Director of Public Prosecutions v Monro

[2020] VCC 1387

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02303
CR-19-02307

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN MONRO
JAKE SYNAN

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 16 & 17 June 2020, 28 July 2020
DATE OF SENTENCE:	1 September 2020
CASE MAY BE CITED AS:	DPP v Monro & Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 1387

REASONS FOR SENTENCE
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Subject:  Criminal law

Catchwords:                   Aggravated home invasion; aggravated burglary – person present; aggravated burglary – offensive weapon; burglary; theft; attempt to commit indictable offence – aggravated burglary; traffick cannabis

Legislation Cited:           Sentencing Act 1991

Cases Cited:R v Verdins & Ors [2007] VSCA 102; 16 VR 269; Brown v The Queen [2020] VSCA 60; Bradshaw v The Queen [2017] VSCA 273; 269 A Crim R 67; R v Hilliar [2020] VCC 677

Sentence:Offender Monro: TES of 4 years imprisonment with a NPP of 2 years 8 months

Offender Synan: TES of 3 years 7 months imprisonment with a NPP of 2 years 2 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For Offender Monro	Mr S. Kenny	Pica Criminal Lawyers
For Offender Synan	Ms K. Phair	Theo Magazis & Associates

HER HONOUR: 

1Between 10 September 2018 and 17 January 2019, a series of housebreaking offences were committed across Melbourne by a team of offenders.  The incidents occurred in the early hours of the morning on six separate days within those dates.  In total, seven houses were entered and one house was the subject of an attempted entry, forming a total of eight housebreaking incidents.  The actual offending group varied between incidents.

2There is no other description than this was a well organised and sophisticated methodology used to commit the offences where the primary aim was to locate and steal cannabis crops.  This obviously occurred in circumstances where the offenders were of the belief that the victims were unlikely to complain about any theft.

3Essentially the modus operandi on each occasion involved:

a.Firstly, houses being identified prior to the morning of the actual housebreaking.  A FLIR (Forward Looking Infrared Radar) was used.  This device can apparently identify areas of higher temperature.  Cannabis plants thrive in a warmer environment and indoor plantations are often heated.  The FLIR was used by the group to identify homes likely to be growing cannabis.

b.Once the target home was identified, members of the group would travel to the address in the early morning. 

c.False number plates were fixed to the vehicles used in the offending.

d.A getaway driver would be nominated and would remain with the vehicle. 

e.The other participants would enter the target premises with their faces covered and equipped with items such as crowbars, garden shears and poles used to gain entry and collect any cannabis crop located therein. 

f.Items other than cannabis would also be taken if readily available and or there was no cannabis located.

4The offending involved clear premeditation, planning and was highly orchestrated.  It was extremely serious.  Those involved in each incident had their “role to play”.  For example, one person was responsible for remaining with the vehicle whilst others entered the premises disguised and with items to assist in their intention, that being to steal.  I accept the submission that overall, there was no identifiable instigator or leader.

5The police investigation was equally sophisticated.  It involved some direct evidence from witnesses or victims, noting most were not as interested in complaining when a cannabis crop was stolen.  The investigation otherwise involved telephone intercepts on telephones linked to offenders
Rhys Abela-Rogers and Charlie Farrugia from 20 December 2018, listening and tracking devices installed into Rhys Abela-Rogers' car just prior to the final day of the offending, and a detailed piecing together of traffic camera information and call charge records.  Various relevant items were seized under warrants executed at the offenders' property and of their vehicles.  Some CCTV was also sourced.

6As a result, seven offenders were charged.  Those persons are
Rhys Abela-Rogers, Charlie Farrugia, Dylan Farrugia, Abdulahi Ali, Jackson Balshaw and each of you, Jake Synan and Damien Monro.  The plea hearings of all but Jackson Balshaw commenced on 15 June 2020 and took place over three days before being adjourned to 28 July 2020 for further plea.  On that day, Jackson Balshaw was arraigned on a separate indictment and entered pleas of guilty to the offending for which he takes criminal responsibility. 

7There was a familial link between at least four of the offenders, being Rhys Abela-Rogers, Dylan and Charlie Farrugia, and you, Damien Monro.  I understand that Rhys Abela-Rogers is the half-brother of Mr Monro and that the Farrugias are your cousins.

8In terms of the indictment, Jake Synan, you have pleaded guilty on indictment to the aggravated burglary and theft at 14 Thurbro Drive, Keysborough (being Charges 9 and 10), and the attempted aggravated burglary of 15 Aloomba Street, Chadstone (being Charge 11).  You have also pleaded guilty to a summary offence of failing to provide information or assistance to police to access data.

9Damien Monro, you have also pleaded guilty on indictment to the aggravated burglary and theft at 14 Thurbro Drive, Keysborough (Charges 9 and 10), and to the attempted aggravated burglary of 15 Aloomba Street, Chadstone, (Charge 11).  You, Mr Monro, were on bail at the time this offending and have pleaded guilty to a related summary offence of committing an indictable offence (aggravated burglary) whilst on bail.

10There is no suggestion that either of you were involved in any of the offending which predated 17 January 2019 and you obviously only fall to be punished for that in which you were involved.  Neither of you were the instigators of the offending.  Your involvement was on the final day of this high-end and otherwise prolific housebreaking spree.

11In sentencing you for your crimes I must have regard to the maximum penalty for each of the charges to which you have entered your pleas of guilty. 
The maximum penalty for aggravated burglary is 25 years imprisonment, the maximum penalty for attempted aggravated burglary is 20 years' imprisonment and for theft is 10 years imprisonment.  The summary offence of fail to provide information carries a maximum of two years' imprisonment and the bail offence carries a maximum of three months' imprisonment.  These maximum penalties reflect the seriousness with which Parliament regards these offences.

12The circumstances of your offending were set out in a detailed document entitled “Summary of Prosecution Opening on Plea” dated 20 May 2020.  This is an agreed document, confirming your acceptance of all of the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence.

13On the day of your offending it was Rhys Abela-Rogers, Charlie and Dylan Farrugia, and you, Damien Monro, who were recorded on a listening device planning the use of FLIR devices, identifying cannabis grow houses and which houses to break in to.  The plan included meeting with you, Jake Synan, and with Jackson Balshaw and Abdulahi Ali to break into five houses that morning.  The Abela-Rogers group were to provide three addresses and Abdulahi Ali was to provide two addresses.  Again, you are not to be punished for the intentions that never came to fruition, but it is a mark of the high ambition of this particular criminal enterprise.

14You, Jake Synan, arrived at Abdulahi Ali's residence at about 00:26 in the morning of 17 January 2019.  A FLIR device was put into Abdulahi Ali's Camry and false plates were fitted to the vehicle.  You, Mr Synan, Jackson Balshaw and Abdulahi Ali met up with Rhys Abela-Rogers and the others, including you, Damien Monro, who were all in Abela-Rogers’ Toyota Aurion.  The two cars then travelled together to the first address, being 14 Thurbro Drive in Keysborough, where the aggravated burglary occurred.  This charge is particularised as being entry with an intention to steal and at the time of entering, a person was then present and that you knew or were reckless as to that presence.

15What occurred inside the premises is also revealed by a listening device in the Aurion.  On returning to the Aurion, Charlie and Dylan Farrugia and Rhys Abela-Rogers discussed a female and male being at the house, a cannabis plantation at the house and that cannabis and a fan were taken.

16Rhys Abela-Rogers spoke of having demanded money from the female and taking her purse which contained $1,000.  No one is charged with that particular theft.  It is referred to in the Crown summary.  I do not intend to use it against either one of you in sentence.  Essentially, you were both involved in objectively serious offending by performing your respective roles, which for you, Jake Synan, involved actual entry and for you, Damien Monro, involved waiting with the vehicle which would then be used to escape, part of the by then well-established modus operandi.

17A police unit later attended the house and observed that the front door had signs of forced entry with a trail of cannabis from the front door down the driveway.  Cannabis was located inside the premises.  The Asian female at the house declined to provide any information to the police.  The prosecution advises that she was pregnant.  There is no evidence that this was known to either of you at the actual time of your offending.

18You have each pleaded guilty to the theft of cannabis plants from this address.  Whilst representing a successful outcome, no value has been determined and no person has complained.  This theft, whilst representing additional criminal conduct, is part of the purpose on entry of the aggravated burglary.  It is my intention on sentence to make any term of imprisonment imposed for the theft to be concurrent with the sentence imposed for the related aggravated burglary.

19At around 3.25 am, also on 17 January 2019, obviously not long after leaving the Thurbro Drive address, the Toyota Aurion parked near 15 Aloomba Street, Chadstone.  Rhys Abela-Rogers, you, Damien Monro and Charlie and Dylan Farrugia had checked that house earlier that morning, where strong readings on a FLIR had been obtained.  Abdulahi Ali was also in the vicinity in the Camry.  An arrangement was made for him to be the driver and for you, Jake Synan, and Jackson Balshaw to be one of those who entered the premises.

20Rhys Abela-Rogers and the Farrugias left the Aurion.  You, Damien Monro, again remained as the driver of that vehicle.  Loud banging and a male yelling loudly could be heard on the listening device before they each returned to the Aurion soon thereafter and discussed being confronted at the front door of the house by a large Aussie bloke - not a “nip” - and leaving.

21When police attended the address they observed that the front door had signs of attempted forced entry and 51 cannabis plants were in the garage and rear shed.  The male resident would not provide any information to police.

22Undeterred, the band of offenders then drove towards a third house they intended to break into at 22 Ruby Street, Preston.  You are not charged with the approach to these premises.  Rather, it is outlined in the Crown opening to further inform the circumstances of the planning and as an indication that this address was likely to be one of the five premises intended to be entered that morning as part of the audacious plan.  As the Ruby Street address was neared, a police divisional van approached the vehicles.  The Camry flashed its headlights at the Aurion as the police van approached.  The Camry took off at a fast rate of speed on the wrong side of the road.  The police van then pursued the Camry, attempting to intercept it, but was unsuccessful.

23The Aurion was driven back by you, Damien Monro, to Rhys Abela-Rogers' father's house in St Albans, where it was found by police later that day. 
CCTV at Abdulahi Ali's house recorded your return, Jake Synan, to his premises at around 4.30 am.  At that time, you assisted in the removal of registration plates on the Camry and removing cannabis plants from the boot of the vehicle into Ali's house.  Police later located 7.73 kilograms of cannabis plants and buds in the laundry and two cannabis plants in the backyard of his premises.

24You, Damien Monro, were arrested by police at your residence on 17 January 2019.  On 7 May 2019, police attended at your residence, Jake Synan, and you ran out the back.  Police apprehended and arrested you at the side of the premises.

25Nothing of value to the investigation was located by police at either of your residences, supporting the already accepted position that your respective involvement in these events was in close proximity to them actually occurring.  However, you obviously each made a decision to be involved and there is no reason for me to form any other view than that your moral culpability is high.

26Charge 9, aggravated burglary, and Charge 11, attempted aggravated burglary, occurred on the same morning approximately 30 minutes apart.  There was clearly common general planning, preparation and organisation for these events.  I accept the Crown concession that there should be some concurrency between the sentences imposed to reflect that overlap.  As neither of you had been involved in any of the earlier events, the sentence must also reflect that you had not had the same opportunity as some of your co-offenders to reflect between offending.

27Whilst your counsel, Mr Synan, challenged that I can be satisfied that the address the subject of the aggravated burglary at Thurbro Drive was a residence, based on observations of police members, which included the presence of a female, and photos tendered of the internal environs which included bedding, children's toys, food in the pantry, dishes in the sink and laundry items, I accept that this was a place of residence, even if it served a dual purpose.

28Regardless of this duality, I accept the submission by the Crown that all persons are entitled to the protection of the law, no matter what their circumstances.  The fact that a victim is engaged in criminal activity at the time of the offending against them may be relevant in assessing the harm caused to the victim by the offending.  I have no evidence of that harm but have little hesitation in forming the view that the entry, at least that of Thurbro Drive, would have been extremely frightening to the occupants.  The occupant of Aloomba Street is described in the Crown opening in a somewhat more robust fashion. 

29In terms of the charges of aggravated burglary - Charge 9, and the attempted aggravated burglary, at Charge 11 - I am assisted by the decision in DPP v Meyers (2014) 44 VR 486, which includes a non-exhaustive range of factors to be considered in assessing the objective gravity of an aggravated burglary. These include the offender’s intent at the point of entry (whether to steal or commit assault or cause damage); the mode of entry (for example, by forcing a door or breaking a window); whether the offender was carrying a weapon; whether the offender was alone or in company; the time of day at which the burglary took place; what the offender knew or believed about who would be inside and about where the person would be; and whether the offender was someone of whom the victim was particular frightened.

30These offences, as already described, were well planned and orchestrated and involved research as to the intended targets, the coordination of multiple offenders and two vehicles with false registration plates, the obtaining and use of the FLIR, disguises, garden shears and implements to effect the theft. 
The intended theft of cannabis was likely to be of value to the offenders or it simply would not have been targeted.

31Once commenced, your offending represented violent entry into a residence in the early hours of the morning by multiple offenders wearing disguises and carrying implements designed to effect the theft, but which clearly had the added advantage of being part and parcel of what could only be described as a highly intimidating entry.  This circumstance would naturally be frightening to any residents and undoubtedly was intended to be.  It is perhaps obvious and highly probable that residents would be home at that hour that entry was effected.  Darkness of course provided you the extra element to avoid detection and to create fear.  Premises were targeted in circumstances where it was expected, and in this case realised, that there would be no complaint made.

32I have been referred to and had access to the current Sentencing Snapshot of the Sentence Advisory Council, No.237, in relation to the offence of aggravated burglary for offences committed between 2014 to 2015 and as between 2018 and 2019.  Such that it assists, this tells me that the median principal imprisonment length for the charge of aggravated burglary in the higher courts between that time period was one of three years.  Total effective imprisonment lengths ranged from three days combined with a community corrections order to 12 years, and non-parole periods imposed ranged from eight months to nine years.

33Overall, I assess the aggravated burglary and attempted aggravated burglary you have committed to be at the mid and moving towards the high range for offences of their type.

34The 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.  I will return to this principle as it relates to each of you - bearing in mind each of you were only involved in the offending on the final day - and as it relates to you and to your other
co-offenders.  It would have been apparent to each of you that this was serious and well-orchestrated offending in which you were clearly prepared to participate. 

35I now turn to you as individuals.

Jake Synan

36Mr Synan, I accept the submission that there was no evidence that you were involved in identifying the houses that were to be burgled.  This does distinguish you from your direct co-accused, Damien Monro, who was involved in planning discussions in close proximity to the events of 17 January 2019 and who was involved in checking the viability of 15 Aloomba Street, Chadstone as a target with Rhys Abela-Rogers and the Farrugias early on the morning of 17 January 2019.  I note there is no evidence that you were involved in that planning or knowledge as to how many addresses were to be approached.  Either way, you appear to be an active participant in the events which unfolded.

37In terms of all of the offenders involved in these two events, I see yours,
Mr Synan, as being somewhat more limited.

38You are also charged with the related summary offence of failing to provide access to a data code device.  Upon your arrest on 17 May 2019, you were taken to the police station.  Police explained that the search warrant required that you provide information or assistance in relation to police accessing your mobile phone, which was password protected.  You read the search warrant and refused to provide the password to your phone.  The charge of failing to provide information or assistance to police to access data is one that carries a maximum penalty, as I have said, of two years imprisonment.  I have no real information to assess the gravity of this offence.  Bearing that in mind and the principle of totality, your punishment for this offence will be concurrent with the other sentences imposed this day.

39I accept that you offered to plead guilty at the commencement of committal proceedings to charges of aggravated burglary of the Keysborough premises and attempted aggravated burglary at Chadstone.  There appears then to have been a degree of what I will describe as “backwards and forwards” before a plea was ultimately resolved, but efforts to do so remained.  Overall, I accept that your intention to plead guilty was at an early stage and has utilitarian value.  It has saved the court the time and expense of what would have been complex contested proceedings, as well as the witnesses the need to attend and give evidence.  On the materials before me, I accept that your plea is one of remorse.  All of these matters will be taken into account in your favour.

40In terms of your personal history, you are 23 years of age and were aged 22 at the time of your offending.  Whilst technically not a young offender, I accept that your relative youth still has some relevance to the sentencing mix and, in combination with other matters to which I will refer, forms a basis to still place some reliance on your prospects for rehabilitation.

41Your early childhood was marred by severe domestic violence between your parents.  You recall your mother being hospitalised on several occasions.  Your parents separated when you were seven years of age and you resided with your mother and spent time with your father until you were aged 10 years, when all contact with him ceased.

42I accept that there is an unfortunate legacy of being exposed to these circumstances and enduring a childhood of what could only have been one of constant fear.

43You have two half-brothers and one half-sister to both of your biological parents.  You are fortunate to maintain a close relationship with your mother and continue to reside with her.  She is a considerable support to you.  She now receives a disability support pension as a result of head trauma from domestic violence.  You are a support for your mother.

44You had a disrupted early education, moving to five different primary schools in Melbourne and one in Mildura, which was dictated by the need to escape your father's violence.  Your secondary school education was also disrupted but you managed to complete Year 10 and left school at the commencement of Year 11.

45Your mother formed a new relationship when you were around nine years of age and you regard this man, Peter Synan, as your father, taking his surname.  Apparently, he has a significant criminal history and is currently serving a sentence in relation to a charge of armed robbery, however at various times he was part of the community and worked as a painter and decorator and you often worked as an assistant to him.

46You obtained a Certificate I and Certificate II in civil construction.  You also have rail tickets and a white card and have worked as a landscaper over the last 10 to 12 months.

47You have an admitted criminal history which includes one appearance at Melbourne Magistrates' Court on 2 July 2018 in relation to charges of possessing cannabis, going equipped to steal and carrying a weapon, for which you were convicted and fined an aggregate amount of $750. 
This appearance has little relevance to the sentencing in this case other than it indicates an involvement with cannabis.

48Indeed, you commenced using alcohol and smoking tobacco at 12 years of age and commenced using cannabis at 15 years of age but were not an habitual user until you were around 21.  You have also used the drugs ice, amphetamine and cocaine and by the time of your offending in January 2019 you were habitually smoking cannabis and occasionally using cocaine. 
That is according to what you told psychologist, Ian Mackinnon.  Submissions made on your behalf and your self-report to the CISP program would indicate you were also using ice.

49By the time you were arrested on 7 May 2019 you had already ceased all drug use.  By this stage the other offenders had all been identified, charged and remanded.  You appear to have used this and your offending as a “wake-up call”.  Your involvement therefore in the criminal justice system involves that one court appearance in mid-July 2019 and your offending on 17 January 2019, which represents a serious escalation in what you were prepared to be involved in.  As a direct consequence of that offending, you were remanded into custody and served a total of 51 days on remand before being released on bail on 26 June 2019. 

50You were released onto the Court Integrated Services Program, or CISP program, from the Magistrates' Court which was attached to your bail order.  Tendered on your behalf was a final progress report from the program dated 15 November 2019.  By that program you were referred to IPC Health for drug counselling and were offered four sessions with a counsellor but chose not to attend these sessions, indicating that you had no desire to engage.  You are of the belief that you can manage your own abstinence as you were abstinent some three months prior to your remand and abstinent during the period of your remand.  You declined to give urine screens but the author of the report, Mr Kyle Miller, notes that you never attended any appointment appearing to be substance affected.  Concern was expressed by him about you not having attended any face-to-face sessions with an alcohol and drug clinician for the purposes of instilling strategies to support you to remain abstinent.  I hold the same concerns.  However, you remain steadfast in your opposition to attending such appointments and equally determined to remain abstinent from drug use.

51You did attend one appointment with New View Psychology as part of your bail program but declined to attend further appointments.

52Mr Miller found that you were able to discuss your feelings and emotions openly during the sessions with him.  You discussed your remorse and a desire to avoid any further negative interactions with the criminal justice system.  In finalising his report, Mr Miller commends you for having successfully completed your episode of case management with the Court Integrated Services Program. 

53You were also referred to an employment placement service for support in obtaining a Certificate II in rail infrastructure, an area in which you have a keen interest in terms of future employment.  A statement of attainment entitled “Safely access the rail corridor” was also tendered on your behalf.

54In addition, I have had recourse to a psychological assessment of you authored by Ian Mackinnon, consultant psychologist, dated 4 July 2020.  His report was not the subject of challenge.  He indicates that you are remorseful for your criminal actions and acknowledge that your offending was due to your own poor decision-making.  In his opinion you have no psychological disorder and your role in the offending was likely to be related to your negative peer group.  He opines that you do not have an entrenched criminal disposition, do not present with an inherently antisocial or criminal character and that your prospects for rehabilitation appear to be favourable.  He is not of the view that you would benefit from engaging in ongoing psychological therapy or other formal counselling.  Given Mr Mackinnon's assessment that you are unlikely to benefit from formal counselling, your disinclination to engage in referrals by the CISP program perhaps cannot be criticised.  Whilst he takes the view that you would cope well enough with the prison environment, he also expresses some concern about the obvious detriment to you being exposed to criminal associations.

55Taking into account this report, your very limited criminal history, your work skills and efforts at your own rehabilitation, I accept his assessment as to your rehabilitative prospects.  You take responsibility for your offending without minimising it, show insight into the contributing factors and have sought to do something about them.

56You should be encouraged for the efforts that you have made to date to turn your back on the events of January 2019.  This decision has clearly made a positive contribution to your own life and to those that support you.  If you can maintain that current trajectory and desire, then your prospects of rehabilitation remain.

57I accept the submission that, in your particular case, less weight can attach to the need for specific deterrence and the need to protect the community.

Damien Monro

58Mr Monro, in terms of your personal circumstances, you were 25 years of age at the time of your offending and are now 26 years old.  You are the oldest of those involved in the offending of 17 January 2019.  You were raised by your mother and stepfather in Deer Park and have one sister and five step siblings.  You have had minimal contact with your biological father, from whom your mother separated when you were three years of age.

59Your main father figure was your stepfather, Fred Abela, who was violent towards you, your mother and your siblings.  Your mother and he separated some four years ago.

60I also accept in your case that this childhood exposure as both a witness to and victim of domestic violence must, by its very nature, have left its scars.

61Indeed at an early age, you began running away from home to avoid the violence and spent periods of time in residential care in your teens. 

62You had difficulty during your schooling years due to learning difficulties and behavioural problems.  You stopped attending school at about Year 8 level.

63Your criminal history commences when you were approximately 15 years of age.  You appeared in the Children's Court jurisdiction on at least three occasions for wide-ranging offending in terms of its seriousness, which included assaults, thefts, driving offences, weapons possession, attempted armed robbery, armed robbery, threat to inflict serious injury, handle stolen goods and breaches of Children's Court sentencing dispositions, including probation and youth supervision orders.

64Your last appearance in that jurisdiction was on 10 October 2012, when you appeared at the Melbourne Children's Court and were dealt with for breaching  youth supervision orders that had been imposed in April 2011. 
The breach of supervision orders was found proven and you were placed in a Youth Justice Centre for a period of 74 days.

65There was then a break in your offending until 20 November 2015, when you appeared at the Melbourne Magistrates' Court in relation to charges of making a threat to kill, threat to inflict serious injury, criminal damage, unlawful assault, failing to answer bail, using a carriage service to menace and other offences.  At that time, you were convicted and sentenced to 43 days imprisonment in combination with a community corrections order, with treatment conditions, for a period of 12 months.  You were fined in relation to the use carriage service charge.

66On 16 November 2017, the Sunshine Magistrates' Court dealt with your contravention of the order imposed on 20 November 2015 and the original order was simply confirmed.

67You are not to be punished for this criminal history a second time.  The role which it does play is to inform your moral culpability for this offending, to assess the weight that needs to be given to specific deterrence and denunciation, as well as the need to protect the community.  It is also a means with which to assess your prospects for rehabilitation.  I accept that with many of the prior matters being dealt with in the Children's Court you would not have had the maturity and understanding of an adult at that time.  It did still, however, provide you with the opportunity to learn from your mistakes and to be supported by a range of more benevolent sentencing dispositions than in the adult jurisdiction, an opportunity you do not seem to have taken.

68At the time of your offending you were on bail, the subject of a summary charge to which you have pleaded guilty. 

69Bearing in mind the close link between this offence, the low maximum penalty and the principle of totality, the sentence I will impose for the summary offence will be concurrent with the sentence imposed for the offending the subject of the indictment.  Overall, you have demonstrated an inability through your history to abide by a variety of court orders or to respond to the short, sharp shocks of detention or imprisonment.

70You attribute your criminal history to your lack of stability in the home environment and that in your early teens you commenced using cannabis and drinking alcohol.  I accept that this is likely.  At a later stage, you started using methamphetamine.  That use increased.  You ceased using that drug at around 20 years of age but did continue to use both cannabis and alcohol heavily.  You accept that alcohol was a major problem for you up until the time of your arrest for these matters and that you were also using cannabis.

71When you did leave school, you did some work with your stepfather in the installation of insulation for approximately two years.  Prior to your remand, you had only worked sporadically in several unskilled jobs, mainly in the construction industry.

72Tendered on your behalf is an assessment conducted by Mr Jeffrey Cummins, consulting clinical and forensic psychologist.  In his unchallenged report dated 18 February 2020, Mr Cummins opines that you suffer from symptoms of trauma- and stressor-related disorder in the form of adjustment disorder with  mixed anxiety and depressed mood related directly to your upbringing.  In his view, you most probably have a borderline personality disorder, characterised by impulsivity and unstable self-image and difficulty in accurately appraising and monitoring close relationships and friendships.  To him, you presented as being of low average intelligence.  He was of the belief that you were self-medicating on alcohol and cannabis at the time of your offending and in his opinion you appear to be genuinely remorseful.  Mr Cummins recommends mental health treatment in relation to unresolved feelings relating to your father and stepfather and recommends an anger management program. 

73Your counsel does not call into your aid the principles of R v Verdins & Ors. 

74You have remained in custody since your arrest.  This represents the longest period of time you have spent in custody and you have chosen to use your time wisely.  Clean urine screens have been tendered.  You have completed courses in traffic control and traffic management.  You have consistently maintained employment in the custodial setting and have been involved in the ReBuild course run by the YMCA.  You hope to use these skills to return to work in the construction industry upon your eventual release.

75You, as I have said, enjoy a close relationship with your mother as well as with your siblings and intend to reside with her upon your release. 
Your mother, Fiona Rogers, has provided a reference for you in which she describes the domestic violence you both witnessed and suffered.  She refers to you running away from home at a young age due to the fear of your stepfather.  She speaks also of seeing a massive change in you since being on remand, to you being remorseful for your actions and focused on obtaining employment when you are released.  Your mother says that you have a big support group of family and friends who will be there to help you in your future life.

76Georgia Mahon, who I understand to be an ex-partner, has also provided a reference and describes herself as a close friend.  She says you have a kind heart, are loyal and adore your family and would help and support anyone who needed it.  To her, you have also expressed remorse and sadness over your actions.  She says this is the first time she has heard you describe goals for your future and to plan for it.

77I have also had recourse to a reference from your stepsister, Sarah Upton.  She also describes you as decent, honest and caring and being motivated to change for the future. 

78It appears you are supported by family and friends upon your release.

79You entered your plea at the conclusion of committal proceedings and I accept that your plea of guilty was one at an early opportunity in circumstances where you initially faced charges in relation to seven incidents.  I accept that your plea also has utilitarian value in that it has saved the court the time and expense of convoluted contested proceedings.  Based on the materials I have read, I also accept your plea as one of remorse.  These factors will also be taken into account in your favour.

80Your counsel submits that your prospects for rehabilitation are good.  However, your criminal history, offending whilst on bail, unresolved trauma from your familial background, largely untreated drug and alcohol problem, and need for further interventions based on the recommendations of Mr Cummins lead me to an assessment that your prospects for rehabilitation at this stage are instead somewhat guarded.

81Your counsel submits that your offending is not particularly serious for offending of its type.  This is a description I simply do not accept.  Whilst your involvement came at the conclusion of what was otherwise a crime spree for others, you were involved in the initial planning for the events of 17 January 2019, which had some five targets in its sights, even if only one eventuated in the intended theft.  The offending involved two carloads of masked offenders with a list of intended targets.  The addresses had been preselected once investigated as to their prospects by use of a FLIR, with the primary purpose of stealing cannabis and in the belief there was unlikely to be any complaint.  Whilst you remained with the car for each offence, this was your allocated role in this sophisticated enterprise.  The recording from the listening device in the Aurion was tendered and reveals that you were both willing and enthusiastic in your participation.

82The submission made on your behalf was that an appropriate penalty includes a lengthy period of supervision in the community either by way of community corrections order in combination with a term of imprisonment or a non-parole period.  Given my assessment of the gravity of the offending and your prospects for rehabilitation, I see no alternative other than the imposition of a prison term with a non-parole period.

COVID-19

83The impact of the COVID-19 pandemic has also been raised by each of you. 
I have had recourse to recent decisions in terms of this pandemic and its relevance to sentencing.  In Brown v The Queen [2020] VSCA 60, Priest and Weinberg JJA considered how the pandemic might impact on sentencing. Their Honours stated:

“In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matter stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards to its effect upon relevant sentencing principles.  We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community.  The extent to which that may be taken into account, if at all, will be a matter to be resolved in the particular facts of any individual case.”

84For you, Mr Synan, on any return to custody it is likely to be in harsher conditions than what you experienced prior to your release on bail.  You will be required to quarantine for the first 14 days.  At the present time, there is limited access to programs.  Contact with family members is via virtual means and less constant and there is the understandable continued anxiety about COVID-19 hitting the prison system.  You are naturally concerned for your mother's wellbeing in your absence.

85For you, Mr Monro, it has been part and parcel of your prison experience since March of this year and has meant that you have also had limited access to programs and contact with family, as well as maintaining the anxiety to which I have already referred.  Up until the advent of COVID-19 you had been enjoying regular visits from family members.  It has made the prison experience more difficult.  In each of your cases, I take the COVID-19 pandemic into account in a general sense.

Parity and sentencing

86I return now to my earlier reference to the parity principle.  The parity principle requires a jCourt to impose the same sentence for the same offending unless there were distinguishing features in respective roles in that offending, or in other relevant sentencing considerations, which warrant differential sentences.  I accept in broad terms the submission that for those involved in the offending of 17 January 2019, each and every one of you played equal roles in the careful design and then implementation of the agreed offending.  Everyone had an allocated task.

87However, the true application of the parity principle has greater application in terms of the sentences to be imposed between you, Mr Synan, and you,
Mr Monro, as opposed to that between each of you and the other five offenders on 17 January 2019.  What cannot and should not be lost from the equation is that each of you were only involved in the final day.  This has to be reflected in the sentences imposed.  Neither of you have the increased moral culpability associated with repeated offending of the same nature.

88As between the two of you, there are immediate points of difference.  In terms of the actual offending, Mr Monro was involved in planning discussions immediately prior to the events of 17 January 2019 and he was involved in the reconnoitre of the premises at 15 Aloomba Street, Chadstone.  There is no evidence that Mr Synan was so involved.

89In terms of personal circumstances there are also points for distinction in Mr Synan's favour in relation to him being younger, his less serious prior criminal history and his less relevant prior criminal history, and my assessment as to your respective prospects for rehabilitation.  However, the need for general deterrence and denunciation remain.

90For you, Mr Synan, your counsel contends that the relevant sentencing considerations can be adequately reflected by the imposition of what is referred to as a combination sentence.  That is a term of imprisonment in combination with a community corrections order.  It is submitted that your path to rehabilitation should not be halted by the imposition of a term of imprisonment.

91Your counsel, Mr Synan, referred me to the decisions in Bradshaw v The Queen [2017] VSCA 273 and to The Queen v Hilliar [2020] VCC 677 as comparative cases which can be used to support the sentencing submission made on your behalf.

92In Bradshaw's case, he received a combination of a Youth Justice Centre order and a corrections order on appeal to the Court of Appeal in relation to a charge of aggravated burglary and common law assault.  At the time of this offending, Mr Bradshaw was 18 years of age, with no prior convictions.  The aggravated burglary and common law assault involved attending at an 18th birthday party with a knife, two other young offenders who had their faces covered, to avenge a decision by a 16-year-old hiding at the premises to leave a local gang.  His co-accused had an axe and a dog on a lead.  Upon entering the unit, Mr Bradshaw confronted a woman inside the unit with a knife, demanding to know where the defecting member was.  One of the occupants then asked Mr Bradshaw to leave and brandished a baseball bat. 
Mr Bradshaw then swung the knife around at people inside the unit and the man with the baseball bat smacked it against a couch and told Mr Bradshaw to leave, who then yelled at the man and tried to stab him, constituting the charge of common assault.

93Ms Hilliar was convicted and sentenced to 158 days imprisonment combined with a two year community corrections order for charges of aggravated burglary, theft and possessing a drug of dependence.  She was 25 years of age and had worked as a prostitute on a social media platform and made arrangements in that capacity to visit the victim, who she understood to have a number of motorbikes and whom she believed had previously stolen from her.  She attended as arranged, but with four male co-offenders, and executed a ruse which enabled them to ultimately gain entry.  Once they entered, the victim was tied up at gunpoint and a number of items stolen including a laptop, iPhone, iPad and a small safe.  Ms Hilliar was not charged with armed robbery and not charged with home invasion.  The judge dealing with that case found the aggravated burglary to be at a low level and took into account her lack of prior convictions, full account in her interview, relative youth and post-traumatic stress disorder.

94Whilst the cases I have been referred to have points of similarity, they understandably have points of difference. 

95Your offending involved two separate incidents that were highly planned and, on the first matter, involved the deliberate entry into the home of another with others disguised and with implements designed to effect the intended theft.  It is a far more sophisticated endeavour than that which was barely executed by Mr Bradshaw and also more serious than that to which Ms Hilliar entered her pleas.

96The submission for a combination sentence made on your behalf had its primary foundation in your efforts at and prospects for rehabilitation, and the description of your offending as being at the lower end of seriousness for this type of offending.  As I perhaps made clear, I do not consider your offending to be at the lower end.

97In addition, a combination sentence is limited by the provisions of s.44 of the Sentencing Act, which restricts the Court to a maximum of 12 months imprisonment; that is, the court may only make a community corrections order in addition to imposing a sentence of imprisonment if all the terms of imprisonment to be served - after deduction of any period of custody that under s.18 is reckoned to be a period of imprisonment or detention already served - is one year or less.

98In your case, this would effectively restrict the court to a total of 12 months and 51 days imprisonment in combination with a community corrections order.  I do not see this as being an adequate reflection of the relevant sentencing considerations.

99I do acknowledge however, Mr Synan, the mitigating factors in your guilty plea being entered at an early stage, your lack of relevant prior convictions, your work history and family support and your good prospects of rehabilitation given recent efforts.  I do accept the submission that there is merit in imposing a lower head sentence and minimum term than would otherwise have been imposed.  I also accept that there is merit to you accessing supported release into the community for an extended period to facilitate your return and provide appropriate supports, both of which are capable of affording additional community protection through fostering your desire for continued rehabilitation.  You should not lose sight of the genuine gains that you have made, nor your desire to maintain them.

100Whilst it is a difficult sentencing undertaking to return someone to the prison environment after a period of rehabilitation, in this particular case there simply is no alternative.  I am well aware that gaol is a situation of last resort.

101Otherwise, 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.

102I am also required to balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure as far as possible that offenders are rehabilitated and are reintegrated into society.

103I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case.  I foreshadow making the ancillary orders once those discussions have been completed.

104I have taken into account current sentencing practices for the offences to which you have pleaded guilty.  I have taken into account specifically the principles of totality and proportionality.

105For you, Mr Synan, in relation to the charge of aggravated burglary, Charge 9, you are convicted and sentenced to three years and four months' imprisonment, which is the base sentence. 

106On the charge of theft, Charge 10, you are convicted and sentenced to 12 months imprisonment, which as previously indicated is wholly concurrent with the base sentence. 

107In relation to the attempted aggravated burglary, Charge 11, you are convicted and sentenced to two years and two months imprisonment, of which three months is made cumulative on the sentence imposed on Charge 9. 

108In relation to the summary charge of refusing to provide information or assistance to police to access data, you are convicted and sentenced to six months imprisonment, which through my earlier reasoning will be concurrent with the other sentences imposed this day.

109For you, this comprises a total effective sentence of three years and seven months imprisonment. 

110I fix a period of two years and two months before you are eligible for parole and reckon 51 days as having already been served in relation to this sentence.

111Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed in you had not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced you to a total effective sentence of five years and three months with a minimum of three years before being eligible for parole.

112Damien Monro, in relation to the charge of aggravated burglary, Charge 9, you are convicted and sentenced to three years and eight months imprisonment.  This is the base sentence. 

113On the charge of theft, you are also convicted and sentenced to 12 months imprisonment, which I will also make wholly concurrent. 

114In relation to the attempted burglary, Charge 11, you are convicted and sentenced to two years and four months imprisonment, of which four months is made cumulative on the sentence imposed on the base sentence. 

115You are convicted and sentenced to one month imprisonment for the bail offence, which as indicated I will make wholly concurrent.

116For you, this comprises a total effective sentence of four years imprisonment. 

117I fix a non-parole period at two years and eight months and reckon 593 days as having already been served.

118Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced you to five years and six months with a minimum of three years and eight months before being eligible for parole.

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