Director of Public Prosecutions v Botheras
[2025] VCC 19
•23 January 2025
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
CRIMINAL JURISDICTION
CR-23-01500
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN ALAN BOTHERAS |
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JUDGE: | HIS HONOUR JUDGE MOGLIA |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 23 January 2025 |
DATE OF SENTENCE: | 23 January 2025 |
CASE MAY BE CITED AS: | DPP v Botheras |
MEDIUM NEUTRAL CITATION: | [2025] VCC 19 |
REASONS FOR SENTENCE
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Subject: Criminal law - Sentencing
Catchwords: Guilty plea – attempted burglary – prohibited person possess firearm – aggravated home invasion – theft - common assault –offending in company – relevant criminal history – youthful offender – childhood trauma – drug abuse – developing insight – moral culpability not high – demonstrated remorse – reasonable prospects of rehabilitation – specific deterrence – general deterrence - denunciation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:Total effective sentence: 4 years 4 months; non-parole period 3 years; 285 days reckoned as already served;
s 6AAA: 6 years 8 months; non-parole period 4 years 4 months---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | F. Cameron | Office of Public Prosecutions |
For the Accused | D. Caruso | Barwon South West Lawyers |
HIS HONOUR:
1Jordan Allan Botheras, you have pleaded guilty to attempted burglary, being a prohibited person possessing a firearm, theft of motor vehicle (three charges), aggravated home invasion and common law assault, all occurring in November and December 2022.
Summary of offending
2The agreed basis for your guilty plea is set out in the prosecution opening dated 16 January 2025.
3In summary, you were 23 years old at the time, living with your parents.
4On 22 October 2022, with someone else, you went to the cricket club and tried to break in. Somebody smashed the window – you were participating – and the frame was jemmied, but ultimately nobody got in.
5Then on 15 December 2022, in the early hours, you were at your mate's house with three co-offenders. They went away and returned with a stolen car and picked you up. Then you with them returned to the address where they had taken the car and you all took another vehicle from there.
6Your co-offenders drove it around until dumping it. While you were involved in that theft, you were not in the car or driving it.
7You all then went to another address in Wendouree Parade, and you all entered that property in the middle of the night. The residents were at home, including children, sleeping upstairs.
8The four of you entered. You had an unloaded firearm, a homemade device. There was no suggestion that it was used or presented to anyone or that it was loaded.
9Somebody found the keys to an expensive car. They took the vehicle. You were there and helped. The owner woke and chased you all. You ran away whilst the others drove away, and they later picked you up. That car was also dumped later in the morning.
10You went on foot to your ex-partner's house after that car was left behind. You begged her to let you in to avoid police catching up with you. You argued. She had your baby with her, and you assaulted her.
11I appreciate that it was a complex scenario in the early hours of the morning in stressful circumstances, but you acted appallingly.
Procedural history
12You were arrested at about midday that day, at home. You were interviewed. You admitted many aspects of what had happened that night and importantly that you had the homemade firearm with you. You minimised some aspects of what happened, but you essentially admitted your guilt.
13You accepted in court today the summary that was read against you and that it was a fair account. There are no victim impact statements.
14Following your arrest on 15 December 2022, you were bailed until 13 June 2023. That bail was revoked after more than a year on 16 October 2024 because you were not complying with all of its conditions and you had allegedly offended again.
15I make no finding about and place no weight on the allegation that you offended again.
16During your time on remand throughout the first half of 2023 and then since October 2024, you have worked in custody; you have done courses; and you have made yourself available for transfer to Karreenga prison.
17You pleaded guilty to this case not long before the trial was set to commence late in 2024, once you had received advice from trial counsel about your prospects and what your options were.
18Whilst it was a late plea, I note that you had made admissions to police very early on and that that shows that you accepted responsibility for what you had done, even if there might have been some dispute about whether it met the conditions of some of the charges that you faced earlier.
19Your choice to plead guilty facilitates the course of justice so it makes the work of the court easier for us in court but also for the community. It shows that you have a degree of remorse for your conduct and your plea has the benefit of saving the community the time and expense of a trial.
Personal circumstances
20You are now 24. You were only 23 at the time.
21You grew up locally in a supportive home. You were provided for, but nevertheless suffered some traumatic incidents when you were young. You are now starting to deal with those.
22Unsurprisingly, those incidents interfered with your schooling. You acted out. You were not a good student, or at least you were not a good match at the time for schooling, and you left in Year 8.
23But very much to your credit, once you left, you worked. You obtained an apprenticeship in plastering. That is not an easy thing to complete, but you did. As the psychologist comments, it shows that you are able to dedicate yourself to a project and to achieve. Not everyone can say that, so that is to your credit.
24It seems to me though that during those years at the end of your teens and into your 20s, the work you have done in plastering and achieving the apprenticeship, perhaps led to a false sense of confidence.
25Work, a relationship, even later, a child, and drug use, happening all at once is not easy and it is a recipe for disaster. Unsurprisingly, you came unstuck, and you are not alone in that experience.
26So, from 19 years old you started to gather a criminal history. It is not lengthy but is relevant. In 2019, at 19 years old, you were sentenced for burglary, assault, having methamphetamine and driving charges.
27You received a community correction order for that, unsurprisingly, given your age, but you breached it and in 2020 you were back before the court for theft, carjacking, robbery, trafficking methamphetamine and breaching the CCO. You received a sentence of three months imprisonment and a CCO which included specific addiction treatment.
28Later in 2020, however, you had breached that with further offending, theft and driving recklessly, and received a sentence of 12 months with 8 months to serve before parole and a further two months for the breach of CCO.
29So you come to this court with a significant criminal history. It is not overly lengthy, but it is relevant in terms of the conduct that it represents.
30I have to take that into account when assessing your prospects for rehabilitation and also the need to punish in a different way.
31In custody on this matter, you have had some progress. You have engaged in courses, both relating to alcohol and drug treatment and that is very much your focus, but also work related. You are working in the factory and doing courses in relation to future work in construction.
32Once you were granted bail in 2023, you engaged with the Court Integrated Services Program and you did well at least for a majority of the time. It tailored its support of you towards dealing with your drug use and trying to learn new ways of dealing with temptation, impulses and controlling them.
33You did well for a period of time, but by the end of your time on bail in October 2024, you had relapsed. Again, your time in custody since then shows that you have got the capacity for and that you have picked yourself up and started again. It is not a bad skill.
34You were assessed by a forensic psychologist, Ms Bidjossian, who provided a report dated January 2025.
35It sets out your background, including in your young years. It offers an explanation for your offending. It demonstrates in my view that you are not a bad person. You do not have antisocial attitudes.
36She demonstrated that there are toxic cycles of circumstances and mindsets that were at play. She comments at [55] that you have demonstrated a capacity for positive change notwithstanding those cycles.
37Homelessness, she also noted, was something that occurred and was central to your circumstances at the time of offending.
38She spoke in positive notes about your ability to speak coherently about your past and the challenges and the problems that you faced which to me is significant because it means that you can engage with those who are treating you.
39If I might say, that places you at an advantage over some people who appear in this court. You should take advantage of that capacity.
40She says you are developing insight. That is an important skill in being able to manage your future decision-making.
41She suggests that you likely have complex post-traumatic stress disorder, unsurprisingly, given your early trauma, and she has given good recommendations for your release about treatment.
42With your consent, I will provide that material to the Adult Parole Board. You are nodding, I will take that as consent. When you are considered for parole, they can take all of that into account and address the finer details of your situation. Your consent, to me, shows further insight.
43I note Ms Richards, your ex-partner, is in court, the mother of your child. That demonstrates that you have not lost hope which you had during the period of time when you offended. You have been mature enough to regain the confidence to some degree of those around you including your family. These are very important things.
Sentencing issues
44The maximum penalty for aggravated home invasion is 25 years' imprisonment. It is a category one offence, which means I must impose a prison term, and not a combination sentence, upon you and there was no dispute about that.
45It also attracts a mandatory three-year non-parole period.
46It was not suggested that any of the very restricted exceptions apply, and so I will comply with those legislative requirements.
47I comment, however, that in cases like yours where there are compelling factors and important considerations in relation to young offenders and the most effective way to achieve full rehabilitation, the imposition of mandatory sentencing by the legislature in my view is counterproductive.
48On Charges 2, 3, 4 and 6, the maximum penalty is 10 years' imprisonment for each of them and for Charges 1 and 7, it is five years' imprisonment each.
49Objectively speaking, the gravity of your offending, particularly on 15 December 2022, was very serious.
50You offended in a group. You had a weapon, and whilst it was not able to be discharged and was not loaded, it would have frightened the hell out of anyone who saw you and these were people you did not even know.
51There was repeat offending by going with the group and stealing a number of cars and going to different properties, albeit the main one where the home invasion occurred is what attracts the most attention.
52Aggravated home invasion, in accordance with the maximum penalty, is a very serious offence.
53Notwithstanding the seriousness of the offending, you are young. I find that on the night you were not the main offender or the instigator. Indicative of that is that when you were confronted by the resident at the final property, you ran, rather than confront him, even though you had a weapon.
54It was suggested during the plea that perhaps there should be some discount to your sentence in relation to the firearm because it was you that admitted you had it to police, but I also note there was CCTV footage that depicts it during one of the earlier incidents that night and that it was found later by police. I give you credit for the fact that it was you that admitted taking it into the property which was the ground for the aggravated home invasion charge, Charge 5.
55I find that your co-operation with police and making those admissions demonstrates remorse and it was there from an early stage.
56As to your moral culpability, I do not find it to be high. You were certainly complicit, but you were not the organiser, you did not drive the cars, you were running along behind, and I accept that you were affected by ice at the time.
57That addiction, I accept, is one that started for you when you were young and before you could bring an adult mind to making decisions about using that drug or going down that path.
58I accept that that addiction, which to a degree means that your decision making on the night was somewhat beyond your control, were causal factors for your offending.
59Whilst you are young, you are not inexperienced in the criminal law, and I bear that in mind.
60In this kind of case, the importance of deterring others from engaging in the same behaviour is highly important and I must sentence you with that in mind. So, even though your youth and other factors might tend to attract a lenient sentence, I must still sentence you in a way that deters others.
61Of course, a sentence of imprisonment and my comments denounce your conduct, and being in prison for the time that I will impose will be just punishment for you personally.
62Your criminal history is relevant. It includes thefts and violence and previous prison and so the effect is that I must direct some focus to deterring you from future drug use and conduct such as this, and to ensure that your release is under intensive supervision by imposing a non-parole period.
63I have had regard to the fact that most of the charges and the offending happened in one elongated incident in the early hours of 15 December. It was on the same occasion, in the same circumstances, albeit there were different victims.
64I have also avoided double punishment, or aimed to, with respect to the home invasion and the theft of the motor vehicle and the possession of the firearm.
65You have been in custody since 15 December 2022. During that early period the COVID-19 pandemic had almost ended, but it still would have rendered your time in custody more burdensome to a degree and I have moderated your sentence accordingly.
66As to rehabilitation, you have already engaged in courses that are relevant and important in prison. I accept your move to Karreenga shows a positive direction and your co-operation with that is to your credit, and in the meantime, you have been doing courses where you are out at Port Phillip.
67All in all, I find that your prospects for the future are reasonable, even though your risk of relapse will be with you for some time, and the risk of offending if you do relapse is high.
68Given your age and the support of your family including Ms Richards, the positive motivation that spending time with your son and continuing with those important relationships that are important to you, your guilty plea, the fact that the challenges you face have been identified, and that they are all challenges that can be treated and that you can master, I find that your prospects are reasonable.
69Both parties agreed that there has to be a head sentence and a non-parole period, and I will impose one. So I will sentence you as follows.
Charge 1, for the attempted burglary, 8 months' imprisonment.
Charge 2, being a prohibited person possessing a firearm, 12 months.
Charge 3, the theft of the smaller car, 6 months.
Charge 4, theft of the car when you went back to the property, 8 months.
Charge 5, aggravated home invasion, 3 years 5 months.
Charge 6, theft of motor vehicle, 10 months.
Charge 7, the common law assault, 9 months.
70Two months of the sentence on Charge 1, two months of the sentence on Charge 2, one month of the sentence on Charge 4, three months of the sentence on Charge 6 and three months of the sentence on Charge 7 are to be served cumulatively upon each other and upon the 3 years and 5 months' imprisonment on Charge 5. That means that I intend to impose a total effective sentence of 4 years 4 months' imprisonment and the non-parole period is 3 years.
71I declare that you have served 285 days pre-sentence detention and I direct that that be reckoned as already served under this sentence.
Ancillary orders
72On Charges 3, 4 and 6, the thefts of motor vehicles, you must be disqualified from driving, and I do so, and so your licence is cancelled, if you have it, and you are disqualified from getting one for 12 months.
73I bear in mind that that period will be over by the time you are paroled. I do that intentionally. I expect when you get out that you go and apply for your licence and do whatever courses are required to ensure that you drive safely and that you use a car responsibly so that you can further your work career and support your family.
74In accordance with s6AAA of the Sentencing Act, but for your guilty plea, I would have imposed a sentence of 6 years 8 months' imprisonment and fixed a non-parole period of 4 years and 4 months' imprisonment.
75There are two applications for forfeiture, one of the firearm and the other of the other items that police seized. You did not oppose them being made and I grant those applications.
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