DPP v O'Brien [2019] VCC 738

(a) Charge 3 - that you at Kurunjang on 7 July 2018, being a non-prohibited person, did possess a registered category A long arm without being the holder of a licence issued under Part 2 of the Firearms Act 1996.

Such offence is contrary to s6(1) of the Firearms Act and carries a maximum penalty of two years' imprisonment;

(b) Charge 4 - that you at Kurunjang on 7 July 2018, did possess cartridge ammunition while not the holder of a licence under the Firearms Act or a permit under s58A.

Such an offence is contrary to s124(1) of the Firearms Act and carries a maximum penalty of 40 penalty units;

(c) Charge 5 - that you at Kurunjang on 7 July 2018, did unlawfully assault Rebecca McMahon.

Such offence is contrary to the Summary Offences Act 1966 and carries a maximum sentence of 3 months' imprisonment.

3 Section 3(1) of the Sentencing Act 1991 presently defines a "category 2 offence" to include an offence under s77A of the Crimes Act 1958 (home invasion). Any charge constituting a category 2 offence is governed by s5(2A) of the Sentencing Act that provides when sentencing an offender for a category 2 offence, the Court must make an order under Division 2, Part 3 (that is, a custodial order) other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with s44 of the Sentencing Act, unless statutory exceptions apply.

4 However, the offence under s77A of the Crimes Act 1958 was only made a category 2 offence by way of s74 of the Justice Legislation Miscellaneous Amendment Act 2018, which relevantly came into operation on 28 October 2018 and was not in force at the time of your offending.

5 Counsel for the prosecution tendered a document headed "Prosecution Opening" dated 29 July 2019 (Exhibit 1) and I was informed by your counsel that you agree with the contents of such document. In particular, I note the following:

• You are presently 37 years old, having been born on 27 November 1981. At the time of the offending, you were 36 years old.
• On Saturday, 7 July 2018, you were at your house drinking alcohol with a number of friends. During that night, you and two unknown co-offenders left the premises in a white-coloured 1988 Toyota Hilux utility. You were a passenger in the utility.
• At approximately 10.00pm, you and the co-offenders parked the utility outside a block of units at 32 Black Knight Way in Kurunjang.
• You and one of the unknown co-offenders exited the vehicle with you being armed with a large sledgehammer and the co-offender armed with a .22 calibre rifle. The other co-offender remained in the driver's seat of the utility as a lookout. You and one of the co-offenders made your way to the front door of Unit 2.
• The occupants of the unit, Mr Sasha Beganovic and Ms Rebecca McMahon, were at home in their respective bedrooms when you used the sledgehammer to strike the front security door, causing loud noises to be made.
• Mr Beganovic heard the noises and went to the front door to investigate, and only opened the wooden door (leaving the security door closed).
• Mr Beganovic observed you holding a sledgehammer and the co-offender holding the firearm, standing at the front door with your faces partially covered with black-coloured motorcycle masks.
• Mr Beganovic told you and your co-offender that you had the wrong house, after which you again struck the front security door with a sledgehammer, causing the security door to buckle inwards. Mr Beganovic than closed the wooden door, holding it shut while you continued to hit the security door with the sledgehammer, attempting to force your way inside.
• Ms McMahon exited her bedroom and yelled out "Fuck off. You've got the wrong place", after which she telephoned her partner, Mr Guy Grech, and asked him to come as there were two men trying to break the door down.
• You then used the sledgehammer to smash a window in the bedroom of Mr Beganovic, and you and your co-offender entered the unit through the smashed windows armed with the sledgehammer and firearm.
• Mr Beganovic ran out of the rear of the unit and heard words said to Ms McMahon "Where's the Ice?" and "What about the cash?" Ms McMahon stated there was none, after which you then said "Guy's family have sent us here, stay away from the family".
• The co-offender then went towards Ms McMahon's motorcycle that was in the lounge room and stated that it should be put in the back of the ute. Ms McMahon walked over to you and your co-offender to stop them from taking the motorcycle and your co-offender then raised the rifle and pointed it at her, causing Ms McMahon to grab the rifle and push it away.
• You and your co-offender then left through the front door. Ms McMahon later reported that when your co-offender was attempting to get the bike, she felt that you gave the impression that you were "getting in over [your] head" and your expression "changed".
• Guy Grech then arrived at the premises, causing the driver of your Toyota Hilux utility to drive away, leaving you and the unknown co-offender behind. When Grech entered the unit, you and your co-offender left the premises.
• At that time, you were armed with the sledgehammer and the firearm.
• Guy Grech then got back into his vehicle and drove off after the utility, ultimately colliding with that vehicle on the Melton-Gisborne Road in Kurunjang. The collision caused the utility to flip on its side and slide into a tree, after which the driver exited the utility and left on foot.
• Police attended the collision scene and searched your vehicle and located fourteen .22 calibre bullets.
• Police also attended the unit at 32 Black Knight Way in Kurunjang and spoke to the victims of your offending. At that time, a large yellow-handled sledgehammer was seized.
• Later, Ms McMahon, when walking near the unit, observed you also walking towards a park carrying something in your hands. Police ultimately observed you in the park holding a thin long object vertically.
• Later, you were observed disposing of a red-handled sledgehammer in the front yard of another premises and the firearm in the front yard of the next-door house.
• At that time you were arrested and searched and such search revealed a black-coloured half facemask in your jacket pocket.
• You were taken to the Melton Police Station and given time to sober up before being interviewed. During your Record of Interview you denied involvement in the offending and in particular stated:

• that you had been drinking since 3 or 4 o'clock in the afternoon on the day of the offending (answers 28-29)

• that you and your partner had a fight at a friend's house in the Kurunjang area and you started walking home when the police "grabbed you" (answers 65-68 and 115-142)

• you described yourself as properly "pissed by the time I got picked up" (answer 106) and that it was unfortunate that you walked passed the address where all this had happened (answer 151)

• that you didn't have a rifle and do not have a licence (answer 203)

• you parked your ute next to the house and probably left your keys in it (answer 212).

6 You were arrested on 19 July 2018 and remanded in custody, where you have remained to this day.

7 Counsel for the prosecution notes that you indicated an intention to plead guilty to the charge on the Indictment at a committal case conference on 4 October 2018. Counsel for the prosecution accepts that such indication to plead guilty was at an early time.

8 The prosecution also seek the following orders:

(a) A forensic sample order pursuant to s464ZF(2) of the Crimes Act 1958;

(b) A disposal order pursuant to s78(1) of the Confiscation Act 1997 in relation to property referred to in the schedule to the proposed order;

(c) A compensation order in the sum of $1,520 being in relation to the destruction of property as a result of the subject offending (broken window). A quote for the window repair from Buddy Glass dated 26 September 2018 for $1,520 was tendered (exhibit 3).

9 Counsel for the prosecution tendered your criminal record dated 5 December 2018 and you agreed with the contents of that document ( See Exhibit 2). Such document records that at the Wodonga Magistrates' Court on 18 July 2002, you were convicted while driving whilst disqualified and sentenced to one month's imprisonment to be served by way of an intensive correction order with various conditions.

10 There is also recorded in that document, interstate matters where you were found guilty, and in this respect I note:

(a) That on 26 June 2011 at the Port Augusta Magistrates' Court in South Australia, you were found guilty of providing false information and sentenced to a fine and the payment of the costs of the prosecution;

(b) On 6 February 2008 in the Albury Local Court in New South Wales, you were found guilty of driving a vehicle recklessly, or speed/dangerous, and fined $800 and disqualified from driving for twelve months, commencing on 18 March 2008.

11 Your counsel tendered the following documents:

(a) A document headed "Outline of Plea Submissions for the Accused" dated 19 March 2019 (Exhibit "A");

(b) A psychological report dated 4 February 2019 authored by the provisional psychologist, Mr Peter Hanley, and supervised by the clinical and forensic psychologist, Mr Patrick Newton (exhibit "B");

(c) A bundle of character references from the following people:

• Ms Lynda Quinlan, dated 11 March 2019. Ms Quinlan is your aunt and has known you since your birth.
• Mr David Simpson, dated 26 February 2019. Mr Simpson is a friend who has known you for approximately eighteen years.
• Mr Michael Dezeeuw, dated 7 February 2019. Mr Dezeeuw has known you for approximately ten years, and in particular through your involvement with a horse-riding group.
• Ms Josephine Galea, dated 18 March 2019. Ms Galea has known both you and your partner for some time, and was present at your house in the early evening prior to the offending later that night.
• Ms Brodee Vandenberk. Ms Vandenberk is your stepdaughter, with whom you have been with for the last fifteen years.
• Ms Sharon Lynch, dated 9 February 2019. Ms Lynch has been your partner for the past fifteen years.
• Ms Lillian Dawn Lynch, dated 10 March 2019. Ms Lynch is the mother of your partner and has known you for many years.
• An unreported note from Ms Lynda Quinlan, one of your relatives.

I also note that assay results from a urine sample, provided by you on 27 February 2019, were tendered and all test results were negative.

12 Also tendered during the course of the plea was a reference from Mr Jose Santa Maria, who asserted that he had known you as an employee and friend for twelve years and that you were a "very trustworthy, family orientated man with a great work ethic". In particular, Mr Maria noted that he would be "more than willing" to have a job waiting for you when you are released from prison. I was also informed from the Bar table that another trucking company has made a similar offer.

13 Partly based on some of the documents which were tendered on your behalf and various other submissions made to me by your counsel, I note the following:

• You were the eldest of three brothers raised in the Bacchus Marsh area, largely by your mother, as your father was a truck driver and was rarely home. You informed the provisional psychologist, Mr Hanley, your parents argued about issues related to his absence and ultimately the marriage ended in divorce when you were about 23 years old.
• At approximately the age of 10, you and your family moved to Albury for a short time, and then to Tallangatta in North-Eastern Victoria, where you remained until leaving home at about the age of 18 in order to travel to Melbourne to commence an apprenticeship as a diesel mechanic with the CFA.
• You had attended primary schools in Bacchus Marsh, Bandiana and Tallangatta in country Victoria and then attended Tallangatta High School, where you completed Year 11 before pursuing the apprenticeship as a diesel mechanic.
• You informed Mr Hanley that while your grades in numeracy, sports and "hands-on" classes were excellent, your literacy grades were very poor until Year 9. At that time, you were diagnosed with Dyslexia and your grades and behaviour improved after receiving assistance for this condition.
• You informed Mr Hanley that during the period between the ages of 7 and 9 you had been a "menace" during classes when reading was involved and sent to the Principal's office on several occasions due to your behaviour. You also informed him that you found it easy to make friends at school and had a group of close friends, and fighting was not prevalent at the schools you attended. Furthermore, you had never been bullied and although you had been involved in occasional "scuffles" with school mates, you were never involved in any significant altercations.
• Furthermore, you denied experiencing or witnessing any form of abuse and generally described your childhood in positive terms.
• You completed your apprenticeship but were never registered as a diesel mechanic as you had always wanted to be a truck driver like your father. However, at the request of your father, you had completed the apprenticeship before getting work as a truck driver. In getting work as a truck driver, you have been consistently employed as a truck driver since getting the apprenticeship and, indeed, consistent with one of the references, your employment would resume upon your ultimate release from custody.
• You met your current partner, Sharon Lynch, when you were 22 years of age and she was 45 years of age, when you commenced to go out. Ms Lynch had recently left an abusive marriage and ended the relationship with four children - the youngest being 7 years of age. You and you partner have not had any children together.
• You described that you have always had a good relationship with your partner's children, and indeed you have been with your partner through early custody battles between her and the biological father of the children. You note that there are sometimes arguments which are usually resolved promptly and there was no domestic violence in the relationship.
• Your partner is a registered nurse who has been working at Western Health for the past ten years and between the two of you, you have raised the four children.
• You informed the psychologist, Mr Hanley, that you had never received any formal diagnosis or treatment for mental-health issues, although you described previous trauma-related symptoms in respect to two significant events. The first was approximately four or five years ago, when you witnessed a friend being hit by a truck and stuck beneath its wheel, and that you were "rattled" by that event and found it difficult to get into a truck for some time after that.
• The second event was when your cousin was murdered in 2015, and you informed Mr Hanley that that "hit [you] hard" and you found it difficult to move on with your daily life. Following that event, your alcohol consumption escalated and in particular you used alcohol to cope with thoughts during the weekends.
• Since being on remand at Marngoneet Prison, you have worked daily as a welder in the metal shop. You have found imprisonment emotionally difficult, especially the separation from your family.

14 Through your counsel and indeed your comments to Mr Hanley, your memory leading up to and including the offending is "sketchy". On the night leading up to the offending you describe how you were able to "let [your] hair down" after needing to abstain from alcohol due to your work during the week. Several people attended your premises where large amounts of alcohol were drunk and in particular much alcohol was drunk by you. You believe that you consumed approximately sixteen beers and 250 millilitres of bourbon prior to your offending on that night. You deny any history of any illicit narcotic use.

15 Your counsel submitted that you were in a highly intoxicated state that night and although this was not relied on as a mitigating factor, but rather the context in which the offending occurred. You have instructed your counsel that you had no history of previous contact with the occupants in the house where the offending occurred. You believe you were roped into participating into scaring the occupants by visitors to your house that night. In particular, you assert that Mr Val Grech, the father of Guy Grech, wanted to discourage one of the complainants, Ms Rebecca McMahon, from continuing her relationship with his son, as he perceived it to be a negative influence involving drugs.

16 Your counsel also submitted that you have been of assistance to the relevant authorities. In particular, you made a statement dated 19 February 2019 (see exhibit "D") wherein you asserted various matters including:

• On Saturday, 7 July 2018, you were at your home at 133 Brooklyn Park Drive, celebrating your partner's birthday with a group of friends. The party was being held in a shed at the property.
• You knew all the people at the party except for a bloke called "Matthew", who you knew through the horse industry. You described what Matthew was wearing in the Statement.
• You record that Mr Val Grech rang you at about 9.30pm on that night and he wanted to come to your premises, but you told him not to come because there were already people present.
• Within a short period, Mr Val Grech arrived and at this time you described yourself as being "blind drunk", having drunk nearly a "slab of beer and half a bottle of bourbon".
• Val Grech told you that he wanted his son away from a girlfriend, named Rebecca, as Val Grech considered Rebecca was getting his son back into drugs.
• Sometime later, Val Grech and Matthew told you to jump into your Toyota Hilux Cab Ute and the keys were already in the ignition. Val Grech drove the vehicle, with you and Matthew as passengers, and you were told you were going for a drive.
• At that time, your rifle (which was unloaded) and a sledgehammer were in the utility. You note that the rifle and sledgehammer are normally stored in the shed and you have the rifle just in case a horse needed to be put down.
• You recall standing the middle of some house with a lady standing in front of you, together with Matthew in the house.

17 Your partner, Sharon Lynch, gave evidence and described herself as a registered nurse who has been working at Western Health for the past ten years. She confirmed that you have been in a fifteen-year relationship with her and had taken on four stepchildren at a young age, that is, twenty-two. Furthermore, she noted that one of her daughters and a 5-year-old granddaughter also now live at your house. In particular, she noted that horse riding is a family interest and most of the family belong to a riding club as a social activity.

18 In particular, Ms Lynch gave evidence that she can only recall on four occasions over fifteen years where you were "obnoxiously" drunk. On the particular night in question, she had gone to bed early and was not there when you left prior to the offending. In particular, she notes that Val Grech is "trouble" and that she had earlier refused Grech's request to attend the drinks being enjoyed at your premises. She notes that apparently Grech arrived at the premises after she had gone to bed.

19 Ms Lynch also described how she visits you once or twice a week in prison and that you regularly call her, sometimes ten to twenty times a day, and frequently in an emotional state.

20 In particular, Ms Lynch confirmed that you had both discussed moving away to Tallangatta after your release to break contact with any bad influences and furthermore, she asserted that she would not let you drink to excess once you are released from custody. I also note that in her reference submitted to the Court she describes you as a loyal, trustworthy man who is very hardworking and brings home his pay every week, giving it to her without complaint. She also describes that your family and friends are everything to you. In particular, she states in her reference:

"Because Shane and I are so close I do know how much remorse and suffering he has been through since he has been in jail, I have seen a happy kind caring man suffer so greatly I know he cries himself to sleep most nights he has had major depression ever since I am even worried for his safety as I know he can't take much more of being in jail as he does not belong there he is not a criminal just a person who when he drinks too much he can become an idiot and very easily misled as he was that fateful night that he was taken to that house he did not know the people in the house and I know that Shane would never intend to hurt anyone ... ." (sic)

21 The provisional psychologist, Mr Peter Hanley, assessed you on 14 January 2019 via video conference to Marngoneet Correctional Centre, which lasted approximately ninety minutes in total. During the assessment he carried out an evaluation of your mental status, including your mood, your thought processes and degree of insight.

22 Ultimately, Mr Hanley formed the opinion that an examination of your mental state revealed prominent Anxiety and Depression, which are reactive in nature and most directly related to the personal impact of your offending and incarceration. He considered that your symptoms were sufficiently severe to form the diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.

23 Mr Hanley also considered that you lack insight to your problematic nature of drinking alcohol and you tend to minimise that issue. Again, Mr Hanley considered that on the basis of your own self-report, the alcohol problem is sufficiently severe to meet a diagnosis of Mild Alcohol Use Disorder in early remission in a controlled environment. Mr Hanley considered that you needed treatment for your alcohol problem with a focus on developing insight and motivation to remain abstinent and address the underlying reasons for your excessive drinking.

24 In considering your risk of recidivism, Mr Hanley highlighted the significance of your involvement with antisocial associates and your drinking behaviour as the most important criminogenic needs that require intervention. Overall, he considered that you are currently a "moderate" risk of recidivism.

25 Mr Hanley also considered that in terms of prospects of your rehabilitation the following treatment options would be most relevant in reducing your risk of recidivism - alcohol treatment, behaviour change program and mental health treatment to assist with your Depression and Anxiety. Furthermore, Mr Hanley considered that you would require appropriate supervision and monitoring to ensure that you engage in treatment of sufficient duration to ensure that the treatment is effective.

26 Mr Hanley also expressed the opinion that you were currently experiencing clinically-significant symptoms of Anxiety and Depression in the context of your incarceration and in particular after making a statement about your co-offenders (see exhibit "D"). You informed Mr Hanley that you have experienced social rejection with limited access to social supports and you remain anxious about potential reprisals, and accordingly all this has made your experience of prison particularly burdensome.

27 I have read all the references which have been tendered on your behalf. A picture is painted of a hardworking man who is very devoted to his family and friends. Furthermore, there are various comments as to your work ethic and your willingness to help other people. Furthermore, those who have known you for a long period of time express the view that the subject offending is completely out of character.

28 At the plea hearings on 25 March 2019 and 8 May 2019, your partner and members of your family and other friends attended Court as a show of support.

29 Your counsel submitted that the following matters are relevant in mitigation of your sentence:

(a) Your plea of guilty in relation to the indictable offence was at an early stage (at the committal case conference on 4 October 2018) and that such plea of guilty is indicative of your "remorse" and also has utilitarian value in that it saves the cost and time of a trial;

(b) You have no prior convictions for any type of violent activity and indeed, the only conviction in Victoria is for driving whilst disqualified back in July 2002, for which you were sentenced to one month's imprisonment to be served by way of an intensive correction order with various conditions;

(c) Being in prison, you have assisted authorities and in particular identified your co-offenders by way of the statement dated 19 February 2019;

(d) That you have "strong prospects of rehabilitation" when one takes account of your lack of prior relevant convictions, your strong work ethic and excellent employment history, the "unwavering" support of your partner, stepchildren and many friends, and also having now experienced the "long-lasting salient effect of a substantial period of incarceration";

(e) Based on the evidence of Mr Hanley, that you suffer from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, which would make your experience of prison particularly burdensome. Reference was made to R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269;

(f) Based on the reference and evidence of your partner, you do suffer genuine remorse in relation to your offending, which is out of character.

30 Your counsel submitted that notwithstanding the "very serious nature of this particular charge", the Court, having regard to the circumstances surrounding the offending and the various mitigating factors, should consider imposing a combination sentence of a period of imprisonment followed by a "lengthy community correction order".

31 In particular, your counsel noted that based on the evidence of Mr Hanley, it will assist your rehabilitation that you have treatment in relation to your alcohol consumption (which according to Mr Hanley you tend to deny having such a problem), obtaining treatment for your mental health problems and also undergoing a behaviour change program would be best assisted by various conditions attached to a community correction order.

32 The Court directed that you be assessed for the imposition of a community correction order and this assessment was undertaken on 25 March 2019. I refer to the report from Ms Melissa Mason, the assessing Community Corrections officer, which states that you were assessed as suitable for a community correction order. Furthermore, the following conditions were recommended - treatment and rehabilitation in relation to alcohol, treatment and rehabilitation regarding programs to reduce re-offending and supervision.

33 Ms Mason noted that you underwent an intensive community correction order in 2002 which was completed successfully. Ms Mason notes that according to VISAT you were assessed as being a "medium risk" of re-offending.

(a) It was inappropriate to sentence you to a combined sentence - rather, you should be sentenced to a head sentence of imprisonment with a non-parole period. Counsel noted that if parole was granted there could be appropriate supervision of you;

(b) Counsel noted that you have been assessed as a medium risk of re-offending;

(c) That the offending being "out of character" can be considered in determining an appropriate sentence.

35 The offence of home invasion (Crimes Act 1958, s77A) is a serious offence, as is made clear by the maximum penalty of twenty-five years' imprisonment. Such offence is relatively new and has only been in existence since 7 December 2016 (see s3 of the Crimes Amendment (Carjacking and Home Invasion) Act 2016 and commenced on 7 December 2016).

36 Before 7 December 2016, the type of offending captured by the home invasion offence would likely have been charged as an aggravated burglary (see s77 of the Crimes Act 1958). Home invasion has many similarities to aggravated burglary, but there are also some differences between the two offences. The sentencing considerations relevant to aggravated burglary may provide some guidance in sentencing considerations relevant to home invasion.

37 I refer to the Court of Appeal decision of Hogarth v R [2012] VSCA 302; (2012) 37 VR 658. That appeal involved consideration of an aggravated burglary constituted by a "home invasion". In particular, the Court of Appeal (consisting of Maxwell P, Neave JA and Coghlan AJA) stated at paragraph [1]:

"Home invasion is a particularly nasty form of criminal conduct. 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."

(Footnote omitted)

38 In Hogarth, the Court of Appeal concluded that sentences generally imposed for what was referred to as "confrontational aggravated burglary" were too low and that sentencing practices needed to change to reflect the objective gravity of this type of offending.

39 In the later Court of Appeal of Collier v R [2018] VSCA 47, wherein the Court of Appeal (consisting of Priest and Hargrave JJA) stated at paragraphs [39]-[40]:

"39. In Director of Public Prosecutions v Meyers,[(2014) 44 VR 486) this Court explained that:

'... the task of applying Hogarth does not require the classification of offences into categories. Put simply, Hogarth established that current sentencing practices ('CSP') for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.'

1. 40. As these and other statements in Meyers make clear, each case will depend on its own facts and the seriousness of the offending must be viewed in the context of those facts. Classification or labels are of marginal significance and may distract from the instinctive synthesis of the sentencing task.

40 During the afternoon and evening of Saturday, 7 July 2016, it is clear that you were at your house drinking alcohol with a number of friends. Although not precisely clear how much you did drink, you were quite drunk as the night wore on. In this respect, after you were apprehended by the police, time was necessary for you to sober up before being subject to a Record of Interview.

41 It also appears reasonably clear that your two co-offenders were also at your house that particular night prior to the subject offending. In your statement made to police dated 19 February 2019, you identify your two co-offenders to be "Matthew", who you knew through the horse industry and a Mr Val Grech, who was an acquaintance of yours.

42 At some time late on that evening you, together with your two co-offenders, left your premises in your Toyota Hilux utility and parked outside a block of units at 32 Black Knight Way in Kurunjang, where one of the units was occupied by Mr Sasha Beganovic and Ms Rebecca McMahon.

43 It is unclear as to the circumstances prompting you to leave with your two co-accused to attend those premises. According to you, Mr Val Grech wanted to warn-off Ms Rebecca McMahon from resuming a relationship with his son as he was concerned that would involve his son resuming a drug habit.

44 Whatever the precise reason may have been, I do accept that you were not the precipitator of the drive to the unit of the victims. I accept that you had never been to the unit of the victims prior to that night and, indeed, did not know the victims.

45 By the same token, I doubt that you were coerced to be involved in such activity, but rather went along with it, being in the throes of your drunken state.

46 I accept insofar as you were concerned, there was little or no planning in relation to attending the premises of the victims, but do note that it was your rifle (which was unloaded) and your sledgehammer, which were taken in the utility. In your statement dated 19 February 2019, you assert that the rifle (which is kept in case a horse needs to be put down) and the sledgehammer are normally stored in a shed at your premises. I also note that at the time of the offending, the view of one of your co-offenders and your face was partially covered with black-coloured motorcycle masks.

47 After arriving at the premises, you used the sledgehammer to strike the front security door of the premises, causing loud noises to be made. One of the tenants, Mr Beganovic, heard the noises and went to investigate, and only opened the wooden door, leaving the security door closed.

48 At that time, Mr Beganovic observed you holding the sledgehammer and the co-offender holding the rifle, both standing at the front door with your faces, as I have recorded, partially covered with black-coloured motorcycle masks.

49 After being told by Mr Beganovic that you had the wrong house, you again struck the front security door with the sledgehammer, causing the security door to buckle inwards, after which Mr Beganovic shut the wooden door, holding it shut while you continued to hit the security door with the sledgehammer, attempting to force your way inside.

50 During this time, Ms McMahon exited her bedroom and told you to, "Fuck off. You've got the wrong place". You then used the sledgehammer to smash a window in the bedroom of Mr Beganovic, and you and your co-offender entered the unit through the smashed windows, armed with the sledgehammer and firearm.

51 Mr Beganovic, on running out of the rear of the unit, then heard voices directed to Ms McMahon enquiring "Where's the Ice?" and "What about the cash?" Further, Ms McMahon was advised, "Guy's family have sent us here, stay away from the family".

52 Your co-offender then approached a motorcycle that was situated in the lounge room and suggested it should be put into the back of the ute. At that time, Ms McMahon walked over to you and your co-offender, and your co-offender then raised the rifle and pointed it at her, causing Ms McMahon to grab the rifle and push it away.

53 After that, you left through the front door, and Ms McMahon did note that while your co-offender was attempting to get the motorcycle, you gave the impression that you were "getting in over [your] head" and your expression "changed". Although there are no Victim Impact Statements from Mr Beganovic or Ms McMahon, it takes very little imagination to appreciate how frightening your activities would have been to the occupants of the unit - initially hearing the loud noises as the sledgehammer was striking the metal front of door, after which, being confronted by two men with partially-covered faces and one holding a sledgehammer and the other a rifle, and later hearing the window being smashed and being confronted by these two people in the actual unit. Of course, at all times, there was the overriding threat of being injured either by the sledgehammer or indeed the rifle. Of course, the victims did not know the rifle was not loaded, and the fact that it was not loaded does not lessen the offence.

54 When you were apprehended and underwent a Record of Interview, your position was not helped by denying any wrongdoing and indeed telling lies about what transpired the night before.

55 Although I clearly accept that neither occupant was physically injured in any way, clearly Ms McMahon tried to stop you and your co-offender from taking the motorcycle and was confronted with your co-offender raising the rifle and pointing it at her, causing her to grab it and push it away. Again, it does not take much imagination to accept that at that time she would have been conscious of a real threat of bodily harm or injury through the use of the rifle or the sledgehammer. I also accept that the offending was over a relatively short duration before you both departed the premises. Although the length of the time at the premises is a relevant consideration, it does not dilute the fear and apprehension the victims must have had during the time of your offending.

56 In mitigation, I do accept that notwithstanding your denial and lies during your Record of Interview, you did plead guilty at the earliest possible opportunity, which has had the utilitarian benefit of saving the community the cost of a trial and, indeed, the victims of your crime being required to give evidence. It is also a question for the sentencing judge whether remorse or a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (see Phillips v R [2012] VSCA 140 at paragraph [86]). I do accept that your plea of guilty is some evidence of remorse. I also note that your partner, both in her statement and during her evidence, asserted that you are remorseful for your activities.

57 I do accept that generally you have assisted the authorities and in particular identified your co-offenders by way of a statement dated 19 February 2019. It is not clear why it took that time to make such a statement and I suspect there is an element of perceived forensic advantage by doing so at this late date. However, such a statement has been made and indeed, according to the psychologist, Mr Hanley, you have suffered some difficulties in prison since making such statement.

58 Importantly, you have no prior convictions for any type of violent activity and indeed the only conviction in Victoria is for driving whilst disqualified back in July 2002. In other States, you were found guilty of driving a vehicle recklessly in 2008 and guilty of providing false information in 2011.

59 You, through your counsel, have supplied a number of references which are impressive. You are depicted as a man who has a solid employment history and is family orientated, supporting your partner and four children over the last fifteen years or so.

60 In particular, your partner and members of your family are extremely supportive and have attended Court during each of the plea hearings. A common thread through many of the references was that your criminal activity late in the evening on 7 July 2018 was completely out of character. Indeed, your lack of any prior convictions for any type of violence or any type of serious criminal offending gives some force to such assertions. On your release from prison, it has been made clear that you will be accepted back into the family unit and also will be able to resume work as a truck driver.

61 I also accept the submission of your counsel that you have "strong prospects of rehabilitation" when one takes account of your lack of prior relevant convictions, your strong work ethic and excellent employment history, the "unwavering" support of your partner, stepchildren and many friends and also having now experienced the "longstanding salient effect of a substantial period of incarceration".

62 My only qualification to your prospects of rehabilitation are those raised by Mr Hanley that you have no real insight into your periodic binge drinking and tend to deny that that is any issue in your life. If nothing else, one would hope you appreciate that the subject offending occurred after a long period of drinking on that particular day.

63 I also accept the opinion of Mr Hanley that you suffer from some degree with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, which would make your experience of a period in prison more burdensome than for others. In this respect, I rely on Verdins (op cit).

64 I do consider that your offending on the night of 7 July 2018 is "serious". Although I accept that alcohol erred your decision-making processes on that night, alcohol is no defence or excuse for such offending. I consider that the primary sentencing consideration is general deterrence - that is to say, people who contemplate this type of offending must be deterred by knowing that if such activity takes place, a significant prison sentence will follow. Furthermore, I consider such considerations as protection of the community and denunciation of the crime are also relevant in coming to an appropriate sentence.

65 However, I am also of the view that you have powerful mitigating circumstances in this matter. In particular, the lack of prior convictions for any violence whatsoever, your long excellent work record and the devotion of your family and friends also points to, in my view, that this particular offending may well have been "out of character".

66 After a consideration of all these matters, I have come to the view that I will sentence you to an immediate period of imprisonment for a period of time and thereafter place you on a community correction order. In this respect, you are assessed as suitable for such an order, and various recommendations were made for various conditions.

67 In particular, the addition of a community correction order after a period of imprisonment permits you to have treatment and rehabilitation in relation to alcohol and any ongoing Anxiety and Depression, and treatment and rehabilitation programs to reduce re-offending and supervision.

68 I also intend to convict you of the summary matters which were uplifted to this Court. In relation to Charge 3 - involving the possession of an unregistered rifle and Charge 5, dealing with the unlawful assault of Rebecca McMahon - I intend to sentence you to a short period of imprisonment, which will be served concurrently with your sentence in relation to the indictable offence. Please be upstanding.

(a) In relation to the charge on the Indictment, you are convicted and sentenced to twenty months' imprisonment. Furthermore, in relation to the charge on the Indictment, you are further sentenced to a community correction order for a period of two years. On release from prison, you must attend the Melton Community Correction Services within two days from being released. In addition to the mandatory terms there will be the following orders:

(i) pursuant to s48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary from the Department of Justice and Regulation for the duration of the community correction order;

(ii) pursuant to s48D(3)(e) of the Sentencing Act 1991, you are to undergo assessment and treatment, including testing for any mental health conditions;

(iii) pursuant to s48D(3)(f) of the Sentencing Act 1991, you are to undergo any program that addresses factors relating to your offending behaviour;

(iv) pursuant to s48D(3)(b) of the Sentencing Act 1991, you are to undergo assessment and treatment (including testing) for alcohol abuse or dependency;

(b) I declare that you have served up to, but not including this day, 320 days' in pre-sentence detention, and such period should be administratively deducted from this sentence;

(c) In relation to the uplifted Summary Charge 3, you are convicted and sentenced to a period of imprisonment of two months to be served concurrently with the period of imprisonment referred to in relation to the charge on the Indictment;

(d) In relation to the uplifted Summary Charge 4, you are convicted and sentenced to a fine of $250;

(e) In relation to the uplifted Summary Charge 5, you are convicted and sentenced to one month's imprisonment, such sentence to be served concurrently with the period of imprisonment referred to in relation to the charge on the Indictment.

(a) Pursuant to s464ZF(2) of the Crimes Act 1958, that a forensic sample be taken;

(b) Pursuant to s78(1) of the Confiscation Act 1997, that a disposal order be made in relation to property referred to in the Schedule to the proposed order;

(c) In relation to rectifying the broken window brought about by the offending, I make a compensation order in the sum of $1,520 based on the quote to repair such window (exhibit 3);

(d) I declare that save for your plea of guilty in relation to the indictable offence, I would have ordered a sentence of three years' imprisonment.

Mr O'Brien, you probably have not taken all that in, but effectively I think you have served about eight months, nine months and I have order 20 months. You have still got some time to go. This is a serious offence, a very serious offence, and indeed if your references were not as good as they were, you would be serving more time.

The community will not stand people invading houses, and indeed, the community expects that the courts deal very harshly with that type of offending.

As I said during that sentence, it is hard to imagine how frightening it would have been for people confronted by you and your co-offender that night when there's a sledgehammer and a rifle and you have got your faces partially covered.

You have also noted that I have ordered a community correction order. That is clearly not a situation where you are incarcerated, but what it does mean you have to comply with certain conditions and what you must remember when you come to that, that is essentially for your benefit. Now you might not agree with this at this stage, but it has been identified that you have a problem with alcohol and indeed, looking at the particular night it is hard to dispute that, and the type of conditions here you will have some specialised consultations about alcohol and to help you get through that and indeed, supervision, so indeed the whole point of that two years is that you will go on to, one hopes, resume work. You will obviously resume your family life but you are going to have to be involved with those conditions. What I stress to you is this; those conditions on that community corrections order is just like a sentence of the court and what happens is that if you do not comply with them, I will be informed and you will be brought back to me for what they call a breach of that order, and I have got the power to re-sentence you in those circumstances. So my advice to you is that when it comes to that, put your head down. You might find them of great benefit in your life, you really might, and indeed it is two years that will go pretty quickly and as I say, you will be able to largely resume your normal life.

Now what I am going to do, is just sign this corrections order. I should ask, has counsel got anything to raise?

MS O'BRIEN: Your Honour there was just one matter. I might have misheard Your Honour. In relation to the 6AAA sentence, Your Honour seemed to just give a non-parole period of three years, but not a head sentence.

HIS HONOUR: I just gave a head sentence of whatever - - -

HIS HONOUR: Yes, I said three years, yes. I don't have to give a number,

HIS HONOUR: Do you suggest I do? It does not say that it in the Act.

HIS HONOUR: I cannot see any advantage in that, but the non-parole period has only got relevance when someone is convicted and has a head sentence, they have got the prospect of may be - or applying for parole and maybe being granted parole.

HIS HONOUR: It is of no consequence to me whether they are or they aren't. What I have to look at when I sentence someone is the - essentially the head sentence and over two years of course, I have to allow for a parole period but I have never understood 6AAA for me to declare a non-parole period, unless you can point to some authority to that.

MS O'BRIEN: No, Your Honour, rather than just the practice that usually occurs of - - -

HIS HONOUR: One thing I just want to make you both accept, given the way the one year, of 12 months before the CCO can commence. It seems to me, bearing in mind the pre-sentence detention, I think I have complied with that.

MS BADCOCK: There is one matter that I would like to read to Your Honour. Application - the prosecution applied for a forfeiture order as well under the Firearms Act.

HIS HONOUR: Yes, I saw that in the - but I don't - have we ever been supplied a forfeiture order. In event, look, I will make that order. I will amend - I will add a further - I think it's (e) I also make an order, a forfeiture order as requested by the prosecution. Yes. Now what is going to happen Mr O'Brien, you are just be given, I will allow your counsel to approach there too, this is just the signing-off on the CCO.

Ms O'Brien I will also allow - I will stay on the Bench, I will allow members of the immediate family to approach the prisoner.

HIS HONOUR: Perhaps it might be better, just to (indistinct) the time, maybe his partner first, if she goes up.

MS O'BRIEN: Yes, I thank Your Honour for that opportunity. Might I also approach at the same time.

HIS HONOUR: Yes. Ms O'Brien are you allowed to go downstairs, or are counsel allowed to approach prisoners downstairs or - - -

HIS HONOUR: I just think it might be worth a visit downstairs just when things calm down a little bit, that you just in explain in detail what the sentence means.

MS O'BRIEN: What the effect of the entire sentence is, yes.

HIS HONOUR: Anyone else in the family wish to approach the - just quickly - not too long if you don't mind.

MS O'BRIEN: Thank Your Honour for your humanity in the situation.

HIS HONOUR: Yes, thank you. Yes, very well, take the prisoner.