Director of Public Prosecutions v Mensur

[2023] VCC 989

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01471

DIRECTOR OF PUBLIC PROSECUTIONS

v

AHMAD MENSUR

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2023
DATE OF SENTENCE:	13 June 2023
CASE MAY BE CITED AS:	DPP v Mensur
MEDIUM NEUTRAL CITATION:	[2023] VCC 989

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords: Aggravated Burglary – Special reason – substantial and compelling – Exceptional and rare – Farmer – Fariah – Bugmy – mandatory sentencing – young offender

Legislation Cited: Sentencing Act 1991

Cases Cited: Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213; Filiz v The Queen [2014] VSCA 212; Pasinis v The Queen [2014] VSCA 97; DPP (Vic) v Reynolds (a pseudonym) [2022] VSCA 263; Azzopardi v The Queen [2011] 35 VR 43; Bugmy v The Queen (2013) 249 CLR 571; Bergman (a pseudonym) v The Queen [2021] VSCA 148; 289 A Crim R 503; Chaplin v R [2010] VSCA 145; Altun v R [2014] VSCA 46; Phillips v The Queen (2012) 37 VR 594; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308.

Sentence: 518 days imprisonment, a 2 year 6 month Community Correction Order, fine and licence suspension

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Kermath
For the Accused	Mr J. Moore

1HER HONOUR:

2Ahmad Mensur, you have pleaded guilty on indictment N10079046 to one charge of burglary, 2 charges of theft of motor vehicle, one charge of aggravated home invasion and 2 charges of possess a drug of dependence.

3In addition, you have consented to 3 summary related offences being dealt with by this court and have pleaded guilty to charge 11 commit indictable offence whilst on bail, charge 19, also commit an indictable offence whilst on bail and charge 22 which is going equipped to steal.

Circumstances of offending

4The agreed factual basis of your offending was contained in the summary of prosecution opening and that document was tendered on your plea.

5In summary, on 18 January 2022, at around lunchtime you and a co‑offender entered a Super Cheap Auto store and went to the staff area. You both hid in the back of the shop, waited for several staff to leave the area, and then your co-offender entered the space where staff lockers are kept. This area is not open to the public and that is the basis of Charge 1 burglary.

6You waited outside as a lookout whilst your co-offender went through the belongings of a female staff member and took her car keys. You both then left the store unnoticed and stole her car. CCTV captured your movements inside the store. The vehicle was later recovered in Heidelberg and that is the basis of Charge 2 theft of a motor vehicle.

7On 11 January 2022 in the very early hours of the morning you and four other co‑offenders entered a private home in Tarneit. The family who lived at the house, included two children who were aged 6 and 8, were sleeping in the upstairs bedrooms.

8Entry was gained to the property by smashing the glass panel near to the front door. Your offenders appeared to be armed with machetes, knives and crowbars. You were not carrying a weapon inside the premises. This is the basis of Charge 3 aggravated home invasion.

9The offenders were seen on CCTV inside the address walking on the lower levels looking for property to steal.

10The female resident woke up because she heard someone in her bedroom. She woke her husband who yelled at an offender, who ran back downstairs. The female resident gathered her two children and went to a balcony for safety. She saw two offenders out the front of the premises with a white Peugeot. CCTV shows an extremely frightened victim on the balcony screaming for help.

11CCTV also depicts an offender walk towards the front door holding a machete above his head. The male resident heard offenders downstairs and attempted to close his bedroom door to prevent them from re-entering. One of the offenders banged on the bedroom door with a machete, causing extensive damage. The male resident realised the door would not hold any longer, he opened it to find an offender with a machete held over his head.

12A co-offender entered the bedroom and demanded the victim’s belongings. The male resident handed over his and his wife’s wallet, containing their bank cards, driver licence and approximately $500. The co-offender also took the victim’s car keys that belonged to a white Toyota Yaris, and some of the offenders left the premises in the car. That is the basis of Charge 4 theft of motor vehicle. The female resident’s leather handbag, which contained several cards in her name, cosmetic items, sunglasses and other miscellaneous items was also stolen.

13You were captured on CCTV inside the premises, wearing a black Nike hoodie with white drawstrings and zips, and a white Nike tick on the left‑hand side and black shoes.

14Later on 11 January 2022, during an investigation for unrelated charges, police tracked you and your co-offenders to an address in Heidelberg West. Police observed a white Peugeot pull into the driveway, a male exit the vehicle and enter the address.

15The police spoke to a co-offender involved in the Tarneit offending. You were seen by police attempting to get into the roof cavity of the property. Police found you with a black backpack and you were arrested.

16At this time, you were wearing the items of clothing as depicted in the CCTV footage from the Tarneit address. You also had the property related to your offending, that is:

a.    the identification cards of the two residents of the Tarneit property;

b.    a pair of black Speed Knit gloves with grey surface, which was summary related offence 22 of going equipped to steal;

c.    a Snap Lock bag containing approximately 14 grams of cannabis Charge 5; and

d.    2 bottles of prescription medication labelled as Xanax which is Charge 6.

17You were taken to Heidelberg police station; an interview was commenced but suspended to await the result of a search warrant that was being conducted. You were later taken to the Austin Hospital due to being under the influence of Xanax. Whilst at the hospital you tested positive for COVID-19. You were remanded in custody on this day.

18Previously, on 22 December 2021, you were released on bail by Melton police to attend Sunshine Magistrates' Court on 19 May 2022. The offending before the court occurred whilst you were subject to this grant of bail giving rise to summary related offences 11 and 19.

Victim impact statements

19Three of your victims wrote victim impact statements. These documents were tendered during your plea.

20Kate Scott,[1] the female staff member from Super Cheap Auto, stated that the car you took belonged to her mother. The whole experience was very stressful. As a result of your actions, Ms Scott is nervous about leaving her belongings and she is also more cautious about who enters the store. Being without the car was extremely inconvenient and financially taxing.

[1] A pseudonym.

21Mr Eric Lang[2] described how your crime has destroyed the peace his family once enjoyed. After 9 months he still struggles to sleep at night and feels unsafe and insecure in his own home. His children no longer sleep in their own rooms and the whole family lives in constant fear.

[2] A pseudonym.

22Mr Lang has had problems concentrating at work and missed many sport and leisure activities. He has felt depressed and anxious. The loss of mobile phones and with them the loss of photos and memories has been emotionally traumatic. The loss of their car, damage to their property and the loss of other precious items has been difficult. He has spent a considerable amount of money installing security grills on his home.

23Ms Nadine Lang[3] described the impact of your offending in a similar manner to her husband. She described how she could not concentrate at work and how her husband’s start-up business suffered financial loss as a result. It has taken the family several months to recover from the incident at least, to a degree where they can function at a basic level. Her children aged six and nine no longer feel safe in their own home.

[3] A pseudonym.

24In sentencing you I take into account the impact your offending has had upon each of your victims.

Nature and gravity of offending

25Aggravated home invasion is clearly a very serious offence. Not only is it punishable by a maximum term of imprisonment of 25 years but Parliament has designated it as a category 1 offence. Section 5(2G) of the Sentencing Act 2019 ('the Act') provides that you must receive a term of imprisonment. Further, pursuant to section 10AC of the Act, the Court must impose a statutory minimum non-parole period of 3 years unless a special reason exists pursuant to section 10A of the Act.

26The particular circumstances of your offending are a serious example of offending of this nature. Four offenders, three of whom were armed, forced entry into a family home in the early hours of the morning. The family, including two children aged 6 and 8, who were upstairs, were confronted and terrorised by an armed offender who broke down the door to one of the bedrooms. Numerous items of value were taken including a car. The real gravamen of this offending is that the sanctity and security of the victim’s home was invaded.

27The agreed factual basis of the offending reveals you had a lesser role for two important reasons. First, you were not armed at the time of entry or while you were present in the house. Second, you were not involved in breaking down the bedroom door and confronting the victims. Although you are clearly complicit with your co-offenders and have pleaded guilty on that basis, I accept your counsel’s submission that these matters combine to lower the objective seriousness of the offending as it relates to you.

28I also accept that you had a lesser role in the burglary and car theft that occurred a few days prior to the Tarneit offending. You acted as a look-out and in these circumstances, it was your co-offender who took the lead and the initiative to commit these offences. Notwithstanding that distinction, this too was serious offending, in which you were complicit. Entry was gained to a staff area inside the Supercheap Auto store. Items were stolen from a staff member who was entitled to expect her property would be safe and secure whilst she worked.

Personal circumstances

29In terms of your personal circumstances, you were born in Melbourne to parents who immigrated from Sudan, though your father is originally from Eritrea. Your sister, Esraa, is your only sibling. You and your family are practising Muslims and you grew up speaking Arabic at home. You have family in Sudan who you were able to visit several years ago.

30Much of your childhood homelife was marred by family violence perpetrated by your father who was frequently physically abusive and controlling. Your mother had moved to Australia from Sudan to marry your father at 19 years of age. At the time, she had no connections in Australia to help her and at times your father restricted access to money and contact with her family overseas.

31As you grew older, you would try to intervene to protect your mother which led to violence against you. You report being knocked unconscious by your father at age 11 and at other times being locked alone in the garage for up to 15 hours at a time as punishment for siding with your mother.

32The violence at home escalated when you were around 10 years old, and your parents finally separated when you were around 14. This was a further distressing, confusing and conflicting time in your life, as you initially went to live with your father who made efforts to manipulate you into hating your mother and tried to use you to further harass and threaten her.

33Later, a court granted your mother custody of you and your sister. Though your father was given access to see you, you often refused to go and continue to have little contact with him because of what he did to your family.

34Although you have a loving and close relationship with your mother and sister, there were tensions and difficulties during your teenage years. Your mother, sister, extended family and friends have remained supportive of you throughout these current court proceedings, and several of them attended your first plea hearing in April, and I note your mother attended the hearing on 8 June and is again present at Melbourne for the sentence.

35In terms of your education, you attended numerous schools in the northern and western suburbs of Melbourne where you grew up. Your mother told
Mr Guy Coffey, psychologist, who has prepared a report that was tendered in this matter, that you were intelligent as a young child but easily distracted at school which led you to be slower at developing numeracy and literacy skills compared to your peers.

36Outside of regular school hours, you attended Arabic language school. You enjoyed sport and played basketball and swam competitively. However, by the end of primary school, you began to disengage from schooling and experienced social isolation and bullying.

37From Year 5 you began attending Islamic schools so that you could also receive further religious education, however you were later expelled due to poor behaviour. Eventually, you attended Tarneit P-9 College. By this time, you were struggling academically and barely attending school, often sleeping away from home at friends’ houses or on the street.

38You began to develop social circles with kids who were also from troubled backgrounds and were engaging in criminal and anti‑social behaviour. By 2018 you had been placed on a Family Preservation Order by Child Protection because they considered you to be at high risk of harm including exploitation by adults involved in criminal activity.

39You have not completed any further education or training beyond high school.

40You have very little work history, though this is perhaps not unusual for a person of your age. You have worked though for a few short periods, including installing air conditioners with a relative, administrative work at an employment company, construction, and also doing furniture removal.

41You have described some of these periods of employment as having a positive effect on your life, however your drug use seems to have prevented you from maintaining consistent work. You still suffer physical pain as a result of a car accident in 2019 and this pain has interfered with your ability to perform manual work requirements.

42Despite your young age, you have been abusing alcohol and various substances for many years prior to your offending. You told Mr Coffey that you began using cannabis at age 12 and you were using daily by age 15. This escalated to using several grams a day by age 17. Also, at this stage you reported being drunk most days of the week and abusing Xanax. You were a heavy Xanax user by age 18 around the time of the offending. At one point in time, you believe you were taking up to 15 tablets a day and you reported feeling consistently disorganised, emotionally flat, aggressive, and you experienced periods of amnesia.

43You have had five prior convictions from the Children’s Court. The Youth Justice pre-sentence report discloses that you had one uninterrupted period of involvement with Youth Justice commencing when you were 15 years of age until March 2022. During that time, you were before the court for offences of robbery, attempted armed robbery, armed robbery and others. You were subject to two probation orders, two Youth Supervision Orders and one Youth Attendance Order. In addition, you served several periods on remand in youth justice and you were subject to bail on numerous occasions. You breached each of your Children’s Court orders.

44Whilst in custody in Youth Justice you were the victim of numerous assaults. This has continued to a lesser degree during your current remand in adult custody.

45Of concern, you have tested positive for buprenorphine in circumstances where this drug is not prescribed to you. In his further outline of submissions for plea, Mr Moore indicated that this now has been remedied. Buprenorphine has been administered by depot injection and you have reported being far more settled, stable and calm. I was told that you intend to continue this medication when you are released. In my view this is a positive development, and it is hoped it will assist in your rehabilitation.

46You have now been in custody continuously since 8 January 2022. At the time of your remand, you had been diagnosed with COVID-19. As a result, you spent your first weeks in adult custody in very difficult circumstances of quarantine and isolation. Mr Coffey in his report dated 20 April 2023, details that during this time you were delusional and suffering hallucinations, likely as a consequence of your withdrawal from Xanax.

47On 9 February 2022 your best mate died. He was the sole occupant of a car involved in a single vehicle accident. You learnt of this devastating news from another prisoner. It is your understanding that your friend was affected by the drug Xanax at the time of his death. He was not a frequent user and had not been in contact with the criminal justice system. He was a person who had a positive influence in your life.

48You had used Xanax with your friend on a couple of occasions and I was told that in addition to your deep sense of grief, you have a clear sense of self-loathing as you perceive yourself to be somewhat responsible. In these circumstances your entry into adult custody has been extraordinarily difficult.

Submissions of the parties

49In a thorough and compelling plea, your counsel, Mr Moore, argued that I should find a special reason exists in your case, as defined in s10A(2)(e) of the Sentencing Act. Pursuant to this section the court must evaluate whether there are substantial and compelling circumstances that are exceptional and rare that justify a departure from the mandatory imposition of the minimum statutory non-parole period of three years.

50In determining whether there are substantial and compelling circumstances that are exceptional and rare under sub-s(2)(e) I must regard general deterrence and denunciation of your offending conduct as having greater importance than the other sentencing purposes set out in s5(1) of the Act.

51Further, I must give less weight to your personal circumstances than the nature and gravity of the offence and I must not have regard to your early guilty plea, your prospects for rehabilitation or parity with other co‑offenders.

52Mr Moore referred to several Court of Appeal cases where this test has been considered, in particular the cases of Farmer and Fariah.[4] In both of these cases the very high threshold had been met. Mr Moore submitted that when considered conceptually, the commonality between them was that both involved very young offenders who each had some kind of profound childhood difficulty that had an impact into adulthood.

[4]Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213.

53For Farmer, this was the condition of alopecia that resulted in him being severely bullied and socially cast away where he had fallen into an offending peer group grateful for anyone who would befriend him. For Fariah, this was his exposure during childhood to the atrocities of civil war in Somalia that resulted in the loss of several family members, including his mother and father, prior to his coming to Australia at the age of 15 years.

54In your case, Mr Moore submitted that there were really three factors that combined to satisfy the test of substantial and compelling reasons that are exceptional and rare.

55First, your youth, you were very young, barely into adulthood when you committed the offences before the court, being just 18 years of age.

56Second, you have experienced profound exposure to childhood domestic violence. This violence was severe and ongoing. You were not just witness to the violence but also a direct victim of it. Two striking examples Mr Moore referred to were being knocked unconscious by your father at age 11 and on another occasion being locked in the garage for 15 hours.

57The impact of this exposure to violence, Mr Moore argued, was very clear, you struggled at school, had a disjointed education, began to truant and associate with negative peers with whom you felt relevant. You started to use drugs from the tender age of 12 and by the time you were 13 to 14 years old you were regularly drinking to levels of intoxication and smoking cannabis daily. Then by the time you were 17 to 18 you had combined this with the use of Xanax and were regularly drinking and drugging to black out.

58To support the connection between your background and the offending, Mr Moore referred to the report of psychologist Guy Coffey, who opined at the time of his assessment, you were suffering the sequelae of protracted family violence including effects on your self-esteem, identity, emotional regulation and mood, and that you continue to experience distressing memories of your father’s violence.

59Further, you experienced a very disturbed family life which has significantly affected your self-esteem, your identity formation, your educational attainment, your ability to regulate emotion, and your capacity for sustained attention. You began abusing substances when 12 years old as an attempt to ameliorate dysphoria and distress.

60The devastating impacts of domestic violence upon victims are well documented in our courts. Your counsel referred to several cases:  Pasinis, Filliz, and Reynolds and there are many more.[5] All of these cases speak of the harsh penalties that must be given to those who perpetrate family violence, recognising the long-lasting psychological trauma caused to victims of this form of abuse.

[5] Filiz v The Queen [2014] VSCA 212; Pasinis v The Queen [2014] VSCA 97; DPP (Vic) v Reynolds (a pseudonym) [2022] VSCA 263.

61The third reason advanced by Mr Moore is the extraordinarily difficult time you have had in custody on remand at only 18 years of age. This was primarily brought about by the death of your best mate. The circumstances of how you found out about this, the harsh environment you were in at the time with no supports, and not being able to attend the funeral have added to the otherwise burdensome experience of imprisonment.

62Further, he argued that this is a tragic example of extra curial punishment – losing your best friend shortly after entering adult custody for the first time, being unable to grieve his loss within a supportive environment and not being able to attend the funeral.

63Ms Kermath on behalf of the prosecution submitted that a head sentence and a non-parole period of at least three years must be imposed in your case. She referred to the very high maximum penalty for aggravated home invasion and the intention of Parliament in making this a category one offence with a three-year statutory minimum. Ms Kermath further submitted your offending was very serious and had a devastating effect on the victims, particularly the two children who now live in fear and no longer feel safe in their home.

64In terms of your prospects for rehabilitation, Ms Kermath submitted that you had been caught using illicit substances in custody and had provided inconsistent accounts of the offending to Mr Coffey and also the Youth Justice Worker who undertook an assessment.

65When all matters were considered, the prosecution position was that the very high hurdle of substantial and compelling reasons that are exceptional and rare had not been made out.

Analysis

66I accept the combination of factors relied upon by Mr Moore are substantial and compelling. That is, I consider them to be weighty, forceful and powerful reasons that justify departure from the imposition of the statutory minimum non-parole period.

67In addition, I find these factors in combination are exceptional and rare. It follows that I find a special reason exists that justifies a departure from the imposition of the mandatory statutory minimum non-parole period.

68In making this finding I have not had regard to your early guilty plea, your prospects for rehabilitation or parity. Further, I have weighed up the importance of general deterrence, denunciation and the nature and seriousness of the offending as best I am able, in light of what I consider to be the extraordinary and exceptional circumstances of your case.

69At the time you committed these offences you were barely an adult. Youth is a very significant factor for a sentencing court. In the case of Azzopardi, three considerations which underlie the general primacy afforded to an offender's youth as a sentencing consideration were identified.[6]

First, young offenders, being immature, are 'more prone to make ill‑considered or rash decisions'. In that respect, they 'may lack the degree of insight, judgment and self-control' possessed by a more mature adult. They may not 'fully appreciate the nature, seriousness and consequences of their criminal conduct'.

Secondly, the courts recognise the potential for young offenders to be redeemed and rehabilitated.

Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair rather than improve the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.

[6]Azzopardi v The Queen [2011] 35 VR 43.

70I find that your age and the circumstances at the time of your offending, reduce your level of moral culpability and reduce the weight that the court must put on general deterrence. I make this finding whilst being cognisant of the statutory restrictions that apply.

71I accept the submission of your counsel that the principles enunciated in the case of Bugmy are enlivened in your case.[7] You experienced and witnessed appalling and psychologically damaging harm at the hands of your father, the very person who should have loved, protected and nurtured you, and who should have provided a positive role model.

[7]Bugmy v The Queen (2013) 249 CLR 571.

72This violence and childhood abuse has had the impact of severely interrupting the development of your self-esteem, your identity, your education, and your emotional regulation. As a result, you gravitated to a negative peer group, lived on the streets and self-medicated with a cocktail of drugs to deaden the pain of your traumatic life.

73In my view, your moral culpability for the offending cannot be equated with that of a person who committed the same offences who has had the advantage of a normal, stable home environment in which he had been guided by appropriate parenting.[8]

[8]Bergman (a pseudonym) v The Queen [2021] VSCA 148; 289 A Crim R 503.

74The destabilising effect of your exposure to domestic violence in your formative years, together with your youth at the time of your offending is sufficient in my view to reduce your moral culpability. Additionally, it helps to put in context your prior history of offending.

75Having been remanded into adult custody, at 18 years of age, you learnt of the tragic and devastating death of your best mate. In the circumstances, you found yourself you were unable to take the important step in the grieving process of attending his funeral. I agree with your counsel that this is an exceptional and significant example of extra-curial punishment and as such I give it significant weight.[9]

[9]Chaplin v R [2010] VSCA 145; Altun v R [2014] VSCA 46.

76Having found a special reason exists in your case, I must go on to consider what the appropriate sentence should be. In this regard I take into account that you pleaded guilty at an early opportunity. Your plea has facilitated justice in that you have spared the court the time and expense of a trial. Importantly, you have also spared the victims the need to come and relive what was a harrowing and traumatic experience.[10]

[10]Phillips v The Queen (2012) 37 VR 594.

77I also take into account that your plea of guilty has occurred during a time when the court is still experiencing the crippling backlog of cases that have accrued as a result of the COVID-19 pandemic. I propose to give you a significant discount for your plea of guilty.[11]

[11]Worboyes v The Queen [2021] VSCA 169.

78Further, your plea of guilty is  evidence of your remorse. Your remorse was evident from a number of other sources, including Mr Coffey’s report and the testimonials from your mother, your sister and Mr Safi. I accept that your remorse is genuine.

79I consider that you have good prospects for rehabilitation if you can engage with services upon your release, which I am told you are highly motivated towards.

80You are still very young, you have a supportive family, you have stable accommodation and the benefit of a mentor in Paul Moses, and also the benefit of a program with Jay Washington.

81You have a previous work history, and in the opinion of Mr Coffey, you do not have anti-social personality functioning and you are amenable to intervention.

82Further, it is my view that your devastating experiences in custody should act as a reminder of where you could end up should you re‑offend.

83I do not take into account parity, as your co-offenders were all dealt with in the Children’s court under a very different regime. However, I note that they each received Youth Supervision Orders in the order of 12 to 15 months, and had you been about 6 months younger at the time of the offending you would have been dealt with very differently.

Sentencing principles

84The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. I am mindful of the altered weight to be placed on certain principles given the restrictive sentencing regime that applies in your case.

85Given your youth and background circumstances, general deterrence must give way to the promotion of your rehabilitation. The weight to be given to specific deterrence must also be moderated in light of your experiences in custody. In your case, I regard protection of the community to be a relevant consideration, but I consider this is best achieved by supports and interventions to address any ongoing issues you have. In your case, this is what will likely reduce the risk of future offending.

86I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case. In particular, I have had regard to the sentencing landscape for the offending before me, particularly the offence of aggravated home invasion. 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.

87The principles of totality, proportionality and parsimony are also  important considerations here. They require me to make sure the total sentence is appropriate for the total criminality. I have taken these principles into account in fixing the individual sentence and the structure of the sentence I will now impose.

88Weighing up all relevant matters in this difficult sentencing task, I consider that the term of imprisonment you have already served satisfies the sentencing factors of general deterrence, just punishment and denunciation. These factors can further be addressed by the imposition of a Community Correction Order.

89In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen,[12] that is,

A Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment. The court there stated:

'A CCO is likely to be a particularly important sentencing option in the case of a young offender, where there may be a perceived conflict between the need to punish the offender and the importance — both to the community and to the offender — of rehabilitating the offender.

90'Since the CCO can be used to rehabilitate and punish simultaneously, the conflict is likely to be reduced. Instead of needing to give less weight to denunciation or specific or general deterrence, in order to promote the young offender’s rehabilitation, the court will be able to fashion a CCO which adequately achieves all of those purposes at once.'

[12]Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308.

91Mr Mensur,  you are convicted and sentenced as follows.

92In relation to Charge 3 aggravated home invasion, you are convicted and sentenced to 518 days imprisonment I declare that you have served 518 days by way of pre‑sentence detention, and this will be deducted as time served.

93In relation to Charges 1, 2, 4, 5 and 6, you are convicted, and I order you be placed on a Community Correction Order for a period of 2 years and 6 months.

94The conditions of this Community Correction Order include that you must perform (a), perform 250 hours of unpaid community work over that 2 years and 6 months period; (b), you must submit for assessment and treatment for drug abuse; (c), you must submit for treatment and rehabilitation programs to reduce re-offending; (d), you must also submit for assessment and treatment for mental health issues; (e), you are to attend for supervision; and there is a further special condition, (f) that you attend YSAS at Suite 1, Level 1, 25-29 Devonshire Road, Sunshine, on 14 June 2023 at 2.00 pm to do a Drug and Alcohol Support Assessment.

95So with regard to the community work, I propose to offset 150 hours of community work with counselling. So that means if you perform 150 hours of counselling, that will be deducted from the 250 hours. So it might, if you were able to achieve that,  leave only 100 hours of community work to actually be done, but that will be a matter for Corrections and for you. I do this because I want there to be an incentive for you to participate in treatment, okay?

96Although judicial monitoring was not recommended by the assessing Corrections officer, I am going to make this a condition of the order. Mr Mensur, I am very interested to see your progress towards reformation and whilst I am confident that you will be compliant with this order, I have added the judicial monitoring as, again, another incentive for you because I want to keep an eye on what is happening.

97I want you to come and see me and tell me how you are going, and what I am going to do is set a date in about a month for you to come, so that I can see whether you have attended YSAS, I can see whether or not you have attended down at Corrections as you are required to, okay?  I want you to succeed and I want to help you in that, and it is my belief that judicial monitoring can help with that, okay?

98In addition to the conditions that I have imposed, there are standard conditions you must comply with. Okay, now these would have been explained to you when you were assessed, and I need to go through them again.

99So the first and foremost is that you cannot commit an offence punishable by imprisonment in the next two and a half years, and I hope you do not ever again, but if you do in the next two and a half years, that will be a breach of the order, all right?

100And if you breach the order, you will be brought back to me, and I will have re‑sentence you. You do not want to do that.

101You need to report within two working days of your release, which I am assuming will be today, to your nearest Corrections office, which will be Werribee Community Corrections

102You 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. You cannot leave the State of Victoria without prior permission. Okay, you understand that?

103OFFENDER:  Yeah.

104HER HONOUR:  All right, do you understand if you breach any of those conditions you will be brought back before me, and you may be re‑sentenced on the original charges.

105OFFENDER:  Yeah

106HER HONOUR:  I can only place you on a Community Correction Order if you agree – so do you understand what is involved?

107OFFENDER:  Yes, I do.

108HER HONOUR:  Do you consent to such an order?

109OFFENDER:  Yes, I do.

110HER HONOUR:  Okay. In relation to the two summary related offences of contravening conduct conditions of bail and the one charge of going equipped to steal, you are convicted, and I impose an aggregate fine of $200.

111OFFENDER:  Yeah.

112HER HONOUR: I also make the orders for disposal sought by the Crown. and pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, the sentence I would have imposed is 3 years 6 months with a 2-year 6 month non‑parole period.

113OFFENDER:  Yeah.

114HER HONOUR:  It has also occurred to me that I need to make an order in relation to Mr Mensur's licence because there is a theft of motor vehicle charge and a conviction has imposed. Has Mr Mensur got a licence?

115MR MOORE:  He doesn't, Your Honour, we just checked, he doesn't hold a driver's licence.

116HER HONOUR:  Okay.

117MR MOORE: Sorry, he holds a learner's permit.

118HER HONOUR: Okay, so what I will do in those circumstances, I am  confident I've got the ability to suspend rather than cancel so I will suspend any driver licences or permits that Mr Mensur holds and I will disqualify him from getting another for the period of three months from today's date. That might be something that can be worked upon and a goal for the future, in terms of getting a licence and driving responsibly. Okay, so three months off the road. You might not have been on the road but three months off the road, okay?

119OFFENDER:  Yeah.

120HER HONOUR:  All right, so is there anything further?

121MR MOORE:  Nothing arising on behalf of Mr Mensur, Your Honour.

122HER HONOUR:  Okay, Ms Kermath?

123MS KERMATH:  No, Your Honour.

124HER HONOUR:   I need to set a date for the judicial monitoring, I've just been reminded about that.

125MS KERMATH:  Yes.

126HER HONOUR:  So I want to do it in a month so we will do it on 11 July at 9.30 am. So Mr Mensur, what I have done in the past with other people is, sometimes some people come into court. Or alternatively, you can go to Corrections, and you can appear with a Corrections worker either way I want to check in with you and see how you're going, okay?

127HER HONOUR:  Can I just say, Mr Moore, thank you for your excellent plea submissions and the work that you put into this matter, it's obvious and it was of great assistance, and Ms Kermath, thank you to you as well.

128MS KERMATH:  Thanks, Your Honour.

129MR MOORE: May it please the court.

130HER HONOUR:  Okay, all right, we'll stand down.

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