Director of Public Prosecutions v Carter

[2017] VCC 1882

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR‑17‑00500
CR‑17‑00498

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEIARHN CARTER
LACHLAN MITCHELL

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 December 2017
CASE MAY BE CITED AS:	DPP v Carter & Anor
MEDIUM NEUTRAL CITATION:	[2017] VCC 1882

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public
Prosecutions	Mr K. Doyle
For the Accused Carter	Mr M. Turner
For the Accused Mitchell	Mr D. Langton

1HER HONOUR: Lachlan McGregor Mitchell, you have pleaded guilty before me to two charges of theft of motor vehicle; one charge of armed robbery; one charge of being a prohibited person carrying or using a firearm; one charge of handling stolen goods. You have also pleaded guilty to the summary offences of driving whilst disqualified, careless driving, and exceeding the prescribed concentration of drugs. These charges have been uplifted for hearing by this court, pursuant to s.145 of the Criminal Procedure Act. 

2Keiarhn Carter, you have pleaded guilty before me to one charge of armed robbery; one charge of motor vehicle theft; two charges of dangerous driving whilst being pursued by police; one charge of conduct endangering persons; and one charge of burglary. You have also pleaded guilty to the summary offence of unlicensed driving, which has also been uplifted, pursuant to s.145 of the Criminal Procedure Act.

3The facts underlying your offending are as follows.  Sometime between 24 and 25 August, a 2007 Commodore station wagon belonging to Michael Buckle was stolen.  He had left the keys to the car on a fridge in an enclosed deck at the back of his house.  The two of you drove his car over the next few days.  Your actions in driving this car whilst knowing it was stolen underlie charge 1 on the indictment against you, Mr Mitchell, and charge 2, in relation to you, Mr Carter.

4At about 7.30 on the morning of 25 August, the two of you, with another man, Kyle Jennings, went to the Warrnambool Showgrounds, where a man named Hudson Bell was living in a converted bus.  He woke to the feeling of the bus being rocked, as if someone was pushing it, heard knocking on the door, and heard you, Mr Mitchell, shouting, "Hudson, Hudson, open the door."  He walked to the front of the bus and saw the two of you standing outside. 

5He realised there was going to be trouble, due to past history with you, Mr Mitchell, and went to the rear of the bus.  He had known you for about two years, and for the previous three weeks, you had been threatening him, Mr Mitchell, via phone and Facebook, saying he had to pay you $500 a week to stay in Warrnambool.  The two of you and Jennings entered the bus, you entering first, Mr Mitchell, carrying what looked like a flintlock pistol, like a pirate's pistol, about one a half foot long.  That would appear to have been a sawn-off shotgun. 

6You said to him, "Give me your money or your drugs.  Don't fuck with me.  Don't get smart.  Get them out now."  Bell said he did not have any, and you said, "Don't fuck me, Hudson, or I will pull the trigger."  Your actions in relation to Bell underlie the charge of armed robbery against you, Mr Mitchell, and also against you, Mr Carter, who was acting on an accomplice basis.  It also underlies charge 3 against you, Mr Mitchell, for being a prohibited person possessing a firearm.  

7Bell stood forward and tried to grab the gun, but you pulled away from him, and Bell told you all to, "Fuck off out of the bus."  As you all left, you, Mr Mitchell, took a money tin containing $500 in coins, and two wallets containing cash.  The three of you got into the stolen car, which was now bearing false plates.  Bell ran out into the road and managed to wave down a passing motorist, who called 000.  Mr Jennings was ultimately arrested that day. 

8At about 10.30 pm on 25 August, police were patrolling the Portland area when they saw the stolen car with the false plates that the two of you were driving, tried to stop the car, but whoever was driving it actively avoided police. 

9The next morning, 26 August, members of the Hamilton Crime Investigation Unit saw the stolen car parked in Shakespeare Street, Hamilton.  You, Mr Mitchell, were seen to be sitting in the front passenger seat, and you, Mr Carter, were sitting in the driver's seat.  Your actions in driving at this time, Mr Carter, underlie the summary charge of unlicensed driving. 

10The vehicle fled, and there was an attempt to intercept it, and the police pursuit began.  The car reached speeds of up to 100 kilometres per hour in a built up area, where the speed limit was 50 kilometres per hour.  Police stopped the chase due to danger to the public.  Your driving on that occasion, Mr Carter, underlies the first charge against you of dangerous driving whilst pursued by police in Hamilton. 

11At the time that the pursuit was terminated, the car was travelling towards Coleraine and Mt Gambier in South Australia.  Later that morning, the car re-entered Victoria, and a pursuit with police again occurred, this time the car reaching between 140 to 150 kilometre per hour on the Princes Highway.  Again, because of dangers to the public posed by the pursuit, it was terminated.

12Your actions in driving on that occasion, Mr Carter, underlie charge 4 on your indictment, dangerous driving whilst pursued by police.  An attempt to deploy stop sticks was made, but aborted when the vehicle drove directly at a police member who was deploying the sticks.  Your actions in doing this, Mr Carter, underlie charge 5 on the indictment, conduct endangering persons. 

13On 27 August 2016, the car was found abandoned in Portland, and was towed to the Portland police station.  On the front passenger side foot well, a .22 calibre round of ammunition was discovered, and no fingerprints were located in the car, indicating it had been wiped down.

14At about 3.06 pm on 2 September 2016, you, Mr Mitchell, were driving a Subaru car that had been stolen on 21 August.  Your actions in driving in this car underlie the second charge against you of theft of motor vehicle.  You swerved onto the wrong side of the road and collided with a truck, these actions underlying the summary offence of careless driving.         

15The car you were driving was badly damaged, and you suffered serious leg and arm injuries.  Police attended the scene and found a loaded sawn-off shotgun in the car, consistent with the gun descried by Hudson Bell.  They also found ammunition in a bag, along with identification documents in your name.  They also found a black wallet organiser and Victorian probationary licence in the name of one William Kelly, with two sets of Victorian registration plates.  Your possession of these items underlies charge 5 on your indictment, handling stolen goods.  You were airlifted to the Royal Melbourne Hospital for treatment.

16You were a disqualified driver at the time, and your driving of the Subaru underlies the summary charge of driving whilst disqualified.  A sample of blood was taken at the hospital, and analysis of it showed that at the time you were driving, you had methyl-amphetamine in your blood, which underlies the summary charge of driving whilst exceeding the prescribed concentration of drugs. 

17Between 16 and 20 August 2016, you, Mr Carter, went to 41 Hopkins Point Road at Warrnambool and stole a .22 calibre rifle, money, and jewellery worth between $3000-4000, and binoculars.  You were linked by fingerprint evidence to this incident, and your actions underlie charges 6 and 7 on the indictment, burglary and theft.  You waived your right to be formally interviewed in relation to the charges.

18You, Mr Carter, handed yourself in to police on 12 September.  In a record of interview, you admitted being on Bell's property, but said you had never held the gun.  You denied entering the bus.  You said you honestly could not say what had happened when Mr Mitchell entered the bus. You admitted being present at the incident with Bell, but said you had not entered the bus, and had little to say about what occurred.

. 

19The maximum penalty for theft is ten years' imprisonment.  The maximum penalty for armed robbery is 25 years' imprisonment.  The maximum penalty for a prohibited person possessing a firearm is ten years' imprisonment.  The maximum penalty for dangerous driving while pursued by police is three years' imprisonment.  The maximum penalty for conducting endangering persons is five years' imprisonment.  The maximum penalty for handling stolen goods is 15 years' imprisonment, and the maximum penalty for burglary is ten years' imprisonment.

20In relation to the summary offences, the maximum penalty for unlicensed driving is three months' imprisonment.  The maximum penalty for careless driving is 12 penalty units for a first offence and 25 penalty units for a second offence.  The maximum penalty for driving whilst disqualified is four months' imprisonment for the first offence and two years' imprisonment for subsequent offending.  The maximum penalty for driving whilst exceeding the prescribed concentration of drugs is three months' imprisonment for a first offence, 12 months' imprisonment for a second offence, and 18 months' imprisonment for offending thereafter. 

21You, Mr Mitchell, have been remanded in custody since 2 September 2016.  On 8 November, you escaped from custody, and were arrested in South Australia on 12 November and extradited back to Victoria on that day.  You received a three-month sentence for unrelated offending, which ended on 17 April 2017.  You, Mr Carter, were remanded in custody on 12 September, but granted bail on 23 December 2016.  However, you were arrested for breach of the bail on 26 July 2017, and you have been in custody since.  Both of you conducted contested committals, and pleas of guilty were entered just before the trial was to commence. 

22I now turn to your personal circumstances, beginning with you, Lachlan Mitchell.  You are now nearly 22.  You are one of eight children born to your parents and raised in the Camperdown area.  Your father was a carpenter, who now supervises persons working on the Work for the Dole scheme.  Your mother lives in Ballarat and works as a forklift driver at a warehouse in Tullamarine. 

23You told psychologist Pamela Matthews, whose report, dated 21 November 2017, was tendered on the plea, that you had a happy childhood, but had a difficult relationship with your father, who was a strict disciplinarian and a heavy drinker.  Your parents separated when you were aged 10 or 11, and you remained with your father.  In the next few years, you were subjected to heavy physical abuse from him and began fighting back from the age of 12, involving yourself in physical fights with your father. 

24You left home when you were aged 14.  You have essentially lived on your own ever since.  You have had a large number of types of accommodation.  You have lived in hotels, you have lived in Government-supported youth accommodation, you have lived on the streets.  Overall, you have lived in about 13 places in the past seven years.  You still maintain a good relationship with your siblings, none of whom has been in trouble with police, and one of whom is in fact a police officer. 

25You plan to live with your mother on your release from jail.  Indeed, I received a written communication from your mother to the effect that she wanted to have you live with her once you got out of jail.  You suffered learning difficulties at school and were bullied, and were then involved in fighting, for which you were expelled from several schools, ultimately from Mercy Regional College in Year 8.  You did some VCAL studies at about the Year 10 level at the Southwest TAFE in 2011. 

26A cognitive assessment of you was undertaken in 2012, and you were found to have a full scale IQ of 78, which places you on the borderline level of intellectual functioning.  Your employment has been sporadic and brief.  You have worked in a bakery and as a farmhand.  You have undertaken a rudimentary bricklaying course whilst in custody, and this is something you would like to pursue when you leave jail.

27You have a long drug and alcohol history.  From the age of about 13 or 14, you have been using marijuana daily.  You then progressed to using pills, including Valium, Ritalin and Oxycontin.  You still occasionally smoke marijuana, but the real problem for you has been the use of ice, which has been daily and in large quantities since about 2013.

28When you were younger, you were referred to the Child and Adolescent Mental Health Services (CAMHS).  You were 14 at the time, and you were diagnosed as suffering with parent/child relationship problems, mood disorder, an adjustment disorder, and a disruption or oppositional defiant disorder.  In 2010 you were prescribed Prozac.  You suffer from some unexplained heart problems for which no diagnosis has been made.  You have presented to emergency in hospital wards in the past with seizures, possibly due to your use of benzodiazepine pills.   

29When the collision with the truck occurred, you suffered very serious injuries, being fractures to your right tibia and fibula; you shattered your right knee bone; you had torn right knee ligaments and your right kneecap was dislocated. You suffered a dislocated right elbow, a fractured right arm, and, as a result of surgery, rods have been placed in your right arm and leg.  You will apparently need knee reconstruction in the future.  You appear to have recovered reasonably well from your injuries. 

30You have progressed quite well in jail, Mr Mitchell.  You have undertaken a large number of courses.  You have done a course as a trade tester, in construction, in kitchen operations, general education.  You have undertaken a VCAL certificate in applied learning, in occupational health and safety and traffic management, in bricklaying.  You have also undertaken a 12-hour youth relapse prevention program.  

31Most importantly, this is probably the longest time you have been off ice since you began using it.  Would that be right?  Yes.  It is Ms Matthews' opinion that you presented with a range of problems.  They were learning difficulties; victimisation at school, where you were bulled; overdisciplined and physically attacked at home; and importantly, had very limited supports in adolescence.  Then, you have got a long history of illicit substance abuse and - I am just going to return to the report.

32She said that your problems and the difficulties with your IQ meant that you had problems,

"Including, but not limited to educational attachment and social integration at school; unemployment and underemployment; mental health issues; substance abuse issues; homelessness; hyperactivity; social deficit at levels greater than the normal population."    

33She said that she thought you had limited problem solving skills; that you were more vulnerable to negative influences; and that you needed ongoing family support, which you have not had since you were 14.  She said that you,

"Continue to present in the adolescent stage of development, which is a stage of development that does not end at 18 years." 

34What you have got is you have a tendency to act impulsively, and a tendency to lack control.  She also said you suffer from immaturity and from low self-esteem.  When you look at your background, Mr Mitchell, that is not surprising.  You left home when you were 14.  You have had very distant relationships with your parents ever since.  You have gone on to heavy use of drugs really early in the piece.  You have not worked, and you have basically just stayed in one place, developmentally. 

35You might have developed into a big crime figure around Warrnambool, but developmentally, you have just been marking time.  You have not finished your education, you have not worked.  You have not had role models.  So you get involved in something like drugs, you become impulsive, you become angry, and you look at the offending that you did.  Look at Mr Bell; that sort of standover merchant offending, dragging a shotgun around with you, being involved in police chases, knocking off cars.  It is a chaotic, shambolic life, and that is a life you have lived for a long time.

36You have got a lot of priors.  It starts in 2010, with shoplifting and burglary.  Then, there is motor car theft, going equipped to steal.  There is driving whilst disqualified, for all of which you received probation.  You were placed on a youth supervision order for discharging a missile and aggravated burglary, which was a burglary when people were present.  Then, there is theft, going equipped to steal.  You have breached the youth supervision order in 2012 and placed in custody for the first time in a youth justice centre. 

37Again, six months YJC for aggravated burglary, theft shop, and armed robbery.  There is an assault by kicking in 2013.  Then, in 2015, 12 months' youth justice centre for a whole range of offending, including possessing a controlled weapon, trafficking cannabis, trafficking ice; possessing cannabis, possessing ecstasy; four armed robberies, for which you received 14 months' youth justice centre. 

38In March 2016, negligent driving whilst pursued by police; unlicensed driving, prohibited person possessing a firearm; possessing ammunition without a licence; possessing a controlled weapon.  For that, you received ten months' YJC.  So it has just gone on, and on, and on, this constant offending. 

39Ms Matthews makes what is probably a pretty obvious point, that your problems of impulse control are made worse by your drug use.  She stated,

"Mr McGregor Mitchell's involvement in the current matters before the court with his friends Carter and Jennings are consistent with a strong compliance to the influence of peer relationships, which is a hallmark of the adolescent stage of development.  Inherent in Mr Mitchell's conformity to peer group norms and influences in this matter is - the writer's view has been his immaturity and low self-esteem related to the social impacts of his developmental, behavioural and learning difficulties, unemployment, anti-social behaviour, et cetera.  Hence, Mr Mitchell's state of development has also been a significant contributing factor to his offense behaviour."

40Basically, what Ms Matthews is saying there, Mr Mitchell - this is why I wanted a report, so I would understand a bit better- you just have not been able to mature in the normal way.  You have been out on the road, out on the town, out on the streets, using, committing really serious offending, and your life is just staying in one place. 

41She said,

"Mr Mitchell is yet to achieve the adult norms of independence in relation to security of housing, stability of relationship and financial supports.  He impresses as a young man who requires consistent therapeutic support to bridge adolescence into adulthood, and one who very much requires day-to-day parental family support to make the transition from adolescence to adulthood."

42What is being said there is, because you left home when you were 14 and you were on your own since, you just ran wild, basically.  Is all of that making sense to you? 

43ACCUSED MITCHELL:  Yes, Your Honour.  

44HER HONOUR:  All right.  On the one hand, it can be kind of fun running wild, I guess, when you are teenager.  Not really, but some teenagers would think so.  On the other hand, it gets you nowhere, and it has got you nowhere.  It has got you down the back of the court.  The really sad thing is, jail seems to be good for you.  I am not saying you have to like it, but it has actually given you the structure that you needed right through your adolescence. 

45That does not mean I am going to put you in jail forever or anything like that, but I am just saying, for the first time, you got off ice.  You have actually got a plan about what you want to do in the future.  Your relationships, I understand, with your parents have very much improved, to the point that your mother is now prepared to have you live with her.  And although you are going to have to do some jail - and everyone has known about that from the start - you have actually stabilised. 

46The fact that you did a bricklaying course is fantastic.  You have done a lot of courses.  I would not necessarily have expected you to do that.  So you have got - and it sounds like a stupid thing to say to someone who has offended as heavily and as deeply as you have, this is growing up time.  You will have seen in jail those who are cock of the walk there, the ones that walk up and down with their hands behind their back, and everyone running around after them, saying, "G'day, g'day, speak to me." 

47Do you know what I am talking about?  You could probably be one of them, Mr Mitchell, if you want to.  But that is all they have got.  They have just got young prisoners running out at them and saying, "Please notice me" while they walk up and down in the yards.  That is their life.  They have got no relationships outside.  They have got kids that they never see, a stack of partners.  It is a revolving life of using and coming back in again.  That is their life. 

48The only one can stop that happening is you.  You are going to be doing more jail, but I am hoping you are not just sitting around going, "It's not fair."  It is entirely fair.  You have created mayhem and chaos.  I wanted to know why, which is why I got that report.  Now, I think I do know why.  It is exactly what every parent would fear if their 14-year-old headed out the door, that they would end up doing what you have ended up doing, but it is not taking you anywhere, Mr Mitchell.  Bricklaying will; ice will not. 

49Finally, she stated,

"Mr Mitchell's early age of leaving home has then left a vulnerable adolescent without the secure base of family support all adolescents require.  It is not surprising to the writer that in this context, he has gravitated to other alienated youth, and a course of offending and illicit substance use has developed.  It is the writer's very firm view that developmental, cognitive and substance abuse factors are interactive in multiple ways with Mr Mitchell's offending, with developmental and cognitive factors predominating.  Further, Mr Mitchell is coping in prison, and could continue to cope.  However, his youth, and therefore his vulnerability, institutionalisation would suggest continued frequent periods in custody over the long term would not be the best developmental outcome for him."

50She finished,

"From a rehabilitative perspective, Mr Mitchell requires a large amount of support, in terms of accommodation, employment, and day-to-day and guidance from a stable adult figure.  He would further benefit from a long-term supportive drug and alcohol counselling, at least two years, supported by random urine screens or a youth-focused inpatient rehabilitation placement, with a follow up of support of at least a year." 

51Now, just to explain, what Ms Matthews is saying is what I said.  You went out the door when you were 14.  You went completely off the rails, and to get you back on the rails, you need drug and alcohol programs, you need support, you need to live with an adult, you need to learn how to mature.  I am not telling you anything you do not already know.  Unfortunately, I cannot order those things today, because your offending is too serious, so there is going to be a bit more jail.  Thank you. 

52I am now going to you, Mr Carter.  You are 21, and you were 20 at the time of the offending.  You are the eldest of three children, and had an extremely difficult background.  Your parents separated when you were eight.  Your father took you to a motel in the wake of fighting between your parents, and your returned to find your mother had disappeared with your younger brother and sister, and you have never seen her since. 

53Your father was previously a wood miller and farm manager, but has not worked since you were 12 or 13.  Essentially, he is an entrenched drug user; heroin, ice, methadone, morphine, Seroquel, ever since your mother left.  You have grown up in a background of extreme poverty, where, because of your father's drug use, there has not been enough food in the house. 

54He has taken you out to shoplift clothes for him.  He introduced you to cannabis when you were 13.  He introduced you to morphine when you were 16, when you began injecting morphine and methamphetamine, on the extraordinary basis that it was safer for you to inject these incredibly dangerous drugs at home rather than out in the world.  He now lives on his brother's farm in what you have described as a hovel.  You grew up being told by him that mother was a horrible person.

55You attended many primary schools, as your father moved around up to Tweed Heads and back again.  You were expelled from several secondary schools for disruptive behaviour, and you left school aged between 13 and 14.  By this stage, you were friends with 16- and 17-year-olds, and you lived with your father, but he had no money.  You often slept on the streets.  You have had very little employment.

56You have been smoking cannabis since you were aged 12, as I said, encouraged to do so by your father, and your father helped you inject Oxycontin when you were 15.  You began injecting ice when you were 16 on a regular basis, and have been a regular and sometimes daily user ever since.              

57At the age of 17, you also began using heroin.  You have never had residential drug rehabilitation or detoxification.  You have had a fair amount of drug rehabilitation support on various orders that you have received from the courts.  At the time of the offending, you were binging daily on ice and cannabis. 

58Eventually, you turned yourself in to police, as I have said, and you were then bailed.  Once you were released, in about March 2017, you met your partner, Demi Nash, who has been extraordinarily important to you.  She has had some drug problems herself, but very much in the past.  She is a self-employed makeup artist with a five-to-six-year-old daughter.  You have moved in with her, although you were meant to be living with your aunt, and effectively very quickly formed a family unit.  She has remained extremely supportive of you, attending court on every occasion, and there have been a number of hearings in this matter. 

59You breached bail because you were meant to be living with your aunt.  There were curfew conditions and reporting conditions, and you breached them by spending time with Ms Nash.  You told psychologist Jeffrey Cummins, whose report was tendered on the plea, that your aim in life is to live a normal life, to have a job, and to set up a family with Ms Nash. 

60You have done extremely well in jail.  You began full-time, seven-day employment, with a job in the kitchen, from 6.30 am to 3.15 every day.  You are now an Essential Working Prisoner that is one of two reception posts at the MAP.  Due to this position, unusually, you have not been moved to the MRC.  It is a particularly trusted position, and you hope that you can remain there.  It is also your hope, however, that if you are not to remain at the MAP in your current position, that you be sent to Barwon, to be close to Ms Nash. Certainly - and my sentencing remarks will be forwarded to the prison authorities - it is my view that either position would be very useful for you, and worth pursuing, and if you are to be placed elsewhere, that Barwon would be an appropriate placement. 

61You have completed a number of courses in managing emotions, managing grief and managing loss.  You receive weekly visits from Ms Nash.  You told Mr Cummins that you are aware that you must serve a considerable sentence, but you said you felt much more positive about your life.  You are off drugs, and you view your drug use in the past negatively. 

62Importantly, in my view, your role within the gaol as an Essential Working Prisoner has given you self-esteem and has given you some optimism for your future.  You believe that you can have a future, you want to have employment, and you feel that you are capable of having it.  You have told Mr Cummins that you realise that your father, whom you adored growing up, had been a very poor parent and a very poor role model to you.  And you now see him wretched and alone and you do not wish to end up in that way.

63Mr Cummins said that you did not have an antisocial personality disorder or an antisocial personality style.  He said you had a reasonable level of insight into your dysfunctional upbringing.  He said you had never previously been encouraged to have goals or a future structure. 

“He stated that now, as a result of being respected and as an ESP, he has begun thinking about life goals and about living with Ms Nash and her daughter.” 

You said you believed that your time on the remand had matured you.

64Importantly, you did not use drugs after being bailed in December 2016 and rearrested in July 2017.  Mr Cummins was of the view that you had some measure of remorse for your offending, as indicated by you handing yourself in.  You were assessed as being a moderate risk for future violence, but you had no general anger management problem.  He said there was a very significant link between your offending and your drug use.  He recommended that you undertake the violence intensive program in gaol.  And he noted that crucial to your rehabilitation – unfortunately, because things can go wrong – is your relationship with Ms Nash.

65So, the concern is, Mr Carter, while you have done very well,  a lot of it is around Ms Nash and her daughter.  And there is always a bit of a worry about what is going to happen if that does not work out.  Okay?  You too have a fairly long criminal history, although given your background, it is perhaps not as bad as it might have been.  It begins in 2010 with a charge of recklessly causing injury and unlawful assault.  And then dishonesty offences, for which you were placed on probation in 2012.

66You were placed on a bond for criminal damage, assaulting police, resist arrest, unlawful assault.  In 2012, you were placed on a youth supervision order for burglary, theft, criminal damage, and an aggravated burglary.  In 2014, you were placed in a youth justice centre for four months on charges of failing to answer bail, shoplift, burglary, theft, breach of a family intervention order, recklessly causing injury, and criminal damage.

67Then, again in 2016, you were given 44 days gaol and placed on a 12-month community corrections order on charges of assault in company, failing to answer bail, contravening a family violence order, and entering a private place.  And then on 2 June 2016, you received an 18-month community corrections order for contravening a family violence order and criminal damage.  On 29 August 2016, you were picked up and failed to provide a sample for testing, for which you were dealt with in June 2017 and fined.

68Certain submissions were made on each of your behalf.  In particular, insofar as Mr Carter was concerned, it was submitted that you did not steal a car but knew it was stolen when you were driving, and you were described by Mr Bell as following Mr Mitchell into the bus at the time of the armed robbery and looking confused.  It was submitted you had played a passive role in this armed robbery, more as providing backup than anything else.  On behalf of both of you it was said that each of you was using ice heavily at the time of your offending.

69Indeed, you fell asleep at the wheel, Mr Mitchell, at the time that you collided with the truck.  In terms of your rehabilitation, you are both young men.  It is serious offending.  Both of you have got serious prior convictions, but both of you have effectively been alone since your early teens; you have just had no adult guidance.  You have had no stable adult figure and you have just lived rough and wild.  By the age of 14, Mr Mitchell, you were living at a local hotel.

70By the age of 13, Mr Carter, your father had introduced you to marijuana and two years later was injecting you with OxyContin.  Both of you entirely lacked security and structure.  Now, this is not an excuse for your offending, but it is an explanation.  I have said all along, I have just not understood what has been going on with you two; you have been behaving like cowboys.  Mr Mitchell, as I have said, there is delayed maturity with you, because of living the life you have.  And as I have said, there is no doubt you have been a heavy young crook in the area.

71So, you might not have been one of those blokes walking up and down the yards at the gaol, with everyone running around after them – you were probably a bit like that when you were out on the loose in Warrnambool in those years.  You have done really well in gaol.  You have done a lot of courses, you settled down, you stopped using, you have reconnected with your family.  Your mother has offered you a home when you get out; I understand she can possibly even get you work at where she is living, and you want to do some bricklaying.

72So, there is some hope for you.  And I do regard you as having rehabilitative prospects.  I do not want to see you keeping on doing this, Mr Mitchell.  Quite frankly, if you keep on this way you are going to be dead really young, if you do this.  You know, that is going to be the end for you.  Mr Carter, you handed yourself in, which is very much to your credit.  You have had it hard from the start.  You have worked hard from the start in gaol.  You have got a privileged position in the MAP; this has given you self-esteem.  It has made you think of your future.

73But a lot of your optimism and your hope for the future lies with Ms Nash.  It is very, very sad that finally, in an extreme structure, each of you has finally started to settle down and show some progress.  Both of you are at a very early stage in rehabilitation in a really structured environment.  So, it is not as if you are out in the community exercising mature choices and showing everybody what you can do.  It is in a big structure.  But I am not taking away from the fact that you have done very well.  It is unknown how you will go in the community.

74I accept that there is some remorse, particularly from you, Mr Carter, as indicated by the way you handed yourself in and the great strides that you have made in gaol.  And you did express remorse to Mr Cummins.  Mr Mitchell, it is a bit hard to say with you.  You have not really shown a huge amount of remorse, but you did eventually plead guilty and you are entitled to the utilitarian benefit of your plea, which has saved the community time and trouble and expense of a trial.

75Drug rehabilitation is crucial to the future of both of you. I hope you can get whatever the gaol has to offer. I am making that point also that when you are released on parole, that is built into your parole.  It seems to me to be absolutely crucial.  Both of you have got somewhere to go when you get out, which is extremely important.  Neither of you, as I have said, is without rehabilitative prospects.  Unfortunately, gaol has been good for you.  I am aware that it can go on for too long, as can my sentencing remarks.  All you want to do is hear what you are getting, do you not?  All right.

76In sentencing you, I take into account your pleas of guilty, your youth, your difficult backgrounds, and the progress you have made in gaol.  And I recognise the need to sentence you in a way that will not institutionalise the two of you and undermine the gains that you have already made.  However, general deterrence and specific deterrence are live principles in this offending.  And because of the prior convictions of each of you, protecting the community is still important.  Can you stand up please, Mr Mitchell?

77On Charge 1, you are sentenced to six months’ imprisonment; on Charge 2, you are sentenced to two years and seven months’ imprisonment; on Charge 3, you are sentenced to nine months’ imprisonment; on Charge 4, you are sentenced to six months’ imprisonment; on Charge 5, you are sentenced to nine months’ imprisonment; on the charge of driving whilst disqualified, you are sentenced to four months’ imprisonment; on the charge of careless driving, you are fined $200; on the charge of exceeding a prescribed concentration of drugs, you are sentenced to two months’ imprisonment.  The base sentence will be the sentence imposed on Charge 2; that is, two years and seven months.  I order that three months of this sentence is imposed on Charges 1 and 4; four months of the sentences imposed on Charges 3 and 5; two months of the drive whilst disqualified; and one month of the sentence for exceeding prescribed concentration of drugs be served cumulatively to the sentence imposed on Charge 2 and all other sentences.  Giving a total effective sentence of four years.

78And I order that you serve a minimum of two years and six months before becoming eligible for parole.  What is the PSD, please?  That means you can apply for parole.  Now, you understand:  parole’s really tough these days, Mr Mitchell.

79OFFENDER:  Yeah.

80HER HONOUR:  You breach parole, you will owe them 18 months – that is if you get it – plus if you get charged with any offending, anything you get for that goes on top.  All right?

81MR DOYLE:  For Mr Mitchell ‑ ‑ ‑

82HER HONOUR:  Yes?

83MR DOYLE:   ‑ ‑ ‑ having 13 days, 366, Your Honour.

84HER HONOUR:  Three hundred and sixty-six?

85MR DOYLE:  Yes.

86HER HONOUR:  I declare that 366 days of that sentence have already been served by way of pre-sentence detention.  Have a seat.  All right?

87OFFENDER MITCHELL:  Thank you, Your Honour.

88HER HONOUR:  Stand up, Mr Carter.  Charge 1, motor vehicle theft, you are sentenced to six months’ imprisonment; Charge 2, armed robbery, you are – just excuse me, I am sorry, Mr Carter – sentenced to 18 months’ imprisonment; on Charge 3, you are sentenced to 12 months’ imprisonment; on Charge 4, you are sentenced to 12 months’ imprisonment; on Charge 5, you are sentenced to 12 months’ imprisonment; on the charge of unlicensed driving, you are sentenced to two months’ imprisonment.

89Just – can you sit down, sir?  I just want to – I got my maths wrong.  Just excuse me.  Yes, stand up, please, sir, thank you.  I order that three months of the sentence imposed on Charge 1 – sorry, I will make that two months - two months of the sentence imposed on Charge 1; six months of the sentence imposed on Charges 3, 4, and 5; and one month of the sentence imposed for unlicensed driving be served cumulatively to the sentence imposed for armed robbery.  Which should give a total effective sentence of three years and ten months.

90And I order that you serve a minimum term of two years and three months before becoming eligible for parole.

91MR DOYLE:  Can I just have a moment, Your Honour?  Wasn’t there a 6 and a 7 for Carter?

92HER HONOUR:  No there wasn’t ‑ ‑ ‑

93MR DOYLE:  There was a burglary and a theft, Your Honour.

94HER HONOUR:  I’ve done the ‑ ‑ ‑

95MR DOYLE:  I don’t think Your Honour said anything in relation to 6 and 7.

96HER HONOUR:  No, I didn’t.  Have a seat, sir.

97MR DOYLE:  So, that was the Hopkins Point Road burglary, Your Honour.

98HER HONOUR:  So – I thought I had.  But can I ‑ ‑ ‑

99MR DOYLE:  Yes.

100HER HONOUR:  Sorry.  I’ve left ‑ ‑ ‑

101MR DOYLE:  Your Honour, this was attending at 41 Hopkins Road, Warrnambool.  A Lithgow .22 calibre rifle, money, jewellery, and binoculars.  He was linked by fingerprint evidence to this burglary and theft.

102HER HONOUR:  I’ve got an indictment with an armed robbery, theft of motor vehicle, dangerous while pursued by police, conduct endangering, burglary, and theft.

103MR DOYLE:  Yes, so those last two are the Warrnambool, 41 Hopkins Point Road offences.

104HER HONOUR:  So, why are there two ‑ ‑ ‑

105MR DOYLE:  So, the last two are simply a burglary and a theft.

106HER HONOUR:  All right, what have I left out?  So, we’ve got a theft of motor vehicle.

107MR DOYLE:  Yes.

108HER HONOUR:  Then we’ve got the armed robbery.

109MR DOYLE:  Yes.

110HER HONOUR:  Then we’ve got the two dangerous drivings.

111MR DOYLE:  So, armed robbery, dangerous driving whilst pursued ‑ ‑ ‑

112HER HONOUR:  The conduct – I left out the conduct endangering.

113MR DOYLE:  The conduct endangering’s 5.

114HER HONOUR:  Conduct endangering.  Sorry, you’re quite right.  And we’ve got ‑ ‑ ‑

115MR DOYLE:  And then 6 and 7 were the burglary and theft.

116HER HONOUR:  Burglary and the theft.

117MR DOYLE:  Yes.

118HER HONOUR:  All right.  So, the conduct endangering will be 12 months as well.  Just excuse me.  Have – I’m sorry, Mr Carter.

119OFFENDER CARTER:  Nah, that’s all right.

120HER HONOUR:  Very sorry about that.  So, the burglary and the theft.  Sorry – all I did – I left out the conduct endangering and the theft.

121MR DOYLE:  Yes.

122HER HONOUR:  All right, so, all right, thank you.  Stand up again, please, sir – I am sorry.  I’m going to have to go through this again.  Six months for the theft of motor vehicle; 18 months for armed robbery; 12 months each for 3 and 4, dangerous driving while pursued by police; 12 months for conduct endangering; and 12 months for the burglary and theft; two months for the unlicensed driving.  The base sentence is the sentence imposed on Charge 2.

123And I am going to order that five months of the sentences imposed on Charges 3, 4, 5, 6, and 7 be served cumulatively to the sentence imposed on Charge 2, which should give a total effective sentence of 46 months, which is three years and ten months.  And I am going to order that you serve a minimum term of two years and three months before becoming eligible for parole.

124MR DOYLE:  The PSD in my calculation for Mr Carter should be 236, Your Honour.

125HER HONOUR:  Yes.  I declare that 236 days of that sentence have already been served by way of pre-sentence detention.

126MR DOYLE:  The only other matter, Your Honour, is this:  that those driving whilst ‑ ‑ ‑

127HER HONOUR:  Yes, the license loss.

128MR DOYLE:  Yes, yes.  And there’s one for Mr Carter on the drug – the exceed – which was not less than six months.

129HER HONOUR:  All right, so, okay.  So, in relation to Mr Carter on the ‑ ‑ ‑

130MR DOYLE:  On the driving whilst – sorry, have I got the wrong – Mr Mitchell was the driving.

131HER HONOUR:  Right.  So, well, the motorcar theft is – I’d always thought it was mandatory, but I think it’s ‑ ‑ ‑

132MR DOYLE:  Yes.  In relation to car theft, it’s mandatory that there’s no fixed period.  In relation to dangerous driving whilst being pursued by police ‑ ‑ ‑

133HER HONOUR:  Yes.

134MR DOYLE:   ‑ ‑ ‑ there is a mandatory period in respect of that, that I think I outlined last time, that I’ve now forgotten.  I think it was a year.  Yes, it was a year.

135HER HONOUR:  All right.  So, Mr Carter, all licenses disqualified and you are disqualified from obtaining any further license for a period of 12 months in relation to Charges 3 and 4.  And Mr Mitchell, you are disqualified from obtaining any further license for a period of – I think it is six months, is it not?

136MR DOYLE:  Not less than six, in relation to that exceed drug.

137HER HONOUR:  Okay.  Well, I will make that six months.  And I must do something about it in relation to the car theft, mustn’t I?

138MR DOYLE:  Yes, you must.  You have to do something.  But the period’s at large.

139HER HONOUR:  Well, I will make – in relation to the car theft, each of you will lose your license for 12 months in respect of that.  But it will all run concurrent.  So, you have both lost – you know, both lost your licenses for 12 months. 

140Now, I will talk about s.6AAA – can both of you stand up?  You have both got a reasonable amount of parole there.  So, it is going to depend on how you behave in gaol, because you do not just get parole now.

141You actually have to go and ask for it.  They are not going to give it to you unless you have really knocked yourself out, okay?  So, keep up what you are doing.  But when you get out, you are going to owe the parole board two years.  Do you know what that means?  Tell me what you reckon that means, Mr Mitchell.

142OFFENDER MITCHELL:  Um, that pretty much I have to do what they say, or I’m gonna get put back up for two years.

143HER HONOUR:  You will, you will.  You will owe them two years.  And the legislation says if you commit another offence while you are on parole, if you get a sentence for it, you have to serve it on top of parole.

144OFFENDER MITCHELL:  Yep.

145HER HONOUR:  All right?  So, you know, getting out and deciding you are going to be, you know, the top boy in the ice world at Warrnambool – I can tell you, it is not going to work.  All right?  Mr Carter, do you understand as well?

146OFFENDER CARTER:  Yes, I do, Your Honour.

147HER HONOUR:  Okay.  So, I hope I am giving you an opportunity, but I want to protect the community as well.  So, that is why you have got, you know, reasonably high head terms.  You have got nearly four years and you have got four years.  And it is a lot for two young blokes your age.  Okay?  All right then, have a seat.  Pursuant to s.6AAA, I declare in relation to Mr Mitchell:  if you had not pleaded guilty, I would have sentenced you to a term of five years imprisonment and order you serve a minimum term of three and a half years.

148In relation to you, Mr Carter:  had you not pleaded guilty, I would have ordered you to serve a term of four years and six months with a minimum term of three years and three months.  Thank you.

149MR DOYLE:  As Your Honour pleases.

150MR TURNER:  As Your Honour pleases.

151HER HONOUR:  Am I going to see you boys again?

152OFFENDER MITCHELL:  No, Your Honour.

153OFFENDER CARTER:  No, Your Honour.

154HER HONOUR:  I want to see you in the future about as much as you want to see me.  All right?  Okay, look:  structure, structure, structure.  I am putting that in for the parole board.  Okay?  I do not want them letting you loose on parole to go and live in the drug intensive with a whole lot of drug users in a flat somewhere, which is what often unfortunately happens.  And off you go.  You need to keep contact with those people who are providing you structure.  All right?  Thank you very much, yes.  Is there anything else?

155MR DOYLE:  No, Your Honour.

156HER HONOUR:  I know, I’ve got something here for you, I think.

157MR DOYLE:  Can I approach the dock briefly, please, Your Honour?

158HER HONOUR:  Pardon?  Yes, yes, you may.  I’m running a trial, so can it be pretty brief?

159MR DOYLE:  Your Honour, may I be excused?  I’ve got a jury question on the fourth floor.

160HER HONOUR:  I’m so sorry it took so long, Mr Doyle.

161MR DOYLE:  No, that’s all right, Your Honour.  No, that’s all right.  It’s only a minute.

162HER HONOUR:  Pardon?

163MR DOYLE:  It’s only been one minute or two minutes.

164HER HONOUR:  Whatever.

165MR DOYLE:  Thank you, Your Honour.

166HER HONOUR:  Thanks very much, Mr Doyle.  All right.  We need them to go, please.  All right.  Can’t be helped.  See you later.  Thank you very much.

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