Director of Public Prosecutions v Gray

[2024] VCC 446

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00529/CR 23-00530

CR-23-01897/CR-23-01898

DIRECTOR OF PUBLIC PROSECUTIONS

v

AIDEN GRAY

FLETCHER McGUIRE

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February
DATE OF SENTENCE:	11 April 2024
CASE MAY BE CITED AS:	DPP v Gray & Anor
MEDIUM NEUTRAL CITATION:	[2024] VCC 446

REASONS FOR SENTENCE

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Subject:              Criminal Law. Sentence upon plea of guilty and jury verdict.

Catchwords:       Aggravated carjacking - theft - armed robbery - possession of a drug of

dependence - youthful offenders – offences committed in company -

relevant criminal history – drug abuse.

Legislation Cited: Sentencing Act 1991.

Cases Cited:       Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA

207; Buckley v The Queen [2023] VSCA 138.

Sentence:           Total effective sentence of 4 years and 5 months imprisonment with a

non-parole period of 3 years.   

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Martin	Ms S. Threlfall
For Accused Gray	Ms J. Ball	Ms H. Lyons
For Accused McGuire	Mr D. McGlone	Mr M. Brennan

HIS HONOUR: 

1Aiden Gray and Fletcher McGuire you were found guilty on one charge of aggravated carjacking, aggravated due to you having an offensive weapon, by a jury verdict on 22 November 2023.

2On that day you also pleaded guilty to a separate indictment in relation to one charge of theft, Charge 2 of armed robbery, Charge 3 of possession of a drug of dependence methylamphetamine in relation to you, Fletcher McGuire.

3Aiden Gray, you are 21 years old and Fletcher McGuire, you are also 21 but you were both 19 at the time of your offending.

4Upon your plea for the second indictment and the making of a plea on your behalf, the prosecution provided a summary of the offending for both the indictment matters. I will summarise them briefly for purposes of your sentence.

5As to Indictment 5731.1 in relation to the carjacking. At 11.36 on
28 September 2022 you, Mr Gray and you, Mr McGuire, entered the Golden Point Hotel on Main Road, Golden Point.  You attended at the hotel with two others, one Poltorasky and one Rose.  You all played the pokies and drank.

6Just after midnight the four of you left the Golden Point Hotel by way of Rose's car, which was a white 2001 Toyota Avalon.  Rose was in the driver's seat, Poltorasky was in the front seat and you, Mr Gray and you, Mr McGuire were in the back seats.  You drove for approximately 10 minutes until you reached the Canadian Lookout.  There were two other cars already at the Lookout, a 2004 Holden Commodore occupied by Joshua Court and Courtney Adams, and a silver Holden Commodore occupied by Liam Goodman and Cassidy Muller.

7Mr Rose parked his car and got out.  He walked 10 metres into the bush and urinated, he then rolled a cigarette, lit it and got back in the car.

8Poltorasky got out of the car, also went to the toilet and as he was doing so, Court called out to him.  Poltorasky had a short conversation with Court who was still seated in his car, and then Poltorasky went back to Rose's car, then went to Goodman's car with his phone light on and a short conversation proceeded with Goodman about a video on Goodman's phone, and then Poltorasky returned to Rose's car.

9The two of you had got out of the back seat of Rose's car.  You approached Court's car and when you got there one of you pulled the driver's side door of Court's car open, and that you demanded that you be given the keys to the car.  One of you was holding a wheel brace, the other was holding a knife.  The prosecution is unable to specify who had which weapon. 

10The one of you who had the knife held the knife at Court's right shoulder and poked him with it and said he would stab Court 70 times if he did not give the car keys to him.  He then proceeded to pull Court out of the car whilst the other one of you searched the car for the car keys, which Court had earlier thrown into the footwell of the passenger seat.  One of you told Court to find the keys, which he did.  He then handed the keys over to you. 

11Courtney Adams grabbed both her wallet and phone and Court's wallet and phone before getting out of the car, and then Court and Adams fled to Goodman's car.

12While this was occurring, Rose and Poltorasky had begun to drive away in Rose's car.  The two of you got into Court's car and drove off, away from Canadian Lookout.

13Once you left, Adams called Triple 0 and between 6.42 and 6.45 am on
29 September the two of you are captured on CCTV footage attending a Caltex service station in Lucas.  You were driving Joshua Court's silver Commodore.

14On 30 September Court's vehicle was located at Clunes.  The vehicle had been set on fire and completely burnt out.

15That same Wednesday, 28 September, Pauline and Jack Schmidt returned home from work and went to bed at approximately 2 am.  Both of their cars were at their address.  When Schmidt woke up the next day both cars were gone, they were a grey 2009 2017 Toyota Land Wide Cruiser.  Pauline Schmidt checked the pantry in the kitchen and found that both spare keys to the cars were gone and she had not given anyone to take those cars. 

16The morning of Friday 30 September, Michael Campbell was on his way to work in Bacchus Marsh.  Campbell stopped and parked his black Holden Commodore sedan in Bacchus Marsh and as he parked his car, he noticed a white Toyota Land Cruiser drive towards him in the opposite direction.  The white Toyota Land Cruiser was being driven by the two of you.  It was the 2017 Land Cruiser owned by Pauline Schmidt.

17As the Land Cruiser drove past, it broke suddenly and Campbell saw two young Caucasian males look down towards him, who then drove away.  Campbell got out of his car and went towards the service station to get some food.  He was returning to his car when he noticed the Land Cruiser had returned and was in the car park near the supermarket. 

18The Land Cruiser then drove up to Campbell where you, Aiden Gray, asked Campbell if the car parked on the other side of the road was his key, and how long he had had it.  Campbell said it was his car and that he had not had it for long. 

19Mr Gray, you then got out of the car and you were holding a knife in your right hand and demanded Campbell give you his car keys saying 'it's not your car anymore, give me your fuckin' keys'.

20Campbell refused and you, Mr Gray, stepped forward and he grabbed your right arm.  As this was occurring you, Mr McGuire, got out holding a silver baseball bat.  Upon seeing this Campbell let go of Gray's right hand, turned around and the two of you briefly returned to the Land Cruiser. 

21You, Mr Gray, then exited the Land Cruiser and approached Campbell armed with a silver baseball bat.  McGuire also exited the Land Cruiser and followed Gray towards Campbell.

22Campbell stopped running and confronted both of you.  He lunged at you,
Mr Gray, to grab the baseball bat.  He dropped his car keys prior to this on the ground and you swung the bat twice, Mr Gray, missing Campbell the first time but hitting his hand the second time, and you, Mr McGuire, attempted to punch and kick Mr Campbell.

23During the scuffle you, Aiden Gray, grabbed Mr Campbell's keys and then both of you returned to the Land Cruiser.  Mr Gray, you got into the driver's seat and Mr McGuire went to the front passenger seat.  You left the front passenger side door open.

24Mr Campbell approached the front passenger door and gained access to the vehicle.  Whilst inside the vehicle Campbell was struck to the forehead by you, Mr Gray, and kicked in the shoulder by Mr McGuire. 

25Mr Gray you reversed while the passenger was inside and the vehicle spun 180 degrees in a spinning motion.  Once the car was stationary Mr Campbell got off the passenger side door of the Land Cruiser before you, Mr Gray, drove off in an easterly direction before Bennett Street. 

26Campbell realised that his keys were gone but also saw that one of the accused had dropped their mobile phone onto the middle of the road.  He picked it up and put it in his pocket and after driving a short distance down Bennett Street, Mr Gray then performed a U-turn and drove back towards Campbell.  When you reached him you said 'give me the phone and you can have your keys'.  He then returned your phone and you returned the car keys.  Mr Campbell then walked away from the car and the two of you drove off towards Gisbourne Road. 

27As a result, Campbell received bruising on his forehead, cuts on his knuckles, and grazing on his left shoulder.  The entirety of this incident was captured on CCTV footage. 

28Police arrived at the scene and found a small hunting knife and a metal baseball bat amongst other items.

29At about 9.30 am on 30 September 2022 the white Toyota Land Cruiser was found unoccupied in Williamstown North. 

30On 1 October the two of you were arrested at a motel in Essendon and a small amount of methylamphetamine was found in Mr McGuire's possession. Each of you were interviewed and made no comment answers and you were remanded in custody on that day.

31At the time of the subject offending you, Mr McGuire, were subject of a community corrections order imposed on 1 August in the County Court.

32Victim impact statements were received by the court, the first was from Joshua Court.  He writes that before the offending, when his vehicle was taken from him by use of a weapon, he was outgoing and enjoyed his life.  He was at ease meeting new people and was a lot more trusting and open.  He and his large group of friends felt safe, both at home and out.  He felt happy and stable in his life circumstances. 

33That changed when the two of you carjacked his car.  His confidence was gone and he distanced himself from friends, losing many of them.  He now finds it hard to socialise and trust people.  He is anxious and hypervigilant.  Many things trigger anxiety and life has become more difficult, sensing danger especially in public places. When you took his car you also took his identification cards and keys.  He worried for his mother's safety.  He is having a hard time recovering from the trauma resulting from your conduct. 

34The lack of a car made his life difficult, having to rely on others.  He lost his grandfather's tools in the taking of the car as well as car parts.  Up to this last February he had not been able to afford to replace the car, and this has meant he has been unable to get a job.  This has changed the way he views the world and he fears he has lost his old self.

35This kind of impact is the kind of trauma that the court sees every day in violent offences, and such effects are often long lasting and profound, while those who commit such offences are completely oblivious to such deep impact, and I take this victim impact statement into account in sentencing.

36Michael Campbell also provided a victim impact statement.  He too had his general life outlook damaged by your offending.  He feels he cannot enjoy life as he used to be able to do and he is hypervigilant, looking over his shoulder, particularly when out of his car.  His patience has been impacted and his anger has increased.  He feels unsafe at home also.  The car had sentimental value and he had built this vehicle with his father to replace a stolen first car.  He had bruising and a large lump on the forehead due to being punched, as well as cuts and grazes, and I take his victim impact statement into account.

37Given the timeframe involved, I consider that this course of conduct was essentially a crime spree which you engaged in for your own pathetic enjoyment at the expense of others, without any regard for the rights or dignity or safety of others.  I regard this behaviour as serious offending, which requires denunciation as utterly unacceptable and which should attract deterrent punishment and adequate retribution.

38The offences here involve the kind of armed robbery on soft vulnerable targets and the carjacking while in possession of a weapon, are all too frequent and cause the community consternation and real concern. 

39In relation to aggravated carjacking the Parliament has seen fit to provide for a maximum penalty of 25 years' imprisonment and a mandatory non-parole period of three years' imprisonment for adult offenders, pursuant to s10AD of the Sentencing Act 1991.

40The legislation I note also provides for an exemption if the court finds that a special reason exists in accordance with s10A of the Sentencing Act.  It was not submitted in either of your cases that such a special reason exists, which would allow the court to explore alternate dispositions and both defence counsel candidly submitted that immediate terms of imprisonment with a head sentence is the only appropriate penalty available to the court.  Each of defence counsel submitted the court should look at the period of parole as one which was delineated by the mandatory minimum, with the head sentence being relatively a short period above that minimum.

41In relation to the first indictment related to the aggravated carjacking you did not plead guilty.  You are not to be punished additionally for having done so, as you were entitled to put the prosecution to the proof of the charge.  However, the consequence of the verdict is that you have foregone the benefit of a reduction in your sentence had you pleaded guilty to that charge.

42As to the second indictment to which you pleaded guilty, your plea will reduce your sentence as to each charge.  The plea of guilty has a utilitarian value of having avoided a criminal trial.  Although your respective plea of guilty came in November of 2023, the indication had been that this was a likely outcome after your committal.

43On two occasions in May 2023 and February 23 defence offers had been made to the prosecution for a plea to armed robbery.  I consider that this plea to armed robbery was therefore an early plea attracting a full discount.

44Fletcher McGuire, I take your personal circumstances into account.  You are 21 years old and you were 19 at the time of the offending.  Given your age I should deal with you as a youthful offender.

45You come from a relatively stable and supportive family.  In more recent times your family has suffered the death of your sister in tragic circumstances.  The consequences of this sentences without doubt renders their anguish even more acute and I have taken into account their extreme hardship in these sad circumstances.

46You were raised in Clunes and are the second eldest of three children.  Your father engaged in factory work, your mother was a police officer.  They are now publicans in a hotel in Clunes. 

47Neither of your siblings had any issues with substance abuse or mental health issues.  You did not experience trauma or neglect or abuse. 

48You attended high school in Ballarat and then displayed persistent difficulties with concentration and hyperactivity by the time you reached Year 8.  You gravitated towards antisocial peers and you began heavy substance use.  In Year 8 you were suspended more than 10 times for fighting.  Your Year 9 attendance declined, and oppositional behaviour escalated.  You left school prior to completing Year 9.  You had an oppositional view, resisting your parents' advice. 

49By age 14 you were using marijuana, cocaine, MDMA and ice.  Despite this drug use you did find work in landscaping and some construction work.  You completed a landscaping certificate at Federation university where you met Aiden Gray. 

50You left home at 16 and your use increased. Your parents expended significant amounts of money to enter a rehab facility, but you left after one month and you resumed ice use. 

51By age 19 you had received your first custodial term.  When you were released your uncle gave you work in labouring.  After six months you relapsed, again committing offences and ended up in custody.  You had been out for a week prior to the carjacking in September of 2022.

52Your prior criminal history begins in 2021 with offences which included reckless conduct endangering life by use of a motor vehicle, assault with intent to rob, aggravated burglary, recklessly cause injury, assault, dangerous driving while pursued by police, and possession of a controlled weapon.  You received 12 months' probation.

53In August 2022 you appeared before this court charged and convicted of driving whilst disqualified, burglary, theft, possession of firearms, reckless conduct endangering serious injury and you were sentenced to 10 months and an 18-month community corrections order. 

54I do not recite these priors because you are to be punished against for them, you are not, but because they are relevant matters to consider in the context of assessing your prospects of rehabilitation and the weight of specific deterrence.

55Dr Matt Treeby, a neuropsychologist, wrote a report which was tendered on your behalf dated 4 January 2024.  He described the lack of any history of psychiatric hospital admissions, but that you had in the past been prescribed anti-depressant medication to manage anxiety.  At the time of the assessment, you were not taking this anti-depressant. 

56Medical records from Ballarat Health noted by Mr Treeby related to numerous hospital treatment occasions, which included orthopaedic injuries, lacerations and other soft tissue injuries sustained in multiple motorbike accidents between 2007 and 2019.  There is no evidence of any major brain related trauma.

57In the context of an altercation in 2020 you received a fractured jaw, but this too did not result in enduring cognitive impairment. 

58In 2021 a CT brain scan following another laceration revealed no skull fractures or haemorrhage.

59In November 2020 you had a polypharmacy overdose of 12 Seroquel and MDMA, Xanax and cannabis.  You were transferred to Ballarat Hospital.  You first tried alcohol aged 12 and have binge drinking habits thereafter.  You tried methamphetamine age 14 with an escalation of use leading to 3-4 grams per day of ice, leading to a state of wakefulness for two or three weeks at a time.  Upon your recent release you relapsed into heavy methamphetamine use.

60At age 17 you used Xanax regularly and this was crucial to your previous history.  In the lead up to these offences you told Mr Treeby that you were taking GBH daily up to 80 mils.  You used cocaine since age 13 and used most weekends up to age 18. 

61In July 2022 you underwent a psychological assessment by Dr Cunningham.  He diagnosed a generalised anxiety disorder and ADHD.  He described you as a risk‑seeking individual with traits consistent with ADHD, a tendency to reckless self-destructive acts with little consideration for the consequences either for yourself or for others. The abuse of ice would increase these tendencies substantially. 

62When you were released just before the offending you relapsed to drug use.  You had been awake for two or three days. 

63You have family support and can see that living with them in Clunes may be a good choice at this point of time in order to avoid bad company and seek to resume living in the family home.  You are prone to boredom but have high sensation seeking personality traits, impulsivity and anger. 

64Mr Treeby outlined the tests he administered and their results.  Your intellectual skills are in the low average range.  Your intellectual ability in the borderline range.  Verbal comprehension, visual memory and information processing skills were tested.  As to executive function, there was clear evidence of impulsive tendency.  Anxiety symptoms were severe and stress symptoms fell in the extremely severe range. These tests confirmed
long-standing difficulties with attention and behavioural impulsivity but no acquired brain injury.  You are easily overwhelmed and may be inclined to resort to ineffective problematic coping solving strategies with aggression or risk-taking behaviour.

65You impressed as behaviourally and emotionally immature and limited in other oriented thinking, meeting the criteria for oppositional defiant disorder during the developmental period, and now maintaining some antisocial attitudes, beliefs and behavioural tendencies.

66Dr Treeby would regard you as meeting the diagnosis for attention deficit hyperactivity disorder.  You would benefit from a referral to a psychiatrist to trial stimulant medication.  You would also in the opinion of Dr Treeby benefit from ongoing close monitoring upon your release to ensure a risk to self and others is minimised. You would benefit from counselling with a clinical psychologist. 

67I accept that the acute adverse effects of substance use on your decision‑making behaviour control played a significant role in the commission of your offending.  Your use of substances is clearly problematic leading to a diagnosis of stimulant use disorder.  You are at risk of poor psychological outcomes if you relapse when you are released, leading probably to future offending.

68Drug and alcohol counselling while in custody is essential.  Dr Treeby writes that there is no evidence to suggest your ADHD and cognitive limitations would increase the burden of incarceration.  However, your low mood and anxiety may increase the burden during an extended custodial term leading towards being socialised towards criminality in the proximity of the prison setting, and I take this report into account.

69I take into account references and letters of support received on your behalf.  Your friend, Mr Hyde, writes of your participation in football and good standing amongst peers in that community.  He writes of your support by family and friends.  Alan Lench, a part-time employer writes of your efforts at battling addiction and good work conduct. 

70Your mother, who was present in court at your plea and trial, also wrote a letter in which she highlights your remorse, your challenging early years in which you channelled your energy into sporting activities, your difficulties at school and with your first employment and the landscaping and construction business.  She writes of you leaving home after starting your first relationship and you began to distance yourself from your family and developed a serious drug addiction.  When you started to go astray the family helped you to enter a 30-day program of rehabilitation, after which you returned to work until you relapsed and continuing in and out of trouble ever since.  She expresses your family enduring and fervent support and I take this impressive plea on your behalf into account.

71Given your age, your endeavours to return and remain in employment, and your family support are factors which are positive and may be conducive to your rehabilitation.  Your past history shows that you can engage in prosocial vocational and meaningful activity with people around you who can provide opportunities for a better future.  The rehabilitation of young offenders is an important consideration and is a worthwhile and important policy in the criminal justice system.  In your case this aim is shaped by a mandatory punitive scheme which constrains the court in its full application of this policy.

72In a case such as this, your offending on these occasions has meant that you have really jumped from trouble into a raging fire.  Your counsel fairly submitted that the court had no other option, given your lack of special reasons, to take any other course and none of the Verdins limbs could be called into application.  The prison term the legislation requires is significant. 

73So far on remand you have not been able to access any courses or programs which can provide you with some starting point.  I was urged to apply a head sentence which would encourage rehabilitation as it is within a proper exercise of the sentencing discretion, and I intend to do so.

74Aiden Gray, you are 21 years of age, you are the youngest of three siblings.  Your parents separated when you were very young.  Contact with your father thereafter was inconsistent and unstable due to his drug addiction and periods of imprisonment.  When you did see him, you were exposed to drug use and violence including witnessing him being stabbed when you were some six years of age.

75Around this time, you told a forensic psychologist in December 2023 of other abuse you experienced referred to in paragraph 37 of her report.  Your mother re‑partnered but soon after the birth of your half-brother that relationship ended.  Your mother found herself needing to support four children as a single parent, at times working seven days per week.  During this period you cared after your little brother, left alone to do this. 

76This dysfunctional environment translated during the high school years into drug use, behavioural problems and associating with troublesome peers.  You were regularly suspended and expelled.  By age 13 you ran away from home, you were homeless and couch surfing, staying for a while with your father, which according to your mother made your behaviour worse.

77When you began a relationship with a girl and for a while resided with her parents, you found a job plastering with your brother-in-law, but following a disagreement with him you left and fell out for a while with your sister, who was also a friend of your girlfriend.  You have managed to be on good terms again with your sister and you would like to return to plastering in the future, you told forensic psychologist, Marlese Bovenkerk.

78The relationship, you said, was toxic.  After the breakup with her there followed a period of animosity and belligerence from her family which involved stalking and threatening behaviour upon you.  During this period your drug use escalated.  You were part of a social group which used drugs regularly. 

79Your mother bought you a car which was damaged by your ex's family.  Your mental health was seen to be declining, you were angry and frustrated and your mother reports that your drug use and behaviour deteriorated to the extent that she could no longer have you at home.  These offences were the culmination of this unstable period which further impacted on your mood, behaviour and sense of self. 

80A report from Ms Bovenkerk dated 24 January 2024 was received.  It was extensive and detailed.  She outlined your family, relationship, educational and employment history.  She set out a mental health history reporting long-standing issues of anxiety and depression as well as recurring thoughts about past trauma.  You find it difficult to engage in counselling as noted by Ms Bovenkerk in her assessment task. 

81You have previously experimented with self‑medication to help you relax and improve sleep.  A substance use history was outlined beginning with cannabis and escalating to methamphetamine, pills and alcohol.  This use was substantial. 

82As to the circumstances of the offences committed, you profess no clear memory of either events, apart from feeling angry and irritable.  A number of tests were administered after examination.  Your lack of motivation to engage in these tasks was noted at paragraph 83 and 122 and they may be summarised briefly.

83Although not able to be formally diagnosed on the tests, you have a very high similarity to individuals who have ADHD.  You display moderate symptoms of anxiety and moderately severe levels of depressive symptoms.  Ms Bovenkerk assigned only a provisional Post Traumatic Stress Disorder with only moderate symptomology at moderate levels affecting mood and functioning, though clinically significant.  She diagnosed stimulant and cannabis use disorders, currently in remission, and emerging antisocial traits.

84She opined that the cumulative experience of trauma and instability had a deleterious effect on your emotional and cognitive development, effected self-esteem and identity formation as well as personality development and general functioning and interpersonal relationships.  This impact impaired emotional control and propelled self‑destructive and impulsive behaviour.

85The presence of ADHD symptoms were complicated by your drug use disorder which would have rendered you more impulsive and reckless and impaired your judgment, although Ms Bovenkerk points out that the depressed and anxiety symptoms are not a causal nexus to your offending.

86Nevertheless, an accumulation of these negative states can also impact decision making.  I accept that this assessment highlights the principles in Bugmy as relevant to the sentencing exercise which would moderate the weight to be given to specific and general deterrence, as well as directing particular attention also to the weight of moral culpability derived from your prior history.

87The defence recognise that the same principles also serve to increase the importance of community protection.  This aspect is validated by the risk assessment Ms Bovenkerk carried out at p111-122, in which it is said that you are at high risk of general reoffending.  I note that these risks are considered by the writer to be amenable to treatment with appropriate intervention and engagement, subject always to your ability to abstain from drug use. 

88I have taken the Bugmy amelioration into account and assigned it what, in my view, is appropriate weight in reduction of penalty.

89I also accept that what was submitted by the defence was that limb 4 of Verdins principles applies to you, that is that imprisonment would likely weigh more heavily on you than other persons without your conditions.[1]  Although this is not a serious risk of exacerbation, the writer notes the risk of inappropriate response to the volatile nature of reclusion is present.  I take the contents of the report into account.

[1] See section 142 of the report

90Similarly as to Mr McGuire, defence submitted that no other sentencing option was open to the court but imprisonment. Given the insufficiency of this material to rise to the level required to meet s10AD(1) and s10A of the Sentencing Act, it was nonetheless submitted that your sentence should be structured to increase your prospects of rehabilitation, to allow for a significant period of support and supervision.

91You have a relevant prior criminal history.  Not, I should note, as extensive as Mr McGuire's, but one which nevertheless is relevant.  You have a prior in 2019 for armed robbery, which was dealt with in the Children's Court and which resulted in a youth supervision order for 12 months, together with burglary and theft.

92In 2018 you had matters of assault in October and June, both of which were dealt with by probation orders.  These priors, particularly the armed robbery offence, is troubling and impacts on your assessment for your prospects of rehabilitation and the need for specific deterrence.  Much of your rehabilitation will depend on your ability to remain drug free.  Given your reluctance to engage with treatment, this is somewhat problematic and will require attention over the course of your imprisonment and the course of your parole.

93You are still young of age, your psychological and neurological limitations all indicate that your rehabilitation may remain fraught with setbacks, particularly when impacted by the potential criminogenic effects of imprisonment and exposure to other offenders and the realities of incarceration.

94The court in this is constrained by the applicable legislation and whilst seeking to echo the analysis of the Court of Appeal in Buckley, it is bound to apply the governing provisions. 

95I hope that unlike your remand period that you take up the opportunities to work, for education and other programs which you will be able to access.  I note that you have been a billet whilst on remand.  I hope you take up opportunities for engagement in counselling and find the resolve to rehabilitate yourself, because you have the potential for a good future if you so desire.  You might not believe you need treatment, but unless you take the step to engage with others in that work, your prospects may remain in doubt.

96On the issue of parity, in my view there is and should not be any real disparity as between the two of you in relation to sentence.  You acted together and your similar background and relevant factors indicate it would be unfair and artificial to so differentiate.  While you, Aiden Gray, have a prior for armed robbery, you Fletcher McGuire were the subject of a community corrections order imposed in August 2022 by this court.  I have mentioned the relevance of your prior for armed robbery, Mr Gray, and your commission of this offence Mr McGuire while on a Community Correction Order, because it is an aggravation of the offence but when I weight these considerations they do not, in my view, give reasons for disparity between you.

97Fletcher McGuire, on aggravated carjacking you are convicted and sentenced to three years and three months' imprisonment.

98On the plea indictment for armed robbery, you are convicted and sentenced to three years' imprisonment.

99On theft of the motor vehicle, you are convicted and sentenced to six months' imprisonment.

100On the possession of drug of dependence, you are convicted and sentenced to two months' imprisonment.

101I order that one year on the sentence of armed robbery, two months on the sentence of theft be cumulative on the sentence for aggravated carjacking, making a total effective sentence of four years and five months.

102I order that you serve three years' imprisonment before being eligible for parole, with the sentence for possession of a drug of dependence being concurrent.

103On aggravated carjacking Aiden Gray, you are convicted and sentenced to three years and three months' imprisonment.

104On armed robbery you are convicted and sentenced to three years' imprisonment.

105On theft you are convicted and sentenced to six months' imprisonment and I order that one year of the armed robbery sentence, and two months on the sentence for theft be cumulative, making a total effective sentence of four years and five months.

106I order that you serve a period of three years before being eligible for parole.

107As for the plea indictment, but for your plea I would have sentenced you to five years' imprisonment with a non-parole period of three years and nine months.

108I declare that both of you have each served 552 days by way of pre-sentence detention and I shall note that number for the court's records.

109COUNSEL:  As Your Honour pleases.

110HIS HONOUR:  I do not believe there are any ancillary orders, are there?

111MS MARTIN:  Yes, a disposal order in relation to the plea indictment.

112HIS HONOUR:  Yes, I will sign that order when it is made available to me.

113MS MARTIN:  Thank you, Your Honour.

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