Jackson Balshaw v The Queen
[2021] VSCA 55
•12 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0004
| JACKSON BALSHAW | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 12 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 55 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1837 (Judge Gwynn) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Application for leave to appeal – Sentence – Applicant pleaded guilty to seven charges including aggravated burglary, attempted aggravated burglary, burglary, theft and common assault – Sentenced to 5 years’ imprisonment with non-parole period of 2 years 10 months – Whether judge erred in considering events outside scope of aggravated burglary charge in assessing gravity of offence – Whether judge erred in sentencing applicant to adult prison – Whether sentence manifestly excessive – Applicant 18 years old at time of offending – Applicant vulnerable in adult prison – Approval for Youth Justice Centre Order – Leave to appeal granted.
CRIMINAL LAW – Procedure – Application for extension of time to file application for leave to appeal against sentence – Two of three grounds of appeal reasonably arguable – Extension of time granted.
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| REPRESENTATION: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Stephen Adrianakis & Associates |
| For the Respondent | Ms R Harper | Ms A Hogan, Solicitor for Public Prosecutions |
KAYE JA:
The applicant pleaded guilty, in the County Court, to two charges of aggravated burglary, one charge of attempted aggravated burglary, one charge of burglary, two charges of theft and one charge of common assault. After a plea presented on his behalf, he was sentenced to a total effective sentence of five years’ imprisonment with a non-parole period of two years and ten months. That sentence was constituted as follows:
| Charge | Offence | Maximum Penalty | Sentence | Cumulation |
| 1 | Burglary | 10 years | 1 year 3 months | |
| 2 | Aggravated burglary | 25 years | 4 years 8 months | Base |
| 3 | Common assault | 5 years | 4 months | |
| 4 | Theft | 10 years | 1 year | |
| 5 | Aggravated burglary | 25 years | 3 years 8 months | 3 months |
| 6 | Theft | 10 years | 1 year | |
| 7 | Attempted aggravated burglary | 20 years | 2 years 6 months | 1 month |
| Total Effective Sentence | 5 years | |||
| Non-Parole Period Fixed | 2 years 10 months | |||
| Pre-Sentence Detention | 196 days | |||
| 6AAA Statement | 5 years 10 months, with a non-parole period of 4 years 6 months | |||
The applicant seeks leave to appeal the sentence on three grounds, namely:
Ground 1:There is an error in the sentence first imposed on charge 2 arising from the sentencing judge’s consideration of events that occurred inside 22 Meadowbank Drive, Sunshine North, when assessing the gravity of that offence and the applicant’s role in it.
Ground 2:There is an error in the sentence first imposed on each charge arising from the applicant having been sentenced to adult gaol.
Ground 3:There is an error in the sentence first imposed on charge 2 arising from the imposition of a sentence that was manifestly too long.
For the reasons that follow, I would grant leave to appeal on grounds 2 and 3, but refuse leave on ground 1.
The applicant was sentenced on 18 November 2020. The notice of application for leave to appeal against sentence was not filed until 11 January 2021, some twenty-six days outside the time prescribed by s 279 of the Criminal Procedure Act 2009. Accordingly, the applicant has made application for an extension of time within which to bring the application for leave to appeal against sentence. The application is not opposed by the respondent. The period of delay is quite short. The applicant has provided an adequate excuse for the delay. As already mentioned, two of the three proposed grounds of appeal are reasonably arguable. Accordingly, it is quite appropriate to grant the application for an extension of time.
The offending, to which the applicant pleaded guilty, was serious. It occurred in the context of a series of burglaries, involving a group of some seven offenders of which the applicant was a member, during the period between 10 September 2018 and 17 January 2019. The burglaries consisted of a number of housebreaking offences committed across Melbourne at which it was suspected that cannabis crops were being cultivated. The purpose of the burglaries was to locate and steal the cannabis crops. The offending itself was well organised and involved a planned and quite sophisticated methodology. The housebreakings were undertaken in the early hours of the morning, using vehicles to which false number plates were fixed. The participants, who entered the targeted premises, disguised their faces with coverings and were equipped with items such as crowbars, garden shears and poles with which to gain entry and to collect any cannabis crop that was located.
Two of the break-ins, in which the applicant was involved, occurred on 3 October 2018 in Sunshine North, and two other break-ins (one of which was an attempt) occurred in Keysborough and Chadstone on 17 January 2019. The applicant committed the offences on the first date in company with four co-offenders, and on the second date in company with six co-offenders.
Ground 1
Ground 1 is concerned with an aspect of the judge’s reasons for sentence in respect of the offence that was the subject of charge 2, namely, an aggravated burglary at Meadowbank Drive, Sunshine North. During the course of that aggravated burglary, the offences that were the subject of charge 3 (assault) and charge 4 (theft) were also committed.
On charge 2, the applicant was charged with aggravated burglary on the basis that he entered the premises as a trespasser with intent to steal, that at the time of entering he knew that his co-offender (Abela-Rogers) had with him an offensive weapon, namely, a crowbar, and at the time of the entering, a person was present in the building, and the applicant knew that person was present or was reckless as to whether that person was present.
In short compass, after committing the burglary that was the subject of charge 1, the applicant and his co-offenders made their way to the premises at 22 Meadowbank Drive. They arrived there at 2:45 am. The applicant, Abela-Rogers, and three other co-offenders approached the house. The applicant was carrying garden shears, but the prosecution conceded that at the time of entry the applicant did not know that the shears might be used as an offensive weapon. However, Abela-Rogers was carrying a crowbar that had a torch attached to it, and the applicant was aware that that item was available for use as an offensive weapon.
The house was the home of Linh Nguyen (‘Nguyen’). At the time of entry, Nguyen, his partner and two other persons present in the premises were in bed asleep. When Nguyen heard a noise, he got up. He found the offenders inside the house and confronted them. They then pushed him away and ordered him to lie on the ground. At that time, Abela-Rogers stood close to Nguyen and pointed the crowbar at his chest or stomach. The applicant searched through a jacket. Nguyen walked towards him. The applicant raised his garden shears above his head and pointed them at Nguyen. That conduct by the applicant was the basis of charge 3 (common assault). Abela-Rogers then used the crowbar to hook Nguyen by the back of his neck and pull him back, before raising the crowbar above his head and poking Nguyen in the chest with it. Shortly thereafter all the offenders left, taking with them a large television, an Apple iPhone and a purse, which is the subject of charge 4 (theft).
Ground 1 is directed to passages in the judge’s reasons for sentence,[1] in which her Honour expressed the view that the fact that the aggravated burglary involved a confrontation with the occupant (Nguyen) increased the gravity of the offending. In one passage, her Honour stated:
If not already obvious, I remain particularly concerned by the offences that involved a direct confrontation with a resident, particularly that which occurred at 22 Meadowbank Drive and reflected in charges 2, 3 and 4.[2]
[1]DPP v Balshaw [2020] VCC 1837 (‘Reasons’).
[2]Ibid [56]. See also [102].
It is submitted on behalf of the applicant that the intention, that was the subject of charge 2, was an intent to steal, and it was not an intent to commit an offence involving an assault to a person inside the property. Further, it is submitted that although the judge did expressly refer to the offence of aggravated burglary being completed on entry, the sentence imposed on that charge involved punishment for what happened after entry. It is contended that that approach by the judge was contrary to the principle stated by the Court in Director of Public Prosecutions v Meyers.[3]
[3](2014) 44 VR 486, 503 [71]; [2014] VSCA 314 (Maxwell P, Redlich and Osborn JJA).
The offence of aggravated burglary is complete on entry to the premises. However, as pointed out by counsel for the respondent in her written case, that does not preclude the Court taking into account the conduct of the offender after entry, as being relevant to an assessment of the objective gravity of the offence. Thus, in Salapura v The Queen,[4] Whelan and Kyrou JJA stated:
It is apparent from what we have said that we agree that the offence of aggravated burglary is complete when an offender enters a building as an armed trespasser with the relevant intent. However, this simply means that all the elements of the offence are satisfied for the purpose of proving the offence; it does not mean that everything that happens while the offender is in the building is irrelevant to the objective gravity of that offence. On the contrary, as an element of the offence is entering a building as a trespasser, that element continues for the entire time that the offender remains in the building as a trespasser. As this Court said in Barnes, the offence of aggravated burglary ‘can be regarded as persisting while the offender is inside the premises’. Accordingly, what occurs after entry into the building forms part of the context in which the offending takes place and may provide evidence of the intent with which the entry was made. It may also inform the overall seriousness of the offence.[5]
[4][2018] VSCA 255 (‘Salapura’).
[5]Ibid [57] (citations omitted). See also Dirbass v The Queen [2018] VSCA 272, [65] (Kyrou and Ashley JJA).
In stating that proposition, their Honours noted that if the conduct, after entry, constituted an additional offence that is not the subject of a separate charge, the offender cannot be punished for it by treating the acts, constituting the additional offence, as aggravating features of the aggravated burglary offence.[6]
[6]Salapura [2018] VSCA 255, [58]. See also DPP v Barnes [2015] VSCA 293, [45] (Croucher AJA).
In the passages of the sentencing reasons relied on by the applicant, the judge quite clearly referred to the overall confrontation by the applicant and his co-offenders with Nguyen, in circumstances in which the applicant and his co-offenders were masked and wearing gloves in the early hours of the morning. As was stated in Salapura, that conduct informed the overall seriousness of the offence that constituted charge 2, the aggravated burglary. Insofar as the confrontation, referred to by the judge, involved the assault committed by the applicant, which is the subject of charge 3, the judge ensured that there was no double punishment of the applicant, by directing that the sentence imposed on charge 3 (4 months’ imprisonment) be served wholly concurrent with the base sentence imposed in respect of charge 2, the aggravated burglary.
For those reasons, I do not consider that ground 1 of the application for leave to appeal against sentence is reasonably arguable.
Grounds 2 and 3
In her reasons for sentence, the judge correctly characterised the offending, in which the applicant chose to become involved, as particularly serious, as it involved pre-meditation and planning, and was highly orchestrated.[7] There were a number of aggravating circumstances of the offending, including the potential for the persons, whose premises were entered, to be confronted by a group of young men, wearing masks, and carrying offensive weapons. The premises were targeted in the early hours of the morning when it might be expected that the householders were home and asleep.
[7]Reasons [5].
On the other hand, there were a number of important mitigating circumstances. The applicant pleaded guilty, which the judge accepted had particular utilitarian value in the context of the current COVID-19 pandemic, and which the judge also accepted was accompanied by remorse.[8] While he was on bail, he was arrested on a separate charge and returned to custody for a period of five months until that charge was disposed of. The judge recognised that that period of time was relevant to the consideration of totality in accordance with the principles described in R v Renzella.[9]
[8]Ibid [93]–[95].
[9][1997] 2 VR 88; Reasons [71].
When the applicant was released at that time on bail, he was taken to the Bendigo Bridge Program for a period of eight or nine weeks, as part of his bail conditions. The material, tendered from that program, reported that the applicant had successfully participated in all program activities, and that he had accomplished most of the goals established in his case plan. On the day after he completed the program, the applicant obtained employment as a labourer in the stonemason industry in February 2020, and he maintained that employment until he was sentenced in November 2020.
A most important mitigating factor was the applicant’s youth and immaturity. At the time of the offending, the applicant was eighteen years of age, and he was twenty years of age at the time of sentence. In August 2020, he was assessed by a consultant psychologist, Mr Simon Candlish. Mr Candlish considered that the applicant had some emotional and social immaturity, and he expressed the view that the applicant was ‘socially and emotionally underdeveloped’. He considered that the risk, that the applicant might reoffend, fell ‘below the rate of the average violent offender’, but that the risk increased in the context of substance abuse and association with negative peers. Mr Candlish also was of the view that the applicant had good prospects for rehabilitation.
In a passage quoted by the judge in her sentencing remarks, Mr Candlish stated:
If Mr Balshaw was sentenced to a period of imprisonment, this might impact on his employment prospects and if this occurred, this might then contribute to a sense of pessimism and self-destructive behaviours such as re-associating with negative peers, relapse to substance abuse and possible re-engagement in general offending. Further imprisonment might expose him to further antisocial behaviours and attitudes that are more prevalent within this environment at an age where he is still impressionable and socially immature.[10]
[10]Reasons [88].
The judge also noted that the applicant had only one previous appearance, at the Sunshine Children’s Court in April 2018, on charges that included possession of amphetamine and exceeding the prescribed concentration of alcohol, for which he was placed on a good behaviour bond.[11]
[11]Ibid [91].
On the plea, the judge had the applicant assessed for suitability for a Youth Justice Centre Order. The report, dated 19 October 2020, concluded by stating as follows:
Jackson does present with reasonable prospects for rehabilitation as he has demonstrated a significant shift in his attitudes and lifestyle since his arrest. Although not perfect, he has certainly shifted the majority of his negative peer associations, developed positive insight into his daily struggles and shortfalls and can identify his areas of strength. Jackson is beginning to grasp and appreciate the complexities of substance use in his efforts toward change. He is certainly immature in general terms and would benefit from age appropriate substance use counselling and perhaps mentoring. He would be an impressionable young man serving a sentence in an adult jail and in my view would be more suited to an age appropriate environment where there is a constant focus on rehabilitation in the context of a case management model. It is the hope that Jackson would take the time to develop more mature behaviours and engage in an honestand committed manner to any opportunity the Court may offer him.
After considering all the material supplied by the Court and consulted with the relevant authorities in the Youth Justice system in regard to Jackson Balshaw’s suitability to a Youth Justice Centre Order. Taking into account his age and the matters already mentioned in this report. It is the view of the Department of Justice and Community Safety (Youth Justice) that Jackson Balshaw meets the criteria stipulated in the Act and is therefore considered to be a suitable candidate for a Youth Justice Centre Order.
In view of that assessment, and taking into account the applicant’s youth and immaturity, his vulnerability in an adult prison, his lack of significant previous convictions, and his progress in the Bendigo Bridge Program, I consider that it is reasonably arguable that the sentencing judge erred in failing to give adequate weight to those factors and to his prospects of rehabilitation, by sentencing him to a term of imprisonment, instead of a term of detention in a Youth Justice Centre.
Accordingly, I am persuaded that grounds 2 and 3 of the application for leave to appeal are reasonably arguable. I shall therefore grant leave to appeal on those grounds.
Summary of conclusions
For the foregoing reasons, I have reached the following conclusions:
(1)I grant the application for an extension of time within which to file the notice of application for leave to appeal against sentence.
(2)I grant the applicant leave to appeal on grounds 2 and 3, but not on ground 1, contained in the notice of application for leave to appeal against sentence.
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