Director of Public Prosecutions v Castillo (a pseudonym)
[2022] VCC 2180
]]]
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL CASTILLO[1] |
[1]A pseudonym
---
JUDGE: | Her Honour Judge Morrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March, 14 and 24 June 2022 (via Webex), 21 November 2022 and 5 December 2022 | |
DATE OF SENTENCE: | 13 December, 2022 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Castillo (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2180 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – SENTENCE – YOUNG OFFENDER
Catchwords: Offender pleaded guilty to one charge of armed robbery contrary to s75A of the Crimes Act 1958 (Vic), one charge of intentionally causing serious injury in circumstances of gross violence contrary to s15A of the Crimes Act 1958 (Vic) and one charge of trafficking in a drug of dependence contrary to s71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) – Young offender aged 17 at time of offending – Prior court appearances for armed robbery – Whether the offender should be sentenced under the Children, Youth and Families Act 2005 (Vic) or under the Sentencing Act 1991 (Vic) – Where intentionally causing serious injury in circumstances of gross violence is a category A serious youth offence – Where a circumstance of gross violence to which offender pleaded guilty under s 15A(2)(d) was that he planned in advance to have with him and to use and in fact used an offensive weapon (knife) – Whether “planned in advance” includes a spontaneous act committed when the offender happened to have a knife in his possession for the purposes of and while committing an armed robbery – Whether “exceptional circumstances” established under s32(2C) of the Sentencing Act 1991 (Vic) enabling the Court to make a Youth Justice Centre Order – Whether offender’s remorse and acceptance of responsibility complete – Whether early plea of guilty, remorse, good prospects for rehabilitation, attendance at school, compliance with strict bail conditions and acceptance of responsibility in combination establish “exceptional circumstances”
Legislation Cited: Crimes Act 1958 (Vic), s15A, s75A; Sentencing Act 1991 (Vic), s3, s5, s6AAA, s10, s11, s18, s32, s33, s34, s35; Drugs, Poisons and Controlled Substances Act 1981 (Vic), s71AC(1); Children, Youth and Families Act 2005 (Vic), s360, s361, s362, s412, s413, s586
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Madex [2020] VSC 145; Brown v The Queen [2020] VSCA 60; Wyka v The Queen [2020] VSCA 104; Sarjeant v The Queen [2018] VSCA 310; Farha v The Queen [2018] VSCA 310; The Queen v Reid (Unreported) VSCA, No 219/1997, 7 April 1998; The Queen v Kolb & Adams (Unreported) VSCA, 14 December 1979; Re CT [2018] VSC 559; Re Sam [2017] VSC 91; Re Logan [2019] VSC 134; Farmer v The Queen [2020] VSCA 140; Director of Public Prosecutions v Lombardo [2022] VSCA 204; Makieng v The Queen [2022] VSCA 52; Director of Public Prosecutions v Tong (2000) 117 A Crim R 169; Azzopardi v The Queen (2011) 35 VR 43; Atem v The Queen [2020] VSCA 35; Haberman v Director of Public Prosecutions [2020] VSCA 286; Director of Public Prosecutions v Anderson (2013) 228 A Crim R 128; Taskiran v The Queen [2011] VSCA 358; Jawahiri v The Queen [2021] VSCA 287; Cairns (a Pseudonym) v The Queen [2018] VSCA 333; Hart v The Queen [2020] VSCA 194; CNK v The Queen (2011) 32 VR 641; Buckley v The Queen [2022] VSCA 138; Victoria Police v Hammond (a pseudonym) [2016] VChC1; Director of Public Prosecutions v Josefski (2005) 13 VR 85
Sentence: Sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of three years and three months.
Section 6AAA declaration: Conviction and sentence of nine years’ imprisonment with a non-parole period of four years and ten months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E Fargher | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr H Moodie | James Dowsley & Associates |
Table of Contents
Circumstances of offending
Charge 1 – armed robbery
Charge 2 – intentionally cause serious injury in circumstances of gross violence
The victim’s injuries
Investigation
Execution of search warrant
Charge 3 – trafficking in a drug of dependence
Arrest and interview
Procedural history
Gravity of offending
Plea in mitigation
Guilty plea
Relevance of COVID-19 over and above social utility
Remorse
Personal circumstances
Circumstances leading to your offending
Criminal history
Oral evidence and written reports of Ms Amy Taleb, Case Manager, Youth Justice
Supervised Bail Progress Report – exhibit 3
Pre-Sentence Report, Department of Justice and Community Safety, dated 25 May 2022 – exhibit 6
Updated pre-sentence report, Department of Justice and Community Safety, dated 14 November 2022– exhibit 10
Anglicare Victoria – Alcohol and Other Drug Program – exhibit 4
Engagement with Jesuit Social Services
Letter from Jesuit Social Services dated 23 February 2022 – exhibit 2
Psychological report of Dr Tiffany Lewis dated 6 June 2022 – exhibit 5
Academic progress
Secondary School Semester 1 Report 2022 – exhibit 8
Secondary School Semester 3 Report 2022 – exhibit 9
Australian Tertiary Admission Rank – exhibit 13
Undated letter of support from your teacher, Mr Robert Grant Stevens – exhibit 12
Submissions as to sentence
Overview of defence submissions
Overview of Prosecution submissions
The Children, Youth and Families Act 2005
The Sentencing Act
Sentencing provisions applicable to Charge 1 and Charge 2
Which sentencing regime is appropriate in the circumstances of this case?
Youth
Sentences to be imposed
Presentence declaration
Statement and Direction under Section 6AAA Sentencing Act
Ancillary orders
Forfeiture Order
HER HONOUR:
1DANIEL CASTILLO,[2] you are to be sentenced in respect of one charge of armed robbery contrary to s75A of the Crimes Act 1958 (Vic) (“the Crimes Act”) (Charge 1), one charge of causing serious injury intentionally in circumstances of gross violence contrary to s15A of the Crimes Act (Charge 2), and one charge of trafficking in a drug of dependence contrary to s71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (Charge 3).
[2]A pseudonym
2The maximum applicable penalties are:
· Armed robbery, 25 years’ imprisonment;
· Causing serious injury intentionally in circumstances of gross violence, 20 years’ imprisonment; and
· Trafficking in a drug of dependence, 15 years’ imprisonment.
3You pleaded guilty to all charges when arraigned before me on 2 March 2022 and you admitted your Criminal Record.
Circumstances of offending
4The offending relates to an incident that occurred on 31 May 2021 at a public dog park in West Melbourne. At the time of the offending, you were aged 17 years. The victim, Calvin Elliott,[3] was 16 years of age. You and the victim were strangers.
[3]A pseudonym
5On the day in question, via “Snapchat” you arranged to buy electronic cigarettes, known as ‘vapes’ from the victim. You arranged to meet the victim at the North Melbourne train station at 5.00pm so that you could buy 18 vapes from him for $300.
6At approximately 4.50pm, the victim, together with his friend Rueben Burke,[4] met you as arranged on Railway Place, a short distance from the entrance to the station. At first, you were friendly and shook hands with the victim and Burke. You asked them “where is a better place to go?” to carry out the transaction. Burke suggested a dog park near the station and the three of you walked there.
[4]A pseudonym
7At approximately 5.00pm, the three of you arrived at the dog park. You and the victim sat down on a park bench while Burke stood nearby. The victim took the vapes out of his backpack and placed them on the bench. You tried to scan the QR code in order to establish whether the vapes were genuine, but you were unable to do so. You told the victim that authenticity was not an issue as you trusted that the vapes were genuine. You then produced your wallet and counted out $300 in cash in front of the victim.
Charge 1 – armed robbery
8You put your wallet back into your bag. You then picked up the vapes from the bench and put them back into the victim’s bag and grabbed at the victim’s bag. You reached under the front of your shirt and produced a knife in a black sheath. The victim still had hold of his bag and, as soon as the knife was produced, he grabbed the bag and attempted to flee.
9Whilst giving chase to the victim, you unsheathed the knife. As the victim jumped over the park fence, you stabbed him in the back with the knife, causing him to trip and fall to the ground. As he fell to the ground, you kicked the victim to his upper body.
Charge 2 – intentionally cause serious injury in circumstances of gross violence
10The victim tried to get off the ground but was unable to run or move. You stood over the victim as he lay on his back facing you. You stabbed him multiple times to the chest, and slashed his fingers, scalp and neck. The victim was now incapacitated and let go of his bag. You took it.
11The victim heard ringing in his ears and felt like he was leaking from his stomach. He managed to stand and both he and Burke ran back towards the park. You remained standing on the footpath where the stabbing took place, still holding the knife in one hand and the victim’s backpack in the other. You yelled towards the pair as they were running away, with words to the effect of “what the fuck are you going to do?”
12The victim and Burke fled to a nearby apartment building where they asked passers-by for help. Burke called an ambulance as the victim sat clutching his chest. The victim was screaming “I have been stabbed, help, call the ambulance. I can’t breathe, I need to lie down”. All the while the victim was bleeding from his wound. His blood was pooling on the ground in front of him.
13While waiting for the ambulance to arrive, members of the public tried to assist the victim by calling Triple 0 and placing towels on his neck and chest. Once paramedics arrived on the scene, they took the victim to the Royal Melbourne Hospital.
14Meanwhile, you left the scene, jumping over a road barrier on Dynon Road, carrying the victim’s backpack. You stopped on the side of the road and removed the jumper you were wearing during the attack. You placed it into the victim’s backpack. You returned to the dog park and searched around the park bench where you had previously sat with the victim. You then left the scene.
15At approximately 8.00pm, you returned to your home, where you placed the victim’s backpack containing the vapes, together with your own bag and the knife, inside a fire extinguisher cabinet on Level 2 of the apartment building.
The victim’s injuries
16Initial examination by paramedics at the scene indicated the victim had lost a significant amount of blood and suffered significant haemorrhaging, with multiple large clots identified. He was suffering from inadequate ventilation and had no palpable radial pulse. The victim repeatedly told paramedics “I can’t breathe”.
17A secondary survey by paramedics identified injuries including:
(a) a 10-centimetre deep right neck laceration, with tendons visible within the laceration site;
(b) a stab wound to the right upper chest, 5 centimetres in length, with the lung on view;
(c) a superficial scalp laceration; and
(d) arterial bleeding, with approximately 500 to 1000 millilitres of external blood located at the scene and one very large clot identified inside of the victim’s jacket.
18The victim required immediate treatment by paramedics, including the provision of oxygen, a vented chest seal and tension pneumothorax decompression using a cannula prior to arriving at hospital.
19Upon presentation to the Emergency Department of the Royal Melbourne Hospital, the victim was in respiratory arrest, requiring intubation by anaesthetic doctors and insertion of a right intercostal catheter by thoracic doctors, involving draining 1.3 litres of blood. To assist with circulation, intra-osseous and intravenous access was obtained, including via cannula inserted into the victim’s bone marrow. A femoral arterial line with right internal jugular carotid venous catheter was inserted. The victim was suffering significant haemodynamic instability, which required a blood transfusion.
20Doctors identified a large 4 to 5-centimetre stab wound underneath the victim’s right nipple and determined to take the victim directly to the operating theatre to surgically address his ongoing blood loss from his chest and haemodynamic instability.
21In the operating theatre, the victim was attended by thoracic, plastic and colorectal surgeons, who made several operative findings and addressed the victim’s injuries surgically as follows:
(a) Severed right internal mammary artery. The stab wound was extended, and bleeding of the internal mammary artery was controlled. The haemothorax was evacuated;
(b) Laceration of the right middle lobe (lung). The lung laceration was sutured;
(c) Right middle finger laceration to skin only. Debrided, washed out and injuries repaired;
(d) Right ring finger laceration, with ulnar digital nerve and artery damage. Debrided, washed out and injuries repaired;
(e) Right anterolateral neck wound, 10-centimetres in length, with sternocleidomastoid muscle (SCM) on view and breach of deep investing cervical fascia over SCM. The external jugular was on view and non-injured, and the overlying cervical plexus also appeared uninjured. Wounds were explored, irrigated with saline and lacerations repaired;
(f) Right frontal scalp laceration, superficial through skin/subcutaneous tissue. Wound explored, irrigated with saline and laceration repaired;
(g) Right occipital scalp laceration, that was deep to periosteum over occiput. Wound explored, irrigated with saline and laceration repaired; and
(h) Right upper back laceration, superficial through skin/subcutaneous tissue. Wound explored, irrigated with saline and laceration repaired.
22Following surgical intervention, the victim was post-operatively admitted to the Intensive Care Unit. He required treatment for rhabdomyolysis (muscle injury which can result in renal damage) and was noted to have numbness in the lower earlobe and jaw on the right. The numbness was thought to be consistent with great auricular nerve distribution and likely to improve with time but with an element of ongoing deficit.
23The victim was ultimately discharged from hospital ten days later, on 9 June 2021.
24Subsequent analysis of the victim’s medical records by Dr Anne Smith of the Victorian Forensic Paediatric Medical Service confirmed that the penetrative injury to the victim’s chest was of such significance that he could have died from his injuries without medical intervention, and the totality of his injuries were both substantial and protracted, noting:
(a) the injury to his lungs required life-saving treatment by ambulance staff (namely, tension pneumothorax decompression) and in hospital (namely, intubation, intercostal drain insertion and blood transfusion);
(b) his injuries included wounds that required surgical repair and admission to the Intensive Care Unit; and
(c) his injuries require ongoing rehabilitation and are at risk of future complications.
Investigation
25In response to the Triple 0 calls, police arrived at the scene shortly after the paramedics. They attended the dog park and located and seized a number of items, including a piece of severed flesh, a black knife sheath and swabs of blood located on a footpath.
26Police obtained your mobile phone number from the victim’s phone.
27Subscriber details confirmed that the phone was registered to your mother at your home address.
28Police reviewed and seized CCTV footage from the area proximate to the offending, as well as footage from the vicinity of your home. The CCTV footage variously depicted:
(a) You leaving your home at approximately 4.00pm prior to the offending, wearing clothing matching the description provided by the victim and Burke, including a blue jumper with a Tommy Hilfiger brand logo across the chest;
(b) You, the victim and Burke in the vicinity of the North Melbourne train station immediately prior to the offending, walking towards the dog park. The victim was depicted carrying a dark coloured backpack and you were depicted wearing the same blue Tommy Hilfiger jumper;
(c) You, immediately after the offending at approximately 5.06pm, now in possession of the victim’s backpack. The footage also captured you removing the blue Tommy Hilfiger jumper that you wore during the offending and placing it into the victim’s bag. You were then captured wearing a striped blue and white top;
(d) You returning to the dog park at approximately 5.10pm, wearing the blue and white striped top and carrying the victim’s backpack, searching in the vicinity of the park bench, before again leaving the scene; and
(e) You returning to your apartment block at approximately 8.00pm after the offending, carrying the victim’s backpack. You are seen entering Level 2 in possession of the backpack, and returning to the lift a short time later without the backpack.
Execution of search warrant
29On 1 June 2021 at approximately 7.25pm, police executed a search warrant at your address. You were home and opened the front door at the request of police.
30During the execution of the search warrant, police located and seized several items including the blue Tommy Hilfiger jumper you wore during the offending, and the striped blue and white top you wore after the offending, as was depicted on the CCTV footage.
31Police conducted a search of Level 2 of the apartment block. Inside a fire extinguisher cabinet police located and seized the victim’s backpack, which was found to contain:
(a) Twenty-six vape cartridges;
(b) The knife you used in the offending, wrapped in a plastic bag. The knife matched the description provided by the victim and Burke, namely it was a large hunting style knife with a black handle, measuring 30 centimetres in length (with the blade measuring approximately 18 centimetres);
(c) The satchel bag you had during the offending and depicted on CCTV;
(d) A number of empty small, clear, zip-lock plastic bags; and
(e) Green vegetable matter distributed across numerous small, clear, zip-lock plastic bags.
Charge 3 – trafficking in a drug of dependence
32Subsequent analysis of the green vegetable matter confirmed it to be Cannabis L.
Arrest and interview
33You were taken to Melbourne West Police Station where you participated in a recorded interview with police, in the presence of your mother.
34
During the interview, you gave answers of “no comment” and were otherwise
non-responsive to questioning.
35You have spent some 18 days in pre-sentence detention before you were released on Youth Bail with strict conditions.
Procedural history
· 31 May 2021 You committed the offences.
· 1 June 2021 You were arrested and charged.
· 2 June 2021 Filing hearing. You were remanded in custody.
· 18 June 2021 Bail application was made. Bail granted with conditions.
· 26 August 2021 Committal mention. The matter was adjourned.
·23 September 2021 Committal mention. The matter resolved. You indicated your intention to plead guilty to the charges on the Indictment.
·21 October 2021 Summary jurisdiction application. Abandoned. You were committed to the County Court. The matter was listed for Plea hearing on 2 March 2022.
·2 March 2022 Plea hearing commenced. Plea hearing adjourned part-heard to 14 June 2022 to enable you to obtain further material and for a pre-sentence report to be made.
·14 June 2022 Plea hearing resumed. Adjourned to 14 July 2022 for sentence.
·24 June 2022 Mention – Application that sentence be adjourned until the end of the school year to enable you to complete Year 12. I accepted the request and set the matter down for further plea on 21 November 2022.
·21 November 2022 New counsel appears and applies for the matter to be transferred to the Children’s Court. Application refused. Hearing of plea further adjourned to 5 December 2022.
·5 December 2022 Further submissions on penalty. Adjourned to 13 December 2022 (today) for sentence.
Gravity of offending
36Intentionally causing serious injury in circumstances of gross violence is a particularly serious offence. So much is inherent in the maximum applicable penalty and the particulars you have accepted as constituting the elements of gross violence – namely, that you “planned in advance to have with … [you] and to use an offensive weapon and in fact used that offensive weapon to cause the serious injury; and, [c]ontinued to cause injury to … [the victim] after … [the victim] was incapacitated”.[5]
[5]See particulars alleged in Charge 2 on the Indictment
37In assessing the overall gravity of Charge 2, in addition to the pleaded circumstances of gross violence, I take into account:
(a) the offensive weapon you used to intentionally harm the victim was a large hunting style knife measuring 30 centimetres in length, with the blade measuring approximately 18 centimetres;
(b) the level of seriousness of the injuries caused, including the fact that you inflicted life-threatening injuries;
(c) the parts of the victim’s body where you stabbed him, including his chest, neck and scalp; and
(d) you attacked the victim in a public place.
Plea in mitigation
38In comprehensive plea submissions made by both your previous counsel, Mr Boden, and your current counsel, Mr Moodie, a number of factors were advanced to support the contention that you should be sentenced under the Children, Youth and Families Act 2005 (Vic) (“Children, Youth and Families Act”) and released on a Youth Attendance Order or detained in a Youth Justice Centre. In short, your counsel submitted that your youth, your pre-sentence detention, your early guilty plea, your personal circumstances, your remorse and the very positive steps you have made towards your rehabilitation, justify sentencing you to the dispositions to which I have referred.
39Mr Moodie also sought to have your case transferred to the Children’s Court, which application I refused on grounds, inter alia, that your offending the subject of Charge 2 is too serious and that the sentencing options under the Children, Youth and Families Act are inadequate to respond to it.
40I now turn to the matters advanced on your behalf in mitigation of penalty.
Guilty plea
41You indicated your intention to plead guilty to the charges at the committal stage when you abandoned your application to have the matter heard summarily in the Children’s Court. I accept that you indicated your intention to plead guilty at a very early stage.
42A guilty plea, no matter why or when entered, must almost always attract a sentencing discount.
43I accept that apart from instructing your solicitor that you are unable to recall whether you yelled out to the victim “What the fuck are you going to do,”[6] you have never really sought to test or challenge the Crown case, although it appears that you have denied certain aspects of the case when giving your account to forensic psychologist, Dr Tiffany Lewis. I shall refer to this a little later. That said, no witness has ever been required to give evidence against you. Importantly, the victim has been spared the ordeal of giving evidence upon your trial.
[6]Exhibit 1, paragraph 2
44In determining the weight to be given to your plea of guilty, I take into account the following factors:
(i) the timing of your plea;
(ii) you are entitled to a statutory discount because of your plea;
(iii) I accept that your plea is indicative of your remorse;
(iv) you have avoided the cost and inconvenience of a trial. You have spared witnesses the inconvenience, embarrassment and ordeal of giving evidence, both at committal and at trial; and
(v) there is enormous social utility involved in your guilty plea, particularly during the period of the COVID-19 pandemic,[7] and by taking this course, I accept that you have facilitated the course of justice.
[7]Worboyes v The Queen [2021] VSCA 169, particularly at paragraphs [34]-[39]
Relevance of COVID-19 over and above social utility
45In addition to the extra weight that your guilty plea must attract because of COVID‑19, I also take account of the potential impact that COVID-19 might have upon the service of a sentence of imprisonment, including:
(i)You may face a higher risk of contracting the disease whilst in custody;[8]
(ii)There is an increased likelihood of periods of quarantine or isolation; and
(iii)The pandemic may cause additional stress and concern for prisoners and their families, as it does for every member of the community.[9]
[8]R v Madex [2020] VSC 145 at paragraphs [51]-[52]
[9]Brown v The Queen [2020] VSCA 60 at paragraph [48]
46Although there is no direct evidence before me as to the effect of any of these factors upon you, I am prepared to assume that in the current climate they are matters to be taken into account as real possibilities in your case.[10]
[10]Wyka v The Queen [2020] VSCA 104
Remorse
47There is evidence of your remorse to be found in the oral testimony and in the written reports[11] of your youth justice worker, Ms Amy Taleb. There is other evidence of your remorse, to which I shall refer later. Although I am satisfied that you are remorseful to an extent, you denied responsibility for Charge 3 to Dr Lewis. I shall also refer to this a little later.
[11]Exhibits 3, 6 and 10
Personal circumstances
48Your personal circumstances were described by your previous counsel, Mr Boden, who conveyed instructions provided by your mother and you.[12]
[12]See Exhibit 1 - Outline of Submissions on behalf of the Accused dated 28 February 2021 (scil 2022), paragraphs 15-29
49You were born in Melbourne in 2004. You are the only child born to your parents. You grew up at your current home in North Melbourne.
50You attended a local primary school from prep until Grade 3. Your life was described as “unremarkable”[13] until you were approximately eight years of age. At that time, your parents separated, and your father left the family home. Apparently, after the initial separation of your parents, you were unaffected; however, you later developed feelings of abandonment and anger towards your father. Your mother has always done all she could to nurture and provide for you. Your grandmother moved in with your mother and you and has lived in your apartment ever since.
[13]Exhibit 1, paragraph 16
51You met your father once approximately four years ago. Your father did not explain why he left the family home and simply made small talk. This upset you, and you have not had any further contact with him. Nor do you intend to see your father again.
52Turning to your education, when you were in Year 3 at school, you were enrolled at a private school. You attended this private school from Grade 4 until Grade 8, at which time you moved to a private secondary school in Coburg North, where you remained until completing Year 12 this year.
53You have been an active participant in sport, playing basketball for a few years and later, playing soccer in your local area. You did not play any sport during COVID‑19 and instead, according to your mother, you played video games day and night. You always played “Grand Theft Auto” in the privacy of your room. During periods of lockdown during COVID-19, this was your sole activity apart from studying online.
54Your mother expressed concern about your apparent addiction to video games. She reported that you were “just killing everyone in the game and that she was worried about this”.[14] Your mother also stated that she even asked you to see a doctor about your apparent addiction, but you did not listen to her.
[14]Exhibit 1, paragraph 28
Circumstances leading to your offending
55You committed these offences just after one of the lockdowns last year.
56Your counsel described your living environment and surroundings as “particularly challenging”.[15] You instructed that many boys in your area make money from robberies and from other criminal activity. You told your counsel that you wanted to earn your own money and did not want to rely on your mother, who works extremely hard to provide you with whatever you want. Your mother confirmed that you have access to her bank account and can use it to buy whatever you wish.
[15]Exhibit 1, paragraph 27
57You told your counsel that a few days prior to the offending, you had met up with someone who owed you a small amount of money. You wanted to ask for the money to be returned but felt that the meeting did not go as you had hoped. You felt frustrated that you could not stand up for yourself and this played on your mind for a few days. When you met with the victim, you “wanted to make sure that … [you remained] in control of the situation”.[16]
[16]Exhibit 1, paragraph 29
Criminal history
58On 30 January 2020, you appeared in the Children’s Court at Melbourne on three charges of armed robbery, one charge of false imprisonment, one charge of theft and two charges of obtaining property by deception. Without conviction, the matters were adjourned to 29 January 2021. You were released upon entering a Good Behaviour Bond in the amount of $100.
59You committed the current offences approximately four months after completing the period of good behaviour required under the bond.
60The circumstances of your prior offending are set out in Exhibit D.[17] There is a remarkable resemblance between your current offending and prior offending. Your prior offending spanned three separate incidents.
[17]The quotes cited in these following paragraphs are found in exhibit D
61
The first incident, which occurred at 8.00pm on 6 September 2019, gave rise to two charges. On that occasion, the victim was walking along the road when he was approached by you and your two co-offenders coming from the opposite direction. One of your co-offenders stated to the victim: “What are you doing here? You shouldn’t be here. Show us your phone.” All three of you surrounded the victim and began to push and punch him until he fell to the ground. When he did so, all three of you kicked him to the head and body. One of your co-offenders made multiple demands for the victim’s telephone until he complied. That
co-offender then demanded that the victim unlock the mobile phone. In fear, the victim fled on foot but was chased and tackled to the ground by another one of your co-offenders. Whilst on the ground, the three of you began kicking and punching the victim as he screamed for help. One of your number said, “we’ve got a knife, if you don’t stop screaming we’ll stab you” and “if you don’t stop screaming we’ll go to your house and damage your car”. When the victim stopped screaming for help, the three of you stopped assaulting him and he managed to get back up onto his feet. One of your co-offenders gave the victim his mobile phone, demanding that he unlock it. In fear, the victim complied and handed the mobile phone back to your co-accused. You and your co-offenders then began a conversation in a foreign language and as you did so, the victim fled.
62The second incident, which occurred at approximately 8.30pm two days later, on 8 September 2019, gave rise to three charges. On this occasion, the victim was a food delivery driver. He parked his vehicle and got out. He saw you approaching him from a secluded area of parkland. You placed a sharp object against the victim’s back, stating that you had a knife. You demanded that the victim give you his mobile phone. You presented your knife to the victim, who described it as a kitchen knife with a 20-centimetre-long blade. The victim had an iPhone which he offered to you. You then demanded that the victim log onto his Commonwealth Bank App and show you his account balance. The victim complied. You then demanded that the victim log into his Apple iPhone account and reset the mobile phone. After this, you demanded that the victim give you the grey-coloured Kmart zip-up hooded jacket that he was wearing. On receiving the jacket, you tied it around your face in an attempt to disguise your identity. You then patted down the victim’s pockets and located his car keys. Then you demanded that the victim accompany you to his car. Complying in fear, the victim returned to his parked car. You opened the vehicle and found the victim’s wallet in the centre console. You went through the victim’s wallet and found two Indian drivers licenses and one college identity card in the victim’s name. You returned the victim’s drivers licence and identity card before finding and stealing a Commonwealth Bank card in the victim’s name. You placed the cards in your pocket, presented the knife towards the victim and demanded that he walk back towards a nearby reserve. As the victim walked towards the reserve, you put the knife in the waistband of your pants and proceeded to film the victim on the mobile phone. The victim fled when you were distracted.
63
The third incident occurred eight days after the second incident. The third incident gave rise to one charge of armed robbery. You committed this offence with a
co-offender. At approximately 7.00pm on 16 September 2019, the victim, who was driving on his way to indoor cricket, stopped to warm up at a parkland in a reserve. The victim parked his car and walked over to the reserve where he ran laps around the park, stopping to stretch at the rear entrance gates to an apartment complex. He had with him an Apple iPhone X valued at $1,200 which he was holding when he saw you and your co-offender approach from the bike path. You and your
co-offender approached the victim and demanded: “Give me your money and phone.” The victim replied: “I’ll give it to you everything, just let me go to my car and get everything there.” You then pulled the knife from your waistband and presented it to the victim, saying, “just give it to me now or I’ll stab you”. The victim described your knife as a silver kitchen knife with a 25-centimetre blade. In fear, the victim turned and attempted to run away; however, he tripped over his own feet and fell, grazing his arm and leg on the concrete path. Whilst on the ground, you began kicking and punching the victim in the mouth, stomach and back. The victim was wearing a gold necklace around his neck. Your co-accused grabbed at the necklace. During the struggle, the victim was dragged across the ground and his jumper and t-shirt were ripped off as he attempted to protect his necklace. Whilst on the ground, you grabbed the victim’s mobile phone and began demanding the passcode whilst your co-offender held the victim down. You and the co-offender began talking in a foreign language before you put the knife and the victim’s phone in your pockets. You and the co-offender grabbed the victim forcefully by his arms and began escorting him towards his vehicle. As the victim was being forced to walk along the path towards his vehicle, he saw a witness sitting on a park bench nearby. He ran towards the witness seeking help. With that, you and your co-offender fled the scene.
64When arrested and interviewed on 4 October 2019 in relation to all three incidents, you admitted your involvement in the offences. A number of items that you had stolen from the various victims were recovered, although some items have never been recovered.
65In relation to the first incident, you told police that this was the first time you had been shown by your co-offenders how to commit an armed robbery. You stated that one of the co-offenders brought the knife and had arranged to meet the victim via an app. As to the second incident, you stated that you organised to meet the victim using the same app. You brought the kitchen knife from your home. You told police that you filmed the victim because you thought “it was funny”. In relation to the final incident, you told police that you had organised to meet the victim using the same app, pretending to be a female. You admitted that you brought the kitchen knife and met the co-offender at the park. You told police that you sold the victim’s phone on Gumtree for $100. Police described you as “remorseful”.
66Your counsel quite frankly conceded that the dispositions given in the Children’s Court in relation to these offences were “very merciful and lenient”.[18]
[18]Exhibit 1, paragraph 24
67I have already observed the similarity between your prior offences and the current charges. It is disturbing that you lured your victims to public places where, either alone or in company, you robbed them whilst using a knife to enforce your demands. You either used or threatened to use violence against your victims whilst they were defenceless and/or incapacitated.
68It is evident that your crimes are escalating in severity and that despite the apparent remorse you expressed to police on the previous occasion and being given the chance of a merciful and lenient disposition in the Children’s Court, it has neither led to your reformation nor deterred you from offending in like manner.
69I now turn to the evidence called and tendered on your behalf.
Oral evidence and written reports of Ms Amy Taleb, Case Manager, Youth Justice
70I have mentioned that following your arrest, you were remanded and spent some 18 days by way of presentence detention before you were released on Youth Justice Intensive Bail. The conditions of your bail were strict, requiring your participation in various programs. You remained under supervision for the entire period of your bail.
71I have received reports written by, and heard oral evidence from, Ms Amy Taleb, your case manager at Youth Justice, Sunshine.
72In her oral evidence given on 21 November 2022, Ms Taleb testified that in the 17 months whilst you have been on bail, you have complied with all of the conditions. You have attended all appointments and shown remarkable commitment and dedication towards your rehabilitation.
73Ms Taleb stated that you enjoy the love and support of your mother, who pays for your private tutoring classes and does all she can to promote your welfare.
74You reported to Ms Taleb that you wish to pursue your education, hoping to attend university next year. You have undertaken alcohol and drug counselling and have had intensive support under a mentoring program. You have also had the benefit of a cultural support worker.
75According to Ms Taleb, you are gaining some insight into your offending behaviour. You have pointed to the breakdown of the relationship with your father, the negative impact that peers have had on you, and your use of drugs as contributing factors.
76Ms Taleb testified that whilst on bail, alcohol and drugs have not been a problem for you. She also stated that you displayed victim empathy when you reported to her that you could not begin to imagine how anyone would feel in the victim’s position. You said that you stay up at night thinking about the victim.
77As to your prospects of rehabilitation, Ms Taleb testified that you have done everything that you were required to do under your conditions of bail and that you have stayed out of further trouble. Under the intensive bail conditions, you have attended over 100 appointments with Ms Taleb or with other workers. Ms Taleb stated that of all the youths with whom she has worked, you are the “best compliance wise”.
78Finally, Ms Taleb stated that she assessed you as suitable for a Youth Attendance Order.
Supervised Bail Progress Report – exhibit 3
79
Mr Boden tendered your Supervised Bail Progress Report dated 28 February 2022.[19] The report was compiled by Ms Taleb. Ms Taleb reported a satisfactory engagement with Intensive Bail where you attended 34 of 36 scheduled
twice-weekly supervision appointments.[20]
[19]Exhibit 3
[20]Exhibit 3, page 2
80As part of your bail conditions, you completed the pre-sentence components of the Knife Crime Intervention Program which focussed on challenging you with difficult scenario-based exercises. The program provided you with emotional regulation strategies and assisted you in identifying your strengths and weaknesses.
81Ms Taleb reported:
“… [Daniel] has demonstrated a level of maturity in his approach when confronted with a difference of opinion. In one circumstance, [Daniel] was able to provide a rational for his perspective, as well as a sense of understanding for his case manager[’]s point of view.”[21]
[21]Exhibit 3, page 2
82You disclosed to Ms Taleb previous substance abuse, namely cannabis and alcohol consumption. According to Ms Taleb, you have abstained from any substance abuse since being granted bail. In any event, you were found suitable to participate in the Anglicare Victoria Alcohol and Other Drug Program.[22]
[22]Exhibit 3, page 3
Pre-Sentence Report, Department of Justice and Community Safety, dated 25 May 2022 – exhibit 6
83In this report, Ms Taleb confirmed your positive participation in all programs that you were directed to attend. She was unaware of any mental health concerns raised by you or your family, although she had not yet received a report from Dr Tiffany Lewis.
84Ms Taleb did not consider that substance abuse or alcohol were linked to your offending on this occasion, although immediately prior to your remand, you had been using cannabis regularly. You had also previously experimented using a variety of drugs, all of which you have since given up.
85Ms Taleb reported:
“Whilst subject to the Youth Justice Intensive Bail Program, [Daniel] has engaged in 90 of 96 scheduled Youth Justice supervision appointments. Three of these absences were without reasonable excuse, one was rescheduled, and the remaining two were with valid reason. These have been a blend of both office-based and virtual appointments. [Daniel] has consistently presented as polite and open-minded during supervision appointments. [Daniel] actively engaged in the Knife Crime Intervention Program. He participated meaningfully and improved over time on his openness whilst completing this program.
To fulfil the psychosocial program element of his Intensive Bail, [Daniel] completed a psychosocial program with Dr Tiffany Lewis from Keystone Psychology. Dr Lewis stated that at times [Daniel] appeared to have been guarded and scared to show vulnerability. However, she advised [Daniel] engaged well during these sessions, demonstrating good insight and reporting significant change in the anti-social peers that were [a] negative influence in his previous lifestyle.”[23]
[23]Exhibit 6 page 5
86Ms Taleb found that you had reflected upon your offending, saying that:
“… [Daniel] explained he thinks about the offending regularly, and the
life-long impacts this had on the victim, himself, his mother and his future, particularly his prospects for higher education following his VCE. [Daniel] has empathised with the impacts on the victim on multiple occasions, acknowledging this would have been a traumatising event that he would not wish upon anyone.”
87Ms Taleb also found that you had “significant insight” into the factors contributing to your offending, citing your estrangement from your father, feelings of abandonment and mental health issues, and “fall outs with friends”.[24] In Ms Taleb’s assessment, you have “taken accountability for … [your] actions”, engaging in all interventions aimed at reducing your risk of re-offending, and have spent your time on intensive bail focussing on your future goals and aspirations.[25]
[24]Exhibit 6, page 2
[25]Exhibit 6, page 2
88Ms Taleb found you to be “genuine in … [your] contributions, reflections and insight into the impact … [your] offending behaviours had on the victim,” and felt you “consistently took a sensitive and respectful approach when discussing these impacts”.[26]
[26]Exhibit 6, page 3
89Ms Taleb offered the following assessment:
“As requested by the Court, Youth Justice has assessed [Daniel]’s suitability to be sentenced to a Youth Justice Centre Order (YJCO) against the suitability criteria specified by the Sentencing Act 1991. The Act specifies that Youth Justice must consider the following criteria:
(a)that there are reasonable prospects for the rehabilitation of the young offender or;
(b)the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
Youth Justice has assessed that [Daniel] meets some of the suitability criteria specified in the Act. Specifically, [Daniel]’s ‘prospects for rehabilitation’ are assessed as more than reasonable; informed by his appropriate conduct on Intensive Bail, his positive attitude and orientation toward his future desistence from offending and his demonstrated motivation toward his education. While [Daniel] is not assessed as ‘particularly immature’, he is assessed as highly likely to be subjected to undesirable influences in an adult prison.
Should the Court consider that a non-custodial sentence is appropriate in this case, Youth Justice has also assessed [Daniel] as suitable to be sentenced to a Youth Attendance Order (YAO) as a direct alternative to a YJCO. This order is considered a suitable alternative to custody as it would provide for continuing intensive supervision of [Daniel] while allowing him to reside with his family and avoiding interruption of his schooling. A YAO would penalise [Daniel] by requiring his participation in community service and through the recording of a mandatory conviction.
While [Daniel] is also assessed as suitable to be sentenced to a Youth Supervision Order, Youth Justice is conscious that this order is not intended as a specific alternative to custody and does not include a requirement for the Court to record a conviction. Furthermore, Youth Justice assess the nature of the current charges attract a higher tariff Order.
In consideration of [Daniel]’s good conduct on Intensive Bail, his period of desistance, the gravity of the offending before the Court and his prospects for rehabilitation, Youth Justice respectfully recommends that the Court sentences [Daniel Castillo] to a YAO in order to provide [Daniel] with the opportunity to prevent disruption to future education prospects and other rehabilitative opportunities in the community.
Should the court sentence [Daniel] to a community-based order, Youth Justice further respectfully recommends that the Court attach a condition [to] the order that [Daniel] ‘attends and participates in Youth Offending Programs and other treatment programs as directed by Youth Justice’.
RECOMMENDATION
If Your Honour is minded to issue a custodial disposition as the outcome of sentencing for these matters, Youth Justice assess that [Daniel Castillo] is suitable for a Youth Justice Centre Order.
In consideration of [Daniel]’s good conduct on Intensive Bail, his period of desistance, the gravity of the offending before the Court and his prospects for rehabilitation, Youth Justice respectfully recommends that the Court sentences [Daniel Castillo] to a Youth Attendance Order in order to provide [Daniel] with the opportunity to prevent disruption to future education prospects and other rehabilitative opportunities in the community. This report is respectfully submitted for the Court’s consideration.”[27]
Updated pre-sentence report, Department of Justice and Community Safety, dated 14 November 2022– exhibit 10
[27]Exhibit 6, pages 5-6
90Most of what was contained in the earlier report, exhibit 6, was copied into this report. Ms Taleb again assessed you as suitable for a Youth Attendance Order and a Youth Justice Centre Order.
Anglicare Victoria – Alcohol and Other Drug Program – exhibit 4
91A letter from Ms Danlie Wu, Youth Alcohol and Other Drug Program support worker, of Anglicare Victoria, dated 12 May 2022 was tendered on your behalf.[28] Ms Wu detailed your voluntary participation in the Youth Alcohol and Other Drug Program with a focus on the substance benzodiazepines.[29] You completed a standard episode of Alcohol and Other Drug counselling on 11 May 2022, which consisted of four counselling sessions via telephone. Ms Wu reported:
“Mr [Castillo] engaged well in our sessions. In support of his goal to maintain substance abstinence, Mr [Castillo] received psychoeducation in harm reduction, explored his past substance use history, identified his triggers and implemented relapse prevention. He reflected on the impact of his substance use including his offending and family relationships, and explored positive activities for managing emotions and stresses. Mr [Castillo] demonstrated great insight, motivation, and self-efficacy to succeed in the community.”[30]
Engagement with Jesuit Social Services
[28]Exhibit 4
[29]Exhibit 4
[30]Ibid
Letter from Jesuit Social Services dated 23 February 2022 – exhibit 2
92On 14 June 2022, Mr Boden tendered a letter from Mr Mayom Athiu, Intensive Cultural Support Worker at Jesuit Social Services.[31] In his letter, Mr Athiu outlined your participation in the Youth Justice Community Support Service (YJCSS) After Hours program which formed part of the requirements of your intensive bail. The program, in partnership with Youth Justice, aims to reduce the rate, severity and frequency of offending behaviour, to enable effective transition of young people from intensive tertiary services to their community, and to develop their capacity for economic participation and engagement in education, training and employment.[32]
[31]Exhibit 2
[32]Exhibit 2, page 1
93As part of the YJCSS program, you attended Jesuit Social Services twice weekly, once during the week and once on the weekend. During the program, you engaged in a number of activities supported by Mr Yahye Fitaax including ten-pin bowling, basketball in the local community, minigolf and driving range, support with schoolwork and assistance in preparing you for your learner permit exam. Participation in these activities with Mr Fitaax provided opportunities for mentoring discussions.[33]
[33]Exhibit 2
94Your engagement with Mr Athiu commenced on 26 November 2021 when you attended and participated in weekly scheduling activities and outreach programs. In his report, Mr Athiu reported:
“… During engagements, [Daniel] presents with a calm, approachable and respectful demeanour. When communicating with the writer he is always polite and displays great understanding and maturity.
[Daniel] has shown the ability to participate in difficult conversations which have shown his vulnerability and he has been able to confide with the writer on topics around his upbringing and family dynamics.
[Daniel] has displayed the ability to set positive goals and shown the maturity to identify the necessary steps to achieving set goals. One example of this is displayed in the goal he set around completing his education and the hiring of a tutor to achieve this goal.”[34]
[34]Exhibit 2, pages 1-2
95Mr Athiu observed that you have made a number of positive changes, particularly with regard to your assumption of greater family responsibilities.[35]
[35]Exhibit 2, page 2
Psychological report of Dr Tiffany Lewis dated 6 June 2022 – exhibit 5
96Dr Tiffany Lewis, forensic psychologist, was your treating psychologist from July 2021 to October 2021.
97Your background and education were summarised in the report and is consistent with the information to which I have already referred.
98The history you gave to Dr Lewis about the circumstances of offending do not tally completely with the instructions given upon your plea, and is inconsistent with your guilty plea to Charge 3. You denied the drug trafficking charge.[36]
[36]Exhibit 5, page 13
99In relation to Charge 2, Dr Lewis reported:
“… [Daniel] denied any violent intent. He reported that he took a knife with him as an ‘insurance policy’ as he believed the victim would have a weapon, though he denied a belief that he would need to use a weapon. [Daniel] reported that he intended to use the knife to scare the victim into giving him the vapes, explaining he felt it would ‘make my job easier’. When directly asked, [Daniel] reported that he had carried a knife on him in the past including during his previous offending. He explained that there had been times in his life that he had wished he had had a knife, indicating he felt a weapon was necessary to provide protection and safety.”[37]
[37]Exhibit 5, pages 11-12
100Later in her report, Dr Lewis added:
“It appeared unlikely that [Daniel] attended the meeting with the victim intending to harm him, despite carrying a weapon. However, when the victim fought back against [Daniel] taking the vapes, it likely triggered feelings of anger and resentment in [Daniel] and he reacted violently. [Daniel]’s violence did not appear to be instrumental, in so much as he engaged in violence as a means of obtaining the power and status he sought. His offending on this occasion appeared to be impulsive, acting to preserve or bolster his view of himself as powerful and to ensure that others did not see him as weak. [Daniel] reported that his initial motivation for buying the vapes was to on sell them and make his ‘own’ money.”[38]
[38]Exhibit 5, page 15
101You have pleaded guilty to Charge 2, accepting that one of the circumstances of gross violence is that you planned to have with you and to use an offensive weapon (the knife) and in fact used that offensive weapon to cause the serious injury.
102Although the Court of Appeal has not finally determined the limits as to what is meant by the phrase “planned in advance”, in Sarjeant v The Queen; Garratt v The Queen[39] the Court referred to the Explanatory Memorandum and the Second Reading Speech of the Crimes Amendment (Gross Violence Offences) Bill 2012:
[39][2020] VSCA 45 (“Sarjeant”)
“51.Reliance was placed on a statement in the Explanatory Memorandum for the 2012 amending bill, that the concept of ‘planned in advance’ was to be distinguished from planning that occurred ‘moments prior to the commission of the offence’. Reference was also made to the Second Reading Speech for the bill, which contained the following passages:
‘The idea of planning in advance is intended to capture premeditation or preplanning, rather than intent formulated only moments in advance of the offending behaviour. It is not intended to capture someone who is pushed in a pub and then turns around and decides to king-hit the other person. That person can be charged with intentionally or recklessly causing serious injury. However, it is intended that planning in advance will capture, for example, someone who is pushed in a nightclub, goes home and decides to retaliate by attacking the other person, and then returns to the nightclub and causes serious injury.
…
The fourth circumstance targets offenders who have planned in advance to have with him or her and use a weapon, and then in fact used that weapon to cause serious injury to a victim. As I have mentioned, the idea of planning in advance is intended to capture premeditation or preplanning, not near-spontaneous action.’[40]
52.As this Court remarked in Farha v The Queen,[41] it is not immediately clear how the phrase ‘planned in advance’ differs in meaning from the simple word ‘planned’. As their Honours pointed out, it is of the very nature of planning that it precedes — that is, takes place in advance of — the action which is thus planned. Conversely, we would have thought there was little risk of a jury being persuaded that a ‘spontaneous or near-spontaneous’ action was either ‘planned in advance’ or ‘planned’.
53.Here, as in Farha, it is unnecessary to explore the limits of the definition. … .”[42]
[40]Second Reading Speech [Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5548 (Robert Clark, Attorney-General) (“Second Reading Speech”)] (emphasis added)
[41] [2018] VSCA 310 at paragraph [51] (“Farha”)
[42]Farha (ibid) at paragraphs [51]-[53]
103It is clear that Charge 1 was premeditated, in that you planned to commit the armed robbery. You tricked the victim – a stranger – into meeting you for a commercial transaction that you never intended to honour. You brought the knife to the meeting, intending to use it in order to commit the armed robbery, either to use the knife to apply force to the victim, or to use the knife to put the victim in fear that he would then and there be subject to the use of force.[43]
[43]The Queen v Reid (Unreported) VSCA, No 219/1997, 7 April 1998; The Queen v Kolb & Adams (Unreported) VSCA, 14 December 1979
104For the purposes of Charge 2, you have admitted to the element of planning in advance to have the knife with you which in fact you used to cause the serious injury, one of the circumstances of gross violence.[44] In discussion with counsel, I raised whether, in light of the Prosecution’s acceptance that your commission of Charge 2 was a spontaneous reaction to the victim’s resistance to your attempts to seize his backpack, the circumstance of gross violence of “planned in advance” could be established. Both the Prosecutor and your counsel agreed that this element has been satisfied, notwithstanding that you did not “plan in advance” to bring the knife with you to intentionally inflict serious injury on the victim.
[44]Section 15A(2)(d) Crimes Act
105Ms Fargher referred to a passage from the Second Reading Speech that was omitted from the passages cited in Sarjeant:[45]
“The offender’s plan to have and use a weapon does not need to involve planning to cause a serious injury. For example, it may be that an offender has planned to have and use a weapon for self-defence purposes. What is important is that the offender planned to have and use a weapon, and then used a weapon to cause a serious injury.”[46]
[45]Supra
[46]Second Reading Speech, 5552
106Ms Fargher submitted that in this speech, the Attorney-General made it clear that if a person planned in advance to have in their possession an offensive weapon and intended to use it for a lawful purpose, such as for self-defence, but then spontaneously used that weapon to unlawfully inflict serious injury, that would be sufficient to establish this circumstance of gross violence. To put it another way, she submits that the law does not require the prosecution to prove that the “planning in advance” relates to the possession of the weapon for an illicit purpose, much less for the specific purpose of causing injury. It is unnecessary for me to decide this point, since there is no suggestion that you planned to have the knife in your possession for any lawful purpose. To the contrary, you planned in advance to have the knife with you for an unlawful purpose – to use in the commission of a crime involving violence. You intended to use the knife for the purposes of committing the armed robbery, and which you did use for that crime. When the victim struggled to keep hold of his backpack, I accept that you reacted spontaneously, using the knife to intentionally inflict serious injury.
107Concerningly, Dr Lewis reported:
“[Daniel] reported that money was a strong motivator for his offending. He explained that despite having access to money from his family, he wanted his ‘own money’. He reported that crime was the only way he knew how to obtain money. [Daniel] reflected that money equalled power. He explained that he had not had a lot of money in his life and wanted more in order to be ‘in a position to make decisions’ and in order to give him some control.”[47]
[47]Exhibit 5, page 13
108Dr Lewis administered a Personality Assessment Inventory – Adolescent (PAI‑A). She noted that although generally you attended well to the questions, you responded “with some inconsistency across questions, which suggested that the results should be interpreted with caution”.[48]
[48]Exhibit 5, page 13
109Dr Lewis considered that the scores were elevated on clinical presentations or personality traits. Your scores were elevated on the Paranoia scale, particularly in the subscale of Hypervigilance, although she considered that this trait may be somewhat reality based.[49]
[49]Exhibit 5, page 13
110Dr Lewis thought you showed signs of significant thinking and concentration problems, as well as peculiarities of thinking. She stated:
“… High scores on this trait reiterate [Daniel]’s likelihood of being socially isolated, with limited social skills and difficulty interpreting interpersonal behaviour. High scores on this subscale also suggest that [Daniel]’s judgement is likely to be poor. [Daniel] does not currently display active psychotic symptoms but does show evidence of entertaining some ideas that others may find unusual.
According to the PAI-A, [Daniel]’s responses suggested mild depressive symptoms, problematic drug and alcohol use, significant concerns regarding his physical functioning and maladaptive behaviour aimed at decreasing anxiety. [Daniel] described his anger as well controlled without difficulty, which is inconsistent with his interview responses. He reported being open to therapy, acknowledged that there were problems in his life that needed help and was positive about the possibility of personal change.”[50]
[50]Exhibit 5, page 14
111Dr Lewis offered no formal diagnosis of any psychological condition or behavioural disturbance or personality disorder that contributed to your offending, although she opined that, as at assessment, you were experiencing symptoms of anxiety and depression, likely associated with the pending court case.[51]
[51]Exhibit 5, page 9
112Dr Lewis considered that these symptoms would likely be exacerbated in a custodial setting.[52] In this regard, Dr Lewis opined:
“It is highly likely that a period of incarceration at an adult prison would exacerbate [Daniel]’s mental health concerns. He reported significant difficulty coping while in custody and experienced ongoing anxiety and depressive symptoms upon his release. [Daniel]’s paranoia would like[ly] increase significantly in a custodial setting. It appears likely his hypervigilance would escalate more significantly in an adult setting as opposed to a juvenile setting due to the increased risk associated with an adult prison. Further it appears likely that in a juvenile setting [Daniel]’s experience may be more weighted toward rehabilitation, rather than deterrence. This would likely be a more effective approach with [Daniel] considering his difficulty with interpersonal relationships and his views that he may be being treated unfairly. [Daniel]’s mental health concerns make it likely that his time spent in a custodial setting would be more difficult than that of someone who did not experience mental health concerns.”[53]
[52]Exhibit 5, page 13
[53]Exhibit 5, page 13
Academic progress
113At your counsel’s request, on 24 June 2022, I adjourned the further hearing of the case to enable you to complete Year 12. I have received reports from your school regarding your commitment to your studies and your progress.
Secondary School Semester 1 Report 2022 – exhibit 8
114Your academic report for Semester 1 at your secondary school shows that you undertook six subjects: Religious Studies, English, Further Mathematics, Mathematical Methods, Chemistry and Health and Human Development.[54] Your grade performances in these subjects vary from average to below average.
[54]Exhibit 8, page 1
115Your engagement in English was sporadic. You failed to meet your attendance requirements and were warned that you needed to make an effort to attend or otherwise risked failing the unit.[55] On the other hand, you did well in mathematics, receiving praise from your teacher, who commended you as an outstanding student in every respect, a pleasure to teach, and exceptionally polite and courteous in all your dealings with him and other students.[56]
[55]Exhibit 8, page 1
[56]Exhibit 8, page 4
116Your engagement in Chemistry demonstrated minor improvement in your classroom behaviour.[57]
[57]Exhibit 8, page 6
117Your engagement in Health and Human Development was satisfactory, with room for improvement.[58]
[58]Exhibit 8, page 7
Secondary School Semester 3 Report 2022 – exhibit 9
118In all respects your grades were consistent with those of the earlier semester. You attended classes. It does not appear that any behavioural problems were noted.
Australian Tertiary Admission Rank – exhibit 13
119Today I received your Year 12 Australian Tertiary Admission Rank (“ATAR”).[59] Your ATAR score was 44.10.
Undated letter of support from your teacher, Mr Robert Grant Stevens[60] – exhibit 12
[59]Exhibit 13
[60]A pseudonym
120Your mathematics teacher, Mr Stevens, described you as:
“… a polite and reliable young man. In the subject that I teach he has consistently achieved well, and cares about his achievement. He is well respected by his peers and teachers as his manners are stellar.
…
He is definitely a man of integrity, and not a follower but a leader. He cares about his public image and maintains [a] positive frame. In doing so he has shown in my class that he will refuse to bully other students rather tried to befriend everyone in the class, including the students who were socially outcasted. This is one of the many qualities that I saw in him, that built the deep respect I have for him.”
[sic]
Submissions as to sentence
Overview of defence submissions
121Your counsel stressed your youth, your excellent progress you have made insofar as your rehabilitation is concerned, and your early acceptance of responsibility for your offending. He submitted that you should be sentenced under the Children, Youth and Families Act. In the alternative, he submitted that I should impose a Youth Justice Centre Order under the Sentencing Act 1991 (“Sentencing Act”).
Overview of Prosecution submissions
122On behalf of the Prosecution, Ms Fargher submitted that the only appropriate response to your offending is to sentence you to a term of confinement in accordance with the provisions of the Sentencing Act.
123Before elaborating on the parties’ submissions, it is necessary to refer to the statutory framework around the sentencing regimes applicable to young offenders.
The Children, Youth and Families Act 2005
124Your counsel submitted that I should sentence you under the Children, Youth and Families Act, contending that there is sufficient scope to sentence you to an appropriate disposition.[61] In this regard, he submitted that “all sentencing options would be open”, meaning that it would be open to order that you be released on a Youth Attendance Order or to an aggregate term under a Youth Justice Centre Order, the Court being compelled to consider your rehabilitation as a primary sentencing objective[62] and to disregard principles of general deterrence and other sentencing purposes set out in the Sentencing Act.[63]
[61]Exhibit 7, paragraph 14
[62]Exhibit 7, paragraph 19
[63]Exhibit 7, paragraph 29
125If sentencing you under the Children, Youth and Families Act, and assuming for the sake of discussion that summary jurisdiction would have been granted in respect of Charge 2,[64] in sentencing you, the Court would be bound by Sections 360 to 362 of that Act, which provide relevantly:
[64]See s356(3) Children, Youth and Families Act 2005
“ 360 Sentences
(1)If the Court finds a child guilty of an offence, whether indictable or summary, the Court may—
(a) without conviction, dismiss the charge; or
(b)without conviction, dismiss the charge and order the giving of an undertaking under section 363; or
(c)without conviction, dismiss the charge and order the giving of an accountable undertaking under section 365; or
(d)without conviction, place the child on a good behaviour bond under section 367; or
(e)with or without conviction, impose a fine under section 373; or
(f)with or without conviction, place the child on probation under section 380; or
(g)with or without conviction, release the child on a youth supervision order under section 387; or
(h)convict the child and make a youth attendance order under section 397; or
(ha)convict the child and make a youth control order under section 409B; or
…
(j)convict the child and order that the child be detained in a youth justice centre under section 412.
(2)If the Court is of the opinion that sentencing should be deferred, the Court may defer sentencing the child in accordance with section 414.
(3)In addition to any other sentence, the Court may order the child—
(a)to make restitution or pay compensation in accordance with section 417; or
(b) to pay costs.
(4)The Court may not make an order referred to in subsection (3) a special condition of another sentence.
(5)If under any Act other than this Act a court is authorised on a conviction for an offence—
(a)to make an order with respect to any property or thing the subject of or in any way connected with the offence; or
(b)to impose any disqualification or like disability on the person convicted—
then the Court may, if it finds a child guilty of that offence, make any such order or impose any such disqualification or disability despite the child not being convicted of the offence.
361 Sentencing hierarchy
The Court must not impose a sentence referred to in any of the paragraphs of section 360(1) unless it is satisfied that it is not appropriate to impose a sentence referred to in any preceding paragraph of that section.
362 Matters to be taken into account
(1)In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to—
(a)the need to strengthen and preserve the relationship between the child and the child's family; and
(b)the desirability of allowing the child to live at home; and
(c)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(d)the need to minimise the stigma to the child resulting from a court determination; and
(e)the suitability of the sentence to the child; and
(f)if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and
(g)the need to protect the community, or any person, from the violent or other wrongful acts of the child—
(i)in all cases where the sentence is for a Category A serious youth offence or a Category B serious youth offence; or
(ii) in any other case—if it is appropriate to do so; and
(h)if appropriate, the need to deter the child from committing offences in remand centres, youth residential centres or youth justice centres.”
126Sections 412 and 413 provide for Youth Justice Centre Orders:
“412 Court may make youth justice centre order
(1) If—
(a)the Court finds a child guilty of an offence, whether indictable or summary; and
(b)on the day of sentencing, the child is aged 15 years or more but under 21 years; and
(c)the Court is satisfied that no other sentence is appropriate; and
(d)the offence is one punishable by imprisonment (other than for default in payment of a fine); and
(e)it has received and considered a pre-sentence report; and
(f)if the child has participated in a group conference under section 415, the Court has received and considered the group conference report prepared under section 415(8)—
the Court may convict the child and order that the child be detained in a youth justice centre.
…
413 Youth justice centre orders
(1)Subject to this section, the provisions of Subdivision (4) of Division 2 of Part 3 of the Sentencing Act 1991 (except sections 32 and 33) apply to an order made by the Criminal Division detaining a child in a youth justice centre as if a reference to the Magistrates' Court were a reference to the Children's Court.
(2)If a child is ordered to be detained in a youth justice centre under section 412, the period of detention in respect of an offence must not exceed the maximum term of imprisonment for the offence if committed by an adult and in any event must not exceed 3 years.
(3)If a child is convicted on the same day, or in the same proceeding, of more than one offence—
(a)subject to subsection (3A), any period of detention in a youth justice centre shall be concurrent with any period of detention in respect of any other of the offences, unless the Court, at the time of sentencing, states that the sentences are cumulative and gives reasons for its decision; and
(b)the aggregate term of detention in a youth justice centre which may be required in respect of all of the offences must not exceed 4 years.
…
(4)Subject to subsection (4A), every term of detention in a youth justice centre imposed on a child by a court must, unless otherwise directed by the court at the time of pronouncing the sentence, be, as from the date of its commencement, served concurrently with any uncompleted sentence or sentences of detention in a youth justice centre imposed on that child, whether before or at the time the relevant sentence was imposed.
…
(5)The Court may make recommendations in writing as to the management or treatment of, or any other matter concerning, a child sentenced to detention in a youth justice centre.”
127Section 586 provides:
“586 Supreme Court or County Court may exercise sentencing powers of Children’s Court
(1)The powers that the Supreme Court or the County Court may exercise in sentencing a child for an indictable offence include the power to impose any sentence which the Children's Court may impose under this Act but an order that the child be detained in a youth residential centre or youth justice centre must be made in accordance with Subdivision (4) of Division 2 of Part 3 of the Sentencing Act 1991.
(2)In sentencing a child aged 16 years or more but under 18 years at the time of the commission of an indictable offence, the Supreme Court or the County Court must have regard to any requirement in the Sentencing Act 1991 that a specified minimum non-parole period of imprisonment be fixed or a specified minimum term of imprisonment be imposed, had the offence been committed by an adult.”
128Applying the sentencing regime under the Children, Youth and Families Act would limit the matters that the Court could take into account when sentencing you, and would also confine the maximum period that you could be ordered to be detained in a Youth Justice Centre to three years for any individual offence or, for more than one offence, to an aggregate term of four years.
The Sentencing Act
129Section 5 of the Sentencing Act relevantly provides:
“5 Sentencing guidelines
(1)The only purposes for which sentences may be imposed are—
(a)to punish the offender to an extent and in a manner which is just in all of the circumstances; or
(b)to deter the offender or other persons from committing offences of the same or a similar character; or
(c)to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
(d)to manifest the denunciation by the court of the type of conduct in which the offender engaged; or
(e)to protect the community from the offender; or
(f)a combination of two or more of those purposes.
(2AA)Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to —
(a)any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind;
…
(2)In sentencing an offender a court must have regard to—
(a)the maximum penalty prescribed for the offence; and
(ab)the standard sentence, if any, for the offence; and
(b)current sentencing practices; and
(c)the nature and gravity of the offence; and
(d)the offender's culpability and degree of responsibility for the offence; and
(daaa)whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated; and
(daa)the impact of the offence on any victim of the offence; and
(da)the personal circumstances of any victim of the offence; and
(db)any injury, loss or damage resulting directly from the offence; and
(e)whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and
(f)the offender's previous character; and
(g)the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.”
Sentencing provisions applicable to Charge 1 and Charge 2
130When an adult is to be sentenced in respect of causing serious injury intentionally in circumstances of gross violence – a Category 1 offence under s3(1) of the Sentencing Act – mandatory sentencing provisions apply. Ordinarily in these circumstances, a court is required to sentence the offender to a term of imprisonment and fix a non-parole period of not less than four years unless certain exceptions apply.[65]
[65]Section 10 Sentencing Act 1991. The note to that section provides: “Section 11(3) requires that a non-parole period must be at least 6 months less than the term of the sentence.”
131When an adult is to be sentenced in respect of armed robbery – a Category 2 offence under s3(1) of the Sentencing Act– mandatory sentencing provisions apply, requiring the Court to sentence the offender to a term of imprisonment unless certain exceptions apply.[66]
[66]Section 5(2H) Sentencing Act 1991
132Because you were a child at the time of offending, these provisions do not apply directly; however, s5(2J) of the Sentencing Act provides:
“(2J)In sentencing a young offender aged 16 years or more but under 18 years at the time of the commission of an indictable offence, the Supreme Court or the County Court must have regard to any requirement in this Act that a specified minimum non-parole period of imprisonment be fixed or a specified minimum term of imprisonment be imposed, had the offence been committed by an adult.”
133You are a “young offender” as that term is defined in s3(1) of the Sentencing Act because, at the time of being sentenced, you are under the age of 21 years.
‘In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.’
35.Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. As stated in R v Lam & Ors,
‘A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing there is thus a broad public interest in taking into account the youth of the offender.’
36.Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community. As Fox J stated in R v Dixon:
‘The reasons are obvious enough: the prisoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals …
When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again.’
37.It is helpful to briefly examine how these considerations are affected where the crimes have been particularly serious or persistent. In the case of R v Mills, this Court stated the following general propositions about sentencing youthful offenders as correct:
‘i.Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii.In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii.A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s5(4) of the Sentencing Act.)’
In addition, Batt JA observed:
‘to say of a violent crime that it requires a sentence effecting the purpose of general and specific deterrence is not to show that the case is other than the ‘usual’ for the purpose of the above propositions.’
38.In the same year as Mills was decided, this Court recognized that there would be cases in which factors such as youth and rehabilitation would take a ‘back seat’ to other sentencing considerations. A year after Mills, Batt JA in R v Bell cautioned sentencing judges that the propositions in that case, while applied frequently were not of universal or automatic application and would depend upon the circumstances of the offence as well as the offender. His Honour further stated that where the offence in question is conduct that is prevalent amongst young men, then ‘besides rehabilitation, general deterrence and specific deterrence must bulk large in informing a sound discretionary determination’. This concept was repeated in R v Ung, where Eames JA said that there may be circumstances in which considerations of youth must give way to factors of general and specific deterrence. He referred to the reasons of Callaway JA, with whom Buchanan and Vincent JJA agreed in R v Tran that while ‘rehabilitation of youthful offenders is one of the great objectives of the criminal law which will usually be given greater weight than general deterrence … [it] is not the only relevant consideration and in an appropriate case might have to yield to considerations of general deterrence’. Vincent JA in SJK & GAS recognised that youth may forfeit its primacy where the seriousness of the offence combined with the lack of evidence of any real remorse and no reasonable prospects for rehabilitation. In Director of Public Prosecutions v McCloy, Ashley JA discussed a variety of circumstances in which the considerations discussed in Mills would no longer be at the forefront when a young offender is to be sentenced. In R v Huynh, Nettle JA observed that so long as there remains a realistic prospect of a lenient sentencing disposition facilitating the processes of rehabilitation, the youth of the offender is likely to remain of first importance.
39.The most oft-cited passage dealing with the issue of the tension between the mitigating influence of an offender’s youth and the increased need for general (and specific) deterrence in the case of very serious violent offending is that of Batt JA in Director of Public Prosecutions v Lawrence:
‘… with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender's youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a ‘back seat’ to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both.’
40.In R v Wyley, Maxwell P, explained that cases such as ‘Director of Public Prosecutions v Lawrence are not to be viewed as ‘excluding the principles in Mills’, but simply as instances of how those principles are to be applied’.
Whether youthful offenders prevalent in committing such crimes
41.The Crown, relying upon the fact that the applicants’ offending was of a type more commonly committed by young persons initially submitted that this was an additional reason why deterrence must be given greater weight and the ‘youthfulness of an offender cannot be of much significance’. That was the view express by Batt JA in Lawrence in the above quoted passage.
42.Where the prevalence of a crime amongst a particular group is established on proper material before the court, there may be circumstances in which that fact requires that deterrence receive particular emphasis, with a corresponding reduction in the emphasis to be given to a mitigating circumstance. The offences of culpable driving and white collar crime illustrate such an approach where the good character of the offender will not be given the same mitigatory effect because of the prevalence of that characteristic amongst those committing such offences.
43.Senior counsel for the Crown with his customary fairness conceded during oral argument that there was no evidence to establish that such crimes are more prevalent amongst young offenders and that it should not be assumed that crimes of violence in public places are predominantly committed by youthful offenders, or that youthful offenders as an age group will represent a high proportion of those who commit acts of violence in such places.
Conclusion
44.The Court went on to conclude, the general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”[91]
[91](Ibid) at 53-57, citations omitted
160In Makieng v The Queen,[92] the Court of Appeal observed:
“In the course of their submissions (both written and oral), the applicant’s counsel unsurprisingly placed a degree of emphasis upon his youth. With respect to that, the authorities recognise that the youth of an offender, particularly a first offender — which the applicant is not — is often a primary sentencing consideration, so that rehabilitation in the case of a youthful offender often deserves more prominence in the sentencing task than general deterrence. The authorities also make clear, however, that in cases involving serious violence, whilst an offender’s youthfulness and rehabilitation — both achieved and prospective — are not irrelevant in the exercise of the sentencing discretion, they are of much less significance than in cases of less serious offending. Youth and rehabilitation must be subjugated to other considerations. Indeed, they must take a ‘back seat’ to specific and general deterrence in cases of violent offending, particularly where — as has the applicant — an offender has previously been given opportunities to reform. That is because offending of the kind perpetrated by the applicant is so prevalent that general deterrence, specific deterrence and denunciation must be emphasised. Plainly, in the circumstances of the present offences and the present applicant, his youth must be of reduced significance. That does not mean that there is no scope for his youth to influence the sentence — youth will continue to have a bearing on the type and length of any sentence imposed — but it will not have the same significance as in less serious cases.”[93]
[92]Supra
[93](Ibid) at paragraph [44], citations omitted
161In Atem v The Queen,[94] the Court of Appeal observed:
[94][2020] VSCA 35
“61. With respect to … [the offender’s] youth, it has been accepted in the authorities that in sentencing a young offender, the offender’s youth is an important, and a principal, consideration, with the consequence that rehabilitation is usually a more important consideration than general deterrence. Nevertheless, there will be cases in which the need for deterrence and denunciation will require greater emphasis. In the context of a case concerned with young offenders charged with negligently causing serious injury by driving, Harrison v The Queen, this Court observed:
‘NCSI [Negligently causing serious injury] by driving is frequently committed by young offenders with otherwise good character, who have a limited criminal history and good prospects for rehabilitation. As was said in Director of Public Prosecutions v Neethling ... :
‘It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and youth must be given relatively less weight.’
The objective seriousness of the offence is such that the importance of general deterrence and denunciation is heightened. As the importance of these factors increases, there is a corresponding diminution in the mitigating effect of factors such as the offender’s youth and prospects for rehabilitation.’
62. The same view was expressed by Redlich JA in Azzopardi v The Queen, in respect of serious vicious assaults by youths in public places, where he observed that ‘[a]s the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth’.
63. In our view, the very serious nature of … [the offender’s] offending has the consequence that his youth will not provide the strong mitigating effect he seeks. His youth and immaturity must, to some degree, be subordinate to the other sentencing considerations the judge identified, including denunciation, general deterrence and protection of the community.”[95]
[95]Citations omitted. See also Haberman v Director of Public Prosecutions [2020] VSCA 286 at paragraph [69]
162You are not a first time offender. As mentioned earlier, you have previously been dealt with for three charges of armed robbery, one charge of false imprisonment, one charge of theft and two charges of obtaining property by deception. Whilst you are not to be punished again for your previous crimes, the current offending shows a marked escalation in your offending.
163Director of Public Prosecutions v Anderson[96] a matter in which the offender was sentenced in respect of a charge of intentionally causing serious injury. The matter was transferred from the Children’s Court to this Court because of the gravity of the offending and the extent of the injuries (which were life threatening) inflicted with a knife, the prior history of the offender, the fact that the offender committed the offences whilst on parole, the offender’s age, and because the Children’s Court would not be able to exercise appropriate sentencing powers. The sentencing judge determined that, in all the circumstances, youth detention was not appropriate. In determining the Director’s appeal against the inadequacy of the sentence imposed of four years’ imprisonment with a minimum non-parole period of two years, the Court of Appeal observed:
“46There was debate on the plea about whether general deterrence was a relevant sentencing consideration. Reference was made to the decision of this Court in CNK v The Queen, where it was held that in a case where a young offender was being sentenced under the provisions of the CYF [Children, Youth and Families] Act, general deterrence was excluded as a sentencing consideration. Where, on the other hand, a person is sentenced in accordance with the Sentencing Act 1991 (Vic), general deterrence is expressly identified by s5(1)(b) as a purpose for which sentence may be imposed.
47In the present case, her Honour pointed out — correctly — that, once she had concluded that sentencing dispositions under the Children, Youth and Families Act were inadequate and that a sentence of adult custody was necessary, the provisions of the Children, Youth and Families Act had no application and, accordingly, general deterrence was applicable. … .”[97]
[96](2013) 228 A Crim R 128
[97]Ibid, citations omitted
164After discussing the authorities relevant to the significance of rehabilitation when sentencing young offenders, the Court observed:
“50These issues were recently considered in Azzopardi v The Queen, where Redlich JA (with whom Coghlan and Macaulay AJJA agreed) said:
‘The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.’”[98]
[98]Ibid
165The Court of Appeal upheld the Director’s appeal and resentenced the offender to six years’ imprisonment on the charge of intentionally causing serious injury, with a minimum non-parole period of three-and-one-half years.
166In Taskiran v The Queen; Nabalarua v The Queen,[99] the offenders were charged with intentionally causing serious injury, each assaulting the same victim. Taskiran used a tyre lever to assault the victim. Nabalarua punched the victim in the head and stomped on the victim’s head. Both were young offenders. Taskiran, who was aged 18 years of age at the time of offending, was sentenced to eight years and six months’ imprisonment, with a non-parole period of six years and six months. He had three relevant prior appearances in the Children’s Court. Nabalarua was aged 19 years at the time of offending and was sentenced to seven years’ imprisonment, with a non-parole period of five years. He had no prior convictions. On appeal against the severity of the sentences, the Court upheld the appeals and in light of the objective gravity of the offences, resentenced each offender to the same head sentence as was imposed by the sentencing judge, but reduced the non-parole periods to five years and six months in the case of Taskiran, and four years in the case of Nabalarua.
[99][2011] VSCA 358
167In Jawahiri v The Queen; Eser v the Queen,[100] the offenders were sentenced in respect of an attack they perpetrated against the same victim. Jawahiri, aged 20 at the time of offending, was charged with intentionally causing serious injury, while Eser was charged with recklessly causing serious injury. Jawahiri used a meat clever to strike the victim five times. The victim sustained life-threatening injuries. Jawahiri was sentenced to eight years and six months’ imprisonment, with a non-parole period of five years and six months. He had no prior convictions, had strong family support, pleaded guilty at the first reasonable opportunity during the early months of the COVID-19 pandemic, and had reasonable prospects of rehabilitation. In dismissing the appeal against the severity of sentence, the Court of Appeal observed:
[100][2021] VSCA 287
“39.In our view, Jawahiri has not established this ground of appeal. The sentence imposed of eight years and six months is certainly stern for a 20-year-old man with no criminal history, however, the objective gravity of the offending was very grave indeed. This was no alcohol- or ice-fuelled moment of madness. We agree with the sentencing judge that this was a ruthless, planned attack, in which Jawahiri (at least) intended to and did use a vicious, murderous weapon. We further agree that, as he delivered the five meat cleaver strikes to the prone victim, including to his head and torso, Jawahiri must have intended to and did cause really serious injury. It was open to the judge to conclude this beyond reasonable doubt and we are also so satisfied.
40.Jawahiri’s youth must of course weigh in his favour as must his clean criminal record. There can be no doubt that the judge took these factors into account. At [50]–[56] of his reasons for sentence, this experienced judge took pains to evaluate all factors in mitigation and aggravation. He devoted six full paragraphs to Jawahiri’s youth. In that passage the judge correctly encapsulated the relevant principles to the sentencing of young offenders and applied them with clarity and balance. It was open to the judge to diminish the weight given to the appellant’s reasonable prospects of rehabilitation and to give primacy to punishment and deterrence. We agree with his Honour’s conclusions in this regard. Further, it is plain from the judge’s reasons that he did not lose sight of rehabilitation as a sentencing principle, but appropriately adjusted its weight given the gravity of this dreadful offending.
41.We do not accept that the sentence imposed was inconsistent with current sentencing practices. As Priest JA stated in Nash, experience shows that the circumstances surrounding the commission of this offence are almost infinitely variable. Protracted savagery can contrast with a single punch; injuries can vary from gross and permanently disabling to injuries that barely cross the (admittedly high) serious injury threshold. These observations underscore the limitations of current sentencing practices as an aid in the sentencing exercise. We have considered the cases relied upon by the appellant on this issue, and viewed them through the lens of those limitations. It is sufficient to state:
(a)Current sentencing practices are only one factor to be considered in the complicated sentencing calculus; and
(b)There is nothing in these cases that assists us to conclude that the sentence imposed on Jawahiri was inconsistent with current sentencing practices or beyond the range reasonably open to the judge in the proper exercise of his sentencing discretion.
42.For these reasons Jawahiri’s appeal against sentence must be refused.”[101]
[101]Ibid, citations omitted
168I have adjourned your case on numerous occasions to give you every opportunity to demonstrate why you should be afforded the lenient approach to sentencing as contended for by your counsel. I have agonised over this difficult sentencing exercise. On the one hand, you are young, you have complied with strict bail conditions including participating in programs directed at your rehabilitation, you have pleaded guilty and shown remorse, there are no charges pending, and you have strong family and community support. On the other hand, this is not the first time you have committed an offence involving violence with a knife. Indeed, the escalation of your use of violence with knives is most concerning. The armed robbery was premeditated and the injuries you inflicted while committing that crime were really serious and life threatening. In my view, the sentencing options available under the Children, Youth and Families Act are inadequate to respond appropriately to your offending. You will be sentenced under the Sentencing Act.
169As I stated before, the Prosecution maintains its submission that a custodial penalty is warranted in this case, and that it is open to find that exceptional circumstances have been shown which enable the Court to impose a Youth Justice Centre Order, should the Court see fit to do so.
170After careful examination of all the circumstances and the authorities to which I have referred and to which the parties have referred,[102] I do not consider that exceptional circumstances have been established. In short, the concatenation of factors relied upon do not, in my judgment, amount to circumstances that are out of the ordinary course, unusual, or special. Moreover, the gravity of your offending, together with all of the matters to which I have referred, compel me to conclude that an aggregate sentence of four years’ detention in a Youth Justice Centre for all the offences before me is outside the appropriate sentencing range. Even less appropriate would it be to release you on a Youth Attendance Order as recommended by Ms Taleb.
[102]Cairns (a Pseudonym) v The Queen [2018] VSCA 333; Hart v The Queen [2020] VSCA 194; Director of Public Prosecutions v Anderson (supra); CNK v The Queen (2011) 32 VR 641; Buckley v The Queen [2022] VSCA 138; Victoria Police v Hammond (a pseudonym) [2016] VChC1
Sentences to be imposed
171Would you please stand, Mr Castillo. I take into account all of the matters personal to you to which I have referred, including your youth, your compliance with the strict bail conditions, and your prospects of rehabilitation. I must, however, also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am also required to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
172In all the circumstances, I have no alternative but to impose terms of imprisonment.
173On Charge 1, armed robbery, you are convicted and sentenced to three (3) years’ imprisonment.
174On Charge 2, causing serious injury intentionally in circumstances of gross violence, you are convicted and sentenced to five (5) years’ imprisonment.
175On Charge 3, trafficking in a drug of dependence, you are convicted and sentenced to one (1) month of imprisonment.
176On the question of whether cumulation is required, and, if so, how much, I take account of the fact that there is considerable, but not complete, overlap between Charges 1 and 2. I consider that total concurrency of the sentences imposed in respect of them would fail to do justice. Charge 3 is a discrete offence; however, in all the circumstances, I do not propose to make any part of the sentence imposed in respect of it cumulative. I am required to pay regard to principles of totality and proportionality and avoid imposing a crushing sentence.
177Balancing these matters, I therefore direct that twelve (12) months of the sentence imposed in respect of Charge 1 be served cumulatively upon the sentence imposed in respect of Charge 2, the base sentence. Charge 3 will be served concurrently. That results in a total effective sentence of six (6) years’ imprisonment.
178In determining the non-parole period in your case, I am required to take into account the purpose of fixing a non-parole period which is “to provide for mitigation of punishment in favour of … [your] rehabilitation through conditional freedom”.[103] The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. The relevant factors I am required to take into account are:
“(a)that a non-parole period has a penal element;
(b)that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c)that the prisoner’s prospects of rehabilitation are almost always a significant consideration.”[104]
[103] See Director of Public Prosecutions v Josefski (2005) 13 VR 85 at paragraph [43]
[104] Ibid
179Taking all these matters into account, and placing significant weight on your youth, your positive response to your bail conditions, and your prospects of rehabilitation, I direct that you serve a minimum period of three (3) years and three (3) months’ imprisonment before becoming eligible for parole.
Presentence declaration
180Under s18(4) of the Sentencing Act, I declare that the period of eighteen (18) days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the Court.
Statement and Direction under Section 6AAA Sentencing Act
181By virtue of the provisions s6AAA of the Sentencing Act, I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offences but for your plea of guilty. Therefore, pursuant to s6AAA, and taking into account the matters I have already previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea, I would have sentenced you to a total effective sentence of nine years’ imprisonment. I would have directed that you serve a minimum of four years and ten months before becoming eligible for parole.
182I direct, pursuant to s6AAA(4) of the Sentencing Act, that the sentence that would have been imposed but for the plea of guilty be noted in the Courts records. You may be seated for a moment.
Ancillary orders
Forfeiture Order
183Ms Struthers, a draft was submitted earlier. Is there an up to date draft?
184MS STRUTHERS: Yes, Your Honour. (Indistinct) updated draft. It should have been provided to Your Honour's chambers, last month I believe, but I can provide a further copy if that would be of assistance.
185HER HONOUR: Is the order by consent?
186MR MOODIE: Yes, Your Honour.
187HER HONOUR: Very well. I make the forfeiture order in the terms sought. UPON the conviction of Daniel CASTILLO on 2 March 2022 of a Schedule 1 offence namely Armed Robbery, Causing Serious Injury Intentionally in circumstances of Gross Violence and Trafficking a Drug of Dependence, THE COURT ORDERS pursuant to section 33(1) of the Confiscation Act 1997 that the property referred to in the Schedule be forfeited to the Minister, namely:
1. Single brass cone (Exhibit 35)
2. Black handled hunting knife (Exhibit 17)
3. 26 x Vape Cartridges (Exhibit 18)
4. 18 x clip lock bags of green vegetable matter (Exhibit 21)
5. Single Zip lock bag containing white powder (Exhibit 22)
6. Black balaclava (Exhibit 23)
7. Single Clip lock bag of green vegetable matter (Exhibit 31)
8. Single black knife sheaf (Exhibit 37)
Anything further, Ms Struthers?
MS STRUTHERS: Sorry, Your Honour. Just to confirm, was item 4 in that schedule, 18 clip lock bags?
HER HONOUR: 18, I have got clip lock bags.
MS STRUTHERS: Yes, that is fine, thank you, Your Honour.
HER HONOUR: Thank you. Anything further, Mr Moodie?
MR MOODIE: No, Your Honour.
HER HONOUR: Please remove the prisoner. Thank you, adjourn the Court.
- - -
2
25
0