Director of Public Prosecutions v Cakebread and Castner

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00165
CR-20-00164

DIRECTOR OF PUBLIC PROSECUTIONS

TIMOTHY CAKEBREAD and JAKE CASTNER

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June & 11 August 2021
DATE OF SENTENCE:	1 September 2021
CASE MAY BE CITED AS:	DPP v CAKEBREAD & CASTNER
MEDIUM NEUTRAL CITATION:	[2021] VCC 1237

REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords:              Plea of guilty – co-accused – aggravated burglaries - theft – obtain property by deception – conduct endangering life – conduct endangering persons – circumstances of COVID-19 pandemic
Legislation Cited:      Crimes Act 1958 (Vic) ; Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen [2013] HCA 27; DPP v Meyers (2014) 44 VR 486; Hogarth v R (2012) 37 VR 658; Jackson v The Queen [2020] VSCA 95 ; R v Kilic (2016) 259 at [19]; Worboyes v the Queen [2021] VSCA 169, R v Verdins [2007] VSCA 62; Muldrock v R (2013) 249 CLR 571.
Sentence:                  TIMOTHY CAKEBREAD: Total effective sentence of 4 years and 5 months imprisonment with a non-parole period of 2 years and 10 months; JAKE CASTNER: Total effective sentence of 4 years and 10 months imprisonment with a non-parole period of 3 years and 2 months.

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APPEARANCES:

Counsel

Solicitors

For the DPP

Mr N. Zvekic

Office of Public Prosecutions

For the Accused Cakebread

For the Accused Castner

Mr C. Terry

Mr J. Moore

Emma Turnbull Lawyers

Greg Thomas Barrister & Solicitor

Introduction

Between 26 and 31 July 2019 Jake Castner, in combination with a range of other people, some unknown, but at one stage Timothy Cakebread, committed a series of aggravated burglaries and thefts in the suburbs of Melbourne, culminating in two separate car accidents or apprehensions: one near Daylesford on 31 July 2019 involving Jake Castner and the other in Ballarat on 8 August 2019 involving Timothy Cakebread. What follows are the considerations for how Mr Cakebread and
Mr Castner are to be sentenced for what they did during this time.
Pleas of guilty and maximum penalties
Timothy Cakebread, you have pleaded guilty to one charge of conduct endangering life. The maximum penalty for this charge is 10 years’ imprisonment.
In conjunction with your co-accused Jake Castner, you have each pleaded guilty to two charges of aggravated burglary and two charges of theft. The maximum penalties for these offences are 25 years’ and 10 years’ respectively.
Mr Cakebread you have also pleaded guilty to the related summary offences of committing an indictable offence while on bail, which carries a maximum penalty of 30 penalty units or 3 months’ imprisonment, and to one charge of driving while disqualified, which carries a maximum penalty of 240 penalty units or 2 years’ imprisonment.
Jake Castner, you have further pleaded guilty to six charges of theft, one additional charge of aggravated burglary, one charge of obtaining property by deception and one charge of conducted endangering persons. The maximum penalty for theft is
10 years’, the maximum penalty for aggravated burglary is 25 years’, the maximum penalty for obtaining property by deception is 10 years’, and the maximum penalty for conduct endangering persons is 5 years’ imprisonment.
Jake Castner you have also pleaded guilty to the related summary offence of driving while unlicenced, an offence which carries a maximum penalty of 60 penalty units term of 6 months’ imprisonment.
In conjunction with your co-accused Brittney Willoughby, whose case I note has been adjourned and will be dealt with subsequently, you have also pleaded guilty to one charge of theft and one charge of obtaining property by deception, the maximum penalties for each of these offences is 10 years’.
Circumstances of the offending
The Prosecution Openings, dated 6 June 2021, set out the circumstances of each of your offending. The Openings were tendered on each Plea and became Exhibits A and B. They are attached to and form part of these reasons. I will summarise some of the facts giving rise to the offending here.
Charge 1: Theft – Jake Castner
On the 26^th of July, at around 4.20 am, an unknown person went to a house in Ripon Street South, Redan. A white Commodore was parked in the driveway, belonging to Trevor Muller. A person got into this car, found a spare key in the glove box, then reversed out of the driveway, colliding with garbage bins, before driving away.
Mr Castner, you are charged with this offence on the basis of your gaining access to this car and driving it, assuming the rights of the owner while using the car during the course of your offending. It was later recovered at your co-accused, Ms Willoughby’s house. These are the circumstances that form Charge 1: Theft.
Charges 2, 7, 8, 9 and 15: Theft – Jake Castner
While driving the stolen car from Charge 1, over the days between 27 July and 31 July 2019, Mr Castner, you went to five petrol stations and filled up, sometimes this was done by someone travelling with you, without any attempt to pay. The details of this offending are set out in Exhibit A.
Charge 3 & 5: Aggravated burglary and Theft – Jake Castner
On 29 July 2019 you, Mr Castner, were in the company of Ms Willoughby. At about 5.00am you went to a house on Bulleen Road. The victims Hasan Ibrahim and Wa Jeeha Khan lived there with their 6 year old daughter.
You forced entry to their house with a jemmy, or similar tool, while Ms Willoughby stayed in the car. This gives rise to Charge 3: Aggravated burglary, (persons present, intent to steal) .
At this house, you stole property, including a Peugot 308, computers, sunglasses, a wallet, identity cards, watches, a TV (see Schedule A, Indictment). This gives rise to Charge 5: theft.
Charge 6: Obtain Property by Deception– Jake Castner
Later the same day you, Mr Castner, with Ms Willoughby went to the Woolworths in Ashburton. You used a credit card stolen from the Bulleen Road house to buy drinks, cigarettes and gift cards in 3 separate transactions to the value of about $256.
Charges 10 & 11: Aggravated burglary & Theft - Jake Castner & Timothy Cakebread
On 31 July 2019 at approximately 4.30am you, Mr Castner, and you, Mr Cakebread, went to a house in Hoppers Crossing with another unknown person in the stolen Commodore. You Mr Castner and the unknown person got out of the car armed with a torch and a metal implement, both wearing white masks to conceal your identity. One of you used the metal implement to force the front door open; the sound of the door being forced woke the occupants of the premises – Robert and Vesna Cop and their two adult children.
Mr Castner and the unknown person stole a set of keys, a car key and garage door remotes before being confronted by Jesse Cop; a scuffle broke out in the hallway. As you, Mr Castner, were leaving the premises Jesse Cop kicked you and you fell over, with your mask falling off. You and your associate got back into the stolen car where Mr Cakebread was waiting as the driver. This gives rise to Charge 10: Aggravated burglary (person present intent to steal) and to Charge 11: Theft.
Charges 12 & 13: Aggravated burglary & Theft - Jake Castner & Timothy Cakebread
A few hours later, at about 7.15 am, Mr Castner, Mr Cakebread and an unknown person went in the stolen Commodore to a house at Manor Lakes.
Mr Castner and the unknown person got out of the car armed with a torch and a metal implement, and went inside through an unlocked front door. Ms Shayla Kiriazis was alone in the house at the time.
While inside you, Mr Castner, with your unknown associate, confronted Ms Kiriazis who had been woken by her dog barking. You made an effort to conceal your faces with your clothing and demanded to know where the money was kept. Ms Kiriazis told you she only had bank cards and money in her phone case; you stole this, and walked Ms Kiriazis to a bedroom where you put her in an adjoining bathroom. You then ransacked the bedroom stealing property including jewellery and clothing.
Ms Kiriazis heard you rifling through cupboards and drawers in the kitchen. The unknown person returned to the bathroom; he spoke to Ms Kiriazis, telling her not to look at his face as it was undisguised. He told her he would hit her with the torch if she did not tell you where the safe was. There was also a demand made that
Ms Kiriazis reveal the PIN to her bank card, which she did. One of the offenders told Ms Kiriazis that you had her grandmother’s passport and that you would return to harm her if Ms Kiriazis contacted Police.
You Mr Castner and the unknown person went into the garage and stole a Kia Cerato car, which belonged to Ms Kiriazis. The unknown person drove this car away.
Mr Castner returned and got into the stolen Commodore, where Mr Cakebread was waiting, and drove away.
Stolen property taken from the home included the car, a wallet, mobile phone, a television, watches, jewellery, a camera, a laptop, radio, sunglasses, identity cards, bags and clothing (see Schedules B & C, Indictment).
This gives rise to Charge 12: aggravated burglary (person present, intent to steal) and Charge 13: theft.
Charge 14: Obtain property by deception – Jake Castner
The stolen Commodore then went to the Manor Lakes Shopping Centre where you, Mr Castner, got out of the front passenger seat and made a withdrawal of $200 at the ATM from Ms Kiriazis’ bank account. This gives rise to Charge 14: obtaining property by deception.
Charge 16: Conduct endangering persons - Jake Castner
In the early afternoon of that same day, at approximately 1.00pm, Police detected that you, Mr Castner, and Ms Willoughby were travelling as passengers in the Ballarat CBD in a stolen Mazda.
The car was followed by investigators for a few hours until approximately 3.00pm when the driver of the stolen car noticed Police following. The stolen car drove at speeds between 120 and 150 km/p/h through Daylesford onto the Midlands Highway towards Castlemaine. At the outskirts of Castlemaine, the car turned back towards Daylesford driving recklessly at high speeds. Eventually Police managed to deflate the car’s tyres and, after some time, it crashed through a gate and came to a stop in a paddock. During the pursuit the stolen car was being driven in a reckless manner and at very high speed, and driven on the wrong side of the road towards oncoming traffic. The pursuit covered approximately 90 kms.
During the pursuit you, Mr Castner, threw things out of the sunroof at the Police cars, including a metal pole, bottles of alcohol, a skateboard, knives and tyre lever. The Police had to swerve. I note you are not said to be the driver of the car. You are charged solely in relation to the things being thrown out the sun roof. This constitutes Charge 16: conduct endangering persons.
Charge 18: conduct endangering life – Timothy Cakebread
On 8 August 2019 you, Mr Cakebread, were seen by Police driving a stolen Holden ute through the Ballarat CBD at speeds in excess of 100 km/p/h and on the wrong side of the road. There were multiple near collisions with oncoming traffic, which triggered a range of calls to emergency services from other road users.
You were on the wrong side of the road when you entered the intersection of Forest and Howitt Streets, and you collided with a bus carrying passengers with special needs. You continued on and hit a traffic light pole, knocking it out of the ground, before coming to a stop outside a school. This constitutes Charge 18: conduct endangering life. I will return later to the question of how this charge is constituted.
Summary charges
Summary Charge 36: Unlicensed driving – Jake Castner
Between 25 and 31 July 2019, you, Mr Castner, were not licenced to drive a car but you did do so in various places. This constitutes the related summary offence of driving while unlicenced.
Summary Charge 9: Commit indictable offence on bail – Timothy Cakebread
On 31 July 2019, you, Mr Cakebread, committed the indictable offence of aggravated burglary while subject to a bail undertaking for unrelated matters.
Summary Charge 10: Drive whilst disqualified – Timothy Cakebread
On 31 July 2019, you, Mr Cakebread, were not licenced to drive a car. This constitutes the related summary offence of driving while disqualified.

Arrest, Interview and Chronology
Jake Castner

On 31 July 2019 Mr Castner was arrested and interviewed. You, Mr Castner, admitted being in possession of the stolen Commodore but denied knowing it was stolen. You denied the other offending.
Bail was granted on 3 July 2020 and revoked on 16 July 2020.
Timothy Cakebread
Mr Cakebread, your offending took place on two days: 31 July 2019 and 8 August 2019. You were arrested on 8 August 2019 and you declined to be interviewed.
Bail was granted on 1 December 2020 and revoked on 11 December 2020.
In relation to you both, a committal case conference was conducted on 24 October 2019 and a committal on 4 February 2020. On 23 November 2020 a preliminary cross examination hearing was conducted, but by 28 April 2021 your case had resolved. Your Plea hearing proceeded on 8 June 2021 and further submissions were heard on 11 August 2021.
Nature and gravity of the offending
I must assess the nature and gravity of your offending.
Jake Castner
The theft of a motor vehicle, the subject of Charge 1, was framed on the basis that you, Mr Castner, assumed the rights of the owner of the car rather than by being the person who took it from the address. The car was later recovered. This is on the lower end of the scale of similar offences.
Regarding the aggravated burglaries, which in Mr Castner’s case relate to Charges 3, 10, and 12 (Charges 10 and 12 are common to Mr Castner and Mr Cakebread)[1], these charges represent the most grave offending in both your cases.
[1]Charge 3 involved Ms Willoughby, however she pleaded guilty to burglary in relation to the same event (see Charge 4).
In the course of his Plea submissions, counsel for Mr Castner drew my attention to the considerations in DPP v Meyers, [2] and I have had regard to the features identified in that case in attempting to place each of these offences on a spectrum between the least serious version of offences of its type and the worst.[3] I was also referred to the case of Hogarth v R in this regard, though I note the basis that these charges are laid on do not allege ‘confrontation’ as such but are put on the basis of entry with intent to steal with persons present. [4]
[2]DPP v Meyers (2014) 44 VR 486 at paragraph [48].
[3]R v Kilic (2016) 259 at [19].
[4]Hogarth v R (2012) 37 VR 658.
The offending the subject of Charge 3 involved forced entry via the front door at about 5.00am. A family was asleep inside. Mr Castner’s co-accused, Ms Willoughby, waited in the car outside. In his written submissions Mr Castner's counsel dealt with the three aggravated burglaries on his client’s case compendiously, however at the hearing he conceded that there was a range of seriousness represented across the three events and addressed them individually.
In relation to Charge 3 counsel for Mr Castner drew my attention to the absence of features that might put this offence further along the spectrum of seriousness such as the lack of confrontation, the use of weapons, and of detection (at least at the time).
The Prosecutor contended that Charge 3 was a serious example of the offence given that the entry was in the early hours of the morning and therefore a high degree of recklessness as to the presence of people should be inferred. The Prosecutor submitted that you, Mr Castner, were the principal offender (this seems clear as

Ms Willoughby has pleaded guilty to a lesser offence). The Prosecutor submitted that this offence should be seen in the mid-range of the spectrum of seriousness. I conclude that the absence of certain features that often attend such events allows me to place this offence slightly lower than that of mid-range, essentially for the reasoning advanced by counsel for Mr Castner.
Next I consider Charge 10. This event is common to Mr Castner and Mr Cakebread. Mr Cakebread pleads guilty on the basis that he remained in the car while Mr Castner and an unknown person went into the house. This time, the front door was opened with a metal implement; one or other offender also carried a torch. Both wore masks (before that was normal). The family inside (parents and children) woke up. One of the older children, Jesse, confronted you. He saw the torch and the metal implement. There was a scuffle. I will return to the victim impact statement of the Cop family later in these reasons.
At the hearing, and in written submissions, both Prosecution and Defence submitted that this event should be assessed as falling around the mid-line on the spectrum of seriousness. I agree. It is higher than that of the previous charge by reason of the number of persons who entered, and the fact that one of the offenders carried a torch and/or a metal implement; they were masked. There was a confrontation with the occupants, albeit one that was not intended, upon entry.
I note that counsel for Mr Castner sensibly conceded that his client’s role is objectively greater than that of Mr Cakebread’s in this offending. There will be a degree of disparity between the sentences for the respective accused in this case based on the different roles taken, all else being equal. I will address parity separately later.
The next aggravated burglary is Charge 12. Its features bring it along the spectrum beyond the mid-point into increasingly serious territory. I make it clear that I’m sentencing each offender on the basis that the charge is put as entry with intent to steal being reckless as to whether or not a person was present. Here I note also that I am being careful not to sentence on the basis of events that are uncharged that took place after entry,[5] but I still must consider the circumstances of the offence. Further, I do not sentence on the basis that it was Mr Castner who brandished the weapon, but the unknown third offender. Nor are any particular threats put as being said by you, Mr Castner, but in the house was a woman who lived there alone. The time you, Mr Castner, were in the house was protracted. Threats were made in your presence by your co-accused. Demands were made of Ms Kiriazis. You walked her to a bedroom and put her inside an adjoining bathroom while you and your associate ransacked her bedroom and kitchen. I will return later in these reasons to the victim impact statement of Ms Kiriazis.
[5]Jackson v The Queen [2020] VSCA 95 per Croucher AJA.
Again, I acknowledge that Mr Cakebread pleads guilty on the basis that he waited in the car while these events unfolded. His role is more limited. You, Mr Cakebread, were not present for and will not be punished for threats made inside the house.
Each of the relevant thefts attached to the aggravated burglaries need to be assessed. For Charge 5 valuable property was stolen including a car. The property is set out in Schedule A of the Indictment. For Charge 11 stolen property was of limited value and was partly recovered later by Police. On Charge 13 property of significant value was taken, including a car, which was not recovered. Those items are set out in Schedule B and C on the Indictment. There was substantial loss and no doubt significant inconvenience caused as a result of the theft of these items.
The thefts and deceptions the subject of Charges 2, 6, 7, 8, 9, 14 and 15 fall at the lowest end of the scale.
Charge 16 involved Mr Castner throwing objects out of the sunroof of a stolen car while pursued by Police. I am mindful to sentence on the basis of this act and not the driving that precedes it. I assessed that falls in the lower end of the spectrum of seriousness for the offending of reckless conduct endangering persons.
Timothy Cakebread

I have already dealt with the assessment of offence gravity in relation to the charges Mr Cakebread has in common with Mr Castner. What remains is Charge 18: conduct endangering life. In this charge you, Mr Cakebread, were observed driving in excess of 100 kilometres an hour on the wrong side of the road through Ballarat and having multiple near collisions with oncoming traffic. A large number of 000 calls were made by concerned members of the community. Police saw you continuing to travel on the wrong side of the road. A bus carrying passengers with special needs was travelling nearby; the car driven by you collided with it, forcing it to hit a traffic light pole, knocking the pole out of the ground, however, I make it perfectly clear that this latter event, that is the collision with the special-needs bus, is not put as constituting the acts the subject of Charge 18. That charge encapsulates everything up to and including your travel on the wrong side of the road while being observed by Police, though the collision is still part of the surrounding circumstances of the charged offence.
Mr Cakebread, you have multiple prior convictions for the charge of committing an indictable offence while on bail. The same applies for the offence of driving while disqualified, in that you have multiple prior convictions for traffic offences.
Victim Impact
I am obliged to take into account the impact of this offending on all of your victims. On your plea, a victim impact statement was tended from the Cop family. I have read it and taken its contents into account. Jesse Cop has spoken of seeing a vision of two men walking past his bedroom with masks or hoodies over their heads, a weapon in one hand and a torch in the other. There have been significant repercussions for his whole family.
Ms Kiriazis also tendered a victim impact statement and I’ve read it and I take it into account. She talks about not being able to be at home by herself anymore; she still experiences intrusive thoughts about what happened. She feels her sense of security and safety was taken from her.
I have also had regard to the community, who witnessed and avoided your driving in Ballarat, Mr Cakebread, and whose calls to 000 are noted in the Prosecution Opening. While there were no Victim Impact Statements tendered I think it is fair to say that your driving was, at the very least, alarming to that community.
No Victim Impact Statement was tendered by the Ibrahim family but I sentence on the basis that these events must have been alarming for them too.
Criminal Histories
I have also had regard to both your extensive criminal histories.
Prior Criminal History – Mr Castner
Yours, Mr Castner, commences in the Perth Children’s Court when you were 14. It resumes in Victoria the same year. You have an extensive Children's Court history and don’t appear in adult Court until 2014 –the sentences that follow that I have had more regard to. Five appearances, one in this Court. The offending is relevant though I note that aggravated burglary doesn’t feature until now.
Prior Criminal history – Mr Cakebread
Mr Cakebread's history includes two other sentences imposed by this Court. It is a relentless history of incarceration, brief periods in the community, new offending and further sentences. Your driving history is particularly bad.
Matters in mitigation
Pleas of guilty
The Indictment filed in this court listed 48 witnesses the Prosecution intended to call at trial. Initially, the phone tower evidence in the trial was the subject of challenge and of some preliminary cross examination. Applications to exclude parts of that evidence were foreshadowed. The facts giving rise to these offences extended over a number of days and locations. The trial that did not take place would have involved lengthy and complex pre-trial argument and rulings. All this leads me to the conclusion that the Pleas of guilty in this case, at any time, would be extremely valuable, but at this time, when the courts of this state are severely congested and unacceptable delay in the resolution of trials is endemic, it’s my obligation to treat your pleas of guilty as particularly valuable and to pass this on in the form of ‘an actual and palpable amelioration of your sentences.’[6] The sentences that I will impose today would, in the absence of this circumstance, have been much higher.
[6]Worboyes v the Queen [2021] VSCA 169 per Priest Kaye And T Forrest JJA at [35].
I note that both Pleas were settled on significantly different bases to those on the original Indictment filed in this court; this forms part of my assessment of the stage at which the pleas of guilty were entered. It would seem that your Pleas to the charges on this Indictment were relatively early in that scheme.
Burden of Imprisonment – COVID 19 pandemic – both accused
In addition to this, and again in relation to both of you, I have also considered the additional burden placed on prisoners during the pandemic. You have been serving your time in these conditions since March 2020, punctuated only by brief periods on bail. I will take into account the more onerous circumstances of your imprisonment, which are now well-established.
Personal circumstances – Jake Castner
Mr Castner, you were 23 years of age at the time of your offending; you are now 25.
You were raised by your mother and stepfather, you have never met your biological father.
You moved to Western Australia when you were very young. You grew up as part of a blended family, including your grandparents (the parents of your stepfather) and younger brother Joseph.
Your mother re-partnered when you were quite young; you consider your stepfather to be your father.
Your stepfather was involved with a motorcycle gang and has had periods of incarceration. Both your parents have battled serious addictions to alcohol and to illicit drugs; both used amphetamine and methamphetamine. It is your understanding that your mother continued to take drugs whilst pregnant with you.
You were exposed to violence in your home throughout your childhood. Your stepfather was violent to all members of the household; you were frequently beaten by him as a means of discipline. You were regularly grounded by your mother and left in a room. Your psychological assessment indicated these experiences in your childhood continue to have an effect on you.
When you were 12 years old your mother moved back to Victoria with her children and re-partnered .
Around this time, when you were 12 years old, you found the body of your paternal grandfather after his suicide. This was deeply affecting and continues to affect you.
Throughout your childhood you frequently ran away from home, beginning at age 10. You would stay away for days or weeks at a time. You survived on stolen food. You were remanded for the first time at 11 years old. You left the home permanently at 15. You were involved with Child Protection.
You found school very difficult, completing Year 10 equivalency at Parkville Youth Justice Centre. You attended Mount Clear Secondary College, then Ballarat Specialist School and the Ballarat Learning Exchange.
You were diagnosed with ADHD at around 6 years old and struggled to concentrate. You repeated year levels and were bullied for not progressing like other kids did.
You have a very limited work history, working at a pizza shop 10 years ago, and also as a bricklayer. In May 2019 you worked in Karratha at a mine where your stepfather was a supervisor. You have received the Disability Support Pension from a young age due to your limited intellectual capacity.
You have a long history of substance abuse, first using cannabis when you were 14 years old. You began injecting heroin at age 15; you first used methamphetamine around this time. Prior to this arrest you were regularly using methamphetamine in conjunction with GHB and MDMA.
Your mother is no longer using drugs and is a significant support to you. Your relationship with your stepfather has also improved.
Castner – disability and mental health
At the Plea hearing Mr Castner relied on two reports of clinical psychologist Alice Crole,[7] documents in support of an application pursuant to the National Disability Insurance Scheme (‘NDIS’), a report of Aaron Cunningham dated

15 October 2015, and a letter to the Court authored by Ms Maria Hutchison that was originally obtained in the context of an application for bail.
[7] Dated 10 December 2019 and 27 April 2021.
These materials formed the basis for submissions in mitigation, rooted in both

Mr Castner’s twin difficulties of intellectual disability (he falls within the intellectually disabled range with an IQ of 62) and mental health problems (persistent depressive disorder among other conditions).
I have taken these materials into account. Counsel for Mr Castner argued that the evidence of his intellectual disability engaged Verdins limbs one, three and four, though it was accepted that this would be a question of degree. The Prosecutor took issue with the purported link between the intellectual disability and the moral culpability for the offending, arguing that statements made to Ms Crole in the 2019 report (in essence, that Mr Castner can demonstrate empathetic thinking) [8] put the link between his intellectual disability and his moral culpability out of reach.
[8]See pages 48 and 52 of the report.
This approach seems too blunt an instrument to prise apart Mr Castner’s disability, the disadvantage he encountered while growing up, his mental health diagnoses, and the drug use he turned to. Each element makes him vulnerable to, and is compounded by, the others.
Doing the best I can, I accept that general deterrence and specific deterrence can be tempered in Mr Castner’s case by reason of his intellectual disability.
I also reduce Mr Castner’s sentence on the basis of reduced moral culpability arising from his intellectual disability, though to a minor degree.
I have had regard to the principles in the case of Muldrock v R,[9] the retributive effect and denunciatory aspects of a sentence are less appropriate in Mr Castner’s situation, by reference to his intellectual disability.
[9] Muldrock v R (2011) 244 CLR 120.
I accept that the sentence of imprisonment is more burdensome for Mr Castner by virtue of his disability and poor mental health, (the evidence is that at the moment

Mr Castner is swallowing batteries to get time away from management units) but I do not adopt the contention that imprisonment will aggravate his mental health problems; and I sentence accordingly.
Bugmy – both Mr Castner and Mr Cakebread
I have taken into account both Mr Castner and Mr Cakebread’s profoundly deprived childhoods consistent with the principles in Bugmy v R.[10] You both grew up in environments surrounded by drug use and violence; this remains a feature of your make up and is likely to have diminished your capacities to mature and learn from experience. These disadvantages persist. In my assessment they contribute to the failures in your judgement, your recourse to drug use, impulsivity, and general recklessness with the world. The Prosecutor submitted that such findings may also have the effect of increasing the need to protect the community and impose sentences focused on deterrence, I understand the tension in this equation.
[10] Bugmy v R (2013) 249 CLR 571.
Prospects of rehabilitation – Mr Castner
I am obliged to have regard to your prospects, Mr Castner, first for rehabilitation. While perhaps youthful is not the right description for you, the community still has a long-term interest in your rehabilitation. I am encouraged by the fact that you now have support through the NDIS of which you are a voluntary participant. This plan is in place for you during your time in custody and would be available to you on parole.[11] I have had regard to the letter written by you on the bail application which, although the bail was not a great success, at least articulates that you have a supportive family wishing to help you and that you know that your drug addiction is the number one factor of why you are in and out of the prison system.[12]
[11]See letter of Ms Bangaar, Exhibit 6 on the Plea.
[12]See letter of Mr Castner, Exhibit 7 on the Plea
I was urged to impose a sentence of imprisonment in combination with a Community Corrections Order, with a Justice Plan attached. I gave careful consideration to that disposition but in light of the offending I could not agree that it was the appropriate sentence. I am hopeful that the NDIS program will perhaps be the key to turning things around for you, and know that you have not had that kind of support in the past This allows me to conclude that your rehabilitation is still possible.
Personal circumstances – Cakebread
You, Mr Cakebread, were 27 years of age at the time of the offending, you are now 29.
You were born and raised in Victoria, you lived your early years with your mother, father and two siblings.
In your early childhood you moved with your family to Bacchus Marsh, Werribee and Ballarat.
Throughout your early childhood you were exposed to violence of your father and the habitual drug use of your mother. Your father had periods of incarceration during this time.
Your parents separated when you were around 10 years old. You spent time in DHS care and foster homes, you also spent time living with your grandmother in Ballarat.
You went to primary school at Bacchus Marsh, changing to Werribee in Grade 6. You attended Galvin Park Secondary College until Year 10, when you were expelled.
While at school you were diagnosed with ADHD and have not completed any further education.
You have never held down any ongoing employment and spent much of your adult life in gaol, since your first period of incarceration at 18.
You have had long term issues with illicit drugs. You have abused benzodiazepines and methylamphetamines. This drug is a continued factor in both your current and prior offending.
Upon release you are keen to avoid drug use. You are interested in working as a labourer in a landscaping company and understand you can get this work through a friend.
You have a good relationship with your mother and siblings, you have spent time in custody alongside your father in more recent times.
You have put your name down for DHHS housing. You state you are well aware of the risks of institutionalisation. You do not wish this to be your fate.
Psychological Report – Mr Cakebread
Counsel for Mr Cakebread tendered a neuropsychological report authored by

Ms Linda Borg.[13] I have had regard to the contents of that report. Ms Borg had been asked to report on whether an acquired brain injury was present. She was able to rule out the presence of such injury but in her opinion you suffer from an antisocial personality disorder, a condition that is further exacerbated in your normal life by acute drug intoxication. Ms Borg undertook a number of tests, the validity of which were affected when unusual patterns on a range of indexes indicated your failure to apply ‘best effort’ on testing.
[13]Exhibit 2 on the Plea
Ultimately little reliance was placed on this report in mitigation of sentence, other than a submission that limb five of Verdins is engaged by the presence of the antisocial personality disorder, which makes it more likely that you, Mr Cakebread, might engage in aggressive behaviour in custody. The Prosecutor argued against such a finding. I find that it is mitigating, but to a minor degree.
I have already dealt with the principles of Bugmy in relation to you. It’s clear your early childhood was insecure and afflicted by violence and parental absence.
Prospects of rehabilitation - Mr Cakebread
I have considered your prospects of rehabilitation; the history suggests they are rather bleak, which is not to say that a better future is impossible for you.
Institutionalisation - both Mr Castner and Mr Cakebread
I have considered the risk of institutionalisation in relation to each of you. I am concerned about that aspect of this sentence. Imprisonment has not succeeded particularly well as a deterrent in relation to either of you. The community has a long-term interest in you not having your default position being in prison. I regard longer and longer terms of imprisonment as inutile; the longer this goes on, the less likely it seems to me you could turn things around. I have tempered your sentences to some degree in relation to this.
Parity considerations – both accused
In relation to Charges 10, 11, 12 and 13 I am obliged to impose sentences on you both consistent with parity principles. I accept that Mr Cakebread’s practical role in this offending was substantially lower than that of Mr Castner. This tends in favour of disparity in these sentences, but pulling in the other direction is the evidence of Mr Castner’s intellectual disability, poor mental health, fewer priors in adult court, slightly younger age, and slightly better prospects of rehabilitation. In this way, this disparity is somewhat, but not completely flattened.
Remorse – both accused
I accept that each of your pleas contain within them an aspect of remorse, and I take that into account.
Behaviour during the hearing – both accused
On 11 August 2021 the case was called back on for Further Plea submissions. On that day I raised with the parties that during the previous hearing both accused had been clowning around; this occurred at some stages, including while the victims of their offending were also attending online court. I invited submissions on whether I ought to take this conduct into account on sentence. I note that this Plea has been conducted entirely online, with all attendees on screen. This is necessary at the moment, but I regard this mode of hearing to be a poor structure for communicating solemnity, responsibility, and roles in the hearing. I regard it as most unlikely that this behaviour would have unfolded had each of us been in a physical court with all the rules communicated by the architecture. I’ve put this aside in considering the sentences I impose today.
Sentencing principles
I must apply the proper sentencing principles in your case. I must try to deter others with your sentences. The sentence should deter you from offending in similar ways in the future. It has to be punitive and denounce your offending. The sum of all this should be the protection of the community; I have done my best also to consider your rehabilitation in sentencing.
Current sentencing practices
I am obliged to have regard to current sentencing practices for these offences, no particular case was urged on me as being like yours, nor would there be one. I’ve taken into account the general sentencing landscape.
Totality and concurrency
Counsel for Mr Cakebread argued for substantial concurrency given that Charges 10, 11, 12 and 13 all occurred on 31 July 2019. I do not accept that submission. Charges 10 and 11, and 12 and 13 occurred hours apart at different locations and in relation to different victims. There will be some cumulation.
The principle of totality requires me to make sure the total sentence for each of you is appropriate for the total criminality. This has required me to adjust the orders for concurrency in particular.
In relation to the theft of petrol charges, there are five of them; I will be imposing an aggregate term of imprisonment for these. I’m obliged to explain this to you

Mr Castner. Those petrol charges are all very similar. I’m going to bundle them together give you one sentence on all of them to make it simpler.
Disposition
I will deal first with Mr Castner. Dealing first with the aggregate sentence on the charges of theft of petrol, 2, 7, 8, 9 and 15. On Charges 2, 7, 8, 9 and 15, Mr Castner is convicted and sentenced to an aggregate sentence of four months imprisonment. On Charge 1: theft, you are convicted and sentenced to four months imprisonment. On Charge 3: aggravated burglary, you are convicted and sentenced to two years imprisonment. On Charge 5: theft, you are convicted and sentenced to eight months imprisonment. On Charge 6: obtaining property by deception, you are convicted and sentenced to one month imprisonment. On Charge 10: aggravated burglary, you are convicted and sentenced to two years imprisonment. On Charge 11: theft, you are convicted and sentenced to four months imprisonment. On Charge 12: aggravated burglary, you are convicted and sentenced to 33 months imprisonment. On Charge 13: theft, you are convicted and sentenced to nine months imprisonment. On Charge 14: obtaining property by deception, you are convicted and sentenced to one month imprisonment. On Charge 16: reckless conduct endangering serious injury, you are convicted and sentenced to three months imprisonment. On the summary charge of unlicenced driving, you are convicted and sentenced to two months imprisonment.

These are the orders for cumulation. I direct that one month of the sentence imposed on Charge 1, seven months of the sentence imposed on Charge 3, two months of the sentence imposed on Charge 5, nine months of the sentence imposed on Charge 10, one month of the sentence imposed on Charge 11, four months of the sentence imposed on Charge 13, one month of the sentence imposed on Charge 16 be served cumulatively upon each other and upon the sentence imposed on Charge 12.
This results in a total effective sentence of four years and 10 months imprisonment. I direct that the minimum term to be served by Mr Castner before being eligible for parole is three years and two months imprisonment.
Presentence detention
I further declare in relation to Mr Castner that you have been in custody in respect of each of these offences for 726 days and this will be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.
In relation to Charge 1: theft, I order that you be disqualified from obtaining a licence or permit for a period of three months and on Summary Charge 36 I direct that you be disqualified from obtaining any licence or permit for a period of three months.
In relation to s6AAA but for the pleas of guilty, the sentence I would have imposed would have been a period of six years and eight months with a non-parole period of four years and six months.
I turn now to Mr Cakebread. In relation to Charge 10: aggravated burglary, you are convicted and sentenced to 20 months imprisonment. In relation to Charge 11: theft, you are convicted and sentenced to three months imprisonment. In relation to Charge 12 you are convicted and sentenced to 31 months imprisonment. On Charge 13: theft, you are convicted and sentenced to eight months imprisonment. On Charge 18: reckless conduct endangering life, you are convicted and sentenced to 18 months imprisonment. On Summary Charge 9: committing an indictable offence whilst on bail, you are convicted and sentenced to two months imprisonment and on Summary Charge 10: driving while disqualified, you are convicted and sentenced to two months imprisonment.
These are the orders for cumulation. I direct that ten months of the sentence imposed on Charge 18, three months of the sentence imposed on Charge 13, one month of the sentence imposed on Charge 11, eight months of the sentence imposed on Charge 10 be served cumulatively upon each other and upon the sentence imposed on Charge 12, resulting in a total effective sentence of four years and five months imprisonment. I direct that the minimum term to be served before becoming eligible for parole is two years and 10 months imprisonment.
I further declare the period that you have been in custody in respect of these offences, namely 734 days, be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.
In relation to Summary Charge 10, with conviction, I order that all Victorian licence and permits held by Mr Cakebread be cancelled and that he be disqualified from obtaining any such licence or permit for a period of 12 months from today's date, 1 September 2021.
Pursuant to s6AAA of the Sentencing Act, but for the plea of guilty of Mr Cakebread the sentence I would have imposed would have been a period of six years imprisonment with a non-parole period of four years.

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[2021] VCC 1237

1 September 2021