Director of Public Prosecutions v Gardiner
[2023] VCC 1297
•25 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00141
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAESAR GARDINER |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 June 2023 |
DATE OF SENTENCE: | 25 July 2023 |
CASE MAY BE CITED AS: | DPP v Gardiner |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1297 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated carjacking of a ride share driver with a knife – Use of ride share drivers money to obtain property and financial advantage by deception – subject of a community correction order at time of offending – sentencing principles of specific deterrence and protection of the community relevant – relevant criminal history – diagnosis of mild intellectual disability – youthful offender – unfavourable signs of rehabilitation – application of Verdins factors – plea of guilty – consideration of s 5(2H)(c)(i) of the Sentencing Act – satisfied exception applies
Legislation Cited: Sentencing Act 1991; Disability Act 2006
Cases Cited: R v Verdins [2007] VSCA 102; Azzopardi v R [2011] VSCA 372
Sentence:34 months’ imprisonment. Non-parole period of 17 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Ellwood | Office of Public Prosecutions |
For the Accused | Ms J. Swiney | Greg Thomas Barristers and Solicitors |
HIS HONOUR:
Introduction
1Caesar Gardiner, I propose to sentence you to a total sentence of 34 months' imprisonment. I will set a non-parole period of 17 months' imprisonment. I will declare your 314 days of pre-sentence detention as time served under my sentence and that excludes today.
2I will now explain how I reached those sentences. My explanation will involve the charge of aggravated carjacking to a significant extent. Apart from carrying a maximum penalty of 25 years' imprisonment, it also involves the fixing of a non-parole period of at least 3 years' imprisonment unless there is a special reason not to do so.
3You pleaded guilty to 5 charges on the indictment and 2 summary charges. The other 4 charges on the indictment involve you obtaining property or a financial advantage using a credit card or attempting to do so.
Circumstances
4In the early hours of 9 September 2022, you and a friend hired a Didi ride share vehicle to take you to where you lived in Craigieburn. After about 28 minutes of the trip, the driver pulled over at your request. You got out of the back seat, got into the front seat and produced a knife. You demanded and received the driver's mobile phone, an Apple Airpods, car keys and $20 in cash. You raised the knife, placing it closer to the driver's face, told him you would kill him and demanded the car. The driver grabbed your hand which held the knife and using the other hand escaped from the car. You got into the driver's seat and drove away. These circumstances constitute Charge 1, aggravated carjacking.
5Since you were disqualified from obtaining a licence or permit to drive a motor vehicle at the time, and you drove, that constitutes the summary charge of driving while disqualified.
6At about midday on the same day, you used the driver's credit card to buy $15.95 worth of food. This constitutes Charge 2, obtaining property by deception.
7Later on the same day, you used the same card to make a $20 payment. This constitutes Charge 3, obtaining a financial advantage by deception.
8On 9 September, you tried to obtain property worth $59.40 using a DoorDash service. This is Charge 4, attempting to obtain property by deception.
9On the same day, you attempted to use the same credit card to get $40 in credit for a communication service. This is Charge 5, attempting to obtain a financial advantage by deception.
10On 11 September, the police found the driver's car. It was significantly damaged.
11On 14 September, the police searched your home. They found various documents belonging to the driver as well as other persons. These documents are listed in paragraph 18 of the prosecution's opening. Among them were a Victorian driver licence in the name of Boushra Algajari and a proof of age document in the name of Hannah Hunt. These circumstances constitute the rolled-up summary charge of dealing with property suspected of being the proceeds of crime.
12You were arrested that day and when interviewed, you gave 'no comment' answers. You have remained in custody since 14 September 2022.
13At the time of these offences, you were the subject of a community correction order of 18 months' duration and imposed on 16 December 2021. Also, at the time of committing these offences, you were 20.
Criminal history
14Between 21 February 2020 and 15 May 2022, you have appeared in this Court, the Magistrates' Court and the Children's Court on 7 occasions and have been found guilty or convicted of 64 charges. You have been sentenced to imprisonment on 3 occasions with your longest sentence being 8 months imposed in this Court for armed robbery. This sentence was coupled with the community correction order I have just mentioned.
15Apart from the charge of armed robbery, your criminal history includes charges of assault, threat to kill, assault with a weapon, robbery and attempted robbery. Plainly, specific deterrence and protecting the community from you are important sentencing purposes.
Personal
16You are now 20. You were born in Adelaide of West African parents. Your mother came from Sierra Leone and your father from Liberia. You have an older sister.
17When you were 13, your parents separated. Your mother and sister left Australia for Ghana. You stayed with your father. Since the separation you have had little contact with your mother and sister.
18Your father remarried. You now have two half‑brothers, aged 11 and 13 and a stepsister, aged 21. Your relationship with your father deteriorated, so much so, that you are the respondent to a family violence intervention order where your father is the affected family member. Nevertheless, you say your father supports you.
19In 2020, you started to live in supported accommodation in Reservoir. It came as a surprise to you that this form of accommodation is intended for persons with a disability.
20After serving a sentence of eight months' imprisonment, you went to live with your father for a short time and then at hotels, motels, a refuge and a shared house in Craigieburn. This was found for you by your NDIS worker. You were there for about four weeks before your arrest for these offences.
21Your secondary education has been turbulent. You were expelled from two secondary schools. You were last at school in December 2018. It is unclear what level of schooling you achieved.
22Since school, you have worked briefly as a construction worker and a furniture removalist.
23You have had one relationship which ended in February 2021 after 18 months.
24Your drug usage followed the end of your relationship. It involved alcohol, cannabis, cocaine, methylamphetamine and Xanax, with Xanax and methylamphetamine the drugs used before your remand in custody.
25On 16 October 2019, a statement of intellectual disability was issued by the Department of Health and Human Services.
26You receive NDIS funding. Presumably, this funds your disability advocate, Andrew Minge. He is a social worker, employed by the Victorian Advocacy League for individuals with Disability. In his letter, dated 5 May 2023, he believes you are remorseful and have insights into your offending. Once released from prison, you intend to continue receiving advocacy support from this organisation.
27At present you are in Port Phillip Prison and held in behavioural management. You have had difficulties with other prisoners. You are struggling to cope with the isolation of that form of detention.
Psychologist
28Gina Cidoni is a psychologist. At the request of your solicitors, she interviewed you on 31 May and 6 June 2023. She had previously interviewed you in April 2019 and October 2021.
29At her request, you undertook various tests, the results of which and her clinical examination of you enabled her to say:
a)you have a mild intellectual disability. She used DSM-5 to categorise the level of your disability as mild;
b)your ability to function is impaired and affects your performance of daily tasks, understanding complex information and making appropriate decisions;
c)the combination of your intellectual disability, personality and psychological disorders and substance use adversely affected your cognitive functioning, social behaviour, mental well-being, attention and impulse control and substance misuse;
d)your ability to understand consequences and make sound judgments is reduced. You engage in anti-social behaviour because of your disregard of the rights and feelings of others;
e)your intellectual impairment reduces your ability to fully comprehend the implications of your actions and exercise sound judgment. This contributed to your offending;
f)you are a higher risk of violent re-offending;
g)you are a management prisoner because of your youth, cognitive and adaptive limitations and impulsivity;
h)your isolation, sanctions and restrictions in prison intensify your feelings of loneliness, frustration and hopelessness which weaken your mental well-being.
30In order to assess your intelligence, Ms Cidoni was only able to administer 4 out of 8 to 10 subtests of a particular test. This resulted in her evaluation of your cognitive functioning only. Your verbal reasoning (including concept formation) was extremely low with only 1 per cent of your peers performing worse than you. Your ability to sustain attention and exert mental control was in the low average range with 87 per cent of your peers performing better than you.
31In April 2019, Ms Cidoni was able to find your full-scale intelligence quotient was 60. That is, it was in the extremely low range with 99 per cent of your peers scoring higher than you.
32In paragraph 86 of her report, she says:
'His overall cognitive functioning is significantly impaired, affecting his insight, judgment, and impulse control. His limited cognitive capacity impacts his ability to navigate daily tasks, comprehend complex information, and make appropriate decisions….'
33Again, at paragraph 90 of her report, she says:
'Mr Gardiner's offending should be considered in light of his diagnosed cognitive and clinical/personality conditions. With a mild ID [which is intellectual disability], his cognitive functioning is impacted, which affects his ability to understand consequences and make sound judgments…'.
34Although your other disorders assist in explaining your offending the legislation requires and Ms Cidoni has addressed the impact of your intellectual impairment on your offending.
35You told Ms Cidoni of your drug use after your release from custody in May 2022. It consisted of daily use of methylamphetamine and occasional use of Xanax. In paragraph 92 of her report, she noted the effect of substance abuse upon judgment, risk-taking behaviour, inhibitions, mental health issues, impulsivity and cognitive functioning.
36Broadly, Ms Cidoni recommended treatment for your mental health and substance abuse, assistance for your social skill development, supervision and connecting with community services.
Discussion
37Each of the purposes for which sentences may be imposed is relevant in your case. I will discuss the purposes of just punishment, general and specific deterrence and denunciation when I come to discuss the propositions stated in the case of R v Verdins[1].
[1] [2007] VSCA 102.
38S 5(2) of the Sentencing Act 1991 sets out matters which I must consider where they are relevant to you.
Maximum penalties
39First, the maximum penalties for the offences to which you have pleaded guilty are:
a)aggravated carjacking – 25 years' imprisonment;
b)obtaining property by deception and obtaining a financial advantage by deception, each has a maximum penalty of 10 years' imprisonment;
c)attempting to obtain property by deception and attempting to obtain a financial advantage by deception, each has a maximum penalty of 5 years' imprisonment;
d)driving while disqualified – 2 years' imprisonment or a fine of 240 penalty units;
e)dealing with property suspected of being the proceeds of crime – 2 years' imprisonment.
Nature and gravity
40You entered the victim's vehicle armed with a knife. You asked a friend to arrange the hire of the Didi vehicle under the name of 'Tim'. Your name is not 'Tim'. The destination was the address of the place where you were living, 3 Flaubert Road Craigieburn. This was assisted accommodation. I would not interpret these facts as indicating you planned your actions before entering the vehicle. You took advantage of an opportunity despite being armed with a knife beforehand. The primary offence was committed at night. Drivers of these vehicles are generally vulnerable, as is the case with your victim. You threatened him with the knife. You threatened to kill him.
41Unfortunately, this is common example of the offence of aggravated carjacking. I cannot ascertain the effect of your actions on the victim because there is no victim impact statement. I daresay the victim was frightened. However, he had the presence of mind to seize your hand holding the knife and effected his escape using the other hand. Whatever fear he had, did not prevent him taking those actions.
42The remaining charges, including the summary charges, contain the type of offences routinely heard in the Magistrates' Court.
Youth
43As I said, you are 20 now. You are a youthful offender. I will quote passages from the judgment of Redlich JA in Azzopardi v R[2]. They are lengthy but I will not summarise them for doing so tends to undervalue the strength of the propositions. They apply to you[3]:
[2][2011] VSCA 372.
[3] [2011] VSCA 372 at [34] to [36].
'There are a number of considerations which underlie the general primacy of an offender's youth as a sentencing consideration. Firstly, young offenders being immature are therefore "more prone to ill-considered or rash decisions". They "may lack the degree of insight, judgment and self-control that is possessed by an adult". They may not fully appreciate the nature, seriousness and consequences of their criminal conduct…
Secondly, courts "recognize the potential for young offenders to be redeemed and rehabilitated". This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, "is one of the great objectives of the criminal law". The added emphasis for the purposes of sentencing on realisation of a young offender's potential to be rehabilitated is further justified because of the community's interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending… '
'Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult imprisonment on a youthful offender has adverse flow-on consequence for the community.'
44These are important considerations when sentencing youthful offenders like you.
45You told Ms Cidoni and Mr Minge you are sorry for your offending. Given your psychological makeup, at this stage, I doubt your sorrow can be successfully translated into a determination not to re-offend. This is reinforced by Ms Cidoni's assessment you are a higher risk of re‑offending violently. But there is potential for your rehabilitation. Despite the unfavourable signs, I should attempt to encourage the potential for rehabilitation to occur.
Verdins
46You rely on all of the factors stated in the case of R v Verdins[4]. I will read out each of the 6 factors and say whether they apply to you or not. Wherever I use the word 'condition', it refers to your impaired mental functioning:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
[4] [2007] VSCA 102.
47Ms Cidoni combined the effects of your intellectual impairment, psychological and personality states. In a passage I quoted earlier[5]:
'His overall cognitive functioning is significantly impaired, affecting his insight, judgment, and impulse control. His limited cognitive capacity impacts his ability to navigate daily tasks, comprehend complex information, and make appropriate decisions….'
[5] At [86].
48Insight refers to your inability to foresee the consequences of your actions. Your lack of judgment means your decisions are poor. Those factors reduce your moral culpability and the degree to which my sentences can reflect the purpose of denunciation.
2. The condition could have a bearing on the kind of sentence that was imposed and the conditions in which it was to be served.
49Your counsel submits you should be assessed for an extension of the Justice Plan and a Youth Justice Centre order and a community correction order. Your condition is a factor in deciding what kind of sentence should be imposed. Although it is not such to cause me to adopt the course she proposes. Your offending is too serious for that course.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
50 Although your intellectual disability is described as mild for the purposes of DSM-5, to a lay person, it is very significant. As Ms Cidoni pointed out, 99 per cent of your peers achieve a better full scale intelligence quotient than you. That, and you other difficulties, means very few persons would identify with you and be deterred by the sentences I will impose. General deterrence should be moderated.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentencing or both.
51Ms Cidoni's assessment of your risk of re-offending emphasises the sentencing purposes of specific deterrence and protecting the community from you. Her assessment is partly derived from your criminal history, which is extensive and serious for someone of your age. At the time of your offending, you were about 9 months into your community correction order. Plainly, whatever services provided to you under the order did not prevent you from re-offending.
52The effect of your mental impairment at the time of offending is outweighed by the need to deter you from re‑offending in the same or a similar manner.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
53 You have had difficulties with other prisoners. This has led to isolation. Ms Cidoni sees your limitations as contributing to your present state in prison. This proposition is applicable.
6.Where there was a serious risk of imprisonment at the date of sentencing having a significant adverse effect on the offender's mental health, this factor would tend to mitigate punishment.
54 Ms Cidoni discusses the effect of imprisonment upon you in paragraph 99 of her report. She sees a worsening of your mental health state but her language is insufficiently strong for me to find this factor has application in this case.
Guilty pleas
55 Your guilty pleas were indicated, and subsequently entered, at an early stage in this proceeding. They may evidence your remorse but I cannot say, at present, whether your remorse will result in a determination to change.
56By pleading guilty you have taken responsibility for your offending. Your guilty pleas have the practical effect of assisting the criminal justice system by making space for those proceedings which genuinely require a trial. Even though the problems caused by the virus to the criminal justice system have waned, they have not disappeared. Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times.
57In this Court, many trials are lengthy, some occupying months. Even shorter trials tend to take at least a week. The longer the trial avoided, the greater the practical benefit to the criminal justice system. Even a short trial has considerable benefit when one recalls the resources involved in assembling a jury.
Special reason
58The offence of aggravated carjacking is a Category 1 offence under the Sentencing Act. It requires the imposition of a minimum non-parole term of 3 years' imprisonment unless you establish a special reason. Of the possible special reasons, you rely on the one set out in s5(2H)(c)(i), which provides that at the time of your offending, you seek to establish you had impaired mental functioning which is causally linked to the commission of the offence and substantially and materially reduced your culpability. Since you have an intellectual disability within the meaning of the Disability Act 2006, you have impaired mental functioning.
59Ms Cidoni's report establishes your impaired mental functioning was causally linked to the commission of the offences and substantially and materially reduces your culpability. I am satisfied the exception applies.
60Having a full-scale quotient of 60 does not, of itself, reduce your culpability. Ms Cidoni has described how it affects you in various ways. Ultimately, it affects your judgment in such a way that you make truly unsound judgments. The effect of your intellectual disability on your cognitive ability does reduce your culpability from a high level. Your intellectual disability substantially and materially reduces your culpability.
61There is an exception to this exception. Section 5(2HA) excludes the impaired intellectual function caused substantially by self-induced intoxication. There is nothing of value to raise this exclusion. Ms Cidoni took a history of drug usage following your release from custody in May 2022. It involved heavy use of methylamphetamine. However, there was no history taken of your drug use immediately preceding your offending. You were not arrested until 5 days after the last of your offences. There appears to have been no reluctance of the police to interview you due to your state then. There is no legitimate basis to find the exclusion applies.
62I am not obliged to impose a non-parole period of at least 3 years' imprisonment.
Sentence
63On Charge 1, a charge of aggravated carjacking, I will sentence you to 32 months' imprisonment.
64On Charge 2, a charge of obtaining property by deception, I sentence to two months' imprisonment.
65On Charge 3, a charge of obtaining a financial advantage by deception, I sentence you to two months' imprisonment.
66On Charge 4, a charge of attempting to obtain property by deception, I sentence you to one months' imprisonment.
67On Charge 5, a charge of attempting to obtain a financial advantage by deception, I sentence you to one month's imprisonment.
68On summary Charge 9, a charge of driving while disqualified, I sentence you to one month's imprisonment. Having sentenced you to imprisonment on that charge, I will not interfere with your ability to drive.
69On summary Charge 11, a rolled-up charge of dealing with property suspected of being the proceeds of crime, I sentence you to one month's imprisonment.
70The base sentence is the sentence on Charge 1. One month of the sentence on Charge 2 and the sentence on summary Charge 9 are to be served cumulatively upon themselves and the base sentence. The remaining sentences are to be served concurrently. The total effective sentence is 34 months' imprisonment. I will set a non‑parole period of 17 months' imprisonment.
71You were arrested on 14 September 2022 and have remained in custody since then. Excluding today, you have been in custody for 314 days. I will declare those days as time served under my sentences.
Section 6AAA
72If you had pleaded not guilty to these charges but were found guilty after a trial, I would have sentenced you to a total sentence of 45 months' imprisonment.
Disposal order
73I will make the disposal order in the terms sought.
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