Director of Public Prosecutions v Dodd
[2024] VCC 2007
•10 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-22-01401
Indictment No. M12626237
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT ANTHONY DODD |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 29 November 2024 | |
DATE OF SENTENCE: | 10 December 2024 | |
CASE MAY BE CITED AS: | DPP v Dodd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2007 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of aggravated burglary – one charge of aggravated carjacking – plea of guilty
Legislation Cited: Crimes Act1958 (Vic); Sentencing Act1991 (Vic); Road Safety Act1986 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; Farmer v The Queen [2020] VSCA 140; DPP v Hudgson [2016] VSCA 254; DPP v Lombardo [2022] VSCA 204
Sentence: Total effective sentence of 6 years 6 months imprisonment, with a non-parole period of 5 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms K. Sheridan | Slink and Keating |
HER HONOUR:
1Brett Anthony Dodd, you have pleaded guilty to:
·one charge of aggravated burglary contrary to s77 of the Crimes Act1958 (Vic); and
·one charge of aggravated carjacking contrary to s79A of the Crimes Act1958 (Vic).
2Each of these charges attracts a maximum penalty of 25 years’ imprisonment.
3Additionally, the offence of aggravated carjacking is a Category 1 offence for the purposes of s 5(2G) of the Sentencing Act1991 (Vic). Section 10AD of the Sentencing Act requires that a term of imprisonment be imposed on a person convicted of aggravated carjacking and that a non-parole period of not less than three years be fixed unless the court finds, under s 10A, that special reasons exist.
4Additionally, Mr. Dodd, you have pleaded guilty to a summary charge of unlicensed driving contrary to s 18(1)(a) of the Road Safety Act1986 (Vic), which carries a maximum penalty of six months’ imprisonment or a fine of 60 penalty units.
Circumstances of Offending
5The circumstances of the offending were set out in a summary of prosecution opening for plea dated 27 November 2024 (Exhibit A).
6The complainants in relation to the aggravated burglary are Cheryl Buttigieg, her husband, Phillip Buttigieg, and their adult son, Liam Buttigieg. In December 2021, they were all living at an address in Toirram Crescent in Cranbourne. The complainant in relation to the charge of aggravated carjacking, Jeremy Carson, lived down the road in Toirram Crescent in Cranbourne. He resided in those premises with this wife, Tracey, and their daughter, Jenelle Carson.
7At about 5.45 am on 10 December 2021, three males parked a silver 2012 Commodore in the street outside the Buttigieg’s home in Toirram Crescent. Mr. Dodd, you were one of the males within that vehicle. One of your co-offenders got out from the Commodore and approached the front door of the Buttigieg’s and knocked on the door. At the time, you remained in the car with your other co-offenders. Phillip, Cheryl and Liam Buttigieg were all asleep in their bedrooms, which were situated towards the back of the house. Cheryl Buttigieg, who was half asleep, heard the knock and got up to answer the door, believing it may have been a neighbour.
8When Mrs. Buttigieg opened the front door, she was confronted by a male armed with a rifle. Just to be clear, it is not alleged that you knew your co-offender was armed with a rifle. The offender was holding the rifle out in front of him with his finger on the trigger and pointing it inside the house. This male then barged into the house and trapped Cheryl Buttigieg in the corner of her entrance (Charge 1: Aggravated Burglary). She told the offender to get out of her house and he struck her twice to the face with the butt of the rifle, causing her to suffer a bruised and swollen lip, a chipped front tooth and a split gum.
9As the male barged through the front door, Cheryl yelled out to her husband and son, and they rushed from their bedrooms to the front door. When Liam Buttigieg got to the front door, he saw the male pointing the rifle at his mother and demanding the keys to the car. He grabbed the offender by the head and pulled him down. When Phillip Buttigieg got to the front door, he saw his son struggling with the offender and managed to get the rifle, which he threw onto the front porch. As Phillip Buttigieg did that, he was being struck by the male.
10Once the offender was disarmed, he ran out of the house towards the silver Commodore, which was still parked in the street. Phillip and Liam ran out of their house after the male with their two dogs. As they approached the Commodore, you got out of the vehicle to assist your co-offender and there was a brief physical confrontation between all four of you on the nature strip. While Phillip and Liam were fighting with you and the male on the nature strip, another co-offender got into the driver’s seat of the Commodore and reversed the car down the road about 30 metres, before accelerating heavily towards the four of you on the nature strip.
11Liam and Phillip managed to jump out of the way of the Commodore, but the car struck your co-offender and one of the complainants’ dogs, which was killed. The Commodore then continued along the nature strip, until it slammed into a tree a few houses down Toirram Crescent. The impact of the collision caused the airbags to deploy, and the Commodore became undriveable. The driver of the vehicle got out of the car and fled the scene by jumping over a neighbouring fence. To date he has not been able to be identified.
12After the collision, you and another co-offender ran south down Toirram Crescent towards Lesdon Avenue, Cranbourne. The complainants' other dog chased you down the road and Liam Buttigieg drove his mother’s car down the road to retrieve his dog and then returned home.
13Meanwhile, you jumped a side fence to gain access to the rear yard of a property in Toirram Crescent, which was the Carson’s residence, while your co-offender continued to flee. That co-offender was later identified as Michael Aziz.
14Liam and Phillip Buttigieg got into Cheryl’s car and drove around the streets looking for you. They located Michael Aziz outside 74 Lesdon Avenue and struck him a few times with a baseball bat they had earlier taken from your co-accused. Michael Aziz yelled at them to stop and told them he had nothing to do with it. Liam asked why he was there, and he replied, 'Sammy sent those guys here'. Liam took Aziz’s phone from him and then he and his father returned home, leaving Aziz in Lesdon Avenue. Meanwhile, Cheryl Buttigieg had called Triple 0 and police had arrived at their home about five minutes after Liam and Phillip returned home. Police seized Aziz’s phone.
15To put this offending in context, one of the cars parked at the Buttigieg property was a Mercedes Benz AMG. Liam Buttigieg had purchased that car in about March 2021 from a friend called Terry Ramatouns, who he had known for most of his life. Liam paid $15,000 for the Mercedes and once it was in a roadworthy condition he registered it in his mother’s name with VicRoads. Terry Ramatouns had previously been in a relationship with a female, Sammy Edves, but the relationship ended a few months before Terry sold the Mercedes to Liam Buttigieg.
16In about October 2021, a large Islander male knocked on the front door of the Buttigieg’s home and at the time Cheryl Buttigieg was the only person home. The male asked if Liam was home and Cheryl asked him who was asking, to which the male replied, 'none of your business'. The male told Cheryl that the Mercedes belonged to Sammy and that Liam had obtained the car illegally. Cheryl replied that the Mercedes had been purchased legitimately and that the matter would have to be taken to VCAT. The male left and neither Cheryl nor Liam heard anything more about the Mercedes until the day of this offending, being 10 December 2021.
17Turning now to your offending on Charge 2.
18After you jumped the side fence at the Carson’s premises, the family heard noises in their backyard and went out to investigate. They did not see anyone in the yard but noticed signs of a disturbance. Jeremy Carson told his wife to call the police to report that someone had been in their backyard as he continued to get ready for work. At 6.00am, Mr Carson got into his van, which was parked in his driveway. Jeremy Carson runs a mobile coffee business, and his van has the logo 'The Cuppa Bloke' on both sides and on the back of the van.
19As he was driving out of the driveway, Mr Carson noticed police further up the road in Toirram Crescent, so he went back inside and told his wife there was no need to call the police as they were already down the road, saying he would drive down and report the matter to police. He stopped his van in the driveway to return inside, leaving his keys in the ignition with the engine running. When Mr Carson was returning to his van, he saw you approaching him from his neighbour’s front yard. He exchanged pleasantries with you and asked if you were all right. You asked Mr Carson to call a taxi and he indicated to you that the boys down the road might want to give you a lift. At about this point, Jenelle Carson came out of the house, as she had heard her father talking to someone in the driveway. Mr Carson indicated to his daughter that she should call 000. You then moved closer to Jeremy Carson and told him you were going to take his van. He told you that you were not going to take it. You then struck Jeremy Carson to the face and upper body multiple times, and he fell to the ground with blood dripping from his face.
20He was later taken by ambulance to the Dandenong Hospital, where he was treated for a fractured right eye socket; a small puncture in his eye, near his tear duct and a painful jaw, neck and shoulder.
21When Jenelle Carson saw her father being assaulted, she went down the driveway to try and assist him. By the time she got to the van, her father was on the ground, and she tried to prevent you from getting into the van. You grabbed her by the arm and hit her on her elbow. You then drove from the scene in Jeremy Carson’s van. At the time, you were unlicensed.
22At about 6.30am, Mr Carson’s van was parked in Sabot Street in Clyde North. You were captured on CCTV walking near the van carrying a red jumper and a drink bottle from the van that belonged to Jeremy Carson.
23You were arrested by police on 20 December 2021 and conveyed to the Footscray police station, where you were interviewed in relation to your involvement in the offending. You answered 'no comment' when the substance of the allegations were put to you.
Victim Impact Statements
24Jeremy Carson has prepared a powerful victim impact statement. He describes that as a result of the offending, he has felt anxious and has required anti-depressant and anti-anxiety medication.
25He becomes upset and agitated easily and is less inclined to interact with strangers. He is easily spooked by noises when he starts his day at the van and constantly plays out scenarios of the offending. Mr. Carson feels guilty and is concerned at the impact of what had occurred is having on his family.
26He reflects on the pain he experienced in both the ambulance and post-surgery. It is fortunate that there was no more permanent damage to his eye. His shoulder however causes him considerable pain, such that he has difficulty sleeping and cannot enjoy the recreational activities he was once able to comfortably enjoy. Whilst surgery has been contemplated, it would mean he is away from his business for a long period. Even now, however, his business has been impacted. Mr Carson has had to give up operating his coffee van at junior football as a result of his shoulder pain, given the long days required, and he estimates this has cost him significant earnings of approximately $10,000 per annum.
27I take into account the profound effect your offending has had on Mr Carson, emotionally, psychologically, physically and financially.
28Jenelle Carson describes how the offending has impacted her. She has difficulty sleeping, is jumpy and does not like being home alone. She too plays out scenarios of what happened in her head and feels guilty that she could not have done more to protect her father. Ms Carson has experienced anxiety, panic, a loss of interest in things that she previously enjoyed and constant worry for her father.
29I take this into account. You have fractured both Jeremy and Jenelle Carson’s sense of safety, even outside their own home. They have both described feelings of guilt. As I said during the plea, neither of them should feel guilty. They each found themselves caught up in your offending. Neither expected it, but they continue to feel the consequences of your actions. A situation in which neither of them had any control.
Procedural history
30A filing hearing took place on 21 December. The matter proceeded to a committal hearing in August 2022, and you were committed to stand trial, entering a plea of not guilty. The matter was ultimately listed for a trial in November 2023 but did not proceed. It was adjourned to 24 April 2024.
31In the meantime, the matter was listed before me for a sentence indication hearing on 9 April 2024. I indicated that I would not impose a total effective sentence greater than six and a half years’ imprisonment. This was based on submissions made, some of which I was prepared to accept, although at that stage reports to substantiate matters had not bene prepared. Following a series of mentions and part-heard listings of the sentence indication, you declined the sentence indication I gave. This was a matter of days before your trial was listed. However, as trial counsel had not been secured and it appeared nobody was available to appear for you at trial, the listing on 24 April was vacated and the trial adjourned to a later date.
32On 18 June 2024, you indicated to the court that the matter had resolved on the basis of the charges and circumstances alleged as per the sentence indication. You were arraigned on 27 June and entered a plea of guilty. The matter was then listed for a plea hearing in October, requested to be before me, which was adjourned to enable further reports to be obtained. I might add, requested by your legal representatives, that it proceed before me.
33Your plea hearing took place on 29 November 2024. It is important at this point to note that clearly you declined the sentence indication I gave in April. There were some further listings of the matter before you ultimately decided to plead guilty some months later. As I discussed with your counsel at the plea hearing, I do not consider myself bound by the sentence indication that I gave. So much was made clear to your legal representatives, and parties indicated they understood this was the case.
34Needless to say, had you pleaded guilty at the time the sentence indication was given, you would have saved the courts from further listings of this matter. Moreover, the complainants were prepared to give evidence at the trial on 24 April 2024. This clearly did not come to fruition, but you have now ultimately spared them from having to give evidence at trial and, as I will discuss later, your plea of guilty will attract a discount.
35Your co-offender, Michael Aziz, was charged with common assault in relation to Mr Buttigieg. He pleaded guilty to that charge and a charge of committing an indictable offence whilst on bail. He was ultimately sentenced to imprisonment by way of time served. I was told it was 128 days. Given the different nature of the charges, I do not consider parity has much, if any, role to play in sentencing you for aggravated burglary and aggravated carjacking.
36You have been on remand since your arrest in December 2021. I note that some of the period served on remand has been during the COVID-19 pandemic and during that period your time in custody would have been more difficult given the lack of courses available, restrictions on visitors and restrictions on movement generally within the prison.
Plea of Guilty
37As I have said, you have entered a plea of guilty. You did not do so at an early stage, but rather after your scheduled but adjourned trial. Witnesses were therefore anticipating having to give evidence. Nevertheless you have now accepted responsibility for your conduct. You have spared the victims from having to give evidence at trial. Your plea has a utilitarian value. You have spared the community the significant expense of a trial and your plea demonstrates a willingness to facilitate the course of justice. Aside from the fact that you have pleaded guilty, there is very little by way of remorse exhibited.
Prior criminal history
38Mr Dodd, you come before the court with a lengthy and relevant prior criminal history which commenced in June 2011 in the Magistrates’ Court at Latrobe Valley. You were sentenced as a young offender to 18 months’ imprisonment for charges including unlawful assault, make threat to kill, criminal damage, burglary, attempted burglary, reckless conduct endanger serious injury and theft of motor vehicle, among others.
39Since then your offending has escalated. Your criminal history contains prior convictions for aggravated burglary, robbery, threat to inflict serious injury, recklessly causing injury, reckless conduct endanger serious injury, assault with weapon, make threat to kill, criminal damage, hinder police, failing to stop vehicle on police request, driving in a manner dangerous, traffick methylamphetamine, drive whilst suspended, assault an emergency worker on duty, breach pf parole, as well as other summary offences, including offences involving contravention of a family violence intervention order. There are also drug possession and driving offences. On numerous occasions you have been sentenced to a term of imprisonment.
40In May 2020 you were convicted of charges of unlawful assault, drive whilst disqualified, reckless conduct endanger serious injury, entering private place without authority, intentionally causing injury and intentionally damaging property. You received nine months' jail.
41The most recent matter was a sentence imposed in the Geelong Magistrates’ Court on 1 February 2021, for which you received 30 days’ imprisonment for intentionally damaging property.
42At the time of this offending, you had recently been released from prison.
Personal Circumstances
43Turning now to your personal circumstances. These were set out in an outline of submissions on your behalf and supplemented in the psychological reports tendered. You are now 31 years of age.
44You have described your childhood as chaotic and unstable. It was marked by family violence, initially perpetrated at the hands of your father, with whom you resided until you were four, and then later your mother and stepfather. You were exposed to substance use and parental separation, and you were subject to physical and verbal abuse by a family friend of your stepfather from the age of seven. You have reported that this occurred on numerous occasions, and this was reported to police. You were then removed from your mother’s care at around the age of eight due to family violence.
45According to what you have told the psychologists, you were placed in residential care from the age of nine with much older teenagers who had a negative influence on you. You were transferred, reportedly, across various residential units across Gippsland.
46The reports of Daniella Kocic, psychologist, and psychiatrist, Dr. Anthony Cidoni, set out in further detail the matters that you have recounted to them regarding your upbringing. You have reported that you attained Year 7 secondary education but were expelled in Year 8. You reported being diagnosed with attention deficit hyperactivity disorder at the age of five, and that you were prescribed psycho-stimulant medication throughout your schooling years. You received the assistance of a teacher’s aide whilst at school. You had some issues establishing and maintaining friendships. Whilst at school, and during your childhood, you experienced significant behavioural difficulties consistent with a diagnosis of oppositional defiant disorder. Clearly, during your childhood, you experienced a number of difficulties.
47Tendered on the plea were some documents relating to your presentation in 2008. One of those, Exhibit 4, was a 'Psychiatrist or Psychologist Report' from Yasmin Baliz from March 2008, in which it had been noted that you had been diagnosed with ADHD and conduct disorder and that you were being managed with medication. It was noted there that, at the age of 14, you had a history of substance abuse, including cigarettes, alcohol, and drugs, and that you had some anger management problems, including the use of knives to threaten others and vandalise property. Your mother reported that you had a history of banging your head against walls. You had reportedly, at that stage, been enrolled in a number of schools in the past, five primary schools and two secondary schools.
48It was noted in that report that your father left your house when you were five days' old, that you had had weekly contact with him, but felt rejected and threatened by your biological father when you were in Grade 2. The loss of your grandmother in 2006 was said to have had a significant impact upon you.
49It is noted in those earlier reports that you lived in residential care from 2005 to 2007, reportedly because your mother was unable to control your violent behaviour. That report also confirms disclosure to your parents about other abuse of yourself and your siblings. There was an attempt to have you counselled but you were unable to continue due to a change of counsellors and the need for stable ongoing support.
50Further material confirmed that as of March 2008 you were known to have displayed aggressive behaviour towards females, and that your parents had reported an early history of self-harming. Again, you were said to have been placed in residential care as a result of your parents being unable to manage your behaviour and the impact that your conduct was having on their ability to guarantee the safety of your siblings. There was a recommendation that you engage with a registered neuropsychologist and undergo individual counselling.
51According to a report from Berry Street, again authored by Yasmin Baliz, you had been exposed to much emotional trauma resulting from rejection, instability, and inconsistency in the family environment. You had a history of severe emotional and behavioural disturbance in the context of family conflict and childhood abuse. It was noted in that report that an accumulation of harm hypothesis accommodates information about the impacts of early home life on your psychological functioning. These experiences of trauma are said to have contributed to your behavioural and social-emotional functioning. The harm experienced was said to be of a lasting nature, as was apparent in your behaviours. Clearly this material from 2008 confirms the somewhat tumultuous experience from your teenage years, and that you were unable to remain in the family home. Peppered throughout this are references to exposure to family violence, although it is not quite set out in the same explicit detail as it is in the psychological reports as you have recounted to the various experts.
52You have a longstanding history of alcohol or other drug use. You advised Ms. Kocic that your substance-use was a means of self-medication for your unaddressed trauma and subsequent distress. You were reportedly introduced to alcohol at a young age and began using when you were nine whilst in residential care and associating with older peers. You have reported the use of ecstasy and cannabis, and you have a longstanding history of methamphetamine use which commenced when you were 21. You reported a daily use of five to six points, spending $700-800 per day. You have reportedly used heroin throughout periods of remand but denied using it within the community. You have reportedly experienced drug-induced psychosis in the past, with symptoms such as paranoia and visual hallucinations. Your longest period of abstinence was seven weeks in 2019.
53Whilst in custody you have reportedly engaged in alcohol and drug counselling. You have engaged with Ms. Hayley Mitchell from Caraniche whilst in custody for two and a half years. You have reflected, however, that you were not interested in counselling to address your drug use in the beginning, but eventually you have found it to be helpful. Whilst on remand you have reportedly completed drug and alcohol programs, however, no certificates have been tendered in confirmation of this.
54In terms of your work history, you reportedly entered the workforce at the age of 16 in concreting, and despite your incarcerations you have been able to return to work consistently on a full-time basis. You have no family support apart from some contact with an earlier foster family. You are supported by your partner of three years. You have an 11‑year-old son with whom you have had no contact.
55According to Ms Kocic, you have indicated clinically significant post-traumatic stress disorder symptoms, and there is an indication of an ADHD diagnosis. She outlines that you experience general anxiety disorder, PTSD, and major depressive disorder which is severe and recurrent. This diagnosis is confirmed by Dr Cidoni, but he notes that the depression diagnosis has presented since your remand into custody.
56You have also been diagnosed with stimulant-use disorder, which is severe, in sustained remission in custody. You were also said to have a sedative, hypnotic, anxiolytic use disorder and antisocial personality disorder. According to Dr Cidoni, you have features of conduct disorder as a child that has developed into antisocial personality disorder as an adult, evidenced by your anger, aggression, impulsivity, and rule-breaking behaviour. Dr Cidoni also confirms a range of anxiety symptoms that cover the domains of PTSD, obsessive compulsive disorder, generalised anxiety disorder, a history of ADHD that has persisted into adulthood, and a significant history of polysubstance-use disorder.
57Your counsel submits that all limbs as set out in the matter of R vVerdins have application here.[1] Specifically, the opinion of Ms Kocic is relied upon, wherein she notes that, 'taking into account your history, the circumstances leading up to the offences, your functioning at the time of the offences, that several factors likely contributed to your offending behaviour'. She opines that it appears that your untreated trauma history and mental health issues have impacted your mental health functioning within society and predisposed you to have a higher susceptibility and lower threshold for psychological distress and emotional dysregulation, and that your early exposure to violence and substance-use by your parents normalised and predisposed you to model this behaviour to get your needs met. Your offending is said to have been both reactive and instrumental due to your entrenched personality vulnerabilities and offence supportive activities.
[1]R v Verdins (2007) 16 VR 269.
58Ms Kocic considers that your psychopathology has undermined your ability to think clearly, respond calmly, and exercise appropriate judgment, thereby contributing to your poor behavioural outcomes. She considers that you have not developed or sustained effective adequate coping resources to manage your distress and emotional dysregulation.
59Specifically, Ms Kocic opines that at the time of the offending your capacity to engage in rational decision-making and appreciate the wrongfulness and consequences of your conduct were likely impaired. Your heavy substance use of methamphetamine and GHB would have heightened your risk-taking behaviour, impulsivity, and behavioural disinhibition. She notes that substance use increases levels of impulsivity, risk-taking, and behavioural disinhibition, which was already at a higher baseline due to your personality vulnerabilities.
60Ultimately, your counsel submits that your moral culpability is reduced in relation to your offending behaviour as a result of the various diagnoses. It is submitted that your moral culpability is reduced as a consequence of deep-seated problems flowing from your appalling childhood which affected your thinking and judgment at the time. It is submitted that your moral culpability should be reduced, and therefore affect the weight to be given to punishment and denunciation. Your counsel submits that it is not solely due to your substance abuse.
61I have difficulty accepting that submission. Whilst I do accept that you have experienced a number of mental health difficulties, the fact is you were substance-affected, having used illicit drugs, and your drug use exacerbated your predisposition to act impulsively and to disinhibit your behaviour. I am not satisfied that there is a causal nexus between your mental health and your offending on this occasion, given how difficult it is to disentangle your drug use from these mental health considerations.
62Dr Cidoni opines that your offending:
' … involves a combination of factors, including his personality with a degree of impulsivity, recklessness and a lack of regard for the law, the consequences of his behaviour and the effect of his behaviour on others, as well as the impulsivity associated with his personality and ADHD and impaired judgement and disinhibition triggered by the substance use, particularly the amphetamines and GHB' [ 69]].
63There was a degree of pre-planning involved in the aggravated burglary in terms of your agreement to attend and be available to assist.
64I accept that the aggravated carjacking occurred in the context of you fleeing the scene and to some extent your mental health and poor decision making played some role in your decision to take Mr Carson’s van by force. But again, the involvement of your drug use makes any moderation by virtue of your mental health, very limited.
65As to other limbs of Verdins, I accept that your diagnoses can influence the type of sentence to be imposed, and I accept that imprisonment would likely weigh more heavily on you than a person without your conditions. There is a potential for significant mood fluctuation, given your ADHD, PTSD, generalised anxiety disorder and major depressive disorder. You are said to be susceptible to negative peer influences whilst in custody, and I accept this.
66However, I am not convinced that there is a serious risk that imprisonment will have a significantly adverse impact on your mental health, other than that the volatile nature of the prison environment could further exacerbate your symptoms.
Bugmy/Childhood Deprivation
67Although there is some conflicting information as to why you were removed from the care of your mother and stepfather, I am prepared to accept that your background is characterised by a history of trauma, neglect, exposure to violence and unstable living environments.
68Your counsel submits that the principles enunciated in the case of Bugmy v The Queen apply.[2] The prosecution does not take issue with this. Pursuant to principles in Bugmy, an offender’s background of deprivation is relevant because his or her moral culpability for the particular offence is likely to be less than the culpability of an offender who's formative years have not been marred in that way.
[2] (2013) 249 CLR 571.
69As the High Court said:
'The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences.'
70However, whilst a disadvantaged background may have the effect of reducing moral culpability, it will also increase the importance of protecting the community. I have taken this into account when determining sentence.
Section 10A Sentencing Act
71As I have said, s 10AD of the Sentencing Act directs that a term of imprisonment must be imposed for aggravated carjacking, and non-parole period of not less than three years must be fixed unless the court finds that a special reason exists pursuant to s 10A.[3] The Act directs that a non-parole period must be at least six months less than the sentence imposed.[4]
[3] Sentencing Act 1991 (Vic) s 10AD(1).
[4] Ibid s 11(3).
72The mandatory minimum non-parole period serves as a legislative yardstick. It should not be permitted to swamp the sentencing discretion.
73Your counsel, Ms. Sheridan, submits that you fall within an exception to the mandatory imposition of a statutory minimum non-parole period. She submits that special reason exists pursuant to s 10A. Your counsel submits that having regard to the considerable period you have already spent in custody, that it would be open to the court to impose a combination sentence, which would provide you with some certainty as to your release and to enable you to be transitioned back into the community with the assistance of Corrections.
74Ms Sheridan submits that:
a)firstly, that you satisfy s 10A(c)(i) because, on the balance of probabilities, you had impaired mental functioning that is causally linked to the offending which substantially and materially reduced your culpability;
b)secondly, that pursuant to s 10A(c)(ii) your impaired mental functioning would result in you being subject to a substantial and materially greater than ordinary burden of imprisonment; and
c)alternatively, pursuant to s 10A(e), that you have substantial and compelling circumstances that are exceptional and rare given your deprived childhood coupled with your diagnoses.
75Dealing firstly with the submission that you had impaired mental functioning that is causally linked to the offending, I have already explained why I do not consider that your mental health reduces your moral culpability as established in Verdins, given that you were affected by drugs at the time. The same reasoning applies here. However, even if I were to conclude that your impulsivity by virtue of your mental health has some connection to your offending, causally that connection is weakened by your drug use. In any event, I am not satisfied that your mental health substantially and materially reduces your culpability. I do not consider that this exception is made out.
76Nor am I satisfied that s 10A(c)(ii) has application here. Whilst I have accepted for the purposes of Verdins that your mental health might impact upon your time in custody thus making it more burdensome, I do not consider that it would result in you being subject to a ‘substantial and materially greater than ordinary’ burden of imprisonment.
77Turning now to the exception under s 10A(e). The substantial and compelling circumstances exception requires that a ‘stringent’ standard be met.[5] Ultimately, you must satisfy the court on balance of these factors. The threshold to impose an alternative disposition to a gaol term is very high.
[5] Farmer v The Queen [2020] VSCA 140 [52] (Maxwell P, Kaye and Niall JJA) (‘Farmer’).
78Section 10A(2B) directs that the court must regard general deterrence and denunciation as having greater importance than other sentencing purposes when considering the application of s 10(2)(c). Further, your personal circumstances must be given less weight than the nature and gravity of your offending.
79The term ‘substantial and compelling circumstances that are exceptional and rare', was considered in DPP v Hudgson[6] whereby the court, referring to the second reading speech which introduced s10A[7], concluded that the ‘substantial and compelling circumstances’ exception required that the circumstances identified be atypical.[8] The exception, it is said, requires ‘powerful circumstances of a kind wholly outside “run of the mill” factors typically present’ in offending of the relevant kind.
[6] [2016] VSCA 254 (Weinberg, Whelan and Priest JJA) (‘Hudgson’).
[7] Crimes Amendment (Gross Violence Offences) Act 2013.
[8] Hudgson [112].
80More recently, the words ‘that are exceptional and rare’ as it relates to s10A, and s5(2H)(e), were revisited by the Court of Appeal in DPP v Lombardo.[9] There the court considered the addition of these words could be seen to reflect parliamentary dissatisfaction with the stringency of the existing judicial application of the provision.
[9] [2022] VSCA 204.
81Looking at s 5(2H)(e), which has similar, if not the same, wording, the court in Lombardo regarded the wording of the provision being ‘substantial and compelling circumstances that are exceptional and rare’ as a composite phrase imposing a single test, rather than as two discrete tests. At [68] the court said:
‘The "exceptional and rare" language is not merely a description of the empirical outcome of applying the law of sentencing to a collection of offences. It is a threshold which must be met before it is open to impose a non-custodial sentence.'
82Whilst your childhood deprivation and your mental health issues are relevant when imposing sentence, I do not consider that they alone or together amount to powerful circumstances of a kind wholly outside 'run of the mill' factors typically present in offending of this kind. Whilst your childhood is a sad matter that must be taken into account, even with your mental health issues, I do not consider your circumstances to be substantial and compelling that are exceptional and rare. Accordingly, I do not find that a special reason exists pursuant to s 10A.
83Even if one of the exceptions could be made out, ultimately, I am of the view that the offending is simply too serious for a combination sentence. Whilst there is clearly some merit in you having as much support as possible when returning to the community, a combination sentence, even if I could impose it, would not meet the sentencing objectives, nor would it reflect the gravity of your offending. The only sentence which would meet these purposes of sentencing is a head sentence with a non-parole period. A non-parole period will at least provide the potential of an opportunity for you to be supported in your release from gaol should you be granted parole. However, in setting a head sentence, I must assume that you will serve every day of the term of imprisonment that I will impose.
Nature and Gravity of Offending
84Both the offences of aggravated burglary and aggravated carjacking are serious offences as is reflected in the applicable maximum penalty for each. The fact that Parliament has seen fit to mandate a non-parole is further reflection of the seriousness with which this offence is considered.
85Your participation in the aggravated burglary is put on the basis of complicity. You attended with others knowing they intended to steal a car, and you were available to assist if required. Whilst the circumstances of the aggravated burglary are serious, particularly in that your co-offender brandished a firearm in the commission of the offence, as I have said, it is accepted by the prosecution that there is no evidence to suggest you were aware of the intention of the co-offender to use the firearm or that it was used to carry out the aggravated burglary. I accept that your role was confined to remaining in the vehicle while the co-offender entered the house and to be available to render assistance, but as the prosecution has submitted, your participation was not entirely idle.
86As to the aggravated carjacking, this is a serious example of this offence. I accept that it was relatively spontaneous, occurring in the context of you seeking to evade detection from your offending on the aggravated burglary. True it is that you did not use a weapon to carry out the offending, but you executed the offending in a violent and dangerous way. You ferociously assaulted Mr Carson in order to flee the scene in his vehicle, which was also his source of income. In the course of doing this, Mr Carson sustained significant injuries that have continued to impact upon his ability to work and upon his enjoyment of life.
87Mr Carson was simply going about his business, getting ready for work for the day, when confronted outside of his own home. Your conduct was most reprehensible and warrants the court's denunciation. As I have already set out, your offending has had a considerable impact on Mr Carson, which has had a ripple effect throughout his family. You had little regard for Jenelle Carson as she came to her father’s aid shoving her aside. Neither Mr Carson, nor his daughter, should feel any sort of responsibility or guilt for what occurred. This was as I have said entirely on you and your extremely poor decision making. I consider that your moral culpability is high.
88I take into account current sentencing practices for both offences. The prosecution have provided me with a number of comparable cases for the offence of aggravated carjacking. Some of those involved the use of weapons but, as discussed, I consider this to be a serious example of what is already a grave offence. Your counsel has also referred me to a case involving aggravated carjacking and aggravated burglary, but as discussed I consider the offender’s circumstances and the facts in that case to be different to the considerations here. Current sentencing practices are but one of the matters to be considered when sentencing and are not the only or dominant matter.
Sentencing Purposes and Principles
89There are a number of basic purposes for which a court may impose a sentence, namely just punishment, both specific and general deterrence, rehabilitation, denunciation and protection of the community. In determining an appropriate sentence, I am required to take into account these objectives as well as various other matters including the gravity of the offending, the applicable maximum penalties, your culpability, the impact on the victims and your personal circumstances.
90The sentence I pass must balance the interests of the community in denouncing criminal conduct with the community's interests in ensuring that as far as possible you are rehabilitated and reintegrated into society. I am to have regard to the principles of parsimony, and I do so.
General and Specific Deterrence
91General deterrence is an important sentencing consideration. Other members of the community must understand that such serious criminal offending will attract significant punishment. Moreover, I am of the view that, in your case, specific deterrence and protection of the community are also required to be given weight, in light of your prior criminal history.
92Just punishment and denunciation must also be given primary consideration in my instinctive synthesis.
Totality
93Although the offending here occurred within a relatively short timeframe, each offence warrants some individual punishment given it involves distinct and serious conduct. There is a need for the sentence to reflect the individual charges and where applicable, the victims, and the conduct they comprise. However, there should be a degree of concurrency appropriate to satisfy the principle of totality. I must ensure that the totality of the sentences imposed is met with a just and proportionate sentence. Therefore, I have both moderated to a degree the length of the individual sentences and the periods of cumulation. This is necessary to avoid a crushing sentence.
Prospects of rehabilitation
94Given your lengthy prior criminal history and the fact that you committed this offending shortly after your release from prison, I consider your prospects of rehabilitation to be poor. You appear to have little insight into your offending. initially you reportedly struggled to consider the impact of your actions on your victims according to the report of Dr Cidoni.[10]
[10] Report of Dr Anthony Cidoni (Exhibit 3) at [60].
95To your credit, you have reportedly engaged in alcohol and drug counselling, and this is encouraging. Your counsel submits that you have made some progress whilst in prison. Your prospects are enhanced if you receive treatment and rehabilitation. The fact you have a supportive partner is also significant when considering your prospects.
Sentence
96Mr Dodd, I now turn to sentence you.
97On Charge 1, aggravated burglary, you are convicted and sentenced to two years' imprisonment.
98On Charge 2, aggravated carjacking. you are convicted and sentenced to five years and eight months' imprisonment.
99On the summary charge of unlicensed driving, you are convicted and sentenced to one month imprisonment.
100The sentence imposed on Charge 2 will be the base sentence.
101I order those 10 months of the sentence imposed on Charge 1 be served cumulatively with the sentence imposed on Charge 2.
102I order that the sentence imposed on the summary offence be served concurrently with the sentence imposed on Charges 1 and 2
103This makes a total effective sentence of six years and a half years' imprisonment.
104I fix a non-parole period of five years' imprisonment before you become eligible for parole.
105I declare 1,086 days' pre-sentence detention to be reckoned as time served and deducted from the sentence imposed.
106Pursuant to s 6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have imposed a head sentenced of seven years and eight months' imprisonment with a non-parole period of five years and nine months' imprisonment.
107I make orders for forfeiture and disposal in he terms sought which I understand are not opposed.
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