Director of Public Prosecutions v Baroch
[2020] VCC 1826
•16 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-19-02312
CR-20-00326
CR-19-02486
CR-19-02305
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BAROCH BAROCH |
| and |
| MAWUT ATER |
---
JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2020, 14 July 2020, 12 August 2020, 9 September 2020, 7 October 2020, 14 October 2020. | |
DATE OF SENTENCE: | 16 November 2020 | |
CASE MAY BE CITED AS: | DPP v Baroch and Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1826 | |
REASONS FOR SENTENCE
---
---
APPEARANCES: | Counsel | Solicitors |
| For the Director or Public Prosecutions | Mr D. Porceddu | Solicitor for the Office of Public Prosecutions |
| For the Accused Baroch | Ms H. Anderson (Plea) Mr R. Lawrence (Plea & Sentence) | David Barrese & Associates |
| For the Accused Ater | Mr M. McLellan (Plea) Ms L. Papadinas (Plea & Sentence) | Emma Turnbull Lawyers |
HER HONOUR:
Introduction
1 Baroch Baroch, you have pleaded guilty to an indictment containing three charges:
· one charge of armed robbery, Charge 1, which carries a maximum penalty of 25 years’ imprisonment,
· one charge of causing injury intentionally, Charge 6, which carries a maximum penalty of 10 years’ imprisonment, and
· one charge of theft, Charge 7, which carries a maximum penalty of 10 years’ imprisonment or 1200 penalty units.
2 Four related summary matters of Charges 3 and 6, commit indictable offences whilst on bail (armed robbery, and theft), one charge of deal property suspected of being proceeds of crime (two USB drives), and one charge of possess prohibited weapon (flick knife) were uplifted into the hearing of the plea in mitigation of penalty, and you pleaded guilty to all charges. The commit offences whilst on bail charges carry a maximum penalty of three months’ imprisonment, deal property suspected of being proceeds of crime carries a maximum penalty of two years’ imprisonment, and possess prohibited weapon carries a maximum penalty of two years’ imprisonment.
3 Mawut Ater, you have pleaded guilty to an indictment containing nine charges:
· two charges of robbery, Charges 2 and 5, each of which carry a maximum penalty of 15 years’ imprisonment,
· three charges of theft, Charges 3, 4 and 7, each of which carries a maximum penalty of 10 years’ imprisonment or 1200 penalty units,
· one charge of causing injury intentionally, Charge 6, which carries a maximum penalty of 10 years’ imprisonment,
· one charge of obtaining property by deception, Charge 8, which carries a maximum penalty of 10 years’ imprisonment,
· one charge of handling stolen goods, Charge 9, which carries a maximum penalty of 15 years’ imprisonment, and
· one charge of carjacking, Charge 10, which carries a maximum penalty of 15 years’ imprisonment.
4 The circumstances in which you came to commit those offences are set out in the Summary of Prosecution Opening for Plea dated 15 May 2020, which was read into evidence at your hearing (Exhibit A). The prosecution also relied on photographs of the injuries sustained by your victim, Charlie Ciancio (Exhibit B), Mr Ciancio’s victim impact statement (Exhibit C), prosecution submissions in response (Exhibit D). In addition, Forensicare reports were obtained for each of you (Exhibit E and F). The Prosecution also relied upon Submissions on contested plea dated 6 September 2020 (Exhibit G), a response to further submissions in the matter of Ater (Exhibit H), and a response to further submissions in the matter of Ater (Exhibit J).
5 In the course of the pleas in mitigation of penalty, which extended over a number of days’ hearing, your counsel filed the following materials.
6 In relation to your case, Mr Baroch:
· an outline of submissions dated 15 May 2020 (Exhibit 1),
· a psychological assessment undertaken by Dr Aaron Cunningham dated 5 May 2020 (Exhibit 2),
· a report by Alfred Health (Exhibit 3),
· a bundle of drug screens (Exhibit 4),
· a bundle of certificates of completion of courses with Uniting (Exhibit 5),
· a bundle of character references (Exhibit 6),
· a supplementary report by Dr Cunningham (Exhibit 13),
· further plea submissions dated 4 September 2020 (Exhibit 14),
· further plea submissions dated 5 October 2020 (Exhibit 16), and
· Further and supplementary plea submissions dated 12 October 2020 (Exhibit 18).
· Since the conclusion of the last instalment of the plea in mitigation of penalty, I have received additional further and supplementary plea submissions dated 5 November 2020, which I will now receive and mark as Exhibit 19.
7 In relation to your case, Ms Ater:
· an outline of submissions (Exhibit 7),
· a report by Ian Mackinnon dated 16 February 2020 (Exhibit 8),
· a letter from you (Exhibit 9),
· a bundle of character references (Exhibit 10),
· a report from Alfred Health (Exhibit 11),
· a supplementary psychological report prepared by Ian Mackinnon (Exhibit 12),
· further plea submissions dated 6 September 2020 (Exhibit 15),
· further plea submissions dated 12 October 2020 (Exhibit 17).
8 I have had careful regard to each of those exhibited documents, as well as the evidence adduced, and the matters addressed in the oral pleas.
Circumstances of the offending
Charges 1 and 2: armed robbery and robbery
9 On 15 July 2019 at approximately 9pm, the two of you attended the Kealba Hotel with witness Adeng Agoth. CCTV footage shows you inside the gaming area of the hotel, as well as the outdoor smoking area and the outdoor car park.
10 At 9.36pm, Ms Agoth contacted a friend of hers, victim David Gaye, and asked him to meet her at the Kealba Hotel. Mr Gaye agreed to meet with Ms Agoth, and drove his vehicle to the Kealba Hotel.
11 At 9.42pm, the two of you, and Ms Agoth, exited the Kealba Hotel, and you can be seen on CCTV waiting outside in the car park for Mr Gaye to arrive. Ms Agoth overheard you both at this time planning to take Mr Gaye’s money when he arrived. At about 9.50pm, Mr Gaye arrived in his vehicle, and the two of you and Ms Agoth walked towards Mr Gaye’s vehicle.
12 You both entered Mr Gaye’s vehicle together with him and Ms Agoth.
13 Ms Ater, you requested Mr Gaye drive you, and Mr Baroch, to an address in Sunshine North. Mr Gaye exited the Kealba Hotel and drove towards this address, eventually pulling over near Somerset Reserve. Once he parked his vehicle, you, Ms Ater, and Ms Agoth exited the vehicle.
14 You, Mr Baroch, sat back in the front passenger seat of the vehicle and closed the passenger door. You then demanded Mr Gaye hand over his wallet, and you punched him to his chest/area with your right fist. Mr Gaye asked you why you were doing this, and you then pulled out a flick knife of approximately 20–25cm in length, held it at Mr Gaye’s throat, and said “Give me your wallet or I’ll fucking kill you.” This is the offending referable to your Charge 1 on the indictment, Mr Baroch, of armed robbery, and it also constitutes the behaviour of Summary Charge 6, of commit indictable offence whilst on bail. This is the offending referable to your Charge 2, of robbery, Ms Ater; however, I understand and accept that your involvement is limited to your participation in the plan to rob Mr Gaye, and not to armed rob him.
15 Mr Gaye retrieved his wallet from his pants pocket, and handed it to you, Mr Baroch. You, Mr Baroch, removed $800 in cash and Mr Gaye’s Victorian driver’s licence from his wallet, and told him “If you go to police, I’m coming to get you at this address.”
16 You, Mr Baroch, then exited Mr Gaye’s vehicle and walked away with Ms Ater. Ms Agoth re‑entered Mr Gaye’s vehicle, and Mr Gaye drove away, passing the two of you. Mr Gaye advised Ms Agoth that he was going to drive to a police station to report the incident. Ms Agoth refused to go to the police station and asked to be let out of the vehicle, and Mr Gaye then pulled his vehicle over and Ms Agoth exited the vehicle. Mr Gaye reported the matter to police.
Charge 3: theft
17 On 19 July 2019, between the hours of 1–8am, a silver Volkswagen Golf was stolen. On 23 July 2019 at approximately 4.45pm, you, Ms Ater, drove to the St Albans Caltex petrol station in the stolen Golf. You, Ms Ater, filled the vehicle with petrol valued at $83.10 before driving away, without making any attempt to pay. This is the offending referable to your Charge 3, Ms Ater, of theft.
Charge 4: theft
18 On 23 July 2019, at approximately 5.18pm, you Ms Ater, attended the Watergardens Shopping Centre Dan Murphy’s Liquor Store. You selected four bottles of alcohol and placed them in a black trolley-bag, and exited the store without making any attempt to pay. You, Ms Ater, then entered the same stolen Golf and drove out of the Dan Murphy’s car park. The incident was captured on CCTV. The total value of the alcohol was $466.95. This is the offending referable to your Charge 4, Ms Ater, of theft.
Charges 5 and 9: robbery and handling stolen goods
19 Also on 23 July 2019, at approximately 6.29pm, you, Ms Ater, Ms Agoth and a woman named Tamara Oliver attended the Kealba Hotel in the stolen Golf. This is the behaviour referable to your Charge 9, Ms Ater, of handling stolen goods (the Volkswagen).
20 At approximately 7.01pm, you, Ms Ater, and Ms Agoth entered the stolen Golf, which was parked at the Kealba Hotel car park. You, Ms Ater, and Ms Agoth approached a white Honda CRV belonging to victim Julie Ho, which was parked near the Golf. You, Ms Ater, and Ms Agoth spoke to Ms Ho, who was seated in the driver’s seat of her vehicle, and requested a cigarette from her. Whilst Ms Ho searched her handbag for a cigarette, you, Ms Ater, reached through the driver’s window and started to pull Ms Ho’s handbag, which had been worn around her shoulder. The pulling force resulted in Ms Ho falling out from her vehicle. A struggle continued between you, Ms Ater, and Ms Ho, as you attempted to rip her handbag from her.
21 You were unable to remove Ms Ho’s handbag, and instead you snatched an Apple iPhone 10 that Ms Ho was holding in her hand. The iPhone was held in a phone case which also contained Ms Ho’s Victorian driver’s licence, a Myki card, two Westpac Bank cards, and two Commonwealth Bank cards. This is the offending referable to your Charge 5, Ms Ater, of robbery.
22 You, Ms Ater, and Ms Agoth returned to the stolen Golf and exited the Kealba Hotel. The incident was captured on CCTV.
Charges 6, 7 and 8: intentionally causing injury, theft, and obtaining property by deception
23 On 25 July 2019 at approximately 12.38pm, the two of you attended the Truganina United service station in the stolen Golf to which I have already referred. You, Mr Baroch, exited the front driver’s seat, and you, Ms Ater, exited from the front passenger’s side. The two of you entered the store and purchased cigarettes. You then exited the store and returned to the Golf. You, Mr Baroch, entered the driver’s side, and you, Ms Ater, entered the front passenger’s side, and you left the service station in the Golf. In the process of exiting, you collided with another vehicle, driven by a witness by the name of Rahman. This car stopped. A car being driven by a witness by the name of Stock, behind witness Rahman, also stopped. Your victim, Mr Ciancio, witnessed the collision but continued driving.
24 Stock witnessed you, Mr Baroch, approach Ms Rahman, who was still seated in her car, and you then started yelling at her before returning to your car and driving off. The witness Stock decided to follow the Golf as you sped away. The Golf caught up and overtook your victim Ciancio, and at that point Mr Ciancio also decided to follow the Golf. The witnesses noted that the car was being driven erratically, and at times on the wrong side of the road. As the Golf approached a sharp right-hand bend, it lost control and continued over a footpath and down a small embankment before crashing into a cluster of rocks.
25 Stock and Ciancio stopped their vehicles, and Mr Ciancio went to the Golf to render assistance, believing that you both may have been injured. In the meantime, you both exited the Golf and ran towards Stock, who decided to immediately drive off. The two of you approached Mr Ciancio and immediately started punching him whereby he fell to the ground, and you continued assaulting Mr Ciancio by kicking and stomping on his head. He lost consciousness. A neighbour in the vicinity named Kourtney Selway was awoken and looked out of her window and could see the two of you assaulting Mr Ciancio.
26 This is your Charge 6, Mr Baroch and Ms Ater, of intentionally causing injury to Mr Ciancio.
27 Ms Selway ran upstairs and told her mother what she had witnessed, and the two of them ran downstairs and onto the street where Mr Ciancio was lying.
28 As the two witnesses approached Mr Ciancio, they observed a large amount of blood on his face, and on the road. They then witnessed his car being driven off at a fast rate of speed. Mr Baroch and Ms Ater, this is your Charge 7, of theft of car. Mr Baroch, this is also your Summary Charge 3, of committing indictable offence whilst on bail.
29 Mr Ciancio started to regain consciousness, and was crying out for help. The mother called the police and waited with the victim until police and ambulance arrived. Mr Ciancio was taken to the Footscray Hospital where he was treated for facial injuries, and he was found to have a fractured eye socket.
30 At about 1.12am, the two of you attended at the Deer Park United service station in Mr Ciancio’s stolen vehicle. Whilst there, you, Ms Ater, purchased cigarettes using Mr Ciancio’s credit card, which was left in his car, to the value of $29.30. This is your Charge 8, Ms Ater, of obtaining property by deception.
Charge 10: carjacking
31 On 29 July 2019, at approximately 7.01am, you, Ms Ater, attended the Deer Park Hotel, with a female by the name of Aman Deng. The two of you, and an unidentified male, observed the victim, Sreekanth Veerapaneni, playing one of the slot machines inside the venue. Either you, Ms Ater, or Ms Deng, asked Mr Veerapaneni if he could offer them a lift home, and the gentleman agreed. The two of you and the male entered the victim’s Holden Captiva, which was parked in the car park of the Deer Park Hotel.
32 The male provided Mr Veerapaneni with directions of where to go, and the victim drove his vehicle towards Sunshine. During the journey, you, Ms Ater, asked the victim if he wanted a “head job”, and placed your hand on his leg. This made the victim feel uncomfortable, so he stopped his vehicle in the vicinity of Wilkinson Road, Sunshine, and asked the three of you to get out of his vehicle.
33 Mr Veerapaneni exited his vehicle and again asked the three of you to get out. The vehicle was still running, and the keys were in the ignition, with the driver’s window wound down.
34 The male exited the vehicle and approached Mr Veerapaneni from behind. Mr Veerapaneni attempted to re‑enter the vehicle; however, either you, Ms Ater, or Ms Deng had locked his vehicle, preventing him from entering. Mr Veerapaneni reached through the open driver’s window, and removed the keys from the ignition and placed them into his pocket.
35 The male took hold of the victim with two arms around his body and pulled him away from his own vehicle. Both you, Ms Ater, and Ms Deng then exited the vehicle, and the victim was pushed and scratched, eventually falling to the ground due to the assault. One of you, Ms Ater or Ms Deng, then took possession of the car keys.
36 You, Ms Ater, and Ms Deng started to drive away in the vehicle, leaving the male co‑accused and the victim. Mr Veerapaneni ran towards his vehicle and reached into the driver’s window, which was still wound down, grabbing the steering wheel, and attempting to pull his keys out from the ignition. Mr Veerapaneni continued to hold onto the steering wheel for a short time, before losing his balance and falling onto the ground. You, Ms Ater, and Ms Deng drove away in the vehicle. This is the offending referable to your Charge 10, Ms Ater, of carjacking.
37 As a result of the assault, Mr Veerapaneni received scratches to his fingers and neck. Mr Veerapaneni reported the matter to police.
38 On 26 July 2019, police attended the Derrimut Hotel in Sunshine and arrested you, Mr Baroch. You were searched, and police located a flick knife on you. This is the offending referable to your Summary Charge 10, of possessing a prohibited weapon. Whilst you were in custody, police conducted a further search of your belongings and located two USB storage devices. Investigation of the documents contained on the two USB storage devices identified them as being stolen from a victim of an aggravated burglary. Mr Baroch, this is your Summary Charge 9, of deal in property suspected of being the proceeds of a crime. On 29 July 2019, police attended at an address in St Albans and arrested you, Ms Ater.
39 Mr Baroch, you were interviewed by police, but did not make any admissions in relation to the incident. Ms Ater, you were interviewed by police and stated that you were in a relationship with Mr Baroch. You did not make any admissions in relation to the armed robbery.
40 On 30 July 2019, police undertook further investigation of the seized stolen Holden Captiva from the carjacking offence, and seized items belonging to you, Mr Baroch. On 3 August 2019, the victim of your Charges 1 (Mr Baroch, armed robbery), and charge 2 (Ms Ater, robbery) was shown a photo board by police and identified you, Mr Baroch.
Plea of guilty and timing
41 You were both charged and the matter proceeded through a filing hearing in July 2019. Mr Baroch, your matters resolved as a plea of guilty at committal case conference, and your matter, Ms Ater, largely resolved at committal case conference, with the balance resolving between committal case conference and prior to committal hearing, accompanied by the withdrawal by the prosecution of a major charge.
42 I accept and take into account in both of your cases in mitigation of penalty that those pleas of guilty were entered at the earliest reasonable stage, without the inconvenience and stress of the cross-examination of any witnesses. I also consider that each of you are remorseful for your actions.
Victim impact statement
43 Charlie Ciancio has provided me with a victim impact statement which I have read carefully. He tells me that as a result of your crimes, everyday life is a struggle and he no longer feels safe in the work that he does. He told me that he has become irritable and impatient, and he is not able to deal with confrontation or challenging situations. As a result of your crimes, he experiences reduced sleep and is averaging four hours per day. He received a fractured eye socket from your offending, bruising, and still experiences ongoing headaches. He has experienced significant financial setback as a result of your crimes, including the loss of his car keys, the loss of his mobile phone, damage to his vehicle, and the loss of income as a result of his not working for two weeks.
44 He tells me that the incident has made him feel unsafe, and he is constantly looking over his back. He now locks his car while driving because he is worried about the same thing happening again, whereas in the past he would assist members of the public if they needed help, but now he is reluctant to do so. Due to your crimes, he is considering selling his business, in which he has worked for over 20 years. It has been an extremely traumatic, painful and distressing event for him.
Personal circumstances
45 Mr Baroch, you are now 26 years of age, and were 24 at the time of offending. You were born in Southern Sudan, and were raised by your mother and father, together with two older brothers, one older sister and two younger sisters.
46 As is set out in the first report of Dr Aaron Cunningham, you were raised in the context of war and were exposed to people being killed and kidnapped in your presence. You witnessed your neighbour being killed, and their body placed in the back of a truck.
47 When you were aged around eight, secret army police came in the middle of the night and took your father, who had been accused of being a rebel. You told Dr Cunningham that your father was not a rebel and was not politically affiliated. Your mother attempted to find your father, without success. You later understood that people in the neighbourhood had informed authorities out of jealousy or spite. You never got to say goodbye to your father.
48 Your family fled to Egypt, and you lived in Egypt between 2002 and 2005 in a refugee camp, where people were dying from disease and suicide. Your family suffered severe racism, and you recall being beaten and called infidels.
49 You relocated to Australia in 2005 as refugees, and lived in Sunshine with one of your cousins. You told Dr Cunningham that you struggle in Australia, not being able to speak English and not adapting to cultural differences. Understandably, you felt angry and aggrieved that you did not have a father and had no answers as to what had happened as to his disappearance.
50 From the age of 13, you were back and forth from the family home, and began abusing drugs and alcohol.
51 You attended Catholic Regional College between Years 7 and 10, and Laverton High School for Year 11, before leaving. You worked at KFC during Years 8 and 9, and worked at the Woolworths meat warehouse for five months. You have a certificate in warehousing, and upon your eventual release, you intend to live with your mother and would like to work in construction. Your mother is indeed loyal and supportive of you, and there are supports available to you in the community upon your release through the Centre for Multicultural Youth.
52 In addition to drinking alcohol during your teenage years, which was a comfort to you, you also used cannabis and progressed to the use of amphetamine and methamphetamine from the age of 17. You experienced periods of significant abuse of methylamphetamine, and you told Dr Cunningham that you began ripping people off to maintain your drug abuse. You accept that you were heavily drug affected during the period of your current offending, and did not have a clear mind. You feel bad for your offending actions.
53 Whilst in custody you have resisted the use of illicit drugs, and have completed a number of rehabilitative programs and I have seen those certificates.
54 You admitted a prior criminal history of approximately five appearances before the Court, commencing in December 2012 at the Melbourne Children’s Court where you were found guilty of affray and placed on a Good Behaviour Bond without conviction. In December 2013, you were found guilty of charges of robbery and failing to answer bail, and were placed on a Community Correction Order, which was later breached and another Community Correction Order imposed. In February 2015, you were found guilty of charges of recklessly causing injury, behave in a riotous manner in a public place, use controlled weapons without excuse, and contravention of the Community Corrections Order to which I have referred, and were placed on another Community Correction Order. This Community Correction Order was also breached a number of times, leading to your first period in custody, in November 2016. In your last appearance before the Court, in November 2016, you pleaded guilty to charges including failing to answer bail, aggravated assault of a female, resist police officer, robbery, recklessly causing injury, commit indictable offence whilst on bail, contravene a conduct condition of bail, and drive in a manner dangerous, and you were sentenced to a further period of jail. I was told that in 2017, you were attacked in jail and suffered burns to 10 per cent of your body, leading to your treatment at the Alfred Hospital. You were acquitted of the charges that had caused you to be remanded at the time. You continue to grapple with your perception that you were injured so badly whilst on detention for a crime that you did not commit.
55 As I understand it and as is contained in your counsel’s predecessor's submissions you were in custody from 1 September 2017 until 8 March 2018 in relation to the matter for which you were on bail when the current offending occurred and you were acquitted after a trial in relation to those matters and ultimately I will deduct 189 days from the sentence that I pass and will take that into consideration as Renzella time.
56 Ms Ater, you are now 24 years of age and were 23 at the time of offending. You were born in Sudan and raised in Kakuma, Kenya by your biological mother. I am told that your biological father died two weeks before you were born in a refugee camp. You have a blended family network of six children and, as is traditional practice in Sudan, one of your paternal uncles became involved with your mother after your father passed away. As is set out in the first report of Ian McKinnon, I understand that you do not retain many clear memories of your early life in Sudan. However, you remember the war. Your mum told you that you fled the rebels who ambushed you. You have one memory of seeing your grandmother, who was telling you to keep quiet, while people were running outside and getting shot.
57 When you were seven years old, your mother took you and you both fled to Kenya. Whilst in Kenya, your mum left to go and find work and you were taken in by a Kenyan family and were, unfortunately, neglected. The family refused to give you back to your mother and she had to go to court seven times to get you back.
58 Eventually, in about 2005, you and two of your siblings and your mother and step-father came to Australia, and you have moved house in several Melbourne suburbs in the years since. In about 2016, you spent extended periods in Canberra and Sydney. You have Australian residency but not citizenship. All five of your siblings, as well as your mother, currently reside in Melbourne.
59 You have two children aged about four and two, both of whom are in the care of your mother, who also remains supportive of you, and with whom you intend to live upon your eventual release from custody. You are currently single.
60 In Australia, you first attended an English language school and then St Kilda Primary School, Heatherhill Primary School, Elwood Secondary College, Calvin Park Secondary College in Wyndham, Hoppers Crossing Secondary College, and then your completed Year 12 at The Grange Prep to Year 12 College in Hoppers Crossing. You considered that the multiple changes to your home address and school enrolment disrupted your educational achievement, as well as severely affecting your peer group network.
61 After you finished secondary school, you went on to complete Certificate 3 in Childcare, and you worked in that sector for three years.
62 I understand that you are passionate about music and are an experienced vocalist. You have a Diploma in Acting from the Tania Pell Drama School.
63 You have a history of treatment for depression and substance abuse dating back to 2016, which commenced when you smoked cannabis at the age of around 17. When you were 19 years of age, a friend encouraged you to smoke Ice with her, and you considered that you became instantly addicted. You told Mr McKinnon that you hate what you’ve become, you’ve let your mum down, and you are ashamed of your life. You feel as if you let drugs poison your soul. Your Ice abuse was at its worst during July 2019, which coincides with the period of your offending, when you typically smoked around 1.7 grams of Ice every one or two days. During this period, you consider that you stayed awake for about a month – hallucinating and paranoid.
64 You have, unfortunately, been a victim of domestic violence perpetrated by your partner, which has been noted by your treating general practitioner as commencing in 2016, and you have received treatment for several head, ear and neck injuries sustained in assaults by your then partner in 2015 and 2016.
65 You are a carrier of Hepatitis B, and you have a long history of treatment for infections and other conditions.
66 You have a criminal history involving approximately seven previous court appearances. I note an early conviction for a minor theft in the Australian Capital Territory Magistrates’ Court. In December 2016, you were sentenced to immediate imprisonment for charges involving proceeds of crime, and breaches of your bail undertaking. This order was later set aside by the County Court, and you were convicted and released on a bond. In January 2018, you appeared in the Magistrates’ Court for offences including theft of a motor vehicle, driving offences, possess methylamphetamine, proceeds of crime offences, and a bail breach, and you were sentenced to a Community Correction Order to run for a period of 18 months, including conditions of treatment and rehabilitation for drug abuse and dependency. It appears that this order acknowledges a further period on remand.
67 In February 2018, you were convicted of charges including shopsteal, contravene Family Violence Intervention Order, two charges of unlawful assault, robbery and intentionally cause injury, and were sentenced to a further Community Correction Order. In September 2018, this order was breached, and you were sentenced to immediate custody on offences including theft, a bail breach, robbery, obtaining property by deception, theft of a motor vehicle, and driving offences. There were later breaches of Community Correction Order, dealt with by sentences of imprisonment. Your most recent court appearance prior to the commission of the offences before me was an appearance in the Melbourne Magistrates’ Court in January 2019, where you were convicted for numerous offences of theft, unlawful assault, and bail breaches, and were sentenced to further imprisonment.
Psychological/psychiatric presentation
68 There is some disagreement between the experts as to diagnosis and effect of each of your mental and cognitive health presentations.
69 Mr Baroch, Dr Aaron Cunningham, forensic psychologist, assessed you and has provided two reports to me as to his expert opinion, as well as providing oral evidence. Dr Cunningham told me that he administered relevant empirical testing, and noted that you reported feeling significantly triggered in the mainstream population, and that you struggled to be around other prisoners. You told him you were trying to control yourself so that you did not overreact and assault a prisoner due to misperceived threats. You struggled to sleep without medication. You expressed to Dr Cunningham significant paranoia and mistrust of others. He noted that you suffer a depressed mood, and that you ruminate on past life events, and that you feel you are worthless and that you are failure in life.
70 In Dr Cunningham’s opinion your presentation was consistent with post-traumatic stress disorder. You have been exposed to significant abuse and trauma, you have distressing recollections of trauma, depressive symptoms in the form of hopelessness and worthlessness, and significant anxiety in the form of hypervigilance, difficulty concentrating, irritability and outbursts of anger, reckless and self-destructive behaviour, and sleep disturbance. In his view, your assault in prison in 2017 significantly aggravated your trauma. After you were released into the community, you were unable to cope with your paranoia and traumatic recollections, and this contributed to your relapse into drug abuse.
71 Dr Cunningham opined that in the context of your post-traumatic stress disorder and paranoia, you are at a higher risk of violent behaviour when abusing drugs and alcohol. In his opinion, your paranoia further leads you to perceive threat and danger at a higher level and react in excess of what would be appropriate.
72 In Dr Cunningham’s opinion, your untreated post-traumatic stress disorder and paranoia “contributed to your offence behaviour in conjunction with your drug and alcohol abuse”. He notes that in the absence of drug and alcohol abuse, you continue to struggle to suppress your perception of threat and tendency to overreact in a violent manner. He notes that you struggle in jail and are placed in solitary confinement due to conflict with others.
73 Dr Cunningham provided a supplementary report to clarify this diagnosis and your mental state at the time of offending, and he administered further testing.
74 In the supplementary report, Dr Cunningham set out that in his opinion, you meet the DSM‑V criteria for post-traumatic stress disorder. I will not set out Dr Cunningham’s findings in full; however, he set out each criterion and noted that you had been exposed to actual or threatened death or serious injury, by your direct exposure to traumatic events, including witnessing your father taken and not returned by government forces, your witnessing war-related trauma, and having boiling water thrown on you in prison; the presence of one or more symptoms of intrusion associated with traumatic events, including your regular nightmares of prior trauma and distressing recollections of being attacked with boiling water, and he notes your escalations in anxiety and mistrust of others and hopelessness in prison, and malaise, gastrointestinal symptoms, and head pain in prison; your persistent avoidance of stimuli associated with traumatic events, including your use of drugs to avoid emotional traumatic responses and paranoia; your negative alterations in cognitions and mood associated with the trauma, evidenced by your persistent and exaggerated negative beliefs or expectations about oneself, others, or the world, and your persistent negative emotional state, including symptoms of depression, anxiety and anger; and your marked alterations in arousal and reactivity associated with the traumatic events, such as your irritable behaviour and angry outbursts, your symptoms of anger, your history of reckless and self-destructive behaviour, your use of methamphetamine to try to reduce your paranoia in the community, your problems with concentration, and your sleep disturbances, currently treated with Seroquel. Your traumatic symptoms have occurred beginning in childhood, and they have led to your struggling to maintain stability with employment, accommodation, and relationships.
75 In Dr Cunningham’s opinion, with regard to the armed robbery offence, you stated that the victim came to buy drugs and was acting “like a smartarse”, and that you were angered by the victim’s attitude and decided to commit the armed robbery.
76 In regard to the intentionally cause injury offence, you told Dr Cunningham that you were intoxicated with alcohol and methamphetamine, and, after you were driving the wrong way down a road and were hit by a car, you stated that you got out of the vehicle and approached the other car intending to physically attack the driver, then you returned to the car and drove away. You noticed two cars following you from the scene of the accident. You stopped the car and confronted one of the drivers, and you felt like there was going to be a physical fight so you attacked the victim.
77 Dr Cunningham continued by opining that while you felt that methylamphetamine would increase your focus and awareness and so increase your perceived safety in the community, in his opinion your drug use increased your impulsivity, aggression, and recklessness. Your post-traumatic stress disorder, combined with your drug and alcohol abuse, significantly increased your risk of violent behaviour and so contributed to your offence behaviour.
78 In Dr Cunningham’s opinion, your post-traumatic stress disorder and tendency towards drug and alcohol abuse as a coping method placed you at a higher risk of violent behaviour in the community. Ceasing drug and alcohol abuse would decrease your risk.
79 In his oral evidence, Dr Cunningham repeated his opinion that an individual with post traumatic stress disorder and alcohol or substance use increases violence and aggression – drugs create a disinhibition upon you. In terms of the sequence leading to your intentionally causing injury charge, there may have been a triggering of your paranoia and perceptions of threat. Without the drugs, he couldn’t be convinced that the offence would happen. Dr Cunningham considered that in relation to the armed robbery, there was nothing specifically that suggested hyper-vigilance.
80 Dr Cunningham considered that you have a very difficult road to rehabilitation. If you can stop your drug and alcohol use, and manage your trauma symptoms and gain stability, you may have some hope.
81 You were also assessed by Dr Fiona Best, Consultant Psychiatrist of Forensicare, who has also provided me with a report. She respectfully disagrees with the opinions expressed by Dr Cunningham. She interviewed you, and reviewed your circumstances and history. She also described that you had been prescribed Seroquel to assist with sleep.
82 After reviewing the circumstances, on her assessment of you, in her opinion there was no evidence of a major mental illness that required immediate psychiatric treatment. You have a long history of substance abuse. In her view, your reported history indicated that you have a diagnosis of alcohol-use disorder (DSM‑V), cannabis-use disorder (DSM‑V), and amphetamine-use disorder (DSM‑V). You would benefit from drug and alcohol counselling and rehabilitation. She noted that you struggled to acknowledge that your substance-abuse history had played a significant role in your offending. She noted your significant history of childhood trauma, and opined that this in part explained your substance-abuse history. Your developmental trajectory, in her view, has been maladaptive, and you report significant difficulty in trusting those around you, and you tend to expect that you will be let down by others. You are fearful of incarceration, and your previous assault in custody has cemented for you your belief that human relationships are not to be trusted.
83 On her assessment, she reported that you had some aspects suggestive of post-traumatic stress disorder (DSM‑V). In her view:
“He experienced significant trauma and the traumatic loss of his father in early childhood and has developed a mistrust of others. Other symptoms to meet full DSM-5 criteria for Posttraumatic Stress Disorder such as intrusive symptoms, avoidance symptoms and some negative alterations in cognitions were not present, however there was some history suggestive of marked alterations in arousal and reactivity and avoidance of stimuli that remind him of the trauma (using illicit substances and alcohol to avoid). Mr Baroch does not meet the full criteria for Posttraumatic Stress Disorder (DSM-5) although he experiences some disabling posttraumatic symptoms.”
84 In Dr Best’s view, whilst there is no causal connection between your symptoms of mental illness and the offending, your post-traumatic stress symptoms of mental illness in some way explain your substance abuse, and this is a major factor in your offending history. In her view, it is likely that your chaotic lifestyle and substance abuse play a major role in your ability to make calm and reasoned decisions at the time of the offending.
85 Ian MacKinnon, consultant psychologist, assessed you Ms Ater and provided me with an initial report. He noted that you were not currently prescribed any medication, and nor are you receiving any ongoing treatment of any kind. At the time he assessed you, he opined that you were suffering with symptoms that met the clinical criteria for Post-Traumatic Stress Disorder. He administered tests including the MMSE, which suggested that your general cognitive functioning fell within the normal adult range, and the K10, which suggested that you had been highly distressed over the thirty days prior to testing. You appear to possess English literacy skills developed to around the Year-10 level, and your spoken English skills appear to be developed to just below the adult average level. As mentioned, in his opinion, you were suffering with:
“... PTSD (currently of moderate intensity) – symptoms of which may include: anxiety, depression, flashbacks, nightmares with violent themes, sleep disturbance, sensitivity to environmental triggers and cues, interpersonal difficulties, paranoia and mistrust, low self-esteem and so on.
Substance abuse may be considered an additional symptom of Ms Ater’s PTSD – serving as a means of self-medicating her chronic distress. However, as a consequence of Ms Ater’s remand, her substance abuse is currently in remission.”
86 In Mr MacKinnon’s opinion, the antecedents to your PTSD were the ongoing mental traumas you suffered during your early childhood in war-torn Sudan and then in Kenya, where you spent about two years in distressing circumstances where your mother had to fight to regain custody of you; and that over the last few years, your lifestyle has caused you to suffer additional distressing experiences, including domestic violence, violent conflict in the criminal milieu and police processing and imprisonment, which only served to further fuel your PTSD.
87 He noted that you had expressed significant remorse for your offending. You appear to him to hold genuine intentions to rehabilitate yourself, to become a better mother and daughter, and resume employment in some capacity, and pursue your musical and performing ambitions.
88 In his view, you appear to have been a chronically-distressed individual who consequently was especially vulnerable to the addictive qualities of methylamphetamine, and easily influenced by those with whom you associated.
89 In his view, you have good prospects for rehabilitation.
90 In his opinion, your PTSD which subsumed substance abuse and a substance-induced psychosis made a significant contribution to your offending by degrading your ability to reason and make sound judgement, fuelling hallucinations and irrational and delusional thoughts, distorting your perception, elevating your impulsivity, lowering your powers of consequential thinking, lowering your frustration tolerance threshold, and encouraging a self-absorbed perspective that tended to lack empathy for others.
91 Mr MacKinnon provide a supplementary report after a further assessment. You provided him with further details of your abusive relationship with your elder son’s father, who is apparently now in prison. You reported that he broke your jaw, he gave you miscarriages, and he was very evil. He would choke you while you were pregnant. You reported to Mr MacKinnon that your most recent offending all seems so unreal now, and that you did not remember it clearly.
92 In Mr MacKinnon’s opinion, at the time he re-assessed you, you were still suffering with PTSD with multiple developmental antecedents (alternatively known as Complex Trauma Disorder – a form of PTSD that arises in response to multiple causes rather than one acute incident). In addition to still suffering adverse effects of your distress, in his view you are still very strongly affected by the trauma arising from the extremely violent and emotionally-damaging relationships you have had with at least two male partners in recent years. In his opinion, you became involved in habitual substance abuse as a coping mechanism, and a means of self-medication, in response to your chronic distress. Once you became involved with your co-accused, you were functioning very poorly in a deteriorating psychological state, heavily substance dependant and unable to apply good reason, sound judgement or a reasonable level of morality. You were by then suffering with PTSD and substance-induced psychosis. After being remanded and with some assistance being provided by the prescription of antidepressant and antipsychotic medication, your substance-induced psychosis has been relieved and you have established an improved sense of psychological integrity and stability. However, in his view you are still quite unwell and still suffering with a moderate Post-Traumatic Stress Disorder which will be prone to becoming severe in the face of new and extreme life stressors. In his view, you are not receiving any counselling or other mental health therapy in prison and you are unlikely to make significant rehabilitative progress whilst you remain imprisoned.
93 In his oral evidence, Mr McKinnon conceded that he didn’t use diagnostic tools normally but did use the K10 in this case. He doesn’t put much faith in putting numbers on these things because he regards himself as a psychologist working in social science and he regards the over use of testing tools as a bit of a pseudo-science. His approach is more to explore the psycho-social backgrounds of the client, their presentation, and make a judgment based on that. In terms of post traumatic stress disorder, he thinks there’s general currency about what that means. It may vary a little from the ICD-10, which he generally refers to if he’s pushed to, and the DSM-5, which is a psychiatric volume and he’s a psychologist. The K10 is a measure of broad psychological distress. Your biographical details, her personal history and her psychological symptoms were all consistent with post traumatic stress disorder. His primary judgment was a clinical judgment based on the information that he had obtained from you directly.
94 Mr McKinnon did not ask you, Ms Ater, about whether you were under the influence of methamphetamine whilst committing the robbery, but you accepted you were using it every day. He accepted he doesn’t really re-investigate the crimes when he does assessments because it can produce all sorts of difficulties when it comes to trial. He believed in relation to one theft that you were just caught up in antisocial behaviour and it had in a sense become normalised during that period.
95 I will here interpolate that I accept Dr Best’s evidence generally as to the shortcomings of Mr McKinnon’s diagnostic methods which rested substantially upon clinical observation during the assessment meetings. I considered that his evidence was general and not specific, and I am unable to find his opinion to have the quality and reliability necessary for me to accept the diagnosis that he made. I will turn to the evidence of Dr Best.
96 You were also assessed by Dr Fiona Best, Ms Ater, consultant psychiatrist of Forensicare and a report was made available to me from Dr Best. She met with you via video link, and Dr Best also notes you were prescribed psychotropic medication (antipsychotics and antidepressants) in custody for six months. You told her that you were anxious and sad, but okay, you cannot sleep sometimes because you think about your situation, not being home with your family, which saddens you. You told her in relation to your current charges that you were using ice much more heavily during the period of offending, that you were “fried” and in a psychosis with no control. She observed your significant history of drug and alcohol use, and notes that you were treated, as mentioned, with Olanzapine and Mirtazapine.
97 On her assessment of you, she said that there was no evidence of any major mental illness and as such that you were not in need of any psychiatric treatment. From your long history of substance abuse, Dr Best diagnosed you with a Cannabis Use Disorder (DSM-5), Amphetamine Use Disorder (DSM-5) and Alcohol Use Disorder (DSM-5). In Dr Best’s opinion, you would benefit from drug and alcohol counselling. In her view, intoxication with alcohol and illicit drugs is likely to impact on your ability to control impulses and manage frustration. As you reported a cessation of symptoms of psychosis, such as paranoia, referential delusions and auditory hallucinations, and your antipsychotic medication was ceased three months after being remanded because your psychotic symptoms had abated, in Dr Best’s view, it is likely that your reported symptoms as at the time of remand and alleged offending were secondary to the effect of illicit drugs or drug intoxication, or drug withdrawal. In her view, there appears to be a link between your illicit drug use and the alleged offending, and it is highly likely that your illicit drug use affected your ability to exercise appropriate judgement and make calm decisions and think clearly at the time of offending.
98 Dr Best considered the first psychological report of Mr MacKinnon, and disagreed with the diagnosis of Post-Traumatic Stress Disorder. In her view, whilst you have been exposed to trauma in childhood secondary to living in an unstable environment of civil war, and you and your mother were directly exposed to trauma and fled dangerous situations, there were no reports to Dr Best of subsequent intrusive symptoms (dissociation, marked physiological reactions, psychological distress, or distressing dreams and/or memories of the trauma), there were no reported symptoms suggestive of persistent avoidance of stimuli associated with the trauma (though she acknowledged that your illicit drug and alcohol use activity may represent avoidance), and there was no report of negative alterations in cognition or marked alteration in arousal and reactivity associated with the trauma. Dr Best did note that given your trauma, you may benefit from counselling to enable you to re-examine those difficult experiences, however not everyone benefits from revisiting trauma. Dr Best observes that aspects of your early childhood experiences were traumatic, and that these types of trauma may have the capacity to disrupt development and may cause a maladaptive developmental trajectory. She observed that adults with experiences such as those that you describe may resort to primitive ways of coping with their distress, such as acting out, denial, splitting and projection. When you are ready, you may choose to seek psychotherapy to assist you to find more mature ways of coping with and coming to an understanding about your childhood difficulties.
99 She is not of the opinion that incarceration is likely to weigh more heavily on you than it would on someone in normal health.
100 In each of your cases, your counsel has urged me to accept the application of Verdins factors,[1] in the circumstances of your case.
[1]See Verdins, Buckley and Vo (2007) 16 VR 269, [32].
101 The prosecution has submitted that I should accept the evidence of Dr Best and find that in each case there is not a psychiatric illness sufficient to invoke the operation of those principles, and further consider that the expert evidence in this case fails to establish a realistic connection between the mental impairment and the offending behaviour such as to enliven principles 1-4 of Verdins.
102 I have given the application of Verdins principles in this case very careful consideration.
103 For the first four principles to apply, there must be a connection between the mental impairment and the offender’s moral culpability for his or her offending, or between the mental impairment and the need for general or specific deterrence. To demonstrate that connection, an offender must establish that, at the time of the offence, the mental impairment:
·affected his or her ability to appreciate the wrongfulness of the conduct; or
·obscured his or her intent to commit the offence; or
·impaired his or her ability to make calm and rational choices, or to think clearly.[2]
[2]DPP v O’Neill (2015) 47 VR 395 [74]-[75].
104 Mr Baroch, the evidence at its highest points to your mental impairment impairing your ability to make calm and rational choices, or to think clearly. Any disinhibition is not exclusively attributable to your medical condition, given your admitted use of drugs and alcohol.
105 However, I find that the circumstances in which your offence of armed robbery were committed, namely as part of a preconceived plan that required waiting for some time prior to execution, disconnect the link between any illness and your offending. In relation to your intentionally causing injury and theft charges, I understand Dr Cunningham’s analysis, but I am unable to find that it was your mental state that led to your attack upon Mr Ciancio – there is no clear picture as to what influenced this decision. You were fleeing the scene of your accident and had initially sought and then avoided a confrontation at that scene, only to decide to attack Mr Ciancio. Your behaviour is more readily attributable to your interest in continuing to flee. I am therefore unable to moderate sentence on the application of Verdins principles 1-4.
106I do find that your condition will mean that a sentence will weigh more heavily upon you than it would on a person in normal health, and considerable mitigatory weight will attach to the operation of Verdins factor 5 in this case.
107 In your case, Ms Ater, I am unable to accept Mr McKinnon’s diagnostic methodology and findings, and in the circumstances I accept Dr Best’s expert opinion and I do not mitigate sentence in the proper application of the Verdins principles to the circumstances of your case.
108 It was submitted in accordance with the decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571 that, in each of your cases, your traumatic and deprived backgrounds may mitigate the sentence that would otherwise be appropriate, at [37]. The court in Bugmy held that the effects of profound deprivation do not diminish over time and they are to be given full weight in the determination of the appropriate sentence in every case. The experience of growing up in an environment surrounded by deprivation, and extreme violence, may leave its mark on a person throughout life (at [43] and [44] of Bugmy). I accept without question the mitigatory effects of each of your traumatic backgrounds, including in your case, Ms Ater, the effects of your more recent domestic violence.
109 However, in Bugmy at [44], it was noted that that was not to suggest, that an offender's deprived background has the same (mitigatory) relevance for all the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion, in my case, so difficult. Your childhood exposure to violence may explain your recourse to violent and opportunistic means to obtain property for instance, to fund your drug habit. However, the inability to control the violent response to resistance to those attempts may increase the importance of the need to protect the community from you.
Prospects for rehabilitation
110 In each of your cases, given your previous criminal histories, your entrenched drug addictions, and the escalation in offending that this spree of offending represents, I am guarded about your prospects for rehabilitation. Given each of your young ages, your great difficulties and trauma in early childhood, and the desire to provide an incentive to rehabilitate, I intend to provide long periods of parole eligibility and supervised release in the community.
Objective seriousness of the offending; moral culpability
111 Mr Baroch and Ms Ater, your offences cause me significant concern.
112 Commencing with your armed robbery, Mr Baroch, this is an offence which is grave and serious. You were overheard, planning to take the victim’s money when he arrived – that is, your offending was calculated, and premeditated. Your offence was committed in Ms Ater’s company until the last moment. You pulled out a flick knife with a 20-25cm blade and held it at the victim’s throat, in the confines of his car, threatening to kill him if he did not hand over his wallet. You obtained $800 in cash, and your parting words were a threat of retribution if he contacted police. This offence occurred on 15 July 2019, whilst you were on bail.
113 Ms Ater, you face a charge of robbery and not armed robbery. You were also overheard planning in advance to take the victim’s money and acted in company with Mr Baroch. You were outside the car when Mr Baroch played his part.
114 Ms Ater, your charges of theft, involving petrol and the alcohol then occurred on 19 and 23 July 2019.
115 Ms Ater, also on 23 July 2019, whilst driving the stolen Golf the subject of your charge of handling stolen goods, you committed your further act of robbery on the female victim parked in her car in the Kealba Hotel car park. Again, this offence was committed in company, this time with another woman.
116 On 25 July 2019, you were both involved in the appalling attack on Mr Ciancio that I have described. This, in my view, is a serious example of the offence of intentionally causing injury. Mr Baroch, you collided with another vehicle and left the car to yell at the driver before leaving the scene. You were driving erratically and I understand you were drug affected; and you eventually crashed into a cluster of rocks. Mr Ciancio was a good Samaritan, coming to your aid. You both started punching him until he fell to the ground, and while he was prone and defenceless you kicked and stomped on his head in a protracted attack on him in company with one another, causing the injuries I have described. A witness described a large amount of blood on his face, and on the road, caused by you both. This is just dreadful behaviour. Whilst he was lying on the road unconscious from your attack, you stole his car from the scene and effected your escape. There is nothing to distinguish your role and criminality, save that, Mr Baroch, you were on bail at the time. Ms Ater, you then used your victim’s credit card to purchase cigarettes.
117 On 29 July 2019, Ms Ater, you then committed your carjacking, on a victim who had agreed to give you and the two others a lift home from the Deer Park Hotel. Your behaviour made him feel sufficiently uncomfortable that he got out of his own car whilst it was still running. Whilst your male co-offender took hold of the victim with two arms around his body, you, Ms Ater, and your female cooffender were involved in pushing and scratching him, before one of you took his keys and attempted to drive off. Still, the brave victim tried to get his keys back before you effected your goal.
118 Mr Baroch, you have a prior history including numerous charges of robbery, and causing injury. Though you have previously been sentenced to jail, I note this series of charges represents an escalation of offending will lead to longest sentence. You are still a young man.
119 Ms Ater, you also have a prior history including quite a number of offences of theft, of robbery, and causing injury. You have also previously been sentenced to jail, and I also note in relation to your case too this series of charges represent an escalation. You are also still young.
Relevant sentencing principles, sentencing submissions
120 I take into account the purposes for which sentence must be imposed and the need for deterrence, both, general and specific. I accept that the gravity and prevalence of each of the offences that you have committed, but particularly of armed robbery, of robbery, of intentionally causing injury and of carjacking, require conclusions that general deterrence is the primary sentencing purpose.
121 I also consider that specific deterrence is needed in each of your cases, given your prior criminal history.
122 The sentences I will impose will punish you and denounce your behaviour, whilst allowing and emphasising your continued efforts at rehabilitation. I have been acutely mindful of the totality and parity principles of sentencing. I note that each of your periods on remand coincide with the unhappy and serious risks posed to you and other prisoners by the COVID-19 virus, and whilst you were both remanded prior to the current necessity to isolate incoming prisoners, you have both been deprived of some of the ordinary concomitants of custody such as face to face visits, courses, and employment activities, and I take these circumstances into account in mitigation of sentence.
123 It was submitted by your counsel that a combination of immediate custody to be followed by a community correction order would represent proportionate sentences in your cases; when pressed, later counsel has accepted that a sentence involving a lengthy period of parole eligibility would represent the secondary submission. I reject the former and accept the latter.
Sentence
124 Now, I impose the following sentences:
Mr Baroch, on your Charge 1 of armed robbery, initially it was my intention that you be convicted and sentenced to four years’ imprisonment; which would become the base but having regard to the 189 days of Renzella time, I am going to convict you and sentence you on Charge 1 to 3.5 years' imprisonment which will still form the base.
Ms Ater, on your Charge 2, of robbery, you are convicted and sentenced to 15 months’ imprisonment, three months of which will be served cumulatively upon the base, yet to come, and other sentences.
Ms Ater, on your Charge 3, of theft, you are convicted and sentenced to one month imprisonment to be served concurrently with other sentences.
Ms Ater, on your Charge 4, of theft, you are convicted and sentenced to three months’ imprisonment to be served concurrently with other sentences.
Ms Ater, on your Charge 5, of robbery, you are convicted and sentenced to 18 months’ imprisonment, three months of which will be served cumulatively upon the base and other sentences.
Mr Baroch and Ms Ater, on your Charge 6, of intentionally causing injury, you are convicted and sentenced to three years and nine months' imprisonment, and, Ms Ater, three years and three months respectively – Mr Baroch, your sentence is ordered to be served two years’ cumulatively upon the base and other sentences; Ms Ater, this sentence is your base.
Mr Baroch and Ms Ater, on your Charge 7, of car theft, you are each convicted and sentenced to two years’ imprisonment, to be served 12 months’ cumulatively upon the base and other sentences.
Ms Ater, on your Charge 8, of obtaining property by deception, you are convicted and sentenced to three month imprisonment to be served one month cumulatively upon the base and other sentences.
Ms Ater, on your Charge 9, of handling stolen goods, you are convicted and sentenced to six months' imprisonment to be served two months’ cumulatively upon the base and other sentences.
Ms Ater, on your Charge 10, of carjacking, you are convicted and sentenced to two years and six months' imprisonment, to be served 12 months’ cumulatively upon the base and other sentences.
Mr Baroch, on the two summary matters of Charges 3 and 6, commit indictable offences whilst on bail (armed robbery, and theft), you are convicted and sentenced in each matter to one month imprisonment to be served wholly concurrently, on one charge of deal property suspected of being proceeds of crime (two USB drives), one month imprisonment to be served wholly concurrently, and one charge of possess prohibited weapon (flick knife), three months’ imprisonment to be served wholly concurrently.
125 Now, Mr Baroch, this is a total effective sentence of six years and six months' imprisonment, and I order that you serve a minimum of four years and three months’ imprisonment before parole eligibility. Ms Ater, this is a total effective sentence of six years’ imprisonment, and I order that you serve a minimum of four years' imprisonment before parole eligibility.
126 I have neglected to ask ahead of time but may I please have pre-sentence detention calculations? Mr Lawrence, do you happen to have one?
127 MR LAWRENCE: Yes, I do, Your Honour.
128 HER HONOUR: Thank you.
129 MR LAWRENCE: My calculation is 476 days - - -
130 HER HONOUR: Yes.
131 MR LAWRENCE: - - - between 29 July 2019 and yesterday inclusive.
132 HER HONOUR: Yes. Thank you. So that will be a clear and transparent PSD calculation because I have already afforded the Renzella time into the net sentence.
133 MR LAWRENCE: As Your Honour pleases.
134 HER HONOUR: Thank you. Ms Papadinas?
135 MS PAPADINAS: Your Honour, it is the same; 476 is my calculation.
136 HER HONOUR: Thank you. In each case, I will declare 476 days' pre-sentence detention reckoned as served.
S 6AAA declaration
137 Pursuant to s.6AAA of the Sentencing Act 1991 of Victoria, Mr Baroch I declare that had you pleaded not guilty to these charges and been found guilty of them, the total effective sentence that I would have imposed would have been eight years and six months' imprisonment with a non-parole period of six years and in Ms Ater's case, seven years and six months' imprisonment with a minimum of five years.
138 Now, there were ancillary orders that I needed to make in relation to forfeiture in Mr Baroch's case of two USB flash drive devices and a disposal order for an automatic switchblade knife. Mr Lawrence, you may not have had a chance to take instructions but I take that that might be without opposition?
139 MR LAWRENCE: Yes, it would, Your Honour, given the nature of the property.
140 HER HONOUR: Yes. Thank you. I would have made that order in any event.
141 For Ms Ater, a forfeiture order of alcohol belonging to Dan Murphy's valued at $466.95. Likewise, Ms Papadinas, that is a bit difficult to resist?
142 MS PAPADINAS: Yes, Your Honour.
143 HER HONOUR: Yes. Thank you. I will make those orders as well.
144 Now, any other applications to make or orders sought? Mr Lawrence?
145 MR LAWRENCE: No, Your Honour.
146 HER HONOUR: Ms Papadinas?
147 MS PAPADINAS: No, Your Honour.
148 HER HONOUR: Ms Patterson, anything from you?
149 MS PATTERSON: No, Your Honour.
150 HER HONOUR: Yes. Thank you. We will now adjourn until tomorrow morning. Thank you, Ms Romanyk.
0
3
0