Director of Public Prosecutions v Buckley
[2021] VCC 1186
•18 August 2021
aUG
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-01327
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEAU BUCKLEY |
JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2021 | |
DATE OF SENTENCE: | 18 August 2021 | |
CASE MAY BE CITED AS: | DPP v BUCKLEY | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1186 | |
REASONS FOR SENTENCE
Catchwords: Sentence – Aggravated Carjacking. Committed in company at night. Both offenders armed with knives. Category 1 offence. Mandatory non-parole period of at least 3 years. Offender aged 18. Whether substantial and compelling circumstances that are exceptional and rare allowed the court to find special reasons. No special reasons found.
Legislation Cited – Sentencing Act1991 (Vic).
Cases Cited – Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213; Mammoliti v The Queen [2020] VSCA 52; Worboyes v The Queen [2021] VSCA 169; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Deltondo | Office of Public Prosecutions |
| For the Accused | Ms M. Greener | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1Beau Buckley, you have pleaded guilty to an indictment containing a single charge of aggravated carjacking, contrary to s 79A Crimes Act 1958. This offence carries a maximum penalty of 25 years' imprisonment.
2You were born on the 4 February 2003. This offending occurred in the early hours of 4 March 2021, a month after you had turned 18.
3Pursuant to s 3(1)(ib) Sentencing Act 1991 ('Sentencing Act') aggravated carjacking is a Category 1 offence. Further, pursuant to s 10AD of the Sentencing Act, unless the court finds that a special reason exists, I am obliged to impose a non-parole period of not less than three years.
Circumstances of the offending
4 The circumstances of your offending are set out in the prosecution opening dated 21 July 2021.[1] Your counsel indicated that the opening was an agreed document for the purpose of sentencing. You will be sentenced in accordance with the facts outlined in the opening. I will now, briefly, set out the facts of your offending.
[1] Exhibit A.
5 The victim, Lu Zhang, was 25 years of age at the time of offending. He ran his own business selling cream chargers, also known as ‘nangs’. He advertised the cream chargers on a website and on Facebook. Mr Zhang had made a previous delivery of chargers to your home address, on 6 February 2021.
6 At about 3:33am, on 4 March 2021, Mr Zhang received a phone call on his mobile from a male with no caller ID. The caller ordered 500 cream chargers and requested that they be delivered, as soon as possible, to an address, in Hillside for the agreed price of $300. Mr Zhang requested and was provided with a phone number by the caller.
7 Mr Zhang left his home address in his vehicle and arrived outside the delivery address at about 4.40am. He noticed that there was no-one in the street and there were no lights on houses nearby. Mr Zhang called the number he was provided, but the call did not connect. Some five or 10 minutes later, you, Mr Buckley, and your co-offender, Stanley Reid[2] approached Mr Zhang’s vehicle from behind and waved to him. Mr Zhang put his car window down and asked if you had ordered the cream chargers to which both of you replied, 'yes.'
[2] A pseudonym; Stanley Reid’s matter is before the Children’s’ Court awaiting a further plea hearing.
8 Mr Zhang got out of his car and requested payment for the cream chargers. You pretended to pat your pockets down for cash and pulled out a folding knife, approximately 10 centimetres in length and pointed it at Mr Zhang. Mr Reid also pulled out a knife, approximately 30 centimetres in length. Both of you got closer to Mr Zhang with your knives pointed at him. You, Mr Buckley said, 'give me the key if you don’t want to get hurt.' Mr Zhang handed over his car keys to you. Mr Reid asked him for his phone. The victim had two phones in his jacket pocket and handed over one of them. Both you and Mr Reid entered the vehicle. Mr Reid sat in the driver’s seat and drove off. These facts give rise to the aggravated carjacking for which you are to be sentenced.
9 At the time of the offending, you had consumed and were under the influence of Xanax. The fact that you were intoxicated provides no excuse for the offending that you engaged in.
Arrest and Interview
10 On 4 March 2021, police attended your home address and arrested you. You gave the police six boxes of cream chargers from under your bed. You told the police that all the other items were with your co-offender or in the stolen vehicle. Your co-offender directed the police to the stolen vehicle, and it was recovered.
11 Mobile phone records revealed three phone calls being made to the victim’s mobile phone from a phone registered in your mother’s name. The calls were made on the 4 March 2021 at 3.11am, 4.03am and 10.04am.
12 Videos were located on Mr Reid’s phone, showing you both in the stolen vehicle.
13 You participated in a group conversation on Snapchat after the offending and prior to arrest. You stated:
He 'had the knife up to his neck the whole time'
That 'when me and [Mr Reid] said we were gonna do a CJ one day we meant it:)'
We 'made sure to take his phone to so he could not call the cops.'
You also stated that the victim 'thought it was the last time he was going to see the planet earth.'
14 These messages demonstrate an absence of remorse at that stage. They are indicative of your realisation of how fearful the victim would have been at the time of the offending.
15 In your police interview, you stated that you may have called the victim on the 6 February 2021 to order 'nangs.' However, you denied any involvement in the offending. You told the police that on the evening of 3 March 2021 you had gone to Mr Reid’s house where you remained until the following morning. At around 9am or 10am, you took an uber back home to Sunshine West. You were unable to explain the mobile phone records revealing calls to the victim that morning. When shown the videos on the Snapchat account of the vehicle with 'nangs', you said that you had, 'nothing to say.'
Victim impact statement
16 The victim, Mr Zhang, has made a victim impact statement dated 21 June 2021.[3] I have had regard to the impact of the offending upon Mr Zhang. Mr Zhang states that he experienced feelings of panic, fear, anxiety and unease. He has suffered from insomnia and has been fearful of leaving his house. He contemplated returning to China. It is not the least surprising that Mr Zhang has been affected in the way he has described by your offending.
Personal circumstances
[3] It was made in Chinese and translated into English on the 24 June 2021 – Exhibit B.
17 I will now refer to your personal circumstances. They were outlined by your counsel during the plea hearing and in her written submissions.[4] They are also alluded to in Dr Cunningham’s psychological report dated 7 July 2021[5] and Mr Lucas Coulson’s report dated 19 October 2020.[6]
[4] Exhibit 1.
[5] Exhibit 2.
[6] Exhibit 15.
18 You were born and raised in the Western Suburbs. You have one sibling, an older sister. Your mother worked as schoolteacher and an integration aid and your father in the tiling and carpeting industry. Your parents separated when you were aged four. You and your sister lived with your mother. You describe your relationship with your mother as caring, loving, and supportive.
19 You attended two local primary schools in the Western suburbs. You told Mr Coulson that you were the 'class clown.' You would bully and tease other students. Your mother told Mr Coulson that you were deceitful, disrespected your teachers, refused to do your work, distracted other students, and had concentration issues. Your behaviour improved when you moved to a new primary school in Year 6. However, in your secondary education, you disliked your principal. You were suspended on many occasions for various reasons including fighting and swearing. You attended a second high school where your behaviour again improved because you thought you were 'on my last chance.' You eventually dropped out of school at the age of 16 in February 2019.
20 Despite your disruptive behaviour at school, you did well in sports. In particular, you played baseball for a club in Melbourne and represented Australia at the age of 13 or 14 in Japan in a baseball tournament.
21 When you were around 14 years old, your mother relocated to regional Victoria. You then lived with your father in Geelong. You didn’t enjoy a good relationship with your father and felt emotionally abused by him. You had witnessed your father scream at your mother and threaten her with violence.
22 You did enjoy a good relationship with your grandparents on both sides. Your paternal and maternal grandmothers passed away within a few months of each other in 2018 and 2019 which you found hard to deal with.
23 Regrettably, you began using cannabis around the age of 13. You used it over some years and was using it daily when you were in Year 8. You have also used MDMA, cocaine, Xanax and ketamine. You have been addicted to benzodiazepine (especially alprazolam). It appears, because of withdrawal from benzodiazepine, you suffered a seizure and were taken to the Sunshine Hospital Emergency Department on the 15 May 2020.[7] You began using Xanax in 2018. You were under the influence of Xanax at the time of committing the aggravated carjacking.
[7] See Exhibits 16 and 17.
24 Your mother returned to Melbourne in March 2020 to help you get back on the right track. You lived with her in rental accommodation. There was a period when you were on Youth Supervised Bail and you were doing well. However, you relapsed into drug use and committed the offending for which you now fall to be sentenced.
Gravity of the offending
25 The court must also have regard to the objective gravity of the offending for which you now fall to be sentenced.
26 Aggravated carjacking is an inherently serious offence. This is clearly demonstrated by both the maximum penalty fixed by Parliament, namely 25 years' imprisonment and the mandatory non-parole period of three years in the case of offenders aged 18 and over.
27 The victim arrived in his car outside the address in the middle of the night. The circumstances indicate that the offending was premeditated. Both you and Mr Reid were armed with a knife. You and your co-offender pointed your respective knives at the victim and succeeded in creating a fear in him as a result of which, following a threat by you, he parted with his keys allowing you to steal his vehicle. Of course, being armed with a knife is not an aggravating feature as it is an element of the offence. However, the fact that two knives were produced and directed at the victim by two offenders made the offending more serious. Thankfully, no actual force was applied, but one can easily comprehend the fear the victim would have felt in circumstances where he was alone and isolated in a dark street with two knives pointed in his direction. The impact upon him was significant such that he contemplated leaving Australia. At the time of this offending, you were on a probation order. This was serious offending and certainly cannot be described as at a lower level.
Criminal history
28 You have a criminal history comprising some 18 offences across three appearances in the Children’s Court. On the 7 November 2019, you were sentenced to a Good Behaviour Bond without conviction for offences of affray, behaving in an offensive manner in a public place and drunk and disorderly. On 20 November 2019, you again received a no conviction Good Behaviour Bond for offences of burglary, commit indictable offences whilst on bail and resist an emergency worker on duty. On 10 December 2020, you were sentenced without conviction to a nine-month probation order in respect of many offences including robbery, unlawful assault, criminal damage, theft of a motor vehicle, trafficking drug of dependence, possess cannabis, possess a prescription drug, entering a public place without authority and two offences of committing an indictable offence whilst on bail. Most of this offending occurred whilst you were under the influence of illicit substances.
29 Prior to the imposition of the probation order, you had been on Youth Justice Supervised Bail since May 2020.[8] It appears that you were assisted with a range of community supports, including drug and alcohol counselling, family counselling and employment and training support. You also participated in weekly supervision sessions. You appeared to have done well on Supervised Bail which led the court to give you further support in the form of a probation order. Regrettably, you committed the offence in respect of which this court will now sentence you within three months of the imposition of the order.
[8] Exhibit D.
30 You told Dr Cunningham that following a fight with your mother, you called your drug dealer and relapsed into drug abuse and association with drug using peers and shortly thereafter, committed the aggravated carjacking.
31 The above matters indicate that any sentence I impose must also specifically deter you from committing further offending.
Substantial and compelling circumstances that are exceptional and rare
32 Your counsel, Ms Greener submits, pursuant to s 10A(2)(e) Sentencing Act I should find that there are substantial and compelling reasons that are exceptional and rare such that the mandatory non-parole period should not apply.
33 On behalf of the Director, Ms Deltondo submits the high hurdle that this residual category imposes is not met in order to displace the mandatory non-parole period.
34 In determining if there are substantial and compelling reasons that are exceptional and rare, I must give general deterrence and denunciation greater importance. I must give less weight to your personal circumstances than to matters such as the nature and gravity of the offending. I must not consider your prior good character (other than a lack of previous convictions or findings of guilt), early guilty plea, prospects for rehabilitation, or parity. I must give regard to Parliament’s intention that a custodial term should ordinarily be imposed.
35 The existence of substantial and compelling circumstances that are exceptional and rare is a residual category of limited scope. It is a very high hurdle that will not often be surmounted.[9]
[9] Farmer v The Queen [2020] VSCA 140, [51] (‘Farmer’).
36 It presents a stringent test, but in which the accumulation of detail may compel a conclusion that the mandatory provisions should not apply.[10]
[10] Ibid [52] – [53].
37 Mr Buckley bears no onus to satisfy the court that there exist substantial and compelling circumstances that are exceptional and rare. This is an evaluative judgment for the court to make.[11]
[11] Fariah v The Queen [2021] VSCA 213, [24]. This was in the context of s 5(2H)(e) Sentencing Act 1991 relating to category 2 offences. Those provisions are similar to those in s 10A.
38 The mere fact that some individual circumstances are encountered commonly by sentencing judges in this Court, do not deprive them of their character as substantial and compelling and exceptional and rare. Each case will depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception.[12]
[12] Ibid [25].
39 Ms Greener submitted that (i) your youth and (ii) the low-level offending, in combination should allow the court to find substantial and compelling circumstances that are exceptional and rare.
Youth
40 Ms Greener submitted that you turned 18 only a month before the offending. She relied upon matters raised in Dr Cunningham’s psychological report.
41 Dr Cunningham found no evidence of an intellectual disability. The report raises no Verdins issues. He states that you presented with significant emotional and psychological immaturity. You struggled at school in the context of an undiagnosed verbal learning impairment and poor emotional regulation. You have had a history of self-harm, feelings of worthlessness and have had thoughts of suicide that increased when you were first incarcerated. Dr Cunningham further states that you present as immature, naïve and impressionable and would be at risk of further contamination and manipulation in an adult prison.
42 Ms Greener further submitted that you had been suspended from school regularly and you would bite your hairs on your arms and cut your wrists. She stated, you had a profile of a person who has had a childhood marked by behavioural issues which you have not had the opportunity to address. She likened your undiagnosed childhood issues in the same category as the applicant suffering with alopecia in Farmer.
43 Youth is of course an important mitigating factor in your case. However, in the context of special reasons, the mandatory sentencing regime applies to offenders aged 18 and above.
44 In Farmer, the Court of Appeal said:
In other cases a term of imprisonment or youth detention would be entirely unjustified, counterproductive from the viewpoint of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree paragraph (2H)(e) guards against the risk of injustice. But the stringency of the test cannot be avoided.[13]
[13] Farmer [52]
45 The Court further added:
The Judge was correct in concluding that a young offender who will be vulnerable in custody and who suffers from anxiety but who has committed a very serious offence is not rare or unforeseen.[14]
[14] Farmer [54]. The applicant was 18 years old.
46 In relation to your immaturity and vulnerability in custody, despite the concerns raised by Dr Cunningham, your parents' reference paints a more encouraging, and if I may say so, a candid picture of your time on remand. They have had the advantage of daily contact with you via phone, email and letters. You have been able to communicate with them, your sister and girlfriend online as well, once a week. They state that during your incarceration in custody, you have matured significantly and remained positive. They confirm your participation in many courses and in sporting activities. You are keeping yourself fit, eating well and looking after yourself. They say that you are looking forward to a new and positive start.
47 In your letter to the court,[15] you echo the matters raised by your parents. You state that whilst on remand, you have matured greatly and have been reflecting on your criminal offending. You look forward to coming out a much better person.
[15] Exhibit 10.
48 Further, I note that through your counsel you have indicated that you prefer to serve any custodial sentence in adult prison and do not wish me to make any recommendation that you be transferred to custody in a Youth Justice Centre.
49 I do not accept that your background and any undiagnosed behavioural or learning issues can be likened to the circumstances faced by the applicant in Farmer. Of course, there is no requirement that your circumstances must mirror those of the applicant in Farmer. Each case has its own distinctive facts. However, I address it as it has been raised by your counsel.
50 Farmer was a most unusual case due to the physical disfigurement the applicant suffered from. The disfigurement had a profound impact on his life. Alopecia at the age of 13 or 14 was a rare condition. It led to bullying at school. The applicant became isolated and was afraid to leave home. The effect of the alopecia led to a diagnosis of a Generalised Anxiety Disorder (with depression) and Agoraphobia. It was his disfigurement which provided an explanation for his involvement in the offending. There was a direct link between his physical affliction and his decision to become involved in the offending. His moral culpability was significantly reduced. Further, his disfigurement would expose him to bullying and ridicule in prison.
51 Prior to the offending for which you are to be sentenced, you had enjoyed a period of stability when you participated in Youth Supervised Bail from March 2020 up to the imposition of a probation order on the 10 December 2020. During your supervised bail you had ceased Xanax use and had participated in various rehabilitative programs, including drug and alcohol counselling, family counselling and employment and training support. Wombat Housing Support Services assisted you in December 2020 with finding transitional housing. Irene Rossello, in her reference dated 17 June 2021[16] states:
Throughout my time working with Beau, he was consistent with keeping his appointments, communicated well with workers and showed a great deal of insight into his personal situation.
[16] Exhibit 11.
52 Plainly you were on your best behaviour and displayed no behavioural issues of any concern during this extended period between March and December 2020. On the 10 December 2020, you were placed on a probation order, with the hope that you would continue the progress you had demonstrated on bail. However, as already alluded to, you returned to abusing drugs, in particular Xanax. You were high on Xanax at the time you committed the aggravated carjacking.
53 In terms of any behavioural issues, it is noted that many of the references describe you variously as a caring, polite, helpful, and good-mannered person. I also note that you have played baseball for a club and have represented Australia in a baseball competition in Japan when you were aged 14. Whilst you were suspended from school many times, there were also periods when you were well behaved at school.
54 There is no evidential link that any undiagnosed issues contributed in any way to the offending for which I am to sentence you.
Gravity of the offending
55 Ms Greener also submits that your offending falls at the lower end. She argues that many features such as disguises, firearms, and the actual use of violence are absent. That may be so, but I must sentence you on the facts before me. I have already dealt with the objective gravity of the offending. The facts indicate this was serious offending and certainly not at the lower end. I repeat, it was committed in company where both you and your co-offender produced knives, pointing them at the victim. You uttered a threat that he give you his key if he didn’t want to get hurt. The victim, through the fear generated, was immediately compliant. The offending was pre-meditated. It occurred in the early hours of the morning when it was dark and no one else was around. The victim was impacted in the manner he alludes to in his victim impact statement. You were subject to a court order at the time of the offending.
56 Ms Greener submitted that beyond the presence of knives, there was no evidence that the offending was pre-meditated. I am satisfied, as submitted by Ms Deltondo, that the only reasonable inference on the evidence before me is that you had planned to commit the aggravated carjacking.
57 I accept that 18-year-olds may boast and exaggerate on online chat groups in an effort to impress their friends. I do not need to rely upon your snapchat communications to find that the offending was planned but they confirm what the circumstances of the offending alone, irresistibly suggest, beyond any reasonable doubt as to the premeditated nature of the offending. I am satisfied it is the only reasonable inference to be drawn from the facts of this case. You and your co-offender called the victim from a withheld number and arranged a meeting at a location away from your homes. Once the victim arrived at the location, you and your co-offender, armed with knives approached his vehicle. The victim having got out of his car, asked for payment. You and your co-offender pulled out your knives and you told the victim to give you his key if he didn’t want to get hurt. You and the co-offender’s actions demonstrate your immediate interest was in the car which contained the boxes of the cream chargers. It may not have been the most sophisticated planning, but the offending was not opportunistic.
58 Therefore, regrettably, I do not find that the circumstances relied upon alone or in combination, allow me to come to the conclusion that they are substantial and compelling that are exceptional and rare. Accordingly, I am bound by the legislation that directs me to impose a mandatory non-parole period.[17]
[17] Aggravated carjacking is also a category A serious youth offence. I am unable to impose a youth justice centre unless satisfied exceptional circumstances exist pursuant to s 32(2C) Sentencing Act 1991. However, as I have not found that a special reason exists, I do not need to consider the possibility of a youth justice centre.
59 This is a case, however, where you have the benefit of some strong mitigation.
Matters in mitigation
60 I take into account a number of matters raised by Ms Greener in her oral and written plea submissions.[18]
Guilty plea
[18] Exhibit 1.
61 I accept that your plea of guilty was entered at the earliest opportunity and entitles you to a significant discount in your sentence. Your plea of guilty has saved the community the time and cost of a trial and has spared the victim from having to give evidence. Your plea has facilitated the course of justice and you have taken responsibility for your actions. The utilitarian benefit of your plea assumes much greater significance in the current COVID-19 environment when the court is facing an increased backlog of trials.[19] I also accept that your plea of guilty is demonstrative of genuine remorse.
[19] See Worboyes v The Queen [2021] VSCA 169, [35] – [39].
62 Since your arrest and remand in custody, you have made no application for bail. Your plea of guilty, your expressions of remorse to your family and sentiments expressed in your letter of apology, leave me in no doubt that you are remorseful. In your letter, you state:
I am writing to you to tell you how sorry and remorseful I am and how I’m feeling with the current situation I am in. I am honestly so deeply remorseful to the victim involved, the community, as well as my family who have supported me all my life. I am so disappointed in myself, especially since my mother put her life on hold for me for 12 months when she moved back to Melbourne to be with me, to guide me and for me to not be in the position I am now in. I am so disappointed that I’ve failed both of my parents.
63 Mr Buckley you are only 18 years of age. You are a young offender. Your youth is a significant factor that I must take into account. I must firmly bear in mind the question of your rehabilitation. Your successful rehabilitation and the hope that you can lead a law-abiding life is in the interests of the wider community. Since your remand, you have utilised your time in a constructive manner. You have completed several courses. You are currently working in your unit as a cleaning billet.
64 I further accept that your time in custody, has been and will continue to be burdensome because of the following matters:
(i) You are young and experiencing your first time in custody, and that too in an adult prison.
(ii) As a result of the COVID-19 pandemic, you have endured many lockdowns. Personal visits have been significantly curtailed. Whilst you have undertaken a number of courses, they are also limited. There is the additional stress and concern of contracting the virus in an environment where you have little control. There is concern over your loved one’s health.
(iii) Some seven weeks after your remand in custody, your girlfriend with whom you have been in a relationship for three years, was diagnosed with cancer in the lymph nodes. She is currently undergoing chemotherapy. I accept that you are experiencing anguish at not being with her in her time of need. This will also make any time in custody more burdensome.[20]
Relevant sentencing principles
[20] Exhibits 12 and 13.
65 General deterrence and denunciation are important sentencing considerations in this case. Aggravated carjacking is an offence that strikes fear into the minds of those upon whom it is perpetrated and is a cause of concern for the community generally. The sentence I impose must seek to deter other like-minded persons from engaging in this type of conduct and make clear, on behalf of the community, that it will not be tolerated.
66 Given the nature and gravity of the offence of the aggravated carjacking, the fact that you committed it whilst subject to a probation order, and your Children’s Court history, there is also a need to deter you from engaging in this or any similar conduct in the future.
67 Protection of the community and just punishment also assume importance. Your offending must be denounced.
68 Your successful rehabilitation is important and clearly in the interests of the community. Dr Cunningham has assessed your risk of future violent offending as moderate. As Dr Cunningham states, ceasing drug abuse and association with antisocial peers will be central in reducing your risk of re-offending. Although your prospects of rehabilitation are somewhat guarded, they will improve if you make a fresh start remaining free from drug use and away from negative influences.
69 The positivity and the clear mind that you currently enjoy, is something that you must maintain when you are released into the community. You intend to start afresh, living and working in regional Victoria with the support and guidance of your mother. It is hoped that you will lead a successful and law-abiding life.
Sentencing
70 Mr Buckley, I have had regard to all the plea material that was tendered on your behalf.[21]
[21] Exhibits 1 – 18.
71 I have had regard to the case of Mammoliti v The Queen [2020] VSCA 52 ('Mammoliti') and the other aggravated carjacking cases referred to in that decision at paragraph [56]. In Mammoliti, McLeish and Emerton JJA said that lower individual sentences for aggravated carjacking may be permitted in multiple charge cases.[22] Therefore, sentences for aggravated carjacking imposed under s10AD in multiple charge cases must be treated with considerable caution when sentencing in a single offence case.
[22] See Justice Croucher at [73] expressing his view that the notional minimum sentence of three and a half years’ imprisonment should be regarded as applying to every offence of aggravated carjacking, whether charged as a single offence or as one of multiple such offences on an indictment.
72 In any event current sentencing practices are a factor but do not have a controlling effect.[23]
[23] DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 450 [68].
73 Having carefully considered all the matters raised in this case, and weighed the various sentencing considerations, I sentence you, Mr Buckley as follows:
74 On Charge 1 on the indictment, aggravated carjacking, Mr Buckley, you will be convicted and sentenced to a term of three years and six months' imprisonment. I will fix a non-parole period of three years.
75 Pursuant to s 89(4) of the Sentencing Act your licence will be cancelled and you will be disqualified for a period of two and a half years from today's date.
Pre-sentence detention
76 Pursuant to s 18 Sentencing Act, the period of 167 days of pre-sentence detention, not including today's date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the court records.
Section 6AAA declaration
77 Pursuant to s 6AAA of the Sentencing Act, I indicate that had Mr Buckley pleaded not guilty, he would have been sentenced to a term of five years and six months imprisonment with a non-parole period of four years.
78 I would have recommended that the Adult Parole Board consider your suitability to be transferred to a Youth Justice Centre to serve at least part of your sentence. However, you have indicated that you do not wish me to make any such recommendation.
79 Thank you. Anything arising Ms Deltondo.
80 MS DELTONDO: No, Your Honour.
81 HIS HONOUR: Ms Greener?
82 MS GREENER: No, Your Honour.
83 HIS HONOUR: Thank you. Ms Greener, would you like an opportunity to speak to Mr Buckley?
84 MS GREENER: Yes, Your Honour.
85 HIS HONOUR: Yes, thank you. I will rise.
86 MS GREENER: As Your Honour pleases.
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