Director of Public Prosecutions v Gluyas

[2025] VCC 420

IN THE COUNTY COURT OF VICTORIA

AT HORSHAM

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00301

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN GLUYAS

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Horsham
DATE OF HEARING:	4 April 2025
DATE OF SENTENCE:	4 April 2025
CASE MAY BE CITED AS:	DPP v Gluyas
MEDIUM NEUTRAL CITATION:	[2025] VCC 420

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW: Sentencing

Catchwords:              Aggravated burglary - Theft of motor vehicle – Theft – co-offenders – limited role in serious offending – dis-parity – delay – reduced moral culpability – Verdins – No application of Bugmy principles – combination penalty

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:DPP v Meyers (2014) 44 VR 486, Tones v the Queen [2017] VSCA 118, R v Verdins [2007] VSCA 102, Bugmy v The Queen [2013] HCA 37, Boulton v The Queen [2014] VSCA 342.

Sentence:Total Effective Sentence of five months imprisonment in combination  with a 2-year Community Corrections Order, with conviction.                     

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Ms A. Hughes	Adrian Paul Criminal Lawyers

HER HONOUR:

1Benjamin Gluyas, your matter came before the court on 20 March 2025 as a second application for sentence indication hearing. Such application was opposed. Having found that there had been a change in circumstances since the previous sentence indication that was likely to materially affect the sentence indication previously given, I allowed your application.

2The sentence indication proceeded on the following day 21 March 2025. At this time, I indicated that, upon a plea of guilty, I would impose a combination penalty of five months' imprisonment and a community correction order.

3You accepted the indication provided and you were arraigned on 3 April 2025 on indictment M12237535. You pleaded guilty to one charge of aggravated burglary and two charges of theft. I ordered an assessment for a community correction order and you have been assessed as suitable for such an order.

Circumstances of the Offending

4The agreed factual basis upon which you are to be sentenced is contained in the prosecution opening for plea dated 21 March 2025. This document was tendered at your plea hearing. In summary;

5At around 6.00am on 8 February 2020 you and your co-accused Sarah Thompson and Nathan Robertson-Ainsworth attended at Mark Taylor’s address in Horsham. In the days prior to this attendance you communicated via text with your co-offender’s to make arrangements about what was going to take place. You agreed to be involved in return for the supply of drugs.

6Upon attendance the three of you have approached the front door of the victim’s address with the intention of stealing items of value in order to satisfy an alleged drug debt. At the time, Robertson-Ainsworth was in possession of a metal pole which was approximately 70 centimetres in length and three centimetres in diameter, and Thompson was in possession of a knife which was approximately 25 centimetres in length. You were not armed.

7The victims were seated in the lounge room they heard a person attempting to unlock the front door from the outside. Someone has then kicked the door open, breaking it off its hinges. You, Robertson-Ainsworth and Thompson have entered the victim’s residence [Charge 1 – Aggravated burglary].

8Once you were inside, Robertson-Ainsworth began yelling at the victims and threatening them with the metal pole. Robertson-Ainsworth demanded that the victim’s hand over their mobile phones to Thompson. The victims complied. The phones were collected and kept by Thompson.

9Robertson-Ainsworth then demanded the keys to Taylor’s vehicle, being a Holden Commodore sedan (the Holden Commodore), which was parked in the drive way of the property. Taylor complied. Robertson-Ainsworth was unable to start the commodore so one of the victims assisted by using the battery from another Robertson-Ainsworth’s vehicle. Thompson remained in the loungeroom watching the other victims, brandishing the knife.

10Whilst at the address, Robertson-Ainsworth stole four 20” mag wheels that belonged to Taylor. You helped to carry these from the rear garden shed. Robertson-Ainsworth also stole a black Toshiba hard drive from a shelving unit in the lounge room, together with Taylor’s driver’s licence, Commonwealth Bank debit card and Centrelink card.

11During the incident, Foot requested the return of his SIM card from his mobile phone. This angered Robertson-Ainsworth, who struck Foot on the right leg with the metal pole causing pain and a break in the skin. It is not clear if you were present when this occurred.

12The incident lasted approximately 20 minutes, Robertson-Ainsworth threatened the victims that, if they reported the matter to police, he would come back for them.

13Taylor’s Holden Commodore (Charge 2 – Theft of motor vehicle), four 20” mag rims, a hard drive, Taylor’s driver’s licence, bank card and Centrelink card (Charge 3 – Theft) were stolen.

14You left the property with your co-offenders and drove towards Melbourne along McPherson Street, Horsham You experienced mechanical issues with the Holden Commodore. You and Robertson-Ainsworth walked to a nearby Service Station, purchased a fuel container and petrol and returned to the Holden Commodore. You together with Thompson and Robertson-Ainsworth then drove to Warrnambool. The mag wheels were left at a friend’s house.

15Later that day Robertson-Ainsworth was driving the Holden Commodore with Thompson as a passenger when they were arrested by police. You remained in Warrnambool, before returning alone to Melbourne.

16It was not until late 2021 that you were able to be identified and located. On 26 October 2021 police arrested you at your home in Mount Evelyn.

17You were interviewed and stated the following:

(a)   A30 – you became involved in the offending through being pressured by some friends that asked you to go up and help him collect either some money or a car

(b)   A34 – That on the way to Horsham you realised the victim did not know they were coming

(c)   A38 – That you were not present when the door was kicked in

(d)   A41 – That you had to collect some wheels in the shed out the back

(e)   A42 – That you assisted one of the people from the address to put the battery from the Lancer into the Commodore

(f)    A54-56 – That after the incident you had to make his own way back to Melbourne as Robertson-Ainsworth and Thompson got “nicked”

(g)   A180 – That nobody had anything in their hands when they walked up to the address

(h)   A191 – That the house was “all lit up” when they approached it

(i)    A421-423 – That he couldn’t remember whether Thompson had a weapon, but that Robertson-Ainsworth had a pole at one stage, although not when he initially attended the door

(j)    A433 – That the occupants of the house would have been pretty intimidated when they came in, and the girl was terrified

Sentencing of Robertson-Ainsworth and Thompson

18Robertson-Ainsworth and Thompson pleaded guilty to aggravated burglary, theft and some associated offences on 30 August 2021. On 2 September 2021 they were sentenced by His Honour Judge Carmody as follows:

(a)   Robertson-Ainsworth – 4 years and 7 months imprisonment with a non- parole period of 2 years and 10 months

(b)   Thompson – 4 years and 4 months imprisonment with a non-parole period of 2 years and 9 months

Nature and gravity of offending

19In sentencing you I must make an assessment of the objective gravity of your offending. Aggravated burglary is an inherently serious offence and that is clear from the maximum penalty of 25 years' imprisonment. Further, in determining the seriousness of your offending, I have had regard to the case of DPP v Meyers,[1] in which the Court of Appeal set out the considerations ordinarily relevant to an assessment of the nature and gravity for a charge of aggravated burglary.

[1] DPP v Meyers (2014) 44 VR 486.

20Your counsel, Ms Hughes, acknowledged that the aggravated burglary was a serious charge. However, she submitted that you were not the main offender and had gone along with two co-offenders, Mr Robertson-Ainsworth and Ms Thompson believing you were going to repossess a car that had been arranged for collection. Your counsel also submitted that you entered through the front door and the evidence was consistent with you having entered last. As discussed during the plea hearing your co-offender Thompson admitted to kicking in the door. Although weapons were present these were carried by your co-offenders.  

21Ms Hughes conceded on your behalf that you entered the victim's home at around 6:00AM knowing that people were home. Further, Ms Hughes submitted that your role within the house was limited and that you went outside to assist with the car and taking the mag wheels. Witnesses said you attempted to facilitate the return of a phone. In light of these factors, your counsel submitted that your role and intent in the offending would make the offending a low-level example of aggravated burglary.

22Mr O'Doherty, on behalf of the prosecution submitted there was no question that this was a serious example of aggravated burglary. Further, he submitted that it would have been abundantly clear to you that this was not a repossession job. Your co-offenders were armed and threatening and your role was more than to help with the car. You were prepared to lend assistance if required, however you were not called upon to do the heavy lifting. Mr O'Doherty conceded as such your role was reduced and your participation limited.

23I accept the submissions of your counsel that you were not the instigator of the offending and that your co-offenders had a greater role and therefore bear more responsibility for the offending than you. On the state of the evidence, I could not be satisfied to the requisite degree that it was you who kicked the door or that you were present when one of the victims was hit by Robertson-Ainsworth. Further, I accept that your offending occurred during daylight hours and that your role was limited. However, this was a serious example of aggravated burglary, and you were there to lend assistance if required.

24In my view the true characterisation of your offending is that you had a limited role in serious offending.

Personal circumstances

25You are now 46 years of age. At the time of your arrest you were living in a private rental property in Monbulk.

26You are one of a sibship of three. You were raised in a highly religious household, attending church approximately three times a week. Your family would often travel around Victoria singing in the church choir.

27Your mother was a nanny, and it was common for your family to have extra children around the house. Your father was a sales assistant for many years. He ceased this employment and had a period without work before finding a job in security. Whilst your family never went without, there was a financial struggle. Often donations of food were received from your community.

28You were the victim of various abuses that were perpetrated upon you during your childhood, all of which you did not report.  Once instance of abuse you reported to your parents when you were 16 years of age. You were not believed about that at the time, however more recently your parents have accepted that that occurred.

29School was difficult as you were repeatedly harassed and bullied for your religious affiliations. You repeated Year 10 before you final finished school. Shortly after this you distanced yourself from the church community.

30When you were 19 years of age, you and your then girlfriend, Jana, had a son, Levi. Two years later, you and Jana separated in the context of her infidelity with one of your friends. There was a lengthy custody battle concerning Levi with the result that Levi was placed in the care of your parents.

31Around this time you moved to Lorne, where you enjoyed several years of stability. You were employed as a chef at the Lorne Hotel. Whilst in this employment you began to drink heavily. By your late 20s you lost interest in your work, you struggled with your relationships, and you were not coping, and life was chaotic.

32Recognising you required help, you admitted yourself to the Basin Rehabilitation facility at the age of 27. You remained there for approximately three months. Whilst at the Basin you met and commenced a relationship with a woman named Ciara. You lived with Ciara in transitional housing and unbeknownst to you, she returned to heroin use. You had similarly relapsed into alcohol and cannabis use. On an occasion where you fell asleep after consuming cannabis and alcohol you woke up to find Ciara dead, having overdosed.

33You checked back into rehab, this time through the Salvation Army Bridge Program where you stayed for a six-month admission. After completing rehab, you returned to your hometown and lived and cared for a friend. At this time, you were distant from your family. Your friend suffered schizophrenia and living with him made you concerned for your own mental health.

34At the age of 33, you were diagnosed with ADHD and bipolar. This brought some clarity to you particularly when you started medications to manage your symptoms. You again enjoyed some stability, and remained sober for approximately 10 years.

35You moved to Gippsland for a period of time and it was there that you met the
co-accused, Nathan. You were friendly with Nathan and you had empathy for his situation. Whilst you were in Gippsland your friend passed away. You experienced a period of homelessness and then moved home to live with your parents. You were receiving methadone injections during this period. After an incident when collecting your methadone, you decided to go 'cold turkey'. You suffered significantly methadone withdrawals. Unfortunately, you turned to other drugs to try and deal with your withdrawal symptoms. It was in this context that you came to seek drugs from the co-accused, when they randomly contacted you in February 2020.

36When at liberty, you are currently on a disability support pension and you suffer from septic arthritis. You had surgery for this issue at the start of 2023.

Plea of Guilty

37Although your plea of guilty could not be categorised as an early plea I accept that it has considerable utilitarian value. You have spared the court the time and cost of a trial and you have spared the witnesses the need to give evidence at trial. Further I accept that where there are triable issues your plea of guilty reflects your desire to facilitate the course of justice and is demonstrative of remorse. Accordingly, I have allowed a significant discount.

Parity

38

The principles that govern parity are well established. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. As I have indicated it is my view that your co-offenders were clearly the principal offenders and instigators of this episode of offending. You had a far lesser role. Both of your

co-offenders had greater prior histories, and each had been incarcerated previously. As best I can I have weighed these considerations into the sentence I intend to impose noting that there are important differentiating facts in each of your cases that justify a significant degree of disparity.

Delay

39Ms Hughes submitted that there had been significant delay since your offending. It is now over five years since the charged events occurred.

40Delay is an important mitigatory factor that can be taken into account in two ways. Firstly, the uncertainty of the proceedings have been hanging over your head for some time. Further, you have faced the very real prospect of imprisonment and the reality of this prospect was brought home to you at the first sentence indication hearing, this caused your mental health to dramatically decline.

41The second aspect of delay to which the Court can have regard is the rehabilitation limb.[2]  Since this offending five years ago you have re-offended. You were also sentenced to a  community corrections order in 2023 for offending which occurred prior to this matter.

[2] Tones v the Queen [2017] VSCA 118.

42In relation to delay, I find that the unfairness limb has applicability in your case.

Mental health

43Turning now to your mental health, you were diagnosed with ADHD and Bipolar Affective Disorder in 2012. As a result of these diagnoses, you experience paranoia, ruminative thoughts, which include doubts and fear that can be so overwhelming that it 'brings [you] to a halt'. You were prescribed Olanzapine to treat your Bipolar Affective Disorder and this had been recently re-prescribed as you had previously elected to discontinue taking the medication.

44

At your plea hearing, your counsel tendered a psychological report from

Dr Hannah Dawson dated 27 May 2024. This assessment also indicated that you meet the criteria for moderately severe depression, Generalised Anxiety Disorder, Bipolar Affective Disorder, ADHD and Complex PTSD. Dr Dawson opined that an Opioid Use disorder would have been present at the time of your offending.

45You have a complex history of trauma and neurodevelopmental difficulties. You emanate from a dysfunctional childhood and family environment in which you have reportedly experienced physical and other abuse, social isolation, and limited opportunity for individual expression or personality exploration. Dr Dawson opined that the trauma you experienced in childhood has contributed to your 'comorbid mental health conditions, personality disorders and traits that are known to undermine cognitive and emotional development and exert a negative effect on behavioural trajectories'. Further contributing to your psychological maladjustment in adulthood is your chronic poly-substance use, poor impulse control, periods of homelessness and instability, and intermittent contact with the criminal justice system.

46Core symptoms of ADHD include impulsivity, emotional impulsiveness, mood instability, risk-taking, substance abuse and low self-control, which are predisposing to criminal offences. Dr Dawson opined that such deficits would be amplified by stressors, a decompensation in your mental state, and by substance use, which you have used as a form of self-medication since ceasing your ADHD medication.

47Dr Dawson concluded from her assessment of you, that it is likely that your untreated mental health has played a significant underlying role in your offending, as in the absence of ADHD medication, your potentially unstable mood, coupled with substance withdrawal, and a drug-seeking motivation, there was an increase in your propensity for impulsive and reckless behaviour.

48In Dr Dawson's opinion, you will greatly benefit from addressing your mental health by way of psychological and pharmacological interventions, which in turn will reduce your substance reliance and assist to manage your symptoms, especially in relation to your ADHD and C-PTSD.

49While you have demonstrated a motivation to seek counselling services whilst in custody, Dr Dawson noted the limitations of programs and treatment available to you in a custodial environment, and it is unlikely your mental health needs would be adequately treated.

50Dr Dawson opined that your experience in custody would weigh more heavily on you because of your mental health diagnoses and your pre-existing conditions affecting your emotional stability and reactivity. Further, a custodial sentence would place you at a much higher risk than others because of the risk of exploitation by other offenders in custody and your naivety to the prison environment and criminal associates in general.

Verdins

51Your counsel submitted that the report of Dr Dawson and the evidence of your response to being in custody gives rise to limbs 5 and 6 of Verdins.[3]

[3] R v Verdins [2007] VSCA 102.

52A reduction in moral culpability,  limb 1, was contemplated by paragraph [144] of Dr Dawson's report, , however your counsel did not pursue this limb.  She took the view that as there was drug use at the time this complicated the application of Verdins and any reduction of moral culpability.

53In my view the mental health issues you currently endure are such that you are not a good vehicle for general deterrence and further, they have an impact on the type of sentence that should be imposed by this court, thereby I find on balance that limbs 2, 3 and 4 of Verdins are enlivened. I also accept that your time in custody has been more burdensome for you as a result of your poor mental health.

Bugmy

54Your counsel submitted in the circumstances of your case the principles enunciated in the case of Bugmy were not enlivened.[4] However, she submitted that there were features of deprivation and disadvantage in your background that the court should take into account in a general way. You have not had an easy upbringing, and you have been the victim of a variety of abuses. I accept that this has had an impact upon you and is likely responsible for your decline into drug use and the consequent difficulties this has brought about in your life.

[4] Bugmy v The Queen [2013] HCA 37.

Rehabilitation

55I was told that you had remained alcohol free for a period of roughly two years and had not consumed methylamphetamine since the offending. Whilst in the community you had recommenced methadone. Further you recommenced medication to assist with your mental health, namely Zyprexa for bipolar disorder. You had engaged with the community care program and breakfast program with Knox Infolink and your case manager provided a letter to the court. She stated that despite your challenges, you were a good man who offered your time and kindness to others in the community.

56These positive steps towards rehabilitation were undermined by the prospect of being incarcerated post the first sentence indication. Shortly after this court hearing you attended hospital due to mental health concerns and subsequently you relapsed into drinking and stopped the methadone program. You recommenced infrequent cannabis use and pushed your family away in the process and they were devastated to hear of your remand in custody.

57Whilst in custody you have recommenced the methadone program. You are medicated with risperidone and have commenced medication for your ADHD. This is your first time in custody, and it has not only had a sobering and salient effect upon you but also has allowed you to stabilise. You have engaged in supports to assist with your transition back into the community. With the assistance of the Bridge Program and Mosaic Elite Health you intend to relocate to Lakes Entrance and engage in a rehabilitation and support program with that organisation.  Evidence of those supports were received by the court in the form of letters from both West Goehner from Mosaic and Hayley Power a post-release case worker with the Bridge Centre.

58You retain the support of your family in particular your parents who have been present on the link for all hearings I have conducted and importantly your son Levi. Further you have the responsibility and care of your dog.

59The assessment of Gregory Lane from Forensicare also gives me hope that it is your time for reform.  Mr Lane's formulation of your current situation is as follows.  :

Mr Benjamin Gluyas has a documented and self-reported history of mood and emotional dysregulation, ADHD, substance misuse and Complex PTSD. Mr Gluyas presented today as stable in his mental state, he engaged in a meaningful and self-reflective manner in the assessment and identified that he could benefit from participating in talk therapies. Mr Gluyas reported adherence with prescribed psychotropic medications and a goal of ongoing sobriety in the community. Mr Gluyas identified the importance of creating a meaningful structured routine in the community that also involves volunteer work and 'giving back to others'.

60If you are able to continue on this trajectory and utilise the supports that you have garnered, in my view your prospects for rehabilitation should be good.

Sentencing principles

61The basic purposes for which a court may impose a sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. The principles of proportionality and parsimony are also important considerations. They require me to make sure the punishment imposed fits the crime committed and that I do no more than is necessary to punish you for your role in the offending. I have taken these principles into consideration in fixing the sentence I will now impose.

62I also take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[5] where relevant in your case. In particular, I have had regard to the sentencing landscape for the offending before me, particularly the offence of aggravated burglary. 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.

[5] Sentencing Act 1991 (Vic) s 5.

63In my view the appropriate sentence in your case is the imposition of a combination penalty involving a term of imprisonment and 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.[6] Through a community correction order I am able to  provide further punishment for your offending by way of unpaid community work and rehabilitation and consequent protection of the community by way of supervision and treatment programs.

[6] Boulton v The Queen [2014] VSCA 342.

64Mr Gluyas, you are convicted in relation to each of the charges, that is the aggravated burglary, and the two charges of theft and you are sentenced to an aggregate term of five months' imprisonment, and you are to be placed on a community correction order for a period of two years.

65The conditions of this community correction order include that you must

(a)   Attend for supervision;

(b)   You are to undertake 150 hours of unpaid community work;

(c)   You must submit for assessment and treatment for alcohol and drug abuse;

(d)   You must also submit for assessment and treatment for mental health issues;

(e)   

You must submit for treatment and rehabilitation programs to reduce

re-offending; and

(f)    I also propose to order Judicial monitoring.

66In addition to the conditions that I have imposed, there are standard conditions you must comply with.  So first and foremost, you cannot commit an offence punishable by imprisonment over the next two years. If you do 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 back to gaol.

67You need to report within two working days of your release from custody to Ringwood Community Correctional Services.

68You 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.

69I can only place you on a community correction order if you agree – so firstly, do you understand what is involved?

70OFFENDER:  Yes I do, Your Honour.  Yes, I do.

71HER HONOUR:  All right and do you consent?

72OFFENDER:  Yes I do, Your Honour.

73HER HONOUR:  All right.  So the judicial monitoring, the first one will take place on 28 July 2025 at 9.30 am and that will be on the order, so you will see that there.  On my calculation you have got about another two months to go, so you would be being released around sometime in June and the 28 July gives you a little bit of time to find your feet, and for Corrections to get some things in place, and then we will check in and see how that is going.  That judicial monitoring can happen in person, so I think by then I will be back at Melbourne so you can attend Melbourne County Court, or alternatively you can attend online.  Some people actually incorporate that with an attendance at Community Corrections, so that they are appearing, they perhaps have a supervision appointment and then they appear for judicial monitoring with me by way of video link.

74OFFENDER:  Yeah.

75HER HONOUR: Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, the sentence I would have imposed is two years and 10 months' imprisonment with a non-parole period of 18 months' imprisonment. [7]

[7] Sentencing Act 1991 (Vic) s 6AAA.

76

Further, I declare that you have served 91 days imprisonment by way of

pre-sentence detention and this will be deducted from your sentence and entered in to the records of the court.

77Is there anything else?

78MR O'DOHERTY:  No, Your Honour.

79HER HONOUR:  Ms Hughes.

80MS HUGHES:  Your Honour, can I just enquire as to whether that's an aggregate sentence or whether there are individual sentences allocated to each of the charges.

81HER HONOUR:  Yes, I said it was an aggregate.  I consider that given the offending  occurred  over a 20-25 minute period of time, that it could be correctly identified as a series or sequence of offending that would allow me or permit me to do an aggregate sentence, so that's what I have done.

82MS HUGHES:  Thank you, Your Honour.

83HER HONOUR:  So an order will be prepared however, given Mr Gluyas that you are in custody, we can't get you to sign that immediately.  I suspect that you will have to sign it somewhere down the track, but one I can accept your verbal assurance - - -

84OFFENDER:  Yeah.

85HER HONOUR:  - - - that you are going to abide by the order. 

86OFFENDER:  Yeah.

87MR O'DOHERTY:  Yes, Your Honour, thank you.

88HER HONOUR:  Thanks everyone, we will adjourn the court.

89MS HUGHES:  As Your Honour please.

90OFFENDER:  Thank you, Your Honour.