Director of Public Prosecutions v Valiusaitis
[2025] VCC 271
•13 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-24-00697/CR-24-00698/CR-24-00699
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIUDAS VALIUSAITIS |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2025 | |
DATE OF SENTENCE: | 13 March 2025 | |
CASE MAY BE CITED AS: | DPP v Valiusaitis | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 271 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Burglary – theft – handle stolen goods – high number of charges influencing totality – early plea of guilty – deportation – hardship in custody due to limited English – excellent prospects of rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Azzopardi, Baltatzis & Gabriel v The Queen [2011] VSCA 372
Sentence: Total effective sentence of 2 years and 7 months imprisonment with a non-parole period of 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Jack Kelly | Office of Public Prosecutions |
| For the Accused | Mr Tim Bourbon | Mr Michael Haralambous |
HER HONOUR:
1Liudas Valiusaitis, on 12 and 13 November 2024 your matter came before me for case conference. After further negotiation between the parties an agreed position was reached, and on 29 January 2025 you sought a sentence indication in relation to 15 charges of burglary, two charges of attempted burglary, 14 theft charges and one charge of handle stolen goods. Your application for sentence indication was not opposed and was subsequently granted.
2On 5 February 2025, I indicated that I would impose a term of imprisonment not exceeding a total effective sentence of two years and nine months with a non-parole period of one year and eight months. You accepted the sentence indication at an early opportunity.
3You were arraigned today on Charge 1 on the indictment and I then accepted a written plea to the remaining charges on Indictment C2316363.
Circumstances of offending
4The agreed factual basis of your offending was contained in the summary of prosecution opening. This was read at your sentence indication hearing and has been tendered on both sentence indication hearing and your plea. What follows is a summary.
5You were born in Lithuania in May 1973 and remain a Lithuanian national. At the time of your offending you were 49 years old. On 21 May 2022 you arrived in Melbourne under the alias Egidijus Juziki.
6On 28 May 2022 the occupants of a house on Seymour Grove, Brighton were away on a country holiday. The following day the owner was alerted by his security system that there was movement in his bedroom. He was able to view you on CCTV via his phone and saw you running from the house. You had entered the house by using an axe from the shed to smash the ensuite window. You stole various items itemised in Schedule A. None of the property has been located.
7On 10 June 2022 you entered a house on Le Fevre St, Sandringham by climbing onto the second storey and forcing open the master bedroom window by breaking the chain winder. Your face and body are captured on the property’s colour CCTV. You are depicted pulling the camera down. You ransacked the property. You stole various items, itemized in Schedule B. No property has been recovered.
8On 29 July 2022, the occupant of a house on Dixon St, Glen Iris left his address to go on an holidays overseas. Shortly after, you attended the property. Internal CCTV footage showed you inside the house. The homeowner saw you on his CCTV camera system on his phone. He called his neighbour to check the property. The upstairs outside door was open and the neighbour reported the matter to police. No items were stolen.
9You departed Australia to Lithuania on 4 October 2022. On 8 June 2023, you returned to Australia via Melbourne Tullamarine Airport, using a new passport in your name Liudas Valiusaitis.
10On 24 June 2023, the occupants of a house on Cole St Brighton, went out for dinner. Upon their return the victims went upstairs to their master bedroom and noticed inside their walk-in wardrobe that jewellery boxes and clothing had been thrown onto the ground and their safe had been jemmied open. You were observed on the CCTV system walking in the backyard. Numerous items were stolen as itemized in Schedule C. On Thursday, 27 July 2023, the victims attended the Moorabbin Police Station and viewed the recovered property. They were able to identify and recover seventeen items belonging to them.
11On the 24 June 2023, the occupants of a house on First St Black Rock were on holidays. Whilst they were away, they had a builder conduct renovation in their backyard. On the 29 June 2023, the owner was notified by the builder that someone attended their property and stole his tools from the rear shed. On the 9 July 2023, the victim retuned home and noticed that her walk-in robe and master bedroom had been disturbed and numerous jewellery items, watches, currency, and headphones were missing as itemised in Schedule D. You had entered the house via the upper balcony sliding door to the kitchen area by forcing it open. On the 10 August 2023, the victim attended the Moorabbin Police Station and identified and recovered fourteen items that had been taken.
12On 21 June 2023, the occupants of a house on Victoria St, Sandringham went on a holiday. On Tuesday the 27 June 2023, a notification was received on the owner’s mobile phone from his CCTV system that there was movement at his front door. He viewed the CCTV footage and saw you walking around the front door, alfresco area, and yard. He called police who attended the property before you could enter.
13Between 28 June and 1 July 2023, the occupants of a house on Reserve Rd, Beaumaris left for holidays. CCTV footage captured you using a ladder to climb up to the second story of the property. Your face is visible, and are seen wearing black gloves and an earpiece in your left ear. You entered through the upstairs door by forcing the sliding door. You opened the safe in the master bedroom and stolen various items as itemised at Schedule E. The owner of this address compiled a list of all the stolen items and provided it to police. He attended police and identified and recovered various items that had been stolen and located by the police.
14Between 29 June 2023 and 9 July 2023, the occupants of a house on Bolton Avenue, Hampton were on holidays. When they returned home, they noticed that the master bedroom and their daughter’s room had been rifled through. Examination of the scene determined the point of entry was via their son’s bedroom window. You forced open the awning-style window and gained entry inside. The victims compiled a list of all items stolen itemised at Schedule F. On 4 August 2023, the victims attended the Moorabbin Police Station and viewed the recovered property, identifying and recovering eleven items belonging to them.
15On the 29 June 2023, the occupants of a house on Seymour Grove, Brighton went on holidays. On 1 July 2023, the owner received a notification on his mobile phone to alert him that his alarm was activated. He returned home on 10 July 2023. A side window was broken. CCTV footage depicted you climb on the victim’s alfresco roof area. You are then captured walking around the side of roof area toward the smashed window. Once the window smashed, you ran away. No items were stolen.
16Another house on Seymour Grove, Brighton is across the road from a previously mentioned house on Seymour Grove. This incident occurred on the same day, being 1 July 2023. On 14 June 2023, the owner and her family went on holidays and returned home on 17 July 2023. Whilst they were away you gained entry through the second-level balcony door and searched through the master bedroom. Upon their returned home on 17 July 2023 the victims compiled a list of all the stolen items, itemised in Schedule G. On 27 July 2023, the victim attended Moorabbin Police Station and viewed the recovered property. She was able to identify and recover items belonging to her.
17On 4 July 2023, the occupant of a house on Dudley St, Brighton was on holidays. Her son was house sitting at the time but left the premises for a few hours. CCTV footage captured you entering the property wearing black gloves and an in your ear. You walked around the backyard and around the pool. You gained entry through a window on the second story by forcing the window open. You rifled through belongings in the two upstairs bedrooms and you are captured on CCTV climbing down from the garage roof carrying a bag containing the victim’s property and leaving the premises. The victim returned home and compiled a list of all stolen goods itemised in Schedule H. On 27 July 2023, the victim attended the Moorabbin Police Station and viewed the recovered property. She was able to identify and recover some property, however a 2019 Rolex Submariner watch remains outstanding.
18The occupants of a house on Britten St, Glen Iris were on holiday between 24 June and 13 July 2023. On 5 July 2023, you attended and entered the house by an upstairs window – there are jemmy marks on the window and the fly screen was removed. Once inside you stole various items, itemized in Schedule. On 26 July 2023, the victim attended Boroondara Police station and identified and recovered various items seized by police.
19On 7 July 2023 the occupants of a house on Henham St, Hawthorn East left their address. They arrived home at 10pm. The next day, they noticed the flyscreen to their second story window was on the ground. On 16 July 2023, the victim was cleaning the master bedroom when he noticed the contents of his safe as itemized in Schedule J. On 27 July 2023, the victim attended Boroondara Police station and identified several items that had been recovered by police.
20On 1 July 2023, the occupant of a house on Henham St, Hawthorn East left his address for a holiday. On 7 July 2023, you attended the victim’s property. You were captured on CCTV smashing a CCTV camera with a crowbar, walking to the rear of the house with a large ladder, placing the ladder on the side of the house underneath the second story window. You then climbed the ladder, smashed the window and went inside the property. Once inside, you pulled out the alarm panel from the linen cupboard and stole the safe from the walk-in wardrobe by throwing it out of the window. You climbed down the ladder onto the adjacent vacant block and left with the safe. The safe contained various items, itemized in Schedule K. On 25 July 2023, the victim attended the Boroondara Police Station and identified some of his property.
21On 8 July 2023 at approximately 1am, you attended the victim’s house on Tyalla Crescent, Toorak. You were captured on internal CCTV cameras walking through the house and all the bedrooms. You stole various items, itemised at Schedule L. The victim compiled a claims list and identified 8 items recovered from a shipping container at East Swanston Dock, West Melbourne
22On 5 July 2023, the occupants of a house on Stanley St, Black Rock went on holidays and returned home on the 15 July 2023. Upon return the victim went upstairs to her master bedroom and noticed that her jewellery boxes were emptied on the floor and that the ensuite window was partially open with the lock broken and the flyscreen cut. This was how you entered the property. The victim compiled a list of all stolen items itemised in Schedule M. On the 9 August 2023, the victim attended the Moorabbin Police Station and viewed the recovered property. She was able to identify and recover thirty-nine items.
23On Wednesday 12 July 2023, Police from the Boroondara Crime Investigation Unit and the State Surveillance Unit began observations of 5/13 Levanto Street, Mentone at approximately 1:00pm. At 5:22pm, you and Mr Juzenas were observed by Police entering a 2019 Toyota Corolla, and left the Mentone area. At 7:00pm, Mr Juzenas parked the car on Harold Street, Sandringham and you walked through parklands towards Royal Avenue.
24At 7:25pm, you were observed entering through the front gate of a house on Royal Avenue, Sandringham and down the east side of the house. Mr Juzenas remained in the parklands opposite the house, acting as a lookout. At 8:40pm, you and Mr Juzenas were observed in the front yard of the house on Royal Avenue before Mr Juzenas walked away from the address through the parklands. Mr Juzenas returned to the car and collected you from the front of the house on Royal Avenue. Police observed Mr Juzenas drive the car with you in the passenger seat, back to 5/13 Levanto Street, Mentone.
25The son-in-law of the owner of the house on Royal Avenue was notified of the burglary. He gave police access to the master bedroom where a safe had been removed from the walk-in wardrobe. Police then entered 5/13 Levanto Street, Mentone and arrested you and Mr Juzenas. The safe stolen from Royal Avenue had been pried open and the contents were on a small coffee table in the lounge room. The contents of the safe are itemised in Schedule N. On 1 August 2023, owners of the house on Royal Avenue attended Boroondara Police Station and nominated the stolen items from 5/13 Levanto Street, Mentone.
26This address was rented by your daughter on 11 June 2023 via Air BnB, she said that she wanted the place for her father who was visiting from Europe.
27On 12 July 2023, a search warrant issued for the address of 5/13 Levanto Street Mentone and the vehicle. In the afternoon of 12 July 2023, Police photographed you and Mr Juzenas get out of vehicle and enter 5/13 Levanto Street Mentone. At 9:35pm, members of Victoria Police forced the front door and entered the property. You and Mr Juzenas were arrested.
28Members from the Boroondara Crime Investigation Unit photographed the scene. Items were seized under warrant. The total value of property recovered from this property is alleged to be $100,000 and the property is itemised in Schedule O.
29You were interviewed the next day and remanded in custody.
Victim impact
30At the sentence indication hearing, I heard of the impact that your offending had on several of your victims: Stuart Morley, Trudi Sampson, Nellie Castello, and Thomas and Kate Carra. Some of these victims described that your offending was a violation of the sanctity and security of their homes, caused lasting psychological impact, items stolen in many instances had sentimental value and were unable to be replaced. Others spoke of the time and cost of dealing with police and insurance companies.
31Further, the victims spoke of the sleepless nights and their worry when away from their homes. In one instance, a family holiday was interrupted. Your offending has affected the peace of mind that some victims took for granted and they have difficulty trusting others.
32At the plea hearing today, I received the victim impact statement from William Marks. He, like others, had items stolen that have significant monetary value and many items had strong emotional value particularly items that had belonged to his parents.
33I take the impact of your crimes on your victims into account in sentencing you today.
Nature and gravity of offending
34Burglary and theft offences are serious as evidenced by the maximum penalty of 10 years' imprisonment. Factors that elevate the seriousness of such offences can include prolific and persistent offending that is well planned and organised, and those involving thefts of goods totalling considerable value.
35Your offending occurred over two distinct periods: first, between May and July in 2022 and, second, over three weeks in June and July of 2023. You committed burglaries on 15 discreet properties and attempted to burgle two more. These incidents of burglary and theft involved residential premises in wealthy areas and high value portable items such as jewellery were targeted. You offended generally late at night or in the early hours of the morning when the homeowners or occupants were absent from their homes.
36Mr Kelly, for the prosecution, submitted that your offending involved a significant amount of planning and preparation. You utilised ladders, gloves and crow bars. Your return to Australia and the scale of your offending supported the submission that your primary motivation for returning to Australia was to engage in this enterprise. Mr Kelly conceded that your role in the offending was low-level and high risk, however, he submitted that yours was a necessary part of a broader organised syndicate. Mr Kelly also conceded that there was no evidence that you were specifically engaged in the export of stolen goods. However, given the facts in this case, he submitted that you must have been aware of the broader circumstances of why you were committing burglaries and where the property was going. He submitted your offending was serious and the only appropriate sentence was a term of imprisonment involving a head sentence and non-parole period.
37Your counsel, Mr Bourbon, submitted that you personally committed the crimes at each of the 17 properties, as such your role in the offending was high risk, you were at the bottom of the chain, akin to a foot solider. Further, you were not an organiser and there was no evidence that you had knowledge or involvement in the other aspects of the crime. Mr Bourbon submitted there was nothing to link you in the exporting, or attempting to export, the stolen property to Lithuania. Nor was there any evidence that you were going to be involved in dealing with the stolen property once it was in Lithuania.
38
In circumstances where your co-accused was identified by a witness at the cargo service, and the majority of stolen goods were found in his bedroom at the Mentone property, I accept that it was your co-accused who was involved in the handling and sale of the stolen property.
Mr Bourbon submitted that the stolen items were of value, however, there was insufficient evidence to reliably quantify the correct value of the various items and that a significant amount of property was seized, recovered and returned to the victims.
39In my view, your offending is very serious given the scale and persistence with which you offended. You entered the homes of people and in doing so invaded their property and undermined their sense of safety and security. Some of the items you stole were sentimental items that could not be replaced. Clearly, you left a sorry trail of victims in your wake. Whilst I accept that you were likely a mere foot soldier, I consider your role in the offending to be serious and your moral culpability to be high.
Personal circumstances
40
You were born on May 1973 in Kaunas, Lithuania. Currently you are
51 years old.
41Your father worked as a metal worker and your mother worked as a picker and packer in factories. You grew up in a government-owned apartment complex, which housed approximately 60 families. Your parents struggled financially. While they were able to provide for you and your brother, the food and shelter was basic and there was very little else for you and your family in Soviet-occupied Lithuania.
42Both of your parents have passed away. Your mother died at the age of 57 from a heart condition, while your father died from cancer at the age of 63. You have a brother who resides in England and works in the aviation industry. Your brother emigrated to England approximately 27 years ago.
43You attended the 15th Middle School and the 3rd Professional School, which were both located in Kaunas. You completed the equivalent of Year 12, but you did not immediately go to university. Instead, you worked as a painter.
44Throughout your life you have had only one major relationship with a woman named Ruta. This relationship lasted for 17 years and together you had one daughter together, Kamile, who was born in 1999.
45During your relationship with Ruta you developed a problem with alcohol. At the peak of your alcohol addiction, you were drinking 10-12 beers each day. In 2010, your relationship with Ruta broke down due to your drinking problem. In 2017, you stopped drinking altogether in an attempt to preserve a relationship with Ruta and Kamile. You have been abstinent from alcohol for the last eight years. You have never had any illicit substance issues. Nor have you had any mental health issues.
46In 2018, after Kamile had finished her schooling, she came to Australia to study. Around 2020, Ruta and her new partner came to Australia to live. Kamile has limited financial means and will find it difficult to travel to Lithuania to see you in the future. You will be deported after your release from custody as you have no legal status in this country.
47After the birth of your daughter, in approximately 2000, you purchased a farm where you raised sheep, goats, and chickens. In around 2008, you commenced studying at Vytauto Didžiojo Universitetas (Vytautas Magnus University) in Kaunas. You attended Žemės Ūkio Akademija an (Agriculture Academy), that was considered to be a well-established and consistently well-regarded centre of learning for agrarian study. You completed your studies, to realise your goal of becoming a better farmer.
48Immediately prior to coming to Australia in 2022, you experienced significant financial hardship, and were at risk of losing your farm. You had received money from the European Union to develop your farm. There were excavation works required that were not able to be completed during the winter months. You fell behind and the works were not completed within the required time frame. This triggered the Lithuanian government to require the repayment of the money.
49You have been very worried about the current state of your farm given the extended time that you have spent away. A friend has been looking after the farm in your absence, but you expect that you will need to start from scratch when you eventually return to Lithuania and this has added to the burden of your time in custody.
50Mr Bourbon, in his very thorough and comprehensive written and oral submissions, both on the plea and the sentence indication, raised a number of powerful mitigating factors in your favour.
Plea of guilty
51First, in relation to your plea of guilty, Mr Bourbon submitted that you were originally charged with 46 burglary charges, 41 theft charges, two attempted burglary charges, and one knowingly deal with proceeds of crime charge in relation to 47 properties. From an early stage of the proceeding, you consistently attempted to resolve this matter, on an appropriate basis, with the prosecution.
52After a lengthy process of negotiation, the prosecution agreed on a resolution that permitted the sentence indication to proceed. In this context, given the significant resolution, I accept that your guilty pleas should be taken as having been entered at the earliest practicable opportunity.
53Further, I accept that this was a complex and voluminous matter, which would have occupied a significant amount of court time had it run to trial. Several significant pre-trial issues which were canvassed at the case conference would have required determination. Those issues could reasonably have resulted in there being multiple trials. In this particular case, there would be significant additional costs in arranging for the only Lithuanian interpreter in Australia, Ms Valiunas, to be present throughout the trial (or trials) to interpret.
54In these circumstances, I accept that your guilty pleas have considerable utilitarian value and demonstrate your willingness to facilitate the course of justice. Further, I accept the evidence that there is a level of remorse on your part. In the circumstances, I accept the submissions of your counsel that a substantial discount on the sentence is warranted.
No prior convictions and previous good character
55As I have indicated, you now fall to be sentenced as a 51-year-old man. You have lived a good portion of your life and I consider you to be a mature offender. It is very much to your credit and a significant matter in mitigation that you come before this court with no prior convictions. In addition, you have previously demonstrated yourself to be a person of good character.
56I accept the submission of your counsel that your lack of prior convictions and your previous good character lessen the weight that needs to be given to specific deterrence in the sentencing exercise. Further, I accept these considerations bear upon the assessment of your prospects for rehabilitation.
Hardship in custody
57As of today, 13 March 2025 you have spent 610 days in custody on remand. This is your first experience of custody and I accept it has been very difficult for you due to a number of factors including your very basic command of the English language.
58It appears likely that you are the only Lithuanian speaking prisoner in this State. You have not encountered anyone with whom you are able to have any meaningful conversations or social interactions. I accept this has heightened your feelings of isolation as a result of your incarceration. You have had some contact with your daughter but on a day-to-day level your communication with others is rudimentary at best.
59You have suffered several health issues while in custody, including a case of sepsis that developed from an infection in your mouth and haemorrhoids. The later condition has affected you for almost your entire time on remand. None of the doctors who have been treating you in custody speak Lithuanian and you have not been provided an interpreter during medical appointments, despite the Corrections policy in this regard. Your ability to interact with treating medical practitioners has been severely hampered by your limited English. This has made your suffering and experience of custody more burdensome.
60Further, given the language barrier you have not been able to participate in any programs while on remand. I accept as a result of these factors your time in custody has been more burdensome than for other persons who do not suffer the same language issues. I have reflected this additional hardship in a moderation of the sentence to be imposed.
Positive conduct while in custody
61I accept that notwithstanding the language difficulties you have sought to make the most of your time on remand. You currently work in the kitchen six days per week and you are held in high regard in that role. I accept the submission of your counsel that your positive conduct while on remand bodes well for your prospects of rehabilitation.
Prospects of rehabilitation
62At the time of your arrest you were in Australia on a visitor's visa. That visa has now expired. You will inevitably be deported back to Lithuania when you are ultimately released from custody at the expiration of the sentence I am soon to impose. Upon your return to Lithuania, it is your intention to work hard and re-establish your farming property.
63I accept the submission of your counsel that you have excellent prospects of rehabilitation due to your lack of prior convictions; your lack of drug or alcohol issues, and your continued abstinence from alcohol; your lack of mental health issues; your strong work history and ethic and; your positive conduct in difficult conditions in custody.
64I accept of course, in the circumstances, you will not re-offend in Australia in the future.
Sentencing principles
65I consider that the relevant sentencing principles that must be applied in this case are general deterrence, denunciation and just punishment. In my view specific deterrence plays little role in the sentencing matrix, given your age, your background and the experience of custody in a foreign country. The term of imprisonment that I impose I am sure will sufficiently deter you from offending in the future.
66Other sentencing principles that I must apply are parsimony and proportionality. Your counsel urged me to do no more than is necessary to punish you and submitted that this was less than usual given the circumstances of your case. He maintained that a lengthy sentence was not required to bring the message home to you and that a merciful sentence would be appropriate and consistent with the principle of parsimony.
67Given the high number of charges involved in your case, I have carefully considered the application of the principle of totality. I must ensure that the total effective sentence is just and proportionate to the overall criminality involved. As the higher courts have stated, 'once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender's overall conduct, the sentence is then proportionate to the offender's criminality. No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment'.[1] I consider that your offending forms part of a series of offences of the same or similar character that permits me to impose aggregate sentences with a modest amount of cumulation to reflect the different offending.
[1] Azzopardi, Baltatzis & Gabriel v The Queen [2011] VSCA 372; as also cited Veen v The Queen [No 2] (1987-8) 164 CLR 465,472.
68I take into account the sentencing guidelines referred to in section 5 of the Sentencing Act,[2] where relevant in your case. In particular, I have had regard to the sentencing landscape for the offending before me, particularly the offences of burglary and theft. I have considered previous cases in this court and the Court of Appeal. I have had regard to the relevant sentencing statistics, whilst being mindful of the obvious limitations with the use of statistics. Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.
[2] Sentencing Act 1991 (Vic) s 5.
Disposition
69On each of the charges before the court, you are convicted. In relation to Charges 1 to 5, you are sentenced to 12 months' aggregate term of imprisonment. In relation to Charges 6 to 31, you are sentenced to two years and four months, again an aggregate term of imprisonment, and in relation to Charge 32, six months' imprisonment.
70The aggregate sentence on Charges 6 to 31 is the base sentence. I order that three months of the aggregate sentence on Charges 1 to 5 be served cumulatively. The total effective sentence is two years and seven months. I order that you serve 18 months before being eligible for parole.
71I declare that you have served 610 days by way of pre-sentence detention, and this will be entered into the records of the court and be deducted from the time you have to serve.
72Pursuant to s6AAA of the Sentencing Act had you pleaded not guilty and been found guilty, the sentence I would have imposed is five years with a non-parole period of three years.[3]
[3] Ibid s 6AAA.
73Can I thank firstly counsel, both sides of the Bar table, for all your help. I will make sure that a copy of the written plea or the indictment is made available to both parties, and we will scan it and make sure it is filed with the court.
74Can I lastly thank you, Ms Liudas, for your excellent interpretation during the course of the proceedings. Thanks very much.
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