. The recklessly causing injury is no minor example of such an offence given the mechanism Mr Busuttil, the single blow delivered in the way that it was. Nor the conduct endangering serious injury laid against you Mr Sheehy given that mechanism, that is the discharge of a live round from a sawn off weapon in a public place in the early hours of the morning presumably to terrify victims. An act that also endangered them and was totally surplus to requirements, the armed robbery offence having been completed.
Current Sentencing Practice and Offence Gravity
I take into account current sentencing practices. It is not a single controlling factor. I have considered the Sentencing Advisory Council snapshot 212 of 2018, relating to the offence of armed robbery. The most common sentence of imprisonment where imprisonment was selected for this offence, was between three years to less than four years. I have looked at the more up to date Sentencing Advisory Council online data which tells a similar tale.
I have also considered the Judicial College of Victoria Sentencing Manual which has an overview of sentences imposed for this crime. I have concentrated on the portions dealing with what are described as ‘low-range’ armed robbery sentences.
I have also looked at the Judicial College of Victoria cases dealing with firearms and also conduct endangering serious injury, not conduct endangering death, which of course has a higher maximum penalty.
There were no Sentencing Advisory Council snapshots for firearms offences but the Sentencing Advisory Council online data has coverage of the statistical information for the section 7 and section 7B(1) offences you have committed
Mr Sheehy as well as the section 5AB(2) offence that you have committed Mr Bosworth.
Other sentencing decisions though are not precedents. Every case is very different and they always turn on their own facts.
Statistical material has inherent limitations. I have to pass an appropriate sentence in your cases and it is not a statistical exercise. It is not an exercise driven by what is the most common sentence from the data held.
This was undoubtedly serious offending which is conceded. It is not mitigatory that any of you committed it whilst under the influence of drugs or alcohol.
It is offending must be strongly denounced by the court. I must and I do denounce your conduct. You should be ashamed of yourselves and I think that you each seriously regret these crimes. One of those in the dock needs a break and I am sorry I have been going on for so long but you each need to understand why I am about to do what I am about to do. I think I will pause. I think Mr Sheehy needs to step out briefly. In fact I will have Mr Sheehy and Mr Bosworth just removed briefly so the toilet can be used and I will come back on the Bench as soon as they are back in position please. You just stay in place, Mr Busuttil, I will not be long. I will just wait in the anteroom.
(Short adjournment.)
Sentencing involves a balancing of a number of purposes. One of those purposes set out in the Sentencing Act is the rehabilitation of an offender. Of course I must give that some weight here. I have already mentioned my conclusions as to each of your future prospects. In no case is it all gloom and doom. They are reasonable for you Mr Sheehy, pretty good for you Mr Bosworth and they are good to very good for you Mr Busuttil, these are the judgements that I have made. Rehabilitation is especially important in your case Mr Busuttil as you are a youthful first offender.
I have to punish each of you justly and proportionately.
I have to also give some weight to specific deterrence, that is the need to deter you from offending. Again the weight varies as between the three of you for the reasons that I have described.
I must also at least consider the weight to be given to community protection in this sentencing task. It must also be given some weight here. Again though the weight varies as between the three of you.
General deterrence also has a role to play in my task. That is the need to deter other people from offending. It can be very significantly moderated owing to youth in your case Mr Busuttil and to a degree in your case Mr Sheehy for the same reason. There is no reason to significantly moderate general deterrence in your case Mr Bosworth.
The court must spell out to others in the community that this sort of conduct will just not be tolerated.
I am required to have regard to the offence maximums in each case and also to the impacts of your various crimes.
Parity
There is a concept referred to by us lawyers as parity of sentence. It was mentioned in the course of submissions. You have heard it discussed briefly last Monday. In the broadest sense, and this is a gross simplification, parity speaks of the notion that like offenders will be dealt with in a like manner.
Ordinarily then, if there are no points of distinction between the actual offenders or their roles or their background, then identical or, at least, very similar dispositions should be imposed by way of sentence. I repeat that is a gross simplification of the principle. It is a principle which makes pretty good sense. It is hoped that by adhering to this principle, that any justifiable sense of grievance as between like offenders will be eliminated.
It is no part of my job to try to prevent a person holding any unjustified grievance. I cannot stop someone from having unjustified feelings. All I can do is try to explain the disparities of sentence that will be apparent to all of you here.
I have said in the past that this principle of parity is very easy to state in the hypothetical, but is often a much more difficult principle to grapple with when passing sentences as a judge in the real world. That is because, of course, there is almost never such a thing as a like offender or like backgrounds. There are far more commonly differences in the individual features of the offenders or in their role or as is often the position, both.
Well here there are differences in the acts of the three players. The armed robbery and trafficking are joint crimes. You are each liable for the conduct of the other but subject to the limits that I have described in the agreed opening. Who holds the gun or makes the demand is not the critical thing. Making up the numbers of a team is not a mitigatory features at all because you are acting as a team. However there are some key points of distinction in this case. Of course there are offences which are not shared at all, for instance the recklessly causing injury in your case Mr Busuttil, or the individual firearms offences against you Mr Sheehy and you Mr Bosworth or the discharge of the weapon at the scene for you Mr Sheehy. In terms of the armed robbery, there was conduct engaged in by you Mr Sheehy which went beyond the scope of the agreement with, or the knowledge of the others, so the use of the weapon to strike Williams to the face and your knowledge that it was a loaded weapon, Mr Sheehy. That obviously heightens the seriousness of the armed robbery committed by you but it is not to be taken into account by me in sentencing the other two offenders.
But otherwise I have three offenders of differing ages with differing culpability, differing backgrounds, differing prospects of rehabilitation, two with criminal history, one with none. It is obvious that there will be differing sentences as all things are not equal. They virtually never are. So there are disparities in offending and in all of these other personal factors which in fact demand different sentences. I am endeavouring really to explain to you why different sentences will be passed upon three members of a team committing an armed robbery and trafficking. It is not one sentence fits all. That is not the way it works unless of course there are no differences at all in conduct or background and that virtually never occurs. Here there are differences everywhere I look.
I cannot stop any of you from having unjustified grievances. As I say all I can try to do is what I am doing, explain the differences in sentences so that you understand. You Mr Bosworth, well you will know, you do not need me to tell you, you were 27 years of age. You will know that the person who sits immediately to your right in the dock, the person who will be dealt with the least severely by the Court is the youngest player involved, Mr Busuttil who was about 10 years your junior and when you think about it only a few years older than your young brother and with no history before the courts. You also know that he has done excellently on an intense supervised bail program for over a year. You will surely know why he does better than you by way of sentencing outcome here. You Mr Sheehy will know of the extravagant add on’s that you fall to be sentenced in relation to, the physical blows with the weapon and the fact of having used what you knew to be a loaded firearm, one that you had loaded. Things that you know do not apply to those who sit to your left, either to Mr Bosworth or Mr Busuttil. You know that you were older than Mr Busuttil and you know that you were far more seriously involved than he or for that matter even the older man Mr Bosworth. You know that you were the driving force here. You were speaking to Williams on the phone organising the meeting. You were of course instrumental to this offending. So I have all these differences and I do my best to take them into account in applying the principle of parity of sentence. It is not an easy business I can tell you.
Combination
Now, prison or confinement is always a disposition of last resort for any court. If there is any other option open to the court, then of course it must be selected. That is the law. Mr Busuttil, your counsel Mr Lindner was asking for a standalone community corrections order. It is impossible to combine such an order with a youth justice detention order.
Mr Bosworth, your counsel Ms Dempsey whilst conceding the inevitability of prison was urging me to combine such a term with a community corrections order and provide for either your immediate release given your pre-sentence detention to date, or at least to provide for a guaranteed release date by such an order, the sort of thing which would not be obtained with the fixing of a non-parole period.
Mr Sheehy, your counsel Mr Backwell also urged the court to impose a combination type order, that is a term of imprisonment with your eventual release onto a community corrections order. I did not take him to be suggesting you had served sufficient time to be released immediately.

The prosecution argued last Monday and maintained the submission today that you all needed to be incarcerated, that you all need to be confined, you in youth justice facility Mr Busuttil and Mr Bosworth and Mr Sheehy you by way of a head sentence with a non-parole period. The Director of Public Prosecutions who were represented last Monday by Ms Foot argued that a combination type disposition was simply not open for you, Mr Bosworth, or for you, Mr Sheehy. In your case, Mr Busuttil they argued that the only available disposition was a term of detention n a youth justice facility.
I am not bound by any sentencing submissions made either by your various counsel or those made on behalf of the Director of Public Prosecutions of this State. Indeed in one way or another as you will soon see, I disagree with a number of the submissions made to me. I disagree with the Director’s suggestion that you need to be confined Mr Busuttil, and I disagree with your counsel’s submissions Mr Sheehy and Mr Bosworth that it is open to me to impose a combination sentence in your cases. I will send each of you to prison and I will be fixing a non-parole period in your cases I am afraid.
I have mentioned the high importance of youth in your case Mr Busuttil and since I heard the plea last Monday there has in fact been the publication of a very detailed Sentencing Advisory Council paper titled “Rethinking Sentencing for Young Adult Offenders”. It picks up many of the matters I mentioned earlier in my reasons when I dealt with the importance of youth in this case.
I have received back the two reports which I requested in your case. For a variety of reasons you are judged to be suitable for youth justice detention owing to your rehabilitative prospects and your potential vulnerabilities. There is still an aspect though of vulnerability even in a youth justice facility. You are also judged to be suitable for a community corrections order. Do I need to confine you and if so, is it to be youth justice detention for you or does an adult prison term beckon? Can an outcome shy of confinement achieve all the purposes of sentencing in your case? If it can, then of course it must be adopted. If it cannot well then I must confine you.
In your case Mr Busuttil, I have your youth. I have your complete lack of any criminal history or anything since. I have your reduced culpability. I have your early guilty plea. I have the presence of remorse and I have the generally excellent efforts you have made over a sizeable period of time whilst on bail. It is those various things that have been anxiously playing on my mind over the weekend as I have reviewed all this material and ultimately those things have led me to conclude that you have good if not very good prospects of rehabilitation. That unsurprisingly causes a court to shy away from an outcome that might in fact disturb those prospects for a youthful offender. In your case, but only in your case, I believe it is open to release you onto a suitably conditioned community corrections order and that is what I am going to do. I believe such an order can actually achieve all the purposes of sentencing in your case.
Sentence - Busuttil
I will need to explain this order to you and I am afraid I will do that in the presence of Mr Bosworth and Mr Sheehy who will just have to wait a little bit longer to learn their fate. I am not going to be passing a combination type sentence upon you. What do I mean by that? You have served already 16 days in custody. I am having regard to that fact, the fact that you have served 16 days in custody and that is something I am actually taking into account. It has obviously served a useful purpose it seems to me given the response spoken of in the various reports. Do not think that you will get those 16 days back declared as pre-sentence detention if you are foolish enough to breach this order. You will not. What I am going to do in relation to these three charges that you face is I intend to convict and sentence you to a 2 ½ year community corrections order. So you will be leaving the dock under your own steam today. But I have got to explain this to you and I have got to understand that you understand what I am putting you on. Listen very carefully as I explain the order because you need to understand it and I need to know that you consent to it. I can only put you on this order if you consent to it. If you have got any doubts about that you discuss them with
Mr Lindner and I will give him a chance to come down and speak to you before I ask you in a moment if you do consent. Do not think that you can breach this order and come back before me and get a second chance. Do you understand? This is your chance. Breach it at your own peril. But for the reasons that I have described I believe it is open for me to place you on this order. As I say it will be for a two and a half year period. So it runs until 8 June 2022. So it is a significant period. These orders are onerous and do not think that they are not.
The first port of call will be the requirement for you to attend at the Melton Community Corrections Services office within two clear working days. The address will be on the copy of the document and you will get a copy of it so get down there today or tomorrow. You are a youthful first offender. You have never been on an order like this. You have never been on any court order other than bail and you need to understand these community corrections orders have mandatory terms that apply. They apply to you.
The first of those is you must not commit another offence for which you could be imprisoned. That is in the period of the next two and a half years if you commit any offence for which you could in theory be imprisoned you will breach this order. There are a whole range of offences that can be committed by people that are punishable by imprisonment but often are not subject to terms of imprisonment.
I am not suggesting you are going to do this but if you went into a newsagent and stole a chocolate bar worth a dollar, I do not think there is any magistrate is going to lock someone up for theft of a dollar chocolate bar, but maybe I am mistaken. But a charge of theft would breach this order. Whatever occurs on the charge, it does not matter.
So if you commit any offence that could be subject to a term of imprisonment you will breach this order and these days virtually every offence can be punishable by a term of imprisonment. So you stay out of trouble. That should not be a problem because other than this offending you have stayed out of trouble your whole life.
You must report to and receive visits from Corrections. As I say you must report within two clear working days of the order starting. You have got to let them know within two clear working days of any change of address or job. You do not just get up and move, you let them know exactly where you are at any given time.
You must not leave Victoria without first getting permission to do so and you must obey all their lawful instructions that are given to you. So they are the mandatory terms that apply to every person who gets one of these orders. If you breach any of those you breach the order.
Secondly there are tailored conditions that I can apply to pay regard to the various purposes of sentencing and also you treatment considerations and needs. One of these conditions is unmistakably punitive. You are going to do some unpaid work. I have thought long and hard about that because there is an aspect of the unpaid work that I am a bit concerned about. It will bring you potentially into contact with other offenders.
You have got to be very careful about that. One of the reasons I am not sending you to prison and that I am imposing this sort of disposition, is I am very concerned about the corrupting influences that are found in an adult prison or even in a youth justice facility. So you will be potentially on a work crew. Just you keep to yourself. You must perform 200 hours of unpaid work over the period of this order.
It probably seems like a lot. It is not that much when you think about it. The order runs for two and a half years. Secondly, you will be under the supervision of a community corrections officer for the full period of this order, for two and a half years. I am also then going to have some treatment and rehabilitation conditions and you must undergo assessment and treatment including testing for drug abuse or dependency as directed.
You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed and you must undergo any mental health assessment and treatment as directed by the regional manager and there is also a non-association clause. You must not contact or associate with Anthony Bosworth and Brock Sheehy for the period of this order.
I am not going to monitor you on this order. I have contemplated whether I should. The author of the assessment report suggested it is not necessary. So you will be entering this order and I need you to understand the ramifications of breaching it. I am not sending you to prison today. I am not sending you to youth justice today. The people on either side of you are going to prison. You are not. I have explained the reasons why you are not and this order will be over your head for two and a half years. These orders are not easy.
There has been a period in the more recent time where perhaps your performance on the supervised bail has dipped a bit. If you think, as often people do, when these orders are imposed that that is the end of the court case we will meet again. You will breach it. I guarantee you. I guarantee you. You would not have known what would happen here today. You probably have come with some expectation of being sent either to youth justice or even to prison and you are not going to either of those places.
So in a short time after the other two gentlemen are sentenced and after they are taken out the back door and down to a cell you will be heading out into the community. It is amazing the number of people that I see who are greatly relieved to get this sort of order. You will be relieved but they lose sight of the fact that they are still on this order.
It is an order that you are on for two and a half years and people then have a way of getting out in the community and they think the court case is all done and dusted, it is all finished, and it is not. It is a two and a half year order from today and if you breach it in any way you will be brought back to court and it is amazing, as I say, the way that people lose sight of that fact.
So people who are very relieved to be placed on such an order then find a way of breaching it. I have seen everything under the sun. I have seen people who have not turned up at their induction appointment, people who get a bit sick of doing the unpaid work. It is not convenient, it is not easy. It is not meant to be. It is a punishment.
People find a way of giving priority to other things. You will have couple of - have a baby or whatever it is, a child or dropping someone off at school or things that obviously are more enjoyable then doing the unpaid work or turning up for assessment or treatment or whatever it might be and they breach the order. Form a relationship with your corrections officer. That is the best advice I can give you and that should not be a problem because I have seen the way that you have formed a relationship with the people supervising the bail.
That is the critical thing, but they will not be silly. If you have got some reason for not being able to turn up at an appointment under the order, whether it is unpaid work or assessment or treatment for alcohol, drugs or mental health, whatever it might be, or supervision, get on the phone, ring them there and then. Do not do what so many people do and that is do nothing and then come along at the time of the breach hearing saying, 'But I had a good reason here or there'. It will never work.
So form a decent relationship with the community corrections officer, treat them decently and honestly and they will treat you appropriately. If you muck them around they will breach you. It is a long order. You are still a very young man. You are only 19. Two and a half years in your life is a long time and if at any stage your performance on the order starts to wane, if it starts to dip, if it starts to drop off, if you get someone warning you about your lack of compliance just turn your mind back to the way you felt when you came to court maybe last Monday or even today.
Were you going to be going home? Were you going to be going to youth justice? Were you going to be sent back to prison? Turn your mind back to that because if you breach this order, you are committing an offence of breaching the order, but that is not the real sting to it, the sting to it is this; you get brought back to court for breach.
It is not the Magistrates' Court. You get brought back to this court. Not just this Court. You get brought back to this judge. So there will be a knock on the door, you will be down in that dock again, in through the door will come me, I will be coming bearing the various books where I have made the notes, carrying all the reports that I have gone through anxiously over the weekend to see whether I really could let you leave the court under your own steam.
I will then have to consider what I do with you on the breach. What I would have to do because I am a judge is I would have to judge. I would need to make an assessment as to the nature of your breach. Was it a serious breach? There are not too many that are not serious, I can tell you, but let me just give you just a word of advice and I think Mr Linder will probably echo this when I have left the Bench and he is speaking to you.
Do not - please do not work on the theory that you will come back to court and get a second chance. I am dealing with you for armed robbery. It is a serious offence. I am sending two other people to an adult prison for a significant period of time. I am not sending you there. Do not work on the theory that you come back along in six months or a year or 12 or 18 months from now on a breach proceeding and you have your counsel stick their hand up and say, 'Give him another chance, he is just a young fellow'. I am giving you a chance. This is it. Take it or else. Very simple.
I cannot say exactly what I would do to you if you breach it. I do not want to see you again. I make that very plain and you probably will not ever want to clap eyes on my face ever again. I hope we do not but if we do it is probably going to be in this court and it will be because you have breached my order and as I say, do not expect further leniency if you come back by way of breach.
I would listen to any submissions that were made on your behalf, of course. I would make some judgments as to what I could do, but what you will not necessarily know is this; there is a very limited range of options open to a judge for someone coming back by way of breach and the most common option adopted by a court is to cancel the order.
If I cancel the order I then have to re-sentence you and I might in that sort of setting be re-sentencing you when you are over 21 years of age. Do you understand? If that was the position there would be no possibility of sending you off to youth justice. It would be prison beckoning for you. So work on that theory. You are being given this disposition to foster your rehabilitation, to avoid the corruption that can take place in an adult prison. Take it and run with it, because if you put yourself back in that dock again by way of breach you should expect no further leniency from me.
Let me just see if there is anything else I need to deal with there. Mr Lindner, can you just go down and just ensure that your client understands what I have raised and see if he is consenting to the order? I am assuming he will.
MR LINDER: Yes, Your Honour. Your Honour, I have explained all the conditions to him and he consents to the order and acknowledges and understands that he would be re-sentenced not only on the breach but on these three offences as well. If Your Honour please.
HIS HONOUR: Thank you. I will have that order taken down then please. You can go down as well, Mr Lindner. Mr Busuttil, can you just stand up briefly please? Thank you. I have spent a good deal of time explaining that order and Mr Lindner has spoken to you as well and tells me that you understand. Do you confirm then that you have signed this community corrections order?
OFFENDER BUSUTTIL: Yes.
HIS HONOUR: You have signed it under the words, 'I understand the effect and the conditions of this order and consent to it being made'. That is the position?
OFFENDER BUSUTTIL: Yes.
HIS HONOUR: I will have a copy of that. Take a seat and I will have a copy of that made. There is also a disposal order sought in relation to you and also the two others in the dock. This is pursuant to s.78 of the Confiscations Act the application to forfeit the tablets that were presented at the scene. There is no issue in terms of that order being made either in relation to you or the other two offenders and so I am satisfied that the preconditions to the making of the s.78 order are made out and I have signed that formal order.
6 AAA
I have also mentioned in your case, and indeed all the cases, I have taken into account your guilty plea. Had you run a trial and been convicted of these offences subject to being under 21 years of age at the time of the conviction, I would have detained you for a period of 3 years in a Youth Justice facility.
Bosworth & Sheehy
I am sorry to have had you sitting off to the side, Mr Bosworth and Mr Sheehy having to listen to that but you see I have considered whether I should be sentencing you first and then have you removed but I could not do that. You have got to be sitting there and understand why I am doing what I am doing and why I have done what I have done in relation to Mr Busuttil so that is why I have had you held there and had you listen to my explanation of that order. As to you Mr Bosworth and you Mr Sheehy, each counsel referred me to the case of Boulton, a decision of our Court of Appeal that I am well familiar with. It is a decision that does not stand for the proposition that every offender for every crime should be admitted to a community corrections order either on its own or in combination with a prison term. If a suitably conditioned community corrections order in combination with a term of imprisonment of up to 12 months beyond your existing pre-sentence detention could achieve all the needs of sentencing in this case, then I would proceed in such a way. I am satisfied it is not open to do that here. I must adequately recognise the nature and the gravity of your various crimes and pay adequate regard to the need to denounce, to punish and to deter you and others as well as to protect the community. This was serious offending in each case.
Such a disposition as was submitted by your counsel, would not in my judgement achieve all the purposes of sentencing, including the need to punish, to denounce, to protect and to deter. I am left in no doubt that it is not open to me to structure a sentence such that a community corrections order is open to me in either case.
In each case I will provide for your possible early release by fixing a non-parole period. That is all it is, it is a possibility. Whether you are released at any time earlier than the expiry of the head sentence will be in the hands of the Adult Parole Board. It will be between you and them and has nothing to do with me. In fact I must act on the basis that in each case you will serve every day of the head sentence that I will shortly pronounce. However it at least will give each of you the possibility of early release and I will make provision for a sizeable enough period on parole, if parole is granted.
Totality

In each case I must have regard to the principle of totality of sentence, as I have obviously had regard to in your case, Mr Busuttil, and I endeavour to ensure that the overall effect of these sentences is consistent or commensurate with the overall gravity of your crimes. There must be some cumulation between some of your separate crimes Mr Sheehy. The armed robbery had concluded. You then as a parting gesture discharged the loaded firearm. Serious separate criminal conduct. Then we have the guns found subsequently. Again serious criminal behaviour in its own right deserving of a substantial prison term in its own right. However, I am moderating quite significantly the cumulation owing to your youth in each case, I regard the trafficking as nowhere near as serious as the armed robbery, because as I have said earlier, it is intimately tied up with the plan to commit the armed robbery. The guns in your case are far less worrying to me Mr Bosworth for reasons that I explained earlier.
Ancillary Orders
In each case, in addition to the disposal order that I pronounced earlier relating to the tablets, there are two forfeiture orders relating to the various firearms engaged here. In your case, Mr Bosworth, an application under s.9(1) of the Controlled Weapons Act for the forfeiture of the imitations that were seized. There is no opposition to the making of the order.
I am satisfied the preconditions for the making of that order are made out. I have signed that order and the items referred to in the schedule, the imitation firearms, will be treated in the way contemplated by the signed order.
There is likewise a forfeiture application in your case, Mr Sheehy, relating to the various weapons that were seized. Again there is no opposition to the making of that order under the provisions of the Firearms Act, s.151. The pre-conditions for the making of that order are made out in the materials and I order that the property referred to in the schedule be dealt with by the minister in the way contemplated by the order.
Again my apologies for taking as long as I have taken to get to this point. You want to know what the ultimate outcome is but I cannot just come onto the Bench and give you the numbers. I have to explain why I am doing what I am doing and in a case where there are three accused, as there are in this case, I have to spell out the reasons why there are disparities. It has taken a long time.
Sentence - Sheehy
Mr Sheehy, could you stand up please? I will sentence you now.
On the charge of armed robbery, charge 1 on the indictment, you are convicted and sentenced to 3 years' imprisonment.
On charge 2, that is the charge of trafficking, I convict and sentence you in relation to that matter to 1 months' imprisonment.
On charge 3, a charge of conduct endangering serious injury, I convict and sentence you to 9 months' imprisonment
This leaves the two charges relating to the four guns. Those guns are described in paragraph 32. Given the unity of subject matter, I believe it is open for me to pass an aggregate sentence in relation to those two charges. On those two charges, I convict and sentence you to an aggregate period of 16 months' imprisonment.
The base sentence is therefore the 36 months or 3 years imposed on the armed robbery.
Cumulation
I direct that 2 months of the sentence imposed on the conduct endangering serious injury charge and 4 months of the aggregate sentence imposed on the two gun offences is to be served cumulatively upon the base and each other. The sentence imposed on the trafficking will be served entirely concurrently
Total Effective Sentence
That produces then a total effective sentence of 42 months or 3 ½ years' imprisonment.
I fix a period of 26 months or 2 years 2 months during which you will not be eligible for release on parole.
Section 18
You have already served 433 days by way of pre-sentence detention. That will be entered into the records of the court.
6AAA
I have taken into account the fact that you have pleaded guilty and I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to a term of 5 ½ years in prison. I would have fixed a non-parole period of 3 years 9 months. Just have a seat then please.
Sentence - Bosworth
Now to you Mr Bosworth. If you would please stand, thank you?
On charge 1, in your case the charge of armed robbery, I convict and sentence you to 2 ½ years' imprisonment.
On charge 2 the trafficking charge I convict and sentence you to 1 months’ imprisonment.
On charge 7, the prohibited person charge, given the conclusions I have reached as to the imitation weapons not in any way being connected up with any sinister purpose at all, I will pass a sentence which falls way below the sorts of sentences which are referred to in the case collections or as represented by the statistics as being the most common sentences imposed for this offence. In fact I am going to convict and sentence you to 1 months’ imprisonment in relation to charge 7.
Further, the sentences on charges 2 and 7 will be served concurrently upon the base sentence.
What that means in your case is there is a total effective sentence of 2 ½ years' imprisonment.
I direct that you serve a period of 15 months before becoming eligible for release on parole.
Section 18
You have served 162 days by way of pre-sentence detention and that will be entered into the records of the court.
6AAA
And likewise in your case you have pleaded guilty and I have taken that into account and I have reduced your sentences accordingly. Had you pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to spend a period of 4 years in prison. I would have fixed a non-parole period of 2 ½ years in those circumstances.
Have a seat please and let me just see if there is anything else I need to attend to. Are there any other matters at all or not?
MR NIBBS: No, Your Honour.
HIS HONOUR: No other matters that anyone else wants to raise? You will go down and see your client downstairs, Mr Backwell and Ms Dempsey?
MR BACKWELL: Yes, Your Honour.
MS DEMPSEY: Yes, Your Honour.
HIS HONOUR: I will sign those formal orders in a moment but that completes the matter then so if Mr Bosworth and Mr Sheehy can now be removed please? Your client can come out of the dock, Mr Lindner. Perhaps wait until I have left the Bench.

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[2019] VCC 2076

9 December 2019