Director of Public Prosecutions v Gufla
[2019] VCC 957
•27 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00259
Indictment No: J11849480
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENHUI GUFLA |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 6 & 11 June 2019 | |
DATE OF SENTENCE: | 27 June 2019 | |
CASE MAY BE CITED AS: | DPP v Gufla | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 957 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited:R v McGaffin [2010] SASCFC 22; R v Mills [1998] 4 VR 235; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; DPP v Lawrence (2004) 10 VR 125; R v Connolly [2004] VSCA 24; Gosland v R; McDonald v R [2013] VSCA 269; R v Tran (2002) 4 VR 457; Scott v R [2013] VSCA 347; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43; R v Vuadreu [2009] VSCA 262; Binse v The Queen [2016] VSCA 145; DPP v Davis [2017] VSCA 341; Wright v The Queen [2015] VSCA 333; DPP v Kargan [2017] VCC 1505; R v VZ [1998] 7 VR 693; R v Lefebure (2000) 31 MVR 131, (2000) 112 A Crim R 41.
Sentence: Total effective sentence of 3 years’ 10 months’ imprisonment, non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. McGarvie | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr A. Waters | Dowling McGregor |
HER HONOUR:
1 Benhui Gufla, you have pleaded guilty to one charge of aggravated burglary, the maximum penalty applicable for this offence is 25 years’ imprisonment, and three charges of theft, the maximum penalty applicable 10 years’ imprisonment on each charge.
2 Your offending arose out of events which occurred on 15 July 2018.
3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A.
4 I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing. You have a very concerning and relevant criminal history.
5 I turn to a summary of your offending.
6 At the time of it you were 18 and you are 19 at sentence. A co-offender, Braydon Boone[1] was 14 years of age at the time of the offending. There were also two other unidentified co-offenders involved.
[1] A pseudonym.
7 Your counsel, Mr Waters, confirmed parity was not an issue in this case and such was not being relied upon by you, as Mr Boone was dealt with in the Children’s Court.
8 The prosecutor also agreed parity was not an issue, in particular, in light of your significant and relevant priors. You also had previous periods in detention.
9 On 15 July 2018, the victim, Charan Naralasetti, was working alone in the Coles Express Service Station at the corner of Queen and Victoria Streets, Altona Meadows. The victim had driven to work and parked his vehicle, a red Hyundai Elantra, in a parking bay at the service station.
10 The Coles Express Service Station operates 24 hours a day. As part of the security measures, the front sliding glass door of the store is locked between 8.00pm and 5.00am, preventing entry by members of the public unless access is granted by the store attendant.
11 At approximately 3.15am, you and Mr Boone, together with the two unknown co-offenders, approached that Coles Express store from behind. You were wearing a blue hooded jumper your face concealed with a white covering and were armed with a hammer.
12 Your co-offender, Mr Boone, was wearing a grey hooded jumper and had his face concealed with black covering. The first unknown co-offender (number 1), was wearing all black and had a navy head covering. The second unknown co-offender (number 2), was wearing a blue and black jacket with a black face covering and was armed with a black and brown imitation firearm. All four of you were wearing gloves.
13 As you approached the service station, Mr Naralasetti was inside stocking a fridge from within the office area. He saw the four of you run up to the sliding door on a CCTV monitor, and then try to force the door open.
14 Mr Naralasetti saw that one of the offenders was armed with a firearm and another with a hammer, and he felt terrified. He closed the office door, locked himself in, hid behind a filing cabinet and called 000.
15 Unknown offender 1 forced open the locked side entrance door by hand. You entered the store carrying the hammer (Charge 1, aggravated burglary person present) and were followed into the store by your three co-offenders.
16 Once inside, the four of you proceeded to the counter area containing the cigarette cabinet and lay a sheet on the floor. You emptied the cigarettes from the cabinet onto the sheet. You attempted to pry open the cash drawer with the claw of your hammer before assisting Mr Boone and unknown offender 2 to pile the packs of cigarettes onto the sheet. Unknown offender 1 located the key to Mr Naralasetti’s vehicle within the counter area and took it.
17 After all the cigarettes were wrapped up in the sheet, you and your co-offenders ran from the store with the cigarettes (Charge 2, theft).
18 You, Mr Boone and unknown offender 2 ran behind the store. Unknown offender 1 ran to Mr Naralasetti’s red Hyundai motor vehicle and used the key to gain entry to the car. He drove away in that vehicle (Charge 3, theft of motor vehicle).
19 After you and your co-offenders left the store, Mr Naralasetti ran out of the office while on the phone to police and saw his car being driven away following a green Holden Commodore on Queen Street towards Altona and gave the police that information.
20 This incident was captured on CCTV cameras at the service station.
21 At approximately 3.40am on 15 July 2018, Sergeant Bosnar was patrolling in a marked police vehicle on Maidstone Street, Altona. He approached the 7-Eleven Service Station at the corner of Maidstone Street and Jordan Close and saw a green Holden Commodore and the stolen red Hyundai Elantra parked behind that 7-Eleven. The cars were parked with the headlights on, side by side, approximately 20 metres behind the service station.
22 The green Holden Commodore had been stolen in an aggravated car-jacking in Derrimut earlier that morning (approximately 2.01am) from Sukhandeep Singh. Mr Boone and three unknown offenders were involved in that aggravated car-jacking. It is not alleged you were involved.
23 Sergeant Bosnar drove through the service station into Jordan Close and, as he did this, the stolen green Holden Commodore and the stolen red Hyundai Elantra drove off at a fast rate of speed. He followed those vehicles.
24 Members of the Critical Incident Response Team (CIRT) were patrolling the area and saw both stolen cars drive through the intersection of Kororoit Creek Road and into Horsburgh Drive (a dead-end street).
25 Sergeant Bosnar and members of CIRT stopped near the intersection of Horsburgh Drive and Kororoit Creek Road to wait for police backup. While waiting, they saw the stolen green Holden Commodore drive back out of Horsburgh Drive and turn into Kororoit Creek Road. Sergeant Bosnar followed the stolen green Holden Commodore while members of CIRT proceeded into Horsburgh Drive.
26 Members of CIRT located the stolen red Hyundai, which had been smashed through a fence on the incorrect side of the road and collided with a tree. CIRT located Mr Boone walking away from the scene of the collision and he was arrested.
27 Sergeant Bosnar continued to follow the stolen green Holden Commodore. It attempted to turn right into Drake Boulevard from Kororoit Creek Road, mounted the centre traffic island and collided with a concrete barrier at the intersection.
28 You and an unknown co-offender exited the stolen green Holden Commodore (Charge 4, theft of motor vehicle) and ran towards Kororoit Creek Reserve. Police chased you on foot. You attempted to jump a fence but surrendered when challenged by police at gunpoint. You were arrested. The other unknown offender was able to climb over the fence into an industrial yard and could not be located. Police saw the third offender exit the stolen green Holden Commodore and run north into Drake Boulevard. That offender was also not located.
29 When police searched the stolen green Holden Commodore they located a blue-handled hammer, gardening gloves, cigarette packets, cigarette papers and what appeared to be shop-related cigarette displays. The stolen red Hyundai was also searched, and police located one packet of cigarettes and one black and brown plastic imitation handgun.
30 The cigarettes stolen during the aggravated burglary at Coles Express were never located and had a value of $6,677.
31 When questioned by police, you answered “no comment” during the interview which was, of course, your right.
32 You indicated your intention to plead guilty to these charges at a committal-mention. The prosecution accept yours was an early plea of guilty and that no witnesses were required to give evidence at either a contested committal or at a trial. Following your offending and arrest on 15 July 2018, you were remanded in custody. Thereafter those representing you attempted to resolve this matter, ultimately resolving on 7 February 2019. The committal hearing listed for 8 February 2019 did not proceed as the matter had resolved.
33 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial, and witnesses have been spared the ordeal of having to give evidence upon your trial.
34 I also take into account in your favour you intimated early your intention to plead guilty to these charges. I note you were observed getting out of the stolen green Holden Commodore by police and arrested at the scene i.e. apprehended at the scene.
35 I am prepared to accept your pleas of guilty indicate some remorse for your offending, however I am concerned about the extent of your remorse, in particular, given your very relevant and extensive prior criminal history.
36 An aggravating feature of your offending was your attempt to disguise your face and wearing gloves in an attempt to avoid being identified as an offender in this crime.
37 I note you were on youth parole at the time of this offending.
38 As at 6 June 2019, you had spent 326 days in custody by way of pre-sentence detention up to and including, 5 June 2019.
39 There were no Victim Impact Statements before me. I can and do however note Mr Naralasetti’s Statement made to police, sworn 15 July 2018. He was the employee at the Coles Express Service Station. He described seeing four people run up to the entrance doors; one with a white mask and the others facial disguises. He described being terrified and hiding behind a filing cabinet and calling 000. He said he had never experienced anything like that before and he was in shock. After this incident, he did not want to work nightshift again. It scared and shocked him seeing the handgun, and the hammer was the scariest thing that had ever happened in his life.
40 You have a very concerning criminal record for your age. You first appeared at Melbourne Children’s Court on 21 October 2016 on a large number of charges which included eight charges of attempted theft of a motor vehicle, eight charges of criminal damage, four charges of armed robbery, nine charges of theft, eight charges of intentionally damaging property, two charges of attempted armed robbery, two charges of attempted robbery, one charge of robbery, and other offences. On that occasion, you were released on a Youth Supervision Order for a period of 12 months. That hearing involved a consolidation of a number of separate police briefs.
41 You next appeared on 28 September 2017 for the breach of that Youth Supervision Order and on the offences to which I have previously referred, you were sentenced to a Youth Justice Centre.
42 That same day, at the Melbourne Children’s Court, you were also sentenced for other offences of robbery, attempted aggravated burglary, intentionally cause injury, theft of a motor vehicle, fail to answer bail, carry a controlled weapon without excuse and contravene a condition of bail, and two charges of armed robbery. Part of that sentence was to be served concurrently with the sentence imposed in relation to breach of the Youth Supervision Order. The total effective term was 16 months in Youth Justice Centre. You were released on youth parole on 5 February 2018, this offending just 5 months approximately later.
43 Shortly after that appearance, you appeared at the Melbourne Children’s Court on 21 December 2017 on two charges of affray, two charges of unlawful assault and one charge of recklessly cause injury and were sentenced to 5 months’ in a Youth Justice Centre.
44 By way of further information, the prosecution provided details of your prior criminal history by way of Certified Extracts and summaries of your offending. I of course allow for amendments that were likely to have been made to the summaries at those hearings. I read those summaries mindful of that.
45 Regarding your appearance on 21 October 2016 it involved four to five briefs of evidence.
46 Your offending reflected in these briefs involved multiple instances of separate offending between 1 April 2016 and 9 April 2016. Some of it involved damage to cars in order to obtain access to the inside of vehicles and on occasion taking property from within.
47 On 2 April 2016, you produced a knife and took property from a victim. On 6 April 2016, your offending involved you or your co-offenders being armed and taking property from victims. On occasion you offended on your own on other occasions in the company of co-offenders.
48 Approximately 16-18 instances of separate offending were recorded over those dates.
49 When arrested on 12 April 2016 you said you used your mother’s car without her permission at the time of some of your offending.
50 On 28 September 2017 you appeared at court on between 4-5 briefs of evidence, your offending again having occurred on multiple separate occasions between 9 January 2017 and 10 April 2017. One offence involved your attendance at 7-Eleven with a tomahawk, in a car stolen the day prior. Cigarettes were also taken in that offending. On 10 April 2017 a ‘soft target’ victim walking home faced by you holding a knife and demanding property.
51 The offences dealt with on 21 December 2017 occurred whilst you were on remand at Parkville, and on three separate occasions. Your offending involved other co-offenders on 30 June 2017 and 8 October 2017, and it seems just you as the offender on 27 August 2017.
52 Mr Waters urged your offending was “in blocks” with a significant period of time when you didn’t offend between those “blocks”. The dates of your offending in my opinion however reflect persistent and consistent offending.
53 As I have said, you were released from detention on 5 February 2018, this offending occurring on 15 July 2018, approximately 5 months later.
54 As I discussed with Mr Waters, I accept your mother has done her best to lead you along the path of lawfulness over the years, although there are limits to her ability. She is arguably not a protective factor as you took her car without her knowledge and then committed a number of your prior offences.
55 Your counsel, Mr Waters, prepared a written outline of submissions for your plea hearing and addressed them during the course of it. He referred to your background. You were born in Eritrea and fled civil war to a refugee camp in Uganda. As a result you experienced significant trauma, as outlined within his submissions 1(b)(ii). I accept your experiences as described and such is a relevant sentencing consideration.
56 When you were approximately 10 years of age in 2009, you resettled in Tasmania before coming to Melbourne in 2010.
57 You were in unstable accommodation for a number of years before being placed in permanent accommodation in South Melbourne in approximately 2014. You were raised by and continue to live with your mother; and in Court to support you during your plea hearing was your mother and sister, Lydia, and for part of the hearing, Eleanor Ewart, youth justice worker, not currently assigned to you, she had however worked with you previously in Youth Justice. I was advised there would be breach proceedings following this hearing regarding your parole, and that you apparently owed ‘a number of months’.
58 Mr Waters submitted the information he had from Youth Justice was that returning to the youth justice system could potentially enhance your prospects of rehabilitation. I have of course considered not only that submission, also all other relevant sentencing considerations.
59 You described a limited education, attending Thomastown Secondary College to Years 7 and 8. You did not have a good command of English and had difficulty making friends. You were subject to racial bullying at school.
60 You enrolled in VCAL at St Kilda Youth Services, however, did not complete that course.
61 You worked with your brother in a cleaning business after your release in February 2018 until remanded for this offending in July 2018.
62 You began consuming alcohol from age 12, Ice from age 14-15 and cannabis and Xanax from the about age 15. You described being abstinent from illicit drugs after release in February 2018 until this offending. No confirmation of that was before me and as I discussed with Mr Waters your self-report to Ms Cidoni was that you had been using drugs heavily in the week prior to this offending and also on the day of it.
63 This is the first time you have served a sentence of imprisonment and I am well aware of that.
64 I was told by Mr Waters regarding this offending that you had been invited, by a friend, to spend the day together for a birthday, although I note your self-report of using drugs heavily in the week prior to this offending. You also reported on the day of this offending you consumed alcohol and Ice and had little recollection of it.
65 Mr Waters urged that young offenders were more prone to ill-considered or rash decisions citing R v McGaffin[2], and submitted young offenders had the greater potential to be redeemed and rehabilitated. I am aware of R v Mills[3] and discussed that with him.
[2][2010] SASCFC 22 [69]
[3][1998] 4 VR 235 (‘Mills’)
66 Whilst Mills is relevant when sentencing youthful and young offenders, which you are, he conceded those principles were not of automatic or usual application. Each case depended on its circumstances, including the circumstances of the offending as well as the offender (see DPP v Lawrence[4]). Relevant is your extensive and relevant prior criminal history.
[4](2004) 10 VR 125
67 In R v Connolly[5], Coldrey J, referred to the principles in Mills and stated:
“No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence or offences committed (and the just punishment therefore); the need for deterrence (specific and general); the offender's prospects of rehabilitation; and the need to protect the community may need to be reflected in the sentence imposed.”
[5][2004] VSCA 24
68 That was confirmed in Gosland v R; McDonald v R[6]
“… It is apparent from his Honour’s sentencing remarks that he paid close attention to the principles essayed in R v Mills. As his Honour observed, however, the premium which is placed on the rehabilitation of youthful offenders must be balanced against other sentencing considerations such as general and specific deterrence, denunciation and community protection. More specifically, as Batt JA explained in R v Lawrence, the general propositions enunciated in R v Mills are just that, general propositions, and they are not to be treated as if they were of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offence as well as of the offender. That is particularly so where a sentencing judge is required to deal with a case of gratuitously violent offending in a public place by youthful offenders under the influence of alcohol or drugs; especially where, as here, the offender has had previous opportunities to rehabilitate through community-based orders and Youth Justice Centre orders and in effect has thumbed his nose to those chances. Additionally, as Batt JA said, the benefits that flow to youthful offenders diminish the older they become.”
[6][2013] VSCA 269
69 In R v Tran[7], Court of Appeal Justice Callaway said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.”
[7](2002) 4 VR 457
70 In Scott v R[8], the Court cited, with approval, the observations of Redlich JA in Azzopardi v R; Baltatzis v R; Gabriel v R[9]:
“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attributed to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigation effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”
[8][2013] VSCA 347
[9](2011) 35 VR 43 (‘Azzopardi’)
71 As I discussed with your counsel, I do not give up on your prospects of rehabilitation given your age, however there is little to date to give me comfort in that regard. I hope that as you get older you effectively address your offending behaviour, including your use of drugs and negative peer associations. Only then will your prospects of rehabilitation improve. Ultimately it will depend on you.
72 When sentencing you however I seek to maximise your chances of rehabilitation as they may be.
73 Mr Waters submitted the principles in R v Verdins & Ors[10] applied when sentencing you. He referred to your impaired ability to exercise appropriate judgement and your low level of intellectual functioning, which would challenge your ability to make appropriate judgements. In so submitting Mr Waters relied on a Report from Ms Cidoni, Consultant Psychologist dated 4 June 2019.
[10](2007) 16 VR 269 (‘Verdins’)
74 However, Ms Cidoni noted, as do I, your drug use was directly linked to this offending. Your decision to use those substances was yours and whilst you had abstained for four plus months, you used heavily over seven-eight days immediately prior to this offending.
75 Mr Waters urged there be sensible moderation of your sentence relying on Verdins.
76 I discussed Verdins with him, including your “heavy use” of drugs in the week prior to this offending and on the day of it, to the point where you could not recall details of your offending as a result.
77 In R v Vuadreu[11] the Court observed:
“It must be emphasised that Verdins has no application in respect of a condition postulated to exist at the time of the offending unless the condition relied upon can be seen to have some realistic connection with the offending. The Verdins principles are, and should be regarded, as exceptional.”
[11][2009] VSCA 262 [37]
78 In Binse v The Queen[12] the Court observed:
“…the mere existence of a particular mental impairment is not enough. There must be an evidentiary basis, a rigorous examination, and an informed assessment, of either how the disability diminished the offender’s capacity at the time of the offending to reason appropriately concerning the wrongfulness of his or her offending; or, how the condition might make the full appreciation of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing. Before the first, second, third and fourth considerations enunciated in Verdins apply that rigorous examination and informed consideration must reveal the existence of a connection between the impairment of mental functioning and the offender’s moral culpability or the need for general or specific deterrence. If what is relied upon is an impairment existing at the time of the offending, there must be some realistic connection between the disability and the offending. It must be established that the disability affected the offender’s capacity to appreciate the wrongfulness of the conduct, or obscured his or her intent, or impaired the offender’s capacity to make calm and rational choices.”
[12][2016] VSCA 145 [70]
79 Regarding the application of alcohol consumption (and in my opinion also applicable to drug consumption) and Verdins in DPP v Davis[13] the Court stated:
[13][2017] VSCA 341 [62-66] (‘Davis’)
“The submission for CD relied on Professor Brewer’s opinion regarding the ‘compounding impact’ of CD’s alcohol abuse on his intellectual disability. According to the submission, the effect of this evidence was that — far from displacing or reducing the significance of the intellectual disability — the intoxication magnified its effect and, as a result, increased its significance as a mitigating factor.
We would reject that submission. Such a conclusion could only have been arrived at if the expert evidence had stated unequivocally that, in the circumstances of this case, CD’s self-induced intoxication had had no real independent impact on his decision-making on conduct, but had functioned purely as a catalyst, heightening the (involuntary) effects of his disability. This would have been a highly unusual conclusion.
This issue, of the concurrent operation of intoxication and mental impairment, creates particular difficulties the court said sentencing judges. But it is not new. In Wright v The Queen[14], for example, the offender suffered from schizophrenia and had been experiencing psychotic symptoms at the time of the offending. The sentencing judge concluded, however, that the cause of the offending was not the underlying mental illness (which had previously been well controlled by medication) but his taking of methamphetamine instead of his prescribed medication. Thus, although there was active psychosis at the time of the offending, the judge was satisfied that it was the intoxication resulting from the drug taking which was causally linked with the offending. This Court upheld the judge’s conclusion that, as a result, there was no reduction in moral culpability.
In the present case, the court said as we have said, there was nothing to displace the usual inference that CD’s intoxication had had a relevant causative effect.
It follows, in our view, the court said that in the circumstances of this case, the mitigating effect of CD’s intellectual disability and other emotional vulnerabilities was moderate. Any reduction in moral culpability could not have been significant; CD remained to a large degree an appropriate vehicle for general deterrence in respect of offending of this kind; and there was still a real need for denunciation of his conduct.”
[14][2015] VSCA 333
80 In my opinion it is significant Ms Cidoni acknowledged your substance intoxication was linked directly to your offending. Your counsel conceded in relation to Verdins’ principles 1 to 4, the link was “tenuous” although urged some moderation.
81 In my opinion your use of Ice (heavily and over days) at the time of this offending and in the week prior, is relevant when determining what weight if any is to be given to any moderation of your sentence. In my opinion Verdins does not have such application referrable to principles 1-4, in your case. I do accept your time in custody will be more burdensome for you given your background in Uganda and impact of that upon you and that consistent with general sentencing principles such can, and I do, take that into account in some mitigation of your sentence. In my opinion, the opinion of Ms Cidonu that you could suffer discrimination and stigmatisation in custody; and may be at risk of acute mental harm in custody does not enliven Verdins principles 5 and 6, although does have some application consistent with general sentencing principles.
82 Three certificates were before me of courses undertaken by you in custody (Exhibit 3). Certificates of completion for a Leadership and Personal Development course, Youth Substance Use and Emotional Management program and a Numeracy Certificate through Kangan Institute. You instructed Mr Waters you were determined not to return to drug use. Time will tell.
83 I note you had accommodation, family support and employment with your brother prior to this offending, until you left the family home apparently a week prior to this offending. You had support yet offended.
84 Mr Waters conceded your offending would ordinarily warrant a term of imprisonment, however, urged other sentences be considered, including a Youth Justice Centre Order and or a Community Correction Order. I have considered his submissions.
85 I turn to the report of Ms Cidoni. You said your recollection of this offending was not clear as you were intoxicated. That you had been away from home for one week after catching up with a friend and using a lot of drugs in that time.
86 Ms Cidoni referred to a Youth Justice report, 14 July 2016, when you were remanded at Parkville, which stated there were no unidentified concerns regarding your cognitive functioning or mental health. She was unsure however what that testing had involved.
87 Ms Cidoni referred to a Group Conferencing Outcome Report dated 11 October 2016, which referred to some insight into the impact of your offending (generally) upon your victims. At that time, you were expressing a desire to attend school, play basketball, work with Youth Justice and make better choices about friends. I note you were unable to maintain that commitment as you offended on remand at Parkville dealt with at Court on 21 December 2017, and also offended before me.
88 Further details of your family history were provided in Ms Cidoni’s report, including you fleeing the civil war, and being in a refugee camp in Uganda for five years. You had always lived at home with your mother, your father having remained in Africa until 2016. He then came to Australia but was only present briefly in your life and I was told you had no further contact with him.
89 Ms Cidoni referred to your drug use. That between coming out of Malmsbury and being remanded at Port Phillip Prison, you maintained abstinence for four months (although I note from your instructions there was 5 months less 7-8 days), you were working, surrounding yourself with good friends and trying to get a better social circle. You then met up with an old friend and fell back into old habits, and used Ice and Xanax.
90 Ms Cidoni referred to you having previously attended drug and alcohol courses in Parkville. However, it seemed to me that did not deter you from drug use and then offending on the occasion before me.
91 Ms Cidoni estimated your full-scale IQ was 55, with your ability to reason in the extremely low range. You had poor judgement resulting in risk-taking behaviour. Your IQ left you challenged in terms of judgement, problem solving, coping and adaptive skills. I have no doubt your drug use impacts upon this also and I also have no doubt you are aware your drug use leads to your offending.
92 Personality testing indicated Anxiety, PTSD, and immaturity, although you did not meet the full criteria for Antisocial Personality Disorder and did not have a psychotic illness.
93 In the opinion of Ms Cidoni, you had an impaired ability to exercise appropriate judgement, make calm and rational choices or think clearly, or have an appreciation of the wrongfulness of your conduct. She also noted, as do I, your substance (drug) intoxication was linked directly to your offending. Not surprisingly, your use of drugs over approximately eight days would further effect your judgement.
94 In the opinion of Ms Cidoni, prolonged imprisonment placed you at an increased risk of emotional and behavioural deterioration and open to negative influence.
95 I was referred by Mr Waters to DPP v Kargan[15]. It is very difficult comparing cases factually as facts vary enormously case to case as do all matters in mitigation of sentence and personal to an offender. There were significant differences in Kargan to yours; Kargan had the opportunity to commence an apprenticeship, did not have drug, alcohol or mental health issues, and character references were before the court. His rehabilitation prospects were enhanced by the absence of alcohol, drugs, or mental health issues. Very different case to yours.
[15][2017] VCC 1505 (‘Kargan’)
96 The prosecution submitted an immediate custodial sentence was appropriate for your offending, in particular given the serious nature of it. Ms McGarvie, also referred to this offending having occurred at night and involving a ‘soft target’.
97 While there were not any Victim Impact Statements before me, I could, she urged, take into account what was said in Mr Naralasetti’s Statement. Mr Waters did not disagree.
98 The prosecution expressed concerns about the effectiveness/appropriateness of a Youth Justice disposition, in particular, given your criminal history.
99 Ms McGarvie conceded you were still young, and that Mills had some application, however also referred to the decision of Azzopardi. To which I have also referred.
100 Ms McGarvie also referred to the nature of this offending and your prior criminal record.
101 In the circumstances of your offending, she urged the weight attached to your youth was reduced. I agree.
102 Ms McGarvie submitted Verdins’ principles had some applicability referable to Limbs 5 and 6, however urged there was a tenuous link at best between your offending and your cognitive impairment, in particular, given your overlay of substance use, specifically drugs, relevant to this offending. I have referred previously to my opinion regarding the non-applicability of Verdins principles.
103 The prosecution submitted a combined Community Correction Order with imprisonment was not appropriate given the seriousness of your offending.
104 Regarding a Youth Justice disposition, whilst the prosecution did not oppose obtaining a report if I considered such appropriate, Ms McGarvie did not have instructions as to whether to agree to such a disposition.
105 In my opinion, the sentencing dispositions urged by Mr Waters would not adequately, or appropriately, reflect the gravity of your offending or be it mindful of all matters personal to you in mitigation of your sentence. I do not intend to order a Youth Justice Report nor a report relevant to your intellectual disability.
106 When sentencing you, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
107 There is also the need for specific deterrence when sentencing you, given your relevant criminal history. It is indeed a disturbing record.
108 I must also consider the need to protect members of the community from you and bear in mind the likelihood of your re-offending. I am concerned about the need to protect members of the community and will remain so until you have proven you are able to live in society for an extended period of time (not a few months) without further offending.
109 I am called upon by the Sentencing Act1991 to manifest the community’s denunciation of your conduct and generally impose a just punishment.
110 When sentencing you I take into account the principle of totality.
111 I sentence you as follows.
112 Stand thanks.
113 On Charge 1, convicted and sentenced to 3 years’ imprisonment.
114 On Charge 2, convicted and sentenced to 8 months’ imprisonment.
115 On Charge 3, convicted and sentenced to 7 months’ imprisonment.
116 On Charge 4, convicted and sentenced to 8 months’ imprisonment.
117 Charge 1 is the base sentence and I direct the following in relation to cumulation and concurrency.
118 I direct that 3 months of Charge 2 be served cumulatively upon Charge 1.
119 I direct that 3 months of Charge 3 be served cumulatively upon Charge 1.
120 I direct that 4 months of Charge 4 be served cumulatively upon Charge 1.
121 That results in a total effective sentence of 3 years’ 10 months’ and I set a non-parole period of 2 years.
122 I have, in my opinion, imposed a shorter non-parole period to reflect some moderation referable to the impact upon you of incarceration to which I have previously referred. I am also mindful when setting an appropriate non-parole period of R v VZ[16] which includes your rehabilitation.
[16][1998] 7 VR 693
123 For clarity the orders for cumulation are upon each other and upon the base sentence.
124 Pursuant to s6AAA of the Sentencing Act1991, had you pleaded not guilty to these charges and if you had been found guilty of them I would have sentenced you to a term of imprisonment of 5 years’ 6 months with a non-parole period of 4 years.
125 Pursuant to s18(4) of the Sentencing Act1991, I declare you have spent 347 days in custody up to and including yesterday 26 June 2019 by way of pre-sentence detention, I want that checked, and I direct that that be entered into the records of the Court.
126 The prosecution also made application for a disposal order, which was not opposed by counsel on your behalf. I make the order in the terms sought.
127 Upon being convicted of theft of a motor vehicle, your driver’s licence must be cancelled and/or suspended, and you be disqualified from obtaining a licence (s. 89A Sentencing Act 1991). I was told by your counsel you do not have a licence. Any licences you have, if you have any, are cancelled and you are disqualified from obtaining a licence for 3 years from today’s date. In determining the length of disqualification, I am mindful of the decision of R v Lefebure[17] relevant to rehabilitation.
[17](2000) 31 MVR 131, (2000) 112 A Crim R 41
128 Any other orders?
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