IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	 Revised
Not Restricted
Suitable for Publication	
Case No. CR-21-02366

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SHANE GLASS		

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JUDGE:	Her Honour Judge Gwynn	
WHERE HELD:	Melbourne	
DATE OF HEARING:	22 April 2022, 1 June 2022	
DATE OF SENTENCE:	3 June 2022	
CASE MAY BE CITED AS:	DPP v Glass	
MEDIUM NEUTRAL CITATION:	[2022] VCC 846		

REASONS FOR SENTENCE
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Subject:	Criminal law
Catchwords: 	Armed robbery; causing injury intentionally; make threat to inflict serious injury; assaulting an emergency worker on duty; commit indictable offence whilst on bail; state false name when requested.
Legislation Cited:	Sentencing Act 1991 (Vic)
Cases Cited:	Worboyes v The Queen [2021] VSCA 169; Honeysett v The Queen [2018] VSCA; Bugmy v The Queen [2013] HCA 37
Sentence:	Total effective sentence of 3 years imprisonment 

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr A. Cecil	Office of Public Prosecutions	
			
For the Offender	Mr J. Miller	Stephen Peterson Lawyers	

HER HONOUR:

1	Shane Glass, you have pleaded guilty on indictment to a single charge of armed robbery, causing injury intentionally, make threat to inflict serious injury and assaulting an emergency worker on duty.  
2	You have also pleaded guilty to related summary offences of committing an indictable offence whilst on bail (two charges), and stating a false name.
3	In sentencing you for these crimes I must have regard to the maximum penalties for the offences you have committed and those maximum penalties are as follows:
•	Armed robbery – 25 years imprisonment;
•	Causing injury intentionally – 10 years imprisonment;
•	Make threat to inflict serious injury – five years imprisonment;
•	Assaulting an emergency worker on duty – five years imprisonment;
•	Commit an indictable offence whilst on bail – three months imprisonment; and
•	Stating a false name – five penalty units [penalty unit = $165.22 as at 19/03/21].
4	The maximum penalties reflect the seriousness with which Parliament regards these offences.
5	The circumstances of your offending are set out in a document titled “Summary of Prosecution Opening for Plea” dated 28 March 2022.  This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
6	I will not repeat the entire summary as it is a matter of record, but in brief terms, the offending that gives rise to these charges occurred over the evening of 18 March to the morning of 19 March 2021, at which time you were 34 years of age.  The victim of your offending, Jason Finger, was 48 years of age at the time and lived in Marley Street, Sale.
The Offending
7	At approximately 6:38 pm on 18 March 2021, Mr Finger let you into his unit. He had met you earlier that day and knew you from the Bairnsdale area as 'Rocky'.  
8	Mr Finger, another male, Gary Lubke, and you socialised in the unit before your co-accused, Reginald Edwards, arrived at the unit.  The victim had known 
Mr Edwards for about a month and he had previously visited Mr Finger's unit.
9	The four of you continued socialising before Mr Lubke left.
10	Shortly thereafter, the victim said to you and Mr Edwards, 'I’m going to have to ask you to leave.'  This was because you were both acting erratically and he had become uncomfortable.
11	At approximately 6:56 pm, Mr Edwards walked over and looked at the victim’s computer.  At that time and for the rest of the time until he left the unit Mr Edwards was holding a small metal jemmy bar with black electrical tape wrapped around the middle.
12	Mr Edwards initially approached you, took his shirt off and accused you of damaging the computer.  You protested, saying that you didn't.  During this short conversation the victim said something to Mr Edwards which angered you both.
13	You and Mr Edwards then turned on Mr Finger.  You stood over him whilst he was seated on a couch.  Mr Finger said the computer was his, and that he had done nothing wrong.  Whilst this was happening Mr Edwards went to the kitchen and began rummaging through the victim's belongings.
14	A short time later, Mr Edwards asked the victim for money.  The victim said he had given him plenty of money, and you then said, 'Look at me when I'm talking to you, okay.  Look.  Look at me or I’ll fuckin’ knock you straight out cold, boy.'
15	Mr Finger asked why you were turning on him, to which Mr Edwards responded, 'Because you got drugs. Think you can get away with it and then blame everybody.'
16	The victim asked you to calm down and relax to which you responded that you were not going to do that.  Mr Edwards started going through the property and wallet in the kitchen area belonging to Mr Finger.
17	At around 7:02 pm the victim saw Mr Edwards stealing his medications and told you.  You told him, 'If he wants it, let him have it.'
18	Mr Finger again asked you both to leave.  You refused, saying, 'We’re not leaving here until we get fuckin’ money.  Give me money now cunt.'  The victim yelled that he didn’t have any money and bent down to the ground.  You then punched him to the face with your right hand and said, 'Don’t dis my brother cunt.  I’ll knock you straight out. Wanna go?'
19	The punch knocked the victim back into an armchair.  Mr Edwards wrapped the jemmy bar he was holding into a T-shirt and approached the victim.  You were standing over the victim yelling 'I’ll can hit yah hard cunt. I won’t stop brother.'
20	You punched the victim in the face five more times.  During this, the victim got up and walked towards the kitchen.  Mr Edwards made more demands for money and property.  Whilst he was making these demands, you used a couch cushion to strike the victim.  Mr Edwards feigned a punch towards the victim’s face.  By this stage the victim had his hands up to protect his facial area.  Both you and 
Mr Edwards said you would smash him.
21	The two of you then walked away from Mr Finger before turning back and punching him a further nine times to the head, face and body.  The force of the assault knocked the victim backwards and he fell over onto the floor, covering his head with his hands and trying and protect himself, asking you to stop.
22	You punched the victim to the head.  Mr Edwards punched him to the body and you each kicked him to the head.  Both you and Mr Edwards continued to threaten to assault the victim.  You hit the complainant in the head with a half-full 1.25 litre bottle of soft drink and punched him in the head.  Mr Edwards took his iPad.
23	At 7:07 pm a female entered the unit but left after being told leave by Mr Edwards.
24	After that both you and Mr Edwards then resumed your assault on Mr Finger.  You kicked the victim to the body and you backhanded him to the face twice before kicking him in the head and body again.  The second kick was with significant force and struck him around the rib area.  These facts form the basis for Charge 2, causing injury intentionally.  
25	At 7:12 pm, you slapped the victim to the head before you and Mr Edwards left the unit via the back door. 
26	A short time later you re-entered the unit and threatened the victim, who was still on the kitchen floor, with a long metal pole, saying, 'You’re fuckin… boy.  Now you’re dead you mother fucker. You upset my brother boy.  You fuckin’ cunt, I should hurt ya mate.'  These facts form the basis for Charge 3, make threat to inflict serious injury. 
27	Mr Edwards returned to the unit and told you to get away from the victim before approaching the victim himself.  He stopped you attempting to strike the victim to the head with the metal pole, took the pole from you, and you both left the unit.
28	After you and Mr Edwards had left the address, the victim realised that his medication, cash (less than $100) and his Apple iPad had been stolen.  Forming the basis for Charge 1, armed robbery.   
29	The precision in those details is because the entire incident was captured on internal CCTV at the unit.  That footage makes difficult viewing but provides a clear and precise picture of the offending.
30	At about 10:20 am on 19 March 2021, you were located by police and placed under arrest.  You repeatedly stated your name was Wally Hood, forming the basis for summary Charge 12, state false name.  
31	You were taken to Sale police station at about 10:38 am.  As you were being lodged in the holding cell, you said to First Constable Zachary Cook, 'I’ll spit at yah'.  You then did spit at him, partly striking him on the cheek and forming the basis for Charge 4, assaulting an emergency worker on duty.   
32	At the time of this offending you were on one count of bail entered on 
11 March 2021, to appear at the Latrobe Valley Magistrates’ Court on 28 July 2021, constituting the basis for summary Charges 10 and 11, commit indictable offence whilst on bail. 
33	I turn now to the offence gravity and victim impact.
Offence gravity and victim impact 
34	This is obviously serious offending. 
35	In terms of the charge of assault on an emergency worker, First Constable Cook, was simply doing his job when you firstly threatened to spit at him and then did so,  striking him in the cheek with your saliva.  It was a disgusting and unnecessary act by you.  You have a number of prior convictions for this offence.
36	Likewise with the bail offence, whilst it carries a relatively low maximum penalty, you have been charged with similar offending on at least four to five occasions.
37	The most serious offending is that which occurred in Mr Finger’s unit. This is a place where you were a guest and it is a place where Mr Finger was entitled to feel safe.  Quite frankly, you should have just left when you were asked.  You have a not insignificant history for offences of violence and this would appear to be offending which came out of nowhere.  You had numerous opportunities to desist yet you continued in a protracted attack upon Mr Finger in what was brutish thuggery, in company, and with the constant threat of a weapon being used.  
Mr Finger was very vulnerable in all the circumstances. 
38	The items taken from him - money, prescription medication and his iPad - would have all been items of value, for differing reasons, to Mr Finger. 
39	A victim impact statement authored by Mr Finger dated 20 August 2021 was tendered by the prosecution at your plea hearing.  
40	The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime on them.
41	Mr Finger describes feeling fear, frustration and increased anxiety as a result of your offending, and says he is now always looking over his shoulder.  He did refer to facial fractures to his cheek and nose, and to suffering regular migraines as a result of his injuries.
42	I am told that the physical injuries Mr Finger incurred resiled fairly quickly and 
his patient record was tendered by the Prosecution.
Plea of guilty 
43	In terms of your plea of guilty the Sentencing Act obliges me to take into account the stage at which you entered your plea.  This matter resolved by way of a straight hand-up brief on the day of the committal, representing a plea made at an early opportunity. 
44	There is clear value in saving the victim the need to give evidence and there is extra value in saving the community the expense of contested proceedings.  
45	Your decision to plead guilty in the context of the COVID-19 pandemic has additional value as it provides certainty and finality to all parties in circumstances where the court's operations have been disrupted and many trial dates remain as yet unfixed.
46	In the recent decision of Worboyes v The Queen [2021] VSCA 169 at paragraph 39 the Court of Appeal tells me that:
'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the court are not afflicted by the pandemic’s effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.'
47	Based on the materials before me I also accept that your plea of guilty is one of remorse. 
48	These factors will be taken into account in your favour.
Koori Court
49	In addition, you chose to have your plea take place in the Koori Court.  You are from Kurnai people. The objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process of the 
County Court through the role played in that process by Aboriginal elders and respected persons.  Others, such as family members and supports, are able to contribute to what is referred to as the sentencing conversation.  You were supported by your mother.
50	The sentencing conversation is designed to assist the reform of an Aboriginal offender through a blend of customary law and English common law.  You elected to take part in the Koori Court sentencing conversation, given your developing connection with your culture and the desire to express your remorse for your actions personally.
51	In the decision of Honeysett v The Queen [2018] VSCA 214 the Court of Appeal looked at the Koori Court plea process and determined as follows:
'In our view, in determining the weight to be attached to an offender's participation in a Koori Court sentencing conversation as a mitigating factor, a sentencing court should consider a range of factors, including:
(1) The fact that participation in the process is a voluntary one may be confronting to the offender and will likely involve him or her being shamed.  As noted in Morgan, participation in the process may of itself, be rehabilitative.  
(2) The fact that the offender is, rather than "hiding behind counsel", taking the opportunity to personally:
(a) demonstrate his or her remorse for the offending;
(b) demonstrate insight into the reasons for, and the seriousness and effect of, the offending; and
(c) express any intention to reform and how that will be done, including by participation in available rehabilitative programs.
(3) The court's assessment of the genuineness of the offender's statements during the sentencing conversation, that assessment to take account of all the information before the court.  
52	Uncle Lloyd Hood and Aunty Di Hurren were the respected elders who took part in the sentencing conversation.  Each of the elders confronted you with your wrongdoing and challenged you to find a different way of life, to set a better example for other family members and members of the community and to give up the drugs.  This is something that you made very clear you wish to do.
53	I did find that you participated in the sentencing conversation to the best of your ability and I take that and your participation in the Koori Court process into account.  
Personal Circumstances
54	I turn now to your personal circumstances.  
55	Tendered on your plea was a psychological assessment report authored by Dr Aaron Cunningham, psychologist, dated 20 April 2022.  In that report, Dr Cunningham helpfully set out your personal background.
56	In summary, you are now 36 years of age and were raised by your mother and stepfather in Bairnsdale.  You biological father died of drug overdose when you were only two years old.  You reported to Dr Cunningham that when growing up your mother was an alcoholic and there was violence in the home.  As a result you spent significant periods in State care in group homes during your upbringing where there was also violence.
57	You attended primary school in Bairnsdale and a Koori High School in Morwell.  You did struggle to read and did not complete year 8.
58	In terms of drug and alcohol use, you started chroming from the age of 11 and used cannabis before progressing to methylamphetamine in your 20s.  You have used methylamphetamine intravenously, and you reported abusing alcohol daily.  You commenced binge drinking alcohol from the age of 10.
59	You were using drugs and drinking alcohol at the time of the offending before me.
60	The application of the Bugmy principles, are conceded by the Crown.  Those principles refer to the fact that, 'because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision.'  I accept those principles have application to you.
61	You left group homes at the age of 15 to live with your mother, but soon left as you  became a father.  You have had two significant romantic relationships.  You have one son from your first relationship, who is now 21, and five children aged between 15 and 20 from your second relationship which lasted about 
10 to 15 years.  You have not seen your children in recent times by the simple fact that you are in custody. Your second oldest son is about to become a father.
62	 You have undertaken some fruit picking work, but otherwise receive the Newstart allowance and have mainly been unemployed. You have struggled with homelessness and instability in housing for most of your life. 
63	Dr Cunningham assessed your cognitive functioning and found that both your verbal comprehension and working memory were in an intellectually disabled range, consistent with prior reports which indicated intellectual impairment.  He conducted a risk assessment and concluded that you present with a moderate to high risk of future violent offending and that ceasing drug and alcohol abuse would be the main factor in decreasing your risk.  That much is obvious.
64	Overall, Dr Cunningham opined that you have struggled to find stability throughout your life and you have abused drugs from an early age to cope with emotional stresses.  He found that you present with multiple risk factors for offending, including your drug and alcohol use, but also homelessness, difficulty regulating your emotional state and experience of trauma, and that you are in need of high levels of case management in the community.
65	A report of Dr Evrim March, clinical neuropsychologist, dated 10 July 2020 was also been tendered and I have had recourse to that report.  At the time of that assessment you had been in custody for approximately six months. 
66	Your level of intellect was assessed as being in the extremely low range where 99% of your peers would do better.  You have difficulty processing complex information and conducting complex tasks.  
67	In Dr March's opinion you do have a cognitive impairment.  Whilst your premorbid functioning was likely to be low, Dr March opines that there has been a decline in your intellect and cognition over time in the context of your substance use.  You are unlikely to improve. 
68	I have also had regard to reports authored by Dr Remy Glowinski, consultant psychiatrist, dated 9 July 2019 and a neuropsychological assessment from 2007. I note that Dr March had access to each of those reports. 
69	In combination with the application of the Bugmy principles, I do accept based on the expert reports that your level of functioning is such that there should be some reduction in your moral culpability for your offending.  I am also satisfied that there is a basis to ameliorate both general and specific deterrence.  Concerns obviously remain as to how best to protect the community.    
Criminal history
70	Your prior criminal history does form part of your personal circumstances.
71	You have what can only be described as an extensive criminal record.  I do not intend to recite the entirety of that record, but of relevance to the sentencing exercise before me are several appearances for offending of violence.  
72	On 4 February 2004 you appeared before the Bairnsdale Magistrates' Court in relation to charges of reckless conduct endangering serious injury, assault police on duty, make threat to kill, resist police and assault with a weapon, for which you were convicted and fined $500, as well as being placed on an adjourned undertaking for 12 months.
73	On 7 December 2007 the Bairnsdale Magistrates' Court, convicted and sentenced you to one month imprisonment, wholly suspended for three months, for a charge of recklessly cause injury.  
74	On 8 January 2011 you were sentenced by the Latrobe Valley Magistrates' Court for charges which included make threat to kill, recklessly cause serious injury, recklessly cause injury, resist police, assault police, and received a total effective sentence of one year imprisonment, with a non-parole period of six months.
75	On 17 October 2013 you appeared at the Bairnsdale Magistrates' Court in relation to charges of unlawful assault and fail to answer bail and were given a 12-month community corrections order with therapeutic conditions.
76	On 23 July 2014 you appeared at the Bairnsdale County Court before 
His Honour Judge Smallwood in relation to charges of armed robbery, robbery and recklessly cause injury, and were sentenced to a total effective sentence of three years imprisonment, with a non-parole period of one year.
77	On 5 August 2014 you appeared at Latrobe Valley Magistrates' Court for charges which included robbery and recklessly cause injury, and attempted robbery and received a total effective sentence of 18 months imprisonment, with a non-parole period of 12 months. 
78	On 24 September 2020 you were sentenced by the Bairnsdale Magistrates' Court to an aggregate term of 270 days imprisonment with 235 days being reckoned as served for charges which included weapons offences, unlawful assault, make threat to kill, assault police custody officer on duty and commit indictable offence whilst on bail.
79	Most recently, on 25 February 2021, you were sentenced by 
Bairnsdale Magistrates' Court to an aggregate term of one month and 60 days imprisonment for charges which included unlawful assault, commit indictable offences whilst on bail and assault emergency worker on duty.
80	You are not to be punished for your criminal history a second time.  It is relevant however to the assessment that needs to be undertaken by me as to the weight that should attach to specific deterrence, denunciation and protection of the community, all of which do carry weight in the sentencing exercise.  It is also relevant to the assessment as to your prospects for rehabilitation to which I now turn.  
Prospects of rehabilitation 
81	Given your criminal history and expert findings, your prospect of rehabilitation would appear guarded.
82	You are to be commended for the fact that in recent times you have tried to locate a residential drug rehabilitation program but have been denied admission due to some matters which appear in your prior criminal history.
83	Whilst on remand you have worked hard to keep fit. You have also engaged with the Koori art program and are linked in with the Torch program.  I have accessed your artwork and see that you are a talented artist.
84	In addition, your period on remand has been during the Corrections system's need to respond to the COVID 19 pandemic.  I accept, in general terms, that this has  required prisoners to quarantine on reception at any prison. It means less access to freedom of movement, less access to educational and rehabilitative programs and less access to in person visits.  In that sense, it is more onerous than it would be at other times.   
85	I am told that you would benefit from the assistance of the NDIS scheme and that you anticipate seeking their help before your release.  I note Dr March’s report indicated that you do need assistance to manage your finances and shopping tasks. 
86	You  intend to return to the Latrobe Valley area where many of your family reside.
87	As I have said, your participation in the sentencing conversation in the Koori Court hearing appeared genuine.  You do want to set a better example for your grandchildren in your role as an older family member.  I accept that you are motivated to do so.
Parity
88	Finally, the parity principle demands that any sentence imposed reflects differences in the culpability and personal circumstances of co-offenders; and avoids unjustifiable differences in co-offender sentences.
89	Your co-accused, Reginald Edwards, was sentenced by 
His Honour Judge McInerney on 13 December 2021 to a total effective sentence of 419 days imprisonment in combination with a community corrections order for a period of two years.  I have had recourse to the sentencing reasons of 
Judge McInerney. Mr Edwards matter also took place in Koori Court.
90	Your counsel therefore rightly submits that parity has some part to play in the sentencing synthesis.
91	I note however that Mr Edwards pleaded guilty to charges of armed robbery and causing injury intentionally arising from the events at Mr Fingers unit in 
March 2021.  He was also prosecuted for an unrelated charge of theft.  He therefore did not enter pleas of guilty to the charge of make threat to inflict serious injury or assault emergency worker on duty, or the bail offences.  In terms of the charge you face of threat to inflict serious injury, at that point your co-accused returned to the unit and stopped you from striking the victim to the head with a metal pole.
92	You do both have criminal histories and are of similar age, Mr Edwards being about a year younger.  However, Mr Edwards has approximately 12 previous appearances to your 22 and overall has a more limited history for violence based offending. 

93	Equal justice requires identity of outcome in cases that are relevantly identical.  It requires different outcomes in cases that are different in some relevant respect. The differences between you and Mr Edwards are such that I do have regard to the parity principle but I am not of the view that equates to the same sentencing outcome. 
Section 5(2H) of the Sentencing Act
94	In addition, the circumstances of the armed robbery make it a Category 2 offence under the Sentencing Act and therefore, pursuant to section 5(2H), I am required to impose a sentence of imprisonment and cannot impose a combination sentence unless one or more of the exceptions set out in paragraphs (a) through to (e) of that subsection apply.  Your counsel concedes that no such exception applies in your case.
Sentencing Principles
95	I do make the ancillary order as sought for forfeiture of the black metal pole and jemmy bar if not already made.
96	Before I turn to the sentencing exercise, Mr Miller, anything arising so far?
MR MILLER:  No, Your Honour.
HER HONOUR:  Mr Cecil.
MR CECIL:  No, Your Honour.
HER HONOUR:  
97	The basic purposes for which a court may impose sentence include just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  I must also have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.  I must balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and safely reintegrated into society.  
98	I have taken into account the relevant sentencing purposes referred to in s5 of the Sentencing Act.  I have taken into account current sentencing practices for the offences to which you have pleaded guilty.
99	I do now turn to the sentencing exercise.  
100	In relation to Summary Charges 10 and 11, committing an indictable offence whilst on bail, you are convicted and sentenced to 14 days imprisonment on each charge.  These sentences will be concurrent.
101	In relation to Summary Charge 17, state false name, you are convicted and discharged.
102	In relation to Charge 1, armed robbery, you are convicted and sentenced to two years and three months imprisonment which forms the base sentence
103	In relation to Charge 2, cause injury intentionally, you are convicted and sentenced to 12 months imprisonment, of which three months is cumulative on other sentences imposed this day.
104	In relation to Charge 3, make threat to inflict serious injury, you are convicted and sentenced to eight months imprisonment of which three months is also cumulative on other sentences imposed this day.
105	In relation to Charge 4, assault an emergency worker on duty, you are convicted and sentenced to eight months imprisonment of which three months is cumulative on other sentences imposed this day
106	The total effective sentence is therefore one of three years imprisonment.  I fix a period of two years before you are eligible for parole.  
107	I have not checked pre-sentence detention with you, Mr Miller or Mr Cecil but I will reckon as I understand it, unless corrected by either of you, 441 days as having already been served.
MR CECIL:  That's right.
HER HONOUR:    That is right, all right.
108	Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty.  If not for your pleas of guilty, you would have been sentenced to four years and six months imprisonment with a minimum of three years  before being eligible for parole.  
109	I am about to stand down.  Anything else from you, Mr Cecil?
MR CECIL:  No, Your Honour.
HER HONOUR:  Mr Miller?
MR MILLER:  Nothing from me, Your Honour, no.
HIS HONOUR:  All right.  I will allow you to speak with your client privately and I will close the court until 10 am on Monday.  Thank you.
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