Director of Public Prosecutions v Edwards

[2019] VCC 631

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-00029

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAIDON EDWARDS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	1 May 2019
DATE OF SENTENCE:	8 May 2019
CASE MAY BE CITED AS:	DPP v Edwards
MEDIUM NEUTRAL CITATION:	[2019] VCC 631

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Ms K. McFarlane	McFarlane Criminal Lawyers

HIS HONOUR: 

1Jaidon Edwards, you have pleaded guilty to one charge of aggravated carjacking and one charge of theft.  Those crimes carry maximum penalties of 25 years and 10 years' imprisonment respectively.

2You were 18 at the time of the offending and you are still only 19 years of age.  Accordingly, you are a youthful offender. 

3You pleaded guilty at the earliest reasonable opportunity and from the material before me, I accept that you now express appropriate remorse for the offending that you carried out.  You must also, of course, get the utilitarian benefit of that plea of guilty. 

4You do have a significant and relevant prior criminal history and that is of some importance in - well is of real importance in this sentencing process.  I will go through that in a moment, but effectively you were paroled on 6 November 2017 for not dissimilar offending and you were able to get through some 11 months of that parole without offending and on this particular occasion, you had been obeying the Parole Board, doing the programs and actually learning, possibly for the first time in your life, how to behave yourself over an extended period of time.  It is in light of that that this summary of this particular offending should be viewed.

5On 2 October 2018, you were with a young person by the name of Shannon Murphy.  Shannon Murphy was 17 years of age at the time that this offending occurred and as I have said, you were 18.  The complainant was 20.  You and your co-accused were unknown to the complainant. 

6At approximately 11.45 pm on that day, a Mr Whitecoat was sitting in his car in Church Street in Morwell, waiting for his girlfriend.  You two were walking along Princess Drive.  Your co-accused was armed with a screwdriver and a hammer.  The two of you approached the complainant's car with the weapons out of sight.  Your co-accused knocked on the complainant's car window and asked him for a cigarette, to which he replied, he did not have any.  The two of you then left.

7A short time later you both returned to the complainant's car and approached the window.  You stood behind the co-accused while he asked the complainant to call a taxi.  The complainant turned on the ignition and wound down his window and your co-accused immediately reached into the car and attempted to grab the keys out of the ignition.  Your co-accused with his other hand then produced a screwdriver and held it up to the throat of the complainant. 

8It is inherent in the plea that you were aware of that occurring and that that was still occurring.  In any event, your co-accused demanded the keys and yelled, 'Give me the fucking keys, cunt.'  You then said to the complainant, 'Just give him the keys.  Just give him the keys.'  He said, 'Fine, just take it', got out of the car and your co-accused said, 'Leave your fucking phone in there' and the victim placed his phone down his pants.  Your co-accused got into the driver's seat and you got into the passenger's seat.  He then revved the engine of the car up and drove away. 

9There was a laptop taken during the course of this, as a theft and that will be just typically given concurrency. 

10That is the crime that was committed. 

11On the face of it, you were secondary to what your co-accused was doing throughout this, though clearly you have pleaded guilty and must have been aware of the screwdriver.  It would be fair to say that on the material before me at least, the co-accused, young Mr Murphy, was the driving force. 

12He was sentenced to be placed in Youth Justice for 12 months in the Children's Court. 

13It is a very difficult proposition this, because on the face of it, if one looks at parity, each of you are of a similar age, each of you had prior convictions for violence, including armed robberies and on one view, you should be receiving less than he did.  However, the fact remains, you are in the adult jurisdiction and whilst the closeness plays a significant part in all this, you will not be getting less than him.

14I would place it at the lower end of carjacking.  There were no injuries sustained.  Whilst it was obviously terrifying for the victim, and I have read his victim impact statement and take that into account, I have seen far worse examples of it than this.  So accordingly, you will be sentenced on the basis that you were 18 at the time, you had been on parole for a significant period of time, approaching a year, which is a long time for one so young, and you somehow or other got yourself into this situation with a young person of similar intent.

15The offending has to be though, regarded as serious.  It calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment. 

16The situation here is that, in the ordinary course of events at your age in these circumstances, even with your prior convictions, I would not have hesitated in giving you a Youth Justice sentence, which was appropriate to the level of the offending.  Unfortunately, that is not so simple. 

17Tendered on your behalf were a number of matters.  There was a letter from your mother, which I have taken into account; a letter from Parkville Education Centre; a report from Mr Cunningham, the psychologist. 

18It is difficult to do this in any form of chronological order, so I think what
I probably should do, is outline the difficulties that the legislation causes insofar as this sentencing is concerned, go through that, because the matters that are pertinent to you are contained within it.

19There have been amendments to this section, subsequent to the offending. 
I make that clear from the outset.  At the time that you committed this offence, carjacking - as long as you were 18 or over, which you were, carries a mandatory minimum term of three years' adult imprisonment. 

20A number of way exist in which that could have been ameliorated and you can escape that mandatory minimum term if there is a special reason in existence.  That special reason exists if you prove, on the balance of probabilities, that at the time of the commission of the offence, you had impaired mental functioning that was causally linked to the commission of the offence and that is, substantial, it reduces your capability, or have impaired mental functioning that would result in you being subject to significantly more than the ordinary burden or risks of imprisonment. 

21On neither of those could I be satisfied on the balance of probabilities in this situation.  But under the legislation, as existed at the time, this is in s.10A(1)(e), 'There are substantial and compelling circumstances that justify doing so.' 

22It goes on in s.3, in determining whether there are substantial and compelling circumstances, I must have regard to Parliament's intention that a sentence of imprisonment should ordinarily be imposed for an offence covered by s.10(1), which this is and where the cumulative effect of the circumstances of the case would justify a departure from that sentence and a court makes a finding under sub-s.2, it must state in writing the special reasons.  What is put here, is that the special reason is that there are substantial and compelling circumstances that justify doing so.

23The legislation was amended on 28 October, some 26 days after this offending occurred.  I will simply make it clear that for all the material that is before me and for the reason I am about to outline, I find that there is a special reason.  And I also find that, pursuant to s.32(c), there are exceptional circumstances which enable me then to, rather than impose a sentence of adult custody, impose a sentence of Youth Justice. 

24The decision of the DPP v Hudgson, which was handed down by the Court of Appeal on 20 October 2016, as I understand the situation, covers the law as it stood at the time.  It is a very helpful decision, in which the Court of Appeal go through the various factors that a judge should look at when deciding whether there is a special reason.

25The Court of Appeal in that decision pointed out, as I well understand, that this section has been brought in for a reason, that this sort of offending, at the time that it was brought in, was regarded as being prevalent and as the Court of Appeal said, Parliament has set a high barrier, or a high hurdle, probably the better word, before a judge should not impose that minimum term.

26In that particular case, there was a question of parity which arises was argued out.  Parity had no part in that, because in fact the co-accused had been charged with a different offence in different circumstances.  The situation here is that you have been charged with exactly the same offence that your
co-accused was charged with and there is about a year's difference in your ages and on the face of it, if I did not find a special reason, he would be doing 12 months Youth Justice and you would be doing something in the order of four years in an adult prison.

27Whether that be regarded as parity or give you reason, or cause you to have a sense of grievance, is debatable.  You are in the adult jurisdiction. But it seems to me that where you were so close to the cusp of the 18, which would have put you in the Children's Court and got probably a lesser sentence than your
co-accused did, this is a very important factor.  However - and that factor, in my view, will give a special reason, even under the old - by itself probably, under the old legislation or under the new.  However, it is not that simple and this legislation has not been challenged or dealt with on many occasions, so I will go into a certain degree of detail as to the cumulative impact of the circumstances. 

28Now, the Court of Appeal said that, 'The court should consider, (1) the intention of Parliament' and I have already indicated that I do.  Second, 'The court must consider the cumulative impact of the circumstances of the case. The cumulative impact of the circumstances must be balanced against the presumption that the statutory minimum sentence should ordinarily apply' and
I am aware that the onus is on the balance of probabilities and is on you.

29The court then says, 'For example, the court may consider factors such as' -
I regard back pre-28 October that simply parity would be a factor that I would take into account, let alone the objective injustice of the situation that would otherwise exist.  I look at the nature and gravity of the offence.  It is a carjacking, it has to be serious.  I find that it is at the lower end of carjacking.  No actual injury was sustained, it was relatively short duration and your role in it was one of standing by and assisting.  You did tell the person to hand over their keys.  It was put to me that that was to get the matter over and done with and I have got doubts about that, but the fact of the matter is, your co-accused was clearly the driving force.

30Insofar as aggravating and mitigating circumstances of the offending are concerned, that really comes into the nature and gravity of it, I think, in these circumstances. 

31I then look at the personal circumstances to you, which I will go into in a moment. 

32I look at the impact on the victim.  Obviously this has caused significant psychological damage to the victim which had been ongoing.  Again, these things become a question of judgment, which always concerns me, but I have seen the impacts on victims which are far more serious than the impact on this particular person.  That is not in any way, shape or form, to minimise what did happen to him and minimise the offending. 

33I look at the maximum penalty, which is 25 years.

34I look at the purpose of the statutory minimum sentence and I have already been through that. 

35I then look at the overall purpose of sentencing in s.5 of the Sentencing Act of 1991.

36So I then look at matters personal to you, having taken into account those other factors as well. 

37Mr Cunningham, in his helpful report and your counsel, in her helpful submissions, point out that you have siblings and endeavour to have a supportive relationship with your brothers and sisters.  You live with your parents and you grew up in the Hampton Park until the age of 14. 

38At that time you were placed into residential care, as you were prone to outbursts and went to be psychologically tested.  That placement was meant to be for three months, but you never returned home.  Anybody who has practiced in the criminal law, particularly in the Children's Court jurisdiction, knows the devastating effect that happens on so many young people who are placed in that residential care situation.  But in any event, once you went into residential care, everything went downhill, as unfortunately is often the case.  You were in and out of different residential units. 

39You were remanded in a Youth Justice Centre in 2016 and were socially isolated.  During 2016, your family all moved down to Gippsland.  When you were finally paroled, as I understand it, you will be able to move back into that home. 

40You went to primary school.  You went to Koo Wee Rup Secondary.  You went to Elwood Residential Unit, Dandenong and Noble Park.  You have commenced employment at Big W in Mid Valley, approximately three months before you were remanded and as I understand it, were indeed working and doing quite well. 

41You were suffering from depression at the time, but that doesn’t give rise to a mental illness. 

42You were living in transitional housing and you were doing your best to get your life back on track. 

43The criminal history supports that series of events.  It starts with matters in the Children's Court and without conviction dispositions.  There are youth attendance orders, there is drug counselling, there is alcohol counselling, all sorts of things take place and the offending continues, as is often the case with young people with a background such as that.

44Again and without conviction, sentences continue up until around about 2016.  At that point in time, you were placed into Youth Justice and ultimately in November of 2016, after other sentences, you were finally placed on a Youth Justice Centre, which added up to 33 months.  By that, I do not have to go through each of the charges.  There is armed robbery, there is all sorts of things, aggravated burglary.  The time held in custody at that stage was about four and a half months, which was declared and part of that would have incorporated earlier sentences that had then been passed. 

45You were then held in Youth Justice.  How you went during that period of time was somewhat problematic, but you must have done reasonably well, because you were ultimately paroled on 6 November of 2017.  As I said, you were then able to conduct yourself appropriately within the community, despite all your difficulties and you got through about 11 months until all this happened.

46At that point in time, you had a significant period of time to the Youth Parole Board.  Your parole was cancelled.  That has had a number of effects.  One is, it means you have been undergoing a sentence and the whole time that you have been on remand since 8 October last year.  That means that nine months has been lost for potential concurrency and obviously, as you have been in for nine months already, I have to take that into account insofar as totality is concerned. 

47What is important is, insofar as your general circumstances are concerned.  And again, this ties in with what will be the situation indeed if I was making this decision under the legislation, as it was amended. 

48There was letter from Parkville College, the educational unit in the Malmsbury Youth Justice Centre and elsewhere.  As a sentencing judge, one does not receive letters from that organisation.  I infer from it that you have been impressive.  You have done your best. 

49I also have before me a report from Youth Justice, who I obviously asked for a report to check out your suitability and the two can be read, I think, in conjunction.  In the time that you have now been on adult remand, in one sense, but undergoing a Youth Justice sentence on the other, you have done very well. 

50The report from Parkville College says that you are currently completing a foundation level Victorian Certificate of Applied Learning.  You are 80 per cent of the way through the certificate and:

'Has worked tirelessly to get his education where it is.  Jaidon has shown an ability to work hard and at a high level and it is for this reason that Parkville College has encouraged him to complete his senior certificate, once his foundation is finished.  Both Jaidon and the Parkville College VCAL teachers are committed to furthering his education, his employment and rehabilitation prospects upon finishing his time at Malmsbury.  Jaidon has an unlimited potential to achieve educational success and we would like to reiterate how much we believe his position at the facility with Parkville College presence would benefit his future.  Jaidon has been a respectful and highly engaged member of Parkville College and it is for this reason we are proud to write on his behalf.  We understand that Parkville College is in no position to make a recommendation for the court regarding a decision that relates to Jaidon, I realise that is appropriately determined by the court.  However, we would like to emphasise that we have been continuously impressed by Jaidon's efforts and we would greatly appreciate the opportunity to continue teaching him throughout 2019.'

51That letter is exceptional by itself and compelling by itself.

52Were I to impose an adult sentence of imprisonment, let alone with the minimum term of three years, every ounce of that progress would be destroyed.  I have to look at not only the circumstances surrounding you, but the protection of the community.  It is clear from decisions such as Tomngeun that the protection of the community is always, with young people, best achieved if that young person can be rehabilitated and that is clearly the situation here.

53Insofar as your education aspects of it are concerned, the report from Youth Justice is of real assistance to me.  It points out that your compliance in custody has been positive and since you youth parole order was revoked back in October of last you, you have been subject to restricted movements during the adult remand associated with the outstanding charges I am sentencing for you today.  It has been challenging for you, as it said, tells me:

'He has been required to complete educational and other activities whilst on the unit, rather than in designated education spaces.  Mr Klepak-Edwards has frustrated by this and experienced some issues in custody as a result of these frustrations, but he has mostly managed his behaviour appropriately.'

54It goes on to say that there have now been family visits, that your very positive response to the prior supervision while you were on parole and that this offending would appear, in the overall circumstances, to be, ridiculous as it might sound, bearing in mind your past history, out of character for the way you have been conducting yourself since the day that you were released on parole. 

55One of the factors in your personal circumstances and the overall compelling circumstances here, are that"

'Mr Klepack-Edwards demonstrates impressionability, immaturity and is considered likely to be subject to undesirable influences in adult prison.  Youth Justice based its assessment on Mr Edwards' younger age range, as well as his mental health history of depression and anxiety, as outlined in the psychological assessment completed by Dr Cunningham.'

56So, on top of that, you would be in a situation where because of your impressionability and immaturity, which does not count as a factor under the Act, you would be at risk in an adult system and to be in it for that long, or to be in it at all, I think causes a circumstance where the community would be put at risk by that very act. 

57Section 32, and I say this because, I think, because of the way it was drafted,
I think, the Crown opening says a special reason has to exist for this to be of Youth Justice, as opposed to gaol.  In fact it is exceptional circumstances. 

58For the reasons and the facts that I have outlined, it is my view that you have satisfied, on the balance of probabilities, that a special reason exists why you should not be subjected to the minimum term and that there are exceptional circumstances here and I am someone who has been practicing criminal law for a long time, that letter from Parkville, I do regard as exceptional, as well as in combination with all the other matters, that a Youth Justice disposition is the appropriate one.

59I then have to determine the duration of it.  As I have indicated, at this point in time, again parity comes into effect and were you in a Children's Court, I would probably be giving you less than your co-accused, but that is not the case.  You are in adult court, you are in adult jurisdiction and I have to take that into account in this sentencing process. 

60I do so on the basis that you have already been in for nine months and that there is lost opportunities for concurrency and accordingly, they are matters that I take into account. 

61The prospects of your rehabilitation for these purposes are in your hands, but probably for the first time in your life, I suspect, look very promising.  The risk of you re-offending is going to be totally dependent on that rehabilitation.  Obviously it is very much in the interests of the community, as well as yourself, that that rehabilitation take place and that you, as the Parkville College indicate, these are useful and valuable life as a member of this community. 

62I have taken into account all the matters that I am obliged to, as I have indicated earlier, this will be subject to revision of parts that do not make sense and I will do so.  I will direct that the psychological report of Mr Cunningham remain on the court file. 

63Accordingly, on the charge of carjacking, you are sentenced to be detained in a Youth Justice Centre for a period of 18 months.  I think I need to make that a senior Youth Justice.  I need to say that, I think.

64MS McFARLANE:  Yes, that's correct, Sir.

65HIS HONOUR:  A senior Youth Justice order for a period of 18 months.

66Charge 2, three months' of senior Youth Justice, concurrent. 

67I direct that that effective sentence of 18 months be served concurrently with any sentence currently being - presently being undergone, which I understand is the parole breach. 

68I am also well aware, though I obviously do not anticipate what I will or will not do, that the Youth Parole Board have a wide discretion as to how they best facilitate the rehabilitation of the young offender and I will leave that to them.

69Pursuant to s.6AAA of the Sentencing Act, which I assume I am obliged to do, I will simply - it is not that simple, but I will just simply say, two years of YTC.  It is obviously meaningless what I found as a special reason.

70MR DEVLIN:  Yes, Your Honour.

71HIS HONOUR:  But I have got to say something.  If he had not have pleaded guilty, I probably would not have found there was a special reason, so, you know, so I will say two years and we will leave it at that.

72Now also I think, and I might be wrong with this, there is a loss of licence involved in this, is there not?

73MS McFARLANE:  That is correct, Your Honour. 

74MR DEVLIN:  Yes, Your Honour.

75HIS HONOUR:  There is.  Sorry and I apologise, I have missed this somewhere.  Is there a minimum to that for the carjacking?

76MR DEVLIN:  There is not a minimum, Your Honour.  So it's in Your Honour's discretion. 

77HIS HONOUR:  Yes, all right.  What I will do is, any licence to hold a motor vehicle is cancelled.  Disqualified from obtaining a licence for 12 months. 

78I should also - and I will actually incorporate this within the reasons, that as it stands at the moment, Mr Edwards has a release date of 13 October of this year, so I am aware of that, that there is still that much to go, in terms of his breach of parole. 

79MR DEVLIN:  Yes, Your Honour.  And there was a compensation order applied for.

80HIS HONOUR:  I have signed that.  Yes, that has been done.

81MR DEVLIN:  Thank you, Your Honour.  That is it.  Thank you, Your Honour.

82HIS HONOUR:  Yes, thanks for that, Mr Devlin.  Thanks, Ms McFarlane.

83MS McFARLANE:  Thank you, Your Honour.

84HIS HONOUR:  I will leave him there for a second.  You can just explain to him.

85MS McFARLANE:  Thank you, Your Honour.

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