Director of Public Prosecutions v Gurbuz
[2024] VCC 70
•9 January 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01035
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AYTAC GURBUZ |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 September 2023 |
| DATE OF SENTENCE: | 9 January 2024 |
| CASE MAY BE CITED AS: | DPP v Gurbuz |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 70 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charges of armed robbery, common assault, false imprisonment and theft of a motor vehicle – limited criminal history – serious offending – high moral culpability – remorse – mildly positive prospects of rehabilitation – Bugmy principles – Verdins principles – moderation of general and specific deterrence – early plea of guilty – parity
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v R (2013) 249 CLR 571; DPP v Hermann [2021] VSCA 160; Sabbatucci v R [2021] VSCA 340; Newton v The King [2023] VSCA 22; Paric v John Holland Constructions Pty Ltd (1984) 2 NSWLR 505; R v Verdins (2007) 16 VR 269; DPP v O’Neill [2015] VSCA 325; Worboyes v R [2021] VSCA 169
Sentence: 42 months’ imprisonment with non-parole period of 26 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Cookson | Office of Public Prosecutions |
| For the Accused | Mr J. Barrera | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Aytac Gurbuz, I will sentence you to a total sentence of 42 months’ imprisonment and will set a non-parole period of 26 months' imprisonment. I declare your 324 days of pre-sentence detention as time served under my sentences.
2You pleaded guilty to two charges of armed robbery, a charge of common assault, a charge of false imprisonment and a charge of theft of a motor vehicle.
3The circumstances of your offending are described in the ‘summary of prosecution opening upon plea’, being Exhibit A. Through your counsel you agree with the contents of the exhibit.
Circumstances
4The incidents occurred on the same day, 10 February 2022, at two different locations against two separate victims. Exhibit A describes as incidents one and two, for convenience I will adopt that description.
Incident 1 – Kenny Gregory
5During the morning of 10 February 2022, Kelly Flannagan rang Kenny Gregory and accused him of taking a phone not belonging to him. She demanded he attend her apartment in Rose Lane, Melbourne to 'sort this out'.
6You and Ms Flannagan arrived at her apartment and waited for Mr Gregory. You were armed with a machete, hidden behind the waistband of your pants.
7Mr Gregory arrived at the apartment and was met by James Kaladjic at the building's entrance. Mr Kaladjic was the boyfriend of Ms Flannagan's daughter, Mystique. Mr Kaladjic took Mr Gregory to the apartment using a lift. He entered the apartment and you and Ms Flannagan were present. Mr Gregory saw the handle of the machete protruding from your pants. You said to him, 'Where's my phone, you know where my phone is'.
8Ms Flannagan grabbed Mr Gregory's backpack and satchel. He did not resist because he feared harm. Ms Flannagan took the bags into the kitchen, they contained a phone, a wallet, a battery pack and some electronic items. They were not returned to Mr Gregory. These circumstances constitute Charge 1, a charge of armed robbery.
9You demanded Mr Gregory go into the main bedroom, which he did. Inside the bedroom you and Ms Flannagan accused him of taking the phone. You kicked his head several times and Ms Flannagan hit him about the head several times also. He suffered bruising and a large cut on his lower lip. Ms Flannagan grabbed a pair of scissors and moved them towards his throat while striking his head with her other hand. These circumstances constitute Charge 2, a charge of common law assault. This charge relies on your kicking of Mr Gregory and not of the actions of Ms Flannagan.
10These events occurred shortly after 11.32 am. Much later, at 3.30 pm, four others enter the apartment. They included Ms Flannagan's daughter and her boyfriend. Neither her daughter nor boyfriend were not involved in the offending against Mr Gregory and went into a different room.
11You then took Mr Gregory's phone from his backpack and demanded the PIN code. He provided it fearing another assault. You used his phone to order food and left him in the room. Mr Gregory felt he could not leave the room.
12After eating the food, you asked Mr Gregory the whereabouts of your phone. You, Mr Gregory and two others left the property in possession of his property. Mr Gregory felt compelled to accompany you because he feared further assault. The four of you drove to the Arrow Apartments in Swanston Street where Ms Flannagan and a man called Scott Evans had booked into an apartment on 8 February. Mr Evans and another male took Mr Gregory to a room in the apartment where he remained for an hour.
Incident 2 – Saffire Bondeson
13While the others took Mr Gregory away, Ms Flannagan contacted Saffire Bondeson and arranged to meet. They met and Ms Bondeson drove her to the Arrow apartments. There, they met Ms Flannagan's daughter, Mystique, and Mr Kaladjic. All went to the apartment and entered the lower of its two levels. The others left.
14Ms Flannagan said she needed to use the toilet and went to the upper level. Ms Bondeson followed and entered the bedroom. Ms Flannagan then yelled out to you using the name 'Phoenix'. You appeared and pushed Ms Bondeson further into the bedroom and onto a bed. While doing so you punched her to the face. As Ms Bondeson got up and tried to leave, two other males entered the upper level with one entering the room. These circumstances constitute part of Charges 3 and 4, being charges of false imprisonment and armed robbery respectively.
15You then tied Ms Bondeson's hands with electrical cords while removing the machete from your pants and saying: 'You're lucky this is all I'm fucking doing to you.'
16Another male took her bags, jewellery and other items including a MacBook Pro, an iPhone, bank cards and car keys. You and that male then left the room, but held the door closed so that Ms Bondeson could not leave.
17You held Ms Bondeson against her will for some time while threatening and assaulting her. You moved her into the bedroom and said: 'log into your banking now and transfer money before I slice you from ear to ear.'
18You removed the cords which bound Ms Bondeson and holding the machete to her throat demanded she transfer $20,000 to you. In fear, she transferred $3,000 in two instalments into the account of one of the other males.
19You then asked her how much her car was worth saying you would take it. You and the others, including Ms Flannagan, took her possessions and as you were leaving the apartment Ms Bondeson tried to follow. You said to her: 'I don't know where the fuck you think you're going, get your arse back into that bedroom.' She obeyed. These circumstances mark the end of the circumstances constituting Charges 3 and 4.
20Using Ms Bondeson's car keys you drove her car from the carpark with Ms Flannagan sitting in the rear. This constitutes Charge 5, theft of a motor vehicle. Ms Bondeson has not recovered her motor vehicle.
21Oddly, Mr Gregory was in the apartment and left alone. When Ms Bondeson left she was met by two witnesses in the foyer who helped her call the police. While that was occurring Ms Flannagan rang Ms Bondeson saying she intended to slash the tyres of her car and she had prevented others from stealing her car. When the witnesses told her they had called the police, Ms Flannagan said: 'why the fuck did you call the police.' She then hung up.
22You were arrested subsequently and when interviewed gave substantially 'no comment' answers.
Criminal history
23Between 17 June 2002 and 24 January 2019 you have appeared in the criminal court on three occasions and have been found guilty of eight charges, and these charges resulted in a fine and a community correction order and a community-based order. The last order related to the bomb hoax while you were in Year 12. You have never been sentenced to a term of imprisonment even though the psychiatrist, Ms Fakhri, refers to your imprisonment in 2019, which I presume was a period on remand.
Victim impact statement
24Ms Bondeson made two impact statements, the first in March 2023 was used in the sentencing of Ms Flannagan. The second on 19 December 2023, and not the first, was used in your sentencing.
25The events have changed her from a happy, trusting and positive person to a shy, timid one. After much therapy she is slowly recovering. Her treatments have caused a major disruption to her life, emotionally and financially.
26Financially, the cost has been enormous, principally through her inability to work. She receives a government benefit and depends for financial assistance on her mother and partner.
27It was her desire to undertake a course at university but psychologically she is unable to do so.
Personal
Family
28You were born and raised in Dallas by your parents. You have an older sister and a younger brother. Your parents are still together, although there was physical and verbal abuse between them during your childhood and early adulthood. Your family was financially stressed with your father working two jobs. Your father was physically abusive to you and your siblings, often resulting in bruises and cuts.
29You were strictly brought up. You were not allowed to see friends and were confined to the home. This strictness lessened as you got older. Despite your childhood you have a positive relationship with your parents and siblings.
30Your younger brother is in prison for family violence matters and your sister has two children. Your parents are disappointed in you and your siblings. You were living with your parents when you were arrested and they have supported you while you have been in custody.
Education and Work
31You attended primary and secondary school, completing Year 12. During year 12, you and your friends were suspended after a bomb hoax, which was planned in order to get out of an examination. You seemed to do well at school otherwise.
32You then attended Victoria University and completed a degree in computer science and Mathematics. Between 2010 and 2014, you worked for CSIRO as a telecommunications engineer.
33Between 2014 and 2017, you worked for Bazinga Technologies as the project manager in software engineering. You were employed by Optus as a field manager during the rollout of the National Broadband Network and also worked with your brother in construction. While working as a contractor, you started your own business as a software engineer.
34In 2020, you worked in a kebab shop and then stopped between 2021 and 2022 while caring for your father who was unwell. You could not balance caring responsibilities with full time work and received Jobseeker payments.
35While in custody, you have been working predominately in the kitchen and on cleaning duties.
Relationships
36You have had two serious relationships. Your first partner was Renee. You were in a relationship from the age of 18. You married in 2009 and divorced in 2011. You have one child, born in 2010, whom you see occasionally. The relationship ended due to your drug use.
37From 2014 to 2021, you were in a relationship with Nadia. Again, this relationship ultimately ended due to your drug use. At the beginning, you would use cannabis which Nadia disapproved of. You and Nadia then purchased a home together and due to the financial strain of your mortgage, you commenced using methamphetamine. In 2016, your oldest son was born and you ceased using methamphetamine temporarily. The two children, now aged six and seven, live with Nadia. An existing family violence intervention order protects Nadia and the children from you. You have not had contact with your children for two years due to the intervention order.
Drug and alcohol use
38You started drinking alcohol from the age of 18. During the period of this offending, you were drinking about four drinks a day.
39Also, from the age of 18, you commenced using cannabis. Cannabis relaxed you. You ceased using cannabis in 2013 due to Nadia disliking it.
40In 2012 you started using methamphetamine and smoked half a gram a day consistently for four years until 2016 when you stopped due to the birth of your son. You remained abstinent until 2017 when you relapsed which resulted in a breakdown in your relationship about your drug use. Your drug use affected your ability to work, and you prioritised using drugs over employment.
41You have used ecstasy occasionally in your 20s and GHB in 2022. You report using this drug on most days during the period of this offending.
42You have engaged in drug and alcohol programmes while in custody. You have not engaged in residential detoxification or rehabilitation programmes while in the community. In 2019, you attended six drug and alcohol counselling sessions over six months. You relapsed into drug use after your community correction order ended.
Mental and Physical Health
43Upon your release from your first prison period in 2019, you engaged with a psychologist and then apparently you were diagnosed with a post‑traumatic stress disorder. You saw this psychologist seven times and then relapsed into drug use afterwards.
44You are currently prescribed antidepressants and have been prescribed them previously in custody.
45After your relationship with Renee ended, you experienced psychotic symptoms, resulting in a voluntary admission to Sunshine Hospital's Inpatient Unit. You were prescribed antidepressants and released after one week. At present, you have no physical health issues.
46Your father is 72 and your mother, 63. Regarding your father, two documents were tendered. The more informative of the two is the document entitled 'Patient Health Summary', printed on 20 December 2023. It is a typical document prepared by a general practitioner, usually for the benefit of another medical practitioner. From a lay person's perspective, the most significant conditions are:
(a) ischemic heart disease. I note in 2010 there was a coronary artery bypass graft. I imagine this heart condition is carefully monitored;
(b) diabetes melilitus, type 2. Again, I imagine this condition is also carefully monitored. I note the practitioner describes it as 'inactive'.
47This is the difficulty in presenting such a document unaccompanied by a practitioner's explanation of the present significance of your father's various conditions. You are worried about your parents' health, and in particular your father, and your separation from them but whether there is any real basis for your worries, particularly in respect to your father, I cannot say. However, it is unnecessary for me to determine that issue for I accept you are concerned about your father.
48While in custody, you have undertaken courses and programmes: two positive parenting programmes; a substance awareness programme; three certificate 2 and two certificate 3 courses with the Kangan Institute.
Psychologist
49Rebecca Fakhri is a psychologist. On 25 September and 22 October 2023, she interviewed you at the request of your solicitors[1].
[1] Report dated 7 October 2023.
50Apart from two substance disorders, Ms Fakhri diagnosed you as suffering from a complex post-traumatic stress disorder. This disorder is severe. She also diagnosed you as suffering from a major depressive disorder of moderate severity. The substance use disorders were in early remission because you are in prison.
51Ms Fakhri identified these factors as likely to have contributed to your offending: the deterioration in your mental health due to the breakdown of your relationship with Nadia; estrangement from the children of that relationship; your existing trauma symptoms worsened by you seeing a woman commit suicide.
52She considers imprisonment would likely weigh more heavily upon you than someone without your conditions because[2]:
'…given his lack of exposure to the prison environment which makes him more vulnerable to exploitation, intimidation, and threats. His vulnerability is further heightened by his severely decompensated mental health.
Additionally, in individuals with PTSD and MDD, there is potential significant mood fluctuation and the volatile nature of the prison environment can further exacerbate his symptom profile and risk of decompensation. These individuals, such as Mr Gurbuz, are at a higher risk of inappropriate or disproportionate responses due to poor emotional regulation and impulsive behaviour, which can result in unintentional sanctions and higher vulnerability to experiencing issues with other offenders'.
[2] At [101] and [102].
53She also pointed to the risk of conflict with other prisoners due to your mental conditions.
54Ms Fakhri assessed your risk of re-offending as moderate. I assume that is the middle of three categories, low, moderate and high. She said[3]:
'The main factors elevating his risk profile are emotional and personal factors which are part of his psychopathology, which increase the risk of impulsive behaviour, risk-taking, poor problem-solving skills, and self-regulation issues. This results in self-medication with substances which further increases his risk. These factors are amenable to treatment and thus his risk of recidivism will be mitigated with engagement in appropriate interventions'.
[3] At [83].
55Not unnaturally, Ms Fakhri made recommendations as to the treatment of your mental health conditions and your addictions to substances. She asserts the unlikelihood of you receiving appropriate mental health attention in custody. I doubt the correctness of the assertion based on the evidence of recent cases I have dealt with. Those cases show a great amount of medical and psychological attention given to those persons while in custody. The attention was so great I doubted those persons would receive as much in the community. She notes your disengagement from psychological treatment while in custody because of the change of practitioners.
References
56Nuray Gencten is your older sister. On 20 December 2023, she wrote about you. The third paragraph of her letter was the subject of debate between the parties. It reads:
'Growing up in a cultured household in the 80s, discipline through abuse was not taboo. We were disciplined with belts, hoses and other physical punishments to uphold the image of an obedient and pristine family. With the 5 year age gap, the victim of the authoritarian abuse transferred from me to my younger brother, Aytac Gurbuz. Considering the gender stereotypes, Aytac Gurbuz suffered harsher physical treatments as the oldest son. The isolation from a social life grew our reliance on one another. After entering our 20s, the stress of financial obligations and parenting were lessened, allowing us to create a relationship with our father.'
57She continues that, despite your childhood experiences, you have retained an unwavering sense of responsibility, mainly in relation to your parents. She sees in you a person with a strong work ethic and places your 'out of character behaviours', as she puts it, to your divorce, your children and the destruction of your highly successful business by the virus.
58Amelia Sedawie has known you for two years. She is a social worker, working with the Victorian child protection system. She visits you every four weeks while you have been in custody. Over the last 12 months, she has seen a change in you. You now understand the impact of your offending upon the victims, your family and friends. You tell her of your desire not to re-offend and be separated from your family. She holds you in very high regard.
Discussion
Purposes
59Section 5(1) of the Sentencing Act 1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
60Each of those sentencing purposes is relevant to your sentencing.
61Section 5(2) of the Sentencing Act requires the consideration of various factors in sentencing where they are relevant to a particular case.
Maximum penalties
62The maximum penalties for the offences are:
(a) false imprisonment – 10 years' imprisonment;
(b) common law assault – 5 years' imprisonment;
(c) theft of a motor car – 10 years' imprisonment; and
(d) armed robbery – 25 years' imprisonment.
Nature and gravity of the offending
63The motives for your actions against Mr Gregory was to obtain a mobile phone while against Ms Bondeson was to obtain her property, especially her money and car. In each instance, your behaviour was affected by drug taking.
64Part of your counsel's submissions dealt with the roles of you and Ms Flannagan in the offending. He submitted Ms Flannagan was the 'architect' of the schemes involving Mr Gregory and Ms Bondeson. Even if she, Ms Flannagan, thought of the scheme, describing her as the 'architect' of the offending places too much weight on its genesis. It does not make her the ringleader.
65Mr Gregory lived in her apartment for a week before the incidents, having met her a month earlier. It was Ms Flannagan who contacted Ms Bondeson and persuaded her to drive to the Carlton apartment. Although Ms Flannagan was violent to Mr Gregory, she was not violent to Ms Bondeson. You tied her up. You punched her. You threatened her with the machete.
66The two incidents were poorly conceived and executed. That is what makes them so potentially dangerous. Your overall offending is serious and your blameworthiness or moral culpability remains high even though moderated by other factors, which I will discuss.
Prospects of rehabilitation
67You are remorseful. You have strong support from your family and, at least, one worthwhile friend. You have used your time in custody profitably through undertaking educational courses. On the other hand, you have a longstanding problem with drugs.
68As noted by Ms Fakhri, you drank alcohol from 18. During the period of this offending, you were drinking about four drinks per day. In 2012 you used methamphetamine for the first time. You smoked half a gram daily consistently for four years up until 2016 when you ceased using due to the birth of your son. You abstained until 2018 when you relapsed. This had two immediate consequences: the breakdown of your relationship with Nadia; and your capacity for work. You used GHB in 2022 and were using it on most days during the period of this offending.
69Between 3 and 13 October 2023, you undertook a substance awareness programme. You have not engaged in any residential detoxification or rehabilitation programmes while in the community. In 2019, you were the subject of a community correction order. It contained a drug treatment condition. You attended six drug and alcohol counselling sessions over six months. Although not apparently contravening your order, its effect upon your drug addiction was negligible as you resumed drug-taking after the end of the community correction order.
70Ms Fakhri placed your risk of re-offending as moderate. She does not distinguish between the types of re-offending. She identifies various factors which she said elevate your risk. They are psychological, made worse by your substance abuse.
71The letters of reference describe a very different person from the person who committed these offences. Those letters skirt the person you were in the few years leading up to these offences. You have a long-standing drug addiction. When using drugs, you committed these offences. Undertaking a course in custody is commendable but, by itself, is far too limited to give any confidence at this stage of your ability to overcome the addiction. It depends on the effectiveness of whatever assistance you receive in custody and in the community bearing in mind that your addiction is linked to your mental health issues. It also depends on your determination to reform whether through a desire to reform or the deterrent effect of my sentences. Overall, I consider your prospects of rehabilitation are mildly positive.
Bugmy
72You seek to apply the principle stated in Bugmy v R[4]:
'…The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending'.
[4] (2013) 249 CLR 571 at [43].
73Although these observations were moulded by the particular facts of Bugmy's case, the underlying reason for assessing the consequences of a person's upbringing was made clear in DPP v Hermann[5]:
'It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years.'
[5] [2021] VSCA 160 at [46].
74In Sabbatucci v R[6], the Court explained the elements requiring evaluation:
'…Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.'
[6] [2021] VSCA 340 at [6].
75In Newton v The King[7], the Court noted in Bugmy’s case there were two ways in which childhood deprivation may be relevant to the assessment of moral culpability: the general and the specific.
[7] [2023] VSCA 22 at [36].
76The general was captured in this passage[8]:
'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.'
[8] Bugmy at [40].
77And the specific[9]:
'An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.'
[9] Bugmy at [44].
78You rely on the general way, not the specific way. The prosecution submit you have not established an underlying factual basis to invoke the principle in a general way. In answer you rely on the observations of your sister in her letter and what the psychologist recorded you telling her. Even though your sister was in the courtroom during the plea hearing she did not give oral evidence.
79Ms Fakrhi recorded your experience of physical and verbal abuse from your father directed at you, your mother and your siblings during your childhood and early adulthood. Using a psychometric test[10], she diagnosed you as suffering from a complex post-traumatic stress disorder using ICD-11. For you, this disorder is characterised by high levels of intrusive symptoms, avoidance behaviours and negative alterations in cognitions and mood.
[10] International Trauma Questionnaire.
80In my experience, the prosecution's submission surfaces mostly in civil litigation but is equally applicable here. In civil litigation, I have found the test described by Samuels JA in Paric v John Holland Constructions Pty Ltd useful[11]:
'It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided…
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion…'.
[11] (1984) 2 NSWLR 505 at 509-510.
81You gave Ms Fakhri information. To an extent it was corroborated by your sister, but she did not corroborate every aspect. She did not mention the bruising and cuts. She did mention the use of belts and hoses, being items which could cause bruises and cuts.
82The measures introduced because of the pandemic has led to some informality in proceedings in the Court. There was a time when oral evidence would have been called to establish aspects of the factual basis assumed by a psychologist. Notwithstanding the informality in this case, I am satisfied Ms Fakhri had a fair climate of assumed fact to express her opinions.
83The Court in Bugmy’s case was examining the nature of an adult through that person's earlier experiences. Here, Ms Fakhri has done the same except she has analysed the adverse effect in psychological terms. It provides a sharper focus. I consider the experiences of your earlier years leads to a lessening of your moral culpability.
Verdins
84Your counsel relied upon each of the principles stated in the case of R v Verdins[12]. This case deals with the effect on sentencing of the impaired mental functioning of a person. Your counsel placed more reliance on principles 5 and 6 than on principles 1, 2, 3 and 4.
[12] (2007) 16 VR 269.
85Principle 1 deals with the moral culpability of your offending conduct and the sentencing purposes of just punishment and denunciation. In your case, this principle overlaps with the principle in Bugmy’s case. It moderates your sentences but adds nothing to the effect of the Bugmy considerations.
86Principle 2 deals with the kind of sentence and the conditions in which it is served. It has no application in your case. It is conceded a sentence of imprisonment is warranted.
87Principle 3 deals with general deterrence. In terms of the symptoms you exhibited through the recognised psychological disorders identified by Ms Fakhri, general deterrence is moderated. The level of your symptoms is significant. Nevertheless, since you knew what you were doing and the seriousness of your actions, the degree of moderation is limited.
88Principle 4 deals with specific deterrence. Despite your impaired mental functioning, this sentencing purpose should be moderated only to a small degree. My sentences must cause you to address your drug addiction and your mental health issues. Given their longevity, this will be no easy task for you.
89Principle 5 deals with the weight of my sentence upon you compared with someone without your impaired mental functioning. Ms Fakhri noted the combination of a post-traumatic stress disorder and a major depressive disorder carried the potential for significant mood fluctuations. With the volatility of the prison environment, you risk increasing the intensity of the symptoms of your disorders. She focussed on your inappropriate or disproportionate responses in relation to other prisoners. I consider principle 5 applies.
90Principle 6 is couched in more definite language. Requiring a serious risk of a serious adverse impact on your mental health. The opinions of Ms Fakhri are too vague to support that principle to apply in your case.
91Referring to passages from the case of DPP v O’Neill[13], the Director's counsel submitted there needs to be a realistic connection between your impaired mental functioning and your offending. He points to what you told Ms Fakhri about your offending. You told her you were in a casual intimate relationship with a woman who stole your phone and wallet and withdrew more than $30,000 from your account. You said you had little recollection of the events because you were affected by methamphetamine and GHB. Nevertheless, you denied your involvement in the assault and false imprisonment charges although acknowledging your presence.
[13] [2015] VSCA 325.
92Initially, Ms Fakhri linked your symptoms of depression and anxiety to your experiences of trauma and adverse childhood experiences. She linked your offending behaviour to your substance misuse, which was your way of coping, through avoidance, with those symptoms. You developed an addiction to substances leading to 'association with negative peers and criminality'. However, as she further examined your symptoms and made further diagnoses, she reached a more complex explanation for your offending involving:
(a) your deteriorated mental health due to the breakdown of your relationship and the separation from your children;
(b) the exacerbation of your trauma symptoms through seeing someone commit suicide; and
(c) more generally the type of person you are and the failure to treat your mental health issues played a significant underlying role in the offending and your continued drug usage. The type of person you are picks up on her earlier analysis of your depression and anxiety.
93Returning to the Director's criticism of the lack of a sound basis of assumed fact for Ms Fakhri's opinion about the link between your mental impairment and the offending. Your limited recollection of the events was due to your use of illicit drugs. Denying your involvement in the assault and false imprisonment charges while acknowledging your presence at the scene of the crimes suggests a lack of memory of committing those offences.
94Your underlying problem is drug addiction. So much so is identified by Ms Fakhri. It stems from your impaired psychological state. You started using drugs to avoid the symptoms of your depression and anxiety. Drug usage became an addiction. Your use contributed indirectly to your offending. From what Ms Fakhri assumed factually provided her with a 'fair climate' for her opinions. I do not see her acceptance of your denial of the offending in the two charges undermining her opinions.
95Does your addiction provide a realistic connection between your mental health impairment and your offending? I consider it does even though indirect. In this case, the Verdins principles and the Bugmy principle overlap to an extent. The psychologist answers the question of why you offended by showing how you became what you are. It is rooted in your younger years.
96Whether one looks at the sentencing purpose of general deterrence from the Verdins’ perspective or generally, the answer is the same. Others, potentially like offenders, would have some sympathy for your situation and would not identify with you to the extent of expecting similar treatment if they offended in the same or a similar manner. General deterrence requires some moderation. But it must be remembered general deterrence in the case of your offending is a very significant sentencing purpose. It is being moderated from an elevated position.
97The same considerations apply to the sentencing purposes of specific deterrence, protection of the community from you and the denunciation of your offending. A degree of moderation is required but it is a moderation from elevated positions.
Guilty pleas
98You were arrested on 22 November 2022. A committal hearing started on 12 May 2023 involving you and Scott Evans. Witnesses were examined. During the hearing you indicated an intention to plead guilty. You formally pleaded guilty on 1 December 2023. In terms of the timing, there was an indication of your intention to plead guilty to the revised charges at a very early date.
99There are several benefits of your guilty pleas. They are an emphatic acknowledgement of your offending. They show the victim and the world in general that what he and she says is true.
100Second, they relieve the victims from the need to give evidence against you in a trial. Ms Bondeson gave some evidence at the committal hearing.
101Third, you have assisted the criminal justice process. You have removed your case from those needing a jury trial and allowed others to move forward. This has saved the delay, time and expense of a trial. Generally, jury trials are complicated affairs involving 12 jurors and trials lasting weeks. Avoiding that is a considerable benefit to the criminal justice system.
102Fourth, your guilty pleas are evidence of your remorse for your offending. It represents your decision to give up any defence by acknowledging your guilt. Contrary to the prosecution's summary, I accept you are remorseful. What you told Ms Fakhri in paragraphs 57 and 58 of her report does not persuade me otherwise. The combination of your statement of a lack of memory and being present amount to a realisation of the ability of the prosecution to prove its case against you.
103Fifth, the crisis addressed in Worboyes v R[14] and other cases has abated. Recently, this Court announced it had overcome the backlog of cases due to the pandemic. It had reached the pre-pandemic levels of pending cases. But in other respects the virus still disturbs the smooth running of jury trials in this Court, principally through the unavailability or loss of jurors. Pleading guilty still benefits to the system identified in the case of Worboyes but to a much lesser extent.
[14] [2021] VSCA 169.
104Your guilty pleas entitle you to a significant discount on the sentences which would have been imposed if you had pleaded not guilty to these charges but had been found guilty after a trial.
Custody
105Aspects of your time in custody have been harder than in normal times with short periods spent in isolation. I presume the week spent in isolation due to the flu is a normal response to that virus.
Parity
106Your counsel raises the issue of parity of sentencing between you and Ms Flannagan. Understandably, the parties did not raise current sentencing practices where I sentenced two of the three other co-accused.
107On 3 April 2023, I sentenced Ms Flannagan to a total sentence of 42 months' imprisonment and fixed a non-parole period of 26 months' imprisonment. This was for two charges of armed robbery, a charge of common law assault, a charge of false imprisonment, a charge of theft of a motor vehicle and a charge of committing an indictable offence while on bail.
108I also sentenced another co-offender, Scott Evans but his involvement was far less than your involvement and that of Ms Flannagan. No issue of parity can arise in relation to his sentence and your sentence.
109Parity of sentencing requires the imposition of like penalties where the cases are relevantly alike. The debate before me was over the similarities and dissimilarities of your situation and that of Ms Flanagan. There will always be dissimilarities but their significance requires examination.
110You were armed with a machete and threatened to use it. At one stage, Ms Flannagan armed herself with a pair of scissors and threatened to use them. However, from Exhibit A, the presence of the machete involved a greater threat to the safety of others and to the willingness of the victims to comply with what was demanded of them.
111Ms Flannagan thought up the scheme and lured each victim to the spot where the offending occurred. I agree with the description of her as the 'architect' of the offending behaviour. However, those actions do not make her the ringleader in what occurred after the victims were lured to the places.
112It is plain Ms Flanagan had a worse criminal history than you. While you have never been sentenced to imprisonment she has been. Her longest sentence was 221 days' imprisonment imposed on 3 March 2020.
113Your intention to plead guilty came much earlier than Ms Flannagan's indication of such an intention.
114Regarding the principles of Verdins, I rejected the applicability of principles 5 and 6 to Ms Flannagan. With you I accepted the application of principles 1, 3, 4 and 5 although I noted the overlay with the Bugmy principle with principle 1.
115Ms Flannagan was on bail at the time of her offending. You were not. Apart from creating a criminal offence in its own right, committing an indictable offence while on bail can be a particularly aggravating feature.
116The fact you are guilty of the same offences committed by Ms Flannagan and arising out of the same circumstances does not necessarily invoke the need for parity. The gravity of your offending is greater than that of Ms Flannagan with the consequent effect on Ms Bondeson. Ms Flannagan has a serious criminal history, you do not. You rely on the effects of your impaired mental functioning, Ms Flannagan cannot. When one balances these matters out, sentencing you in the same manner as I sentenced Ms Flannagan has merit.
Pre-sentence detention
117Although there are 324 days of pre-sentence detention attributable to this offending, you have been in custody an additional 91 days. The difference of 91 days is due to sentences on other offending. Without knowing the circumstances of the other offending, I cannot make any appraisal in terms of the totality principle.
Sentence
118On Charge 1, a charge of armed robbery, I sentence you to 24 months' imprisonment.
119On Charge 2, a charge of common law assault, I sentence you to 6 months' imprisonment.
120On Charge 3, a charge of false imprisonment, I sentence you to 18 months' imprisonment.
121On Charge 4, a charge of armed robbery, I sentence you to 30 months' imprisonment.
122On Charge 5, a charge of theft of a motor vehicle, I sentence you to 12 months' imprisonment. Any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence or permit to drive a motor vehicle for a period of 36 months.
123The base sentence is the sentence on Charge 4. Six months of the sentence on Charge 1and six months of the sentence on Charge 3 are to be served cumulatively upon themselves and the base sentence. The total effective sentence is 42 months' imprisonment. I will set a non-parole period of 26 months' imprisonment. I declare your 324 days of pre-sentence detention, excluding today, as time served under my sentences.
S 6AAA
124If you had not pleaded guilty but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 65 months' imprisonment.
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