Baxter v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0133

OLIVIA BAXTER	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	14 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 268
JUDGMENT APPEALED FROM:	[2024] VCC 1037 (Judge D Sexton)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Armed robbery (2 charges) – Armed robbery committed in company – Category 2 offences – Sentence of 16 months’ detention in youth justice centre – Manifest excess – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.

Sentencing Act 1991, s 5(2H).

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Counsel
Applicant:		Mr P Delorenzo
Respondent:		Mr J Dickie
Solicitors
Applicant:	Martin Middleton Oates Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

On 26 March 2024, the applicant pleaded guilty in the Koori Court division of the County Court to two charges of armed robbery, contrary to s 75A of the Crimes Act 1958. The maximum term of imprisonment for the offence of armed robbery is 25 years.
On 27 June 2024, following a plea hearing on 11 June 2024, the applicant was sentenced to 16 months’ detention in a youth justice centre.[1] Pursuant to s 6AAA of the Sentencing Act 1991, his Honour declared that, but for the applicant’s plea of guilty, he would have sentenced her to 24 months’ detention in a youth justice centre.
[1]DPP v Baxter [2024] VCC 1037 (‘Reasons’).
The applicant now seeks leave to appeal against sentence. Her proposed ground of appeal is that, in all the circumstances, ‘the sentence imposed was manifestly excessive having regard to the applicant’s personal circumstances, parity and other sentencing options’.

Circumstances of the offending

The applicant’s offending took place on 11 February 2023 in Robinvale in company with three other offenders: Emily Smith who was then aged 19, Rhythm Nixon-Harradine, who was then aged 22 and Tyreece Whitton who was then aged 22. At the time of the offending, the applicant was aged 18.
The victims of the two armed robberies, Mohd Bin Azmi and Mohd Farizam Hamzah, resided in a share property in Robinvale. They shared a bedroom at the property, sleeping in separate beds.
Early in the morning of 11 February 2023, the applicant and her three co-offenders attended at the property. The applicant apparently knew Mr Azmi. She had earlier engaged in a text conversation with him, asking if she could come over for a cigarette. At around 6.30 am, she texted Mr Azmi telling him that she had arrived at the property. Mr Azmi unlocked the front door and, seeing the applicant sitting on the porch, told her that he would be back. He returned to his bedroom at which point he and Mr Hamzah observed all four co-offenders standing in their bedroom.
The applicant took a cigarette from Mr Azmi’s bedside table and began smoking. She then picked up Mr Azmi’s iPhone and said that she wanted a new phone like this one. She then asked Mr Azmi for the passcode. When he refused, she became angry and began to repeatedly demand the passcode. At this point, Smith told Mr Azmi that he should just give the applicant the code or the applicant would become angrier. Initially both Mr Azmi and Mr Hamzah did not take this seriously, thinking it was a joke.
While the applicant was standing in front of Mr Azmi, who was sitting on the bed, she removed a kitchen knife which had been concealed within her pants and held it to the left side of Mr Azmi’s neck. Mr Azmi leaned back in an effort to distance himself from the knife, but the applicant’s hand with the knife followed, resulting in the applicant being on top of Mr Azmi with the knife still held against his neck.
Whitton then removed a machete from his waistband and told Mr Azmi to do what the applicant said. Whitton also hit Mr Azmi on his right knee with the back of the machete. At this point one of the applicant’s co-offenders struck Mr Azmi to the head and body with a chain wrapped around their hand. Whitton then grabbed Mr Hamzah by the throat and held the machete near his neck. He then told Mr Hamzah not to do anything, which made Mr Hamzah feel very scared. At this point either the applicant or Smith went to hit Mr Hamzah, but Nixon-Harradine said, ‘No don’t hit him, he’s a good boy’.
The applicant continued to go through Mr Azmi’s phone and, after she opened the banking application, she took Mr Azmi’s finger and placed it onto the phone to gain access via fingerprint verification. When this first attempt failed, the applicant became more agitated and forcibly tried again. The applicant’s plea counsel told the judge that this specific allegation of using Mr Azmi’s finger to access his passcode was disputed by the applicant. The judge resolved this issue by saying that, for the purposes of sentencing, he would proceed on the basis that, ‘in general’, the applicant ‘coerced Mr Azmi to provide access to his phone banking against his wishes’.[2]
[2]Reasons, [12].
After gaining access to Mr Amzi’s phone, the applicant asked him where all his money was. Smith and Nixon-Harradine also began asking Mr Azmi where his money was. All four co-offenders then began searching the bedroom and taking both of the victims’ possessions. During this time, both Mr Azmi and Mr Hamzah remained silently sitting on their beds.
Various items were stolen from each of the victims. In relation to Mr Azmi, $300, two backpacks, some clothing, a PlayStation 3 and the iPhone were stolen. In relation to Mr Hamzah, a blue speaker, two pairs of sneakers, a jumper and a pair of sunglasses were stolen. All four co-offenders then left the bedroom, at which point Mr Azmi vomited. Both victims then went outside to see where the four co-offenders had gone. Nixon-Harradine, Smith and the applicant then ran down the road; while Whitton paused at the end of the driveway, pointed the machete at Mr Azmi, who was then standing in the front doorway, and told him to get back inside.
A housemate of the victims who was home at the time but in another room observed the immediate aftermath of the offending and recognised Nixon-Harradine. Police were ultimately called and, through a combination of descriptions and names given to police, together with a location search with regards to Mr Azmi’s stolen iPhone, all four co-offenders were located and arrested.
The applicant was interviewed by police later on the day of the offending. Essentially, she denied being present for the offending, although she did admit texting Mr Azmi. The applicant went on to create a false account of what happened. Shortly after the interview, the applicant provided a sworn statement to police where she acknowledged that she and her co-offenders had been in the victims’ bedroom engaging in the offending. In her statement, however, the applicant diminished her role to that of a bystander.

Reasons for sentence

The judge commenced his reasons for sentence by noting that, as the armed robbery offences committed by the applicant were committed in the company of one or more persons, they were ‘category 2 offences’, requiring a custodial sentence to be imposed unless any of the matters set out in s 5(2H) of the Sentencing Act were enlivened.[3]
[3]Ibid [2].
The judge then summarised the circumstances of the applicant’s offending,[4] before turning to the nature, gravity and applicant’s role in the offending. The judge said that he regarded the applicant’s offending as ‘representing serious examples of the crime of armed robbery’.[5] In making that conclusion, the judge noted that the offending occurred in company with others; multiple weapons were used (a knife, a machete and a length of chain wrapped around a hand); the applicant and her co-offenders had ‘collectively attended’ at the property ‘for some sort of antisocial purpose’; the knife was actively used by the applicant in the commission of the offences; and the offending took place in the victims’ home, a place where they were entitled to feel safe.[6]
[4]Ibid [4]–[17].
[5]Ibid [18].
[6]Ibid [19].
The judge said that, in terms of the applicant’s role in ‘this serious offending’, that, while each of the co-offenders jointly and actively participated in the offending, the applicant was ‘the primary instigator’.[7] He said that the applicant had engaged in behaviour that could only be described as ‘violent and disturbing’; and that her culpability for the offending was ‘high’.[8]
[7]Ibid [20].
[8]Ibid [21].
In summarising the applicant’s personal circumstances, the judge noted the following matters:
(1)At the time of the offending, the applicant was 18. She was 19 at the time of sentencing. She had three prior findings of guilt in the Children’s Court from 2021, when she was 16, for offences which included assault, assault with a weapon, contravening a family violence intervention order, persistent contravention of a family violence intervention order and wilfully damaging property.[9]
(2)The applicant is of Aboriginal background, as are both of her parents. She is the eldest of six children. She had been sent to live with grandparents, when her parents separated when she was in late primary school. Her removal from her direct family occurred in the context of an exposure to domestic violence and drug abuse. She commenced using cannabis at the age of 10. This use escalated and continued until shortly before sentencing. She reported using methylamphetamine to escape the traumas of her life and also referred to previous episodes of self-harm.[10]
(3)Since ceasing her education halfway through Year 8, the applicant had not engaged in consistent employment. At one point she was in a toxic relationship with a male who perpetrated physical and emotional abuse on her. At the age of 16 years and eight months, she gave birth to a son. Child protection became involved, and her son went into the care of her grandmother, and ultimately a Care by Secretary Order was made.[11]
[9]Ibid [22].
[10]Ibid [23]–[27].
[11]Ibid [29].
The judge referred to the report of a psychologist, Dr Mirabel McConchie, which had been tendered on the plea. The judge noted Dr McConchie’s opinion that the applicant met the diagnostic criteria for a major depressive episode, and that she also would have met the diagnostic criteria for a cannabis use disorder and a stimulant use disorder, both at the time of the offending and at the time of Dr McConchie’s assessment.[12]
[12]Ibid [33].
The judge referred to the applicant’s lack of progress on bail, noting that, while the applicant did not appear to have reoffended while on bail, she had ‘demonstrated a considerable difficulty in attending appointments’.[13]
[13]Ibid [34].
The judge said that the applicant’s disengagement with supports that had been put in place did not appear to be the result of any deliberate avoidance of responsibility or hostility by the applicant, but rather had occurred ‘in the context of a combination of mental health issues and substance use’.[14] The judge said that, while it was positive that the applicant had attended a community correction order assessment and a youth justice centre order assessment, as well as a psychological assessment, her inability to consistently attend and engage with support and therapeutic services was ‘troubling to say the least’.[15]
[14]Ibid [35].
[15]Ibid [36].
The judge said that he was satisfied that the applicant’s disadvantaged and traumatic background, marked by her exposure from a young age to family violence and drug abuse, her removal from her parents, and the commencement by her of cannabis use, warranted a reduction in her moral culpability in the general sense, pursuant to the principles referred to in Bugmy v The Queen.[16]
[16](2013) 249 CLR 571. Reasons, [37].
The judge said that the applicant’s youth represented a significant mitigatory factor in the sentencing exercise, the applicant falling within the definition of a young offender within the meaning of the Sentencing Act. The judge said that, consistent with a long line of sentencing authorities,[17] the applicant’s youth and the need for any sentence to appropriately facilitate her rehabilitation loomed large in the sentencing exercise.[18] The judge then said:
Whilst you do not fall to be sentenced as a first time offender, your criminal history is limited, and this matter represents the first occasion upon which you will be sentenced in the adult jurisdiction. Consistent with authority, there is a need in sentencing to avoid a penalty which involves your detention or imprisonment in order to minimise the well known adverse impacts upon young offenders, unless such a penalty is necessary in the circumstances.[19]
[17]In particular, see R v Mills [1998] 4 VR 235.
[18]Reasons, [38].
[19]Ibid.
Next, the judge said that he was satisfied that the applicant’s plea of guilty reflected her acceptance of responsibility and her willingness to facilitate the course of justice. He said that he was also satisfied that she now had a meaningful level of insight into her offending.[20] The judge described this as being in ‘stark contrast’ to the applicant’s initial explanations to police upon her arrest.[21] He said that this improved insight stood to the applicant’s credit and warranted a further sentencing discount on the basis of her remorse. He then said:
A positive finding with regard to your remorse, in combination with your early plea of guilty, decreases the need for any penalty to reflect the sentencing purpose of specific deterrence, and reflects positively with regards to an assessment as to your prospects for rehabilitation.[22]
[20]Ibid [40].
[21]Ibid.
[22]Ibid.
The judge then referred to the applicant’s voluntary participation in the Koori Court sentencing conversation, and the fact that participation in a sentencing conversation is more burdensome than appearing at a traditional plea hearing. The judge said that a ‘mitigatory sentencing allowance’ was therefore warranted.[23] The judge also said that, additionally, the applicant’s Aboriginality represented a significant matter in the sentencing exercise, describing the applicant as a 19 year old Aboriginal woman with a difficult history and a family background which was ‘emblematic of the catastrophic impacts of intergenerational trauma brought about by colonisation which has wreaked havoc on the Aboriginal community, with its effects inexorably linked to the over-representation of Aboriginal people in custody’.[24]
[23]Ibid [41]–[42].
[24]Ibid [43].
After referring to current sentencing practices, general deterrence, denunciation and protection of the community, the judge turned to the issue of parity and said:
In formulating an appropriate sentence in your case, I have also taken into consideration the principle of parity, that is, the need for consistency in sentencing co-offenders, though acknowledging disparities of circumstances and factors that may exist. On 7 February 2024, I sentenced one of your co-offenders Tyreece Whitton, to a total effective sentence of three years’ and six months’ imprisonment with a non-parole period of two years’ and six months’ imprisonment. At the time of sentencing Mr Whitton was 23 years of age, and had a considerable criminal history in contrast to you. I have concluded that disparity with regards to the sentence imposed on Mr Whitton is clearly warranted. On 7 February 2024, I also sentenced your co-offender Emily Smith, in relation to two charges of armed robbery arising out of the same incident. In relation to Ms Smith I sentenced her to three days’ imprisonment, this period having already been served on remand, followed by an 18 month Community Correction Order with various conditions attached. I will turn to the considerations relevant to the offence of armed robbery when committed in company, and the application of s5(2H) of the Sentencing Act 1991 in due course. However, on the issue of parity, and after careful consideration I have concluded that there are also grounds for disparity in the sentence I am about to impose, in comparison to that imposed on Ms Smith. Ms Smith fell to be sentenced as a young offender, aged 20, with an absence of prior convictions or findings of guilt. Without in any way detracting from your disadvantaged and difficult background, Ms Smith’s background was particularly traumatic, and according to unchallenged psychological material she met the diagnostic criteria for chronic complex post-traumatic stress disorder. As at the time of sentencing she had been progressing well on supervised bail with Youth Justice for a period of approximately 12 months, and she had a number of professional supports in the community. At the time of sentencing Ms Smith was 20 weeks pregnant and encountering associated health conditions which had involved hospital attendances, and was planning for reunification with her young daughter who had been cared for by a relative. Importantly, Ms Smith’s role in the offending was less prominent than yours.[25]
[25]Ibid [45].
The judge said that, given the nature of the applicant’s offending, general deterrence, denunciation and community protection were important in the sentencing exercise. He went on to say, however, that given the applicant’s relatively early plea of guilty, her insight and remorse, and her positive participation in the Koori Court sentencing conversation, he was not satisfied that specific deterrence should play a particularly prominent role in sentencing. He said the applicant’s youth in particular, and the facilitation of her rehabilitation remained important sentencing purposes.[26]
[26]Ibid [46].
The judge returned to s 5(2H) of the Sentencing Act, again noting that a custodial sentence was required unless one of the exceptions in s 5(2H) was established. The judge noted that the applicant’s plea counsel relied on the exception contained in s 5(2H)(e), namely, the existence of ‘substantial and compelling circumstances that are exceptional and rare’ that justify not imposing a custodial sentence.[27] After giving detailed consideration to the submissions made on behalf of the applicant on this issue, the judge concluded that ‘the exceptional and rare threshold is not met, as the circumstances are not wholly outside the ordinary factors typical of the relevant offence’.[28]
[27]Ibid [47].
[28]Ibid [51].
The judge then concluded the Reasons by saying that, having regard to s 5(2H), and the parsimony principle, he had determined that a sentence involving the applicant’s confinement was warranted, and that the sentence would involve placing her in a youth justice centre. He then proceeded to sentence the applicant on each charge to a youth justice centre order for a period of 16 months, both sentences to be served concurrently, making a total effective sentence of 16 months in a youth justice centre.

Applicant’s submissions

In support of her contention that the sentence imposed by the judge was manifestly excessive, the applicant noted that she had been found suitable for a community correction order following an assessment on 18 June 2024. While the applicant accepted the correctness of the judge’s conclusion that ‘the exceptional and rare threshold’ contained in s 5(2H)(e) had not been made out,[29] she submitted that the judge erred in not imposing a combination of imprisonment and a community correction order.
[29]Applicant’s written case, [11]. Indeed, the applicant submitted that the judge was correct in finding that the applicant did not meet any of the exceptions set out in s 5(2H) of the Sentencing Act.

In support of that submission, the applicant relied upon the following matters and submission:
•Smith, who was 19 at the time of the offending, and who the applicant submitted had ‘some similar personal circumstances’ received a sentence of three days’ imprisonment as time served and an 18 month community correction order;
•the sentencing principles that apply to young offenders (summarised in Mills) fell to be applied; and
•the applicant should have been given ‘the opportunity to attempt the community correction order once her suitability was satisfied, rather than an immediate term of imprisonment based on the judge’s finding that the applicant had a fairly stagnant progress on bail’.

Consideration

Having conceded that the applicant did not meet any of the exceptions set out in s 5(2H), and that the section therefore had to be complied with, there is no substance in the applicant’s complaint that the judge erred in not imposing a combination of imprisonment and a community correction order. Section 5(2H), by its terms, expressly prohibits such a course, the section relevantly providing:
In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless … [one of the exceptions set out in (a)–(e) applies].
Far from there being any arguable error in the judge not imposing a combination sentence, it was not in fact open for his Honour to impose such a sentence once s 5(2H) had been found to apply to the sentencing of the applicant. Section 5(2H) required the judge to impose a sentence of imprisonment other than one which was to be combined with a community correction order.
Turning to the complaint of manifest excess, as has been said many times before, this ground will only succeed if it can be shown that the sentence imposed was wholly outside of the range of sentencing options available to the sentencing judge.[30] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[31]
[30]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[31]Ibid.
The Reasons show that the judge gave detailed and careful consideration to the circumstances of the applicant’s offending, the applicant’s personal circumstances and each of the matters which the applicant was able to call in aid in mitigation. Nothing in the Reasons discloses that inadequate weight has been given to any of the matters the applicant relied upon in mitigation. To the contrary, as can be seen from the Reasons, and from the level of the sentence which the judge ultimately imposed, it is plain that the judge gave significant weight to those mitigatory factors.
The applicant’s offending was a serious example of a serious crime. Her behaviour was, as the judge put it, both violent and disturbing.[32] She was the primary instigator of this very serious, and undoubtedly terrifying, offending.[33] But for her youth and the other matters she relied upon by way of mitigation, she could reasonably have expected a significantly longer custodial sentence than the one imposed by the judge. Taking into account all of the relevant circumstances of the offending and the offender, the sentence imposed was, at most, moderate. The contention that the sentence was wholly outside the range of sentencing options available to the judge is simply not arguable.
[32]Reasons, [21].
[33]Ibid [19]–[21].
Finally, and to the extent that the applicant complains about the disparity between the sentence imposed on her and the sentence imposed on Smith, there is no substance in this complaint. Again, as the Reasons disclose, his Honour gave careful consideration to the question of parity (or disparity) between the sentence he had imposed on Smith and the sentence he was about to impose on the applicant. For the reasons given by the judge,[34] it was open to his Honour to differentiate between Smith and the applicant in the way that he did in sentencing them. Nothing about Smith’s sentence gives any support to the proposition that the sentence the judge imposed on the applicant was manifestly excessive.
[34]Ibid [45].

Conclusion

The applicant’s proposed appeal against sentence is not reasonably arguable. Leave to appeal must be refused.
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[2024] VSCA 268

14 November 2024