IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-22-01974

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
ALEXANDRE BALANCY		

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JUDGE:	Kelly	
WHERE HELD:	Melbourne	
DATE OF HEARING:	9 June 2023	
DATE OF SENTENCE:	20 July 2023	
CASE MAY BE CITED AS:	DPP v Balancy	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1244		

REASONS FOR SENTENCE
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Subject:		CRIMINAL LAW
Catchwords: 		Motor Vehicle Theft – Endangering Emergency Workers – Bail Breaches – Lengthy Criminal History – Prospects of Rehabilitation. 
Legislation Cited:		Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Road Safety Act 1986; Bail Act 1977; Sentencing Act 1991
Cases Cited:		R v Verdins (2007) 16 VR 269; Worboyes v The Queen (2021) 96 MVR 344; DPP v Roberts [2020] VCC 1195; DPP v Bullard [2020] VCC 243; DPP v Taylor [2020] VCC 1594; DPP v O’Sullivan [2020] VCC 1449; DPP v Arbuthnot [2020] VCC 1925; DPP v Caruso [2021] VCC 1018; DPP v Van Her Werden [2022] VCC 1065; Nelson v The Queen [2020] VSCA 219; McKay v The King [No 2] [2023] VSCA 8. 
Sentence:		3 Years, 2 Months Imprisonment. Non-Parole Period of 2 Years. 

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr J. O’Toole	Office of Public Prosecutions	
			
For the Accused	Mr L. Barker	Emma Turnbull Lawyers	

HIS HONOUR:
Introduction 
1	Alexandre Balancy, you have pleaded guilty to:
•	one charge of theft;  
•	one charge of damaging an emergency service vehicle;  
•	one charge of an aggravated offence of recklessly exposing an emergency worker to risk by driving; and 
•	two charges of possession of a drug of dependence. 
2	You have also pleaded guilty to the related summary offences of:
•	Driving a motor vehicle after given a direction to stop by a police officer; 
•	Contravening a conduct condition of bail; 
•	Committing an indictable offence whilst on bail; and 
•	Failing a drug blood test within 3 hours of driving a motor vehicle. 
3	The maximum penalties for these offences are as follows:
•	Theft: 10 years’ imprisonment; 
•	Damaging an emergency service vehicle: 5 years’ imprisonment; 
•	Aggravated offence of recklessly exposing an emergency worker to risk by driving: 10 years’ imprisonment. Pursuant to s 3 of the Sentencing Act 1991, this is a category 2 offence and by virtue of s 5(2H) of the Act, I am required to impose a custodial sentence unless one of the exceptions in that section apply; 
•	Possession of a drug of dependence, namely methylamphetamine and MDMA: 1 year’s imprisonment or a fine of 30 penalty units or both if I am satisfied the possession was not for the purposes of trafficking in the substances, otherwise 5 years’ imprisonment or a fine of 400 penalty units or both; 
•	Possession of a drug of dependence, namely Cannabis L: a fine of 5 penalty units if I am satisfied that the quantity of cannabis is not more than a small quantity or the offence was not committed for the purposes of trafficking, otherwise 5 years’ imprisonment or a fine of 400 penalty units or both; 
•	Summary offence of failing to stop on police direction: 6 months’ imprisonment, a fine of 60 penalty units or both; 
•	Summary offence of contravening a conduct condition of bail: 3 months’ imprisonment or 30 penalty units; 
•	Summary offence of committing an indictable offence whilst on bail: 3 months’ imprisonment or a fine of 30 penalty units; and
•	Summary offence of failing a drug blood test within three hours of driving: a fine of 120 penalty units. 

Summary of offending
4	Your offending was summarised by the Prosecution at your plea hearing. 
5	Between 7:30 pm on 18 January 2022 and approximately 11:00 am on 19 January 2022, you attended Francis Street, Belmont, with your partner Abney Lacey. In this area Dominic Kruiger had parked his vehicle, a Nissan Navara Ute. You stole this vehicle, giving rise to charge 1 on the indictment: theft. 
6	In the early morning of 18 January 2022, an armed robbery had occurred in Geelong and a female suspect had been identified as Lacey. Police officers had been despatched to locate Lacey. 
7	As part of this investigation, at 11:20 am on the 19th of January, Detective Senior Constables (‘DSC’) Stokes and Spence entered a car park on the Indented Head foreshore off The Esplanade in an unmarked police vehicle, where they located the stolen Navara with you in the driver's seat and Ms Lacey in the front passenger seat. 
8	The police officers stopped next to the Navara, at which point you drove off out of the car park, leading the officers to activate their vehicle’s emergency lights and sirens and follow you. You failed to stop the Navara, and drove away at a fast rate of speed. This conduct gives rise to summary offence 2, failure to stop on police direction. 
9	The officers continued to observe the Navara from a distance. They observed you overtaking several vehicles by driving on the wrong side of the road before you went out of sight. 
10	At 12.15PM, the Navara was again spotted by the officers. They pulled up alongside the vehicle and saw you and Ms Lacey still in it. You looked in the direction of the officers’ vehicle and drove off again, performing a U-turn and then speeding away. You approached a tyre-deflation device set up by DSC Granger but braked sharply before turning around, ultimately avoiding the device.
11	DSC Stokes and DSC Spence followed you in their Tiguan and DSC Granger and DSC Templeton followed you in a separate vehicle as you drove into O’Halloran’s Road, a ‘no-through’ road. 
12	As you approached the end of the road, you began to conduct a U-Turn, causing DSC Spence in one vehicle to conduct a U-Turn himself. You completed your U-Turn, and drove forward attempting to pass DSC Spence’s vehicle. You collided into Spence, causing damage to the front left panel of DSC Spence’s vehicle, giving rise to charge 2: damaging an emergency service vehicle. 
13	You then drove into the centre of O’Halloran’s road, reaching a speed of approximately 50 KM/H before driving into DSC Granger and DSC Templeton’s vehicle. This collision constitutes charge 3, aggravated offence of recklessly exposing an emergency worker to risk by driving. 
14	You and Ms Lacey were removed from the vehicle and placed under arrest, and you, Ms Lacey, and officers Granger and Templeton were all transported to hospital for treatment in relation to injuries suffered as a result of the second collision. 
15	DSC Stokes conducted a search of the Navara, where he located a number of items including: 
•	Two zip lock bags containing approximately 7 grams of methylamphetamine, and multiple tablets containing a total of less than one gram of MDMA. These constitute charge 4: possession of a drug of dependence; and 
•	A Ziplock bag containing approximately 3 grams of Cannabis L, constituting charge 5: possession of a drug of dependence. 
16	At 2:00 pm on 19 January 2022, a nurse at University Hospital in Geelong obtained a blood sample from you. This was subsequently analysed and found to contain methylamphetamine in the amount of 0.36mg/l. This gives rise to summary charge 17, exceeding the prescribed concentration of drugs within three hours of driving. 
17	At the time of the offending you were on bail, giving rise to summary charge 11, commit an indictable offence whilst on bail. 
18	A condition of your bail was that you were “not to drive a motor vehicle unless going to and from work, or to attend an appointment with a health care worker for AOD treatment, including NA.” Your breach of this condition gives rise to summary offence 10: contravening a conduct condition of bail. 

Prosecution Submissions 
19	The Prosecution submits that charge 3 is a serious example of this offence, and that the degree of recklessness involved was high. In support of this characterisation, they cite the following:
•	The speed of your vehicle was 50kmph;
•	The police vehicle was almost stationary and thus not in a position to take evasive action;
•	You had a clear and uninterrupted view of the police vehicle;
•	You were under the influence of methylamphetamine;
•	There was substantial damage to the police vehicle;
•	The officers inside the police vehicle suffered injuries.
20	The prosecution concedes that charge 2 is at the lower end of seriousness for that offence.
21	It is further submitted that your moral culpability is high, having regard to your relevant criminal history amongst other things.
22	The prosecution concedes you have the potential to be rehabilitated, but it is submitted that a significant term of imprisonment should nonetheless be imposed.
23	As to your insistence that you did not know the vehicles pursuing you were police vehicles, the prosecution submits that this should not be accepted or should be treated with caution. It is pointed out that this would traverse your plea of guilty to summary charge 2. 

Defence Submissions
24	Your counsel acknowledges that the offending is serious but describes it as occupying the moderate category of seriousness. It is argued that you were not driving straight at the RAV4. Instead, you reported that you lost control on the road whilst attempting to avoid the RAV4. The photographs show damage to the front passenger-side quarter panel of the RAV4. I accept that, on the balance of probabilities, you were attempting to avoid the RAV4, as you had been attempting to avoid police for some time prior to the collision and the damage to the car you were driving is also to the front passenger side quarter-panel suggesting something less than direct contact between the two cars. For these reasons I accept, on the balance of probabilities, that you were not driving straight at the RAV4.
25	Your counsel also accepts that your plea of guilty acknowledges that you “recognised the likelihood that the RAV4 contained police officers”. However, your counsel points out that the vehicle was adorned with none of the usual livery of police vehicles. Given your plea of guilty to the offence of failing to stop on police request, I must accept, for the purposes of sentencing you, that you were aware that the people pursuing you were police.
26	Your counsel points out that, whilst it does not affect the nature of your driving, the consequences of the collision were significant for you. You presented at hospital with a Glasgow Coma Score of 3, before being put into an induced coma for three days. A discharge summary from Barwon Hospital was tendered at your plea and it outlines your various injuries.
27	You are described as intelligent, still relatively young, and having decent prospects of rehabilitation. Your family is very supportive of you. Indeed, your parents have funded rehabilitation programs for you on around seven or eight prior occasions. I am told that you have declined to pursue the option of a sentence deferral whilst attending a residential rehabilitation program. Your counsel submits that you would rather spend more time in the “semi-enforced sobriety” of prison before attempting to return to the community where you will need resolve to avoid drugs. This demonstrates your commitment to rehabilitation, your counsel argues.
28	You have a passion for music which, your counsel submits, will be a positive distraction for you in future, helping you to stay clear of drugs. Dedication to a passion such as this often augurs well for an offender’s prospects of rehabilitation. I note in your case that your love of making music did not dissuade or deflect you from this episode of offending or from taking drugs, but it provides a positive outlet for your energies which may improve your chances of reforming yourself as you mature.
29	Although you have a diagnosis of PTSD as a result of a kidnapping in 2015, your counsel concedes there is not a sufficient nexus between this diagnosis and your offending to enliven the principles of Verdins. I accept, however, that I can take the PTSD into account when sentencing you.
30	You have been on remand for a long time, some 15 and a half months. It is submitted that you are trying to turn your life around.
31	As for your possession of illicit substances, it is submitted that this was for personal use and not for trafficking. The prosecution does not quarrel with this submission and I accept this is so.
32	Your counsel ultimately submits that a head sentence of imprisonment with a non-parole period is warranted in the circumstances, though the non-parole should be in the very short term.

Personal Circumstances and Prospects for Rehabilitation
33	Your circumstances were summarised in the report of Warren Simmons that was tendered at your plea. 
34	You are 31 years old, and the youngest of two children born to your mother and father. 
35	You described your childhood as amazing, in that you enjoyed close relationships and regular contact with your extended family, including your maternal grandfather who lived with you and with whom you are particularly close. 
36	Your family were financially comfortable, and you were heavily involved in the local Mauritian community. You regularly attended Catholic mass and engaged in a variety of sports whilst your father operated as the president of the local soccer club.
37	You attended St Gerard’s Primary School, and Nazareth College and Eumemmerring Secondary College for high school. You reported that you were in the mid-range academically, and you were good at schoolwork but lost interest. You engaged in some truancy in year 9; this was not a major problem, and you cite the death of your grandfather as a factor for this. 
38	You reported that you were intermittently harassed during high school due to your ethnicity, which caused you to act out. You also said that, growing up, you always seemed to be in some kind of trouble; you were harassed by police who would want to know who you were, even when at the local shopping centre with your mother. 
39	You left school at the end of year 11, due to a period of prolonged and excessive alcohol consumption, enrolling in a mechanical engineering apprenticeship. You then enrolled in Casey Grammar to complete year 11 whilst continuing your apprenticeship. At some point you left school again. 
40	Within a relatively short period of time a number of unsettling events occurred in your life. You reported that you were attacked by a group of men, resulting in injuries to your skull and PTSD-like symptoms. Your best friend then passed away, your relationship with your girlfriend came to an end and you lost your driver's licence and your job. The combination of these events caused you to experience depression, and you reported to Mr Simmons that you felt like you were nothing. 
41	In about 2015, you were on your way to work when you were then bundled into the back of a van, kidnapped and abused, which caused you a considerable amount of stress and fearfulness in the community, and exacerbated your existing substance consumption problems. Mr Simmons later refers to an incident she describes as happening in 2016, where you were held against your will for 24 hours and taken to a caravan in front of a house. You were blindfolded and tied to a chair, threatened with a gun and beaten before eventually being dropped off in Hallam. You later gave evidence against your assailant. I assume for the purposes of these remarks that these two incidents are the same.
42	Your counsel reports an earlier event happening in 2010, when you were attacked by a group of youths whilst walking home from a party. They struck you repeatedly with a bat and, as a result, you had 52 stitches in your head and had a persisting haematoma. 
43	You began drinking alcohol at the age of 16, and experienced a period of daily consumption for several months following the death of your grandfather when you were 18. You were introduced to methamphetamines on your 21st birthday and by the time of your remand you were using this drug daily. You were also using GHB once or twice a week for about six months prior to your remand. Your alcohol consumption ceased following your introduction to methamphetamines. 
44	You reported that you undergo cycles of methamphetamine consumption until you either attend a rehabilitation program, obtain employment or are arrested, before eventually relapsing. Concerningly, you indicated that you don’t believe there is a point in trying to remain substance free, and your feelings of isolation mean you continue to return to your old friendships.  
45	You have successfully completed four prior residential rehabilitation programs, including eight months at the Windana Society and nine months at Odyssey House.
46	Whilst you report having experienced feelings of depression, general stress and anxiety, and hypervigilance, you have no diagnosed mental health problems beyond your 2008 diagnosis for depression, although it was suggested by Mr Simmons that you undergo treatment for PTSD.
47	Letters were provided to the court by both you and your father.
48	In your letter, you express an intention to be the man your parents raised you to be. You want to finish your apprenticeship as a mechanical engineer, pursue your passion for music, travel overseas and start a family. You have expressed a desire to stay away from the wrong peer groups. I note that your peers were not responsible for the decisions you made in relation to this offending
49	Your father’s letter expresses an immense deal of love and support for you. He emphasises your good upbringing but also details the successive tragedies that have steadily knocked you off the right track. Your father says that, since he is now only working part-time as a solicitor, he intends to dedicate the next few months to you, and to give you the structure you need to rehabilitate yourself.
50	I also have a number of certificates detailing courses you have completed whilst in custody. These include:
•	Ice & Me;
•	Building Better Relationships; and
•	Responsible Serving of Alcohol.
51	These demonstrate a further level of commitment to rehabilitation and I take them into account in sentencing you.

Criminal History
52	You have a relatively lengthy and relevant criminal history, consisting of 7 convictions for theft of a motor vehicle, 10 convictions for Attempted Theft of a Motor Vehicle, using an unregistered vehicle on a highway, numerous burglaries, possession of methylamphetamine, failing an oral fluid test within 3 hours of driving, criminal damage, careless driving of a motor vehicle, committing an indictable offence whilst on bail, resisting an emergency worker on duty and attempted aggravated burglary. You have repeatedly been the subject of Community Correction Orders, each one of which you have breached.
53	The extent of your prior convictions is troubling and gives good reason to doubt your commitment to rehabilitation.

Moral culpability and gravity of the offending 
54	Your moral culpability for these offences is high. The gravity of the offences is variously in the low to mid-range.
55	You have had abundant opportunities- a loving family who have invested heavily in you, a private school education and enviable employment opportunities. You seem to have squandered much of the good will extended to you by courts in the past, but your family’s support is constant. You have experienced a series of traumatic episodes and have turned to illicit substances as a result. Your drug taking fuels your offending. By now, however, you must appreciate the link. You are 31 and you have appeared in court with depressing regularity since 2015.
56	Charge 3 is the most serious offence for which I am to sentence you. Your offending under this charge is in the midrange of seriousness for this type of offence. Your driving encompassed an attempt to flee the police and that fact elevates its seriousness.
57	As for the drug offences, charge 5 is a low-level example, whilst charge 4 is at the mid-range of seriousness.

Guilty Plea 
58	You have pleaded guilty to these matters and hence you are entitled to a discount on your sentence.
59	You have also pleaded guilty during a period in which the court continues to experience the effects of the COVID-19 pandemic. As such, your plea has added utility which justifies further mitigation of your sentence in line with the decision in Worboyes. 

Comparable cases
60	I have had regard to the case extracts provided by the defence, and to the comparable cases provided by the prosecution. Each case is different, but these materially have assisted me in determining current sentencing practices for these offences.
Sentencing Purposes
61	Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:
(a)	To punish you in a manner and to an extent which is just in all of the circumstances;
(b)	To deter you or others from committing similar offences in future;
(c)	To facilitate rehabilitation;
(d)	To manifest the denunciation of your conduct;
(e)	To protect the community; or
(f)	A combination of two or more of these purposes.
62	In your case, denunciation, specific and general deterrence are important considerations. 
63	Your prospects of rehabilitation, notwithstanding your criminal background, I consider are fair, mainly due to the support of your family and the fact that you are still relatively young.
Sentence
64	Alexandre Balancy, I sentence you as follows
65	On Charge 1, theft of Motor Vehicle, you are convicted and sentenced to 8 months gaol.
66	On Charge 2, Damaging an Emergency Vehicle, you are convicted and sentenced to 12 months gaol.
67	On Charge 3, a rolled-up Recklessly Exposing Emergency Workers to Risk by Driving, you are convicted and sentenced to 2 years gaol.
68	On Charge 4, a rolled-up Possession of a Drug of Dependence, you are convicted and sentenced to 1 month’s gaol.
69	On Charge 5, Possession of Cannabis, you are convicted and fined $500.00.
70	On summary Charge 2, Failing to Stop on Police Direction, you are convicted and sentenced to 6 months gaol.
71	On summary Charge 17, Exceeding the prescribed concentration of drugs within 3 hours of driving, you are convicted and fined  $1000.00 and I cancel all Motor Drivers Licence held by you and disqualify you from holding an Motor Drivers Licence for a period of two years pursuant to section 50 of the Road Safety Act.
72	On summary Charge 11, commit an Indictable offence whilst on bail, you are convicted and sentenced to 1 month gaol.
73	On summary Charge 10, contravening a conduct condition of bail, you are convicted and sentenced to 1 month’s gaol.
74	Charge 3 is the base sentence. I order 6 months of the sentence in Charge 1 to be served cumulatively upon the sentence in Charge 3. I order 6 months of Charge 2 to be served cumulatively upon the sentence in Charge 3. I order the term in Charge 4 is to be served concurrently with the term in Charge 3. I order the sentence in summary Charge 2 to be served concurrently with the sentence in Charge 3. The sentences on summary Charges 10 and 11 are to be served cumulatively upon the sentence in Charge 3. That produces a head sentence of 3 years and 2 months. I fix a non-parole period of 2 years.
75	In ordering partial cumulation as between charges 2 and 3 I have had regard to section 16(3D) of the Sentencing Act 1991.
76	I have also had regard to section 16(3C) of the Sentencing Act 1991 in ordering cumulation in relation to Charges 1, 2 and summary Charges 10 and 11 atop the base sentence.
77	In relation to Charge 3, as you have been found guilty of a serious motor vehicle offence I am obliged to cancel your Motor Driver’s Licence and disqualify you from driving for a period of not less than 24 months pursuant to section 89 (1) of the Sentencing Act. I order that this period of disqualification be of 24 months’ duration and that it run concurrently with the period ordered for summary Charge 17. 
78	In relation to Charge 1, as this is a conviction for theft of a motor vehicle, I am obliged to cancel any Motor Driver’s Licence and disqualify you from obtaining one by virtue of s 89(4) of the Sentencing Act. I order that this period of disqualification be 12 months in duration and is to run concurrently with the period ordered for summary Charge 17.
79	I order that the periods of disqualification for Charges 1 and 3 and for summary Charge 17 commence today.
80	The prosecution has sought a finding pursuant to section 89C (1) of the Sentencing Act that Charges 2 and 3 were committed whilst you were under the influence of a drug, namely methylamphetamine, which contributed to the offences. Given your plea to summary Charge 17 and your admission to using ice on the morning of your offending I am prepared to find that Charges 2 and 3 were committed whilst you were under the influence of a drug.
81	I declare that you have served 508 days of pre-sentence detention and that figure will be reckoned as served.
82	Pursuant to section 6 AAA of the Sentencing Act, but for your pleas of guilty I would have sentenced you to a term of 5 years with a non-parole period of 3 years, 6 months.
83	Lastly the prosecution has sought a disposal order.
84	MR O'TOOLE:  Yes, we make application for the drugs.
85	HIS HONOUR:  Relating to various items.  That is consented to I take it, Mr Barker?
86	MR BARKER: (Indistinct) Your Honour.
87	HIS HONOUR:  That order will be made in the terms sought.
88	MR O'TOOLE:  As the court pleases.
89	HIS HONOUR:  Nothing else?
90	MR O'TOOLE:  No, Your Honour.
91	HIS HONOUR:  Very well.
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