Director of Public Prosecutions v Baxter

[2024] VCC 1037

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MILDURA

CRIMINAL JURISDICTION

CR-23-01141

DIRECTOR OF PUBLIC PROSECUTIONS

v

OLIVIA BAXTER

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JUDGE:	HIS HONOUR JUDGE D. SEXTON
WHERE HELD:	Mildura
DATE OF HEARING:	26 March 2024 at Mildura, 11 June 2024 at Melbourne
DATE OF SENTENCE:	27 June 2024 at Mildura
CASE MAY BE CITED AS:	DPP v Baxter
MEDIUM NEUTRAL CITATION:	[2024] VCC 1037

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Armed Robbery

Legislation Cited:      Sentencing Act 1991;

Cases Cited: Bugmy v R (2013) 249 CLR 571; R v Mills [1998] 4VR 235; R v Fuller-  Cust [2002] VSCA 168; Ha (a pseudonym) v R [2021] VSCA 64; DPP v Lombardo [2022] VSCA 204; DPP v Djabmara & Turner [2023] VCC 826;

Sentence:               Sixteen Months in a Youth Justice Centre

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Mitchell Wilson	Solicitor from the Office of Public Prosecutions
For the Accused	Mr Tim Sullivan	Martin Middleton Oates Lawyers

HIS HONOUR:

Introduction

1Olivia Baxter, on 26 March 2024, in the Koori Court division of the County Court sitting in Mildura, you pleaded guilty to two charges of armed robbery, an offence which carries a maximum penalty of 25 years' imprisonment.

2As the armed robbery offences committed by you were committed in the company of one or more persons, these are Category 2 offences, requiring a custodial sentence to be imposed unless any of the matters set out s5(2H) of the Sentencing Act 1991 are enlivened.

3On 26 March 2024, you also admitted your criminal record.

Circumstances of your offending

4The circumstances of your offending were set out in the summary of prosecution opening for plea dated 5 March 2024, Exhibit 1 at your plea hearing.

5Your offending took place on 11 February 2023 in Robinvale in company with three other offenders:  Emily Smith who was then aged 19, Rhythm Nixon-Harradine, who was then aged 22 and Tyreece Whitton who was then aged 22.  The victims of the two armed robberies, Mohd Bin Azmi and Mohd Farizam Hamzah, resided in a share property in Robinvale.  They shared a bedroom at the property, sleeping in separate beds.

6Early in the morning of 11 February 2023, all four co-offenders including yourself attended at the property occupied by Mr Azmi and Mr Hamzah. You apparently knew Mr Azmi.  You had earlier engaged in a text conversation with Mr Azmi, requesting to attend at the property for a cigarette.  At around 6.30am you texted Mr Azmi telling him you had arrived.  Mr Azmi unlocked the front door upon learning of your arrival and, seeing you sitting on the porch, told you he would be back.  He returned to his bedroom at which point he and Mr Hamzah observed all four of you standing in their bedroom.

7You took a cigarette from Mr Azmi's bedside table and began smoking.  You then picked up Mr Azmi's iPhone and said you wanted a new phone like this one and you then asked Mr Azmi for the passcode.  When he refused, you apparently became angry and began to repeatedly demand the passcode.  At this point, Ms Smith told Mr Azmi that he should just give you the code or you would become angrier.  Initially both Mr Azmi and Mr Hamzah did not take this seriously, thinking it was a joke.

8Whilst you were standing in front of Mr Azmi, who was sitting on the bed, you removed a kitchen knife which had been concealed within your pants and held it to the left side of Mr Azmi's neck.  Mr Azmi leaned back in an effort to distance himself from the knife, but your hand with the knife followed, resulting in you being on top of Mr Azmi with the knife still held against his neck.

9At this point, Mr Whitton then removed a machete from his waistband and told Mr Azmi to do what you said.  Mr Whitton also hit Mr Azmi on his right knee with the back of the machete, using little force.  At this point one of your co-offenders struck Mr Azmi to the head and body with a chain wrapped around their hand.

10Mr Whitton then grabbed Mr Hamzah by the throat and held the machete near his neck.  He then told Mr Hamzah not to do anything, which made Mr Hamzah feel very scared.

11At this point either you or Ms Smith went to hit Mr Hamzah, but Ms Nixon-Harradine said, 'No don't hit him, he's a good boy'.

12You continued to go through Mr Azmi's phone and, after you opened the banking application, you took Mr Azmi's finger and placed it onto the phone to gain access via fingerprint verification.  When this first attempt failed, you appeared to become more agitated and forcibly tried again.  Whilst at your plea hearing, your counsel indicated that the majority of the factual allegations contained in the Summary of Prosecution Opening for Plea were accepted, you deny this specific allegation of using Mr Azmi’s finger to access his passcode.  For the purposes of sentencing I proceed on the basis that in general, you coerced Mr Azmi to provide access to his phone banking against his wishes.  After gaining access, you asked where all Mr Azmi's money was.  Ms Smith and Ms Nixon-Harradine also began asking Mr Azmi where his money was.  All four of you then began searching the bedroom and taking both of the victims' possessions.  During this time, both Mr Azmi and Mr Hamzah remained silently sitting on their beds.

13Various items were stolen from each of your victims.  In relation to Mr Azmi, $300, two backpacks, some clothing, a PlayStation 3 and the iPhone were stolen.  In relation to Mr Hamzah, a blue speaker, two pairs of sneakers, a jumper and a pair of sunglasses were stolen.

14Your conduct in jointly engaging in these offences, where both victims were robbed of various belongings whilst you had with you a knife, forms the basis of the two charges of armed robbery on the indictment.

15All four of you then left the bedroom, at which point Mr Azmi vomited.  Both of your victims exited the front door of the property to see where the four of you went.  Ms Nixon-Harradine, Ms Smith and yourself then ran down the road, while Mr Whitton paused at the end of the driveway, pointed the machete at Mr Azmi, who was then standing in the front doorway, and told him to get back inside.

16A housemate of the victims who was home at the time but in another room observed the immediate aftermath of the offending and recognised Ms Nixon-Harradine.  Police were ultimately called and through a combination of descriptions and names given to police, together with a location search with regards to Mr Azmi's stolen iPhone, all four of you were located and arrested within hours of the offences, when police located all of you at a property at Robinvale at around 10.25 am, where police observed all four of you sitting around a table under the carport at the far end of the driveway.

17You were interviewed by police later in the evening of 11 February 2023, where you essentially denied being present for the offending, although you did admit texting Mr Azmi. You went on to create what was essentially a false account of what happened to deflect responsibility from yourself.  Shortly after the interview, you provided a sworn statement to police where you acknowledged that you had all been in the victims’ bedroom engaging in the offending, though you diminished your role to that of a bystander.

Nature and gravity of your offending and your role in it

18In all the circumstances, I regard your offending as representing serious examples of the crime of armed robbery, appropriately described by the prosecution in written submissions as reflecting medium level seriousness for this type of offending.

19Your offending occurred in company with others, no doubt increasing the fear experienced by your victims and therefore increasing the seriousness of your conduct.  Multiple weapons were involved, a knife, a machete, and a length of chain wrapped around a hand.  Whilst I am not satisfied beyond reasonable doubt that the four of you engaged in a pre-planned or premeditated armed robbery, it is clear to me that you collectively attended for some sort of antisocial purpose in company and with some of you, including yourself, possessing dangerous implements.  The knife particularised in the armed robbery charges was actively used by you in the commission of the offences – your wielding of this self-evidently dangerous implement, and holding it to a victims neck, in the course of the armed robbery highlights the seriousness of this particular example of armed robbery.  It must surely have increased the level of apprehension and fear on the part of your victims and made them fear for their lives.  Your victims were very much unsuspecting, as entry to the property was gained under false pretences, with you, utilising your knowledge of one of the victims.  The offending took place in the victims' home, a place where they were entitled to feel safe, particularly in the very early hours of the morning.  Whilst neither of your victims made victim impact statements, I am satisfied that they would have been adversely impacted by the offending.  By way of example, as all four of you left the bedroom, Mr Azmi vomited.  As highlighted in the prosecution further written submissions document dated 6 June 2024, Exhibit E, Mr Hamzah in his statement to police referred to being very scared at the time of the offending.  Likewise, Mr Azmi in his statement referred to being unsure of what you would do as you held the knife to his throat, whilst you became more angry and demanding.  Thankfully, however, notwithstanding the presence and use of weapons, no injuries were sustained to the victims.

20In terms of your role in this serious offending, as submitted by the prosecution, while each of you jointly and actively participated in the commission of the offending, you were the primary instigator.  Whilst through your counsel you take issue with this description, I am satisfied that it is an accurate label to describe your involvement and role in the offending, as evidenced by your initial message to Mr Azmi and your resulting presence at his property, and through your prominent conduct once inside the bedroom, which included holding a knife to Mr Azmi’s neck and accessing his phone banking.

21Your conduct during the commission of these armed robberies was extremely concerning. Your victims would have been absolutely terrified. You had been allowed over by the victim under the pretence of wanting some cigarettes to which Mr Azmi was obliging and you essentially manipulated what trust he had in you. In addition to joining with the other co-offenders in searching the bedroom and taking the property of your victims, your conduct in particular with regards to the knife makes your role particularly prominent.  You engaged in behaviour that can only be described as violent and disturbing.  Your culpability for the offending is high.

Personal circumstances

22You are now 19 years of age.  At the time of your offending you were just 18 years old.  You have three prior findings of guilt in the Children’s Court jurisdiction from 2021 when you were 16 years of age, for offences which include assault, assault with a weapon, contravene Family Violence Intervention Order, persistent contravention of a Family Violence Intervention Order and wilfully damaging property, for which you have received either financial penalties or a good behaviour bond.

23You are of Aboriginal background, as are both of your parents.

24You are the eldest of six children to your parents Chris Baxter and Jacinta Harradine.  You grew up in the Robinvale area until about the age of four or five, when you were placed in the care of your grandmother.  When assessed by psychologist Dr Mirabel McConchie for the purposes of her psychological assessment report dated 10 May 2024, Exhibit D at your plea hearing, you reported that your parents had used illicit substances and you felt that you had never had a relationship with them.  You reported that child protection became involved due to your parents substance abuse and that you were sent to live with your nan and pop in Mildura, with your parents separating when you were in late primary school.

25Your mother now lives in the Robinvale area.  Your father attended your plea hearing before me on 26 March 2024, along with your grandmother and an uncle.  Your father meaningfully contributed to the sentencing conversation with the Aboriginal elders that took place on this date, and frankly admitted to his history of problematic behaviours including domestic violence, and the fact that he had been in and out of jail for considerable periods of time.  He referred to an improved relationship with you over the previous two year period.  It is very much to your father’s credit in these circumstances that he attended and contributed to the sentencing conversation, and the presence of your father, grandmother and uncle at this hearing informs the Court with regards to ongoing family supports in your case.

26Whilst family relations appear now to have improved, it seems clear to me that your childhood and upbringing was quite different.  Your removal from your direct family in the context of exposure to domestic violence and drug abuse must surely have been disruptive to your development.  You repeated some levels at primary school before ultimately leaving school halfway through Year 8 at Merbein Secondary College to return to live with your mother.  You reported that your grandparents were too strict and in contrast your mother allowed you to smoke cannabis without boundaries.

27You reported to Dr McConchie use of cannabis from the age of 10 with your use escalating to up to 10 grams per day when you were in your mid-teens.  You have reported that your consumption of cannabis has continued, until recently. You reported use of methylamphetamine to escape the traumas of your life, and that you had previously taken prescription painkillers to drown out your emotions and thoughts.  You also referred to previous episodes of self-harm.

28Significantly, you referred to using methylamphetamine and cannabis daily at the time of the offending.  You reported to Dr McConchie that you had decreased your substance use significantly, though in her report Dr McConchie refers to you currently using methylamphetamine daily and cannabis daily as at the date of the assessment.  In the presentence report from Community Corrections you referred to abstaining from using methylamphetamine for approximately two weeks prior to the assessment for suitability for a Community Correction Order on 18 June 2024.  In your assessment with Youth Justice for the purposes of suitability for a Youth Justice Centre Order, as indicated in the suitability report dated 24 June 2024, you referred to sporadic ice use and reported last using ice a week before your most recent Court appearance on 11 June 2024.  On any view it appears you have until at least quite recently, continued problematic substance use whilst in the community.

29Since ceasing your education halfway through Year 8, you do not appear to have engaged in any consistent employment, and you reported to Youth Justice working sporadically at a local nightclub around the time of the offending.  Indeed, as reported by Dr McConchie in her report, your world appears to have deteriorated quickly in your early teens once you began using cannabis heavily.  You were apparently in a toxic relationship with a male who perpetrated physical and emotional abuse upon you.  At the age of 16 years and 8 months, you gave birth to your son Lakhye.  Unable to access appropriate support, Child Protection became involved and Lakhye went into the care of your grandmother, and ultimately a Care by Secretary Order was made.  According to the Care by Secretary Order tendered at your plea hearing and marked Exhibit B, parental responsibility for your son is conferred on the Secretary, with this Order operating until 19 March 2026.  I was informed and accept that your son resides with your grandmother in the Mildura area.  I have no doubt that, given your Aboriginal heritage and the broader issues associated with family dislocation and intergenerational trauma, and having regard to your particular circumstances as a child yourself being placed in care, that your separation from your child has caused and no doubt continues to cause you considerable pain and suffering.

30According to Dr McConchie you have reported a subsequent abusive relationship of some eight months with another male who was extremely controlling and coercive, and you have reported that you began using methylamphetamine during this relationship to cope and block out your emotions and distress.  This relationship apparently ended just over six months ago.

31You report a positive relationship with your father whom you currently reside with.  I note in the suitability assessment from Youth Justice, you have reported that your father has ongoing issues with drug use, and is currently undertaking detox and rehabilitation locally. As I have stated, your mother lives in Robinvale, and there appears to be a degree of turmoil in this relationship.  You appear to have a high level of respect for your paternal grandmother who is supporting in the care of your Lakhye, though you have reported to Youth Justice strong feelings of guilt in relation to this arrangement.

32You have reported to Dr McConchie that you want to leave Mildura, rid yourself of methylamphetamine and get yourself clean so that you can be the mother you want to be for your son.  Consistent with your demeanour during the sentencing conversation before me, you apparently become extremely tearful on the topic of being currently unable to have the care of your son.  Indeed, according to Dr McConchie your focus in the psychological assessment was mostly around your guilt of not having your son and not seeing him enough because of your substance addiction, and “also feeling lost and untethered in [your] life, and wanting to make changes by coming off methylamphetamine.”

33According to Dr McConchie you meet the diagnostic criteria for a major depressive episode, and you would have met the diagnostic criteria for a cannabis use disorder and a stimulant use disorder both at the time of the offending and at the time of the assessment.  You have reported to Dr McConchie that you have withdrawn from everything and you are rarely able to attend appointments.

34Sadly, this is consistent with your progress on bail which commenced shortly after your offending.  Whilst you do not appear to have re-offended whilst on bail, you have demonstrated a considerable difficulty in attending appointments.  When you were initially placed on supervised bail in February 2023, with Youth Justice supervising your progress, you were referred to various supports which included Koori Youth Justice support, a Koori Youth Justice Support Worker and Koori Women’s Diversion Program Case Worker from the Mallee District Aboriginal Services (“MDAS”), and an Alcohol and other Drug Youth Outreach Worker from the Sunraysia Community Health Services.  As evidenced from previous Youth Justice progress reports, by way of example the report dated 20 September 2023, whilst you initially engaged, your level of engagement and attendance soon became sporadic.  Ultimately those supports were ceased due to disengagement, and you were ultimately removed from Youth Justice supervised bail until I again varied your bail to place you on supervised bail through Youth Justice on 26 March 2024, with the intention of reintroducing community supports.

35Unfortunately, as evidenced from the suitability for Youth Justice Centre Order report dated 24 June 2024, you did not attend any appointments with Youth Justice to progress this.  This disengagement according to Youth Justice does not appear to be as a result of deliberate avoidance of responsibility or hostility to Justice Services, rather it occurs in the context of a combination of mental health issues and substance use contributing to your decline in engagement.  According to the Youth Justice Centre Order suitability report, whilst you have expressed a willingness to accept supports moving forward, the fact remains that you are not currently engaged with any supports in the community, notwithstanding at least your recent admitted polysubstance use.  According to that report, you appear “to experience difficulty with maintaining consistent engagement with services and supports.”  According to the supervised bail progress report from Youth Justice dated 21 May 2024, you failed to attend appointments with Youth Justice on 28 March, 2 April, 5 April and 17 April 2024.  Likewise, whilst you ultimately attended a Community Correction Order assessment appointment on 18 June 2024, according to the assessment outcome report from Mildura Community Corrections, you failed to attend the initial appointment on 14 June 2024.  I also note your failure to attend at the Koori Court Directions Hearing on 31 January 2024.

36Accordingly, whilst it is positive that you ultimately attended the Community Correction Order assessment, and the Youth Justice Centre Order assessment, as well as a psychological assessment by telephone on 9 May 2024, your inability to consistently attend and engage with support and therapeutic services is troubling to say the least.  Whilst you apparently have presented as motivated and willing to accept services, the fact remains that you appear to be unsupported in the community in terms of professional support services, and yet until quite recently have been in engaging in problematic drug use.

Sentencing factors

37I turn now to the various factors relevant to sentencing in your case.  I have already referred to the maximum penalty for the offence of armed robbery, the nature and gravity of your offending and your level of responsibility for it, and your personal circumstances.  Having carefully considered your personal background in particular, I am satisfied that your disadvantaged and traumatic background, marked by your exposure from a young age to family violence and drug abuse, your removal from your parents from a very young age, and the commencement by you of cannabis use from the age of 10, warrants a reduction in your moral culpability for the offending in a general sense, pursuant to the well-known Bugmy principles.

38Your youth represents a significant mitigatory factor in the sentencing exercise.  You were just 18 years old at the time of the offending and you are currently 19, therefore falling within the definition of a young offender within the meaning of the Sentencing Act 1991. As accepted by the prosecution, and consistent with a long line of sentencing authorities, your youth and the need in any sentence to appropriately facilitate your rehabilitation looms large in the sentencing exercise.[1]  Whilst you do not fall to be sentenced as a first time offender, your criminal history is limited, and this matter represents the first occasion upon which you will be sentenced in the adult jurisdiction.  Consistent with authority, there is a need in sentencing to avoid a penalty which involves your detention or imprisonment in order to minimise the well known adverse impacts upon young offenders, unless such a penalty is necessary in the circumstances.

[1]R v Mills [1998] 4VR 235.

39According to the chronology attached to the further Prosecution Submissions for Plea dated 6 June 2024, Exhibit 3 at your plea hearing, your matter resolved at a further Directions Hearing in this Court on 6 November 2023.  In the circumstances of your case, where no witnesses were cross-examined at a contested committal hearing, this represents a relatively early plea of guilty on your part, warranting a sentencing discount.  Through your plea of guilty, your victims have not had to relive the experience of being robbed at knifepoint, and through your plea of guilty contested proceedings with the associated delays and costs have been avoided.

40In the circumstances of your case, I am satisfied that your plea of guilty reflects your acceptance of responsibility and you willingness to facilitate the course of justice.  Furthermore, I am satisfied that you now have a meaningful level of insight into your offending.  In your assessment with Dr McConchie, you reported that at the time of the offending you were caught in a very negative cycle of methylamphetamine use, feeling highly distressed about not having the care of your son, feeling worthless due to your childhood traumas and not caring about anything.  You reported looking back at your offending and that it was not the person you want to be.  According to the presentence report from Youth Justice, you presented as remorseful for your actions when discussing your offending behaviour, and you were able to articulate the harm and fear you may have caused the victims at the time, as well as the ongoing impact to the victims following the offending.  You acknowledged the severity of your offending and did not defer blame or minimise your contribution to it.  This is of course in stark contrast to your initial explanations to police upon your arrest.  Nevertheless, this improved insight stands to your credit, and warrants a further sentencing discount on the basis of your remorse.  A positive finding with regard to your remorse, in combination with your early plea of guilty, decreases the need for any penalty to reflect the sentencing purpose of specific deterrence, and reflects positively with regards to an assessment as to your prospects for rehabilitation.

41On 26 March 2024, you voluntarily participated in the Koori Court sentencing conversation procedure at the Mildura Koori Court, where you formally entered your pleas of guilty to these charges.  This was something that you did not need to do and your voluntary participation in the sentencing conversation very much stands to your credit.  Whilst you were at least initially rather reserved and softly spoken, over time a rapport was developed between you and the elders and I am satisfied overall that you engaged openly and conscientiously in what must have been a confronting hearing.  You slowly warmed and eventually engaged directly with the elders with regards to your offending and, although in my view you were reluctant to articulate precisely why you engaged in this serious criminality, in my view you did take appropriate responsibility for it.

42Participation in a sentencing conversation is more burdensome than appearing at a traditional plea hearing.  You submitted yourself to the shaming aspect that is integral to the Koori Court sentencing conversation, and directly participated in the hearing rather than relying upon counsel to make submissions on your behalf.  A mitigatory sentencing allowance is therefore warranted.  In combination with your early plea of guilty, your participation in the sentencing conversation provides an evidentiary foundation for a positive finding with regards to your remorse for the offending.  In the conversation with the elders, you were quite emotional when discussing your family, particularly your son, and you spoke of a desire to change in order to be a better mother for Lakhye and to become more connected to culture.  It was clear to me that your desire to restore relations with your young son in particular represents a considerable motivating factor for you.  Overall, I was impressed with your participation in this onerous procedure, the Koori Court sentencing conversation, and your participation in it represents a mitigatory factor in the sentencing exercise of some significance.

43Furthermore, on a related issue, your Aboriginality represents a significant matter in the sentencing exercise.  You are a 19-year-old Aboriginal woman with a difficult history, and in many ways your family background is emblematic of the catastrophic impacts of intergenerational trauma brought about by colonisation which has wreaked havoc on the Aboriginal community, with its effects inexorably linked to the over-representation of Aboriginal people in custody.  As referred to by Mr Wilson in helpful written submissions on behalf of the prosecution,[2] the challenges associated with the removal of ones child from the custody of their parent are immense within the indigenous community.  On a background of you being removed from your parents care, your son is now subject to a Care by Secretary Order.  In formulating an appropriate sentence in your case, I have had regard to your personal history in this regard, and the broader context, acknowledging the profound stolen generation impacts and intergenerational trauma that exists in the Aboriginal community.[3]  As has been stated in the Court of Appeal in this state, courts have a duty to be conscious of the need to avoid compounding disproportionate incarceration rates for Aboriginal offenders, unless there is a good cause to do so.[4]  Within the confines of orthodox sentencing practices, I am of course acutely aware of the consequences of imposing upon a young Aboriginal offender a sentence which involves their confinement.

[2]Further Prosecution Submissions for Plea dated 6 June 2024, 40.

[3]R v Fuller-Cust [2002] VSCA 168

[4]Ha (a pseudonym) v R [2021] VSCA 64 at [59]

44In formulating an appropriate sentence in your case, I have also had regard to current sentencing practices for the crime of armed robbery, including the cases referred to by the prosecution in the table attached to the further prosecution submissions for plea dated 6 June 2024.  Clearly, consistent with the maximum penalty, armed robbery is a crime that frequently attracts a term of imprisonment, and previous sentencing decisions have highlighted the serious nature of this type of offending, and the need for any sentence to reflect the important sentencing purposes of general deterrence, denunciation, and protection of the community.

45In formulating an appropriate sentence in your case, I have also taken into consideration the principle of parity, that is, the need for consistency in sentencing co-offenders, though acknowledging disparities of circumstances and factors that may exist. On 7 February 2024, I sentenced one of your co-offenders Tyreece Whitton, to a total effective sentence of three years’ and six months’ imprisonment with a non-parole period of two years’ and six months’ imprisonment. At the time of sentencing Mr Whitton was 23 years of age, and had a considerable criminal history in contrast to you. I have concluded that disparity with regards to the sentence imposed on Mr Whitton is clearly warranted. On 7 February 2024, I also sentenced your co-offender Emily Smith, in relation to two charges of armed robbery arising out of the same incident. In relation to Ms Smith I sentenced her to three days’ imprisonment, this period having already been served on remand, followed by an 18 month Community Correction Order with various conditions attached. I will turn to the considerations relevant to the offence of armed robbery when committed in company, and the application of s5(2H) of the Sentencing Act 1991 in due course. However, on the issue of parity, and after careful consideration I have concluded that there are also grounds for disparity in the sentence I am about to impose, in comparison to that imposed on Ms Smith. Ms Smith fell to be sentenced as a young offender, aged 20, with an absence of prior convictions or findings of guilt. Without in any way detracting from your disadvantaged and difficult background, Ms Smith’s background was particularly traumatic, and according to unchallenged psychological material she met the diagnostic criteria for chronic complex post-traumatic stress disorder. As at the time of sentencing she had been progressing well on supervised bail with Youth Justice for a period of approximately 12 months, and she had a number of professional supports in the community. At the time of sentencing Ms Smith was 20 weeks pregnant and encountering associated health conditions which had involved hospital attendances, and was planning for reunification with her young daughter who had been cared for by a relative. Importantly, Ms Smith’s role in the offending was less prominent than yours.

46Given the nature of your offending, the sentencing purposes of general deterrence, denunciation, and community protection are important in the sentencing exercise.  Given your relatively early plea of guilty, your insight and remorse, and your positive participation in the Koori Court sentencing conversation, notwithstanding your criminal history I am not satisfied that specific deterrence should play a particularly prominent role in sentencing.  Given your youth in particular, the facilitation of your rehabilitation remains an important sentencing purpose.  In written submissions, the prosecution very fairly in my view submitted that you had positive prospects of rehabilitation, however these prospects are wholly contingent upon you engaging with appropriate treatment services and remaining substance free.  The suitability report with regards to a Community Correction Order stipulates that you represent a high risk of general reoffending.  Nevertheless, in the presentence report from Youth Justice you were found to have reasonable prospects for rehabilitation.  You have self-reported a recent reduction, indeed, abstinence from illicit substances, though I have not been provided with any objective evidence to support this.  Notwithstanding your extremely difficult background, you do appear to maintain the support of your family.  However, as I have stated you remain unsupported in the community in terms of any professional interventions.  I do find that your prospects of rehabilitation are somewhat speculative notwithstanding your youth.  You clearly have many challenges ahead of you and your rehabilitative success is clearly heavily dependent on your ability and willingness to accept specialist interventions.

Considerations relevant to armed robbery committed in company – s5(2H) of the Sentencing Act 1991

47As I stated at the outset of my reasons, the commission by you of these offences in company means that these offences are Category 2 offences, so that a custodial sentence is required unless an exception under s5(2H) of the Sentencing Act 1991 exists. Your counsel relied upon the exception contained in s5(2H)(e), submitting that a custodial sentence is not required because there are substantial and compelling circumstances that are exceptional and rare and that justify not doing so. The prosecution submitted that no such exception had been established and accordingly submitted that either a term of imprisonment or a sentence involving detention in a Youth Justice Centre was warranted.

48In conducting my own independent evaluation with regards to s5(2H)(e), I understand that the circumstances relied upon must not only be powerful, but also wholly outside the run of the mill factors seen in offending of the relevant kind.[5]  First, I must consider whether there are substantial and compelling circumstances, which involves a consideration of whether those circumstances are “weighty and forceful or powerful.”  In conducting that assessment, I must regard general deterrence and denunciation of your conduct as being more important than other sentencing purposes such as just punishment, specific deterrence, rehabilitation and protection of the community from you.  I must also give less weight to your personal circumstances than to the nature and gravity of your offending and I must not have regard to your previous good character (other than an absence of previous convictions or findings of guilt), an early guilty plea, your prospects of rehabilitation or parity with other sentences.  In determining whether there are substantial and compelling circumstances, I must have regard to Parliament’s intention that in sentencing an offender for a Category 2 offence, a custodial sentence should ordinarily be made, and I must have regard to whether the cumulative impact of the circumstances of your case would justify departure from such a sentence.  If I find that the circumstances are substantial and compelling, the second step in this analysis requires me to consider whether those circumstances are also exceptional and rare, this phrase referring to circumstances that are wholly outside the ordinary factors typical of the relevant offence.

[5]DPP v Lombardo [2022] VSCA 204 at [63]

49Your counsel’s submissions with regards to the substantial and compelling circumstances threshold were contained in the further outline of submissions documented dated 7 June 2024, Exhibit E at your plea hearing.  In summary, your counsel relied upon your extremely difficult and disadvantaged upbringing, which included your exposure to domestic violence and the normalisation of drug use from a young age, the fact that you were subjected to domestic violence yourself, the impacts of intergenerational trauma given your Aboriginal heritage, the birth of your son Lakhye when you were just 16 years of age, and his subsequent placement in the care of your grandmother on a background of you yourself being placed in care at the age of five, your early introduction to drug use from the age of 10, your limited criminal history, your psychological fragility as referred to in the report of Dr McConchie, and your positive engagement in the Koori Court sentencing conversation.  Having regard to the statutory restrictions with regards to matters to which I can have regard as I have set out, I have concluded that the circumstances in this case are weighty and forceful or powerful, and accordingly meet the substantial and compelling circumstances threshold.

50Your counsel’s submissions with regard to the second, rare and exceptional circumstances threshold, were also set out in the above-mentioned outline of submissions document.  In summary, your counsel relied upon the absence of any further offending since being placed on bail, your early plea of guilty, the three days spent by you in police custody, the burden of a further period of imprisonment or confinement being disproportionate compared to non-indigenous offenders,[6] parity considerations with regards to the sentences imposed on your co-offenders, and your general rehabilitative progress and ongoing assistance and support from your father. Previous sentencing authorities dealing with s5(2H) and indeed the exceptional and rare threshold, highlight the overarching principle, that this is a high hurdle to clear in order to avoid the imposition of a mandatory custodial sentence. At the time this threshold was introduced, Parliament made it clear that this exception was intended to accommodate cases involving rare and unforeseen circumstances.[7]

[6]DPP v Djabmara & Turner [2023] VCC 826, Paragraphs [71]-[77]

[7] Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 27-8 (Robert Clarke, Attorney General)

51Having carefully considered the circumstances of your case, I have concluded that the exceptional and rare threshold is not met, as the circumstances are not wholly outside the ordinary factors typical of the relevant offence.  Whilst clearly your personal history is one of disadvantage, trauma and dislocation, such circumstances are sadly not uncommonly seen in cases of this nature.  Whilst your youth and psychological fragility certainly warrants close scrutiny in the context of the application of mandatory sentencing, I have concluded that your particular circumstances are not exceptional and rare.  Moreover, I have concluded that whilst you have not reoffended whilst subject to bail, your rehabilitative progress has otherwise remained fairly stagnant.  Notwithstanding the considerable efforts of cultural and other local support services, and the endeavours of Youth Justice, you have remained extremely reticent with regards to professional interventions, and you remain professionally unsupported in the community.  You have reported a troubling history with regards to your use of cannabis and methylamphetamine, and you have reported that your involvement in this serious offending was motivated at least in part by your drug usage.  Save for your self-report of reducing or ceasing your methylamphetamine usage in the weeks preceding this sentencing hearing, I remain unconvinced in the absence of any evidentiary material that you have made any progress with regards to your drug problem.  Given your problematic progress in the community in this regard, independent of the statutory thresholds to which I have referred, I have little confidence that you would be able to comply with the rigors of a Community Correction Order, notwithstanding that you have been found suitable for such an Order.

52Having regard to the circumstances of your case, I ordered that you be assessed for suitability for a Youth Justice Centre Order. As confirmed in the presentence report dated 24 June 2024, you have been found suitable for such an Order pursuant to s32(1) of the Sentencing Act 1991, on the basis that you have reasonable prospects for rehabilitation and you are particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.

Sentence to be imposed

53In all the circumstances, having regard to s5(2H) of the Sentencing Act 1991, and the parsimony principle, I have concluded that a sentence involving your confinement is warranted, and that the sentence will involve your placement in a Youth Justice Centre. Pursuant to s33 of the Sentencing Act 1991, every term of detention imposed on a young offender must be served concurrently unless otherwise directed.

54On Charge 1 on the indictment, armed robbery, you are convicted and sentenced to a Youth Justice Centre Order for a period of 16 months.

55On Charge 2 on the indictment, armed robbery, you are convicted and sentenced to a Youth Justice Centre Order for a period of 16 months.

56I order that these sentences be served concurrently, making a total effective sentence of 16 months in a Youth Justice Centre.

57Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of three days has been served by way of presentence detention and I order that this period be administratively deducted from your sentence.

58Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty to these offences but been found guilty at trial, I would have imposed a 24 month Youth Justice Centre Order.

59Finally, I make the disposal order sought by the prosecution with regards to clothing and weapons, and the forfeiture order in the sum of $185.

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