Director of Public Prosecutions v Garcia (a pseudonym)
[2023] VCC 682
•2 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
KOORI COURT
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACKSON GARCIA (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 9 September 2022; 25 October 2022; 13 December 2022; 28 February 2023 | |
DATE OF SENTENCE: | 2 May 2023 | |
CASE MAY BE CITED AS: | DPP v Garcia (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 682 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed Robbery; Causing Injury Recklessly; Obtaining Property by Deception
Legislation Cited: Sentencing Act 1991
Cases Cited:HA (a pseudonym) v R [2021] VSCA 64; Akoka v The Queen [2017] VSCA 214; Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors (2007) 16 VR 269; Muldrock v R (2011) 244 CLR 120; DPP v Lombardo [2022] VSCA 204.
Sentence: 18 days imprisonment; 18 month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mx J. van Dyk | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr D. De Witt | Ann Valos Criminal Law |
HIS HONOUR:
Introduction
1Jackson Garcia[1], you have pleaded guilty to one charge of Armed Robbery, which carries a maximum penalty of 25 years' imprisonment; one charge of Causing Injury Recklessly, which carries a maximum penalty of 5 years' imprisonment; and one charge of Obtaining Property by Deception, which carries a maximum penalty of 10 years' imprisonment.
[1]A pseudonym.
2At your arraignment on 9 September 2022, in addition to pleading guilty to these charges, you admitted your criminal history.
Circumstances of the Offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening dated 20 June 2022, tendered at your plea hearing and marked Exhibit 1. That document sets out the factual basis for the offending in relation to which you now fall to be sentenced. Your offending can now be briefly summarised.
4On Monday 15 November 2021, at approximately 3:15pm, you, in the company of your three co-offenders in relation to this matter, Roman Popovic[2], Peter Sharp[3] and Carla Cook[4], met your victim, Mark Sayer[5], at the Point Cook Town Centre. In Facebook and Snapchat communications at around 11:00 pm the night before, Ms Cook had messaged Mr Sayer, whom she had never met, and asked if he had wanted to meet her. He declined but agreed to meet the next day. The following day, Mr Sayer woke up to messages from Ms Cook with a plan to meet at the Point Cook Town Centre. At about 3:00 pm that day, Mr Sayer attended this location, and messaged Ms Cook of his arrival.
[2]A pseudonym.
[3]A pseudonym.
[4]A pseudonym.
[5]A pseudonym.
5Shortly afterwards, you and your co-offenders were captured on CCTV arriving at the town centre car park, with Ms Cook seen walking towards Mr Sayer. You were captured exiting the vehicle you arrived in, pulling your hood over your head, and walking in the direction of where the offending occurred with your two male co-offenders. Ms Cook and Mr Sayer walked together, with Cook leading the way telling him, "Let's go down here." The pair engaged in normal conversation, giving Mr Sayer no indication anything was wrong. Ms Cook led him down a footpath leading into the Dunnings Road Reserve, where you then positioned yourself behind him. You then whistled, alerting your two male
co-offenders, Mr Popovic and Mr Sharp. Mr Sayer heard footsteps behind him get louder and quicker, turning around to see you behind him, and turning around again to see your two male co-offenders in front of him. He then realised he had nowhere to go and was surrounded by the three of you within a one-meter radius, with Ms Cook moving away pretending to be shocked. Mr Sayer then noticed you all holding weapons; you holding a box-cutter, Mr Popovic a rusty bladed machete, and Mr Sharp a hammer.6Mr Popovic said to Mr Sayer, "Give me all your shit now! Give me your wallet, phone! Give us your watch now" and, "Sit down and don't try anything stupid." Mr Popovic told Mr Sayer to look him in the eyes. The group threatened Mr Sayer, saying, "We're gonna slice you! We're gonna kill you! Give us your stuff!" He subsequently handed over his wallet and imitation Rolex watch. The three of you searched Mr Sayer’s wallet, removing an ANZ bank card and handed it to Ms Cook, then asked him for its PIN number. Mr Sayer provided a false number and Ms Cook was instructed to try and withdraw money from the account linked to the card. You told Mr Sayer, "This better be real (referring to the card's PIN number) or I'll chop all your fingers off." Your conduct in robbing Mr Sayer of his wallet and watch in company, whilst in possession of the box cutter, forms the basis of Charge 1 on the indictment, Armed Robbery.
7Following this initial interaction, you and your two male co-offenders demanded Mr Sayer’s phone again, but he refused, pushing you and Mr Popovic backwards to escape. Mr Popovic then slashed him with his machete, struck him on his right-hand middle knuckle, which caused an open bleeding wound. As Mr Sayer went to escape again by sprinting off, Mr Popovic swung the machete towards him, grazing his left thigh, and Mr Sharp swung the hammer at Mr Sayer’s head, narrowly missing him. Your complicity in this offending forms the basis of Charge 2 on the indictment, Causing Injury Recklessly.
8Mr Sayer ran away, with Mr Popovic pursuing only momentarily. He then telephoned Triple 0 and turned around to notice you and your co-offenders running away from the scene of the offending. CCTV footage captured the group of you re-enter the car you all arrived in. Around this same time, Mr Popovic was captured on CCTV footage walking around several vehicles brandishing his machete in view of members of the public. Your car was then seen exiting the car park.
9Approximately 15 minutes later, at 3:48 pm, you and your co-offenders were captured on CCTV entering the Sanctuary Lakes Shopping Centre car park. You can all be seen walking through the car park and shopping centre. You were observed handing Mr Sharp an unknown item, believed to be Mr Sayer’s ANZ bank card, before Mr Sharp entered the TSG Tobacco Station store alone, whilst you remained out the front of the store with Mr Popovic and Ms Cook. Mr Sharp used the stolen ANZ bank card to purchase a packet of cigarettes valued at $49.01. As Mr Sharp exited the store, you immediately greeted him, took the cigarettes from him and inspected them. Your involvement in this offending forms the basis of Charge 3 on the indictment, Obtaining Property by Deception. The four of you were then captured on CCTV walking to a kiosk in the shopping centre. You were seen showing the shop assistant Mr Sayer’s gold Rolex watch, asking if it was real or fake. After you were informed it was fake, you enquired as to the value of it. You were then sighted on CCTV at Coles shortly after.
10Following Mr Sayer’s Triple 0 telephone call, police arrived at Murnong Street and Main Street where they located Mr Sayer, who appeared clearly shaken with an active bleeding wound on his right hand. He then showed police where the armed robbery took place and at the same time received a notification that his stolen ANZ bank card had just been used at a Tobacco Station, which he informed police of. Mr Sayer was then transported to the Royal Melbourne Hospital by ambulance, where he received three stitches and was discharged later that day.
11Later that afternoon, Police attended the Sanctuary Lakes Shopping Centre where the ANZ bank card had been used earlier to obtain CCTV footage. Through the CCTV footage captured on the day of the offending, Police were able to identify the car you and your co-offenders arrived in, and following this, conducted a search on the car's registration. This search revealed the car was parked three houses away from Mr Popvic’s address the evening prior to the offending, and at 7:31 am on the morning of the offending it was parked directly across the road from your address.
12Your three co-offenders were arrested and interviewed between 17 and 18 November 2021. A search warrant was executed at your home address by police at 9:39 am on 19 November 2021. You were not present at the time, but your parents were. A Fila jumper that matched what you were wearing at the time of the offending was seized. Three days later, at 9:39 am on Monday 22 November 2021, you were arrested by appointment at the Werribee Police Station, attending there with your solicitor. You made a 'no comment' record of interview and were ultimately charged and remanded in custody on that day. You remained in custody until being granted bail on 10 December 2021 in the Supreme Court, 18 days later, with your previous application for bail in the Magistrates' Court having been refused. You have remained on bail since this time.
13Your matter ultimately resolved by you indicating your intention to enter a plea of guilty to the three charges to which you have now pleaded guilty, on 5 May 2022, at a Committal Case Conference.
Victim impact
14Your victim, Mark Sayer, completed a victim impact statement on 1 July 2022, and that document was tendered at your plea hearing and marked Exhibit 2. Amongst other things, Mr Sayer indicates in his statement that as a result of your offending, his ability to trust and meet new people has been impacted, as he fears that they may plot to rob or harm him. Given the circumstances in which you and your co‑offenders committed the offending upon Mr Sayer, such sentiments are completely understandable.
15Victim impact statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the court of the often far reaching and long-term adverse consequences of offending upon them. In formulating an appropriate sentencing in your case, I have taken into consideration the victim impact statement of Mr Sayer.
Nature and gravity of your offending, and your role in it
16The gravity of your offending is of course reflected in the relevant statutory maximum penalties – 25 years' imprisonment for the crime of armed robbery, 5 years' imprisonment for the crime of causing injury recklessly, and 10 years' imprisonment for the crime of obtaining property by deception. In particular, in the circumstances of your case, the offence of armed robbery is a Category 2 offence pursuant to the relevant provisions of the Sentencing Act 1991, due to the fact that this offence was committed in company, and that the offending directly resulted in injury to Mr Sayer. As a result of this offence being a Category 2 offence, I must impose a custodial sentence unless satisfied of one of the exceptions contained in s5(2H) of the Sentencing Act 1991.
17The prosecution in this case submitted that the overall objective gravity of your offending fell within the high range. There certainly are in my view a number of features of your offending which are quite concerning. Your offending was committed whilst in company with others. All but Ms Cook were armed with dangerous weapons, in your case a box cutter. The presence of multiple offenders, most of whom being armed with dangerous weapons, would no doubt have increased the fear on the part of your victim, Mr Sayer. You and the other male offenders essentially surrounded him, no doubt emphasising the imminent danger to him. In my view, whilst overall your offending may not have been overly sophisticated, there were concerning aspects of planning and coordination involved. Ms Cook’s role it seems was to essentially trick Mr Sayer into meeting her, and to lure him to the designated location where you and your other co‑offenders were ready and waiting. Once Ms Cook and Mr Sayer arrived at the designated location, you whistled to alert the other co‑offenders, at which point Mr Sayer was surrounded. This was not therefore impulsive behaviour on your part. Your involvement in the armed robbery in this manner, whilst holding a bladed implement, represents a serious and concerning example of the crime of armed robbery. Furthermore, in terms of your involvement in the armed robbery offence, whilst it seems clear that Mr Popovic was playing a leading role, and you were noted by Mr Sayer as being the most nervous out of the three males, your threatening comment once Mr Sayer provided the PIN number to the ANZ bank card that had just been stolen from him, "This better be real or I'll chop all your fingers off," reflects in my view your enthusiastic involvement in this offence, and your threatening behaviour towards Mr Sayer.
18Likewise, your involvement in the recklessly cause injury offence is also highly concerning. Whilst I accept that your criminal liability is based upon the principle of complicity, meaning that you are criminally responsible for the actions of your co‑offenders, the physical assault upon Mr Sayer in the context of an armed robbery is self-evidently serious and concerning. One of your co‑offenders, Mr Popovic, struck Mr Sayer with the machete that he was holding, causing injuries to Mr Sayer which required medical intervention at hospital.
19As evidenced from the items taken from Mr Sayer and your subsequent behaviour with regards to the use of the stolen bank card, your motive for this offending overall seems to have been financial. Upon utilising the stolen bank card to obtain cigarettes, you walked to a kiosk in the shopping centre and showed the shop assistant Mr Sayer’s Rolex watch and asked if it was real or fake, before enquiring about its value. Clearly, you were playing a significant role in relation to the offence of obtaining property by deception.
20Overall, your offending must be seen as a serious example of the relevant crimes to which you have pleaded guilty. Your behaviour constitutes concerning and violent antisocial behaviour, and I am called upon in sentencing to denounce such serious conduct, to send a message to both yourself and other like‑minded offenders with regard to the serious consequences for engaging in such serious offending, and to appropriately protect the community from such behaviour.
Personal circumstances
21You are now 20 years of age. You turn 21 in July 2023. At the time of your offending you were 19 years of age.
22You have no prior convictions. On 11 December 2018 at the Werribee Children's Court, you received a without conviction good behaviour bond for essentially dishonestly related offending, together with a charge of unlawful assault.
23You are an Aboriginal man, with Aboriginal heritage on your mother's side. In one of your mother's support letters to the court dated 8 December 2021, your mother refers to her personal history being deeply rooted in Australian history, being directly descended from the Wadawurrung Tribe, with her grandfather being directly involved as part of the Stolen Generation that was a dark mark on the family history.
24You are the eldest in a sibship of three, with a younger brother and a younger sister. You also have one older half-sibling. You have apparently maintained close relationships with your younger siblings. You grew up in the Seabrook and surrounding areas of Melbourne, and you have resided in this area essentially for your entire life save for a period in Geelong with your father.
25Your parents separated when you were aged about six, in what you have described as a fairly amicable separation and your parents have apparently maintained a positive relationship since then.
26After your parents' separation, you resided with your father while the rest of your siblings remained with their mother. From the age of 15 through to the time of the offending in November 2021, you lived with your father and his paternal grandmother in Altona Meadows, not far from your mother's house. Both of your grandmothers wrote supportive letters for your court hearing and they form part of Exhibit I. Clearly you are held in high regard by your grandparents and have played supportive roles with regards to their care and wellbeing at times.
27As indicated by your counsel in written submissions,[6] your family history has been marked by mental health, trauma and struggles with alcohol over a number of generations. Your father has apparently previously struggled with addiction and mental health issues and associated problematic behaviour. Your mother suffers from bipolar disorder, anxiety and depression. Whilst her mental health has apparently stabilised with appropriate medications, when growing up you were often required to spend time at your mother's home caring for her and your younger siblings, as your mother's mental health could dramatically fluctuate requiring constant vigilance on your part.
[6]Outline of Submissions dated 6 July 2022, Exhibit A at paragraph [5.k].
28You have been educated to Year 10 level, and you apparently left school early in Year 11 after being informed by your principal that you were not suited to school, and you were asked to leave due to poor attendance. Since leaving school, you have had sporadic employment, following a period of full time work with DHR unloading containers for some seven to eight months. When assessed by neuropsychologist, Dr Laura Anderson, in October 2022, you provided some details with regards to your work history.[7] You described a period of time working as a tiler, working as a house painter, and working in a warehouse unloading shipping containers. You also described assisting a friend's business by doing some intermittent casual labouring work and more recently a period working on a casual basis for your uncle's furniture removal business.
[7]Neuropsychological Report by Dr Laura Anderson dated 24 October 2022 at paragraph [5.3.6].
29You have a history of problematic cannabis consumption, dating from the age of thirteen. Whilst initially social, your consumption escalated to daily use from the age of 14 and only stopped following your remand in custody for this matter. Your escalation in cannabis use in your mid teenage years appears to have occurred in the context of your struggles with anxiety. Forensic psychologist Gina Cidoni, in her report dated 7 July 2022, refers to your self-report with regards to the onset of mental health problems and suicidal ideation from your early teenage years.[8]
[8]Psychological Report by Gina Cidoni dated 07 July 2022 at paragraph [101].
30You commenced a relationship with your now long-term partner, Isabelle[9], in 2018. In 2019, your partner fell pregnant and gave birth to your daughter prematurely, at 21 weeks, in March 2020. Unfortunately, Ryan[10] only survived a matter of days before passing away, and understandably her passing has had a profound impact upon your mental health. Your mental health apparently dramatically deteriorated following Ryan’s death, as you struggled to reconcile the loss of your first child, and you isolated yourself from your family and loved ones. The relationship between you and Isabelle temporarily ended in this context, and it was in this period apparently where your cannabis use significantly escalated as you attempted to numb your grief. According to your counsel, you attempted suicide during this period.
[9]A pseudonym.
[10]A pseudonym.
31Unfortunately, the death of Ryan corresponded with the COVID-19 pandemic impacting upon the lives of all Victorians, and it seems your mental health worsened during this period as you struggled with the lockdowns and the inability to connect with others. Ryan passed away in March 2020. Your offending took place in November 2021. In the intervening period I was informed that, in the context of your degrading mental health and increased cannabis usage, you started associating with one of your co-offenders, Mr Popovic, who you thought was a friend. You essentially then spent increasing time with negative peers and distanced yourself from your family.
32Your offending occurred on 15 November 2021. You subsequently attended the Werribee Police Station by appointment with your solicitor on 22 November 2021, having heard what had happened with regards to your co‑offenders and understanding the gravity of your predicament. Notwithstanding your youth and lack of prior convictions, and the fact that you had handed yourself in, you were remanded in adult custody before ultimately being granted bail in the Supreme Court on 10 December 2021. I was informed and accept that the 18 days spent in custody would no doubt have been difficult for you. In the context of the
COVID-19 pandemic, you were placed in isolation and you were unable to contact your family for over a week. You felt alone and feared abandonment from your loved ones, and apparently therefore found this period very distressing. Suicidal ideation was noted by the authorities in this period.33Having been bailed on 10 December 2021, you have remained subject to stringent bail conditions since then, a period of some 17 months. I will describe your progress whilst on bail shortly.
Sentencing factors
34In formulating an appropriate sentence in your case, the Sentencing Act 1991 requires me to have regard to various factors, principles and purposes. I have already referred to the relevant maximum penalties, the nature and gravity of your offending and your role in it, the impact on your victim, and your personal history. Having carefully considered this matter, I am satisfied that there exists in your case a powerful constellation of mitigatory factors very much impacting upon the sentencing exercise.
35You were just 19 years old at the time of the offending and you are now 20, and therefore fall to be sentenced as a young offender. In accordance with well-established principles, your youth should be a primary consideration, making the sentencing purpose of rehabilitation extremely important in the sentencing exercise. In sentencing I must recognise the potential for young offenders to be redeemed and rehabilitated. Indeed, effective rehabilitation of a young offender protects the community from further offending. Your youth in my view is a significant mitigatory factor.
36I accept that you resolved this matter and indicated an intention to plead guilty at the earliest stage in proceedings, warranting a significant sentencing discount. This occurred in the context of the COVID-19 pandemic with its now well-known and unprecedented impacts upon the administration of criminal justice in this State, where this court continues to experience unprecedented backlogs. Your plea of guilty in these circumstances carries with it an enhanced utilitarian benefit, warranting a significant sentencing discount.[11]
[11]Worboyes v The Queen [2021] VSCA 169.
37I am satisfied that a further sentencing discount is warranted due to your genuine remorse. Your early plea of guilty is of course evidence of such remorse. Your letter to your victim, dated 26 June 2022, prior to your plea hearing before me, further highlights your genuine remorse. In that letter, you indicate to Mr Sayer that you are truly sorry for your actions. You indicate:
"I could only imagine how [my actions] would have impacted upon you, and your future. I know what has happened is very wrong, and if only I could take that whole day back I gladly would. I'm highly regretful of my actions, and no apology, or letter could put into words the trauma I have inflicted. Nobody deserves to feel uncomfortable catching a bus, meeting new people, going shopping at a supermarket, or to have any type of fear, pain or worry."
38Given your youth and immaturity, and your now diagnosed intellectual disability, I regard your letter to your victim as evidencing genuine insight and remorse for your involvement in this serious offending. It very much stands to your credit. Furthermore, I am satisfied that your conduct and participation in the Koori Court sentencing conversation, the details of which I will shortly outline, further supports a positive finding with regards to your genuine remorse. In my view, your genuine remorse decreases the need for any penalty to reflect the purpose of specific deterrence, and enhances your prospects for rehabilitation.
39On 9 September 2022, you voluntarily participated in a sentencing conversation, in the presence of an Aboriginal Elder, as part of the Koori Court plea hearing procedure. Your father also participated in that conversation with your mother being present as well. As is often the case, that sentencing conversation was substantial, direct and at times confronting for you. This was so, particularly given the nature and the severity of your offending. I formed the view that during the sentencing conversation you were conscientiously participating and taking responsibility for your actions. Part of the sentencing conversation to which I have referred involves a shaming aspect, which in my view you genuinely embraced. I have little doubt this would have been particularly confronting for you, and your willingness to expose yourself in this way is to your credit. As I indicated to you during that conversation, I was struck by the degree to which you were engaged in the process, including your willingness to display your emotions and honestly inform the court as to how you were feeling. The conversation was in my view a powerful example of the redemptive nature of the Koori Court sentencing conversation procedure. As has been acknowledged by the Court of Appeal, meaningful engagement in the Koori Court sentencing conversation may operate as a mitigating circumstance. You faced the shaming that is an integral part of those proceedings and you were prepared to be accountable for your offending. Participation in the process of a Koori Court is more burdensome than appearing at a traditional plea hearing, and participation therefore may of itself be rehabilitative. In my view, the significance of the fact that you, a young Aboriginal man with a clear history of trauma and with a cognitive impairment, meaningfully engaged in this process, cannot be overstated.
40I turn now to a consideration of your progress whilst on bail, and your rehabilitative efforts within this extended period of time. Overall, I have concluded that in often difficult circumstances, your sustained and meaningful rehabilitative progress has been significant, in fact transformative, and very much warrants a positive prognosis with regards to your prospects of rehabilitation.
41As I earlier indicated, you were bailed in the Supreme Court on 10 December 2021. I was informed and accept that since being granted bail, you have ceased contact with your previous associates and you have focused upon your family and your partner with whom you have reconciled. As evidenced by the many progress reports from Youth Justice who have supervised you whilst on bail, you have progressed well under their supervision. You have reflected on your offending and have displayed significant remorse and regret for what has happened. As evidenced in the recent Youth Justice Suitability for a Youth Justice Centre Order Pre-Sentence Report dated 21 February 2023, you have successfully attended 44 of 47 scheduled Youth Justice supervision appointments. You have impressed Youth Justice as being genuine in your contributions, reflections and insight into the impact of your offending. In 2022 you successfully completed an alcohol and other drug treatment episode with the Youth Support and Advocacy Service ("YSAS"), following which time YSAS closed the referral due to your reported abstinence from substances. As evidenced in their most recent letter dated 27 April 2023, you have also maintained regular and appropriate contact with the Victorian Aboriginal Health Service in Fitzroy, notwithstanding the geographical distance from your accommodation in Seabrook and whilst you have been staying at Bunjilwarra.
42Your rehabilitative efforts have occurred in the context of significant events in your life. In February 2022, you were struck by a car crossing the road, sustaining a fractured leg, snapped ACL and fluid in your back, requiring you to be hospitalised for some three weeks. Notwithstanding being in considerable pain during this period, you apparently maintained your abstinence from cannabis and continued to engage with Youth Justice. Later in February 2022, you discovered that your partner was pregnant, and your son Lyle[12], was born in September 2022. Understandably, and notwithstanding the usual stresses involved with regards to being young parents, particularly with regards to your difficult history, you have cited your aim of being a good father as your primary motivation for staying out of trouble.
[12]A pseudonym.
43Significantly, from 3 November 2022, you have been actively engaging in residential rehabilitation at Bunjilwarra in Hastings, a purpose built 12 bed residential rehabilitation and alcohol and drug healing service for young Aboriginal people aged between 16 and 25 years. Numerous progress reports have been provided by Ms Kylie Weiss, the Intake Co-ordinator/Assistant Manager at Bunjilwarra, together with Peter Dawson, the Clinical Lead and Co-Manager of Bunjilwarra, the most recent dated 28 April 2023, and representatives from Bunjilwarra have been present during the various court hearings with regards to this matter. I note in this regard that Ms Weiss gave evidence today before me with regard to your continued excellent progress at Bunjilwarra and the plans in place with regards to your reintegration into the broader community. It seems clear that overall you have been a positive participant in the Bunjilwarra program since 3 November 2022. You have engaged in culturally appropriate psycho-educational groups that focus on relapse prevention, healthy relationships, emotional regulation, harm reduction, budgeting, AOD counselling, men's cultural workshops and other cultural activities, recreational activities, exercise programs, weekly consultations with a GP, and participation in the allied Dardi Munwurro men's behavioural change groups. Perhaps for the first time, you have reconnected with your culture and commenced the healing process given the various challenges in your life. You have been described as genuine, and a positive member of the Bunjilwarra community. Indeed today you have been described as a leader in the Bunjilwarra community. I am satisfied that the 137 days spent at the Bunjilwarra residential rehabilitation facility has involved significant restrictions on your liberty, and in fact in your case has involved a level of compulsion given that you have been bailed to reside there. Pursuant to the principles in Akoka v The Queen,[13] a mitigatory allowance is warranted.
[13] Akoka v The Queen [2017] VSCA 214.
44It must be said that your progress at Bunjilwarra has not been entirely without incident. As indicated in the progress report dated 6 February 2023, Exhibit P at your plea hearing, you were exited from Bunjilwarra on 3 January 2023 for a period of time, following an incident involving the consumption of alcohol at Bunjilwarra on 31 December 2022. Following your exit, you maintained daily telephone contact with Bunjilwarra management and ultimately returned to Bunjilwarra in February 2023, following a short admission to the Youth Substance Abuse Service, Glen Iris Residential Detoxification Facility. As evidenced from the most recent progress report dated 28 April 2023, since your readmission you have participated well in every aspect of the program and you appear to have genuinely taken ownership of your past poor judgment and behaviour. In addition to engaging in the programs at Bunjilwarra, you have maintained regular phone contact with your partner and child since arriving back at Bunjilwarra. On 21 March 2023, you took approved leave from Bunjilwarra for the day, to spend time with your partner and child, providing clear urine and blood alcohol results upon your return. Whilst it is unfortunate that you engaged in behaviour which could have jeopardised your progress, I must say that I have been impressed with the degree to which you have taken responsibility for your actions and re-engaged in this important component of your rehabilitation. At the hearing on 28 February 2023, I was informed that your partner, Isabelle, is four weeks pregnant, and accordingly you are both looking forward to the birth of your second child. As was the case with regards to Lyle, it seems to me you have powerful reasons to continue on your rehabilitative path. In all the circumstances, I regard your prospects of rehabilitation as being good, provided you continue to engage appropriately with the specialist services who have assisted you to date.
45I turn now to the psychological assessments that have been conducted in your case, and any impacts upon this sentencing exercise. Psychologist Gina Cidoni diagnosed a number of disorders in your case – Post-traumatic Stress Disorder, Major Depressive Disorder and generalised anxiety disorder.[14] According to Ms Cidoni, your Post-traumatic Stress Disorder is likely in response to your early experiences around your mother's mental illness, the impact of the loss of your first child and your more recent motor vehicle accident. According to Ms Cidoni, you have significant disadvantages that seriously compromise your thinking and control over your behaviours. You are easily led by way of your low intellect and reduced mental health and you would not have the capacity to plan the offending.[15] According to Ms Cidoni, given your poor mental health, you would be expected to deteriorate significantly if sentenced to a term of imprisonment.[16] Ms Cidoni recommended pharmacological management of your depression, psychotherapy, and assessment with regards to your suitability for the NDIS.
[14]Psychological Report by Gina Cidoni dated 07 July 2022 at paragraph [104].
[15]Ibid 106.
[16] Ibid 109.
46As I earlier indicated, you were also assessed by neuropsychologist Dr Laura Anderson, and her findings were set out in her report dated 24 October 2022, Exhibit M at your plea hearing. According to Dr Anderson, your full scale IQ is likely to be close to 67, which spans the borderline to extremely low range for your age.[17] You demonstrated global reductions in all aspects of your cognitive functioning, and your executive functioning in particular was significantly impaired. Dr Anderson concludes that you likely meet the diagnostic criteria for an intellectual disability of mild severity. According to Dr Anderson, your cognitive impairments are relevant to consider in the context of your offending, as you present as significantly vulnerable to the influence of others and seemingly highly reliant upon others for support and guidance throughout your life. According to Dr Anderson, you are likely to have been influenced and encouraged by the attitudes and behaviours of others and you do not demonstrate the capacity to effectively critically appraise information and consider the long-term consequences of your actions. Accordingly, according to Dr Anderson these aspects of your low level of functioning contributed to your involvement in the offending.
[17] Neuropsychological Report by Dr Laura Anderson dated 24 October 2022 at paragraph [6.4.1].
47As a result of these expert opinions, I am satisfied that your moral culpability for your offending is reduced by virtue of your impaired mental functioning, in accordance with Verdins principle 1.[18] Furthermore, consistent with the principles articulated by the High Court in Muldrock,[19] your intellectual impairment has considerable bearing with regard to the type of sentence to be imposed in your case, and warrants a degree of moderation with regards to the sentencing purpose of general deterrence.
[18] R v Verdins & Ors [2007] VSCA 102.
[19] Muldrock v R (2011) 244 CLR 120 (“Muldrock”).
48Returning to the conclusions of Dr Anderson, she opines that your cognitive impairments can be, "hugely problematic"[20] in a custodial setting, and should be considered as a burden as:
"a prison sentence affords less opportunity for an intellectually disabled person to develop adaptive, prosocial independent functioning skills required in the community compared to a typically functioning person. In my clinical experience, individuals with intellectual disabilities, or other significant cognitive impairments, tend to have a higher prevalence of recidivism, and report higher levels of distress and difficulty in functioning when they reintegrate from a prison environment into the community.”[21]
[20] Neuropsychological Report by Dr Laura Anderson dated 24 October 2022 at paragraph [7.1.7].
[21]Ibid.
49I am satisfied therefore, on the basis of the opinions of Ms Cidoni and Dr Anderson, that given your cognitive functioning and intellectual disability, a mitigatory allowance is required due to the impacts of a custodial sentence for a person in your circumstances, pursuant to Verdins principles 5 and 6.[22]
[22] R v Verdins & Ors [2007] VSCA 102.
50On a related issue with regards to hardship in the custodial setting, I am satisfied that a further mitigatory allowance is warranted given that the custodial setting, whether juvenile or adult, is still impacted by the COVID‑19 pandemic. As is now well-known, the impacts of COVID‑19 in the custodial setting have been significant. There have been unprecedented restrictions with regards to freedom of movement, access to visits, access to employment, vocational, and other therapeutic activities. Furthermore, all prisoners and detainees have had to live with the understandable anxieties associated with the incursion of COVID‑19 into the custodial setting, with its compromised demographic. A mitigatory allowance is therefore warranted on sentencing in this context.
51I have already dealt with your progress on bail and your involvement with the various agencies who have assisted you in your rehabilitation and supervised you whilst you have been on bail. I am satisfied as at the date of sentencing that the existence and availability of support services specifically targeted towards your cultural, substance use, mental health and intellectual disability needs have been and will continue to facilitate your rehabilitation and provide a significant measure of community protection. You clearly appear to maintain the love and support of your family and your partner. You have maintained regular contact with them. You continue to reside at Bunjilwarra and plan to complete program graduation on or about 3 May 2023. Importantly, upon your departure from Bunjilwarra, you will continue to receive at least phone assistance from them when needed. You have been assisted by the Victorian Aboriginal Health Service for some time, and I understand this can continue into the future. As indicated in the disability overview report dated 16 February 2023, commissioned in the context of a Justice Plan inquiry on my part, as at 25 November 2022 you were accepted onto the National Disability Insurance Scheme, NDIS. These are all positive factors with regards to your rehabilitative progress.
52When formulating an appropriate sentence in your case, I have had regard as required by the Sentencing Act 1991 to current sentencing practices with regards to the offences for which you now fall to be sentenced. While sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past, and current sentencing practices represent just one of the relevant sentencing factors to be considered, clearly, sentences for armed robbery in particular have often involved sentences of imprisonment of some years' duration.
Parties' submissions, particularly with regard to the offence of armed robbery
53As I indicated at the outset of my sentencing remarks, as the offence of armed robbery in the circumstances of your case is a Category 2 offence, the Sentencing Act 1991 requires me to impose a custodial sentence unless one of the exceptions contained in s5(2H) of the Sentencing Act 1991 apply. Pursuant to your counsel's most recent outline of submissions dated 26 April 2023, supplemented in oral submissions today, your counsel relied upon three such exceptions – impaired mental functioning in connection to the commission of your offending pursuant to s5(2H)(c)(i) of the Sentencing Act 1991, impaired mental functioning and its impact upon imprisonment pursuant to s5(2H)(c)(ii), and the existence of substantial and compelling circumstances that are exceptional and rare pursuant to s5(2H)(e).
54Turning first to impaired mental functioning and the impact of your offending, reliance was placed on the conclusions of Dr Laura Anderson and psychologist Gina Cidoni, the details of which I have already referred to. Having carefully considered those conclusions in the context of this exception, whilst in my view your impaired mental functioning is causally linked to your offending and your culpability is reduced, it is not, "substantially and materially" reduced in accordance with the wording of this exception, which I find has not been established on the balance of probabilities.
55I turn now to the exception with regards to impaired mental functioning that would result in you being subject to substantially materially and greater than the ordinary burden or risks of imprisonment – s5(2H)(c)(ii) of the Sentencing Act 1991. Again, your counsel relied upon the opinions expressed by Dr Anderson and Ms Cidoni, the details of which I have previously outlined. You are certainly, in my view, a vulnerable young man due to matters related to your impaired mental functioning, that would make any sentence of imprisonment or detention difficult for you. As indicated by Ms Katerina Valos in her Youth Justice Suitability Assessment Report dated 21 February 2023, you are likely to be deemed as particularly immature in light of your disability and therefore highly likely to be subjected to undesirable influences in an adult prison. In my view, you are vulnerable to the influence of others and this would be the case in a custodial environment. According to Ms Cidoni, your poor mental health would be expected to deteriorate significantly if you were sentenced to a term of imprisonment. Dr Anderson also referred to your vulnerability in the context of a custodial sentence and the higher prevalence with regards to reintegration into the community with regards to individuals with intellectual disabilities. According to Ms Anderson, the rigid environment of prison actually compensates for the cognitive and adaptive deficits of an intellectual disability and removes the burden of problem solving and decision making for these individuals. However, whilst this can be perceived as somewhat positive, according to Dr Anderson, from a rehabilitative perspective, it can be:
"… hugely problematic and should be considered as a burden for that individual because a prison sentence affords less opportunity for an intellectually disabled person to develop adaptive, prosocial, independent functioning skills required in the community compared to a typically functioning person."[23]
[23] Neuropsychological Report by Dr Laura Anderson dated 24 October 2022 at paragraph [7.1.7].
56As I understand Dr Anderson's conclusions, her concerns relate to the ability of the prison environment to facilitate appropriate living skills when back in the community and her concerns, therefore, relate to long-term rehabilitation and reintegration following a prison sentence, as opposed to the burden or risks of imprisonment to you due to your impaired mental functioning. Having considered this exception carefully, I am simply unable to be satisfied on the balance of probabilities that your impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment and, accordingly, I find that this exception has not been established.
57I turn now to the final limb relied upon by your counsel, s5(2H)(e) of the Sentencing Act 1991. In contrast to the first 2 limbs relied upon by your counsel, this exception requires me to make an evaluative judgment with regards to the underlying facts of your case, unaffected by notions of burden of proof.[24] Your counsel submitted essentially that the cumulative effect of all of the circumstances in your case constituted substantial and compelling circumstances that are exceptional and rare, such that a custodial sentence was not warranted. Your counsel submitted that the appropriate penalty in your case was a combination sentencing involving a sentence of imprisonment not exceeding time served to date, in combination with an appropriately constructed Community Correction Order. Whilst of course it is ultimately a matter for me, the prosecution ultimately conceded that the cumulative impact of your circumstances could establish substantial and compelling circumstances that are exceptional and rare, and submitted that a combination sentence involving a term of imprisonment combined with a Community Correction Order would be within range.[25]
[24] DPP v Lombardo [2022] VSCA 204, at [72] (“Lombardo”).
[25]Prosecution addendum submissions on sentence dated 25 October 2022 at paragraph [3].
58The Court of Appeal has recently emphasised the stringency of s5(2H)(e) of the Sentencing Act 1991, and noted that the introduction of the phrase, "exceptional and rare" in addition to the earlier phrase of, "substantial and compelling" highlighted that the circumstances must not only be powerful, but also. "wholly outside the run of the mill factors seen in offending of the relevant kind."[26] According to Lombardo, the inquiry under s5(2H)(e) has two key steps – first, a consideration of whether there are substantial and compelling circumstances which involve a consideration of whether those circumstances are "weighty and forceful or powerful." In relation to the first substantial and compelling circumstances test, the Sentencing Act 1991 imposes a number of further conditions. I must regard general deterrence and denunciation of your conduct as being more important than other sentencing purposes such as just punishment, specific deterrence, rehabilitation and protection of the community from you. I must also give less weight to your personal circumstances than to the nature and gravity of the offence. I must not have regard to the matters in s5(2HC)(c), which include your previous good character (other than an absence of convictions), an early plea of guilty and prospects of rehabilitation. I must also have regard to Parliament's intention that in sentencing an offender for a Category 2 offence, only an order for a custodial sentence should ordinarily be made.
[26]Lombardo at paragraph [63].
59The second critical step, if I find the circumstances are substantial and compelling, requires me to consider whether those circumstances are also exceptional and rare. According to Lombardo, this phrase refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence.
60In addition to Lombardo, both your counsel and counsel for the prosecution relied upon a number of authorities, both setting out these principles and providing examples with regards to the application by sentencing courts of s5(2H)(e) of the Sentencing Act 1991. As I have stated, whilst previous sentencing decisions are to varying degrees of some assistance, ultimately it is a matter for me as to whether the relevant criteria is met.
61After giving this matter careful consideration, I have concluded that the circumstances of your case are substantial and compelling. I have also concluded that they are exceptional and rare. The circumstances, which apply equally to each step in the relevant analysis, in combination warranting these findings are as follows:
(a) your youth and immaturity;
(b) your personal circumstances and history, including your difficult early life and struggles with mental health issues from a young age;
(c) your lack of prior criminal convictions;
(d) your poor mental health at the time of the offending, including your then undiagnosed Major Depressive Disorder, Post-traumatic Stress Disorder, generalised anxiety disorder, and intellectual impairment;
(e) your Aboriginality, and positive participation in the Koori Court sentencing conversation. It is a sad but undisputable fact that some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody, the Aboriginal community remain significantly overrepresented in the custodial setting. As recently as last week, the Premier of this State, in a letter to the Yoorrook Justice Commission, referred to the source of great shame that First Nations Peoples continue to be over-represented in the criminal justice system, and referred to the discrimination and mistreatment endured by this community in the criminal justice system.[27] As acknowledged by both counsel in this matter, the intergenerational trauma brought about by colonisation, in particular the trauma associated with separating Aboriginal people from their children, has wreaked havoc on the Aboriginal community, and its effects are inexorably linked to the over representation of Aboriginal people in custody. The Court of Appeal has recently highlighted the overriding duty of courts to be conscious of the need to avoid compounding Aboriginal incarceration rates, unless there is a good reason for doing so.[28] In recognition of this, the Koori Court represents a significant attempt to ameliorate the disadvantages caused to Aboriginal offenders, and seeks to facilitate meaningful participation in the court process, and appropriate sentencing responses to offending. The sentencing conversation is a centrepiece of the Koori Court model, bringing a culturally safe and appropriate component to the sentencing process. Whilst to date, there is, as far as I can see, an absence of appellate authority on the issue, I have concluded that it is appropriate to consider the aspect of your Aboriginality, and participation in the Koori Court sentencing conversation, when considering the 'substantial and compelling/exceptional and rare' exception. Justice Kaye, in a paper entitled, 'The Complexity of Sentencing Koori Offenders' (October 2013) referred to the degree of difficulty in exercising a sentencing discretion for Indigenous offenders, and referred to the need for, 'the sentencing discretion (to) be exercised in a just, humane and appropriate manner…. for far too long, the legal system has been an instrument of oppression and injustice to our indigenous people. It is of the utmost importance that it now be part of the solution, rather than a contributor to the ongoing problem.'[29] In exemplary written submissions on behalf of the Director, Mx Van Dyk essentially acknowledged these sentiments, and on behalf of the Prosecution submitted that a person's Aboriginality be accorded significant weight as one of the cumulative factors relied upon to reach s 5(2H)(e) of the Sentencing Act 1991. Particularly for a young Aboriginal offender with the personal history and impairments to which I have referred, your outstanding participation in the sentencing conversation, in my view, is emblematic of both the phrase, "substantial and compelling" and the phrase "exceptional and rare."
(f) a level of remorse that is both genuine and highly unusual, as evidenced through your early plea of guilty, letter to your victim, the opinion of psychologist Gina Cidoni, and your participation in the Koori Court sentencing conversation;
(g) your hardship in custody to date, given your particular circumstances;
(h) the hardship that would necessarily result from any sentence of imprisonment or youth detention, given your personal circumstances and psychological makeup, your cognitive deficits, the separation from your young son and following the birth of your second child later this year, together with the well-known but unprecedented impacts of COVID-19 in the custodial setting;
(i) your outstanding rehabilitative progress overall whilst subject to bail for a sustained period of time and for some eight months whilst essentially subject to supervision from this court following your plea hearing on 9 September 2022. Within that period, you have been subject to, and largely compliant with, a period of deferral pursuant to s83A(3) of the Sentencing Act 1991. Also within this period, you have spent 137 days in residential rehabilitation at Bunjilwarra, pursuant to a grant of bail, and this has necessarily involved substantial restrictions upon your liberty. Whilst not completely linear, in all the circumstances I regard your rehabilitative progress as transformative;
(j) the availability and current utility of a comprehensive treatment, supervisory, and rehabilitative regime currently in place for you, including Bunjilwarra Rehabilitation and Healing Centre, the Victorian Aboriginal Health Service, NDIS, and of course the prosocial environment provided by your family and partner – in my view you are at a critical stage in your rehabilitative progress. You have been assessed as suitable for a Community Correction Order, with various targeted recommendations made by Corrections. Given your intellectual disability, you have been found suitable for a Justice Plan to be attached to a Community Correction Order. Returning to the disability overview report to which I earlier referred, an NDIS planning meeting between all relevant stakeholders including Bunjilwarra took place on 5 December 2022, where your goals and relevant supports were discussed. Further information with regards to the plan of services available through Disability Justice was provided today in the letter from Anne-Marie Beckett of Octagon Disability Support dated 27 April 2023, Exhibit U at your hearing. On 7 February 2023 an Aboriginal disability advisor at the Department of Justice and Community Safety confirmed that appropriate linkages with services were available pursuant to a Justice Plan. I am satisfied that at this critical stage in your rehabilitation, the community will be best protected through meaningful rehabilitation in this comprehensive fashion, and that removal of you from these established supports to a custodial environment would be catastrophic to you and ultimately contrary to the community's interests.
[27] Daniel Andrews, Letter to Professor Eleanor Bourke preceding ‘Victorian Government Submissions to the Yoorook Justice Commission’ dated 28 April 2023.
[28] HA (a pseudonym) v The Queen [2021] VSCA 64 at [59].
[29] Justice Stephen Kaye, ‘The Complexity of Sentencing Koori Offenders’, (Judicial College of Victoria, October 2013) at paragraph [43].
62As should be clear from my preceding remarks, I have concluded that a custodial sentence is not required in your case. Your offending of course was extremely serious and for that you must be appropriately punished. I must denounce your conduct and deter others from engaging in such serious criminality. I have concluded in all the circumstances that these sentencing purposes, together with the need to facilitate your rehabilitation can best be met through a combination sentence involving a term of imprisonment not exceeding time served to date in combination with a Community Correction Order.
Sentence
63On the three charges on the indictment, you are convicted and sentenced to 18 days' imprisonment. Pursuant to s18(4) Sentencing Act 1991 I declare a period of 18 days has been served by way of pre‑sentence detention. Furthermore, I order that you undergo and complete a Community Correction Order, the terms of which will be as follows:
(1)
a)Length – 18 months, commencing today, 2 May 2023 and ends on 1 November 2024.
b)You must attend at the Werribee Community Correctional office within two clear working days after the commencement of this order.
c)The mandatory terms that apply to all Community Correction Orders are you must not commit another offence for which you could be imprisoned during the time the order is in force.
d)You must comply with any required obligations.
e)You must report to and receive visits as appropriate.
f)You must report to the community Corrections centre that I have just described within two clear working days of today.
g)You must let a Community Corrections Officer know within two clear working days of you changing your address or your job. Let me repeat that. You must let a Community Corrections Officer know within two clear working days of you changing your address or your job, so if you move, you must let them know within two days.
h)You must not leave Victoria, without first getting permission.
i)You must obey all lawful instructions and directions.
(2) In addition to those mandatory core conditions, the additional conditions that apply to this Community Correction Order are as follows:
a)You must perform 200 hours of unpaid community work over the 18 months that the order is in force.
b)You must be under the supervision of a Community Corrections Officer for the period of 18 months.
c)You must comply with a number of treatment and rehabilitation conditions.
a.You must undergo assessment and treatment including testing for drug abuse or dependency, as directed.
b.You must undergo assessment and treatment including testing for alcohol abuse or dependency, as directed.
c.You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed.
d)You must participate in programs, courses that address factors related to the offending, as directed.
e)I order that 50 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
f)You must participate in the services specified in a Justice Plan for a period of 18 months.
g)You must comply with Judicial Monitoring with the first judicial monitoring hearing to take place on Thursday 22 June at 2.15 pm. What judicial monitoring is, is this, put simply. Regularly you will come back to court and appear before me and I will monitor your progress on this order. You can probably appear by video on the next occasion rather than coming into court, but I want to keep an eye on you and your progress on this order. If you are not progressing well there can be pretty immediate consequences with regards to this Community Correction Order.
64So I have given you a lot of information over the past hour and I am sorry that it has taken so long to get to this critical point. The bottom line is this, you are not going back to gaol, you are staying in the community and I am giving you a Community Correction Order with a number of conditions on it, and I have just read out all of them to you.
65It will involve a number of appointments, a number of times regularly where you have got to liaise with people and stay in touch with people, a lot of requirements for you to not do things, and a lot of requirements for you to do things. If you do not comply with this order and have no reasonable excuse you can be charged for breaching the order, and what that means is that you come back before me on a breach hearing.
66On a breach of CCO hearing I can gaol you for up to three months for the charge itself. More importantly I can cancel the order and I can resentence you and you have already heard me tell you just how serious the offending is, and the maximum penalties. Knowing all of that, do you agree to comply with this Community Correction Order?
67OFFENDER: Yes, I agree Your Honour.
68HIS HONOUR: You understand the consequences if you do not follow this order?
69OFFENDER: Yes.
70HIS HONOUR: All right. Mr De Witt, I am inclined to stand down just to give you an opportunity to speak with Mr Garcia, just to make sure - although he has verbally acknowledged it there is a lot in this order - just to make sure that he is giving informed consent to the order.
71MR DE WITT: Thank you, Your Honour.
72HIS HONOUR: Before I do that are there any issues, ambiguities, procedural matters? Have I got anything wrong with regards to this order?
73Mr DE WITT: Nothing wrong, Your Honour, just a 6AAA declaration.
74HIS HONOUR: Yes, thank you. Mx Van Dyk, anything wrong with the order before I give a 6AAA?
75MX VAN DYK: No, Your Honour.
76HIS HONOUR: Can you take a seat, Mr Garcia, for a moment.
77Pursuant to s6AAA of the Sentencing Act 1991 I declare that had you pleaded not guilty but been found guilty with regards to the charges on the indictment, I would have imposed a total effective sentence of a three year Youth Justice Centre Order.
78Are there any ancillary orders in this matter?
79MX VAN DYK: It's been so long now - - -
80HIS HONOUR: None filed.
81MX VAN DYK: - - - I think that we might have done those for the co-accused - - -
82HIS HONOUR: Yes. There's none filed in this matter so - - -
83MX VAN DYK: That's right, thank you.
84HIS HONOUR: Yes I am just going to stand down for a minute. Mr De Witt, if you could perhaps particularly emphasise the Justice Plan component, given that it's a bit unusual.
85MR DE WITT: Thank you, Your Honour.
86(Short adjournment.)
87HIS HONOUR: Mr De Witt, I understand you have had a chance to speak with your client and he's signed the order.
88MR DE WITT: I have, Your Honour.
89HIS HONOUR: Good, excellent.
90MR DE WITT: I have taken him through the conditions and I am satisfied he understands.
91HIS HONOUR: Thank you. All right, thanks, I have signed that order so the parties will get a copy of it immediately. Obviously Mr Garcia will as well. So that concludes the hearing, Mr Garcia. Your next commitment with regards to the court is to appear at 2.15 pm on Thursday 22 June. What happens is I get a progress report from Corrections before then, and Disability Justice I assume, just to see how you are going, so if there are any problems I will hear about them. So can I wish you well on this order and I sincerely hope the next time I see you, I am talking to you about a positive progress report on this order. Don't forget how serious this offending was and how lucky you are to be on this order. It was not the penalty that I was going to give you initially, so I have changed my mind because of the things that you have been doing at Bunjilwarra and with everyone else, but be under no illusions, if there's problems with compliance with this order there will be big consequences. Do you understand?
92OFFENDER: Yes, Your Honour.
93HIS HONOUR: All right, yes, thanks.
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