Director of Public Prosecutions v Dzesa
[2024] VCC 199
•22 February 2024
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| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 23-01486
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN DZESA |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 22 February 2024 | |
CASE MAY BE CITED AS: | DPP v Dzesa | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 199 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Home invasion – intentionally cause injury – theft – trafficking of drug of dependence – possession of drug of dependence – young offender – Verdins – Category 2 offending – substantial and compelling – not exceptional and rare – 5(2H)(c)(i) special reason found – early plea of guilty – Youth Justice supervised bail
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213; DPP v Lombardo [2022] VSCA 204; Dabaja v The King [2023] VSCA 209; R v Verdins [2007] VSCA 102; Azzopardi v The Queen (2011) 35 VR 43; Boulton v The Queen [2014] VSCA 342.
Sentence: Community Correction Order for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. MacDougall | Office of Public Prosecutions |
| For the Accused | Ms B. Proud | Clare Moss Lake Legal Ballarat |
HER HONOUR:
1Lachlan Dzesa, on 13 February 2024 you pleaded guilty on indictment P10830200 to one charge of home invasion, one charge of intentionally causing injury, one charge of theft, one charge of trafficking in a drug of dependence and one charge of possession of a drug of dependence.
2You have no prior criminal history.
3You are currently 20 years old and accordingly fit the definition of a young offender under the Sentencing Act.[1] In two days' time you will turn 21 years of age and you will no longer fit this definition. As a young offender you are eligible for a Youth Justice Centre order if a pre-sentence report has been received and certain criteria are met. On 24 January 2024 Judge Dawes ordered a Youth Justice report given the imminence of your 21st birthday. I have received this pre-sentence report and you have been found suitable for such a disposition.
[1] Sentencing Act 1991 (Vic) s 3.
4On 13 February 2024 after hearing a plea on your behalf I ordered a pre-sentence report to determine your suitability for a community correction order. You have been found suitable for such an order.
Circumstances of offending
5The factual basis of your offending is set out in an Amended Summary of Prosecution Opening for Plea dated 13 January 2024 and what follows is a summary of that document.
6At around midnight on 15 April 2023, the victim, Caleb Brundell, was home alone at his address in Mount Clear, Ballarat. He heard a knock at the front door and when he answered, he was immediately confronted by you and another male. The victim identified the other male as Jaeden Cameron, a person he had previously had hostile interactions with online. Police have been unable to locate Mr Cameron since the time of the offending.
7Cameron asked the victim if a particular person was at home. The victim responded they were not and Cameron then forced his way into the house. He began to question the victim about the dispute between you and the victim.
8Cameron told the victim that they were going to sort the dispute out but the victim refused. He then told the victim that he would 'put a bullet between [his] eyes'. At this point, you entered the house and were immediately recognised by the victim.
9You handed Cameron a machete which had a both a serrated and a curved edge. He then began to repeatedly hit the victim using all sides of the machete. The victim fell on his couch and Cameron continued to strike him using a chopping motion. At one point the victim caught the machete with his left hand which was cut. The victim estimates he was struck up to 40 times.
10Throughout the attack you stood by laughing and encouraging Cameron.
11You and Cameron then demanded that the victim give you the gold chain he was wearing.
12The victim lost consciousness. You and Cameron splashed him with water then took him to the shower to try and wash your fingerprints off him. You then warned the victim not to tell police otherwise you would 'get the Comancheros onto him'. The victim contacted his father who called the police.
13The victim was taken to hospital and medical examination of his injuries identified: a scalp haematoma up to five millimetre in depth overlying the right side of the frontal bone; a scalp haematoma up to six millimetres in depth overlying the left parietal bone and multiple defence wounds to the palm of his hands.
14You were arrested at a friend's house on 19 April 2023. In a Nike shoulder bag with you at the time of your arrest police located; empty Ziplock bags; two small digital scales; two Ziplock bags containing pink pills identified as amphetamines with a total weight of 17.5 grams, one Ziplock bag containing 11.3 grams of cannabis and one Ziplock bag containing capsules with a brown substance identified to be a hallucinogen and that is Charge 5 – Possession of a drug of dependence.
15Police also seized your phone and recovered text messages exchanged between you and Cameron at around 11.45 pm on 14 April and 12.30 am on 15 April 2023. During this exchange of messages there was brief discussion about your plan to offend and you asked Cameron 'You want me to bring something?' and he responded 'Be at yours in 15 be ready bring a bat or maybe machete.'
16On your phone police also found text messages suggesting you had been trafficking cannabis and amphetamines and that is Charge 4 – Trafficking in a drug of dependence.
17Following your arrest you were held in the police cells from 19 to 20 April 2023 before being granted bail at a filing hearing.
Nature and gravity of the offending
18Home invasion is inherently a very serious offence. Not only is it punishable by a maximum term of imprisonment of 25 years, but Parliament has designated it as a category 2 offence. Section 5(2H) of the Sentencing Act provides that the court must impose a custodial sentence (other than a term of imprisonment in combination with a Community Correction Order), unless at least one of the circumstances set out in sub-s(a) to (e) can be established.[2] The consequence of this categorisation reflects Parliament's very real concern that the sanctity of a person's home is to be protected from criminal interference.
[2] Ibid s 5(2H).
19In your case the offence of home invasion is made out because you acted in company with another person and you knew that person had an offensive weapon, namely a machete.
20The prosecution submitted that text messages sent between you and the co-offender shortly before going to the victim's home indicate some level of planning prior to the offending as they included discussion about the supply of a weapon and the wearing of a mask.
21Ms MacDougall for the prosecution accepted that you were not the primary offender as you did not strike the blows. However, she submitted your role was significant as you brought the weapon and were observed to hand it to the co-offender before the attack began, also you encouraged your co-offender and laughed during the attack. It was Ms MacDougall's submission that your offending was so serious that it mandated a custodial sentence.
22Your counsel, Ms Proud conceded on your behalf that home invasion is both an objectively serious offence and that your particular offending, which involved the use of a weapon and injury to a victim inside his home, was not at the lower end of the spectrum for offending of this type. However, Ms Proud submitted that you were not the principal offender, as you were not the person to strike the blows or inflict the injury on the victim. Further, she submitted that your offending occurred in the context of hostility between yourself and the victim including threatening behaviour by the victim toward your family. Ms Proud also submitted that the attack did not result in serious injury to the victim.
23Whilst it cannot excuse egregious conduct of this nature, I accept that the offending occurred in the context of escalating tension and hostility between you and the victim, which you had made some attempts to diffuse. In particular, concerns about the welfare of your family had been weighing heavily on you following the threats made against them by the victim.
24Further, it appears that the theft of the victim's gold chain was opportunistic in nature and secondary to the apparent primary purpose of attending the victim's home to confront him about the ongoing dispute.
25Fortunately, the victim did not sustain serious injuries from the attack, however he was left injured and alone. He was threatened not to call the police. There was also a rudimentary attempt to conceal the crime by showering the injured victim to wash away evidence.
26Though no victim impact statement was provided, this would have been a frightening attack occurring as it did late at night and the victim was vulnerable in the sense that he was home alone and outnumbered.
27In addition, upon your arrest you were found to have a small amount of cannabis, a not insignificant amount of pink pills containing amphetamine together with Ziplock bags and digital scales. This, in combination with further text messages recovered from your phone, provided evidence of you having trafficked in both of these drugs for approximately three months. The prosecution did not quantify the amount of substance you trafficked but it is clear that this offending is also serious given the substances trafficked and the length of time over which it occurred.
Personal circumstances
28You are currently 20 years old, and as I have said and you were 20 years old at the time of your offending. You were born in Sunshine and moved to the Ballarat area following your parents' separation. You have an older sister and a younger half-brother.
29Around the time of kindergarten and early primary school you began to exhibit behavioural problems. You were eventually diagnosed with ADHD and trialled on a number of medications to try and manage behaviour and sleep.
30These issues persisted into high school where your academic performance was considered to be average, you fought with other students and truanted. Cognitive testing conducted in your early teens concluded you had an IQ in the borderline range and this at least partially explained your chronic struggles at school.
31You were in Year 10 in mid-2020 when the pandemic suddenly necessitated remote learning. Unable to stay engaged with school under these conditions, you left to learn a trade. You benefited with the hands-on learning and being around different peers, going on to complete certificates in carpentry and civil construction. These certificates enabled you to work for a time in roof tiling and concreting.
32From 2021 to early 2022 you worked as a chef and started an apprenticeship. You were initially passionate and motivated about this career path but your motivation waned after the complicated departure of the head chef with whom you had a good relationship. You eventually changed course again, moving back to trade work. By the time of your offending in early 2023 you had stopped work.
33Despite your young age, you have a long history of alcohol and polysubstance use. You report first drinking alcohol around the age of 12 and smoking cannabis from age 13. By your late teens you were regularly consuming large quantities of drugs such as ecstasy, cocaine and MDMA. Your drug and alcohol consumption remained high up until the time of the offending. Since being on Youth Justice supervised bail you have completed an alcohol and drug course with YSAS and managed to be largely abstinent from drugs besides sporadic cannabis use.
34You have also worked diligently with Youth Justice to develop new skills and explore different employment options. Since late 2023 you have been employed full time completing a variety of labouring tasks. Your current employer provided a reference affirming you to be a 'hardworking and trustworthy' employee despite your anxiety about the upcoming court proceedings.
35Aside from ADHD, neuropsychologist Laura Scott considered you were currently experiencing moderate anxiety and mild depressive symptoms and stress, at least in part deriving from the court proceedings. Though you denied any psychiatric admissions or past mental illness diagnoses, she noted you had previously been reported as experiencing suicidal ideation and self-harm and I will return to Ms Scott's evidence in more detail shortly.
36At the time of offending you were living with your mother and stepfather in Ballarat. Your relationship with your stepfather was hostile and at times mutually violent. Since being on bail you have been living with your father and paternal grandmother in Caroline Springs which you describe as a safe and supportive environment. You still maintain a close relationship with your mother and siblings in Ballarat.
37In a reference to the court, your mother Melissa confirmed your lifelong struggle between the demands of education, employment and social acceptance and your ADHD and cognitive capabilities. She has noticed positive change and maturation in you since you have found suitable employment and distanced yourself from problematic social circles.
38In her reference, family friend Lee-Anne Jeffrey explained that you faced difficulties as a child on the dual fronts of schooling and home life, sometimes living in her home for extended periods of time because of these issues. She described your offending as 'completely out of character' albeit, in her view, your nature has in the past led you to be easily influenced by others.
Mental Health
39Evidence of your background and compromised mental health was presented to the court in the form of a neuropsychological report authored by Ms Laura Scott dated 5 October 2023. There was also viva voce evidence from Ms Scott at your plea, your Year 8 and 9 school reports, the results of an intelligence test conducted in 2009 and two psychometric assessment reports completed in 2016 were tendered on your plea.
40In particular your counsel referred to the opinion of Ms Scott that;
It is clear that [you] have a neurodevelopmental disorder (namely ADHD) which would have been exacerbated by anxiety and intoxication on the day of offending. [Your] symptoms of ADHD reduce [your] capacity to cope with emotional distress without resorting to maladaptive behaviours such as drug use or aggression. It is [her] opinion that [your] symptoms of ADHD and anxiety were significant contributors to [your] behaviour on this occasion. If [you] did not have untreated ADHD and anxiety, [you] may have had more capacity to stop and think about [your] actions or to seek alternative strategies for resolving the conflict.
41Additionally, in her oral evidence in court Ms Scott stated that testing indicated that you have a globally reduced level of cognitive functioning with an IQ of 75 which places you in the borderline range. This means you performed poorer than 85 to 95% of the population.
42Although this is insufficient to classify you as having an intellectual disability, she explained that you have a reduced capacity to perceive situations from different perspectives, understand other people's motives and you are more susceptible to external influence, particularly when others provide you with solutions to problems.
43In addition, she concluded you met the criteria for ADHD and you were also displaying anxiety symptoms. Further she concluded that your ADHD, anxiety and borderline functioning were all impacting you at the time of the offending.
44She opined that the way ADHD manifests in your case significantly impairs not only your focus and attention but also your executive functioning which controls a person's ability to plan and organise, weigh options and manage impulses.
45Ms Scott explained that when combined, ADHD and low cognitive function act synergistically to more intensely impact your capacity to comprehend complex or nuanced information and respond to novel situations. ADHD also reduces emotional regulation and increases the likelihood of rapid escalation in response to seemingly minor events and problems.
46Ms Scott gave evidence that anxiety is commonly comorbid with ADHD and based on the fears you expressed about harm to your family and feeling hassled by the victim, Ms Scott considered it likely it also had some impact on your offending.
47When asked about the impact of your intoxication at the time of offending, Ms Scott explained that the drug use may exacerbate the presentation of ADHD and borderline functioning, however these conditions are congenital and are not drug induced. I note that in Ms Scott's report she also stated ADHD increases the likelihood of turning to maladaptive coping strategies such as drug use when faced with emotional distress. She nonetheless affirmed that the issues presented by your neuropsychological profile such as poor problem solving, escalation and conflict resolution, are present irrespective of drug use. In her view, it was not possible to disentangle the effects of drug use from the effects of your underlying conditions, all factors were significant in the offending. Either the intoxication or your psychological profile acting independently could have been sufficient to prompt the offending.
48Ms Scott additionally gave evidence that she had concerns about how you would respond to a custodial context and noted there is no precedent for how you might cope. This was particularly concerning in light of notes in the Youth Justice documents about previous suicidal ideation and self-harm. Custody may provoke a recurrence of these thought patterns and behaviours.
49Her opinion was that it was unlikely that your general functioning would deteriorate, however you would be vulnerable to becoming involved in conflicts in that environment, both as a victim and an instigator. You may, for example, inadvertently antagonise prison guards because you have misunderstood directions.
50Finally, she had concerns about you receiving appropriate treatment for your ADHD and anxiety in the custodial environment. In particular, ADHD medication is often restricted due to its susceptibility for misuse among other prisoners and ADHD as a condition is best managed with a multidisciplinary approach.
51I accept the unchallenged opinions of Ms Scott.
52The reports and previous assessments confirm that the problems discussed by Ms Scott have been longstanding and have plagued you for much of your young life.
Category 2 offending
53In a thorough and compelling plea, your counsel, Ms Proud, argued that based on the circumstances of your particular case and the opinions of Ms Scott, the court should be satisfied on the balance of probabilities that several of the categories set out in sub-ss(a) to (e) of s5(2H) were satisfied,[3] such that the court was able to circumvent the requirement of a custodial sentence. In particular she relied upon sub-ss5(2H)(c)(i) and 5(2H)(c)(ii).[4]
[3] Ibid.
[4] Ibid.
54Pursuant to these subsections the defence must prove on balance whether in your particular case there are circumstances that would satisfy sub-s5(2H)(c)(i),[5] that is, at the time of the offending you had impaired mental functioning which was causally linked to the commission of the offence to substantially and materially reduce your moral culpability or sub-s5(2H)(c)(ii) that is, your impaired functioning means you would be subject to substantially and materially greater than ordinary burdens or risks of imprisonment.[6]
[5] Ibid s 5(2H)(c)(i).
[6] Ibid s 5(2H(c)(ii).
55In the alternative, if the court was not persuaded that either of these subsections had application it was submitted, by your counsel, that the court must evaluate whether substantial and compelling circumstances that are exceptional and rare that justify the imposition of a non-custodial order exist in your case.
56In determining whether any or all of these subsections have application, I must regard general deterrence and denunciation of your offending conduct as having greater importance than the other sentencing purposes set out in s5(1) of the Sentencing Act.[7] Further, I must give less weight to your personal circumstances than the nature and gravity of the offence and I must not have regard to your early guilty plea, your prospects for rehabilitation or parity with other offenders.
[7] Ibid s 5(1).
57In my view, given the particular circumstances of your case and the unchallenged evidence of Ms Scott that I have just detailed, I am satisfied on the balance of probabilities that at the time of the offending you had impaired mental functioning which was causally linked to the commission of the offence that operated to substantially and materially reduce your moral culpability. To avoid doubt I have also found that in your circumstances you have impaired mental functioning within the meaning of s10A of the Sentencing Act.
58I am mindful of s5(2HA) which states that (2H)(c)(i) does not apply to impaired mental functioning caused substantially by self-induced intoxication. In my view, given that your diagnoses of ADHD and borderline cognitive impairment are congenital in nature I do not find that this section has application in your case.
59Having made such a finding it follows that I am satisfied that the lesser test involved in the application of Verdins is also met therefore enlivening the principles of Verdins in your case.
60I am not satisfied that the evidence of Ms Scott is sufficient to justify a positive finding pursuant to sub-s5(2H)(c)(ii). However, I am satisfied that limbs 5 and 6 of Verdins have application based on the evidence of Ms Scott that your mental health would likely deteriorate, and imprisonment would be more onerous for you in light of your particular mental impairment.
61Given the submissions of your counsel I have gone on to consider whether pursuant to sub-s5(2H)(e) there are a combination of substantial and compelling factors in your case that are exceptional and rare the cumulative impact of which would justify departure from s5(2H).[8]
[8] Ibid s 5(2H)(e).
62I have had regard to several Court of Appeal cases where this test has been considered, in particular the cases of Farmer, Fariah[9], Lombardo and Dabaja. These cases were referred to by Ms Proud in her written submissions. In the cases of Farmer and Fariah the very high threshold was met. However, in the case of Dabaja it was not. The Court of Appeal did however consider that 5(2H)(c)(i) had application in that case. Each of the cases, Farmer and Fariah involved young offenders who had some kind of profound childhood difficulty that had impact into adulthood.
[9] Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213; DPP v Lombardo [2022] VSCA 204; Dabaja v The King [2023] VSCA 209.
63For Farmer, this was the condition of alopecia that resulted in him being severely bullied and socially cast away where he had fallen into an offending peer group grateful for anyone who would befriend him.[10] For Fariah, this was his exposure during childhood to the atrocities of civil war in Somalia that resulted in the loss of several family members, including his mother and father, prior to his coming to Australia at the age of 15 years.[11]
[10] Farmer v The Queen [2020] VSCA 140.
[11] Fariah v The Queen [2021] VSCA 213.
64In Dabaja the Court of Appeal agreed with findings of the sentencing judge that although the combination of factors relied upon were substantial and compelling they were not exceptional and rare.[12] To be considered exceptional and rare would require something 'wholly outside the run of the mill factors typical of the relevant kind of offending'.[13]
[12] Dabaja v The King [2023] VSCA 209.
[13] DPP v Lombardo [2022] VSCA 204 [70]
65In your case, Ms Proud submitted that there were several factors that combined to satisfy the test of substantial and compelling reasons that are exceptional and rare. In summary these factors include; your youth and immaturity; the absence of any previous convictions or findings of guilt; the value (but not the timing) of your plea of guilty; your lengthy and 'exemplary' period of engagement with Youth Justice in the community on supervised bail; your role in the offending, that is, you were not the primary offender; your borderline intellectual functioning and full-scale IQ of 75 in combination with your diagnosis of ADHD that gives rise to the application of Verdins principles;[14] and your good work history while on bail.
[14] R v Verdins [2007] VSCA 102.
66I accept the combination of factors relied upon by Ms Proud are substantial and compelling. That is, I consider them to be weighty, forceful and powerful reasons that justify departure from the imposition of a custodial sentence.
67However, I do not find these factors in combination are exceptional and rare. It is not uncommon in cases of this nature to see the combination of factors relied upon by your counsel. In my view they do not rise to meet the necessary threshold which is set at a very high bar.
68I must also consider other matters in mitigation particularly in light of the other charges to which you have pleaded guilty, in particular the charge of trafficking in a drug of dependence. In this regard I have taken into account the matters raised by your counsel that I have just mentioned. Ms Proud also relied upon other significant mitigatory factors in your favour.
Plea of guilty
69First was your plea of guilty, that was entered at the committal mention stage. I consider this to be a plea at an early stage in court proceedings. Further, no witnesses were required to give evidence and the court system was spared the resources and expense of conducting these processes. In these circumstances, your plea has significant utilitarian value and I find you have facilitated the course of justice.
70Though the court's case backlog caused by the pandemic has now eased, at the time your matters resolved in August 2023, it still had some residual impact. I consider the resolution of your matters at that time still provides some additional benefit towards facilitating justice during the backlog period.
71I therefore propose to allow a significant sentencing discount for your plea of guilty.
72In addition, I accept you have demonstrated some remorse to the extent that you are capable considering your level of cognitive functioning. Your early plea of guilty is also further evidence of remorse.
73I should also note that in the presentence report completed with Corrections, you did say that you were regretful for what had happened and you did also recognise that the victim would have been scared by your offending.
Youth
74Another substantial factor in mitigation is your youth. At 20 years of age at the time of sentence, you fall to be sentenced as a 'young offender' pursuant to s3 of the Sentencing Act.[15]
[15] Sentencing Act 1991 (Vic) s 3.
75The Court of Appeal in Azzopardi v The Queen summarised the three considerations which underlie the general primacy afforded to an offender's youth as a sentencing consideration.[16]
Firstly, young offenders are often more prone to impulsive and ill-considered decision making. They may lack the insight and self-control of adults and may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
Secondly, that courts recognise the potential for rehabilitation in young people because they are at an earlier stage in their mental and emotional development. They therefore may be more open to positive change than adults with entrenched anti-social behaviours. Further, the community has an interest in such rehabilitation as in the long term it is protective from the impacts of future offending.
Thirdly, the incarceration of young offenders is more likely to hinder rather than improve their prospects of rehabilitation. Young people in custody are likely to be exposed to corrupting influences which can entrench criminal and anti-social tendencies. These effects have detrimental flow-on consequences in the community.
[16] Azzopardi v The Queen (2011) 35 VR 43 [34] - [36].
76In situations of particularly grave offending or offender characteristics, considerations relating to youth may give way to varying degrees to considerations such as general and specific deterrence. Though your offending is serious offending, I do not consider yours to be such a case where I am required to significantly displace youth in favour of other factors. This is in light of your lack of any prior history, your psychological presentation and the circumstances of this particular offending including your more minor role in the home invasion and causing injury offences.
Rehabilitation
77Several Youth Justice supervised bail reports were tendered on your plea. In addition, Mr Oscar Bussell-Poole your Youth Justice Case Manager gave evidence at your plea hearing. Further, a suitability for Youth Justice detention report was provided to the Court.
78I consider you have demonstrated exemplary compliance with your bail. Mr Bussell-Poole gave evidence that because of your extremely positive compliance and the fact that you had not missed an appointment your supervision appointments were decreased. This is extremely rare in relation to the cohort of young people on such programs. Further he considered your pursuit of work and then your commitment to maintaining work was also something that is not often seen and was a very significant and protective factor in your rehabilitation.
79Further, in relation to drug use you have worked with YSAS and had an episode of counselling that is now closed. Apart from a very few occasions of cannabis use you are now free of the other substances that were very detrimental. Additionally, Mr Bussell-Poole detailed the very positive family support you have and considered your relocation to Sunshine, to reside with your father and grandmother, has been integral to your reform. In your case you have the support of both of parents and the additional support of a mentor who had encouraged you towards pro-social pursuits in the community, one of which is fishing.
80In my view, based on your outstanding performance on Youth Justice bail, the clear support you have in the community, including a new relationship, I find that you have excellent prospects for rehabilitation. Further, I consider the fact you have engaged in this way over a lengthy period of time, in the order of 12 months, is something I can take into account in relation to the length and terms of the sentence I am about to impose.
Sentencing principles
81The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
82In my view given your youth, psychological functioning, my findings pursuant to Verdins and your background circumstances, general deterrence must give way to the promotion of your rehabilitation. I consider that specific deterrence should be given limited weight in the sentencing synthesis given your lack of prior history, your experience of arrest, the two days you spent in custody and your exceptional performance on Youth Justice supervised bail. In your case, I regard protection of the community is best achieved by continuing and building upon the supports and interventions to address any ongoing issues you have, this is what will likely reduce the risk of future offending. I consider that to remove you from the community would be a retrograde step that would not be in anyone's interests.
83I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[17] where relevant in your case. In particular, I have had regard to the sentencing landscape for the offending before me, particularly the offences of home invasion and trafficking drugs of dependence. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.
[17] Sentencing Act 1991 (Vic) s 5.
84The principles of totality, proportionality and parsimony are also important considerations here. They require me to make sure the total sentence is appropriate for the total criminality. I have taken these principles into account in fixing the sentence I will now impose.
85In my view the appropriate sentence in your case is the imposition of a Community Correction Order. In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen.[18]
[18] Boulton v The Queen [2014] VSCA 342.
86Mr Dzesa, you are convicted in relation to each of the charges, that is the home invasion, causing injury intentionally, theft, trafficking in a drug of dependence and possession of a drug of dependence and you are to be placed on a Community Correction Order for a period of two years.
87The conditions of this Community Correction Order include that you must
(a) Perform 150 hours of unpaid community work over that two year period;
(b) You must submit for assessment and treatment for drug and alcohol abuse;
(c) You must submit for treatment and rehabilitation programs to reduce re-offending; and
(d) you must also submit for assessment and treatment for mental health issues;
(e) you are to attend for supervision;
88With regard to the community work, I propose to offset 75 hours of community work with counselling. That means if you perform 75 hours of counselling, that will be deducted from the 150 hours. If you were able to achieve that, you would only have 75 hours of community work to do. That will be a matter for you and for Corrections and I am doing this because I want to provide an added incentive for you to participate in treatment. I do not think you need an added incentive, I might say, given the way that you have complied with the youth bail, but nonetheless it is there.
89In addition to the conditions that I have imposed, there are standard conditions you must comply with. Now I know that these have been explained to you by Corrections when you were assessed, but I need to go through them with you again.
90So first and foremost, you cannot commit an offence punishable by imprisonment over the next two years. I hope you do not ever offend again and I am quite hopeful that you will not. If you do in the next two years, you will breach the order. If you do breach the order, you will be brought back to me, and I will likely have to re‑sentence you. That could involve sending you to adult gaol, because after two days' time, you will not be able to get Youth Justice detention anymore.
91You need to report within two working days to your nearest Corrections office and that will be Sunshine Justice Service Centre and you must report there by 2pm on Monday 26 February 2024.
92You are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Community Corrections and you cannot leave the State of Victoria without prior permission.
93I can only place you on a Community Correction Order if you agree – so firstly, do you understand what is involved?
94OFFENDER: Yes.
95HER HONOUR: Yes, all right and do you consent? Do you agree to doing an order?
96OFFENDER: Yes,
97HER HONOUR: Great.
98I also make the orders for disposal sought by the Crown and pursuant to s6AAA of the Sentencing Act,[19] but for your plea of guilty, the sentence I would have imposed is 18 months with a non‑parole period of nine months.
[19] Sentencing Act 1991 (Vic) s 6AAA.
99Is there anything further, counsel, that I have missed?
100MISS MacDOUGALL: No, there's nothing further, Your Honour, thank you.
101HER HONOUR: All right, great. So, Mr Dzesa, we're going to print out an order now and I'll check it, I'll get Ms Proud to check it and then I'll get you to sign it.
102MS PROUD: Yes.
103HER HONOUR: Mr Dzesa, that was probably a whole lot of mumbo jumbo that I have to go through. It's quite hard to follow, but essentially, you've done some really bad things, but there's lots of reasons for that and you've had lots of problems and I've taken those things into account and some of those things are really significant, all right? You've never been in trouble before and you have done so incredibly well on Youth Justice bail and I really want to encourage that. I just don't think it would be in your interests, or anyone's interests, for you to serve adult gaol or Youth Justice. So, I'm giving you this opportunity and I am very confident that you'll be able to do this order and I wish you the best with it, all right?
104OFFENDER: Thank you.
105HER HONOUR: All right, can I just to counsel, both counsel, thanks very much for all the assistance. Ms Proud, your written submissions were of a very high standard and were of great assistance. So, thank you. All right, we'll adjourn the court.
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