Director of Public Prosecutions v Deslandes and Ors

[2021] VCC 1326

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-20-01309
CR-20-01330
CR-20-01332
CR-20-01308

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL DESLANDES
JAYDEN FLOWER
KEIRAN HEATHER
GRANT QUIGLEY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 September 2021
CASE MAY BE CITED AS:	DPP v Deslandes & Ors
MEDIUM NEUTRAL CITATION:	[2021] VCC 1326

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Glynn	Office of Public Prosecutions
For the Accused Deslandes For the Accused Flower For the Accused Heather For the Accused Quigley	Mr A. Marshall Ms J. Swiney Mr M. McLennan Mr M. Reardon	Mario Vaccaro Dana Keenes Legal Emma Turnbull Lawyers Victoria Legal Aid

HIS HONOUR:

1Michael Deslandes, Jayden Flower, Kieran Heather and Grant Quigley, you have all pleaded guilty to one charge of false imprisonment and one charge of intentionally causing injury.  Those crimes carry maximum penalties of 10 years and 10 years respectively.  You, Mr Heather, have also pleaded guilty to one charge of make threat to destroy property, one charge of make threat to inflict serious injury and one charge of threat to kill.  The destroy property carries five years, inflict serious injury carries five years, threat to kill carries 10 years.  You, Mr Quigley, have also pleaded guilty to one charge of making threat to inflict serious injury and you, Mr Deslandes, have pleaded guilty to one charge of make threat to kill. 

2Each of you must get the benefit of that plea of guilty.  I am satisfied that, in these circumstances, each of you has, ultimately at least, expressed appropriate remorse.  You must also all get the utilitarian benefit of that plea of guilty, of saving the need for trial which, in these particular times, would have taken a considerable period of time to be heard, I would have thought.  All matters which go very much in your favour.  The other aspect of it is that the decision of Worboyes has made it clear, which I was doing in any event, that in these times of COVID and the stresses and strains put on the criminal justice system that pleas of guilty in these circumstances, therefore the avoidance of a trial, should be given significant weight and, in my view, have a visible effect on the sentence that is imposed. 

3When each of you were interviewed after the crime, you, Mr Deslandes, made admissions; you, Mr Flower, made admissions; you, Mr Quigley, made no comment, as I understand it which is your perfect right; and you, Mr Heather, were in fact never interviewed.  I will be dealing with each of you individually so I will not go through personal particulars at this stage; I will simply give an overall summary of the evidence as it was contained within the Crown opening.  It is a very, very detailed Crown opening and I propose to endeavour to just refer to some parts rather than read the entire thing out. 

4

At the time of the offending, you, Mr Deslandes, were 37 years of age, you,

Mr Flower, were 25, you, Mr Heather, were 24 and you, Mr Quigley, were 32.  At this time you, Mr Deslandes, were the director of a business in Wodonga and you employed Mr Quigley and Mr Flower at that business.  Heather is apparently a friend of Mr Flower.  The complainant, a Ruben Munroe, was 17 years of age at the time of the offending and lived in Wodonga and part of the time he lived with his mother.  At that time his father lived in a separate address and operated a store in Wodonga and he was in a relationship with a woman. 

5Between 11 pm on 9 December 2019 and 2 am on 10 December 2019, the victim in the matter and who I understand to be his girlfriend, had noticed that the garage door was open at Donnington Drive in Wodonga.  It was a property owned by you, Mr Deslandes.  They entered the garage, stole three motorbike helmets, a Makita hammer drill, a Milwaukee flashlight and a wallet that contained an ATM card and driver's license in your name, Mr Deslandes.  On 10 December 2019, the theft from the property was reported to the police.  In addition to the property admitted to have been stolen by the victim, you, Mr Deslandes, also reported the theft of two motorbikes.  Police began to investigate the theft and circulated an image of the suspected offenders.  The police contacted you, Mr Deslandes, and advised that they have circulated images of the suspects' face in the media.  The victim was identified as a suspect and his girlfriend telephoned Wodonga police and indicated that the two of them had seen their faces on social media and wanted to hand themselves in. 

6You, Mr Deslandes, were apparently contacted by the informant and told that the offenders had been identified.  These times do not seem to make a lot of sense to me but that was apparently around about 6.30 pm on 10 December.  At approximately around about the same time, you, Mr Deslandes, you, Mr Flower, you, Mr Quigley and you, Mr Heather, drove to the victim's home in Wodonga and at that time his mother was at home with her twin 15-year-old daughters.  You all went to the doorway and someone knocked on the door.  She opened the wooden door left the security door open.  You, Mr Deslandes, said that you were looking for the complainant.  She said that the complainant was not there and that he rarely lived there.  There was then a bit of an altercation where one of you men tried to get in and you, Mr Deslandes, then pushed the other three back and said that you believe Ruben had stolen your motorbikes and your wallet, you just wanted to talk to him without the police and you just want your bikes back. 

7She replied, 'I completely understand.  Ruben wasn't home last night so I'm not sure if he has or he hasn't stolen them.'  So, quite clearly, she was prepared to believe he had.  In any event, as I understand from the materials, you had been told, Mr Deslandes, by the police or somebody else, the prosect of getting the bikes back through the police would be very limited and I accept that this matter all came about because of you endeavouring to get the motorbikes back, not to affect any revenge upon the person who you, at that point in time, believed had stolen them.  One of you, the one with the blonde hair, I do not know who that is, tried to open the security door again and you, Mr Deslandes, again calmed the other men down and said, 'Let's have a look.'  You were then allowed to look through the shed at the back and when you entered the shed, you, Mr Deslandes, found materials that belonged to you and you took them and the mother told you to take it.  You took the drill and the flashlight, which had also been stolen. 

8You walked back to the car and apparently the mother called the victim and he ultimately answered the phone and was told that, 'There were four men here claiming you had stolen motorbikes and a wallet.  You need to sort this out.'  The victim apparently said to her, 'I found the bag and the helmets in Gayview Park.'  It was clearly untrue.  He then told his mother he was going to see the police. 

9The four of your returned and the mother told you that she had spoken to the victim.  He was going to hand himself into the police.  You, Mr Deslandes, said you did not want the police involved, you just wanted to talk to the complainant and find out where your motorbikes were.  She called the complainant again, said that you wanted to talk to him.  You spoke to him and said that he was not going to get hurt and you just wanted to know what happened and you just wanted your bikes back.  You said to the victim, 'I don't want to involve the police.  You're better speaking to us.'  It is pretty clear at this point in time - and I accept that the bikes were stolen and I understand they were never recovered, so anyway.  I accept that you had real concern that the bikes would be disposed of, Mr Deslandes, before you were able to do anything about it.  It is at that point in time when it is confirmed by her telling you about the helmets and the like that, clearly, the victim had burgled your premises that night. 

10It was then, the two younger men out of the four of you, were carrying on a bit, saying they wanted to kill him.  You, Mr Deslandes, tried to calm that down and said you just wanted to talk to him and he was not going to get hurt.  There was then a meeting arranged through the mother and the victim arrived at the location by himself.  He recognised you, Mr Deslandes, from the driver's license of yours he had stolen.  You asked him where the bikes were and told him they were worth $20,000.  He said that he had stolen the other stuff but he had not taken the bikes.  You continued to accuse him of having the bikes and he denied it.  You were calm at first but began to become angry.  That, in my view, confirms that what was really going on here was an attempt to intimidate him into telling you where the bikes were so that they would not be disposed of.  I do not accept, at this point in time, certainly on your behalf, there was any intention to carry out what subsequently occurred. 

11It was at that point in time, Mr Heather, you decided to buy into all this.  This was nothing to do with you.  I see the version you have given as to about why you became involved but you then said to the victim that you knew where he lived and you were going to burn his house down and you knew where the shop was and you would burn that down as well.  That gives rise to the charge of threat to destroy property and it was at that point in time that you, Mr Heather, lifted your top and showed the complainant objects that he apparently thought was a black handgun.  There is no evidence that in fact that was a handgun.  You then told him that you were going to shoot him and his family if he did not get the bikes back.  That, on your part, Mr Heather, is the charge of threat to inflict serious injury in part.  You lifted your shirt again, showed him the object again and stood close to him.  He was scared and punched you to the face as hard as he could.  You stumbled and he ran off as fast as he could.  So it is pretty clear in this situation that the first sign of actual violence came from you, Mr Heather, and not the other three.

12

A number of you at least began chasing him.  He turned around, punched one of you and then he fell over and there were threats made at that point in time.  It is a bit hard to work out who said what to who, but in any event, the victim ran across the road into the store where he saw his stepmother Megan, who was working in the store, with his father Michael and told them he was being chased and “they had guns” and to call the police.  He went upstairs to the flat above the shop where

Kate Lawrence was there at that time and attempted to hide with her.  Three of you - you Mr Deslandes, you Mr Heather and you Mr Quigley; Mr Flower, at this point, is not there - went to the hotel next door.  The three of you are captured on CCTV.  The father also went to the Thirsty Camel and purchased 10 cans of Black Daniels, came upstairs to the flat and shouted, 'Where is he?', that is, where is Ruben.  He found him and told him to go downstairs and face the three of you.  That incident is also captured. 

13The father dragged the complainant downstairs where you three were waiting.  His stepmother hit him across the face and accused of stealing newspapers and told you men, the three of you at least, to do whatever you wanted to do to him.  The father gave you 10 cans of Jack Daniels, apologised to you and told you to do whatever you wanted to do to the complainant.  It is pretty clear from that point of view that the stepmother and the natural father had no problems in believing the allegations either.  So this is gone from a man who just simply wanted to get his motorbikes back and was concerned they would be sold to a situation where, affectively, the stepparents and both natural parents are affectively reinforcing the view.  In effect, thought it may not have been their intention, that in fact the victim had taken the bikes. 

14The three of you took him to your car, Mr Deslandes, and pushed him into the back seat.  He said he was frightened, there was a gun.  You sat in there, Mr Heather, beside him and you, Mr Deslandes, sat in the front passenger seat.  The three of you then drove back to the Raiders Football Club where it had been organised you were to meet where you, Mr Flower, was still waiting with the mother.  At that point in time, phones were apparently turned off and you, Mr Flower, started going through the text messages on the victim's phone, searching for who he had given the bikes to.  He kept telling you that he did not have the bikes and had not stolen them.  You, Mr Heather, began assembling a blow torch and started it up.  He could feel the heat from the torch.  You said you were going to burn his fingers off.  That is part of that threat to inflict serious injury.  You then asked him if he had ever sex with a man, he said he had not, and you told him that you were going to rape his girlfriend and pass her around to be raped and then you would kill her and her daughter.  That is Charge 5 of threat to kill.

15You, Mr Flower, asked him if he had ever sucked a cock before and he said no, and you made comments about that.  There then discussion about what was going to happen to him.  Mr Quigley, you drove up into a forest and pulled over to the side of the road.  He was taken out of the car.  One of you put the blow torch in the tray of the ute and you, Mr Deslandes, told him to put his hand on a big rock and asked one of the other men to get the blow torch.  He again said he did not know where the bikes were.  You, at that point, Mr Quigley, ran up to him as he was kneeling and kicked him to the front of his body and apparently caused him pain.  You, Mr Deslandes, jumped, grabbed his shirt and said that you were basically sick of him, that you were sure that he knew where the bikes were and that you did not believe that two separate people came into the house at the same time on the same night.  You, Mr Heather, then heated up a piece of metal pipe which you pushed close to his face.  It is, again, part of the threat to inflict serious injury. 

16

He was being yelled at about the bikes.  You, Mr Quigley, hit him with the heated pipe on his left shoulder and it caused pain, apparently there is a burn mark to support that, and other violence at that point in time took place and he was again threatened.  He was then put back into the car.  He was continually accused of stealing the bikes and was then elbowed by you, Mr Deslandes, a number of times.  He was punched a number of times and, at one stage, kicked.  He was told to get undressed and to empty his pockets.  He took off his clothes.  You, Mr Quigley, told him to take off all his clothes, which he did.  While he was naked, you,

Mr Deslandes, punched, apparently elbowed and kneed him.  You grabbed the motorbike helmet using the mouth guard as a handle, hit him with it on the side of the face.  He fell down on his back and saw stars and had trouble breathing.  He thought he was going to be killed and was told to get on his knees and was then kicked.  He says he had more difficulty breathing. 

17

At some stage, he says - I do not know whether this is correct or not - that he lost consciousness and he was told to stand up and did and, again, he was punched using fists and elbows and he was, again, kicked.  You, again, Mr Heather, threatened him that you were going to cut the back of his legs.  That is part of the threat to inflict serious injury.  He was hit with a pole and you, Mr Heather, came with an angle grinder and, again, he was hit by you with a beer bottle,

Mr Deslandes.  He was told to get dressed and he was then told again that you believed he had stolen the bikes.  It was dark at that stage.  He was then hit again in the car with the bike helmet and hit a number of times.  You, Mr Heather, then apparently pushed an object on his head and told him that he was bullshit liar and, if he was going to lie, he needed to be good at it.  You told him he was not allowed to tell anyone about what had happened. 

18You, Mr Deslandes, then told him that there were people hanging around his mum's house and they would be told if he did runner, that is, if he obviously took off.  He said he would be back at his mum's house at 12 o'clock with the bikes and they would come and shoot him and his family.  You told him that he had to get the bikes or $20,000 and, again, he was threatened that his whole family in the house would be shot, his girlfriend shot and the house would be burnt to the ground.  That is Charge 7 against you, Mr Deslandes, a threat to kill.  He was then taken and affectively let go.  That pretty much describes the offending that took place. 

19There are photographs taken of various injuries.  The charge is injury, not serious injury, and I tend to agree with Mr Marshall on your behalf, Mr Deslandes, that, whilst there are clearly injuries, they tend not to support the extremities which are described by the complainant.  I understand that, obviously, in these circumstances negotiations have to take place as to what is being pleaded to and this is not a situation where I work on the basis that the defence are pleading to every single act within it.  They are pleading to the charges and that is obviously done for the purpose of endeavouring to get a resolution of the matter.  As I said before, you, Mr Deslandes, made admissions that you had punched the complainant a number of times.  You had said you had taken him to the forest and also admitted hitting him with the car on the way back.  You had said that you told  him that he was not going to go home until he got your bikes. 

20

You, Mr Flower, were interviewed and made full admissions and, as I have indicated, a no comment from you, Mr Quigley, which is your perfect right and you, Mr Heather, were not interviewed.  I do not know whether I need to go - in fact, I do not need to go through all the investigations that took place afterwards.  One matter that does concern me is that you, Mr Flower, clearly recruited Mr Heather to become involved and, as I understand it, Mr Heather was not even known to

Mr Deslandes.  That is of some concern, bearing in my mind, what is in the psychological report that was tendered on your behalf as to what your attitude to all of this was but, be that as it may.

21The Victim Impact Statement of the mother of the victim has been filed and I take that into account.  It is a difficult prospect here.  The Crown submissions, obviously, are custodial sentences for all four of you.  The Crown submissions say that the victim's life has been ruined.  I do not accept that for a second.  We have here a situation where, albeit 17 years of age and getting very serious offending in my view, and I will be coming back to that again in a moment, was a circumstance where this young man had no hesitation, apparently, in burglaring a house or the garage as he walked past and his girlfriend went with him; he lied about it.  Certainly, the people who knew him pretty well, seemed to accept that he would have done it and what the effect of this has been on him, I have really got no idea.  It may have well been a lot of other factors operating in his life which give rise to some of the matters that are raised in that Victim Impact Statement.  I do not reject it, obviously.  It is the views of his mother as to what effect this has had and I clearly accept that.  It is of limited weight, I think, in all these circumstances. 

22The offending has to be regarded as serious.  Of course, it calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  A fairly robust debate took place during the course of the plea, between myself and the prosecutor in particular about what all this amounted to.  Now, in my view, this was an attempt that started off to try and get the motorbikes back.  I do not know what you were up to, Mr Flower, inviting Mr Heather along, but be that as it may, I do not accept that it was vigilante in the sense of taking the law into your own hands to punish somebody.  I think it was real concern, on your part, Mr Deslandes, that, as I understand it from the material, the motorbikes may in fact have even been the children's.  But be that as it may, that you wanted those bikes back and were really concerned that, if it was left to the police, that they would be disposed of before they could be recovered. 

23

In those circumstances, obviously the four of you went round there.  You,

Mr Deslandes, obviously started off calm and you were endeavouring to basically calm the others and ensure that no-one was going to get hurt.  In the face of repeated denials in what, to you, must have been a pretty strong circumstantial case, bearing in mind the attitude of the parents and the stepmother, I accept that the matter got out of hand.  In so far as you are concern, Mr Flower, and as far as  you are concerned, Mr Quigley, I accept that your involvement may well have been out of loyalty to your employer.  I am not quite sure where you were coming from with all this in the background.  Mr Flower, you seemed to have, at the start at least, been somewhat enjoying yourself.  I accept that your involvement later on was of less significance than the others and that certainly makes a difference. 

24As I said, it is serious offending and in the normal course of events, would automatically, in my view, call for a custodial sentence and that, indeed, is the position of the Crown.  I fully understand that.  However, having heard the materials being placed before me, particularly in regard to you, Mr Deslandes and particularly in regard to you, Mr Flower, I have to view the sentencing not as a sentence for an act of retribution that is a set of circumstances that, in a particular given situation, just basically got out of control.  The matter of Toumngeun that the Court of Appeal recognised in the DPP v Leach:

'It's particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance or an opportunity for reformation of the offender ought be grasped that, after all, maybe a decision which very much to the benefit of the community.' 

25As the present matter was said into Tokava:

'Sentencing judge should be astute to investigate whether or not a custodial sentence disposition is to be preferred even in the case of a serious offence because in the long-term, the community's interests will be best served by that course.  This court should seek to promote public understanding to the fact that, apart from the interests of the individual whom is sought to rehabilitate, an important interest in itself, there's a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.'

26

Each of counsel in their own ways sought a Community Correction Order be imposed, and in your situation, Mr Heather, that is clearly after a significant sentence and in your situation, Mr Quigley, quite properly conceded because of your intercedence affectively that it would be a combination.  On behalf of

Mr Deslandes and you, Mr Flower, it was put that a Community Correction Order, whilst unusual and merciful, would be open to a sentencing judge in this situation.  I'm well aware of the decision of Bolton and the matters that are pointed out in that.  I am also aware of the more recent decision of The Queen v Bradshaw.  There is a paragraph in that which I think is applicable in this situation:

'Parsony requires sentencing judges to give proper consideration to

non-custodial options.  As this court stated in Bolton [and as I said, I am not going to go through Bolton in detail, we all know what is in that] a Community Correction Order provides a flexible mechanism for imposing a sentence as post punitive and rehabilitative which can be fashion to address the particular circumstances of the offender and causes of the offending and to minimise the risk of reoffending by promoting the offender's rehabilitation.  As the order of seriousness of offending conduct increases, so that the likelihood that such disposition will be appropriate diminishes but it may remain an option that is open, even in cases of very serious offending.' 

27

So they are matters that I obviously, in this situation, had to take very much into account because of the quite powerful material that has been presented before me, certainly on behalf of you, Mr Deslandes, and you, Mr Flower.  I then turn to other matters that are general.  There is a question of delay involved in this, so I accept that attempts have been made to resolve the matter over a period of time.  Each of you has now had what is a serious matter hanging over your head for an extended period of time.  I have got no doubt, particularly on the material, that you and in particular Ms Deslandes that that waiting of not knowing what was going to happen has had a very deleterious effect, both on yourself and on your family.  I take into account the effects of COVID whilst you have been in custody,

Mr Heather, and I take into effect, as I said, as I indicated, the Worboyes aspects of it, the difficulties of being in custody with COVID certainly as it stands now where gaols are, as I understand it, back in lockdown again.  I have had all of you assessed for CCO's in various forms and you have all been accepted and counsel had the opportunity of reading those reports. 

28Matters personal to each of you. I will be dealing with each of you individually are all different.  You firstly, Mr Deslandes.  Very powerful material, in my view, was submitted on your behalf, both in terms of the psychological aspects and in terms of the family support that you have and the effect that had had on you within a community.  You pleaded guilty, as has been pointed out, and you get the benefit of that.  Very importantly, as with Mr Flower, you have no relevant prior convictions.  You are now 39 years of age.  Upon being arrested for these matters, you were in custody for a period of six days and I accept that that had a very significant effect upon you and certainly upon your family.  This is not a situation where I think I would be entitled to exercise mercy so far as the family is concerned, but there are very powerful factors involving your family and I am looking at them in a sense of what effect that would have upon you and the flow-on effect of that, were you to be incarcerated. 

29

As I understand it - and I may be wrong about this - none of you have any matters subsequent to this offending taking place and it is now obviously some period of time ago.  On your behalf was the submissions of your counsel Mr Marshall which were advertently succinct and a report of Ms Lechner.  Also, a number of references and it is clear from those - and I will go through them briefly in a

moment - that you have strong family support, that you have a very, very good work ethic and always have had. You have suffered very significantly because of this offending.  You were in a position where you were a managing director as I understand it, of a business which you started up which employed a significant number of employees.  Because of this offending, you had to forfeit your shares in that and are basically working for wages.  As I understand it, it has affectively halved your income and has obviously been a source of great shame and embarrassment to you. 

30As I think I have indicated, I think this did not start out as an attempt to commit offending anywhere near as serious as this and it did get out of hand.  The report from Dr Lechner makes clear a number of those things that have already been brought out.  You told her that you have been advised that there was little prospect of recovering the bikes and when you then went, obviously, to try and get them back yourself. You told her that you are deeply ashamed of your actions and expressed appropriate empathy for the victim.  She said you currently present as a low risk of further violent offending and I certainly regard that as being an accurate assessment. 

31You do have four children, two of whom are from an earlier marriage.  Your parents separated about 10 years ago but are still amicable and you were married for three or four years, as is indicated, with two children who are 12 and eight.  You have contact with those children on a regular basis.  There was a and I am not going to detail this, fairly unpleasant custody battle and the like over those children but the situation now is that you have 50/50 custody and they come and stay with you.  You are currently in a relationship with Ms Wilby.  You have two children with her, one four and one two.  You grew up in the country at Yackandandah.  There were no social or behavioural problems as a child and you were basically brought up in a good Christian background, as you said.  You were not exposed to domestic violence or substance abuse or anything along those lines.  At an early age you started working and you have always worked since and have been a good bread winner and a solid and stable member of your community.

32I think you have, clearly, an alcohol problem.  I understand from material, since being charged, that this problem has indeed escalated because of your feelings of shame and inability to cope, plus also I find the fear that you would have of being incarcerated as to what would then become of your family and I will go through that in a minute.  You are able to reflect about what you have done and, as I said already, I accept that there is genuine remorse on your part.  You have no difficulties with drugs and you are an intelligent man.  You had been drinking on the night that this occurred and that may have had some effect on it and it may be that the anger that you were feeling about the bikes came out in circumstances where it otherwise would not have.  It seems clear from the references that you are otherwise a fairly gentle man, a doer and not a talker, and this conduct is very much out of character.  Indeed, I find in these circumstances it was an aberration. 

33When asked about empathy for the victim, you said to Ms Lechner that you felt very ashamed, that when you went around there initially you did not know it was a kid and that it obviously had a huge impact on his life.  You told her that you had let your family down, you let yourself down, that you had lost reputation within the community, that you had lost the work opportunities obviously, being a director, and that a lot of people who know you were shocked and surprised and I think you live in continual embarrassment and shame because of that.  When Ms Lechner spoke to your partner, she said that one of her concerns was that you were the main bread winner, there being two children of your relationship and two from an earlier one, and from her point of view, and you would be well aware of this, she said that it would have a massive impact if you were given an immediate gaol sentence because the older children would not be able to stay with her so the siblings will not have contact. 

34I am also concerned in this situation where there has been a fairly, it would appear, hostile family court experience that the fact of you being incarcerated would have a long-term deleterious effects upon you in terms of custody and matters such as that.  I am not speculating, that is just simply something that would obviously very much stress you. 

35The summary essentially just repeats what I have just said about the shame, the remorse and those matters.  There is a reference from the currently managing director of the company that you had all created saying that, in view of this, they had ask you to forfeit your shares, stop being the director of the business whilst proceedings take place.  I accept that that is, as your counsel says, a severe punishment, Mr Deslandes, and, everyone in Wodonga is going to know all about this, is my strong suspicion.  There is also what I found a very powerful document from your partner Ms Wilby.  She goes through your history, she describes the situation with the children.  She herself said it is so out of character for you when you had to do the six days in custody that she was unable to function or cope with the trauma and disbelief as to what had occurred.  She said, and I accept this totally, that you have always been a very good father and loved, adored and dedicated to all four of your children and your presence is a brighter element in their lives. 

36Your youngest daughter is now four.  She was aged two or so at the time of the offending. She has NDIS funding, for expressive language disorder and you provide constant support in attending her therapy sessions.  She describes the hardship that has come upon you and the embarrassment that you have for what you have done, not only to your immediate family but also to your parents and your siblings and their families.  It is also clear from the material, you are concerned about what is going to occur to the families of the other three accused and have feeling a sense of responsibility for that.  She points out very openly that, since this has occurred, you have used alcohol as a sole coping mechanism and it is now at an all-time high.  She says you are not the same person that you were prior to the incident and to her the guilt, shame and remorse expressed by you have been heartbreaking and ongoing. 

37She also pointed out that the robbery actually was deeply traumatic for the family who, I understand, shifted out for a couple of days afterwards because of it.  There are then also references from members of your family and they express the same sense of virtually utter disbelief that you could have been involved in this and that you conducted yourself in the way that you did.  They point out a number of factors about you; that you continue to provide assistance to your parents who have heart problems and your father who has had double bypass open heart surgery.  In the reference from your sister, she says, 'Michael is a decent, hardworking and trustworthy person.'  Apart from this aberration, Mr Deslandes, I am prepared to accept that that is in fact the case.  I do not think I need to go through the other references in detail.  They basically confirm what had been said and I have already indicated, as clearly as I can, how this matter escalated and one has to look at the milieu in which it occurred and it is not a, in my view, calculated determination to go and assault somebody. 

38It is something which started off as a genuine attempt to recover property that you were entitled to and the fear that it would disappear and it developed into this. Possibly because of alcohol, possibly because of group association, I do not know.  I think the risk of you reoffending, Mr Deslandes, is very low indeed and the prospects of your rehabilitation, in my view, bearing in mind your past, are very good indeed.  As well, the circumstances are that, as already indicated, that all four of you have been assessed for a CCO and I have taken that unusual course in your situation, Ms Deslandes, despite the very serious nature of the offending, and I do not shy away from that I make it very clear that I do regard it as such.  I think it is a circumstance where the imposition of a gaol sentence upon you would cause such disruption to you, and you have already been severely punished both because of your employment and because of your own attitude and sham e towards yourself, that it is not the only sentencing option available.

39The Sentencing Act makes it clear that gaol is the sentence of last resort and I think that there are a number of steps before that last resort is reached.  Accordingly, you, Mr Deslandes, will be - if you agree - placed on a very significant Community Correction Order.  The length and duration of it would indicate how seriously it is to be taken.  It is a Community Correction Order which will last for four years.  One of the conditions will be that you perform unpaid community work of 400 hours.  There will be a further condition that you receive treatment for alcohol and I direct that the treatment hours taken up in treatment can come off the 400 which have been ordered as a work component.  In so far as you are concerned, the plea here has been of real significance in my view, real significance and that applies to all of you.  So I say, in your situation, but for the plea of guilty I would have been sentenced you to be imprisoned for a period of two years with a  minimum term of one.  So it will be that CCO. 

40All right, that order has been made.  Ms Deslandes, could you just stand up for me for a moment please.  I make it very clear to you that this is serious offending, there is no question about that, and people will regard this sentence as lenient.  I think it is appropriate but what you must understand is that, were you to reoffend with any form of violence or anything like this and breach this, I will gaol you, all right?  I will hear whatever your barrister may have to say on your behalf but I would, all right?  All right, you can be discharged from the dock, thank you.  If you can take a seat in court for me, please. 

41I probably should also annex the CCO reports as well.  Sorry, exhibit them because there are matters in there which I have taken into account which I have not referred to specifically. 

42

You, Mr Flower, made full admissions.  You were, I think from memory, 25 at the time of the offending.  You have pleaded guilty and you must get the benefit for that.  You have no prior convictions and that, again, assists as it did with

Mr Deslandes.  Your involvement in all this was, I think, less than the others.  You were, apart from Mr Heather who has a criminal history in any event, the youngest of them.  You probably all got a bit out of control.  Whilst you are party to it, it does not appear to me that there is a great deal that can be said about you actively inflicting injury, or making very serious threats to the complainant and it is clear from the material that is provided on your behalf, that you do have strong family support. 

43

As I understand it - and this is the report of Dr Cunningham that I am referring

to - you are now 26 or 27.  Your mother had mental health problems and was prescribed antidepressants.  You left the family home at the age of 18 and you had a relationship which produced two daughters.  The relationship was pretty good, you still have contact with those daughters and at the moment visitation rights are being disputed apparently in the Family Court.  You had a further relationship with a lady called Stephanie, and again, you got engaged and brought her home and there were two children.   That relationship fell apart at the start of 2020 in the context of drug abuse and association with drug abusing peers.  You are currently in another relationship.  What you have done, you have got yourself out of Wodonga.

44You are currently living with your mother in Bendigo, your father having passed away some years ago. Your work history is that you started an electrician apprenticeship when you left school but, after your father became ill, who your apprenticeship was with, you took on work in labouring.  You have used cannabis from the age 13 or 14.  That does not have anything to do with this. You used amphetamine and then methamphetamine from the age of 18.  You apparently ceased to use during the first serious relationship, relapsed into it and it's cost you the second relationship.  You state that living in Bendigo helps as you are away from drug using peers and I am told that you have not used illicit substances for a number of months. 

45I am concerned about you, Mr Flower, I make no secret of that.  I am concerned that you are the one who recruited Mr Heather who was not even known to Mr Deslandes.  Whether you just got overexcited or what, I do not know.  The fact of the matter is that, you again are in a situation where you are young, you have no prior convictions.  You do have significant mental health problems which you are now receiving treatment in the community for that and the Corrections people do not regard that as a particular difficulty.  Your parents were supportive of you, you left school to pursue work, as I have already indicated.  You had a depressive illness since the age of 15.  The loss of your father some years ago aggravated your feelings of depression and anxiety and you have difficulty coping with life stress.  I accept from the material that you have attempted suicide, threatened self-harm and lapsed into drug abuse during those times. 

46Again, I am concerned as to your relationship with Mr Heather and how that all came about.  He says you gave him some ice.  Apparently, the phone records indicate you told him there was a thousand dollars involved or something.  As I say, I am very concerned about those aspects of it.  It seems clear that you engage in antisocial behaviour when using drugs with peers, however, at the time that you were being assessed by Mr Cunningham you had had a period of stability.  With the support of your mother you had ceased the use of drugs and with the support of your sisters have a stable relationship.  I accept his view that, if you were incarcerated, it would cause you difficulties.  It does not bring into account, in my view, the moral culpability principles involved in Verdins but I think it would be more difficult for you in custody than somebody who did not have your problems.  I think this is a situation as indicated in Toumngeun and your involvement in this has to be seen as the least. 

47There are obviously some questions of parity involved in all this, though Mr Heather might be the beneficiary of that to some extent. The overall view taking into account the on your behalf and the references provided on your behalf and the views of Corrections for your particular situation, a Community Correction Order is available and is the appropriate sentencing option as well.  What the Corrections people have said. You assessed as suitable, with the only recommended condition being community work.  They syy that the situation that you are in with mental healthcare, even though I recommended such a condition, is well under control outside the auspices of a CCO and obviously I take that into account.  So what I am going to do is, that will be a Community Correction Order with conviction which is punishment in itself.  It will be for three years.  It will be for 300 work hours and that will be the only condition.

48

I think I have to give a 6AAA in this situation but what I will be doing in your situation is, had you pleaded guilty, I probably would have still, because of your youth and whilst you are still responsible for what the others did, your relative lack of actual physical involvement, I would have given you another CCO with significantly more hours.  I do not think I can be more accurate than that.  The report of

Mr Cunningham is on file and can remain there.  I have taken it all into account.  As I say, that is the disposition.  It comes with a certain degree of caution and I will say something to you in a moment if you bear to accept that. 

49

All right, that order has been made.  Just stand up for me for a second please,

Mr Flower.  All right, the same thing as I said to Mr Deslandes, all right?  You mess this up and I will gaol you, all right?  This is serious offending, very serious offending.  Again, in your situation, some people might regard the sentence as lenient as what I have decided is the appropriate sentence in all the circumstances.  I have got concerns about you in terms of what your actual circumstances are and if you are still using and you get pinched, I will put you in, all right?  I will hear what your counsel has to say before I do it, but I will, all right?  All right, you can be discharged and take a seat behind your counsel. 

50All right, you, Mr Quigley, are in a somewhat different situation.  You are older than Mr Flower, you have a significant criminal history.  There are matters in there of affray and I can understand what has been put as to what they were about but I do not necessarily accept that.  So you have got prior convictions for violent offending and you have been in gaol back in 2014, I think.  It was not for this sort of offending, it was for driving whilst disqualified, so you know what is involved.  There are clearly matters that have been put on your behalf which I take very much into account.  At the present stage, you have been living with your stepfather and you have been working as a swimming teacher for disabled students.  That is your mother that works as a swimming teacher with disabled students.  Your biological father resides in Sydney.  Your stepfather, who you have apparently been relatively close to, is a retired butcher. 

51You still see members of your family frequently.  You are in a relationship with an ex-partner from 2014, your son was born in 2019 and that ex-partner is a primary carer of that son.  You do provide assistance in that regard.  I accept that you pay a form of child support payments and do that, not only by what you are obliged to, but from informal support as well.  You attended Rutherglen High School.  Upon leaving school in year 11 you have had a good work history and volunteered your time for various places such as the Chiltern Racecourse and I accept that occurred both before and after the offending.  You, again, as with Mr Flower, were using amphetamines over the weekend and you continued this for several years on a recreational basis.  Your use of amphetamines increased after the age of 21 when you witnessed a friend's murder.  I have no doubt that that had a deleterious effect upon yourself. 

52You say that you ceased using methamphetamine in around about 2016 and you say that you have remained abstinent from illicit substances whilst on bail for these charges.  You have a gambling problem; you have taken steps to address that.  You have been diagnosed with PTSD in regard that witnessing of a murder and you do have severe levels of stress and moderate levels of anxiety and some historical issues of depression.  It is my view here that the PTSD does not relate to moral culpability.  This was a situation where you were perfectly aware of what was taking place.  Arguably, PTSD makes it harder for you in custody than a person who has not got it but there are a lot of prisoners who do have it.  As your counsel properly conceded, you have a relatively limited history but you do have priors for violence. 

53Again, you get the same benefits as the others.  The situation is that you made this plea during the time of COVID.  In the circumstances of the appropriate concession by your counsel, I take into account as best I can the circumstances under which a sentence would be undergone and you have, as I say, since this occurred, voluntarily engaged in treatment for your gambling and you do have support of family and friends.  I think that your prospects for rehabilitation, if you can get your act together, should be pretty good but the risk of you reoffending is going to be somewhat problematic if you get yourself into these sorts of circumstances again. 

54

There is a report tendered on your behalf from a psychologist, a Ms Mynard, and she goes through your family history.  At 32 or 33, whatever you are now, I do not know if that is going to assist, you had been working with Mr Deslandes and

Mr Flower for some period of time.  I accept also that, in your case, there may have been a misguided sense of loyalty to your boss and you were apparently all pretty good mates and basically this is how it all came about.  You have indicated you have a relationship, you have a son and he is two years old and you see him every other day and more time on weekends.  You presented to the psychologist as a 33-year-old man.  It was pointed out that your insight about the offending was moderate but that you did have remorse and empathy for the victim and were very regretful at least for your part in the offending. 

55That report says that your judgement at the time of the offending was impacted by the pressure of being involved with the primary co-offender.  I do not know about that and, as I say, I do not regard your post-traumatic stress disorder as effecting moral culpability.  You may well have within the other aspects of Verdins significance.  You spoke about the friend being murdered and I do not have to go through that again, I accept that you do have that PTSD and it also has caused various difficulties for you.  You describe also hyperarousal symptoms from that, feeling angry and irritable, tendency to be impulsive, insomnia.  Such matters said that you do reach the diagnostic criteria for that and, as I have indicated already, I accept that that is the case. 

56You played a significantly greater role in the actual physical violence that was involved here than Mr Flower did.   You are older than him and, whilst parity has obviously got to play a part in this, you do not, in my view, have the same very powerful matters that Mr Deslandes has and your younger co-accused have been able to put before me.  I do not need to go through the details of the appending of that report.  Again, it says you felt a sense of obligation and loyalty to the boss. You apparently managed to complete a CCO at some stage and you have been going to the gym.  I accept that your mental health issues will make gaol more difficult for you and the prospects of rehabilitation are up to you.  The risk of you reoffending is really up to you. 

57But it is a situation where, in your particular circumstances, I have already indicated how serious I regard this offending. I indicated the limited aspect or the limited application of Verdins to this and I have also, in general terms, gone through the matters that are in favour of each and every one of you.  Having said that, it is my view that a custodial sentence has to be imposed, together with a CCO,  I am prepared to give a combination in that you, Mr Quigley, will be sentenced to an aggravated period of six months' imprisonment.  It is to be followed by a Community Correction Order for two years.  If you agree, the Community Correction Order will be for treatment and rehabilitation for mental health.  I am not going to give community hours to somebody who has undergone a gaol sentence.  I also note that Corrections has, with both you and Mr Flower, regarded you as being a low risk of reoffending and I have tried to take that as much into account as I can. 

58As I say, you are regarded as suitable and, unfortunately, it is a situation where your involvement in this was such that when I balance it up against the materials you can provide in support of yourself, that is the only disposition open, in my view.  It will be aggregate.  All right, I direct that a period of eight days be reckoned as having been served under this sentence.  I also should have noted when I was dealing with Mr Flower that he also had spent a period of time in custody at the start of this which I am sure was somewhat of a lesson to him, so that has been taken into account in his matter as well.  Yes, that order is made. 

59Do you understand what is going to happen?  I am not going to see here and lecture you, Mr Quigley, not in this situation.  But when you are released, you have to report for the CCO and any breach of it with offending like this and you will be brought back and you will be sentenced again.  Just an indication of what would have happened if you had not pleaded guilty to this and you had fought it out, in your situation I would have given you two and a half years with a minimum term of one and half years. 

60You, Mr Heather, are in a different situation to the others.  In my view, significantly different.  This really had nothing to do with you.  You apparently went along with this either for the reward, whether it be by way of drugs or money or whatever it was.  It was basically none of your business.  You cannot rely upon the feelings of compulsion and loyalty that Mr Flower and Mr Quigley must have felt, not can you rely upon the sense of indignation, if you like, and the need to get his bikes back that Mr Deslandes had.  You have a significant criminal history.  It is put that there are no priors for violence.  I do not know if that is correct.  From my reading of it there are priors for weapons but no actual priors for assaults.  You have done prison terms before involving minimum terms and, accordingly, you would understand fully what gaol is all about and I have got no doubt that you went along with this as a willing actor. 

61It is clear from material that the really serious aspects of this were initially, and certainly throughout it in my view, brought on by the conduct and extremely violent threats that you made towards the victim and I understand that
Mr Deslandes at the end made threats which, I would have thought, were so outlandish that the victim would not take them seriously but yours were very real.  You were the one with the blowtorch.  I accept though that Mr Quigley applied the metal to him.  You were the one that really, in my view, made this such a dreadfully terrifying, ugly experience for the victim.  Your counsel has provided - and I have gone through all this, I do not need to detail it - helpful submissions on your respect.  There is a report from Mr McKinnon and, as Mr Glynn pointed out, there are some matters there which do seem to be a word processing machine.  We will not go there for these purposes. 

62You have a long history of drug use.  You have told the psychologist Mr McKinnon you would not have done this unless you were on drugs.  I do not know if that is the case at all.  I think that you just went along with this because there might have been something in it for you at the end.  You are described by Mr McKinnon as a chronically distressed individual.  You apparently attempted to make several rehabilitative attempts and you have enlisted therapeutic assistance to help you in those efforts.  My understanding is that, each time you have had an opportunity for parole, it has been refused for whatever reasons that might be for; I have no idea.  I do not accept that the offending was spontaneous, I think on your part there was premeditation or you would not have gone along. 

63I do not regard it as an aberration in your personal history as Mr McKinnon says and I do say that because you certainly have been in prison a number of times, so you know what that all involves and you do have those priors for weapons.  Anyone who is engaged in drug dealing over the extended period of time that you would appear to have from your priors, knows the ropes.  You claim that you have been drug free in gaol.  I have been given materials which tends to support that, that you have come up with clean tests.  You have done a number of counselling sessions on an individual basis which apparently have helped.  You have, in his view, a mixed anxiety and depression disorder which he assessed at being moderate to severe at the time of your assessment.  He said that those matters, 'Made significant contributions to the offending by degrading the ability to reason and made sound judgement, eroding the sense of morality and personal responsibility, making him more impulsive and prone to criminal risk and reckless behaviour and feeling destructive tendencies in self.' 

64As I said, Mr Heather, I have seen it before.  It is a situation where you know the ropes, you have been around the traps, you have been in gaol, you know what the penalties and consequences of all this can be.  In the end, having listened to what your counsel had to say and made it clear about the seriousness of the offending, I still have to regard parity in this situation as an issue.  I am going to give you a custodial sentence with a Community Correction Order to follow it rather than parole because I would say you probably would not get it though I am not allowed to have those thought patterns.  This is a situation where, if you breach the CCO that I give you, I can guarantee you that the sentence you receive will be significantly higher than the one that I am going to give you today.  I have grave doubts about what is going to happen with you. 

65I think the risk of you reoffending if you use is going to be, perhaps not with the form of violence, but it is going to be very significant indeed.  Whether you rehabilitate, I think, is up to you and, as I say - and say this to Mr Flower, I have concerns about him as well - but that is affectively where it stands.  I am not going to go through, in your situation, background and history and all those types of things.  Ms McKinnon says you, intelligence-wise, fall within normal adult range and you just lived the life of drugs and some antisocial and criminal tendencies.  Obviously, they are less likely to be manifested when you are abstaining from substance abuse and, again, I do not think there is any point in going through all the rest of it.  Certainly not at this point in time.  I have had you assessed and I take into account the fact that you have done a significant amount of time in COVID. 

66I had to take into account that your position has been a situation of lockdowns without being able to receive visitors.  It would have been difficult to do programs.  The fear of contagion, all those matters are significant and, again, in your situation it is a circumstance where the discounts and the benefits referred to in Worboyes should be given some observable value.  What I am going to do, I feel uncomfortable with this because I feel as confined having got of being somewhat locked in by parity with your three co-accused but be that as it may. You are sentenced to be imprisoned for an aggravated period of 18 months.  Upon completion of that 18 months, if you agree, you will be on a CCO for two years and the conditions of that CCO will be treatment and rehabilitation for mental health and supervision and alcohol and drug treatment.  I am not going to, again, put work hours on yours because when someone has been in custody, I think it is gratuitous putting work hours on at the end.  That is the scenario.  In your particular situation, I note that there is some 83 days of what I might describe as Renzella time.  It was served in New South Wales and I note that you have now - I declare that 463 as having been served under this sentence. 

67HIS HONOUR:  Have you got the CCO there?  You wouldn't mind going down with Ms Associate?  Sorry, he's on the screen, yes, yes.  You agree to that, do you, Mr Heather?

68OFFENDER HEATHER:  Ah, yeah, yeah.  So how many more is it?  Eighteen months imprisonment and then two years CCO?

69HIS HONOUR:  I'm not asking you to agree to how much you're getting.  I'm asking you whether you agree with the CCO.

70OFFENDER HEATHER:  Yeah, yeah, I agree to it. 

71HIS HONOUR:  All right.  All right, I'll put agreed by video audibly.  Yes, in so far as Mr Heather's concerned, 6AAA, three and a half are the two and a half.  I've declared the PSD.  I think that's all I need to do.  All right, are there any other orders I need to make?

72MR GLYNN:  No.  No, Your Honour.

73HIS HONOUR:  Righto, thank you for that.  I'll just indicate to counsel, I've been up to emergency till about 2 o'clock this morning so I've had no sleep, so this is subject to revision, because as you probably know, I don't write these out, I do them off key words.  So if I go through it tomorrow and there's something I've left out I'll add it to the - but the reasons obviously won't change, the basis reasons are there.  We'll leave it at that.  All right, yes.  Sorry, you need to take Mr Quigley. 

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