Director of Public Prosecutions v Honeysett and Taylor
[2021] VCC 128
•11 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-20-00835
CR-20-00831
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN HONEYSETT and WAYNE TAYLOR |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2020, 22 September 2020, 14 December 2020 | |
DATE OF SENTENCE: | 11 February 2021 | |
CASE MAY BE CITED AS: | DPP v Honeysett and Taylor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 128 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Crimes Act 1958; Road Safety Act 1986; Sentencing Act 1991
Cases Cited:R v Bugmy (2013) 249 CLR 571; DPP v Drake [2019] VSCA 293; R v Verdins (2007) 16 VR 269; DPP v Heyfron [2019] VSCA 130; Azzopardi; Baltatzis; Gabriel (2011) 35 VR 43; The Queen v Mills (1998) 4 VR 235; ReKennedy [2020] VSC 187; DPP v Herrmann [2019] VSCA 694; DPP v Green [2020] VSCA 23; Walker and Dargan v the Queen [2019] VSCA 137; Umi v the Queen [2013] VSCA 211
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Wingrove | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms. J Turfrey | Martin Middleton Oates Lawyers |
HIS HONOUR:
Introduction
1Dean Honeysett and Wayne Taylor, you have pleaded guilty to an indictment containing 11 charges, together with a number of related summary offences.
2Dean Honeysett, you pleaded guilty to the following charges:
· theft of motor vehicle (Charges 1 and 3), which carries a maximum penalty of 10 years’ imprisonment;[1]
· armed robbery (Charge 2), which carries a maximum penalty of 25 years’ imprisonment;[2]
· theft (Charge 4), which carries a maximum penalty of 10 years’ imprisonment;[3]
· bringing stolen goods into Victoria (Charge 5), which carries a maximum penalty of 15 years’ imprisonment;[4]
· dangerous driving while pursued by police (Charge 6), which carries a maximum penalty of 3 years’ imprisonment.[5]
[1]s74(1) Crimes Act 1958
[2]s75A Crimes Act 1958
[3]s74(1) Crimes Act 1958
[4]s88 Crimes Act 1958
[5]s319AA Crimes Act 1958
3You also pleaded guilty to the related summary offence of unlicensed driving (Summary Charge 8), which carries a maximum penalty of 60 penalty units or imprisonment for no more than 6 months.[6]
[6]s18(1)(a) Road Safety Act 1986
4Wayne Taylor, you pleaded guilty to the following charges:
· theft of motor vehicle (Charges 1, 7 and 11), which carries a maximum penalty of 10 years’ imprisonment;[7]
· armed robbery (Charge 2), which carries a maximum penalty of 25 years’ imprisonment;[8]
· theft (Charges 8 and 10), which carries a maximum penalty of 10 years’ imprisonment;[9]
· dangerous driving while pursued by police (Charge 9), which carries a maximum penalty of 3 years’ imprisonment.[10]
[7]s74(1) Crimes Act 1958
[8]s75A Crimes Act 1958
[9]s74(1) Crimes Act 1958
[10]s319AA Crimes Act 1958
5You also pleaded guilty to the related summary offences of unlicensed driving (Summary Charge 6), which carries a maximum penalty of 60 penalty units or imprisonment for no more than 6 months,[11] and failing to stop a vehicle on police direction (Summary Charge 13), which carries a maximum penalty of 60 penalty units or imprisonment for 6 months if a first offence, and for a subsequent offence 120 penalty units or imprisonment for 12 months.
[11]s18(1)(a) Road Safety Act 1986
6You also both admitted your criminal records.
Circumstances of Offending
7
The details of your offending were set out in the Summary of Prosecution Opening on Plea dated 2 September 2020. Abridged versions were read out at your respective Koori Court plea hearings and sentencing conversations on
21 September and 22 September 2020 respectively.[12]
[12]The original Summary of Prosecution Opening on Plea dated 2 September 2020 is Exhibit C, the abridged Prosecution Opening in relation to Mr Honeysett is Exhibit D, and the abridged Prosecution Opening in relation to Mr Taylor is Exhibit F
8Abridged Prosecution Openings were read during the County Court plea hearings (21 September and 22 September) due to the relevant Koori Court COVID-19 protocols and restricted hearing times.
9At the time of the offending you were both residing in Wagga Wagga in New South Wales. You, Mr Honeysett, were aged 28, and you, Mr Taylor, were aged 21.
10On 14 December 2019, you were both staying at a residence in Braybrook. Between 9:00pm on that day and 12.26am on 15 December 2019, you, Mr Taylor, were involved with another offender in breaking into a residential address in Keilor, where numerous items were stolen, and you both drove away in a black 2013 Holden Commodore station wagon (herein after referred to as, 'the Commodore') belonging to Joel Sadler. You, Mr Taylor, have not been charged in relation to this offending and, accordingly, will not be sentenced in relation to it.
11Later, on 15 December 2019, unknown offenders stole a black 2015 Holden Cruze vehicle ('the Cruze') from Jennifer Leksas in Mildura, and a silver 2007 Peugeot wagon ('the Peugeot') belonging to Oliver Kerr, also from Mildura.
12The offending with which you were both charged and have now pleaded guilty took place between 15 December 2019 and 17 December 2019.
13At 4.09am on 15 December, the Commodore was driven into a BP service station in Ballarat Road, Braybrook. You, Mr Honeysett, got out of the passenger seat of the vehicle and filled it with a quantity of petrol valued at $22. A police car drove into the service station, at which point you jumped back into the passenger seat of the stolen vehicle, which was driven away with no attempt to pay for the petrol. Your conduct in this regard, Mr Honeysett, forms the basis of Charge 3 on the indictment, theft of the Commodore, and Charge 4, theft of petrol.
14Also on 15 December 2019, a friend of both of you drove the Cruze to Ouyen, where he met both of you who were then in the Commodore. At approximately 7.45 pm on that day, a police member observed the Commodore and the Cruze being driven at an excessive speed. However, an attempt to pursue the two vehicles was unsuccessful in locating either vehicle. At approximately 7.48pm on that day, the Commodore and the Cruze were driven to a location in Ouyen, where both of you transferred your belongings from the Commodore to the Cruze before leaving with your friend in the Cruze, leaving the Holden Commodore behind. In relation to both of you, your conduct in entering the Cruze, a stolen vehicle, forms the basis of Charge 1 on the indictment, theft of motor vehicle. The Commodore was subsequently located by police.
15In the period following your collective departure in the Cruze, the vehicle was observed by police to be speeding, with speed detectors variously indicating the vehicle was travelling at 98 kph in a 60 kph zone, and 172 kph in a 100 kph zone.
16
In the early hours of 16 December 2019, you, Mr Taylor, were involved in another petrol drive off in Buronga, New South Wales, in connection with the Cruze. You have not been charged with this interstate offence and, accordingly, you will not be sentenced in relation to this conduct. However, at 2.46am on
16 December 2019, you exited the driver’s door of the Peugeot at a petrol station in Irymple, filled the vehicle with $50.19 worth of petrol, before getting back in the vehicle and driving away without making any attempt to pay for the petrol. The Cruze followed the Peugeot and likewise drove away. Your conduct, Mr Taylor, in relation to the Peugeot forms the basis of Charge 7 on the indictment, theft of a motor vehicle, and Charge 8, theft of petrol.
17At 5.30am on 16 December 2019, police were called to a location in Buronga, New South Wales, where they discovered that the Peugeot had been destroyed by fire.
18At 6.17am on 16 December 2019, the Cruze was driven into a Caltex service station in Mildura. You, Mr Honeysett, exited the vehicle wearing a black balaclava and white gloves. You were carrying a sawn-off shotgun. You, Mr Taylor, exited the vehicle wearing a black balaclava and a white glove on your left hand. You were carrying a metal pole. A third unknown person remained inside the Cruze.
19
Both of you entered the store and approached one of your victims, JE[13], who was standing at the counter. Whilst holding the sawn-off shotgun, you,
Mr Honeysett, said, 'Get the money and the smokes', to Ms Emmett, who called for her co-worker, SS, to help her. You, Mr Honeysett, went to a nearby wheelie bin and told both women to put the money and cigarettes inside. You,
Mr Taylor, came around the back of the counter and stood behind Ms JE.
Ms SS tipped the contents of the cash register into the bin, with some of the money going inside and some going onto the floor. You, Mr Honeysett, repeatedly yelled, 'Hurry up', and, 'Smokes, smokes, smokes', as the women loaded the bin full of cigarettes. You, Mr Honeysett, grabbed the bin when it had been filled with approximately $630 in cash and $5,600 worth of cigarettes. You both exited the store and loaded the bin and its contents into the Cruze, before getting into the vehicle and driving away. The conduct of both of you in relation to this incident forms the basis of Charge 2 on the indictment, armed robbery.
[13] Note: The names of the victims in this matter have been anonymised to protect their confidentiality.
20Later that day, on 16 December 2019, you, Mr Honeysett, engaged in another petrol drive off using the Cruze at a location in Buronga, New South Wales. Again, you do not fall to be sentenced in relation to this interstate offending.
21Between 2.14 pm and 3.15 pm on 16 December 2019, you, Mr Taylor, drove the Cruze to a farm in Paringi, New South Wales, and you, Mr Honeysett, then stole a white Toyota Hilux ('the Hilux') which was located on the property. You drove away in convoy with Mr Taylor, who continued driving the Cruze with one or two unidentified passengers also inside. Subsequent police attempts to locate the two stolen vehicles in New South Wales were unsuccessful.
22At approximately 3.04pm on 16 December 2019, Victoria Police established a road block using 'stop sticks' on the Victorian side of the state border with New South Wales at the Abbotsford Bridge in Yelta. At approximately 3.30pm, the two stolen vehicles crossed into Victoria by way of the Abbotsford Bridge, the Hilux being driven by you, Mr Honeysett, followed by the Cruze driven by you, Mr Taylor. Both vehicles drove through the roadblock without stopping, the stop sticks deployed by police causing the left hand tyres of the Hilux to be blown out, reducing its ability to drive at excessive speed. The left-hand tyres began to disintegrate and continued to do so throughout the subsequent police pursuit. The Cruze, which matched the speed that the Hilux was able to travel at, travelled between 74 and 99 kph during the subsequent police pursuit.
23The two vehicles continued down the Calder Highway with police vehicles in pursuit, with the Hilux in the lead. At various times the two vehicles moved onto the wrong side of the road, driving into oncoming traffic at high speed, causing other vehicles to take evasive action to avoid a collision. At one point, the Hilux was on the left-hand side of the road with the Cruze on the wrong side of the road, which accelerated so that it drew level with the Hilux. By this stage the wheels of the Hilux had disintegrated to the point that the vehicle was driving on its left hand side rims. At one point the Hilux drove into the middle of the road and began swerving, while the Cruze maintained its position on the wrong side of the road and continued driving into oncoming traffic, with both vehicles travelling at approximately 83 kph at this stage. The Hilux swerved into oncoming traffic in front of the Cruze, causing another vehicle to be forced off the road to avoid a collision. The Hilux continued to swerve on the wrong side of the road into oncoming traffic as the pursuit continued.
24At approximately 3.35pm the Cruze swerved back onto the wrong side of the road behind the Hilux. The Hilux braked heavily while on the wrong side of the road, causing a further two approaching vehicles to pull over to avoid a collision. The Hilux then swerved left from the left hand shoulder of the road at 33 kph, causing it to collide with the front side of the lead pursuit vehicle being driven by Senior Constable Litchfield.
25
You, Mr Honeysett, opened the driver side door while the vehicle was still moving in an attempt to jump into the passenger side of the Cruze. Multiple police vehicles surrounded the Hilux and you got out of the car. A police vehicle attempted to prevent you from fleeing the scene on foot. Another police vehicle collided with you, Mr Honeysett, knocking you to the ground. The Cruze, driven by you,
Mr Taylor, did a U-turn and drove away at a high rate of speed. Police were unable to apprehend you. You, Mr Honeysett, were placed under arrest and conveyed to the Mildura Police Station. Neither you, Mr Honeysett, nor you, Mr Taylor, had a valid Victorian or New South Wales driver’s licence at the time of this incident.
26
Your conduct, Mr Honeysett, in bringing the stolen Hilux into Victoria forms the basis of Charge 5 on the indictment, bringing stolen goods into Victoria. The driving conduct of both of you forms the basis of Charges 6 and 9 on the indictment, dangerous driving while pursued by police. The conduct of both of you in driving without a licence forms the basis of the related Summary Charges 6
and 8 of unlicensed driving.
27Some hours later, at approximately 1.01am on 17 December 2019, you, Mr Taylor, drove the Cruze to an address in Mildura and removed the registration plates that had been affixed to the vehicle. You replaced them with the registration plates belonging to a nearby parked vehicle and drove away in the Cruze. Your conduct in this regard forms the basis of Charge 10 on the indictment, theft of registration plates.
28At approximately 2.58am on 17 December 2019, the Cruze was driven to an address in Mildura. You, Mr Taylor, exited the front passenger seat and entered an unlocked black 2007 Mercedes coupe, discovering the keys located inside the vehicle. An unknown driver drove away in the Cruze, with you, Mr Taylor, following in the stolen Mercedes coupe. Your conduct in this regard forms the basis of Charge 11 on the indictment, theft of a motor vehicle.
29Shortly after, at 3.40am on 17 December 2019, you were observed by police to be travelling at a speed of 104 kph in a 60 kph zone in the Mercedes coupe. Police pursued the vehicle. However, the coupe fled north on Deakin Avenue in Mildura and evaded police. Your conduct in this regard forms the basis of the related Summary Charge 13, failure to stop vehicle upon police direction.
30At 5.19am on 17 December 2019, the Cruze was observed by police at a location in Mildura, with two unidentified persons inside, who fled upon police arrival without being located. A police search of the vehicle revealed various items connected with the earlier offending, including a blue wheelie bin with numerous cigarette packets that had been stolen from the Caltex service station, a black balaclava, two white gloves and a sawn-off shotgun used in the armed robbery. Fingerprints belonging to both of you were found in the interior and exterior of the car. A few hours later, at approximately 9:00am, police were called to a location in Mildura in relation to a drug affected person on a roof. You, Mr Taylor, were observed by police on the roof of a property approximately two blocks away from where the Cruze was located. You were arrested and conveyed to the Mildura Police Station.
31
During subsequent police interviews conducted on 17 December 2019, you,
Mr Honeysett, answered, 'No comment', in relation to the allegations put to you. Following a suspension of the interview due to you being drug affected and requiring food and sleep, you, Mr Taylor refused to be interviewed or to hear the allegations put to you by police. You were both charged and remanded in custody.
32Mr Honeysett, you have been in custody since 16 December 2019, equating to a period of 423 days of pre-sentence detention. Mr Taylor, you have been in custody since 17 December 2019, a period of 422 days of pre-sentence detention.
Impact on Victims
33The two victims in relation to the armed robbery both provided Victim Impact Statements in this matter, both dated 3 July 2020 respectively.[14]
[14]Statement of Susan Smith, Exhibit A; Statement of Joanne Emmett, Exhibit B
34Both statements collectively represent powerful examples of the catastrophic impacts of offending on victims of crime. Ms JE indicated in her Victim Impact Statement that the incident had:
'… destroyed my life, it has put pressure on my marriage. I am now suffering from PTSD and anxiety. I see a psychiatrist and a psychologist so that I can manage the symptoms. I am on medications to manage and get through the day. … On the morning of the crime I thought I was going to die, I froze and then went into autopilot and did what I was told to do. … The simple things in life I now find challenging, like doing the shopping. I would have anxiety attacks when I tried to go out the door. I avoid people, I do not want to talk to them. … I have not returned to work since the crime, it has now been around seven months. … I have a great fear of being broken into in my own home now, this was never there before I always felt safe. I keep the doors locked, I can’t leave them open now. … I would like my life back.'
35According to Ms SS:
'I was so scared I thought I was going to die. … I have had to get help from medical professionals, psychiatrist and psychologist. I feel scared to go out alone. If I have to my anxiety flares, I have heart palpitations. … My asthma has gotten worse since the incident. I have to prepare myself for when I go out alone. … I lock all doors now when I am home, I checked [sic] behind closed doors all the time and leave lights on at night. These feelings are terrible to live with. I have gained weight and I don’t sleep much. I used to feel safe at home and I used to walk around the house in the dark. I never turned the lights on. It makes me angry that this has turned my world upside down and that I have to regain everything back. … I had to stop working and that financially was weighing heavily on me.'
36Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process. In formulating appropriate sentences in your cases, I have taken into consideration the Victim Impact Statements provided in this case.
Nature and Gravity of Your Offending
37Collectively, I regard your offending as particularly serious. You both engaged in an intense spree of criminal offences between 15 and 17 December 2019. During this time you both showed a complete disregard for the law, engaging in extremely serious and dangerous behaviour. I agree with the prosecution submission that your offending in relation to the armed robbery offence, and the subsequent dangerous driving whilst being pursued by police, represents the most concerning of your behaviour.
38In relation to the armed robbery, Charge 2 on the indictment, the gravity of this offence is of course reflected in the maximum penalty of 25 years’ imprisonment. Furthermore, the gravity of the offence of armed robbery is reflected in the fact that it is a Category 2 offence, meaning that pursuant to the relevant provision of the Sentencing Act 1991, a court must impose a custodial order unless one or more of the criteria set out in s.5(2H)(a) to (e) apply. No such submission was made on your behalf in this case.
39The prosecution submitted that the armed robbery offence represented a serious example of this offence and fell within the mid to high range of seriousness for that charge. I agree that this instance of armed robbery represents at least a mid-level example of such offending. There are, in my view, a number of features of this offence which justify such a finding.
40You committed the armed robbery at 6.17am on a service station in Mildura. There were two female staff members working at the time. I am satisfied, therefore, that you chose what is often described as a 'soft target', for this offence – a service station which would then have likely not been busy, and which was staffed by two female workers who were certainly entitled to feel safe in their employment. Such premises often have at least reasonable sums of money, do not have particularly sophisticated measures with which to mitigate such offending, and therefore represent relatively easy targets for offenders.
41Your offending occurred in company, which no doubt increased the level of fear and apprehension in your victims. There was a degree of planning involved, as each of you entered the store wearing balaclavas concealing your identity. You, Mr Honeysett, were wearing white gloves and you, Mr Taylor, were wearing one white glove, indicating some degree of forethought in relation to the avoidance of fingerprints. You were both armed: You, Mr Honeysett, with a sawn-off shotgun; and you, Mr Taylor, with a metal pole. These weapons were not only carried, they were clearly visible to your victims. Photographs showing your conduct at the service station were tendered at your plea hearing and marked Exhibit G.
42Particularly in relation to you, Mr Honeysett, I am satisfied that the sawn-off shotgun was carried in a menacing manner. At times, you were holding it with both hands in a horizontal posture in the general direction of your victims. Whilst there was no actual violence used by either of you above and beyond the inherently violent nature of this offence, and there were no threatening words used, your conduct collectively inside the service station reflected a degree of determination in obtaining the cigarettes and cash before leaving. The gravity of your conduct is of course clearly highlighted by the effect of your offending on your two female victims. They both believed they were going to die.
43You both succeeded in obtaining approximately $630 in cash and $5,600 worth of cigarettes, a reasonably significant value in relation to this particular type of armed robbery. Finally, you were both subject to New South Wales parole at the time of the offending – you, Mr Honeysett, having been on parole from earlier in 2019 and you, Mr Taylor, having only been released from custody on parole some days prior, on 3 December 2019. In my view, the commission by you of this serious offence whilst subject to parole is a significant aggravating factor.
44In respect of the charge of dangerous driving while pursued by police (Charges 6 and 9 on the indictment), I agree with the prosecution that your conduct represents a serious example of this offence, and falls within the higher range of seriousness for that charge in respect of both of you. You each drove stolen vehicles through a police blockade on the New South Wales/Victorian border and continued driving for some time in a highly dangerous manner while being pursued by multiple police vehicles. This included driving at high speeds on the wrong side of a dividing line on a major highway in the direction of oncoming traffic.
45You, Mr Honeysett, continued driving the Hilux despite the left-hand side tyres being blown out by the police blockade, and eventually you were driving on the rims of the wheels. Several vehicles were forced to pull over to avoid a collision as a result of your driving. Through your conduct you placed numerous members of the public and police officers at risk of potentially serious injuries. Photographs of your driving in this regard were tendered at your plea hearing and marked Exhibit G. In my view, your conduct was sustained, determined and extremely dangerous.
46In relation to the theft charges relating to you, Mr Taylor, it is accepted by the prosecution that the theft of registration plates (Charge 10) and theft of petrol (Charge 8) represent low level examples of this offence. The same cannot be said for the three theft of motor car charges (Charges 1, 7 and 11). Whilst your criminal liability in relation to the theft of the Cruze and Peugeot arises through you knowingly being a passenger in the stolen vehicles, you were directly responsible for the initial theft of the Mercedes coupe. Motor vehicles are significant assets, the loss of which is often keenly felt by the victims. The monetary value, in particular of the Cruze and the Mercedes coupe, was substantial. Furthermore, the Cruze was utilised by both you and Mr Honeysett in the commission of the armed robbery, and you drove the Cruze during the pursuit later that day.
47In relation to you, Mr Honeysett, the gravity of your conduct in relation to the theft charges (Charges 1, 3 and 4) is similar to that of Mr Taylor. You are criminally responsible for the theft of two motor vehicles, the Cruze and the Commodore, on the basis that you were knowingly a passenger in a stolen vehicle. Furthermore, your conduct in bringing the stolen Hilux into Victoria (Charge 5) carries an increased maximum penalty of 15 years, reflecting the gravity of this particular conduct. As was the case with regard to Mr Taylor, the theft of petrol (Charge 4) represents a low level example of the offence of theft.
Personal Circumstances
Dean Honeysett
48
Firstly, Dean Honeysett. You are now 29 years of age. You are a Wiradjuri-Barkindji man, growing up in Wagga Wagga. You have six younger siblings, three sisters and three brothers, including
Mr Taylor. Your mother gave you to her mother to care for at approximately four years of age due to family violence by your father. You were then raised by your grandmother until her death from cancer when you were aged 14. You have reported that your grandmother’s death came as a shock to you and that afterwards everything changed. You described your emotions at this time as feeling very sad, having thoughts of suicide, and that you had no future.
49According to your mother, you started getting into trouble with the police only some weeks after your grandmother’s death. You have reported that your feelings of depression and isolation during this period led you to start drinking alcohol from the age of 14. You reported that sometime after your grandmother’s death, you returned to live with your mother.
50Your school attendance deteriorated also after your grandmother’s death and you did not manage to complete Year 8. You have had very little employment since leaving school. You have reported that the bulk of your acquaintances and friends since your mid-teens appear to have been involved in some level of drug abuse and criminal behaviour. Each of your male siblings, together with friends and acquaintances, have all been involved in drug use and offending. Your brothers are all incarcerated in either New South Wales or Victoria, and one of your sisters is also incarcerated at present.
51You have reported significant substance use dating back to the age of approximately 14, when you commenced drinking alcohol and using cannabis and methylamphetamine. You drank heavily throughout your mid-teens, drinking approximately 12 full strength cans of beer and some spirits or wine every day, reporting drinking, 'anything I could get my hands on'. You persisted with daily ice use between the ages of 18 and 29, with the exception of a period of months around 2014 or 2015 when you reduced your use to weekends only. You have described your ice use as, 'Just getting worse and worse', and that you have tried to stop using ice on multiple occasions but have been unable to get through the period of strong cravings without resuming use.
52You have reported commencing cannabis use at the same time as your ice use as a way of getting to sleep. You have reported concurrently using ice and cannabis, and that you perceive that the two are inextricably linked. You have reported previously using illicitly obtained Buprenorphine whilst incarcerated. You have reported that you are now currently on the Methadone program. You have reported a desire to stop using substances because you want to work when you return to the community and because you see drug use as a primary cause of your offending behaviour.
53According to your counsel, you were heavily affected by ice at the time of your offending.
54Your counsel submitted, and I accept, that you have had a disadvantaged upbringing marked by poverty, fighting, alcoholism, drugs and criminal activity. You have been exposed to violence, drug use and dysfunctional behaviour. You have experienced instability, limited education and grief. I was informed that since the age of 15 you have only spent in total, around two or three years out of prison. Unsurprisingly, you have had limited work opportunities due to your chronic polysubstance abuse history.
55At your counsel’s request, I ordered that you be assessed by Forensicare for the purposes of a pre-sentence report dealing with any psychological factors of relevance. A report was provided by Associate Professor Troy McEwan from Forensicare dated 17 November 2020. I have considered that report, which has been of considerable assistance in this matter.
56According to Associate Professor McEwan, you meet the diagnostic criteria for multiple substance use disorders.[15] You have a history of anxiety and depression and reported that you had taken antidepressant medication for a number of years up until 2017 to 2018.[16] According to Associate Professor McEwan, it is likely that you have experienced episodes of major depressive disorder in the past and, whilst he did not diagnose you with a depressive illness, you are at high risk of experiencing depression in the future.[17]
[15]Associate Professor Troy McEwan, Psychology Court Report (dated 17 November 2020), paragraph 30
[16]Ibid paragraph 33
[17]Ibid paragraph 37
57According to Associate Professor McEwan, there is sufficient evidence to support a diagnosis of a moderate personality disorder with borderline and antisocial traits.[18] You appear to have disturbed self and interpersonal functioning, with moderate to severe impairment in your sense of identity and self-direction, and some impairment in the domains of empathy for others and capacity for intimacy.[19]
[18]Ibid paragraph 44
[19]Ibid paragraph 41
58In relation to your criminal history, you reported to Associate Professor McEwan a very limited memory of different offences on sentencing occasions. Clearly though, you have a reasonably significant criminal history, both in New South Wales and Victoria. You have prior findings of guilt in relation to dishonesty matters, driving offences and some assault-related matters. Significantly, you have prior convictions for reckless driving which have resulted in a sentence of imprisonment. On 26 March 2019 at the Albury Local Court you received a term of imprisonment with a non-parole period for driving dangerously and not stopping in relation to a police pursuit. I understand that you were on parole in relation to this matter at the time of the current offending. You also have a prior conviction from 2016 for matters which include robbery, for which you received a term of imprisonment.
59In relation to the offending for which you now fall to be sentenced, you informed Associate Professor McEwan that you committed the armed robbery to support your drug habit and you drove dangerously during the police pursuit because you knew you were going back to jail and did not want to do so. You reported being intoxicated with ice throughout the time of the car thefts, armed robbery and police pursuit.
60Whilst Associate Professor McEwan diagnosed you with a moderate personality disorder, according to him there was limited evidence of strong pro-criminal or violence supportive orientation requiring specific treatment and, in the view of Associate Professor McEwan, when not drug affected or drug seeking, there was little to suggest that you had a positive view of criminal behaviour or lifestyle.[20] You were able to express remorse for the impacts of your behaviour on your victims and were able to articulate the need for intervention to reduce the chances of re-offending in the future.
[20]Associate Professor Troy McEwan, Psychology Court Report (dated 17 November 2020) paragraph 57
61Associate Professor McEwan concludes by indicating, in relation to the current offending, that you were likely experiencing significant emotional stress in the two weeks between your release from prison in New South Wales and the offending, with which you would have struggled to cope effectively given the presence of your personality disorder. In the absence of more adaptive coping strategies, you respond to strong negative emotional states by using stimulants to improve your mood and relieve your anxiety. In this state, you become disinhibited, highly egocentric, and demonstrate little concern for the welfare of others.
62According to Associate Professor McEwan, you require treatment for substance use. You will need to engage with drug and alcohol interventions, both during your time in prison and then more intensively after release. Your personality disorder may mean that you find it easier to cope with challenges in the structured prison environment than in the community. However, according to Associate Professor McEwan, the disorder could make your experience of incarceration more challenging because you are more prone than others to experience heightened anxiety and depression.
63Whilst there are treatments available for borderline personality disorder which have been demonstrated as being effective in reducing symptoms of the illness, according to Associate Professor McEwan, these treatments are generally not available in any significant capacity in most male prisons in Victoria. This means that you may not be able to access appropriate treatment for your disorder while incarcerated. Associate Professor McEwan recommended cultural engagement on your part which may offer you the opportunity to develop an alternative identity away from offending. According to Associate Professor McEwan, you would benefit from a substantial period on parole at the end of any period of imprisonment.
64
In terms of your recent progress, I was informed by your counsel that you have been working in industries in prison, building cabinets and pallets, which has been good for your mental health. You have remained abstinent from drugs whilst on remand and have been participating in a Koori men’s group and the
Torch Program, an art-based program for Koori prisoners.
Wayne Taylor
65Turning now to you, Wayne Taylor, you are now 22 years of age. You are a Wiradjuri-Barkindji man, having been born in Mildura and growing up in Wagga Wagga, New South Wales. You are the second youngest of seven children. Like your brother, Dean, you have endured a difficult life marked by disadvantage, instability, exposure to dysfunctional behaviour, violence, drugs and criminality. Indeed, you have spent such a considerable period of your young life in prison or detention that, unsurprisingly, you now feel institutionalised.
66You were raised predominantly by your mother, your father being largely absent due to being in and out of prison. You witnessed your father’s violence towards your mother on occasions. You have no positive memories of your father and do not now speak to him. Having been born and raised in Wagga Wagga, you moved to Albury in Grade 6. This was due to your mother being concerned that you and your siblings were being exposed to negative influences. Unfortunately, you sought out an antisocial peer group in Albury, and soon started truanting. You attended school to Year 9 level before first being incarcerated in a Youth Justice Detention Centre.
67Your counsel indicated that upon leaving school you spent much time with your brothers and you apparently particularly looked up to your older brother, Dean. From your young teenage years you have experienced polysubstance use. You commenced using cannabis at the age of approximately 14. At the age of 15 or 16 you commenced using methylamphetamine, which you have attributed as being the cause of the onset of your offending.
68Your criminal history dates back to the age of 15 in both New South Wales and Victoria. You have had multiple court appearances for offending which includes theft of motor vehicle, driving offending, theft, burglary, aggravated burglary, robbery and traffic offences. You have received periods of detention and imprisonment with parole.
69In 2018 in New South Wales, you received a prison term of 41 months for a series of offences. You have reported that after your release from prison in 2019, you recommenced ice use immediately in the company of your brothers and peers, and this drug use escalated in the two weeks leading up to the current offending with your brother, Dean.
70At the request of your counsel, a psychological pre-sentence report was commissioned from Forensicare, and I have read and considered the report from Dr Melisa Wood, psychologist, dated 9 December 2020. You reported to Dr Wood an impaired memory of the current offending due to you being substance affected at the time. You reported injecting ice daily after your most recent release from prison. You reported deciding to visit family in Mildura and stole cars for transport as you had run out of money, and that the armed robbery was committed in order to get money to get back to New South Wales.
71Whilst acknowledging that the armed robbery represented a significant escalation in your offending, you were unable to explain to Dr Wood the decision-making process that led to your offending. According to Dr Wood, you were able to articulate an awareness of the psychological effects of your offending on your victims in relation to the armed robbery.[21]
[21]Dr Melisa Wood, Psychology Court Report (dated 9 December 2020), paragraph 20
72Dr Wood expresses the opinion that your early life was marred by witnessing domestic violence and the absence of a positive male role model. Though close to your siblings and broader family, you were a shy, anxious child who struggled to fit in socially, and you have very low self-esteem. This has caused you to seek acceptance from an antisocial peer group. You believe you will be judged harshly by others and, unfortunately, your first period of youth detention in the context of your drug use and associated problems solidified your fear of being labelled and rejected from prosocial society, and has entrenched your identity with your criminal peers. Your pattern of offending and incarceration since the age of 15 has impeded, according to Dr Wood, your opportunity to develop independent life skills.
73According to Dr Wood, therefore, your offending history is both predisposed and perpetuated by a worsening cycle of your, 'poor, self-efficacy to successfully engage in meaningful prosocial environments'[22]. Thus, returning to drug use and crime to develop and maintain a sense of belonging with your antisocial peers.
[22]Dr Melisa Wood, Psychology Court Report (dated 9 December 2020), paragraph 29
74According to Dr Wood, given your psychological make-up, it is considered unlikely that the decision to engage in the armed robbery, or the decision to obtain the weapons, originated from you. This sentiment would appear to have a degree of consistency with your counsel’s submission that, in relation to the armed robbery, you were not the leader, so to speak, of this criminal endeavour. Rather, you followed the initiative of your older brother, Dean.
75According to Dr Wood, your moral reasoning and impulsive and reckless decision-making at the time of your offending was likely directly impaired by your drug use and desire to fit in. According to Dr Wood, you were able to display a degree of remorse and empathy for your victims, but your emotional response to the offending was bland and, 'it appears his understanding of the consequences of his behaviour on the victims may be abstract at best'.[23]
[23]Ibid paragraph 30
76According to Dr Wood, while you may meet a diagnosis of antisocial personality disorder, you are not psychopathic and have displayed life-long features of an avoidant personality. It is the features of this type of personality, including your preoccupation with social rejection or criticism, viewing yourself as socially inferior, and lack of interpersonal assertiveness, that likely had indirect contribution to your offending behaviour.
77According to Dr Wood, you would benefit from revisiting offence-specific intervention programs and drug and alcohol programs, but you will also require significant additional supports and skills development, which will assist you in adjusting to adult independence in a community setting and ultimately reduce your risk of further offending. You are in need of programs that enhance your education and develop employment skills. You are also in need of interventions to encourage you to connect with prosocial networks.
78According to Dr Wood, you would benefit from psychological treatment to develop and enhance skills in the area of problem solving, conflict resolution, interpersonal assertiveness and social reciprocation. You would also benefit from cultural education and involvement to enhance your sense of belonging and identity within the Aboriginal community.[24]
[24]Dr Melisa Wood, Psychology Court Report (dated 9 December 2020), paragraph 34
79
In terms of your recent progress, you have been moved to the Melaleuca Unit at Barwon Prison, which is a high security unit. Concerningly, your counsel indicated that you can no longer access drugs which you had previously been doing in custody. According to an earlier report from psychologist, David Ball, dated
23 June 2020,[25] you were transferred to the Melaleuca Management Unit from Port Phillip Prison as you were subjected to racist abuse by staff and responded with riotous behaviour and climbing on the roof. Notwithstanding any concerns that may relate to these aspects of your behaviour in prison, I was informed that you have stabilised at Barwon Prison, that you have not had any disciplinary issues at Barwon and, within the context of COVID-19 restrictions, you have been participating in the Torch Program, an Aboriginal art-related program. You have articulated a firm desire to undertake residential rehabilitation upon your release from prison, in recognition of the role that your significant drug problem has played in your offending behaviour.
[25]David A Ball, Psychological Assessment and Court Report (dated 23 June 2020),Exhibit 6
Applicable Sentencing Factors and Principles
80In formulating appropriate sentences in this matter, the Sentencing Act 1991 requires me to have regard to various factors, some of which I have already referred to – the relevant maximum penalties, the nature and gravity of your offending, the impact of your offending on your victims, and your previous character.
81
As the armed robbery charge, Charge 2 on the indictment, in the circumstances of this case is a Category 2 offence for the purposes of s.3 of the
Sentencing Act1991, pursuant to s.5(2H) of that Act, I must make a custodial order in relation to this offence unless one of the exceptions set out in that provision apply. Ultimately, your counsel did not seek to rely on any of those exceptions and, accordingly, a custodial order must be imposed in relation to the armed robbery offence.
82I turn now to the issue of your respective levels of culpability and degree of responsibility for your offending.
83You both engaged in this serious offending in the face of both having significant criminal histories, which accentuates your moral culpability for the offending. Both of you were subject to New South Wales parole. You, Mr Taylor, were only a matter of days out of custody. That you both decided to engage in this serious criminality in these circumstances is highly concerning and is reflective, in my view, of significant culpability.
84In relation to both of you, I am satisfied that your background of deprivation, instability and exposure to substance abuse and violence reduces your moral culpability pursuant to the Bugmy principles.[26] I accept that your experiences in your formative years, which were not of your making, played a significant role in shaping your respective personalities and responses. As a consequence, your subjective culpability for the offending cannot be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during your formative years.[27]
[26]Bugmy v R (2013) 249 CLR 571
[27]DPP v Drake [2019] VSCA 293 at [32]
85In relation to the most serious charge to which you have both pleaded guilty, the armed robbery charge, I am satisfied that whilst your degree of culpability is collectively high, you, Mr Honeysett, have a higher degree of culpability. Indeed, your counsel submitted that you were essentially the leader, and that your younger brother, Mr Taylor, was just following your lead.[28] You are seven years older than Mr Taylor. You appear to have entered the service station first. You were holding a sawn-off shotgun which was, as I have earlier described, carried in a menacing manner during the commission of the armed robbery. As outlined in the Summary of Prosecution Opening, whilst holding the shotgun you were the person making the repeated verbal demands of the victims.
[28]Defence Outline of Submissions on Plea, Ms Jacqualyn Turfrey (dated 17 September 2020), paragraph 15 Exhibit 1
86
Neither the psychological report from Ms Gina Cidoni, dated 17 September 2020,[29] nor the Forensicare report from Associate Professor Troy McEwan, dated
17 November 2020[30], provide any evidentiary basis, in my view, for any reduction in your moral culpability Mr Honeysett, due to the well-known mental impairment or Verdins’[31] principles. The personality disorder diagnosed by Associate Professor McEwan, in my view, provides context for your offending due to your likely problems with emotional regulation and impaired coping ability, and your tendency to respond to strong negative emotional states by using stimulants, thus becoming disinhibited.
[29]Gina Cidoni, Psychological Assessment Report (dated 17 September 2020) Exhibit 2
[30] Associate Professor Troy McEwan, Psychology Court Report (dated 17 November 2020)
[31] R v Verdins (2007) 16 VR 269
87In relation to you, Mr Taylor, as I have stated, I accept that whilst your level of culpability for the armed robbery offence, in particular, is high, it can be distinguished from the higher level of culpability attributable to your older brother, Dean, for the reasons I have articulated. Nevertheless, you meaningfully participated in this serious criminal endeavour, entering the service station armed with a metal pole, being present whilst your brother made the various demands and, as shown in the photos, you dragged the stolen items out of the store. I accept that you were likely following the lead of your brother.
88According to the Forensicare report from Dr Wood dated 9 December 2020[32], your personality structure and antisocial personality disorder provides context for your criminal behaviour in this case. According to Dr Wood, it is unlikely that the decision to engage in the armed robbery, or at least the decision to obtain the weapons, originated from you,[33] though you did not attempt to dissuade your brother. You were clearly drug affected, as was your brother, at the time of the offending. According to Dr Wood, the features of your antisocial personality disorder likely had an indirect contribution to your offending behaviour due to your lack of assertiveness and poor judgment in your desire to go along with the criminal plans of others to avoid disagreement or conflict.[34]
[32] Dr Melisa Wood, Psychology Court Report (dated 9 December 2020)
[33]Ibid, paragraph 30
[34]Ibid, paragraph 31
89Whilst your counsel conceded that there was no reduction in your moral culpability due to any of the mental impairment of Verdins’[35] principles, your personality disorder and indeed general personality structure, provides context, in my view, for your offending behaviour.
[35] R v Verdins (2007) 16 VR 269
90
As indicated in the Summary of Prosecution Opening for Plea, your overall culpability for your offending is accentuated by the fact that upon your brother being apprehended by police following the dangerous police pursuit, you,
Mr Taylor, did a U-turn and drove away at a high rate of speed in the vehicle you were driving and, over the course of the ensuing hours, you continued to offend, stealing registration plates (Charge 10), stealing another motor vehicle (Charge 11) and failing to stop your vehicle upon police direction (Summary Charge 13). Further accentuating your level of culpability, notwithstanding that you were some years younger than your brother, in many respects your criminal history is more significant, relevant and concerning.
91Having been remanded in custody on 16 and 17 December 2019 respectively, after negotiations you both resolved your matter to guilty pleas on 21 April 2020, at the committal mention stage. The prosecution accepted that, in relation to both of you, the pleas of guilty were entered at the earliest opportunity, warranting a sentencing discount for the utilitarian value of your pleas. No witnesses were cross-examined. Neither a committal hearing nor a criminal trial occurred. Particularly given that your matters resolved during the COVID-19 pandemic with its associated consequences for the administration of criminal justice in this State, your pleas of guilty at an early stage warrant a significant sentencing discount for utilitarian reasons.
92I am further satisfied, in relation to both of you, that a further sentencing discount is warranted due to your remorse for your offending. I accept that, to a degree, your early pleas of guilty are reflective of remorse.
93In relation to you, Mr Honeysett, psychologist, Gina Cidoni, articulated that you expressed obvious remorse to her.[36] Furthermore, Associate Professor McEwan from Forensicare also indicated that you expressed remorse for your offending.[37] During the sentencing conversation on 21 September 2020, the details of which I will shortly refer to, I am satisfied that you were remorseful for your offending.
[36]Gina Cidoni, Psychological Assessment Report (dated 17 September 2020) page 2
[37] Associate Professor Troy McEwan, Psychology Court Report (dated 17 November 2020) paragraph 54
94
In relation to you, Mr Taylor, psychologist, David Ball, in his report dated
23 June 2020,[38] indicated that you articulated limited remorse in relation to your offending. In the Forensicare report from Dr Wood[39], you displayed some remorse and empathy for your victims, although your emotional response was noted as being somewhat bland and abstract.[40] In the sentencing conversation on
22 September 2020, the details of which I will shortly refer to, you were able to articulate a level of remorse and empathy in relation to the two female victims of the armed robbery offence. In my view, it is likely that your inability to completely articulate a degree of remorse is likely due to your youth and underlying personality structure. Nevertheless, in the circumstances, I am satisfied that further sentencing discounts are warranted for each of you due to the issue of remorse.
[38]David A Ball, Psychological Assessment and Court Report (dated 23 June 2020)
[39] Dr Melisa Wood, Psychology Court Report (dated 9 December 2020)
[40]Dr Melisa Wood, Psychology Court Report (dated 9 December 2020) paragraph 30
95Returning to the issue of the sentencing conversation, both of you participated in a Koori Court sentencing conversation on 21 and 22 September 2020 respectively. As part of that sentencing conversation, two Aboriginal Elders participated, along with a County Court Aboriginal Liaison Officer. Significantly, in relation to both of you, I formed the view that you participated honestly and meaningfully in that confronting sentencing conversation, in the context of the limitations related to your respective personality structures.
96As I have stated, you were both remorseful for your offending, and you were both able to display a level of insight in relation to the underlying causes of your offending behaviour. You both demonstrated a capacity to take responsibility for your offending.
97As the various authorities make clear, meaningful engagement in the Koori Court sentencing conversation may operate as a mitigating circumstance. Through this process, you have faced the shaming that is an integral part of these proceedings, and you have been prepared to be accountable for your offending. Participation in the process of the Koori Court is more burdensome than appearing at a traditional plea hearing. Rather than hiding behind counsel, you took the opportunity to personally demonstrate your remorse for your offending, you demonstrated insight into the reasons for your offending, and you expressed an intention to reform. In this way, participation in this process may itself be rehabilitative.[41]
[41]DPP v Heyfron [2019] VSCA 130 at [67] and [68]
98Mr Taylor, you were only 21 years of age at the time of the offending, and therefore you are to be sentenced as a 'youthful offender'. As the authorities make clear, in the case of a youthful offender, rehabilitation is an important sentencing principle, because youthful offenders are immature and may not fully appreciate the nature, seriousness and consequences of their criminal conduct, and there is increased potential for young offenders to be rehabilitated.[42]
[42]Azzopardi; Baltatzis; Gabriel v The Queen (2011) 35 VR 43; The Queen v Mills (1998) 4 VR 235
99Notwithstanding your considerable and concerning criminal history, both in Victoria and New South Wales, for such a young offender, in formulating an appropriate sentence in your case Mr Taylor, I have paid regard to your youth and the need for any sentence to appropriately reflect the important sentencing principle of rehabilitation.
100I turn now to a consideration of the impact of any sentence of imprisonment upon each of you, and its relevance to the sentencing discretion. In relation to the well-known Verdins’[43] principles, impaired mental functioning can operate as a mitigating factor, if the existence of the condition at the date of sentencing could mean that a sentence would weigh more heavily on you than it would on a person in normal health (Verdins’ principle 5), and where there is a serious risk of imprisonment having a significant adverse effect on your mental health (Verdins’ principle 6).
[43] R v Verdins (2007) 16 VR 269
101In relation to you, Mr Taylor, your counsel did not seek to rely on either of these principles. Indeed, the sentiments expressed by Dr Wood in the Forensicare report indicate that you are currently coping well in custody and that in the opinion of Dr Wood 'I do not perceive a sentence of imprisonment would weigh more heavily on him than the average offender on account of this psychological condition'[44].
[44] Dr Melisa Wood, Psychology Court Report (dated 9 December 2020), paragraph 31
102In relation to you, Mr Honeysett, whilst the position is not entirely clear, on the basis of the sentiments expressed by Associate Professor McEwan from Forensicare,[45] I am satisfied that a moderate mitigatory allowance is warranted on the basis that your moderate severity personality disorder with borderline and antisocial traits could make your experience of incarceration more challenging, as you are more prone than others to experience heightened anxiety and depression. Further, although it appears that there are treatments for borderline personality disorder, according to Associate Professor McEwan, those treatments are generally not available or have very limited availability in most male prisons in Victoria. This means that you may not be able to access appropriate treatment for your disorder whilst incarcerated.
[45]Associate Professor Troy McEwan, Psychology Court Report (dated 17 November 2020), paragraphs 62 and 63
103In relation to both of you, I am satisfied that a further mitigatory allowance is warranted due to the COVID-19 pandemic and its impact on your time in custody, both to date and into the future. Both of you have been in custody since the arrival of COVID-19 into Australia. As is now accepted, COVID-19 entered the custodial setting. There have been unprecedented restrictions in the custodial setting, including the cessation until recently of all personal visits, significant restrictions on movement within the prisons, and significant restrictions to activities and programs. All prisoners have had to live with the increased anxiety related to the consequences of COVID-19 in the prison system, with a generally compromised demographic.
104As has been accepted in this State, as Aboriginal men, you belong to a particularly vulnerable section of the community, who are over-represented in the criminal justice system, and who also have poorer health outcomes than non-Aboriginal persons. In that sense, whilst in custody you both may be at greater risk of serious infection from the COVID-19 virus than otherwise.[46] Particularly in relation to you, Mr Honeysett, I accept that your heart valve infection in 2018 whilst in prison in New South Wales may make you particularly vulnerable to the consequences of COVID-19. At present, it is understood that there are no COVID-19 positive cases in prisons in Victoria, though of course this may change. In any event, I am satisfied that a further mitigatory allowance is warranted due to the understandable anxiety felt by both of you in relation to the consequences of COVID-19.
[46]ReKennedy [2020] VSC 187 at [6]
105In formulating appropriate sentences with respect to both of you, I am also required to have regard to current sentencing practices in relation to previous decisions with relevant facts, principles and outcomes which could be considered comparable as one of the relevant sentencing factors. In that regard, the prosecution provided me with three decisions of the Court of Appeal which were submitted as being relevant examples of current sentencing practice regarding the serious offence of armed robbery[47]. In each of those cases, the offenders were disguised, a firearm was used, but no violence was committed. I have taken into consideration those cases, together with current sentencing practices more generally, in relation to all charges to which you have both pleaded guilty.
[47]DPP v Green [2020] VSCA 23; Walker and Dargan v the Queen [2019] VSCA 137; Umi v the Queen [2013] CSCA 211
106In formulating appropriate sentences with respect to both of you, I am required, pursuant to the Sentencing Act 1991, to have regard to the only purposes for which sentences may be imposed. Clearly, any sentence imposed must manifest the denunciation by the court of your offending. General deterrence is also particularly important in your cases, given the prevalence of the crimes to which you have pleaded guilty, in particular, armed robbery on soft targets. Given your respective criminal histories, together with the fact that you both offended whilst on parole and soon after being released from prison, any sentence imposed must seek to deter each of you from committing further offences in the future.
107You are both relatively young offenders, in particular, you, Mr Taylor, and notwithstanding your criminal histories, given the personal matters to which I have referred, there remains a need for any sentence to facilitate your rehabilitation. In relation to both of you, given your criminal histories and the nature of the offending, coupled with your respective antisocial personality disorders, your prospects of rehabilitation must, in my view, be viewed as guarded. In respect of both of you, the authors of the Forensicare reports make appropriate recommendations in relation to future treatment and behavioural interventions required. I will authorise both Forensicare reports to be made available to the Parole Board for such purposes in the future.
108In sentencing you, I am also required to have regard to the need for community protection from each of you. In my view, this sentencing principle is particularly important in this case. Whilst, as I have stated, your background of deprivation and instability lowers to a degree your moral culpability for your offending, the matters related to your personality structures, your proven track records of engaging in serious criminality in the past, and the very nature of the current offending increases, in my view, the importance of protecting the community from you.[48]
[48]DPP v Herrmann [2019] VSCA 694 at [64]
109In my view, having regard to all of the relevant sentencing factors and principles, and having regard to the parsimony principle, the only appropriate sentences in respect of each of you are significant sentences of imprisonment. You both engaged in serious, sustained and dangerous behaviour which simply cannot be tolerated by the community. Notwithstanding your counsels’ initial submissions that a combination sentence of a term of imprisonment followed by a Community Correction Order would be appropriate, I have come to the conclusion that such dispositions are not appropriate in your case. In my view, sentences of imprisonment which incorporate eligibility for parole at an appropriate time are the only appropriate sentences available in this case. Given the nature of your offending, there is a need for a degree of cumulation between the offences. Given the number and severity of the crimes to which you have both pleaded guilty, I have moderated the degree of cumulation in accordance with the totality principle, to avoid the imposition of what could be described as crushing sentences.
110Mr Honeysett and Mr Taylor, I now come to the portion of my remarks where I impose the sentences upon you. I will deal firstly with you, Mr Honeysett.
Sentence – Mr Honeysett
111On Charge 1, theft of a motor vehicle (being the Holden Cruze), you are convicted and sentenced to 15 months' imprisonment.
112On Charge 2, armed robbery, you are convicted and sentenced to 5 years' imprisonment. This is the base sentence.
113On Charge 3, theft of a motor vehicle (being the Holden Commodore), you are convicted and sentenced to 15 months' imprisonment.
114On Charge 4, theft, you are convicted and sentenced to 4 months' imprisonment.
115On Charge 5, bring stolen goods into Victoria (being the Toyota Hilux), you are convicted and sentenced to 18 months' imprisonment.
116On Charge 6, dangerous driving while pursued by police, you are convicted and sentenced to 18 months' imprisonment.
117On Summary Charge 8, unlicenced driving, you are convicted and sentenced to 1 month imprisonment.
118I direct that 3 months on Charge 1, 3 months on Charge 3, 4 months on Charge 5 and 4 months on Charge 6 be served cumulatively upon each other and upon the base sentence imposed on Charge 2, making a total effective sentence of 6 years and 2 months' imprisonment. I direct that you serve a period of 4 years and 4 months before becoming eligible for parole.
119Pursuant to s.18(1) of the Sentencing Act 1991, I declare that a period of 423 days has been served by way of pre-sentence detention and these days are to be administratively deducted from your sentence.
120Pursuant to s.89A of the Sentencing Act 1991, in relation to Charges 1, 3, 5 and 6, any drivers licence is cancelled and you are disqualified from obtaining another for a period of 3 years.
121Pursuant to s.6AAA of the Sentencing Act 1991, I declared that had you not pleaded guilty, I would have sentenced you to a total effective sentence of 8 years' imprisonment with a non-parole period of 6 years.
Sentence – Mr Taylor
122On Charge 1, theft of a motor vehicle (being the Holden Cruze), you are convicted and sentenced to 12 months' imprisonment.
123On Charge 2, armed robbery, you are convicted and sentenced to 4 years and 4 months' imprisonment. This is the base sentence.
124On Charge 7, theft of a motor vehicle (being the Peugeot), you are convicted and sentenced to 15 months' imprisonment.
125On Charge 8, of theft, you are convicted and sentenced to 4 months' imprisonment.
126On Charge 9, of dangerous driving while pursued by police, you are convicted and sentenced to 16 months' imprisonment.
127On Charge 10, theft, you are convicted and sentenced to 4 months' imprisonment.
128On Charge 11, theft of a motor vehicle (being the Mercedes coupe), you are convicted and sentenced to 16 months' imprisonment.
129On Summary Charge 6, unlicenced driving, you are convicted and sentenced to 1 month imprisonment.
130On Summary Charge 13, failure to stop, you are convicted and sentenced to 1 month imprisonment.
131I direct that 2 months on Charge 1, 3 months on Charge 7, 3 months on Charge 9 and 4 months on Charge 11 be served cumulatively upon each other and upon the base sentence imposed on Charge 2, making a total effective sentence of 5 years and 4 months' imprisonment. I direct that you serve a period of 3 years and 5 months before becoming eligible for parole.
132Pursuant to s.18(1) of the Sentencing Act 1991, I declare a period of 422 days, up to but not including today, has been served by way of pre-sentence detention.
133Pursuant to s.89A of the Sentencing Act 1991, in relation to Charges 1, 7, 9 and 11, any drivers licence is cancelled, and you are disqualified from obtaining another for a period of three years. Pursuant to s.64A of the Road Safety Act 1986, in relation to Summary Charge 13, any licence is cancelled and you are disqualified from obtaining another for a period of 12 months.
134Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, I would have sentenced you to a total effective sentence of 7 years' imprisonment with a non-parole period of 5 years.
Ancillary Orders
135Finally, in relation to you, Mr Taylor, I will make the two separate forfeiture orders sought by the prosecution. Those applications not being opposed by you.
136Yes. Mr Wingrove, firstly, are there any issues, ambiguities in relation to the sentences imposed? Have I missed anything?
137MR WINGROVE: No, Your Honour, nothing to raise.
138HIS HONOUR: Thanks. Ms Turfrey, anything to raise?
139MS TURFREY: Nothing to raise, Your Honour.
140HIS HONOUR: Thank you. Thanks, Mr Swindon, if you can adjourn the court, thanks.
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