Director of Public Prosecutions v George
[2023] VCC 274
•22 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00457
CR-22-01330
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KALEM GEORGE |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 October 2022 |
DATE OF SENTENCE: | 22 February 2023 |
CASE MAY BE CITED AS: | DPP v George |
MEDIUM NEUTRAL CITATION: | [2023] VCC 274 |
REASONS FOR SENTENCE
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Subject: Criminal Law. Sentence upon plea of guilty.
Catchwords: Attempted Theft - Aggravated Burglary - Theft - Attempted robbery -
Damaging property - Dangerous or negligent driving while pursued by
Police - Recklessly exposing an emergency worker to risk by driving -
Aggravated carjacking with an offensive weapon - Possession of a drug of
dependence - Unlawful assault - Unlicensed driving - Drive in a manner
dangerous - Commit indictable offence whilst on bail - Contravene a
conduct condition on bail - Possess cartridge ammunition without licence -
Covid-19 delay - Youthful offender - Lack of remorse - Deprived childhood
- History of mental health difficulties - Drug and alcohol abuse - Limited
prior criminal history - Prospects of rehabilitation.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited: Sabbatucci v The Queen [2021] VSCA 340; Worboyes v The Queen [2021]
VSCA 169; Bugmy v The Queen [2013] 249 CLR 571; Marrah v R [2014]
VSCA 119); Mills v R [1998] 4 VR 235; R v Verdins [2007] VSCA 102; McKay
v The King [2023] VSCA 8; DPP v Cox [2021] VCC 1942 [No 2]; DPP v
Roberts [2020] VCC 1195; DPP v O'Sullivan [2020] VCC 1449; DPP v Reid
[2020] VSCA 247; Nelson v The Queen [2020] VSCA 219.
Sentence: Total Effective Sentence of 6 years imprisonment with a non-parole period of 3
years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten | Ms C. Bristow |
For the Accused | Mr A. Jackson | Mr A. Lewin |
HIS HONOUR:
1Kalem George, you have pleaded guilty to an indictment M121420689, which alleged 15 offences committed on the 11th day of October 2021, over a period of about 10 hours. You also pleaded guilty to five related summary offences also committed in that period. You also pleaded guilty to a second indictment N10710063, which contained three charges committed on 9 April 2022. You also pleaded guilty to four related summary offences also committed at that time, about which the second indictment is concerned.
2The circumstances of the offence are described in two prosecution opening summaries, which were exhibited, which are agreed facts pertaining to each offence and your course of conduct, which are not disputed by the defence and I will recite the circumstances in summary form.
3On 11 October 2021, just after 11 pm, you attended Latrobe University campus, Bendigo. You went to the carpark and approached a blue Toyota Camry, which was parked there. You opened the front passenger side door, got in the driver's seat and attempted to hotwire the car. You were unable to get the vehicle started and that is the basis of Charge 1 on the indictment, attempted theft.
4You got out of the car, pushed the vehicle backwards out of the parking space and tried to get back in the driver's seat. The car rolled forward and you ran away from it. The car collided into the rear of a Corolla that was parked nearby. You left the area on foot. Security officers conducting a patrol of the area found the collided vehicles. Police were notified to staff at 1 am. When the police arrived whilst speaking to security, you and a co-offender Flavell were observed approaching the carpark and on sighting police, you ran from the area.
5Later, about 3 am, you and Flavell attended a residential premises in Kennington. Two of the residents were asleep inside. Their vehicles were parked out the front, a Toyota Landcruiser and a Nissan Navara. You and Flavell entered the residential address through an unlocked front door, the basis of Charge 2, aggravated burglary. You stole keys to the Landcruiser from a kitchen counter and once outside, you rummaged through the Nissan Navara, which was unlocked and stole a number of items from it: a baseball cap, a trucker's cap, sunglasses, a radio mouthpiece and bungee cord.
6You also entered the Landcruiser, which was fitted with a GPS. You revved the engine loudly, having started it. The occupants heard that and they ran outside and saw the Landcruiser as it headed away, Charge 3 of theft, together with the items stolen from the Navara. You did a U-turn at the end of the court, drove back past the address and out.
7Police members in a police car saw the stolen vehicle and activated lights and siren in their marked car, to intercept you, but you made an illegal turn and accelerated to 80 kilometres an hour in a 60 zone. Police deactivated the lights and sirens and did not proceed with a pursuit at that time. A little later, at 3.35 pm, you and Flavell drove the Landcruiser to Kyneton.
8You stopped outside a cyclone fence gate at a commercial premises, turned the headlights off and then deliberately drove through the fence, that is the basis of Charge 4, criminal damage. You then stopped beside an Iveco truck belonging to that business. One or other of the two of you got out of the vehicle and was captured moving between the Landcruiser and the driver's side of the truck, but you could not get access to the truck. That is the basis of Charge 5, attempt at theft. After a few minutes, the Landcruiser was reversed back and driven out of the gate.
9At 4.49 am that morning, Mr Raymond Cini parked his Pulsar in the driveway of industrial premises in Keilor Park, took his keys from the ignition, went up to the gate, began to unlock the front gate. Flavell drove the Landcruiser to a stop just behind the Nissan Pulsar. You got out of the passenger seat of the Landcruiser, ran to the driver's side door of the Pulsar and entered the vehicle. When Mr Cini saw this, he ran a short distance from the car in fear. You saw that the keys were not in the ignition, so you got out and chased after him, yelling, 'Give me your keys. Give me your fucking keys.'
10Mr Cini complied, throwing the keys over towards you. You got back in the driver's seat of the Pulsar, started the car and revved the engine loudly. Flavell was still in the driver's seat of the Landcruiser and he was yelling out to you, 'Put it into drive.' You reversed the Pulsar and you both drove away. There were a number of items inside the Pulsar. Charge 6 on the indictment is theft of the Pulsar and a number of items that were inside the Pulsar when it was taken.
11Just before 5 am, Mr Flavell drove the Landcruiser and you drove the Nissan south on Keilor Park Drive in Keilor Park. Approaching the Tullamarine Park Road, the Nissan collided into the rear of the Landcruiser, which came to a stop at the centre of the roundabout. The Nissan Pulsar driven by you came to a stop nearby. You got out, got into the Landcruiser and the pair of you drove away, but you came back a minute or so later. You got out with a torch and began rummaging through the contents of the Pulsar. You then got back into the Landcruiser and left in that car, leaving the Pulsar at that place.
12At 7.25 that morning, the two of you drove to an address in Harkness in the Landcruiser. You stopped the vehicle at the end of a close, next to a parked taxi, a Ford Territory, belonging to Mr Gebremariam. You got out and smashed the driver's side front and rear windows of the Ford Territory, that is the basis for Charge 7, criminal damage and stole some items from it: a suitcase containing various items, an EFTPOS machine, that is Charge 8.
13A neighbour heard the glass smashing, saw you moving and Flavell leaning into the driver's window of the Territory. She yelled out, 'Stop, get out of it' and began making a video recording of what Mr Flavell was doing. Flavell then drove towards the woman, stopped the Landcruiser abruptly and you are shown sticking your middle finger up at her with a gloved right hand. Flavell yelled out, 'Get out, she's filming. Get her phone.'
14The woman stood behind an Astra vehicle, which was parked in the street. You got out of the Landcruiser with a long metal bar and struck the windscreen of the Astra, smashing it, Charge 9, criminal damage. The woman screamed 'help', after which you both got in the vehicle and drove off. The woman's video recording shows you wearing a black baseball cap, a black hooded jumper with the hood up, surgical mask and a blue glove on your right hand. Flavell had a black top covering his head.
15At 8 am that morning, a man walking in Hopetoun Park saw Flavell driving the Landcruiser and you, a passenger. You stopped next to the man, who was walking. You opened the window and yelled out, 'Give me your wallet and everything you have.' The man denied having anything with him. You yelled, 'Give me fucking what you have', Charge 10, attempted robbery. The man ran behind the Landcruiser, crossed the road and ran up the driveway of a nearby residence. CCTV footage from that address shows the Landcruiser following him into the driveway and continuing towards him. He ran into the rear yard to try and find help. Flavell finally reversed and drove away.
16Shortly after that, at ten past eight in the morning, Mr Flavell and you attended an address in Hopetoun Park, still in the Landcruiser. At that address, a man was asleep inside. His Toyota Kluger was parked in the garage, with his wallet inside and the keys in the ignition. You and Flavell damaged the security door at the rear of the garage to get access into it. The garage and house are all one building and so you entered it, Charge 11, aggravated burglary with person present.
17You opened the garage roller door, moved the Kluger to the front and then
you went inside the house through an internal access door from the garage, rummaging through each room, damaging property, stealing numerous items and putting them in the vehicle, namely house keys, an Apple Mac desktop computer and other computer equipment, speakers and tools.
18The man who was asleep on the couch in the living room at the time awoke by a smashing sound and found the two of you running through the house. He ran after you to the theatre room where you used a metal bar from a speaker tripod to strike him first to the head and then his shoulder. That is one of the summary offences, no.17, assault with a weapon.
19The man fell to the ground as a result of the assault. The offenders ran towards the garage. The man chased after you, but you got into the vehicle. You got into the Landcruiser, and Mr Flavell into the Kluger, and you left, Charge 12, theft of the Kluger.
20A photograph of the man's head taken by police shows a lump on his head behind his right ear and a red welt on the back of his shoulder. The two of you have left the premises in separate vehicles at this point, and Mr Flavell was separately the subject of a police pursuit, at the end of which he was arrested. I will come to more details about that in a moment.
21What follows chronologically involves you on your own. At 9.20 am that morning, 12 October, you drove the Landcruiser to Woodgrove shopping centre in Melton West. There you crashed into a fence at the entrance near a Hungry Jack's, reversed back, nearly colliding with a truck, and this is the start of what is charged as summary offence 30, drive in a manner dangerous.
22It continued at 9.23 am when you drove the Landcruiser through the car park of the shopping centre at a fast rate of speed. You were airborne going over a speedhump, lost control of the vehicle in the car park, crashed into a trolley bay adjacent to a seating area and a pedestrian crossing sign. An unknown male who was sitting on the bench there stood up and ran out of the way, narrowly avoiding being hit by the falling signs. That is all part of summary offence 30.
23You drove out of the car park to Barries Road in Melton. A witness described your driving at that point as almost side-swiping vehicles who were queuing at a COVID testing site. Undeterred, you drove on High Street near the intersection with Fairhaven Boulevard. There you got out of the vehicle, saw the damage to it and punched the window of the vehicle. You then drove east on High Street, Melton West, back towards Woodgrove shopping centre.
24At 9.37 am, several police were patrolling in an unmarked police vehicle near Coburns Road. They saw the LandCruiser facing north, stationary on the rough grass median strip, and you were standing near the vehicle. They parked the police vehicle beside the LandCruiser, but you got back in the driver's seat, and two officers attempted to remove you from it, but you were able to drive off and continue towards the intersection with Minns Road, Harkness.
25At that location, police deployed tyre deflation devices on the road. Three police officers were seated in an unmarked police vehicle parked on the shoulder nearby. You drove over the tyre deflation device, which damaged one front wheel. You continued to drive north and then aiming the vehicle directly at the stationary unmarked police vehicle with the three officers in it before swerving back onto the road at the last moment. That piece of driving is the basis on indictment Charge 14, the aggravated offence of recklessly exposing an emergency worker to risk by driving.
26You continued north on Coburns Road at a fast speed, overtaking numerous vehicles dangerously. Approaching MacPherson Park, two police officers were riding marked motorcycles and saw the LandCruiser. They pulled over to execute a U-turn, and you drove onto the wrong side of the road, travelling north against the flow of traffic, and drove directly at them, narrowly avoiding hitting them. That is the basis of the second aggravated charge of recklessly exposing an emergency worker to risk by driving, Charge 15.
27The officers completed their U-turn, took up a position behind the car being driven by you. At 9.38 am, they activated lights and sirens and began a pursuit through Toolern Vale and Diggers Rest and making a number of observations of aspects of your driving which are covered by Charge 13, dangerous driving whilst pursued by police.
28The indictment particularises in Charge 13 six aspects of your driving. The summary, in fact, properly describes 21 separate manoeuvres particularising your driving from that point.
29On Coburns Road, you were travelling at 132 kilometres in a 100-kilometre zone with a blown front right tyre. At an intersection, you mounted a roundabout, causing damage to the right rear wheel. You had poor control of the vehicle and continued to pull onto the wrong side of the road.
30On the Diggers Rest-Coimadai Road, you were detected travelling at 98 kilometres an hour in a 60-kilometre zone. You crossed double white lines on that road at Toolern Vale around a blind righthand bend to overtake a vehicle. You were detected on that same road a little later travelling at 127 kilometres an hour in a 100-kilometre zone. You again crossed double white lines near the intersection of Holden Road and travelled against the westbound traffic, directly driving towards a truck towing a trailer.
31At the intersection with Silk Drive, you travelled east to roundabout on the wrong side of the road, and approaching the Diggers Rest railway station, you mounted the nature strip again on the wrong side of the road. You then made a U-turn, heading back west on the wrong side of the road towards numerous police vehicles, including the unmarked vehicle occupied by the three police officers I mentioned earlier. They were forced to take evasive action to avoid a collision. That is part of the aggravated Charge 14 of exposing recklessly an emergency worker on duty to risk by driving.
32You approached the intersection with Plumpton Road and proceeded into the intersection without slowing down. A vehicle was proceeding south on Plumpton Road through the intersection, but you failed to give way, causing the driver to collide into the rear right side of the LandCruiser. That is part of Charge 13, dangerous driving whilst pursued by police.
33You lost control of the LandCruiser. The vehicle span and came to a stop on a nature strip of the intersection. You then got out, and you were seen swallowing an unknown item and laying down on the road. You were then arrested by police. You were drowsy, appeared to be drifting in and out of consciousness, and you were taken in an ambulance to Sunshine Hospital. Later you were discharged from there and taken to the Sunshine police station where you were deemed unfit for interview. You were charged, remanded in custody and later declined the prospect of a record of interview.
34The LandCruiser and the Kluger were recovered, forensically examined and searched, and there were various items of stolen property found in each of them. At the time of this offending overnight on 11 and 12 October, you were on bail. That is the basis of Summary Charge 25, committing an indictable offence whilst on bail.
35You were the subject of a curfew during the hours of 9 pm and 7 am, so you were in breach of that condition in respect of incidents 1 to 4, Charge 26, summary offence, contravene bail condition.
36You have never held a driver's licence, and that gives rise to summary offence 24, unlicensed driving.
37You were in custody from your arrest until bail was granted on 14 December 2021. As part of that bail, you were placed under the supervision of Youth Justice. You remained on bail then between December and April, during
38which period a committal hearing was conducted on 24 March. On 9 April, the offending the subject of the second indictment was committed, and you were remanded. On 11 April, bail was revoked.
39On 24 March, you had been bailed at the Melbourne Magistrates' Court to attend the County Court on 13 April for the matters the subject of the first indictment. The conditions included the residential address and Youth Justice and various other conditions, including, as I have mentioned, a curfew.
40On 9 April, however, a Saturday, at 8.37 pm, you were at the Caltex service station – I am sorry. The victim, Mr Xavier Santos was at the Caltex service station in Mitchell Street, Bendigo, there to fill air in the tyres of his Holden Barina. He could not do it because the station was closed and the hose had been locked. He was in his vehicle with the engine running as he had received the phone call.
41You walked towards the Barina, removed the serrated bread knife from your clothing and held it in your right hand. Mr Santos saw you approaching and ended his phone call. You opened the driver's side door, said 'Get out of the car.' When Santos said 'What', you said 'Get out of the car or I'll stab you.' You were standing less than a metre away from Santos at that point with the knife in your right hand.
42Santos said 'Give me a second, I'm going to get out of the car.' You said 'I'm on a whole lot of crack.' Mr Santos got out, walked over towards the fuel bowser, called Triple 0. You got in the car, revved the engine loudly and drove away towards Morrison Street. These events at the service station give rise to Charge 1 on the indictment of aggravated carjacking and the summary offences relating to bail. Mr Santos was in shock at the time, believed he could have been stabbed if he did not comply.
43Later at 9.15 pm you went to the Caltex on High Street, Kangaroo Flat in the stolen vehicle. You filled the vehicle with $47.98 worth of petrol and you drove off without paying, that is Charge 2 of theft. Just after 10 pm you were driving on the Calder Freeway. You were unlicensed and that is Summary Charge 2, unlicensed driving. You swerved between lanes and drove off the verge on both sides of the road. You collided with the barrier on the left-hand side of the road and tried to continue driving. Finally you gave up, got out, walked towards Bendigo.
44As a result of your driving both tyres were completely gone, the front rims disintegrating and the rear wheel was riding completely on the rim. Two officers just after 10.20 located you on the freeway and arrested you. You were searched. A shotgun cartridge and a knife were in your possession. The knife was a bread knife. A small amount of cannabis was in your possession, giving rise to Charge 3 on the indictment, possession of a drug of dependence. A single 12-gauge shotgun cartridge was in your backpack, summary offence 4, possession of cartridge ammunition.
45An interview was conducted. You made no comment. On 27 July of this year at the committal mention pleas of guilty were entered and the matter proceeded by a hand-up brief.
46The two prosecution summaries set out the respective chronologies and applicable maximum penalties for the matters on the first indictment at pp16 and 17 and for the second indictment at pp4 to 5. I note that during the course of the opening some amendments were sought by the prosecution and granted.
47These apply to two related summary offences to the first indictment, Charge 17 which was brought under s24(2) of the Summary Offences Act. That is not unlawful assault but assault with a weapon, and as to Charge 25 the charge was particularised as substitute 'home invasion' with 'aggravated burglary.' As to the first, Charge 17, I note that this amendment varies the applicable maximum penalty from three months' imprisonment or 15 penalty units to two years' imprisonment.
48Two victim impact statements were received by the court, one was related to the first indictment by Mr Cini. The second was related to the second indictment by Mr Santos, the victim of the carjacking relevant to those events and charges.
49In his statement Mr Cini describes himself before the offending as a fun loving, family oriented, easy-going man. He genuinely thought his life was in danger by your violent and aggressive conduct. He was fearful and terrified. He became withdrawn and hypervigilant thereafter, unable to concentrate and hesitant in common tasks. He has been angry and distressed. The event had an impact on his life at home with his wife's fragile mental state being further impacted. He has found himself ruminating and crying with small details in everyday life triggering fearful memories.
50He took pride in his car. It often doubled as a workspace. It could not be replaced and he had to downscale as a result. Items were stolen and some were of significant sentimental value like family photos. His medication had to be increased due to the impact of the trauma and stress. Replacing or attempting to replace many personal items was time and energy sapping, provided triggers for reliving the consequences of your conduct. He has lost his sense of security and safety for himself and his family.
51Costs incurred in replacing items including security and locks at work and home have been significant. All of these consequences are serious impacts upon his person and life. None are trivial or irrelevant. This kind of mindless and wanton criminal behaviour impacts on a victim's life in many ways and I take this impact into account in relation to the first indictment disposition.
52Mr Santos was the victim of the carjacking which is encompassed by the second indictment. His car was taken at knifepoint by you. He rightly describes your actions as disgraceful and cowardly, and they have had a significant impact upon him. His car was damaged beyond repair. He lost days of work and his independence, lost opportunity to play sport, needing to rely on others. Your conduct left him, in his words, 'shocked and rattled', anxious and distressed. He experienced fear and ongoing helplessness, on at least one occasion unable to move or get up to go to work.
53He sought mental health support. He has experienced a marked change in character and mood and anger by his endangerment of his life. He is hypervigilant, particularly around the location of the carjacking, and this continuous concern for safety is exhausting. He has become obsessively safety conscious, particularly going out after dark which he avoids now. He is suspicious of others. He was affected financially as well. The car was a write-off, and it was uninsured, resulting in substantial costs. These again are not trivial impacts, they are significant and long-lasting impacts. I take Mr Santos' victim impact statement into account in determining the matters concerned by the second indictment.
54The indictments each particularise offences which carry particularly relevant requirements. Charges 14 and 15 on the first indictment are Category 2 offences as defined by s3 of the Sentencing Act at letter (k) and s317AF of the Crimes Act. That section imposes at sub-s (3) a ten-year maximum as a penalty for the offence. I note that s16(1A) of the Sentencing Act provides an exception to s16(1) provisions as to concurrency at letter (j) for offences under s317AF of the Crimes Act so that the provision as to concurrency do not apply to this section, and this offence as confirmed by s16(3D) which provides that every term of imprisonment imposed for an offence against s317AF of the Crimes Act inter alia must be served cumulatively unless otherwise directed by the court.
55The categorisation of these two offences as Category 2 as I have noted above enlivens s5(2H) of the Sentencing Act 1991. Section 5 provides sentencing guidelines and governing principles to sentencing in some detail and at
sub-s(2H) provisions concern the sentencing an offender for the Category 2 offence. Sub-s(2H) requires the court to impose a sentence of imprisonment as regulated Division 2 of Part 3 of the Act unless the provisions of
s5(2H)(c )(ii) in this case are engaged.56The defence properly conceded that the important requirements that '…impaired mental functioning would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment' could not be made out in this case.
57As to the second indictment, Charge 1 of the aggravated carjacking, with aggravating feature, is having had with you an offensive weapon, is a category 1 offence under the Sentencing Act, which in s3 definitions at (ib), lists it as such. Section 5(2G) provides that in sentencing an offender for a category 1 offence, the court must impose a custodial sentence. Further, under s10AD of the Sentencing Act, the court must not only impose a term of imprisonment, but also fix a non-parole period of not less than three years, unless the court finds under s10A that a 'special reason' exists. Both in written submissions and on the plea, defence specifically conceded, appropriately, in my view, that no such special reason or reasons can be made out in this case.
58This course of conduct by you was properly described by your counsel as a rampage, a period of violent and uncontrollable behaviour over a wide area of the city. The offending as a whole is serious and troubling. A few aspects of the conduct, when looked at individually, are relatively minor. Here I am referring to some attempted thefts of vehicles, Charges 1 and 5, some of the thefts included in Charges 3 and 8, which are thefts of items in stolen vehicles, but the remaining charges on Indictment 1 are, in my view, serious offending. Similarly, for Indictment 2, the theft of $47.98 of petrol, or the possession of cannabis, are relatively minor, when one considers the seriousness of what preceded them by way of an aggravated carjacking with an offensive weapon, a very serious offence.
59Your behaviour is troubling, because it was done at certain times, at complete disregards for the right and safety of others, for any care for the impact of such behaviour, but particularly because in a number of instances, they were designed to inflict your will by violence and aggression, placing road users and police members at serious risk of injury, or even death and on some occasions, purposefully aiming a large vehicle at speed into the path or the place where police officers who were endeavouring to apprehend you, placing them at substantial risk of injury or death and all of it in what must have been done for the thrill of transgression and reckless enjoyment of the fear and terror which your behaviour would cause and did cause to others.
60Such mindless conduct is utterly unacceptable to the community and to the law. It must be denounced in the strongest possible terms and justly punished in order to deter you and others from such conduct. The community rightly looks to the court to protect it from such criminal and dangerous acts. It was by sheer luck that others or yourself were not injured or killed that night.
61In arriving at an appropriate disposition for these matters, I take a number of relevant matters into account. Firstly, there is the maximum penalties applicable for the offences in question. The most serious in relation to the first indictment are Charges 2 and 11 of aggravated burglary. These carry a maximum of 25 years' imprisonment. In the first instance, you entered residential premises in Kennington, while the occupants were asleep. It was 3 am when you did so.
62The second instance, some five hours later, you went to another private residence in Hopetoun Park and you entered by damaging a security door to gain entry to the property and after moving the car and entering the property, you rummaged through each room and inside the house, when discovered by the resident, who was asleep, you used a metal bar to strike him to the head, the subject to a separate charge.
63These offences, beyond the violation of the security of a home, are invariably terrifying experiences for the victims. Such offending threatens a sense of safety and security of the community. These offences may not have been the fruit of careful preparation and planning, but even if spontaneous, these private homes are targeted for thefts committed in company at hours during which people were disturbed in their sleep.
64While these are not confrontational or intimate partner-type of aggravated burglaries, but within the context of your conduct, they were undertaken during this night in question. The repetition of an entry to steal motor vehicles and property, in my view, make the serious example of this offence, in particularly Charge 11. Your conduct after entry is the subject of another charge, which will attract a separate sentence. This criminality will be dealt with separately and will not be taken into account adversely in sentencing for the aggravated burglary.
65However, the summary charge of assault with a weapon, Charge 17 is, in my view, a serious example of the offence occurring, as it does, in the context in which it does, inside the victim's home, to facilitate the thefts and your escape. That conduct, in my view, is relevant to clarifying your general intent on the night, to do anything to facilitate your offending and your escape, including violent, dangerous and fear-instilling behaviour.
66Both criminal damage charges, I should not say both, criminal damage, Charges 4, 7 and 9 and attempted robbery, Charge 10, carry 10 years' imprisonment, as does the aggravated offence of recklessly exposing an emergency worker to risk by driving, Charges 14 and 15. I consider Charge 9 more serious than 4 and 7. The smashing of the windscreen with a metal bar by you was done in order to intimidate and stop the neighbour from interfering, an aspect absent from the damage done by smashing into a fence, Charge 4, or smashing windows to access items in a car to steal them, Charge 7. The attempted robbery also involved a demand from the pedestrian for property, after which he was followed in a stolen Landcruiser into the driveway of the property. The pedestrian had to run into the backyard to seek to evade further engagement with you.
67In terms of the second indictment, apart from the theft of petrol, it is the aggravated carjacking which carries 25 years maximum and is the most serious offence. It is noteworthy again that the first indictment offending took place in October of 2021 and you were remanded in custody for those matters until March 23rd, when you were bailed to appear in this court. A curfew was in place, apart from other conditions and so this offence of aggravated carjacking took place on the 9th of April at about 8.40 pm.
68Carjacking is all too prevalent an offence, which instils terror in ordinary citizens and causes consternation and fear to the community. When you committed this offence, you were carrying a knife. The use of a weapon in aid of a carjacking increases the objective gravity of the offence, regardless of the fact that the use of such a weapon is the circumstance which makes the carjacking aggravated, see Sabbatucci v The Queen [2021] VSCA 340.
69The weapon was referred to you in your threats to the driver and it was displayed by you in the taking of the vehicle. In my view, this is serious offending, which calls for general deterrence, denunciation, just punishment, as well as specific deterrence by reference chronologically to the context in which this offending occurs.
70In setting a sentence, I take into account your plea of guilty in relation to both indictments. In relation to the first, a plea was indicated after a committal hearing had been held in March 2022. This was not there for an early plea. However, the matter proceeded relatively quickly, once your bail had been revoked in April 2022 and resolved to a plea by June 2022.
71I accept this particular plea has a significant utilitarian value, because it has avoided a protracted and complex criminal trial. The plea to the second indictment was indicated at the earliest time relevant to it, prior to a committal mention in July 2022 and it too has a similar utilitarian value, which I take into account. The pleas were indicated at a time of pandemic, which has impacted upon the administration of justice in the State. Bringing these matters to resolution and facilitating the course of justice has a mitigating effect. Such pleas, as explained in Worboyes v The Queen [2021] VSCA 169, should and will attract more pronounced and palpable amelioration of sentence.
72The plea was also offered at a time when both remand conditions and the prospects of a period of incarcerations were and are impacted by the pandemic. This has meant that significant restrictions have been and will continue to be imposed in correctional facilities, including lockdowns, periods of isolation, restrictions on movement and access to facilities within prisons, curtailing and cancelling the access to work, vocational and rehabilitative programs and the suspension, at times, for significant periods of in person visits and contact with family and friends. The pleas made during these circumstances should and will reduce the sentence appropriately.
73You have spent all your remand time during the pandemic at the MRC and Ravenhall. I accept you have completed some courses centred on drugs and alcohol, but you could not produce certificates attesting thereto. One aspect of the plea upon which your counsel specifically disavowed being able to rely upon, was remorse. This is an important matter.
74Genuine remorse generally enhances prospects of rehabilitation and reduces the need both for specific deterrence and community protection. A guilty plea of itself may be some evidence of remorse. However, in your case, it is difficult to glean a clear appreciation on your part for the wrongfulness of your behaviour, or the impact on the victims. It was referred to by defence counsel as, 'A compromised moral code', by way of a reference to Dr Treeby's report
about you. In any event, such evident lack of remorse for your offending emphasises the considerations of community protection and specific deterrence, in my view.
75I take into account your background and personal circumstances. You were raised in Swan Hill, the eldest of two children. Your upbringing was marked by complex trauma. Your mother died suicide in 2004, when you were two years old. Your father was in and out of gaol in your early years, so you were taken into the care of your grandfather in Tasmania until aged 10, during which time, contact with your father was intermittent. However, he brought you under his care at aged 10, near Colac in Victoria. Your father drank heavily and used drugs. You experienced physical violence and punishment from him. His mood was unpredictable and his aggressive behaviour made home an unsure and unsafe environment. You told Dr Treeby that you lost hearing in your right ear, after your father assaulted you.
76Combined to this environment was exposure to your father's criminal activity. He would take you on burglaries and to rob farms. At times, you and your brother would be unsupervised. He introduced you to substances from a young age, including alcohol, cannabis, amphetamine and MDMA into middle adolescence. You were kicked out of home at age 16 and for some six months, you slept on the streets and couch surfed. You went back to Tasmania, aged 17, for about a year with your grandfather. Your father re-partnered and moved to Queensland and your last contact, some three years ago.
77In 2020, you returned to Victoria to crisis accommodation. You then moved in with Ms Lingren, your aunt, who endeavoured to assist with the services you needed to deal with your issues. However, that relationship became strained when she attempted to set and enforce some boundaries around your substance abuse. On the night of the offences, she kicked you out of her home.
78You are single and have no dependents. Your schooling soon was affected by hyperactivity and behavioural issues. You were suspended even in primary school for transgressions and oppositional behaviour which persisted up to Grade 5. In Years 7 and 8, you were regularly suspended and expelled in Year 9. You completed Year 10 back in Tasmania despite absenting yourself effectively from attendance.
79Between the ages of 15 and 16, you worked at a McDonald's store, then on a duck farm, aged 17. Between 18 and 20, you worked on chicken farms. More recently in 2021 and 22, you worked for Aviwash, an avian wash business from which you were dismissed after a physical altercation with a co-worker.
80Dr Matt Treeby, a clinical neuropsychologist and clinical psychologist, provided an extensive report to the court dated September 2022. The report laid the foundations for defence submissions on the applications of Bugmy principles as well as some of the Verdins principles with which I will deal in a moment. Dr Treeby took a medical and psychiatric history. You reported concussion-type injuries from sport as well as hits to the head during adolescence from your father. One was confirmed by medical reports of September 2020 in which he knocked you out. Upon your arrival to hospital, you were noted to have cuts to hands and face, to be intoxicated on alcohol and reported having taken MDMA. This appears to refer to a mild traumatic brain injury without enduring cognitive impairment.
81Dr Treeby also refers to an admission to Sunshine Hospital in October 2021 following a police chase. You had taken six alprazolam and other substances. You kicked an ambulance worker to the face, kicked at walls and had to be restrained by police, who took you into custody. No evidence of a traumatic brain injury could be shown. This was on the day on which the offences on Indictment 1 were committed.
82Dr Treeby notes a long history of mental health difficulties, elevated anxiety and low mood. You recounted a suicide attempt in October 2021 whilst in the police cells. Dr Treeby notes that efforts to engage with mental health services were not successful by reference to the supervised bail progress report of March and April 2022, two reports the courts did receive, to which I will refer in a moment.
83Dr Treeby writes a detailed history of your substance abuse and its variety, from alcohol to methamphetamines to benzodiazepines. He concludes that it appears that you are prone to paradoxical effects when you take alprazolam, Xanax, which makes you behaviourally disinhibited, reckless and aggressive. You told him that at the time of this offending on the first indictment, you were withdrawing from methamphetamine and under the influence of cocaine and alprazolam.
84Apart from a few counselling sessions before June 2022, you have not received any other drug and alcohol treatment. According to Dr Treeby's report, you first came into contact with police in Tasmania over relatively low street offences in 2020 and 21. In relation to the first indictment, your only prior conviction in Victoria is one for recklessly causing injury, property damage and assault on 26 April 2021 at Bendigo Magistrates' Court where, without conviction, the matter was adjourned to this year on an undertaking.
85As to the second indictment, pardon me, an extra prior of December 2021 at the Swan Hill Magistrates' Court is applicable, and that concerns possession of methamphetamine bail offences where you were fined without conviction.
86I was informed that the April 2021 prior, recklessly causing injury, concerned you approaching the victim at 3 pm on the street and punching him with a fist to the face and mouth, causing half of one of the victim's front teeth to break and fall to the ground, after which you said, 'Don't fuck with my mates'. Dr Treeby refers to this incident at paragraph 27 of his report in relation to a hand injury you sustained to your hand as a result of your punch. This was in
July 2020.
87You told Dr Treeby, since age 18, you used alprazolam about six times, and your comment was, 'Two times I did Xanax, I did a crime'. You appear to be aware of the impact of the medication on your behaviour. You told Dr Treeby that apart from video games, your hobbies and interests are 'hanging out with mates and doing drugs and crime'.
88You told him you has recently converted to Islam. As to the offending you told him your aunt had asked you to leave after an argument over Xanax. Around the corner you caught up with a mate, 'Stole a car and carjacked someone, it went from there. I just wanted to drive fast and make a lot of money quick' and that you 'wouldn't have been as reckless if I wasn't on Xanax.'
89You said as to the offending 'I have no regrets, it doesn't bother me. It doesn’t make me lose sleep or nothing.' You reported behavioural impulsivity without deliberation and forethought. You implicated being substance affected in poor capacity for impulse control, showing your awareness of this link. You reported difficulty regulating anger and negative emotions.
90Dr Treeby noted your tattoos, acronyms for 'Show no love' and 'Fuck the system.' You impressed him as emotionally and behaviourally immature with limited capacity for self-reflection or insight. Your capacity for empathy is limited. You have longstanding cognitive limitations, borderline intellectual functioning. The result of tests administered by Dr Treeby are at p11 and 13 of his report. You do not have an intellectual disability or an acquired brain injury.
91Impulsive behaviour tendencies without consideration for consequences, impulsivity and hyperactivity indicated to Dr Treeby an impression of adult ADHD and that you have a complex post-traumatic stress disorder, together with a major depressive disorder. These would have been contributing factors to poor decision making and psychosocial functioning leading up to the offending. You satisfy the criteria for stimulant use disorder.
92Dr Treeby's recommendations concern active participation in drug and alcohol counselling upon your return to the community as well as long term residential rehabilitation and cognitive behavioural therapy. The success of these is significantly dependant on active participation on your part and ability to gain new insights and acceptance of responsibility for your behaviour.
93All of this is likely to require long term counselling. Predicated on this formulation he writes that you have prospects of rehabilitation given your age and limited prior criminal history. An assessment of these prospects must be guarded because conditional on your side of the equation of what is required. This is linked of course to your youth to which I will return in a moment.
94Dr Treeby's report at paragraph 87 writes that the complex trauma experiences during formative years 'appears to have compromised the development of your moral code.' Your capacity for prosocial emotions without clear evidence of remorse remains to be determined. Despite your young age his impression is that you have emerging antisocial and borderline personality traits which will require intervention and assessment. You have in his opinion the capacity to engage in meaningful vocational and recreational pursuits. You present in his view with multiple risk factors for recidivism at a moderate to high risk of reoffending.
95Ultimately, he concludes his report by the opinion that imprisonment would weight more heavily on you compared to someone in good health due primarily to your major depressive disorder. Your age and immaturity would render you vulnerable in adult custodial settings and I take this extensive and detailed report into account.
96Returning briefly to your prior history. It was argued that in all the circumstances the criminal record should play little part in the sentencing synthesis. I accept this proposition, except with the qualification that in as much as the priors when viewed separately for each indictment as is proper to take them into account, do confirm that specific deterrence is a relevant consideration given the kinds of priors, which although very limited, concern violence in the case of the first indictment and drug possession and bail breaches as well as violence in the case of the second indictment. They further confirm that community protection should be given some real weight in the sentence.
97This is reinforced by post offence conduct which I was properly informed about concerning an appearance at Bendigo Magistrates' Court in July of 2022 in which you were fined $2000 for burglary, theft, going equipped to steal, possess a drug of dependence and property damage.
98It was argued that your background and history raised the application of the principles in Bugmy [2013] 249 CLR 571. The prosecution did not raise an argument in opposition in relation to this. The principles outlined in Bugmy are relevant here to your subject of culpability for your offending but that should not be equated with a person who committed the same offences but who had the advantage of a normal, stable, and regular home environment and who had not been subjected to the conditions described in your background and early years. In this sense that background is an important mitigating circumstance in the determination of the sentencing.
99The harmful and destructive effect of abuse perpetrated on minors are longstanding and detrimental and often profound. In your case they are not so distant in time because of your age and I accept still reverberating through your conduct and state of mind, providing some explanation for it and I have given this matter due weight in my consideration. In my view it does reduce your moral culpability.
100However, such reduction does not have the same mitigatory relevance for all purposes of punishment and, in one sense, increases the importance of community protection. It does not decrease the need to denounce the conduct and the right to vindicate the dignity of victims (see Marrah v R [2014] VSCA 119).
101As with youth such disadvantage is relevant also to the importance of rehabilitation in cases like yours. I accept that you are a youthful offender and that the jurisprudence in relation to the sentencing of young offenders is applicable here. As a starting point from Mills v R [1998] 4 VR 235 onwards it is accepted, and I accept, that rehabilitation must be given prominence in your sentence. Although by some assessment your prosects may be guarded, nevertheless in my view your age should primarily indicate that there is time and prospects for rehabilitation and reclamation.
102This is not a situation where such consideration should be put aside totally. Rather such rehabilitation should remain as an important guide in the considerations to be applied. In this sense the sentence will not, in my view, be a crushing sentence or one which reflects that somehow you are permanently incorrigible. Maturity can lead to considered reflection, foundation for remorse, a renewal and rehabilitation and it is therefore important not to deprive a youthful offender of the opportunity to achieve maturity. Society benefits from the successful rehabilitation of young persons. In your case the combination of Bugmy principles and your youth militate towards mitigation and mercy.
103There are aspects of your sentencing which make this a very difficult exercise, your lack of remorse or insight, your current demeanour and apparent propensity and impulsiveness. I have endeavoured to synthesise all of these complex factors. In my view, however, the rehabilitative primacy is not subsumed and although general and specific deterrence are still very relevant, I do attach to rehabilitation an important role in the disposition.
104It was submitted that an additional consideration to which Dr Treeby's report
gives rise is the enlivening of limbs 5 and 6 of Verdins [2007] VSCA 102. These limbs concern how a mental health impairment is likely to impact on your experience of imprisonment. Limb 5 deals with the existence of the impairment and how it may weigh more heavily on the offender than it would on a person in normal health. Dr Treeby in his report refers at paragraph 91 to your major depressive disorder and his opinion that imprisonment would weigh more heavily on you as compared to someone in good health is clear.
105He added that your level of immaturity would render you more vulnerable in the adult custodial setting. The prosecution did not disagree with the application of this limb of Verdins. However, it disputed the application of limb 6, arguing that Dr Treeby did not address this point, and therefore its application lacked evidentiary foundation. Limb 6 concerns any real risk that imprisonment will have a significantly adverse impact on the offender's mental health, and as a matter relevant to sentencing, this will be a mitigating factor.
106Although it is true that the evidentiary foundation for this matter is somewhat oblique, Dr Treeby at paragraphs 91 and 92 does recommend that your mental health is 'closely monitored by Forensicare mental health services' whilst in the custodial setting. Further, he adds that you would benefit from 'close monitoring' to ensure you are not stood over and further socialised towards criminality should you be sentenced to an extended term.
107I consider that close monitoring in this context is contained in the doctor's recommendations in consideration of a likely greater vulnerability or deterioration well beyond that which imprisonment generally causes any person to suffer. I consider that given your history, the likely conditions of imprisonment and any treatment available to you, that an aggravation of your experience of imprisonment is likely due to your imprisonment. I will give both limbs 5 and 6 of Verdins what I consider to be adequate weight and consideration in setting an appropriate term of reclusion.
108I mentioned earlier that I have read the two bail progress reports from the Department of Justice and Community Safety dated March and April 2022. They do not add much to the circumstances outlined already except to confirm that by April 2022, you had been dismissed from work, your attendance was in decline, and you had failed to attend a number of appointments, including with Headspace to address mental health issues.
109During the plea, it was indicated in relation to your aunt that she had been able to visit you during your remand, and you have spoken on the phone so that the relationship has improved. This may be a protective factor to some extent, but in any event, the support of a family member can be an important factor in any rehabilitative effort.
110The issue of parity is one which is relevant to this sentence. In order to undertake the required comparative analysis, I sought information on the sentence imposed on your co-accused, Mr Flavell, and its circumstances. This is an extensive exercise to ensure consistency and equal punishment. It included holding a brief hearing to give the parties an opportunity to make submissions as to parity given that these had not been made at the plea hearing.
111Both prosecution and defence tendered written submissions which I have considered. Ultimately, while both acknowledge that the sentences imposed on Flavell have a significant input into the sentence you are to receive, the principle of parity will not apply to bring you within the spectrum of sentences which Flavell's sentence would suggest; rather, clearly requiring the imposition of a head sentence and a non-parole period.
112Sentences need not strictly compare, but in order to rationally explain any difference in sentences imposed, a comparative exercise is needed. Briefly, Flavell was dealt with in summary jurisdiction in respect of 19 offences. I was informed that he was dealt with Charges 2 to 12, which parallel your first indictment. At some point during the night in question, the two of you separated and were separately pursued by police.
113Flavell was not charged with the reckless endangerment of emergency workers in the particulars which concern you although he also faced a similar charge arising out of different circumstances pertaining to his pursuit. In respect of that charge, he was sentenced to 210 days' imprisonment. He faced two aggravated burglary charges, which were the ones committed with you. In respect of those, he was placed on a community corrections order for 18 months. I was told by the prosecution that the intention was that upon his release, he would go directly to Odyssey House for a residential rehabilitation program.
114The summary of material facts used at his Magistrates' Court proceedings was produced. At the time of the offending, Flavell was 20 years old. You were 19 years old. You were on bail. He was not. The first incident, at the La Trobe University campus, did not concern Flavell, but it did concern you and the attempted theft. The second incident, at Kennington, involved both of you in the aggravated burglary, Charges 2 and 3 of theft. The third incident involved both of you at Kyneton, involving Charges 4 and 5, criminal damage and attempted theft. The fourth incident, at Keilor Park, involved both, Charge 6, theft of motor vehicle.
115Both of you were involved in the fifth incident, in Harkness, involving criminal damage, Charge 7, and theft of items, Charge 8. The sixth incident was at Hopetoun Park and involved both of you in an attempted robbery, Charge 10. Incident 7, also at Hopetoun Park, was the occasion of an aggravated burglary, 11, a theft, 12. It involved both of you. You were charged with an assault with a weapon, Charge 17, a summary charge.
116At this point, Flavell took off in a separate vehicle, and his arrest sequence follows. He was also pursued by police and arrested. Charges 18, 25, 27, 28, 30, 34, 38 and 41 of his charges relate to this phase. In your case, your conduct gave rise to summary offence 30, drive in a manner dangerous; Charge 14 and 15 of reckless exposure of an emergency worker to risk by driving; and 13, dangerous driving whilst pursued by police. This conduct also gave rise to summary offences 24, unlicensed driving; 25, commit indictable offence on bail; and 26, contravene bail condition.
117From the point at which the two of you separated, Flavell then was charged with a number of offences. His pursuit terminated due to extreme risk to the public. When arrested, he resisted violently and attempted to ingest a small bag containing white crystal, and he had on him a small black knife which was removed. He was wearing a blue jumper and a black T-shirt wrapped around his head and dark pants. He was deemed unfit for interview.
118The charges that arise from the time of his separation from you were Charges 18, 34 and 41, reckless conduct endangering life; 25, dangerous driving while pursued by police; 27, unlicensed driving; 28, possess methylamphetamine; 30, possess controlled weapon without excuse; and 38, reckless exposure of emergency worker to risk by driving.
119For all of these offences just enumerated except for 38, for which he received 210 days' imprisonment, having already served that time by way of pre-sentence detention, Flavell was placed on a community corrections order for 18 months and with treatment and rehabilitation condition for drugs and to attend offending behaviour programs as directed. He was also placed on that community corrections order for his Charges 2, 3, 4, 5, 7, 9, 10, 11, 14, 15, 16, which mirrored your charges of aggravated burglary, theft of motor vehicle, intentionally damage property, attempted theft of motor vehicle, theft and attempted robbery.
120From this comparison, it is clear that Flavell was dealt with for very similar charges to you up until the point at which the two of you separate. Thereafter,
the main point of difference is the additional or second charge of reckless exposure of emergency worker to risk by driving, and then there are the matters arising out of the second indictment in which Flavell does not participate. This is therefore a basis for distinguishing your offending from Flavell's given that difference.
121If one summarises the offending for you and compares it with Flavell, after the two of you separated, the differences are apparent. Following the schema of the prosecution opening, the eighth incident involved you crashing into a fence and almost colliding with a truck. Driving in a manner dangerous, you drove through the shopping centre car park, became airborne over a speedhump. You lost control of the car, crashed into a trolley bay and knocked over a sign which was narrowly avoided by a pedestrian.
122Later that morning, you drove at a stationary unmarked police vehicle with three officers in it. As you continued driving, you overtook a number of vehicles dangerously, drove on the wrong side of the road against the traffic and drove directly at two police motorcyclists, narrowly avoiding hitting them. A police pursuit ensued then through Toolern Vale and Diggers Rest, with 20 manoeuvres particularised in the opening, after which you again turned back on the wrong side of the road towards numerous vehicles, including the same officers in one vehicle who had to take evasive action.
123Flavell's offending post-separation from you is covered in the summary of his offending, paragraphs 93 to 99. Essentially, he overtook vehicles via the left-hand side emergency lane, drove on the wrong side of the road against traffic. After the pursuit was terminated, he travelled at high speeds. He again drove in the emergency lane and through a red light near a pedestrian whilst on the wrong side of the road. Two police officers in an unmarked car took evasive action to avoid a collision, drove around the tyre deflation device and narrowly avoided hitting another police officer who had run in front of his vehicle.
124Although clearly there are similarities, the driving in each case gave rise to different charges. In particular, Charges 13, 14 and 15 on your first indictment relate to a number of instances which are to be distinguished and dealt with discretely in relation to each.
125Another matter to consider is Flavell's prior history. Although I know nothing of his background or personal circumstances, his criminal history is similar in Victoria, containing as it does a Children's Court appearance for reckless cause injury in May 2015 when the court placed him on probation for a year without conviction. There are also a number of matters in Queensland in May 2021 relating to drugs and stolen property when no conviction was recorded, and in the Children's Court also in May 2021 where for the unlawful use of a motor vehicle and assaults occasioning bodily harm, burglary inter alia, no conviction was recorded, but he was fined $6,672 and he was treated as an adult.
126It is not for me to judge whether the sentence imposed on Flavell was appropriate, lenient or otherwise. In my view, a disparate sentencing is justified in your case. Certainly, a sentence which is lenient, perhaps excessively, cannot justify a reduction of a co-offender's sentence to an inappropriately low level. This must be so as regards the Sentencing Act provisions regarding Charges 14 and 15 on your first indictment and the triggering of the provisions of s10D regarding a non-parole period, which in your case relates to two charges involving a number of instances for each count.
127Then the second indictment matters further give reason to a different sentencing disposition. While what began as a common criminal enterprise involving unlawful acts all related in purpose makes for similar offending, and therefore one sentence has some relevance in sentencing another, this nexus is only partial. Parity is difficult to apply as differences become greater. In my view, while I have a view as to the sentence imposed upon Flavell, the principle of parity requires different sentences between you and your co-offender.
128In this context, totality is a principle which I bear significantly in mind. I am mindful of the fact that although each offence, within what has been called a rampage, is discrete and should attract a measure of punishment, the conduct which is to be addressed is really a course of conduct, and therefore large measures of concurrency should reflect that fact to provide a final appropriate total effective sentence.
129Defence acknowledged in your case that the only appropriate disposition is the imposition of a term of imprisonment with a non-parole period. Totality requires me to ensure the sentence does not exceed that which is appropriate and just in relation to the total criminality involved, and related to this principle is that which requires me to avoid a crushing sentence in view particularly of your youth.
130In order to receive some comparative guidance, I have looked at two recent decisions of the Court of Appeal, being McKay v The King [2023] VSCA 8 and
DPP v Cox [2021] VCC 1942 [No 2] – I do not know why I said 'two' recent decisions – DPP v Roberts [2020] VCC 1195, DPP v O'Sullivan [2020] VCC 1449, DPP v Reid [2020] VSCA 247 and Nelson v The Queen [2020] VSCA 219.131Your pre-sentence detention was set out in the opening and the defence submissions at p6, and both parties have agreed today that it amounts to 383 days of pre-sentence detention. I will declare in relation to your sentence that you have served 383 days by way of pre-sentence detention, and I will note that number in the records of the court.
132On Indictment 0689, on Charges 1 and 5 of attempted theft, you are convicted and sentenced to three months' imprisonment on each charge; on Charges 2 and 11 of aggravated burglary, you are convicted and sentenced to two years on each charge; on Charges 3, 6, 8 and 12 of theft, you are convicted and sentenced to three months on each charge; on Charges 4, 7 and 9 of damaging property, you are convicted and sentenced to three months on each charge; on Charge 10 of attempted robbery, you are convicted and sentenced to 12 months' imprisonment; on Charge 13 of dangerous driving whilst pursued by police, you are convicted and sentenced to 12 months' imprisonment; on Charges 14 and 15, aggravated offence of recklessly exposing an emergency worker to risk by driving, you are convicted and sentenced to two years' imprisonment on each of these offences.
133On the Summary Charge 17 of assault with a weapon, you are convicted and sentenced to one year imprisonment; on Summary Charge 24 of unlicensed driving, you are convicted and sentenced to three months' imprisonment; on Summary Charge 25 of committing an indictable offence, aggravated burglary, whilst on bail, you are convicted and sentenced to two months' imprisonment; on Summary Charge 26 of contravening a conduct condition of bail, you are convicted and sentenced to 14 days' imprisonment; on Summary Charge 30 of driving in a manner dangerous to the public, you are convicted and sentenced to six months' imprisonment.
134On the second indictment, 0063, on the first charge, of aggravated carjacking, you are convicted and sentenced to three years' imprisonment; on the second charge, of theft, you are convicted and sentenced to six months' imprisonment; on the third charge, of possession of a drug of dependence, you are convicted and sentenced to one month imprisonment.
135On the summary offence Charge 2 of unlicensed driving, you are convicted and sentenced to one month imprisonment; on the summary offence Charge 4 of possession of cartridge ammunition without being the holder of a licence, you are convicted and sentenced to two months' imprisonment; on the Summary Charge 6 of committing an indictable offence whilst on bail, you are convicted and sentenced to two months' imprisonment; and on the Summary
Charge 7 of contravening a conduct condition of bail, you are convicted and sentenced to 14 days' imprisonment.
136In this particular sentence reckoning, I will use the sentence on Charge 11 of aggravated burglary on the first indictment as the base sentence of two years. I order that six months on Charge 2, four months on Charge 10, three months on Charge 13, six months on Charge 14, six months on Charge 15, three months on Summary Charge 17 and one month on Summary Charge 30 to be cumulative on the base sentence.
137All other charges are to be served concurrently, making a total effective sentence on Indictment 1 of four years and five months. I order that 18 months of Charge 1 on Indictment 2 and one month on Charge 2 on Indictment 2 be cumulative on the total effective sentence of the first indictment, making a global effective sentence of six years. I order that you serve a non-parole period of three years and nine months.
138In relation to your licence, I order that all licences be cancelled and that you be disqualified from obtaining a licence for a period of six years. Under s89C, I make a finding that the offence of aggravated carjacking was committed whilst you were under the influence of alcohol and drug, which contributed to the offence.
139I will sign the disposal and forfeiture orders which have been made available to me.
140In relation to 6AAA, I would have sentenced you to seven and a half years' imprisonment with five years' non-parole period.
141Ms Batten, are there any other ancillary orders that I have omitted?
142MR BATTEN: No other ancillary orders. I think Your Honour has imposed a custodial term in respect of the possession of ammunition charge?
143HIS HONOUR: Just pardon me for a moment. Is that in relation to Indictment 2?
144MR BATTEN: Yes, summary offence no.4 on Indictment 2.
145HIS HONOUR: Yes.
146MR BATTEN: I think so.
147HIS HONOUR: I thought that that carried a period of imprisonment and/or penalty units. Am I wrong about that?
148MR BATTEN: I believe that is not the case, Your Honour. I think that is only punishable by a fine.
149HIS HONOUR: Thank you. Those periods - apart from in the second indictment of Charges 1 and 2, which carry some cumulation upon the sentence on the first indictment – are all concurrent. In relation to Charge 4 of possession of cartridge ammunition, Mr George will be fined $200. So in relation to that charge, I have corrected my earlier sentence, thank you.
150MR BATTEN: Yes.
151HIS HONOUR: Is the calculation in relation to the first indictment clear, gentlemen? All other charges that I have not mentioned as requiring cumulation are to be run concurrent with the base sentence and with every other sentence. I make the total four years and five months in relation to the cumulation of the sentences on the first indictment, and I have effectively added 19 months to that sentence to make six years as a total effective sentence.
152MR JACKSON: Yes, that is my calculation of the orders that Your Honour has made this afternoon as well.
153HIS HONOUR: I am sorry, Mr Jackson, I could not hear you properly. You agree with that calculation?
154MR JACKSON: Yes, I do agree, Your Honour.
155HIS HONOUR: Yes, thank you. Well, if there are any difficulties, I am happy to go through it again, or if there is anything that is unclear, I am happy to go through the numbers again just so that it is clear what it is that I have imposed by way of cumulation. Just let me know if you require me to do that, Mr Batten or Mr Jackson.
156MR JACKSON: I do not require it, Your Honour.
157MR BATTEN: Yes, I just need to – I have not had an opportunity, really, to work through those numbers, Your Honour. If there is anything that arises (indistinct words)
158HIS HONOUR: I can go through it again if you like just while we are here. I have used the sentence on Charge 11 of the aggravated burglary on the first indictment as the first sentence. That is the sentence of two years. To that sentence, I have added six months on the second charge of aggravated burglary to be cumulative: so six months of that sentence, also of two years, to be cumulated upon the two years on Charge 11, making two and a half years. I have then added four months on Charge 10, three months on Charge 13, six months on Charge 14, six months on Charge 15, three months on the Summary Charge 17 and one month on Summary Charge 30 to be cumulated on that base sentence.
159MR BATTEN: Yes.
160HIS HONOUR: So my calculation is that makes four years and five months.
161MR BATTEN: Yes.
162HIS HONOUR: I have then added 18 months on Charge 1 of the second indictment and one month on Charge 2 to be cumulative on that earlier effective sentence, making a global sentence of six years with a non-parole period of three years and nine months.
163MR BATTEN: Yes, yes. I agree with that.
164HIS HONOUR: Thank you, everyone.
165MR JACKSON: Yes.
166HIS HONOUR: Mr Jackson, I see that we have got half an hour on the link. If you need to speak or wish to speak with Mr George, I am happy for me to leave the Bench. I can cease the link with Mr Batten, and you can have an opportunity to speak to him if you wish. I do not know whether you have made an appointment to see him or otherwise, but if you wish to take advantage of the link that is current, it lasts until 4 o'clock, so you have got a good half hour to have that conversation with him if you wish.
167MR JACKSON: I will take the advantage of having a short conversation with him, I propose. I indicated to him earlier on that in a couple of days, after I have been able to go through the materials fully, I will have a more detailed conversation with him.
168HIS HONOUR: Yes.
169MR JACKSON: But I would not mind a couple or 3 minutes to just have a quick chat with him now.
170HIS HONOUR: That is not a problem. I will simply leave the Bench, and I will delink Mr Batten and everyone else from the link, and you can have a conversation with him. I hope that he can hear you and you can hear him, all right. Thank you, gentlemen.
171MR BATTEN: As Your Honour please.
172HIS HONOUR: Let us adjourn, thanks.
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