CDirector of Public Prosecutions v Wandin-Acott

[2023] VCC 1655

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00430

THE DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
(CTH)
v
SEAN WANDIN-ACOTT	Defence

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2023, 4 September 2023
DATE OF SENTENCE:	6 September 2023
CASE MAY BE CITED AS:	CDPP v Wandin-Acott
MEDIUM NEUTRAL CITATION:	[2023] VCC 1655

SENTENCE
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Subject:Carjacking and Contravention of FVIO

Catchwords:              Guilty plea – limited criminal record – low-mid range offending – remorse – exceptional family hardship

Legislation Cited: Sentencing Act 1991 (Vic), s 5(2H).

Cases Cited:Russo [2021] VSCA 244; Tewaka [2022] VSCA 275; Darcy Leishman (2019) VSCA 270; Carter (a pseudonym) v R (2018) 272 A Crim R 170; Worboyes [2021] VSCA 169; Bugmy v R (2013) 249 CLR 571; Cody Hermann [2021] VSC 160; Sabbatucci [2021] VSCA 340; Roosevelt Newton (a pseudonym) [2023] VSCA 22; Fernando (1992) 76 a Crim R 58; DPP V Dalgleish (2017) 262 CLR 428; R v Verdins & Ors [2007] VSCA 102.

Sentence:Carjacking – 18 months imprisonment; Contravention of FVIO and others – 18-month community correction order

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Mutton	Office of Public Prosecutions
For the Defence	Ms Jones Williams	TQH Lawyers & Consultants

HIS HONOUR:

1Sean Wandin-Acott, you have pleaded guilty to:

·     one charge of carjacking (charge one)

·     one charge of handling stolen goods (charge two)

·     one charge of obtaining property by deception (charge three) on indictment N10720730.

2This offending occurred on 11 April 2022.

3You have pleaded guilty to one charge of contravention of a family violence intervention order intending to cause harm or fear for safety on indictment N12447768.

4This offending occurred between 3 November 2022 and 7 November 2022.

5You have also pleaded guilty to five related summary offences:

(a)   commit an indictable offence, carjacking, while on bail;

(b)   commit an indictable offence, obtain property by deception, while on bail;

(c)   drive while suspended;

(d)   possess weapon without exemption; and

(e)   breach conduct condition of bail (failure to comply with FVIO).

Circumstances of offending[1]

Carjacking

[1] The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 19 July 2022 (Exhibit A).

6On 11 April 2022, you were drinking at the Croydon hotel with friends. Around 7:30 p.m. your group left the hotel in two cars and went to the car park outside the Anaconda store at Bayswater North.

7Parham Babazedah arrived, in his 2014 Mercedes-Benz, at the car park a few minutes after your group arrived. He parked near the two cars.

8You got out of one of the cars and, after talking on the phone, you took off your jumper and removed something from near your foot.

9You approached the Mercedes Benz, opened the driver’s door and demanded Babazedah get out. You dragged him from the driver’s seat and frogmarched him away from his car toward the adjacent Anaconda building. Babazedah felt something sharp against his neck while you forcibly marched him away from his car.

10You stopped near the store, let Babazedah go and told him to “fuck off”.

11You walked back to his car and got into the driver’s seat. Four others, including Patrick White and Lachlan Theobald, were in the car.

12Babazedah filmed you. He flagged down another car which had driven into the car park and told the driver his car was being stolen. The driver drove towards the Mercedes-Benz. You drove around her vehicle and fled (charge one – carjacking).

13You stopped down the road and arranged for another of your group to pick you up.  White and Theobald drove off in the Mercedes-Benz.

14Babazedah ‘s credit card was in his car when you stole it.  

15Around 8:30 p.m, you used it to buy a packet of cigarettes valued at $49 (charge two).

16On 2 February 2022, at Heidelberg Magistrates Court, you were admitted to bail with a CISP condition. The charges then before the Magistrates Court were subsequently withdrawn.

17You were on bail when you forcibly stole Babazedah’s motorcar (summary charge seven – commit an indictable offence on bail) and used his credit card to buy cigarettes (summary charge 12 – commit an indictable offence on bail).

18Police arrested you later in the evening of 11 April. You admitted you earlier had pulled Babazedah from his car.

19You had the cigarettes you had bought using Babazedah’s credit card. And you had his credit card in your wallet (charge three – handling stolen goods).

20When police questioned you, you exercised your right to remain silent.

21You were charged with several offences and bailed from the police station to appear at court.

Objective seriousness of carjacking

22I have viewed car park CCTV footage[2], and Babazedah’s film[3], of your offending.

[2] Exhibit 18.

[3] Exhibit 20.

23In a public car park, at night, you pulled Babazedah from his car and held something to his neck, to put him in fear, as you frogmarched him from his car to the apron of the Anaconda store. Although you were with others, you were acting alone.

24The force you used to steal his car was lower end and you caused Babazedah no physical harm. And he was sufficiently composed to seek help from another motorist and to film you when you drove off in his car.

25The episode was very quick. It was about a minute from the time you pulled him from his car until you drove out of the car park.

26You drove away for about five minutes before you stopped and arranged for a friend to pick you up. White and Theobald drove off in it. You made no financial gain from the use or the theft of the car.

27I assess the objective gravity of the crime to be near or slightly below mid-range.

28You told a psychologist, Gina Cidoni, some in your group wanted to stop Babazedah from flirting with the girl they knew. You said you put a comb, which you pretended was a knife, to his throat. [4]

[4] Exhibit 1, Psychological report dated 2 August 2023.

29There was no extenuating reason for your offending.

30In a victim impact statement,[5] Babazedah wrote, the feeling of a sharp object to his neck was frightening and traumatic. He has suffered sleep disturbance and anxiety. He continues to be fearful in public. He was unable to work for nearly two months.

[5] Exhibit C, Victim Impact Statement of Partham Babanedah.

31Your moral culpability is high.

Family violence offending

32Brock Niehoff is the mother of your two children, Layla and Octavia. You were in a relationship with her for 12 years until 2019.

33On 2 February 2022, a Magistrate, at Ringwood Court, made a FVIO which prohibited you from having contact with Niehoff.

34On 2 November 2022, you swamped Niehoff with abusive text messages and phone calls. When she blocked your phone number you emailed her photos of your lacerated left wrist. When she told you she would call a CAT team you said you would stop harming yourself.

35On 3 November 2022, you drove to her home in your mother’s car. Your licence was suspended following a speeding infringement (summary charge 10 – drive while suspended).

36Concerned for your welfare, your mother called 000. When you got home you left on a pushbike. Police arrived and found you nearby.

37You had superficial cuts to forearms. Police called an ambulance.

38When asked to empty your pockets, you produced a black flick knife (summary charge 11 – possess prohibited weapon).

39You were hospitalised, under a Mental Health Act assessment order, until 11 November 2022. [6]

[6] Exhibit 5, MHARS report dated 21 December 2022.

40While were in hospital, you besieged Ms Niehoff with large numbers of phone calls and emails.

41From 9:15 p.m on 3 November, you made 78 phone calls from a hospital phone to Niehoff’s phone, over a 15-hour period.

42You called her from a private number. When she answered you said, “I’m in a mental facility cunt.”  You made another 189 calls to her from a private number until 6 November.

43Between 1:45 PM on 4 November and 12:11 AM on 6 November you made 112 calls to her mobile phone from yours. 

44And, on 6 and 7 November, you sent her 23 emails from your account.

45On 11 November 2022, police arrested you after you had been released from Maroondah Hospital. A medical officer assessed you to be unfit for interview. You were charged with family violence related offending and remanded in custody.

Objective seriousness of family violence offending

46Over a period of five days, you telephoned and message your estranged partner 380 times. Your communications were abusive. Your pestering of her was extreme.

47While she declined to make a victim impact statement, no doubt your harassment caused her considerable anxiety.

48From the extreme number of abusive communications, it can be inferred you intended to cause her mental harm or knew your behaviour would cause her an apprehension of fear.

49I assess the objective seriousness of this offending to be mid-range.

50You were on bail for the carjacking offence when you committed this crime.

51Your moral culpability, while high, is to be demonstrably moderated because you were plainly mentally unwell.

Procedural chronology

52Originally, you were charged with aggravated carjacking, on the basis you had forcibly stolen a car in company, which you disputed.

53After a committal hearing, the Prosecution accepted your carjacking plea offer. You were arraigned on that charge on 30 May 2023, and on the remaining charges before me on 7 August 2023.

Criminal record

54You have admitted a criminal record of five summary court appearances between 30 May 2011 and 24 October 2014.

55You have a burglary and a theft conviction on 30 May 2011, and a theft motor vehicle conviction, on 20 October 2011.

56You successfully completed a community-based order, made 30 May 2011 and breached a second, made 20 October 2011.

57You served nearly two months imprisonment in April 2014 when a Magistrate activated an earlier suspended sentence

58You have no prior convictions for serious violence or family violence offences.

Personal circumstances

59You were born in July 1992.  You were 29 years old when you offended.  You are now 31.

60You are an Aboriginal man

61You were born at Healesville. Your mother suffered postnatal depression. Your parents separated when you were two years old. They shared parenting of you.

62When you were eight or nine years old, your mother met another man. She was with him for about four years. You describe him as a positive influence.

63Then, she met another man. He was an alcoholic. He was violent toward your mother and you. You ran away from home a number of times because of his abuse.

64When you were 14 years old you went to live with your girlfriend and her father. You moved between their home and your father’s home until you turned 18.

65At 18, you began a relationship with Ms Niehoff. You have two daughters with her. They are now aged six and three years.

66You said the relationship was on and off again until the end of 2021.

67At the beginning of 2022 you met Katrina. She saw you battle mental ill health before your incarceration. She ended the relationship after you were imprisoned in November 2022. She wrote, in prison, you have come to understand your poor decisions and the consequences. You have completed courses and read books to improve yourself and you are determined to be a better person and a positive presence in your children’s lives. She remains supportive of you.[7]

[7] Exhibit 15, reference dated 18 February 2023.

68You had limited schooling.

69In 2014, Dr Aaron Cunningham, forensic psychologist, had assessed you to have deficits in verbal comprehension, working memory and processing speed. [8]

[8] Exhibit 7, report, dated 26 March 2014, of Dr Aaron Cunningham.

70You have a good work record.

71After you completed year 10 at an Aboriginal Technical and Further Education (TAFE) program, you worked for you father’s excavating business for three years.

72At 19, the Wurundjeri land Council employed you to assist with archaeological surveys. [9] You have been in that job for more than 10 years and you are a highly regarded. [10]

[9] Exhibit 13, reference of Patrina Roberts.

[10] Exhibit 14, reference of Jonathan Lushey.

73When you offended you were living with your mother. She is a Wurundjuri Elder.

74Your mental health was poor. You made several suicide attempts.

75In June 2022 you saw a psychiatrist, Dr Modak, who diagnosed you with:

(a)   Bipolar Affective Disorder;

(b)   Attention Deficit Hyperactivity Disorder;

(c)   Complex PTSD; and

(d)   Polysubstance use (predominantly cannabis use, in remission). [11]

[11] Exhibits two, three and four, reports dated 26 September 2022, 23 November 2022 and 1 March 2023.

76He managed you with mood stabilisers.

77Because of the complexity of your needs, he referred you to Eastern Mental Health Services. [12]

[12] Exhibit 4, report dated 1 March 2023.

78You had been admitted to CISP bail on 2 February 2022. [13]

[13] Exhibit 8, CISP final progress report.

79You completed the CISP program conditions which included AOD counselling, a men’s behaviour change program, obtaining a mental health care plan and keeping supervision appointments.

80A neuropsychological assessment, to investigate whether you have an ABI, was another program condition.

81Alana Collins assessed you on 8 August 2022.[14]

[14] Exhibit 6 neuropsychological assessment report dated 13 July 2022.

82You are of average intelligence, with an overall “average” level of cognitive functioning.

83You demonstrated deficits in attention and executive functions which, in Ms Collins opinion, is consistent with the expected cognitive profile of an individual with bipolar two disorder, rapid cycling and complex PTSD. [15]

[15] Ibid, page 13.

84She found no evidence to suggest you have an ABI. [16]

[16] Ibid, page 14.

85In May and August 2023, Ms Cidoni assessed you in two sessions over three hours. [17]

[17] Exhibit 1, psychological report dated 2 August 2023.

86To her, you appeared remorseful for your offending. However, in her assessment, your insight and judgement were “low”. [18]

[18] Ibid, [54].

87Your responses to psychological testing were consistent with diagnoses of bipolar disorder, complex PTSD and borderline personality disorder. They were also consistent with substance use disorder, now in early remission in prison.

88You told Ms Cidoni you had mixed lots of alcohol with your medication when you stole Mr Babazedah’s car.

89You said you had done the same when police took you to hospital on 3 November.

90Ms Cidoni wrote you experience “unpredictable mood swings between depressive and hypomanic states, leading to fluctuations in energy levels, motivation and emotional stability”. [19]

[19] Ibid, at [101].

91In her opinion, “[t]rauma stemming from [your] childhood experiences intensifies [your] emotional struggles, leading to recurrent intrusive memories, emotional numbness and difficulties forming healthy relationships. This deepens feelings of hopelessness, sadness and thoughts of suicide, amplifying the burden of [your] mental health challenges. The presence of BPD also contributes to emotional dysregulation, making it challenging for [you] to manage intense emotions and react appropriately to stressors. Substance use further exacerbates [your] emotional distress, impairing judgement and fostering a cycle of self-destructive behaviour”. [20]

[20] Ibid , [101] and [102].

92In her opinion, you had used alcohol “as a form of self-medication, attempting to cope with the emotional turmoil and distress arising from [your] mental health challenges”. [21] Intoxication led to disinhibition and heightened anger, which contributed to your offending. [22]

[21] Ibid, [106].

[22] Ibid, [105].

93Also, in her opinion, “the highly structured and often intense prison environment could exacerbate [your] mood swings and emotional instability, making it difficult for [you] to cope and maintain a consistent behavioural pattern.[23]

[23] Ibid, [116].

94I accept her opinions which were unchallenged.

95Ms Cidoni recommends ongoing treatment for your mental health, targeted interventions for violence and the vocational and educational programs.

96In prison, your bipolar disorder is managed with sodium valproate, and you have completed programs including “Cannabis and me”, “Keeping your cool”, “Alcohol and me” [24] and the Marumali culturally informed healing program. [25]

[24] Exhibit 22, three prison program certificates.

[25] Exhibit 16 certificate of completion six – 9 December 2022.

Defence submissions

97Ms Jones Williams, who appeared on your behalf made comprehensive written[26] and oral submissions. And relied on a number of reports and references. I have considered all the material carefully.

[26] Written submissions dated 4 August 2023 (Exhibit 17), Supplementary submissions dated 7 August 2023, Defence outline of further submissions, dated 4 September 2023 and dated 5 September 2023 (Exhibit 21).

98In mitigation of penalty, she relied on

(a)   the application of Bugmy principles;

(b)   the application of Fernando principles;

(c)   the application of Verdins principles;

(d)   your relative youth;

(e)   your limited prior criminal history;

(f)    your guilty plea; and

(g)   remorse.

99She provided me with a number of comparative carjacking sentences, which fell within a sentencing range of 293 days imprisonment and a two-year community correction order, where the sentencing judge was satisfied a mental impairment exception applied, and two years imprisonment.

100As she pointed out, sentencing statistics indicate the median sentence, in 38 instances, over five years to 30 June 2021, was 2.5 years. [27]

[27] Sentencing Advisory Council, Sentencing Snapshot.

101She submitted a CCO would meet sentencing objectives for the remaining offences.

Prosecution submissions

102Mr Mutton, who appeared for the prosecution also made comprehensive written[28] and oral submissions.

[28] Exhibit D.

103He acknowledged your guilty pleas, in addition to their utilitarian value, indicate your acceptance of responsibility and a degree of remorse.

104He submitted, nevertheless, considering your prior criminal history, albeit limited, your previous breaches of a CCO and a suspended sentence, your history of mental illness and substance abuse, your prospects of rehabilitation are guarded.

105He submitted, considering the objective seriousness of your offending, a term of imprisonment with a head sentence and non-parole period is within range.

106He also provided the court with several carjacking and FVIO contravention sentencing cases, which included some intermediate appellate authorities. [29] While the two carjacking Court of Appeal cases upheld sentences of three years[30] and three years and eight months [31], he acknowledged the objective seriousness of those crimes was greater than yours.

[29] Ibid, Annexure A.

[30] Russo [2021] VSCA 244.

[31] Tewaka [2022] VSCA 275.

Consideration

107As the maximum penalties, 15 years imprisonment, and five years imprisonment, respectively, demonstrate, your crimes of carjacking and contravening a FVIO are inherently serious.

108The crime of carjacking will generally call for stern punishment. [32]

[32] Darcy Leishman (2019) VSCA 270, [15].

109It is a category two offence. Imprisonment is the legislated norm.[33]

[33] Sentencing Act, s 5(2H).

110The primary sentencing objectives are:

(a)   just punishment;

(b)   denunciation;

(c)   general deterrence; and

(d)   community protection.

111There are mitigating factors which moderate the length of your prison sentence and the type of sentence I will impose in relation to your other crimes.

112Firstly, you are entitled to a demonstrable sentencing benefit for your guilty pleas which have high utilitarian value because they have spared victims the stress of trial [34] and because they alleviate the pandemic related strain on the administration of criminal justice. [35]

[34] Carter (a pseudonym) v R (2018) 272 A Crim R 170, [75].

[35] Worboyes [2021] VSCA 169.

113Secondly, I am satisfied you are genuinely remorseful. Your contrition reduces the weight to be given to specific deterrence and increases my confidence in your prospects of rehabilitation.

114Thirdly, I accept your disadvantaged background, which included childhood abuse and periods of homelessness, will have adversely shaped your responses and your decision-making. Accordingly, it warrants a reduction in your moral culpability.[36]

[36] Bugmy v R (2013) 249 CLR 571; Cody Hermann [2021] VSC 160, Sabbatucci [2021] VSCA 340, Roosevelt Newton (a pseudonym) [2023] VSCA 22.

115Fourthly, you have several diagnosed mental health disorders. You were mentally unwell, particularly when you contravened the FVIO. I am satisfied it reduces your moral culpability for your offending in November 2022.

116I also accept your poor mental health may make prison more difficult for you than a person in normal health. [37]

[37] Verdins, Limb 5.

117Fifthly, I accept your abuse of alcohol, mixed with your prescription medication, contributed to your offending. Normally, drunkenness is not a mitigating factor. However, in your case I accept that it is, because you abused alcohol to self-medicate the symptoms of your bipolar disorder and PTSD. [38]

[38] Fernando (1992) 76 a Crim R 58, [62] – [63], per Wood J.

118Your rehabilitation is also a significant sentencing factor.

119You are still a relatively young man. You have a limited criminal history. You have a good work record. And strong family and cultural supports.

120When you are released from prison, you will live with your mother and return to your work with the Wurundjeri Land Council.

121Your desire to be a good parent for your children is strong motivation for you to reform.

122I am optimistic, provided you address your mental health and remain drug abstinent, your prospects of rehabilitation are favourable.

123I have considered past sentences, which Counsel referred to. They provide guidance to sentencing judges. However, they “… are not binding precedents”. [39]

[39] DPP V Dalgleish (2017) 262 CLR 428, [83] (Gaegeler and Gordon JJ).

124Because you are to be sentenced for several offences, I have had regard to the totality principle to ensure your sentences are an appropriate measure of your overall criminality.

125White and Theobald were sentence for theft of Mr Babazadeh’s motorcar. Their crime was objectively less serious than yours. Nevertheless, I have had regard to the parity principle to avoid imposing a sentence which would cause you an unjustifiable sense of grievance.

126I have concluded a prison term is the only appropriate sentence for a crime of carjacking.

127I am satisfied, in relation to the deception, handling stolen goods, and FVIO contravention charges, together with the bail offences, sentencing purposes can be achieved by a CCO.

128I have had you assessed for a CCO, and you have been found suitable. I accept the assessing officers’ recommendations for the inclusion of special conditions in your order.

129In my view, monetary penalties are appropriate for the driving while suspended and possession of flick knife charges.

130Mr Wandin-Acott, by the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.

131Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:

132On the charge of, carjacking, you are sentenced to 18 months imprisonment.

133I declare you have served 301 days of your sentence by presentence detention.

134On the charges of:

(a)   handling stolen goods;

(b)   obtaining property by deception;

(c)   contravention of order intending to cause harm or fear for safety;

and the related summary offences of:

(d)   committing an indictable offence, carjacking, while on bail;

(e)   committing an indictable offence, obtaining property by deception, while on bail; and

(f)    failure to comply with a conduct condition of bail by contacting Brooke Neihoff and attending her home in contravention of a FVIO,

you are convicted and released on a CCO which will commence on your release from prison.

135The duration of the CCO will be 18 months.

136In addition to the core conditions, I impose the following special conditions:

(a)   supervision;

(b)   drug treatment and rehabilitation;

(c)   alcohol treatment and rehabilitation;

(d)   mental health treatment and rehabilitation; and

(e)   programs to reduce offending.

137On the charge of drive whilst suspended on 3 November 2022, you are convicted and fined $200.

138On the charge of possess a prohibited weapon, a flick knife, without an exemption, on 3 November 2022, you are convicted and fined $200.

139While there is some artificiality in the process, I declare, under s6AAA of the Sentencing Act1991 (Vic), but for your plea of guilty, I would have imposed a total effective sentence of three years and three months imprisonment and fixed a minimum non-parole period of two years and three months.

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