Director of Public Prosecutions v Aquino
[2022] VCC 2116
•25 November 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-21-02065
AP-22-1013
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK AQUINO |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August, 30 September & 23 November 2022 | |
DATE OF SENTENCE: | 25 November 2022 | |
CASE MAY BE CITED AS: | DPP v Aquino | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2116 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence – Appeal.
Catchwords: Youthful offender – Offence gravity – Plea of guilty during pandemic, remorse and delay – Totality – Application of Bugmy and Verdins principles – Risk of institutionalisation and prospects of rehabilitation.
Legislation Cited: Crimes Act 1958; Road Safety (Drivers) Regulations 2019; Road Safety Road Rules 2017; Road Safety Act 1986; Control of Weapons Act 1990; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; Bugmy v The Queen (2013) 249 CLR 571; DPP v Hermann [2021] VSCA 160; Bergman (a pseudonym) v The Queen [2021] VSCA 148; R v Verdins [2007] VSCA 102.
Sentence: Plea: 2 years and 10 months YJC; Convicted and fined $1,500. Appeal: 18 months YJC; Convicted and fined $1,000. Global total effective sentence: 3 years and 6 months YJC; Section 6AAA declaration: 5 years and 2 months imprisonment with a non-parle period of 3 years. Ancillary orders.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. O’Toole (Plea) Mr W. Drent (Sentence) | Office of Public Prosecutions |
| For the Accused | Ms Y. Kushnir (Plea) Mr B. Campigli (Appeal) | Slades & Parsons Solicitors |
HIS HONOUR:
Introduction
1Jack Aquino, you have pleaded guilty to one charge of attempted armed robbery, two charges of attempted robbery, one charge of criminal damage and one charge of theft. You have also consented to this court hearing and have pleaded guilty to five related summary offences (RSO’s) which include learner driver drive without experienced driver; failure to have proper control of a vehicle; drive whilst exceeding the prescribed concentration of drug; possess controlled weapon without excuse and possess dangerous article.
2The maximum penalties are as follows.
| INDICTMENT L12209519 | ||
| No | Charge | Maximum Penalty |
| 1 | Attempted Armed Robbery on 14 September 2020 | 20 years’ imprisonment [Crimes Act 1958 s. 75A and s. 321P] |
| 2, 3 | Attempted Robbery | 10 years’ imprisonment [Crimes Act 1958 s. 75 and s. 321P] |
| 4 | Criminal Damage | 10 years’ imprisonment [Crimes Act 1958 s. 197(1)] |
| 5 | Theft | 10 years’ imprisonment [Crimes Act 1958 s. 74(1)] |
| Related Summary Offences | ||
| 10 | learner Driver Driving Without Experienced Driver | 20 p.u. [Road Safety (Drivers) Regulations 2019 r. 47(2)] |
| 11 | Fail to have Proper Control of Vehicle | 5 p.u. [Road Safety Road Rules 2017 r. 297(1) |
| 12 | Drive Whilst Exceeding Prescribed Concentration of Drug | 12 p.u. [Road Safety Act 1986 s. 49(3AAA)(a)] |
| 14 | Possess Controlled Weapon Without Excuse | 1-year imprisonment or 120 p.u. [Control of Weapons Act 1990 s. 6(1)] |
| 15 | Possess Dangerous Article Without Excuse | 6 months’ imprisonment or 60 p.u. [Control of Weapons Act 1990 s. 7(1)] |
3In addition to the indictment and related summary offences, you appealed a sentence of imprisonment of 18 months with a non-parole period of nine months, which was imposed in the Frankston Magistrates' Court on 6 September 2022.
4That appeal (Appeal No. AP-22-1013) is also before me. The offending that is the subject of that appeal is set out in a table below.
| APPEAL AP-22-1013 | ||
| Informant GREY | ||
| No | Offence | Maximum Sentence |
| 3 | Drive at Speed Dangerous on 14 September 2020 | 240 penalty units or 2 years imprisonment or both s. 64(1) Road Safety Act1986 |
| 5 | Fail to Stop Vehicle on Police Direction | 60 penalty units or imprisonment for 6 months or both s. 64A(1) Road Safety Act1986 |
| 7 | Enter Intersection – Red Traffic Light | 10 penalty units r. 59(1) Road Safety Road Rules 2017 |
| 9 | Learner Driver Vehicle No Supervising Driver | 20 penalty units r. 47(2) Road Safety (Drivers) Regulations 2009 |
| 10 | Fail Give Right Signal for Long Enough | 3 penalty units r. 48(1) Road Safety Road Rules 2017 |
| Informant WHITE | ||
| 13 | Recklessly Cause Injury on 26 January 2022 | Level 6 imprisonment (5 years maximum) s. 18 Crimes Act 1958 |
| Informant BERKLEY | ||
| 16 | Intentionally Cause Injury on 10 February 2022 | Level 5 imprisonment (10 years maximum) s. 18 Crimes Act 1958 |
| 19 | Fail to Stop Vehicle After an Accident | If no person is killed or suffers injury – 5 penalty units or 14 days imprisonment s. 61(1)(a) Road Safety Act1986 |
| 20 | Learner Driver Vehicle No Supervising Driver | 20 penalty units r. 47(2) Road Safety (Drivers) Regulations 2009 |
| 21 | Possess Methylamphetamine | Trafficking purpose excluded: 30 penalty units or level 8 imprisonment (1 year maximum) or both s. 73(1) Drugs, Poisons and Controlled Substances Act 1981 |
| 22 | Possess Drug of Dependence | Trafficking purpose excluded: 30 penalty units or level 8 imprisonment (1 year maximum) or both s. 73(1) Drugs, Poisons and Controlled Substances Act 1981 |
| 23 | Drive in a Manner Dangerous | 240 penalty units or 2 years imprisonment or both s. 64(1) Road Safety Act1986 |
5The maximum prison term for any indictable offence dealt with summarily is two years or five years by way of total cumulative sentence.[1] That same rule applies on appeal to this court. Of note, the maximum period a magistrate can order a young person to be detained in a Youth Justice Centre (YJC) is two years in total. That period is four years in this court on indictment.[2]
[1] Sentencing Act1991, s. 113.
[2] Sentencing Act1991 ss. 32(3) and (4).
6For reasons that I am about to articulate, I am going to sentence you to be detained in a Youth Justice Centre for the matters on the indictment and I am going to allow the appeal, which means setting aside the orders of the Magistrates' Court and sentencing you to a further term of detention in Youth Justice Centre for those matters as well. I will begin with the indictment and the related summary offending.
7At the time of the offences you were not much older than 18, having been born in May 2002 and you had no fixed place of residence. You were unemployed, having returned to Victoria from Queensland approximately six weeks earlier.
Events of September 2020
8On Wednesday, 14 September 2020, at about 1.00 pm, you attended an address in Berry Avenue, Langwarrin and you spoke to the owner of the house (and family friend), Jason Bowyer. You asked Bowyer if you could park your car, a black Holden Commodore, at the premises when you went to the local shopping centre with your girlfriend. You appeared drug affected. At 4.20 pm you attended an address in Pinewood Ave, Dandenong South. You broke a window to the premises causing a laceration to your right hand. That is Charge 4, Criminal Damage.
9You were pursued by the occupants of the house, people with the surname Alexander and Jeganathan, who took photographs of you as you left.
10By 4.55 pm, your mother, Kerry Evans contacted 000 to report to police that you had called her and she believed that you were suicidal and planning on getting into your car and ending your own life. At 5 pm, you returned to the Bowyer address and collected your vehicle.
11You drove your car onto the nature strip on the opposite side of the address and into the path of Lucas and Emily Vogt. Lucas Vogt was carrying their three-month old child on his chest. You demanded $50 from them. Lucas Vogt told you he did not have any money on him. At which time you stated ‘I’ll run you over. Give me $50’. You revved the engine which caused the wheels to spin on the nature strip within a couple of metres of the couple. This constitutes Charge 1, Attempted Armed Robbery.
12At this time, an unidentified green Honda Cruz with two unidentified females pulled up next to you and not unreasonably I might add, asked you to leave the Vogts alone. You told the Vogts not to call the police before you drove away from the address.
13At 5.40 pm, you returned to the Pinewood Avenue, Rose Avenue, Dandenong North area, where you used a hammer to smash the driver’s side window of a vehicle belonging to a gentleman by the name of Psarros. You then stole from inside the vehicle several surgical masks and a packet of sweets and lollies. This is Charge 5, Theft.
14Five minutes later, Mr Abdisamed was in his driveway in Pinewood Avenue, Dandenong North, washing his vehicle when you approached him and asked to use his mobile phone. An unidentified female yelled that you were going to steal the phone before Abdisamed could provide his phone, at which time you left the area in your car. Ten minutes later, you returned to his address in your car, this time with a hammer. This is RSO 15, Possess Dangerous Article.
15You approached Abdisamed and stated ‘Last time you refused to give me your phone, now I’m going to take it from you’. As you said this, you were holding the hammer in front of your face. You approached Abdisamed, who moved to the opposite side of his vehicle to maintain distance from you, at which time males from a neighbouring property approached and chased the you away, before you fled in his vehicle. This constitutes Charge 2, Attempted Robbery.
16At approximately 5.48 pm, you returned to Orchid Avenue, Dandenong North, where you were observed by Acting Sergeant Jim Cole-Surjan. He observed you drop a hammer out the driver’s side of your window before driving away at a fast rate of speed. You turned right into Pinewood Avenue, lost control of the vehicle and collided with a fence, causing significant damage to the fence and rendering your vehicle inoperable. That is RSO 11, Fail to Have Proper Control of a Vehicle.
17At the time of your driving, you had a learner’s permit and you were driving without an experienced driver. RSO 10, Learner Driver Driving Without Experienced Driver.
18You fled and you ran back to Abdisamed’s driveway who was still washing his car. This time, you demanded he hand over his car keys by saying, ‘Give me your fucking car keys’, as you chased him about his vehicle. This is Charge 3, Attempted Robbery.
19You entered his vehicle and rifled through the centre console before you left and returned to your car and attempted to start it without success.
20You were then arrested nearby in Pinewood Avenue and conveyed to the Frankston Hospital. This was because of your threats of self-harm. You were sectioned under the Mental Health Act and involuntarily detained in the Youth Mental Health Ward.
21A sample of your blood was taken and tested for drugs at the Victorian Institute of Forensic Medicine which subsequently returned a reading of 0.21 milligrams per litre for methamphetamine. This is RSO 12, Drive While Exceed Prescribed Concentration of Drug.
22A search of your vehicle located a box cutter and a kitchen knife in the glovebox. These are RSO 14, Possess Controlled Weapon Without Excuse.
23Two days later, on 16 September 2020, you were released from hospital into police custody where you provided largely a no comment record of interview before being charged and remanded. I have not received any victim impact statements by those affected by your crimes. I can readily infer that those who interacted with you on that day found your behaviour extremely erratic and frightening.
24You remained in adult custody for a period of time which was substantial before being bailed. I will deal with your progress or otherwise on bail in a moment. But it is sufficient to note now that you were on bail at the time this second set of offences were committed where the informants were White and Berkley which are now the subject of appeal. The first set of appeal offences thought where the informant is Grey, all happen on the same day as the matters that are before me on indictment and I have just summarised.
The appeal offences [3]
[3]Taken from agreed summaries – Exhibit C: Police Summaries (Informants WHITE, GRAY, BERKLEY) & BERKLEY Amended Summary.
Informant Gray [4]
[4] Charges 3, 5, 7, 9 and 10
25Again, on Monday 14 September 2020 at about 1.22 am, you were observed by Constable Lachlan Grey and Senior Sergeant Nixon stationary at the BP Petrol Service Station in Berwick filling up a black Holden Commodore sedan. Again, you were only a learner driver. You were not displaying any L plates and did not have an accompanying driver present. Police observed the vehicle driving north on Clyde Road and the west into the Princes Freeway. While travelling on the Princes Freeway there were roadwork advisory signs in place of 40 kilometres an hour to which your vehicle was not obeying. Your vehicle exited west onto Princes Highway where the police attempted to intercept you by activating emergency lights and sirens. You failed to pull over and took off at a very fast rate of speed from the far left lane into the middle lane and then across into the far right lane without the use of any indicators to inform other motorists of your movement.
26Police then pulled safely away and deactivated the emergency lights and sirens. They observed your vehicle enter the intersections of Princes Highway and Narre Warren‑Cranbourne Road and Princes Highway and Webb Street, against the red light for westbound traffic at a fast rate of speed without slowing down, putting other motorists entering that intersection at extreme risk. An additional police unit containing other members were stationary at the intersection of Hallam South Road and Princes Highway and they too observed your vehicle travelling at a very fast rate of speed, still west on Princes Highway. Due to the erratic manner of your driving, no attempt was made to intercept you. On 16 September 2020, you were interviewed by Detective Senior Constable Chris Zurick at Frankston police station. You declined to comment to questions put to you.
Informant White [5]
[5] Charge 13.
27With respect to the matters on appeal where the informant is White, these occur while you are on bail. On the evening of 25 January 2022, the victim (your father) and you were with friends drinking at the Village Belle Hotel in Barkly Street, St Kilda.
28At about 2.14 am, on 26 January, you and the victim left the hotel walking together into Mitford Street, St Kilda. The assault on your father apparently commenced minutes later. At about 2.29 am, a witness heard commotion outside her residence and sighted a male on the ground being kicked by you. She yelled out to stop the assault. You yelled back ‘That's my father’. Other witnesses also heard the assault outside their residence and witnessed the same. One stated that she sighted you stomping on the victim’s head two to three times. A passing food delivery driver saw what was occurring and believes the victim was unconscious when you were kicking him.
29Police attended the scene and located the victim on the road being assisted by witnesses. An ambulance conveyed him to the Alfred Hospital where he was admitted for observations. Detectives noted pools of blood on the road. On 10 February, you were arrested for this offending. You made partial admissions. You admitted to being involved in an assault on 26 January 2022, with your father. However, you claimed he was the aggressor and you were simply defending yourself. No victim impact statement was furnished by your father but photos of your father lying on an ambulance stretcher covered in blood and other photos of him in a hospital bed with a swollen and bruised face were tendered on this appeal. These photos depict the sheer level of violence you used on him
Informant Berkely [6]
[6] Charges 16, 19, 20, 21, 22 and 23.
30At 3.30 am on Tuesday, 10 February 2022, you drove a BMW sedan on Stephellen Way, Cranbourne West. You were again driving erratically and performing burnouts through Nyarrin Place and Stephellen Way. The manner of your driving woke multiple residents of neighbouring properties, including witnesses Longworth, Hauer - Kim Hauer that is, Jake Hauer, Robert Roth, Mitchell Bradford. At 3.36 am, unsurprisingly, you lost control of your vehicle and this time you collided with a 2009 Ford Falcon that was parked on the nature strip outside an address in Stephellen Way. Your vehicle sustained extensive damage to the front passenger side. Thankfully, the Falcon was unoccupied at the time of the collision but it sustained damage to the passenger side. Witnesses Roth and Longworth both observed you simply drive away on Stephellen Way, away from the collision towards Central Parkway.
31You drove that vehicle until it came to a stop on the nature strip of Central Parkway. Kim Hower, Tenakorai Perrera and your ultimate victim, Wesley Hower, witnessed you leave the driver's seat of the vehicle, leave the door open and begin walking south of Stephellen Way. Kim Hower and the victim followed you in their vehicle. The victim exited the vehicle and followed you on foot. Outside an address in Raffindale Crescent, the victim reached out to grab you with his right hand. You screamed that you weren’t going back to prison and without warning produced a black combat knife and stabbed him twice to the torso and the middle of the back towards the shoulder blade. He suffered stab wounds and was bleeding heavily. He required surgery. Witnesses called emergency services. The victim and others held you down until police arrived.
32A small quantity of Xanax was found in your possession. Again, you declined to comment when you were interviewed. Photos were tendered of the stab wounds to Mr Hower who made a victim impact statement.
33Your violence had a profound effect on him. He experienced significant anxiety since these events. He understandably reflects on his belief that he came close to death. He feels less stable in his life and somewhat distant and isolated from his family. The events of that night never seem too far from his mind and they cause him to feel isolated, drained, depressed and somewhat dependent on drink to cope. He lost work during his period of hospitalisation because of you. His suffering and trauma were utterly unnecessary and caused by you and alone.
34The profound effect of your crimes on him will be reflected on the sentence I impose.
Case history
35The matters have had a long procedural history which appears below
| Date | Event |
| 10 May 2022 | Turned 18 |
| 14 September 2020 | Offending [Indictment charges 1 – 5, summary offences 10 – 11] Arrested and involuntarily admitted to hospital |
| 16 September 2020 | Accused released from hospital into police custody Record of interview Charged and remanded in custody |
| 10 December 2020 | Committal Case Conference |
| 18 December 2020 | Special Mention |
| 3 February 2021 | Application for bail Application adjourned part-heard |
| 11 February 2021 | Application for bail Application refused |
| 22 February 2021 | Committal Case Conference |
| 31 March 2021 | Committal Case Conference |
| 8 April 2021 | Committal Case Conference |
| 10 May 2021 | Turned 19 |
| 17 May 2021 | Committal Mention |
| 23 September 2021 | Committal Hearing Accused committed for trial |
| 21 October 2021 | Initial Directions Hearing |
| 8 December 2021 | Application for bail Application granted – had spent 13 months in custody |
| 9 December 2021 | Directions Hearing |
| 25 January 2022 | Offending where White is the informant |
| 10 February 2022 | Offending where Berkeley is the informant Remanded New matters listed on 22 August 2022 |
| 16 February 2022 | Current solicitors engaged |
| 17 February 2022 | Negotiations ensue, parties agree for matter to be listed for Sentence Indication for charges currently before the Court. |
| 28 February 2022 | Application for revocation of bail on indictment matters? Application granted |
| 21 April 2022 | Application for Sentence Indication Hearing Application granted and indication given of head sentence / non – parole period |
| 9 May 2022 | Directions Hearing |
| 10 May 2022 | Turned 20 |
| 26 May 2022 | Case Assessment Hearing |
| 31 May 2022 | Matter resolved and administratively listed for Plea Hearing |
| 8 August 2022 | County Court plea commences |
| 22 August 2022 | Frankston Magistrates’ Court Matters now the subject of appeal listed |
| 6 September 2022 | Frankston Magistrates’ Court Plea of guilty to summary matters where informants are Gray, White and Berkely. TES 18months with NPP of 9 months 207 days PSD reckoned as served. Appeal lodged |
| 30 September 2022 | County Court further plea and listing of appeal regarding sentence imposed on 6 September 2022. Matter adjourned for YJC assessment |
| 23 November 2022 | County Court Further plea |
| 25 November 2022 | County Court Sentence |
Matters personal to you
Family and home life
36You were born in May to Kerry Evans and Peter Aquino. You are now 20, although you were barely 18 at the time of the indictment offending. Your youth still plays a principal role in sentencing.
37Your parents separated when you were about three years of age in 2005. You have four step-siblings. You were exposed to what can only be described as significant family violence perpetrated by your father against your mother.[7] Your mother fled with you to a shelter by necessity in 2005. They were formally divorced in 2006 and your mother re-partnered in 2007. Your biological father was given visitation rights. He has since re-partnered a number of times.
[7] Exhibit 9: Monash Health Record dated 21 May 2018, p. 2.
38You experienced family violence at the hands of him at age seven on a holiday at the USA, for instance. Your relationship with him has since deteriorated. You became more depressed. Your father then played a minimal role in your life until you were remanded in September 2020. Your relationship with him remains understandably problematic. It was said, and I accept that he was somewhat of a malevolent and destabilising influence in your life whenever he appeared in it. Your mother moved to Queensland with her current partner when you turned just 18. You moved with them initially, however, returned to Melbourne after a few months due to feeling isolated and missing your friends. You experienced this dislocation accompanied by a period of transience prior to your remand in September 2020. So much is acknowledged by the bare facts recited at the commencement of the summary of prosecution opening.
Relationships
39You are in a relationship with Ms Djuric as of December 2021. You have no children and she remains very supportive of you. You intend to reside together upon your eventual release. Her letter to the court, which has been tendered,[8] is terribly insightful. I consider your prospects better for her support as well as that of your mother.
[8]Exhibit 3: Reference of Zivka Djuric dated 19 April 2022; Exhibit 4: Reference of Zivka Djuric dated 01 August 2022.
Education and employment
40You had a fractured and disjointed education and have had a limited employment history. It is fair to conclude that your progress through these formative years was compromised by the trauma that you suffered when very young, your poor mental health and concomitant drug use and offending. You attended a local primary school in Langwarrin from prep to Grade 6, for instance, but you experienced learning difficulties and were diagnosed with ADHD at that early age. You attended Mount Erin Secondary College. However, you were asked to leave in Year 8. You received no further formal education. You were once an avid sportsman, playing cricket, football and attending specialist basketball training from 11 to 14. You were engaging with an apprenticeship in plumbing 12 months prior to your remand.
41You have a limited work history although you had been doing various labouring jobs, as I understand it, prior to this offending. You do hope to find employment potentially in plumbing once you are eventually released. It is the hope that those in juvenile justice will have greater access to vocational training than perhaps you might otherwise have.
Substance use
42Your first experience using drugs was at the very early age of 13 and by the age of 14, you were smoking one to two grams a day. At that very early age, you had no possible understanding of what the long-term effects would be of such drug use and you started to dabble with MDMA and ecstasy. When barely into your teens you started using ice. At 14, smoking a few points a day up until your first remand in 2020. That is to say that you had an ice habit of four years by the time that you were old enough to vote
43I am informed that while you remained abstinent on bail for a significant period of time, that sobriety unravelled after the assault on your father in January 2022, where you relapsed. You were ultimately using 3.4 grams a day of ice along with a cocktail of GHB and heroin. That explains some of the erratic behaviour in the later incidents that are the subject of the appeal.
44You present, according to Ms Lechner, with stimulant Xanax and GHB use disorder in early remission as of March 2022.[9] You are currently on methadone for the first time. You were placed on that program in April of this year. You describe and that is corroborated by those who observe you being a clearer thinker as a result. Your partner and mother describe that positive shift in your behaviour and mindset since being on the methadone program.
[9] Exhibit 2: Report of Carla Lechner dated 26 March 2022, with Addendum dated 13 July 2022, p. 6.
Mental health
45As I alluded to earlier, you were diagnosed with ADHD and prescribed dexamphetamine when you were at primary school. You ceased dextroamphetamine use around the ages of 12 or 13, coinciding with your illicit drug use. Your ADHD persists now into your early childhood and now late adolescence.[10] You have been diagnosed with complex PTSD (ICD-11) and major depressive disorder (DSM-5). You have a history of suicidal tendencies and attempts.[11] So much appears to have manifested at the time of the more serious offending, providing an explanation of sorts for your frightening and sometimes bizarre behaviour. You presently hold no suicidal ideation. You report greater stability in your mental health since being on the methadone program, coupled with a low dose of Zoloft.
[10] Ibid, p. 7.
[11] Exhibit 9: Monash Health Record dated 21 May 2018, p. 3.
Forensic history
46Unsurprisingly, given that very unhappy upbringing, poor mental health and substance abuse, you have accumulated a prior criminal history in the five years from 2017 until now.
47You have a relevant and recent prior criminal history and one of particular concern for a person of your age. You have prior convictions for attempted armed robbery, using a controlled weapon, affray, two charges of home invasion, two charges for aggravated burglary, a number of assaults and violent related offences, handling stolen goods and a multitude of driving offences. Put simply, it is an unenviable criminal history of violence, threats and dishonesty already.
48It is a concern that you have been given opportunities to engage in programs designed to reduce your risk of reoffending and have failed so far to take advantage of many of them. You have breached court orders, including family violence orders, youth supervision orders in the past.
49Significantly, you have never been sentenced to detention or imprisonment before 2020. This is not to say this is your first time without your liberty though. It seems that in the past you had spent some time in juvenile detention by way of remand and now this is your second stretch in adult custody. I say second because you are in adult custody before you breached your bail and were remanded. You have now spent more than two years in adult custody. You have spent only six months of your adult life in the community.
Bail history
50You were bailed to be supervised by Youth Justice in late 2021 after a lengthy period on remand. The report detailing your supervision of progress on bail, even though you were remanded by the time it was written, speaks of a young man who attended all appointments set for him. It speaks of someone who was honest, open, engaged and had thoughtful discussions with those tasked with his care and supervision and displayed insights into their offending and problem behaviours.
51You were — and I have no reason to doubt it — described as motivated and diligent. You enjoyed a brief but very meaningful period of stability where you were referred to specialist services with whom you engaged with thoroughly. You explored mental health issues. You were working. You had cut yourself off from negative peers. This fell apart, no matter how it was caused, when you brutally assaulted your father. You not only engaged in self-destructive behaviour but behaviour that endangered and harmed others. You were back in custody very quickly but I will return to your progress on bail and the significance it plays in this sentencing exercise in due course.
Assessments for CCO and JYC
52Later, after the plea was commenced and the appeal matters came before me, it became clear to me that releasing you on a CCO in combination with a prison sentence was neither adequate nor appropriate. I had you assessed for YJC.
53Youth Justice did not find you suitable. They noted that you were aggressive to others in the past there and you had breached orders designed to help you in the past and seemed to have few issues negotiating adult prison. Especially given you are now 20 and have been in adult custody for some time.
54I do find though, that because of your age, despite a lack of incidents in adult prison, you are inherently vulnerable or susceptible to the criminogenic environment of adult prison. I note the remarks of Ms Lechner in this regard.[12] I also note your lack of past compliance with youth supervision orders and the like must be seen in light of your personal history and your immaturity. Your behaviour it seems has recognisably improved in tandem with an improvement in your mental state while in custody.
[12]Exhibit 14: Report of Carla Lechner dated 15 August 2022, pp. 9–10.
55But it is the glimpse of promise and potential that you exhibited while on Youth Justice supervised bail that I give particular weight to when I sentence you. Adult prisons are not known as particularly reformative places, especially for the young. I think it is very much in the communities interest if further exposure to that system can be avoided. Even more so when I know that you are capable of building meaningful relationships with Youth Justice workers who are specifically trained to deal with the very young.
Matters of sentencing principle
Offence gravity – indictment matters
56Your counsel accepted the offending is inherently serious. She submitted the offending pertaining to Charge 1 should be viewed as a lower level example of the offence of attempted armed robbery for the following reasons:
(a) Your vehicle was parked parallel to the victims. At no point did you turn the vehicle or attempt to drive towards them.
(b) The interaction between you and the victims was of short duration.
(c) The offence was not persistent or protracted.
(d) Having regard to the context and the nature of the offending overall, the following was also noted:
§The bulk of the offending was of relatively short period; approximately one hour.
§It was opportunistic, unsophisticated in nature and involved little to no planning.
§The offences were committed while you were significantly influenced by drugs and you were in a very poor mental state, experiencing feels of sadness, worthlessness and having suicidal ideation.
57The Crown says, plainly, Charge 1 is the most serious offence here that is governed by a maximum penalty and the conduct that you engaged in. It was submitted the following factors govern my assessment of the objective gravity of this offence:
(a) The weapon used in this case, a vehicle, had the potential for very serious injury or perhaps death in the event that the vehicle was actually used as a weapon;
(b) The fact that the complainants were vulnerable by reason of being unprotected and one carrying an infant and the conduct was totally unexpected;
(c) The fact that you revved the engine of the vehicle, causing the wheels to spin and not merely idling the vehicle with potential for its use;
(d) The fact that you on your own concession were significantly drug-affected which reduced your ability to maintain proper control of the motor vehicle.; and
(e) Notwithstanding the duration of the offence was short and the property demanded was of relatively nominal value, taking into account the above considerations, this was a mid-level example of the offence of attempted armed robbery.
58I agree with the Crown's position in this regard.
59Further and so far as Charge 2 is concerned it was similarly submitted by the Crown that there was a mid-level example of attempted robbery in circumstances where you were carrying a weapon and approached the complainant on his own property and was within close proximity to him. Again, I agree that you returned to the same victim again making demands for his car (Charge 3) is, obviously, equally concerning.
Offence gravity – appeal matters
60I treat the Grey matters of having essentially the same quality and character as much of the other offending on the indictment. That is to say that it was dangerous, erratic behaviour that you were engaged in on 20 September 2020 - imbued as it appears with your intoxication, recklessness and a large measure of self-destructiveness. The other episodes involve sickening violence while you are on bail. This, obviously aggravates the offending. I remarked during the plea that you were very fortunate to be granted summary jurisdiction in the first place for those matters and I am still of that view.
61The charge of intentionally causing injury against Mr Hower is the most serious of the charges before me on the appeal. It was accepted by your counsel that your conduct was dangerous, unjustifiable and it is a matter of luck that the victim did not receive more substantial injuries. Whatever trauma and upset you had endured in the previous weeks simply did not warrant the cowardly production and repeated use of a knife to a person who was simply trying to apprehend you after an appalling and dangerous episode of driving. I need not repeat the victim impact statement to remind you of the effect your crimes had on your victim. That you were intoxicated by choice matters precious little in my view.
62Likewise, your actions towards your father were a terrible episode of public violence. I understand that your father is the focus of much of your anger and trauma, but again, intoxicated or not, your level of violence and your use of violence is entirely unjustifiable. I cannot find that there was a significant level of provocation for your actions. Your father was ultimately in a vulnerable position prone on the ground. This was a significant assault directed at his head where the degree of probability that injury would result was high.
63Finally, your driving is frighteningly bad. You present a real danger to yourself and other road users, especially when under the influence of drugs and distressed. You will be punished for your driving and measures will be taken to prevent you from obtaining a licence for a substantial period in the future.
Plea of guilty, remorse and delay
64It is submitted that you entered a plea of guilty at an early opportunity to the charges before the court. Whilst the committal hearing proceeded, this ultimately resulted in a number of charges being withdrawn. Throughout the proceedings, the issue predominantly seemed to be explored was whether or not the conduct alleged in Charge 1 satisfied the crime of attempted armed robbery. You did not dispute identity or the facts in relation to the charges before the court. Some of the delay was also attributable to a change in solicitors which was beyond your control. The proceedings and delay in resolution have caused you a significant degree of distress and anxiety. I repeat the bulk of your wait has been occasioned or endured while in an adult prison. It is submitted that a plea of guilty is of significant utilitarian benefit in this case and I agree. It is well established following the decision of Worboyes v The Queen[13] that a plea of guilty during the pandemic will have a great utilitarian benefit than in ordinary times and it must amount to a palpable amelioration of sentence. The Crown very sensibly accept that this is so.
[13] [2021] VSCA 169 (‘Worboyes’).
65It is submitted your guilty plea is further indicative of remorse and shows that you have some insight into your offending. Although you have a vague recollection of some of the incidents, you do express remorse and shame over your behaviour and acknowledge the impact that it might have had on the victims.[14] You are an unsophisticated, inarticulate, damaged young man. I find that you have expressed as much remorse as your age, maturity and circumstances permit you to do.[15]
[14] Exhibit 2: Report of Carla Lechner dated 26.03.2022, with Addendum dated 13.07.2022, p. 8.
[15] I have also considered your own letter of apology tendered on the plea as Exhibit 17.
Youth, risk of institutionalisation and prospects of rehabilitation
66You were barely 18 years of age at the time of the indictment offending. You are still only 20. It is submitted that the well-established principles in R v Mills[16] and Azzopardi v The Queen[17] apply in this case. The Crown do not cavil with the application of those principles. I re-emphasise that you did engage well with Youth Justice supervised bail, demonstrating a capacity to engage with services in the community. You still do have the potential to be redeemed and rehabilitated and eventually become a contributing member of the community. But you must seize this opportunity, Mr Aquino.
[16][1998] 4 VR 235.
[17][2011] VSCA 372.
67There is a real interest in your rehabilitation, both in terms of community protection and to ensure that you can become a contributing member of our community rather than a burden on it. You have been in custody for the majority of your adult life so far. I do not want you to become too used to the structure that prison provides or identify too strongly with the men with lengthy criminal histories and lesser prospects for reform that are housed there.
68Ms Lechner opines that your prospects of reform are reasonable in the context of you being strongly motivated to change your ways, to gain employment, to cease drug use and contribute to society in a positive way with stable accommodation, engagement with treatment services and a supportive relationship; all factors that will bolster your self-esteem and self-confidence. Mr Aquino’s prospects of ongoing positive rehabilitation are more favourable.[18]
[18] Exhibit 2: Report of Carla Lechner dated 26.03.2022, with Addendum dated 13.07.2022, p. 8.
69Ms Djuric has expressed ongoing support and availability of stable accommodation for you upon your release. It is also submitted that you are in a better position to engage with treatment services and work towards your goal of sobriety given the positive shift in your behaviour and mindset observed by both your partner and your mother since you were placed on antidepressants and methadone. I agree.
70I accept that your prospects for reform are reasonable. But I stress that these prospects depend it seems amongst other things on the delivery of and engagement with tailored youth services. For completeness’s sake, I will say the following. It is obvious that any sentence I impose must deter you from further offending. Previous sanctions and opportunities have failed to do so. It is hoped that this long period of your removal from the community followed by strict supervision will have the necessary effect. You must surely realise now that this is your last opportunity to engage with Youth Justice. As I said earlier, you must seize this opportunity. If you do not, Juvenile Justice has the capacity to return you to adult custody. I take it that is a place that you do not wish to return.
COVID-19 and conditions in custody
71Your two years in custody has been the longest time that you have ever been removed from our community. It is well-known that the conditions in custody have been particularly onerous during the pandemic. These conditions have remained ongoing through your entire remand period. It is noteworthy that you experienced and endured matters of the following kind: very few visits, unable to attend the gym or exercise, a number of lockdowns, restrictions on courses, restrictions on phone calls, restrictions on counselling support and a general increased level of anxiety and deepened depression that is experienced by many members of the prison population.
72In addition, the following vulnerabilities and hardship in custody were relied on.
(a) You are a young offender with first time in adult custody.
(b) You were released into adult custody having spent two days in involuntary admission, you then went straight into quarantine.
(c) You found out that your mother was potentially gravely ill while in custody and she was unable to visit you because of her health issues and COVID restrictions.
(d) This led to a partial further deterioration of your mental state.
73I trust that this period in adult custody has been so aversive for you that you will do whatever is asked of you upon your release to avoid returning. I sentence you on the basis that a large measure of specific deterrence must already have been achieved.
74It was submitted that the time in involuntary admission or involuntary mental health admission should be regarded as time in custody for the purpose of pre-sentence detention, a position which was later resiled from in favour of taking a more sensible approach and inviting me to treat it in a more general way which I shall do.
Application of Bugmy / Marrah principles
75In terms of the application of the Bugmy and Marrah principles, you rely on the report of Ms Lechner along with other matters in your mother's letter in support of the proposition that your traumatic childhood reduces your moral culpability in the general and specific ways considered in Bugmy v The Queen.[19]
[19] (2013) 249 CLR 571 (‘Bugmy’).
76The impact of disadvantage is complex, multilayered, non-linear and not easily diagnosed or measured.[20] However, it was submitted that your moral culpability should not be assessed in the same light as someone who did not experience the disadvantage you did. You were exposed to family violence as a child, both witnessing your mother be physically abused and yourself experiencing physical and emotional abuse. Ms Lechner notes your mental health and drug addiction issues have arisen in a setting of this exposure to complex development trauma that has undermined your social, emotional and vocational development.[21]
[20] DPP v Hermann [2021] VSCA 160, [45].
[21] Exhibit 2 : Report of Carla Lechner dated 26.03.2022, with Addendum dated 13.07.2022, pp. 6–7.
77It is evident from the report that the effect of this deprivation has not diminished with the passage of time. Ms Lechner states that your exposure to complex development trauma has significantly contributed to low self-esteem, poor emotional regulation, hypervigilance to situations of conflict with associated anxiety.[22]
[22] Ibid, p. 3.
78You were continuing to struggle with feelings of worthlessness and self-deprecation at the time of your offending and your counsel rightly points to the paragraph I have referred to, to form the nexus between your childhood and the offending. It connects your disadvantage to the offending via diminished decision-making and impulse control. To some extent, it fails to acknowledge the supervening complicating and destabilising influence of drugs but I do see that as a consequence in the way that you were shaped in those formative years. It is submitted that general deterrence ought to be moderated in light of that dysfunctional upbringing.
79It is sometimes accepted that the corollary to the specific approach is usually an increased need for community protection. This should not swamp the mitigatory effect though of your upbringing and its contribution to the present offending. The Crown did submit that whilst there may be material of sufficient cogency to link your drug use with your childhood upbringing, it is not accepted that it reached the level of threshold of profound childhood deprivation, such as the degree of deprivation required. Mr O’Toole submitted that if I do find the principles of Bugmy are enlivened then this is a case of the double-edged effect that the Bugmy principles often demonstrate. That is even if there is a potential reduction in moral culpability there can be a heightened need for community protection given the accused’s criminal history and the circumstances of the present offending.
80Whilst disadvantage will always remain relevant, at some point mitigation must yield in the face of serious violent offending and the need for community protection. But as with youth, a disadvantaged upbringing may elevate the importance of rehabilitation and so the need to avoid or minimise incarceration as a sentencing consideration in order to end a cycle of offending that is of great detriment to the community and of the applicant.[23] It is partially for these reasons I have sentenced you to YJC.
Application of Verdins principles
[23] Bergman (a pseudonym) v The Queen [2021] VSCA 148, [90]–[100].
81In terms of R v Verdins,[24] it was submitted limb 1 of Verdins is enlivened, particularly where the informant White is concerned because of the complex PTSD that you suffer from as a result of the violence exposed to at the hands of your father in your formative years. On the night of the offence, it is said you suffered intense flashbacks to your childhood and reported that it was as if all those memories came flooding back and you reacted with a fight response. Mr Aquino’s offending towards his father was linked with his mental health problem.
[24] [2007] VSCA 102 (‘Verdins’).
82In a subsequent report, Ms Lechner clarifies by what she meant by symptoms of in her opinion and that opinion confirms that you do meet the formal diagnosis of complex PTSD. This is relied on in combination with other material previously filed. Namely, the letters of your mother and your partner detailing the history of your father and the Monash Health material in May 2018, which states that even at that point you would meet the provisional diagnosis of complex PTSD given your history of family violence with significant trauma background.
83It is submitted and I accept that your moral culpability ought to be reduced somewhat with respect to the matters of the informant White and that with respect to this matter, general and specific deterrence ought to be moderated. Limb 1 was not apparently relied on for any other matters. It was continued to be submitted that limbs 5 and 6 of Verdins were enlivened for all matters as Ms Lechner opined that your age, psychosocial immaturity and past mental health, adult custody, in particular, was likely to have a deleterious effect on your mental health in a longer term.[25]
[25] Exhibit 2: Report of Carla Lechner dated 26.03.2022, with Addendum dated 13.07.2022. p. 8.
84I tend to agree with the prosecution in that I do not accept necessarily that principle 6 of Verdins is enlivened. The reference relied on by you in Ms Lechner’s report is not necessarily sufficient to establish there was a serious risk of imprisonment having a significant adverse effect on your mental health. In this regard, your mental health appears to have improved while you were in custody rather than deteriorated. I have given a modest degree of weight to the Verdins principles in the way I have outlined. It dovetails with the way I have treated the Bugmy matters. Now to matters of general principle.
General governing principles
85Plainly, general deterrence, specific deterrence, denunciation, punishment and protection of the community are all very relevant factors in this sentencing exercise. These matters, the Crown said, compelled a conclusion that a head sentence and non-parole period was warranted. I understand why they said that, though, Mr O’Toole agreed that by any measure a sentenced to be served in YJC of up to four years was a significant period of detention.
86I have weighed the above matters up against the need to foster conditions for your reform. Ultimately, when the totality of your offending was viewed, your counsel did not vigorously push for your release on a CCO.[26] Rather she sensibly addressed the criteria under s. 32 of the Sentencing Act 1991, which might justify me imposing a sentence that would see you serve the balance of any sentence and ultimate release through the specific purpose-built system designed to assist young offenders over sentencing you according to a more punitive approach, that is leading to adult prison. For the foregoing reasons, I found that you have reasonable prospects of reform and that you are likely to be subject to undesirable influences in an adult prison.
[26]As was the original submission on sentence – in combination with a term of imprisonment already having been served. I note you were found suitable for same before me.
Totality
87I am mindful of the significance in this case of the application of that principle which requires me when sentencing you for multiple offences to ensure that the aggregate term I impose is a just and appropriate measure of the total criminality involved. There must be an appropriate relatively between the totality of all criminality and the totality of the effective length of the sentence. This is true when I consider the interaction between charges on the indictment and the appeal matter. I have determined an appropriate length for each charge, taking the applicable sentencing considerations into account and designated the highest term of the base sentence, then I determined the extent to which there should be any cumulation regarding each count and finally stood back and considered in light of totality what an appropriate sentence ought to be.
88The totality of your offending, Mr Aquino, encompasses acts of menace and violence followed by, much later in the appeal matters, real violence again against different victims in frightening circumstances. As it involves different harm to different victims that are each worthy of measures of cumulation to reflect your overall criminality, especially given the later matters on appeal, occur while you are on bail.
Penalty
89I will sentence you as follows.
Indictment No Charge Maximum Penalty Sentence Other Orders / Cumulation 1 Attempted armed robbery 20 years’ imprisonment
[Crimes Act 1958 s. 75A and s. 321P]24m YJC 24m base 2. Attempted robbery 10 years’ imprisonment
[Crimes Act 1958 s. 75 and s. 321P]16m YJC 6m on 1 3 Attempted robbery 10 years’ imprisonment
[Crimes Act 1958 s. 75 and s. 321P]14m YJC 4m on 1 & 2 4 Criminal damage 10 years’ imprisonment
[Crimes Act 1958 s. 197(1)]2m YJC 5 Theft 10 years’ imprisonment
[Crimes Act 1958 s. 74(1)]1m YJC Related Summary Offences 10 Learner driver driving without experienced
driver20 p.u. [Road Safety (Drivers) Regulations 2019 r. 47(2)] Convicted and fined $1,500 aggregate C&F $1,500 11 Fail to have proper control
of vehicle5 p.u.
[Road Safety Road Rules 2017 r. 297(1)]See charge 10 12 Drive whilst exceeding
prescribed concentration
of drug12 p.u.
[Road Safety Act 1986 s. 49(3AAA)(a)]See charge 10 Driver’s Licence cancelled and disqualified for years commencing 6 Sept 2022 14 Possess controlled weapon
without excuse1-year imprisonment or 120 p.u.
[Control of Weapons Act 1990 s. 6(1)]1m YJC 15 Possess dangerous article
without excuse6 months’ imprisonment or 60 p.u.
[Control of Weapons Act 1990 s. 7(1)]See charge 10 SENTENCE
2yrs 10m YJC
Convicted and fined $1,500
Appeal No Charge Maximum Penalty Sentence Other orders / Cumulation Informant GRAY 3 Drive at Speed Dangerous 240 penalty units or 2 years imprisonment or both [s. 64(1) Road Safety Act1986] 3m YJC
Concurrent (aggregate with 5)Concurrent with other sentences
Driver’s Licence cancelled and disqualified for 2 years
(from 6 Sept 2022)5 Fail to Stop Vehicle on Police Direction 60 penalty units or imprisonment for 6 months or both
[s. 64A(1) Road Safety Act 1986]See charge 3 (part of aggregate). Driver’s Licence cancelled and disqualified for 2 years
(from 6 Sept 2022)7 Enter Intersection – Red Traffic Light 10 penalty units
[r. 59(1) Road Safety Road Rules 2017]Convicted and fined $1,000 (aggregate) 9 Learner Driver Vehicle No Supervising Driver 20 penalty units
[r. 47(2) Road Safety (Drivers) Regulations 2009]See charge 7. 10 Fail Give Right Signal for Long Enough 3 penalty units
[r. 48(1) Road Safety Road Rules 2017]See charge 7. Informant WHITE 13 Recklessly Cause Injury Level 6 imprisonment (5 years maximum)
[s. 18 Crimes Act 1958]7m YJC 3m cumulative Informant BERKLEY 16 Intentionally Cause Injury Level 5 imprisonment (10 years maximum)
[s. 18 Crimes Act 1958]15m YJC 15m base 19 Fail to Stop vehicle After an Accident If no person is killed or suffers injury : 5 penalty units or 14 days imprisonment
[s. 61(1)(a) Road Safety Act 1986]See charge 7 Compensation ($3,707.50)
Driver’s Licence cancelled and disqualified for 2 years
(from 6 Sept 2022)20 Learner Driver Vehicle No Supervising Driver 20 penalty units
[r. 47(2) Road Safety (Drivers) Regulations 2009]See charge 7. 21 Possess Methylamphetamine Trafficking purpose excluded: 30 penalty units or level 8 imprisonment (1 year maximum) or both
[s. 73(1) Drugs, Poisons and Controlled Substances Act 1981]Convicted and discharged Forfeiture order made 22 Possess Drug of Dependence Trafficking purpose excluded: 30 penalty units or level 8 imprisonment (1 year maximum) or both
[s. 73(1) Drugs, Poisons and Controlled Substances Act 1981]Convicted and discharged Forfeiture order made 23 Drive in a Manner Dangerous 240 penalty units or 2 years imprisonment or both
[s. 64(1) Road Safety Act 1986]See charge 3. Driver’s Licence cancelled and disqualified for 2 years
(from 6 Sept 2022)SENTENCE:
18m YJC
Convicted and fined $1,00090I order that 8m months of YJC sentence imposed on appeal matters be served cumulatively upon the 2 year 10 months sentence imposed on indictment
91It is my intention to sentence Mr Aquino to be detained in the Youth Justice Centre for three years and six months. Obviously, the Act does not permit me to set a non-parole period for such a sentence. Mr Aquino’s release, should it occur, will be a matter for the Youth Parole Board.
92I declare that 735 days be reckoned as served in relation to the total sentence that I have just imposed. Mr Aquino, I am required by law to tell you what sentence you would have received had you not pleaded guilty to all offences. Pursuant to s. 6AAA of the Sentencing Act, I can indicate I would have sentenced you to five years and two months imprisonment, that is adult imprisonment, and set a non‑parole period of three years.
93Finally, I make the forfeiture and disposal orders in the terms sought. On Charge 12 on the related summary offences, your driver’s licence is cancelled and you are disqualified from obtaining one for a period of two years commencing on 6 September 2022. That same order is made with respect to Charge 3 and 5 on the appeal where the informant is Grey and Charge 19 and 23 where the informant is Berkley. There was a compensation order sought on Charge 19 which is also granted.
94That is a lot of information and a lot of detail. Can counsel just clarify that I have expressed the orders clearly enough?
95MS KUSHNIR: I would think so, Your Honour. I'll have to review the orders just to confirm, but that seems fairly clear to me.
96HIS HONOUR: All right. Mr Prosecutor.
97MR DRENT: Yes. I would agree with my learned friend that certainly from my understanding each of the relevant charges have been addressed.
98HIS HONOUR: All right.
99MR DRENT: On my hearing of the matter.
100HIS HONOUR: Thank you. To be clear, it is my intention that Mr Aquino serve no longer than three years, six months YJC. As I said, I don't set and cannot set a parole period. But one would hope that he would be considered in the very near future for ultimate release on licence.
101MS KUSHNIR: As Your Honour pleases.
102HIS HONOUR: All right. Ms Kushnir, thank you for your tireless endeavour in this matter. I've received a lot of assistance and I'm very grateful for it and your client ought to be too.
103MS KUSHNIR: Thank you, Your Honour.
104HIS HONOUR: I'll leave the link open so that you can clarify with your client what the sentence was. All right. Adjourn the court. Thank you.
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