Director of Public Prosecutions v Campion
[2021] VCC 1745
•5 November 2021.
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01182
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAYSON JAN CAMPION |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August 2021, 20 August 2021 | |
DATE OF SENTENCE: | 5 November 2021. | |
CASE MAY BE CITED AS: | DPP v Campion | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1745 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of attempted aggravated carjacking – two summary charges: committing an indictable offence whilst on bail and being a non-prohibited person in possession of an imitation firearm – 19 year old offender with limited criminal history – history of methylamphetamine abuse and long term vulnerability in relation to learning and behavioural problems with diagnosed Attention Deficit Disorder and Oppositional Defiant Disorder necessitating medication – later diagnosis of Autism and current diagnosis of non-verbal learning disorder – psychological evidence as to offender being vulnerable to exploitation by others – evidence that an older offender (37 years old) had organised the proposed aggravated carjacking and promised offender drugs in return for him carrying it out – more onerous period on remand during COVID-19 pandemic restrictions – remorseful early pleas of guilty with increased utilitarian value entered during pandemic – some delay in being charged and matter being brought on for hearing – good rehabilitative gains during that period – youthful offender – emphasis upon rehabilitation – optimistic prospects of rehabilitation
Sentence: Total Effective Sentence of 95 days’ imprisonment, with two Community Correction Orders (of 3 years and 12 months’ duration respectively). s.6AAA: 3 years’ imprisonment with a non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Sprague | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J Barrera | Stary Norton Halphen |
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HER HONOUR:
1Jayson Jan Campion, you have pleaded guilty to one charge of attempted aggravated carjacking which carries a maximum penalty of 20 years’ imprisonment. You have also agreed to two summary charges being heard by this Court and have pleaded guilty to them. The first is Summary Charge 3, committing the attempted aggravated carjacking whilst on bail, which carries a maximum penalty of 3 months’ imprisonment or 30 penalty units. The second is Summary Charge 5, being a non-prohibited person in possession of an imitation firearm, which carries a maximum penalty of 2 years’ imprisonment.
2The agreed circumstances of your offending are summarised in the prosecution opening on plea (Exhibit “A”).
3On the morning of 19 January 2020, your victim, Callum Milligan,[1] aged 34 years old, who had advertised his 2010 Honda CVR Solo motorcycle for sale online, received an inquiry via text message from your co‑accused, Harrison Southwell (“Southwell”),[2] using the alias of “Alex”. Southwell and the victim agreed by text message to meet later that day at the victim’s residential apartment block, so that Southwell could inspect the motorcycle, which he did. This was captured on CCTV footage at the victim’s address. Subsequently, Southwell sent another text message to the victim making an offer to purchase the motorcycle for $7,500 which was accepted. He sent later text messages to the victim and ultimately made an arrangement to collect the motorcycle the following day at 11:40pm. He told the victim that he would pay cash for it.
[1]A pseudonym has been used for the name of the victim because, as at the date of sentence, the co-accused’s matter is at a pre-trial stage.
[2]A pseudonym has been used for the name of the co-accused in these remarks because, as at the date of sentence, the co-accused’s matter is at a pre-trial stage.
4Photographs taken by police from the message bank of Southwell’s mobile phone[3] show a series of text messages on 19 and 20 January 2020 between you and Southwell, who demands that you make contact with him. Your phone tries unsuccessfully on a number of occasions to call Southwell’s number, but he does not answer. On the day of the offending, at 3:30pm, Southwell sent a text to you stating, “I'll see you soon, but be ready for 10:30 tonight to get the motorbike yeh with me.” Subsequently, police obtained call charge records which reveal that, in the leadup to the offending on 20 January 2020 and also shortly after it, you and Southwell spoke by phone on multiple occasions, including a phone call of 48 seconds’ duration at 11:56pm.
[3]Depositions page 132-137, image folio E, photographs 16 to 21
5At 11:40pm on 20 January 2020, Southwell sent the victim a text message stating, “4min away mate” and, shortly thereafter, sent another message stating, “here”. The victim was standing on the balcony of his apartment and saw a person wearing a red cap and a grey hooded jacket, with the hood of the jacket over the cap. Unknown to him, this was you, who had attended pursuant to Southwell’s instructions. The victim took a lift from inside the building down to the garage of the apartment block and used his key to open the garage access door. You then entered the garage and produced a small imitation handgun which you pointed at the victim and demanded that he hand over the keys to the motorcycle. He refused to do so and ran back towards the lift. Initially, you followed him but then realised that he had pressed the button to close the garage door and you fled from the garage. This was captured by CCTV cameras inside the garage. This is the conduct comprising Charge 1, attempted aggravated carjacking.
6At the time of committing this offence, you were on bail for matters which, at that stage, were listed before the Sunshine Magistrates’ Court on 24 March 2020. This is the basis of Summary Charge 3, committing an indictable offence whilst on bail.
7The victim immediately reported the matter to police and provided a statement. Police spoke with Southwell on 23 June 2020 and took photographs of the text messages on his phone to which I have earlier referred. It is apparent that the conversation between Southwell at 11:56pm took place immediately after your attempted aggravated carjacking.
8On 15 September 2020, police executed a search warrant at the house where you resided with your mother. They located a red cap, a grey hooded jumper and a black imitation firearm. Your possession of the latter is the basis for Summary Charge 5, being a non-prohibited person possessing an imitation firearm.
9You were arrested and taken to Altona Police Station where you made a “no comment” record of interview, as is your legal entitlement. You were charged and remanded in custody, but granted bail on 18 December 2020. A committal hearing was listed at Melbourne Magistrates’ Court on 4 June 2021. On that day you indicated your intention to plead guilty to the charge on the indictment before any witnesses were called to give evidence.
10You are presently aged 21 years, having been born on 19 September 2000. You come before the Court with a limited prior criminal history. This consists of one appearance at Sunshine Children’s Court on 13 December 2012 for theft of a bicycle and possession of cannabis. Without conviction, the matters were adjourned for a period of 12 months upon you entering into a good behaviour bond.
11You are yet to face a number of outstanding charges for offences of possession of illicit drugs, using threatening words, theft from a shop and committing an indictable offence whilst on bail. These offences which were committed both before and after the matters for which I must sentence you. A consolidation of these matters was to be the subject of a hearing listed at Melbourne Magistrates’ Court on 7 September 2021. Obviously, it is no part of my sentencing task to punish you for these offences. The relevance of them in the current context is that, since March 2019, you had been on bail for offences which had been committed on 29 November 2018. Usually, the fact that you were on bail would be regarded as an aggravating feature of the offence of aggravated carjacking. However, as you have been charged with a separate summary offence of committing this indictable offence whilst on bail, it is important that the Court not impose double punishment.
12In a plea on your behalf by Mr Barrera, the Court was told that you had a history of a difficult childhood, with a lengthy history of engagement at the Royal Children’s Hospital for learning and behavioural problems from age six until just before your fifteenth birthday. At school you had displayed poor coping abilities, lack of participation and focus, and difficulty finishing tasks. You had struck other children and were impulsive, distractable and disruptive. You had difficulty with fine and gross motor skills, poor hand-eye coordination and general physical clumsiness. You had problems making friends and were often upset about the fact that your peers rejected you. You were relentlessly bullied in both primary and secondary school. You were initially diagnosed with Attention Deficit Disorder and Oppositional Defiant Disorder, for which you were prescribed the medications Ritalin and Concerta in varying doses over the period of treatment at the Royal Children’s Hospital. It seems that in or about 2010 you were diagnosed with Autism.
13You are the older of two children. Your younger brother is now aged 10 years. You were raised in Sunshine, but your parents separated when you were about 10 years of age. You continued to live with your mother and for a number of years up until recently had regular contact with your father. You left school partway through Year 10 and completed a six month pre-apprenticeship course in motor mechanics and then worked in various unskilled occupations. Unfortunately, from age 14, you began to use cannabis which escalated to a daily habit of a couple of grams, which persisted up until the time of your offending. You had experimented periodically with ecstasy and amphetamine and, from age 18, had fairly regularly used methylamphetamine.
14It appears that your current offending occurred in the context of you using methylamphetamine and mixing with other users, including Southwell, who was almost a couple of decades older than you and seems to have supplied drugs to you. He was born on 14 July 1987 and was thus aged 37 years at the time of offending. He has had five court appearances between 2003 and 2019 for drug related offending, weapons offences, dishonesty offences, driving offences, intentionally causing injury and bail offences. He had been charged with being complicit in your attempted aggravated carjacking and apparently pleaded not guilty to the charge, although the prosecutor, Mr Sprague, informed the Court today that his matter is in the process of resolution.
15Mr Barrera stated that Southwell had promised to give you methylamphetamine in return for your involvement. This appears to be supported by the messages from Southwell to you which have the tenor of someone who is standing over you to some extent in an aggressive fashion. For example, at 2:58pm on 18 January 2020, he directs you to “answer the fucking phone asap” and tells you that it is a “big big mistake blocking my calls”.[4] On the following day, Sunday, 19 January 2020 at 10:09am, he tells you in no uncertain terms that you should ring him if you want to make money.[5] After a number of failed attempts by you to call Southwell, he then texts you at 4:48pm that day, stating, “not smart” and at 5:43pm sends you a photo of a bag containing a while crystalline substance, which is presumably methylamphetamine.[6] In addition, shortly after you were arrested, you verbally told police that Southwell had put you up to the offending and had given you the gun and that he was going to pay you in “gear”.[7] You mentioned that Southwell had stood over you and had “set it all up”, but you would give a “no comment” record of interview because you did not want to lag.[8]
[4]Depositions 131
[5]Depositions 132
[6]Depositions 133
[7] Statement of Senior Constable Heath Taylor, dated 21 September 2020, Deposition 43
[8] Statement of Detective Senior Constable Svetlana Stojkoski, dated 25 September 2020, Deposition 49
16Tendered on your behalf was a report of a neuropsychological assessment conducted by Dr Loretta Evans dated 26 March 2021.[9] This is a lengthy and comprehensive report compiled after Dr Evans had telephone conversations with your mother, the psychologist at your former school, the manager of the Nexus Program in which you participated after you were granted bail in December 2020, as well as having access to a variety of other records including clinical notes from your file at the Royal Children’s Hospital dating from 1 November 2006 to 12 August 2015.
[9]Exhibit “1”
17Dr Evans conducted a range of neuropsychological assessments and these, in combination with your history, caused her to conclude that, despite poor ongoing social skills, your current presentation is not consistent with a diagnosis on the Autism spectrum. However, she did consider that you have a non-verbal learning disorder which is developmental in nature. She described this as being characterised by poor visual, spatial and organisation skills, difficulty recognising and processing non-verbal cues and poor motor performance. She stated that this disorder is commonly confused with signs and symptoms seen along the Autism spectrum. She stated that individuals with a non-verbal learning disorder have difficulty interpreting body language, facial expressions, tone of voice, poor coordination (so they are seen as clumsy or always getting in the way), poor fine motor skills (in such things as using scissors or doing up shoelaces or buttons), visual-spatial difficulties (such as trouble discriminating between objects or images or determining one’s location in a body of space), literal thinking (involving difficulty interpreting sarcasm, inuendo or other nuanced language), naivety (in the sense of being overly trusting), difficulty coping with change, problems following multi-step directions, difficulty making generalisations or seeing the big picture, poor reading comprehension and other challenges that are often masked by advanced verbal skills. Thus, she considered that, although you still have some mild attentional difficulties, overall, your attentional deficits had ameliorated with maturity.
18Testing by Dr Evans showed that you have an overall IQ of approximately 93 (that is in the low-average to average range), with verbal strengths, but you have deficits in all aspects of non-verbal intelligence which caused your scores to fall within the mildly intellectually disabled range. They were scores that one might expect of someone with an overall IQ of 63. Dr Evans particularly noted that, although your attention span was normal, in order to maintain concentration over extended periods, you needed direction and you struggled to independently complete higher order tasks and were easily distracted. In addition, your working memory was typically in very low ranges in that unless information was repeated, your working memory capacity was minimal. However, with multiple repetitions you were able to learn new information at a normal level within average ranges. As far as executive functioning is concerned, she considered that, although you had sufficient knowledge about expected protocols, community standards and acceptable conduct, your perceptual reasoning abilities were impaired consistent with your poor interpretation of facial expressions and social cues. Thus, you have the cognitive capacity to make reasoned decisions, but when presented with verbally based information, you are likely to struggle with non-verbal reasoning.
19Dr Evans considered that your frustration associated with non-verbal learning difficulties from a young age, together with social rejection and such things as childhood sleep disturbance and nightmares, underpinned the potential for your emotional dysregulation from an early age. This had potentially persisted over time and may have negatively affected attention, concentration, cognitive processing speed and the ability to inhibit negative reactions. She considered that you had a complicated neuropsychological profile attributable to underlying developmental factors affecting non-verbal capabilities, highly disrupted educational opportunities and cortical vulnerability which was possibly comprised by onset of cannabis and amphetamine use during critical periods of brain maturation, together with the potential longstanding emotional distress due to events experienced during childhood. Hence, she considered that your capacity to function in complex social situations is likely to be moderately compromised.
20Dr Evans concluded that you clearly understand right from wrong. She considered that your daily cannabis and ice use were the key contributors to your offending, and, on balance, that there was not an appreciable realistic connection between your cognitive impairment and the offending. Nevertheless, she anticipated that you would experience lifelong difficulties because of your deficits in visuospatial abilities, poor coordination in both fine and gross motor skills, and social functioning. She thought you would require ongoing guidance from trusted others in unfamiliar or complex social environments and, due to your impaired interpretation of various non-verbal cues, would likely be vulnerable in a custodial setting and have the potential to be easily exploited by others.
21Dr Evans opined that you had expressed remorse, regret and shame which impressed her as being genuine. You were able to articulate the psychological and emotional impact of your behaviour on others. She thought this level of insight was a positive factor for your rehabilitation. However, unless you receive significant support by way of very specific verbal explanations and guidance to assist you in understanding therapy regimes and programs to assist illicit drug abstinence, rehabilitative programs were unlikely to be successful. She considered that you need drug and alcohol counselling for relapse prevention, with repeated verbal instructions and explanations as you were not likely to benefit from practical demonstrations, graphs, drawings or pictorial instructions. As far as future vocations are concerned, you need step by step written instructions, checklists or verbal directives to help you acquire new skills. Given your poor fine motor skills, you are not well suited to tasks that require accurate hand-eye coordination or attention to visual details, but are better suited to occupations that have a broader repetitive component.
22Mr Campion, the offence of attempted aggravated carjacking is a very serious offence as demonstrated by its maximum penalty of 20 years’ imprisonment. Generally speaking, to use a weapon and threat of violence in order to take another person’s vehicle is a grave criminal action which has a capacity to cause great harm to victims and to be of concern in the community in general. Usually, those who attempt such an offence would be sentenced to a significant term of imprisonment. This was not spontaneous or opportunistic offending. You planned this with Southwell and brought the weapon to the home of your victim planning to steal his motorcycle. It should be acknowledged that the victim told police that what you pointed towards him did not look like a genuine gun. There is no Victim Impact Statement, but it should be noted that he was so afraid that he turned and ran away. He told police that he felt “extreme fear for (his) life”.[10]
[10] Statement of the victim, Depositions p 24 at [20]
23Unhappily, the seizing of vehicles by the use of weapons has become a very prevalent offence and undermines the sense of safety that all people are entitled to feel. It is brazen offending which occurred late at night whilst you were disguised with a hoodie and sunglasses and were in the garage of the victim’s own home. In cases of this type, the Court must denounce your conduct and usually place emphasis upon what is called general deterrence. This means that, in sentencing you, the Court must send a strong message to others who might be minded to offend in this way that it will not be tolerated and they will be appropriately punished. Having said that, I accept that your behaviour demonstrates a relatively unsophisticated example of an attempt, and it was over fairly quickly without any actual physical force being exerted or any injury caused to the victim. I am also satisfied on the balance of probabilities that the architect of the offending was Southwell. This is evident from him having initiated contact with the victim, gone around to inspect the motorcycle and, then, arranged with the victim for its ostensible purchase late at night. It is also evident from the depositional material to which I have earlier referred that he was exerting some influence on you albeit that your drug abuse is what apparently got you into his sphere of influence.
24The body of evidence put before the Court on the plea satisfies me that you are someone who is vulnerable and probably easily stood over. Indeed, it would appear that this happened during your time in custody. A reference from your father which forms part of Exhibit “4” notes that he spoke to you every day in custody and, on video calls, he observed that you had “fat lips and black eyes”, which you had claimed to have got from boxing training. However, your counsel stated that, whilst in custody, you had reported to authorities that you had been assaulted by a fellow prisoner.
25Despite the gravity of this offence, I consider that there is scope for the exercise of mercy in your case. The materials tendered on your behalf show that you have had a very challenging childhood and that the reason for your disruptive behaviour may not have been fully understood. A reference provided by your mother as part of Exhibit “4” makes it plain that, as you grew up, she found your behaviour very distressing and she grieved over the fact that you never had friends in primary or high school or been invited for a sleepover or to a birthday party. Once she and your father separated, she found it increasingly difficult to exert any control over your behaviour as you began mixing with other teenagers who were abusing substances. She stated that you started to vanish for days and then weeks on end. Both she and your father commented upon how different you appeared after being off drugs during your period on remand in custody. Your mother described seeing that your eyes were clear and that you had a smile on your face and that you related with affection to your little brother, whom you had previously begun to treat in a nasty way when you went off the rails. Your father described his grief as you became increasingly elusive and avoided contact with him. He described you as having become skinny, dirty and lacking in hygiene when he did manage to see you. He stated that, after you had been remanded in custody, he spoke to you every day and, ultimately, agreed to become surety in the sum of $5,000 because he could see the difference that being off drugs had made to you. He stated that being in prison was the best thing that happened to you in the sense that you were scared and have vowed that you never want to go back and that you wish to change your ways.
26I have heard vows and sentiments about change many times over the years of being a judge. However, in your case there is some impressive material to indicate that you may be serious about it. Firstly, upon being bailed you engaged with the Nexus Program run by the GEO Group. This program provides intensive case management for people who have been released from prison to help them transition back into the community. The reports from Amy Howell, your case manager in the Nexus Program (Exhibit “3”), state that you engaged well with her and maintained weekly contact by phone and in person for three months following your release from Ravenhall Correctional Centre on 18 December 2020. You were assisted to obtain Centrelink payments and set up a bank account. You expressed interest in engaging with alcohol and drug support and were referred to Ms Tamra Kamalesh at the Bridge Centre and attended your first appointment on 6 January 2021. Interestingly, you were assessed as not requiring any immediate support as you were doing well abstaining from substance abuse. Ms Howell noted that you had had to move out of your mother’s home due to the Department of Health and Human Services holding concerns about your younger brother sharing the same accommodation with you. However, you obtained employment and were seen to be getting your priorities in order and taking some responsibility by paying rent.
27Perhaps the most impressive evidence as to your prospects of rehabilitation comes from the reference from your current employer, Parry Amanatidis, dated 13 August 2021.[11] He is the managing director of a small business named “Stress Free Furniture Removals” and he has known you since you were a small child.
[11]Part of Exhibit “4”
28Mr Amanatidis stated that, two to three years ago, you came to work for him. However, you were consistently late, if you turned up at all, and would be unwashed, wearing dirty clothes and not in a clear state of mind. He stated that you only lasted a month and he became aware that you had been using drugs and hanging around with others who were doing the same. Last year, your father asked him whether he would be able to give you some work when you were released on bail, but, initially, he told your father that he was not prepared to take the risk. He kept in touch and, after becoming aware that you were seeing someone for rehabilitation and going regularly to the gym, he decided to give you a few hours’ work when he needed an extra pair of hands so that he would be able to directly supervise you.
29Mr Amanatidis expressed his astonishment that, on each occasion he went to pick you up, you were ready and waiting for him. He stated that, what started off as a half shift in January 2021, within a month became 40 to 50 hours of strenuous work moving furniture each week. You are still working for him full time albeit working on a casual basis. He spends a lot of time with you and stated that you have sincerely changed your life, put on weight, look clean and healthy, have saved money, learned how to do a tax return and are currently working towards getting your licence. He stated that he is confident that you are no longer using drugs and that you are up and ready for work at 6:00am each day. He is personally mentoring you and stated that you have expressed sorrow for the effect that you have had on the victim. He expressed confidence that you are now a young man trying to find your way in life and anxious to prove that you can change what you were in the past. He is happy to keep employing you and stated that he would never put his customers in jeopardy or risk the reputation of his business if he thought that you were continuing to use drugs or commit crimes. To my mind this is a powerful testament that you are seriously making an effort to change your ways.
30As I am mindful of your young age and, in light of the mitigating factors to which I have referred, this is a case where rehabilitation should be at the forefront of sentencing objectives albeit that there still needs to be denunciation of your conduct and some emphasis upon general deterrence and just punishment. Mr Sprague for the prosecution has conceded that a combination sentence of imprisonment and a Community Correction Order is within range. Accordingly, I adjourned the matter to 20 August 2021 for sentence, with a request that the Office of Corrections provide an assessment as to your suitability for a Community Correction Order.
31In response to that request an assessment report authored by Monica Dankoff of the Sunshine Office of Corrections dated 18 August 2021 was provided (Exhibit “B”). The report assessed you as being of low risk of reoffending and as being suitable for a Community Correction Order. Although I had suggested conditions of supervision, unpaid community work, drug assessment and treatment and other programs which might assist you in dealing with your neuropsychological deficits, the report suggested conditions of only unpaid community work and drug and alcohol assessment. I had my Associate communicate to the author of the report my concern about the need to try to assist you with strategies for coping with your non-verbal reasoning disorder. An addendum to the report arrived by way of memorandum from Ms Dankoff dated 19 August 2021 (Exhibit “C”) suggesting a Justice Plan or assessment for a National Disability Insurance Scheme package. As I considered it unlikely that you would be eligible for either of these, I adjourned the matter for a further period so that your legal advisers could explore options of a service which may provide assistance to you so that engagement, with such service could become a condition of the Community Correction Order.
32The matter came before me again today, 9 November 2021, and a report from Leanne Kennedy, clinical neuropsychologist, dated 1 November 2021 was tendered as Exhibit “5”. She noted that there had been some delay in making progress for treatment for you, as you first needed to obtain a Medicare card, which had been achieved. Then, your GP, Dr Phan, made a referral to Ms Kennedy with a mental health care plan but, unfortunately, there was further delay due to Ms Kennedy having to quarantine for 14 days because of a positive COVID-19 test. However, she stated that you and she have had an initial meeting via Zoom and that you had clarified what you wished to gain from the sessions and were able to express that you wanted to stay out of trouble. Both you and your father confirmed that you have continued to abstain from illicit substances and gained some skills to avoid getting into trouble again. Essentially you have agreed to participate in a program designed to assist a person to read faces and learn about emotions, along with some sessions about verbal communication which, at times, contribute to your difficulties with understanding. It is proposed that you commence face-to-face sessions beginning this week. Further, there will be reviews with Dr Phan after six weeks and 10 weeks to determine the ongoing plan. In the interim, your counsel, Mr Barrera when he appeared before me at a mention on 20 August 2021 stated that he was looking into making an application for a National Disability Insurance package on your behalf. I am fully aware of the woeful delays which accompany such applications and, in the light of the fact that neuropsychological treatment is now available which was clearly not something that was going to occur otherwise under a Community Correction Order, I determined that it was appropriate to proceed to sentence.
33In sentencing you I take into account your youth and relative lack of criminal history, your difficult background of behavioural issues which were clearly not adequately diagnosed or fully understood and the fact that, for someone of your age and psychological deficits to have been held in custody for the first time without being able to adequately read social cues, must have been an added challenge. I am satisfied that your engagement with the Nexus program after being released on bail, your preparedness to continue to abstain from illicit drug use and to cooperate in the provision of a mental health plan from your general practitioner and ongoing counselling with a neuropsychologist, together with the support of your family and employment are positive steps in your favour and lead me to be optimistic about your prospects of rehabilitation.
34It is very unfortunate that you appear not to have been followed up in any appropriate way after being discharged from the Integrated Mental Health Program at the Royal Children’s Hospital in 2015. It would appear from Exhibit “1” that after 12 August 2015, you were subsequently lost to follow up. At that stage you were only 14 years of age and in Year 9.[12] Unhappily, the fact that your parents were separated and perhaps not communicating as well as they might have done meant that you were in a situation of limbo, as far as treatment was concerned, while you spiralled down into drug use as you mixed with other drug users whom your father described as much older than yourself.[13]
[12]Exhibit “1” paragraph 13(m) page 7
[13]Reference of Mr Jason [Jaggi] Sidhu dated 13 August 2021, part of Exhibit “4”
35These mitigatory factors to which I have referred, especially your efforts towards rehabilitation, cause me to consider that a combination sentence of imprisonment is an appropriate disposition notwithstanding the seriousness of the charge of attempted aggravated carjacking. Moreover, there has been some delay in your being charged and the matter coming on for hearing. I take into account the delay, not only in that you have had your fate hanging over your head which is an understandable cause for concern and anxiety, but also as you have utilised the period of that delay to take steps towards your rehabilitation.
36I also acknowledge that, quite apart from the fact that it was your first time in custody, your period on remand from 15 September to 18 December 2020 was made more onerous by the restrictions necessitated by the COVID‑19 pandemic. These have included the necessity for an initial 14 day period of quarantine and reduced out of cell time for prisoners in order to facilitate social distancing, a lack of contact visits from family and friends and a very limited number of rehabilitative programs.
37I also take into account that you have entered your plea of guilty during the time of pandemic restrictions when it has been close to impossible to run criminal trials in this Court and, accordingly, it is to be afforded added utilitarian value because of that factor. You could have chosen to simply adjourn the matter off indefinitely, but you have accepted responsibility for your offending and facilitated the course of justice. In addition, I am satisfied that you have developed remorse in relation to what you have done and are determined to change your ways. You are entitled to an increased tangible discount on the sentence which otherwise might have been imposed because of these matters.
38In sentencing you for Summary Charge 5, being a non-prohibited person in possession of an imitation firearm, I propose to reflect in my sentence that, although you should be afforded some concurrency, as it is an essential element of the attempted aggravated carjacking that you had with you a weapon. Accordingly, the discrete summary charge warrants only modest cumulation. Also, as I have said previously, I am mindful of avoiding the imposition of double punishment for your offending whilst on bail, as you have been charged with a separate summary charge, namely, Summary Charge 3, the offence of committing an indictable offence whilst on bail.
39As I propose to place you on a Community Correction Order for the charge of attempted aggravated carjacking with conditions including that you perform unpaid community work hours, I intend to place you on a second Community Correction Order for the Summary Charges. Although the duration of that order will run concurrently with the first order, I will direct that you undertake a further 25 hours of unpaid community work. In determining the overall amount of unpaid community work to be performed by you, I have taken into account that you will also have considerable obligations relating to your drug and psychological counselling, as well as continuing the desirable rehabilitative effect of your paid employment.
40On one charge of attempted aggravated carjacking, you are convicted and sentenced to a period of 95 days’ imprisonment together with a Community Correction Order for a period of 3 years. I declare a period of 95 days pre‑sentence detention to be time reckoned as already served under the sentence imposed this day.
41On Summary Charge 3, committing an indictable offence whilst on bail, and Summary Charge 5, being a non-prohibited person in possession of an imitation firearm, as an aggregate sentence, you are convicted and placed on a separate Community Correction Order for a period of 12 months, which will run concurrently with the Community Correction Order imposed on Charge 1.
42The following terms are the core conditions, which are attached to each of the two Community Correction Orders:
(a) you must not commit whether in or outside Victoria during the period of the order an offence punishable by imprisonment
(b) you must comply with any obligations or requirements prescribed by the regulations
(c) you must report to and receive visits from the Secretary during the period of the order
(d) you must report to the Community Corrections Centre specified in the order, which, in your case, will be the Sunshine Community Corrections Centre, within two clear working days after the order coming into force
(e) you must notify the Secretary of any change of address or employment within two clear working days after the change
(f) you must not leave Victoria except with the permission of the Secretary granted either generally or in relation to a particular case
(g) you must comply with any necessary direction given by the Secretary to ensure that you comply with the order.
43In addition to the core conditions, on each of the two Community Correction Orders, there will be the following special conditions:
(a) That you undertake assessment and treatment for drug and alcohol counselling;
(b) That you undertake assessment and treatment for mental health conditions and, in particular, that you continue to attend for counselling with Ms Leanne Kennedy, neuropsychologist while such counselling is still recommended by Ms Kennedy or your general practitioner, Dr Phan;
(c) That you undergo any other suitable offence specific or vocational programs as directed;
On the Community Correction Order imposed for the charge of attempted aggravated carjacking, there will be a further special condition that you perform 100 hours of unpaid community work.
On the Community Correction Order imposed for the summary charges, as I have previously stated, there will be a further condition that you undertake 25 hours of unpaid community work, which is to be performed cumulatively, or on top of, the 100 hours already ordered.
44Mr Campion, you have to realise that I can only make an order for a Community Correction Order if you consent to it. Do you consent to each of those orders and agree to obey their conditions?
45OFFENDER: Yes, Your Honour.
46HER HONOUR: You need to understand that in the event that you breach either order, either by not complying with the conditions or by further reoffending, then you will likely be charged with contravening the order which in itself is a criminal offence punishable by a maximum of 3 months’ imprisonment. Should that occur you will most likely be brought back before me and it is likely that you face the risk of my setting aside the Community Correction Order which I have given you and sentencing you to a further term of imprisonment. Do you understand this?
47OFFENDER: Yes, Your Honour.
48HER HONOUR: Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 3 years’ imprisonment with a non‑parole period of 18 months.
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