Director of Public Prosecutions v Butler
[2020] VCC 1370
•3 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02514
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOEL BUTLER |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2020 | |
DATE OF SENTENCE: | 3 September 2020 | |
CASE MAY BE CITED AS: | DPP v Butler | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1370 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – aggravated carjacking, obtain property by deception, multiple theft charges, damaging property – youthful offender – participation in sentencing conversation – early plea of guilty – mandatory imprisonment offence (category 1 offence) – mandatory non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L Harrison | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr B Nibbs | Geoff Clancy |
HER HONOUR:
1 Joel Butler, you have pleaded guilty before me to one charge of aggravated carjacking. The offence is very serious and that is reflected in the maximum penalty that is prescribed by Parliament of 25 years’ imprisonment.[1]
[1]s79A Crimes Act 1958
2 The offence is a category 1 offence requiring a period of imprisonment.[2] In order to recognise the particular seriousness of this offence s10AD of the Sentencing Act requires the imposition of a term of imprisonment and the fixing of a non-parole period of not less than three years, unless the court finds under s10A Sentencing Act that a “special reason” exists.[3]
[2]s5(2G)Sentencing Act 1991
[3]s10A of the Sentencing Act 1991 sets out the circumstances where a court may make a finding that a special reason exists for the purposes of s10AD
3 In addition, you have pleaded guilty to five charges of theft and one charge of obtain property by deception. Both of those charges have a maximum penalty of 10 years’ imprisonment.
4 In addition, you have admitted your prior criminal history. You have had a long history of involvement with the juvenile justice system. The appearances commence at the Wodonga Children’s Court on 27 August 2013 and span the period to 8 May 2019.
5 There are relevant prior appearances for theft of motor vehicle (2013, 2015, 2017 and 2018) and the matter that was dealt with in May 2019 concerned a crime of violence against a person where you threatened the victim with a pair of scissors.
6 On 8 May 2019, you appeared at the Wodonga Magistrates’ Court in respect to charges of recklessly cause injury, make threat to kill, make threat to inflict serious injury and unlawful assault, for which you received a combination sentence of 75 days’ imprisonment that was served in an adult prison to be followed by a Community Correction Order of 12 months duration upon release with conditions that you perform unpaid community work, be under supervision, receive treatment and rehabilitation for drug and mental health issues, judicial monitoring and a condition that you participate in a Justice Plan effective from 8 May 2019.
7 This offending was committed during the currency of the Community Correction Order and constitutes contravention of that order. That is an aggravating feature of your offending.
8 I shall now proceed to sentence you on the basis of the Amended Summary of Prosecution Opening dated 22 July 2020 that was summarised by Mr Harrison in the plea hearing.
9 The offending took place over 6 August to 8 August 2019.
10 At the time, you were aged 19, and you are now aged 20. At law, you are a young offender. [4]
[4] s3 Sentencing Act 1991
11 There are two co-offenders in the matter.
12 The first was aged 17 at the time and her matter has proceeded in the Children’s Court on 12 December 2019. She was placed on a Youth Supervision Order in relation to two charges of theft of motor vehicle, two charges of theft, one charge of obtain property by deception, aggravated carjacking and unlawful assault. She has been before the Children’s Court on three earlier occasions but has not had any convictions recorded. Her antecedents are not as serious as yours and she was dealt with in accordance with the principles that apply in the Children’s Court when sentencing such that a disparity of sentence can be justified.
13 The second co-offender has not been dealt with at this stage.
14 You had been in a relationship with the first co-offender for about a month prior to the offending. You were both using illicit drugs heavily.
15 In brief, you and the first co-offender stole a vehicle, registration number RJW 842, belonging to Belinda Bridgeland from a carport at 29 Gordon Street, Wodonga om 6 August 2019. You then collected the second co-offender from the Wodonga area and drove towards Wangaratta (Charge 1, theft).
16 You used a debit card belonging to Ms Bridgeland that had been left in the vehicle to purchase food at McDonald’s Wangaratta (Charge 2, obtain property by deception).
17 You then attended a Petrol Plus Service Station in Benalla and filled the vehicle with petrol valued at $50 following which you drove off without making payment (Charge 3, theft).
18 At about 7.15pm on the same day, you attended the Target store in Bendigo with the first co-offender and removed some telephone accessories to the value of $59 and left the store without making payment (Charge 4, theft).
19 When approached by the duty manager from Target in Bendigo, you refused to give back the stolen items and left in the stolen vehicle.
20 On 7 August 2019, at about 2.00am, you and the first co-offender arrived at your mother’s home in Wodonga. You had parked the stolen vehicle at a nearby location and went to sleep. Eventually, Ms Bridgeland’s car was later recovered by some of her family members.
21 On 7 August 2019, at about 2.00pm, you went with the first co-offender to the Woolworths store in Wangaratta and stole a black handled kitchen knife valued at $10 (Charge 5, theft).
22 At about 2.40pm that same day you, in company with the first co-offender, were in the Big W underground carpark in Wangaratta and saw the victim, Susan Styles, walking away from her vehicle, registration number 1PW 9SK. You both approached Ms Styles and demanded the keys to her vehicle. You yelled words to the effect of “give me your fucking keys or I will stab you”.
23 Ms Styles felt something poking into her stomach and looked down and saw a knife being held by you that you were prodding her stomach with. She gave you the keys to her vehicle, following which you got into the driver’s seat with the first co-offender getting into the passenger seat, and you then drove off (Charge 6, aggravated carjacking). Ms Styles immediately reported the matter to authorities.
24 On the following day, 8 August 2019, at about 8.47am, you attended the Coles Express Service Station located at South Road, Moorabbin, where you filled the vehicle with petrol valued at $72.49 and proceeded to drive off without making payment (Charge 8, theft).
25 You were eventually located and arrested by police in company with the first co-offender at the Shell Service Station, Rutherglen. You were refuelling Ms Styles’ vehicle. Police found the knife stolen from Woolworths in Wangaratta in the vehicle that was used in the aggravated carjacking.
26 You were transported to Wangaratta Police Station. Prior to your arrest, you had slashed one of your arms and therefore required treatment. You were taken to the Wangaratta Hospital for observation. You were returned to the Wangaratta Police Station on 9 August 2019 and formally interviewed. You gave a “no comment” interview. You were remanded into custody on that date.
27 The impact of your offending has had serious consequences for Ms Styles who sets out in her Victim Impact Statement the very real erosion of her confidence and the anxiety that she has suffered following the offending. She was terrified by your actions and thought she was going to die. She is now very safety-conscious and hypervigilant in public spaces.
28 You entered a plea of guilty on 12 December 2019 in respect to each of the charges at a committal mention.
29 You have been held on remand in an adult prison. Due to the COVID-19 pandemic, there was a delay in the listing of your matter for hearing. It proceeded in the Koori Court Division on 28 July 2020.
30 This is a serious example of aggravated carjacking, having been committed in company, in broad daylight against a defenceless woman, who was entitled to feel safe using a public carpark without fear of attack. On behalf of the community I must strongly condemn your actions.
31 A stern warning needs to be sent to would be offenders that carjacking is not tolerated by the Courts.
32 You told Mr Jeffery Cummins, forensic consultant psychologist, that the offending occurred in the context of heavy methylamphetamine use. You had not been using prescription medications for about a month prior to the offending. You had broken up with a long-term girlfriend and you were mixing with negative peers. Whilst providing a context to the offending, it in no way excuses your offending behaviour.
33 I have taken into account your personal history and circumstances. By way of background you are of Aboriginal descent. Your father is Wiradjuri. You come from a very supportive family.
34 Your mother, Tania, was able to be present for the court hearing and appeared remotely. She and your father, Darren, live in Wodonga. You were born there and have always lived in Wodonga. You have an older maternal half-sister as well as an older sister and brother, each of whom live in the Albury/Wodonga area.
35 Your parents and your sister were visiting you up until the restrictions imposed by the COVID-19 pandemic and have maintained regular contact with you since the declaration of the pandemic.
36 You have very little by way of formal education, having only partially completed Year 8. You had difficulties at school and were bullied.
37 You have an intellectual disability. There is a statement of intellectual disability under the Disability Act 2006 dated 1 May 2019.
38 A report of Scott Ramsdell, psychologist, dated 21 November 2013, confirms that you were tested and found to have a full scale IQ in the extremely low range of intellectual ability and that you would likely experience significant difficulties learning at school given your reduced cognitive capacity when compared to same age peers.
39 At that stage you were in Year 7 and experiencing severe behavioural issues at school.
40 He noted that you were generally a healthy child who had no significant illnesses or traumas in childhood. There is a family history of significant mental health issues. At that time, you were being supported by Junction Support Services, Youth Justice, and Koori Support.
41 Dr Glen Chuck, psychologist, in a report dated 26 February 2015, addressed to your local doctor, Dr Quazi, notes strong ADHD traits but queries whether this is the appropriate diagnosis. He noted a full-scale IQ of 70. He recommended general counselling, cognitive behavioural therapy and anger management to deal with strong oppositional traits, explosive temper, longstanding poor sleep and emotional immaturity.
42 You have some limited work history. You worked with your mother after leaving school, cleaning with Defence housing. In 2016, you re-engaged with education and completed some VCAL programs at the local TAFE, involving building and warehousing, hospitality, kitchen operations, visual arts and tourism. In 2018, you worked for a few months at McDonald’s but your services were terminated.
43 You have had a long-term history of substance abuse, using cannabis, methylamphetamine and MDMA commencing in your early teenage years. You have indicated your desire to give up all substance use and frankly state that you do not want to be influenced by others in taking illicit substances.
44 Since being in custody you did some work in wood production undertaking table making, laminating tabletops. You commenced, but did not complete, a Certificate in Business.
45 Since 26 April 2018, you have received disability support through the National Disability Insurance Scheme. The plan is on hold whilst you are in custody. Your support is coordinated through the DHSS. You have a psychologist, Mr Christopher Kelly, who visits you regularly, including during your time spent on remand.
46 A Client Overview Report that was prepared for the Wodonga Magistrates’ Court dated 1 May 2019 confirms that you do not have any known diagnosis of mental health illness/disorder but you are prescribed and taking Olanzapine, Seroquel and Mirtazapine. In the past you have been diagnosed with depression and anxiety. The report noted that you intended to move back to live with your parents, and that your parents had applied for a public housing unit to be placed in their backyard with a view for you to build your independent living skills for the future.
47 Following the receipt of that report, the Magistrate released you on a Community Correction Order, the terms of which have already been earlier described. The commission of these offences led to the disruption of that order.
48 Mr Kelly has been providing counselling to you since 22 January 2019. He has been supporting you so that you may have better insight into your behaviour to enable you to understand, recognise and accept taking responsibility for your behaviour and to encourage you to develop appropriate social skills and positive friendships.
49 In the past he has emphasised to you that you require structure, predictability and stability in your life.
50 He has continued to visit you at the Hopkins Corrections Centre, Ararat. He was shocked to hear that you had engaged in further and very serious criminal behaviour involving thefts and aggravated carjacking. He has expressed his extreme disappointment in your offending behaviour. He is prepared to continue to work with you to guide you towards dealing with your underlying offending behaviours and to work towards a non-offending lifestyle.
51 He confirms that you come from a very supportive family and, upon your release, he wants you to be more family oriented and to gain and seek advice, particularly from your mother.
52 You have expressed agreement to work with Mr Kelly and other organisations to achieve a non-offending lifestyle. He confirms that you show genuine remorse about your offending behaviour. Following the pandemic he has been communicating with you through Zoom.
53 Mr Jeffry Cummins, consultant psychologist, saw you via video conference on one occasion only on 11 February 2020. He confirms that you have a mild intellectual disability and noted your long-term dependency on cannabis and regular use of methamphetamines since age 16 or 17.
54 You expressed regret for your offending to him. Mr Cummins recommends a comprehensive anger management program and says that you are at moderate risk of re-offending.
55 By virtue of your mild intellectual impairment, he considers your moral culpability at the time of the offending was impaired, at least to some degree. He considers it would be more onerous for you to serve time in an adult prison. He opined that you present as a young and immature person who is emotionally vulnerable. Your vulnerability represents a significant additional risk factor for you in custody. At interview you presented as being mildly depressed and he stated that you may require specific psychotherapy in relation to your depressive condition.
56 You told Mr Cummins that you have a good rapport with your psychologist, Mr Kelly.
57 You are currently being held at Hopkins Correctional Centre due to your need to be in protective custody following incidents and threats made whilst in Malmsbury Youth Justice Centre in 2018.
58 Your matter proceeded in the County Koori Court Division. Auntie Pam Pederson and Uncle Paul Atkinson had a sentencing conversation with you. They both expressed their severe disappointment in your actions and emphasised the harm that you had caused to the victim of the carjacking. They stipulated that your behaviour reflected poor choices on your behalf and told you that you need to address the drivers of your underlying offending behaviour, namely the use of illicit drugs, mixing with negative peers and not being compliant with your medication.
59 They discussed your plans for the future and emphasised the importance of continuing with counselling, undertaking an anger management program and the need for you to undertake a rehabilitation program in respect to your illicit drug use. You indicated your willingness to explore all options that would be of support for you for the future.
60 Both elders emphasised told you that your actions involved offending on someone else’s country and that is not culturally acceptable. You were encouraged to get to know your culture more deeply. You are still young enough to make changes for your future and to get your life back on track.
61 You discussed with the elders your desire to connect in a more positive manner to your Aboriginal heritage and they encouraged you to pursue that goal. In the past, you have enjoyed a good relationship with Glen Whitling, who works with the Mungabareena Aboriginal Corporation. Mr Whitling is the local Justice worker who works at that organisation. Steps have been taken to link you to Mr Whitling whilst you are in custody.
62 Uncle Paul Atkinson emphasised the ripple effect of your criminal acts and the impact on the victim, the victim’s family and your family. He urged you to be mindful of your actions in the future. He said that you need to take a serious look at yourself and make life changes and to accept assistance to change. Uncle Paul emphasised that it was your personal journey and nothing will change until you change.
63 Uncle Paul Atkinson encouraged you to seek help as to why it is that you are cutting yourself, and that it is very important to address the underlying causes of your self-harm.
64 Your mother participated in the sentencing conversation and she said that the person who undertook the commission of these offences was not the person that she knows, and that drugs have been a terrible influence on your life. She emphasised her desire for you to stop taking drugs.
65 Your mother said that you are sorry for what you have done and the harm that you caused to Ms Styles.
66 In formulating the appropriate sentence, I have had regard to the mitigating factors. I accept that the plea of guilty was entered at an early stage and is one of real utility. Through your plea, witnesses have been spared the inconvenience of attending a trial and the State has been spared the expense of a trial. Importantly, Ms Styles, the victim of the carjacking, has been spared the further trauma of having to give evidence. You have facilitated justice and your sentence will be discounted accordingly.
67 I have had regard to the consequences of the COVID-19 pandemic. The prosecution rightly conceded that the inherent utilitarian value of a guilty plea is greater during the pandemic.[5] The pandemic is causing additional stress and concern for prisoners and their families, as it is for every member of the community.[6] I have taken into account the restrictions imposed by reason of the pandemic upon the daily life and conditions of prisoners, and also general anxiety associated with the pandemic.
[5]DPP v Bourke [2020] VSC 130 at [32]
[6]Brown v The Queen [2020] VSCA 60 at [48]
68 You are a young offender and the principles of Mills do apply, such that rehabilitation is an important sentencing consideration. However given the seriousness of the carjacking charge this means the more mitigating effect of youth is diminished to a degree.[7]
[7]Azzopardi v The Queen (2011) 35 VR 43, 55-56 [37]-[40]; DPP v Lawrence (2004) 10 VR 125,132 [22]
69 Your participation in the Koori Court sentencing conversation was genuine. The elders challenged you about what you did and the consequences. You were able to have a meaningful conversation that showed that you do have real insight into understanding the triggers for your offending behaviour, and a commitment to change. You indicated a willingness to seek help for your drug-use issues and anger-management issues. I have taken that into account in your favour.[8]
[8]Honeysett v The Queen [2018] VSCA 214
70 I am satisfied, through your plea of guilty and the expressed remorse to your mother Tania, Mr Kelly, Mr Cummins, the elders and the court, that you are genuinely remorseful.
71 You are fortunate to have the high level of support that you receive from your parents as well as Mr Kelly. I accept that you are genuine in your expressed intention to reform and, if you avail yourself of programs to address your issues that you will have reasonable prospects for rehabilitation.
72 I have concluded notwithstanding your mild intellectual disability that you were aware that what you were doing was wrong and that is reflected in your discussions with Mr Cummins.[9] You were the principal offender and the one who held the knife and prodded it against Ms Styles’ stomach whilst making the threats before taking the victim’s keys and driving away in her vehicle. The aggravated carjacking was planned to the extent that you had stolen the knife in the lead-up to the offence and you then attended the carpark with the first co-offender and chose a victim to steal their vehicle using threats of violence. Overall, I consider that the aggravated carjacking is one of mid-level seriousness.
[9]Report of Mr Cummins, page 4, paragraph 31
73 Mr Nibbs, in his written Submissions on Sentence dated 24 July 2020, accepted that this was serious offending, particularly in relation to the aggravated carjacking offence, and that a term of imprisonment was the only sentencing disposition available to the court. He submitted that you do satisfy, on balance of probabilities, that special reasons exist under s10A, such that the mandatory minimum period of three years’ imprisonment ought not apply.
74 He urged the court to impose a term of imprisonment with a significant period of parole, such that you can be supervised and be provided with assistance upon your release from prison. He postulated that a Community Correction Order focusing on drug treatment and mental health issues could achieve what is intended by parole. However, given the seriousness of the offending, I am unable to agree with those submissions.
75 Mr Harrison of behalf of the prosecution in his comprehensive written submissions set out the reasons dated 27 July 2020 why the Court ought to find that special reasons under s10A of the Sentencing Act 1991 do not apply and that therefore the mandatory minimum non-parole period is engaged for the carjacking offence.
76 You have, despite your relative youth, a concerning and significant criminal history with prior convictions for theft and other matters. The most recent matter, for which you received the combination sentence, was one of violence threatening a person with a pair of scissors amongst other charges, for which you received a period of imprisonment combined with a Community Correction Order that you have now contravened by this further offending.
77 Over the years you have been given many opportunities and subject to different dispositions. You have failed to take advantage of the support offered through Youth Justice.[10]
[10] Pre-Sentence Report dated 31 August 2020 authored by Stefanie Allan
78 Insofar as special reasons required by s10A are concerned, it is accepted that you do have an intellectual disability within the meaning of the Disability Act 2006.
79 I do not, however, consider that any of the factors set out in s10A(c)(i)−(iii) have been satisfied.
80 Given the circumstances of the carjacking, I do not consider that your intellectual disability is causally linked to the commission of the offence and therefore substantially reduces your culpability, or that your intellectual disability results in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
81 You admit that you had been heavily indulging in taking methamphetamines prior to the offending over a period of days, and I consider that your drug taking is more likely to have impacted upon your judgement, lowered your inhibitions, and caused you to act in such an impulsive and aggressive manner.
82 Furthermore, you have been using heavy drugs since your late teenage years. You know the impact of such upon your offending behaviour. That much is clear from having read Christopher Kelly’s report[11] that predates this offending. Mr Kelly has spoken to you at length about the need to give up all substance use, to avoid being influenced by others in taking illicit substances, and the need for you to change the dangerous patterns of behaviour that you had been engaging in over the past five years.
[11]Report of Christopher Kelly dated 1 February 2019
83 You should have known that self-induced intoxication would cause or contribute to your offending. Furthermore, you told Mr Cummins that you know you are at risk of offending when you cease taking your medication.[12]
[12]Report of Mr Cummins, page 6, paragraph 47
84 Therefore, I do not consider that mental impairment is causally linked to the offending.
85 I accept Mr Cummings view that by reason of your mild intellectual impairment, your time spent in custody will be more onerous in an adult prison, particularly given that you are young and immature and emotionally vulnerable.
86 However, given that you have expressed a strong desire to remain in adult custody and do not wish to return to Youth Justice, and appear to be coping well and feel safe at Hopkins, I do not consider that it can be demonstrated by reason of your mild intellectual disability that the burden of imprisonment in the adult setting is substantially and materially greater than the ordinary burden or risks of imprisonment.
87 Finally, I am not satisfied that there are substantial and compelling circumstances that are exceptional and rare that justify not making such an order.
88 The test is a high threshold and none of the factors relied upon by Mr Nibbs individually or collectively satisfy the requirements of the section.
89 Overall, I do not consider that you have discharged the burden of proof with respect to specials reasons under s10A. Therefore, the mandatory non-parole period will be imposed in respect to the aggravated carjacking.
90 I have had regard to the decision of Mammoliti v The Queen [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. This is to be achieved without interfering with the established sentencing principles, and in accordance with the instinctive synthesis methodology.
91 Ultimately, in formulating the appropriate sentence, I must have regard to the particular facts and circumstances of each offence. Your offending does form a series of offences of a similar type in the main, namely theft, except for the aggravated carjacking. There will be some orders for cumulation to reflect the different levels of offending.
92 Overall, having regard to Mr Cummins’ report, I do not think that Verdins limbs 1–5 have been enlivened. You have been diagnosed with a mild intellectual disability, but I do not consider, based on Mr Cummins’ assessment alone, that there is sufficient evidence before the court to enliven those limbs.
93 I have, however, taken into account in a general sense the impact of your intellectual impairment upon you and your experience of imprisonment and have moderated your sentence to take that into account.
94 I have also had regard to the fact that you are a youthful offender and that general deterrence and denunciation should be somewhat moderated in favour of rehabilitation. Nonetheless, your offending which is the subject of the aggravated carjacking is very serious, and that means that less weight must be placed on youth, rehabilitation and more emphasis must be placed on deterrence, denunciation, and protection of the community.
95 Ultimately, I consider that specific deterrence is an important sentencing consideration albeit moderated to an extent to allow for your mild intellectual disability.
96 In formulating the appropriate sentence, I must impose just punishment.
97 Following the plea hearing a Pre-Sentence Report was requested as to your suitability for a Youth Justice Centre Order.
98 You are a young offender for the purposes of the Sentencing Act 1991. If a sentence involving confinement is justified in respect of a young offender, a court may make a youth justice centre order or a youth residential centre order.
99 Before doing so the court is required to obtain a pre-sentence report and it must either:-
a. believe that there are reasonable prospects for rehabilitation of the young offender; or
b. believe that the young offender is particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison.
100 In making such a determination the court must have regard to the nature of the offence and the age, character and past history of the young offender.
101 The maximum period for which the court may direct that a young offender be detained in a youth justice centre or a youth residential centre is 4 years.
102 Because you have pleaded guilty to a Category A serious youth offence the court must not make such an order unless it is satisfied that exceptional circumstances exist. [13]The phrase ‘exceptional circumstances’ is not defined in the section and no judicial authority has yet been given to it in this context.
[13] S32C(2C) Sentencing Act 1991
103 The report dated 31 August 2020 authored by Ms Stephanie Allan recommends that you are unsuitable for a Youth Justice Centre Order.
104 You have an extensive history in the youth justice system having first received a supervised order at age 13 and thereafter a number of Community-based orders as well as a previous Youth Justice Centre Order.
105 You have continued to offend notwithstanding the imposition of court orders. You are currently in breach of a Community Correction Order as a result of your reoffending and non-compliance.
106 You are settled and doing well at Hopkins and have not been a victim of any incidents throughout the 12-month period whilst you have been on remand. You have expressed a strong desire not to be returned to a Youth Justice Centre. You believe that you would experience a decline in your mental health and increased thoughts of suicidal ideation and would not feel safe. You believe that you could be at risk if you were to be returned to Malmsbury. Specifically, you state you feel safe at Hopkins, you are connected to other offenders and have expressed a desire of a preference for adult parole.
107 Ms Allan states that youth justice believes that your prospects of rehabilitation are poor within the youth justice system. Her assessment is that you have demonstrated that you do not appear to be of particular vulnerability in adult custody setting. Therefore, you have been assessed as unsuitable for a Youth Justice Centre order.
108 You feel more comfortable in the adult setting surrounded by adults. You are currently aged 20 and therefore you are in the upper age range for suitability.
109 Given those conclusions I do not propose to impose a Youth Justice Centre order.
110 Further having given this matter full and proper consideration I do not consider even if you were deemed suitable for a Youth Justice Order that you would have satisfied the exceptional circumstances test.
111 I reject Mr Nibbs submissions that intellectual disability per se would satisfy such a test or that all the factors he relied upon would be sufficient to satisfy the test.
112 I accept the submissions made by Mr Harrison dated 1 September 2020.
113 Accordingly, a term of imprisonment to be served in adult custody will be imposed.
114 The formal court orders are:
Charge 1, theft of motor vehicle, convicted and sentenced to 12 months’ imprisonment;
Charge 2, obtain property by deception, convicted and sentenced to 7 days’ imprisonment;
Charge 3, theft, convicted and sentenced to 1 month imprisonment;
Charge 4, theft, convicted and sentenced to 1 month imprisonment;
Charge 5, theft, convicted and sentenced to 3 months’ imprisonment;
Charge 6, aggravated carjacking, convicted and sentenced to 3 years and 6 months’ imprisonment; and
Charge 8, theft, convicted and sentenced to 1 month imprisonment.
115 I direct that the following orders for cumulation apply.
116 Six months of the sentence imposed on Charge 1 be cumulative upon the sentence imposed on Charge 6, making a total effective sentence of 4 years and I fix a mandatory minimum of 3 years.
117 I make the following declaration pursuant to s6AAA of the Sentencing Act, but for your plea of guilty I would have imposed a term of imprisonment of 5 years, to serve 4 years’ imprisonment.
118 You have pleaded guilty to two offences (charge 1 and Charge 6) that include theft of a motor vehicle and upon your conviction for those charges you are disqualified from holding a driver’s licence for 3 years (effective from today’s date).
119 I make the following declaration of pre-sentence detention 392 days and direct that the declaration be entered into the records of the court.
120 I make the disposal order sought.
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