Director of Public Prosecutions v Fraser

[2020] VCC 1230

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-00632

CR-20-00633

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMON FRASER

ERIN FRASER

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2020
DATE OF SENTENCE:	13 August 2020
CASE MAY BE CITED AS:	DPP v Fraser & Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 1230

REASONS FOR SENTENCE

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Subject:  Armed robbery, attempted armed robbery and others.

Catchwords: young offenders

Sentence:  Youth Justice Centre Orders

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Joosten
For Accused FRASER	Mr N. Brown
For Accused FRASER	Ms M. Walker

HIS HONOUR:

1You, Erin Fraser, and you, Damon Fraser, are siblings.  You have each pleaded guilty to a number of serious offences contained in indictment C2013345.  You, Erin, have also pleaded guilty to 15 related summary charges of committing an indictable offence whilst on bail.  This offending, for which I must sentence you Erin, occurred after you had previously been admitted to bail on two previous occasions namely 22 November 2019 and on 8 January 2020.

2Your offending, Erin, occurred over seven days between 26 January 2020 and 1 February 2020.  There were two other young women involved in the offending, aged 16 and 17 years respectively and at that time of the offending, they were at law, regarded as children.  One of them was your cousin.  You, Damon, joined your sister in offending on 31 January of 2020 and you, with her, committed a number of offences on that day and the following day, 1 February 2020.  Neither of you have relevant prior convictions.  You, Erin, were born in December 1999.  You were 20 years of age at the time of offending and you are to be sentenced as a young offender, within the meaning of the Sentencing Act 1991, the Act. You, Damon, were born in July 2001 and you were 18 at the time of offending and you are also to be sentenced as a young offender.

3When sentencing young offenders, especially those without relevant prior convictions, the primary sentencing consideration of the court must always be, to impose a sentence that will mostly likely ensure the rehabilitation of the young offender concerned.  Sentencing principles such as general deterrence and denunciation have a lesser role to play in the overall sentencing of young offenders.  In arriving at an appropriate sentence for each of you, I have endeavoured to apply these principles.  You, Erin, have pleaded guilty to six charges of armed robbery, Charges 5 to 9 and 11 and five charges of attempted armed robbery, Charges 10 and 12 to 15 and one charge of attempted robbery, Charge 3, and three charges of theft, Charges 1, 2 and 4.  Each of those offences occurred whilst you were on bail for unrelated offending resulting in the summary charges that I have referred to above.

4In Charges 5 and 6 of armed robbery and Charge 3 of attempted robbery and three charges of theft, Charges 1, 2 and 4, you are not charged of committing these charges with Damon.  In Charges 5 and 6 of armed robbery, it is agreed that you committed this offending in the company of others.  Because you are over the age of 18 years, and committed these two charges of armed robbery in the company of others, those two charges are defined at law as 'Category 2' offences and I must sentence you to a term of imprisonment on those charges, unless you fall within some statutory exceptions, none of which are applicable in the circumstances of your offending.

5The remaining four charges of armed robbery, Charges 7 to 9 and 11, and five charges of attempted armed robbery, Charges 10 and 12 to 15, you are charged with committing these offences with your brother Damon.  You, Damon, have pleaded guilty to four charges of armed robbery, Charges 7 to 9 and 11, and five charges of attempted armed robbery, Charges 10 and 12 to 15.  In all of your charges, you committed the offences with your sister, Erin.  This episode of offending by the both of you is extremely serious.  The maximum penalty for a single offence of armed robbery is imprisonment for 25 years.  The maximum penalty for any offence of attempted armed robbery is imprisonment for 20 years and the maximum penalty for any offence of attempted robbery or theft is imprisonment for 10 years.

6The maximum penalty for committing an indictable offence whilst on bail is imprisonment for three months.  But s.16(3)(c) of the Act requires that any sentence imposed for an indictable offence committed whilst on bail, be served cumulatively on any other sentences imposed, unless the court otherwise orders.  Here, I will not be making orders for cumulation because I will impose what I consider to be an appropriate aggregate sentence.  The circumstances of the offending of each of you are set out in a summary of prosecution opening which was tendered in evidence and marked as Exhibit A.  The relevant parts of it were read in open court by the prosecutor Ms Joosten.  Counsel for each of you did not dispute that the prosecution summary is accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.  In those circumstances, it is not necessary that I hear repeating detail that which is set out in the prosecution summary and I will set out the facts in an abbreviated way.  These sentencing remarks should, however, be read in conjunction with all that is set out in the summary of prosecution opening. 

7On 26 January, you, Erin and your co-offender went to a gym in Mitcham.  Whilst the victim was exercising, you went through his belongings and stole the keys to the victim's vehicle and then stole the car, an Audi valued at $65,000, Charge 1.  This vehicle was later used by you and others in subsequent offending and was damaged.  I admitted into evidence a victim impact statement from the owner of the Audi, Exhibit D.  He suffered greatly as a result of your conduct.  He was without his new car for seven weeks.  It was unable to be fully repaired and his holiday was affected by what you did.  The following day, you, Erin, drove the Audi to a service station where you stole $52.63 worth of petrol without paying, Charge 2.  Later that day, you, Erin, attempted to rob a milk bar proprietor in Wantirna of cigarettes.  You were unsuccessful and left the scene in the stolen Audi, Charge 3, attempted robbery.  The scene for this offending was subsequently revisited for the purposes of the offending in Charge 9. 

8On 29 January, you, Erin, drove the Audi to a service station where you again stole $42.96 worth of petrol without paying, Charge 4.  The following day, you, Erin, lifted your offending to a higher level.  Driving the Audi and accompanied by your cousin, you armed yourself with a fishing knife and you both entered and robbed the milk bar in Ferntree Gully.  You entered the milk bar and pulled out the knife and yelled 'Give us the money', whilst hitting the counter with the knife.  The victim remained at the back of the store in fear.  His wife was also present.  Your cousin attempted to steal from the cash register, but was unable to open it.  She then grabbed several packets of cigarettes from the cabinet.  They were valued at $500.  You both left the scene in the Audi.  In this charge, you held a weapon in a violent and threatening way.

9I admitted into evidence as Exhibit F a victim impact statement from the proprietor of the milk bar in Ferntree Gully.  That same premises had been the subject of two previous armed robberies by others.  Your offending meant that the proprietors were nervous and scared to continue with their work.  They do not trust strangers anymore and that is a natural reaction.  On the same day, about 45 minutes after committing the armed robbery offence in Charge 5, you, Erin, and your cousin travelled in the Audi to a milk bar in Vermont South.  Again you were armed with the fishing knife and you and your cousin entered the milk bar where you confronted the proprietor.  You attempted to open the cash register and remove cigarettes.  You held up the knife with the blade directed at the proprietor and demand that she open the cash register.  The proprietor was terrified.  She opened the cash register and then ran to the back of the shop.  You stole $200 cash and an unknown number of packet of cigarettes.  Again, you decamped in the Audi.  Again in this charge, you held a weapon in a violent and threatening way.  Charge 6. 

10On Friday 31 January 2020, you, Damon, joined in with your sister's offending.  You, Damon, told police that Erin had told you that she had committed armed robberies the previous day.  Erin returned home with the Audi which she parked around the corner, away from your home.  The both of you left home at about 10.20 am and went to the Audi.  Erin showed you some knives and a blue striped bag to be used in armed robberies that would follow.  Twenty minutes later, Erin drove the Audi to a milk bar in Boronia.  You, Damon, exited the vehicle and walked inside the shop to check out who might be inside.  You, Damon, were wearing a hoodie and a black rimmed transition glasses.  You spoke briefly to the victim and left the shop and then you returned to your sister who was waiting around the corner.  She was wearing gloves and a hoodie.  She was holding the blue and white striped bag and a fishing knife.  Erin entered the store with a bandana concealing her face. 

11She was brandishing the knife which terrified the victim.  She held the knife towards the victim and shouted 'Money, money'.  She demanded the victim fill the gap with money whilst tapping the knife on the counter.  The victim put approximately $300 into the bag which Erin grabbed and ran out of the shop.  You both fled the scene in the Audi.  In committing this crime, although it was Erin who entered the milk bar and stole the money, you both clearly acted together.  Again, a weapon was produced in a violent and threatening way, Charge 7.

12I admitted into evidence a victim impact statement, Exhibit E, which sets out just how your offending affected the victim in Charge 7.  She has suffered emotionally, is fearful and insecure and has lost a lot of sleep and her studies have suffered in consequence. 

13The next morning of Saturday 1 February, you both committed multiple offences.  At about 11.33 am, the both of you went in the Audi to a bottle mart outlet in Boronia.  Damon, you told police your sister Erin told you that it was your turn to go into the store.

14You entered the shop after pulling down a beanie to conceal your face.  You were carrying the bag and a fishing knife.  You, Damon entered the store and confronted the victim who was seated behind the service counter.  You thrust the knife towards him and said 'Give me the money' and demanded that he fill the bag with money from the cash register.  The victim was terrified and complied.  You, Damon, became inpatient at the time that it was taking and you moved behind the counter and began taking the money yourself.  The both of you again decamped in the Audi.  Again, a weapon was produced in a violent and threatening way, Charge 8.  This was the first offence on 1 February. 

15About thirty minutes later, at about 12 pm, the both of you returned to the milk bar in Wantirna where Erin had unsuccessfully tried to rob the proprietor of cigarettes approximately four days earlier, the subject of Charge 3.  On this latest occasion, the two of you went to the milk bar in the Audi.  Erin parked and you Damon exited the vehicle and walked towards the store.  You were again wearing the hoodie and you carried the blue striped bag and a knife.

16You, Damon entered the store and confronted the victim, the same person as in Charge 3.  You held the knife at your side and demanded the victim give you money and cigarettes.  You placed the bag on the counter and the victim filled it with approximately $400.  You, Damon then demanded cigarettes, but a customer disturbed you.  You ran from the store with the bag and the money, charge 9.  This was the second offence on 1 February. 

17I received into evidence as Exhibit G, a letter from a psychologist who has been treating the proprietor of the milk bar, the subject of Charges 3 and 9.  The proprietor complained of finding it difficult to work in the milk bar, fearful of a repetition of the attempted robbery and armed robbery that took place there.  She told the psychiatrist that she has moments where she is still frozen in fear. 

18About twenty minutes later, at 12.19 pm, Erin drove the both of you in the Audi to the Welcome Grocer in Glen Waverley.  You, Damon left the vehicle wearing the same clothing as in the previous offence.  You concealed your face with a bandana and entered the store where you confronted the victim.  Holding out the fishing knife you demanded 'Get me all the cash into the bag'.  When the attendant showed you there was no cash in the register, you left the store with nothing and you both left the scene in the Audi with Erin driving.  Again, a weapon was produced in a violent and threatening way, Charge 10.  This was the third offence on 1 February.

19Then at about 12.30 pm, the both of you travelled in the Audi to a liquor outlet in Murrumbeena.  You, Damon, left the vehicle wearing a hoodie with your face concealed with by a bandana.  You carried the same blue striped bag and fishing knife.  You entered the store and confronted the victim, demanding he put cash into the bag.  The victim was terrified and complied.  Put in approximately $200 into the bag.  The both of you again decamped in the Audi, again a weapon was produced in a violent and threatening way, Charge 11.  This was the fourth offence on 1 February.

20About fifteen minutes later, you were both observed on CCTV eating at Hungry Jacks.  After that, you both picked up another offender who was a friend of Erin.  The three of you then returned to the scene of the crime in Charge 7, which had been robbed by the both of you at knifepoint only the day before.  You, Damon, exited the vehicle and walked towards the milk bar, carrying the same striped bag and a knife.  You were wearing a hoodie and with a black beanie, you concealed your face.  You entered the shop and confronted the same victim as the day before.

21As it happened, at the time, the victim, with her daughter, was watching CCTV footage of your armed robbery the previous day.  They looked up to see you confronting them, holding the knife whilst shouting for money.  The victims began to scream.  The victim's husband and father came running from the back of the store.  You, Damon then ran from the store dropping the bag and the beanie and the knife.  You all left the scene in the Audi at speed.  Again a weapon was produced in a violent and threatening way, Charge 11.  This was the fifth offence on 1 February.

22The three of you then drove to the Westfield in Knox where you entered Kmart, where you, Damon, purchased another knife and a black beanie.  You left the store at 2.35 pm. 

23A victim impact statement, Exhibit G, shows just how damaging this kind of offending can be on the victim of a crime like this repeated two days running.  The victim of your offending eventually had to sell the shop at a large financial loss because she could no longer face going to work in such a setting, because of fear instilled into her because of your offending.  This offending occurred in the presence of a young child. 

24Having refreshed your disguise and re-equipped yourself with a weapon from Kmart, at 3.09 pm, the two of you drove to a milk bar in Knoxfield.  You, Damon, left the vehicle wearing a hoodie and you carried a bag and a knife.  You, Damon, entered the milk bar and confronted the attendant with the knife and demanded he put cash into the bag.  There was a discussion with the attendant, where the attendant invited you to look outside whilst saying 'The police will catch you'.  You, Damon left the milk bar empty handed and you both again left the scene in the Audi.  This was the sixth offence on 1 February.

25A few minutes later, the two of you and co-offender arrived at a shopping strip in Ferntree Gully.  At 3.25, you Damon entered the liquor store where shaking the knife in front of you, you unsuccessfully demanded cash and cigarettes.  Again, you all left the scene in the Audi.  Again a weapon was produced in a violent and threatening way, Charge 14.  This was the seventh offence on 1 February.

26Finally, about a further fifteen minutes later, at about 3.40 pm, the three of you went to the Dawson Square Shopping Centre in the Audi.  You, Damon exited the car, your face covered in black fabric.  You carried a bag and a knife.  Erin, you also exited the car and you wore a bandana covering your face.  The two of you entered the Two Dollar Shop and held the knife towards the victims.  Damon demanded they put money into the bag saying 'No one gets hurt, open the register'.  Erin, you also approached the counter making demands, asking the victims to take money out of the register.  The victims both moved away from the counter and did not hand over any money.  You both left the scene again empty handed.  Again a weapon was produced in a violent and threatening way, Charge 15.  This was the eighth and final offence on
1 February.

27Exhibit C and D are victim impact statements from the victims of offending in Charge 15.  Again they set out the emotional impact that offending of this kind can have on the victims, who are always put in fear, if not terrified, because of the threat of violence.  Understandably, the police were acting to stop your offending.  They had identified each of you from various CCTV footage and a common thread was the use of the stolen Audi.  On 4 February, police located the stolen Audi and maintained surveillance of it.  When you Erin approached the vehicle, you were arrested.  They then attended your home, where you Damon were also arrested.

28You, Erin were arrested and interviewed where you provided no comment, as is your right.  You were remanded in custody and you have remained in custody since.  A total of 191 days pre-sentence detention.  Since hearing the plea on your behalf, I have received from you a handwritten letter dated 20 July 2020.  In that letter you say that your 'Terrifying behaviours do not define me as the person I am.  It also does not depict my values and morals I withhold as a person'.

29You acknowledge that words cannot describe how frightening your actions were from the victim's point of view.  You expressed regret at having exploited your brother's intellectual vulnerability and that having involved him in the offending.  You acknowledge it was wrong to take advantage of him.  You acknowledge the effect your offending has had on your family.  In a separate letter of the same date, you apologised to the victims for your behaviour and for having instilled fear and terror.

30In my judgment, you have expressed appropriate regret, insight and remorse for your offending and that is a good starting point towards your rehabilitation. 

31You, Damon were also interviewed and you made full admissions and you provided information in relation to the offending of Erin and the role played by the other child offender.  You were cooperative and remorseful.  You told police you had deposited some of the money into your Westpac account.  You, Damon were charged and remanded in custody.  You were released on bail after 15 days pre-sentence detention on 19 February 2020 and you have remained on bail since that date.  You, Damon, have also written a letter to the court and to the victims, each dated 14 July 2020. 

32In your letter to the court, you say that at the time of committing these offences, 'I felt constantly apprehensive and physically sick.  I had no idea of the seriousness of what I was engaging in'.  You apologised for the pain and hurt that you have caused all the victims.  In your letter to the victims, you say that you regret everything that you have done.  I accept that you are genuinely remorseful for your crimes.  This is clearly a very serious course of offending by each of you, because of the brazenness of it and because of the repetition of it over the course of about a week, but mostly on 1 February of 2020.  In the charges of armed robbery and attempted armed robbery, a weapon was used by one or other of you to threaten and instil fear in each victim, which it did.  You always chose soft targets which you both no doubt saw as providing an easy opportunity to rob.  You both put some planning into it, using a stolen vehicle and you were almost always disguised.

33In Charges 1 to 6, you, Erin, always acted with a co-offender, either your cousin or your friend.  You were older than both of those individuals and I infer able to influence them.  You then influenced your brother Damon to commit serious offences and you committed the remaining offences with him, with your friend becoming involved towards the end of the offending.  Having said that, the offending does have an air of unsophistication about it.  On 1 February, when the two of you committed eight separate offences, the offending seems to have become somewhat phenetic, at times occurring about every fifteen minutes.  It was certainly immature and you both seemed to have backed off in your determination to rob when challenged, even in a modest way by one or other of the victims.

34The sums of money involved were relatively modest, as were the quantities of cigarettes.  You both repeatedly used the same stolen Audi vehicle to move around and your offending was mostly in the same general geographical area.  It involved always using the same modus operandi, using the same vehicle for travel and to and from the crime scenes and making demands at the point of a knife.  In my opinion, you were bound to be caught.  It was only a matter of time.  Although one or other of you made threats or implied threats, fortunately there was never any physical violence used towards any of the victims.  You each backed off when challenged or when it was clear that the intended robbery was not going smoothly or according to your intentions.

35In my opinion, the offending of both of you in the individual charges falls below mid-range for this kind of offending.  It is the repetition and the number of offences that you each face, where a weapon was used to imply a threat of violence that makes the sentencing of you as young offenders without relevant prior convictions a difficult task.  Your cousin was arrested and interviewed.  She has not been charged with any offences.  She was a child at the time of offending.  Your friend was arrested and made admissions in relation to being present at the time of the commission of Charge 14, attempted armed robbery in Ferntree Gully.  She has been charged with two charges of attempted armed robbery and is to be dealt with in the Children's Court.

36At the time that these offences were committed, you, Erin, were on bail, having been charged with other unrelated offences.  I was told and accept that other offending, involved going to gymnasiums and stealing objects, including car keys, just as you did in Charge 1 here.  You are yet to be dealt with for those matters in the Magistrates' Court.  The charges against each of you resolved into guilty pleas at committal mention, on 4 May 2020.  There has been no contested committal.  Each of you has pleaded guilty to the charges and that is to your credit.

37I treat you both as having pleaded guilty at the earliest opportunity.  While your respective pleas of guilty to each of the charges, you each have saved the time and cost of a trial, possibly more than one trial and you have each saved the necessity for a contested committal and importantly, you have saved each of the victims from having to give evidence and from having been cross-examined and having to relive the events that you both subjected them to.

38Also, by your pleas of guilty, you have each accepted responsibility for your offending and each of you has advanced the administration of justice.  I also treat the pleas of guilty each of you at an early time, as an indication of your remorse for your offending.  In your case Damon, I also treat your cooperation with the police when interviewed, as an indication of your genuine remorse.

39I turn to deal with some background matters relating to you Erin and I will then deal with some matters relevant only to Damon.  Your counsel, Ms Walker, accepted that I must impose a prison sentence upon you on Charges 5 and 6, which as I have said earlier, are Category 2 offences under the Act for the purposes of sentencing.  However, she submitt3ed that because of your lack of prior convictions and your prospects of rehabilitation, which she submitted were good, then she submitted I should impose a term of imprisonment being time served on Charges 5 and 6 and impose a community corrections order with appropriate conditions on the remaining charges.

40Such a disposition, Ms Walker submitted, would better serve the continuation and promotion of your rehabilitation whilst reflecting sentencing principles of general and specific deterrence and the objective gravity of the offending.  At the plea, I rejected the submission as an appropriate disposition.  In my judgment, having regard to the level of seriousness of your offending, and the number of very serious offences involved, a combination sentence in the way put forward by Ms Walker, would not achieve the purposes of sentencing in this case.  I remain of that opinion.

41Alternatively, Ms Walker submitted that I should impose a sentence of imprisonment to be served in the Youth Justice Centre, having regard to your age at the time of offending and sentence and your prospects for rehabilitation.  The prosecution accepted that such a disposition was open in all of the circumstances as an appropriate sentencing disposition, provided you were assessed as being suitable for such a sentence.  I have had you assessed for the making of such a sentence and you have been found to be suitable.

42There are a number of matters about you which evidence has been adduced, which need to be taken into account in arriving at an appropriate sentence for you.  Ms Walker filed with the court a helpful written outline of her submissions.  In pleading for leniency on your behalf, in summary, she relied upon the following factors.  The fact that you have no relevant prior convictions.  The fact that you were 20 years of age at the time of offending and now and you are a young offender.  Your pleas of guilty at the earliest possible time.  Your documented regret and remorse.  Your personal circumstances.  The period of time you have been held in custody on remand in an adult prison at Dame Phyllis Frost.  Your prospects for rehabilitation.

43You have a number of unrelated, but outstanding charges which will be before the Ringwood Magistrates' Court on 14 October.  I was told and accept that you will be pleading guilty to those charges on a consolidated basis.  I received in evidence a psychological report from Carla Ferrari dated 26 May 2020, which I marked as Exhibit 2.  Much of your background is set out in that report.  You Erin and Damon are the only two children of your parents.  Your father works as a salesman and your mother as a nurse.

44You, Erin, told Ms Ferrari that you have an extremely close relationship with your mother and with your maternal grandmother.  You told Ms Ferrari that you and your mother are relatively inseparable.  Both of your parents were in court to support both of you and I accept you have good family support.  You apparently do not have the same close relationship with your father that you do with your mother, but it is obvious that he fully supports you.  You attended primary school in the eastern suburbs and you completed Year 7 and 8 at a local high school, before attending a private school completing Year 12.  You told Ms Ferrari that you were bullied at both primary and secondary school because of your weight.  You apparently had difficulty making friends.  You had some casual employment from time to time, more recently you have been undertaking a fulltime patisserie course at a TAFE, having previously completed one year of a course in nursing, which you did not proceed with.

45In early 2019, you commenced your first relationship with a young man, who sexually assaulted you and this led to significant trauma symptoms for you and deterioration in your behaviour and functioning.  At the time of the offending, you were in a six month relationship with another young man, you met via a dating app and he introduced you to drugs.  He began staying in your family home from time to time which your family did not approve him and evicted him.  Towards the end of the relationship with you, this person became physically abusive towards you and you initiated the obtaining of an intervention order against him.

46You have previously suffered from depression, anxiety, social anxiety and low self-esteem going back to the days when you were bullied at school.  You told Ms Ferrari, and I accept, that over the past three or four years prior to this offending, you have seen several psychologist, most recently attending three sessions, with a clinical psychologist Dr Zion, Exhibit 3.  That was before your arrest and remand.  Prior to your remand, you had also been seeing Dr Wang, a psychiatrist, who diagnosed you with suffering with borderline personality disorder.  You were prescribed the antidepressant Lexapro.  Also you were prescribed Olanzapine, due to the emergence of what are described as psychotic symptoms, about two months after being remanded.  You described visual hallucinations which you had never before experienced, but since commencing antipsychotic medication, this has resolved and your anxiety reduced.

47I received a number of documents evidencing your attendances upon Dr Wang, including a report dated 2 March 2020, Exhibit 5.  See also Exhibits 4, 6 and 8.  In custody you continue to experience trauma symptoms, frequent and intense night terrors about your previous assault and other experiences which you described to Ms Ferrari as vivid and feeling as though you were reliving the assault.  You wake up in the morning feeling exhausted.  You told Ms Ferrari, and I accept, that you had never used any substances prior to your sexual assault in early 2019.

48However, following this, you began using alcohol to cope and you estimated four to six standard pre-mixed drinks per day.  Your second boyfriend introduced you to Benzodiazepines and other drugs.  At the time of offending, you were using four to five Xanax or Mylan tablets a day, as well as MDMA and up to two grams of cannabis.  You refused methamphetamine, which your boyfriend also tried to introduce you to.  You have not had any drug or alcohol counselling and there is no history of substance issues in the family.  You told Ms Ferrari of the history of social interchange with others that led to your use of alcohol and drugs, and then to the offending.  It is all set out in her report which I accept.  

49Ms Ferrari assessed you as being of low risk of reoffending, which I also accept.  She gave this psychological opinion:

'It appears that Ms Fraser's offending was precipitated by a traumatic sexual assault in early 2019 by her first romantic partner, which led to a significant deterioration in her mental state and onset of PTSD symptoms.  In the absence of more effective coping strategies and the longstanding need to be accepted by peers, she began associating with a group of antisocial associates whom introduced her to substance use, which allowed her to ingratiate herself with this group, as well as temporarily alleviate her distress and block the trauma.

Ms Fraser's risk of being easily influenced and willing to sacrifice her own moral beliefs and values to ensure her acceptance, particularly being intoxicated daily, which exacerbated her poor judgment and impaired decision making.  In relation to the connection between her PTSD and offending, Ms Fraser's mental state declined severely as a result of trauma symptoms and were worsened by a subsequent physical violence by her second partner, whom she was dating through the period of offending.

'This reinforced her childhood experiences, as well as the very recent ordeal she had endured with her first partner.  Given Ms Fraser's naivety in relationships, the impact of her only two partners violating her in such an intrusive and traumatic manner, contributed to a worsening of her PTSD, depression and anxiety symptoms.  This directly undermines her self-worth, leading to a self-destructive spiral into substance use to enhance her confidence, together with a desire to fit in and be accepted by her new peer group impacted Ms Fraser's decision making and her involvement in the offending.

There is high comorbidity with PTSD and substance use and a tendency for individuals to behave irrationally and impulsively under extreme stress, which can be disproportionate.  This was heightened by Ms Fraser's daily use of substances during the offending, which would have grossly effected her judgment, behaviour and consideration of consequences'.

50I accept this opinion which in my judgment, explains why as a person at the age of 19, you suddenly changed, turning to alcohol and drugs and then to offending behaviour.  All of this evidence explains your offending, but it does not excuse it.  However, given your background history and all of the circumstances that led to you suddenly entering the criminal justice system, and the relatively short time that you used drugs and alcohol, and the fact you are now free of these substances, and the fact that you have good family support, I think your prospects for rehabilitation are good.  You will likely require ongoing counselling for your mental health, both whilst you remain in custody and after your release.

51All of this needs to be properly taken into account in sentencing you as a young offender, for what are unquestionably serious offences.  I do not accept that the first limb of Verdins principles in sentencing is enlivened here.  Your mind was clearly effected by both drugs and alcohol at the time of offending.  I do accept that your mental health is an issue that will weigh more heavily upon you whilst in prison and this needs to be taken into account in determining the kind of sentence which I will pass.

52Ms Walker submitted, and I accept, that having regard to the large number of offences here, and the fact they occurred over a quite confined period of about a week, then I must have regard to totality, especially when making orders for any accumulation.  In passing sentence, I must also have regard to the fact that presently all prisoners in Victorian custodial settings are subject to a number of restrictions, caused by attempts by prison authorities to curtail the spread of COVID-19 within prisons and to prevent it entering the prison system in the first place.  I accept that this means that any time in custody for any prisoner will be more burdensome than it should otherwise be.

53I said earlier the passing a combination sentence of a term of imprisonment time served, and a community corrections order would not achieve the purposes of sentencing in this case.  Section 32 of the Act gives a sentencing court the power to confine a young offender, in a Youth Justice Centre and not a prison, if the court believes the young offender has reasonable prospects for rehabilitation or that the young offender is particularly impressionable, immature or likely to be subject to one desirable influences in an adult prison.  I have already said that I regard your prospects for rehabilitation a being good.  The maximum period that I can order a young offender to be detained in the Youth Justice Centre is four years.  Section 32A of the Act empowers the court to impose an aggregate sentence if a young offender is convicted of two or more offences which are founded on the same facts or form or a part of a series of offences, of the same or similar character. 

54In sentencing you, Erin Fraser, on the indictable offences, I will impose an aggregate sentence because I am of the opinion that those offences are a series of offences of the same or similar character.  I will order a term of custody in each of the summary matters to be served concurrently with the aggregate sentence imposed on the indictable charges.  I will order that sentences be served in a Youth Justice Centre, having received an assessment dated
11 August 2020, which I shall mark as Exhibit H, that you are suitable for such a disposition.

55I turn to you, Damon Fraser.  Your counsel, Mr Brown, also filed a helpful outline of submissions in writing, Exhibit 1, together with a list of documents, each of which I marked with a number corresponding to the number in the list provided by Mr Brown.  These are the documents included a psychological report from Dr Julianne Reid and a psychological report from Henry Bell and the youth supervised bail report from Chloe Jack and references from your grandmother, parents and a former colleague, as well as a letter of apology to the court from yourself.  You have had no previous involvement in the criminal justice system.  You attended the local primary school where you were bullied, before moving to another school.  You were identified as a young person having learning difficulties from a young age.  Your speech was delayed.  You underwent audiology testing in March 2007, which indicated auditory processing difficulties.  Further testing in 2008 showed moderate language difficulties and recommended speech therapy.

56Thereafter, you engaged in speech therapy whilst in primary school.  A psychological assessment of you in 2009 showed that your cognitive abilities were within borderline range.  In 2013, an assessment by psychologist Henry Bell, Exhibit 3, raised concerns that you may be autistic.  Mr Bell's report reveals that whilst you exhibit many of the features associated with autism, you were not formally diagnosed as autistic because you demonstrated few of the directly related diagnostic symptoms.

57Your cognitive development as a young person occurred at a normal rate, but your perceptual reasoning skills did not develop to the same extent.  At secondary school, from Year 7, there were behavioural issues because of bullying by other students.  You did not have many friends or close friends.  In difficult circumstances it seems, and to your credit, you completed Year 12 in 2019 and this was reflected in your ATAR score.

58From February 2018 to May 2019, you worked as a student at McDonalds and only left to concentrate on your Year 12 studies.  Later you worked at two other fast food outlets and left because of pay issues.  Prior to this offending, you played and coached junior basketball.  You injured your knee in December 2019, but having recovered, you cannot now play due to the COVID-19 restrictions.  Because there will be convictions recorded for these offences, you may have difficulty obtaining a working with children certificate, which will have implications for you returning to coaching.  Since you were granted bail, you have been engaging with Youth Justice as part of your bail conditions.  A report relating to your supervised bail shows that you have engaged positively and you have attended all appointments required of you.  You reside at home with your parents and you are well supported by them and you have stable accommodation.  The report indicates there are no mental health or substance use concerns relating to you.  You are currently enrolled in the Certificate 3 course of individual support and age care at Victoria University. 

59Exhibit 2 is a psychological report from Dr Julianne Reid dated 29 June 2020.  That report records much of your background history relating to your family and education.  It also summarises psychometric testing carried out in relation to you.  Dr Reid expressed a number of opinions about you.  She said that you do not currently meet criteria for mental health diagnosis, but you experience symptoms of anxiety and depression, but not to the extent that would warrant a formal diagnosis.  She opined that you do not have an intellectual disability, but your intellectual functioning is in the borderline range with a percentile rank of six minus.  Your intellectual functioning was assessed in 2013 as being the same, or better than six per cent of individuals your age. 

60You have previously diagnosed with receptive and expressive language difficulties and receive speech therapy and individual support in an attempt to address those difficulties.  Dr Reid expressed the opinion, which I accept, that you are a vulnerable and impressionable boy, who has been consistently the target of bullying and exploitation by peers and that you have a longstanding difficulty understanding the nuances of social settings.  This has resulted in problems in establishing and maintaining a prosocial, meaningful friendships with similar age peers and is further compounded by your borderline intellectual functioning.  Consequently, you have developed a tendency to be easily led by others.

61It is common ground in these cases that you were led into this offending by your sister Erin.  Dr Reid recorded that Erin's offer to you to be included with her and her friends, 'Was an offer seemingly too tempting for you to refuse'.  Dr Reid said this in her opinion at paragraph 61:

'However, while Damon may not have fully understood the legal consequences of his behaviour, and his naivety with respect to the manner in which he participated in the offences are testament to this.  He was aware that what he was doing was morally wrong.  He described having questioned his own involvement at the time of the offending and described having attempted to actively reduce his criminal involvement when invited to continue the offending.  His poor problem solving skills in this respect are evident, as was the overwhelming need to please and impress his sister by "pretending" to her that he was engaging in armed robberies, when he wasn't, rather than asserting his feelings to her and refusing to continue'.

62Dr Reid thought you to be a good candidate for general therapy to address social skills, self-confidence and identity, problem solving skills and emotional regulation.  Dr Reid added that you would likely suffer more in prison compared to someone without your vulnerabilities and that she would have significant concerns for your physical and emotional safety living a in a custodial environment for an extended period.  I received into evidence references from your grandmother, your father, your mother and an old friend.  What comes through is that this episode of offending by you is totally out of character, with the person that they know and love.  You have tremendous family support and you have expressed to them and to the court, your deep regret for your conduct.  You pleaded guilty to the charges and you have accepted the responsibility for your wrongdoing.  In my judgment, your prospects for rehabilitation are very good.

63In pleading for leniency, Mr Brown relied upon a number of mitigating factors, none of which are in dispute.  In summary, he relied upon your age and the fact you are young offender without any prior convictions.  Your pleas of guilty at the earliest possible opportunity and your cooperation with police, your remorse and your acceptance of responsibility, your good character and the fact you have excellent family support, your appearance and borderline intellectual abilities will make you more vulnerable in a custodial setting in prison.

64The fact that you have complied fully with your bail conditions and engaged with Youth Justice, the fact you have excellent prospects for rehabilitation, the fact that the COVID-19 pandemic makes any form of confinement for prisoners more burdensome.  Mr Brown acknowledged that your offending was serious and involved a number of terrifying confrontations with victims.  He acknowledged that general deterrence and denunciation, the sentencing principles must play some role, but he submitted, and I accept, that those sentencing principles must generally be set aside in favour of the sentence that best has regard to your prospects of achieving full rehabilitation.

65Mr Brown submitted that having regard to a number of factors, especially your youth, lack of prior history, remorse and commitment to rehabilitation, and your prospects for rehabilitation, that a period of imprisonment either in an adult prison or with Youth Justice is not justified.  He submitted that in your case, I should make a community corrections order.  I have had you assessed for the making of a community corrections order and you have been assessed as being of a low risk of reoffending and is suitable for the making of such an order.  I have given the sentencing of you, Damon, a great deal of thought since the plea and having had the opportunity to read all of the material again.  I decided that your offending as a whole, is far too serious to make such a disposition.  I do not think a community corrections order will achieve the purposes of sentencing in your case.

66As with Erin, I will make an order for your confinement in a Youth Justice Centre, having obtained a report that you are suitable for such a disposition, which I will mark as Exhibit J.  Your offending was a series of offences of a similar kind and I will impose an aggregate sentence to be served in a Youth Justice Centre.  Erin Fraser, on Charges 1 to 15 in the indictment, I make an aggregate sentence of three years imprisonment to be served by you in a Youth Justice Centre.  On each of the summary charges, you are convicted and sentenced to a term of imprisonment of one month on each charge to be served concurrently with each other and with the aggregate sentence imposed on the indictable offences.

67I direct that 191 days pre-sentence detention be reckoned as having been already served under the sentences passed this day, be entered into the records of the court and be deducted administratively.  For the purposes of s.6AAA of the Act, I state that had it not for your pleas of guilty to the charges, I would have imposed a total effective sentence of six years imprisonment, with a non-parole period of four years to be served in an adult prison.  Pursuant to s.89(4) of the Act, any licences that you may hold to drive a motor vehicle are cancelled and you are disqualified from holding a licence to drive a vehicle for a period of one year. 

68Damon Fraser, on Charges 7 to 15 on the indictment, I make an aggregate sentence of two years imprisonment to be served in a Youth Justice Centre.  I direct that 15 days pre-sentence detention be reckoned as having been already served under the sentences passed this day, be entered into the records of the court and be deducted administratively.  For the purposes of s.6AAA of the Act, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of four years imprisonment, to be served in a Youth Justice Centre. 

69There were various ancillary orders sought by the prosecution relating to forfeiture and disposal which were not opposed and I will sign those orders and I will hear the parties on any orders that may be sought for compensation.  First of all, are there any questions arising out of that Ms Walker?  Can you hear me Ms Walker?

70MS WALKER:  Sorry Your Honour, my internet was cutting in and out a little bit there.  There's ‑ ‑ ‑

71HIS HONOUR:  Do you have any questions?

72MS WALKER:  ‑ ‑ ‑ nothing to say about - no I don't.  Nothing to say about the compensation and just to confirm, because my internet was dropping out a little bit, that was in a Youth Justice facility?

73HIS HONOUR:  Yes it was.

74MS WALKER:  Thank you.

75HIS HONOUR:  Mr Brown?

76MR BROWN:  No, nothing.

77HIS HONOUR:  Thank you.

78MR BROWN:  Nothing, Your Honour.

79HIS HONOUR:  Now Ms Joosten, I've received a number of compensation orders which I - Mr Brown you've seen these have you?

80MR BROWN:  I have, yes.

81HIS HONOUR:  They're not opposed are they?

82MR BROWN:  Not opposed.

83HIS HONOUR:  Very well, well I've received one, two, three, four, five, I think six compensation orders.  I'll sign those orders.

84MS JOOSTEN:  As Your Honour pleases.

85HIS HONOUR:  Could I thank all counsel involved in this case for your assistance with your submissions which I appreciate.

86MR BROWN:  As Your Honour pleases.

87MS WALKER:  As the court pleases.

88MS JOOSTEN:  If the court pleases.

89HIS HONOUR:  Would you take Mr Fraser into custody please.  Ms Walker, I'll leave the transmission on for a moment, both with the prison and in the court if you wish to speak to your client or to her parents.

90MS WALKER:  I'd be grateful, Your Honour, thank you.

91HIS HONOUR:  Thank you.

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