Director of Public Prosecutions v Harris and Cakebread
[2021] VCC 1508
•7 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01837
CR-20-01838
CR-21-01597
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRODY HARRIS JARROD CAKEBREAD |
---
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2021 | |
DATE OF SENTENCE: | 7 October 2021 | |
CASE MAY BE CITED AS: | DPP v Harris & Cakebread | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1508 | |
REASONS FOR SENTENCE
Subject:CRIMINAL LAW – Sentencing.
Catchwords: Pleas of guilty – Theft, conduct endangering life and robbery (Harris) – Armed robbery, conduct endangering life, arson, attempted theft and multiple charges of theft (Cakebread) – Armed robbery very serious and frightening criminal conduct (Harris) – Criminal rampage over two weeks resulting in serious criminal conduct (Cakebread) – Youth – Relevant criminal histories – Parity – COVID-19 pandemic – Intellectual disability (Cakebread) – Verdins limbs 1 and 3 (Cakebread).
Legislation Cited: Crimes Act 1958 ss 22, 23, 74, 75, 75A, 197(1), 197(6), 321M; Road Safety Act 1986 s 18(1)(a); Sentencing Act 1991 ss 6AAA, 18, 89(4).
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 3 years and 2 months imprisonment with a non parole period of 20 months (Harris); Imprisonment for a period of 4 years and 1 month with a non parole period of 2 years and 2 months (Cakebread).
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Plummer | Office of Public Prosecutions |
For Accused Mr Harris | Mr C Terry (plea) | Balmer & Associates |
| For Accused Mr Cakebread | Ms J McGarvie (plea) Mr J Behan (sentence) | Stary Norton & Halphen |
HIS HONOUR:
Introduction
1Brody Harris, on Indictment L11360752 you have pleaded guilty to:
· one charge of theft contrary to s 74(1) of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment (Charge 1);
· one charge of conduct endangering life contrary to s 22 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 2); and
· one charge of robbery contrary to s 75 of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment (Charge 3).
2You have also pleaded guilty to the related summary charge of unlicensed driving contrary to s 18(1)(a) of the Road Safety Act 1986, which carries a maximum penalty of 6 months imprisonment or 60 penalty units (Summary Charge 4).
3You have admitted your Criminal Record.
4Jarrod Cakebread, on Indictment L11572053 you have pleaded guilty to:
· 14 charges of theft contrary to s 74 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment on each charge (Charges 1, 2, 5, 6, 7, 9-15, 17 and 18);
· two charges of attempted theft contrary to ss 74(1) and 321M of the Crimes Act 1958, which carries a maximum penalty of 5 years imprisonment on each charge (Charges 3 and 4);
· one charge of armed robbery contrary to s 75A of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment (Charge 8);
· one charge of conduct endangering persons contrary to s 23 of the Crimes Act 1958 which carries a maximum penalty of 5 years imprisonment (Charge 16); and
· one charge of arson contrary to ss 197(1) and 197(6) of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment (Charge 19).
5You have admitted your Criminal Record.
Circumstances of the offending
6A prosecution opening was tendered on the plea and may be summarised as follows:
7At the time of the offending you were both 21 years of age. The coaccused in this matter are Wade Turner, Corey Blazevicius and Bryce Stephens.
Offending of Jarrod Cakebread
8At approximately 1 pm on 19 May 2020, you, Mr Cakebread were observed arriving as a passenger in a Toyota Kluger, at the United Petrol Station located at Macarthur Street, Lake Wendouree. You filled the vehicle with 61.3 litres of petrol before re-entering the front passenger seat and leaving, making no attempt to pay for the fuel. It is these facts that relate to Charge 1, theft.
9
At approximately 5.20 pm on 19 May 2020 the same Toyota Kluger was observed by witness Lorraine Cations in the carpark at Kirralee Assisted Living located at Richards Street, Ballarat. Ms Cations observed two males wearing dark clothing running in the carpark with registration plates in their hands. She observed them get back into the Kluger and leave. CCTV footage of the car park showed you, Mr Cakebread in the passenger seat of the Kluger and
Mr Blazevicius driving. You, Mr Cakebread, exited the vehicle and took two number plates off a Ford Falcon belonging to victim Amber Higham and one number plate off a Hyundai i30 belonging to victim Deborah Elford. It is these facts that relate to Charge 2, theft.
10At approximately 5 am on 21 May 2020 you, Mr Cakebread were captured on CCTV footage at Naroo Street, Alfredton. You attempted to open the doors of a Mitsubishi Lancer and a Ford Territory at the address which belonged to Blair Holyoak. You were unsuccessful in entering the vehicles and left the area. It is these facts that relate to Charges 3 and 4, attempted theft.
11At approximately 5 pm on 21 May 2020, Jameila Guanzon parked her husband Ronald Guanzon’s Toyota Corolla, in the Burnside Shopping Centre carpark. When she returned approximately 10 minutes later, the vehicle had been stolen. On 22 May 2020 the vehicle was located at Rubicon Street, Redan. This house was, at the time, occupied by the mother of you, Mr Cakebread and believed to be frequented by you. Forensic examination resulted in your fingerprints being located on both the outside and inside of the driver door window. It is these facts that relate to Charge 5, theft.
12On 21 May 2020, Elizabeth Huber parked her Nissan Pulsar outside her home at King Street, Ballarat East, at approximately 5 pm. At around 6 pm, Ms Huber noticed her vehicle had been stolen. The same vehicle was captured on CCTV at approximately 9.10 pm on 22 May 2020, at Caltex Service Station, Sebastopol. You, Mr Cakebread were a passenger in the vehicle. You exited the vehicle, and filled the Nissan Pulsar with 31.2 litres of petrol. You returned to the front passenger seat and left, making no attempt to pay. It is these facts that relate to Charges 6 and 9, theft.
Offending by Jarrod Cakebread and Brody Harris on 22 May 2020
13On 22 May 2020, at approximately 1.15 am, Matthew Lund was woken by his wife, who told Mr Lund that his Ford Ranger was being stolen from their driveway at Anderson Court, Canadian. Mr Lund looked out of his bedroom window and saw his vehicle being driven away. Mr Lund went outside to check on his wife’s car, before reporting the theft to police. A short time later, you, Mr Cakebread and Mr Stephens were picked up from Rubicon Street, Redan and left in the stolen Ranger. It is the prosecution case that you, Mr Harris and
Mr Blazevicius stole the vehicle from Mr Lund’s driveway, and you, Mr Cakebread are guilty by being a passenger in the vehicle which you knew to be stolen. It is these facts that relate to Charge 7, theft, in relation to you,
Mr Cakebread and Charge 1, theft, in relation to you, Mr Harris.14
At approximately 2.38 am, Zac Pickering and his then-girlfriend, Portia Kondratiew were driving east along Howitt Street, Wendouree in Mr Pickering’s silver coloured 2010 Volkswagen Passat Sedan. At the same time the stolen Ford Ranger containing the both of you, Mr Blazevicius and Mr Stephens was travelling west along Howitt Street. You, Mr Harris, said that the people in the Passat owed you money. You conducted a U-turn at the intersection of Howitt Street and Creswick Road. At the time, you, Mr Harris were driving with
Mr Blazevicius seated in the front passenger seat. You, Mr Cakebread were seated in the rear driver’s side and Mr Stephens was seated in the rear passenger seat.
15You, Mr Harris accelerated rapidly in an attempt to catch the silver Passat driven by Mr Pickering. As the stolen Ranger approached the Passat on Howitt Street, you activated the vehicle’s driving lights and then rammed the Passat to the rear. This caused Mr Pickering to accelerate in an attempt to flee. The Ranger continued to travel east along Howitt Street then north along Doveton Street towards the Ballarat North Police Station.
16You rammed the stolen Ranger into the Passat again on Doveton Street then again outside the Ballarat Specialist School which caused the Passat to spin and stall. Due to there being no police at the Ballarat North Police Station at the time Mr Pickering, after a number of attempts, restarted the Passat and drove back east along Norman Street intending to get to the Ballarat Police Station.
17
Ms Kondratiew, meanwhile, called 000 and reported the incident. Mr Pickering drove his Passat through the wrong side of the roundabout at the intersection of Doveton Street and Norman Street and you, Mr Harris, again rammed them.
Mr Pickering continued driving south along Doveton Street and turned onto Howitt Street and then cut the roundabout again at the intersection of Howitt Street and Lydiard Street. When Mr Pickering was driving through this roundabout, you rammed the Passat from behind, causing Mr Pickering to lose control of his vehicle. Mr Pickering continued to travel south along Lydiard Street during which time the Ford Ranger continued to ram them multiple times.
18As Mr Pickering was approaching the railway line outside the Ballarat Train Station, the Ranger drove to the right-hand side of the Passat, on the wrong side of the road, blocking Mr Pickering’s escape. Mr Pickering identified that the boom gates were down, and stopped his vehicle. You, Mr Harris then rammed the driver’s door of Mr Pickering’s Passat causing the airbags to activate and windows to shatter. You conducted a U-turn so that the two vehicles were nose-to-nose. It is these facts that give rise to Charge 2, reckless conduct endangering life and Summary Charge 4, unlicensed driving, in relation to you, Mr Harris.
19
Once stationary, Mr Blazevicius approached the driver’s window and you,
Mr Cakebread approached the front passenger window, both armed with knives. You, Mr Harris, remained in the vehicle with Mr Stephens. As Mr Blazevicius approached the driver’s window, he stabbed the curtain airbags several times to gain access to Mr Pickering’s car. Mr Pickering climbed into the backseat to avoid being stabbed.
20You, Mr Cakebread then yelled at Ms Kondratiew, ‘give me all the drugs and money youse have.’ You were holding a knife approximately two rulers’ lengths away from Ms Kondratiew, and demanded her mobile phone, to which she replied that she had called the Police.
21
Mr Blazevicius climbed into the driver’s seat of the Passat and stabbed
Mr Pickering once to the right of the chest and once to the back. Mr Pickering fled out the rear passenger door and ran south along Lydiard Street. The prosecution concedes that you, Mr Cakebread, were not complicit in
Mr Blazevicius’ stabbing of Mr Pickering nor the driving of Mr Harris.
22
You, Mr Cakebread stole a black leather Mimco hip bag containing personal cards in the name of Ms Kondratiew, a large black Nike branded bag containing female clothing, makeup, shoes and a Cloud 9 hair straightener all belonging to Ms Kondratiew. It is these facts that give rise to Charge 8, armed robbery, in relation to you, Mr Cakebread, and Charge 3, robbery, in relation to you,
Mr Harris.
23
You, Mr Cakebread together with Mr Blazevicius returned to the stolen Ranger and you, Mr Harris drove north along Lydiard Street. It is the prosecution case that you, Mr Harris are guilty of robbery on the basis of complicity, by pursuing the victims in the Passat until the vehicle was effectively trapped, before you,
Mr Cakebread and Mr Blazevicius alighted from the vehicle. You, Mr Harris were also the getaway driver following the robbery. The prosecution concede that you, Mr Harris were unaware that Mr Cakebread and Mr Blazevicius were armed.
24
Police attended the scene soon after and spoke with Ms Kondratiew.
Mr Pickering soon after sought help from staff at Bakery Hill McDonald's, and Police were called. Mr Pickering was transported by Ambulance to the Ballarat Base Hospital, where he underwent treatment.
Offending by Jarrod Cakebread on 24 and 25 May 2020
25On 24 May 2020, Jeremiah Seymour-Quest parked his Toyota Corolla outside his home in Victoria Street, Ballarat East. At around midday, Mr Seymour-Quest awoke to find the vehicle had been stolen. At 10.36 am, the same vehicle was recorded on CCTV at Shell Service Station, located on Doveton Street, Ballarat North. You, Mr Cakebread are recorded filling 33.44 litres of fuel into the vehicle before re-entering the passenger seat and leaving without paying. It is these facts that relate to Charges 10 and 11, theft.
26At approximately 12.30 am on 25 May 2020, Katherine Watt was at her residence at Federation University, Ballarat. She received a phone call from a friend that her Suzuki Swift was being driven away. When Ms Watt arrived at the car park where her vehicle had been parked, she noticed broken glass on the ground. It is these facts that gives rise to Charge 12, theft.
27Approximately one hour later, at 1.30 am, the Suzuki Swift was recorded on CCTV at United Service Station, located at Learmonth Road, Ballarat. You, Mr Cakebread exited the driver's door and filled the vehicle with 31.9 litres of petrol. You returned to the vehicle and drove away without paying. It is these facts that relate to Charge 13, theft.
28
At around 8.30 am that morning, Daniel Siemensma parked his City of Ballarat work vehicle Toyota Yaris, on the nature strip of Creek Street, Miners Rest.
Mr Siemensma left the keys in the ignition so that he could listen to the radio as he worked. At approximately 9.30 am, Mr Siemensma saw you, Mr Cakebread running toward the Yaris. Mr Siemensma ran toward the vehicle but you were inside by the time he reached it. Mr Siemensma jumped head-first into the open driver's side window. You drove the car, with Mr Siemensma still inside, and conducted a U-turn. Mr Siemensma yelled at you to stop, but you punched
Mr Siemensma, causing him to fall on to the road, and sped off. The vehicle was recovered nearby, though a backpack belonging to Mr Siemensma, containing a wallet and keys were missing. As a result of this incident, Mr Siemensma suffered a laceration and bruising to his nose, and grazes to his arms and legs. It is these facts that relate to Charges 14 and 15, theft, and Charge 16, conduct endangering persons.
29
At approximately 2.30 pm, Jason Randall received a phone call from his son, advising him that Mr Randall’s Holden Commodore, had been stolen from
Canopy Avenue, Alfredton. It is these facts that relate to Charge 17, theft.
30At approximately 7.15 pm, Sally Wills parked her Toyota Landcruiser at Lindisfarne Court, Lake Wendouree. The vehicle was left unlocked and unattended for approximately five minutes. When Ms Wills returned to the vehicle, she noticed it had been rummaged through, and a wallet, containing bank cards and $450 cash, were missing. It is these facts that relate to Charge 18, theft.
31At approximately 7.45 pm, police officers were informed that the stolen Commodore belonging to Mr Randall was sighted at the Victoria Bowls Club carpark, located at Victoria Street, Ballarat East. The police officers formulated a plan to approach the stolen motor vehicle and arrest the offenders.
32Detective Senior Constable Aggett together with Sergeant Brent McGuire, Detective Senior Constable Mark Howard and Senior Constable Hildebrand entered the carpark in an unmarked police vehicle with emergency lights activated. Detective Senior Constable Aggett drove to the right of a dividing median strip in the carpark. An unmarked police vehicle followed Detective Senior Constable Aggett’s vehicle into the carpark and Detective Senior Constable Canny subsequently entered the carpark in an unmarked police vehicle with emergency lights activated.
33Detective Senior Constable Aggett observed the Commodore in the carpark and a blue Ford Kuga reverse parked and on fire. The Kuga that was set on fire belonged to Vanessa Jackson. As a result of the fire, the vehicle sustained significant damage. It is these facts that relate to Charge 19, arson.
34You, Mr Cakebread, together with Mr Blazevicius and Mr Turner, ran to and entered the Commodore. Mr Blazevicius subsequently reversed the vehicle at speed. Detective Senior Constable Aggett drove towards the Commodore and observed Mr Blazevicius driving the Commodore.
35Detective Senior Constable Aggett stopped the police vehicle as Mr Blazevicius continued reversing. Mr Blazevicius stopped and accelerated directly at speed towards the police vehicle, forcing Detective Senior Constable Aggett to take evasive action by swerving to the right. Mr Blazevicius continued driving directly at the police vehicle, swerving late and narrowly missing the police vehicle as a result of the evasive action taken.
36Detective Senior Constable Canny observed Mr Blazevicius driving towards his police vehicle and immediately took evasive action, deviating approximately five metres to the right. Mr Blazevicius did not slow down and passed to the left of the police vehicle, narrowly missing the police vehicle as a result of the evasive action taken. The prosecution concede you, Mr Cakebread were not complicit in any of the driving by Mr Blazevicius, either in the car park, or up until your arrest.
37
Mr Blazevicius continued driving the vehicle away from police with you and
Mr Turner as passengers in the car. The vehicle remained under surveillance as it drove at excessive speeds on the Midland Highway and Princes Freeway.
38At approximately 9.10 pm, Senior Constable Ben Telfrod, Senior Constable Rebecca Gauci and Sergeant Brendan Payne were in a police vehicle stationary at the intersection of Morris Road and Heaths Road in Werribee. The police officers observed the Commodore drive through the intersection travelling east towards old Geelong Road in Werribee at a high rate of speed. The police officers also observed sparks coming from the rear passenger wheel of the Commodore and that the vehicle’s headlights were not operating.
39Sergeant Payne commenced following the Commodore which exited the freeway at Hoppers Crossing. The officers observed the vehicle to drive erratically, at high rate of speed and with sparks emitting from the rear passenger wheel along Boardwalk Boulevard, Dunning’s Road and Hackett’s Road in Point Cook.
40The officers observed the Commodore to be dumped in the vicinity of Reeves Street, Point Cook with you, Mr Blazevicius and Mr Turner running from the car. The Commodore was observed to be missing a wheel. The three of you were arrested.
41You were transported to Ballarat Police Station but refused to be interviewed. On 30 June 2020, you were interviewed in relation to the events regarding Charges 7 and 8 and provided a ‘no comment’ interview.
42You, Mr Harris were arrested on 5 June 2020 but refused to be interviewed. On 30 June 2020 you were interviewed in relation to the incident on 22 May 2020 and provided a ‘no comment’ interview.
Nature and gravity of the offending
43Dealing first with the offending common to both of you which includes all charges on Mr Harris’ indictment and Charges 7 and 8 of Mr Cakebread’s indictment. While your involvement in the offending relating to victims Pickering and Kondratiew is reflected in different charges in relation to each of you, considering the offending as a whole, the incident is an example of very serious and frightening criminal conduct. You were both in a stolen car that was used to chase and ram the victim's car a number of times with the intention of stopping the car and confronting the victims. You Mr Harris are responsible for the driving and ramming of the victim's car, which undoubtedly, would have been a terrifying experience for the occupants of the car. After you had caused the victim's car to stop, Mr Blazevicius together with you, Mr Cakebread then ran to the victim's car both armed with knives, demands were made, and the armed robbery took place. You Mr Harris then drove from the scene once the coaccused had returned to the car.
44In all the circumstances in my view the armed robbery can only be viewed as a serious example of armed robbery in company and although you, Mr Harris remained in the car, and have only been charged with robbery, you were instrumental in disabling the victim's car in order for your coaccused to approach the victims and commit the serious offences that then followed. You also drove the car from the scene. In relation to Charge 2, conduct endangering life, I view your conduct by driving and ramming the victim's car numerous times, as a serious example of the offence.
45The additional offending that relates to you Mr Cakebread covers the period of 19 May to 25 May 2020, thereby overlapping with the armed robbery that occurred on 22 May 2020. The offending represents a series of thefts, including numerous car thefts, and the burning of a car. While the motor vehicle thefts are serious offences, in relation to Charge 14, when stealing the car, your conduct also placed the victim in danger of serious injury when you drove away as he was attempting to stop you causing him to fall to the ground.
46The offending in relation to you Mr Cakebread demonstrates that you were, together with others, effectively on a criminal rampage over a two week period resulting in serious criminal conduct.
47A victim impact statement was prepared by Deborah Elford, the victim of Charge 2, in relation to you, Mr Cakebread. Ms Elford writes of the initial shock of her number plates being stolen. She also outlines the inconvenience of being absent from work and dealing with various bodies in relation to her new number plates. Ms Elford now feels hypervigilant about security in carparks.
48A victim impact statement was also prepared by Daniel Siemensma, the victim of Charges 14, 15 and 16 in relation to you, Mr Cakebread. Mr Siemensma eloquently writes of the anger and anxiety he has felt as a result of having his car stolen and being put in danger of serious injury by your driving. Mr Siemensma now feels wary about his safety and security and worries about being targeted again in the future. He has felt the need to change the locks at his house and no longer carries a wallet. It is clear this offending has had a lasting emotional impact on Mr Siemensma.
Personal circumstances
Brody Harris
49Turning first to you, Brody Harris. You were born in Ballarat you have two brothers, one sister and two younger half siblings.
50Your father abused alcohol and you often witnessed him being aggressive to your mother. He has also been incarcerated at various times throughout your childhood. You were a strong student, completing academic work beyond your years. Your parents separated when you were nine years of age and you then lived with your mother. Your father repartnered and you would often see your father’s new family at community events but otherwise had no contact with him. The separation of your parents and your disconnection from your father was distressing for you. It was at this difficult point in your childhood that your behaviour became problematic, you began incurring absences from school, using illicit substances, associating with anti-social peers and committing offences.
51At the age of 12 you elected to leave your mother to live with your father and his new family and moved to Ballarat Secondary School. You continued to struggle and left school at Year 8. You were introduced to methamphetamine at the age of 14 and the same year you were detained in youth detention, your first of many periods of youth detention and subsequently adult imprisonment. During this period of detention you were diagnosed with anxiety and depression and medicated for those conditions.
52You eventually returned to live with your mother after being released from custody. You left home and lived between houses of your friends and a family member’s car. In the absence of stable housing and supports, you became vulnerable to the influence of older peers and offenders who encouraged you to offend in circumstances where they benefited. Your criminal behaviour escalated as did your substance use. At times you have experienced drug induced psychotic symptoms and self-harmed. Whilst you wanted to return home, you were reluctant to because of the disappointment you felt that you brought to your family. You worked sporadically in the concrete industry through your father and his colleagues.
53Around four years ago you had a daughter with your then partner. Your daughter is now four years old and lives with your mother. Your daughter’s mother has not made active steps to regain custody.
54Since being in custody you have completed the equivalent of Year 10, have completed a Certificate 2 in engineering and obtained a forklift licence. You have also completed alcohol and drug courses in custody. It was submitted that you have been drug free whilst in custody and are on the methadone program. You have a good relationship with your parents and are particularly close with your mother. You look forward to building a positive relationship with your daughter upon release from custody.
55
A report from Forensic Psychologist Laura Fleming was tendered on the plea.
Ms Fleming outlined your personal history and conducted a psychometric assessment. Ms Fleming diagnosed you with Stimulant Use Disorder that is in early remission and Major Depressive Disorder and opined that these diagnoses were also present at the time of the offending. I have taken the contents of this report into account.
56I also note also that you are currently before me in relation to an appeal from a decision of the Magistrates' Court. The offending in part overlaps this offending relating to the commission of offences between October and November 2019, and May and June 2020 resulting in numerous offences including car thefts, other dishonesty charges and conduct endangering serious injury.
Jarrod Cakebread
57Turning now to you, Jarrod Cakebread. You were born in Bacchus Marsh and were raised in Ballarat with your mother. You had limited contact with your father who is an ice user and has served periods of time in custody. You have an older brother who is also a drug user and has recently been in custody, and a sister who has no history of offending or drug use. Your mother was in a relationship with a new partner for five years and he was physically abusive to her.
58At times your mother was unable to manage your behaviour and she battled with heroin use. You were placed in foster care as a result. From the age of 12 to 17 you lived in a number of residential care units in St Albans, Werribee, Horsham and Ballarat.
59You attended Learmonth Primary School to Grade 2 and Dana Street Primary School to Grade 6. You were bullied at school and diagnosed with a learning disability, Attention Deficit Hyperactivity Disorder (ADHD), Conduct Disorder and Oppositional Defiant Disorder (ODD) for which you were prescribed Ritalin. You attended Phoenix Community College for four months in Year 7 before being expelled due to an assault. You have had no further education beyond Year 7. You began using cannabis when you were 11 and ice and Xanax at 13. This was the beginning of your long-term drug habit and you have experienced drug induced psychosis. At the age of 14 you were driving a car which was involved in an accident. You suffered a left orbital fracture. It was around this age that you started committing offences and becoming involved in the youth justice system. You served your first period of youth detention at the age of 16.
60When you were 17 you left residential care and returned to live with your mother in Ballarat. You began using heroin at the age of 20. You were living at your mother’s address and using ice, GHB, cannabis and Suboxone leading up to this offending.
61You have one daughter to a previous partner who is around three years of age. You have not yet met your daughter.
62You have completed Year 10 whilst in youth detention in addition to a number of courses including obtaining your White Card certificate in construction. You are also on the methadone program.
63A report from psychologist Gina Cidoni dated 30 November 2020 was tendered on the plea. Ms Cidoni outlined your personal history and conducted psychological testing. In Ms Cidoni’s opinion, you meet the diagnostic criteria for ADHD and chronic Substance Use Disorder.
64Ms Cidoni later conducted intellectual testing, the results of which were outlined in a second report dated 30 April 2021. Ms Cidoni assessed your general cognitive ability as being within the extremely low range of intellectual functioning. Ms Cidoni writes that you have an IQ of 54, where more than 99 per cent of people your age would do better, indicating that you suffer an intellectual disability. Ms Cidoni is of the view that at this level you have serious problems with logic, foresight, planning, strategic thinking and understanding consequences.
Sentencing considerations
Common sentencing considerations
65
First, I take into account your pleas of guilty. In relation to each of you, your pleas were entered after a contested committal in the Magistrates’ Court and a case conference before me in this Court. I note in relation to you, Brody Harris, that you indicated a willingness to plead guilty to the charge of reckless conduct endangering life and theft prior to the committal. In relation to you,
Mr Cakebread, you indicated a willingness to plead guilty to all the charges except for Charge 8, armed robbery, prior to the committal hearing. That charge resolved to a plea of guilty after a case conference and sentencing indication before me.
66Your pleas of guilty have significant utilitarian benefit sparing the time and expense of a jury trial and saving witnesses from having to give evidence again. The pleas carry additional weight which must be reflected in a further amelioration in sentence, as the pleas have been entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]
[1] Worboyes v The Queen [2021] VSCA 169 at [39].
67Your time in custody has been particularly onerous due to conditions in prisons arising from the COVID-19 pandemic. Prisoners have been subjected to lockdowns, quarantine periods and restrictions on personal visits, education and rehabilitative programs. Given the current state of the virus in the community, restrictions may remain for some time. I take these matters into account in relation to you both.
68You both come before the Court with lengthy and relevant criminal histories, in each case commencing in 2013, comprising dishonesty, drug and driving offending. As your criminal histories commenced when you were both very young and has progressed from the Children’s Court to the adult jurisdiction while you have remained youthful offenders, you have each been given a number of dispositions that have focused on rehabilitation. Further, you each have a history of breaching orders such as community correction orders, probation orders and youth supervision orders.
69I take into account the fact that you are both still youthful offenders, you Brody Harris being 23 years of age, and you, Jarrod Cakebread being 22 years of age. You were both 21 at the time of the offending. However, the serious nature and the extent of the offending in this instance lessens to a degree the weight to be given to youth in order to give way to other sentencing considerations.
70In my view the other relevant sentencing considerations such as general and specific deterrence, denunciation of your conduct and protection of the community must carry weight in the sentencing discretion in this instance in relation to both of you and therefore the mitigating effect of your youth is necessarily reduced. However, as you are still young offenders, despite your extensive criminal history and the seriousness of the offending, in my view a longer than usual period of parole will offer you a level of supervision in the community as you continue your rehabilitation, once granted parole.
Brody Harris
71Mr Terry who appeared on behalf of you Mr Harris, submitted that your offending is able to be distinguished from that of Mr Blazevicius as he was actively involved in the armed robbery and the very serious offending when he stabbed the victim in the course of the armed robbery. It is self-evident that there is a difference between roles and indeed you are charged with robbery and Mr Blazevicius with armed robbery therefore parity is not directly relevant. Nonetheless, Mr Plummer, who appeared on behalf of the Director of Public Prosecutions, submitted that your role in the robbery was an active one, in that you disabled the victim's car and prevented them from escaping while the armed robbery took place. You then drove your co offenders away from the scene.
72Mr Terry did not seek to rely on Verdins principles however drew attention to parts of Ms Fleming’s report in order to give some context to the offending in relation to your broader psychological background. Ms Fleming points to your self-medication with methamphetamine in order to deal with depression that she opines has been with you since childhood. More positively, Ms Fleming is of the view that you are maturing and while you will need significant support in the community, you are beginning to realise the effect your behaviour has on others.
73As to your prospects of rehabilitation, at this stage they cannot be assessed positively. You have an extensive criminal history and have been unable to overcome your battle with drugs despite a number of attempts through rehabilitative orders. Ms Fleming identifies that you will need significant supports once you are released into the community, including residential drug rehabilitation, in order to remain drug free. Recognising that you are beginning to mature, in my view a longer than usual parole period may assist you in availing yourself of the opportunity to continue on that pathway.
Jarrod Cakebread
74Ms McGarvie, who appeared on behalf of you, Mr Cakebread accepted that while there are some personal differences between you and Mr Blazevicius, your roles in relation to the armed robbery were similar. Mr Blazevicius proceeded to commit the additional offence of recklessly causing serious injury, however I accept the position of the prosecution that you played an active role in the armed robbery and you continued to make demands while holding a knife at the victim. As to parity in relation the other charges common to Mr Blazevicius, again there is little to distinguish you in terms of participation. Parity however becomes relevant when consideration is given to your personal circumstances, most particularly, your intellectual disability.
75Ms McGarvie submitted that as a result of your intellectual disability, limbs one and three of Verdins are enlivened; that is, that your impaired intellectual functioning reduces your moral culpability and moderates the principle of general deterrence. Mr Plummer did not take issue with the submission, however submitted that given the active and dominate role you played in relation to the armed robbery specifically, any reduction should be minimal. While I accept that you did play a very active role, nonetheless your impaired functioning, which is significant, affects all aspects of your life and was extant over the time of your offending. Thus in my view your disability is relevant and allows for some moderation of the sentences I impose.
76As to your prospects of rehabilitation, like Mr Harris, at this stage they cannot be assessed positively without you having extensive supports in place including residential drug rehabilitation. Further, as noted by Ms Cidoni, you are a disadvantaged young person who is showing signs of institutionalisation. Given your intellectual deficits Ms Cidoni believes that you will be likely to be eligible for NDIS support which would strengthen your support systems in the community. In my view a longer than usual parole period may assist you in availing yourself of supports upon release while under a sustained period of supervision in the community.
Sentence
Brody Harris
77Mr Harris please stand.
78Brody Harris, on Charge 1, theft, you are convicted and sentenced to 6 months' imprisonment. On Charge 2, conduct endangering life, you are convicted and sentenced to 2 years imprisonment. On Charge 3, robbery you are convicted and sentenced to 2 years and 6 months imprisonment. On Summary Charge 4, unlicensed driving, you are convicted and sentenced to 14 days imprisonment.
79I direct that 6 months of the sentence on Charge 2 and 2 months of the sentence on Charge 1 be served cumulatively on each other and on Charge 3 making for a total effective sentence of 3 years and 2 months imprisonment. I direct that you serve 20 months before becoming eligible for parole.
80Pursuant to s 18 of the Sentencing Act1991, I declare that 512 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
81Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to a period of 4 years' imprisonment with a non-parole period of 2 years and 3 months.
82Pursuant to s 89(4) of the Sentencing Act 1991 any licence you hold is cancelled and you are disqualified from obtaining a driver's licence for a period of 2 years from today.
83You can have a seat, Mr Harris.
Jarrod Cakebread
84Mr Cakebread, please stand.
85Jarrod Cakebread, on the motor vehicle theft charges, that is Charges 5, 6, 7, 10, 12, 14 and 17, you are convicted and sentenced to 5 months imprisonment on each charge. On the remaining theft charges, Charges 1, 2, 9, 11, 13, 15 and 18 you are convicted and sentenced to 2 months imprisonment on each charge. On Charges 3 and 4, attempted theft of motor vehicles, you are convicted and sentenced to 2 months imprisonment on each charge. On Charge 8, armed robbery, you are convicted and sentenced to 3 years and 3 months imprisonment. This is the base charge. On Charge 16, conduct endangering persons you are convicted and sentenced to 4 months imprisonment. On Charge 19, arson you are convicted and sentenced to 18 months imprisonment.
86I direct that 2 months of the sentence on Charge 16, and one month of the sentence on Charges 5, 6, 7, 10 ,12 , 14, 17 and 19 be served cumulatively on each other and on Charge 8, making for a total effective sentence of 4 years and 1 month. I direct that you serve 2 years and 2 months before becoming eligible for parole.
87Pursuant to s 18 of the Sentencing Act1991, I declare that 500 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
88Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to 5 years and 3 months imprisonment with a non-parole period 3 years.
89Pursuant to s 89(4) of the Sentencing Act 1991 any licence you hold is cancelled and you are disqualified from obtaining a driver's licence for a period of 2 years from today.
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