Director of Public Prosecutions v Fairbairn (a pseudonym)

[2023] VCC 827

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAUGHAN FAIRBAIRN (a pseudonym)

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JUDGE:	HER HONOUR JUDGE LEIGHFIELD
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2023, 17 May 2023
DATE OF SENTENCE:	22 May 2023
CASE MAY BE CITED AS:	DPP v Fairbairn (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 827

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Armed robbery – attempted armed robbery – early plea of guilty –  mental health issues – childhood deprivation – Bugmy and Verdins principles enlivened – impact of Covid-19 on burden of imprisonment – aggregate sentence

Sentence:                  Aggregate term of imprisonment of 2 years and 3 months with a non-parole period of 1 year and 2 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Anna Dearman	Office of Public Prosecutions
For the Accused	Mr William Blake	Melinda Walker

HER HONOUR:

Introduction

1Vaughan Fairbairn,[1] you have pleaded guilty to an indictment containing one charge of armed robbery (Charge 1), and one charge of attempted armed robbery (Charge 2). The maximum penalty for armed robbery is 25 years' imprisonment, and for attempted armed robbery is 20 years' imprisonment.

[1] A pseudonym.

2These offences arise from two incidents which occurred over a period of approximately 10 minutes on 30 March 2022. You were 39 years of age at the time of the offending.

Circumstances of the Offending, Arrest and Remand

3The circumstances of your offending are set out in the succinct summary of prosecution opening dated 2 February 2023 which was tendered as Exhibit A on the plea. As identified in that summary, at approximately 12.30 pm on 30 March 2022 you attended at the Athlete's Foot store in Elizabeth Street in Melbourne. You asked to try on a pair of shoes and reacted when you were only given one shoe to try on for size. You said to employee Oskar Schrijver[2] 'this is fucking ridiculous' and told him that you would 'do [his] head in'. You also threatened Norman Hiller,[3] the area manager for Athlete's Foot who came into the store during the incident, saying 'I'll knock you down. I'll hit you.'

[2] A pseudonym.

[3] A pseudonym.

4You went to the rear of the store and you took a box of shoes from the staff-only storeroom. You then turned to Mr Schrijver and demanded, 'Open the till or I'll stab you'. You followed Mr Schrijver to the till where you made repeated demands of him to 'open the fucking till'. You were holding a pair of scissors as you made those demands. Mr Schrijver removed $240 in cash from the till and gave the money to you (Charge 1 – armed robbery). You then left the store with the $240 and the box containing the shoes.

5After leaving the Athlete's Foot store, you crossed Elizabeth Street and entered My Chemist. As you entered the store you were holding both the scissors and the shoebox. You yelled out to nobody in particular 'If I don’t get what I want, I'll hurt someone'. You then walked to the dispensary counter at the rear of the store where you were stopped by the owner Tomasz Bazan.[4] You raised the scissors above your head and said 'I'll stab you if you don't give me two bottles of Valium, then I'll be on my way'. You then gestured with the scissors towards pharmacist Liyan Siu[5] who was standing in the dispensary speaking on the phone to Triple 0.

[4] A pseudonym.

[5] A pseudonym.

6You walked towards the middle of the store but returned and attempted to enter the dispensary area a second time. Ms Siu put her hand out to stop you and said 'sorry you can't come in'. Mr Bazan and Ferhat Seker[6] then asked you to leave the store and you complied. After leaving the store you took off the black slides which you were wearing and put on the shoes you had taken from the Athlete's Foot.

[6] A pseudonym.

7At approximately 12.39 pm, police attended the scene and arrested you. You were searched and police seized $240 cash which they located in your jeans pocket and the shoes from Athlete's Foot which you were wearing. They also located the blue‑handled scissors which you had used during the offending at the front entrance of the My Chemist store.

8You were taken by police to the Richmond Police Station where you were deemed to be unfit for interview. You were remanded on 30 March 2022 and have been in custody since that time. As a result, you have served 418 days (not including today) of pre-sentence detention.

Victim Impact

9I did not receive any victim impact statements on the plea, however CCTV footage of the incidents in both Athlete's Foot and My Chemist were played on the plea, you saw those and I saw those.  I have had an opportunity also to read the police statements of each of the victims of your offending.

10Oskar Schrijver, the young male attendant from Athlete's Foot told police that he was so shaken and traumatised by what had happened that he had to sit down because he felt faint – and that is a reaction which can clearly be seen in the CCTV footage. Mr Schrijver said he thought that you were going to stab him if he did not give you the money, and that your actions had made him scared to go back to work or to even walk the streets.

11Tomasz Bazan, the owner of the My Chemist store, said that the incident in his store had made him really fear for his staff's health and safety. He said the incident had also made him feel really stressed and that he was still trying to process what had happened.

12Fen Yao[7] and Rosalia Lomeli[8] who were both pharmacy assistants at My Chemist, and Liyan Siu, who was a pharmacist at the store, all told police that they were shocked and scared by your conduct. Ms Siu added that she felt particularly frightened because you were physically aggressive and were not really responding to anything that was being said to you.

[7] A pseudonym.

[8] A pseudonym.

13Whilst I do not have any statements before me by which I can assess whether there has been any ongoing impact of your conduct, it is clear that your conduct was terrifying. It is also clear that, at least in the immediate aftermath of your offending, that each of the staff members who were exposed to your conduct were frightened and shocked by your conduct. I have taken this victim impact into account in sentencing you in this matter.

Prior Criminal History

14You have an extensive prior criminal history. The prior history which has been alleged (i.e. your offending as an adult) covers the period between 2002 and 2022 in Victoria, Queensland, New South Wales and South Australia.  Much of your prior history consists of multiple nuisance, criminal damage, possession of weapon, and dishonesty offences. You have also faced some charges for unlawful assault and threat to inflict serious injury.

15It is notable that whilst you have been sentenced to numerous terms of imprisonment throughout the last twenty years, in each case they have been either relatively short terms of imprisonment or have been partially suspended. The longest term of imprisonment imposed upon you to date was in June 2014 when you received a 12-month term of imprisonment with a non-parole period of four months for a consolidation of charges which included a number of dishonesty offences, threat to inflict serious injury, hinder police, possess dangerous article in a public place and commit indictable offence whilst on bail.

16Most recently you were sentenced in Victoria on 11 February 2022 for a consolidation of charges which included carrying a dangerous article in a public place, unlawful assault, criminal damage, behaving in an offensive manner in a public place, shop-theft and committing an indictable offence whilst on bail. You were sentenced on all of the offences except the shop-theft to a 3-month term of imprisonment, with 55 days of pre-sentence detention being reckoned as already served. On the shop-theft charge you were placed, with conviction, on a 6-month adjourned undertaking with conditions that you attend for a mental health and drug and alcohol assessment with a general practitioner and/or mental health service and that you follow any treatment recommendations of Grampians Mental Health. You were also required to return back before the Ballarat Magistrates' Court on 11 August 2022 to update the Court on your progress. Therefore, at the time of committing the current offences you had been out of custody for no more than a month, and were on an adjourned undertaking. 

17As I will come to shortly, you are someone who has struggled with drug and alcohol addiction and mental health issues from a young age. Your criminal history is reflective of those struggles. Unfortunately for both you and your victims, the current offending which brings you before the court is considerably more serious than the offending for which you have been sentenced in the past. Your lengthy criminal history, and the escalation in seriousness in your current offending, are both matters which I must take into account when assessing the weight to be given to the sentencing purposes of specific deterrence - that is deterring you, rehabilitation and community protection.

Gravity of the Offending

18There is no dispute that the offences of armed robbery and attempted armed robbery are, by their nature, serious offences. This is reflected in the maximum penalties which Parliament has set.  There is also no dispute that your offending on this occasion was serious offending – consisting as it did of you repeatedly demanding goods and cash whilst acting in a threatening manner with the scissors.

19However, your offending did not have the hallmarks of more serious examples of armed robbery.  Your offending was largely spontaneous, did not involve actual force, was committed by you on your own in broad daylight, and in circumstances where you did not attempt to disguise yourself. Further both offences were committed by you within a 10-minute time period. Taking all of these factors into account I am of the view that, whilst still serious, your offending in this case was in the lower to mid-range of objective gravity for this kind of offence.

Guilty Plea

20You entered a plea of guilty in this matter at the very earliest opportunity – at committal mention on 25 July 2022. Your plea has saved the cost and time of a trial being conducted, and spared the victims of your offending from having to give evidence and relive the trauma from that day. The value of your plea is also enhanced by it being proffered during a period where the impact of the pandemic continues to cause disruption to the smooth running of the criminal justice system. Accordingly, I am of the view that your plea both facilitates the course of justice and is of significant utilitarian value.

21Additionally, I am of the view that your plea of guilty is reflective of you accepting responsibility, and having genuine remorse, for your conduct. This conclusion is fortified by the conversations which you had with Ms Ferrari when you were being psychologically assessed for the purposes of this plea. Ms Ferrari noted that you expressed remorse for your actions, acknowledging that your behaviour was unlawful and wrongful and that it would have been distressing for those involved, including witnesses.

22Taking each of those above matters into account, I have given you a substantial discount on your sentence by reason of your plea of guilty, your remorse and your acceptance of responsibility for your offending.

Personal Circumstances

23You are now 40 years of age. You are the only child born to your biological parents, although you do have stepsiblings on your father's side. Your parents separated whilst you were still an infant.

24You had a difficult upbringing. Your father was a violent alcoholic and your mother struggled with addiction issues, was involved in prostitution, and had a history of abusive relationships. As a result of the difficulties each of your parents was facing, you were placed into the care of your maternal grandmother when you were 3 months old. Despite being in your grandmother's care, your mother tried to remain involved in your life, and you would spend periods of one to two months at a time living with her, before moving back to live with your grandmother. You also spent some time with your stepfather Ian, with whom you had a good relationship, however he passed away when you were eight years of age. The constant movement between homes meant that you attended multiple schools – on your estimate somewhere between 15 and 20 different primary schools. You struggled academically at school and you also had behavioural and attention problems.

25In addition to the disruptions in your home life and schooling, you also suffered a number of traumas. Between the ages of four and eight you were sexually abused by a family member, and you witnessed your cousins being sexually abused by the same perpetrator, but none of this was reported to police. When you were between five and six years of age, your father – on an occasion when you were in the car with him – threatened to kill you by driving over a lookout. At the last moment he turned around and drove you back to your grandmother's home. You were also subjected to physical abuse by members of your extended family and were the subject of a significant attack by your mother in your early teens where she struck you a number of times to the head whilst she was under the influence.

26You left mainstream school at the end of Year 7, and then undertook two further years of education at an alternative specialist school in Ballarat. Whilst you were still at school you left home and began living on the streets. You were 13 years of age at the time. You report that your time on the street was interspersed with periods spent in youth training facilities – namely Turana and Malmsbury. At one point, whilst undergoing a period of detention, you were referred to CASA for specialist trauma counselling, but only managed to engage in three or four sessions before becoming overwhelmed by the emotions which the sessions were triggering. You then turned to drug use instead to manage your trauma and emotions.

27After leaving school, at around the equivalent of Year nine, you worked as a mechanic's assistant for a couple of years. You then worked at M & M's, a music and mechanical workshop specialising in antique upholstery for approximately three years, before returning again to work in the area of mechanics. You ceased ongoing work at about 20 years of age, by which time your drug use had become prolific. Since then, you have only managed to return to work for a short period of time on a few occasions – most commonly taking on work in the abattoirs. When you are not working you are supported on the Disability Support Pension; and you were also receiving assistance for a period under the National Disability Insurance Scheme when you were living in Queensland.

28You do have two adult children – a son who is 23 years of age, and a daughter who is 24 years of age. Your relationship with their mother ended whilst they were still infants due to a combination of your drug use, gambling, offending behaviour and the imposition of a custodial sentence. Your children still live in Queensland and you did have some contact with your daughter and your granddaughter in recent years, however this ended badly with your daughter taking money from you. You do not currently have any contact with your daughter as a result.

29As I have already noted you began using drugs to manage your emotions at an early age. You commenced using marijuana, amphetamine (speed) and alcohol from the age of 13. By 20 years of age, you were using methamphetamine, and then a couple of years later you started using heroin. You described yourself as having become an alcoholic by 16 years of age and reported that up until 10 years ago you would drink half a bottle of spirits every couple of days. It was in the context of this traumatic background and prolific drug and alcohol use that your offending commenced and has continued over an extended period of time.

30You report that over the past 10 years you have managed to reduce your alcohol intake significantly, and you have been on the methadone program to assist you with your issues with heroin. Further you report that in the three weeks prior to your current offending you had not been using alcohol or drugs.

31However, at the time of the current offending you had only been out of custody for three weeks after serving a three-month sentence. Whilst you had been in custody you had been medicated with Seroquel and another psychotropic medication, but were not given either a prescription or a short-term supply of the medication on release. You were having trouble coping in the community, you had no assistance or supports in place, and you were struggling with your mental health. As you described it,

I felt myself losing it, I didn't see the point to being out, I don't cope in the community really, there's no help. I had no medication after I left prison so I was all over the shop, and everywhere I go to get help, they just think I'm a criminal, a drug addict…

Mental Health Issues and Cognitive Functioning

32On the initial hearing of the plea, a psychological report authored by Ms Carla Ferrari dated 10 September 2018 was tendered. That report had been prepared for the purposes of a previous plea hearing in 2018 and, whilst informative, did not provide any current material as to your mental health and its impact upon you. Accordingly, I adjourned the plea in this matter in order that an updated report could be obtained. On 17 May 2023, a further report authored by Ms Carla Ferrari, dated 3 May 2023, was tendered on your behalf.

33It is apparent that you have suffered from mental health issues from a young age. Historically, as a 12 year old, you were prescribed benzodiazepines by your GP for suspected Attention Deficit Hyperactivity Disorder ('ADHD') although you were never referred for diagnostic assessment. You were also assessed whilst serving a period of detention in YTC as suffering from Post-Traumatic Stress Disorder (PTSD), but you have received limited treatment for that condition over the past 20 years. You have had a number of hospital admissions over the years for drug and/or alcohol-induced psychosis, have a history of self-harm and suicide attempts since adolescence, and have had some community health service contact but nothing long term. You also instruct that you have been diagnosed with an acquired brain injury which resulted from the assault upon you by your mother when you were a teenager. As I have already noted, you have previously been under the auspices of the NDIS whilst in Queensland as a result of the impact of these conditions upon you.

34In terms of your current mental state, Ms Ferrari identified that:

(a)   you are finding your current period of remand extremely difficult due to having initially been subjected to a number of threats in mainstream, and then having been placed in protection for all but one month of your time in custody. You reported to Ms Ferrari that this is the worst time which you have ever had in custody, and that as a result of your distress you are experiencing constant low mood and anxiety, you often cry for no reason, you are on edge and concerned for your safety and you have lost your appetite. You also feel depressed and anxious, have difficulty sleeping and struggle with flashbacks and nightmares in relation to past traumas, with these symptoms having been exacerbated by your recent experiences in custody;

(b)   consistent with your self-report, the results of the testing undertaken with you by Ms Ferrari, show that your depressive symptoms have worsened significantly since Ms Ferrari last assessed you in 2018 with you now falling in the extremely severe range rather than the moderate range for depressive symptomology. This is despite you currently being medicated with quetiapine (which is an antipsychotic and mood stabiliser) and Cymbalta (which is an antidepressant);

(c)   your symptoms of anxiety currently fall in the moderate range;

(d)   you do not currently meet the threshold for a diagnosis of PTSD, however you do still have symptoms of trauma;

(e)   you present with symptoms suggestive of ADHD; and

(f)    you also present with cluster B personality traits associated with Borderline Personality Disorder (BPD) which influence your behaviour, cognition and judgment.

35In her original report authored in 2018, Ms Ferrari proffered the opinion that your predisposition to mental health issues has arisen as a result of your prejudicial childhood. In particular she noted that your experiences in childhood and adolescence have contributed to you developing depression, anxiety and post‑traumatic stress, which you learned to moderate with substances. Ms Ferrari identified that you were suffering from difficulties with regulating your emotions, impulse control, and were displaying erratic and unpredictable behaviour. She concluded that the impact of your childhood experiences had significantly impaired your development and functioning during a critical phase and accordingly you had not learned appropriate ways of coping with your emotions.

36In her latest report Ms Ferrari went on to further explain that traumas and invalidating early environments, such as those which you experienced, are known to undermine cognitive and emotional development and exert a negative effect on behavioural trajectories. In your case, you have developed a number of personality traits associated with BDP which influence your behaviour, cognition and judgment.  Your BPD is characterised by extreme reactivity to interpersonal stresses, which impairs your ability to exercise appropriate judgment, make calm and rational choices and think clearly. You also suffer from intrinsic impulsivity which, consistent with your history and functioning, often results in maladaptive coping including self-harm, chronic suicidality, and substance use.

37In Ms Ferrari's opinion your behavioural disinhibition and dysregulation, and your impulsivity, contributed to your offending conduct by impairing your cognition, and executive functioning and therefore your ability to think clearly, make calm and rational choices, and inhibit your behaviour. Further, in her view, your difficulties were heightened by reason of you being unmedicated at the time of the offending.

38Ms Ferrari also noted that you are prone to impulsive, irrational and unpredictable behaviour in the community due to the combination of your ABI, your personality structure and your complex mental health issues as you have limited coping mechanisms to tolerate or manage distress which you experience frequently in the community due to institutionalisation. Further, whilst you are in custody, your mental health issues result in you being subject to a substantially and materially greater burden than someone without your conditions. There is, as noted above, also evidence of your mental health having significantly deteriorated whilst you have been in custody on the current offending despite being medicated for your conditions.

Relevance of Mental Health Issues and Childhood Deprivation to Sentencing

39Mr Blake, on your behalf, submitted that the significant trauma, deprivation and social disadvantage which you endured throughout your childhood and adolescence have had profound and lasting consequences upon you, and that in the circumstances, the principles in Bugmy v The Queen[9] apply. He submitted, relying on Ms Ferrari's reports that the impact of your deprived childhood has not diminished over time, and that your experiences are relevant to an evaluation of your moral culpability in this case.

[9] Bugmy v The Queen (2013) 249 CLR 571

40Further, Mr Blake submitted that your mental health and behavioural issues enliven the principles in Verdins v R[10]. In particular he submitted that your mental health issues reduce your moral culpability for your offending; reduce the weight to be given to both general and specific deterrence - so that is the weight to be given to deterring other people in the community from doing the same kind of behaviour and deterring you; make your time in custody more burdensome than it would be for someone without those conditions; and have relevance to the kind of sentence which is imposed. Moreover, he submitted that there is evidence that your current period of incarceration is already having a significant adverse effect on your mental health and that this should also be taken into account in mitigation of sentence.

[10] Verdins v R [2007] VSCA 102

41Ms Dearman, on behalf of the prosecution, did not take issue with any of Mr Blake's submissions on the relevance of your mental health and your deprived childhood in sentencing.

42I accept that the principles in Bugmy do apply in your case. Your traumatic experiences and social deprivation during childhood have played a role in shaping your mental health, your behaviour and your responses. They have been a major contributing factor to the development of the drug and alcohol issues which you have battled with since early adolescence. They have also been a major contributing factor to the context within which your offending has occurred both on previous occasions and the current occasion.

43I also accept that all of the principles in Verdins are enlivened in your case. I accept Ms Ferrari's opinion that your mental health and behavioural issues impact upon your ability to think clearly, make calm and rational choices and inhibit your behaviour. I also accept that your mental health has deteriorated whilst you have been in custody and that your symptoms of depression, anxiety and trauma all contribute to making your time in custody more onerous than that of other persons who do not suffer with these same symptoms.

44Accordingly, I am satisfied that the combination of the impact of your deprived childhood and your mental health, cognitive, and behavioural issues upon you, does reduce your moral culpability to a moderate degree. Furthermore I am also satisfied given the impact of your mental health and cognitive issues upon you at both the time of offending and currently, that there should be moderation of the weight to be given to general and specific deterrence as sentencing purposes, as well as mitigation of your sentence on the basis of the deterioration of your mental health whilst in custody to date and the increased burden of imprisonment which falls upon you due to your mental health issues.

Prospects of Rehabilitation

45Turning now to your prospects of rehabilitation. You were assessed by Ms Ferrari as being a high risk of re-offending given your untreated mental health issues which are chronic and enduring; extensive criminal history; your institutionalisation from a young age resulting in a significantly reduced ability to manage in the community without intensive support; your unstable psychosocial circumstances; your lack of pro-social supports in the community; and your history of drug and alcohol use. However Ms Ferrari noted that on assessment you were able to demonstrate a reasonable level of insight and judgment, you were able to reflect on the nexus between your mental health and offending; you had some insight into the problems your alcohol and substance use have caused you in the past; and  you present as willing and motivated to seek treatment and to comply with medication for your conditions – as reflected in your current compliance in custody with opioid replacement therapy and medication for mental health issues. Ms Ferrari noted that the difficulty lies not so much in your desire to make change but in your inability to facilitate treatment in the community without support.

46In Ms Ferrari's opinion you would benefit from a series of intensive supports including:

(a)   psychiatric review for diagnostic clarification of your mental health given your complex history;

(b)   regular and consistent psychological intervention whilst in custody to reduce the severity of your symptoms of depression and anxiety;

(c)   a referral to community mental health services prior to your release from custody;

(d)   a period of intensive support and supervision after your release from custody to support your transition between prison and the community;

(e)    a referral from your GP via a mental health treatment plan to a forensic psychologist with expertise in trauma, ADHD and personality disorders to develop skills to manage your mental health conditions, and to provide targeted interventions to reduce your risk of recidivism;

(f)    specialised AOD counselling to identify your triggers, risk factors, alternative strategies and relapse prevention skills; and

(g)   referral for NDIS supports.

47Both Ms Dearman on behalf of the prosecution and Mr Blake on your behalf submitted that whilst you do have some prospects of rehabilitation, those prospects could be described as guarded at best due to your lengthy prior history and your high risk of re-offending in the absence of you engaging in intensive supports. Both counsel also stressed that you are going to require intensive supports when you are released into the community for you to have any prospect of addressing your difficulties and reducing your risk of re-offending. 

48I agree with this characterisation by both counsel. I accept that you do have some prospects for rehabilitation – as evidenced by your level of insight and the steps you are currently taking whilst in custody to try and ensure that you are appropriately medicated for your mental health and drug issues. However, your ability to rehabilitate will be entirely dependent on you not only being provided with intensive appropriate supports on your release, but you being able to transform a willingness to engage with such services into a capacity to do so – which is not going to be an easy task given the challenges which you face. In your case, the sentencing purposes of rehabilitation and community protection can only be achieved by way of you receiving intensive and targeted supports when you are released into the community. Therefore, in my view, it is important that any sentence which I impose in this case provides you with an opportunity for an extended period of supervision and support in the community given the difficulties which you face and the clear link between those difficulties and your offending.  Given your prior history and the gravity of your current offending the only way in which I can facilitate this in the current matter is by providing you with an opportunity for an extended period of time on parole – and I intend to provide that opportunity.

Impact of COVID-19 on Conditions in Custody

49In determining the length of any sentence to be imposed, Mr Blake submitted that I should also take into account that the burden of imprisonment upon you has been increased by reason of the impact of the pandemic.

50During the period you have been in custody, you have been impacted by the COVID‑19 pandemic in a number of ways. You have had the stress of not being able to control your own circumstances as to your risk of contracting COVID‑19. You have also been subjected to quarantining and lockdowns, and have had reduced access to programs, education, employment, and personal visits. The combination of these restrictions and your placement in a protection unit have resulted in you being quite isolated for the vast majority of the time you have been in custody to date. More recently, you have been able to have regular phone contact with your mother and have received a letter from your son. You report that these two occurrences are the only positive experiences which you have had whilst you have been in custody.

51I accept that these issues have made the time you have spent in custody on remand more onerous that it would have been in non-Covid times and I have taken this into account also in your favour in sentencing you.

Sentencing Submissions, Comparable Cases and Current Sentencing Practice

52I turn now to the sentencing submissions made by each party.

53Ms Dearman for the prosecution submitted that community protection, specific and general deterrence (although moderated), denunciation and just punishment are all relevant sentencing considerations, and given the gravity of the offending, a term of imprisonment with a head sentence and a non-parole period is the only appropriate disposition in this case.

54Mr Blake, on your behalf, conceded that the objective gravity of your offending calls for a substantial term of imprisonment which is longer than that which you have already served to be imposed. However he submitted that, given the mitigating factors in this case, the sentence imposed should allow you the opportunity of an extended period of supported rehabilitation on release which would be of benefit to both you and the community. I note that Ms Dearman did not take issue with this submission and agreed that you are in need of intensive supports upon your release from custody.

55In response to a query from me, both counsel also submitted that it would be appropriate in the circumstances of this case for an aggregate sentence - that is a sentence which deals with both offences in one sentence - be imposed in respect of the two offences.

56As is no doubt already apparent, I agree with the submissions of both counsel that a term of imprisonment with a head sentence and a non-parole period is the only appropriate disposition in this case given your prior history of offending and the gravity of your current offending. However I also agree that it is appropriate for you to be provided with an opportunity for an extended period on parole given the substantial mitigating matters in this case including, but not limited to, your plea of guilty during Covid times, your remorse, the impact of your childhood deprivation and mental health issues upon you both at the time of the offending and currently, the burden of imprisonment upon you, and the need for you to receive intensive supervision and support on release from custody in order to give effect to the sentencing purposes of rehabilitation and community protection.

57In terms of the length of the sentence to be imposed, I note that during his submissions Mr Blake referred me to the case of Sinclair v R[11] as a case which had some similarities on the facts of both the offending and the offender to your case. Current sentencing practice is, of course, one of the matters to which I must have regard when sentencing you. I have read the case of Sinclair, together with other cases where the offender was sentenced for either an armed robbery or multiple armed robberies, the victims were soft commercial targets, and a plea of guilty had been entered. The sentences imposed ranged from sentences which combined a short period of imprisonment with a CCO, right through to a head sentence of 8 years and 6 months with a non-parole period of 6 years. Each of the cases I looked at turned (as they must) on their own facts, which are different from the facts in your case, and the sentencing Judges' intuitive synthesis of those facts in light of the applicable sentencing principles. As such, those previous cases are of assistance as examples of the application of the relevant sentencing principles applicable in the area, but otherwise can be no more than yardsticks that may be able to illustrate (although not define) the possible range of sentences available. Therefore, whilst I have had regard to previous sentences imposed and the issue of comparative sentencing and current sentencing practices more broadly, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case.

[11] Sinclair v R [2022] VSCA 180

58Finally, I note that I am of the view that it is appropriate to impose an aggregate sentence upon you in respect of the two offences which you committed given that both offences are of a markedly similar nature, occurred in very close proximity to each other both in terms of time and place, and arose out of the same set of circumstances. In determining the length of the sentence to be imposed, I have taken into account the principle of totality and have borne in mind that any sentence which I impose must still be of an appropriate length if you are not granted parole and are required to serve every day of it.

Sentence

59Mr Fairbairn, having taken all of those matters into consideration, the sentence is as follows.

60On Charge 1, armed robbery, and Charge 2, attempted armed robbery, you are convicted and sentenced to an aggregate term of imprisonment of 2 years and 3 months.

61I direct that you serve a minimum period of 1 year and 2 months before becoming eligible for parole.

Pre-Sentence Detention

62The period of 418 days of pre-sentence detention, not including today's date, is hereby declared as already having been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.  So you have almost done the period that I have set as your non-parole period.  You are only shy by one or two weeks.  I do not know what happens in terms of any management days you have, that is a matter for the authorities, it is not a matter for me. 

s6AAA Declaration

63Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a term of imprisonment of 4 years, with a non-parole period of 2 years and 10 months. 

Ancillary Orders

64I note as a matter of completeness that no ancillary orders have been sought.

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