DPP v Batsanes & Smith [2023] VSC 693

3 Neither of you is being sentenced in relation to Mr Harris's death. Your two co-offenders are currently awaiting trial for Mr Harris's alleged murder; accordingly, I will refer to them by the pseudonyms "John East" and "Tony Park".

4 Mr Harris had been a friend of Mr Smith and Mr Park some years before this incident. Mr East and Mr Harris knew each other through illegal drug circles. Tensions between Mr East and Mr Harris had been growing over a number of weeks, arising out of an alleged drug debt of about $250.

5 In early September 2022, Mr East sent numerous Facebook Messenger messages to Mr Harris, asking Mr Harris to pay him the $250. Mr Harris initially replied that he would pay the money when he could. Mr East kept telling Mr Harris that he needed the money immediately.

6 On 13 September, Mr Harris asked Mr East to drop off cannabis at his house. Mr East agreed to do so, and Mr Harris gave him his address. Later that day, Mr East asked Mr Harris to pay just some of the money owed.

7 Late the following night, Mr Harris called Mr East. Mr Harris was angry at Mr East's repeated requests to pay the money, given that Mr East had his $2,000 grinder, and because Mr Harris had helped him out in the past. Mr Harris threatened to go to Mr East's house and "bash you cunts".

8 Less than 10 minutes after that phone call, Mr Harris drove to Mr East's house. He stopped next to the car belonging to Mr East's girlfriend, leant out of the driver's window, and struck the left-hand side a number of times before quickly driving away.

9 Later that day, Mr East asked his girlfriend to check the security camera footage, to see if Mr Harris had come by and shot at the house. He also messaged another friend, telling them that he would go to Mr Harris's house, kidnap him, and force him to transfer the money he owed.

10 On 17 September, Mr East sent a further message asking Mr Harris for the money.

11 Two days later, shortly after midnight, Mr Harris went to Mr East's house. Mr Harris drove by and, without stopping, threw a brick at Mr East's car, before quickly driving away.

12 Realising that someone had thrown something at his car, Mr East began making plans to confront Mr Harris. He messaged Mr Harris one last time at 1:45am, asking him for the money. Mr Harris did not reply.

13 Over the course of the following day, Mr East messaged various people, to get a group together to go to Mr Harris's house and retaliate.

14 Around 9:00pm on 20 September, Mr East picked up Peter Batsanes in a car to join the group. In the early hours of the next morning, while Mr Batsanes was with him, Mr East went home and picked up a rifle, which he brought out to the car covered in a blanket.

15 Shortly before midnight, Troy Smith also joined the group, after receiving a phone call from Mr Park. Mr Smith understood he would be going to provide "back up" to a mate who was having issues with someone. Mr Smith drove to Mr Harris's address, picking up Mr Park on his way there.

16 At 2:52am, Mr East and Mr Batsanes arrived in the street behind Mr Harris's house. They parked at two properties that were under construction, directly behind Mr Harris's rear fence. They got out of the car and spent some time scoping the area, trying to work out how to enter Mr Harris's house.

17 Around 3:48am, Mr Park and Mr Smith arrived. About 10 minutes later, Mr East returned to the car he had been driving and collected the rifle, before returning to the construction site.

18 Shortly thereafter, the group split in two. Mr Batsanes and Mr Smith walked around to the front of Mr Harris's house, while Mr East and Mr Park went to the back. All four offenders had covered their faces with a mask or balaclava.

19 Mr Batsanes and Mr Smith banged and kicked Mr Harris's front door with considerable force, physically damaging it. The noise woke up Mr Harris's girlfriend, Ms Sleddon, who was sound asleep in the front bedroom with Mr Harris.

20 Ms Sleddon shouted at the people outside to leave. When Ms Sleddon looked through the bottom of the window, she saw two sets of legs walking away from the front door. Worried that someone might enter the house through the laundry door, she got up and asked Mr Harris to help her close it.

21 While Ms Sleddon was in the hallway, she heard a noise coming from the laundry and looked in that direction. She saw Mr East coming around the corner, moving towards her, pointing the rifle at her head.

22 Terrified, Ms Sleddon screamed and ran through the front door to her neighbour's house, where she contacted the police. Mr East followed Ms Sleddon through the front door and stood in the driveway, holding the rifle in a hunting stance, before going back inside.

23 Meanwhile, Mr Harris left the bedroom and walked into the hallway, where he was confronted by Mr East and Mr Park. He was struck to the head, arm and abdomen, before Mr East shot him once in the upper chest with the rifle. Mr Harris fell to floor. Mr East stole Ms Sleddon's car keys on his way out of the house.

24 Shortly afterwards, Mr East and Mr Park left the house, jumped back over the rear fence, and returned to the cars where Mr Batsanes and Mr Smith were waiting. The offenders then drove away from the scene.

25 When paramedics arrived, Mr Harris was found unconscious in one of the rear bedrooms. Resuscitation attempts were unsuccessful, and Mr Harris was pronounced dead at 5:58am.

26 Later that morning, Mr Batsanes placed the rifle, wrapped in a rug, onto the back seat of Mr East's car. Mr Batsanes and Mr East then drove away. The rifle has not been recovered by the police.

27 Mr Smith and Mr Batsanes were both arrested on 10 October 2022, after police executed search warrants at all of the offenders' houses. Investigators found Ms Sleddon's stolen car keys at Mr Batsanes's house.

28 Mr Smith gave a "no comment" record of interview.

29 Mr Batsanes initially told investigators he was not part of the home invasion, and could not remember where he was that morning. After a break in the interview, Mr Batsanes told police that he had been present at the scene, but gave a dishonest account of events in which he minimised his role in the offending.

30 I turn to consider the seriousness of your offending.

31 Although the plan was not a sophisticated one, this was not spontaneous offending. The group of co-offenders spent several hours assembling, scoping the area around Mr Harris's home, and deciding what to do. Although Mr East was the primary instigator of this offending, you both joined in readily with his plan.

32 You went to a residential house, in the middle of the night, in company with others. You had covered your faces to conceal your identity. You banged and kicked the front door loudly, to distract the occupants, and enable your co-offenders to enter through the back of the property.

33 You were well aware that Mr East intended to confront Mr Harris with the rifle. There is no evidence as to whether or not you knew that the rifle was in fact loaded, but you knew it would at least be used to threaten and intimidate Mr Harris.

34 When you participated in this incident, you were well aware that a home invasion was going to occur. While you are not responsible for Mr Harris's death, your conduct enabled others to enter the house, attack and ultimately kill Mr Harris.

35 It is an aggravating feature of this offending that you were both on bail at the time.

36 Although no victim impact statements were provided, it is clear from Ms Sleddon's witness statement that this was a terrifying experience for her and Mr Harris. Fortunately, Ms Sleddon's young children were not present at the time, because they were staying with their father for the school holidays.

38 Peter Batsanes, you grew up in the Craigieburn area with your parents and younger sister. Your parents separated when you were five. You continued to have positive relationships with both of your parents after they separated.

39 You experienced learning and behavioural difficulties at school, and dropped out in year 8. You then attended a flexible learning centre for 2 years, before leaving school entirely. After you left school, you spent time creating and performing music.

40 You have an extensive history of drug abuse. You started smoking marijuana when you were about 12, and abusing Xanax when you were 15. By the time you were 16, you were also using GHB, ecstasy and ice.

41 You were addicted to ice and marijuana at the time of your offending. Although you had been given several opportunities to address your drug dependency, you were unable to do so at the time. You attempted residential detox twice, but in each case you left shortly after starting the program.

42 For brief periods of time after leaving school, you worked with family members in their oven installation and carpentry businesses. However, you have been unable to keep a job, because of your drug problems.

43 Your drug addiction also led you to commit criminal offences. Before this offending, you had appeared a handful of times in the Children's or Magistrates' Courts, mostly for drug and property offences. You were dealt with without conviction. On two occasions, you had broken into a residential property in the middle of the night, when people were present in the house, and stolen property belonging to them.

44 Subsequent to this offending, on 20 April 2023, you were convicted of numerous other offences, including property charges, family violence offences, and committing an indictable offence whilst on bail. You were sentenced to a total effective sentence of one month's imprisonment for that offending.[1]

45 For the purposes of sentencing, you were assessed by a clinical psychologist, Carla Lechner. She believes that your issues with processing information, sustaining concentration and focus, and sitting still, all contributed to your problems at school.

46 Ms Lechner noted that your long-standing, chronic drug addiction was now in early remission in the controlled prison environment.

47 Ms Lechner said that you are currently experiencing symptoms of depression and anxiety of sufficient severity to warrant a diagnosis of Adjustment Disorder with Mixed Depression & Anxiety. You are currently taking anti-depressant medication. However, this condition is mainly reactive to your being in custody, awaiting a sentence of imprisonment. It is not uncommon for persons awaiting trial or sentencing to experience reactive depression and anxiety, the symptoms of which frequently reduce following finalisation of the court processes.

48 Ms Lechner also said that you are experiencing some symptoms of Post-Traumatic Stress Disorder, arising from your involvement in violent altercations in the drug scene, including an incident shortly before this offending. She said those symptoms had been aggravated by several incidents that occurred in your early days in custody. However, she did not say that you meet the criteria for an actual diagnosis of PTSD. Nevertheless, I accept that some of those symptoms (such as hypervigilance and high emotional arousal in threatening situations) may make your time in custody more onerous than for a person without such symptoms. I also note her recommendation that you would benefit from participating in trauma-focussed therapy, to diminish the intensity of your symptoms.

49 During your early time in custody, you asked to be kept in protection because of threats you had received from other prisoners. In February of this year, you were transferred to a protection prison, where you have been able to be placed in the general population. It is not suggested that the fact that you have been in protection is a mitigating factor because you had to endure harsh conditions in protection. Rather, your protection prisoner status is relied upon as demonstrating the intensity of your hypervigilance and other PTSD symptoms.

50 On 6 June 2023, you were both committed to stand trial. On that same day, you indicated that you would plead guilty to home invasion; you did so a couple of weeks later. Yours is a very early plea.

51 You are entitled to a discount on the sentence to be imposed on you because of your plea. Your plea has utilitarian value. It has facilitated the course of justice. It has simplified the trial that will ultimately proceed against the two remaining co-offenders.

52 It is not disputed that you are also entitled to an additional discount called a Worboyes[2] discount, something which arose during the early stages of the COVID-19 pandemic. However, that additional discount will be a very modest one, given that the Supreme Court has long since cleared its pandemic backlog, and custodial conditions are back to what they were before the pandemic. Indeed, you had been committed and pleaded guilty within 9 months of the offending, which is faster than would ordinarily have occurred before the pandemic.

53 As far as remorse is concerned, you were not initially remorseful for your actions on the night, and significantly downplayed your involvement when speaking to police. You only handed yourself in after you became aware that the police were looking for you and had obtained a warrant. Nevertheless, I accept that since then you have started to mature and accept some responsibility for your role in the offending.

54 Your age is a very relevant matter in sentencing you. You were 19 at the time of the offending, and are now 20. You were the youngest in the group of co-offenders.

55 Different sentencing principles apply to young offenders, in recognition of the fact that they are less mature, less able to form moral judgments or control their impulses, and less aware of the seriousness and consequences of their actions.

56 The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender. There is a significant public benefit in rehabilitating a young offender, and maximising the prospect that they will go on to live a peaceful, productive and law-abiding life.

57 However, those principles are not absolute; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending. Generally speaking, the more serious the offending, the less the weight to be attached to youth.

58 Your involvement in this offending seems to have been caused primarily by your drug use, immaturity, and susceptibility to negative peer group influence.

59 I accept that you have reasonable prospects of rehabilitation, if you are able to address your drug addiction issues. The past year in custody is the first time you have been drug-free since your early teens. You need to fully embrace any opportunities given to you to address your drug problems, both in custody and in the community, in order to avoid relapsing after your release.

60 You have used your time in custody productively, participating in work and courses.

61 You are fortunate to still enjoy the support of your family. You also have the opportunity of full-time employment with one of your uncles, when you are released.

62 Your criminal history is not extensive. This is your first real time in custody, and I accept that it has been something of a wake-up call for you.

63 You and the community would both benefit from you learning to live a responsible, law-abiding life in the community, under the guidance and supervision of the Adult Parole Board. For that reason, I propose to set a shorter than usual non-parole period for you.

64 Troy Smith, you are now 26. You were 25 at the time of this offending.

65 You were raised in a happy and close-knit family.

66 In about grade 3, you were diagnosed with ADHD and were prescribed Ritalin to manage it.

67 From a young age, you were a talented motocross rider. When your family moved to a rural property, that allowed you to pursue your interest in motorcycle racing and freestyle motocross. Around 2014, you were seriously injured in a motorbike collision, suffering a broken arm, a dislocated knee, and nerve damage to your back. Around 2018 or 2019, you started taking pain relief for the significant pain that you were still experiencing from the accident.

68 After leaving school in Year 9, you stopped taking your ADHD medication, because you did not like how it made you feel.

69 You worked full-time with your father in an earthmoving business for some years. You then started work in a concreting business. You later obtained work in crane rigging, and have all of the certificates needed to work in earthmoving, concreting and rigging. However, at the time of this offending you were largely unemployed.

70 You started using illegal drugs when you were about 20. Initially, you used speed and ecstasy. Over the past four years, you have developed an ice addiction.

71 You have a very lengthy criminal history, beginning in 2017. Although your past convictions are primarily for drug, property and driving offences, it is clear that past periods of imprisonment and community correction orders have not deterred you from further offending. That said, I note that none of your previous convictions are for crimes of violence.

72 On 10 August 2023, a couple of months after the committal, and after a case conference had been held, you offered to plead guilty to home invasion.[3] Yours is a relatively early plea, and you are entitled to appropriate sentence discounts, for the same reasons as Mr Batsanes.

73 You were previously friends with Griffin Harris. You fell out with him for reasons of which I am not aware, but which led to your becoming involved in this offending. I accept that you have since indicated some regret for your involvement in these events.

74 I accept that you still experience ongoing pain from your past motorbike injury. No evidence was led to substantiate the extent of any medical hardship, but I accept that you feel that you are not given adequate pain relief in custody.

75 It was also asserted that you have endured hardship in custody as a consequence of the pandemic, particularly through lockdowns. However, given that you have only been in custody since September 2022 (by which time, most of the earlier pandemic restrictions had eased), the absence of any further details or evidence of the alleged hardship means that little weight can be given to that matter.

76 You have demonstrated a good work ethic, when not under the influence of drugs. Whilst in custody, you have been working and using your time productively.

77 You continue to receive the support of your family and partner who visit you regularly. Your father has been unable to visit you due to his poor health.

78 Notwithstanding your lengthy prior convictions, I accept that you do have some prospects of rehabilitation, if you are able to overcome your drug addiction.

79 As far as principle of parity is concerned, I accept that Mr Batsanes and Mr Smith played similar roles in the offending. However, Mr Smith is considerably older than Mr Batsanes, and has a much more extensive criminal history. Mr Smith also has no mental health considerations. There needs to be a difference in the two sentences, to reflect those differences in personal circumstances.

80 Home invasion is a category 2 offence for the purpose of the Sentencing Act 1991. That means that the court must impose a custodial sentence for the offence, unless an exception applies. It is not suggested that any such exception applies here.

81 The fact that the home invasion happened whilst Mr Batsanes and Mr Smith were on bail is an aggravating feature of the home invasion, as well as giving rise to the separate summary offence of committing an indictable offence whilst on bail. In order to avoid double punishment, I will order that the sentence for the summary offence be served concurrently with the sentence for the more serious offence.

82 Peter Batsanes, for the offence of home invasion (charge 1), I sentence you to 3 years and 6 months' imprisonment. I treat that as the base sentence.

83 For the summary offence of committing an indictable offence whilst on bail, I sentence you to 2 months' imprisonment. I order that that sentence be served wholly concurrently with the base sentence.

84 That makes a total effective sentence of 3 years and 6 months' imprisonment. I fix a period of 2 years as the period you must serve before you become eligible for parole.

85 Had you not pleaded guilty, I would have sentenced you to a total effective sentence of 5 years, with a non-parole period of 3 years and 3 months.

86 I direct that the period to be reckoned as already served under this sentence is 398 days, not including today's date. I direct that there be noted in the records of the court the fact that such a declaration was made.

87 Troy Smith, for the offence of home invasion (charge 1), I sentence you to 4 years and 6 months' imprisonment. I treat that as the base sentence.

88 For the summary offence of committing an indictable offence whilst on bail, I sentence you to 2 months' imprisonment. I order that that sentence be served wholly concurrently with the base sentence.

89 That makes a total effective sentence of 4 years and 6 months' imprisonment. I fix a period of 3 years as the period you must serve before you become eligible for parole.

90 Had you not pleaded guilty, I would have sentenced you to a total effective sentence of 6 years and 6 months, with a non-parole period of 5 years.

91 I direct that the period to be reckoned as already served under this sentence is 424 days, not including today's date. I direct that there be noted in the records of the court the fact that such a declaration was made and its details.

[1] This is the reason why your pre-sentence detention is less than Mr Smith's.

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

[3] You had previously offered to plead guilty to aggravated burglary, but that offer was rejected by the prosecution.