Director of Public Prosecutions v Genc
[2025] VCC 517
•24 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01071
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HASAN GENC |
---
JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 April 2025; 24 April 2025 | |
DATE OF SENTENCE: | 24 April 2025 | |
CASE MAY BE CITED AS: | DPP v Genc | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 517 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW - Sentencing
Catchwords: conspiracy to commit burglary – theft (rolled up)
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic), Crimes Act1958 (Vic)
Cases Cited:R v Verdins [2007] VSCA 102
Sentence: Community corrections order for a period of two years and six months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Crouch | Office of Public Prosecutions |
| For the Accused | Ms R. Zaydan | Balmer & Associates |
HER HONOUR:
1Mr Genc, you have pleaded guilty to one charge of conspiracy to commit burglary and two charges of theft.
2The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.
Circumstances of the offending
Charge 1: Conspiracy to commit burglary
3At 12.43pm on 22 January 2020, you were seen by surveillance operatives associating with two unknown males in red jumpers in a white Renault van, bearing stolen registration plates (1PS1QT). The Renault was near an address on Commercial Road, Caroline Springs and parked adjacent to your car, where Mr Aukuso Nimo was seated. You exited the drivers’ seat of your car and spoke to the occupants of the van. Mr Nimo remained in your car
4You returned to your car and had a conversation with Mr Nimo which was captured on the listening device in your car. You told Mr Nimo that the occupants of the Renault would attend Toyota tonight. Mr Nimo referred to one of the males as Java Investigators identified "Java" to be Java Sinisa.
5Investigators obtained Closed Circuit Television (CCTV) footage from Toyota on Ballarat Road, Deer Park which captured males in red jumpers attending at 1:20am on 22 January 2020 in a white Renault van.
6On 23 January 2020, electronic monitoring in your vehicle captured a conversation between you and Mr Nimo where you discussed details of the burglary you intended to commit at Cleanaway. The details of your discussion are outlined at paragraph [11] of the prosecution opening and include what items you were going to steal and the value of the items.
7It is the prosecution’s case that you and Mr Nimo agreed to steal:
· 2 x robots (aqua cutters).
· 1 x high-vac (Vol Kingvac 8 x 4 or a Merc Guzzler Vac 8 x 4).
· 1 x container (hydro blast container (pump)).
· 1 x ultra-high (hydro blast unit-container).
· 1 x "big" truck (Hino Tray Truck or Flat Deck).
· Hoses (unknown quantity).
8You and Mr Nimo debated whether the burglary should be committed at Aqua Prep or “Alex’s”. “Alex” is also referred to as “Lex” or Lexi”. Investigators identified Alex to be Alex Tofae.
9On the same day, you called Mr Tofae whilst in the vehicle and asked him a series of questions relating to the specific functions of the specialised equipment. You also discussed the layout of, and access to, the premises and the storage locations of equipment. You said that you only intended to steal “a bit” and that the commission date was “this week”.
10You then spoke to Mr Nimo again and told him about the information obtained from Mr Tofae. You confirmed that Cleanaway had an ultra-high and two containers. You and Mr Nimo then discussed how many people would be required to do the job and their roles, as extracted at paragraph [15] of the prosecution opening, along with other details.
11On 24 January 2020, you travelled in your car with Mr Sinisa. At 1.10pm Mr Sinisa asked you “when are we doing Cleanaway?” You said you would set up the planning tonight and hoped it will be on Sunday. Mr Sinisa commented that it is a long weekend and that everyone is going on holiday. You and Mr Sinisa discuss who would be involved and you also talked about the cost of rebranding the equipment you intended to steal.
12Investigators identified the upcoming Sunday to be 26 January 2020 (Australia Day weekend) and the public holiday to be on Monday 27 January 2020.
13On 24 January 2020 you and Mr Nimo had a conversation in your car about what clothing was to be worn during the burglary. You said six people were required and that it would occur on Sunday (a long weekend).
14As a result of these conversations, Investigators made enquiries in relation to the company Cleanaway and identified it to be an industrial waste management service that utilised high powered specialised equipment.
15Investigators spoke with the National General Manager who advised that Mr Tofae was employed at the Sunshine branch located at Industrial Drive Sunshine. Investigators also spoke to the Sunshine branch manager who detailed the specialised equipment and current security measures at the branch, along with the estimated costs of replacing the equipment (in brand new condition):
· Aqua cutters (robots) valued at $250,000 each.
· High-vac (Vol Kingvac 8 x 4 or a Merc Guzzler Vac 8 x 4) valued at between $350,000 - $500,000.
· 1 x container (hydro blast container (pump)) valued at $400,000.
· 1 x ultra-high (hydro blast unit-container) valued at $400,000.
· 1 x "big" truck (Hino Tray Truck or Flat Deck) valued at $80,000.
16The exact value of the equipment is unknown.
17On 25 January 2020, you called an unknown male in your car, advising them that you “had a mission on his plate” and that you would attend and collect him that night. You said “and you’re in touch with Lex? Yeah that’s my concern, I need the info… I need to know what time the fucking parties going to be”. You advised the unknown male to keep their eyes open. You said “good for tonight” prior to disconnecting the call.
18On 25 January 2020 investigators implemented a disruption strategy to prevent the execution of the burglary, which utilised Victoria Police Surveillance Operatives. Operatives observed you pick up Mr Nimo in your car at 4.13pm and later attend a club house, as referred to in the opening. You remained at the club house until 10.50pm when you returned home for a short time before reattending the clubhouse at 11.48pm. You stayed there until 3.00am on 26 January 202020. You did not leave your home between 4.30pm on 26 January and 4.00am on 27 January 2020.
19Investigators believe you postponed the intended commission date of the burglary due to the clubhouse event.
20On 27 January 2020 you, Mr Nimo and an unknown male drove to Mr Tofae address on Harness Court, Sydenham. On the drive, you said “They just said there’s a towie there. I know who it is… fucking it’s easy. It’s in and out bro. It’s like alarm – you got the alarm, you got the key – everything – got the camera box, fuck it’s no brains”.
21At 6.00pm, the unknown male and Mr Tofae left your car and one of them said “see you tonight”.
22Investigators believed that you and Mr Nimo intended to commit the burglary at Cleanaway on the night of 27 January 2020. Another disruption strategy was implemented to prevent its execution, including the deployment of Victoria Police members tasked to attend and remain in the vicinity of Industrial Drive Sunshine in a police vehicle.
23At 10.22pm on 27 January 2020, inaudible males voices could be heard speaking outside of your vehicle. Tracking data identified that you were at your home address.
24At 10.30pm police observed a white van turn left on Fairbairn Road, Sunshine towards the marked police car packed on Industrial Drive, Sunshine. The driver of the white van conducted a U-turn and travelled east on Proximity Drive away from police.
25Investigators obtained CCTV footage from Dawson’s Australia, Fairbairn Road Sunshine, which determined that the white van observed by police was a 2015 white Renault Van and consistent with the white van seen by surveillance operatives on 22 January 2020 and on the CCTV at Deer Park Toyota.
26CCR data from your phone identified you to be using the Sunshine Exchange phone tower between 12.10 and 12.15am on 28 January 2020.
27By 1.14am on 28 January 2020 you had returned home, and electronic monitoring of your car captured a person opening and closing the vehicle door and two males speaking inaudibly within close proximity of the car. CCR data indicates that you stayed at your home address for the remainder of the day.
Charge 2: Theft (rolled up)
28On 8 January 2020, a black 2008 Harley Davidson was stolen from Faraday Street, Carlton. It was later located at Bikes Plus.
29At 1.05am on 14 January 2020, four unknown males exited a 2015 white Renault van on Swanston Street, Melbourne and physically lifted a 2017 Harley Davidson XG500 off the ground and into the back of the van, before driving away. This incident was captured on CCTV provided by the owner. This is the same Renault Van that was observed by Surveillance Operatives on 22 January 2020. It was later located at Just Dirt Bikes in Derrimut.
30At approximately 10.00pm on 23 January 2020 unknown offenders attended Devonshire Road, Sunshine and physically dragged a 2016 Harley Davidson XL1200 down the owner’s driveway and into an unknown vehicle. The owner was woken by the sounds of the motorcycle being dragged down her concrete driveway. She looked out the window and saw a white van and a Toyota utility travelling away from the address. The Toyota utility was occupied by three Maori males wearing high visibility vests. The bike was later located at Just Dirt Bikes in Derrimut.
31It is not alleged that you were present when the three motorbikes were taken.
32Telephone intercepts indicate that you removed the VIN from the three bikes prior to their delivery to Bikes Plus.
33In February 2020, you arranged for Mr Roberts to reprogram the fobs of the three bikes through his business Bikes Plus and association with Just Dirt Bikes. Telephone intercepts show discussions between you and co-accused about this process and the value of the motorcycles.
34The prosecution case is that you dishonestly appropriated the motorbikes by removing their VINs and arranging their delivery to Mr Roberts.
Charge 5: Theft
35On 1 February 2020, a white Mercedes Benz Vito Van was parked on Le Cateau Street, Pasco Vale South. At 1.15am, the rear window of the van was smashed and a mini fridge, 5 packets of Winfield blue cigarettes and a pair of Ray Ban sunglasses were stolen. The incident was captured on CCTV which showed your car travel past, minutes prior to the offending.
36Your vehicle was at Le Cateau Street Pasco Vale South between 1.00am and 1.36am. At 1.36am Mr Nimo and unknown offenders returned to your vehicle. You asked why they took so long and Mr Nimo said they had difficulty breaking the backdoor. Mr Nimo advised you that there were no valuables in the van, other than smokes. You and Mr Nimo travelled from Pascoe Vale South to the clubhouse and discussed various things, including the contents of the stolen fridge and who deserved to keep the cigarettes.
37On 25 February 2020, you were arrested and interviewed by police and made a no comment interview.
Gravity of offending
The charges you have pleaded guilty to are serious, as indicated by the maximum penalty of 10 years on each.
On charge one, and over a period of some 5 days, you planned to commit a burglary on a commercial or industrial business involving items that, while of unknown precise quantum, were plainly valuable. As your Counsel accepts, this was a planned ‘inside job.’ It was only detected by way of an intensive police operation, targeted mostly at your activities. You played an important and prominent organizational role in the conspiracy, and your offending was financially motivated. You were involved in detailed planning and discussions with others, as outlined in the prosecution opening, including how to try and avoid detection.
I take into account the submissions of your counsel that there was no physical violence used in this offending or resort to weapons. Overall, however the offending is serious and in cases of this nature, general deterrence is an important sentencing consideration.
I regard Charge 1 as the most serious charge on the indictment. Charge 2 is a rolled-up charge involving three motor bikes that were stolen between 8 and 23 January 2020 and I take into account the full circumstances of your offending and your involvement. Charge 3 is charged on a single date and involves items of lesser monetary value, namely the theft of five packets of cigarettes and a pair of sunglasses.
In relation to the offending, your Counsel broadly submits that it took place against the backdrop of your membership and associations with gangs or groups, as identified. Also, at the time of the offending you were under considerable financial pressure, which I’ll return to in a moment. While I accept that at the time of your offending you were immersed in a negative subculture and also labouring under the various pressures, as outlined by your Counsel, this does not excuse your offending or moderate your culpability.
Plea of guilty
43Following a sentence indication hearing your case resolved. Your plea is not an early one. I do note that the prosecution position as to the quantum of the conspiracy to burgle was modified following the committal and there have been ongoing negotiations. Your plea entitles you to an important sentencing discount. It has utilitarian value and indicates your willingness to facilitate the course of justice and accept responsibility for your offending. In all the circumstances, I also accept that your plea of guilty is indicative of your remorse.
Personal circumstances
44Your personal circumstances were canvassed in detail by your Counsel and in the psychological reports of Carla Ferrari.
45In summary, you are now 39 years of age. Your father is Cypriot/Turkish and your mother Albanian/Turkish. Your parents provided well for you, and you have a close relationship with them. You have 3 siblings with whom you also enjoyed a close relationship up until more recent times where it seems those relationships may have fractured.
46You grew up on a farm in Shepparton. Your parents were hardworking. Your mother worked as a court stenographer and your father as a builder.
47At school, you experienced difficulties with literacy and comprehension. You were however an avid sportsman, and you became formally recognised and acclaimed as a freestyle wrestler. However, your promising career did not eventuate as you were involved in a serious motorbike accident which required a spinal fusion and keyhole surgery to your right knee and hospitalisation for some 6 weeks, followed by 6 months rehabilitation. You described this to Ms Ferrari as ‘the catalyst for [your] mental and physical health decline’ and involvement with antisocial peers. You had gone from being an elite athlete on a pathway to a career in sport to being ‘nobody and unable to train or exercise or do anything to keep myself sane.’ Your education was also disrupted by this accident, and you left school without completing Year 9.
48When you were 19 you asked your parents to buy you a one-way ticket to Cyprus to join the army. You saw this as an opportunity to remove yourself from your environment and seek other opportunities. You remained in Cyprus for six years. You were conscripted to the Army and stationed and advanced in rank. You returned to Australia for your sister's wedding and ended up remaining here.
49You have a relatively good work history and as your Counsel describes it, you have always been business minded. On your return, you recommenced employment in construction. You also opened a laser clinic and undertook qualifications to become a laser technician. You grew the business and eventually sold it.
50Ms Ferrari’s report canvasses your history of personal relationships. One of your long-term relationships bore a daughter, who is now aged 15. You learnt that your partner was pregnant after the relationship had ended and there was a later unsuccessful attempt at reconciliation. You proceeded through the Family Court and were awarded shared custody of your daughter which gradually increased to full time custody.
51In the recent past the relationship with your daughter had its challenges and she returned for a short period to live with her mother and grandmother, and an intervention was initiated against you by your ex-partner. Concerns then emerged in respect of your daughter's well-being and ultimately, she has returned to your care. You describe your relationship with your daughter as very close.
52You discussed with Ms Ferrari your involvement in groups or gangs referred to and your reflections as to why you joined (see [33]-[37]). You have now ceased all contact with these groups and expressed regret for your decision to join them and for the negative and burdensome consequences that have flowed (at [93]).
53Ms Ferrari notes that despite your affiliations, you continued to operate several businesses within the concreting field and expand within the construction industry since returning from Cyprus in your 20s. You also hold relevant certifications including pump operations, riggers, forklift, rope technician, first aid, traffic management and your white card.
54You have a relevant criminal history that dates back to 2004, though it is punctuated with gaps of years between offending. From 2004 and 2006 you were mostly before the courts for dishonesty and violent offending for which you received bonds, fines and a suspended sentence. Between 2010 and 2013 you were dealt with for mostly driving matters and received several suspended sentences. Your last prior matter was on 9 September 2014 for make false statement in a travel document for which you were convicted and placed on a good behaviour bond.
55After this, your last prior appearance before a Court was on 10 April 2024 when you entered pleas of guilty in the County Court to charges of aggravated burglary, common law assault and extortion with threat to kill. You were sentenced to an aggregate term of 12 months' imprisonment, wholly reckoned as served, and a community corrections order (‘CCO’) of 4 years with a range of conditions, including 300 hours of work, treatment and judicial monitoring. The offending partly overlaps in time with the present offending, occurring between November 2019 and early 2020. I will return to this matter shortly.
Mental health
56You have been diagnosed as suffering from a range of mental health issues. In 2011 you were diagnosed with depression and PTSD, in the context of your past traumatic vehicle accident and also a later incident whereby you were kidnapped. Ms Ferrari considers that you have suffered from longstanding mental health conditions that have impacted your functioning throughout your life, with the accident as the main precipitant (at [147]).
57Over the course of two separate assessments, distinct in time, Ms Ferrari conducted a range of assessments and confirms that you suffer from Obsessive compulsive disorder (‘OCD’), Post-Traumatic Stress Disorder (‘PTSD’), Adjustment Disorder with mixed depression and anxiety. She also considers that it is possible that you meet the criteria for Attention Deficit Hyperactivity Disorder however additional information would be needed. In her most recent report she states that your ‘current mental health symptoms are indicated to be of moderate to severe severity, and [you have] been under substantial stress since [your] release which has perpetuated [your] symptoms and prevented any amelioration’ (at [119]).
58Further, Ms Ferrari opines that your mental health conditions would make imprisonment more onerous and that your ‘PTSD in particular places [you] at higher risk of inappropriate or disproportionate responses due to poor emotional regulation and impulsive behaviour when faced with potential threat or stress and can result in unintentional sanctions and higher vulnerability to experiencing issues with other offenders or with staff’ (at [160]).
59Further, she considers that your ‘adjustment disorder is at risk of progressing into a major depressive episode or generalised anxiety disorder if [your] condition does not improve, and [you] are likely to experience deterioration in custody, as was observed during [your] remand period, with increasing anxiety and exacerbation of [your] OCD’ (at [160]). You told Ms Ferrari that prison exacerbated your symptoms significantly, that your OCD became severe within this environment and that you continue to experience flashbacks and nightmares of various events (at [44]).
60Your Counsel submits that your mental health conditions, namely your obsessive compulsive disorder, PTSD, and mixed anxiety and depression enliven Verdins principles 2-6.[1] The prosecution accept that limbs 5 and 6 of Verdins have application but submit that limbs 2, 3 and 4 have little, if any application, given effectively that this was organized crime.
[1] R v Verdins [2007] VSCA 102.
61On the evidence, I accept that limbs 5 and 6 of Verdins have application, as largely borne out by your previous custodial experience. While your conditions might broadly explain your impulse control and lack of consequential thinking, I do not consider, nor is it contended by your Counsel, that these conditions impacted or influenced your offending. As for the nature and severity of your current mental health conditions, on the evidence, your OCD continues but has now reduced in intensity (at [141]). In summary, you continue to experience mild to moderate trauma symptoms, with some noted increase in the lead up to Court, and your PTSD fluctuates in severity and is worsened by stress and these conditions generally impact you. As discussed with Counsel today, I accept your conditions are relevant and there should be some moderation of general and specific deterrence. However, I consider this is only warranted to a very limited extent, given the evidence as to the nature and severity of your current mental health conditions and their impact.
62As for any other health issues, I note for completeness that you have recently been diagnosed with type 2 Diabetes which you manage with medication, diet and exercise.
Other mitigating factors
63Also relevant to sentencing in your case are factors of delay and totality. As already noted, in April 2024 you were sentenced for offending in late 2019/early 2020. The victim was your past accountant and you report being aggrieved by his failure to properly advise you in a business transaction which resulted in you acquiring a tax debt of 1.5 million dollars. This caused considerable financial strain, with your parents selling the family home to keep your business afloat. You insisted on money being repaid to you and when this didn’t occur you and your associates resorted to unlawful methods.
64You were arrested on these charges on 25 February 2020. Following your arrest you were remanded in custody until March 2021. This represented your first time in custody and you struggled given your mental health conditions that I have already canvassed. It was also during the covid-19 pandemic restrictions and lockdowns. Given your known associations at the time you were also required to be placed in isolation. While you had a short period of working as a billet and in peer support, you spent most of your 13 months (374 days) in solitary confinement, the likely harmful effects of which are canvassed in the report of Ms Ferrari from paragraphs [142]-[146].
65In sentencing you I take into account your previous experience in custody and the harsh and restrictive conditions, as outlined by your Counsel.
66As already noted, you were also originally arrested and interviewed on the current charges on 25 February 2020. However, you were not charged until 24 May 2022. The case then progressed to a committal hearing in June 2023 and then a number of other procedural listings. A sentence indication on 15 April 2025 led to resolution and you were arraigned on the same day.
67I accept your Counsel’s submission that delay is a significant mitigating factor in your case.[2] I accept that both the unfairness and rehabilitation limb are relevant.
[2] The Queen v Cockerell (2001) VSCA 239.
68You were originally interviewed in early 2020 and then, inexplicably, not charged until over 2 years later and then released on summons. You have had this case hanging over your head for over 5 years. I accept your Counsel’s submissions that the delays in the case have placed significant stress on you, not knowing your future while also trying to support your parents and young daughter.
69Also, I take into account that, within the intervening period of being interviewed for this offence and sentence, you served over 12 months in custody which I accept was particularly onerous and salutary. While this period was served for different offending, given the temporal proximity between both sets of offending, totality remains a relevant and important consideration.[3] I also take into account, as agreed between Counsel, that you have 22 days of Renzella time that can be attributed to the current offending.[4]
[3] Postiglione v The Queen [1997] HCA 26.
[4] R v Renzella [1999] VSCA 85.
70Further, the delay has allowed you to demonstrate your sustained efforts and commitment to your rehabilitation, which I will now turn to.
Progress
71As already noted, you were released on bail for the other offending on 4 March 2021.
72You continued to experience financial strain and challenges. Prior to your remand your business had 90 employees however it suffered due to your absence and you had to rebuild the company when released on bail. The letter from your current accountant refers to the significant drop in revenue when you were incarcerated. You now have five employees and operate the one company. Your Counsel also tendered some documents as to the damage to your vehicle, used in both sets of offending, while it was impounded by police. Without making a finding as to the precise cause of any damage I take into account that you have had additional financial expenses.
73Also, notwithstanding the considerable effort on your part, including taking on a second job as a truck operator transporting dangerous goods, your family home was repossessed on 28 September 2024. Since the beginning of the year, you and your family have moved into private rental accommodation.
74Since your release on bail, you have demonstrated a significant commitment to your ongoing rehabilitation. Your association with negative peer groups completely ceased.
75You have reconnected with your teenage daughter who is now in your fulltime care and have continued to support your elderly parents, who also live with you. The letter of Dr Mirjana Calic confirms that your parents suffer from a range of medical conditions and you are their ‘major support.’ Your mother speaks of the long and hard hours you work so as to financially support them, your daughter and your fiancé. She also speaks of how you have turned your life around.
76You have complied with your bail conditions and importantly, you have not committed any further offences since January 2020.
77As already noted in 2024 you were placed on a four-year CCO. In November 2024 you completed all of your work hours. You have also complied with other conditions though I note that an issue arose as to your attendance at mental health appointments and in more recent times you have resumed psychological treatment. The email from your current corrections worker indicates that you have been doing well on the order and that she holds no concerns.
78I accept that you have committed yourself to the order and have continued to balance its requirements, along with your heavy work commitments. You recently told the Forensicare clinician that it has been challenging but that you are prioritising your community corrections responsibilities and ensuring that you are consciously planning your work schedule.
79Along with operating your concreting business you also continue to work full time for your father-in-law. In his letter, he confirms you have worked for him since September 2024 driving LPG tankers and that you have passed all inductions necessary to work in that industry.
80Since March 2024 you have also been in a serious relationship with your new partner. There is a long family history of connection between your families and, as already noted, you also work in her father’s business. You are engaged to be married at the end of the month and keen to start a family. She refers to you as hardworking, supportive and generous.
Prospects of rehabilitation
81Ms Ferrari conducted a formal risk assessment and considered that you posed a moderate risk of future violence however a low risk of imminent violence (at [155]). This means that you require a moderate level of supervision, intervention and resources to manage your risk. Protective factors include your willingness to engage with mental health and support services, disassociations with former antisocial or affiliated associates, resumption of the full-time care of your daughter and stable psychosocial circumstances.
82In my assessment I also take into account a range of other factors, including that you have no drug or alcohol issues, your strong history of employment and that you have not reoffended for years. Overall, I consider that you present with very favourable prospects of rehabilitation.
83Ms Ferrari makes a number of useful recommendations from [160] in her report including that you would benefit from a referral to a Forensic Psychologist and trauma focused cognitive interventions.
Other factors
84Your co-accused Mr Nimo pleaded guilty to conspiracy to commit burglary and theft of a packet of cigarettes found in a van. He was sentenced to a 14-month community corrections order (‘CCO’) with conditions.
85The parity principle requires that similar sentences should be imposed for similar offences committed by offenders in similar circumstances. I accept that it is a relevant consideration though I consider there is scope for some variation between you to reflect the differences in the charges, your more prominent role in the principal offence and your personal circumstances. I note in particular that Mr Nimo had no relevant prior criminal history.
Sentencing purposes
86The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. In light of your sustained rehabilitative efforts over the years I accept that specific deterrence can be given less weight, though it clearly remains relevant, particularly given the serious and sustained nature of this offending.
87I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case. I take into account the general landscape for sentencing in such matters and have considered all the cases referred to by Counsel.
88I take into account the relevant maximum penalties and the principles of parsimony, proportionality and totality.
89In sentencing you, I have taken into account all of the submissions made at the sentence indication hearing and at the plea hearing.
90Your Counsel submits that despite the seriousness of your offending, given the mitigating factors in your case, a carefully structured community corrections order (‘CCO’) with community work and therapeutic components has the capacity to meet all relevant sentencing purposes and affords the best prospects for rehabilitation and addresses any future risk. The prosecution submit that a term of imprisonment is required for the offending and that a combination sentence is open.
91I had you assessed for a CCO and you were assessed as suitable. Further, the MHARS report recommended ongoing assessment or treatment of your mental health. You told the corrections officer that you have made ‘a complete 360 in my life’ and that your offending and engagement with a psychologist has ‘opened my eyes.’ You also expressed ‘a lot of remorse.’ You stated that you would like to do a further CCO to ‘prove myself worthy’ and to ‘give back to the community.’
92In all the circumstances, I consider that a substantial CCO is capable of addressing the punitive and denunciatory purposes of sentencing while also ensuring that your relatively lengthy process of rehabilitation, a process in which the community has a vested interest, is able to continue. The order will operate for a substantial period of time and have attached punitive conditions that you must comply with for its duration.
Sentence
93Synthesising all relevant matters, on all three charges you are convicted and sentenced as follows:
94A CCO for 2 years and 6 months with the following conditions:
(a) You must be under the supervision of a Community Corrections Officer for a period of 12 months.
(b) You must perform 240 hours of unpaid community work over a period of 30 Month(s) as directed by the Regional Manager. Order that 50 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
(c) You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
(d) You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager
95You must re-appear at court for a review of your compliance with the order as directed by the Court. You must attend for review 19 June 2025 at 2:00PM at Melbourne County Court.
96I note this order will operate concurrently with the order that you are currently undergoing. That is, it commences today. However, I have imposed conditions that I consider are necessary and appropriate, that do not necessarily attach to your current order.
97Pursuant to S.6AAA but for your plea of guilty I would have imposed a combination sentence of 11 months' imprisonment with a lengthy CCO.
98In relation to your licence, s.89(4) provides that if a person is convicted of stealing a motor vehicle, which has a broad and inclusive definition as provided for in the Road Safety Act, the court must either suspend the persons licence or otherwise cancel and disqualify them. Action is therefore mandatory though the period of interference is discretionary.
99Your Counsel has made detailed submissions in respect of this matter, highlighting that you rely on your licence for your livelihood and that you currently hold 3 licences – namely a driver's licence, dangerous good licence and high-risk licence. Any suspension of your driver's licence, as she explains, will also have consequences for your dangerous good licence and will require you to engage in a separate process of re-application. Your Counsel submits that the facts in your case are unique and warrant a significant amelioration in any suspension period.
100In my assessment, I take into account the nature of the offending, the lengthy delay in this matter finalising, your personal circumstances, including your work and family commitments, the likely impact of licence disqualification and the importance of facilitating your rehabilitation.[5] Taking into account all of these matters and the compelling circumstances of your case, on charge 2 you are suspended from driving for a period of 5 days, commencing today.
[5] R v Tran [2002] 4 VR 457.
101HER HONOUR: Now Counsel, just a couple of things in relation to those conditions. As I have indicated, so he is on a current order, the current order as I see it, does not have supervision and does not have programs. I have imposed the conditions that I consider and assess as necessary. It is also open to me pursuant to the Sentencing Act, unless either of you wish to be heard, to impose a supervision period for a specified time. That is what I have done here for a range of reasons mostly canvased in what I have already just said. Do either of you wish to be heard in respect of that? It is open, it is provided for in the Sentencing Act.
102COUNSEL: No, Your Honour.
103HER HONOUR: No. All right, thank you.
104HER HONOUR: Mr Crouch, there are no ancillary orders, is that right?
105MR CROUCH: That's right, Your Honour.
0
4
0