Director of Public Prosecutions v Brown (Sentence)

[2023] VCC 1006

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00267

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARCELLO BROWN

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JUDGE:	JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May and 6 June 2023
DATE OF SENTENCE:	6 June 2023
CASE MAY BE CITED AS:	DPP v Brown (Sentence)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1006

REASONS FOR SENTENCE
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Subject:Criminal law - sentence

Catchwords:              Guilty plea – aggravated carjacking, theft and obtaining a financial advantage by deception – serious offending accompanied by a level of pre-planning – terrifying ordeal for the victim – no prior criminal history – childhood adversely impacted by exposure to parental alcohol abuse and family violence – rehabilitation dependent upon addressing methamphetamine abuse – maximum penalty and mandatory non-parole period of three years applicable to offence of aggravated carjacking – no special reason to justify departure from mandated non-parole period.

Legislation Cited:      Sentencing Act 1991 ss 5(2G), 10A, 10AD, 11; Crimes Act 1958 s 79A

Cases Cited:Mammoliti v The Queen [2020] VSCA 52; Azzopardi v. The Queen [2011] VSCA 372; Bugmy v. The Queen [2013] HCA 37

Sentence:                  Three years, eight months’ imprisonment with a non-parole period of three years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A K Dickens	Office of Public Prosecutions
Victoria
For the Accused	Mr R Thyssen	Ann Valos Criminal Law

HER HONOUR:

1Marcello Brown, you have pleaded guilty to the following offences arising from the events on 26 January 2020:

(a) Aggravated carjacking contrary to s79A of the Crimes Act 1958 (‘the Act’) the maximum penalty for which is 25 years’ imprisonment;

(b) Theft contrary to s74 of the Act, the maximum penalty for which is 10 years’ imprisonment; and

(c) Obtaining a financial advantage by deception contrary to s82 of the Act, the maximum penalty for which is 10 years’ imprisonment.

2In sentencing an offender for the offence of aggravated carjacking, s10AD of the Sentencing Act 1991 requires the court to impose a term of imprisonment and fix a non-parole period of not less than 3 years unless the court finds under s10A that a special reason exists.

3You were 20 years old at the time of the offending and had no prior criminal history. However, in the absence of a special reasons which justify a departure from the mandated non-parole period under s10A, the sentence to be imposed for the offence of aggravated carjacking must be a sentence of imprisonment with a non-parole period of not less than three years.

Circumstances of offending

4I turn to the circumstances of your offending which are detailed in the Summary of Prosecution Opening dated 8 May 2023 and is the agreed basis upon which you are to be sentenced.

5The victim, who you knew through school, was Mr Aaron Susan.  Mr Susan was also aged twenty at the time of the offence.

6On Saturday 25 January 2020, you contacted the victim by Facebook and asked him to collect you from the Berwick train station and drive you to Hampton Park. You told him you were interested in purchasing a car he was looking to sell.

7You had also been in contact with your co-offender, Mr Ely Constable[1] that day and asked him to attend the station at the same time as the victim. You told the co-offender to bring gloves and a balaclava, in order to disguise himself, telling him, “No face, no case”.

[1]A pseudonym.

8On the following day, Sunday 26 January 2020, you met with Mr Constable in the carpark of the Cranbourne Railway Station and discussed what was going to take place with Mr Susan. Mr Constable showed you a steak knife he had brought with him. After this, you stood on the nature strip while Mr Constable hid behind some bushes on the opposite side of the road. You then called Mr Susan and directed him to meet you at the Cranbourne Railway Station.

9

Mr Susan drove to the Cranbourne Railway Station in his 2016 Holden SV6 Utility. When he arrived, you called him asking that he pick you up from the station carpark. Mr Susan drove into the carpark, where he met you at approximately 1pm. You asked Mr Susan if you could put your satchel or bag in the boot of his car.

Mr Susan agreed to open the boot, and got out of his car to assist you, leaving the keys in the ignition with the car running.

10As he was returning to the driver’s side door, Mr Susan heard some footsteps as Mr Constable approached from behind the bushes. Mr Constable was dressed in black, with the hood of his jumper pulled over his head, and a mask covering his entire face, other than his eyes. He was holding the knife he had shown you earlier, in his right hand. While he held the knife, Mr Constable demanded that the victim hand over his possessions, stating “Where are the fucking keys? Where is your wallet and your phone? What’s your phone PIN?”

11Mr Constable threatened to stab the victim, stating, “Do you want to die?” While this was happening, you also made demands for the PIN code to the victim’s phone.

12

Mr Susan was terrified by these actions. Believing he was going to be stabbed,

Mr Susan handed over his wallet and gave you both the PIN for his phone. He gave the two of you a false PIN number for his bank card, which you had also demanded. You then stole the victim’s 2016 Holden SV6 Utility. You drove the car, with Mr Constable in the passenger seat, out of the carpark.

13Your conduct in stealing the victim’s car, knowing that your co-offender had threatened him with the knife, is the subject of Charge 1 – aggravated carjacking.  During this incident you also stole the victim’s wallet and mobile phone, giving rise to the charge of theft, which is Charge 2.

14After stealing the victim’s vehicle, you drove to a liquor store in Cranbourne and used the victim's bank card to purchase several cans of Woodstock bourbon over two transactions for $40.98 and $59.97 respectively. This conduct forms the basis of Charge 3 – obtaining a financial advantage by deception.

15After his car was stolen, Mr Susan hailed down another motorist, who assisted him to call police. The police arrived at the Cranbourne Railway Station at 1.37pm and Mr Susan told them that one of the offenders was a friend from school, who he knew by the name “Marcello”.

16The police traced Mr Susan’s phone using mobile phone towers and determined that it was in the Cranbourne North Area. Then, at approximately 1.45pm, police observed you and Mr Constable walking in the Cranbourne North area. When the police approached you, you both ran off in separate directions. When police caught up to Mr Constable he gave them his name and date of birth.

17Another police officer arrested you at a shopping complex in Cranbourne North. Upon being searched, the police located Mr Susan’s bank cards and the key to his car in a bag you were carrying. You identified the area you had parked the stolen vehicle, which was then recovered.

18

You were interview by police later that day at Narre Warren Police Station. During that interview you made a number of admissions, including arranging with your

co-offender to rob Mr Susan of his “car, wallet and stuff”, the night before. You told police you chose Mr Susan as “he had a nice car and he was just an easy target”, saying that your friends “don’t really like white people”.  You explained to police that you had recently lost your job and were desperate for money.

19You told police that you knew the co-offender had a knife on him, and that you had talked about “poking” the victim. You said that you had told the co-offender that he did not need to use the knife. You agreed that the co-offender held the knife “5cm from the victim”, and that while he was doing this, you were shouting at the victim to “be quick and stuff”, so you could get the passwords to his mobile phone and bank cards before stealing the car.

Procedural history

20The procedural history of this matter is as follows.

21You were charged with the offending and remanded in custody on 26 January 2020 and remained in custody for 41 days before being granted bail by the Magistrates’ Court in March 2020.

22On 21 July 2020, the co-offender was sentenced to 20 months’ imprisonment on the charge of aggravated carjacking and two months’ imprisonment for the charge of theft, with a total effective sentence of 21 months’ imprisonment. A non-parole period of nine months was fixed.

23Mr Constable had entered an early plea to the charges and of significance, had given an undertaking to give evidence on behalf of the prosecution in your case. Mr Constable was 18 years old at the time of the offending and had no prior or subsequent criminal convictions. Given his undertaking to give evidence in respect of the charges brought against you, the mandatory non-parole provisions had no application to his sentence.

24A contested committal proceeded in the Magistrates’ Court on 11 February 2021, and the complainant and the informant were cross-examined. You were remanded on this date, and spent a further 40 days in custody, until being granted bail again on 22 March 2022.

25A pre-trial hearing was conducted on 22 September 2021 at which Mr Constable gave evidence and was cross-examined.

26A trial in relation to your charges, listed to commence on 28 July 2022, could not proceed due to the unavailability of Mr Constable. The adjournment of the trial on that date occurred through no fault of yours.

27Then, on 28 February 2023, you entered a guilty plea to the charges for which you are to be sentenced. The plea hearing was adjourned to 29 May 2023 for psychological material to be obtained in aid of your plea.

Offence gravity and victim impact

28The legislature has made it clear that aggravated carjacking is a serious offence as reflected in the maximum penalty of 25 years' imprisonment and the mandatory minimum non-parole period of three years’ imprisonment, unless a special reason exists.

29Whilst your offending was not sophisticated, it was planned and was instigated by you. You recruited the co-offender to your plan and arranged for him to attend wearing gloves and a balaclava. You lured the victim to meet with you, in broad daylight. The fact the victim knew you from school gave him a false sense of security. You were aware that the co-offender had a knife on him and made demands of the victim when he was being threatened with the knife. It is fortunate the victim was not physically injured, and that the confrontation did not escalate beyond the threat to inflict harm with the knife.

30The fact the co-offender was disguised, with his face covered, whilst brandishing a knife, meant he presented as a terrifying figure to the victim. This much is borne out by Mr Susan’s victim impact statement.

31Understandably, Mr Susan says he feared for his life during these terrifying events. Since this incident, he says he continues to feel unsafe in the community and remains wary of others. Your confrontational offending, motivated by a desire to steal the victim’s car, has had a significant and enduring impact on him.

32Given you were known to the victim, your role in the aggravated carjacking was inevitably going to be detected.

33This was undeniably serious offending. Your moral culpability for the offending, which was instigated and planned by you, is high. However, the extent of your moral culpability is also informed by your personal circumstance to which I now turn.

Personal circumstances

34You were born in Enfield, North London in May 1999 and are now 24 years old.

35Your father was originally from Jamaica and worked as a plumber in London. Your mother was born in Bangladesh and is a practitioner of traditional Islamic and Chinese medicine. You are the eldest of three siblings, with two younger sisters, who are now aged 15 and 16.

36After completing your primary school education, you migrated to Australia with your family when you were 12 years old, first living in Glen Waverley. Your formative years were adversely affected by your father’s heavy alcohol use. You report being physically and emotionally abused by your father during your childhood, in addition to witnessing arguments between your parents. Your parents ultimately separated when you were 16.

37Following the separation, your father moved out of the family home to live in Dandenong, and you moved with your mother and sisters to live in Keysborough.

38You report struggling at school, both socially and academically. You describe being withdrawn and aggressive towards other children, which you attribute to pent-up anger towards your father. You found it difficult to concentrate at school.

39You attended three secondary schools, completing Year 12 VCAL at Alkira Secondary College, including a Certificate II in Business Studies. You have since obtained a forklift licence, and traffic control and first aid certificates.

40You left home at the age of 18, living on the streets. After your mother contacted police to report you missing, you moved in with your father. However, you found this a traumatic experience, and report an incident where your father threatened you with a hammer, and where you were involved in a car chase, also involving your father. You ceased all contact with your father in August 2021.

41At the age of 19, you commenced a dysfunctional relationship with a woman who was 12 years your senior, with whom you lived for 18 months. You met at a time when you were both homeless, living on the streets. Through this relationship, you were introduced to alcohol and illicit drugs, including LSD and methamphetamine. That relationship has now ended. Until your recent remand, you were living in shared accommodation with seven other people in Dandenong.

42From the age of 19, you have had intermittent employment, undertaking general labour and packing work, through a labour hire agency. However, you missed shifts because you lacked motivation, which you attribute to your drug use. You then ceased this work. In 2021 you undertook some employment working as a receptionist for your mother. More recently, you have worked as a removalist, but continue to experience difficulty holding down a job.

43In October 2022, you report that your best friend died in a motor vehicle collision after agreeing to get into a car, whilst intoxicated. This has been a cause of considerable distress for you.

44While you had no prior criminal history at the time of this offending, you have been sentenced for subsequent offending, much of which arose in the context of family violence towards your former partner.

45On 20 May 2020, you were sentenced to an 18-month community correction order for offending that included recklessly causing injury, theft and wilfully damaging property following an incident where you assaulted your partner, causing her to lose a tooth. You were on bail at the time of this offending.

46On 16 August 2021, you were sentenced to 60 days’ imprisonment for assaulting and resisting a protective services officer. That offending also occurred in breach of bail.

47On 13 October 2021, the community correction order made on 20 May 2020 was varied and you were sentenced to a 24-month community correction order for offending that included recklessly causing injury, theft and contravening a family violence intervention order, in breach of bail. This offending also related to your former partner and contravened the community correction order imposed on 20 May 2020.

48You were assessed for the purposes of the plea by psychologist, Ms Gina Cidoni on 11 May 2023. In her report, Ms Cidoni notes that you have no history of diagnosed mental health conditions or treatment, but states that you report suicidal thoughts, with plans to overdose, in May 2020. After undertaking psychological testing, Ms Cidoni states that you presented with symptoms “akin to those seen in ADHD and Major Depressive Disorder”.[2] She also concludes you have intrusive memories of your best friend’s death, resulting in “signs of Post-Traumatic Stress Disorder”.[3]

[2]Exhibit 1 – Psychological report of Ms Gina Cidoni dated 11 May 2023, at pg. 6, [73].

[3]Ibid, [74]

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However, Ms Cidoni found difficulty confirming any diagnosed mental health disorder in circumstances where you continue to abuse methamphetamine.

Ms Cidoni explains that this drug can mimic a number of psychological conditions, including ADHD and can “engender significant mood disturbances akin to those seen in depression and psychosis”.[4]

[4]Ibid, [72]

50In her report, Ms Cidoni states that you were referred for counselling through SECADA in April 2022 during which you completed an episode of drug treatment. However, during your assessment with Ms Cidoni, you disclosed that whilst you had reduced your amphetamine use, you continue to use approximately two points of methamphetamine a day, including on the day prior to the assessment. You reported that when you use methamphetamine you experience hallucinations.

51Ultimately, Ms Cidoni was unable to definitively diagnose any mental illness due to your ongoing methamphetamine use. In her report, Ms Cidoni explains that methamphetamine use can exacerbate the symptoms associated with ADHD, such as difficulties with attention and impulsivity, and that depressive symptoms “may be a direct result of methamphetamine use, an independent disorder, or a combination of both”[5].

[5]Ibid, [73]

52Ms Cidoni concludes that your illicit drug use was the major factor in your offending, combined with your youth. Overall, Ms Cidoni assesses you as an impressionable and immature young man. Having assessed your risk of future violent offending utilising the VRAG risk assessment tool, Ms Cidoni considers you pose a high risk of future offending, and recommends ongoing drug treatment, combined with psychological treatment and counselling to assist in managing your emotions, in order to address that risk.

Matters relevant in mitigation of sentence

53At your plea hearing, a number of matters were raised that are relevant in mitigation of your sentence.

54First and foremost, you have pleaded guilty to these offences. Although yours was not a guilty plea entered at an early stage, there is still utility and benefit in your plea. Through your plea, you acknowledge responsibility for your offending.  Your guilty plea also saves the court and the community the time and cost associated with a jury trial; a matter that is of heightened significance given the backlog in trials that continue in the wake of the pandemic.[6]

[6]Worboyes v. The Queen [2021] VSCA 169

55Beyond the remorse reflected in your guilty plea, there is no other evidence demonstrating remorse or regret for your conduct or insight into the impact of your offending on the victim.

56Nonetheless, you are entitled to a discernible sentencing discount given the utility of your plea, although not as significant as the discount that applies to an early plea, or one accompanied by genuine remorse.

57Secondly, your youth remains relevant to your sentence. As stated, you were 20 years old at the time of the offending and have just turned 24. Ms Cidoni assesses you as “impressionable and immature”.

58The principles that apply when sentencing young offenders are well-established.  In 2011, in the case of Azzopardi v The Queen, Redlich JA distilled the principles from the established authorities, stating:[7]

“Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult.   They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’.   This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.  No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’.

Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation".” 

[7]Azzopardi v The Queen [2011] VSCA 372 at [34] –[36]

59These observations are echoed in the psychological report of Ms Cidoni who, after setting out the generally recognised psychological immaturity of young offenders and the impact of youth in increasing impulsivity, risk-taking and poor decision-making, states:[8]

“…Incarceration can be counterproductive to someone like Marcello who is impressionable, immature, and struggling with drug use… prison environments are often not conducive to rehabilitation. For an impressionable and immature individual like Marcello, being in such an environment might expose him to negative influences, potentially worsening his behaviour rather than encouraging positive change.”

[8]Exhibit 1 – page 7,  [86] – [87]

60The authorities also make it clear that the more serious the offence, the more the mitigating effect of youth diminishes. I accept that your youth and immaturity operate to moderate your moral culpability for your conduct to a degree. I also give some weight to Ms Cidoni’s assessment that aspects of your cognitive functioning, in particular, your ability to ‘sustain attention, concentrate and exert mental control’ fall within the borderline range.[9]

[9]Ibid, at [47]

61Thirdly, I have had regard to your difficult and disrupted early childhood, during which you were exposed to parental alcohol abuse and trauma for periods in which you lived with your father. As the High Court explained in Bugmy, childhood disadvantage may be relevant in assessing an offender’s moral culpability.[10]  The first – more general – proposition is in the following terms: [11]

“The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.”

[10]                See generally discussion in Direction of Public Prosecutions v Herrmann [2021] VSCA 160, [36]; Newton (a pseudonym) v The King [2023] VSCA 22, [36].

[11]        Bugmy v The Queen [2013] HCA 37, [40].

62Your moral culpability as an immature 20-year-old could not be equated with an offender whose early, formative years have not been shaped by exposure to alcohol abuse. Although your childhood experiences do not excuse your offending behaviour, I give them some weight in mitigating your moral culpability.

63It was not submitted that the second - more specific – proposition in Bugmy applies to the circumstances of your case. Ms Cidoni notes that your exposure to alcohol and methamphetamine use began from the age of 20. There is no basis to conclude that your offending behaviour was specifically, or causally connected to your childhood dysfunction, other than in the broad sense. I do not consider the more specific proposition in Bugmy applies in mitigation of your sentence.

64Finally, counsel appearing on your behalf submitted that some weight should attach to your mental health and addiction issues at the time of the offending. As a general proposition, the mental health of an offender may be relevant to sentence in a number of ways, including in reducing an offender’s moral culpability for their offending.[12] However, given Ms Cidoni’s conclusion that your ongoing abuse of amphetamines prevents a confirmed diagnosis of ADHD or a major depressive disorder, I am unable to conclude that you had a diagnosed mental health condition at the time of the offending or that any such disorder played a role in your offending.

[12]R v.Verdins 16 VR 269

65Addressing your abuse of amphetamine will be of critical importance to your future rehabilitation. This is particularly significant, noting that until this offending, you had no prior criminal history. As stated, you are a young man with much of your life to live.

66There are some positive indications for your future rehabilitation. I have been provided with a progress report from Community Corrections regarding your compliance with the community correction order imposed on 13 October 2021.[13] Overall, your progress has been assessed as positive, having completed 136 of 300 hours of unpaid community work, and undertaken 10 sessions of complex drug counselling with a clinician from SECADA under that order. Your engagement in treatment only ended when you were remanded following your plea hearing. You have demonstrated motivation to engage in treatment and an ability to comply with the most recent court order, which is to your credit.

[13]Exhibit 2 – Community Correctional Services report dated 5 June 2023

67You have been motivated in the past to obtain certificates and qualifications that will assist you in obtaining future employment.

68You retain the support of your mother and sisters. Although your mother and two sisters relocated to live in the United Kingdom in October 2022, they demonstrated their ongoing support for you by travelling to Australia to be present when you entered your plea, and in appearing online at all your plea hearings.

69Whilst you have been assessed by Ms Cidoni as posing a high risk of future offending, with ongoing drug treatment and counselling, I do not assess your future prospects as poor. I consider you have reasonably good prospects of rehabilitation. My improved assessment of your rehabilitation prospects arises from the extent of your compliance with the community correction order imposed in October 2021. Much will depend on your ability to maintain abstinence from illicit drugs upon your eventual release from custody.

70Given the serious nature of this offence, there remains a need for the sentence I impose to specifically deter you from future violent offending and to protect the community from such offending, notwithstanding your lack of any prior criminal history. In reaching this conclusion, I have also had regard to the nature and extent of your subsequent criminal history, particularly for offences of violence.

71Finally, I have regard to the fact your time in custody will be difficult for a number of reasons. You are a young man whose entire family now lives in the UK, which will make your experience of custody more isolating.

72As a permanent resident in Australia, there is a risk you will ultimately be deported from the country you have lived in since the age of 12. I accept that the stress of this prospect will add to the burden of your imprisonment.

73Although it is not your first experience of custody, it will be a lengthy prison sentence and, as assessed by Ms Cidoni, your immaturity places you at increased risk of being exposed to negative influences over that period, which would undermine your future prospects. Related to this, is the prospect that a lengthy sentence will impact on your ability to reintegrate into the community upon your release.  There is a community interest in your future rehabilitation.

74Further, whilst restrictions have eased somewhat, certain limitations continue in custody to respond to the risks posed by COVID-19.

75I have taken each of these matters into account as best I can, having regard to the mandatory sentencing provisions that apply to Charge 1.

Other relevant sentencing considerations

76I now turn to other relevant sentencing considerations.

77The offence of aggravated carjacking is a category 1 offence under the Sentencing Act 1991, in respect of which s5(2G) requires the court to make an order of imprisonment.

78As stated, s10AD of the Sentencing Act 1991 provides that a minimum non-parole period of three years must be imposed for the offence of aggravated carjacking pursuant to s11 of that Act, unless a special reason exists under s10A.

79In his written submissions on your behalf, Mr Thyssen accepted that none of the exceptions in s10A(2)(a)-(d) applied, based on Ms Cidoni’s equivocal assessment of any mental health impairment in light of your methamphetamine use.[14] Although Mr Thyssen’s written submissions argued that a combination of factors could “possibly” satisfy the exception in s10A(2)(e) of the Act, he did not press this argument in his oral submissions on your behalf.

[14]Section 10A(2A) provides that subsection (2)(c)(i) does not apply to impaired mental functioning caused by self-induced intoxication.

80Section 10A(2)(e) provides an exemption to the mandatory sentencing provisions where there are substantial and compelling reasons that are exceptional and rare, and that justify not imposing such a sentence.

81In determining whether there are substantial and compelling circumstances, s10A(2B) of the Sentencing Act 1991 requires that 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 s5(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);

(ii)   an early guilty plea;

(iii)  prospects of rehabilitation; or

(iv)  parity with other sentences.

82In addition, the court must have regard to Parliament’s intention that a sentence of imprisonment with a non-parole period of no less than three years should ordinarily be imposed.

83In this case, although your youth and early childhood disadvantage are relevant in mitigation of your sentence, even in combination, they do not meet the high threshold set by Parliament for the exception in s10A(2)(e) to apply. It follows therefore, that the mandatory sentencing provisions for the offence of aggravated carjacking apply.

84As explained by the Court of Appeal in Mammoliti v The Queen,[15] the mandatory minimum non-parole period operates as a legislative yardstick, that sits alongside established sentencing principles, and is not intended to depart form the instinctive synthesis approach to sentencing.

[15]Mammoliti v The Queen [2020] VSCA 52

85I have had regard to the purposes of imposing sentence as set out in s5 of the Sentencing Act 1991. In the circumstances of this case, the prosecution’s submission that general deterrence, just punishment and denunciation are the paramount sentencing considerations must be accepted.  In sentencing you, other people must be deterred from confrontational, violent offending, involving the use of weapons, in order to steal vehicles. The community must be protected from such serious offending, and your conduct clearly denounced.

86On your behalf, whilst it was acknowledged that the mandatory minimum non-parole period must be reflected in the head sentence, in light of your youth, lack of any prior criminal history and childhood disadvantage it was submitted that the head sentence should be kept to a minimum.

87I have also had regard to current sentencing practices for the offence of aggravated carjacking. I was referred to two cases, AP (a pseudonym) v The Queen[16] and DPP v Smith,[17] on your behalf. I have had regard to these decisions as a guide to discerning a sentencing range for this offence. However, current sentencing practices do not govern or control the sentence to be imposed.

[16]AP (a pseudonym) v The Queen [2019] VSCA 278

[17]DPP v Smith [2022] VCC 358

88Finally, I refer to the sentence imposed on your co-offender, Mr Constable. Generally, the law requires that the sentencing principle of parity applies to co-offenders unless their circumstances differ. In this case, the co-offender was sentenced to a significantly lower sentence of imprisonment than you will receive. This is because of the undertaking the co-offender gave to give evidence for the prosecution in respect of the charges brought against you. In giving this undertaking, the mandatory sentencing provisions did not apply. This fact, combined with the co-offender’s early guilty plea, entitled him to a significant sentencing discount.

Sentence

89Balancing the various considerations to which I have referred, whilst guided by the maximum penalties for each offence and the mandatory non-parole period that applies to the offence of aggravated carjacking, I sentence you as follows:

90Charge 1 – aggravated carjacking – you are convicted and sentenced to three years, six months’ imprisonment. This is the base sentence;

91On charge 2 – theft – you are convicted and sentenced to 6 months’ imprisonment.

92On charge 3 – obtaining a financial advantage by deception – you are convicted and sentenced to 3 months’ imprisonment.

93In determining the appropriate orders for cumulation, I have regard to the fact that the theft of the victim’s bank cards and mobile phone arose during the course of the one incident and there is significant overlap in this conduct and the offending giving rise to Charge 1. Accordingly, I order that two months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1. I make no order for cumulation in respect of Charge 3 which is to be served concurrently with the sentences imposed on Charges 1 and 2.

94This gives a total effective sentence of three years, eight months’ imprisonment.

95Pursuant to s10AD and s 11 of the Sentencing Act 1991, I fix a period of three years’ before you are eligible for parole.

96Pursuant to s18 of the Sentencing Act 1991, I declare that 89 days of pre-sentence detention be reckoned as already served under the sentence I have imposed.

97Pursuant to s89(4) of the Sentencing Act 1991, your licence is cancelled, and you are disqualified from driving for a period of 18 months, with effect from today.

98I make the disposal order sought by the prosecution, noting that it is not opposed.

99Finally, s6AAA of the Sentencing Act 1991 requires me to state the sentence that I would have imposed had you not pleaded guilty to these offences. If not for your plea of guilty, the sentence I would otherwise have imposed is a sentence of 4 years, eight months imprisonment with a non-parole period of three years.

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