DPP v Holmes [2025] VCC 356

1. You have also pleaded guilty to four summary offences, namely committing an indictable offence whilst on bail (summary charge 6), contravening a family violence intervention order (summary charges 7 and 8) and failing to answer bail (summary charge 9).[2]
2. You were born in January 1991 and were between 31-32 years of age at the time of your offending. You have admitted a prior criminal record.

1. The circumstances of your offending are detailed in a Summary of Prosecution Opening for Plea dated 26 April 2024 which is the agreed basis upon which you are to be sentenced.
2. The offending arises from three separate events.

1. The first matter relates to your failure to appear in Court on 9 November 2022 in breach of your bail. On 27 October 2022, you were bailed by police to appear in the Dandenong Magistrates' Court on 9 November 2022, but failed to do so and a warrant was issued for your arrest (summary charge 9).

1. The second incident relates to your involvement in an aggravated home invasion on 24 December 2022. You were on bail for other matters at that time (summary charge 6).
2. On that date, you and two other co-offenders arrived at the victim's address in Mount Waverley at 6.05 am. Your arrival was captured on CCTV footage[3], which I have viewed. The three of you arrived in two separate vehicles. A silver Mercedes Benz sedan arrived first, with a grey BMW X5 following close behind.
3. The first offender, who was wearing a purple face mask and a black hooded jumper, got out of the Mercedes, holding a small axe in his hand. He ran to the front door, which he struck with the axe before forcefully kicking the door open, causing damage to the door. He then entered the house through the front door.
4. You got out of the passenger seat of the BMW armed with a baseball bat in your left hand, and another object in your right hand. You followed the first offender into the house. You were wearing a Khaki baseball cap and branded shoes and shorts.
5. The third offender, also wearing a face covering, got out of the driver's seat of the BMW and took a claw hammer out of the boot of the car, before entering the house.
6. At the point of entry, the three of you intended to assault the occupants inside the house (Charge 1 - aggravated home invasion).
7. The three victims, Richard Kelaart, Zack Maitland and Ko Ye were inside the house at that time. Mr Kelaart was asleep on a chair in the lounge room, whilst

Mr Maitland was asleep in his bedroom. 8. Mr Kelaart was woken by being hit on the arm or shoulder with a weapon. He saw the two co-offenders standing in front of him and began to wrestle with one of them. The men were yelling at him. Mr Maitland entered the room and tried to defend

Mr Kelaart. Mr Maitland was then attacked by the two co-offenders, including being hit repeatedly with a weapon that he thought was a 'hockey bat'. When he picked up a stick from the floor to try to defend Mr Kelaart, Mr Maitland was struck again. 9. At that point, the three of you were in the room. Mr Kelaart and Mr Maitland managed to 'hold off' the three of you, and you all ran out of the house. 10. CCTV captures the two co-offenders return to the house, while Mr Kelaart tried to fend them off with an internal door. Mr Maitland stood behind him as he did so. 11. When you entered the property, the third victim Mr Ye was seated in a chair in his bedroom. At some point during the incident, one of the co-offenders grabbed

Mr Ye off his chair, and holding him by the chest, took Mr Ye down to the ground. As Mr Ye was lying on his right side, the co-offender stepped on Mr Ye's head. When Mr Ye tried to look at the co-offender, the co-offender said, 'don't look at me you dogs'. 12. Mr Ye was then turned onto his stomach and kicked to his left ribs and back. He was unable to recall how many times he was kicked. 13. The three of you then exited the house and drove off in the two vehicles. The entire incident was over in under six minutes. 14. After the three of you left the property, Mr Kelaart was taken to hospital and was assessed as suffering a 3-centimetre laceration to his right forehead, bruising to his left arm, abdomen and flank region, with significant swelling to his left knee. He also had a nosebleed and bruising to his left upper arm, abdomen and flank region. He was discharged from hospital, having been administered pain relief, the following day. Mr Maitland was also taken to hospital and suffered a 1.5-centimetre laceration to his eyebrow, bruising and swelling of his left hand, shoulder and forearm. He received stitches for the laceration and pain relief. Mr Ye was taken to hospital but sustained no injury. 15. Charges 2 and 3 are charges of intentionally causing injury to Mr Kelaart and

Mr Maitland. Charge 4 is a charge of common law assault in respect of Mr Ye. The prosecution accepts that you did not personally cause injury to, or assault these victims once you entered the house. The acts of violence were committed by the other two co-offenders, while you were present. 16. By your guilty plea to the charges of intentionally causing injury and c assault, you accept that you entered into an agreement with your two co-offenders to commit these offences[4] and that you intentionally assisted and encouraged them to engage in these acts of violence, in particular by your presence in the house armed with a baseball bat and another (unknown) object[5]. 17. Your involvement in this offending was subsequently discovered by investigators after clothing items found at your property matched those items seen in the CCTV footage of the offending, and your DNA was found on glasses that had been left at the scene.

1. The third incident relates to your presence at a property in Emma Court in Ferntree Gully on 21 February 2023 at 7.00 am in breach of the conditions of a family violence intervention order. The terms of that order prevented you from being within 200 metres of any place where the people protected by the order, Ms Fiona Cosway and Ms Renae Fraser, lived. When the police attended that property, you were located in the roof cavity of the address. You removed yourself from the roof at the request of police and were arrested. Ms Fraser was present at the house, as was Ms Cosway, who was sleeping on a couch in the lounge room when the police arrived.
2. When you were interviewed by police you denied any involvement in the aggravated home invasion, telling police that you do not travel to Mount Waverley and that your partner, Ms Fraser could account for your whereabouts that day. You denied knowing the victims of the home invasion.
3. In relation to the family violence intervention order, you told police that you had understood that the order with respect to Ms Fraser had been varied and thought that both orders had been 'sorted'. You told police you failed to appear in Court on 9 November 2022, as you had been present for the birth of your son to Ms Fraser.

1. The most serious offence for which you are to be sentenced is the crime of aggravated home invasion. The inherent seriousness of this offence is reflected in the maximum penalty of 25 years' imprisonment and other provisions of the Sentencing Act 1991 which require the Court to impose a custodial sentence for the offence of aggravated home invasion[6], and to impose a mandatory minimum non-parole period of at least three years for this offence[7], unless a 'special reason exists'. In enacting these provisions, Parliament has clearly indicated the seriousness with which it, on behalf of the community, regards the offence of aggravated home invasion.
2. In the case of Hogarth v The Queen[8], the Court of Appeal, after describing 'home invasion' as a 'particularly nasty form of criminal conduct', went on to say as follows:

Typically, a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders - acting in anger and often fuelled by alcohol - is itself a terrifying experience for the householder(s), irrespective of what may occur after entry.

1. These comments have application to the offending in this case.
2. This was a frightening and premeditated home invasion. The offending was sufficiently co-ordinated and planned for the three of you to arrive together in separate cars, all armed with weapons, including a small axe, a claw hammer, and in your case, a baseball bat and another object. Your co-offenders sought to disguise themselves by wearing facemasks, and you attempted to conceal your identity with your baseball cap and hoodie.
3. Within moments of arriving, entry was gained to the house by forcefully breaking through the front door. Your joint intention at the point of entry, all armed with weapons, was to assault the occupants.
4. Unsurprisingly at that time, Mr Kelaart and Mr Maitland were asleep. Mr Kelaart was woken by being hit with a weapon to his shoulder. Mr Maitland, when he attempted to intervene to protect Mr Kelaart, was then stuck many times with what he believed was a 'hockey bat'. Although you did not physically assault the victims, by your presence, also armed, you were complicit in the violence committed by your co-offenders. By your guilty plea, you accept that you had entered into an agreement with the co-offenders to commit these offences, even though you did not engage in the acts of violence yourself. Your presence at the time, armed with a baseball bat, can only have heightened the fear of the victims while being assaulted in the house.
5. The offending occurred in the early hours of Christmas eve. This was a

fast-moving, confrontational home invasion that must have been a terrifying experience for the victims, who were entitled to be safe in their house. 6. Mr Maitland is the only one of the victims to provide a victim impact statement in which he describes the traumatic impact of the offending. He states that he has been unable to sleep since the offending, worried that he may be attacked again in his home. Mr Maitland describes being unable to trust people, which has added strain to his relationship with his family and friends. He states that despite psychological counselling, the attack 'still haunts me, everyday'. Undoubtedly, this was a frightening ordeal for the other victims as well. 7. You bear a significant level of moral culpability for your role in this serious aggravated home invasion. Your offending was also aggravated by the fact that you were on bail at the time. This offence was complete upon your entry to the house. 8. However, I do accept the submission that was made on your behalf that you played a sub-ordinate role in the offending once inside the house, and played no physical role in the violence inflicted on the occupants. As such, I accept that your moral culpability for the offences of intentionally causing injury and common assault is not as great as that of your co-offenders. 9. Your attendance at the premises of Ms Fraser and Ms Cosway on 21 February 2023 was also in contravention of a court order, although I accept there is nothing that further that aggravates the breach of the family violence intervention orders beyond your presence in the roof cavity of the property. I assess this as a low level example of that offence.

1. Turning now to your personal circumstances.
2. Having been born in January 1991, you were only three years old when your parents separated. After this you continued to live with your mother and only saw your father occasionally. Your father formed a new relationship and had another four children; your half-siblings. When you were 10 years old, your half-sister, Kellie passed away from SIDS on a family camping trip. You were the one to discover your sister, and after this event, contact with your father and stepmother declined as the family struggled with grief.
3. You were raised by your mother in the Frankston area and attended Frankston Heights Primary School. You struggled at school with reading, and report being diagnosed with dyslexia, requiring a teacher's aide between Year 5 and Year 8. You report being bullied at school, with few friends and as a result, you lacked in confidence and self-esteem.
4. Your mother re-partnered but your stepfather was a violent man, and you witnessed significant family violence perpetrated against your mother, and at times, suffered at his hands yourself, being hit with the strap or a kettle cord. You were kicked out of the family home at the age of 15 and were expelled from Mt Erin Secondary College part-way through Year 9, for non-attendance.
5. After this you were living in a house in Mitcham that had been arranged by Youth Justice. During this period, you were getting into trouble and were spending time hanging around the local train station. You attended a breakfast club that provides food for the homeless, when you met an older male, and used drugs together. You report that you woke to find the man sexually abusing you on two occasions. This event, when you were 15 years old, has been the source of significant trauma for you.
6. After leaving school, you commenced but did not complete a pre-apprenticeship with your uncle. You have only worked about 20 per cent of the time since then in various roles as a machinist, demolition worker and in rendering.
7. You began using cannabis and developed a significant addiction to chroming from the age of 15, and continued to do so until you were 23. You were introduced to methylamphetamine by friends at the age of 23, and have battled with addiction to methylamphetamine ever since. You have also abused a range of other prescription and illicit drugs, in particular GHB. Over the past five to six years, you have used between 70-80 milligrams of GHB daily, reporting 'blowouts' at times when taking GHB. You have made a number of attempts to detoxify, including once at a treatment unit in Glen Iris, but recommenced abusing drugs as soon as you left.
8. At the time of this offending, you were using both methylamphetamine and significant quantities of GHB and were effectively homeless, living in a motel.
9. You have three children, two daughters aged 14 and five, and your son, aged 20 months. Your eldest daughter was born of a relationship with a woman who was also using Ice, and is now in the care of child protection authorities. Your relationship with the mother of your second daughter ended in the context of family violence directed at her, for which you were sentenced to imprisonment. Your second daughter is now in the care of your aunt, and you were in contact with your second daughter prior to being remanded. Child protection authorities are also involved in the care of your son to Ms Fraser, who has now returned to live with his mother. You now have contact with your young son on a weekly basis.
10. In recent years, you have developed a close relationship with your mother and have made an effort to rekindle your relationship with your father. You have a close relationship with one of your stepbrothers.
11. For a person of your age, you have quite a significant and concerning criminal history, including for acts of violence. You have a prior conviction for burglary in 2010. In November 2011, you were sentenced to one month's detention in a Youth Training Centre for recklessly causing injury and were resentenced for failing to comply with a Community Based Order imposed in April 2011 for offences that included possessing a controlled weapon and possessing a dangerous article without excuse.
12. In April 2013, you were sentenced to four months' imprisonment for offending that included reckless conduct endangering serious injury.
13. In July 2017, you were sentenced to 12 months' imprisonment for offending that included reckless conduct endangering serious injury and dangerous driving while pursued by police.
14. In October 2019, you were sentenced to 20 months' imprisonment to be served by way of a Drug Treatment Order for offending that included intentionally damaging property, reckless conduct endangering serious injury, two charges of unlawful assault and being a prohibited person possessing an imitation firearm.
15. Following a breach of the Drug Treatment Order, in May 2020 you were sentenced to serve the unexpired portion of 389 days' imprisonment. You were also sentenced to an aggregate of 12 months' imprisonment in May 2020 for contravening a family violence intervention order and recklessly causing injury. On appeal to the County Court on 19 June 2020, two months of the sentences imposed were directed to be served concurrently and a non-parole period of

12 months was imposed. On 16 June 2022, you were sentenced to one month's imprisonment for offences including contravening a family violence safety notice and possessing cocaine. 16. On 30 June 2022, you were convicted and fined an aggregate $200 for a charge of unlawful assault and a charge of possessing methylamphetamine. 17. You have five prior convictions for committing an indictable offence whilst on bail, in addition to other bail offences. You also have a total of four prior convictions for contravening a family violence intervention order and one prior conviction for contravening a family violence safety notice. 18. It is apparent that much of your criminal history is associated with your

long-standing methylamphetamine addiction. You have relapsed into drug use when released from custody on previous occasions. 19. You were assessed for the purposes of your plea by psychologist, Carla Lechner on 19 June 2024. In her report dated 9 July 2024, Ms Lechner assesses that you presented with symptoms of a Stimulant, Cannabis and GHB Use Disorder, a Major Depressive Disorder and Complex PTSD. Ms Lechner attributes your complex PTSD as arising from your exposure to Complex Developmental trauma, including your exposure to violence in your childhood, the death of your half-sister and your experience of sexual abuse when you were 15. Ms Lechner assesses your symptoms of psychological distress as 'severe', with 'extreme' depression and ongoing, unresolved symptoms of PTSD. 20. As to your role in the offending, you told Ms Lechner that you met with the

co-offenders, and having used Ice and GHB together, followed them to the property. You told Ms Lechner the victims allegedly 'owed them money' and had gone to the property in order to steal a van, but that you then 'got caught up in the home invasion', picking up a baseball bat and pulling 'your hood up', after the first offender kicked in the door, and ran into the house. 21. Ms Lechner concludes that you impressed as cognitively, socially and emotionally immature, with 'limited capacity to engage in consequential thinking'. Ms Lechner observes that your judgement and decision-making was further impaired by drug intoxication. She states that you hope to be assisted by attending long-term residential drug rehabilitation into the future. 22. You were also assessed by neuropsychologist, Mr Martin Jackson on 29 January 2025. In his report, Mr Jackson outlined your personal background and history of substance abuse. Mr Jackson observes that you have experienced ongoing symptoms of PTSD and depression since your childhood and adolescent years, but without significant treatment. He notes that you have generally self-medicated with drugs. You told Mr Jackson that you had lost consciousness a few times, including concussion when playing rugby and riding a BMX bike. You also reported being assaulted by security staff when you were in youth detention. 23. Having conducted neuropsychological testing, Mr Jackson assessed you with a Full Scale IQ of 71, which is in the borderline range. Having assessed you with 'clear signs of depression and anxiety', as well as 'severe stress', Mr Jackson also concluded that you have moderate to severe impairments in a number of areas, including multiple task processing, high level attention and executive function, including complex planning and verbal abstract reasoning. 24. To your credit, since being in custody you have used your time productively, working as a head billet, as well as completing a number of vocational and rehabilitation programs.

1. On your behalf, the following matters were raised in mitigation of your sentence.
2. First and foremost, you have pleaded guilty to these offences and in doing so, have acknowledged responsibility for your offending. Your guilty plea, entered at a moderately early stage following a contested committal hearing, saves the court and the community the cost and resources associated with a trial. Significantly in cases such as this, it saved the victims from having to relive these events when giving evidence in a trial.
3. In addition to the remorse inherent in a guilty plea, when you discussed your offending with Ms Lechner and Mr Jackson, you spoke of 'feeling terrible' for what you did and demonstrated some insight into the terrifying nature of your offending. I accept that your guilty plea is accompanied by a degree of contrition for your offending. A guilty plea entered in these circumstances is a significant matter in mitigation of sentence.
4. Secondly, your early experiences of childhood and adolescent trauma are also relevant to your sentence. In the case of Bugmy, the High Court explained the relationship between the effects of childhood deprivation and disadvantage and the purposes of punishment, stating that profound childhood disadvantage may mitigate a sentence because [the offender's] moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[9]
5. I give full weight to the general principles enunciated in the case of Bugmy in mitigation of your sentence and in moderation your moral culpability. As outlined in the reports of Ms Lechner and Mr Jackson, your upbringing was affected by your exposure to, and experience of, family violence at the hands of your stepfather. You were greatly traumatised by the death of your baby sister from SIDS, who you found unresponsive when you were 10 years old.
6. Following this, your relationship with your father and stepmother deteriorated. You received no therapy after this event. You struggled with learning difficulties at school, experienced bullying and were expelled part-way through Year 9. At the age of 15, you were kicked out of the family home. While living in accommodation sourced through Youth Justice, you were sexually abused by an older male while still only 15 years old. Ms Lechner assesses that your long-term Complex PTSD arises from your experience of Complex Developmental Trauma.
7. On your behalf, Mr Smith also submitted there is support for a finding that your childhood trauma and disadvantage was causally linked to your offending, thereby enlivening the specific limb of Bugmy. Reliance was placed on the following extract of Ms Lechner's report in support of this proposition. She states:

Mr Holmes lacks a range of adaptive coping skills and strategies, having learnt to block out negative emotions with drug use from an early age.

1. For the specific limb of Bugmy to have application in further moderation of sentence, there must be an 'explanatory nexus' or connection between the childhood disadvantage experienced by the offender and the offending.[10] The conclusion reached by Ms Lechner, taken at its highest, provides only a tentative basis to draw such a connection or nexus. I accept that your childhood experiences led you to develop poor coping mechanisms, and acknowledge the expert opinion that you turned to chroming first, at the age of 15, and then from 23, to methylamphetamine use in order to 'block' out negative emotions arising from your developmental trauma. I also accept that at the time of this offending, you were significantly affected by drugs. This is all relevant context to your offending.
2. However, I do not consider the evidence of Ms Lechner is cogent evidence that provides a foundation for me to conclude that your childhood disadvantage provides an 'explanatory nexus' for your role in the aggravated home invasion, even though the context to this offending was your significant level of intoxication. The prosecution ultimately accepted that the specific limb of Bugmy may have some application to your sentence, but in a limited way only. However, whilst giving full weight to the general application of the principles in Bugmy, I have ultimately concluded that the specific limb is not established.
3. I turn now to Mr Smith's arguments regarding the application of Verdins[11], which I do accept, due to the impact of your moderate to severe cognitive impairments.
4. Mr Oliver concedes that limbs 1 and 2 of Verdins are not enlivened, and there is no evidence that would support such a submission.
5. Mr Jackson is of the opinion there are three possible causes for your cognitive impairments; including your previous head injuries, substance abuse and mental health issues. Ultimately, Mr Jackson concludes that the impact of your mental health issues on your cognitive abilities is likely to be 'somewhat minimal'. He considers that previous head injuries may have contributed to some cognitive impairment, particularly with visual memory.
6. However, it is your long-standing drug use from the age of 15 until the time of the offending, that Mr Jackson concludes would have significantly affected your executive functions and memory, exacerbated by overdoses when chroming and on GHB. However, as was conceded by your counsel, you were well able to appreciate the wrongfulness of your conduct and specific deterrence remains highly relevant to your sentence.
7. You have now been abstinent from drug use in custody since being remanded in February 2023. At the time of sentence, your underlying moderate to severe cognitive impairments as identified by Mr Jackson, are relevant in moderating, to some degree, the role to be played by general deterrence in sentencing you.
8. I accept that your time in custody will be difficult for a number of reasons.
9. Firstly, you were assessed by Ms Lechner as cognitively, socially and emotionally immature with limited capacity to engage in consequential thinking. In her opinion, you suffer symptoms consistent with a Major Depressive Disorder and

Complex-PTSD. You report symptoms of 'severe' psychological distress and depression. These will all add to the burden of your time in custody. 10. Mr Jackson is also of the opinion that both your mental health issues and cognitive limitations will increase the hardship of your time in custody, in particular with managing situations in prison that are 'unusual, complex or stressful'. Mr Jackson states this places you at increased risk of disputes with other prisoners or staff. You are currently prescribed 30 milligrams of Avanza for depression, but

Mr Jackson is of the opinion that your mental health condition is being undertreated in custody, and that you present as 'clearly depressed and anxious'. Your time in custody will certainly be more onerous than it would be for a person without your cognitive limitations compounded by your mental health issues, notably your Complex PTSD. 11. Secondly, this will be your longest sentence of imprisonment, missing time with your young son, and concerned for the wellbeing of your 14-year-old daughter, who you understand is presently living on the streets, while you are unable to help her. This is discussed in the report of Mr Jackson, to which I have already referred. 12. I have further moderated your sentence having regard to the added burden of your time in custody for all of these reasons. 13. Assessing your prospects of rehabilitation is not straight forward. You are still a relatively young man, with much of your life to live. You have written a letter to the court in which you speak about having reflected on your past, and understanding the changes you need to make to remain drug free into the future. Acting upon this, you have asked your mother to delete all social media contacts you had with past associates. Both your mother and father have written letters to the Court expressing their support for you and speaking of the changes they have witnessed in you since being in custody. 14. You have taken the opportunities available to you in custody to complete a Life Skills Program, two 6-hour programs titled 'Ice & Me', a substance awareness program, a program aimed at Anger Management and one aimed at parenting, titled 'Dads Tuning in to Kids'. In your letter to the Court, you speak positively about turning your life around to be a better role model for your children. As I said earlier, you are entrusted to work as a unit billet at Ravenhall. All of this is to your credit. 15. In addition, you have the ongoing support of your parents and other family members. Your counsel states that you have stable accommodation available to you with your partner and son upon your release, and the prospect of employment through the father of a friend, although I have no evidence of this. 16. Against these positive features, you have a relatively lengthy criminal record associated with a long history of substance abuse. Past attempts to engage in detoxification programs, and the opportunity afforded to you to engage in the Drug Treatment Court, have not been successful. You have never engaged in any formal counselling for your past trauma or drug abuse issues. Your cognitive difficulties are made 'significantly worse', in the opinion of Mr Jackson, when you are actively using cannabis, ice and GHB. These are all significant matters that are relevant in assessing your risk of reoffending. 17. There is a tension of course between the Bugmy considerations and other matters relevant to sentence, including risk of reoffending and your prospects of rehabilitation. 18. Both Ms Lechner and Mr Jackson are of the opinion that without intensive support and treatment, you are at risk of re-offending and becoming institutionalised.

Mr Jackson states that any treatment should focus on your addiction, depressed mood and trauma, as all they are all interconnected. 19. You have expressed motivation to engage in a residential treatment program. You have already demonstrated a willingness to engage in the treatment that is available to you in custody, giving me more confidence that you will engage in treatment programs into the future. 20. Addressing your long-standing drug abuse issues, coupled with treatment for your mental health and past trauma, will be critical hurdles for you to overcome in order to improve your prospects of rehabilitation into the future. Without doing so, your risk of reoffending remains high. In sentencing you, specific deterrence and community protection remain significant sentencing considerations, whilst balanced against the need to impose a sentence that best promotes your future rehabilitation, and the community protection that would follow, particularly when considering an appropriate non-parole period.

1. In sentencing for offending of this kind, the sentencing considerations of general deterrence, just punishment and denunciation are to be given significant weight. Although I have regard to Ms Lechner's opinion that you impress as immature, you are not a youthful offender and must have appreciated the wrongfulness of your conduct. Your offending and that of your co-offenders was appalling. It involved the planned violent invasion of the home of the victims - where the occupants were entitled to be safe - by armed intruders, wearing face coverings. Others must be deterred by the sentence I impose, from engaging in similar confrontational home invasions by the knowledge that if they do so, a lengthy gaol term will inevitably follow.
2. For the reasons I have explained, I consider this was a serious example of the offence of aggravated home invasion. This offence is completed once you entered the house, in company, armed with weapons, intending to assault the occupants.
3. In submissions made on your behalf, it was accepted that an immediate imprisonment term with a non-parole period must be imposed for this offending. It was accepted that no 'special reasons' exists that would justify any other sentence. However, Mr Oliver argued that a lengthy period of parole would best assist in your rehabilitation and the community protection that would follow, whilst supervised in the community. As I stated, it was conceded that no special reasons exists that may permit a departure from the mandated legislative provisions, and accordingly Mr Oliver noted that a statutory minimum non-parole period of three years applies to your sentence on Charge 1.
4. The sentence I am to impose for the charges arising from the physical assaults on the occupants once entry to the house was gained, must recognise that your role was far less significant than that of the co-offenders. As stated, you did not physically assault the occupants, but are to be sentenced on the basis that this offending was part of an agreement reached with your co-offenders and which you encouraged or assisted in by your presence, armed with a baseball bat. An offender who is complicit in the offending of co-offenders, bears an equal responsibility in law for the offending. However, the sentence should also appropriately reflect the fact you played a subordinate role in that offending.
5. I have had regard to current sentencing practices in sentencing you for these offences. In his submissions, the prosecutor, Mr McCarthy, referred me to two Court of Appeal decisions in Makieng v The Queen[12] and Stowers v The King; Phillips v The King.[13] Mr McCarthy submitted that the case of Makieng was particularly relevant as comparable to this offending.
6. In Makieng, the appellant together with three co-offenders, disguised and armed, smashed their way into a family home. The offenders were armed with a shovel, knives and screwdrivers. The offender used the shovel to hit a glass door at the rear of the house, which shattered after repeated strikes. Once inside, the four offenders demanded the victim family's phones, wallet, money and car keys, whilst threatening them with the weapons. The offender raised a knife to the throat of one of the occupants, demanding the password to her phone. The offenders stole property valued at $9,980.00.
7. In that case, the appellant was sentenced to 5 years, 2 months' imprisonment for the aggravated home invasion and, four years imprisonment for the offence of armed robbery, with a total effective sentence of 6 years, four months imprisonment. A non-parole period of 3 years, 9 months' imprisonment was fixed. The offender was 18 at the time of the offending, with prior convictions for dishonesty, property and violence offences, was on bail and youth parole at the time of the offending and had experienced a difficult childhood. Ultimately the Court of Appeal dismissed the appeal against sentence.
8. Mr Smith helpfully referred me to a number of sentences imposed for reasonably similar offending and I have considered each of these cases, in particular DPP v Goodfellow[14] and DPP v Tzatzakis.[15]
9. In Goodfellow, a sentence of five years, six months was imposed for the offence of aggravated home invasion where four co-offenders forced their way into a house at 3am intending to steal items of value. That sentence, unlike here, was imposed following a trial, however whilst the other offenders were armed, the accused was not. The offender had also endured a difficult childhood and a long-standing destructive drug lifestyle.
10. In Tzatzakis, a sentence of five years three months' imprisonment was imposed for the offence of aggravated home invasion (with a total effective sentence of 7 years). In that case, the offender entered the premises of an acquaintance, with whom he had a grievance, armed with a baseball bat. His co-offender had a knife. The offender in that case played an active role in the offending inside the premises, for which he was also sentenced for recklessly causing serious injury and recklessly causing injury.
11. Current sentencing practices can provide a useful guide and promote consistency in sentencing, but they do not act as precedents and nor do they fix boundaries that bind the courts. Ultimately, each case must turn on its own facts and circumstances.
12. Finally, the sentencing principle of totality has a significant role to play in the sentence I impose, particularly for Charges 1-4, which arise from the one incident. The orders for cumulation must be moderated to the extent necessary to give effect to the principle of totality.

1. Balancing the matters to which I have referred, whilst having regard to the maximum penalty for each offence, I sentence you as follows.
2. On Charge 1 - aggravated home invasion, you are convicted and sentenced to five years' imprisonment. This is the base sentence.
3. On Charge 2 - intentionally causing injury to Richard Kelaart, you are convicted and sentenced to 18 months' imprisonment.
4. On Charge 3 - intentionally causing injury to Zack Maitland, you are convicted and sentenced to 18 months' imprisonment.
5. On Charge 4 - common law assault to Mr Ye, you are convicted and sentenced to eight months' imprisonment.
6. On summary Charge 6 - committing an indictable offence whilst on bail, you are convicted and sentenced to one months' imprisonment.
7. On summary Charges 7 and 8 - contravening a family violence intervention order, you are convicted and fined an aggregate of $300.
8. On summary Charge 9 - failure to answer bail, you are convicted but otherwise discharged.
9. I order that three months of the sentence of imprisonment imposed on Charge 2, three months of the sentence of imprisonment imposed on Charge 3 and one month of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 1 and upon one another. I direct that all other sentences be served concurrently.
10. This gives a total effective sentence of five years, seven months' imprisonment.
11. I fix a non-parole period of three years, four months' imprisonment. This is the period of imprisonment that you must serve before being eligible for parole.
12. I declare, pursuant to s18 of the Sentencing Act 1991 that 703 days of pre-sentence detention be reckoned as already served under the sentence I have imposed.
13. Pursuant to s6AAA I indicate that had you not pleaded guilty to these offences, the sentence I would otherwise have imposed is a sentence of seven years, six months' imprisonment and a non-parole period of five years.
14. Finally, I make the disposal order sought by the prosecution, noting that it is not opposed.

[1] Section 320 of the Crimes Act 1958

[2] Summary Charge 6 - Commit indictable offence whilst on bail (s30B Bail Act 1977) - maximum penalty of 30 penalty units or 3 months' imprisonment; Summary Charges 7 & 8 - Contravene family violence intervention order (s123(2) Family Violence Protection Act 2008) - maximum penalty of 2 years' imprisonment or 240 penalty units or both; Summary Charge 9 - Fail to answer bail (s30(1) Bail Act 1977) - maximum penalty to two years' imprisonment or 240 penalty units or both

[4] Exhibit A - Summary of Prosecution Opening for Plea dated 26 April 2024, paragraph 29a., (pursuant to section 323(c) and 324(1) of the Crimes Act 1958).

[5] Ibid, paragraph 29b. (pursuant to s 323(a) and 324(1) of the Crimes Act 1958)

[6] Section 5(2G) of the Sentencing Act 1991

[7] Section 10AC(1) of the Sentencing Act 1991

[8] Hogarth v. The Queen [2012] VSCA 302, [1]

[9] Bugmy v. The Queen [2013] HCA 37; (2013) 249 CLR 571 ("Bugmy"), at 594, [40]

[10] DPP v Herrmann [2021] VSCA 160, [43]

[11] R. v. Verdins [2007] VSCA 102; (2007) 16 VR 269

[12] Makieng v The Queen [2022] VSCA 52 ('Makieng')

[13] Stowers v The King; Phillips v The King [2022] VSCA 203 ('Stowers')

[14] DPP v Goodfellow [2019] VCC 1600

[15] DPP v Tzatzakis [2020] VCC 36