Director of Public Prosecutions v Dand
[2024] VCC 1791
•11 November 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-24-01060
Indictment No. P12667557
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW DAND |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 November 2024 |
DATE OF SENTENCE: | 11 November 2024 |
CASE MAY BE CITED AS: | DPP v Dand |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1791 |
REASONS FOR SENTENCE
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Catchwords: Attempted aggravated carjacking. Carriage of knife hence attempted aggravated carjacking; attempt to carjack Uber driver’s vehicle in the early hours when collecting a customer; common assault; punch through window; summary matter; commit indictable offence on bail; disadvantaged background; Bugmy; 27 years of age at time of sentence (26 years old at commission date); lengthy enough prior criminal history; early plea; some remorse; Verdins limbs 1, 3, 5 & 6.
Cases Cited:R v Verdins [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37; DPP v Herrmann [2021] VSCA 160; DPP v Terrick [2009] VSCA 220; Marrah v The Queen [2014] VSCA 119; R v Lacey [2007] VSCA 196 and R v McKee, R v Brooks [2003] VSCA 16
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Dane | Office of Public Prosecutions |
For the Accused | Mr J. Portelli | Victoria Legal Aid |
HIS HONOUR:
1Andrew Dand, you pleaded guilty the week before last (Friday 1 November 2024) to one charge of attempted aggravated carjacking and one charge of common assault. You also pleaded guilty to a single related summary offence being an offence of committing an indictable offence whilst on bail.
2You are now 27 years of age. You have admitted a relatively long criminal history before the courts both in Victoria and Tasmania.
3The maximum penalties are correctly set out in the opening.
4The attempted aggravated carjacking is not a category 1 offence or subject to the mandatory non-parole provisions that apply as it is laid as an attempt. I will act on the Crown submission in that regard.
Facts
5I turn then to the factual basis of sentencing but I will do so very briefly as on the day of the plea, the prosecutor Ms Dane opened this case to me in accordance with a written summary of prosecution opening for plea dated 7 October 2024. That document was marked as Exhibit A on the plea. Some CCTV footage was tendered on the plea as part of that same exhibit and the depositions contained some stills from that footage as well as some other relevant photographs including for instance, a photograph of the knife. No-one needed those photographs to be marked as exhibits. They are in the depositional material.
6In fact, your counsel Mr Portelli informed me that Exhibit A, the written summary of prosecution opening, was an agreed factual statement. There is then no point in my setting out all of that detail in my reasons. I will sentence pursuant to the agreed document and the footage and the stills.
7So it is then I will provide only the briefest of summaries so that these remarks and my ultimate sentence can be readily understood by anyone who accesses my reasons once they come to be published, as they will.
8Your victim, Mr Mujahid Hussain, was a 38-year-old man who had the misfortune to come across you whilst he was working as an Uber driver in December of last year. In the early hours of Tuesday 19 December 2023, he went to an address in Clara St, South Yarra to pick up his client, a Ms Rhiannon Daniel. She had booked his services. The driver arrived at the nominated address at 3.48 am and just as Ms Daniel was making her way to the car, you appeared on the scene with a colleague, a Ms Canavan. You were wearing a black baseball cap and black sunglasses and you had wrapped a white shirt around your face to obscure your features. You were holding a hunting knife and as you walked closer to Ms Daniel you said to her ‘don’t worry sis, I won’t hurt you, I’m just jacking’ referring to your intention to carjack Mr Hussain's Uber vehicle. You put the knife down the front of your pants and said to Ms Daniel ‘see I’ve put it away’. It must be said you were far less concerned about the feelings of the driver, for you then approached the front passenger door and then ran around to the front of the car and tried to open the driver's side door. You pulled the knife out of your pants, yelling at the victim saying ‘do you know what I have?’ He was trying to wind up the window and as he did so you punched him to the temple through that partially opened window.
9You then fled on foot. The matter was reported to the police and about 30 minutes later, you and Ms Canavan were located by police and after a short chase, you were then arrested. You were both very much unfit for interview.
10Police located the white shirt that had been used by you to disguise your appearance. They also found the knife secreted in a fire hose reel box. I have mentioned already the CCTV footage which was obtained and the stills are before me as well as that blurry footage. It is very plain that you had taken steps to disguise yourself. That was not in dispute at all.
11You were charged on the day and you have been in custody since, though a fair bit of that period was either declared in relation to another sentence that was imposed in April of this year or for that matter, was the remaining portion of that straight six month term.
12The agreed summary sets out the chronology of the matter before the Court. It was an early plea. Ms Canavan was dealt with only for some Bail Act offences and so there is no issue of parity of sentence in terms of the conduct in Clara Street. Nor will I treat the attempted aggravated carjacking as occurring ‘in company’ despite the Crown submission on that score.
13So much then for what really is only a brief summary of your offending. I will sentence pursuant to that agreed statement, the CCTV footage marked as part of that same exhibit and also the still photographs within the depositional material.
14Let me then turn to the impact of your crime.
Victim impact material
15Even without an impact statement it would be pretty obvious that this was a frightening offence. Though the customer Ms Daniel has not made an impact statement, her written police statement described the fear that she felt being caught up in this event. She was terrified. The driver in his written statement described feeling shocked and scared. He was visibly shaken when dealing with the police. These various matters set out within the depositions are not in dispute. As a matter of fairness though, I raised them with your counsel and he had no issue at all in my acting on that material that I had raised.
16Mr Hussain had also prepared a very brief impact statement where he cites being unable to work properly with less concentration, restlessness, fear and distress occasioned by your offending.
17I take into account the impacts of your crime. No doubt there was that immediate impact.
18It was a frightening offence. No doubt neither of these people, Ms Daniel or Mr Hussain will ever forget this conduct. However, I cannot factor in any long term or profound impact here as there is no suggestion that that has been the position.
In Mitigation
19The plea in mitigation was conducted the Friday before last by Mr Portelli who appeared on your behalf. He was very well prepared indeed and conducted an excellent plea on your behalf.
20He had filed a written outline of submissions dated 26 September 2024.
21He had also filed a recent neuropsychological report from Ms Scott as well as a range of contemporaneous materials from various health or allied health or child protective workers who had seen you in much earlier periods of your life. Those things comprehensively document the obviously unenviable family background that was served up to you. The long report from the Child Trauma Academy makes for some pretty sad reading. So too some of the earlier reports including those when you were nine and ten years of age and had already by then, such a compromised sense of your own worth. Mr Portelli also filed a number of course completion documents evidencing the efforts that you have been making in custody.
22In the written materials including the written plea submissions, supplemented by the oral submissions that he made, Mr Portelli placed before me great detail as to your family, placement, educational, work, relationship, drug, and mental health history. He conceded the relevance of your quite lengthy criminal history before the Courts.
23He made some submissions as to the objective gravity of the major offence being of course the attempted aggravated carjacking, as well as the various purposes of sentencing and the way that he said they could be taken into account by me. He submitted there were some prospects of rehabilitation and that you had some motivation to alter your life.
24In what was a most thorough plea conducted on your behalf, he relied chiefly upon the following matters in mitigation:
·your early guilty plea;
·the presence of some remorse;
·your significantly disadvantaged background (Bugmy[1]);
·the application of limbs 1, 3, 5 and 6 from the well-known decision of Verdins[2].
[1]Bugmy v The Queen [2013] HCA 37 (“Bugmy”)
[2]R v Verdins [2007] VSCA 102 (“Verdins”)
25He conceded the seriousness of the major offence being the attempted aggravated carjacking and the inevitability of a prison sentence but argued that it would be open to impose a prison term and provide for your ultimate release onto a community corrections order some time down the track.
Prosecution
26The prosecutor on the plea, Ms Dane, had filed some written sentencing submissions that were dated 31 October 2024. That written document was of high quality as well and it contained detailed submissions as to the nature and the gravity of the offending and it dealt with matters of sentencing principle. I see no need to set those submissions out as the reality is that the prosecution written and oral sentencing submissions were pretty uncontroversial in this case. There really was no serious dispute as between the parties other than as to the possibility of a combination type sentence, the application of limbs 5 and 6 from Verdins, and perhaps the adjective to apply to describe the relative gravity of the major offence. Also the characterisation of the attempted aggravated carjacking as being one committed in company. On that score plainly it was not, though perhaps it might have appeared to be to Mr Hussain who was seeing two people at the scene. That appearance though does not elevate your culpability for an offence that was committed by you alone.
27The Crown argued that a combination sentence was not open in this case. They conceded though a number of matters raised in mitigation by your counsel. They also informed me of the matters for which you were on bail at the time by filing four summaries. Those summaries were marked as part of Exhibit C. You were on bail for two of those matters, the Magdalani and Lawler briefs. You were really totally out of control in this time frame. I was told that all of those matters from those four briefs have now been dealt with already and they included a nasty robbery on a taxi driver only a week or so before the matters that I am dealing with occurred.
28The Director of Public Prosecutions was calling for a head sentence with a non-parole period.
29I am not bound by submissions made by either party as to the ambit of my sentencing powers. I do not ignore any submission made to me but of course, ultimately I have to exercise my sentencing discretion.
Background
30I will deal with the various matters raised before me shortly. Firstly though, I will deal with your background. I am going to do so as briefly as I might and that is because I have no reason not to accept the personal background placed before me. It is documented in the written submissions placed before me as well as in the many reports which have been filed. As I said earlier, many of those were contemporaneous reports and some were obviously derived from child protective files held down in Tasmania. It sometimes is the case, indeed quite often actually in my experience, that there is little, if any support, for the claim made as to a person having a disadvantaged background. The evidentiary foundation for this Bugmy type submission is often enough very shaky indeed and based on no more than self-report from an accused either to counsel, or to a psychologist engaged to provide a report on the plea. So often there is the complete absence of any satisfactory evidentiary foundation and an obvious self interest in providing details that might be of mitigatory value. As I said on the plea, this case could not be further removed from that position and that is because of the work that obviously has been undertaken by your legal team to obtain this material that has been placed before me.
31The evidence before me as to your disadvantaged background is compelling and it is for that reason that I see no need to set it all out. There is just no point in my trawling through that material which I do accept. I act on the account of your background as well as your counsel's submissions as to the mitigatory value arising from that level of disadvantage. I still should say something briefly as to that background so anyone reading these reasons will understand the extent to which it has been taken into account.
32By way then of very brief executive summary if you will, you were born in July 1997. It follows you were 26 years old at the time of the offence, 27 now. You were born in Australia. You were the second of two children. You had and still have a younger brother. Your father died back in 2017. You did not attend his funeral and that perhaps is quite understandable given the number of times that he had let you down or worse over the course of your life.
33You spent most of your childhood and adolescence in Tasmania, but I understand were taken at one stage when a toddler over to Western Australia. Wherever you went, there were serious protective concerns held by the authorities. Your parents really were completely unable to adequately look after you. Each had a variety of issues. Your father had mental health, drug and violence issues and he in fact served many prison sentences as well. He was violent to you. Your mother had serious mental health issues which led to many hospital admissions. There were protective concerns almost from the outset for you. The Child Trauma document sets out a very detailed history of that family background and the many adverse events in your life. It sets out the long history of placements following on from your being placed into the care of the relevant Department in Tasmania. You had a large number of placements set out in that report. Sometimes your parents or perhaps other relatives would show some interest and commitment to you, but as quickly lose interest or disappear off the scene. Attempts to reunite the family simply never succeeded. All these things of course had a deep impact upon you. They had an impact on your self-esteem, how you viewed the world and yourself, and of course on your education and the ultimate trajectory of your life. You fended for yourself, you were looking after your brother and felt the need to protect him or try to protect him as well. All of this when you were yourself a young child. You also had the misfortune to have ADHD and went on to develop PTSD. All of this in the setting of a child who was not functioning at a particularly high level. Your functioning has deteriorated in the years since owing to the likely combined effect of head trauma and the
long-term serious use of drugs of dependence.34On that score, drugs of dependence have been a very big problem for many years now. It is hardly surprising that you used drugs given the trauma that you had suffered as well as perhaps the negative example in that regard provided by some adults in your life. You were also, along the way, exposed to crime.
35You attended many schools. You were suspended on many occasions and also expelled. I understand that you completed Year 9. One of the reports before me is a psychological report commissioned to assess some of the serious issues confronting you as a nine-year-old child.
36The report of Ms Scott sets out some of the employment history.
37I understand that you have one child from a former relationship with Shayde. That child is a four-year-old boy.
38You have a lengthy criminal history with many court appearances in Tasmania and Victoria. There is no point in conducting a full audit of that history in these, my reasons. That document will not alter. The history will not alter. You have committed as you know a large range of different offences over the years, some of them quite serious including many aggravated burglaries. There are many dishonesty offences including car thefts and attempted car theft, though no instances of armed robbery, or attempted armed robbery or carjacking, completed or otherwise. There are some drug, violence and weapons offences as well. You have breached a number of court orders in the past and plainly you have not taken the chances that have been given to you over the years.
39You were on bail at the time of the offending I am dealing with and in fact had received a 36-day prison sentence on 5 December 2023 with the full 36 days declared. I am dealing with offending occurring only a couple of weeks later. As I said earlier in these reasons, you really were completely out of control at this time. The more detailed chronology spells that out very clearly indeed. You told Ms Scott that you were released from the July 2022 twenty‑one‑month sentence in early July 2023 and you were then taken back into custody presumably for other offending, in November 2023, for which presumably you were sentenced on that date on 5 December. The various summaries placed before me disclose that you committed the Magdalani theft on 16 October and you were then bailed.
40I have said already you received the 36 day sentence with 36 days declared at Melbourne Magistrates Court on 5 December.
41In the early hours of 10 December, you committed the nasty robbery the subject of the Lord brief. Later that morning you were out on a spree in the St Kilda area breaking a variety of windows and doors the subject of the Lawler brief, entering premises. You were arrested on that day and were bailed, for on 17 December you were out at Southland committing thefts at Rebel Sport and David Jones. You were arrested and released presumably pending summons for that matter, and here you were committing an attempted aggravated carjacking within days.
42Now look, you do not fall to be sentenced a second time for any of your past crimes. It does not aggravate this offending, but I do have to make judgments as to your moral culpability and the weight to be given to specific deterrence and community protection. I have to make judgements as to your prospects of rehabilitation. It is a matter of aggravation that you were on bail at the time of the offences I am dealing with.
43The pre-sentence detention available for me to declare has been reduced by virtue of the other sentence imposed upon you on 11 April for those matters I have just listed. The updated LEAP history is marked as part of Exhibit C. The pre-sentence detention declaration made in relation to the other sentence and the continuation of that sentence to expiry means that the strict pre-sentence detention for the matter that I am dealing with commences only on 19 June of this year. Still, that earlier period when you were in custody is not something that I can ignore. You have been continuously in custody since your arrest on 19 December of last year and of course I have regard to that fact.
44You have been doing courses and programs in custody which is a positive. I am told you are working as a billet and also that you are drug free. Again those are obvious positives. You hope to be assessed as suitable for the NDIS and hope then to receive a substantial package which would hopefully include housing costs. I cannot know if that will take place. I hope it does. It happened for your brother, but each case would be dealt with on its own facts and he has schizophrenia. I cannot factor in NDIS support with any certainty at all or make any judgements as to the nature of any package should you be approved for NDIS support.
45So much then for my relatively brief summary of the background. That is all it is. I act on the far more detailed material placed before me.
46Reading the reports from when you were nine or 10 is a bit depressing. To think of a nine- or ten-year-old with such troubled thoughts and low self-esteem at that age is sad. You are reported then as conveying a sense of hopelessness about your future and said you expected you would probably live on the streets and have nothing despite not believing that you were a bad person. Well of course you were not a bad person. You were a child. But no child should have these thoughts and yet you did. You did because of the way you had been brought up. You were a child and one whose horizons had been so narrowed to that point by what had occurred in your life to that point. You thought you would not amount to anything. Your three wishes were that your father would not be imprisoned, and that you could live with him, that he not be so scary though, and that he save up and do as he promised and buy you a PlayStation or X box. It is sad stuff indeed. A later report from 2009 has you, a 12-year-old, describing your many worries and your view that you would give your father ‘one last chance’. You were still at that stage it would seem visiting him in prison and told the author that that was your choice, but the view of that author was it was a choice in part driven by your being afraid of your father. The Child Trauma report spells out the 19 placements in Tasmania between 2002 and 2012. At the time of that report, it appears you were detained in some form of youth justice facility in that State.
47Well there was significant dysfunction and serious neglect in your early and developmental life and into your adolescence. You report some sexual abuse whilst in care as well. There was inconsistency and instability in placement, in adult role models who abandoned or damaged you and really exposed you to much that no child really should be exposed to, including drugs and crime. You do mention that there were some exceptions with some far better placements and far better carers along the way where you actually, together with your brother, felt loved and cared for.
48There was though, on the whole, fragmented education and limited opportunity and expectation and the absence of support and guidance from interested parental figures. None of this was your choosing. Your background was most unenviable and no doubt all these things have a role to play in what has been the faltering trajectory of your life.
49An offender's circumstances and their experience during their childhood and formative years must be considered in the sentencing process. This is not just a matter of some historical curiosity. It is of course well recognised that the effect of social disadvantage does not diminish with time. Taking those matters into account is merely the sign of a humane society. The disadvantage is not required to be profound for these principles to apply. It is here though, of that I entertain no doubt. Yours was a most disadvantaged background. It did not in any way give you a foundation from which you could grow and develop. There was no security. No trust. No nurturing. Little love. It did not really prepare you for adult life. A background of disadvantage as you experienced is likely to have a profound and lasting consequence, as it no doubt has had in your case. The contemporaneous reports as well as the up to date one from Ms Scott speak with one voice in that regard. There is no need to demonstrate a causal connection with the offending and nor did your counsel Mr Portelli seek to establish one here. He was relying on the general approach referred to by the Court of Appeal in the case of Herrmann[3]. Our backgrounds leave their mark and yours most certainly has. The reality is no one would choose such a background as you had and of course you had no say in it at all.
[3]DPP v Herrmann [2021] VSCA 160 (‘Herrmann’)
50The law makes it clear enough though that social disadvantage will not attract the same weight in every case, or in the same fashion. The weight to be given to disadvantage will depend on the nature and the extent of that disadvantage, the nexus, if any, with the offending, though no causal link is required, and also the nature of the crime or crimes and the relative importance in a particular case of sentencing considerations, things such as deterrence, community protection and rehabilitation. See the case of Terrick[4].
[4]DPP v Terrick [2009] VSCA 220 (‘Terrick’)
51You are now 27 years of age. This was serious offending. Community protection and general and specific deterrence necessarily must have a role to play in my task and not a minor role. There are limits to the application of these Bugmy principles. I apply them though to my task.
52In conclusion then, I give full weight to your background in the way that that phrase has been employed in these cases such as Bugmy and Herrmann and the case of Marrah[5], to which your counsel referred.
[5]Marrah v The Queen [2014] VSCA 119 (‘Marrah’)
53There is undoubtedly, amongst other things, real reduction in your moral culpability and some moderation of the punitive purposes of sentencing. However, your background is not going to alter overnight. It is your background, it remains with you, and it must be taken into account when I make judgments, as I must, as to your prospects of rehabilitation in the future and also your risk of reoffence.
54Your counsel made it clear that drugs have been a significant issue for you for a number of years. It seems clear that you were disinhibited by drug use on the morning of the offending but drug use was not being put forward in a mitigatory fashion in this case, as Mr Portelli explicitly conceded on the plea. It was quite apparent he was not relying on the Lacey[6] or McKee and Brooks[7] line of authority.
[6]R v Lacey [2007] VSCA 196 (‘Lacey’)
[7]R v McKee, R v Brooks [2003] VSCA 16 (“McKee and Brookes”)
55You have been in custody now continuously since 19 December 2023. I mentioned already you have done some courses and programs and I have said, that is a positive. It is. You are working as a billet and I am told you are drug free.
56You have, at least at the moment, very little by way of support awaiting you in the community. Hopefully that will alter with the NDIS but only time will tell on that score.
Guilty Plea
57I will turn to some of the other matters raised on the plea, firstly your guilty plea. You have taken responsibility for your crimes by pleading guilty at an early opportunity. That is important. It must and does lead to a sizable reduction in sentence. I will disclose the level of that reduction later in these reasons.
58Your victim, Mr Hussain and his passenger Ms Daniel, and for that matter other witnesses have been spared the experience of actually giving evidence in any court. Giving evidence can be quite stressful for people in Mr Hussain and Ms Daniel's position. It would force them to relive the event and that has not been necessary.
59As a result of your guilty plea, all of the time and the cost and the effort of a committal hearing in the Magistrates' Court and a trial being conducted up in this court has been avoided. I have said, those witnesses have not been required to give evidence in either court. You, I think very sensibly abandoned the contested committal which had been booked in. Those two witnesses had been summonsed to appear, but they were able to be called off as it settled the night before. They were not called.
60You have facilitated the course of justice in these various ways. You must be rewarded for doing so.
61I take these various matters into account in mitigation.
Remorse
62Your counsel argued that you had at least some remorse. He pointed to your guilty plea. A guilty plea is often but not always indicative of some remorse. He pointed also to the observations of Ms Scott. It is true that she in her report mentions the presence of remorse, but she does that in a setting where she says you were still minimising, to a degree, the severity of your actions. Your account to her of the event is in fact not what took place, denying as you did to her, any intent to steal the car and saying that you were only acting in response to the conduct of the driver who swore at you. You said that you had only approached him to get the time and that you had no intention to enter the car or steal the car. Of course, your account to her reported on pp4 and 5 of that report is not what happened at all. It is not even consistent with the plea that you have entered in this matter. There is also an agreed summary in this case. There is still, as of October of this year when you spoke to Ms Scott, a significant level of minimisation in your account of the offending. I am certainly not satisfied on balance that you have fulsome remorse here and nor was your counsel suggesting that I should reach that finding.
63I am however satisfied on the materials placed before me including the fact of your guilty plea that there is at least some remorse present in this case. I take that into account in your favour.
Ms Scott's report and the other reports - Verdins
64I turn to the Verdins submissions made on your behalf. I have a large range of documents including the recent neuropsychological report setting out various conditions you have been diagnosed with over the years. Ms Scott describes the conditions that would have been operative at the time of the offending. I see no need to set out slabs of text from the reports placed before me. These reasons are long enough as is. Your counsel points to the various diagnoses’ and says that some of the principles from that case I mentioned of Verdins have a role to play here, namely limbs 1, 3, 5 and 6. The conditions being Post Traumatic Stress Disorder, ADHD and the Acquired Brian Injury spoken of. I do not doubt that those conditions existed at the time and in that sense would surely be to some degree operative upon you at the time of the offence and beyond. The reduced cognitive capacity spoken of as an Acquired Brian Injury does not however amount to an intellectual disability. Simply, your cognitive state has declined owing to use of drugs and the possible contribution from various head injuries suffered over the years.
65What role though did these conditions actually play in this offending? There does not have to be a causal relationship but there must be at least some realistic connection. You told Ms Scott that you were heavily intoxicated with both Ice and GHB. Plainly this would have a role in disinhibiting you and exacerbating any underlying impairments arising from the conditions relied upon. Ms Scott says as much. You are impulsive but would you have acted in this way on this morning absent the illegal drugs? The fact is you were off your face on drugs. What role did they have? What role the various conditions? It really is impossible to disentangle them. Your account of the way the offence developed at pp4 and 5 is not something that I can act on. It is not what happened. Plainly there was some planning engaged here, in the sense that you were disguised, that you had the knife and that you had determined to carjack the Uber driver. Ms Scott at p15 of her report deals with your account of the event and how your various conditions would play into that factual setting, there being, she says, some provocation leading onto escalation. She really should not have factored in your account, as your account of the factual setting is completely flawed. I do not know whether you are deliberately misstating it or your account to her is what you believe took place. It does not really matter for your conduct had nothing to do with the driver's response to you. You had determined to carjack him. It was not some afterthought or tack on responding to his conduct, provocative or otherwise or responding to his acts or words or any perceived threat. So it really is impossible to accept her conclusions set out in the second paragraph on p15.
66Nonetheless, I still believe there can be some modest reduction in your culpability and some modest reduction in the weight to be given to general deterrence owing to these conditions. This is over and above the allowance that I have made on the Bugmy basis. You have a complex mental health profile. You do not function at a high level. You are impulsive. You have these conditions and had them at the time and they may well have had some contribution or connection to the offending, just not in that way set out by her in that particular paragraph. There was also some reliance on the 5th and 6th limbs of that case, though I think it fair to say Mr Portelli recognised the limitations of the report in that regard. That submission focussed on the increased burden in custody posed by the PTSD. It was founded entirely on the second paragraph under question 7 on p15. There is nothing in that portion of the report or elsewhere to enliven the 5th or 6th limbs, with a high level of speculation and in a setting where the submission made to me that really, you were doing very well in custody, doing courses, working and obtaining treatment. I am not satisfied to the required standard that the 5th or 6th limbs are made out at all.
67I take into account Ms Scott's report. Quite aside from the Verdins considerations it goes into your background in detail and informs my view as to the extent of the disadvantage and the damage done to you by that background over the years. It deals with aspects of remorse as I mentioned a moment ago and your rehabilitative needs and to some extent, the risk of reoffence especially should you relapse into drug use. It spells out that you have some motivation to alter your life.
Rehabilitation
68I am going to turn now then to your prospects or rehabilitation. Your counsel was quite frank and realistic. He was not throwing around positive adjectives. How could he given the nature of this offending and the nature of your prior history with all the chances along the way that have not been taken. You have that disadvantaged background and, as I say, it will not simply evaporate overnight. You have ADHD and the ABI and also PTSD and the propensity for impulsive conduct. You also have long term problematic use of illegal drugs and virtually no supports outside prison presently. There is no cause for great optimism here. Nor though will I write you off. The report of Ms Scott speaks of the high enough level of risk of offending if you relapse into drug use. It speaks also of your inability to live successfully in the community without much by way of support and structure.
69I am sure you will be deterred to some extent by the time you have already spent in custody as well as that time which lies ahead.
70Regrettably this offending represents a pretty significant escalation in offending. Unfortunately, you have not taken the chances offered by the Courts. Courts have I am sure understandably tried to foster your rehabilitation over the years. No doubt other courts, maybe not all of them but some, would have taken into account your disadvantaged background but of course that does not alter the requirement that I take into account that same background. You have been sent to prison. You had been sent to prison in the past, including only weeks before this offending. Prison has not deterred you. You committed these offences within a fortnight of the last prison sentence being imposed and following on from the largest sentence imposed upon you back in 2022. Being on bail did not deter you either.
71As I have said, there is no reason for any great optimism to be held. Your counsel was realistic and submitted that I should not find that your future prospects were entirely or completely extinguished. That you had some prospects and you were still relatively young. Well I agree with that. You do have some prospects of rehabilitation. It will take a power of work and effort from you to change your life and somehow get back onto the right tracks. At least you are taking steps in custody and I certainly do accept that you wish to alter your life. Why would you not wish for that, given what has been occurring over the last few years, with you going in and out of prison.
72I can only be quite guarded at this point. I do find though that you do have some prospects of rehabilitation. You have enough handicaps in your life without throwing in illegal drugs into the mix. They are a massive problem. You cannot alter the disastrous background which was served up to you. I believe that you were dealt a very unfair hand in life actually and I do not ignore that fact, as I hope I have made clear. It does not however lock you into committing serious offences. You do have a choice in that regard and you must make better choices in the future. I do actually believe that you can still alter the trajectory of your life. It is not too late for you. You are still a young man. If you keep using illegal drugs upon your release, you will be pretty much doomed to repeat the same mistakes. Your rehabilitative prospects will rise significantly, if not very significantly, if you can abstain from illegal drug use upon your release, whenever that is.
The Offences
73I have already briefly summarised the offending earlier in these reasons. The agreed summary goes into a good deal more detail. I also have the footage and the stills within the depositions. This was serious offending. That much is conceded. It was frightening offending. The Uber driver was carrying out his job. It is a relatively risky one in that he is required to interact with members of the public. That cannot be avoided. The fact is he is exposed to risk doing what he does. He is a soft target. This was alarming offending, and you had plainly engaged in some pretty rudimentary planning. You had disguised your appearance and you had the knife. You told the female passenger of your intent to carjack. There was violence and the knife was presented. All of this was occurring in a public place in the early hours. It was not a prolonged event and nor were you offending in company. As I said earlier, I cannot treat your offsider as part of a team given that a view has been taken to withdraw the relevant charges against her.
74It was conceded by your counsel that this offending objectively viewed was serious. Plainly that is correct. It was after all an attempted aggravated carjacking. Whatever you may have stated to Ms Scott, it cannot be forgotten that you were intending to take the vehicle and you had the knife for that purpose. It was not conduct in any way driven by the attitude of the driver or anything that he said or did to you to. Ms Daniel saw you, well away from the car as you walked towards the driver, armed, disguised and voicing your intent, one you now admit by your plea.
75The respective parties made submissions as to where the attempted aggravated carjacking sat on the so-called spectrum of offence seriousness. Mr Portelli argued it was low to mid-range. The Crown argued it was mid-range. These assessments are very much subjective. Different counsel and for that matter different judges might assign different adjectives to describe the same offence. There really is never any mathematical precision in this exercise even though we sometimes pretend there is. In my view it is far more profitable to examine what you did than to expend much time or energy in attaching the right adjective to describe it.
76You were on bail at the time. You were not some silly teenager out offending for the first time. You were a seasoned offender with a pretty lengthy criminal history engaging in serious crime. There was some limited planning but heaven knows what you had in mind with the vehicle. It is hard to believe you were thinking too far ahead. There are some features of aggravation absent obviously enough, but of course there are some that are present. It is quite typical that these crimes are short of duration. They are not always accompanied by a weapon. An aggravated carjacking or attempt can satisfy the elements of that given crime by the existence of an injury. This one had a nasty enough weapon and you drew attention to it and brandished it in the commission of the crime.
77Aggravated carjacking and attempted aggravated carjacking are inherently serious offences. It is not mitigatory that you did not succeed. That fact causes you to face the attempt charge which has a lesser penalty and also happens to free you up from the impact of the mandatory sentencing regime that operates for the completed offence. Had you succeeded, you would have been facing a non-parole period of at least three years, absent proof of certain exceptions.
78No one was suggesting that this example fell at the highest level. Plainly it does not. Nor though does it fall at the lowest level. I believe this example falls towards the mid range viewed objectively. The common assault was serious enough given the context but it was constituted by a single blow and has not caused any injury of significance or any ongoing physical issues. It was plainly bound up in the aggravated carjacking attempt.
Purposes
79I have to consider a number of purposes of sentencing. One of those of course is your rehabilitation. Those prospects are not particularly strong as I have spelt out earlier in my reasons, but they still exist.
80I must punish you justly and proportionately.
81Then there is the aspect of denunciation. This was serious offending and I must denounce your conduct. I do. It was a pretty brazen crime to approach this car in this way that you did in public, whilst disguised and carrying a knife. It is serious stuff indeed.
82Specific deterrence relates to the need to deter you from offending in the future.
83Plainly I must give real weight to specific deterrence given the nature of the offending, the fact that you were on bail at the time and the failure to have taken your chances over the years. Courts have tried to deter you. They have tried to lead you away from crime with no great success to this point. I must try again.
84Then there is general deterrence. I must adequately reflect general deterrence in my sentence. That principle relates to the need to deter future offenders. It is an important enough consideration for this sort of matter but there can be some moderation to be had by virtue of your background and my Verdins findings.
85This court is still required to send a message to others in the community who might be thinking of committing the sorts of crimes that you have committed. Regrettably, carjacking and aggravated carjacking and attempts to commit those crimes are not at all uncommon. Likeminded future offenders must be deterred from offending in the manner that you did.
86Community protection is another purpose of sentencing which I must adequately reflect. It is not unimportant here given the offending and the chronology and your past history before the Courts. You pose a decent enough risk of offending in the future. I must consider the protection of the community from you. Again though, as with all the other punitive purposes in play here, it seems to me that there should be some moderation flowing from my Bugmy findings.
87I must pay regard to the maximum penalties. Twenty years is the maximum penalty for the attempted aggravated carjacking. Five years for the common assault. By fixing such a maximum penalty for aggravated carjacking, Parliament has spoken as to the seriousness of that offence. We have that very high maximum for the completed offence. We have the lesser maximum, that is still a very high one, for the attempt. Carjacking and aggravated carjacking crimes were inserted into the legislation to deal with what was viewed as a worrying and disturbing new trend. They are serious offences, inherently.
88I have to take into account current sentencing practices and the impact of your crimes.
89Current sentencing practices are not some single controlling factor.
90I have looked at the relevant Sentencing Advisory Council online data (SACStat) for attempted aggravated carjacking and common assault.
91I have also looked at the case summary collections contained on the Judicial College of Victoria sentencing site. Most of those however pertain to completed offences. I am not dealing with a completed offence which of course has the higher maximum penalty. I ignore any submissions made by the Crown in relation to the data for the completed offence (see para 22 of the sentencing submissions) or any of the past sentences that deal with the completed offence of aggravated carjacking, as many instances of the completed offence would also have been subject to the mandatory non-parole period provision, which is not in force in this case given that I am dealing with an attempt. I can of course look at statements of principle from past cases because they apply equally to the completed offence as to attempts.
92The fact is though that statistics have inherent limitations. All the details which would explain the reasons for a particular sentence are omitted from the statistical data.
93No amount of looking at other cases or the statistics can ever provide the answer to my sentencing task. Sentencing is not some statistical or mathematical process. I am sentencing you for your crimes, taking into account the matters in mitigation and aggravation in your case. No two cases or offenders are ever identical.
Totality
94I have taken a last look at the orders that I intend to make, and I have done that to guard against a crushing outcome and to ensure that the total effect of my sentences is commensurate with your overall criminality here. There is plainly a relationship between the common assault and the attempted aggravated carjacking such as to have caused me to seriously reflect on the extent of any need for cumulation as well as to consider the aspect of double punishment. I have taken the view that cumulation is not warranted given the close relationship existing between those two offences. Realistically, the indictment might have as easily had a single charge on it, that is the attempted aggravated carjacking and relied upon the physical blow along the way in relation to that conduct.
95I have also had regard to the fact that you have been continuously in custody since December of last year even though of course much of that cannot be formally declared by me. As to the summary matter, I have treated your being on bail as a matter of aggravation when dealing with the major charge before me and for that reason I otherwise direct pursuant to s16(3C).
96Prison is a disposition of last resort. Mr Portelli correctly conceded that there was no other option here. However, he referred me to Boulton[8]’s case and argued that a combination type sentence would be open in the sound exercise of my discretion. He was not suggesting any immediate or even imminent release and was speaking of the ability of the court to impose a prison term of up to 12 months over and above your existing pre-sentence detention, leading then to a certain release date upon a suitably conditioned community corrections order. If I thought such a disposition achieved all the purposes of sentencing and was open to me, well I would proceed in such a fashion.
[8]Boulton v The Queen [2014] VSCA 342
97I do not believe that such an outcome is within the sound exercise of my sentencing discretion. It would pay inadequate weight to the seriousness of the offending, the need to punish and denounce and the need to deter you and others and protect the community. It would also ignore the reality of your rehabilitative prospects and your past failures on such orders. Nor would I even be in a position today to make judgements as to the level of risk that you posed at the end of the custodial portion which would, on your counsel's stance, be distant from today's date. Hopefully you can be assessed as suitable for the NDIS scheme. I hope you are. Hopefully a very generous package may come your way with housing support and a raft of other programs provided for. I hope those things all come your way. But I cannot know if any of those things will take place.
98The Adult Parole Board will be in a vastly superior position to make judgements as to your future risk and needs.
99Plainly a substantial prison sentence is required here.
100Given the head sentence I will soon impose, I am required as a matter of law to fix a non-parole period.
101Whether you are released on parole is not something I am allowed to even consider. That is prohibited. It will be exclusively in the hands of the Adult Parole Board but I suppose more accurately, it will be between you and them. I will arm them with these sentencing remarks.
102I will say this though: It is readily apparent to me that you will need significant structure and support upon your ultimate release, whenever that may be.
Ms Scott makes that clear enough.
Sentence
Disposal order
103There is a disposal order in this case. There is no issue taken with it. Let me just pronounce that order.
104There is an application for a disposal order pursuant to the provisions of s78 of the Confiscations Act. There is no issue taken with the disposal of the item attached to the schedule, which is the knife with the wrapped handle. So I am satisfied the criteria for the making of the order is made out before me. I order the forfeiture to the State of that property and direct that it be handled in the manner contemplated by that signed order, which I have announced in an abbreviated fashion.
105By the way, I am not sure if you are awake to it, but your friend Mr Rainer is viewing these proceedings as well, Mr Dand.
106So look, I would normally get you to stand up, I will not, we are doing it by way of the audiovisual link, so just remain seated and I will give you the numbers that you have been waiting to hear.
107On Charge 1, attempted aggravated carjacking, you are convicted and sentenced to 3 years' imprisonment. That will be the base sentence.
108On Charge 2, common assault, I convict and sentence you to a period of 5 months' imprisonment.
109On the Bail Act offence (Summary Charge 3), you are convicted and sentenced to 7 days' imprisonment.
Concurrency
110I have said that the base sentence is the three years imposed on Charge 1.
I direct that the other sentences will be served concurrently with that base sentence and upon each other. To that extent then I am otherwise directing under s16(3C).Total Effective Sentence
111These orders result in a total effective sentence then of three years or 36 months.
Non-parole period
112I fix a period of 20 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
113You have already served 145 days of the sentence by way of pre-sentence detention and that declaration is entered into the records of the court.
Section 6AAA
114I have told you that I have taken into account your guilty pleas and reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to a term of five years' imprisonment. I would have fixed a non-parole period of three and a half years.
Licence order
115There is also the issue of a licence order. It is not mandated in this case but in the circumstances, I will make an order against your licence under s89A of the Sentencing Act. It will have no impact upon you for reasons that will become obvious. On any view of it though, you were endeavouring to steal a car. You were doing so in such circumstances as to amount to the offence of attempted aggravated carjacking. Had it been carried out without a knife and was hence the less serious offence of attempted theft of a car, there would be a mandatory licence order to be made under s89(4) of that same Act.
116In the circumstances then I regard it as appropriate to make a licence order, but as I say in reality it will have no effect upon you. Under the relevant provision, so s89A of the Act, on Charge 1 on the indictment, the attempted aggravated carjacking, all licences are cancelled and you are disqualified for a period of six months from today's date.
117Let me just see if there is there anything else I need to deal with. Anything else from your perspective, Mr Warke, or not?
118MR WARKE: Nothing further, Your Honour.
119HIS HONOUR: Mr Portelli?
120MR PORTELLI: No thank you, Your Honour.
121HIS HONOUR: I will just sign these orders, just give me one moment. I have signed that order.
122Mr Portelli, we have got the link for a little bit longer and I will disappear off the Bench in a moment and I am not sure whether you want to utilise that link for a brief moment, or whether you will organise a separate link, or you want to do both?
123MR PORTELLI: I'll do both, Your Honour. I will use the link, thank you.
124HIS HONOUR: Do both, okay. So you will discuss what's occurred here today and his rights in relation to the sentence I have pronounced.
125So you have heard that, Mr Dand. I have done everything I need to do. In a moment I will leave the Bench. Mr Portelli is going to have a bit of a chat to you then, but he also will make arrangements to speak to you in a more private setting, because even though I won't be hearing what is being said, and the prosecutor won't be here, my staff will be here when you have that discussion. So he is going to be speaking to you in a moment and then he'll be telling you when he'll be speaking to you in more detail about what's happened here today and your rights in relation to that sentence. But what it boils down to is it's a term of three years' imprisonment with a non-parole period of 20 months. You have already served 145 days of that sentence.
126So that completes the matter. I am going to stand down then for a moment. Once I have stood down and once you have disappeared Mr Warke, Mr Portelli will be free to have a brief chat to Mr Dand and I will come back onto the Bench at 2 o'clock this afternoon. So that completes the matter then Mr Dand all right, and Mr Portelli will speak to you shortly.
127COUNSEL: As Your Honour pleases.
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