Director of Public Prosecutions v Mesley
[2018] VCC 634
•3 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-01703
CR-17-01865
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW MESLEY |
| and |
| JOSHUA WOOD |
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JUDGE: | HIS HONOUR JUDGE MEREDITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2018, 27 April 2018 | |
DATE OF SENTENCE: | 3 May 2018 | |
CASE MAY BE CITED AS: | DPP v Mesley & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 634 | |
REASONS FOR SENTENCE
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Subject: Home Invasion and Recklessly Cause Injury and others.
Mesley TEFS 7 years and 6 months.
Wood TEFS 3 years YJC.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Solicitor for the Director of Public Prosecutions |
| For the Accused Mesley | Ms R Waters | Balmer and Associates |
| For the Accused Wood | Mr R de Kretser | Stary Norton Halphen |
HIS HONOUR:
Matthew Mesley and Joshua Wood, you have pleaded guilty before me to the following offences. One charge of burglary, two charges of theft, one charge of theft of a firearm, one charge of home invasion, one charge causing injury recklessly and handling stolen goods.
Matthew Mesley, you have also pleaded guilty to one charge of obtaining property by deception, one charge of possessing a drug of dependence, one charge of resisting an emergency worker, and one charge of being a prohibited person possessing a firearm.
Joshua Wood, you have also pleaded guilty to one charge of possessing an unregistered long arm, and one charge of resisting an emergency worker.
In addition, Mr Mesley, you have pleaded guilty to related summary offence No 27 of unlicensed driving and No 34 of possessing a prohibited weapon without exemption or approval.
Mr Wood, you have also pleaded guilty to related summary offence No 29, behaving in an offensive manner in a public place and No 32, being a non-prohibited person possessing a long arm without a licence.
The maximum penalties for the offences to which you have pleaded guilty are as follows: home invasion, 25 years' imprisonment; theft of firearm and handling stolen goods, 15 years; burglary, theft and obtaining property by deception each have a maximum of ten years’ imprisonment; resist emergency worker, five years; possess long arm and possess prohibited weapon, two years’ imprisonment; possessing a drug of dependence, where I am satisfied on balance that it was not for a purpose related to trafficking, one year’s imprisonment; unlicensed driving, three months’ imprisonment; and offensive behaviour, two months’ imprisonment.
Tendered on the plea hearing was a prosecution summary of the circumstances of your offending. This will form the factual basis on which I will sentence you as there is no dispute regarding its contents. This will remain on the Court file and having regard to this I will summarise these circumstances somewhat more briefly.
At the time of your offending, both of you were living in Melton West. Also living there was your cousin Mr Wood and your mother and sister. Your cousin was Mr Mesley’s girlfriend.
On 11 May 2017 a neighbour had a number of items stolen from his house. Among the items stolen were a 55 inch LG television and a red cricket bag. These items were ultimately found when police executed a search warrant at your Melton West address.
On 15 May, Charges 1 to 3 of burglary, theft and theft of a firearm involving the both of you occurred. Your victim, Mr Magro, lived at an address in Hillside with his family. At around noon on 15 May, the two of you went to his address in a Nissan vehicle bearing personalised number plates LAHINI, (Lahini), the name of your cousin, Mr Wood.
On arrival, you knocked on the doors of some neighbouring houses before going to the residence in question. Your victim and his family were not home at the time and you both entered the backyard and unsuccessfully tried to force open a side door. You then went to the garage and searched drawers and located a gun safe which was locked.
You smashed a rear window of the house and forced open a rear door, entering the house. You moved through the house and emptied drawers looking for keys to the gun safe in the garage, which eventually you located. You took an iPhone and MacBook laptop from bedrooms before making your way to the garage with the gun safe key. You unlocked the gun safe and took a Beretta shotgun and Remington rifle, along with multiple fishing rods, reels and assorted tools.
When your victim returned to his house at around four o’clock that afternoon he discovered what had taken place. Police were ultimately called and the approximate value of the property stolen by you both is in the vicinity of $23,000.
The next day, 16 May 2017, saw Charges 4 to 6 committed by the two of you. These charges are: home invasion, recklessly causing injury, and theft.
Your victim, Ms Bonacci, resided at an address in Hillside. At around 10.30 on the morning in question, she was home by herself. At around this time, you both drove to her house in the Nissan vehicle. Mr Wood, you knocked lightly on the glass front door and this caused Ms Bonacci to investigate and she saw you, Mr Wood, walking away from her house over toward Mr Mesley, who was standing nearby a car.
Ms Bonacci returned to watching a movie and around five minutes later the two of you went to the rear of the house and used a screwdriver to force open a glass rear door.
Shortly after this, you went into the kitchen and began rummaging through cabinets and drawers.
Ms Bonacci heard the noise and thought it may have been her daughter returning home and she ultimately came to see you both standing in the kitchen. She then yelled at the both of you to get out of the house. You grabbed a knife, Mr Wood, and Mr Mesley a screwdriver and you both ran towards her. Mr Mesley, you were yelling, “Where is the money, where is the safe and gold?”. Your victim indicated she did not have any money or a safe and this appeared to anger you. Mr Mesley, you were repeatedly asking, “Where’s the money, where’s the safe and gold?” and your victim responded that her money was at the bank.
Your victim recalled she had $1,000 cash in her purse and she told you this and went to her study to get her purse whilst you both followed her. She handed the money to you, Mr Mesley, and you were again asking her where the gold was. She told you that it was in the bedroom. Your victim then went to the bedroom with you both following her. In the bedroom you, Mr Mesley, grabbed her jewellery and you, Mr Wood, opened her drawers pulling out all of her clothing and throwing it on the floor.
Mr Mesley, you were again yelling where was the safe, and once again were told that your victim did not have a safe. You, then pushed your victim out of the bedroom taking her back to the study, you took her mobile phone and some keys. You both then walked your victim to the kitchen where you, Mr Mesley, were yelling at her to give you the pin number of her phone. She complied and you took everything from her purse. While this was happening, you, Mr Wood, were holding a knife at her face and you demanded that she remove her gold necklace. Whilst she was hesitating in taking it off, you, Mr Mesley, shouted, “Take it off or I will fucking kill you.” You, Mr Wood, also yelled at her to remove it. By this stage, your victim was begging the two of you not to kill her. You, Mr Mesley, responded by saying, “We have not finished with you yet.” Your victim removed a diamond ring she was wearing as well as her gold necklace.
You, Mr Mesley, pulled a telephone cord out of the wall socket and pushed your victim down the hallway. You walked her to her bedroom and in the process grabbed the sliding doors of that room which were made of glass, pulling one of them off the tracks, causing it to fall and smash. You, Mr Wood, were continuing to hold the knife and you, Mr Mesley, demanded that your victim come into the bedroom. She being terrified, refused. You, Mr Mesley, then walked over to her and punched her hard in the face. This caused her nose to bleed, making her feel dizzy and losing her balance. Mr Mesley, you then told Mr Wood to take your victim away and keep her quiet.
You, Mr Wood, then walked her down the hallway, telling her to lie on her stomach. She refused, being afraid of what you would do to her. Mr Wood, you commenced yelling at her and ultimately punched her in the mouth, cutting inside her top lip. Around this stage, she tried to escape by running down the hallway towards the garage. You, Mr Wood, chased her and when you grabbed her, punched her in the back of the head. You then pointed the knife towards her as if you were going to stab her. She moved and you stabbed the wall next to her head. Your victim feared she was going to be killed.
You, Mr Wood, then forced your victim to a granny flat toward the rear of the house and you told her to sit down and remain still. You then took an amplifier, some equipment, and four guitars, placing them in the hallway. You were continuing to yell out to your victim not to move or that you would kill her. You told her to take the guitars and amplifier into the garage.
Mr Mesley then entered the granny flat telling you, Mr Wood, that it was time to leave. You both loaded guitars, tools and an amplifier and other items into her car.
After this, Mr Mesley, you told your victim to get onto the floor of the garage and asked her where duct tape was. Mr Mesley, you placed duct tape around her mouth and her hands were tied with the telephone cord that had earlier been ripped from the wall. As your victim knelt down, she was so overwhelmed with fear that she lost consciousness.
You, Mr Mesley, then drove off from the house in your victim’s car and you, Mr Wood, drove off in a silver Navara vehicle which had been parked across from the house.
Your victim managed to free herself from the cords and remove the tape from her face. She vomited and stumbled to her next door neighbour’s house. Ultimately police and paramedics attended. Your victim was observed to have facial injuries, a deep cut on her finger and to be lapsing in and out of consciousness. She was taken by ambulance to the Royal Melbourne Hospital and it was determined that she had suffered a broken nose, a cut to her finger and bruising around her eyes.
At approximately 1 o'clock on the same day, Charge 7 occurred. This involved you, Mr Mesley, driving your victim’s car to a milk bar in Kurunjang. You used your victim’s National Australia Bank card to purchase a total of $86 worth of goods.
Charges 8 and 9 occurred the next day, 17 May 2017. Police had noticed the silver Nissan parked in the driveway of the Melton West address. Police intercepted you, Mr Mesley, driving in the vehicle. When arrested, you resisted by waving your arms around and being aggressive toward police. Six police officers were required to subdue you and handcuff you. Your resisting of police constitutes Charge 9.
Also in the car was your mother Mr Wood, and when the vehicle was searched a number of items were found in the car including a knife in a scabbard which constitutes summary offence No 34 of possessing a prohibited weapon without approval.
Also located in the car was a small quantity of methylamphetamine which constitutes Charge 8. Given the circumstances in which this was found and the quantity involved, I am satisfied on balance that this was possessed by you not for a purpose related to trafficking and consequently the maximum applicable penalty for this offence is one year’s imprisonment.
Also located were items that had been stolen during the home invasion the subject of Charge 4.
Between 15 and 17 May, Mr Mesley, you drove a motor vehicle on a number of occasions. During this time you were unlicensed, given that your licence was cancelled at Ringwood Magistrates’ Court in March 2010 for a period of 12 months and you had not applied to be relicensed after this period. This conduct constitutes related summary offence No 27 of unlicensed driving.
On 17 May 2017, police executed a search warrant at the Melton West address. In the course of the search a number of items were found including the 55 inch LG television and the red cricket bag. In addition, Erbi and Beretta shotguns were located. You, Mr Wood, are deemed to have been in possession of the Beretta shotgun and this constitutes related summary offence No 32 of possessing a long arm without a licence. This was the shotgun that had been stolen on 15 May 2017 when Charges 1 through to 3 were committed. The Erbi and Beretta shotguns also constitute Charge 10 of you, Mr Mesley, of being in possession of them as a prohibited person. Charge 11 involving both of you relates to retaining stolen goods, namely the LG brand television and the red cricket bag. Charge 12 involved you, Mr Wood, possessing an unregistered long arm, namely the Erbi brand shotgun.
During the search of the premises, police discovered you, Mr Wood, hiding under a doona between a mattress and the wall. You violently resisted attempts by police to arrest you, kicking out and throwing punches which resulted in one of the officers being kicked a number of times. It took three police members to subdue and handcuff you. This constitutes Charge 13 of resisting emergency worker. In addition to being abusive towards police when taken outside, you kicked a panel of a police car and spat saliva at the bumper of the police vehicle. Your spitting constitutes related summary offence No 29 of behaving in an offensive manner.
When interviewed, Mr Mesley, you made admissions to committing the burglary of 15 May but answered “no comment” in regard to the home invasion of 16 May. You told a number of lies to police investigators regarding the conduct of Mr Wood.
When you were interviewed, Mr Wood, you made no admissions, stating that you were at your residence and had only left on the relevant morning to go shopping.
Regarding the Erbi shotgun, Mr Wood, your mother stated that this was given to her by her grandfather and that it was stored at the address in question. This apparently was located behind the fridge of the residence when police searched it.
In relation to Charges 1 through to 6 inclusive and 11, your respective liability arises as you were both complicit in the conduct of each other.
Your primary victim, Ms Bonacci, watched the proceedings by video link and read her Victim Impact Statement into evidence. In summary, she speaks of enduring a terrifying ordeal which has had profound and lasting consequences upon her. She speaks of her loss of her sense of security and the impact which this has had on her life.
A Victim Impact Statement was also tendered from Mr Netto in this matter. He similarly speaks of his loss of his sense of security and the ongoing harm which your offending has caused.
I will have appropriate regard to the relevant and admissible portions of the victim impact material provided to me.
Whilst your offending occurred, relatively speaking over a confined period, your offending is most concerning. The events of 15 May and in particular 16 May are serious examples of offending conduct. This offending had the capacity to destroy people’s sense of domestic security and erode their capacity to feel safe in their own homes.
The seriousness with which the offence of home invasion is considered is reflected in its high maximum penalty of 25 years’ imprisonment.
Whilst you were not armed at the time of entry, did not target your victim, did not know that she was present within her home, and your conduct inside the premises evolved, your presentation was aggressive, volatile and terrifying for Ms Bonacci.
In assessing the gravity of your respective conduct, I note that you were acting jointly, entered with the intention of stealing, quickly resorted to aggressive and indeed terrifying conduct, rushed at your victim whilst brandishing weapons, and caused her injury.
Her ordeal was prolonged in the sense that you repeatedly threatened her, exercised your control over her, physically assaulted her on a number of occasions and left her gagged and tied after having threatened to kill her.
Given the violence you exhibited on 16 May and your respective consumption of the mind-altering substance, methylamphetamine, your possession of the respective firearms also concerns me. Whilst I cannot determine that you had these for a specific criminal purpose, in the broader context of your demonstrated conduct and ice usage, your access to such weaponry troubles me greatly.
On any view, general deterrence and the Court’s denunciation of your conduct, as well as just punishment, must be adequately addressed in the sentences which I impose.
To your credit, both of you have pleaded guilty at what I regard as an early time, given the forensic realities of your positions. Your pleas of guilty have facilitated the course of justice and they have saved the community the cost and time of a contested trial on these matters. They have spared your primary victim the need to recount her experiences before a jury. In addition, your pleas of guilty, in conjunction with other material presented on your respective pleas, satisfies me that you are both appropriately remorseful for your conduct.
Turning to your personal circumstances, Mr Mesley, you are now 27 years of age.
You have a troubling prior criminal history.
You were released from custody in November of 2016, some six months prior to your offending.
A Judge of this Court sentenced you to a total effective sentence of 6 years and three months with a non-parole period of four years and six months, having declared 391 days served by way of pre‑sentence detention on 6 September 2011. You were 20 years of age at the time you received this sentence. Amongst other things, this offending involved multiple counts of aggravated burglary, burglary, and theft, as well as arson and other offences. You did not receive parole, and I am told you did not apply for it. On your release into the community, you were unsupervised. Your offending on this occasion was related to your abuse of stimulant drugs and the need to provide money to your dealers and also obtain further supplies of the drug.
I have had regard to Judge Montgomery’s sentencing remarks in that matter.
Prior to the sentence which he imposed, you had been dealt with in the Children’s Court on a number of occasions for dishonesty matters, breaching Court orders, driving offences, and other offending. In 2009, you received a six month sentence of detention in a Youth Justice Centre.
Much of your background is contained in two reports of
Ms Lechner and Dr Walton tendered at your hearing.
In summary, as I have said, you are 27 years of age. You were born in Melbourne and your parents separated when you were approximately three years old. Your father remarried and had two daughters now aged 22 and 17 respectively as a result of this relationship. Your stepmother had a son from a previous relationship who is the same age as you.
After the separation you shared time between your mother and your father. This was until about seven years of age when your mother relocated to coastal New South Wales. This occurred apparently without discussion and meant that custody arrangements of the Family Court were not able to be implemented.
Your mother re-partnered and you felt neglected consequent upon her new relationship.
At around the age of 11, you asked to return to live in Melbourne with your father and stepmother, which you did. Your natural mother ultimately returned to live in Melbourne in 2007.
You have experienced instability as a result of living between parents and a number of school changes and difficulties at school. Assessments were arranged for you out of concern for your poor language ability and associated difficulties. In secondary school you were diagnosed with ADHD. School was a struggle for you and eventually you were expelled in Year 9. You obtained a year pass at Swinburne, and then worked in a number of semi-skilled roles including at KFC, house painting and general labouring. You did commence a carpentry apprenticeship, however, did not continue with this consequent upon a work-related injury.
Your background is punctuated by family break-up, movement between schools and parents, an adolescent diagnosis of ADHD and academic under-achievement.
You commenced using marijuana and alcohol at a young age and amphetamines in or about Year 10. You were introduced to methylamphetamine or ice at around the age of 18 and have used it intravenously. You have also had a history of heroin use from an early age.
Feelings of confusion and rejection by your mother and a level of insecurity rendered you vulnerable to drug abuse. What you perceived to be a cycle of rejection and lack of achievement, combined with a dulled intellect, contributed to your experiencing an entrenched cycle of abuse of stimulant-type drugs.
In a psychological assessment of you of July 2011, Ms Lechner, psychologist, states you were previously assessed with respect to your verbal intelligence. Your performance placed you in the borderline range of verbal intelligence with approximately 95 per cent of the adult population performing better. Your skill level was low across tasks in both acquired learning and independent thinking. You demonstrated a concrete rather than conceptual thinking style. Your knowledge of social conventions was said to be limited and your approach to solving socially-based problems impulsive in nature.
Dr Walton, psychiatrist, in his report of February 2018, describes you as having a dulled intellect.
Dr Walton further states that it is your substance abuse which is most relevant to your offending both as a motivating factor towards dishonesty and also having a direct impact likely rendering you more prone to aggression and less prone to properly consider the consequences of your actions. Dr Walton states that it is not improbable that you were also suffering from depression during the period of your offending. That this perhaps aggravated your somewhat compromised capacity to consistently exercise proper social judgment. That you have an established history of antisocial behaviour and that it is probable that this largely emerges from your personality rather than any mental illness phenomena.
Dr Walton further states that while depression is common enough in prisoners, it is still correct to state that persons suffering from such a mental disorder will endure imprisonment as more onerous than others. I have taken this into account in your favour.
Your counsel submitted that on the balance of probabilities there is a link between your addiction to methylamphetamine and your offending and submitted that your addiction was a mitigating factor and relevant to an assessment of your moral culpability.
Whilst the circumstances of your childhood and adolescence may have conspired to make drug use a more attractive proposition for you, and to that extent your subsequent entrenched addiction is contextualised by your feelings of abandonment and under-achievement, it is of little mitigatory value. Whilst I accept that this addiction was the motivating factor behind your offending, in that you sought funds to use in relation to your drug use. In the circumstances of your case it does little to reduce your culpability.
You sought to resolve the difficulty which your addiction presented to you by what was the premeditated commission of serious criminal conduct, namely burglaries. The very nature of your conduct, regarding in particular what you subjected Ms Bonacci to , is such that denunciation and deterrence must feature prominently in the sentencing exercise. Further, I was told on the plea that you were using stimulant-type drugs whilst undergoing sentence on the last occasion, and that family members urged you to obtain treatment for your drug use upon your release. You ignored these overtures and continued on your path. Your offending has occurred relatively speaking only a short time after your release, and your conduct has caused significant harm to your primary victim, Ms Bonacci. In your case, I am of the view that both general and specific deterrence assume significance as sentencing considerations.
I have had regard to the letter which you have presented to the Court. Amongst other things, in your letter you state:
“I want to tell you how very sorry I am about the things I have done. I am truly sorry for the pain I have caused Ms Bonacci, her family and my family. I never, ever set out to hurt anyone. I was shocked to realise what I had done. She didn’t deserve to go through what she went through and I'm sorry that she will have that memory with her forever and I wish I could go back and change that but I can’t. I wish there was a way I could make it up to her. I know that when I take ice I am not in my right mind. I can see that now. I don’t want to take ice, it’s a powerful drug it takes over me. I hate what it does to me and the things I do when I take it. I don't understand what’s happened to me and why my brain is so different or how I got to take it except that everything sometimes feels out of control and ice takes the pain away and I need help to change that. I want to be a better person and I want a better life. I've wasted so much of it inside.”
In addition, testimonials were presented on your behalf from your grandmother, stepmother and father. They show a degree of insight and compassion with respect to your situation. They indicate their ongoing love and support of you.
You do have the support of your father’s side of the family, as for example expressed by your stepmother in her reference. In this, amongst other things, she states:
“When [ Mathew] is released next time we will make all efforts to ensure he undergoes rehabilitation for his drug use. Our support is unwavering and we will look to help him re-establish himself in the community.”
I will always be there for Matthew and I will not rest until he returns to the happy loving boy I once knew. I will never give up hope and I will help in every way possible. On his release I hope he comes back to live with our family because he has such a large support network and it is in this environment that he will best thrive. I haven’t given up on him and I love him for the person I know him to be and I always will.”
It does appear that you are gaining insight into the destructive impact which your addiction to and abuse of stimulant drugs has had both on you and others. You have expressed remorse, and that is positive, however, the unfortunate reality is that you have thrown your twenties away. You will have spent almost this entire decade in custody, and given the seriousness of your conduct, you will not be eligible for release until quite some time into the future.
It does appear that you are waking up to yourself and you do have a degree of support available to you on your father’s side of the family. Ultimately your future will be in your hands and you must understand that to avoid wasting further decades of your life in prison, you must commit to turning your back on drugs and face the challenges of functioning within the community without them. On your ultimate release I urge you to seek out the assistance of your stepmother and your father’s side of the family and commit to a drug-free existence. At this juncture I can only assess your rehabilitative prospects as guarded. They may improve over the course of the lengthy prison term that I must impose on you, by for example your participation in rehabilitative programmes and or you seeking and accepting supervised release on parole should you be found eligible.
Mr Wood, you are 18 years of age and were one month into your eighteenth year when you offended. You have no prior convictions, however, are currently undergoing a sentence of 16 months’ incarceration in a Youth Justice Centre for an offence of aggravated car-jacking. You received this sentence in September of 2017. I have been told little detail of this offending. However, the nature of the charge and the sentence imposed suggests that it was of a serious order.
In the sentence I impose on you I am bound to apply the sentencing principle of totality. This is an overriding principle by reference to which sentences are to be measured. It requires me to consider the total criminality involved not only in the offences for which I am sentencing you, but also in regard to the sentence which you are currently undergoing. To the extent this has been made known to me I will have regard to this.
You were remanded in custody on 15 March 2017 for the
car-jacking offence and bailed on this on or about 10 April 2017.
The offending on which I must sentence you occurred during your period of bail and this is an aggravating feature.
You went back into custody on 17 May 2017 and were transferred to the adult remand prison. You were assessed in this environment by Ms Cidoni, psychologist, in June of 2017. You were later transferred to youth detention and assessed by Dr Ong psychiatrist in that environment in July of 2017.
Your background is contained within the reports of Ms Cidoni and Dr Ong. In summary, you were born in the Werribee area and your parents separated when you were approximately nine years of age. Your father was imprisoned for sex offences for approximately two years in 2008.
Consequent upon this, the family home in Werribee was lost and there then commenced a period of instability with rental accommodation being sought and living with relatives.
Ultimately I am told, in desperation, yourself and your mother came to live with your father after his release. Whilst your parents have not reunited, they were living together in Melton, however, your mother moved to her own residence in Melton South in 2017. It was at this residence that Mr Mesley came to live when he was in a relationship with your cousin, who was also living there after the time of Mr Mesley’s release from custody. Prior to this, you did not know Mr Mesley.
You have two older twin sisters and a younger half-sister.
You were diagnosed with ADHD in primary school and tendered on the plea hearing was a bundle of documents form the Royal Children’s Hospital attesting to this. I was told that unfortunately medication was recommended for you, however, your mother refused to embark on this.
You struggled academically and found the school experience unsatisfactory, leaving school partway through Year 9.
Ms Cidoni assesses you as having a full scale IQ of 77, which places you at the sixth percentile where 94 per cent of your peers would fare better than you. She states that at your level of functioning you are vulnerable in areas of problem solving and decision making. That you have a lesser ability to learn and reason, plan, understand, judge and discriminate and a lowered capacity to think about intended actions, to consider the possible consequences and to exercise restraint. She states you are also susceptible to suggestion and have problems in logic, foresight and planning. She also describes you as being immature.
Notwithstanding your deficits, to your credit, on leaving school you went to TAFE and completed a nine week course in automotive mechanics. You then worked with your father who is a truck and excavator driver and then commenced an apprenticeship as a diesel mechanic, however, left this position after approximately two years due to conflict with your employer.
You reported early cannabis use from the age of 14, use of ecstasy at ages 15 and 16, and methamphetamine or ice usage from age 17. At the time of your offending, you were using daily and addicted to this drug.
Apparently your mother would on occasions supply you with this drug and I note that the time of your arrest a small hydroponic cannabis cultivation was located.
It is apparent that there have been dysfunctional aspects of your upbringing and your formal education appears to have been beset with problems consequent upon your behavioural disturbance and diagnosis of ADHD. It appears that through no fault of you own, your mother formed a view that intervention by the Royal Children’s Hospital and medication of you was undesirable, and you did not receive the assistance for these conditions which you otherwise may have. Like your co‑offender, Mr Mesley, in the circumstances of your background, it seems that resort to drug abuse proved an attractive option for you. Like your co‑offender, this does little to reduce your moral culpability. Your offending is such that deterrence and denunciation must feature appropriately in the sentencing exercise. Your participation in burglaries and associated offending did not occur just by happenstance, rather you made a conscious choice to involve yourself in this activity. You were an active participant in the ordeal that Ms Bonacci was put through.
Given your comparative lack of antecedents, and young age, I ordered that you be assessed for your suitability for detention in a Youth Justice Centre. The report which I have received indicates that despite some initial concerns regarding your behaviour within the juvenile system, of more recent times you have been behaving appropriately.
In addition a reference from Parkville College which provides educational services to inmates in youth detention, states:
“we would like to emphasise that we are optimistic about Joshua’s rehabilitative prospects based upon his exemplary conduct, attitude and perseverance while in attendance at Parkville College.”
Given your young age and progress whilst at Malmsbury detention centre, I am of the view that you can be reclaimed. It is to be remembered that it is not only in your interests that you are rehabilitated but also it is in the community’s interests.
In sentencing each of you, I have had regard to the important sentencing principle of parity. This requires that like offenders should be treated as like. However, relevant differences should justify an appropriate difference in treatment. Personal factors, prior history and the role pursued by an offender in the criminal enterprise may justify an appropriate distinction.
In your case, I do not distinguish you from Mr Mesley in regard to the respective roles that you each pursued. In regard to the home invasion, whilst initially Mr Mesley might be said to have been the more aggressive, you appear to have behaved equally as badly at different stages of your offending conduct. It is relevant, however, to distinguish between you on the basis of Mr Mesley’s increased age, his prior convictions and his longer period of abuse of stimulant drugs.
You are still what the law terms a “young offender”. I have the power to impose a sentence of up to three years' detention in a youth justice centre on you, as opposed to sending you to prison in the adult system.
Generally speaking when dealing with a youthful offender, rehabilitation is considered to be more important than general deterrence. This is because punishment may, in fact, lead to further offending, in the sense that it is desirable to avoid placing young offenders in a prison context with hardened criminals who may seek to corrupt them.
Young offenders are often immature and therefore maybe more prone to ill-considered or rash decisions. They may lack insight, judgment and or self-control that an adult may possess.
I do allow for a degree of reduction in your moral culpability on account of your comparatively young age, and a level of immaturity.
Where it is appropriate for a young offender, the preferable course is to emphasise rehabilitation, and such an approach benefits the community as well as the offender. This however, is to be seen in light of the fact that as the level of the seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects generally of an offender’s youth. Here, undoubtedly, your criminal conduct is serious. Having regard to its relative seriousness, appropriate weight must be attached to general deterrence as a sentencing consideration.
Notwithstanding that whilst the benchmark for what is serious, as justifying adult imprisonment may be quite high in the case of a youthful offender, in your case you are close to this in my view.
Given your circumstances; including, your limited criminal history, and the fact that you appear to be beginning to appreciate the effect of your criminality, I am not satisfied that the powerful factors that have been accepted by the legislature and the courts requiring and justifying the existence of a separate youth correctional system have been displaced in your case.
I note also that the prosecution do not submit that you ought to receive a term of imprisonment in an adult prison. Irrespective of this, I have come to the view that your rehabilitation and the need for general deterrence and denunciation of your behaviour can be adequately addressed by sentencing you to a term of incarceration in a Youth Justice Centre.
Balancing all matters then dealing firstly with you Mr Mesley I sentence you as follows:
| # | Charge | Mesley | Cumulation |
| 1 | Burglary | 2 years | 1 year |
| 2 | Theft | 8 months | |
| 3 | Theft of firearm | 12 months | 4 months |
| 4 | Home invasion | 3 years and 6 months | BASE |
| 5 | Causing injury recklessly | 3 years | 2 years |
| 6 | Theft | 8 months | 2 months |
| 7 | Obtaining property by deception | 1 month | |
| 8 | Possess drug of dependence | $500 | |
| 9 | Resist emergency worker | 9 months | 3 months |
| 10 | Prohibited person possess firearm | 9 months | 3 months |
| 11 | Handling stolen goods | 1 month | |
| Related summary offences | |||
| 27 | Unlicensed driving | $500 | |
| 34 | Possess prohibited weapon without exemption/approval | 1 month | |
| Total Effective Sentence | 7 years and 6 months | ||
| Non Parole Period | 5 years and 6 months | ||
| 6 AAA declaration | But for your plea of guilty 10 years and 6 months and a non-parole period of 8 years and 6 months | ||
| PSD | 351 days |
108 I will indicate that seeking to isolate one matter on its own is highly artificial and far removed from sentencing in practice, however doing the best I can, that is the declaration I make under s.6AAA.
109 Mr Wood I sentence you as follows to the following periods of detention in a youth justice centre:
| # | Charge | Wood | Cumulation |
| 1 | Burglary | 1 year | 3 months |
| 2 | Theft | 5 months | |
| 3 | Theft of firearm | 5 months | |
| 4 | Home invasion | 2 years | BASE |
| 5 | Causing injury recklessly | 1year, 6 months | 9 months |
| 6 | Theft | 5 months | |
| 11 | Handling stolen goods | 1 month | |
| 12 | Possess firearm | 4 months | |
| 13 | Resist emergency worker | 6 months | |
| Related summary offences | |||
| 29 | Behave in offensive manner in public place | $300 | |
| 32 | Non-prohibited person possess, long arm without a license | 3 months | |
| Total Effective Sentence | 3 years detention in a youth justice centre . This sentence to be concurrent on any sentence currently undergoing | ||
| 6 AAA declaration | But for your plea of guilty I would not have imposed detention in a youth justice centre, and would have imposed 5 years' imprisonment, and a non-parole period of 3 years. | ||
| PSD | Nil |
110 Again, I will indicate that seeking to isolate one factor on its own is highly artificial and far removed from sentencing in practice. But notwithstanding that, that is the 6AAA declaration that I make. I understand there is no pre-sentence detention to be declared in this matter.
111 In regard to Charge 6 which incorporates theft of a motor vehicle I propose in both of your cases to cancel any licences to drive which you may have, and in your case Mr Mesley disqualify you from driving for four years and in your case Mr Wood for two years.
112 Are there any other orders required?
113 MR PICKERING: Your Honour, I believe that there were forfeiture and disposal orders filed. I don't know whether Your Honour has already made those as yet.
114 HIS HONOUR: I will make them in Chambers.
115 MR PICKERING: If Your Honour pleases. Other than that, no further orders.
116 MR DE KRETSER: As Your Honour pleases.
117 MS WATERS: As Your Honour pleases.
118 HIS HONOUR: Yes, nothing further?
119 MR PICKERING: No, Your Honour.
120 HIS HONOUR: All right, thanks, if you could remove Mr Wood and Mr Mesley.
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