Director of Public Prosecutions v Carter
[2022] VCC 1981
•11 November 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-01370
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYRA CARTER |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 November 2022 | |
CASE MAY BE CITED AS: | DPP v Carter | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1981 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited: Crimes Act 1958 (Vic); Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Mammoliti v The Queen [2020] VSCA 527; Sabbatucci v The Queen [2021] VSCA 340; Buckley v The Queen [2022] VSCA 138.
Sentence:Five years and nine months' imprisonment; non-parole period of three years and seven months; 18 months licence disqualification
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Sakar | Office of Public Prosecutions |
| For the Accused | Mr A. Vincent | Victoria Legal Aid |
HIS HONOUR:
1Tyra Carter, you have pleaded guilty to the following charges which carry the following maximum penalties:
| Charge No. | Offence | Maximum Penalty | Additional |
| 1 | Aggravated carjacking pursuant to s79A Crimes Act | 25 years imprisonment | Category 1 offence |
| 2 | Dangerous driving whilst pursued by police pursuant to s 319AA Crimes Act | 3 years imprisonment | Licence disqualification for minimum period of 12 months |
| Related summary charge 7 | Driving whilst disqualified pursuant to s 30(1) Road Safety Act | 2 years imprisonment or 240 penalty units |
2You have a relevant criminal history which you have admitted. I will return to this later in these sentencing remarks.
Circumstances of Offending
3The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
4On the evening of 29 September 2020 at about 8:45pm, the victim Mr Mangalam had just made a delivery in his Mercedes Benz van to an address in Melton. You and an unknown co‑offender approached the delivery van in a car. You both got out. You were carrying a knife. You ordered the victim out of the van, grabbed him by the collar of his shirt and dragged him out of the vehicle. The co-offender shunted the victim further away. The victim asked for his mobile phone but you refused and drove off.
5The victim raised help and called the police. At about 11.30pm, police observed you driving the stolen van with a female passenger. Police engaged lights and sirens but you accelerated down Barries Road, Melton at a fast rate of speed, continuing through a red traffic light and onto the wrong side of the road.
6The Police Air Wing was engaged and saw that you had parked in the Melton McDonald's car park. Police parked in front of you on an angle and Detective Senior Constable Holt approached your car. You drove forward onto Coburns Road on the wrong side of the road. You narrowly missed an oncoming vehicle and continued on the wrong side of the road.
7You dropped off the female passenger and dumped the stolen van in Plover Street. You entered the house of two people known to you and told them not to open the door to police.
8You were arrested at that house. Police found a knife with your DNA on it. You were taken to the police station where you were assessed as substance affected and you were not interviewed.
9You were remanded in custody and you have now served 773 days, not including today, by way of pre‑sentence detention.
10It is apparent from the material and from admissions you made, that at the time of your offending you were using drugs heavily and living in unsettled circumstances.
11You entered a plea of guilty in July 2022 in the County Court. The committal proceeded by way of submissions, but the victim and other witnesses were cross-examined at a s198B hearing on the question of identification. Your plea was not therefore made at the earliest time and the utilitarian benefit of it is somewhat reduced by the fact that you continued to test the victim and others on the question of identification when you had otherwise communicated your responsibility for your offending to others in your telephone calls. Nevertheless, your plea does have some utilitarian benefit and will be recognised for that. Furthermore, there were some negotiations that resulted in the reduction of the number of charges you face. I accept that the later plea was made after successful negotiations.
12As I say, you made a series of telephone calls from prison in October and December 2020 in which you admitted your offending; enthusiastically stating that it was 'gangster as fuck'. You stated that you regretted not robbing the victim of money you suspected he was carrying and for not keeping the car. You discussed trying to negotiate the charge of aggravated carjacking to a lesser charge of robbery or the like.
13The Victim Impact Statement of Albert Mangalam was read to the court. Mr Mangalam details the devastating mental health impact of the crime on him, and the related financial difficulties he faces as an international student. He went from being a confident person to becoming reclusive and suffering from depression, anxiety and PTSD. He has been unable to afford psychological support.
Objective Gravity and Moral Culpability
14I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
15The seriousness of the offence of aggravated carjacking is marked by the maximum period of imprisonment that may be imposed – 25 years.
16Moreover, the offence has been prescribed by Parliament as a category 1 offence. Essentially, you must be sentenced to a term of imprisonment for this offending. Mr Collins, who appeared on your behalf, responsibly submitted that a term of imprisonment with a non-parole period was inevitable for your offending.
17Further, Parliament has marked the seriousness of the offence of aggravated carjacking by requiring that a non-parole period of not less than three years be fixed unless a special reason exists. Again, your counsel responsibly submitted that no special reason exists.
18I must consider the objective gravity of offending not just by reference to these factors, but also by taking into account the circumstances in which the offence was committed:
(a) The victim was a soft target, on his own, and going about his work;
(b) You committed the offence at night;
(c) You were in company, and the offence was planned at least to some degree;
(d) You were armed with a knife;
(e) In respect of your driving, your driving was dangerous, sustained and repeated. You were driving through suburban areas. It appears that you were substantially drug affected at the time of your driving and you disobeyed police orders to stop; and
(f) Finally, you were driving a stolen van at the time you were disqualified.
19I recognise that there is some overlap of some of these aspects. I will ensure that you are not doubly punished in the process.
20Your moral culpability for your offending is high. Although police assessed that you were substance affected at the time, and you admitted that you were using ice, this does not mitigate your offending or reduce your moral culpability.
21I do not consider the plea of guilty itself is indicative of remorse. In the weeks after your offending, you were still expressing your bravado over the phone and toughing it out on the charge to which you ultimately pleaded guilty. You are, of course, entitled to test the evidence, as you did through your counsel at the s198B hearing, but I conclude that you have been slow to accept responsibility for your offending.
22Your offending must be met by the principles of deterrence, denunciation and a measure of protection of the community. It is trite to observe that a period of imprisonment with a non-parole period must be imposed for this case.
Personal Circumstances
23You are 28 years old, being born in January 1994.
24You are the youngest of five children. You left home at 14 and lived with friends in a caravan park. You became alienated from your mother and siblings at this time, whilst reconnecting with your biological father. It was your father who introduced you to drug use in your early teen years.
25You attended school until Year 9. From that time you were a constant user of drugs, and began using heroin and opioids at the age of 16 when you moved in with your biological father permanently.
26You have had limited employment.
27You have been on remand since your arrest on 30 September 2020. Whilst on remand you have completed vocational training courses and you have also reconciled with your family.
28The letter from your mother Maureen Page is realistic about the relationship you have had with her in the past, but she is hopeful for the present and future. It appears you have some prospect for support from your mother if you continue to develop insight into your drug use and your offending.
29You would like to train as a welder.
30You have a relevant criminal history. You have been sentenced to terms of imprisonment on a couple of occasions. Before this offending, you appeared at the Bail and Remand Court on 18 July 2020 for possession of methylamphetamines and Butanediol. On 25 May 2020 you were sentenced to a term of imprisonment (which looks like time served; it was 38 days) and placed on a CCO for reckless conduct endangering serious injury, dangerous driving while pursued by police, driving whilst impaired by a drug and other offences. You have prior convictions for contravening CCOs, violence, weapons, dishonesty, drugs, driving, and breaching bail and court orders.
Charge 1 – Category 1 offence
31As I have said, pursuant to sections 10(1) and section 11 of the Sentencing Act 1991 (Vic), I must impose a term of imprisonment, and fix a non-parole period of not less than three years for an offence against section 15A of the Crimes Act 1958 (Vic), unless I find that a special reason exists.
32As I have said, no special reason was put forward in this case and I find none exists so I must make a mandatory order for imprisonment which cannot be combined with a CCO.
Sentencing Submissions
33Mr Collins, who appeared on your behalf, submitted that the following factors should operate to mitigate your sentence:
(a) The plea of guilty was made during COVID-19 and in the context of the Court of Appeal case of Worboyes;[1]
(b) There is a relatively lower degree of gravity to this offending; and
(c) Athough you have a sustained criminal history, until this appearance all of your offending had been dealt with in the Magistrates' Court and, furthermore, your history largely derives from your long-term drug use.
[1]Worboyes v The Queen [2021] VSCA 169.
34Ultimately, as I have said, Mr Collins submitted that a period of imprisonment was inevitable. He submitted a term of around five to six years with a non-parole period of three to four years would be an appropriate sentence.
35Mr Collins provided me with the cases of Mammoliti,[2] Sabbatucci[3] and Buckley[4] in support of his submission.
[2]Mammoliti v The Queen [2020] VSCA 527.
[3]Sabbatucci v The Queen [2021] VSCA 340.
[4]Buckley v The Queen [2022] VSCA 138.
36Ms Paganis, who appeared for the Crown, submitted that the only appropriate sentence is a term of imprisonment with a head sentence and a non-parole period.
37The Crown concedes that your plea of guilty, albeit not at the earliest stage, is a relevant mitigatory consideration.
38Ms Paganis submitted that your offending was serious, and should be considered to fall in the mid to high range. Whilst Ms Paganis did not consider that the case of Buckley provided a comparable sentencing guide to your offending, she did submit that the other cases could be used as providing some comparison in your case.
Analysis
39I accept that your plea of guilty must ultimately mitigate your sentence to some extent. Furthermore, the plea was made and offered during the time of the COVID pandemic lockdowns. I accept that your time in prison has been marked by the restriction on movement, courses and work available. The primary strategy for reducing contact in order to thwart the spread of the virus has been the use of isolation. All of this has made your time in custody more onerous.
40I have already discussed the objective seriousness of and your moral culpability for your offending. Overall, the crime of forcing an innocent worker from his car at knife point at night, and then driving around in a highly dangerous manner through built-up areas of suburban Melbourne in defiance of repeated police orders to stop, all whilst ice affected, must be viewed as very serious offending.
41It is of particular concern that your life and your offending is significantly and inextricably tied to your longstanding methylamphetamine and drug use. It is here that you must concentrate on your efforts for rehabilitation. If you do not resolve to, and get help for your longstanding drug addiction, your prospects of rehabilitation will be almost non-existent.
42Having said that, I consider that the circumstances of your childhood must mitigate your sentence to some extent. I recognise the fact that it was your father who abused his role as a parent, and his responsibility as a carer and protector, by introducing you to drugs. Similar to the principles enunciated in Bugmy, the court cannot ignore the fact that it was these key events in your childhood at the hands of your father which have indelibly shaped your adult years.
43As I have said, however, if you continue your current path, your prospects for your rehabilitation are bleak. I find some hope in the fact that you have reconnected with your mother, and that you have told her that you wish to use your time in custody on this occasion to restore yourself. I also take hope from the fact that you have at least expressed a desire to gain a trade in which you can be employed upon your release. In these ways, I find that your prospects for rehabilitation remain extremely guarded but, at least, have not been entirely extinguished.
Orders
44Accordingly, I make the following orders:
45On the charge of aggravated carjacking you are convicted and sentenced to five years' imprisonment. That is the base sentence.
46On the charge of dangerous driving whilst pursued by police, you are convicted and sentenced to 16 months' imprisonment, and I order that six months of that sentence be served cumulatively on Charge 1.
47On related Summary Charge 7 of drive whilst disqualified, you are convicted and sentenced to nine months' imprisonment and I order that three months of that sentence be served cumulatively.
48Accordingly, the total effective sentence I impose is one of five years and nine months' imprisonment. I order that you serve a non-parole period of three years and seven months before you are eligible for parole.
49I declare the period of 773 days, excluding today, pre‑sentence detention reckoned as already served.
50The 6AAA declaration is but for your plea of guilty I would have imposed a sentence of seven years with five years to serve.
51You are disqualified from obtaining a licence for 18 months from today and I will make the disposal order in chambers.
52Now, Mr Vincent, would you like the opportunity to speak to Mr Carter via the video link if I take the other parties out of the link?
53MR VINCENT: Yes, I would, Your Honour, if that's possible.
54HIS HONOUR: All right. I'll certainly arrange for that to be done. Thank you for your attendance today and yours Ms Sakar.
55So, Mr Carter, a sentence of five years nine months, with three years seven months to serve. You take off the 766 days that you've already served. And I'll let Mr Vincent speak to you about the sentence now. All right.
56MR VINCENT: As Your Honour pleases.
57MS SAKAR: As Your Honour pleases.
58HIS HONOUR: Thank you. We will adjourn now.
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