Director of Public Prosecutions v Carter

[2023] VCC 1286

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

KOORI COURT DIVISION

CR 22-02157

DIRECTOR OF PUBLIC PROSECUTIONS

v

GAVIN CARTER

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 July 2023
CASE MAY BE CITED AS:	DPP v Carter
MEDIUM NEUTRAL CITATION:	[2023] VCC 1286

REASONS FOR SENTENCE

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Subject:  Criminal Law Sentence     

Catchwords: Koori Court Jurisdiction – Intentionally causing serious injury – Robbery – Aboriginal offender – s5(2H) of the Sentencing Act – Youth – Application of Bugmy principles – Application of Verdins principles – Participation in Sentencing Conversation – Substantial and compelling reasons which are exceptional and rare found.

Legislation Cited:     Sentencing Act 1991

Cases Cited:Azzopardi v The Queen (2011) 35 VR 43; DPP v Bowen [2021] VSCA 355; Buckley v The Queen [2022] VSCA 138; Bugmy v The Queen (2013) 249 CLR 571; Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2012] VSCA 213; DPP v Lombardo [2022] VSCA 204; R v Mills [1998] 4 VR 235;  Verdins v The Queen (2007) 16 VR 269.

Sentence:Aggregate sentence of 441 days’ imprisonment in combination with a two-year community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Bristow	Office of Public Prosecutions
For Accused	Mr D. de Witt	Michael J Gleeson & Associates

HIS HONOUR: 

1Gavin Carter, you have pleaded guilty in the Koori Court to a charge of intentionally causing serious injury and a charge of robbery.

2The maximum penalty for intentionally causing serious injury is 20 years' imprisonment.

3The maximum penalty for robbery is 15 years.

4You have admitted a relevant criminal record that contains prior convictions for crimes of violence.

Circumstances of Offending

5The circumstances of your offending are set out in the Summary of Prosecution Opening which was Exhibit A and forms part of these Reasons for Sentence.

6In brief, you were in company with your co-offender- Mathor Galuak in the late evening on 27 April 2022.

7You describe Mr Galuak as a close friend.

8He is a couple of years older than you, and I was told has a more substantial criminal history.

9He played the lead role in the offending. Your role was more than incidental, but less protracted and serious than Galuak's.

10On the evening of 27 April last year and into the early hours of 28 April, you were in company with Mr Galuak in the Dandenong area.

11You were spoken to in the Dandenong railway station vicinity by a PSO who observed you both drinking. You and your co-offender were also seen to be arguing and at one point your co-offender struck you.

12Later, at around 3.30 am, you and your co-offender attended at Hungry Jack's in Stud Road.

13You both came upon the victim in the outdoor area of Hungry Jack's. You played very much a passive role during the initial interaction. Your co-offender was the aggressor. The victim stood his ground and was shaping up to your co-offender, defending your co-offender's advances.

14The entire incident is captured on CCTV footage which was Exhibit C on your plea.

15I do not propose to give a blow-by-blow description of what that footage reveals.

16I accept that you played the role of conciliator in the early stages of the confrontation, in the outdoor and car park area. This included attempts by you to break up the physical fight that was brewing, and an offer of assistance by you when you poured water on a cut on the bridge of the victim's nose.

17Your charity to the victim ended there.

18Moments later, Galuak attacked the victim with a bottle, striking him across the face. He also punched and kicked him.

19The victim was trying to maintain his feet and was pressed up against the glass doors of Hungry Jack's. You took a swing at the victim that failed to connect and you fell forward.  The effects of alcohol upon you are apparent from the footage.

20Galuak threw the victim to the ground and continued assaulting him while he lay on the ground. You joined in this assault. At one point you kicked him forcefully to the upper body. Galuak engaged in a vicious protracted assault on the helpless victim. Galuak removed his watch. By your plea of guilty you acknowledge complicity in this act, although I accept your level of awareness was severely impaired at the relevant time.  Your involvement in the intentionally causing serious injury is significantly greater than your criminal complicity in the theft and robbery.  

21Once Galuak had the watch you both left.  Prior to that, for some reason you removed the victim's shoes and set them down on the floor.  You also smashed a bottle beside his head.

22The victim raised the alarm after you had left. He was very seriously injured. His injuries included:

·Haematoma to the left eye area, left upper jaw bone and cheek area;

·A large open laceration above the left eyebrow, jagged and six centimetres in length with the outer tissue layer around the skull visible;

·An open laceration to the nose bridge;

·Three open lacerations to the right forehead;

·Tenderness to the right thigh;

·CT scans of the head and brain revealed complex facial fractures primarily to the left side of the face with Le Fort Fractures 2 and 3.  Le Fort fractures have abnormal mobility of the facial fragments. Treatment depends on the stability of the fractures and will often be maxillofacial surgical repair, sometimes can also be conservative by watching.  Le Fort 2 and 3 fractures require surgical repair, and that is what the case was here.  A Le Fort 3 fracture results in skull-face disconnection known as craniofacial disjunction.  It is the highest level of Le Fort fracture, whereby the maxilla is separated from the skull.  That being the jawbone, as I understand it.

·Fracture extension across the midline with fractures of the vomer and the air-filled cavity of the right upper jawbone and nose;

·Fracture involvement of the left cheekbone, also known as the zygomatic arch;

·Large left eye socket, or orbital floor fracture component;

·Left eye socket inner medial wall fracture.

23The victim underwent complex specialist surgical treatment.  Without surgical treatment the facial bone structure would remain unstable, causing ongoing pain and disfiguration, as well as impeding essential activity such as eating, drinking or speaking.  Some fixation devices that were utilised may remain in place for the rest of the victim's life.  Impaired vision was noted one month after the alleged incident, despite surgical management.

24The impacts upon the victim are very serious.  Intentionally causing serious injury is a very serious offence which almost always results in a significant sentence involving a head sentence and a non-parole period.  It carries a maximum penalty of 20 years.

25The range of injuries suffered are complex; individually and in combination they are very serious.

26It is surprising that the victim was conscious at the conclusion of the assault given its severity.

27The assault was committed in company, he was defenceless, and it was a vicious attack in all of those circumstances.

28It is also a serious example of the offence of robbery given the force used.

29I accept, however, that your impulsivity, cognitive functioning, and the connection between matters personal to you and your intoxication, contributed to you joining in the attack initiated by your co-offender.  Your role is significantly less than that of the co-offender. Your involvement was unplanned and impulsive.

30As I have noted, the co-offender is also a little older than you, with what I was told was a lengthy criminal record, and I have since become aware that he was sentenced on 20 July.  It was said at sentence that he had prior convictions, mostly violence, 12 appearances for 49 offences, involving five gaol terms.  He was facing more matters than what you are facing, including two breaches of community corrections orders by virtue of the offending, including a community corrections order imposed by the judge who sentenced him in this court for causing injury. 

31Of relevance, for the purposes of parity, on the charge of intentionally causing serious injury that you face, Mr Galuak was sentenced to 24 months' imprisonment, and on the charge of robbery, 12 months' imprisonment.  Those sentences were cumulated.  He also faced other matters completely unrelated to your offending for which there was cumulation also, which resulted in an overall sentence of three-and-a-half years with a 20-month non-parole period.  But of particular relevance, if I were sentencing you to a period of imprisonment, is the sentence of two years on the intentionally cause serious injury and 12 months on the robbery.

Personal circumstances.

32You are 21 years of age and you were 20 at the time of your offending.

33You were born in Bairnsdale to parents Maxine Carter and Albert Hood. I was told that both parents struggled with mental health issues and drug dependence. I was told that family violence was a feature of their relationship.

34As a baby you were sent into the care of your mother's cousin, Beatrice Edwards. Ms Edwards commenced caring for you from when you were six weeks old. When you were 14 months old, Ms Edwards assumed fulltime care of you with her husband, David.

35You only had occasional contact with your mother. Tragically, she passed when you were only five years of age.

36Ms Edwards and her husband adopted you and loved you as a son. You returned that love, however, complex dynamics and your complex functioning led to disharmony in the home in your teenage years.

37I received a letter from Beatrice Edwards, which was Exhibit 5 on the plea. It is a well-written and heartfelt expression of love and support for you. I have found it a very useful document in understanding you better.

38Your birth mother's struggles are not for examination here, although it is worthy of note that she was removed from her family as a child. She had experienced a life of trauma and had battled addiction and ill-health. All of these features have consequences for your experience as her son.

39I was told you had never met your father, Albert. I have been told that he passed away when you were young, although a conflicting report has made its way to you. I was also told he spent time in and out of custody.

40You have four older half-sisters. I was told that each of your sisters struggle with their own mental health and substance dependence issues. You have limited contact with them.

41Growing up, you lived in the Frankston area with your adoptive parents. They did their best to provide you with a loving, supportive environment as a child.

42You had a positive relationship with your adoptive father. He suffered a non-fatal heart attack when you were 11 and following this, Beatrice Edwards noticed you withdrew from him and had a limited relationship with him from this time onwards, which she suspects was due to you fearing he would pass and leave you, as others had.

43I do not have any difficulty accepting this as likely. t is well-established that individuals who have experienced the childhood trauma you have can exhibit such behaviours. Further, there is expert opinion before me as to your attachment and emotional regulation issues.

44From what I understand of your early life experiences and the history of your family, and of the Gunai-Kurnai people, I do not have any difficulty accepting that inherited and enduring traumas form part of your experience.  I sit in the County Koori Court every week. I have an understanding of some of the traumas your family groups have experienced.

45Your family history features mental illness, forced child removal, trauma and struggles with alcohol and drug dependence, including exposure to violence and abuse over generations.  There is clear evidence of the profound impact of inter-generational trauma and disadvantage upon you in your formative years.

46Your own personal experiences have been extraordinarily challenging.  It is likely you came into the world experiencing opiate withdrawal.  No doubt the legacy of this experience has been daily and lifelong for you. You were identified as having an intellectual disability from a young age.

47School was an extremely difficult experience for you. You experienced racism and bullying. These factors, combined with your behavioural and emotional regulation issues formed a vicious cycle.

48You were isolated, and as so often happens, you gravitated to others facing similar difficulties, other traumatised youth, engaging in drug use, alcohol abuse and negative and anti-social behaviours that follow.

49Your mental health deteriorated significantly. You have described experiencing voices and hallucinations prior to 12 years of age.  You started raising threats of suicide around the same time.

50After leaving school, your mental health and struggle with drug dependence were significant obstacles in you achieving housing and employment opportunities.  I was told you receive a disability support pension and that due to your cognitive functioning, your finances were managed by the State Trustee who had been providing you with a modest allowance and this creates particular difficulties for you also.

51You have been involuntarily detained for treatment and at one stage subject to a community treatment order as a result of your deteriorating mental health.

52In all of those circumstances your adoptive parents were eventually unable to continue to offer you a home and these struggles are expressed in Bea Edwards' letter.

53You ceased medication, commenced a cyclical struggle with drugs, crime, periods of remand and homelessness.

54I was told that in 2020, following your release from custody, you were engaging in a community corrections order with supports, and NDIS, which was available.  The pandemic came into being, COVID restrictions and lockdowns disrupted that progress.

55Your remand on the matter before me has been your longest period in custody.  It has been a difficult period given the continuing COVID restrictions in custody, and your counsel, Mr de Witt, set out the extent of those restrictions and deprivations in custody and I take those into account.

56To your credit, you have demonstrated positive behaviours in custody, being of good behaviour, but also engaging in artwork and developing cooking skills.  You are a talented artist and a copy of one of your works titled 'Sunrise’, was provided during the sentencing conversation, and that is Exhibit 8 on the plea.  Your pursuit of art helps you feel connected to culture and helps you manage your mental health.

Participation in Koori Court

57You participated fully in the sentencing conversation. Uncle Mark Bland and Aunty Pam Pedersen challenged you as to your offending and your plans for the future.  I take your participation in that conversation into account.  I learned a lot more about you than I otherwise would have without your engagement in the conversation.

58The pride you take in your art and how talented you are is one matter.  Your cooking skills, and more importantly your interest in cooking and commitment to getting better at it, shone through.  The recipes you have been preparing are impressive.

59Discussion of cooking and artwork led to serious discussion with Uncle Mark and Aunty Pam concerning an opportunity for you to attend somewhere like either Wulgunggo Ngalu Healing Place or Wiimpatja Healing Centre, to serve sentence by way of a CCO and to rehabilitate.

60Wiimpatja Healing Centre has many advantages for you and for the Court, and I  note that the letter which was Exhibit 11 and dated 10 July from Mark Bland, manager of Wiimpatja Healing Centre, was tendered. 

61It has many advantages, it is a residential program, you are under supervision.  It provides culturally-based rehabilitative opportunities.  You can also spend time painting, you can cook for yourself and others and develop those skills.  You can work outside on country.  Other young Aboriginal men will be living there completing the 12-week program.  The program and conditions and the strict nature of the program are set out in Exhibit 11.  I will not go over those details.

62You came to the Koori Court as someone who, due to your mental health and other disadvantages, was anxious about leaving Fulham Prison and coming to court to engage in face-to-face conversations, no doubt due to the routine and familiarity you had developed there and your anxiety about leaving.

63It was clear in the materials before the court, and via your counsel's submissions, that new environments are anxiety-provoking and stressful for you.

64Without the Koori Court sentencing conversation and Uncle Mark's participation in it, I am not sure you would be able to take the opportunity of the Wiimpatja experience. There is a real risk in a case such as yours of a young vulnerable man with no housing, cognitive limitations, background diagnosis of schizophrenia, and other mental health concerns, vulnerability to drugs, effects of trauma on your functioning and other criminogenic factors, that you would, absent an opportunity such as Wiimpatja, serve an entire head sentence as part of a head sentence and non-parole period, or fail on parole because the supports would not be  suited to your needs.  Or if given a combination sentence, you might fail on a CCO in the community without appropriate cultural supports.

65Fortunately, your interests in pursuing art, cooking, culture and the conversation with Uncle Mark, has raised Wiimpatja as a viable option in your case.  My understanding is that it is not an option that would necessarily be available to you on parole, even if you were paroled in the short term.

66You hope to attend TAFE one day to obtain qualifications as a chef. You have enjoyed cooking for your peers in custody and I am sure you will enjoy it even more in the environment at Wiimpatja.

Matters in mitigation

Youth

67Other matters in mitigation that were raised on your behalf are your youth, which is an appropriate matter for me to take into account, and the principles in R v Mills and Azzopardi v The Queen are relevant, you were 20 years of age at the time of the offending, 21 now.[1]

[1]R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43.

Mental Health

68Your complex mental health and cognitive functioning profile is relied upon in mitigation. You were diagnosed as having an intellectual disability as a child, you reported hearing voices as a child, and your struggles with your emotions was also noted.  There was a Children's Clinic report that was before me where the author noted that even as a young child you had struggled with attachment issues, repeatedly asking if you were a ‘bad child.’

69You have been registered with mental health services since at least 2016.  As I have mentioned, you have been subject to a Community Treatment Order.  You have been diagnosed with various conditions including non-organic psychosis, schizophrenia, mental behavioural disorder, depression, PTSD, and as I have mentioned, the intellectual disability.

70There was a report which was Exhibit 2 from psychologist Gina Cidoni.  She assessed you in custody.  She described your intellectual capacity as very reduced.  You were experiencing depression and that was elevated in custody at a clinical level.  Your anxiety was significantly elevated.

71Ms Cidoni opined that you continued to experience psychological response to reminders of traumatic experiences.  You were considered to be a medium to high risk of re-offending, though interventions relating to stable accommodation, NDIS support and pro-social influences would reduce this in her opinion.  You have experienced significant historic trauma and disadvantage and these continue to have a profound impact on you and contextualise your alcohol dependence. Ms Cidoni describes it as a coping mechanism.  I accept these matters.

72She also opined that you are susceptible to suggestion and that you have 'considerably lower capacity to think about intended actions and consequences'.  I also accept this.

73She opines that your control over your behaviour at the time of the offending was reduced and a very low intellectual function would challenge your ability to reason, plan, solve problems and make appropriate judgments.

74Incarceration, in Ms Cidoni's opinion, placed you at an increased risk of emotional behavioural deterioration, you are vulnerable to abuse by others and you will struggle to cope in the prison environment, risking deterioration of your mental health.

75A neuro-psychological assessment was recommended and a report was provided, Exhibit 4, from Martin Jackson, which confirmed the IQ findings that over 99 per cent of peers in your age group would perform at a higher level.

76Amongst other opinions, Mr Jackson opined that your propensity to revert to well-learned patterns of violence in times of stress or confrontation were capable of being addressed with appropriate interventions.  He was also concerned about your deterioration in a custodial setting.

Application of Bugmy and Verdins Principles

77The Prosecution accept the application of Verdins v The Queen[2] and that it is open to me to reduce moral culpability to some degree and to moderate appropriately the application of general deterrence to some degree, and also to consider hardship in custody.

[2]Verdins v The Queen (“Verdins”) (2007) 16 VR 269.

78The Prosecution also accept the application of the Bugmy v The Queen (“Bugmy”) principle.[3]  I accept that you are entitled to the full effect of the Bugmy principle for the reasons I have set out, and there is a connection between those circumstances and the offending, in my view.

[3]Bugmy v The Queen (“Bugmy”) (2013) 249 CLR 571.

79I also accept the application of Verdins in relation to the limbs advanced.

80There is some overlap between these considerations when it comes to assessing moral culpability.  The law requires me to moderate sentence on each mitigatory basis, and I do so, but I do so globally, having regard to the combined force of the matters available to you in mitigation that are relevant to moral culpability.  The effect of the whole of these factors is greater than the sum of its parts.

81The relationship between intellectual disability, mental health, poor emotional regulation and impulsivity, disadvantage and trauma, and the connection between those matters and homelessness, poor education and employment opportunities, drug and alcohol abuse, negative peers and the offending amounts to powerful mitigation.

Section 5(2H) of the Sentencing Act 1991

82Consideration of sentence in your case obviously falls under the banner of s5(2H).[4]

[4]s 5(2H) Sentencing Act 1991 (Vic) (“the Act”)

83Looking at matters, before I come to that analysis and the evaluative exercise, it is also worthy of considering what an appropriate head sentence and non‑parole period would be in your case.  If it were to come to that, of course, I would have regard to parity in relation to the offender's sentence, but also have to consider a proportionate sentence based on your involvement. 

84If I were to go down that path and impose a head sentence and non-parole period, parity would require that the head sentence be substantially less than that of your co-offender and that would then have consequences for the non‑parole period. That is so given the matters in mitigation available to you that were not available to him, including;

·Youth as a more significant factor;

·Participation in the sentencing conversation;

·Availability of residential rehabilitation;

·The extent of the Bugmy factors;

·Intellectual disability;

·The Verdins application; but most importantly

·Disparity in the circumstances of the offending.

85Your guilty plea and the remorse expressed are other matters that I must take into account in mitigation.

86I was advised that the matter proceeded without a committal, of course, no witnesses were cross-examined and it is a valuable plea.  Any plea in the context of the pandemic has a significant utilitarian value and you are entitled to a significant discount for that fact.

87I also find remorse in your case.  Remorse comes through in Exhibit 2, the report of Ms Cidoni.  You told Ms Cidoni it was on your mind all the time, you felt so bad and struggled to express it.  I am satisfied that during the sentencing conversation remorse also came through.

88The ongoing impacts of COVID‑19 on your experience in custody are relevant in your case given your current situation, and that having been the situation for the past 441 days.  I will not repeat the matters set out in the submissions of Mr de Witt as to the facts of that experience but I accept those matters.

89It is clear this is a Category 2 offence and as such mandatory sentencing provisions apply, and relevant in this case, an exception to those mandatory provisions that is advanced by the defence, is that the operation of s5(2H)(e) is engaged, in that there are substantial and compelling circumstances that are exceptional and rare and that justify not imposing a term of imprisonment.

90The exception contained in 5(2H)(e) came into its current form in 2018, when the words 'exceptional and rare' were added.

91When making the evaluative judgment[5] that I am required to make as to whether such circumstances exist, I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in s5(1).

[5]There is no “…burden on an offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare”: Fariah v The Queen (“Fariah”) [2012] VSCA 213 at [24].

92I must give less weight to the personal circumstances of you than to other matters such as the nature and gravity of the offence and must not have regard to previous good character – it is not apparent in this case – or an early guilty plea.  I find that I can still have regard to the guilty plea but just not the early stage of the guilty plea based on a strict reading of the section, or prospects of rehabilitation, or parity with other sentences, which I take to mean parity in the usual sense with co-offenders, otherwise it would have read 'not have regard to current sentencing practices'.

93Just on that, what I take that to mean is that when I am engaging in the evaluative judgment as to whether there are substantial and compelling reasons, I do not have regard to parity, but of course if I am considering the head sentence and a non-parole period and what that head sentence and non-parole period would look like, I must have regard to parity.  So it is my view that consideration of parity is not completely excluded from the evaluative process, in that sense.

94The court is also required to have regard to Parliament's intention as expressed in s5(2I)(a) of the Act, that a custodial order should ordinarily be imposed for a Category 2 offence.

95The Court of Appeal has considered these provisions in a number of cases.  I will not summarise all of those.  In one the Court observed that by adding the words 'exceptional' and 'rare' Parliament intended to make the test almost impossible to satisfy.[6]  I do not think that characterisation was sought to qualify the words of the section. The Court of Appeal has also stated that:  'In nearly every case to which the mandatory sentencing provisions apply, the offender should go to gaol'.[7]

[6]Buckley v The Queen (“Buckley”) [2022] VSCA 138 at [44], rephrasing DPP v Bowen [2021] VSCA 355 at [11].

[7]Buckley at [3].

96In Farmer v The Queen[8] the Court of Appeal said:  'On any view, it is a very high hurdle that will not often be surmounted'.[9]  It is an evaluative process, however, and it is one in which a number of circumstances can be taken into account.  The cumulative effect of a number of features is a matter that I am entitled to have regard to when I am analysing whether the test has been met and engaging in that evaluative process. 

[8]Farmer v The Queen (“Farmer”) [2020] VSCA 140

[9]Ibid at [51].

97I was referred to the case of Farmer.  There is another case of Fariah.   DPP v Lombardo (“Lombardo”)[10] was referred to, which I am familiar with.  I think it is in Lombardo's case where it was observed that, to a degree, paragraph 2(h)(e) guards against the risk of injustice, but the stringency of the test cannot be avoided.

[10]DPP v Lombardo [2022] VSCA 204.

98So there are a number of circumstances that are relied upon here on behalf of you, Mr Carter, that, in combination, are advanced as meeting the test of substantial and compelling, exceptional and rare.  And I am using a shorthand phrase to summarise the multi-layered test.  Some of them are obvious; trauma, mental health issues that I have summarised, the relationship between those factors and alcohol and substance abuse, the relationship between those factors and inter-generational trauma and the cycle that flows from those matters. 

99This is what I mean when I say that the effect of the whole is greater than the sum of its parts.  There is a relationship between these matters personal to you and criminogenic factors that are not given their full effect if they are looked at in isolation, it is the effect of the combination of them.  That is why I have observed in your case that it is very powerful mitigation when one considers the effect of that combination.  Added to that is the hardship in custody in light of your vulnerabilities, but also your connection to culture and cultural rights and your entitlement to self-determination as an Aboriginal person, to, where available, have access to culturally appropriate dispositions.  That also has a relationship with an important sentencing factor of community protection.

100As Mr de Witt advanced in his written outline, there is an overwhelming community interest in addressing the over-representation of Aboriginal people engaged with the criminal justice system:

The proposition that long-term community protection would be most meaningfully achieved for this young man by way of a supervisory and therapeutic order in a culturally-safe setting, conversely an outcome that saw Mr Carter languishing in an environment of concentrated exposure to criminal behaviour and negative peers would have the opposite effect.   

101I am reading from Mr de Witt's outline in that instance, which picks up the principle that in your case what is available is a strict residential program that is culturally based and that based on all the material before me provides the optimum opportunity to protect the community from further offending from you.

102As part of that analysis, your role in this offending and subordinate role in the assault and the robbery are relevant factors also.  Your moral culpability for the offending, as it is appropriately moderated due to cognitive and Bugmy factors, is also a relevant factor in the analysis, your eligibility for a Justice plan as part of a community corrections order, which again gives support to community protection to reduce the risk of re-offending.  Specific deterrence, that is relevant too, as well, as community protection, and all these factors, this opportunity to break the cycle in your case, engages the principle of mercy, in my view.  This is an opportunity to provide a merciful sentence, a lenient sentence, that grasps the opportunity to set you in a different environment, one that you have not had the opportunity of experiencing before.

103It was also submitted by your counsel that ‘as a result of a long history of systemic dispossession and discrimination that was and continues to be experienced by Mr Carter's people, he is part of a group comprising less than two percent of the population’ - I am not sure if that figure is accurate – ‘he has faced unique challenges from the very outset of his life and there is a culturally appropriate disposition available here.’ 

104What I take from that submission is it picks up the relevance or otherwise of inter-generational trauma and in my view it is relevant.  In my view, it is in no way inconsistent with the principle of individualised sentencing, to have regard to this factor summarised as inter-generational trauma, given the evidence supporting the finding in Mr Carter's case.  Historic forces and factors, including historic legislative instruments of oppression and historic governmental intervention have contributed towards the disadvantage and the difficult circumstances you were born into and have experienced.  The consequence has been an exposure to known criminogenic factors throughout your childhood and teenage years.

105I am faced with an opportunity to break the cycle in your case by sending you to a culturally based therapeutic residential rehabilitation centre which provides an intensive program. It is an isolated venue, I have been there, I have seen it, it is a wonderful program and wonderfully managed. A 12-week program that would address drug and alcohol use and underlying trauma in a supportive way. That is the opportunity. I am obligated by legislation to forego that opportunity and impose a head sentence unless s5(2H)(e) is engaged.

106I pause to observe anecdotally that based on my experience in the County Koori Court over the past few years and since the operation of s5(2H), my impression is that Aboriginal offenders are captured by the provision at a rate disproportionate to their numbers in the County Court, and, the nature of your offending, Mr Carter, in this instance, is typical of the general circumstances of the offending that is captured by the provision where Aboriginal offenders are involved - in the matters that I have presided over.

107I mention that in passing, I am not in a position to make any finding in relation to that and I do not.  What I am faced with is considering a head sentence with a non-parole period in the vicinity of time served.  In that sort of scenario I must assume that you would serve the entirety of your sentence.  In your case, for a whole range of reasons, that is not an unlikely outcome.

108Another alternative is this well-supported unique opportunity.  In my view the availability of Wiimpatja is an appropriate factor to consider as one of the circumstances in combination with the others that I have mentioned in considering the question of whether substantial and compelling reasons that are exceptional and rare has been met in your case.  When I take the opportunity of Wiimpatja together with all the other circumstances in combination, the effect of the whole is powerful, it is substantial and compelling and exceptional and rare.  And I so find that the provision in 5(2H)(e) is engaged.

109Whilst it is not part of the evaluative judgment, approaching it from another point of view, having already made that evaluative judgment, objectively it defies common sense to make you eligible for parole now or around this time as part of a head sentence and non-parole period, and hope for the best if you were to be paroled, which would necessarily forego this opportunity of Wiimpatja.  As I say again, that is mentioned in passing, it is not part of the evaluative analysis under 5(2H)(e).

Sentence

110Having found that you meet the exception in considering general deterrence, specific deterrence, community protection, prospects of rehabilitation and all the matters in mitigation I have had regard to, I have determined that the appropriate sentence is a combination sentence. 

111It will be an aggregate sentence in relation to the matters before me, given their connection, and that sentence will be for you to be imprisoned for 441 days in combination with a two-year community corrections order. 

112The conditions of that CCO are supervision, drug and alcohol treatment and assessment, mental health treatment and assessment, a Justice plan and to reside at Wiimpatja Healing Centre.

113If it is necessary, I will add to that ‘and follow the lawful directions of the manager of Wiimpatja Healing Centre’ – I am not sure it is necessary, if he resides there he is part of the program, if he ceases to be part of the program we will hear about it.  Perhaps I will just ask Uncle Mark, if he is there.  Are you still with us, Uncle Mark? 

114So I am just unmuting it there in the court.

115Uncle Mark Bland, are you still there?  I have not put you to sleep yet?

116UNCLE MARK:  Nearly.  No, I'm still here, Your Honour.

117HIS HONOUR:  I don't blame you, I've got to go through these things.  If I make it a condition of the CCO to reside at Wiimpatja Healing Centre, is that sufficient or is that not appropriate?

118UNCLE MARK:  Oh, if you're worried about the reporting it's – we have two other clients that are reporting to Corrections each week anyway so.

119HIS HONOUR:  Yes, yes, but I don't need to put anything in the order that he follow your lawful direction or anything of that nature.

120UNCLE MARK:  No.

121HIS HONOUR:  No, all right.  I declare that he has served 441 days as pre‑sentence detention. 

122Pursuant to s6AAA, if it was not for your pleas of guilty, Mr Carter, I would have sentenced you to a head sentence of four years with a non-parole period of two-and-a-half years.  Any other orders I need to make?

123MS BRISTOW:  No other ancillary orders.

124HIS HONOUR:  Thank you very much.  All right, well they are the reasons for sentence.  I am glad to see you are still awake there, Mr Carter.  You are going to, once you are processed there, and you are eligible for release now given that you have served the custodial part of your sentence and you will be entering a community corrections order.  Do you consent to going on a CCO?

125ACCUSED:  Yes.

126HIS HONOUR:  Yes. That will be provided to you and you will be asked to sign it.  The first part of that community corrections order is you will go and stay with Uncle Mark at Wiimpatja.  All right.  And if you breach the conditions of the order you can be brought back before me for re-sentence.  All right.  I will sign that out the back, we will adjourn the court for now until that is all signed and done.

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