Director of Public Prosecutions v Charles
[2021] VCC 1636
•19 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-00550
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN CHARLES |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 October 2021 |
DATE OF SENTENCE: | 19 October 2021 |
CASE MAY BE CITED AS: | DPP v Charles |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1636 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Aboriginal Offender – Bugmy Principles – Burglary – Theft – Armed Robbery – Intentionally Damage Property – Attempted Theft.
Cases Cited: Bugmy v The Queen [2013] HCA 37; DPP v Zane Poole (a pseudonym) [2020] VCC 340; R v McKee [2003] VSCA 16; DPP v Brooks [2008] VSCA 253; DPP v Heyfron [2019] VSCA 130; Douglas and Albone v R (1995) 56 FCR 465; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43.
Sentence: Total effective sentence of 4 years and 10 months' imprisonment – Non-parole period of 2 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Davison | Office of Public Prosecutions |
For the Accused | Ms D. Price | Wilsons Legal |
HIS HONOUR:
1Jordan Charles, you have pleaded guilty to two charges of burglary, an offence which carries a maximum penalty of 10 years’ imprisonment; one charge of theft, which carries a maximum of 10 years’ imprisonment; two charges of armed robbery, which carries a maximum of 25 years’ imprisonment; one charge of intentionally damage property, which carries a maximum of 10 years’ imprisonment; and one charge of attempted theft, which carries a maximum of five years’ imprisonment.
2You have admitted relevant prior convictions.
3The facts of your offending are clearly and succinctly set out in the Summary of Prosecution Opening, which was exhibit A on the plea and forms part of these reasons for sentence.
Circumstances of Offending
Incident 1 – burglary (charge 1) and theft (charge 2)
4At 4.05 am on 27 October 2020, you attended the Amcal Pharmacy in White Hills, Bendigo. You smashed a large glass panel window at the front of the pharmacy. You then entered and approached the till behind the counter. You ripped the till drawer from the counter, which contained $1,369. You then left the pharmacy with the till drawer in hand.
5The entire incident was captured on CCTV, depicting you wearing a blue hooded Adidas jumper with stripes down the sleeves, black track pants with a white motif on the left leg, white runners and a blue surgical mask.
Incident 2 – armed robbery (charge 3)
6At 1.10 am on 5 November 2020, you attended the Maine Car Wash in Castlemaine. Ms Dianne Hinschen, a much loved and valued local taxi driver, was cleaning the inside passenger seat of her taxi following the completion of her shift.
7Brandishing a crowbar, you approached the driver’s side door of the taxi and said, 'Don’t fucking move. I want your money.' You grabbed Ms Hinschen’s purse from the centre console and said, 'Where’s the rest of your fucking money?’ Ms Hinschen replied that that was 'all she had.' You then said, 'Where’s your fucking money holder? I know you’ve got more.'
8You rummaged through the taxi and took some cigarettes.
9As Ms Hinschen grabbed her mobile phone, you raised the crowbar and said, 'Put the fucking thing down.' Brandishing the crowbar, you said, 'Don’t ring the fucking coppers. I know who you are and I know where you are, and I'll come back and I’ll fucking kill you.' You then took Ms Hinschen’s purse containing $150, an Apple iPhone, keys and cigarettes before leaving.
10The entire incident was captured on CCTV. It depicted you wearing a distinctive black hoodie with an 'Everlast' motif down the left sleeve in white writing, black track pants, white runners and a dark surgical mask and gloves.
Incident 3 – burglary (charge 4)
11At 4.02 am on 5 November 2020, you attended the Epsom Lotto and Gift Shop. You used your foot to kick the shop door before entering and approaching the till area. You left without stealing anything. This incident was also captured on CCTV, depicting you in the same clothing described in incident 2.
Incident 4 – attempted theft (charge 6)
12At 10.10 pm on 8 November 2020, you entered a laundromat on Napier Street in White Hills, Bendigo. You were carrying a green shopping bag containing a blue crowbar and an angle grinder.
13Jessica Woodford was the only person inside the public area of the laundromat. You told Ms Woodford to 'get on the ground' before producing the angle grinder and turning it on. You proceeded to grind at the padlock on the side of the coin machine.
14Malcolm Watt, the owner of the laundromat, was in the rear office when he heard the noise and entered the public area. He confronted you and threw a coffee cup at you before yelling at you to 'get out.'[1] You raised the blue crowbar at Mr Watt before fleeing on foot.
[1] Statement of Jessica WOODFORD on page 52. Statement of Malcolm WATT on page 47.
15The incident was captured on CCTV.
Incident 5 – armed robbery (charge 7)
16At 5.20 am on 11 November 2020, you attended the Caltex Service Station in Epsom. Abbie Keegan, a young service station worker, was present and setting up the forecourt at the beginning of her shift. You approached her. She told you that the service station was not open yet.
17You were in an agitated state and looked around to see if anyone else was present. You pulled out the crowbar and ran towards Ms Keegan. She attempted to run away and screamed before falling over and crouching into a ball.
18While holding the crowbar, you picked Ms Keegan up by the back of the neck with one hand saying, 'Stop fucking screaming or I’ll fucking kill you.' You walked Ms Keegan inside the service station by her neck and demanded she open the till and the safe. She told you that she would give you whatever you wanted. While holding the crowbar, you said, 'Don’t push any alarms, don’t call anyone, or I will hit you so hard over the head with this, you will die.'
19You directed Ms Keegan to fill the bag you were carrying with cigarettes. Terrified, she did what you asked. You left the service station with $240 and 12 packets of cigarettes. Ms Keegan then called the police.
20The entire incident was captured on CCTV.
Investigation
21On 18 November 2020, police located clothing worn by you during the offending at a house where you had been residing.
22A person known to you confirmed that you had been in Castlemaine at the time of the offending, which was confirmed by your mobile phone data. This person also identified you from the CCTV footage. They also confirmed that you were in possession of multiple cigarette packets that you were trying to sell.
23You were arrested on 19 November 2020. You were in possession of multiple cards belonging to your victim, Ms Hinschen, and you were wearing the same clothes depicted on the CCTV footage from the laundromat.
24You refused to be interviewed.
Victim Impact Statements
25Victim impact statements were filed from two of your victims: Ms Dianne Hinschen and Ms Abbie Keegan. These were exhibits D and E, respectively. Ms Keegan read her statement in open court, and Ms Hinschen’s statement was read aloud by the prosecutor. I have had regard to the contents of these statements and the severe impact upon your victims.
26Both statements outlined in a very brave, considered and sincere way the profound and myriad consequences of your offending in the victims' personal, social and professional lives. In particular, both women were eloquent in describing the impacts upon their mental health and their subsequent inability to perform ordinary day-to-day tasks. The severity of these impacts are far‑reaching and cannot be overstated. You have changed their lives forever.
27Listening to those statements during the sentencing conversation provided a very real and moving occasion to reflect upon the severity of your crimes. It was distressing, listening to their pain, for everyone in the court, and you at least appeared to have some understanding of the irreparable damage and harm you have caused.
28It was no doubt immeasurably more difficult for the authors of those statements to make them than it was for you to be confronted with their distressing message.
29The inter-generational trauma and cycle of violence that has impacted so significantly upon your life has now, through your actions, swept up others, leaving a devastating traumatic imprint.
Objective Gravity of Offending
30The seriousness of your offending is reflected in the maximum penalties set by parliament: 10 years' imprisonment for burglary, 10 years' imprisonment for theft, 25 years' imprisonment for armed robbery, 10 years' imprisonment for intentionally damage property, and five years' imprisonment for attempted theft.
31There is a degree of premeditation in your offending. You had armed yourself with a crowbar and an angle grinder, and targeted the premises at night. The offending also occurred over a two-week period, making it more serious than an isolated or spontaneous offence.
32You also targeted particularly vulnerable victims. Your crimes were carried out at night against women who were alone and isolated as they worked. You used your physical strength and verbal threats to cause both women to genuinely fear for their lives. As discussed above, your actions have had profound consequences for your victims.
33The words of violence you used to accompany your violent actions were designed to strike abject terror into your victims, and it did so.
34Your actions have also resulted in loss and inconvenience for Amcal Pharmacy, Epsom Lotto and Gift Shop and the laundromat in White Hills, Bendigo.
35The gravity of your crimes calls for a sentence that adequately reflects the need to deter others. I must impose sentences that adequately denounce your crimes. I must also consider the protection of the community from the risk posed by you when you are in the community. That risk is high, considering your criminal history for one so young, your complex needs and difficulties coping in the community, and the bleak prognosis and assessment of your prospects of rehabilitation that emerge in the historical reports of Dr Ducat and Dr Danny Sullivan.
Personal Circumstances
36You are a 22-year-old proud Aboriginal man. You are a member of the Gunaikurnai Aboriginal community, due to your family links in Lake Tyers. You are also a member of the Mungabareena Aboriginal Corporation in Wodonga.
37You were born in Griffith, New South Wales, in January 1999. Your biological parents are from the lands of the Wiradjuri and Gunaikurnai people.
38Your early life was one of trauma and deprivation. Your 22 years have been attended by misfortune, hardship, neglect and the cruellest of treatment.
39You were a victim from the tenderest of ages. It is not a stretch to observe that you began life as a victim of serious violent crime, and that the impacts of that crime have accompanied you on your difficult journey to this point in time. That journey has included abandonment, feelings of despair and hopelessness, significant further trauma, illicit substance use from age 12 or 13, the crossover from DHHS residential care to incarceration in the youth justice system, and eventually adult prison, all by the age of 21.
40A formative event in your life was your removal from your biological parents when you were just two or three weeks old.
41You were removed because of a number of broken bones and a fractured skull. You were placed with your maternal uncle, Robert Charles, also a Wiradjuri man, based in Wodonga. You formed a strong bond with your adoptive parents. Your stepmother, Melissa Baker, participated in the sentencing conversation, and provided a level of emotional proximity to the desperately sad tale of your infancy and the circumstances in which you came into her care. Robert Charles, who was in every sense to you your father, unfortunately passed away whilst you have been in custody.
42By the time you were 12 years old, you were using illicit substances.
43Upon inadvertently realising you were adopted at age 13, your behaviour deteriorated as you struggled with your sense of identity and belonging.[2] According to Dr Lauren Ducat, it appears that this precipitated a rapid decline into severe substance abuse, engagement with antisocial peers and offending behaviour.[3]
[2] Report of Dr Lauren Ducat dated 19 June 2020, page 3.
[3] Report of Dr Lauren Ducat dated 19 June 2020, page 3.
44When you were 14 years old in 2013, child protection became involved as a result of your exposure to family violence, including physical altercations involving you and also between you and your parents, drug use, criminal activity, and increasing antisocial behaviour.
45Subsequently, you were placed in residential units and group homes, where you were exposed to negative peer groups. It was in this environment that you began to drink to excess and use multiple illicit substances such as alcohol, tobacco, cannabis and methylamphetamine. Dr Ducat reports that you began displaying symptoms of drug and alcohol dependence between the ages of 15 and 17.[4] From the age of 15, you also developed habitual intravenous heroin use.
[4] Report of Dr Lauren Ducat dated 19 June 2020, page 4.
46During the sentencing conversation, you also spoke of significant trauma inflicted upon you whilst you were a child. You struggled to make this disclosure. It was apparent to all present that this disclosure was genuine, and it adds another layer to the traumatic events experienced by you during childhood.
47At 15 years of age, arrangements were made for you to stay at Baroona Aboriginal Healing Place in Echuca. A precondition of this was that you undergo formal detoxification, which you began at the Youth Support and Advocacy Service (YSAS) in Melbourne.
48It was at this time that you were contacted by your biological mother for the first time since you were removed as a baby. She attended YSAS and asked you to leave with her. Due to your desire to have a connection with your biological family, you agreed.
49During this time with your biological mother, you were exposed to further drug use and criminal offending. You were later found by Child Protection living on the streets of Melbourne, abandoned by your biological mother, and with a broken ankle.
50While being transported back to Wodonga by Child Protection, you managed to escape, despite being on crutches. You reached Queensland, where other members of your biological family lived. Whilst in Queensland, you were involved in further criminal offending, I was told.
51Plans for you to return to Wodonga to live with the Charles family were made. However, due to them being on holiday, you were placed over the Christmas/New Year period in a residential unit.
52Since you were around 14 years old, you have resided predominantly in DHHS care or in custody. Accordingly, you have never lived independently or been engaged in periods of paid employment. Education outside of youth detention has been non-existent.
53A significant period of your adolescence was spent within the youth justice system. During this time, you were involved in a significant number of altercations that involved assaults on staff and inmates, damage to property, and rioting. Multiple Youth Justice presentence and parole reports detail that both in and out of custody, you can exhibit extreme emotional and behavioural dysregulation which has led to episodes of aggression.[5] However, towards the end of your engagement with Youth Justice, staff reported that you became better regulated, with fewer instances of aggression ensuing.[6]
[5] Report of Dr Lauren Ducat dated 19 June 2020, page 5.
[6] Report of Dr Lauren Ducat dated 19 June 2020, page 5.
54Your traumatic and disadvantaged childhood, your exposure to alcohol, drugs and violence at a young age, and the consequential experiences in the foster care system and within Youth Justice detention are tragically consistent with the experience of too many Aboriginal people across Australia. It is a sad fact that your story fits comfortably within the narrative of the colonial legacy in this country.
55The statistics relating to persons who enter Youth Justice detention whilst also being in the care of the state are alarming. The percentage of that cohort who go on to experience adult custody is also a cause for despair and concern. The disproportionate representation of Aboriginal young people amongst those statistics is a sad indictment on the history of colonisation, dispossession and segregation in this country.
56Your childhood and adolescence is also marked by abandonment and instability. This has had an indelible effect on your feelings of self-worth and your mental health, and helps explain in some small way why you have come into contact with the criminal justice system so frequently, including your appearance before me here today.
57You were released from custody in October 2020. A report from the Multiple and Complex Needs Initiative (MACNI) states that due to your earlier than expected release, there was difficulty in arranging a number of supports for you once you were released into the community.[7] Ms Price on your behalf submitted that this was a missed opportunity to put adequate plans in place to assist with your reintegration into the community, given your complex needs.
[7] MACNI Review, page 5
58I am assured that the considerable resources and services identified in the MACNI report will be available to you when released on parole.
59For various reasons, your eventual accommodation in Bendigo proved unsuitable, resulting in you sleeping in a tent in nearby bushland. The various stresses associated with this transition resulted in your decline into drug use. The first of your offences before me occurred within 19 days of your release from custody.
60In her report dated 19 June 2020, Dr Lauren Ducat opines that:
'Mr Charles presents as a deeply wounded and vulnerable individual who has never recovered a sense that he is safe, belongs, and that others can be relied upon.'[8]
[8] Report of Dr Lauren Ducat dated 19 June 2020, page 10.
61In the submissions provided on your behalf, Ms Price noted that you fear you have been institutionalised. You believe that you have been in custody for all but four months since you were 15 years of age.
62Despite this, you made it clear to me during the sentencing conversation that you have goals beyond prison. You expressed a desire to be a leader in your community and to continue pursuing your art and music. In particular, you hope to be a role model for your younger brother.
Intellectual Functioning
63Your early education was limited and disrupted. As I have noted, you were incarcerated at the age of 14, meaning mainstream education was inaccessible. However, as I have noted, you engaged in educational programs while in custody at Parkville College.[9]
[9] Report of Dr Lauren Ducat dated 19 June 2020, page 3.
64In 2017, Dr Matt Treeby assessed you as falling within the extremely low range of intellectual functioning. Additionally, you were assessed as having a full‑scale IQ score of 68, which is in the mild intellectual disability range.[10]
[10] Report of Dr Matt Treeby dated 13 September 2017, page 4.
65Summarising Dr Treeby’s diagnosis of your intellectual functioning, Dr Ducat reports that you have:
'…been assessed as displaying borderline verbal and perceptual reasoning abilities, clear evidence of executive dysfunction (impaired planning and organizing, concrete thinking, delayed set shifting), severely impaired working memory, poor basic information processing speed, very poor auditory attention span, and severe difficulties with divided attention and cognitive flexibility.'[11]
[11] Report of Dr Lauren Ducat dated 19 June 2020, page 11.
66There is consensus amongst the expert practitioners that injuries sustained as an infant and various other features of your childhood and adolescence, such as substance abuse, have impacted your cognitive functioning to a significant degree.
67Dr Treeby opines:
'Although it is has not been possible to obtain medical records relating to the assault and fractured skull he experienced as a newborn, it is highly likely that he sustained a paediatric traumatic brain injury in this event. This and other trauma Mr Charles reportedly experienced during childhood and adolescence has almost certainly compromised his brain, social, and emotional development.'[12]
[12] Report of Dr Matt Treeby dated 13 September 2017, page 4.
68Dr Danny Sullivan supports these conclusions. He writes:
'There is no clear information confirming an acquired brain injury in childhood, but a reported skull fracture in the first month of life is potentially associated with severe brain trauma. His level of adaptive functioning is consistent with mild intellectual disability, and notable for impulsive aggression and low frustration tolerance, as well as limited consequential thinking.'[13]
[13] Report of Dr Danny Sullivan dated 7 March 2019, page 7.
69Dr Sullivan indicates that the cause of your cognitive impairment:
'…is likely to be multifactorial, including contributions from likely acquired brain injury as an infant, possible congenital intellectual disability, and the effects of trauma and heavy substance abuse during periods of vulnerability in brain development.'[14]
[14] Report of Dr Danny Sullivan dated 7 March 2019, page 8.
Prospects of Rehabilitation
70Dr Ducat reports that you are considered to present a 'high risk of reoffence.' I note that her opinion pre-dates the offences before me, but it remains apposite somewhat. She opines that:
'He copes poorly with stressors and conflicts, using violence as a way of regulating his emotions or managing conflict. He also engages in violence to further the commission of other offences… Given his size and lack of empathy for harms caused to his victims, he is at risk of causing someone significant harm.'[15]
[15] Report of Dr Lauren Ducat dated 19 June 2020, page 8.
71In relation to your cognitive limitations, Dr Treeby states:
'…he will require a substantial amount of support upon his release from detention to minimise the chances of recidivism and to optimise his functioning post‑release… Mr Charles will almost certainly have lifelong support needs, given his mild intellectual disability.'[16]
[16] Report of Dr Matt Treeby dated 13 September 2017, page 4.
72Dr Sullivan writes:
'Mr Charles has a poor prognosis for successful community adjustment. His history of recurrent offending and breaches of orders bodes poorly for a prosocial lifestyle in the community, and he can identify little in the way of prosocial peers, environments or activities which might provide alternatives to substance use or offending. He has spent the majority of recent years in custody and it is likely that he is comfortable within that environment.'[17]
[17] Report of Dr Danny Sullivan dated 7 March 2019, at [66].
73I note again that Dr Sullivan’s opinion dates from 2019. However, subsequent effects have not dampened its relevance.
74There is in your case a prospect that on parole you will be expertly supported in line with the MACNI recommendations, and I am satisfied that what has emerged in the sentencing conversation, in combination with the MACNI recommendations, your youth, and the matters identified by Drs Ducat, Treeby and Sullivan, provides a basis for considering a longer than usual parole period.
75Your case illustrates a tension that is often apparent in sentencing offenders with your complex history and level of functioning. You have mitigation available to you as a result of your intellectual disability and other factors related to your cognitive functioning.
76I consider that your mild intellectual disability and other matters raised in the reports and referred to in part herein calls for some moderation in your subjective culpability, and also in relation to general deterrence, which I will expand on below.
77Conversely, the impulsivity, poor consequential thinking, and other matters raised in the expert material lead to a conclusion that you present a high risk of harm to others in the community, and specific deterrence is also a significant consideration in your case.
78Despite this, you are young, being only 22 years of age now, and you were 21 at the time of the offending. Your youth is a factor I must take into consideration when determining your prospects of rehabilitation.
Youth
79You were 21 years old at the time of committing this offending, and you are only 22 years old now. The principles relevant to the sentencing of youthful offenders have some application in your case.
80These principles must be muted to some degree given your criminal history, the seriousness of the offending before me, the high risk to the community presented by you, and the bleak assessment as to your prospects, given the multi-factorial difficulties illustrated by the reports.
81Nevertheless, in assessing your subjective culpability, I must take into account your age. The law recognises that young people are more prone to engaging in rash, impulsive, thoughtless decision making and may act without the 'insight, judgment and self-control' of those who are older.[18]
[18] R v Mills [1998] 4 VR 235, at 241; Azzopardi v The Queen (2011) 35 VR 43, at 53 - 6 [34] - [40] and 57 [44] - [45].
82In your case, the effect of youth in this sense must be considered along with your intellectual capacity and cognitive functioning, particularly with regard to consequential thinking. There are a number of mitigatory matters in your case which combine for greater effect than the sum of the parts. It is the relationship between these factors that give them such combined mitigatory force.
83It is not possible to assess, say, the mitigatory effect of the Bugmy factors which led to early drug addiction, homelessness, criminal offending, poor education, low self-worth, negative peer associations and so on, separate from the effect of cognitive processing deficiencies and low intellectual functioning, and then in turn consider the impact of trauma on you, and separately, again, your youth.
84It is the inter-relationship of these factors that has such force in your case.
85Your youth moderates to some degree your blameworthiness. Additionally, the emphasis that I place on general deterrence in sentencing you is moderated by your youth. I must also give more weight to the consideration of your rehabilitation as a result of your youth.
86I also note that in Exhibit 3, the MACNI care plan review report, your vulnerability to the influence of older males in the prison environment was detailed at page 7 of that report, under the heading Social Connectedness.
87On the other hand, despite your youth, general deterrence, sensibly moderated, remains an important sentencing consideration, particularly for offences as serious as yours.
Other Factors in Mitigation
88Ms Price raised a number of other factors in mitigation on your behalf. In her written submissions she detailed the disadvantages and trauma in your life, and the lead-up to the offending before me. She highlighted your reason for committing the offences as twofold: a desire to fund drug use, and a desire to return to the custodial environment to which you have become accustomed.
Bugmy principles
89Her reliance upon your background and deprived childhood, and the relationship with exposure to violence, drug use and addiction at a young age, enlivens the principle often referred to as the Bugmy principle.
90The Bugmy principle applies in the assessment of subjective culpability in respect of any offender whose responses and behaviour have been so indelibly shaped and influenced by childhood experiences of deprivation, destitution, neglect and disadvantage, that the courts recognise a difference in the level of moral responsibility when measured against other offenders. The principle applies regardless of ethnicity or cultural background, of course. Sadly, it is often called upon in sentencing Aboriginal offenders.
91As I have noted, in Victoria, Aboriginal children and young people such as you, Mr Charles, are over-represented in both youth detention and adult custody. Inequality and structural racism, caused by colonisation and historical laws, policies and systems which explicitly excluded Aboriginal people and culture are said to have led to this over-representation.[19]
[19] See DPP v Zane Poole (a pseudonym) [2020] VCC 340.
92Whilst these factors have driven over representation of Aboriginal people in custodial settings, I must engage in individual sentencing, rather than seek to use your case as a vehicle to give effect to a policy of driving down the over‑representation of Aboriginal people in custody.
93Some care needs to be taken in not allowing an understanding of Aboriginal disadvantage generally, and its relationship to the past, and to the present high rates of incarceration of Aboriginal people, for example, to distort the concept of individualised justice. I sentence you, the individual.
94Insofar as individualised justice in sentencing requires an assessment of the personal circumstances of the offender, an appreciation of those circumstances necessarily embraces an understanding of the socio-economic context, cultural context, and in the case of an Aboriginal offender such as yourself, to whom the full effect of Bugmy principle applies, the historical context also.
95The circumstances that have led you to this court are not confined to those immediate factors which occurred to you at different times in your life. Parents, family members, friends, some people who have harmed you, people you have grown up with and got to know through the various institutions you grew up in, have also been a product of systemic disadvantage and the colonial legacy.
96The disadvantage and trauma you have experienced since infancy cannot be so easily separated out from the history of disadvantage and subjugation of Aboriginal people in our community.
97Aboriginal disadvantage is an inadequate term that is often embraced as a catch-all to refer to factors that are embraced by the Bugmy principles. That term often contemplates exposure to dysfunction or disadvantage in an Aboriginal community. In your case, the disadvantage and exposure to trauma is multi-layered.
98Your drug use and its relationship to the offences before me is an indicia of childhood deprivation. Drug-fuelled offending, or offending motivated by the desire to obtain drugs, is not normally a mitigating factor. In circumstances where addiction is encountered at a young age, in circumstances where no moral blameworthiness attaches for the commencement of drug use, the relationship between drug use and the offending, particularly in combination with other factors, can attract mitigation (McKee per Buchanan, J.A. at [12]-[14] and per Vincent, J.A. at [21]).[20]
[20] See R v McKee [2003] VSCA 16 per Buchanan, J.A. at [12]-[14]; DPP v Brooks [2008] VSCA 253 per Vincent, J.A. at [21].
99In R v Fernando,[21] Wood J at 9 stated:
‘While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.’
[21]R v Fernando (1992) 76 A Crim R 58.
100While you did not grow up in an Aboriginal community, for the reasons I have touched upon, your upbringing and early childhood development had a number of features referred to by Wood J.
101Similar concepts have been referred to elsewhere, including in the recent decision of DPP v Heyfron per Kaye J, at [56] to [59].[22]
[22][2019] VSCA 130.
102In an ACT case of Douglas and Albone v R,[23] the Court of Appeal stated:
‘The age of an offender when he or she became addicted and the degree of judgment open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct.
…
It must be doubted whether the moral culpability of a child of 8 or 11 who, because of an abused background or other compelling circumstances, acquires a drug or alcohol addiction can be equated with that of an adult or much older juvenile who, for his or her self-gratification, chooses to experiment with illicit drugs and thus becomes addicted.’
[23] (1995) 56 FCR 465.
103In your case, I find that the relationship between your drug addiction and the offences can stand alone as a mitigatory factor, due to your age and circumstances which led to your drug use. But in my view, it is better understood as forming part of the circumstances that attract Bugmy mitigation, and it is in that way that I take it into account.
104The relationship between your traumatic and dysfunctional upbringing, your substance abuse and decline into criminality, and your offending in the present case is centrally relevant to a proper assessment of your subjective culpability for the offending in this case.
105In Bugmy,[24] the High Court described the manner in which factors of disadvantage are relevant to an assessment of an offender's moral culpability in the following terms:
'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence, because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way…
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding the person has a long history of offending…
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision.'
[24]Bugmy v R [2013] HCA 37 at [40], [43] – [44].
106The court went on, of course, to temper the concept of 'full weight,' with particular reference to individuals who have demonstrated an inability to control a violent response to frustration, and the corresponding increase in the importance of protecting the community from that offender.
107As I have noted, community protection is prominent in your case. As Ms Price submitted, correctly, effective rehabilitation provides one avenue of community protection. It comes with risk, however. Ms Price urges me to set a longer than usual parole period, with an eye on the MACNI support that is available, in order to mitigate that risk.
108Your experiences of violence and deprivation, as set out in Ms Price’s submissions and the medical material, are inextricably linked with your limited cognitive functioning, your acquired brain injury, your proclivity for violence, and your eventual decline into substance abuse and criminality. The interplay of these factors needs to be considered as a whole, rather than individually.
109In my view, the interplay of these factors does provide significant mitigation in your case.
110I have approached your cognitive functioning as a matter attracting mitigation of subjective culpability as part of the Bugmy factors, rather than in a Verdins sense. Whilst there is some nexus between your functioning and your offending, it is better understood as part of the constellation of factors, personal and external, that led to you being the offender, in the Bugmy sense.
111As stated above, I have moderated general deterrence to some degree due to your intellectual disability, in the sense described in Wright v The Queen[25] at [63] - [64] (with reference to R v Engert[26]).
Participation in Koori Court
[25] [2015] VSCA 333.
[26] (1995) 84 A Crim R 67
112You participated in the Koori Court sentencing conversation and engaged well. You were challenged not only by the elders and the Koori Court officer, but by your victim and your victim's family. You listened and responded with authenticity, despite this being a challenging environment.
113You also spoke about the significant trauma experienced by you as a young teenager. This disclosure arose spontaneously, it seemed, and I have taken it into account, both in relation to your engagement in the sentencing conversation, but also as further evidence of trauma in your young life.
114You articulated a strong connection to your culture and a desire to continue celebrating your culture through your art and music, namely the didgeridoo.
115You are a fine artist, and you are proud of the fact that you are one of the best artists in prison. The elders emphasised this positive aspect of your life, and they encouraged you to continue to be proud of your ability to paint, and to use it to remind yourself of your self-worth, and to help build your self-esteem, and of course your connection to culture.
116I have taken into account your engagement in the sentencing conversation.
117I also want to mention separately the participation in the conversation of one of your victims, Ms Keegan, and also her mother, both of whom challenged you in a remarkably controlled and measured way, given the circumstances. The points they made were constructive, highly relevant and unassailable, and I hope they hit home to you and resonate with you for years to come.
Remorse
118During the sentencing conversation, you expressed remorse for your actions and for the profound impacts that they caused to your victims. I accept that your expressions were genuine, and that you are remorseful in your own way.
119Your capacity for remorse appears complicated, and your expression of remorse lies in contrast to the report of Dr Ducat, pre-dating your offending, which describes you as having 'very little victim empathy.'[27] I have concluded that the enormity of your crimes, the sobering experience of facing a lengthy term of imprisonment, and the experience of the sentencing conversation has seen a maturation of your responses. I accept that you are remorseful, and that you appreciate, to an extent, the impacts that your actions have had on your victims.
Early plea
[27] Report of Dr Lauren Ducat dated 19 June 2020, page 6.
120Your plea of guilty is of particular utilitarian significance given the crisis that currently exists within the trial lists in this court. It is conceded by the prosecution that your plea facilitated the resolution of the matter at the earliest reasonable opportunity, and I take this into account. I accept it is reflective of some remorse.
Impacts of COVID-19
121Your remand on these charges has been entirely in the context of the COVID‑19 pandemic. The particular hardship caused by the pandemic is well documented, and I take that into account in determining your sentence, that is, the particular hardship caused for those in custody by the pandemic.
Other Sentencing Considerations
122I have applied the principle of totality in arriving at the sentences and total effective sentence I will impose. As I have stated, your case requires a difficult balance between the substantial mitigatory matters to which I have referred and the protection of the community, which, given all of the material before me, has been at the forefront of my mind.
123General deterrence remains very important, although moderated to some degree. Specific deterrence is also a significant factor in your case, as is denunciation and having appropriate regard to your prospects of rehabilitation, which, whilst bleak, are not extinguished.
124The framework promised by the MACNI support provides some light in your case. It is in the community's interest that the opportunity be grasped for one still so young, to see you on parole with such intensive support. For those reasons, I have acceded to the submission for a longer than usual parole period.
Sentence
125I sentence you as follows, Mr Charles, and you can remain seated.
126On Charge 1, burglary – you are sentenced to 10 months' imprisonment.
127On Charge 2, theft – three months' imprisonment.
128On Charge 3, armed robbery – three years and 10 months' imprisonment (base sentence).
129On Charge 4, burglary – 10 months' imprisonment.
130On Charge 5, criminal damage – one month imprisonment.
131On Charge 6, attempted theft – two months' imprisonment.
132On Charge 7, armed robbery – three years and 10 months' imprisonment.
133Two months of the sentence imposed on Charge 1, and two months of the sentence imposed on Charge 4 will be cumulative upon each other and on the base sentence.
134I order that eight months of the sentence imposed on Charge 7 be served cumulatively on the base sentence.
135That makes a total effective sentence of four years and 10 months' imprisonment. I set a non-parole period of two years and six months.
136I declare that you have served 334 days by way of pre-sentence detention.
137Pursuant to s6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have sentenced you to a total effective sentence of six and a half years, with a non-parole period of four years.
138HIS HONOUR: That's the sentence imposed. Are there any matters, Ms Price or Ms Davison, that I've overlooked?
139MR DAVISON: No, Your Honour.
140MS PRICE: No, Your Honour. May it please the court.
141HIS HONOUR: All right. Thank you. Yes, we'll adjourn the court.
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