Director of Public Prosecutions v Francois
[2024] VCC 1941
•29 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00911
Indictment No. Q10365183
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DELROY FRANCOIS |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 September 2024 and 31 October 2024 | |
DATE OF SENTENCE: | 29 November 2024 | |
CASE MAY BE CITED AS: | DPP v Francois | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1941 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Aggravating carjacking – Female co-accused – Co-accused’s matter resolved to Theft of motor vehicle in summary jurisdiction – Parity not relevant – No finding made whether offending pre-meditated or spur of the moment – Youthful offender with extensive criminal record – History of substance abuse - Effect on victim life altering – Expert opinion – Borderline personality disorder – Mild intellectual disability – Low cognitive functioning – Complex post-traumatic stress disorder – Anti-social personality disorder - Cannabis and stimulant use disorder in remission – Current mental health stable and not deteriorating - Application of Bugmy principles in general way – Verdins principles applicable – Unable to find culpability substantially and materially reduced – Unable to find special reason exists to avoid mandatory minimum of at least 3 year non-parole period
Legislation Cited: Sentencing Act1991 Vic); Disability Act2006; Mental Health and Wellbeing Act2022
Cases Cited:The Queen v Verdins (2007) 16 VR 269; Van Kempen v The King [2023] VSCA 26
Sentence: Convicted and sentenced to Total Effective Sentence 4 years’ imprisonment with non-parole period of 3 years’ imprisonment – 287 days’ imprisonment declared as having already been served as part of sentence imposed – S.6AAA Sentencing Act 1991 (Vic) declaration
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Liantzakis | Office of Public Prosecutions |
| For the Accused | Ms C. Foot | Jacob Mildren Orenstein Lawyers |
HER HONOUR:
1Delroy Francois, you have pleaded guilty to one charge of aggravated carjacking which has a maximum penalty of 25 years' imprisonment.
2The maximum penalty is a matter to which I must have regard as this reflects the seriousness with which Parliament regards the offence.
3Further, this offence is subject to a mandatory sentencing regime whereby you must be sentenced to a period of imprisonment, other than a period of imprisonment in combination with a community corrections order, unless a relevant exception applies. Further, the Court must impose a term of imprisonment and fix a non-parole period of not less than three years when sentencing a person for this offence unless a relevant special reason is found to exist.
4You were 19 years old at the time of the offending and you were living in Leopold, Victoria.
5The co-accused in the matter is said to be Imogen Wake who was 22 years old at the time of the offending and of no fixed address.
6The victim in the matter, Ms Castan was 26 years old at the time and was employed as a marketing assistant at a particular real estate company.
7At about 1.05 pm on Friday 16 February this year, the victim parked her 2016 Range Rover SUV outside an address in South Yarra. She got out of her car and approached a nearby property to take property valuation photos.
8At about 1.10 pm, she got back into her car and drove towards the end of Rockley Road to perform a U-turn. She observed a black 2013 Holden Cruze wagon driving behind her. This car was registered to the co-accused Ms Wake.
9The victim saw the car perform a U-turn in front of her and park at an angle which partially blocked the road. She then saw the driver, who was you, wearing a black balaclava. You pointed at her with your right hand. The victim remained in her car.
10After getting out of your car, wearing the black balaclava, you took a black hunting knife from the front driver's door pocket then ran towards the victim carrying the knife in your right hand. You waved the knife towards the victim who remained in her car, shouting 'get out of the car' several times. In fear for her safety, the victim fled the driver's seat, seeking refuge at a nearby residence.
11You got into the victim's car and drove in a southerly direction toward Toorak Road in convoy with the car driven by Ms Wake.
12A witness telephoned Triple 0 to report the incident.
13At about 1.20 pm, Ms Wake's car was found in the car park of an address in Richmond. Witnesses observed Ms Wake get out of the driver's seat of the car and into the front passenger seat of the victim's car which was parked outside an address in Canterbury Road, Richmond. You and Ms Wake drove from Canterbury Road in a northerly direction.
14At about 2.15 pm witnesses heard a loud bang and a car alarm in Canterbury Street. When I inquired, it is unclear as to what this noise related to. You and
Ms Wake were observed looking through the victim's car whilst the vehicle's alarm was activated. You and Ms Wale then ran in a southerly direction towards an apartment complex in Edinburgh Street.15You both entered the complex via the side gate on Canterbury Street.
16You and Ms Wake were video recorded by a witness, and you are seen to be carrying a balaclava and hunting knife in your right hand.
17The police were notified.
18At 2.30 pm police attended Canterbury Street. You and Ms Wake were found exiting the apartment complex towards Ms Wake's vehicle. You were carrying a blue backpack and a black duffle bag.
19Police seized a number of items including the following:
(a) a black balaclava which was found in the waistband of your pants;
(b) in the blue backpack, a black hunting knife with a 17.5-centimetre blade, a Range Rover vehicle key, two sets of property keys belonging to the victim's real estate company and a grey glove;
(c) in the black duffle bag police found two mobile phones.
20You were arrested and taken to the Prahran police station for interview where you said the following:
(a) That you just got out of gaol one week prior.
(b) You initially denied the offending, saying that a friend gave you a stolen Range Rover to use and had not told you anything about a carjacking.
(c) You said you did not commit the carjacking but drove the stolen car from Greensborough to Richmond.
(d) You said you kept the black hunting knife on you in case you ran into people that you had problems with.
(e) You said you had a black balaclava on you which you had purchased from Sexyland.
(f) You said you had the grey gloves on as you were driving a stolen vehicle which you referred to as a 'hottie'.
(g) You said 'I fucked up. I wasn't thinking … I was fucken starving. We had no money … I did what I had to do to feed my girlfriend'.
(h) You said 'just forget about the fucken whole story. Yes, it's me … all I did was just try to lie about it so I could get out tonight and be there for my girlfriend'.
(i) You said, 'I got out of Imogen's car and instantly as soon as I opened my door, I just started running towards her car'.
(j) You said, 'I said, 'I'm not gonna hurt you'. And then I got in the car and drove off. And I got the money out of the car and drove to go get Imogen some food'.
(k) In respect of the victim, you said 'I just want her to know I'm deeply sorry. I would never do a carjacking, but my girlfriend was starving, had not eaten'.
(l) You further said 'I want to let the victim know that I … this was never a plan. This was just … to feed my girlfriend. It just made me realise it's time to wake up and … stop doing that stupid shit'.
21On 19 February 2024, a second grey glove which matched the one on you was found in the victim's car driver's seat.
22Further investigations were conducted in relation to mobile phones which were found to be registered to you and Ms Wake, and call charge records were obtained – these further implicated you in the offending.
23Mr Francois, your offending is most serious and deserving of a punishment which is just in all of the relevant circumstances.
24Your conduct must be appropriately denounced.
25You behaved in a most outrageous and terrifying fashion toward a member of the public who was doing no more than trying to make an honest living. Your offending was brazen occurring in the middle of a Friday in an inner suburb of Melbourne. The victim was in a vulnerable position as you had effectively blocked her off in her car, as if you were some thug in a B-grade movie, you then used a disguise and wielded a knife, ensuring that she left her car so that you could take it. I am unable to find that this precise offending was premeditated, however, it is concerning that you had the knife and balaclava at hand, and that your co-offender apparently knew to get into the driver seat of her car after you left it and approached the victim and to follow you in convoy after you committed the aggravated carjacking. At the end of the day, I cannot be satisfied beyond reasonable doubt that this precise offending was premeditated, but I am not able to find on the balance of probabilities that it was entirely spur of the moment either. I just cannot make a finding in this regard.
26The offending was somewhat unsophisticated, but it did involve you using a balaclava to disguise your appearance.
27I understand that Ms Wake's matter which was the subject of a case conference in this Court was resolved to one charge of theft of a motor vehicle and will be remitted to the Magistrates Court for sentencing. It is apparent from the factual basis for sentencing you and the charge that you have pleaded guilty to, that
Ms Wake's role and her offending was considerably less serious than yours, so, even if I knew the sentence that was imposed upon her, I would not regard parity as being a relevant factor in your case.
Explanation for your offending
28You told police that you committed the offence because you and your girlfriend were starving, apparently indicating that you needed money for food. In your letter dated 9 August 2024, which was provided to the court, you said that you committed the offence because you wanted to go to prison to see your father, having heard that your girlfriend had been cheating on you – that you wished to get away from your girlfriend and to see your father in case he died from bowel cancer which you understood he had been diagnosed with. In your letter of apology this year you expressed your remorse and gave an account of your drug taking and background, as well as some of your criminal offending. The last line refers to the fact that you are still in gaol and that you were effectively facing a minimum of three years with possibly five years 'on the top'. It appears that you gave an account to Ms Mynard and Professor Daffern aligning with your concern about your girlfriend leaving you, and you said at the original plea hearing, through your counsel, and maintained at the further plea hearing that you gave a false explanation to police for your offending, as you were trying to give a good account of yourself.
29I must say that your letter of apology has a degree of self-serving about it, Mr Francois, and must been seen in the context of your serious criminal history, but it must also be seen in the context of your youth and various mental health issues.
30Needless to say, the impact on the victim has been profound.
31She described her life as having been seriously altered since your offending and she has found herself struggling with psychological and emotional scars that it left here with. She said that she needed a lot of support initially and she still did. She said that her relationship was being significantly strained as her boyfriend had to take considerable time from his usual daily activities to care for her which affected his work but also added stress to their relationship as they tried to cope with the sudden change in their daily lives.
32She has suffered nightmares and said that she would frequently wake in a state of panic from the memories of that day. She spoke of her anxiety being triggered by sudden noises or unexpected movements during the day and found herself to be constantly on edge.
33She said that despite her best efforts to regain normality, her life was now far from normal. She had been unable to shake the overwhelming fear that she had experienced. This was affecting every aspect of her life including her ability to drive alone or be alone in any setting, severely negatively impacting her independence. She spoke of the negative impact this had had on her work and that even with time off she had found it very difficult to fulfil her role. She had constant anxiety, suffering anxiety attacks especially when she was on her own at night. She was prescribed a medication to help her manage her symptoms, however, this provided limited relief, and the sense of constant fear continued in her everyday life.
34Your offending has also taken a financial toll on her as she had to take a number of weeks off work which resulted in a significant loss to her annual leave at a time when financial stability was crucial for her recovery. She was also forced to replace her stolen car which had been declared a total loss by the RACV. The cost of purchasing a new car had been a significant burden. Also, her car insurance had increased significantly as a direct consequence of making a claim. This had caused a long-term financial impact on her which added to her ongoing stress and anxiety which she faced on a daily basis.
35She now lived with a sense of financial insecurity.
36She also spoke of the ripple effect of the incident upon the relationships she had had with her family and friends. It had been challenging for them to understand the depth of her fear and anxiety which had sometimes led to misunderstandings and distance at a time when she needed support the most. She spoke of being made to feel worthless because she had been queried on not locking the doors at the time of the offending, as if she was somehow to blame.
37I pause here to make it clear to the victim that there is absolutely nothing that she needs to blame herself for and I do hope that she does not feel worthless as, I am sure that she has a great deal to offer; she did precisely the right thing by running away at the time when you approached her. It is to be hoped that she receives insightful support from those around her in the future.
38The victim also said that the event had not only robbed her of her sense of security but had seriously changed how she viewed and interacted with the world around her. She said that the psychological, emotional and social wounds ran very deep, and she was left to navigate life which was forever altered by your actions.
39Mr Francois, I hope that you appreciate the very real and dreadful impact that your offending has had on this young woman. The impact to her is a matter that I take into account in sentencing you.
40In sentencing you, I take into account your criminal history which is a most concerning one and is as follows.
41On 30 August 2019, in the Geelong Children's Court you were dealt with for one charge of aggravated burglary – person present, one charge of theft, two charges of attempted burglary, one charge of unlicensed driving, criminal damage, three charges of contravention of a Family Violence Final Intervention Order, two charges of commit an indictable offence whilst on bail, assault youth justice custodial worker, threat to inflict serious injury and theft of a motor vehicle.
42On this day you were also dealt with in respect of matters said to be 'Re 21/06/2019', being armed robbery, handle/receive/retention stolen goods and possess cannabis.
43In relation to all of the offences you were placed on probation for a period of 12 months without conviction with special conditions to engage with 'Reignite' and 'Youth Plus' and to engage in counselling as directed by Youth Justice, with the period of supervision overall to be 12 months, ending on 29 August 2020.
44On 18 March 2020, in the Geelong Children's Court you were dealt with for theft of a motor vehicle, four charges of theft, three charges of burglary, committing indictable offence whilst on bail, fail to answer bail, possess drug of dependence being a prescription drug, deal with property suspected to be proceeds of crime and possess controlled weapon without excuse. Without conviction you were released on a Youth Supervision Order for a period of six months and ordered to engage with Youth Justice and 'Youth Plus'.
45On 16 September 2020, in the Geelong Children's Court you were dealt with five charges of theft of a motor vehicle, theft of a bicycle, entering a private place without authority or excuse, aggravated burglary – person present. Without conviction you were released on a Youth Supervision Order for a period of nine months with special conditions to engage with Youth Plus, Reignite and any other services as recommended by Youth Justice.
46On 17 February 2021, you were dealt with in the Geelong Children's Court for aggravated burglary – person present, three charges of theft, contravention of Family Violence Final Intervention Order and possess cannabis. Without conviction you were released on a Youth Supervision Order for a period of nine months which was to endure until 16 November 2021, all Court Youth Supervision Orders were applied.
47On 11 August 2021, at the Geelong Children's Court you were dealt with for breach of your Supervision Order which was found proven. You were dealt with for contravention of a Family Violence Intervention Order and in respect of matters which were the subject of your Court appearance on 17 February 2021. On this day, you were convicted of each of the offences to which I have referred and ordered to be detained in a Youth Justice Centre for two months with time already served being 26 days.
48Also on that date you were dealt with for theft of a motor vehicle, eight charges of committing an indictable offence whilst on bail, six charges of theft, a number of road traffic offences, including failing to stop vehicle on police direction, criminal damage and other damage property related offences, threat to inflict serious injury, three charges of aggravated burglary – person present, drive whilst disqualified, reckless conduct endangering serious injury which related to a motor vehicle, three charges of theft of a motor vehicle, failing to stop vehicle after an accident, possess cannabis and dishonestly undertake in retention of stolen goods. You were convicted of these offences and sentenced to a total of six months in a Youth Justice Centre with time held in custody in relation to these matters being 42 days.
49On 26 April 2022, in the Geelong Magistrates' Court you were dealt with for theft of a motor vehicle, drive whilst disqualified, shop theft, and committing an offence whilst on bail. Without conviction the matter was adjourned for 12 months, and you were ordered to pay $500 to the Court fund and to attend and take part in a Road Trauma Awareness Seminar.
50On 19 July 2022, in the Geelong Magistrates' Court you were dealt with for theft of a motor vehicle, two charges of drive whilst disqualified, three charges of committing an indictable offence whilst on bail, intentionally damaging property, contravene a conduct condition of bail, drive at a speed dangerous, failing to have proper control of a vehicle, and you were also dealt with once more in relation to the matters which were the subject of the adjourned undertaking of 26 April 2022. Overall, you were convicted and sentenced to a total effective aggregate of 68 days' imprisonment with 68 days being declared as already served. You were then required to undertake a community corrections order which commenced that day and to undergo assessment and treatment if deemed appropriate for drug abuse and dependency, alcohol abuse or dependency, mental health, and to undertake Offending Behaviour Programs as well as any other treatment rehabilitation directed. You were required to complete a Road Trauma Course. The community correction order was to endure for 12 months. It also involved judicial monitoring, and you were further required to complete a Safe Driving Program and provide written evidence of completion of the program.
51On 1 September 2022, at the Ballarat Magistrates' Court you were convicted of theft of a motor vehicle, committing an indictable offence whilst on bail, and driving whilst disqualified. A six-month community corrections order was imposed with a condition that you perform 50 hours of unpaid community work. The Order was to commence on that day and to endure for a period of six months.
52On 30 November 2022, in the Geelong Magistrates' Court you were dealt with for one charge each of burglary and theft, four charges of obtaining property by deception, one charge of attempting to obtain property by deception, and two charges of committing an indictable offence whilst on bail. You were sentenced to an aggregate term of 47 days' imprisonment with that period being declared as already served. You were then to undertake a community corrections order for 18 months with the same assessment and treatment conditions as had been imposed in the previous community corrections order to which I have referred. On that same day contravention of the community corrections order was found proven, and you were fined $200 for this. A variation of the original Order in relation to the breach concerning the Order made on 1 September 2022 was made. On that same date you were dealt with for contravention of the community corrections order imposed on 19 July 2022. The breach was found proven, and you were fined $300. In relation to the offences which were the subject of the community corrections order of 19 July, the Order was varied. You were convicted and the Order imposed was to endure for 12 months from that date.
53On 13 April 2023, at the Geelong Magistrates' Court you were dealt with for contravening the community corrections order of 30 November 2022. The breach was found proven, and you were sentenced to an aggregate term of imprisonment in relation to the contravention and resentenced in respect of the matters which were the subject of the community corrections order of two months' imprisonment. On that same day you were also dealt with for failing to answer bail, dishonestly assisting in the retention of stolen goods, possessing a prohibited weapon without exemption or approval, and possessing cannabis. You were fined in relation to the last-mentioned charge; however, you were sentenced to an aggregate term of three months' imprisonment in respect of the other charges which was stated to be cumulative upon the aggregate term of two months to which I previously referred. On that same day you were dealt with for contravening the community corrections order of 30 November 2022, and you were resentenced in relation to those matters such that you were sentenced to an aggregate term of five months' imprisonment with four months of the sentence ordered to be concurrent with other sentences imposed. You were also dealt with on that day for contravening a community corrections order made on 30 November 2022, with the contravention being found proven. You were resentenced in respect of the matters which were the subject of that community corrections order and as I say, you received an aggregate term of imprisonment of five months' which was to be wholly concurrent with other sentences imposed that day.
54You were then convicted and discharged in relation to some road traffic matters and possessing cannabis on 23 January 2024. On that same day you were convicted of one charge of shop theft, theft, two charges of committing an indictable offence whilst on bail, drive whilst disqualified, a further charge of drive whilst disqualified, driving in a manner dangerous. You were sentenced to a
14 month community corrections order and required to undertake 100 hours of unpaid community work. Supervision and assessment and rehabilitation conditions for drug dependency as well as rehabilitation programs to reduce reoffending were imposed. You had the option of completing the 100 hours of unpaid community work through undertaking the treatment and rehabilitation conditions.55On 9 February 2024, you were convicted of shop theft, threat to inflict serious injury and possess methamphetamine in the Geelong Magistrates' Court. You were sentenced to an aggregate of seven days' imprisonment. Custody management issues were noted. In sentencing you, I must take into account your criminal history and I do so.
56In your favour, I allow for a significant discount in the sentence that you would otherwise receive in relation to the offending before me as you pleaded guilty at the earliest opportunity. In doing so, you saved the witnesses especially the victim the time and trouble of giving evidence and you saved the community the time and expense of contested proceedings. I have also factored in in your favour that although you initially lied to the police in the record of interview in respect of your involvement in the offending, you subsequently took responsibility in the interview, which has further facilitated justice.
57Your Counsel submitted that you are genuinely remorseful for your offending and had expressed regret and insight in respect of the negative impacts on the victim from an early stage. Ms Foot referred to your expressions of remorse to
Ms Mynard, to your letter of apology addressed to the victim and provided to the Court, and to your distressed reaction when the victim impact statement was read to you. You also expressed your regret in your Record of Interview. On the other hand, I have had regard to the nature of your offending which was clearly designed to frighten the victim to get out of her car, and I have considered this conduct in the context of your extensive criminal history, such that your expressions of remorse could be seen to ring somewhat hollowly. I regard that there are a number of past offences which are particularly relevant to the current offending including aggravated burglary-person present, armed robbery and car theft, noting that you have never committed however the offence of aggravated carjacking before.58I accept that you are sorry for yourself and your current predicament and that you know how to express regret in respect of the victim. Overall, I accept that you are sorry for what you have done and that you have shown a level of insight into the seriousness of your offending however, in my view, your ability to be truly insightful and feel heartfelt remorse in is somewhat compromised by your immaturity, your mental health issues and issues impacting on you from your deprived background.
59I take into account your background which was referred to by your counsel in her written submissions and referenced in more detail in the report of Ms Mynard, clinical psychologist, dated 29 August 2024. She prepared the report after assessing you via video link on three separate occasions for 90 minutes on each occasion between 19 August and 29 August this year.
60I understand that you grew up with eight siblings. Only you and one of your sisters have the same father. All your other siblings have different fathers.
61Your parents stayed together until you were around four or five years old, however, they separated after your mother apparently accused your father of raping your sister. However, you reject that this was the case. You are not sure whether your father was ever charged in relation to the accusation made by your mother. You reported to Ms Mynard that your mother hates your father nowadays but that you wanted both your parents to be in your life, saying that you were wanting to spend time with each of them and you were fearful of losing them.
62Your grandmother died in 2022 or 2023. You had been released from the MRC on the day that she passed away.
63You now have a one-year-old brother, and you are regretful that you could not be in the community during his first steps. Your mother and her new husband live in Geelong with this child. Your mother and her current partner were married but you were unable to attend the wedding because you were in custody. You have a very positive attitude towards your new stepfather and say he is not on drugs.
64When you were younger, due to unmanageable behaviours on your part, your mother relinquished care of you. You have a history of perpetrating family violence within the home, frequently absconding, self-harming, and taking part in risk taking behaviours.
65You reported to Ms Mynard that you 'had the time of [your] life' when you spent time with your father in gaol in 2023. Your father has been in and out of gaol for your entire life.
66Child Protection have been involved with you since 2018 due to your challenging behaviours and home environment. Ms Mynard referred to a report dated
3 February 2021, which would have been when you were about 17 years old. Conditions were placed on your mother to attend family violence counselling and undergo drug testing and for your father and stepmother to undergo drug testing. You were not allowed to live with either parent and the report stipulated that your mother was not allowed to subject you to family violence. Ms Mynard said that there were concerns about your father and stepmother's substance use, as well as your own substance use. You have spent time in residential care units. You had a place of your own for a short period but were unable to maintain this.67You have moved in and out of your mother's house in the past and at one stage you were moved into the McKillop Residential Unit. However, you did not stay there much according to you.
68In terms of your education, you changed schools many times during primary school, moving between South Australia and Victoria. You were exposed to significant domestic violence at the hands of your mother and stepfather and you were often not focussing on school with so much going on at home. During your primary school years you exhibited behavioural issues and conveyed that you thought you were 'king of the school'. According to Ms Mynard, you went to 'Youth Plus' in Grovedale, then left school when you were 15 years old, having completed Year 8. You were in and out of your parents' care and you were bullied at primary school. This continued at high school as the students followed you there. Your mother then kept you home, home schooling you as you had refused to go to school. I understand you went to Ararat High School and then another high school amongst others that you attended.
69After leaving school you had a job in roof tiling. You said that when you were paid, your sister would spend all of your money and you felt forced to continue to work without any reward. You reported that you had not really worked much in the community and had only worked when in custody.
70In terms of your medical history, Ms Mynard recorded that on an occasion when you were very drug affected and riding your scooter, you hit something at
40 kilometres per hour and woke up in hospital.71I was told that when you were 16 years old, you were apparently severely assaulted by a group of young men and sustained a number of injuries including a black eye and a swollen cheek. You were released from Geelong Hospital after a few days but you cannot recall how long you were there. You reported to
Ms Mynard that you were quite traumatised by this incident.72In terms of your substance use, when you first went to gaol you reported that you were using Buprenorphine but you had not done so for some time now. You reported that you had used GHB in the past from the age of 17 and you also used cocaine once at a nightclub. You had a problem with methamphetamine when you were in the community from the age of 15 and you also smoked cannabis regularly from the age 14. You reported that you only drank alcohol on a social basis and you did not think you had a problem with this.
73In terms of your mental health history, Ms Mynard recorded that you had a history of self-harm, suicidal ideation, impulsivity, emotional dysregulation, and substance use. Ms Mynard recorded that in primary school your mother reported that you were diagnosed with ADHD and medicated with Ritalin, however, you stopped taking this after a few years. In Grade 4 you were diagnosed by a paediatrician to have ADHD. You were smashing things and acting out a lot in primary school. You were put on Ritalin, but you went into foster care and you would not take the medication anymore.
74Years ago, you completed a psychiatric assessment whilst in secure welfare, according to Ms Mynard's report. This indicated you exhibited a developmental trauma disorder from the attachment trauma you suffered with your parental figures and being deprived of basic needs. At this time you were observed to be depressed and suffering from post-traumatic stress disorder. You were prescribed medication for depression and anxiety, as well as Epilim for emotional dysregulation. However, you ceased taking the medication and said that you felt it did not work.
75Ms Mynard said that you had been exposed to attachment trauma with many difficulties in your family system, being exposed to parental substance use and your parents being involved in the justice system. You mother reported that she had multiple relationships where she was subjected to domestic violence and you had been exposed to this. You were moved multiple times between family members and carers and your mother and sister had relinquished care of you in the past.
76You recounted to Ms Mynard an incident when you were five or six years old when your mother had caught your stepfather being unfaithful to her. You said that each time she opened the doors to leave, he would slash his wrists, resulting in what you described as a blood bath. You said that your sister ran away from home and that you were physically abused by your stepfather. It is said that this matter went to court, which as Ms Mynard said was perhaps a reference to DHHS becoming involved. Your mother confirmed the incident involving your stepfather and said that she subsequently left him.
77When you were seven to eight years old your mother remarried. She said that she had not been in a domestically violent relationship for the past 12 years.
78At one stage you and your mother moved to Adelaide, however, the same situation prevailed, with your behaviour being difficult to manage and you exhibited anger issues. You commenced attending an alternative school, but the same problems occurred. You said that your sister did not talk to your mother for many years, however, when she reconnected, you had moved closer to her in Ararat.
79You reported to Ms Mynard that when spending time with your friend, you saw him try to hang himself and this happened when he was 13 years old. After this you felt very traumatised and would revert to threatening to hang yourself when you got into a fight with your mother or anyone else. Your mother got you to see a psychiatrist at one stage, however, you said that you were only given emergency numbers and told to call Triple 0 if you had any more suicidal thoughts. After this, you moved to Geelong from Ararat because you refused to go to school.
80In your mid-adolescence you self-harmed by slashing your wrists for the first time, when you and you mother were fighting. She called the police. You said that you were devasted by this as your mother did not understand what you were experiencing. You said you started smoking cannabis after this but could not control your anger, resulting in you punching walls, cutting yourself and that you ended up going to Juvenile Justice. You were then placed into secure welfare and put on medication, but you said you did not feel any change with this treatment.
81On 25 November 2020, when you were 16, there was a concerning incident whilst DHHS and the Barwon Child Youth and Family Personnel were at your home.
Ms Mynard said that this resulted in you escalating, becoming verbally abusive to your mother and siblings, damaging household furniture and the property, as well as pulling a knife. Police were called and you were arrested, being charged with breaching the IVO which was in place. At that time, you were arguing with your mother and often sneaking out of the house and smoking cannabis. You had also been getting into fights at school and only did half days as you could manage this more readily.82On the basis of the material concerning your background, I accept that the principles in Bugmy apply in a general way so as to reduce your moral culpability to a moderate extent and to reduce the weight that would otherwise attach to punishment, and specific and general deterrence to a moderate extent
Mental health Issues
83Ms Mynard diagnosed you with complex post-traumatic stress disorder, borderline personality disorder, and Mild intellectual disability. She also found that you had a cannabis use disorder and stimulant use disorder, each of which were in remission.
84She said that your low intellectual capacity impacted you at the time of the offending before me, as you struggled to process the emotions at that time and to resolve these through verbal reasoning skills. She said your ability to self-regulate and use positive coping skills were impacted by your low cognitive functioning:
'with limited ability to think through (your) experiences, monitor (your thoughts) and urges and adjust (your) behaviour. [She said] At the time of the offending, his mental health issues and his low cognitive functioning had impaired his judgement, reduced his reasoning skills and led to his impulsive and aggressive behaviours.' (Paragraph 72)
85I sought clarification in respect of any impairment of mental function that you were suffering at the relevant time and its impact on you at that time, and whether there were any other things that were impacting you at the relevant time, such as drug taking. I ordered a Forensicare report and this was provided to the court. The author of the report is Professor Michael Daffern and is dated 24 October 2024.
86Professor Daffern diagnosed you as suffering from borderline personality disorder, anti-social personality disorder, post-traumatic stress disorder, and stimulant use disorder as well as cannabis disorder. In relation to the first two diagnoses, he said:
'He is vulnerable to feeling abandoned and when these relationships appear threatened he can become preoccupied with concerns that his emotional needs will not be met and he can react with intense emotion and rash behaviour. He regards other people as unreliable and he anticipates threat and mistreatment. This leads to characteristic antagonism and hostility. His capacity to manage his emotions is compromised.' (Paragraph 44)
87Professor Daffern went on to say:
'This is due partly to his limited intellectual capacity and the chaotic and unhelpful family environment, but also due to persistent drug use, which he has used to up-regulate his emotions rather than sit with them and adaptively problem solve. He has also relied on maladaptive coping strategies such as self-harm and threats of
self-harm (in part learned through exposure to self-harming and suicidal behaviours when he was a child and adolescent), to manage unpleasant emotions and difficult interpersonal situations.' (Paragraph 44)
88He said that you are:
'emotionally labile (reactive and extreme in his emotional reactions), interpersonally anxious, overconcerned with abandonment and the dissolution of relationships, and he is prone to impulsive acts of desperation and hostility.' (Paragraph 45)
89In his opinion you met the diagnostic criteria for borderline personality disorder:
'as evidenced by frantic attempts to avoid abandonment, a pattern of intense and unstable relationships, repeated impulsivity, recurrent suicidal and self-harming behaviour, affective impulsivity, stress-related paranoid ideation and difficulties controlling his anger.' (Paragraph 45)
90He said that you also met the diagnostic criteria for antisocial personality disorder:
'as evidenced by repeated criminal behaviour, impulsivity, irritability and aggressiveness [and] irresponsibility ...' (Paragraph 45)
91He went on to say that in relation to the diagnosis of post-traumatic stress disorder and complex post-traumatic stress disorder, the latter was said to:
'encompass core post traumatic symptoms of re-experiencing, avoidance and hyperarousal as well as disturbances in
self-organisation (e.g., difficulty regulating emotions, negative
self-concept, and interpersonal problems).' (Paragraph 46)
92He said that the additional 'self' symptoms could be considered as a part of borderline personality disorder, and that therefore diagnoses of post-traumatic stress disorder and borderline personality disorder were given. In his view you met the diagnosis for post-traumatic stress disorder, saying:
'He has been exposed to multiple qualifying traumatic events. He experiences recurrent distressing memories of these events, he avoids thoughts of some of these events, is hypervigilant and uses drugs to numb himself against the impacts of distressing memories and environmental and interpersonal triggers to these memories. He also experiences low mood. People with a diagnosis of borderline personality disorder often also experience low mood.' (Paragraph 46)
93He said that in his opinion at the time he examined you, you were not depressed.
94He concurred with Ms Mynard's diagnosis of stimulant use disorder and cannabis use disorder.
95In terms of your mental state at the time of the offending for which I now sentence you, Professor Daffern remarked that you were not a good historian, which made assessment of your mental state at the time difficult. He said you had difficulty reporting how you were thinking and feeling at the time of the offending, but that all of the mental health diagnoses he had listed in his report were present at that time. You had told him that you used a lot of methamphetamine and cannabis in the week prior to the offending, and Xanax on the day of it, as well as alcohol the night before. He said it was unclear as to whether you were still affected by alcohol, if you were experiencing alcohol withdrawal, or if you had slept the night before the offence. He said it was unclear as to exactly what your state of intoxication and/or withdrawal of the other drugs were on the day of the offence, and that, apart from acknowledging Xanax use, you could not say precisely when you had last used methamphetamine and cannabis. He said that you were also sleep-deprived, which was a consequence of methamphetamine use.
96He noted that according to the victim's statement, at the time of the offending you were aroused and aggressive.
97He said in respect of your low intellectual ability that this was likely present since birth, and therefore would have been present at the time of the offending. He said it was difficult to see how your generally limited cognitive ability was proximally related to the offending. He said it was possible that your tendency toward impulsive action was relevant to the offence, particularly if you were upset by your suspicion that your girlfriend was unfaithful and this triggered your lack of ability to regulate your emotions and problem solve. However, he said it was unclear whether the offence was impulsive or planned and the degree of planning involved in it. I refer to what I have said in this regard earlier in my sentencing remarks in that respect.
98Professor Daffern said:
'Nevertheless, his low level of intellectual ability would have been a profound disadvantage to him throughout his life, complicating his response to traumatic events and compromising his psychosocial development and the potential benefit of educational and occupational opportunities.' (Paragraph 51)
99He said that your anti-social personality disorder would have been present at the time of the offending, and that you are prone to antagonism and had attitudes that supported criminal behaviour. He said:
'These thoughts and his repertoire of criminal behaviour and facility with weapons would have contributed to the offending.' (Paragraph 52)
100He went on to say that your borderline personality disorder was also longstanding and was present at the time of the offending. He said that it was relevant that you held a characteristic fear of abandonment, reporting your fear that your girlfriend was unfaithful, and Professor Daffern said that this would have triggered intense and unpleasant emotions. He went on to say:
'He could not tell me precisely when he became concerned about his girlfriend's infidelity. This fear likely emanates from the instability in relationships and living situations he experienced in childhood. His sleep deprivation and intoxication and/or withdrawal from various substances may have further intensified the negative emotions he was experiencing and led him to focus on short-term goals, without regard for long-term consequences of his criminal activities. His low intellectual ability may also have limited his ability to thoughtfully problem solve the situation with his girlfriend, leading to dramatic and serious violent offending. Complicating this hypothesised formulation, it is difficult to know the degree of planning he engaged in prior to the offending. A formulation that proposes his offending was reactive (to fears that his girlfriend was unfaithful) suggests the planning was proximal and subsequent to concern being aroused that his girlfriend was unfaithful. This formulation proposes that
Mr Francois' offending occurred spontaneously, in reaction to distress aroused by fears of abandonment, and a consequent reliance on well-established rash violent behaviour that might
up-regulate his emotions (he reported feeling thrilled by some criminal activity) and get him money to purchase drugs.”
101Professor Daffern said that you were familiar with prison, and that you had told him that it could be easier than living in the community – that you could accept further imprisonment as this might result in you being able to spend time with your father. Professor Daffern said that these thoughts would have further facilitated the offending, although it was also possible that the offence was the subject of planning, even if the selection of the particular victim was opportunistic. He said that the presence of the knife and balaclava suggested that you had thought about committing an armed robbery and that the presence of planning may suggest that your anti-social personality disorder, rather than the borderline features, were more important in the commission of the offence. However, he said that it was also important to note that the fear of abandonment and emotional arousal was attributed to your borderline personality disorder.
102Professor Daffern observed that currently your mental health appeared to be stable and did not appear to be deteriorating. He said that you were speaking positively about engaging in rehabilitation to address your anti-social behaviour and propensity for drug use. He said that your motivation to engage in drug and alcohol rehabilitation and treatment programs to address your propensity to offend seemed to be improved, compared with your attitude to other sentences, noting that in 2023 you had told a mental health nurse that you were not interested in drug and alcohol counselling, and the nurse's impression was that you were resistant to opportunities that might be available within the prison. Professor Daffern said that you ought be referred to Forensic Disability Services for a reappraisal of your intellectual ability with a view to consideration of service provision by the Department of Families, Fairness and Housing. However, he said it was generally recommended that reassessment occur at least one year after the initial testing.
103He noted that, whilst you were not expressing suicidal ideation presently, you had a history of self-harm and suicide attempts and so should be monitored for signs of distress and suicide risk.
104 The evidence in respect of your mental health is relevant to the application of Verdins principles and is also relevant to the question of whether a special reason has been established so as to avoid the mandatory non-parole period of at least three years' imprisonment.
105Your counsel submitted that I ought find on the balance of probabilities that at the time of the offending you had impaired mental functioning that was causally linked to the offending and which substantially and materially reduced your culpability.
106Your counsel had submitted that there was an alternative special reason available, being that your impairment of mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. However, after receiving the Forensicare report, at the further plea hearing, your counsel conceded that there was insufficient material in this regard. However, she maintained the first special reason was a finding available to me on the balance of probabilities.
107As the learned prosecutor pointed out at the most recent plea hearing, for the purposes of establishing a 'special reason', s10A of the Sentencing Act 1991 provides that impaired mental functioning means:
'(a)a mental illness within the meaning of the Mental Health and Wellbeing Act 2022; or
(b) an intellectual disability within the meaning of the Disability Act 2006;
...'
108There are further definitions, but these are the two which have relevance to your case.
109The learned prosecutor submitted that in view of the report of Professor Daffern, where he was of the view that your diagnosis of having an intellectual disability ought be deferred, and in circumstances where Ms Mynard, psychologist, had not conducted all the necessary tests to come to her conclusion in this regard, the only available impairment of mental function which could have relevance to your case for the purposes of establishing a special reason was the first-mentioned one. She referred me to s4(1) of the Mental Health and Wellbeing Act 2022 and the definition of mental illness, which reads:
'Mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.'
110Ms Foot submitted that your situation was a complex one, and that in all the circumstances it was 'near impossible for the professionals who have assessed [you] to come to a definitive conclusion as to the relationship between [your] mental health and [your] offending'. She said this was a product of your low intellect, which resulted in poor historical recall and inability to fully articulate all your thoughts and feelings, as well as the complex interplay between your various diagnosed mental health conditions and your drug addiction. She submitted that on any view of each of the reports, however, 'one can see the connection between [your] difficult upbringing, [your] poor mental health and [your] addiction.'
111Ms Foot submitted that although this was a complex and difficult case, there was a causal link between your offending behaviour and your mental health and low intellect. She said I ought allow for a substantial and material reduction in your moral culpability; saying that, put another way, without your mental health conditions and resulting drug addiction, it was very unlikely you would have offended in the way that you did.
112The learned prosecutor submitted that although the material revealed that you were suffering from an impairment of mental function at the time of your offending, which was evidenced by Professor Daffern's report, the prosecution did not accept that your diagnoses substantially and materially reduced your culpability for the offending. In making this submission, the learned prosecutor relied on the relevant definitions and made the point that your low intellect could not be factored in by virtue of the definition of impaired mental functioning pursuant to s10A in the absence of a diagnosis properly made of intellectual disability. She pointed to Professor Daffern's report where he said that your judgment was somewhat impaired due to poor emotional regulation and impulsivity which could lead to rash actions, referring to paragraph 14 of the report.
113She also pointed to your drug-taking in the lead-up to the offending and your difficulty with describing your mental state to Professor Daffern in respect of the time of the offending. She further referred to your sleep deprivation in the lead-up to the offending and Professor Daffern's inability to discern your state of intoxication and/or withdrawal from drug use at that time. She submitted that Professor Daffern had found that your anti-social personality disorder and borderline personality disorder were causally linked to the offending but that sleep deprivation and possible intoxication and/or withdrawal 'may have further intensified negative emotions focusing on short-term goals without regard for long‑term consequences of [your] criminal activity'. (Addendum Submissions paragraph 4(f).)
114The learned prosecutor pointed to Van Kempen v The King[1] at [53] where the Court said:
[1][2023] VSCA 26
'The circumstances under which an offender's moral culpability may be reduced under s 10A(2)(c)(i) are also different, and appear to set a higher threshold, than is applicable under Verdins.'
115The learned prosecutor submitted that the higher threshold required to establish a special reason had not been shown on the balance of probabilities.
116Mr Francois, as your Counsel said, it is a complex task to determine the extent to which your impairment/s of mental function were linked to your offending and the extent to which your moral culpability is reduced.
117Having considered the expert opinions before me -in particular, that of Professor Daffern and the submissions of Counsel, I am of the view that at the time of the offending, your judgment and ability to make calm and rational decisions was negatively impacted by the effects of your diagnoses of anti-social personality disorder and borderline personality disorder in the context of having low intellect and being also impacted by either the effects of drugs or drug withdrawal as well as sleep deprivation. Applying Verdins principles and disentangling the other things affecting you at the time as best I can, I find that your moral culpability is reduced to a moderate extent due to the relevant impairments of mental function.
118In view of my Verdins finding in respect of your moral culpability, I further reduce the weight that would otherwise attach to punishment, and specific and general deterrence.
119Without the findings that I have made in respect of your moral culpability due to Verdins and Bugmy considerations, and my findings which flow from this, very strong weight would have attached to general deterrence and strong weight would have attached to punishment and specific deterrence.
120However, largely for the reasons enunciated by the learned Prosecutor, and in view of my findings in respect of the extent to which your moral culpability is reduced, on the basis of the materials before me, principally the Forensicare report but also factoring in Ms Mynard's report, I am unable to find that your culpability is substantially and materially reduced. Therefore, I am unable to find that a special reason exists so as to avoid the mandatory minimum of at least a three year
non-parole period.121I understand that when you were imprisoned in respect of the offending before me, you were initially placed in the same prison as your father, which you were happy about as you got to spend time with him. I understand you were very upset when you were shifted to another prison however, you have made some progress there. It seems to me that, overall you are doing well whilst in gaol although your mental health issues have caused difficulties for you from time to time, and in my view, are likely to do so in the future. Also, there is a danger that you will become institutionalised.
122On the basis of the expert material before me, especially Ms Mynard's report, I make a less than moderate allowance in your favour due to your mental health issues which have and might well make time in gaol harder for you. I have also factored in your youth and the fact that you are in adult gaol.
123You are still young and it is to be hoped that your various issues can be properly addressed and you can change the dreadful ways in which you have previously behaved for a good deal of your rather short life. However, all matters considered, at present, I assess your prospects of rehabilitation as being rather poor, I am afraid. You are getting to the stage where the seriousness of your offending and the weight that needs to attach to relevant sentencing considerations might well be so great that the need to maximise your chances of rehabilitation can no longer be a priority. Of course, the older you get, the less that youth can be factored in in any event. However, I will do what I can do to maximise your prospects of rehabilitation, as it is to be hoped that you can turn things around for the better.
124I must give strong weight to protection of the community in all of the relevant circumstances of your case. I have also factored in current sentencing practice noting that this is but one consideration in sentencing and not a controlling one.
125In the end, in view of all relevant considerations, I have arrived at a sentence which, in my view, does justice to all relevant sentencing considerations in your case.
126Please stand up.
127You are convicted of the offence.
128You are sentenced to four years' imprisonment and I direct that you serve three years imprisonment before becoming eligible for parole.
129If not for your plea of guilty I would have sentenced you to six years six months imprisonment with a non-parole period of four years six months.
130I declare that you have already served 287 days.
131Is there anything arising counsel? No. All right.
132Now, Ms Foot, you will have a word with your client at another time?
133MS FOOT: Yes. I will go and see him now in the cells, Your Honour.
134HER HONOUR: All right, yes, thank you.
135If you could please remove Mr Francois, thank you.
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