Director of Public Prosecutions v DC
[2025] VCC 1263
•29 August 2025
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DC |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 28 July 2025 | |
DATE OF SENTENCE: | 29 August 2025 | |
CASE MAY BE CITED AS: | DPP v DC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1263 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: Aggravated home invasion, theft, destruction of property. Offender a child at the time of offences. Aggravated Home invasion Category A Serious Youth Offence under Sentencing Act 1991. Uplift to County Court from Children’s Court. Exceptional circumstances required before detention in YJC ordered. Plea of guilty. Suitable for YJC.
Legislation Cited: Crimes Act 1958, Sentencing Act 1991, Children Youth And Families Act 2005
Cases Cited:R v Verdins [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37; Cairns [2018] VSCA 333; CNK v The Queen (2011) 32 VR 641; Castillo (a pseudonym) v The King[2023] VSCA 150; DPP v Ali, AS, MB and MI [2024] VSC 601; DPP v Grech [2016] VSCA 98 ; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43; R v Williscroft (1975) VR 292, 301; R v Phillips [2012] VSCA 140; Lombardo v The Queen [2022] VSCA 204; Fariah V The Queen [2021] VSCA 213 ; R v Novakovic(2007) 17 VR 21; Koukoulis v The Queen [2020] VSCA 19
Sentence: 3 years 9 months YJC. No PSD.
s.6AAA 4years with NPP of 2 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | OPP |
| For the Accused | Mr R Thyssen | Chester Metcalfe & Co |
HIS HONOUR:
INTRODUCTION
1DC[1] you have pleaded guilty to a number of charges.
[1] A pseudonym.
#
Charge and particulars
Legislative Provision
Max Penalty
And other statutory matters
1 Theft
30 July 2024
jumper from MyerCrimes Act 1958, s 74 Level 5 imprisonment
(10 years)2 Theft
2 August 2024
Toyota Corolla and car keys
(rolled up)Crimes Act 1958, s 74 Level 5 imprisonment
(10 years)3 Theft
2 August 2024
Petrol
(rolled up)Crimes Act 1958, s 74 Level 5 imprisonment
(10 years)4 Aggravated Home Invasion
2 August 2024
Person present, armed and in companyCrimes Act 1958, s 77B(1) Level 2 imprisonment
(25 years)5 Theft
2 August 2024
Audi, house keys and car keys
(rolled up)Crimes Act 1958, s 74 Level 5 imprisonment
(10 years)6 Destroying Property
3 August 2024
Toyota CorollaCrimes Act 1958, s 197(1) Level 5 imprisonment
(10 years) [2][2]This is not charged as arson per s197(6). An offence against this section committed by destroying or damaging property by fire shall be charged as arson. Per section 197(7) a person guilty of arson is liable to level 4 imprisonment (15 years maximum) despite anything to the contrary in this section.
2Part of this offending is unquestionably serious, and you have a troubling relevant and recent history for someone so young.
3You were a child at the time of the offending, but for reasons I will come to, your case is being heard in this Court.
4Important statutory sentencing provisions apply to Charge 4; that of aggravated home invasion.
5Such an offence is a Category A Serious Youth Offence under the Sentencing Act 1991.
6It is also a category 1 offence within the meaning of the same Act (if it was committed by a person over the age of 18), meaning if you were an adult at the time you offended, you would not be permitted to receive a term of imprisonment combined with a CCO unless one of the exceptions outlined in the Act was made out.
7Finally, the Court must impose a sentence of imprisonment with a non-parole period of at least three years for a category 1 offence if you were an adult, unless special reasons existed that meant I did not have to, or it was not appropriate to do so.
8The import of these provisions I have just referred to, is that there is a presumption that for young people like you who commit aggravated home invasion, you will be dealt with in this Court, and not the Children's Court and what is more, the presumptive penalty is that you go to adult prison and not a Youth Justice Centre (YJC) unless exceptional circumstances can be established. The provisions relating to sentencing adults for these types of offences still informs the sentencing process too (even though you were a child when you offended), as I will come to.
9I am going to order that you be detained in YJC.
10My reasons for doing so follow.
OFFENDING [3]
[3]Taken from Exhibit A: Summary of Prosecution Opening dated 2 June 2025.
Background
11You were 17 years of age at the time of the offending, living in Ascot, Victoria.
12The co-accused are EP (then 16), and TC, (then 15). Neither of them are before me. The offending is as follows.
Circumstances of the offending
The offending at Myers 30 July 2024
13On 30 July 2024 just after 2 pm, you, in the company of three associates entered Myer in Bendigo and started browsing men's clothing.
14You were wearing a black jacket, black pants and grey, black and green running shoes, selected a Tommy Hilfiger branded hooded jumper and walked throughout the store.
15While staff were assisting customers, you took off your black jacket and put the blue Tommy Hilfiger branded hoodie on and replaced your black jacket, attempting to conceal the jumper beneath it.
16Staff members standing nearby overheard an associate state, 'if she keeps staring at me I am going to stab her'.
17You attempted to leave the Myer store wearing the blue Tommy Hilfiger branded hooded jumper when a member of staff attempted to stop you.
18At just after 2:15 pm, you left the shopping centre onto Queen Street where you ripped off the security tag, threw it onto the ground and left with the blue hoodie that I have just referred to. (Charge 1 – theft)
19Staff obtained a photo of you wearing the stolen item and provided it to the staff member who reported it to the Police and supplied CCTV footage of the incident. They filed an 'incident report'.
Theft of motor vehicle and petrol 2 August 2024
20On 28 July 2024, LH[4] parked her blue Toyota Corolla sedan in the garage of her residence in North Bendigo.
[4] A pseudonym.
21She locked the vehicle, closed the garage door and placed the vehicle keys on a hook located in the kitchen of her residence next to the rear sliding door.
22On 31 July 2024 at about 8 o'clock in the evening, her blue Toyota Corolla was still parked in the closed garage attached to her house.
23At 8:30 the next morning, the 1 August, she saw her car was missing, her garage door is open, and she reported the matter to Police.
24On 2 August at about 12:11 am, you drove the blue Toyota to the APCO Service Station in Kangaroo Flat and stopped at the pump.
25EP exited the front passenger side of the vehicle, signalled to the attendant and filled the vehicle with about $72 worth of fuel. He then re-entered the vehicle and you drove away, making no attempt to pay. (Charge 2 – theft of motor vehicle; Charge 3 – theft of petrol).
Aggravated home invasion
26At 2:35 in the morning on 2 August 2024, you, carrying a large black hunting style knife with a serrated edge and silver butt cap, with two other co-accused attended an address in Powlett Street, Kyneton where you observed SL’s[5] black 2012 Audi Q5 station wagon in the driveway and tried to gain entry to the residence by the locked front door.
[5] A pseudonym.
27Unsuccessful, the three of you attended the rear of the residence, you located a key left in the lock of a pedestrian door to a rear shed, removed the key and attempted to gain entry to the residence by forcing the key into the unlocked rear laundry door.
28The three of you opened the unlocked rear laundry door, leaving the key jammed into the lock, located the keys to the Audi which were on the laundry bench and stole the vehicle. (Charge 3 – aggravated home invasion; Charge 4 – theft of motor vehicle). You were as I said armed with a knife, visible clearly on the CCTV footage in the house.
29On the same morning between 2:35 am and 10:36 am, the three co-accused attended a car park at an unidentified location. EP was in the front passenger seat of the stolen blue Toyota and commenced filming a Snapchat video.
30EP exited the stolen blue Toyota and walked to the stolen black Audi where you were seated in the passenger seat and BC was in the driver's seat speaking to an associate through the driver's window.
31EP stopped at the front passenger side window and asks what time it is, to which you state '2:40 nigga'.
32EP then held his mobile phone inside the passenger side window and asked 'Who's in the back?'
33When sighting an associate wearing gloves and a hooded jumper covering his face asleep, EP said 'Damn this nigga's asleep again cunt?'
34The Snapchat video was sent to other associates and lasts for about 18 seconds where:
(a) The steering wheel of the Toyota Corolla is visible;
(b) EP is filming with his grey tracksuit pants and black and white running shoes clearly visible and he is heard speaking;
(c) You are in the passenger seat of the stolen black Audi A5 wearing the Tommy Hilfiger hoodie. You are heard speaking; and;
(d) BC is seated in the driver's seat of the Audi A5 wearing the black coloured face covering.
35At 3:55 am on 2 August, you drove the Corolla to APCO Service Station in Strathdale, where you stopped the vehicle at a pump
36EP got out of the front passenger side of the vehicle, signalled to the attendant and filled the vehicle with about $64.49 worth of unleaded fuel, re-entered the vehicle and BC drove away making no attempt to pay (this part of Charge 3).
37At 7:30 am on 2 August, SL observed that her black Audi was missing and she notified the Police and provided them with the CCTV footage capturing the incident.
38At 10:36 am, a member of the public observed that black station wagon in the middle of the road outside 56 Union Street, West Bendigo and phoned Triple 0 to report it.
39At 10:48 am, Police attended and identified that vehicle as the stolen black Audi and it was towed for forensic processing.
40On 3 August 2024 at about 4 am, you drove the stolen blue Toyota to the intersection of Ironstone Road and Strickland Road, Ascot where you set the vehicle alight, destroying it. (Charge 5 – destroying property)
41On hearing an explosion, a member of the public phoned the Police who attended and located the burning vehicle at that intersection that I have just mentioned, about 500 metres from your residence in Ascot.
Arrest and interview
42On 16 August 2024, Police attended Woolworths shopping centre in Bendigo where you were observed and arrested.
43During a 'safety and evidence' search, Police located a black coloured hunting style knife with a serrated edge and silver butt cap in a sheath strapped to your hip[6] and a PTV 'Myki' travel pass.
[6]This is not represented by a separate charge.
44The knife was seized, and you were taken to Bendigo Police where you were interviewed in the presence of an Independent Person. When you did decide to comment on matters put to you (that is about your behaviour of you and your co‑accused), those answers were vague, untruthful or non-committal.
45You were released from custody and advised you may receive a summons to court and issued a Caution for the possession of the knife.
46You were only later arrested and remanded in custody on 6 March 2025 where you have remained ever since.
Victim Impact
47The victim of the home invasion and the theft of the Audi, SL, made a Victim Impact Statement (VIS) on 7 July 2025. It was read in open Court.[7] It was eloquent, and as it turns out, clear and powerful enough to strike a chord with you in a meaningful way.
[7]Exhibit B: Victim Impact Statement dated 7 July 2025.
48SL is a woman in her 60s living alone, trying to move on from real grief and tragedy in her life. She was doing so, I might add.
49Her sense of security and safety has been shattered by you and your co-offenders skulking about her home at night in numbers, like cowards, armed and taking what did not belong to you.
50It has eroded her resilience. This was the house that she moved into after the end of her marriage. The car you took (and destroyed and I add, that is not the subject of a charge)[8] was the family car she owned with her ex-husband who has since passed away. It was more than a car; it was the source of many happy memories for her.
[8]Not the subject of a charge.
51She laments the way that all of this was done to her for your selfish, thoughtless enjoyment.
52You absolutely know right from wrong. Such is the mindless pursuit of thrills common to young people, with precious little thought of consequences for others, or understanding of their troubles, or their struggles or the aftereffects of their criminality.
53I take into account SL’s suffering and loss as a result of your offending and I can add to that, no doubt it was no small amount of inconvenience to the other victim of the theft of the motor vehicle as well, the one that was set on fire.
Case history
54The case history of this matter is as follows, though I have included the commission and sentence dates of other matters to give a fuller picture of your forensic history:
Date Event 30 July 2024 –
3 August 2024Commission date of offences the subject of this indictment. 16 August 2024 Arrest and interview
Not yet charged.October 2024 Commission of a large number of offences
- burglary
- Aggravated burglary
- home invasion
- Armed robbery
- Theft of motor vehicle
- Theft
- Robbery
Remanded in custody.February 2025 Bailed on deferral of sentence. 5 March 2025 Bendigo Childrens’ Court for further Committal Mention. 6 March 2025 Remanded in custody for allegations of
Aggravated burglary
Attempt30 April 2025 Bendigo Childrens’ Court for further Committal Mention. 8 May 2025 Sentenced to 9m YJC (104 days PSD) and YSO’s. 28 May 2025 Bendigo Childrens’ Court for further Committal Mention. 11 June 2025 Bendigo Childrens’ Court and committed to the County Court for plea. 7 July 2025 Application to remit the matter to the Children’s’ Court (abandoned). 28 July 2025 Plea. 29 August 2025 Further plea and sentence. 26 October 2025 Sentence expiry.
BIOGRAPHICAL MATTERS [9]
[9]Taken from Exhibit 1 (Outline of Submissions dated 2 June 2025) and Exhibit 2 (Pre-sentence Report dated 24 April 2025).
Details
55You are 18. You were 17 at the time you offended. Moreover, you had no prior criminal history then of any kind.
Family
56You were born in Hong Kong and came to Australia as a child. You are a permanent resident, but not a citizen.
57Your mother came to Australia a number of years before you. You were cared for by your grandparents until you could join your mother in this country.
58Your parents separated when you were very young and your mother married in Australia and has two daughters.
59You were living on and off with your family prior to your detention and it has been indicated that you can live with your mother again upon release from custody. She is one of the few family supports that you have.
60You do not have a history of abuse, neglect, or poor mental health or intellectual disability.[10]
[10]No reliance was placed on R v Verdins [2007] VSCA 102 or Bugmy v The Queen [2013] HCA 37.
Education
61You attended Secondary College until the start of Year 11 but your attendance in the last three years was sporadic.
62It is intended upon your release you will be able to take up a TAFE course to further your education. You are currently undertaking education programmes in YJC which I find encouraging. I read the progress report and as of May 2025 in the pre‑sentence report and it seems that you undoubtedly have promise if you apply yourself.
Employment
63You have worked in fast food shops for a brief period of time and have done some farm work.
Substance abuse
64You had fallen into drug use, particularly Xanax (and it seems ecstasy and alcohol as well). You have undertaken programmes in YJC, including Drug and Alcohol courses and have had workers from Anglicare providing guidance. I do not doubt your intention to remain substance free upon release.
Forensic history
65Though you had no prior convictions at the time these offences were committed in late July/early August 2024, these offences were anything but isolated. You were well engaged in other serious offending before and after this.
66You put a premium on activities with your friends it seems, which became more important to you than school, or honesty to your family. Association with anti-social peers represents a serious risk for you.
67You were engaged with Youth Justice once your position in the community became intolerable and you were remanded in October 2024 and then bailed in December of that year. You remained on bail until 26 February, when you were placed on a deferral of sentence in the Children's Court for the offences identified in the above chart occurring in October of that year.
68On 6 March 2025 you were arrested for yet further offending such as theft of motor vehicle, aggravated burglary and attempt to commit indictable offence on bail. You were remanded in Parkville, before being transferred to Cherry Creek.
69On 8 May this year, you were sentenced to nine months YJC, with 104 days pre‑sentence detention having already been served. This was the first actual penalty imposed on you for any offending at any time. There is some real moment in the fact that you had not had the benefit of sentences in the past to learn from (as opposed to being on bail or bailed on a deferral of sentence). I note that you were placed on YSO's simultaneously then. I infer they were intended to continue once you were released from your present sentence. They will continue to run even whilst in detention. You have served no pre-sentence detention in relation to the matters I am dealing with.
70You have burgeoning signs of remorse, insight, maturity and appreciation of the consequences of your actions for others as well as you, but the persistent and serious nature of your offending, even as Courts have tried to supervise and assist you, is troubling.
MATTERS OF SENTENCING PRINCIPLE
Sentencing children and young offenders
71You were as I said a child as defined in s 3(1) of the Children, Youth and Families Act, which I will refer to as the CYFA, when you committed all of the offences on the indictment, in that you were:
a person at the time of the commission of the offence who was under the age of 18 but above the age of 10 [and it does not include for the purposes of this definition] a person who is of or above the age of 19 when the proceedings commenced.
72A person such as you may be tried summarily in the Children's Court for summary and indictable offences (with notable exceptions relating to offences causing death) but there is a statutory presumption that applies, where a child over the age of 16 commits a Category A – Serious Youth Offence. Aggravated home invasion is such an offence. A presumption is created whereby a child who commits an offence will have the matter determined in a superior Court. That is the case here.[11]
[11]Noting the withdrawal of your application to have the matter remitted back to the Children's Court.
73The County Court may impose a sentence under the CYFA or, if it concludes that dispositions under that Act are inadequate, may impose any sentence available under the Sentencing Act 1991.[12]
[12]Dale Cairns (a Pseudonym) v The Queen [2018] VSCA 333.
74The dispositions available under the CYFA, in ascending hierarchical order move from unaccountable undertakings to detention in YJC. [13]
[13]CYFA s.360(1).
75In determining an appropriate sentence, I must, 'as far as practicable', [14] have regard to the matters under s362 of the Act. I will not read those provisions out, save for this one:
(g), the need to protect the community, or any person, from violent or other wrongful acts of the child —
·in all cases where the sentence is for a Category A serious youth offence or a Category B serious youth offence; or[15]
·in any other case — if it is appropriate to do so[16]
[14]CYFA s.362(1).
[15]Emphasis added.
[16]s.412 CYFA.
76The Court of Appeal has held that 'as far as practicable' are terms of emphases that means a sentencing court 'must have regard to each of the listed considerations to the maximum extent possible'. They are policy objectives that govern the sentencing of young offenders like you.[17]
[17]CNK v The Queen (2011) 32 VR 641.
77I need to address the relevance of specific deterrence. In CNK v The Queen[18] the 15-year-old applicant was sentenced in the Supreme Court because he had been charged with attempted murder. Following his acquittal on that charge but on his conviction for other offences that had been uplifted, the Court of Appeal held that it was necessary to sentence the applicant on the remaining uplifted charges as if they were exclusively governed by the Children, Youth and Families Act 2005. The Court further held on a proper construction of the Act, general deterrence is not a relevant consideration when sentencing children.
[18]Ibid.
78But the Court clarified that if it is determined that sentencing dispositions under the CYFA are not adequate and that adult custody is necessary, then general deterrence is an applicable consideration although it may be ameliorated because of the offender's youth as was the case in Cairns v The Queen.[19]
[19]Ibid.
79Determining whether youth detention or adult custody is adequate may depend on whether the maximum period that can be ordered for youth detention is a sufficient punishment given the seriousness of the offending, an offender's history, the likely assistance towards their rehabilitation available in YJC, the public nature of the offending, and the circumstances of and harm to the victims.
80Section 586 of CYFA explicitly states:
(1) The powers that the Supreme Court or the County Court may exercise in sentencing a child for an indictable offence include the power to impose any sentence which the Children's Court may impose under this Act but an order that the child be detained in a youth residential centre or youth justice centre must be made in accordance with Subdivision (4) of Division 2 of Part 3 of the Sentencing Act 1991.[20]
(2) In sentencing a child aged 16 years or more but under 18 years at the time of the commission of an indictable offence, the Supreme Court or the County Court must have regard to any requirement in the Sentencing Act 1991 that a specified minimum non-parole period of imprisonment be fixed or a specified minimum term of imprisonment be imposed, had the offence been committed by an adult.[21]
[20]That is to say it must be an order made under s.32 of the Sentencing Act 1991.
[21]See also s.5(2J) Sentencing Act 1991.
81I will elaborate on the meaning of these provisions.
82Before making a detention order for a young offender charged with a Category A Serious Youth Offence under s32 of the Sentencing Act 1991 I must have regard to the nature of the offence and the age, character and past history of the young offender.[22] Further, the Court must be satisfied not only that (a) there are reasonable prospects for the rehabilitation of the young offender and/or (b) the young offender is particularly impressionable, immature and likely to be subject to undesirable influences in adult prison, but moreover, exceptional circumstances exist that warrant this disposition.[23]
[22]Sentencing Act, s 32(2).
[23]Sentencing Act 1991 s.32(2C)-(2D) See Castillo (a pseudonym) v The King [2023] VSCA 150. See also DPP v Ali, AS, MB and MI [2024] VSC 601.
83The requirement under s32(2) operates as an additional sentencing consideration. While the mandatory minimum non-parole period or specified minimum sentence provisions do not apply when sentencing an offender who is 16 or 17, I must take into account those provisions when assessing the gravity of the offence. I have indicated what those applicable provisions are in my introductory remarks and I have had regard to them.
84Although it does not appear to have been the legislative intent,[24] this requirement might be seen as creating a presumption in favour of imprisonment for anyone under the age of 21 convicted of a serious youth offence. The requirement does not prevent a non-custodial sentence from being imposed if I have concluded that detention is not justified at all,[25] and that the sentencing purposes can be met by a sanction that does not involve confinement.[26]
[24]See Victoria, Parliamentary Debates, Legislative Council, 7 September 2017, 4576–8 (Jenny Mikakos); Victoria, Parliamentary Debates, Legislative Assembly, 8 August 2017, 3874 (Cesar Melhelm), 3891 (Fiona Patten).
[25]Sentencing Act 1991 s32(1).
[26]Sentencing Act 1991 s5(4).
85This requirement instead is probably better viewed as an expression of Parliament's intent that young offenders like you, convicted of Category A offences for instance, must be sentenced to terms of imprisonment in appropriate cases rather than YJC.
86The maximum period of detention allowed under either detention order, regardless of the number of convictions in the same proceedings in this Court is four years.[27]
[27]Per section 32(3)-(4) while it is technically possible for a young offender’s period of actual detention to exceed this formal maximum by declining to credit pre-sentence detention, the authority for that proposition has since been confined. See DPP v Grech [2016] VSCA 98.
87You, of course, are still only 18. Your rehabilitation is a powerful sentencing factor and ought to be given more weight than general deterrence.[28]
[28]R v Mills [1998] 4 VR 235.
88As our Court of Appeal said in Azzopardi v The Queen,[29] three considerations underlie the primacy given to the offender's youth as a sentencing consideration:
(a) Young offenders, being immature, 'are more prone to make ill-considered or rash choices'. They 'may lack the degree of insight, judgment and self‑control' possessed by a more mature adult. They may not 'fully appreciate the nature, seriousness and consequences of their criminal conduct'.
(b) The courts recognise the potential for young offenders to be redeemed and rehabilitated.
(c) Incarceration of a young person for an extended period in an adult prison may be counterproductive through the antisocial influences of fellow prisoners.
[29](2011) 35 VR 43.
89Your criminal activity, has come in a burst of offending within the last 12 months, ceasing when you were remanded earlier this year. This history, though genuinely concerning, is not yet fully entrenched and you are effectively seeing out your first Court period of detention by way of penalty now, having failed to take advantage of opportunities to divert you further away from offending and confinement.
90I do accept the path to reformation for such a young man as yourself is not always linear or an upward trajectory. Under certain circumstances, you may be able to prosper, offering the community some hope for your reform, but that remains to be seen
General sentencing considerations
91Sentencing considerations that apply to violent property offending are well known and uncontroversial.
92Your offending spans from the comparatively minor shoplifting, to the unquestionably serious offence of aggravated home invasion.
93It encompasses the mindless stealing of one car that did not belong to you (which is more than a minor inconvenience or nuisance), brazenly taking petrol from the local service station and the gratuitous destruction of one of the vehicles stolen for absolutely no reason.
94But the most serious of your offending is unquestionably the aggravated home invasion in order to steal a car. That is an offence of such seriousness it carries a maximum penalty of 25 years (and the other statutory consideration such as a 'presumptive' minimum term of three years if you were an adult).
95You entered the sanctity of someone's home, to steal, reckless that there is a likelihood that someone be present. You were in the company of other young men. You were armed with a truly dangerous weapon. Thankfully no one was confronted, which does not place this amongst the higher range of seriousness of offences of this kind. Still, it is plenty serious enough.
96Invariably, such offending as this involves a terrifying experience for victims, it threatens the community's sense of security.[30] This is no exception.
[30]R v Williscroft (1975) VR 292, 301.
97General deterrence does play a role in the sentencing exercise, as does the need to hold you to account for your actions, and protect the community from you and denounce your conduct.
98Your reform (which appears achievable if you work for it) is the most enduring form of community protection.
99I was not taken to any statistical data of so called comparable cases, but I can indicate for the most serious of these offences, namely aggravated home invasion, I at least familiarised myself with the sentencing statistics that relate to aggravated burglary[31] (obviously accepting the limitations of this) as well as the case collection provided by the Judicial College.[32]
[31]SacStat Snapshot 286 dealing with offences from 2018-19 – 2022-23.
[32]VSM sentencing manual at 6.13.1.
100My reference to these materials has been helpful but is one of many factors I need to consider.
Plea of guilty and remorse
101You entered a plea of guilty at an early opportunity.
102That plea attracts a substantial discount for both the subjective and objective elements of the plea.[33] .
[33]R v Phillips [2012] VSCA 140.
103Your plea is indicative of remorse, but what is more you have developed some degree of insight and empathy, especially upon hearing the victim impact statement read in Court in this case. You want to apologise to that victim. You want to reassure her that you will not return.
Suitability for a Youth Justice Centre Order
104I had you assessed for YJC. You wanted to make it clear that you would prefer to serve out your sentence in YJC, and not adult prison.
105A report was furnished on 18 August 2025[34] and Counsel made further submissions about its contents.
[34]Exhibit 3: Pre-sentence Suitability Report for Youth Justice Centre Order dated 18 August 2025. The assessment took place over 3 sessions. The author, Ms Holahan, had access to your previous suitability report dated 24 April 2025.
106You show limited insight into causes for your offending, although it could at least identify association with other negative peers as a negative factor. Your offending commences at the age of 16 because at that point in time, you thought to offend with other young men was 'cool'. Apparently, you do not think this way anymore and can see the consequences for your own life: that is a future that you may have in adult custody squandering your 20s and 30s unless you change, or a future of work, fulfilment and family if you do reform. I consider this insight into your potential future significant.
107You want to engage in school and with your family. These are modest but important goals.
108You want to return to live with your family, especially your mother, who is very much pro-social and loves and supports you, although that relationship is a fraught one.
109You have been able to engage in education, and the ongoing nature of this was contemplated in your parole planning. Again, this is encouraging.
110It seems that active (and I infer, realistic) preparations were made for your parole and the commencement of the Youth Supervision Order as previously imposed, which are on hold pending this sentence.
111You give an account of your reasons for the offending bound up in you being bored, disengaged from education and gravitating towards other aimless young men and children who were offending.
112You show little remorse or insight into consequences for much of the offending, save for that experienced by SL, whose victim impact statement seems to have resonated in you in an important way.
113Having said that, you have been engaged in a number of troubling behaviours in custody. Incidents of varying severity on 2, 4 and 7 August (that is to say in the very week after you were appearing before me) involving assaulting another inmate with a weapon because you thought it was justified, being involved in stand over tactics, using another person's phone to call and instigate some more aggressive behaviour against a gang in the community. You have been involved in eight incidences of concern since May. Put bluntly, you continue to possess some anti-social attitudes.
114Youth Justice assessed your suitability based on the statutory criteria under s32, namely:
(a) there are reasonable prospects for your rehabilitation; and/or
(b) you are particularly impressionable, immature and likely to be subject to undesirable influences in adult prison.
115On 15 August, Youth Justice Community and Custodial (Classification and Placement Unit) staff engaged in consultation where it was deemed you are indeed suitable for a YJC.
116Although there are significant concerns regarding the serious nature of both your offending and incidents in custody, as well as your anti-social attitudes, you are 18 years old and would be on the very much lower age range if placed in custody with adults. You were just 17 at the time of the offending and had a limited history with Youth Justice and a very limited history in custody. You do present with cultural vulnerabilities where your first language is Cantonese, followed by Mandarin with the third being English.
117You have apparently displayed some positive engagement with services and previous engagement with Youth Justice was satisfactory when you were in the community. You engaged with Statewide Rehabilitation Service (SRS) for youth offending programs, as well as actively participating in the parole process. Your prospects as I said under the right circumstances are either guarded to fair, but far from extinguished.
118On this basis you are suitable for YJC.
119In determining whether or not to make a YJC order I have to have regard to the nature of the offence and your age, character and past history, which I have done. I do not consider a term of four years' detention to be insufficient for this offending, but the sentence I impose will approach that upper limit. That itself is not determinative of what sentence I impose.
120It is not the end of the exercise. Exceptional circumstances must exist to justify the making of such an order.
Exceptional circumstances
121To that end, Mr Thyssen relies on the following, in combination to make good that test [35]
(a) You had no prior convictions at the time the offending occurred
(b) All of your offending is effectively compressed into a short period of time when you were very young
(c) The assessment conducted by YJ whilst guarded and recommends that a YJC sentence is one that is available. There are clearly some concerns with recent concerning actions, but they are explicable in the context of being locked in a gaol like setting with other offenders who may have grudges against you and the need to show some bravado as any perceived weakness attracts only further violence.
(d) It appears that YJC staff can manage those behaviours.
(e) You are now completing your first period of confinement and now had the benefit of realising where any future offending would lead, that is to say, adult prison.
(f) You have expressed some remorse and realised the effect your offending can have on victims.
(g) you still have the support of your mother and hence have somewhere to live upon the completion of any sentence.
(h) I should add the vulnerabilities mentioned in the report here as well (which appear quite prominently in your LEAP record of your priors (expressed as 'vulnerability due to your age and/or appearance).
(i) I add to that fact that you are not a citizen, which may bring about its own issues with respect to your future in this country, although this was not relied on as a matter of great moment. [36]
[35]Exhibit 4: Further Plea Submissions dated 27 August 2025.
[36]Though this was not relied on as a matter of great moment.
122Mr Cordy accepts if I were to find exceptional circumstances, it would be open for me to impose YJC, but they take issue with the imposition of a YJC disposition. It is submitted the exceptional circumstances test has not been made out (as you rely on entirely common or usual features present in many prisoners who fall to be sentenced), and that the offending is too serious for a term of detention in YJC. I agree with the point that he makes in this regard, which is that you absolutely know better than to behave in the way you did.
123The Court of Appeal in DPP vLombardo[37] noted that ‘[i]t is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly, or even wholly, relatively common.’[38] While undoubtedly correct as a matter of principle, the ability of common circumstances to combine to produce exceptional circumstances is necessarily fact dependent. So much is plain from Fariah v The Queen,[39] cited by the Court in Lombardo, where Priest and Beach JJA said:
… the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare. Every case will necessarily depend on its particular facts.[40]
[37][2022] VSCA 204 (McLeish, Niall and Kennedy JJA).
[38]Ibid [72].
[39][2021] VSCA 213 (Priest and Beach JJA).
[40]Ibid [25] (emphasis added). Both Lombardo and Fariah considered the higher threshold of ‘substantial and compelling circumstances that are exceptional and rare’ in s 5(2H)(e) of the Sentencing Act.
124In 2022 in the case of Castillo[41] the accused there pleaded guilty to very serious offences including causing serious injury in circumstances of gross violence (that could, it should be noted, have resulted in the death of the victim). His prior criminal activity was relevant and escalating. He was sentenced to six years in prison with a non-parole period of three years and three months.
[41]Ibid.
125A number of matters pleaded before the sentencing judge (and the Court of Appeal for that matter in 2023) as exceptional were the offender's age, plea of guilty and remorse, the impact of COVID, his continued education and progress on bail for a significant period of time, cessation of drug use, that he had not before served a term of custody before and had mental health issues that were likely to worsen in custody.
126The Court of Appeal in that case held it was well open to the sentencing judge in those circumstances to find this combination of important, but still ordinary matters did not individually or collectively answer the description 'exceptional' or out of the ordinary. That a teenager was capable of conducting himself as a normal teenager was not out of the ordinary.
127But in 2024, in the matter of DPP v Ali,AS, MB and MI[42] was decided, which provides a different perspective. Justice Incerti, when sentencing a number of very young men for manslaughter, found exceptional circumstances existed (in most but not all instances), through findings surrounding the suitability of YJC as a disposition, as well as in some instances poor mental health, others particular impressionability because of same, in other instances because of youth, a very early plea, lack of prior convictions and family support, positive engagement with Youth Justice, as well as prospects for reform and vulnerability.
[42]Ibid.
128The findings made by Her Honour there align more closely with what is argued here; an argument that Mr Thyssen adopted, and I ultimately find some force in.
129It is not clear from the sentence whether or not Her Honour's findings were the subject of challenge by the Crown on the plea but I am certainly not aware of any appeal by the Crown in relation to the sentences passed in that case either (or criticism of the approach that her Honour took).
130I stress I am not approaching this exercise as a comparative one, where your circumstances are measured against other cases to see if they meet a particular test. I am simply making use of these two cases in particular that have application here to re-iterate that the test is very much 'fact specific', in the way that that term is used in Lombardo. And in that fact specific way, interpreting the requirements of the test the best that I can in the circumstances, I do find that the combination of circumstances relied on here are exceptional for those purposes.
Totality
131I am mindful of the significance in this case of the application of the principle that requires me, when sentencing you for multiple offences, to ensure the total term I impose is a just and appropriate one, according to the measure of the total criminality involved. That applies when I consider the fact you are currently undergoing sentence (and so there will be a measure of cumulation of this sentence on that one), as well as the interaction between counts here (and there will be modest orders for cumulation as well where appropriate and I have been careful not to doubly punish you for overlapping aspects of your conduct for instance in relation to Charges 4, 5 and 6).[43] These will all be reflected in the sentence I impose.
[43]Sentencing Act s33.
132I have opted to impose individual sentences in the interests of transparency rather than an aggregate one.
133The sentence I impose commences today[44], and will run concurrently with your present sentence. This means this sentence commences around four or five months into your existing nine-month sentence, which reflects the facts that this is distinct and serious offending warranting a measure of cumulation with those other matters.
[44]Sentencing Act s34.
134From a totality perspective this sentence takes the global period you have been ordered to be detained for, to something approximating four and a half years.
135I make the observation that overall, you will have been confined for something close to 20 per cent of your life by the time the YJC sentence is concluded. That is a significant portion of a young person's life by any measure.
Conclusion
136By way of conclusion, in my view there is no question that you ought to be confined for this offending. I still arrive at that conclusion by having regard to the principle of parsimony and by accommodating the matters I am required to under s362 of the Children, Youth and Families Act 2005, and giving the weight required to be accorded to you because of your youth, plea of guilty, as well as the other considerations under s586 of the CYFA.
137After anxious consideration, and having balanced and weighed the necessary considerations, there are exceptional circumstances in the way described above that warrant a term of YJC. The other statutory criteria for such a penalty have been met.
SENTENCE IMPOSED
138I come now to the formal part of my reasons where I pass sentence. I sentence you as follows:
| # | Charge and particulars | Max | Sentence | Cumulation on base and on each other | Running total |
| 1 | Theft 30 July 2024 jumper from Myer Crimes Act 1958, s 74 | Level 5 imprisonment | 14 days YJC | - | 3yrs 4m |
| 2 | Theft Toyota Corolla Crimes Act 1958, s 74 | Level 5 imprisonment | 4 months YJC | 1m | 3yrs 5m |
| 3 | Theft | Level 5 imprisonment | 14 days YJC | - | 3yrs 5m |
| 4 | Aggravated Home Invasion | Level 2 imprisonment | 3yrs 4months YJC | - | 3 yrs 5m |
| 5 | Theft | Level 5 imprisonment | 5m YJC | 2m | 3yrs 7m |
| 6 | Destroying Property | Level 5 imprisonment | 5m YJC | 2m | 3yrs 9m |
139My intention is for you to be detained in YJC for 3 years 9 months. That period of detention commences today. The Act does not permit me to impose a non-parole period. The Youth Parole Board will attend to that.
ANCILLARY MATTERS
PSD
140Pursuant to s18 of the Sentencing Act 1991 there are no days to declare with respect to the service of this sentence in custody already.
S.6AAA
141I am obliged to tell you, under s6AAA of the Sentencing Act 1991, what you would have received had you not pleaded guilty. But for your plea of guilty you would have been sentenced to four years of adult imprisonment, and I would have set a non-parole period of two years and six months.
Drivers licence
142With respect to Charges 2 and 5, I cancel and disqualify you from driving a motor vehicle for a period of 12 months.[45]
[45]I have had regard to the principles in R v Novakovic(2007) 17 VR 21, and Koukoulis v The Queen [2020] VSCA 19, when arriving at this period.
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15
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