Director of Public Prosecutions v Casley

[2024] VCC 914

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01607

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIAM CASLEY

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2024
DATE OF SENTENCE:	19 June 2024
CASE MAY BE CITED AS:	DPP v CASLEY
MEDIUM NEUTRAL CITATION:	[2024] VCC 914

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Kidnapping; recklessly cause injury

Legislation Cited:      Sentencing Act 1991 (Vic); Bail Act 1977 (Vic)

Cases Cited:Marrah v The Queen [2014] VSCA 119; R v Verdins & Ors [2007] VSCA 102; Azzopardi; Baltatzis; Gabriel (2011) 35 VR 43

Sentence: Total effective sentence 2 years and 10 months' imprisonment. To serve 18 months before eligible for parole, 393 days are reckoned as having already being served. Section 6AAA – If not for pleas of guilty, 4 years and 2 months' imprisonment with a minimum of 2 years and 9 months before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Dr J. Harkess and Ms H. Gould (for Sentence)	Office of Public Prosecutions
For the Accused	Mr L. Cameron	Stary Norton Halphen

HER HONOUR:

1Liam Casley, you have pleaded guilty on indictment to charges of kidnapping and causing injury recklessly.

2You have also entered a guilty plea to related summary offences of drive whilst disqualified and contravene family violence safety notice.

3In sentencing you for these crimes I must have regard to the maximum penalties for the offences you have committed.  Those maximum penalties are as follows:

·     Kidnapping – 25 years' imprisonment

·     Causing injury recklessly – 5 years' imprisonment

·     Drive whilst disqualified – 2 years' imprisonment

·     Contravene family violence safety notice – 2 years' imprisonment

4These maximum penalties reflect the seriousness with which Parliament regards each of these offences.

5In addition, the charge of kidnapping is a category 2 offence under the Sentencing Act 1991 and therefore pursuant to s5(2H), I am required to impose a sentence under Division 2 of Part 3 of that Act, involving a period of imprisonment or detention, which cannot be in combination with a community corrections order unless a relevant exception applies.

6The circumstances of your offending are set out in a document entitled 'Amended Summary of Prosecution Opening for Plea' dated 4 June 2024.  This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

7I will not repeat the entire summary as it is a matter of record, but in brief terms, the offending that gives rise to these charges occurred over the course of one evening on 22 April 2023, at which time you were 20 years of age.

8The victim of your offending is Dani Sykes[1], who was also 20 years of age and with whom you had been in a relationship with for about nine months at the time.

[1] A pseudonym.

The Offending

9On the evening of 22 April 2023, Ms Sykes and her friend Fiona Ellis[2] attended a restaurant in Chapel Street, South Yarra, to celebrate a friend's birthday.

[2] A pseudonym.

10You and your friend, Finn Leahy, later joined Ms Sykes and Ms Ellis.

11At around 8:45 pm, you, Mr Leahy, Ms Sykes and Ms Ellis all left together in a green Mitsubishi Mirage driven by you. The Victorian registration plates '1HP 2FQ' affixed to the car were stolen but this is not the subject of charge, nor will you be punished for it.

12You drove Ms Sykes and Ms Ellis to the Quest apartments in Dockland where they collected their belongings from an apartment. Shortly after, you were all back in the car which was now being driven by Mr Leahy.

13At approximately 10:22 pm, Police observed the car you were in situated at the intersection of Spencer and La Trobe Streets. They activated their blue and red lights when they noticed occupants without seat belts.

14Mr Leahy evaded police, accelerating at high speeds through the intersections of La Trobe Street and Harbour Esplanade. The police disengaged as a result.

15Shortly after, Ms Sykes asked Mr Leahy and you to pull over the car and let her and Ms Ellis out of the vehicle. You and Mr Leahy refused, screaming at them to 'shut up'. Mr Leahy continued to drive the car until he reached 10 Macdonald Street, Glen Iris, where upon all parties exited the vehicle.

16

Once outside, you repeatedly told Ms Sykes that she wasn’t going anywhere and you yelled at her. CCTV footage from a nearby residence depicts you and

Ms Sykes pushing and pulling each other, which resulted in you both falling on the ground.

17Jayden Hume-Roberts, who I understand had also been in the car, attempted to intervene before you were pushed into a nearby bush by Ms Sykes. You rose to your feet and ran to Ms Sykes and kicked her in the vicinity of her upper body.

18You then turned to Mr Hume-Roberts and commenced a physical assault on him, throwing a range of punches whilst Ms Sykes tried to stop the altercation by grabbing you from behind. After a short while, you calmed down and stopped hitting Mr Hume-Roberts. These facts are also not the subject of charge, nor will you be punished for them.

19

You then took a hold of Ms Sykes' jumper from the rear, held her across her back with your right arm and dragged her into the rear passenger seat of your car.

Ms Sykes told you to stop and that she did not want to go with you. These facts form the basis for the commencement of Charge 1, Kidnapping.

20Mr Leahy and Mr Hume-Roberts told you to let Ms Sykes go but you kept saying 'no'. Mr Leahy drove towards his house in Karingal with you and Ms Sykes in the backseat. During this time, you snatched Ms Sykes' phone from her.

21After arriving at the Karingal address, Mr Leahy and Mr Hume-Roberts exited the car. You then told Ms Sykes to get into the front seat. She complied. You then drove around the Karingal area, yelling at Ms Sykes about issues in your relationship. Ms Sykes asked you many times to let her out of the car, but you ignored her requests telling her that she 'wasn't going anywhere'.

22At one point, you pulled the vehicle over which caused the car doors to unlock. Ms Sykes attempted to get out the vehicle and was able to open the door. You pulled her back and continued to drive. You then used the back of your left hand to slap her in the nose, causing Ms Sykes' nose to bleed.

23You continued to physically assault Ms Sykes in the car thereafter. You would pull on her hair and bite on her arm and ear. She cried and told you to stop. You eventually arrived at your grandmother's home in Karingal around 1 am. By this point the charge of kidnapping was complete and Ms Sykes had stopped trying to leave given her fear of further assaults. You both went inside and fell asleep.

Investigation and Arrest

24On the same day, at 11:19 pm, police attended and a crime scene was established.

25Ms Sykes' sister, Jillian[3], had been contacted by Ms Ellis and told of what had occurred. Jillian Sykes alerted emergency services.

[3] A pseudonym.

26At 7:40 am on 23 April 2023, members of the Special Operations Group called at your grandmother's address demanding that you exit the premises. After no response, police forced entry and located you and Ms Sykes inside a bedroom. Ms Sykes was observed by police to have multiple injuries.

27You were arrested and transported to Melbourne West police station for interview. A family violence safety notice was served on you at the time. You were released later that morning.

28Ms Sykes attended on police later that day to make a statement.  Whilst doing so, you called her on 'Facebook Messenger' and sent her seven messages which were seen by police and detailed in the Crown Opening. These facts form the basis of related summary Charge 10, Contravene family violence safety notice.

29Police took photographs of the injuries sustained by Ms Sykes. Photographs of her injuries were tendered and make unpleasant viewing. Ms Sykes had abrasions and bruising to her left cheek and neck, and bruising and swelling to her forehead, arms and hands following your assaults upon her. Bite marks were clearly visible. These facts form the basis of Charge 2, Recklessly cause injury.

30At approximately 7:00 pm you were arrested for the kidnapping of Ms Sykes and taken to Dandenong police station. On interview, you made no admissions to the offending.

31Relevant to this offending, you were disqualified from driving by the Melbourne Magistrates' Court on 3 March 2023. Your driving on 23 April 2023 forms the basis for related summary Charge 9, Drive whilst disqualified.

Offence Gravity and Victim Impact

32The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime on them.

33Dani Sykes has provided a victim impact statement. In short, your offending on 22 April 2023 has had a profound impact on her life. In being read to the court you are well aware of the content of Ms Sykes' victim impact statement.

34Ms Sykes describes the consequences of your offending as one of the most difficult things she has had to experience. She cannot understand the behaviour of someone she thought loved her. Ms Sykes describes having nightmares at least two to three times a week and that the experience was extremely traumatic for her. She also refers to scars on her body caused by your biting and recounts the series of bruises and scratches she received during your offending.

35Yours is very serious offending.

36Ms Sykes' request was a simple one – stop the car and, in effect, let her and Ms Ellis feel safe.

37You had apparently calmed after your uncharged assault of Mr Hume-Roberts. It is after this that your anger re-ignited and Ms Sykes was dragged by you into the backseat of your car. She made it clear that she did not want to go with you. You not only ignored her pleas but also the requests of Mr Leahy and Mr Hume-Roberts to do so.

38Once they had each left the car the kidnapping continued and involved particularly nasty assaults which included, as just described, a backhander to Ms Sykes' face, pulling her hair and biting Ms Sykes. You were the weapon in that context. I am mindful that the injury offence occurred during the offence of kidnapping but there were multiple events which led to injury being caused elevating it's seriousness.

39I accept that this offending was unplanned. Nevertheless your behaviour represents that which is both unacceptable, appalling and which I have little doubt Ms Sykes found terrifying.

40Most concerning was your inability to control your own anger over an extended period of time – some two hours and 19 minutes – when you had a number of opportunities to pause and reflect. Your offending was in the context of family violence where the Court of Appeal have made clear the importance of general deterrence.  In the decision of Marrah v The Queen [2014] VSCA 119 the court emphasised the need for general deterrence, stating that:

'The sentence must convey the unmistakable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship'.

41In the context of your offending, sentencing principles of specific deterrence, denunciation and protection of the community also loom large.

42Your offending on 22 and 23 April 2023 occurred in the context of you driving and being disqualified from doing so. You have a history of driving when unlicensed or disqualified. I accept the driving offence was part and parcel of the circumstances of the charges on the indictment.

43Whilst it was suggested that your communications to Ms Sykes post your offending were relatively benign, they were communications in breach of a court order and post the kidnapping and causing injury recklessly having occurred. In that sense this offence would not have been without its impact on your victim.

Plea of Guilty

44The Sentencing Act obliges me to take into account the stage at which you entered your pleas.  You entered your guilty plea at committal proceedings held on 11 September 2023. No witnesses were subject to cross-examination.

45The timing of this plea was on the cusp of this court still needing to respond to the impacts of the COVID-19 pandemic and the backlog that created. In that sense your plea has additional utilitarian value.

46Your plea hearing was listed on 29 January 2024 but adjourned so that a neuropsychological assessment could be conducted.  Your plea hearing was  refixed to 4 June 2024. This has led to some delay which I take into account in a general sense in terms of the extended burden on you as you await the outcome.

47Your decision to plead guilty offers clear value in saving the victim of the need to give evidence at either committal or trial and relive what would be traumatic events. It has utilitarian value in saving the community the expense of contested proceedings.

48Remorse is somewhat harder to discern. You did tell Ms Scott that you felt like 'a piece of shit' and Dr Davis that you hate yourself for it but there is also a degree of minimisation and victim blaming. I accept that you have taken responsibility for your wrongdoing.

49These factors will be taken into account in your favour.

Personal Circumstances

50I turn now to your personal circumstances, which have been outlined helpfully in Defence Submissions and materials tendered on your behalf to which I have had recourse. 

51You are currently 21 years of age, having been born in Frankston in June 2002 to parents Megan and Andrew. You are the youngest child in a sibship of two, with a sister six years your senior. You also have two older half-brothers on your father's side but have no contact with them. Your mother reported experiencing no pregnancy difficulties, and that you met all developmental milestones.

52Your parents' relationship was fraught with family violence and ultimately ended with your father abandoning both you and your mother. You have not had any meaningful contact with your father since around the age of three years.

53You describe your upbringing as unhappy and that you never felt safe. At around age five or six, your mother re-partnered with a man who was abusive. Your stepfather was physically, emotionally and psychologically abusive to you and your mother. You would run away from home and child protection became involved.  You report that the relationship quickly ended once the abuse of you was discovered.

54You instruct that your mother had her own difficulties with regards to her mental health and your environment remained somewhat unpredictable.

55You grew up in the Frankston area and indicated having a positive relationship with your grandmother, Janet Peile. You have mainly lived with her from the age of eight years. You state that 'home has always been Nanna's’ although you have been 'kicked out' more than once. Your grandmother describes you as a 'beautiful boy' but states that you 'got into drugs'. At the time of your offending, you were living with your grandmother in Frankston.

56Your relationship with your mother is described by you as being 'up and down', and although the two of you are in a better place, you say that your relationship with her when you were a child was not the best.

57Your upbringing has contributed to your education being significantly disrupted and fraught with suspensions and disciplinary action.

58You attended two primary schools. The first was from Grades Prep to Grade 4 where you believe you were suspended at least 14 times. You completed Grade 5 and Grade 6 at a second school, and you state that you were not suspended largely due to the positive relationship you had with your teacher.

59You then attended Christian College from Years 7 until 8 where you state that you just 'went bad again, just really bad.' You reported being engaged in bullying, and in a moment of introspection, claimed that you were 'just a piece of shit to be honest…'. You were then asked to leave the school.

60You then attended an educational centre which catered to children with Attention Deficit Hyperactivity Disorder and Autism from Years 8 to 10. You were suspended and then expelled and have had no meaningful education since then.

61With respect to your employment history, you had a pre-apprenticeship as a mechanic for a few months in 2020 before you were incarcerated. Your employment history has been somewhat limited. You have worked in a number of manual labouring roles.

62In terms of substance use, you regularly abused substances for the majority of your teenage years. I accept that your early resort to substance abuse is reflective of a traumatic upbringing. Your background is also such as to impact on and reduce your moral culpability for your offending and recourse to violence.  This carries with it the obvious concern as to how best to protect the community.

63You reportedly first consumed alcohol when you were 10 years old, stealing it off your grandmother. You became a regular drinker and started consuming alcohol everyday around the age of 15. Before your most recent remand, you had been drinking heavily and had done so on 22 April 2023.

64You first used cannabis at the age of 10 years old and began frequent use at around 13 years. You state that it got bad around ages 14 to 15 where you were doing 'a couple of cones…all day, every day' and would use drugs with other peers.

65You reportedly first used ecstasy at the age of 15 years old and state that you have taken over a hundred pills, with the most being '10 or something' in one night. Your first use of amphetamines was around ages 13 and 14, and you claim to have been smoking ice once week a week at around 17 years of age.

66In regard to opioids, you reportedly used a 'little bit' of heroin when you were 17 or 18 years of age but would only smoke it. More worryingly, you state that your opioid use has gone up since being incarcerated, and that you have used the drug intravenously. You have also reportedly used hallucinogens, ketamine and GHB.

67In terms of your mental health, you were first placed on a Mental Health Plan in 2007 when you were just four years old. This quickly arose in the aftermath of mistreatment by your mother's boyfriend.

68You have engaged in considerable self-harm and have made multiple attempts on your own life, resulting in emergency department and psychiatric admissions.

69Previously you have been diagnosed with a number of mental health conditions, including but not limited to Attention Deficit Hyperactivity Disorder, Post Traumatic Stress Disorder, Major Depressive Disorder, Borderline Personality Disorder and Antisocial Personality Disorder.

70In terms of your personal relationships, you have had one serious relationship and it was with Ms Sykes whom you met on Facebook. You claim that your relationship has had its struggles with infidelity and family violence.

71Now you and Ms Sykes share a daughter, Quinn[4], who was born in January 2024. You struggle with your inability to see your daughter and a desire to have a relationship with her.

[4] A pseudonym.

Criminal History

72I turn now to your criminal history as it does form part of your personal circumstances.

73You have what can only be described as an unenviable criminal record for someone who is still quite young. 

74Your first appearance was on 19 February 2019 at the Frankston Children's Court, where you were charged with criminal damage, throw missile, make threat to kill, unlawful assault, assault emergency worker on duty, commit indictable offence whilst on bail, reckless conduct endangering serious injury and make explosive substance without excuse. You were placed on a good behaviour bond in the amount of $250 for a period of eight months. No conviction was recorded.

75On 10 September 2019, you appeared at the Frankston Children's Court charged with property offences, dishonesty offences, drug offences, driving offences and offences against the Bail Act. You were placed on a good behaviour bond in the amount of $500 for 10 months. No conviction was recorded.

76On 25 November 2019, the Adelaide Children's Court dismissed without penalty charges of carry an offensive weapon, unlawfully on premises and interfere with a motor vehicle.

77On 27 March 2020 you appeared at the Melbourne Children's Court for a range of offending which included theft of a motor vehicle, driving offences, drug offences, property offences and offences against the Bail Act. You were placed on Probation for a period of 12 months. No conviction was recorded.

78You were breached on that Probation order imposed 27 March 2020 and on 3 June 2020 the Melbourne Children's Court found the breach proven and placed you on a good behaviour bond for a period of 12 months for offences of theft of a motor vehicle, theft and driving whilst disqualified. No conviction was recorded.

79You received an adjourned undertaking from the Magistrates’ Court on 19 September 2023 for charges of theft and commit an indictable offence whilst on bail. 

80I have 2023 but that date might be wrong, I will double check.

81MR CAMERON: 2020, Your Honour.

82HER HONOUR: 2020, thank you.

83On 17 August 2021, you appeared at the Melbourne Supreme Court charged with affray and bail offences. You were sentenced to eight months' imprisonment with 264 days reckoned as served in addition to an eight month community corrections order.  I have been provided with the sentencing reasons of his Honour Justice Croucher. This incident did involve you kicking the defenceless victim to the head and with such force that the victim's prone body lifted from the ground.

84On 18 February 2022, you appeared at the Frankston Magistrates’ Court for a range of offending which included dishonesty, offences against the person, robbery and offences against the Bail Act. You were sentenced to 105 days' imprisonment with 105 days reckoned as served. You were fined for an offence of enter intersection against a red light.

85The corrections order imposed by the Supreme Court was contravened and on 4 November 2022 the Melbourne Supreme Court cancelled the corrections order and placed you on a further corrections order of 12 months’ duration. You would have been subject to this order at the time of the offending before me.

86Most recently, you appeared at Melbourne Magistrates’ Court on 3 March 2023 in relation to offences of dishonesty, dangerous driving whilst being pursued by police, aggravated burglary, property damage, weapon possession, driving offences and offences against the Bail Act. You were sentenced to a total effective sentence of five months’ imprisonment with 163 days reckoned as served in addition to an 18 month community corrections order. You also would have been subject to this order at the time of your offending before me. Contravening two corrections orders with your offending of April 2023 is an aggravating feature to your offending.  Your ability to comply with such orders is of obvious concern as is the stark fact that the offending before me occurred approximately six weeks after your release from custody.

87Whilst not to be punished for your criminal history a second time, it is relevant to the assessment that needs to be undertaken by me as to the weight that should attach to specific deterrence, denunciation and protection of the community, all of which do carry importance in your sentencing exercise.  It is also relevant to the assessment as to your prospects of rehabilitation. 

88Obviously your criminal history reflects relevant offending over an extended period of time in terms of violent and somewhat unpredictable behaviour.  To date supervisory orders appear to have provided limited assistance and relatively brief periods of imprisonment have not deterred you. You have shown a disrespect for a range of court orders.

89I am told that you have matters pending in the Magistrates’ Court.

Expert evidence

90There has been an abundance of expert evidence before me.  A psychological report authored by Ms Carla Lechner, clinical psychologist, dated 23 July 2021 was tendered on your behalf. Her report had been prepared for your plea hearing in the Supreme Court for charges of affray and others. At that time Ms Lechner was of the view that there was evidence of alcohol and stimulant use disorder and complex post-traumatic stress disorder.

91Assessments of you otherwise were conducted by two separate professionals from two separate disciplines.

92Dr Micheal Davies, Forensic and Clinical Psychologist, has prepared two reports.

93According to his report dated 26 January 2024, you present with maladaptive personality problems of different types. Dr Davies states that you are likely to be emotionally unstable, experience rapid and extreme mood swings and episodes of poorly controlled anger. You have low frustration tolerance, irritability and feelings of persecution.

94Whilst Dr Davies found it difficult to identify the motivation for your offending, he did opine that your poor decision making was influenced by alcohol, compromised executive function, severe personality dysfunction, untreated complex post‑traumatic stress disorder and possibly a degree of depressed mood.

95He concluded that you met criteria for alcohol use disorder, opiate use disorder, major depressive disorder, complex post-traumatic stress disorder and borderline and antisocial personality disorder. Dr Davies described you as diagnostically complex. He recommended neuropsychological assessment.  

96In Dr Davies opinion your combination of difficulties mean you present with a high risk of general offending behaviour and moderate to high risk for future violence which would increase to high if intoxicated.  Your risk of intimate partner violence was also assessed as moderate but likely to increase if alcohol was involved.

97In his addendum report dated 31 May 2024, Dr Davies had been provided with the report of Ms Laura Scott, clinical neuropsychologist. I will be referring to her report shortly. There was nothing in that report which altered his assessment of you. He was not concerned about differing diagnoses given the differing disciplines and that both he and Ms Scott had identified the same behavioural features.

98Dr Davies was called to give evidence at your plea hearing on 4 June 2024.

99Whilst your major depressive disorder is in full remission Dr Davies evidence was that the symptoms can return very quickly and the depression is likely to come in and out of your life. He confirmed the diagnoses otherwise made through his two reports.

100In Dr Davies opinion autism like features are part of your personality structure and were present at the time of your offending.

101Dr Davies opined that you have a severe level of impairment with your personality disorders which were contributing features to your offending. You are an impulsive person who feels and reacts before thinking. Dr Davies described a 'rich tapestry of contributing factors' to your offending. He was unable to comment on what factors contributed in the sense of one above the other and confirmed that the offending was less likely to occur if you had not been intoxicated but, under the influence of alcohol, other things surface, and you become disinhibited.

102A report dated 3 May 2024 authored by Ms Laura Scott, clinical neuropsychologist has been filed on your behalf.

103Ms Scott assessed your full-scale IQ at 89 which she described as low average. You do not have an acquired brain injury or an intellectual disability.

104You have moderate to severe impairments in higher attentional abilities, aspects of memory function and aspects of executive function. This impacts on idea generation, impulse control and mental flexibility. Your day-to-day presentation is one in which you are easily overwhelmed by details or complex information, you are impulsive, you can be rigid and fixed in your thinking such that you struggle to see things from another perspective, you have difficulty identifying emotions including your own and have difficulty seeing the 'bigger picture'. You present with a high risk of emotional behavioural outbursts in response to relatively mild provocation. You have limited ability to self-regulate.

105To Ms Scott you presented with moderate depressive symptoms, moderate anxiety and mild stress.

106Ms Scott describes your neuropsychological profile as complex and multifaceted. There is strong evidence of neurodevelopmental disability overlaid on your history of childhood trauma. Psychiatric illness and substance abuse has also emerged as you entered into adolescence and your early adult years.

107Ms Scott confirmed your well-established diagnosis of Attention Deficit Hyperactivity Disorder.

108In Ms Scott's opinion your profile is consistent with Autism Spectrum Disorder level 2 which she saw as potentially the underlying driver of your cognitive, emotional and behavioural problems. As this condition has not previously been diagnosed you have had no treatment for it. Ms Scott recommended further assessment to confirm her diagnosis of Autism Spectrum Disorder.

109Ms Scott indicates that both Autism Spectrum Disorder and Attention Hyperactivity Disorder are lifelong conditions and would have been operative at the time of your offending. Each would have been exacerbated by your admitted use of alcohol and interpersonal conflict. Ms Scott opines that your cognitive and behavioural impairments were likely significant contributors to your offending behaviour. Understandably, she was unable to separate the impact of your impairments from the contribution alcohol made in the context of those impairments and triggers personal to you as prompting your offending behaviour.

110In her opinion, you require multidisciplinary assistance to improve your level of function and as I have already referred, recommended that you approach the National Disability Insurance Scheme. 

111Ms Scott also gave evidence at your plea hearing on 4 June 2024.

112In her opinion treating doctors in the past have focused on a diagnosis of Attention Deficit Hyperactivity Disorder and summarily dismissed autism. She is not critical of this particularly, noting that she has had more time and information to rely on than those that assessed you some 10 years ago. Having recommended that there be further testing to confirm her provisional diagnosis of Autism Spectrum Disorder, Ms Scott confirmed that she is not trained to conduct that particular test. However, she did refer to overlap in the diagnosis of Attention Deficit Hyperactivity Disorder and Autism Spectrum Disorder as both impact on impulse control, social communication and difficulties with emotional regulation.

113She was satisfied that you do present with Attention Deficit Hyperactivity Disorder and complex post-traumatic stress disorder.   

114I do not propose to make a finding as to whether or not you have autism. It is Ms Scott's provisional diagnosis amongst her other findings. The primary value in her report is in her recognition of the way your behaviours present, their impact on your offending behaviour and implications for your future. Dr Davies was of a similar view. Ms Scott did not disagree with the diagnoses of Dr Davies. Neurodevelopmental disorders and personality disorders can exist in the same individual and she ascribed significant overlap. In her opinion, longitudinal assessment would assist with greater clarity.

115Your Counsel argues that limbs one through to four in the decision of Verdins have application.

116The Crown conceded the application of limbs 1, 2, 3 and 4 of the decision in R v Verdins & Ors [2007] VSCA 102. Is it is conceded that your identified conditions may reduce your moral culpability and affect what is considered to be just punishment and lessen the need for denunciation, and that both general deterrence and specific deterrence may be moderated or eliminated.

117Based on this expert opinion, which I accept in its entirety, I am satisfied there is a basis to apply limbs 1,2,3 and 4 in the decision of Verdins to a moderate extent.

118Both Dr Davies and Ms Scott comment on the difficulties you face in prison being separated from your daughter and should you not be medicated as your presently are. I take the difficulties you are said to experience into account in a general sense.

Prospects of Rehabilitation

119In terms of your prospects of rehabilitation you have now served some 393 days on remand directly relevant to this matter. I take into account that you have been in custody since 23 April 2023 but that during this period you were sentenced to 30 days' imprisonment by the Supreme Court for contravening a community corrections order.  The time you have spent in custody is the longest period you have served in custody to date. I am told you have been a protection prisoner.

120You were 20 years of age at the time of this offending and despite your offence history, your youth does remain relevant to the sentencing task. 

121I accept that there should also be some reduction of your moral culpability directly linked to your young age at the time of your offending.

122The decision of Azzopardi; Baltatzis; Gabriel[5], Redlich JA made clear that the reasons to prioritise youth as a sentencing consideration remain. Those priorities include that:

·     Young offenders are immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;

·     It is recognised by the Courts the increased potential for young offenders to be rehabilitated, which is obviously in the public interest;

·     In addition incarceration can impair, rather than enhance, a young offender's prospects of rehabilitation.

[5] (2011) 35 VR 43; at [34]-[36]

123In a general sense, courts recognise that a young offender may not fully appreciate the nature, seriousness and consequences of their criminal conduct and that there are obvious risks to the young offender and the community at large if a young person is 'taught the ways of a criminal' through adult incarceration.

124Courts have also recognised there are circumstances in which the seriousness of the offending is such to reduce, or possibly extinguish, the relevance of youth.  I do not see this case as being in that category.

125Whilst I am told that you have accessed drugs whilst is custody, you have obtained a billet's position, which is a trusted position in the prison system. You have also accessed a number of treatment programs.

126You are apparently prescribed methadone and mirtazapine, which you have found helpful.

127You continue to have some family support. Your mother did speak with Dr Davies and Ms Scott. In addition, she has provided a letter to the court in which she speaks of much of her and your personal background. She clearly offers her continued support of you. 

128Your daughter was born in January of this year. In recent times you have seen your daughter for the first time over a screen. I accept that you hope to play a role in Quinn’s life and that you are aware that this will require considerable efforts on your behalf.  I accept that this is a powerful motivator to you. 

129You expressed a desire to Dr Davies to stay away from drugs and alcohol, find accommodation and a job. In his report dated 24 January 2024, Dr Davies did comment that you have a substantial interest in making changes in your life and that you are motivated for treatment. He also commented that treatment is likely to be challenging and the process itself somewhat arduous.

130I also note the professional recommendations for you to have considerable and multidisciplinary assistance into the future. I accept that you are unlikely to receive such treatment in a custodial setting.

131I encourage you to pursue assistance from the National Disability Insurance Scheme as recommended by Ms Scott.

132The road ahead for you is not necessarily an easy one but you do appear motivated for a different way of life.

Sentencing Submissions

133On your behalf it is submitted that given the considerable pre-sentence detention you have served, that the imposition of a term of imprisonment in combination with a community corrections order is open. On the charge of kidnapping this would require you to overcome the provisions of s5 (2H) of the Sentencing Act 1991 to which I earlier referred.

134The Crown submit that the gravity of your offending, combined with all relevant sentencing considerations, are such that a head sentence with a non-parole period is the only mechanism in which to reflect these matters.

135I have had recourse to comparative sentences filed on behalf of each party.

136I agree with the Crown submissions, I am not of the view that a combined sentence is open. I therefore do not propose to consider whether or not an exception to s5(2H) is made out as was argued on your behalf.

137Can I now check with each of you whether there are any errors that you need to bring to my attention?

138MS GOULD:  Not from the prosecution, Your Honour.

139MR CAMERON:  Not from the defence, Your Honour.

140HER HONOUR:  Thank you.

Sentencing

141I make the ancillary orders as sought for the forfeiture of scheduled items.

142The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.

143I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, where possible, that offenders are rehabilitated and are safely reintegrated into society.

144I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the important principles of both totality and proportionality.  

145In relation to Charge 1 – kidnapping, you are convicted and sentenced to 2 years and 3 months' imprisonment.

146In relation to Charge 2 – causing injury recklessly, you are convicted and sentenced to 12 months' imprisonment.

147For the summary offence of drive whilst disqualified, you are convicted and sentenced to 1 months’ imprisonment.

148For the summary offence of contravene family violence safety notice, you are convicted and sentenced to 2 months' imprisonment.

149Six months of the sentence imposed on Charge 2 is cumulative on Charge 1.  One month of the sentence imposed on the summary charge of contravene family violence safety notice is also cumulative on sentences already imposed this day. 

150The total effective sentence is therefore one of 2 years and 10 months' imprisonment. Given your youth and the reduction in your moral culpability for a number of reasons as outlined, there is merit in you having an extended period of supported transition in your return to the community.

151You are therefore to serve 18 months before you are eligible for parole, 393 days are reckoned as having already being served.

152I direct that the expert reports of Dr Davies and Ms Scott be provided to the correctional authorities. 

153Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges. This is somewhat artificial given the weight I have given to matters in mitigation.  If not for your pleas of guilty you would have been sentenced you to 4 years and 2 months' imprisonment with a minimum of 2 years and 9 months before being eligible for parole.

154Hopefully my maths works too.

155MR CAMERON:  Yes, no issues, Your Honour.

156HER HONOUR:  All right, thank you.  Well if you do wish to use the link, Mr Cameron, you are able to but I note what you referenced earlier.

157MR CAMERON:  Yes.

158HER HONOUR:  Anything else from either of you?

159MS GOULD:  No, Your Honour.

160MR CAMERON:  No, Your Honour.

161HER HONOUR:  All right, thank you to both of you for your assistance throughout this matter and thank you also to Dr Harkess.  I will close the court till 9.30, thank you.

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