Director of Public Prosecutions v Bower
[2024] VCC 1095
•24 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-01657
Indictment No P11221559
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ETHAN BOWER |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 9 February 2024 and 17 June 2024 | |
DATE OF SENTENCE: | 24 July 2024 | |
CASE MAY BE CITED AS: | DPP v Bower | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1095 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – plea of guilty to one charge of armed robbery – pleas of guilty to two uplifted summary matters – one charge of possessing prohibited weapon without exemption or approval – one charge of committing indictable offence whilst on bail – whether juvenile detention is appropriate
Legislation Cited: Crimes Act 1958 s75A; Control of Weapons Act 1990 s5AA; Bail Act 1977 s30B; Sentencing Act 1991 ss32-35
Cases Cited:Worboyes v R [2021] VSCA 169; Phillips v R (2012) 37 VR 594; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43; R v Mills [1998] 4 VR 235
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sharp | Office of Public Prosecutions |
| For the Offender | Ms A. Sutherland | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
1Ethan Bower, on 9 February 2024 you pleaded guilty to the following offence:
Charge 1 – That you at Clayton in Victoria on 31 March 2023 robbed Obidul Haque of certain property, namely a mobile phone, car keys, and a vehicle, being a 2017 Toyota Camry sedan, registration ending 241, and at the time you had with you an offensive weapon, namely a knife.
The offence of armed robbery is contrary to s75A of the Crimes Act 1958 and carries a maximum penalty of 25 years' imprisonment or 3,000 penalty units.
Section 3(1)(da) of the Sentencing Act 1991 defines the offence of 'armed robbery' to be a Category 2 offence in respect of 'a person who is 18 years of age or more at the time of the commission of the offence' in circumstances where, among other matters:
'(iii)the offence was committed by the offender in company with one or more other persons'.
There is no issue that you were in company with one other person at the time of the armed robbery, and accordingly it is common ground that such offence is a Category 2 offence within the meaning of the Sentencing Act 1991.
Pursuant to s5(2H) of the Sentencing Act 1991, the court must impose a sentence of imprisonment (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with s44 of the Sentencing Act 1991), unless the court considers that an exception applies.
2Two summary charges were transferred to this court pursuant to s145 of the Criminal Procedure Act 2009. On 9 February 2024 you also agreed to have these matters heard before the court and pleaded guilty to these uplifted charges:
· Summary Charge 4 – that you at Glen Waverley on 5 June 2023 did possess a prohibited weapon without an exemption under s8B or an approval under s8C of the Control of Weapons Act 1990, namely a taser. Such offence is contrary to s5AA of the Control of Weapons Act 1990 and carries a maximum penalty of two years’ imprisonment or 240 penalty units.
· Summary Charge 5 – that you at Clayton on 31 May 2023 did commit an indictable offence, that is armed robbery, on victim Obidul Haque whilst on bail. Such offence is contrary to s30B of the Bail Act 1977 and carries a maximum penalty of three months’ imprisonment or 30 penalty units.
Circumstances of your offending
3Counsel for the prosecution tendered a document headed 'Summary of Prosecution Opening for Plea, dated 2 January 2024.'[1] I will not refer to all the matters set out in such document but do refer to the important aspects pertaining to your offending.
[1]Exhibit 1
4You were born in December 2004 and at the time of the subject offending were 18 years old. You are now 19 years old. The victim, that is the complainant in this matter, is Obidul Haque ('Haque'), who was 53 years old at the time of the subject offending. There was also a co‑offender in the matter who accompanied you at the time of the armed robbery and that person remains unidentified.
5Both you and Haque were known to each other prior to the offending, as you had both attended a security licence course together at Knights College in Dandenong.
6On 31 May 2023 you and Haque organised via text to meet at Haque’s residence. The course attended by both of you at Knights College was completed earlier that day.
7At approximately 8.40 pm on that day, you attended Haque’s address in the company of the unknown co‑offender.
8Immediately upon entering Haque’s premises you grabbed Haque by his jacket with your left hand while holding a large 30-centimetre kitchen knife in your right hand. Haque observed the tip of the knife was pointed towards him.
9You demanded the keys to Haque’s vehicle, being a 2017 Toyota Camry sedan, white in colour. Due to his level of fear, Haque immediately complied and handed you the keys to such vehicle.
10Furthermore, you then made demands for Haque’s mobile phone, which Haque refused to hand to you, causing him to pull away from you, while you were still physically restraining him. This resulted in a brief physical altercation taking place between you and Haque. The co‑offender then struck Haque to the head with a metal pole. The strike to the head caused a laceration to Haque’s head and caused bleeding.
11Haque was able to break free from you and ran into a nearby bedroom, where he closed the door behind himself and hid from you. You then, with the co‑offender, stole Haque’s vehicle, which was parked in the driveway, and fled the address. The vehicle was valued at approximately $24,000. Such events constitute Charge 1 on the Indictment.
12At the time of such offending you were on bail. Such circumstances give rise to uplifted Summary Charge 5.
13Mr Harris Hassan ('Hassan'), who was a roommate at Haque’s premises, immediately called Triple 0 and requested the attendance of police and an ambulance.
14During the armed robbery Hassan was in his bedroom and commenced audio-recording the incident on his mobile phone when he heard the victim was in distress. During the recordings, Haque can be heard screaming in fear.
15Haque was treated at the scene for a superficial laceration to his head, pain, discomfort and anxiety. No further medical treatment was required.
16You were arrested by police on 5 June 2023 at your home address. At that time a taser was located in a drawer desk during the search of your bedroom. Such taser is designed to look like a flashlight. Such circumstances give rise to uplifted Summary Charge 4.
17You were taken to the Oakleigh police station for interview where you provided a mostly 'no comment' interview.
18There is no pre-sentence detention other than a matter of day. I will come to that later.
19Counsel for the prosecution sought a disposal order pursuant to s9 of the Control of Weapons Act 1990 in relation to the taser, which was not opposed.
Chronology of events
20Counsel for the prosecution set out a chronology of important events leading up to your plea commencing on 9 February 2024. I set out such chronology as follows:
CHRONOLOGY OF EVENTS
Date
Event
31 May 2023
Offending occurs
5 June 2023
You are interviewed and charged
Filing hearing at the Melbourne Magistrates Court
6 June 2023
A further filing hearing at the Melbourne Magistrates Court
28 August 2023
First committal case conference at Melbourne Magistrates Court.
Adjourned by crown to consider a defence offer.
20 September 2023
Second committal case conference at the Melbourne Magistrates Court.
Matter resolved and you are committed. Pleas of guilty were entered.
9 February 2024
Plea at Melbourne County Court commenced.
Application for adjournment
21On 9 February 2024, those acting for you applied for an adjournment to allow for three matters to occur: the first, that you be assessed for a community correction order; the second, for you to undergo an examination by a neuropsychologist with such report being made available to the court; and thirdly, that there be an order pursuant to s32(1) of the Sentencing Act 1991 that you be assessed as to your suitability for a youth justice centre order.
22Ultimately that application was granted by the court, bearing in mind that any evidence from the neuropsychologist may have been relevant to whether or not any of the exceptions set out in s5(2H) of the Sentencing Act 1991 apply. Furthermore, it was submitted that given your age it would be of assistance to have a youth justice report, bearing in mind that you could be potentially suitable for youth justice incarceration.
Matters occurring on 17 June 2024
23On 17 June 2024, the following reports were available:
(a) report from neuropsychologist, Ms Anna McLaren, dated 29 March 2024;[2]
(b) pre-sentence report, suitability for a youth justice centre order, dated 14 June 2024;[3]
[2]Seemingly, through inadvertence, this report was not tendered and I direct it be so tendered and marked as Exhibit “I”.
[3]Similarly, such report was also inadvertently not tendered and I direct that it be tendered and marked as Exhibit “J”.
24On that day, that is 17 June 2024, your counsel declared that she did not seek to rely on any of the exceptions contained in s5(2H) of the Sentencing Act 1991. Accordingly, there was no issue that you had to be incarcerated and thereafter some of the plea concerned whether incarceration should be served in an adult prison or in the juvenile justice system.
Your criminal record
25Counsel for the prosecution tendered your criminal record dated 13 December 2023.[4] I note the following:[5]
(a) on 23 June 2022, at the Ringwood Children’s Court, you were found guilty of the following offences:
[4]Exhibit 2
[5]In particular, I have highlighted that offending which is the same type of offending as your subject offending.
26I will pause there and say this: I have listed the offences and I have underlined those which may have or do have relevance to the subject offending, and I will just say 'underlined' if that is the case.
·Aggravated burglary with a person present.
·Theft; stating a false name when requested.
·Two charges of committing an indictable offence while on bail.
·Attempt to commit an indictable offence.
·Theft from a shop and fraudulently using a registration label.
·Four charges of theft of a motor vehicle; two charges of being a learner driver without supervision; forging a registration label.
·Refusal or failure to state your name and address.
·Possessing a controlled weapon without excuse.
·Possessing a prohibited weapon without exception or approval.
·Unlawful assault.
·Three charges of dealing with property suspected of being the proceeds of crime.
·Two charges of negligently dealing with the proceeds of crime.
·Theft and dishonestly assisting in the retention of stolen goods.
No convictions were entered in relation to any of the offending and you were placed on a good behaviour bond extending to 14 December 2022, the bond being in the sum of $1,000 and for you to be of good behaviour during the period of the bond;
(a) on 15 February 2023, again at the Ringwood Children’s Court, you were found guilty of:
·Four charges of burglary.
·Seven charges of theft of a motor vehicle.
·Four charges of being a learner driver without an appropriate supervisor.
·Two charges of aggravated burglary with a person present.
·Five charges of theft.
·One charge of theft from a shop.
·Criminal damage by fire (arson).
·Two charges of being a learner driver without appropriate supervision.
·Five charges of indictable offence while on bail.
·Three charges of handling, receiving and disposing of stolen goods.
·Attempt to commit an indictable offence.
·Dishonestly undertake the retention of stolen goods.
·Carrying a prohibited weapon without exemption.
·Possession of a prohibited weapon without exemption.
·Dealing with property suspected of being the proceeds of crime.
·Possessing an imitation firearm without exemption.
·Possessing a drug of dependence (hallucinogen).
·Possessing cannabis.
·Breach of a good behaviour bond made on 23 June 2022.
·Aggravated burglary with a person present.
·Two charges of theft, possession of a controlled weapon without excuse.
·One charge of stating a false name when requested.
·Two charges of committing an indictable offence while on bail.
·Attempt to commit an indictable offence.
·Theft from a shop.
·Two charges of possessing a prohibited weapon without exemption or approval.
·Four charges of theft of a motor vehicle.
·Three charges of dealing with property suspected of being the proceeds of crime.
·Two charges of negligently dealing with the proceeds of crime.
·Unlawful assault.
·Two charges of being a learner driver without supervision.
·Forging a registration label; dishonestly assisting in the retention of stolen goods.
·Refusal or failure to state your name and address.
Again, no convictions were entered in relation to any of the offending and you were sentenced to a youth supervision order, commencing on 17 February 2023 for a period of 18 months, ending on 14 August 2024. Such order contained all core supervision orders, together with the following special conditions: to engage in offence-specific intervention as directed by Youth Justice; to engage in drug and alcohol counselling as directed by Youth Justice; to engage in a structured day program as directed by Youth Justice and to abide by all lawful directions of Youth Justice.
27You appealed the decision made by the magistrate on 17 February 2023 and that matter came before the County Court on 6 June 2023, at which time the appeal was abandoned and struck out. I was informed by your counsel, because you had constituted an appeal in relation to the findings of guilt made by the Children’s Court at Ringwood on 15 February 2023, the supervision order was held in abeyance until the appeal had been completed. It is to be remembered that the subject offending on 31 March 2023 occurred approximately six weeks after the making of the order at the Ringwood Children’s Court.
28It is also to be noted that on 6 June 2023, you appeared before the Melbourne Magistrates Court in relation to the subject offending and was placed on adult supervised bail. I refer to the supervised bail report dated 7 February 2024.[6] The terms of your adult bail included no contact with co-offenders, residing at your mother’s address, not going within 200 metres of an address in Clayton, not to contact witnesses for the prosecution other than the informant, to not leave your place of residence between the hours of 9.00 pm and 7.00 am, except in the company of a Youth Justice worker, or their nominee, or your mother, and to be present at the front door of the residence during curfew hours upon request of any member of the Victoria Police. Also, you were required to comply with all lawful directions at Youth Justice:
(a) in the report it is noted that you had attended 19 out of 20 scheduled Youth Justice office-based appointments and was considered to engage positively in sessions focused on your bail compliance, sense of identity interpersonal relationships, employment goals and mental health. In particular, I refer to the letter from Ms Lorina Pambi, case manager, Youth Justice Southeastern Metropolitan Region, dated 8 February 2024.[7] That email was clearly sent through days prior to you being remanded in custody on 11 February 2024.
(b) it was recorded by Youth Justice that you remained suitable for adult supervision should your matters be unable to be finalised at court.
[6]As noted later in these Reasons, such report was tendered by those acting for you and is marked as exhibit “B”.
[7]See exhibit “G”, wherein she confirms that you commenced the Breaking of the Cycle program on 3 October 2023 at Caraniche and has attended seventeen of the nineteen scheduled appointments since commencing the course.
29Counsel for the prosecution also tendered a document relevant to offending in Queensland.[8] In particular, it was noted that on 22 February 2019 you were found guilty of three charges of dealing with shop goods, with no conviction recorded, and reprimanded in relation to such offences.
[8]See exhibit 3
30Your counsel informed the court that you were remanded in custody on 11 February 2024 for different offending alleged to have occurred on 6 February 2024. Furthermore, your counsel informed the court that such alleged offences involved burglaries and stealing large numbers of cigarettes from supermarkets. Apparently the new alleged offending is subject to a contested hearing on 9 September 2024. You continue to be on remand for that offending.
31You were initially remanded to the Melbourne Remand Prison and on 21 February 2024 you were transferred to the Ravenhall Correction Centre, where you remain.
Your personal circumstances and background
32Your counsel tendered the following documents:
(a) document headed 'Brief Outline of Submissions' dated 6 February 2024;[9]
(b) document headed 'Supervised Bail Progress' dated 7 February 2024;[10]
(c) letter from Ms Amber Simson, a youth AOD outreach clinician, dated 15 December 2023;[11]
(d) report from the psychologist, Ms Christine Harding, dated 30 January 2024;[12]
(e) document headed 'Forensicare Mental Health Advice and Response Service Confidential Mental Health Summary' dated 5 February 2024;[13]
(f) reference from your mother, Ms Maryann Bower, dated 6 February 2024;[14]
(g) email from Ms Pambi, case manager for Youth Justice South East Metropolitan Region dated 6 February 2024;[15]and
(h) psychiatric report of Dr Adam Deacon dated 3 June 2024.[16]
[9]Exhibit “A”
[10]Exhibit “B”
[11]Exhibit “C”
[12]Exhibit “D”
[13]Exhibit “E”
[14]Exhibit “F”
[15]Exhibit “G”
[16]Exhibit “H”
33Partly based on the documents tendered and partly based on submissions made by your counsel, I note the following:
· you informed the consultant psychiatrist, Dr Deacon ('the psychiatrist'), when he interviewed you by way of video on 30 May 2024,[17] you understood that Your parents had only briefly known each other prior to having a 'one night stand' leading to your conception. Over the years you have lived with your mother, your partner aged 19, and two younger half-siblings aged 12 and 14 in Glen Waverley. You could not recall your father ever having a role in your life, although you do recall meeting him when aged 10, but contact since then has been very limited with your last contact several years ago.
[17]See Exhibit “H”, report of Dr Deacon, dated 3 June 2024.
· Your mother has had several partners throughout your life, with you not identifying with any of them like a stepfather. Your mother worked in different roles, including finance management and merchandising, but such employment was unstable. You described that you had been very close to your mother, describing your relationship more akin to 'good friends'. You stated that being 'motherly' did not come naturally to your mother and that you were her confidante and emotional support when she experienced problems, and also provided financial support from age 13 when you got your first job assisting your mother at an electronics company.
· You attended four or five primary schools and four secondary schools due to your mother frequently moving from rental properties. You commenced truanting in secondary school and informed the psychologist that you were 'irresponsible and uncommitted' and had been suspended on multiple occasions.
· You felt misplaced amongst your peers in primary school, being bullied for being overweight, resulting in body-image issues. Also, you were directly traumatised during a school excursion in Grade 2 or 3 at Scienceworks. You had entered a toilet when an older man also entered and pulled out his penis and asked you to perform oral sex. You were shocked and fearful and remained scared to enter public toilets thereafter. You felt more confident in secondary school as you lost weight and developed friendships with most of your peers. You considered yourself a capable student if you applied yourself but was mostly disinterested and struggled to focus in class and was regularly distracted.
· You left school at the completion of Year 11 at Oakwood Secondary School and thereafter worked at JD Sports at Chadstone and ARB 4x4 Accessories, prior to completing a security licence course, with the hope to work in the gym/fitness industry in the future.
· You were exposed to domestic violence during your childhood having witnessed your mother being assaulted by a partner and you heard her crying while being sexually assaulted. You felt helpless, anxious and fearful during these times.
· You formed a relationship with your current partner when she was 14 and noted the relationship had been strained at times due to poor communication.
· You commenced using cannabis at age 13 and have consistently used such drug, using up to 14 grams per week, and you appreciate you have developed a significant cannabis dependency.
· You had previously misused benzodiazepines prior to a deliberate overdose in a suicide attempt in August 2021 in the context of compounding stress associated with relationship issues with your partner and you feeling burdened financially supporting your mother.
· You had previously misused benzodiazepines prior to the overdose in 2021 and also had experimented with ecstasy and magic mushrooms. Your alcohol consumption had been moderate.
· Prior to the subject offending you had previously committed aggravated burglaries and motorcar thefts for financial gain to support your family.
· You described the circumstances of the offending to the psychiatrist, who recorded:
'[You] met an older man at the security license course [you] attended. The older man tried to befriend [you], including offering to buy [you] a passport and take [you] to his home country in Bangladesh.
[You] said the older man asked [you] to stay over at his house one week prior to the offence. [You] felt uncomfortable when the older man pressured [you] to stay over by offering [you] money and put his hand on [your] leg. The older man also asked [you] to sleep with him at his house. [You] interpreted the request to reflect a sexual advance.
[You] said [you] went to the bathroom at the security course venue. The older man followed [you] without [you] knowing.
[You] said [you] exited the toilet cubicle to see the older man standing outside the door. Mr Bower said the presence of the older man triggered traumatic memories from [your] childhood.
[You] felt angry. [You] thought ‘that is the last straw’. [You] contacted [your] partner who suggested [you] notify the police. [You] said [you] didn’t call the police, as felt too angry.
[You] returned to the classroom. [You] offered to come to the older man’s house. The older man shared his address.
[You] said [you] attended the older man’s house with the intention of confronting him. [You] said [you] felt angry from the moment [you] arrived. [You] said [you] asked the older man, ‘Do you think this is right?”. The older man initially smiled; interpreted by [you] to reflect him thinking it was okay to be intimate.
[You] confirmed that [you] took a knife to the older man’s house. [You] said [you] decided to take a knife as [you were] fearful of older men. [You were] also concerned that [you] may not be as strong as the older man, so [you] took the knife in case [you] needed to defend [yourself].
[You] said [you] engaged in push and shoving the older man. [You] said [you] felt worried, so [you] grabbed [your] knife. [You] said [you] hit the older man with the knife but not using the blade.
[You] said [you] did not steal the older man’s car. [You] admitted [you were] in the company of a peer.
[You] said [your] decision to attend the older man’s house and engage in an assault was driven by [your] belief that [you] would not allow anyone to stand over [you].
[You] said [you] had reflected and reconsidered [your] decision. [You] said that [you] had since learned to be humble and avoid violence to prove a point. [You] said [you] would not repeat the action if [you were] in a similar circumstance. [You] thought [you were] ‘cocky’ at the time of the offence. [You] said [you] should have reported [your] concerns to the police.'[18]
[18]See exhibit “H”, report of Dr Deacon, dated 3 June 2024, pages 3-4
The psychological evidence
34I refer to various opinions from the psychologist, Ms Christine Harding; the consultant psychiatrist, Dr Adam Deacon; the clinical neuropsychologist, Ms Anna McLaren and from the senior psychologist, Ms Gemma Stephenson:
(a) Psychological assessment report of Ms Christine Harding[19]
[19]See exhibit “D”
Your solicitors referred you to Ms Harding, following which she conducted a brief phone call with you prior to a session with you on 3 January 2023. The purpose of the referral was to explore and assess your mental state and the factors which may have led to your offending behaviour, to develop a psychological assessment and to provide recommendations to assist and mitigate the risk of further offending.
Ms Harding noted that while cognitive assessment was not undertaken, there was no evidence of intellectual disability or thought disturbance and your responses appeared congruent with the topics discussed. The psychologist obtained 'background information' involving your family, schooling, employment and medical and mental health histories. In particular, she also obtained a history of your substance use and psychological history.
Ms Harding formed the opinion on the basis of such material that:
'[You present] as a naïve young man, small in stature, with a low sense of self-identity, an inability to set personal boundaries, articulate [yourself] appropriately or consider [your] own needs. There are a number of factors leading to [your] presentation, however, most significantly are [your] historical lack of a positive male role model, [your] innate ability to put loved ones’ needs before [your] own, and the lack of a pro-social peer network.
[You] likely [present] with attention deficit hyperactivity disorder, which is currently provisionally diagnosed (according to screeners) and therefore untreated. Untreated in teen males, ADHD further predisposes them to significant impulsive decision making, deficits in consequential thinking skills and emotion regulation difficulties.
Given the above factors, [your] young age and lack of age-appropriate social skill development, [you] will be particularly susceptible to the influence of older prisoners if placed in custody due to impressionability, impulsivity and immaturity.
Unfortunately, as we know with vulnerable young men, once they find their 'tribe' in a custodial environment, they often feel a sense of safety due to the predictability and security that the custodial environment espouses, alongside like-minded others.
[You appear] to have committed to an encouraging trajectory from an occupational perspective, and positively, [you have] been compliant with treatment, Youth Justice, job providers, youth mentoring and alcohol and other drug counselling. These appear to have been factors which assist to mitigate risk of further offending and have afforded [you] the opportunity to build personal skills.
[You are] not known to have associated with an anti-social peer network previously, hence the custodial environment would likely be significantly destabilising for [you] from a social, emotional and psychological perspective. It is also unlikely that [you] would be supported by the agencies that [you] currently [are] in the community, hampering [your] current positive trajectory.
With consideration of the above, it is [Ms Harding’s] clinical opinion that [your] experience of adult prison or youth detention would be substantially and materially greater than the ordinary burden of risks of imprisonment.'[20]
[20]See exhibit “D” under the heading “Opinion”.
Ms Harding also expressed the opinion that you would be disadvantaged by a period of incarceration given your variable mental health challenges, likelihood of undiagnosed ADHD and dedication to the role within your family.
It is to be noted that Ms Harding assessed you prior to you being remanded on 11 February 2024.
(b) The evidence of the consultant psychiatrist, Dr Adam Deacon[21] I have previously referred to Dr Deacon as 'the psychiatrist.'
[21]See exhibit “H”
The psychiatrist was requested by your solicitors to make an assessment of your psychiatric state. The psychiatrist interviewed you by way of video conference on 30 May 2024, at which time you were on remand due to the alleged new offending.
At that time the psychiatrist noted you presented as 'a pleasantly mannered and openly engaging man dressed in prison greens … and [your] speech was spontaneous, clear and coherent'.[22] The psychiatrist obtained histories in relation to your personal life, relationships, psychiatric, drug and alcohol and forensic history. Furthermore, you gave, as already has been recorded, an account of the offending. On the basis of this information the psychiatrist formed various opinions and they are set out in his report to which I now refer to. I am not going to read all that, ladies and gentlemen, it is reported there and I will not repeat it.
[22](Ibid) at page 1
'1. [You are] a 19-year-old man. [Your] developmental history is marked by the absence of [your] father and exposure to significant domestic violence between [your] mother and partners. [You have] lacked a consistent positive adult role model. [You appear] to have maintained a close and secure relationship with [your] mother, but it has also been characterised as being more akin to a friendship. [You have] likely been parentified to the extent that [you have] been [your] mother’s confident and emotional support, but also a financial provider from early adolescence to ensure [your] mother and young siblings were well supported. [Your] dutiful financial support has been accompanied by a burden of responsibility. [You have] also had a prolonged relationship with [your] partner since age 14. [You have] recognised that [your] commitment to [your] partner has possibly come at the expense of a stunting of [your] personal development.
2. [You] significantly experienced the adversity of a traumatic incident when [you were] a young child on a school excursion. [You were] directly exposed to an adult who propositioned [you] to engage in a sex act. This incident was understandably shocking and confusing. It left [you] feeling very vulnerable and unsafe. It also contributed to [you] feeling the need to ensure [you were] safe and protected, but also appears to have stirred the belief that if the need arose, [you] would engage in violence to ensure [you] remained safe. Unresolved childhood trauma is often accompanied by unhelpful cognitive scripts relating to safety and security. [You] experienced this traumatic incident on the background of significant childhood trauma in the form of exposure to domestic violence that involved [your] mother as a victim.
3. [You] struggled to successfully complete secondary school. [You were] bullied for being overweight in primary school. [You] began to truant in secondary school. [You] lacked the capacity to sustain interest and motivation in class. It is unclear but possible that [you] had some difficulties with sustaining attention that may reflect undiagnosed ADHD. [You] managed to obtain employment in retails (sic) roles prior to committing to completing a security course with a view to working in security. [You have] lately developed an interest in the fitness industry.
4. [You have] a history of cannabis dependency. [You have] notably felt much clear in [your] mind since ceasing cannabis following [your] detention in custody.
5. [Your] formal psychiatric history is limited to an episode of depression and associated suicidality (including an overdose suicide attempt) in 2021. [You] reported that [you] recovered well and [you haven’t] been troubled by significant depressive symptoms since. [You have] been stressed in [your] relationship and in response to feeling responsible to financially support [your] family.
6.[You] provided a reasonably detailed account of the offence. [You] reported that the victim of [your] offence unnerved [you] in the context of propositions [you] interpreted to reflect inappropriate sexual advances. [You] said [you] decided to attend the victim’s property to confront him, but in the context of triggered anger, engaged in an assault. [You] admitted to having a knife in [your] possession for protection rather than for the intention to use it. [You] admitted to using the knife to assault the victim, but not with the blade. The offence can be understood to relate to triggered anger stemming from unresolved childhood trauma. There is no identifiable nexus between the offence and a mental condition, albeit background childhood trauma is contextually relevant. If not for [your] childhood trauma, [you] may have responded to the perceived or actual sexual advances differently. [You] would be advised to engage in psychological work to address [your] unresolved childhood trauma.
7. [You appear] to be coping reasonably well in custody. [You have] not experienced a decline in mental health whilst remanded. [You have] benefited from cannabis detoxification.”;[23]
[23]See exhibit 13 at pages 5-6.
(c) The report of the clinical neuropsychologist, Ms Anna McLaren[24]
[24]Exhibit “I”
Ms McLaren assessed you at the request of your solicitors on 13 March 2024, who requested a neuropsychological assessment to be undertaken to determine your level of cognitive functioning, the presence of any neuropsychological condition and the impact of any cognitive impairment, together with some other specific questions.
Ms McLaren put you through various tests over the course of her assessment and ultimately came to various opinions based on those tests, and in part on the various histories she obtained from you.
I refer to some of the specific questions raised by your solicitors. I will refer to this, I think this is important:
(i)Question 1:
'What is [your] cognitive functioning and [do you] have any diagnoses including ADHD or other cognitive impairment?'
'[Your] performances on current neuropsychological assessment indicated that [your] overall level of intellectual functioning is within the low average range. Strongest performances (average or above) were achieved in word reading, immediate auditory attention span, working memory span, sequencing span (high average), mental arithmetic, visuo-constructional skills, non-verbal reasoning, speed of information processing on formal measures, on the Trail Making Test Part A, on all trials of the Stroop (e.g. Word, Colour, and Colour-Word), copy of a complex visual figure, immediate recall of visual information (superior), delayed visual memory, visual recognition memory (high average or above), cued delayed recall of unstructured verbal information and semantic verbal fluency, whilst [you] did not show an interference effect on the Stroop, and qualitatively [your] visual planning and organisation was good.';[25]
[25]See exhibit “I” at page 17
(ii)Question 2:
'[Were you] suffering from any condition at the time of the offending behaviour, how long had [you] had the condition and is it of a temporary or permanent nature?'
'As noted in response to Question 1, [your] current cognitive profile does not indicate the presence of a neuropsychological condition, although the possibility of an underlying ADHD or seizure disorder (which may have been present at the time of the offending) cannot be entirely ruled out. However, it is noted that [you] reported you had used marijuana an hour prior to the current offending which would likely have temporarily compromised his cognitive functioning at the time.';[26]
[26]See exhibit “I” at page 18
(iii)Question 3:
'If [you have] impaired mental functioning, is there a causal connection between this and the offending behaviour:
a.Namely, would [your] impaired mental functioning have impaired [your] ability to exercise appropriate judgement or impair [your] ability to appreciate the wrongfulness of conduct?'
'[Your] weakness in vocabulary [suggests you] may have some difficulty with understanding more complex verbal/written material which may in turn result in some misunderstanding or misinterpreting of more complex information [you read] or is told. [You] may also have difficulties with expressing [yourself] (i.e. [your] wants, needs, and emotions) through verbal means, and hence may be prone to expressing [yourself] through more physical means. Additionally, [your] weakness in understanding the rules of social conventional behaviour suggest [you] may be somewhat limited in [your] comprehension of more complex social rules and what behaviour is considered socially acceptable in more complex situations. However, despite these weaknesses, [your] current performances on other tasks indicated adequate reasoning and judgement skills, suggesting ability to exercise appropriate judgement and appreciate the wrongfulness of [your]conduct.
As noted in response to Questions 1 and 2 above, although [your] current neuropsychological profile indicates subtle weaknesses in aspects of [your] higher level attentional performances, the majority of these remain within the low average range and would not be considered to affect [your] daily functioning and hence to have a causal connection to [your] offending behaviour. It is, however, acknowledged that [you] reported having used marijuana approximately an hour prior to [your] current offending which may have temporarily compromised [your] cognitive functioning at the time.';[27]
[27]See exhibit “I” at page 19
(iv)Question 4:
'Given [your] youth, [are you] susceptible to the influence of older prisoners if placed in an adult custody due to [your] impressionability or immaturity?'
'For clear understanding of whether [your] impressionability or immaturity would result in [you] being susceptible to the influence of older prisoners if placed in adult custody, expert opinion from a clinical or forensic psychologist/psychiatrist is recommended, and it is noted that Ms Harding discussed this in her report dated 30 January 2024, including commenting that [you] presented as ‘a naïve young man…with a low sense of self-identity’, and ‘[you] will be particularly susceptible to the influence of older prisoners if placed in custody due to impressionability, impulsivity and immaturity’.
From a neuropsychological perspective, as discussed in response to Question 3 above, [your] difficulties in aspects of [your] verbal intellectual skills (i.e. vocabulary and understanding of the rules of social conventional behaviour) suggest [you] may be prone to expressing [yourself] through more physical means which may place [you] at increased risk of harm to [yourself] or from others. Additionally, it is understood that [you have] had no prior prison terms with [your] only prior period in custody being in isolation at Parkville for three days when age 17 years. Therefore, given this is [your] first substantial period in a prison setting, [you] may be at risk of learning maladaptive behaviours from other prisoners.';[28]
[28]See exhibit “I” at page 19
(v)Question 5:
'What are [your] prospects of rehabilitation, and what, based on the neuropsychological findings would best facilitate [your] rehabilitation? In particular, would [your] rehabilitation prospects be improved if [you] were placed in a youth detention facility, rather than adult custody?'
'As noted in response to Question 1 above, [your] current performances do not suggest the presence of a neuropsychological condition requiring rehabilitation … .
…
It is considered unlikely that placement in either a youth detention facility or adult custody would directly impact on [your] neuropsychological functioning. However, if [your] mental health was to deteriorate in either setting some temporary deterioration in [your] cognitive functioning may be seen.';[29]
[29]See exhibit “I” at page 20
(vi)Question 6:
'Based on the findings, would [your] mental illness make [your] experience of prison substantially and materially greater than the ordinary burden or risks of imprisonment?'
'During current assessment [you] expressed a dislike of being in prison due to ‘the types of other people’ in the custodial setting. Although [you] also reported 'lots of stress relief' whilst in prison due to having time away from [your] usual community family pressures, [you] added that being in prison is 'not what I want'. [You] also replied it 'will be very shit and unfortunate situation' when asked [your] thoughts on having to remain in prison for longer, although commented 'but if I have to I would 'keep busy' by completing courses and work.
As noted in response to Question 4 above, [your] weaknesses in vocabulary and understanding of the rules of social conventional behaviour may result in increased risk of expressing [yourself] through more physical means, and hence harm to [yourself] or from others. However, [your] performances on other tasks suggest adequate ability to reason through information and to appropriately judge situations, and [your] current performances do not suggest the presence of a neuropsychological condition that would be expected to deteriorate as a result of being imprisoned. Nevertheless, if [your] mental health was to deteriorate in a prison setting, some corresponding temporary decline in [your] cognitive functioning may be seen. Additionally, as noted in response to Question 1 above, it is recommended that [you] be referred for review with a neurologist to further investigate [your] seizure-like episodes and ascertain if any treatment is required in order to avoid further episodes and/or deterioration in function, whilst assessment with a Psychiatrist/Clinical Psychologist/Paediatrician is also recommended to clarify if [you meet] diagnostic criteria for ADHD, and any associated treatment recommendations.'[30]
(d) The report of the senior psychologist, Ms Gemma Stephenson, dated 5 February 2024[31]
You were referred to the mental health advisory response service by your solicitors. Ms Stephenson, a senior psychologist, noted that there were three registrations with Area Mental Health Services ('AMHS') in Victoria since 2021:
ꟷ 13 September 2022, Orygen Youth Health, Forensic Youth Mental Health Services;
ꟷ 6 June 2021, Eastern Health Child and Adolescent Mental Health Services;
ꟷ 31 August 2021, Box Hill Hospital (Central East Area Mental Health Services).
Ms Stephenson also records that there were no previous inpatient psychiatric admissions, nor any involuntary or compulsory assessment, with diagnoses at the time being for suspected mental health behavioural disorders with a finding of moderate depressive episode and one episode of severe depressive episode.
Ms Stephenson noted that you were not a current client at the time of AMHS and that your most recent contact was with Eastern Health Child and Adolescent Mental Health Services by the access team on 19 September 2023.
[30]See exhibit “I” at pages 20-21
[31]See exhibit “E”
References
35Your mother, Ms Maryann Bower, has provided a reference dated 6 February 2024.[32] In that reference she describes you as being the second child of four children. She comments that on the day of your offending you acted 'purely on [your] emotions that day' and goes on to state:
'This is not like [your] character, [you are] not a violent person at all. [She has] total confidence and trust in [you] that [you] will never under any circumstances again act on [your] emotions, this was a one-off incident. ... .
[You are] a confident driven very young man with life goals. [You have] worked … since [you were] able to get a job at the age of 15, [you have] always helped and supported [your] half siblings when needed, [you] and [she] have also helped each other a lot with [her] elderly parents, [her] mother who has dementia (aged 86) and this puts a lot of pressure on you and her, and also you are helpful with [her] 91 year old father, so [you and she] help a lot in their day-to-day routine.
[You have] never had [your] father in [your] life from day one, it's just been [you and herself] along with the support of [her] parents for [you] growing up, not having [your] dad around [you] had always spent that quality time with [her] father and had built that bond with him.
…
[You are] currently enrolled in a course which is Certificate III in Health & Fitness which starts on the 19 February this year and [you are] consistently working on [yourself] every day to better [yourself] for a brighter future.'
It is to be noted that seemingly such reference, clearly prepared for the first plea hearing on 9 February 2024, was written, as events turned out, not long before you were remanded in custody in relation to the new offending.
[32]See exhibit “F”
Matters in mitigation of your sentence
36Your counsel submitted that the following matters are relevant in mitigation of your sentence:
(a) Your early plea of guilty
It was submitted that you pleaded guilty at the earliest opportunity and indeed the prosecution accepts such situation.
Furthermore, it was submitted that your plea of guilty has significant utilitarian value in that it ultimately saved resources and the cost of a trial and also, in particular, obviated the need for the victim of your offending to give evidence in a court case.
I accept that on the material before me you did enter an early plea of guilty which did have significant utilitarian value, not least being that the complainant would not be required to give evidence at a trial.
Furthermore, as accepted by counsel for the prosecution, the plea of guilty was entered into at such a time that the impact of the COVID-19 pandemic affected the administration of justice and that the principles enunciated in Worboyes v R[33] have application.
[33][2021] VSCA 169
Furthermore, your counsel submitted that such an early plea demonstrates you taking responsibility for your actions, a willingness to facilitate the course of justice and remorse in relation to your criminal offending. Although I accept such a plea does demonstrate taking responsibility for your actions and a willingness to facilitate the course of justice, it is always a matter for the presiding judge to come to a view as to whether the plea does demonstrate any remorse.[34] I consider that you have demonstrated little remorse in relation to the subject offending.
[34]See Phillips v R (2012) 37 VR 594, in particular (per Redlich JA and Curtain AJA)
(b) Youthful offender
Your counsel submitted that bearing in mind that you were only 18 years at the time of the subject offending, you must be considered a youthful offender.
In particular, your counsel referred to the well-known decisions of, primarily, R v Mills[35] and, to a lesser extent, Azzopardi v R; Baltatzis v R; Gabriel v R.[36]
[35][1998] 4 VR 235
[36](2011) 35 VR 43
In essence, these decisions fundamentally stand for the principle that the youthfulness of an offender, particularly a first offender, should be a primary consideration for a sentencing court where the matter appropriately arises. In the case of a youthful offender, rehabilitation is usually far more important than other sentencing considerations, in particular general deterrence, because the punishment may in fact lead to further offending. Furthermore, it is considered that a youthful offender, properly identified, is still maturing and can be rehabilitated and deterred from further crime.
It is to be noted that various decisions in this area also make clear that youth should be balanced against the seriousness of the offending. In this respect, I refer to Azzopardi,[37] wherein it is stated:
[37](Op cit) at paragraph [44]
'… where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating factors of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.'
Your counsel further submitted that given the circumstances in this matter, significant weight should be placed on rehabilitation and less weight placed on the principles of general and specific deterrence. In this respect it was submitted that your offending was not at a level of seriousness where the principles relating to youth sentencing should be displaced. Your counsel made reference to the decision of DPP v Milson,[38] wherein the court commented that protection of the community is ultimately best served by the rehabilitation of an offender.[39]
[38][2019] VSCA 55
[39]See Milson (op cit) at paragraph [71]
After a consideration of the material before the court, I consider that clearly you are a youthful offender and the principles enunciated in R v Mills[40] and Azzopardi[41] have application. However, I also consider that given the seriousness of the offending and indeed your previous similar offending, such principles should be somewhat slightly diluted, consistent with the comments made in Azzopardi[42] set out above;
[40]Op cit
[41]Op cit
[42]Op cit
(c) Your prospects of rehabilitation
Your counsel submitted that your prospects of rehabilitation are 'good' for the following reasons:
(i)you had been engaging well with the Youth Justice Supervised Bail Program since being granted bail on 5 June 2023, leading up to your recent remand for the alleged subsequent offending;
(ii)reference was made to Exhibit G, that being the letter from the case manager, Ms Lorina Pambi, wherein she confirms that you commenced the Breaking the Cycle program on 9 October 2023 and attended sessions twice weekly, and overall attended 17 out of 19 scheduled appointments since 3 October 2023 and engaged 'positively';
(iii)your counsel notes that you have strong support from your mother, long-term partner and siblings. In this respect I refer to Exhibit F, being the reference supplied by your mother;
(iv)your counsel also refers to the opinion of the psychologist, Ms Harding, who opines that:
'… [you appear] to have committed to an encouraging trajectory from an occupational perspective and positively [you have] been compliant with treatment, Youth Justice, job providers, youth mentoring and alcohol and other drug counselling. These appear to have been factors which assist to mitigate risk of further offending and have afforded [you] the opportunity to build personal skills.';[43]
(v)counsel also submitted that during your engagement with treating services you have developed insight into your offending behaviour and demonstrated strong motivation to address the reasons for your offending.
[43]See exhibit “D” at page 8 under the heading “Opinion”
I accept that the matters raised by your counsel do suggest you have made some effort to rehabilitate yourself, which is encouraging. However, bearing in mind what has happened in the past and indeed the nature of your offending, I consider that your prospects of rehabilitation are 'guarded'.
37More generally, your counsel, although conceding that the armed robbery must have been 'frightening' for the complainant and also involved a degree of planning, the bringing of the knife to the house and being accompanied by a co-offender, it was submitted such offending was unsophisticated and you were not wearing a mask, bearing in mind that the complainant knew you from the course. Such offending was always going to be detected and reflected your immaturity and maladaptive way of responding to a perceived threat, that is, the perception that the complainant was making sexual advances towards you.
38Of course, your counsel pointed out that although armed with a knife, which was submitted to be less serious than a firearm, the knife never made contact with the complainant, although it must be said it was in close proximity, with the knife point pointing at him. Any injury which the complainant suffered was delivered by the co-offender, and in any event required little or no medical attention.
39Your counsel also submitted, correctly in my view, that the two uplifted summary matters, that is uplifted Summary Charge 4, involving you being in possession of a taser (designed to look like a flashlight) and uplifted Summary Charge 5, that is, being on bail when you committed the armed robbery, are far less serious offences than the armed robbery. Your counsel submitted that a fine would be an appropriate sentence in relation to these matters.
The position of the Prosecution
40Counsel for the prosecution tendered a further document headed 'Outline of Prosecution Submissions', dated 7 February 2024.[44] Of course such written submissions were made before you were remanded in custody on 11 February 2024 for alleged further offending.
[44]See exhibit 4
41Counsel for the prosecution noted that in assessing the objective gravity of the offending involving the armed robbery, the following features are noted:
(a) the offending involved the use of a 30-centimetre kitchen knife;
(b) the offending was in company;
(c) the offending occurred in the home of the victim after you were invited there as a guest;.
(d) the offending appears to be premeditated in that you organised to attend the complainant’s home and made arrangements for another offender to attend the home with you;
(e) you abused the perceived friendship of the complainant to commit the offence;
(f) although there was no victim impact statement, the complainant was extremely scared at the time of the offence, as is made clear from the taped recording of his screams.
42It was further submitted that you should be viewed as the primary offender in the matter, having orchestrated the offending and abused the relationship with the complainant to complete the offending. Although accepting that you were not responsible for the strike to the head of the complainant causing bleeding (that being done by the co-offender), it was noted that such event took place during some degree of physical altercation between you and the complainant.
43Counsel for the prosecution also referred to your criminal record, although noting that the entries from that document all involved matters dealt with by the Children’s Court.
44Ultimately it was submitted that the principle of general deterrence assumed 'considerable significance for offences of armed robbery'. Furthermore, in the circumstances of this matter, it was further submitted that specific deterrence and community protection must also be 'given weight considering [your] recent criminal history in the Children’s Court'.
45Furthermore, it was submitted that your prospects of rehabilitation are 'guarded'. In this respect it was submitted that although you are a young offender and have been compliant with treatment, certainly up to when you had been recently remanded, the offending before the court occurred when you were subject to two youth supervision orders, one of which was imposed as a result of a breach of an adjourned order.
46It was also submitted that denunciation and just punishment should be balanced with the above principles.
Whether you should be subject to a Youth Justice Centre Order or a Residential Centre Order
47Given the nature of the offence of armed robbery and that it is necessary given the absence of any applications of exceptions, any sentence must be one of incarceration. Much of the plea was concerned with whether or not any incarceration ordered against you, particularly in relation to the armed robbery, should be served under the Youth Justice system or in an adult prison, where you have been situated since being remanded for the alleged further offending.
48Of course, such an issue is dealt with by Subdivision (4) of Part 3 of the Sentencing Act 1991, which is headed 'Youth Justice Centre orders and youth residential centre orders'. Section 32 of the Sentencing Act 1991, states:
'(1) Subject to subsections (2A), (2B), (2C) and (2D), if a sentence involving confinement is justified in respect of a young offender a court may make a Youth Justice Centre order or a youth residential centre order if it has received a pre-sentence report and—
(a) it believes that there are reasonable prospects for the rehabilitation of the young offender; or
(b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
(2) In determining whether to make a Youth Justice Centre order or a youth residential centre order, a court must have regard to—
(a) the nature of the offence; and
(b) the age, character and past history of the young offender.'
49It is to be noted that the various factors set out in sub-s(1) required the court to have received a pre-sentence report and form a belief as to one or more of the matters set out in paragraphs (a) and (b). The various matters set out in such paragraphs are listed in a disjunctive way.
50Furthermore, sub-s(2) requires the court to have regard to the nature of the offence, the age, character and past history of the young offender.
51Your counsel submitted that any incarceration ordered against you should be served in the Youth Justice system.
52I refer to initially Exhibit J, being the pre-sentence report in relation to your suitability for a Youth Justice Centre order, dated 14 June 2024. Such report is extensive and was made since you have been on remand in relation to the new offending.
53The report sets out details and circumstances surrounding the subject offending, your attitude towards your current offending and your lengthy previous offending already set out in these reasons. In particular, under the heading 'Involvement in the Justice System', there are paragraphs dealing with 'Performance and Progress Behaviour in Custody'; 'Youth Justice Involvement'; 'Programs Undertaken and Support Provided'; 'Participation and Motivation'; 'Family Circumstances'; 'Health', matters involving 'Mental Health and any Intellectual Disability' and 'Education and Employment'. At p8 of such report, the authors of such report, Ms Lorina Pambi[45] - and I note to whom reference has already been made - and Ms Camilla Van Dreven, being the Youth Justice general manager of the south east metropolitan region, who state:
[45]To whom reference has already been made as to being the author of exhibit “G”.
'The purpose of this report is to determine [your] suitability for detention in a Youth Justice Centre. In making a recommendation for a Youth Justice Centre order disposition, s32 of the Sentencing Act (1991) must be taken into account:
(a) reasonable prospects for rehabilitation
(b) a young person is particularly impressionable, immature, or likely to be subject to undesirable influences in adult prison.In consultation with both community and custodial based authorities from the Youth Justice program, Youth Justice have assessed Mr Bower as unsuitable for detention in a Youth Justice Centre. Youth Justice have taken the following into account when making this determination.
(a) reasonable prospects for rehabilitation
-[Your] offending behaviour commenced at a young age of 16 and has escalated in frequency, type, and severity from theft related offending to increasingly violent behaviour over time. Despite [your] significant history of engagement with Youth Justice and services to address [your] offending behaviour, intervention has not reduced [your] propensity to perpetrate violence or continue offending. [You have] breached all orders subject to through the Children's Court by way of further offending.
-[You are] the primary instigator of the offending, planning [your] actions for retribution of the victim's actions. [You] justified [your] actions stating they occurred as a result of the victim's behaviours. This shows [your] poor emotional regulation and inability to utilise community norms to denounce poor behaviour, opting to use violence over calling the police.
-While [you have] engaged well with clinical interventions through Caraniche Youth Forensic Services, [your] offending has escalated and [you have] continued to demonstrate anti-social attitudes in [your] thought processes and behaviours.
-While [you] stated [you] '[regret your] use of violence towards the victim,' [you] stated that this remorse was conditional and subject to the victim changing his behaviour, demonstrating [your] superficial victim empathy. This is further shown by [you] relating the harm from [your] offending to [yourself] and [your] supports, rather than the victim and the broader community.
-[You have] been offered continued and sustained interventions that sought to provide [you] with skills, capabilities, and opportunities. Focus has sought to improve moral judgement, re-direct anti-social attitudes and behaviours, disincentivise benefits of offending and reduce harm. Despite these efforts, [you continue] to view offending behaviours as intrinsically rewarding. [Your] rehabilitation is unlikely to benefit from further interventions available through Youth Justice involvement.
(b) young person is particularly impressionable, immature, or likely to be subject to undesirable influences in adult prison.
-[You are] currently 19 years of age, being at the upper chronological age range for Youth Justice involvement. [You have] not been diagnosed with an intellectual disability.
- [You have] a history of victimisation including, bullying, trauma, and sexual victimisation. [Your] history of trauma stems from exposure to family violence by Ms Bower's intimate partners. Despite [your] mental health concerns, [you have] been reluctant to access mental health support and treatment offered by Youth Justice. [You] can access mental health support through the adult custodial setting, should [you] wish to engage in the future.
-[You have] a history of violent behaviour, [your] actions of the index offence depict a planned and deliberate attack for retribution. [Your] actions demonstrate [your] offences relate to poor self-control causing [you] to use violent behaviour.
-This is [your] first period of remand in adult custody. Custodial information states that [you have] not been involved in any incidents while remanded. [You have] reported one incident of assault in custody in February 2024. [You appear] stable in adult custody; working full time and participating in programs whilst remanded.
Youth Justice assess that the adult custodial system can best address [your] criminogenic and responsivity needs through access to employment, psychosocial programs and mental health support.'[46]
[46]See exhibit “G” at pages 8-9
54Your counsel had submitted that given what she had submitted were your prospects of rehabilitation, you would be far better served in Youth Justice where you would have greater access to courses and treatment to potentially promote your rehabilitation. Furthermore, she made the point, correctly of course, that this would be the first time that you have been sentenced to a period of incarceration. It was also noted that since being placed on remand you have had one altercation earlier (noted in the report from Youth Justice) and apparently had been approached by no doubt older prisoners suggesting you join them after your release in no doubt criminal activity.
55Counsel for the prosecution submitted that in all the circumstances the court should not be satisfied of any of the matters set out in sub-s(1) and also stressed the nature of the subject offence being very serious with a past history of not dissimilar offending.
56Although appreciating that the court is not bound to accept the recommendation made in the report from Youth Justice, I do consider that such report is compelling. Again, taking all the circumstances into account, I am not satisfied that s132 of the Sentencing Act 1991 is made out. In this respect, I do accept the recommendation from Youth Justice.
Conclusion
57You have pleaded guilty to the offence of armed robbery which occurred on 31 May 2023 when you robbed Haque of certain property, including a 2017 Toyota Camry sedan, and that at that time you had with you an offensive weapon, namely a knife. You have also pleaded guilty to two lesser charges, being Summary Charge 4, being in possession of a prohibited weapon, in this case a taser found at your premises, and Summary Charge 5, which involves you committing an indictable offence, that is the armed robbery, whilst on bail.
58Obviously enough, Charge 1 involving the armed robbery is a serious offence, made plain by the maximum sentence of 25 years’ imprisonment, and indeed the inherent nature of such offence which involved in this case an offensive weapon, being a knife.
59You were 18 at the time of such offending, and you and the complainant Haque had been attending a security course conference which finished in the morning of the day when you committed the armed robbery. You have described to a variety of people that during the course you perceived Haque to be making sexual overtures towards you, which you found repugnant.
60This experience was in the context that you had been sexually assaulted when you were in Grade 2 or 3 on a school excursion when attending a toilet. I accept this may have been part of the reason you confronted the complainant at the time of the armed robbery, although of course this does not justify what you did on that day. I also consider that there was a degree of planning involved in that you had the wherewithal to bring a knife, and indeed you were in company with another who has not been identified.
61Immediately after entering the premises of the complainant you grabbed him by his jacket with your left hand while holding the 30-centimetre kitchen knife in your right hand, with the tip of the knife pointed towards the complainant.
62You demanded the keys to his Toyota Camry sedan and due to his level of fear the complainant immediately complied and handed you the keys to such vehicle. You then made demands for his mobile phone which the complainant failed to hand over, causing him to pull away from you while you were still physically restraining him, which resulted in a brief physical altercation taking place between you and him.
63Your co-offender then struck the complainant to the head with a metal pole, causing a laceration and some bleeding, which only required limited medical treatment.
64The complainant was able to break away from you and run into a nearby bedroom where he closed the door behind himself and hid from you, after which you and the co-offender stole the complainant’s vehicle and fled the address. There is no victim impact statement, but with nothing more, as conceded by your counsel, such episode must have been 'frightening' for the complainant. In this respect a roommate of the complainant at the premises, Hassan, recorded what was going on and the complainant’s screams could be heard during the time before he ran to the bedroom.
65I accept the actual offending was short-lived and did not involve the knife touching the complainant and I consider such offending not to be the worst level of this type of offence, but at least being mid-level of objective seriousness. Furthermore, I consider your moral culpability to be reasonably high, although tempered perhaps by your concerns that the complainant had made sexual advances to you in a context where you had been molested as a child.
66It is also of some significance, in my view that, albeit at Children’s Court level, you have prior convictions for aggravated burglary, assaults, thefts, and in particular, many thefts involving a motor vehicle.
67Furthermore, it is to be remembered that on 15 February 2023 at the Ringwood Magistrates Court, you were found guilty of a variety of offences including four charges of burglary, seven charges of theft of a motor vehicle, two charges of aggravated burglary with a person present, five charges of theft, one charge of theft from a shop, five charges of indictable offence whilst on bail, one charge of carrying a prohibited weapon without exemption, one charge of possession of a prohibited weapon without exemption, possessing an imitation firearm without exemption, aggravated burglary with a person present, and two charges of unlawful assault. At that time you were sentenced to a youth supervision order commencing on 17 February 2023 for a period of 18 months, ending on 14 August 2024. That order was held in abeyance given that you appealed to the County Court those findings. The appeal to the County Court was dealt with on 6 June 2023, at which time the appeal was abandoned and struck out.
68Further, it must be borne in mind that the subject offending occurred on 31 March 2023, which is approximately six weeks after the making of the order at the Ringwood Magistrates Court.
69Again, you had earlier findings of guilt against you in relation to some similar offences at the Ringwood Magistrates Court on 23 June 2022. As submitted by counsel for the prosecution, I consider that any sentence must also involve considerations of not only general deterrence but specific deterrence and protection of the community. Furthermore, denunciation and just punishment are relevant considerations. Consistent with the views expressed in the Youth Justice sentence report, it does appear that your offending has escalated, particularly given that you used a knife in the armed robbery.
70In relation to the charge involving the taser, although clearly a lesser charge, it also must be seen in the context that you have previous findings of guilt in relation to possessing various weapons which are exempt under the law. Again, the issue of specific deterrence must be borne to some extent in a consideration of that offending.
71In relation to the other uplifted summary matter, you were on bail of course at the time of the subject offending, and indeed your prior criminal history involved several findings of guilt about committing offending while on bail. Although I consider this offence again not to be the most serious, it would appear that earlier findings of guilt have not brought about any real improvement in such offending.
72I am very conscious of your tender age, and as has been previously recorded, do accept that the principles enunciated in Mills[47] and Azzopardi[48] have application, albeit in a somewhat diluted form given your past offending and the nature of the subject offending. Again, I have noted some of the things which have occurred prior to your recent remand in prison for alleged new offending, you were making an attempt to get yourself back on track. Of course, it is not for this court to speculate as to what happened in relation to the alleged new offending, which I understand it is coming up for a contested hearing in the near future.
[47]Op cit
[48]Op cit
73As has already been set out in detail, the court can only effectively sentence you to a period of incarceration in relation to the offence of armed robbery given that no exceptions were relied on by your counsel. I quickly point out, I do not consider any exceptions were available to you and indeed your counsel has made no submissions in relation to principles relevant to Verdins.[49] Given your past history in relation to the possession of prohibited weapons and offending during a time when on bail, I am also going to order short periods of imprisonment in relation to those offences.
[49]See R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
74In coming to an appropriate sentence, I also take account of the various mitigating matters which have been recorded earlier in these reasons – for example, your early plea of guilty.
75Bearing in mind the matter of totality, and indeed your youth, one of those sentences will be served concurrently with the sentence in relation to Charge 1, and there will be some small cumulation in relation to the other charge.
76It is to be noted that on 17 June 2024 bail was revoked and you were remanded in custody in relation to the subject offending. I am informed that your pre-sentence detention amounts to 37 days.
The sentence
(a) in relation to Charge 1 on the Indictment, you are convicted and sentenced to a period of three years’ imprisonment;
(b) in relation to uplifted Summary Charge 4, you are convicted and sentenced to a period of four months’ imprisonment;
(c) in relation to uplifted Summary Charge 5, you are convicted and sentenced to a period of one month imprisonment, which sentence is to be served concurrently with the sentence ordered in relation to Charge 1 on the indictment;
(d) I direct that two months of the sentence in relation to the uplifted Charge 4 be cumulated with the sentence in relation to Charge 1 on the indictment;
(e) the total effective sentence is three years and two months;
(f) I direct that you serve a period of imprisonment of two years and two months before becoming eligible for parole;
(g) I declare that you have served, up to but not including today, 37 days of pre‑sentence detention and that such days should be administratively deducted from the sentence ordered against you;
(h) I grant leave for a disposal order to be made pursuant to s9 of the Control of Weapons Act 1990 for the subject taser;
(i) Pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty I would have ordered a period of imprisonment of four years and six months. And I so order.
77Anything arising?
78COUNSEL: No, Your Honour.
79HIS HONOUR: Yes, thank you. Mr Bower, I'm not suggesting you would be happy with the result this morning but if I can say this: if you had not been 19 the period of imprisonment would be quite a bit longer than it is now. What that reflects is that all hope is not lost with you, that you have shown signs that you had been keen to try and improve yourself. Unfortunately, this new offending, which of course I know nothing about, has interrupted that and you have been remanded for a period, breaking into those things you were doing at that time.
80You are still a young man and I note you are intending at least to do courses in prison, and I think that is all for the good because you'll get out of prison, you will still be very young man and you'll still have a lot of life left in front of you.
81So the only thing I can say to you is put your head down, work hard, get out and probably learn a lot from this. What you have to understand, people will not tolerate the type of violence that you have shown in the past. Although I have a degree of sympathy for perhaps the reason you may have acted on that day, as I said in the reasons, that cannot be any legal excuse, or any excuse whatsoever, in relation to the offending. So you are going to have to learn to regulate that control, and that's some of the things you might learn in prison.
82So, look, bear in mind, as I say, you've got a lot of life left in front of you, you've got a mother who is supportive, and a partner, I think, from what I am being told at least is also supportive. And indeed you seem a person who can turn your hand to a variety of things, workwise, and you've got plans for what you want to do in the future. That's all good. So don't lose sight of that.
83Yes, thank you, anything arising out of that.
84COUNSEL: No, Your Honour.
85Yes, thank you, we'll adjourn sine die.
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