Director of Public Prosecutions v Matthews
[2019] VCC 1755
•25 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-02197;CR-18-02198; CR-18-02199
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BILLY-JOE MATTHEWS BENJAMIN PATRICK HASSALL PETER TIBOS |
---
| JUDGE: | HER HONOUR JUDGE GWYNN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 25 October 2019 |
| CASE MAY BE CITED AS: | DPP v Matthews & Ors |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1755 |
REASONS FOR SENTENCE
---
Subject:Burglary, theft, criminal damage, attempted burglary, resist emergency worker, handle stolen goods, possess drug of dependence, bail offences
Catchwords: Ram raids
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:Matthews – total effective sentences of 6 years imprisonment with a non-parole period of 4 years
Hassall – 5 years 9 months imprisonment with a non-parole period of 3 years 10 months
Tibos – 14 months imprisonment combined with an 18 month community corrections order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Burnett (Plea) Ms D. Dickson (Sentence) | |
| For Accused Matthews | Mr C. Terry | Valos Black |
| For Accused Hassall | Mr M. Reardon | Victoria Legal Aid |
| For Accused Tibos | Ms J. Kennedy | Leanne Warren |
HER HONOUR:
1Benjamin Patrick Hassall, you have pleaded guilty on indictment to 14 charges of burglary; seven charges of theft; two of criminal damage; two of attempted burglary; and one of possess drug of dependence. You have also pleaded guilty to related summary offences of committing an indictable offence (burglary) whilst on bail; two charges of contravene bail conditions; and one charge of possess cartridge ammunition.
2Billy Joe Matthews, you have pleaded guilty on indictment to 15 charges of burglary; eight charges of theft; three of attempted burglary; two charges of criminal damage; one of handling stolen goods; and one of negligently dealing with the proceeds of crime.
3Peter Michael Tibos, have pleaded guilty on indictment to one charge of burglary; one charge of theft; one of resist emergency worker; and one of handling stolen goods.
4In sentencing each of you for these crimes I must have regard to the maximum sentences for each of the offences that you have committed. For your information, handling stolen goods carries a maximum penalty of 15 years imprisonment; burglary, theft and criminal damage all carry a maximum penalty of 10 years imprisonment; attempted burglary, negligently deal with the proceeds of crime and resist emergency worker each carry a maximum of five years imprisonment.
5Possess drug of dependence carries a maximum of 12 months imprisonment in these circumstances; and the bail offences each carry a maximum penalty of three months imprisonment. The charge of possess cartridge ammunition carries a maximum fine of 40 penalty units. These maximum penalties reflect the seriousness with which Parliament regards these offences.
6The offending occurred in a five-week period between 28 November 2017 and 5 January 2018 and involved in the main, a series of what are referred to as “ram raids.”
7This was highly orchestrated offending committed on targeted commercial premises outside business hours, in what was conceded to be a systematic and deliberate plan to steal items of significant value. In many instances, premises were left ransacked and with extensive damage in callous disregard for the business owners. It was audacious offending in terms of its sheer magnitude, modus operandi and number of victims.
8The details of your respective offending were set out in a document entitled, 'Amended Summary of Prosecution Plea Opening', dated 23 May 2019. This document was further orally amended to an agreed document. In combination, this represents an acceptance by you of all the elements of the offences and the factual basis on which I am to sentence. However, in my view it remains necessary to set out some of the details of your offending to: (1), understand its true gravity; and (2), to understand some of the discussion that was raised.
9The first event in time occurred on 28 November 2017 where you, Mr Matthews and Mr Hassall jointly stole a black Nissan dual cab motor vehicle. The prosecution case is put on the basis that each of you knowingly drove or were a passenger in the vehicle which had been stolen on an earlier occasion and forms the basis for Charge 1, theft of motor vehicle.
10The vehicle was then used to commit Charges 2 and 3, burglary and theft at FoodWorks in Kinglake. At approximately 2.49 am you both travelled to the FoodWorks and used the vehicle to force open the gate to the premises, ramming a roller door with the vehicle. An angle grinder or similar implement was used to force entry into a cigarette cabinet. You both left with cigarettes valued at $26,440 having caused some $12,000 worth of damage to the business.
11Next in time is Charge 4, which occurs on 4 December 2017 in which you, Mr Hassall and Mr Matthews travelled to the Shell service station, Woori Yallock, in the same motor vehicle where you forced a sliding door off its tracks to gain entry, which forms the basis for Charge 4, burglary. Once inside you then forced entry to a cigarette cabinet. $8,000 worth of cigarettes and a CCTV hard drive were taken. This theft is not the subject of charge.
12Charge 5 occurs four days later on 8 December 2017 in which you, Mr Hassall and Mr Matthews travel to the premises of Tobacco Station Group in Doreen, arriving there at approximately 4.29 am. You reversed the stolen vehicle into the front of the store, smashing the front window. You entered the building on foot but were unable to access the store containing cigarettes and left empty handed, forming the basis for Charge 5, which is also one of burglary. I assess the first three sets of burglaries as being relatively comparable in terms of their level of objective seriousness.
13On 15 December 2017 you, Mr Hassall and Mr Matthews, committed Charges 6 to 9, which include theft of motor car; two burglaries; and one theft. This was the fourth set of offending in time. You, Mr Hassall and Mr Matthews stole a 2009 Nissan Navara motor vehicle. Again, the prosecution case is put on the basis that you knowingly drove or were a passenger in that vehicle which had been stolen from a residential address in Wollert on 10 December 2017. It is not said that you were the actual thieves.
14At 3.23 am on 15 December 2017 you used the vehicle to drive to the United Service Station in Nagambie and forced entry into the premises. You were unable to gain entry to the cigarette cabinet, but $4,000 worth of damage was caused obtaining entry. You both then drove to the IGA in Nagambie and used hand-held tools to force a door, causing approximately $4,000 worth of damage. Cigarettes to the value of $10,000 were taken from that business.
15Three days later, on 18 December 2017, Charge 10 occurs. On this occasion you, Mr Matthews and Mr Hassall, attended at the Yea Newsagency in the stolen white Nissan Navara utility, the subject of Charge 6. You used an implement on the heavy double wooden door but were unsuccessful in gaining entry, which forms the basis for Charge 10, attempted burglary. You caused approximately $100 worth of damage in that process.
16Then on 20 December 2017 you committed four separate sets of offending on the same day.
17At approximately 2 am you, Mr Hassall and Mr Matthews attended the Yarraville Footscray Bowling Club in Yarraville and used a sledge hammer and other tools to smash glass in the front entrance, causing approximately $2,000 worth of damage. You were again in a stolen car which on this occasion is not the subject of charge. Once inside a sledge hammer was used to smash a freestanding ATM - likely to be a far more lucrative target than the cigarettes of the past - but you were unsuccessful in gaining entry to the machine.
18Undeterred you then attended at Total Tools in Tullamarine at 2.50 am and used the vehicle to ram the roller door of that premises. You were unsuccessful in gaining entry and left. It is estimated that approximately $2,000 worth of damage was caused to the premises.
19At approximately 3.20 am you attended Coles Express Point Cook where a sledge hammer was used to smash the front sliding glass door. You then used the same item to gain entry into a back office, causing approximately $1,000 worth of damage, but left when an alarm was tripped.
20At approximately 4.30 am you both then travelled to the Gladstone Park shopping centre, where you drove into the large glass doors of that centre, completely smashing them. Once inside, the vehicle was driven through the complex to three ATM machines. The vehicle rammed these machines several times. Each of you and an unknown third party then attempted to attach straps to the ATMs. You then all re-entered the vehicle and again proceeded to ram the ATMs. You, Mr Matthews, having exited the vehicle received an electric shock attempting to pull the cord from one of the ATMs.
21After this unsuccessful burglary you left the complex by driving through a separate set of glass doors. I am told the total amount of damage caused by the driving is approximated at $65,000. The burglaries on 20 December 2017 where ATM machines were clearly your focus, represents a targeting of items of higher value than previously, your offending in this context had become more brazen, more serious and more ostentatious.
22On 24 December 2017 at approximately 5.20 am you, Mr Hassall and Mr Matthews drove a stolen Toyota Kluger to Stihl Mowers and More in Campbellfield. It was on this date that Charges 15 to 17 occur. You, Mr Matthews gained access to a showroom using tools to break pin locks, causing approximately $3,870 worth of damage in the process. Once inside, you cut multiple security wires holding chainsaws in place and removing various saws to the value of $9,000, which is not the subject of charge. You left when an employee arrived to start the working day.
23You then drove to the premises at Uni Hill Factory Outlet in Bundoora. The Kluger motor vehicle was reversed into a storage area of the shopping complex secured by garage doors. Once inside you made your way to a storage unit belonging to Country Road, where you forcibly gained and stole clothing estimated to be worth $10,000, also not the subject of charge. A short time later you went to Podium Sports in the same complex, again causing damage and obtaining clothing valued at $2,000 before leaving.
24Neither the damage or theft is the subject of charge, save for that particularised in Charge 17, which is one of criminal damage approximated at $4,074 caused to the Uni Hill complex, which excludes the damage to the individual businesses. This offending, particularly that contained in Charge 16, is again representative of focus on greater reward.
25Charges 18 to 19 occur on 1 January 2018, New Year's Day. On that date you, Mr Hassall and Mr Matthews, attended at the South Morang Carwash in the Kluger, this time accompanied by an unknown third party. As on 20 December 2017 there were now three of you engaged in your, by now well established mode of offending. You, Mr Matthews, struck what was referred to as an “entry wizard machine,” with force numerous times with a wood splitter before extracting approximately $40 but causing $52,876.87 damage to that machine. Such damage being the subject of Charge 19, criminal damage. The theft of $40 is not the subject of charge.
26Then, at approximately 3.45 am, you, Mr Matthews and Mr Hassall, with the unknown third person, attended at the St Helena Marketplace in Aqueduct Road. You attended in the Kluger vehicle and a stolen Nissan Navara wagon, (also not the subject of charge), and rammed the large glass sliding doors to the complex to gain entry. Once inside you, Mr Matthews, as the driver of the Navara, rammed the ATMs at speed in an attempt to dislodge them. You grabbed wire cutters to assist in freeing an ATM and dragged it towards the Kluger with the other parties. You left when startled by workers leaving the ATM a short distance from the Kluger. I again see the burglary the subject of this offending to be at the higher end of the burglaries committed over the five-week period.
27The next day, on 2 January 2018, the 14th incident in time occurred in the form of burglary related offending. You, Mr Hassall and Mr Matthews attended at the Uni Hill Factory Outlet in Bundoora for what was the second time. On this occasion you were in the stolen Kluger motor vehicle which you used to ram glass sliding doors to gain entry. The vehicle came to stop within the complex at a kiosk referred to as “Jewel Lane.” Again, an unknown third party was with you.
28It is this burglary which will form the base sentence when it comes to sentencing, as I do view it as the most serious, given it was the second approach to the same establishment, using a team of 3 and where you would have known what was available to you to steal. There was a continued use of stolen cars in a calculated ram-raid system to affect your burglary, with the obvious likely damage. The intended target clearly being one, again, of high value.
29The unknown male used a sledgehammer to smash glass cabinets full of watches and jewellery. Approximately $28,000 worth of damage to shop fittings was caused. $100,000 worth of designer items were taken which, on this occasion, is the subject of a theft charge.
30On the way out of the premises the vehicle collided with the Donut King kiosk causing approximately $18,900 worth of damage and drove at speed through a separate exit from the premises, smashing its way out and causing another $72,000 worth of damage to that facility.
31On 4 January 2018 Charges 22 to 24 occur. This time it is Mr Matthews on his own. At approximately 4 am Mr Matthews attended at the United petrol station in Mitcham in a stolen Kia Cerato. You, Mr Matthews, reversed that vehicle into a large glass window of the premises to gain entry, causing approximately $2,000 worth of damage. Cigarettes were stolen from the premises during the burglary which is the subject of the theft charge. No value has been attributed to this theft which will need to be reflected in penalty in Mr Matthews favour.
32At approximately 5.45 am you, Mr Matthews, then drove to the rear of The Bottle-O in Yarra Glen in the same vehicle. You checked the premises for possible entry points before returning to the vehicle and obtaining a crowbar, which you used in an attempt to force the door. You left after being startled by a passing motor vehicle, forming the basis for Charge 24, attempted burglary.
335 January 2018 was the final series of offending. At approximately 2.16 am all three of you attended at the BP service station in Euroa in a stolen motor vehicle registered 474 WSK. This vehicle had been rented from Enterprise rent-a-car, South Melbourne on 17 December 2017, not said to be by any of you, and was not returned pursuant to the rental agreement.
34This stolen vehicle is the subject of charge and I am told that it is put on the basis that each of you knowingly drove or were a passenger in the vehicle, as per the previous occasions where theft of motor car has actually been charged on this indictment. Where a stolen car is used to affect a burglary, care needs to be taken in sentence to avoid double punishment.
35A rear door of the premises was forced and once inside a cigarette cabinet was also forced and cigarettes to the value of $7,000 were taken. During the search of the premises by you, approximately $2,000 in damage was caused. In what was another curiosity to me as how this matter resolved you, Mr Tibos, are not charged with this burglary but are said to be present and are charged with handling stolen goods from this burglary, the cigarettes taken.
36A witness heard the alarm and called “000.” You all returned to the car and remained in the Euroa area whilst police were processing this crime scene. Again, undeterred, at approximately 2.45 am all three of you attended at the Caltex in Euroa. You, Mr Matthews and Mr Hassall used jemmy bars to force a front sliding door of the premises open while Mr Tibos remained outside acting as a lookout. All three of you are charged with this burglary.
37Shortly after entry was gained, members from the Eastern Region Crime Squad and the Echo Taskforce attended at the service station, blocking exit from it and access to the vehicle. Police announced their presence by means of loudspeaker resulting in you, Mr Hassall attempting to escape by throwing yourself through a glass window. You were ultimately subdued by the use of OC foam and the assistance of other police officers. You, Mr Matthews, were located inside the premises and ran to a rear storeroom. You attempted to run past police members but were captured.
38You, Mr Tibos were apprehended after a struggle which forms the basis of Charge 29. You were observed by police standing near the Kia Cerato motor vehicle. Upon identifying police presence, you jumped into the driver's seat of the vehicle and drove it forward into an unmarked police vehicle and then placed the vehicle in reverse, which hit a vehicle containing three police members and causing damage to the front panel of that vehicle. This was not said to be an intentional act and will not be taken into account.
39You then refused to leave the vehicle when directed to do so. The driver's side of the vehicle was smashed with a baton by police and OC foam used. You exited the vehicle and attempted to grab Detective Senior Constable Pickett's baton and then subsequently grabbed at his handcuff’s pouch and firearm holster during the struggle which then ensued. Detective Senior Constable Pickett received numerous scratches and abrasions to his face during this struggle and Sergeant Dwyer sustained a broken wrist, which included his scaphoid bone, which required surgery and significant recovery time. You were arrested and taken to the Shepparton Hospital for medical treatment.
40The vehicle in which you all travelled was searched by arresting police officers at the scene and items particularised in the Crown opening were recovered and included tools of your trade: a saw; sledgehammers; wood splitter; balaclavas; and a scanner, further supporting the gravamen of your offending and the planning involved.
41Subsequent searches of your respective residential premises were also undertaken. During the search of your premises, Mr Hassall, two shells of cartridge ammunition were located forming the basis for the summary offence of possess cartridge ammunition. You, Mr Tibos, were unfit to be interviewed. Neither of you, Mr Hassall or Mr Matthews, made admissions when interviewed by police.
42In addition, Mr Hassall, you contravened a condition of bail on 5 January 2018, by being outside your residence at the time of curfew. You also failed to report on bail on 10 occasions according to the summary offences to which you have also pleaded guilty.
43Observationally, for offending of this magnitude and type, the principle of general deterrence, that is putting others off like offending, looms large. Given your respective criminal histories to which I will shortly refer, there is also, in my view, an increased need for specific deterrence, that is putting each of you off such offending.
44Before I go on to assess the objective gravity of your offending, I note that there are numerous instances where the factual summary of the offending reveals significant damage and you have not been charged with causing criminal damage. Indeed, it is only that which occurred on 24 December 2017 and 1 January 2018 that is the subject of separate charge. Similarly, there are numerous instances where the Crown document refers to you using a stolen motor vehicle when that fact is also not the subject of separate charge when on other occasions it is.
45There are also instances where the facts allege thefts for which you have not been charged, for example offending on 4 December 2017, involving theft of cigarettes and a CCTV hard drive; offending on 24 December 2017, involving a theft of chain saws valued at $9,000; and theft of clothing from two separate businesses exceeding $12,000 in value.
46How such uncharged acts were to be used in sentencing each of you was a factor of considerable discussion in your plea hearings and I invited further submissions on two occasions to clarify these issues before being in a position to sentence.
47None of you are to be punished for offences for which you are not charged. I do not consider that the uncharged acts are a circumstance of aggravation warranting a conviction for a more serious offence, nor am I being asked to do so. In general terms they are facts which form part of or are connected with the offending itself, and the offences for which you are charged.
48Your use of a stolen car during the offending on 8 December 2017, 20 December 2017, 24 December 2017 and 1 January 2018 is a matter referred to in the agreed Crown opening, which is not the subject of charge. You will not be punished for these theft, rather your preparedness to use a vehicle unconnected with your offending further informs the circumstances of the offending itself and does elevate the assessment of its seriousness. It indicates premeditation.
49Your use of a vehicle which is not directly connected with any of you, is capable of assisting you to avoid detection, but essentially, in this case, it meant that it was not your property that would be harmed during the execution of your offending which was typified by using such vehicles to affect that entry.
50In terms of the thefts which occur on 4 December 2017 and 24 December 2017 and are not the subject of charge, you are not to be punished for those thefts either. Rather the theft of the cigarettes on 4 December 2017 and clothing on 24 December 2017 informs the serious nature of your intention on entry. That is one which involved a plan to steal such items, items of value, noting that the charge of burglary is complete on entry and will be dealt with in that way.
51I see the theft of the CCTV hard drive on 4 December 2017 as completely incidental to the burglary. That is, any intention to steal this item is likely to have been formed post-entry and to disguise your presence. It will not be taken into account in any way.
52The uncharged criminal damage events are numerous, occurring on 28 November 2017, 15 December 2017, 18 December 2017, 20 December 2017, 24 December 2017, 1 January 2018, 2 January 2018, 4 January 2018 and 5 January 2018. As is apparent from the Crown document each is vastly different in terms of the circumstances in which they occurred and their estimated value.
53During your offending on 24 November 2017, and this particularly relates to Mr Hassall and Mr Matthews, two of the events of 20 December 2017 and on 2 January 2018, damage was caused to affect theft. Identified damage was caused on exit for the last event of criminal behaviour occurring on 20 December 2017, that is Charge 14 and again on 2 January 2018.
54Unless otherwise stated I consider the damage caused to affect the charged offences as being relevant to an assessment of the commission of the offences for which you have been charged. The property damaged is inextricably linked to the element of entry for the burglaries and the intent to steal. It is relevant to your respective intention for the offences for which you are charged and also informs that intention, as being a systematic and deliberate plan to commit burglary and theft. Of course, there has to be a mode of entry and exit for any burglary which in itself, may or may not cause damage.
55In so doing I note the prosecution concession that, in terms of Charge 14, where it is said that approximately $65,000 worth of damage was caused on exit whilst you, Mr Hassall and Mr Matthews, were escaping the Gladstone Park shopping centre, that this is not the subject of charge and that the Crown do not seek to place much weight or emphasis on that fact. I do accept the submission on behalf of each of you, Mr Matthews and Mr Hassall, that it can be taken into account as part of the greater circumstances, but not to significantly aggravate the burglary which was complete by the time you fled. Independent of the damage caused on exit this is a very serious example of very serious offending in its own right and in the context of your other offences.
56In terms of the events which transpired on 2 January 2018 on what was the second visit to the Uni Hill Factory Outlet, $28,000 worth of damage was caused to affect the theft and some $18,900 of damage by way of accident when your vehicle collided with a kiosk. The $72,000 worth of damage to the facility referred to in the opening was apparently part of an agreement reached between counsel for the Crown and counsel for each of you, Mr Hassall and Mr Matthews - that damage relating to Charge 20 was to be rolled-up into that charge. I have made further enquiry as to how that is to be dealt with and am now told it was an agreement that I can take that damage into account.
57In terms of 2 January 2018, the accidental damage to the kiosk will not be taken into account. Otherwise the damage caused to affect the offence of theft of $100,000 worth of items and the burglary will be used to inform your intention, noting that doors were also rammed to gain entry to the centre. It will be used by me to assess the overall gravity. In any event, I do see this particular event as being the most serious in the offences with which I am to deal.
58The second attendance at Uni Hill is very serious offending in its own right and in the context of your other offences. It does in my view, represent a steady escalation of your offending to higher level targets and reward and again with callous disregard to the consequences.
59This approach does not apply to the circumstances where criminal damage is charged and appears on the indictment. In terms of Charge 16, damage caused to Uni Hill on the first burglary of that premises, I accept, as I have said, the need to avoid double punishment for the charged criminal damage and the burglary.
60I accept the only other instance in which criminal damage is the subject of charge, Charge 19, relates to the damage to the entry wizard machine in the amount of $52,876.87 and is independent of any burglary. This independence also needs to be reflected in penalty.
61It is perhaps axiomatic to say that all businesses targeted must have been affected in some way. Whilst I have no victim impact statements, I accept that your offending simply cannot be without its impact, especially on those smaller businesses in terms of being able to operate and repair their businesses after your offending, and the general inconvenience that must have been caused. Much of this spree occurred over the Christmas period.
62Your offending is properly categorised as extremely serious and is aggravated by its level of apparent planning and premeditation in the sense that you did access vehicles, appropriate equipment and attempted to disguise your appearance. You were in company, whether it be two or three of you, and using a system of “ram raids” to affect the offending. It was ongoing in nature in terms of its duration and gravity, gravity which appeared to increase in its effort to reap reward.
63Whilst identical in terms of motive, in my view, the charges on the indictment represent crimes of discreet seriousness, occurring on some 18 to 19 occasions. There is a need to reflect the gravity of your conduct and the fact that there are separate victims, albeit businesses, of your common intent. Any cumulation in sentence between charges to reflect these matters must also be reflective of the degree of overlap and the principles of totality, proportionality and parsimony.
64You, Mr Hassall and Mr Matthews, acted together in 26 of the 33 matters. You, Mr Tibos, were complicit with the other two accused with respect to the theft referred to in Charge 25, and the burglary in Charge 28 but are otherwise separately charged with two other matters.
65The parity principle demands that any sentence imposed reflects differences in the culpability and personal circumstances of co-offenders and avoids unjustifiable differences in co-offender sentences. The parity principle requires a judge to impose the same sentence for the same offending, unless there are distinguishing features in respective roles in that offending, or in other relevant sentencing considerations which warrant differential sentences.
66Where you, Mr Hassall and Mr Matthews are co- offenders, in my view each of you played an essential role in the offences in circumstances where your motivation, accessing money or goods to sell, was the same. You appear to be acting together with no defined leader or organiser on the evidence before me. There is no reason to form any other view that your moral culpability was both high and mutual, given your system and the number of offences, the gravity and planning involved, and all of this offending occurring within a relatively tight time frame.
67Parity does remain relevant to you, Mr Tibos, regarding Charges 25 and 28 but I do accept you played a significantly lesser role.
68I now turn to you as individuals and your personal circumstances.
BENJAMIN HASSALL
69Mr Hassall, you have a criminal history which commences in 2011 and most of which, in general terms, reflect driving offences and dishonesty related offences.
70On 6 December 2011 you appeared at Broadmeadows Magistrates' Court for driving offences and were convicted and fined $2,000. On 28 February 2012 you again appeared at Broadmeadows Magistrates' Court for charges of theft, attempt to commit indictable offence and going equipped to steal, for which you received an adjourned undertaking without conviction for a period of 12 months.
71On 2 August 2012 you appeared at Sunshine Magistrates' Court for driving offences for which you were placed on a 12-month corrections order without conviction. On 4 December of that year you appeared at Heidelberg Magistrates' Court for a charge of theft and received a fine of $300 without conviction. Then on 22 October 2014 you appeared at Heidelberg Magistrates' Court for charges of drive at a speed dangerous for which you received your first term of imprisonment. That was one of 1 month which was wholly suspended for a period of 12 months.
72On 21 April 2016 you were dealt with at the Heidelberg Magistrates' Court for charges of theft of motor vehicle, theft, dishonestly receive stolen goods, drive whilst suspended, fail to answer bail, commit indictable offence whilst on bail, contravene conduct conditions of bail for which you were convicted and placed on a 12-month community corrections order.
73It appears you subsequently breached this order by way of further offending. This further offending was dealt with at Heidelberg Magistrates' Court on 6 December 2016, for which you received your only immediate gaol sentence in that history, one of 6 months imprisonment, which was to be followed by a community corrections order of 18 months duration. On 24 August 2017 you received a further 12-month CCO.
74On 25 October 2017 Heidelberg Magistrates' Court dealt with a breach of the CCO which had been imposed upon you on 6 December 2016. This breach was found proven and the order was varied to a 24-month order. You were therefore subject to two corrections orders at the time of the offending before me, which is clearly the most serious in which you have been involved. It would appear from this history that you have failed to take up the opportunity offered to you by the Magistrates' Court for supervised rehabilitation and did so on multiple occasions.
75In terms of that history, you are not to be punished for this offending a second time, but it is largely one of dishonesty and breach of court orders which is relevant to the assessment that must be undertaken to your prospects of rehabilitation, and also the weight that needs to be given to denunciation, specific deterrence and indeed protecting the community. It does not appear at this stage that the imposition of gaol sentences, albeit only one, or supervisory orders, are causing you to adjust your resort to offending behaviour.
76Your inability to abide by court orders overall indicates a lack of respect for the law and raises concern in terms of your future prospects. Your offending was the subject of court orders is an aggravating feature. In the case of your bail offences, is the subject of separate charge and will be dealt with accordingly.
77Section16(3C) of the Sentencing Act 1991 requires that every term of imprisonment imposed on a person for an offence committed whilst released on bail must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender. With that in mind, the principle of totality also has application.
78The totality principle requires that where an offender is being sentenced to multiple terms or is otherwise to serve multiple sentences, then the sentences should ensure that the total sentence remains just and appropriate for the whole of the offending. This principle has application to all three of you in terms of the charges on the indictment and in your case, Mr Hassall, also to the summary offences which you had transferred to this court.
79I accept that you pleaded guilty at an early opportunity, the morning of your committal hearing, during which there were clearly extensive negotiations. Your plea of guilty has utilitarian value. It has saved the court the time and expense of what would have been protracted proceedings and the witnesses the trauma associated with having to give evidence. I accept that you are exhibiting remorse for your actions and all of these matters will be taken into account in your favour.
80I also take into account matters which are personal to you, as I am obliged to do. I am told you are presently 26 years of age and are the youngest of three siblings. You have an older sister, Ashleigh and an older half-brother, Damien, on your maternal side. Your father, Patrick works as a driver and storeman in a family business and your mother, Maxine, works in an industrial laundry. Both parents have visited you fortnightly whilst you have been in custody and you are fortunate to have their continued support.
81You grew up in the Preston area and instruct that you found your home environment to be tense due to the dynamics of your parent's relationship. You completed Year 10 at Northland Secondary College but were asked not to return, due to behavioural and truancy issues. You instruct that at school you experienced bullying, which affected both your behaviour and your willingness to attend. This was exacerbated by post-traumatic symptoms following a physical assault upon you at the age of 15 years.
82On leaving school you commenced a panel beating apprenticeship but did not finish the schooling component of that apprenticeship. Following the apprenticeship you worked in a number of construction related jobs. You report that, since leaving school, you have been employed about 80 per cent of the time. Indeed, in the lead-up to your arrest you had been employed as a fencer for six months, labourer for three months, and installed solar heating for a period of two months.
83Tendered on your behalf was a report authored by Ms Carla Lechner, clinical psychologist, dated 18 December 2018. I have had recourse to the contents of that report. You told Ms Lechner that when you were younger you would occasionally use ecstasy but did not use any other illicit substance until you commenced smoking ice about three years ago. You quickly developed a significant habit and were using about 1 gram or more a day. Your drug use led to the demise of your romantic relationship at that time, after which your drug use increased. You also began gambling which further fuelled your need for ready access to money.
84Ms Lechner's report indicates that you find ice gives you more confidence and when you are using you are, 'Living for the moment', with no regard for the consequences. At the time of your offending you were a daily smoker of ice. Indeed, it is in the context of this use that your offending has occurred, offending which made it patently clear that you had no regard for the consequences for you, or for anyone else. Of course, your drug use gives you no excuse for your offending. It simply sets the context.
85Although you were not formally assessed, Ms Lechner describes you as being of low average intelligence who, when sober, can to some degree reflect on the impact of your behaviour on yourself and on others. She reports that you present with symptoms of “stimulant use disorder in early remission in a controlled environment” but do not otherwise evidence symptoms of an underlying psychological or psychiatric disorder.
86You have a four-year-old daughter, Audrey, from a previous relationship and your mother brings her in to visit you in custody. You are currently in a supportive relationship with Nadja Blair who also visits you fortnightly and with whom you have daily phone contact. Ms Blair provided a character reference and she speaks of your remorse for the impact of your actions, both on the community and on those you care about. I take the contents of her reference into account, as I do the reference authored by your uncle, Phillip Hassall. It would appear that you remain well supported and I am told you are able to live with family upon your eventual release.
87You have also authored your own letter to this court, setting out the factors that you believe have contributed to your offending and your current insights into your offending. I do appreciate the efforts made in compiling this document but do find it is relatively self-serving and is of limited weight in the sentencing mix. Importantly, it expresses a desire to change in what now represents the longest period you have spent in custody. Two family members have unfortunately died during your remand, which you say furthers your resolve to remain drug free. I can only hope that you maintain this desire and the insights you have otherwise expressed.
88You were arrested and remanded on 5 January 2018. There have been some delays in the finalisation of matters which are not of your making. Your matter was adjourned when first listed on 25 January 2019 and then next listed on 23 May 2019, where it could not be reached. It came before me on 3 July and could not be completed on that day due to difficulties I raised with counsel relating to the Crown opening, which invited further submissions on two separate occasions. The resolution of this matter in the Magistrates' Court was a clear example to those involved in settlement negotiations of the need to also take the time and effort to resolve the factual basis for sentence. This should also be done in advance of any plea hearing.
89I take these delays into account in a general sense and in terms of the burden that has remained on each of you, awaiting the finalisation of this matter.
90Mr Hassall, during the time you have been on remand, you have used your time wisely. You have completed programs on “managing emotions” and a 24- hour drug and alcohol treatment program. You have completed some 11 vocational courses. Certificates confirming this have been tendered and will also be taken into account. You obtained a position of unit billet, performing cleaning duties which reflects how you have been regarded in the custodial setting. You have remained abstinent from drugs whilst in custody, supported by the urine screens which were tendered.
91Your approach to your remand further cements your expressed desire for positive change. Given that approach, your still relative youth, your family supports, and the unchallenged report of Ms Lechner, it appears that if you can get drugs out of your life, you do have remaining prospects for rehabilitation, even if they are somewhat guarded.
MATTHEWS
92Mr Matthews, you also have an admitted prior criminal history commencing in 2009 and primarily involving driving, dishonesty and violence. You have been required to serve at least five gaol terms.
93On 12 March 2009 you were dealt with at Heidelberg Magistrates' Court for a number of driving charges, for which you were fined, and you were also dealt with on this date for going equipped to steal, thefts and failing to answer bail, for which you were convicted and placed on an adjourned undertaking for 12 months.
94On 11 November 2011 you received a three-month term of imprisonment suspended for 12 months on a number of charges including recklessly cause serious injury, reckless conduct endangering serious injury, failing to stop on police request and burglary. On other charges, including burglary, theft and driving offences, you received a 12-month community-based order. You subsequently breached both orders by way of reoffending.
95On 23 October 2012 a suspended sentence was wholly restored, and you were ordered to serve three months of imprisonment. The reoffending included multiple counts of aggravated burglary with a person present, burglary, theft, retention of stolen goods and criminal damage, amongst others, for which you received a total effective sentence of two years and six months imprisonment with a non-parole period fixed at 18 months.
96On 9 October 2018 you were dealt with for breach of the community-based order where the Heidelberg Magistrates' Court resentenced you to six months imprisonment, partially suspended with the period to be served of two months imprisonment cumulative upon the sentence you were already serving at that time. You again breached this order by reoffending. The reoffending involved multiple charges of burglary, theft, handle stolen goods and bail offences for which you were sentenced on 8 March 2016, to a sentence of 14 months imprisonment combined with an 18-month community corrections order.
97On the same date the suspended sentence of four months was wholly restored and was to be served concurrently. You clearly have a relevant criminal history in terms of dishonesty and an inability to abide by court orders. This is relevant also to the assessment that needs to be undertaken in relation to you with regards to specific deterrence, denunciation and the need to protect the community, as well as assessing your prospects for rehabilitation.
98In terms of your personal circumstances you are presently 30 years of age and are the oldest of four siblings. Your parents, Jodie and Alan, separated when you were between 14 and 16 years of age. I accept that up until that point your childhood had been chaotic and troubling. Your mother had been a drug user and had severe mental health issues and was rarely available to parent. You describe your home life as, 'Full on', and that there were arguments between your parents. You have a recollection of the CATT team attending your home when your mother would have an episode, an experience which you recall scaring you.
99After your parents, separated your father took care of you and two of your siblings. Your youngest brother was raised by a maternal aunt. You had sporadic contact with your mother but did not feel safe with her and eventually your father stopped allowing contact. I understand you have not seen her for over four years. Your father re-partnered with Nadia, who has three children from a previous relationship. You have a positive relationship with your father and two siblings, Casey and Hayden, but no contact with your youngest brother, Bryce.
100You report moving around a lot but mostly living in the Meadow Heights area. During your primary school years, you had learning issues and had to repeat Grade 1. You report that you can now read and write, but that this is still somewhat difficult for you. You attended Craigieburn Secondary College until the start of Year 8 at which time you were given the option to leave. After leaving school, which was the option you did take, you worked briefly as a baker and doing a paper round. You have predominantly been employed as a fencer by your father. Since leaving school you estimate being employed 30 per cent of the time. You lived with your father until approximately 18 years of age, moving out due to your drug use and criminal behaviour.
101You have a supportive relationship with your fiancée, Tiffany. That has been in place since 2010 and you have two children together, Sienna aged seven and Bentley aged four. Tiffany has provided a character reference in support of you and has visited you regularly during your remand. In her letter she speaks of your extreme remorse for your actions and of the disappointment you feel for reverting back to old habits after having made significant improvements.
102Prior to these offences she reports that you have been drug free for some two years, you had been working full-time. You had been playing local football, you had been complying with the corrections order and were being both a good father and partner. It was in this context that you both decided to try for a third child, which sadly resulted in two miscarriages. Tiffany also writes that at the time of your offending you had been informed that you would not be paid over the Christmas period causing significant financial stress.
103This, coupled with what your partner describes as bad influences coming back into your life, led to what Tiffany observed to be a decline in your mental state. You did admit to her that you had been using drugs and you also asked for help. You both tried to get help but struggled to find services that were open at that time of the year. Only days later you were arrested. Tiffany otherwise describes you as, 'Beautiful, loyal, kind hearted, caring, who would do anything for anyone'. You are fortunate to have her ongoing support.
104Of course, the other factor in play at the time of your offending was your use of the drug ice. I have had recourse to a report tendered on your behalf authored by Carla Lechner dated 20 May 2019. As already described, she is a clinical psychologist. I have taken the contents of her report into account. She notes that you present with symptoms of “stimulant use disorder in early remission in a controlled environment.” Ms Lechner found that you are evidencing a range of symptoms of depression at a clinical level and fulfil the criteria for a diagnosis of major depressive disorder. This part of her opinion was not relied on to reduce your moral culpability.
105She also notes that whilst your low mood is partly reactive to your current situation and pending court hearings, your history suggests that you have had a low mood for most of your life. You have commenced anti- depressant medication at various stages but did not continue with its use. Ms Lechner is of the view that your offending has arisen in the setting of a long standing and chronic drug addiction problem, and that you need drug rehabilitation and counselling to minimise your risk of relapse into drug use upon release into the community. She assessed your risk of relapse as being one of “moderate high.”
106In your interview with Ms Lechner you expressed remorse for the effects of your actions on the victims and on your family. I certainly take those expressions into account as I did for Mr Hassall. You indicated a desire to complete as many programs in custody as possible and the insight that you need structure of parole upon release.
107You have also written your own letter to the court in which you express your remorse and plans for a positive future. As I said to Mr Hassall, while such letters carry limited weight, I do invite you to hold on to your expressed intentions.
108I have also taken into account the character reference tendered as authored by Ms Catherine Natalie Goodwin. She also refers to your expressed remorse and desire to provide a more positive life for Tiffany and for your children.
109All your urine screens in custody have been negative to illicit substances and you reported requesting to be placed in isolation due to concerns about confrontations with another prisoner. You have also completed programs including a drug and alcohol program, relapse prevention and educative courses. It would appear that you are also trying to use your remand time wisely.
110I do accept the submission made on your behalf that your prospects for rehabilitation are guarded and clearly contingent on you staying off drugs, but also that you do have protective factors in terms of your supportive relationships and you, like Mr Hassall, have job skills.
111Looking at your personal circumstances, your criminal history is objectively more serious than that of Mr Hassall. I am told that you have had two sentences of imprisonment for commercial burglaries, which further inform your level of moral culpability for this offending. However, as I have already referred, Mr Hassall was on bail and a community correction order at the time of his offending. I see little basis to distinguish between either of you in terms of your future prospects, your personal circumstances overall including your ages, your role in the offending, or in terms of the penalties that should be imposed for that offending.
112I also take into account, Mr Matthews, your plea of guilty which I also accept has occurred at a relatively early time. It does have utilitarian value, has clearly saved court time and expense and the witnesses, I do accept, that it is also one borne of remorse. These are factors which will be taken into account in your favour.
113In an effort to assist me with fixing an appropriate penalty your counsel referred me to three decisions in his written submissions. Those being that of DPP v Adams; Paranihi; Soltan [2011] VCSA 77, Minotto v The Queen [2010] VSCA 310 and The Queen v Berry [2009] VSCA 219. No other counsel chose to refer to me to any comparative cases. I have had recourse to each of these decisions and they are of some assistance, albeit naturally there are points for distinction. I do see your offending as far more serious in terms of its gravity, in terms of the burglaries particularly, than the cases to which I was referred.
PETER TIBOS
114I now turn to you, Mr Tibos. In terms of your role in this offending you are clearly in a vastly different situation than that of your co-offenders, given your relatively limited contribution in terms of both your role and the duration of your involvement, but you have the most serious of criminal histories.
115You have apparently known Mr Hassall since you were about 15 years of age and met Mr Matthews in gaol. On the night of your offending you had smoked ice with that pair.
116You say that Mr Hassall and Mr Matthews indicated that they were going for a drive and you knew what this meant. Of course, this was quite a drive, given you travelled to Euroa. You say that you did not want to go with them but were pushed and encouraged to do so and were vulnerable due to your perceived financial difficulties which you were then experiencing. You do acknowledge that it was your decision to go with them. A decision about which you express much regret.
117There is no question that your offending was serious. You received stolen goods in the form of cigarettes worth $7,000 and then played, what can only be described as a crucial role, as lookout while your co- accused stage a high end and well organised burglary after the trip to Euroa.
118When you identified police presence you sought to flee and resisted police members in that stolen vehicle and in circumstances that could have had the direst of consequences. It is only by good fortune rather than good management that that was not the case. I consider this charge of resist an emergency worker to be at the higher end. Two police officers received injuries with Sergeant Dwyer requiring surgery to a broken wrist.
119In terms of your prior criminal history, it commences in 2010. Your first adult court appearance was on 3 August 2011 at Heidelberg Magistrates' Court at which time you were convicted and sentenced to a 12-month community-based order for charges of unlicensed driving, use unregistered motor vehicle, criminal damage and fail to answer bail. You reoffended during the operational period of this order for which you were sentenced to three months imprisonment wholly suspended for 18 months, for a number of driving offences, theft and criminal damage.
120You contravened this order by reoffending during the operational period of the suspended sentence and the sentence of three months was wholly restored on 4 March 2013. You were required to serve this sentence by way of youth training centre sentence which you also received for offences of violence.
121You were next sentenced at the Melbourne County Court on 28 May 2013 to a total effective sentence of four years imprisonment with a non-parole period of two years and four months imprisonment for offences of aggravated burglary, recklessly cause serious injury and making threats to kill. You would have been around 20 at this time. Whilst serving this sentence you were dealt with at the Heidelberg Magistrates' Court on 14 June 2013 for threat to inflict serious injury and use carriage service to menace, for which you received a sentence of six months to be served concurrently.
122You were again dealt with on 9 October of that year for a number of driving offences for which you received three months imprisonment to be served cumulatively. You did not receive the benefits of a supportive release on parole and instead served the full sentence of four years and three months. You were released on 26 August 2017 and this offending commenced shortly thereafter when, without targeted supervision, you quickly returned to drug use.
123Your criminal history is relevant in the same way I have already referred. You are not to be punished for this offending a second time, but it is used to assess firstly your prospects for rehabilitation and, also again, the weight that needs to be given to denunciation, specific deterrence and protecting the community from you. In your case it also does not appear that at this stage the imposition of gaol sentences nor supervisory orders, albeit the last being some time ago, that such orders are facilitating positive change.
124I also take into account matters personal to you. You are presently 27 years and are the youngest of four siblings. You were born in Queensland and your family subsequently moved to Victoria when you were around eight. Your parents were both drug users. You regularly witnessed and were subjected to domestic violence. You describe your upbringing as significantly dysfunctional and I accept that this was so. Your father passed away suddenly when you were 12 or 13 years of age from prostate cancer. You instructed that you had a close relationship with him. Your mother was unwell for many years with terminal liver cancer and passed away when you were 18 years old.
125You have a limited education, leaving school by Year 9. You have two sisters and a brother. You only have limited contact with one of those siblings.
126You have been in a long-term relationship with Kayla Fox-McMahon since 2010 and have an eight-year-old daughter, Tesharna. I received a character reference from your partner, Kayla. In that letter she speaks of your remorse for this offending. She remains supportive of you and remains hopeful for a better future for you, for her and for your daughter. I have taken the contents of her reference into account.
127I have also had recourse to a psychological report authored by Jeffrey Cummins, psychologist dated 22 May 2019. He had previously assessed you in 2010. In a report apparently dated 13 August 2010 he diagnosed you as suffering from masked depression as part of a chronic adjustment disorder. Since that assessment you have not received any mental health treatment. In the report before me, you report to him experimenting with cannabis in your mid-teenage years and then with methamphetamine around the age of 16 and 17 years.
128Between your release in 2017 and your arrest for these matters, you told Mr Cummins that you were using methamphetamine infrequently, this is in contrast with the submissions made on your behalf and the content of the CISP reports filed on your behalf. You told Mr Cummins that you did not think you were significantly adversely intoxicated on methamphetamine at the time of your offending. You told him that you had ceased using methamphetamine and you had never been dependent on it. He notes that you presented as being of below average intelligence and that you presented as being mildly anxious and moderately depressed. I accept that the context for your offending was also one of drug use which does not provide you with an excuse.
129In Mr Cummins' opinion you continue to suffer from a trauma related disorder, namely an adjustment disorder with mixed disturbance of emotions and conduct which was triggered by your dysfunctional upbringing. In his opinion, your comments at interview indicated that your dysfunctional upbringing skewed your moral compass to such an extent that thereafter you were vulnerable to adverse influence.
130There is nothing in the report of Mr Cummins which reduces your moral culpability for your offending nor which, in my view, would make any time in custody more burdensome. I do say the same in relation to the psychological reports tendered on behalf of Mr Hassall and Mr Matthews.
131In your case, Mr Tibos, I have also received two CISP reports which is the Court Integrated Services Program. In the report dated 6 March 2018 you speak of your long-term use of methamphetamine and your return to use upon release in 2017. You report to the writer of the CISP reports that you never dealt with the loss of your father. You see the loss of your father, coupled with a lack of support systems in your life at this time, as contributing factors to your intersection with the criminal justice system.
132You report feeling that you had no support in the community after being released from prison in 2017 and to feeling overwhelmed at the prospect at surviving on the outside. Within six weeks of your release you had fallen back into negative peer groups. You felt that if you had received supports upon release, you may not have ended up back in custody. In a subsequent report dated 25 June 2018 you advised CISP that you had been working full-time since being released on bail and had obtained a mental health care plan. You had been attending appointments with Karen East to address drug issues and to develop relapse prevention strategy.
133You had at that time, maintained regular contact with the CISP service and they were of the view that you had taken advantage of the supports made available to you. These reports would indicate that you are capable of being supervised in the community. What augers against this is the fact that you spent 45 days in custody for breach of bail, before you were released in December 2018 to reside with your partner, her mother and your daughter. You again became gainfully employed. In the past you have worked intermittently in cleaning and labouring work.
134In January this year you were employed as a labourer for a fencing company, Northwire Fencing. I have received two references from the owner of that company who speaks of your punctuality, your reliability and also describes you as hard working. He indicates that he is willing to work in any community work requirements should that be imposed and clearly offers you continued employment. I am told there has been further offending. You were remanded into custody on 5 August of 2019, where you remain. This offending still needs to be dealt with and I am told it is your intention to plead guilty.
135You also have protective factors in terms of your long-standing relationship and employment, but these factors are currently not stopping your resort to offending. It would appear that you also have to deal with issues in your past and your drug use and abuse, in order to lift the assessment of your prospects of rehabilitation, which can also only be otherwise described as guarded.
136Your counsel has submitted that a combination sentence, that is the imposition of a gaol term in combination with a community corrections order would accommodate all relevant sentencing considerations and would offer you the benefits of supportive release. The Crown did not take issue with the submission other than to submit that your available pre-sentence detention of 126 days would be insufficient in terms of the imprisonment component of such an order in the proper consideration of the gravity of your offending and the other factors to which I have referred.
137I was prepared to have an assessment undertaken as to your suitability for such an order. An assessment outcome report dated 28 August 2019, at which time you were back in custody, assesses you as being a high risk of reoffending. It also describes you as having engaged appropriately with the assessment process and as having identified that your release from a lengthy prison sentence without supports contributed to your relapse into drug use and consequential offending. You are described as being highly motivated to return to family and working life.
138In your case I also accept that you pleaded guilty at an early opportunity, that it too has utilitarian benefit, has facilitated the course of justice and does demonstrate remorse. You will also have the full benefit of your plea in the sentence to be imposed. I am satisfied in your case, that the submissions made, effectively by both parties as to how I am to sentence, has merit.
139In an overall sense the basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing each of you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims. I am also required to balance the interests of the community in denouncing criminal conduct, with the interests the community clearly has in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society. I do denounce your criminal conduct.
140I have also taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case. I have also taken into account current sentencing practices for the offences to which you have pleaded guilty.
141Whilst I have referred to the weight that must be given in this case to deterrence, both general and specific, denunciation and protection of the community, I must also ensure that any sentences imposed, particularly as they relate to Mr Hassall and Mr Matthews are not crushing, and that any sentence imposed is appropriate to the offence which has been committed. This is where the principles of totality and proportionality have their role to play. The door has not been shut on future prospects of any one of you, given the matters raised. It is here that I focus my consideration to an appropriate period on parole.
142Whilst during the course of the plea hearings there has been much discussion about the imposition of an aggregate sentence for the “ram raid” offending, and I am of the view that whilst an aggregate would have been available, in light of those discussions, I have determined to impose individual sentences on each count. Where burglary and theft are charged, I still need to reflect the separate offending, but I accept the submission that there should be substantial concurrency between offending which occurs in the same place and at the same time.
143The penalties imposed for the burglaries, particularly, are reflective of their ongoing nature and my assessment of their objective gravity. Bearing this in mind, for some of the less serious matters I have chosen to make no orders for cumulation given the sentence to be imposed overall and where offences are so closely connected, that I do have to be cautious of double punishment.
144I make the ancillary orders as sought for forfeiture and disposal, as per the applications made. Before I do turn to sentence, each of you have been charged with offences of theft of motor car, you, Mr Hassall and Mr Matthews, on three occasions during this crime spree, and you, Mr Tibos on 5 January 2018.
145You each have relevant histories and it is sought by the Crown that I make orders against your licence in accordance with s.89(4) of the Sentencing Act, which requires me to do so in any event in the case of conviction. Mr Hassall and Mr Matthews, any licence held by either of you will be cancelled and disqualified for a period of three years. For you, Mr Tibos any licence held will be cancelled and disqualified for a period of 14 months.
146As indicated at the outset, I propose to deal with the sentence for Mr Tibos first.
SENTENCE - TIBOS
147In relation to Charge 25, theft of motor car, Mr Tibos you will be sentenced to four months imprisonment;
148On Charge 28, that of burglary, you will be convicted and sentenced to 12 months imprisonment, which is the base sentence;
149On Charge 29, resist emergency worker you will be convicted and sentenced to 10 months; and
150On Charge 30, that of handling stolen goods, you will be convicted and sentenced to four months.
1512 months of the sentence imposed on Charge 29 is cumulative on the base sentence. The other sentences are concurrent given your limited role. That forms a total effective sentence of 14 months of imprisonment. I reckon 126 days as having already been served. This term will be combined with a community correction order of 18 months to give you that supported release. It will have a therapeutic component only which will include supervision, drug treatment, mental health treatment and programs to reduce your offending.
152I see the gaol term as reflective of punishment, deterrence and denunciation whilst the length of the community corrections order is also reflective of these factors it is designed to provide you with supportive release to enhance your prospects for rehabilitation.
153In addition to the conditions that I have imposed you should be aware that there are standard conditions. The first and foremost of those is that you must not commit any other offence during the 18-month period which could be punished by imprisonment. You must also report within two working days from your release from custody to the nearest community corrections office. You are also required to advise your corrections office of any change of address of where you are living or working and must do so within two clear working days.
154It is the term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a community corrections officer. You are not to leave the State of Victoria without the prior permission of your supervising community correction office.
155You should be under no illusion that this outcome presents you with an opportunity to further change your life in a positive fashion, should you choose to take up that opportunity on this occasion.
156This order can be breached if you do not comply with it in terms of the conditions or reoffend during its operation. If you do so you will be required to appear before me for what is referred to as a contravention hearing. This may require me to resentence you for the original charges, as well as considering a charge of contravention of the corrections order. I cannot place you on that order unless you are prepared to sign documents to that effect. Are you prepared to do so?
157ACCUSED TIBOS: Ah, how long before (indistinct).
158HER HONOUR: That would take me some time and effort to consider. I will give you the opportunity to speak to Ms Kennedy in a moment.
SENTENCE – HASSALL & MATTHEWS
159Before I turn to the overall sentences for Mr Hassall and Mr Matthews, in terms of Mr Hassall in relation to the three bail related summary offences, I intend to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts or form or are part of a series of events that are the same or similar character. In so doing and taking into account the provisions in s.16(3C) which I have referred, I do bear in mind the principles of totality and proportionality between these charges and with the sentence to be imposed on the indictment overall.
160In relation to the three bail offences you are convicted and sentenced to an aggregate of two months, but in light of the other sentences I am to impose, I have chosen not to cumulate any of this aggregate. In terms of the ammunition offence, you are convicted and discharged in light of the other offences which I am otherwise imposing this day.
161I attach a chart breaking down the individual sentence for each of you for each charge and the cumulation imposed.
162In relation to Charge 1, theft, you are each convicted and sentenced to eight months imprisonment;
163In relation to Charge 2, burglary, you are each convicted to 18 months imprisonment, of which two months is cumulative on the base sentence;
164In relation to Charge 3, theft, you are each convicted and sentenced to 12 months imprisonment, of which one month is cumulative on the base sentence and on each other;
165On Charge 4, burglary, you are each convicted and sentenced to 18 months imprisonment. Again one month is cumulative on the base sentence and other sentences imposed;
166Charge 5, burglary, you are convicted and sentenced to 18 months imprisonment, of which one month is cumulative on the base sentence and other sentences imposed;
167Charge 6, theft, each convicted and sentenced to 10 months. That relates to the theft of motor car used to affect the ram raid;
168Charge 7, burglary, two years for each of you, of which two months is again cumulative on each other and cumulative on the base sentence;
169Charge 8, burglary, each of you are convicted and sentenced to two years imprisonment. Again, two months is cumulative on the base sentence and on other sentences imposed;
170Charge 9, theft, each of you are convicted and sentenced to 12 months imprisonment, of which one month is cumulative on the base sentence and other sentences imposed;
171Charge 10, attempted burglary, each of you are convicted and sentenced to nine months imprisonment. Again, one month is cumulative on other orders made;
172Charge 11, burglary, each of you are convicted and sentenced to 30 months imprisonment of which two months is cumulative on the base sentence and other sentences imposed;
173Charge 12, attempted burglary, each of you are convicted and sentenced to 12 months imprisonment, of which one month is made cumulative on other sentences imposed;
174Charge 13, burglary, each of you is convicted and sentenced to two years imprisonment of which two months is cumulative on the base sentence and other sentences imposed;
175Charge 14, burglary, each of you are convicted and sentenced to three years imprisonment of which two months is cumulative on other sentences imposed by way of base sentence and other sentences;
176Charge 15, burglary, each of you is convicted and sentenced to two years imprisonment of which two months is cumulative on the base sentence and other sentences imposed;
177Charge 16, each of you is convicted and sentenced to 30 months imprisonment, of which two months is again cumulative;
178In relation to the damage occurred as part and parcel of this offending you are convicted and sentenced to 12 months imprisonment. There is no cumulation;
179In relation to Charge 18, burglary, each of you is convicted and sentenced to 30 months imprisonment of which two months is cumulative on the base sentence and other sentences imposed;
180In relation to the damage property which relates to the entry wizard machine and is independent of any burglary, you are each convicted and sentenced to 18 months imprisonment of which two months is cumulative on the base sentence and other sentences imposed.
181As indicated it is Charge 20 which is the base sentence and that is one of three years imprisonment;
182Charge 21, theft, you are each convicted and sentenced to two years imprisonment, this was the theft of $100,000 worth of items. Two months of the sentence imposed for the theft is cumulative on other sentences imposed on the base sentence.
183I now step out in relation to Mr Matthews for the offending which he committed on his own.
184In relation to Charge 22, burglary, Mr Matthews is convicted and sentenced to two years imprisonment of which two months is cumulative;
185In relation to the theft, you are convicted and sentenced to 12 months. There is no order for cumulation;
186In relation to the attempted burglary you are convicted and sentenced to 12 months and there is one month cumulation on that count;
187Returning now to the dual offending,
188In relation to Charge 25, theft which relates to theft of motor car, Mr Hassall and Mr Matthews are each convicted and sentenced to 12 months imprisonment. There is no order for cumulation given the way the vehicle was used;
189In relation to Charge 26, burglary, you are each convicted and sentenced to two years imprisonment of which two months is again cumulative on other sentences imposed and on the base sentence;
190In relation to the theft of the cigarettes, each of you are convicted and sentenced to 12 months imprisonment of which one month is made cumulative on other sentences imposed and on the base sentence;
191In relation to the burglary charge, Charge 28, each are convicted and sentenced to two years of which again, two months is cumulative;
192In relation to the negligently deal with proceeds of crime, which is Charge 31 and relates to Mr Matthews only, three months imprisonment, no order for cumulation.
193In relation to the possess drug of dependence Charge 32, which relates to Mr Hassall only, 14 days imprisonment. No order for cumulation.
194In relation to Charge 33, which relates to Mr Matthews only, six months imprisonment. No order for cumulation;
195I have already dealt with the aggregate sentence in relation to the bail offences.
196The total effective sentence for Mr Hassall, it is one of five years and nine months imprisonment, of which I set a non-parole period of three years and 10 months; 658 days will be reckoned as served. Section 6AAA of the Sentencing Act 1991 requires me to state the sentence that would have been imposed if it had not been a plea of guilty. But for the plea of guilty, I would have imposed a sentence of seven years and six months imprisonment with a minimum of five years before being eligible for parole.
197In Mr Matthews case, the total effective sentence I impose is one of six years imprisonment. Again, 658 days is reckoned as served and I set a non-parole period of four years imprisonment. But for this plea of guilty, a sentence of seven years and nine months imprisonment with a period of five years and two months would have been imposed.
198I will stand down temporarily so that everybody can look at those sentences in the chart and so that Ms Kennedy can deal with her issues and I will return when I am told I am in a position to do so. I will just be out the back.
(Short adjournment.)
199MS DICKSON: Thank you for that opportunity, Your Honour. I have spoken ‑ ‑ ‑
200HER HONOUR: Just pardon me for a moment. Anything arising in relation to Mr Hassall or Mr Matthews?
201MR TERRY: No issues arising, Your Honour, in relation to Mr Matthews.
202HER HONOUR: All right. Well if those two could be removed then, while I deal with the matter of Tibos. Sorry, was there something, Mr Terry?
203MR TERRY: No. No issues, Your Honour.
204MR REARDON: No, Your Honour.
205HER HONOUR: All right. Is that possible? Can we please remove Mr Hassall and Mr Matthews? You gentlemen are also excused, unless you wish to remain.
206MR TERRY: Thank you, Your Honour.
207MR REARDON: Please the court. Thank you, Your Honour.
208HER HONOUR: Thank you for all your assistance in relation to this matter which was highly complicated, or I found it to be. Speaking of complicated, Ms Kennedy.
209MS KENNEDY: No, I have spoken to Mr Tibos, Your Honour. He is willing to sign the corrections order and accept sentence as it was indicated, if he accepted.
210HER HONOUR: All right. He can obviously do something about that.
211MS KENNEDY: He can, yes.
212HER HONOUR: Yes. All right then. I will have it handed to you perhaps, Ms Kennedy, and if you would like to approach Mr Tibos?
213MS KENNEDY: Sure. Thank you, Your Honour. Thank you.
214HER HONOUR: All right, well if there is nothing further, I thank each of you for your assistance as well.
COUNT | DATE | OFFENCE | HASSALL | MATTHEWS | TIBOS | |||
| SENTENCE | CUMULATION | SENTENCE | CUMULATION | SENTENCE | CUMULATION | |||
| 1 | 28/11/17 | Theft | 8 months | - | 8 months | - | - | - |
| 2 | 28/11/17 | Burglary | 18 months | 2 months | 18 months | 2 months | - | - |
| 3 | 28/11/17 | Theft | 12 months | 1 month | 12 months | 1 month | - | - |
| 4 | 4/12/17 | Burglary | 18 months | 1 month | 18 months | 1 months | - | - |
| 5 | 8/12/17 | Burglary | 18 months | 1 month | 18 months | 1 month | - | - |
| 6 | 15/12/17 | Theft | 10 months | - | 10 months | - | - | - |
| 7 | 15/12/17 | Burglary | 2 years | 2 months | 2 years | 2 months | - | - |
| 8 | 15/12/17 | Burglary | 2 years | 2 months | 2 years | 2 months | - | - |
| 9 | 15/12/17 | Theft | 12 months | 1 month | 2 years | 1 month | - | - |
| 10 | 18/12/17 | Attempted Burglary | 9 months | 1 month | 9 months | 1 month | - | - |
| 11 | 20/12/17 | Burglary | 30 months | 2 months | 30 months | 2 months | - | - |
| 12 | 20/12/17 | Attempted Burglary | 12 months | 1 month | 12 months | 1 month | - | - |
| 13 | 20/12/17 | Burglary | 2 years | 2 months | 2 years | 2 months | - | - |
| 14 | 20/12/17 | Burglary | 3 years | 2 months | 3 years | 2 months | - | - |
| 15 | 24/12/17 | Burglary | 2 years | 2 months | 2 years | 2 months | - | |
| 16 | 24/12/17 | Burglary | 30 months | 2 months | 30 months | 2 months | ||
| 17 | 24/12/17 | Damage property | 12 months | 12 months | - | - | ||
| 18 | 1/01/18 | Burglary | 30 months | 2 months | 30 months | 2 months | - | - |
| 19 | 1/01/18 | Damage property | 18 months | 2 months | 18 months | 2 months | - | - |
| 20 | 2/01/18 | Burglary | 3 years | BASE | 3 years | BASE | - | - |
| 21 | 2/01/18 | Theft | 2 years | 2 months | 2 years | 2 months | - | - |
| 22 | 4/01/18 | Burglary | - | - | 2 years | 2 months | - | - |
| 23 | 4/01/18 | Theft | - | - | 12 months | - | - | - |
| 24 | 4/01/18 | Attempted burglary | - | - | 12 months | 1 month | - | - |
| 25 | 5/01/18 | Theft | 12 months | - | 12 months | - | 4 months | - |
| 26 | 5/01/18 | Burglary | 2 years | 2 months | 2 years | 2 months | - | - |
| 27 | 5/01/18 | Theft | 12 months | 1 month | 12 months | 1 month | - | - |
| 28 | 5/01/18 | Burglary | 2 years | 2 months | 2 years | 2 months | 12 months | BASE |
| 29 | 5/01/18 | Resist emergency worker | - | - | - | - | 10 months | 2 months |
| 30 | 5/01/18 | Handle stolen goods | - | - | - | - | 4 months | - |
| 31 | 5/01/18 | Negligently deal with proceeds of crime | - | - | 3 months | - | - | |
| 32 | 5/01/18 | Possess drug of dependence | 14 days | - | - | - | - | |
| 33 | 5/01/18 | Handle stolen goods | - | - | 6 months | - | - | |
| Summary charge 30 | 5/01/18 | Commit indictable offence on bail | 2 months (aggregate) | - | - | - | - | |
| Summary charge 31 | 5/01/18 | Contravene conduct condition of bail | 2 months (aggregate) | - | - | - | - | |
| Summary charge 32 | Nov 2017 – Jan 2018 | Contravene conduct condition of bail | 2 months (aggregate) | - | - | - | - | |
| Summary charge 64 | 5/01/18 | Possess cartridge ammunition | Convicted and discharged | - | - | - | - | |
| TOTAL EFFECTIVE SENTENCE | 5 years and 9 months. 658 days reckoned | 6 years 658 days reckoned | 14 months plus 18 months CCO 126 days reckoned | |||||
| NON-PAROLE PERIOD | 3 years and 10 months | 4 years | ||||||
| SECTION 6AAA: @ TES @ NPP | 7 years and 6 months with a minimum of 5 years | 7 years and 9 months with a minimum of 5 years and 2 months | 2 years and 2 months with a minimum of 18 months | |||||
‑ ‑ ‑