Director of Public Prosecutions v Cream
[2021] VCC 366
•30 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-00173
CR 18-02054
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW CREAM |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 March 2021 |
DATE OF SENTENCE: | 30 March 2021 |
CASE MAY BE CITED AS: | DPP v Cream |
MEDIUM NEUTRAL CITATION: | [2021] VCC 366 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Aggravated carjacking – armed robbery – theft of a motor vehicle – intentionally damage property - intellectual disability – mandatory sentencing regime – special reasons exists.
Legislation Cited: Criminal Procedure Act 2009; s 145, Sentencing Act 1991; 83A(d), 5(2G), 10A, 10AD; Crimes Act 1958; 79A.
Cases Cited: DPP v Cream [2019] VCC 1494.
Sentence:Total effective sentence of five years and three months imprisonment with a non-parole period of three years imprisonment before being eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Teo | Director of Public Prosecutions |
For the Accused | Ms J. Buxton | SLKQ Lawyers |
HIS HONOUR:
1Matthew Cream, on 12 March 2021, you pleaded guilty to the following charges:
1a) A breach of a community correction order (“CCO”) which was imposed on you by this court on 13 September 2019. The CCO was to commence on your release from custody on 9 January 2020. The CCO was part of a combination sentence with an 18 month term of imprisonment for a single charge of armed robbery. I am ordering that that CCO is cancelled and you will be sentenced afresh on that charge of armed robbery.
1b) You are also to be sentenced for the breach of the CCO under s.83A(d) of the Sentencing Act 1991. I set out my reasons for sentence for the single charge of armed robbery on indictment No. J1183049 on 13 September 2019. The case citation is DPP v Cream [2019] VCC 1494. The circumstances of the offending, your personal circumstances and the sentencing considerations are set out in that decision. The same sentencing considerations apply to the re-sentence process for your breach of the community correction order.
2On the charge of armed robbery you are convicted and sentenced to two years' imprisonment.
3On the charge of the breach of the community correction order you are convicted and sentenced to one month imprisonment.
4I will deal with the cumulation of those sentences at the end of the reasons for sentence.
5In respect of indictment No.C2013310 you pleaded guilty to the following charges:
Charge 1, armed robbery. This charge has a maximum penalty of 25 years' imprisonment.
Charge 2, theft of a motor vehicle. This charge has a maximum penalty of 10 years' imprisonment.
Charge 3, aggravated carjacking. This charge has a maximum penalty of 25 years' imprisonment.
Charge 4, intentionally damage property. This charge has a maximum penalty of 10 years' imprisonment.
6You consented to a number of related summary charges being dealt with in the plea hearing pursuant to s.145 of the Criminal Procedure Act and you pleaded guilty to the following related summary charges:
Summary Charge 6, fail to stop on request of police. This charge has a maximum penalty of 20 penalty units or four months' imprisonment.
Summary Charge 7, assault with a weapon. This charge has a maximum sentence of 15 penalty units or three months' imprisonment.
Summary Charge 9, exceeding the speed limit by 45 kilometres per hour. This charge has a maximum penalty of 20 penalty units.
Summary Charge 10, driving whilst disqualified. This charge has a maximum penalty of 240 penalty units or two years' imprisonment.
Summary Charge 11, drive at a speed dangerous. This charge has a maximum penalty of 240 penalty units or two years' imprisonment.
Circumstances of the offending
7The prosecutor filed and read in open court a summary of prosecution opening with some amendments. All of your offending occurred within 12 days of your release from custody on the CCO with a justice plan that I have previously referred to.
8You were to be met at the prison upon your release so that the justice plan arrangements could be commenced. The communications to you failed to ensure a seamless transition for you from prison to Community Corrections Services control of a justice plan.
Charge 1 and 2
9On 20 January 2020, at approximately 4.10 am you along with two co-accused attended at the United Service Station located at 259 Burwood Highway in Box Hill. All three of you walked through the service station pump area on foot toward the front entry door of the service station with hoods and hats over your heads to conceal your identities. An attendant Mr Gupta saw the offenders walking and locked the front door from behind the counter.
10One of your co-accused, Mr Gouros, walked towards the front glass doors and used a hammer to hit the glass door, shattering the glass allowing him to enter the store. He has then approached the counter pointing a hammer at the attendant. You and another co-accused who is a minor have followed behind Mr Gouros into the service station. You were also holding a silver kitchen knife and pointing it at the attendant. Mr Gouros demanded cash while pointing the hammer at Mr Gupta making him open the till in fear of his safety. Mr Gouros grabbed the till and handed it over to you.
11Mr Gouros has then walked to the staff entry door and used the hammer to hit the door in trying to gain access behind the counter. It did not open but the strike left a dent within the door before he returned to the counter and attempted to jump over it. Mr Gouros was prevented from jumping over that counter by the horizontal security wires. He then demanded Mr Gupta open the doors to allow him behind the counter and Mr Gupta complied. Mr Gouros opened the cigarette cabinets and with the other co-accused began filling the bag with cigarettes. At the time his hood, that is Mr Gouros' hood came off his head revealing his identity.
12You stayed with Mr Gupta holding the knife and pointing it at him. Mr Gouros demanded from Mr Gupta the car keys and Mr Gupta handed them over. Once the cigarettes were obtained by the three of you, you all ran from the store and got into Mr Gupta's vehicle. It had personalised numberplates. Mr Gouros was the driver. You and the other co-accused got into the car and you departed the scene. The incident was captured on CCTV which clearly depicts Mr Gouros' face with specific facial features to identify him.
13Approximately 4.15 am that same morning police attended at the scene where photographs and forensics and fingerprints were taken.
Charge 3
14At 5.10am on that same morning, Mr Gouros had driven the stolen Honda vehicle to Willsmere Road in Kew where the victim of this offence, Mr Wei Wei was making delivery for to a newsagency. Mr Wei Wei had parked his vehicle being a white Toyota Camry on the side of the road outside the newsagency. Mr Gouros drove past before performing a U-turn and then pulling up partially in front of Mr Wei Wei's vehicle to stop it being able to leave. You and your co-accused got out of the vehicle. You then produced a knife and yelled to Mr Wei Wei, 'Get out of the fucking car now, cunt. Get the fuck out now. Get out of the car' et cetera.
15Mr Wei Wei complied with the demand and got out of his car. You have then got into the driver's seat and your co-accused got into the front passenger seat. Mr Gouros remained in the Honda that you had stolen earlier throughout the incident and was blocking the vehicle into the carpark whilst you and your co-accused got into the Camry vehicle. As you and Ms McGrath were leaving the scene you threw the dash camera out of the vehicle onto the road which was collected later by Mr Wei Wei and footage was provided to the police. The incident was captured on CCTV from Simply Stylish Dog Grooming Salon in Kew which depicts the Honda Accord arriving and the co-accused and yourself getting into the passenger seat of the Toyota Camry.
Summary Charges 6, 9, 10 and 11
16Later that day at approximately 2 pm you were driving the stolen Toyota Camry in Romsey Street in Woodend where police detected on a mobile radar measuring device the speed of 129 kilometres per hour. The police activated lights and sirens on the vehicle and indicated for you to pull over. You did not do so, and you continued at a fast rate of speed putting members of the public and other road users at risk.
17The next day, that is 21 January 2020, at approximately 8.40 am you were driving through the carpark at Westfield Shopping Centre in Airport West in the stolen Toyota Camry. You believed that staff members of the Star Carwash were looking at you, so you stopped and got out of the car. You approached the staff member Mr Singh and struck him twice in the arm with a hammer causing bruising. After hitting Mr Singh you then turned around and struck a customer's Holden motor vehicle causing the window to break. That incident was also captured on CCTV and depicts you in the same clothing that you'd worn the previous day on the 20th of January 2020.
18The stolen Camry was later located at 4.10 pm on Palm Avenue in Reservoir. The co-accused, that is your underage co-accused's fingerprints were located on the vehicle. You and the co-accused were arrested at a premises in Reservoir on 23 January 2020. A search of the residence located a blue hat and shoes which were worn by you during the armed robbery. You participated in a record of interview after you were arrested. In relation to the armed robbery your responses were 'No comment.'
19In relation to the aggravated carjacking charge, you stated that a mate dropped you off and he pulled out with is knife. At the time of the offending you said you were on ice and juice and that you had a lot of it. You stated that you opened the door, grabbed the bloke by the throat with the knife and told him to get out of the car. You said that the victim had hopped out of the car and then you took off with the car.
20When you were asked about your co-accused you said that you were with a female friend, but you declined to name her. There was a car chase you say in Coburg and it only lasted for a couple of minutes. You got away by driving on the wrong side of the road. At Airport West Shopping Centre carpark you stated about that incident that the bloke had kept staring at you and you did not like it so you got out and hit him. You hit him with the hammer. You just opened the door, 'What are you staring at? A couple of them ran off and this one came up to me so I hit him with the hammer.'
21When you were asked about the cigarettes at the petrol station you said there were probably 70 packets in a beanbag and you only ended up with a couple of those packets. You stated that you struck the window of the car because you were angry.
Victim Impact Statement
22In this case a victim impact statement was filed by one of the victims, Mr Wei Wei who was a victim of the carjacking charge. His victim impact statement was dated 5 June 2020. It was Exhibit C on the plea. The victim impact statement as read in full into the record of the court. In summary the statement set out how hard Mr Wei Wei had worked delivering papers or working for the newsagency and also Uber driving in an attempt to earn a living whilst in Australia on a student visa. He had undergone psychological counselling subsequent to your offending. He has put some more security in his replacement vehicle which was at considerable cost to himself. He has managed to complete his studies, but he has decided to change his plans of staying in Australia and return to China because he feels unsafe here. Quite clearly your offending had a significant impact on him.
Personal Circumstances
23At the time of your offending which is the basis for the breach of the community correction order imposed on you on 13 September 2019, you were then 23 years old. At the time of the sentencing hearing you were 24 years old. By the time you were before this court for sentence on this occasion you had turned 25 years old.
24On 9 January 2020, you were released from prison for the armed robbery charge which was committed on 11 July 2018. This was the day your community corrections order with the condition of supervision, judicial monitoring and a justice plan was to commence. Due to a breakdown in communications between you and the authorities that were going to supervise your justice plan, you left the prison gates and you took the course to meet up with some of your past associates.
25You have committed offences on 10, 11, 16, 18 and 19 January 2020. This offending is not part of this sentencing process because you’ve already served sentence for most of that offending since your arrest for the current offences before the court. The current offences which you have admitted to were committed on 20 and 21 January 2020. In summary, for the 12 days of liberty from your last custodial sentence you have offended on seven of them.
26You have experienced a very difficult life from a very young age. You were raised by your mother until approximately the age of three. Since that time you have been in foster care placements and subsequently, times in the juvenile justice centre for your own protection. Your father died as a result of a heart attack in 2008. You had had little to do with your father during his lifetime. Your parents separated in 2000 or 2001 when you were five or six years old and by that time you were already in DHS care. Both of your parents had been polydrug users and abusers. Your father was in a cycle of release and return to prison prior to his death.
27You were exposed to abuse by your parents and described your young life as 'pretty shit' to Linda Borg, who was the neuropsychologist who had examined you. I am referring to Exhibit 2. You have a history of a diagnosis of ADHD and been medicated on Ritalin in 2007. Ms Borg assessed you for a previous hearing and prepared a report dated 25 May 2018, six to seven weeks prior to the CCO offending. After conducting tests on you she assessed your intellectual functioning to be within the low average range with a demonstrated full IQ of 67.
28Her opinion as expressed in her report dated 25 May 2018, is as follows:
'In this context the most prevailing aspect of Mr Cream's presentation and cognitive profile is a significant compromise in the verbal intellectual inabilities in the absence of verbal memory impairment. Specifically he presents with, 1) difficulties with comprehension of verbal instruction and a limited vocabulary, and 2) impaired acquisition of verbal information. That is word meanings and general knowledge, 3) poor educational attainment and paucity of vocational pursuits and 4) a developmental history categorised by early learning and literacy difficulties.
Additionally Mr Cream presented with deficits in high order attention, processing speed and working memory as well as a mild degree of executive dysfunction categorised by impairments to verbal reasoning and complex planning. In the light of these findings and his history it is considered that Mr Cream present predominantly with a developmental learning disability, namely a specific language and reading impairment. The additional deficits are demonstrated in attention to the executive function also likely to affect the ongoing deficiencies associated with the childhood ADHD. His profile is not in keeping with an intellectual disability nor is there any evidence to support a possible closed head injury or hypoxic brain injury.'
29You have also been examined by Carla Lechner, a clinical psychologist, for the purpose of this plea hearing. Her report is dated 18 December 2020 and was Exhibit 3 on this plea. Ms Lechner assesses you as being diagnosed with stimulant and opioid use disorder and complex developmental trauma. In her opinion you are already showing signs of institutionalisation. You have been assessed as having an intellectual disability within the meaning of the Disability Act 2006, that is Exhibit 9. Exhibit 9 was a letter from the NDIS dated 6 December 2019 setting out your disability plan in advance of your release from prison in January 2020.
30You have a limited education. You attended primary school to Year 5 when you were expelled due to behavioural traits or issues. By that time you had repeated Grade 5 and you had also repeated Grade 4. You are functionally illiterate. Exhibit 5 was a letter to the court which had previously been filed in the 2019 sentencing process which was prepared by a fellow inmate because you cannot read or write.
31A DHS report dated 1 May 2012 sets out and confirms the following about your history:
a) On 17 October 2005, a guardianship order was made in respect of you;
b) In April 2003, a supervision order was made in respect of you;
c) In the period between 1995 and 2002, that is from your birthdate onwards, 13 reports of concern were made in respect to your welfare. After serving time in Melbourne Youth Justice Centre in November 2011 you were then placed with Ms Cream.
32You had one stable period in your life when you were placed in foster care with Anne Cream who described herself as your stepmother, that was in Exbibit 5. This foster care placement took place in 2011. Ms Cream provided two references that are Exhibit 6 and 7, which set out a frank assessment of your upbringing and your future chances but nevertheless, she vows to stand by you.
33After you were 16 years old you were then placed with Ms Deanne Sutton. In her letter which was Exbibit 4 on this plea, she described you as institutionalised and not able to handle either life inside prison or outside in society. She stated that after your motor vehicle accident in 2015 and your resultant head injury you had not been the same person.
34In that accident you were a passenger in a motor vehicle accident in 2015. You had significant physical and head injuries. Ms Borg did not diagnose an acquired brain injury as a result of that accident.
35You have had a long term alcohol and drug abuse history. You started with alcohol at the age of 12 or 13 years old. You also commenced cannabis at the same time. By the age of 16 you had commenced using heroin. By the age of 17 you had commenced using methylamphetamine. Since 2017 your ice use had increased into a daily use whilst you were out in the community. In short, your parents were drug abusers and you have followed their example. You have even been hospitalised in the Royal Children's Hospital in the past after an overdose of a combination of alcohol and benzodiazepine. You informed Ms Lechner that you are currently prescribed Effexor for depression. You have recently commenced on the methadone program because you have been accessing buprenorphine in custody. You told Ms Lechner you do not use alcohol anymore because it makes you sick.
36Your criminal history is extensive. You have some 13 prior adult court appearances. Your offending includes dishonesty, violence, drug offending. You have been in and out of custody since 2014. You have been given a CCO with a justice plan in March 2014 when you had just turned 19 years old. It was the same opportunity I gave you in 2019. You did not comply with either orders.
37On my calculation of the last six years you have spent five of them in custody. You present to this court as a serious risk of institutionalisation at the age of 25.
Sentencing Considerations
38The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community.
39In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am also required to balance the interests of the community in denouncing your criminal conduct with the interest in the community seeking to ensure as far as is possible that you as an offender are rehabilitated and reintegrated into our society.
40I am required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another. Of course current sentencing practices are only one of the matters I am required to take into account in this sentencing process.
41You have pleaded guilty to a charge of aggravated carjacking pursuant to s.79A of the Crimes Act 1958. Aggravated carjacking is punishable by a maximum penalty of 25 years' imprisonment. Aggravated carjacking is Category 1 offence for the purpose of the Sentencing Act. Section 5(2G) of that Act requires mandatory terms of imprisonment to be imposed. This charge, that is charge 3 on the indictment, in this particular sentencing process, s.10A(d) of the Act requires the imposition of a term of imprisonment of not less than three years 'unless the court finds that under s.10A that a special reason exists the court must also fix a non-parole period in accordance with s.11 of the Act. Should the court find that a special reason exists to not impose a mandatory minimum term of imprisonment s.5(2G) still applies. That is the term of imprisonment imposed cannot be combined with a corrections order.'
42Section 10AD and s.10A(3) (ae) of the Sentencing Act dictates that the minimum non-parole period of not less than three years imprisonment applies in your case as you were over 18 years of age at the time of your offence. The Parliament set out a regime of s.10A of the Sentencing Act for an offender such as yourself to escape the operations of s.10AD.
43In short, you can prove a special reason exists on the balance of probabilities that are substantial and compelling circumstances that are exceptional and rare and that are justified in doing so.
44A court must take into account the following matters when determining whether there are substantial and compelling circumstances and they are as follows:
a) General deterrence and denunciation of your conduct have greater importance than any other sentencing purpose set out in s.5(1) of the Sentencing Act.
b) Give less weight to your personal circumstances than matters such as the nature and gravity of your offence or offending.
c) The court must not have regard to the following matters:
1) Your previous good character. As I have noted earlier you have an extensive criminal history.
2) Your plea of guilty.
3) Prospects of rehabilitation; and
4) Parity with other sentences.
45In this case you have one co-accused who is going to be subject to this particular offence.
46I am satisfied on the balance of probabilities that the combination of your intellectual disability and your diagnosis of complex developmental trauma as a result of your extremely deprived upbringing from the early stage of three years amounts to substantial and compelling circumstances which are the special reason why the mandatory minimum non-parole period for the offending of aggravated carjacking does not apply to you.
47The law of sentencing as set out in respect of mandatory minimum non-parole periods is a change to the sentencing considerations that have developed over decades in this jurisdiction that are based on individualised justice in sentencing. Those principles still have application in assessing the overall sentence for this offence and your offending generally on this occasion.
48You have pleaded guilty to all the charges. Your pleas of guilty were indicated at an early stage and your pleas do have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending.
49Your plea also allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in legal process set up to protect the community and your plea has avoided the necessity of the victims of your offending to relive their experiences by giving evidence against you in a trial.
50Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you were willing to facilitate the course of justice in the community and I accept that your pleas of guilty to these charges indicates and demonstrates remorse on your part.
51I note in your letter which was Exhibit 5, shows some understanding of the crime cycle that you are in and your desire to exit it through rehabilitation from drug use. Your present detention has been the longest period of drug absence in your life save and except the prescribed medications you get in prison.
52Charge 1 on the indictment was a charge of armed robbery. The seriousness of your offending is indicated by the following factors:
a) The maximum penalty set down by Parliament is a 25 year imprisonment;
b) You offended with an accomplice who was 16 years old at the time and another accomplice who was the leader on my assessment of the offending who carried the hammer;
c) You had a knife weapon with you at the time of the offending;
d) Your victim was alone and a soft target in a service station in the early hours of the morning;
e) The offending did occur at night time;
f) There was some degree of planning, although not a lot, about this offending; and
g) the offending was over in a short period of time.
53Having stated all of that I assess that this offence was at a medium level for armed robbery offending. I take account of your extensive criminal history. You were only at liberty from the previous period of incarceration for a period of 12 days when you committed this offence. This of course is indicative of your profile both criminal and personal that you are approaching being an institutionalised person. You were also at the time of that offence subject to a CCO.
54The aggravated carjacking charge which has a maximum penalty of 25 years’ imprisonment is also a serious offence indicated by the following factors:
a) This was a night time interception of the vehicle;
b) The victim was alone attending to his work at a newsagency;
c) You used a knife and threats of violence to your victim;
d) You offended in company with your young accomplice;
e) There was a minimum of planning. This was opportunistic offending indicated by the U-turn made by Mr Gouros;
f) There was a short period of the time of the offending itself; and
g) there was no physical harm that came to your victim but there was financial loss and a mental reaction by him to your offending.
55The other offences of theft of a motor car and intentionally damaging property on the indictment are also serious offences on innocent members of the public going about their lives in a lawful manner. Overall your offending was a crime spree over a limited timeframe of two days.
56I have taken into account the principles of parity of sentencing. In respect of the armed robbery charge, Charge 1 on this indictment, your co-accused Mr Gouros was sentenced to a period of four years' imprisonment. Mr Gouros has a very significant criminal history and was five years older than yourself and was a principal offender in the armed robbery charge. Your other co-accused who I note was the same co-accused in the breach of the CCO armed robbery charge was placed on probation in the Children's Court jurisdiction.
57Your sentence for this offence is placed in between those two sentences to properly reflect parity of sentencing.
58The most serious offending in your cluster of offences is the aggravated carjacking and it is appropriately the base sentence in this overall sentencing process. I have taken into account the principle of totality when assessing the cumulation of all the sentences in this case.
59As I have previously noted you have been in custody for at least five of the six years just past. You are a serious risk of becoming institutionalised at the age of 25 years. I have fixed a non-parole period which is designed to encourage you to take up the opportunity that hopefully will be afforded to you by the Adult Parole Board. You have been previously placed on a justice plan that never got started due to this offending here.
60The community would be best protected if you are rehabilitated under strict control of the Adult Parole Board taking into account your intellectual disability, your drug addiction and drug problems and your extremely deprived upbringing from an early age.
61Again, I have taken into account your deprived and dysfunctional upbringing and abandonment in assessing your moral culpability for this offending overall. I accept your upbringing raises the issue that you are not a proper vehicle through which to show general deterrence and specific deterrence from incarceration in the sense that the sentence would be reduced from the normal person. I also accept that your intellectual disability will make your time in custody more difficult and hence becomes more burdensome for you and that is backed up by the comments made by Ms Cream in her letters.
62The only appropriate sentence for all of your offending in this case is a term of imprisonment with a fixed non-parole period. Whilst general and specific deterrence are moderated in your sentence, protection of the community has a role to play in your sentence given that short time it has taken you to offend from the time of your release from prison.
63Would you stand please.
64In respect of the earlier charge that is armed robbery Charge 1, you are convicted and sentenced to two years' imprisonment.
65In respect of the breach of the community correction order you are convicted and sentenced to one month imprisonment.
66In respect of the armed robbery charge on the second indictment you are convicted and sentenced to two years and six months' imprisonment.
67On Charge 2, theft of a motor car, you are convicted and sentenced to nine months' imprisonment.
68On Charge 3, the aggravated carjacking you are convicted and sentenced to three years' imprisonment. That is the base sentence.
69On Charge 4, intentionally damage property, you are convicted and sentenced to three months' imprisonment.
70On the Summary Charge 6, that is failing to stop, you are convicted and sentenced to one month imprisonment.
71On Summary Charge 7, assault with a weapon, you are convicted and sentenced to one month imprisonment.
72On Summary Charge 9, which is exceeding the speed limit you are convicted and fined $300.
73On Summary Charge 10, which is drive whilst disqualified you are convicted and sentenced to two months' imprisonment.
74On Summary Charge 11, which is driving at a speed dangerous you are convicted and sentenced to three months' imprisonment.
75The cumulation is as follows, six months of the sentence in the first armed robbery, so that is the earliest armed robbery, one year and three months of the second armed robbery sentence, three months of the heft of the motor car sentence for Charge 2, one month of the sentence in Charge 4, one month of the sentence in Summary Charge 7 and one month in the Summary Charge 11 are to be served cumulatively upon each other and upon the base sentence for the aggravated carjacking of three years' imprisonment.
76That is a total sentence of five years and three months imprisonment.
77I fix a non-parole period of three years.
78But for your plea of guilty pursuant to s.6AAA of the Sentencing Act I would have sentenced you to seven years and six months with a five year and six month minimum term.
79My calculation, members of counsel, given what was said to me is 736 days of pre-sentence detention.
80MR TEO: That's what I have, Your Honour.
81HIS HONOUR: Yes.
82MS BUXTON: And me.
83HIS HONOUR: Thank you. I declare that you have served 736 days pre-sentence detention not including this day. There is a disposal order which I think I have which I will sign.
84On Indictment Charges 2, 3 and the Summary Charges 9 and 11, I order that all licences are cancelled and that you are disqualified for a period of two years from obtaining any licences.
85Does that cover all matters I have to deal with?
86MR TEO: Did Your Honour make a finding as to whether or not the aggravated carjacking was a serious motor vehicle offence? I'm not sure whether Your Honour needs to declare that or not.
87HIS HONOUR: Right. Well it is. I find that - sorry, do I have to make a declaration specifically?
88MR TEO: I don't believe so under the Act that you need to make a formal declaration.
89HIS HONOUR: I think my sentencing remarks clearly state that it is a serious motor vehicle offence or it is a serious offence full stop.
90MR TEO: The definition of a serious motor vehicle offence under the legislation requires a finding that it arose out of the influence of an alcohol or a drug at the time, Your Honour.
91HIS HONOUR: Yes. Given the admissions made by the prisoner at the time of his intercept or record of interview with police he was - I find that is the case, that it is a serious motor vehicle offence.
92MR TEO: Thank you, Your Honour.
93HIS HONOUR: Mr Cream, that completes this sentencing process. Last time when I sentenced you, I was hoping that a justice plan would deal with all of your problems and give you a chance to get a lot of support and get back some of your life.
94OFFENDER: Yeah.
95HIS HONOUR: Unfortunately that did not take place so this time around if you are granted parole, if you are ‑ ‑ ‑
96OFFENDER: Yeah.
97HIS HONOUR: ‑ ‑ ‑ and you have to earn it as you know ‑ ‑ ‑
98OFFENDER: Yeah.
99HIS HONOUR: ‑ ‑ ‑ just take this chance otherwise you are going to spend your whole life in prison.
100OFFENDER: Yeah.
101HIS HONOUR: Okay. Thanks.
102OFFENDER: Thank you.
103HIS HONOUR: Counsel, thank you both for your help in this matter.
104MS BUXTON: Thank you, Your Honour.
105MR TEO: Thank you, Your Honour.
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