Director of Public Prosecutions v Bright
[2020] VCC 1410
•9 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02071
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAI BRIGHT |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2020 | |
DATE OF SENTENCE: | 9 September 2020 | |
CASE MAY BE CITED AS: | DPP v Bright | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1410 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – aggravated carjacking – dangerous driving while pursued by police – related summary charges of unlicensed driving – commit indictable offence whilst on bail – contravene a condition of bail – aggravated carjacking - Category 1 offence - mandatory minimum non-parole period of three years’ imprisonment unless special reasons exist within the meaning of s10A – genuine participation in Koori Court sentencing conversation – relatively youthful offender – rehabilitation prospects – sentence of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Teo | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M Brennan | Emma Turnbull Lawyers Pty Ltd |
HER HONOUR:
1 Jai Bright, you have pleaded guilty to two charges on the indictment, being one charge of aggravated carjacking – offensive weapon, and one charge of dangerous driving whilst pursued by police that relate to events which occurred on 7 April 2019. In addition, you have pleaded guilty to related summary offences, namely unlicensed driving, commit an indictable offence whilst on bail, and contravene a conduct condition of bail.
2 The charges are serious and that is reflected in the maximum penalties that are prescribed, namely: commit indictable offence whilst on bail and contravene a conduct condition of bail, 30 penalty units or three months’ imprisonment; unlicensed driving, 60 penalty units or six months’ imprisonment; dangerous driving while pursued by police, three years’ imprisonment; and aggravated carjacking – offensive weapon, 25 years’ imprisonment.
3 You have admitted a prior criminal history that spans the period from 13 June 2013 until 27 February 2017.
4 There are two appearances in the Children’s Court: namely, 13 June 2013 and 12 June 2014, in relation to various dishonesty offences and failure to answer bail.
5 On 27 February 2017, you were dealt with in respect to some driving offences and contravene a conduct condition of bail for which you received an aggregate fine of $1,000.
6 There is a subsequent court appearance on 5 March 2020. You were sentenced in following a consolidation plea hearing in respect to: criminal damage; intentionally damage property; unlicensed driving, entering an intersection against a red light; handle stolen goods; unlicensed driving; reckless conduct endangering serious injury x 2; recklessly cause injury; retention of stolen goods; and theft, for which you received a total effective sentence of eight months’ imprisonment. Those charges relate to offending that occurred in 2016, 2017 and 2018.
7 Those appearances reveal a concerning pattern of serious offending over the past years including serious offences of violence against the person and driving offences.
8 Therefore, your current offending forms part of a pattern of offending. That is not an aggravating feature and you are not to be punished twice for past offending, but the pattern is a concerning one that cannot be ignored.[1]
[1]Ryan v The Queen (2001) 206 CLR 267 at [67]; Gulak v The Queen [2015] VSCA 300 at [23]
9 I shall proceed to sentence you on the basis of the summary of the prosecution opening dated 30 July 2020 that was summarised at the plea hearing.
10 You offended with Tiah Perry-Connolly. You were in a relationship that was characterised by heavy drug use. Her matter is being contested and has yet to be dealt with by the Courts.
11 You were aged 20 at the time of the offending. You are now aged twenty-two.
12 Briefly the offending concerns you approaching the victim, Chilanka Gamalathge, whilst he was attempting to put some belongings in his vehicle that was located in the car park of the Modern Medical Centre, Caroline Springs. The victim, who is not known to you, was about to commence his cleaning job at the Centre. He had noticed you and the co‑accused sitting on the ground outside the Centre as he walked over to his vehicle. When he opened the boot, you walked towards him and spoke to him saying, “Hey mate” to which he did not reply. He continued to close his boot. When you were about two steps away from him, said, “Give me your keys”. He asked, “For what?” You said, “Give me your keys!”
13 He then unlocked his car and tried to open the driver’s door but you pushed him away causing him to fall onto the foot of the car. He tried to push you away but you struck him in the chest. You reached around to the back of your waist and pulled out a silver coloured knife with a serrated edge. You yelled, “Give me the keys or I will bash you.” Out of fear he threw the keys to you. You then jumped into the driver’s seat and your co‑accused got into the passenger seat and drove off out of the car park and left the Medical Centre (Charge 1, aggravated carjacking – offensive weapon).
14 The victim quickly called police and told them what had happened.
15 Police Communications Centre then provided information to police officers on the ground about observations about your vehicle. You were involved in a pursuit with a police vehicle that had activated its lights and indicated for you to stop. You took evasive action, mounted a traffic island and then travelling through a roundabout on the wrong side, entered the Melton Highway. Your speed was estimated to be between 90 to 100 kilometres per hour in a 70 kilometres per hour zone. You then turned onto the Western Highway and continued to drive at a high rate of speed at times estimated to be in excess of 150 kilometres per hour in a 110 kilometres per hour speed zone. There were other vehicles present on the roadway.
16 The Police Air Wing continued to track the stolen vehicle. I have viewed the footage provided by the Police Air Wing that shows the stolen vehicle travelling at a fast rate of speed south-east towards Melbourne. The vehicle is seen speeding past several other vehicles travelling in the same direction and swerving into the right hand emergency stopping lane as it overtook a vehicle at a fast rate of speed. The vehicle swerved across three lanes of traffic between other vehicles as it veered to the extreme left lane leaving the Western Highway and taking the Western Highway exit at Caroline Springs. The stolen vehicle continued to pass other vehicles at a fast rate of speed.
17 Eventually after travelling 500 metres along Caroline Springs Boulevard, the vehicle is seen to perform a U-turn and travel back toward the Western Highway. As the vehicle approached the Western Highway intersection, it utilised the slip lane to turn left and again travelled south-east towards Melbourne. The vehicle was seen striking the concrete kerb on the north-east of the intersection momentarily mounting it. The vehicle then continues at a fast rate of speed as it rapidly swerves across two Melbourne-bound lanes to continue travelling south-east. As the vehicle approached the intersection of Western Highway and Chisholm Drive, Caroline Springs, the vehicle drove in between two stationary vehicles narrowly avoiding swiping both. The vehicle went through a red traffic control signal. The vehicle was observed erratically swerving across all three lanes of traffic, manoeuvring between other vehicles, placing those vehicles at significant risk of a serious collision.
18 The vehicle continued at a fast rate of speed as it approached the Western Highway intersection with Station Road, Deer Park. At that intersection the vehicle turned left and travelled north on Station Road. The vehicle overtook several other road users at a fast rate of speed. As the vehicle approached the intersection with Furlong Road, it turns right and travels east. The stolen vehicle overtook two vehicles by swerving into the bicycle lane and overtaking both vehicles on the passenger side at a fast rate of speed.
19 The vehicle then turns left at the intersection with Stockton Drive and travels north. At that intersection there was a roundabout and the vehicle moved to the incorrect side of the road overtaking one vehicle entering the roundabout on the wrong side of the road. The vehicle continued northbound entering the roundabout still on the wrong side of the road and passed another vehicle travelling in the same direction narrowly avoiding a collision. The vehicle continued to travel at a high rate of speed as it approached an uncontrolled intersection with Settlers Way.
20 The vehicle made a right hand turn at the intersection and travelled east. At the time this turn was executed, the vehicle narrowly avoided another collision with an oncoming vehicle travelling in the opposite direction. The vehicle then approached the intersection with Settlers Way and Prospector Drive, Cairnlea. The intersection is governed by a large roundabout. The vehicle moved to the incorrect side of the road as it entered the roundabout on the wrong side of the road. The vehicle turned left and travelled south on Prospector Drive before approaching the intersection with Cairnlea Drive where you made a left turn and travelled east.
21 The vehicle continued along Cairnlea Drive at a fast rate of speed. The vehicle was seen to aggressively tailgate another vehicle as your vehicle was prevented from overtaking due to oncoming traffic. A short time later your vehicle was seen moving to the incorrect side of the road and overtaking another vehicle. You continued driving at a high of speed through the Cairnlea area.
22 As your vehicle travelled east on Noble Banks Drive, it approached the intersection of Ken Jordan Drive. That intersection is governed by a large roundabout. The vehicle proceeded through the intersection on the incorrect side of the road and travelled in the wrong way around the roundabout. You then turned right and travelled south on Ken Jordan Drive. Whilst performing this turn, the front passenger wheel of the vehicle struck a raised traffic island causing significant damage to the wheel rendering the vehicle undrivable. The vehicle travelled a further 100 metres south before stopping. You were then seen to alight from the driver’s seat of the vehicle with the co‑accused alighting from the front passenger seat and you both then proceeded to run away from the vehicle (Charge 2, dangerous driving while pursued by police).
23 You and the co-accused sprinted away from the vehicle and ran towards a residential area. You climbed a side gate of a property situated at 56 Noble Banks Drive and attempted to hide yourselves behind some outdoor furniture at the rear of the property. You were arrested at that spot by officers from the Critical Incident Response Team.
24 You have never held a driver’s licence (related Summary Charge 6, unlicensed driving).
25 At the time of the incident you were on bail. One of the conditions of bail was that you were to reside at 10 Atkinson Close, Point Cook. You admitted to police that you were squatting at a different address located in Deer Park. (related Summary Charges of Charge 7, commit indictable offence whilst on bail, and Charge 8, contravene conduct condition of bail).
26 You were arrested and formally interviewed. You admitted that you were driving a stolen car but did not make any admissions about the circumstances of the theft of the vehicle. You told police that you had swapped methamphetamines in exchange for the vehicle with another unknown person.
27 At the time of your arrest, police located a knife in the vehicle that produced a mixed DNA profile with four contributors with you noting being excluded as a contributor.
28 You were charged on 7 April 2019 following which there was a committal hearing in August and October of 2019. You were committed for hearing and after a further DNA statement was obtained concerning the knife. An offer to plead to the charges on the indictment was made by defence on 6 February 2020. You were arraigned on 27 February 2020 and entered pleas of guilty.
29 Due to the COVID‑19 pandemic there was a delay in your matter being dealt with in the Koori Court Division. Your plea hearing in the Koori Court proceeded on 4 August 2020.
30 Both the circumstances of the aggravated carjacking and the dangerous driving whilst being pursued by police are serious examples of these very serious offences.
31 In respect to the aggravated carjacking, you approached the vulnerable, and lone victim in company. You were armed with the knife that you used to threaten the victim following which he gave up his keys to the vehicle. The offending was of a short duration. The victim was not physically injured. I find that the objective gravity of this offence is in the low to medium range of seriousness for this sort of offending.
32 The dangerous driving is a particularly bad example of this type of offending. It involves a course of conduct of dangerous driving of some duration on major roadways where other vehicles were present. The driving at speed, repeatedly on the wrong side of the road and travelling through intersections against red lights demonstrated little regard for the safety of other road users who were impacted and exposed to your dangerous driving. Furthermore, you have never held a driver’s licence. It is only by good fortune that there were not any accidents or injuries suffered. It is objectively a serious example of this offence.
33 The principles of denunciation, general deterrence and community protection are important sentencing considerations. On behalf of the community I must condemn your actions.
34 There was no Victim Impact Statement filed but common sense dictates that Mr Gamalathge, would have been very upset by your actions.[2]
[2]Lyddy v The Queen [2019] VSCA 35 at [74]
Koori Court participation
35 You volunteered to have your matter proceed in the Koori Court Division. A sentencing conversation was held with Uncle Rod Jackson and Uncle Wally Harrison. You were open and frank in your discussions with the Elders both of whom challenged you about your offending behaviour.
36 You admitted not knowing much about your Aboriginal culture and expressed a real desire to reconnect to your heritage and culture. You acknowledged to Uncle Wally that alcohol and drugs were an issue for you and you said that you had undertaken some programs whilst in custody including NA and AA programs.
37 Uncle Wally strongly urged to consider a long-term rehabilitation program upon your release to offer you the best opportunity to deal with your alcohol and drug problems.
38 In your discussions at the sentencing conversation you were genuinely remorseful and expressed your sorrow for what you had done.
39 Uncle Wally emphasised how your conduct impacted on the victim of the aggravated carjacking and he expressed concern about the potential for real harm that could have been caused by your dangerous driving.
40 Uncle Rodney Jackson emphasised to you the effects of your offending and the potential for real harm that could have been caused through your dangerous driving. You expressed to him a keen desire to want to change.
41 You were encouraged to seek out the assistance from services whilst you were in custody to provide you with advice and support.
42 Both elders urged you to focus on your future and encouraged you to seek out positive mentors that can guide you into being a more positive person. They recommended that you investigate assistance from Dardi Munwurro for mentoring from strong Aboriginal elders.
43 They encouraged you to become a better person and a better father, so that you could care for your children and give back to your community.
44 Overall I considered that you did establish a good rapport with the Elders who challenged you about your offending.
45 You demonstrated remorse for your offending and insight into the reasons for, and the seriousness and effect of, the offending and expressed appropriate commitment to reform.
46 Your genuine participation in the Sentencing Conversation is a mitigating factor.[3]
[3]Honeysett v The Queen (2018) 56 VR 375
47 Your mother, Leslie, expressed her hope during the hearing that you get all the support you need to make a difference for the future. Taylor Falzon, the children’s aunt and carer, also emphasised the need for you to get involved and make the most of the assistance that is being offered and prepare yourself for the future so you can be a better father.
48 You are still a relatively youthful man and your rehabilitation is an important factor. However given the seriousness of the charges this means the more mitigating effect of youth is diminished to a degree.[4]
[4]Azzopardi v The Queen (2011) 35 VR 43, 55-56 [37]-[40]; DPP v Lawrence (2004) 10 VR 125,132 [22]
49 I have had regard to your background and history.
50 You were born in Narrandera, Central New South Wales. You are and Aboriginal man with Wiradjuri heritage.
51 You are one of six children. Your parents separated when you were young. Your mother re-partnered and moved to Sydney when you aged twelve. When you were aged 13, your father took you without your mother’s permission and you were moved suddenly to live in Mildura. Whilst there you were exposed to significant violence and neglect. The experience was very disruptive and has impacted upon you in a significant way.
52 Eventually when you were aged 14, you were able to contact one of your siblings, your older sister, Melody through Facebook and arrangements were made for you to run away from your father and resume living with your mother and stepfather, who had then relocated to St Albans in Victoria.
53 You have not maintained any contact with your father.
54 You have little formal education. You then left school at age 15 having completed Year 10.
55 You have a history of polysubstance and alcohol abuse. You commenced drinking alcohol around 13 including binge drinking. You also started smoking cannabis daily at around that age. You commenced smoking methylamphetamines daily at around age twenty. You smoked heroin from age 19. You began using GHB daily basis in early 2019. Your heavy drug use continued up until the time of your arrest. You have never undertaken any drug or alcohol rehabilitation programs.
56 You commenced a relationship with Madison Falzon and when you were aged 16 your son was born.
57 At age 17 you were involved in a single collision motorcycle accident following which you suffered a severe brain injury.
58 At age 19 your daughter was born.
59 Your relationship with the children’s mother broke down when you were 18. You became homeless and began to heavily use methamphetamines.
60 Your mother is now living in Sydney with her partner and the other five children. She continues to remain supportive of you.
61 Your two children who are now aged 5 and 3 respectively are being cared for by their maternal aunt, Taylor Falzon. Following your separation from their mother, you had little contact with the children but since your remand she confirmed that there were regular visits until the COVID‑19 pandemic and your contact has continued through Skype.
62 Ms Falzon advised the court that since being on remand you have become more responsible and you enjoy a positive relationship with the children. She is happy to support you upon your eventual release.
63 The mother of your children’s maternal aunt, Jennifer Keane, provided a written statement to the court that confirms her support. She states that you are a caring loving father. She maintains contact with you and is willing to support you on your eventual release. It is intended that you will live with her upon your release.
64 You have had very little by way of work history. You commenced a TAFE course in construction but that ceased after the 2016 motorbike accident. You have obtained a white card whilst in custody and aspire to work in construction upon your release.
65 Ms Jane Lofthouse, consultant neuropsychologist, assessed you and provided a report dated 20 March 2020. She noted that you were in good health and that have not been receiving any treatment whilst in custody. In the community you have received treatment for transient illnesses. You suffer from asthma which is controlled by the use of Ventolin as required.
66 Ms Lofthouse details the information provided by Epworth Rehabilitation concerning the Acquired Brain Injury following the high-speed motorcycle accident on 25 January 2016. Whilst intoxicated with methamphetamines and cannabis, you slid into a four-wheel drive vehicle, striking your head. You were admitted to the Intensive Care Unit at Royal Melbourne Hospital where they noted a Glasgow Coma Scale of 13 and recorded a period of post-traumatic amnesia of 20 days. You suffered multiple fractures and lacerations and severe traumatic brain injury. You suffered from drug and alcohol withdrawal and required sedation for aggression, abuse and hallucinations. You were transferred to Epworth Rehabilitation on 4 February 2016 and discharged a month later.
67 Ms Lofthouse assessed your intelligence as being in the low-average range. She highlighted that you had difficulties processing verbal material. You also demonstrated some executive dysfunction in processing both verbal and non-verbal material. She said that that means that you may be placed at risk of rigid pattern thinking, that are over-learnt and sometime inappropriate, and that you will struggle at times to plan and make decisions in a reasoned and informed manner. Executive dysfunction also places you at risk of impulsive responses.
68 Her findings were consistent with a mild intellectual impairment as a result of a traumatic brain injury secondary to your motorbike accident in 2016.
69 Ms Lofthouse postulates that it is likely that both intellectual impairment and psychological issues have placed you at risk of impulsive behaviour and ill‑considered problem solving and contributed, to some extent, to the behaviour that led to your current charges.
70 She recommends drug and alcohol treatment.
71 She also considered that your drug and alcohol use should be considered as further destabilising your behaviour placing you at risk of engaging in poorly considered problem solving and in heightening your impulsive reactions. She concludes your drug and alcohol use would have impacted your intellectual deficits and psychological issues and was a major contributing factor in the behaviour that led to the current charges.
72 She did not think that your intellectual function was likely to deteriorate during a period of incarceration and, if your deficits are taken into account, it is likely that they will not impinge on your ability to complete a period of incarceration in comparison to persons who do not suffer from these conditions.
73 She said it was possible, however, that your psychological state may deteriorate when you are under the added stress associated with incarceration and this may impinge on your ability to complete a period of incarceration in comparison to persons who do not suffer from these conditions.
74 Aggravated carjacking is a Category 1 offence, meaning I must impose a sentence of imprisonment.
75 Mr Brennan, on your behalf, conceded that the offending is serious in nature and calls for a term of imprisonment.
76 The offence of aggravated carjacking has a mandatory minimum non-parole period of three years’ imprisonment for adult offenders, unless “special reasons” exist within the meaning of s10A of the Sentencing Act 1991.
77 Further, the term of the sentence must be at least six months more than the non-parole period (s11(3) of the Act).
78 Mr Brennan submitted that special reasons exist within the meaning of s10A and therefore the mandatory minimum non parole period does not apply.
79 He relies upon impaired mental functioning that is causally linked to the commission of the offence and substantially reduces your culpability, or you have impaired mental functioning that would result in you being subject to substantially materially greater than the ordinary burden or risks of imprisonment.
80 In addition, he relies upon there being substantial and compelling circumstances that are exceptional and rare and justify not imposing the minimum non-parole period. This must be established on balance of probabilities.
81 Mr Teo, on behalf of the prosecution, submits that it is accepted that you suffer from impaired mental functioning, namely an Acquired Brain Injury (ABI), as defined by s10A(i)(c).
82 He submitted that the expressed opinion of Ms Lofthouse, consultant neuropsychologist, does not support a causal link to the offending. At best, Ms Lofthouse says that your impaired mental functioning contributed to some extent to the offending, but that drug and alcohol use also further destabilised your behaviour, placing you at risk of engaging in poorly considered problem-solving and in heightening your impulsive reactions. Her expressed opinion is that your drug use would have also impacted upon your intellectual defects and psychological issues and been a major contributing factor in the behaviour that led to the current charges.
83 Having regard to all of the evidence, I am not satisfied that impaired mental functioning that is, the Acquired brain injury, is causally linked to the commission of the offences and thereby substantially reduces your culpability.
84 You have admitted that you were indulging in heavy daily drug and alcohol abuse up until the time of your incarceration. I consider that the combination of abuse of alcohol and drugs is more likely to have impacted upon your judgement, lowered your inhibitions, and caused you to act in such an impulsive and aggressive manner at the time the aggravated carjacking offence was committed.
85 Further I am not satisfied that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
86 You have been in custody since 7 April 2019 and, during that time, you have completed the sentence of eight months’ imprisonment that was imposed on 10 March 2020. The sentence lapsed on 5 June 2020.
87 You have been able to complete programs, namely Healthy Living, Take Stock A and Take Stock B and Adapt. You have also obtained a Certificate 2 in Warehousing Operations.
88 Ms Lofthouse was able to complete her three hour assessment without event. She describes you as being currently in good health without any medical treatment whilst in custody.
89 Ms Lofthouse described you as being somewhat depressed with a level of anxiety beyond that expected. There was no evidence that your condition is such that you have required any treatment whilst in prison.
90 Ms Lofthouse found that some of your scores were below your predicted premorbid intellectual function and are consistent with you having mild intellectual impairment as a result of traumatic brain injury secondary to a motorbike accident in 2016.
91 On tests of frontal lobe function, you demonstrated intellectual impairment consistent with you having a mild level of executive dysfunction coupled with a restricted ability to deal with anxiety and stress. Overall, she did not consider that your intellectual functioning is likely to deteriorate during your time spent in custody, and that it is unlikely to impinge on your ability to complete a period of incarceration in comparison to persons who do not suffer from those conditions.
92 I accept that your impaired mental functioning condition would impact upon your time in custody as compared to someone who does not suffer from such condition. However, I am not satisfied that you have discharged the burden of demonstrating that it would be substantially and materially greater than the ordinary burden or risks of imprisonment (my emphasis).
93 Mr Brennan relied on a combination of factors to support his submission that there are substantial and compelling circumstances that are exceptional and rare that include your youth, your Acquired brain injury, drug use arising in the context of significant childhood depravation, vulnerability as a result of both your acquired brain injury and drug addiction, your participation in the sentencing conversation, the onerous conditions in custody as a result of the COVID‑19 pandemic and your limited prior criminal history and the limited role of specific deterrence in the sentencing exercise.
94 s10A(2B) states that:
“In determining whether there are substantial and compelling circumstances under sub-s(2)(e), the Court –
(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i)the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii)an early guilty plea; or
(iii)prospects of rehabilitation; or
(iv)parity with other sentences.”
95 sub-s(3) states that:
“In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court must have regard to—
….(ae) the Parliament's intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than 3 years should ordinarily be fixed for an offence covered by s10AD; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, the minimum non-parole period.””
96 The factors relied upon in support of Mr Brennan’s submission concerning this aspect to a large extent relate to your personal circumstances and prospects for rehabilitation.
97 In accordance with s10A(2B)(b) I must give less weight to the personal circumstances than to other matters such as the nature and gravity of the offence.
98 I have had regard to the impact of the COVID‑19 pandemic on you. That has had consequences, namely, the delay in the hearing of this matter between 27 February 2020 until 4 August 2020, due to the suspension of Koori Court.
99 You also lost the prospect of some concurrency with the sentence imposed on 5 March 2020.
100 The first listing of this matter in the Koori Court on the 27 July 2020 was cancelled because the prison was locked down as a result of a prison officer testing positive to the covid-19 virus and therefore you were not transported to Court.
101 It is also accepted that the pandemic is causing additional stress and concern for prisoners and their families as it is for everyone in the community. [5] Further you have been subjected to lockdown regimes and your ability to access courses has been disrupted. There are restrictions imposed by the prison authorities on the daily life of prisoners such as no face to face visits.
[5]Brown V The Queen [2020] VSCA 60 at [48]
102 Overall, I consider that those impacts are substantial and compelling, but I do not consider them to be rare and exceptional.
103 Mr Bright your offending is serious. Just punishment and denunciation of your conduct are relevant sentencing principles.
104 In formulating the appropriate sentence I have taken into account in your favour the mitigating factors highlighted.
105 You pleaded guilty at an early stage without the necessity for a trial to be conducted. Your plea of guilty has utilitarian value. The inherent utilitarian value of a guilty plea is greater during the pandemic.[6] You have saved the Court and the community the time and expense of a trial and demonstrates acceptance of responsibility on your behalf. You have facilitated justice and your sentence will be discounted accordingly.
[6]DPP v Bourke [2020] VSC 130 at [32]
106 I accept your plea of guilty is evidence of some remorse.
107 Your genuine participation in the Sentencing Conversation has been taken into account in the manner described.
108 I accept that you were significantly disadvantaged growing up and your life was significantly disrupted at a vulnerable age when you were taken by your father and exposed to criminal behaviour and drug use. That disruption and neglect did contribute to you commencing drug usage. I find the principles in Bugmy have been engaged. .[7] The High Court recognised that:
“the effects of profound deprivation do not diminish over time and repeated offending and it is right to speak of giving full weight to an offender’s deprived background in every sentencing decision.”[8]
[7]Bugmy v The Queen [2013] HCA 37,[40],[43] –[44]
[8]Ibid, paragraph 42
109 I have had regard to your Acquired brain injury and Ms Lofthouse’s expressed opinion and have made a modest reduction in respect to moral culpability and the need to emphasise deterrence.
110 You are still a relatively young man and rehabilitation remains a significant sentencing factor even allowing for the seriousness of your crimes.
111 I consider that you do have good prospects of rehabilitation provided you remain drug free and alcohol free.
112 I recommend that the authorities have regard to Ms Lofthouse’s recommendations concerning alcohol and drug treatment programs.
113 I have had regard to the principles of totality.
114 I have had regard to the decision of Mammoliti v The Queen (Mammoliti) [2020] VSCA 52, which sets out that the mandatory minimum non-parole period operates as a yardstick to be used as a guidepost for sentencing in respect to the relatively new offence of aggravated carjacking. This is to be achieved without interfering with the established sentencing principles, and in accordance with the instinctive synthesis methodology.
115 Mammoliti also provides guidance with respect to current sentencing practices for the aggravated carjacking offence.
116 Overall having regard to all the circumstances and the applicable sentencing principles, I consider that a just sentence requires the imposition of a sentence of imprisonment involving a head sentence and a non-parole period.
117 The formal Court orders are as follows:
118 Charge 1 – aggravated carjacking – convicted and sentenced to three years’ 6 months imprisonment;
119 Charge 2 – dangerous driving – convicted and sentenced to eighteen months’ imprisonment;
120 Charge 6 – unlicensed driving – convicted and sentenced to two months’ imprisonment;
121 Charge 7 – commit indictable offence whilst on bail – convicted and sentenced to one month imprisonment;
122 Charge 8 – contravene condition of bail – convicted and sentenced to one month imprisonment
123 I make the following orders for cumulation. I order that one year of the sentence imposed with respect to Charge 2 be cumulative upon the sentence imposed on Charge 1, making a total effective sentence of four years’ six months imprisonment. I fix a non-parole period of three years.
124 s6AAA declaration. But for your plea of guilty, I would have imposed a term of imprisonment of six years to serve four years’ imprisonment.
125 I make the following declaration of pre‑sentence detention. I declare that you have served 297 days pre-sentence and direct that that be entered into the records of the Court.
126 Pursuant to s 89(3) of the Crimes Act 1958 (“the Act”) following your conviction for charge 2 you will be disqualified from holding a driver’s licence for 2 years and following conviction for charge 1 pursuant to s89(4) of the Act you will be disqualified from holding a driver’s licence for 2 years. Both orders are effective from today’s date.
127 I make a finding pursuant to s89C of the Act that the offences of aggravated carjacking and dangerous driving were committed whilst the offender was under the influence of drugs and/or alcohol.
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