Director of Public Prosecutions v Johnson
[2022] VCC 1214
| IN THE COUNTY KOORI COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00791
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HENRY JOHNSON |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2022, 21 July 2022 | |
DATE OF SENTENCE: | 25 July 2022 | |
CASE MAY BE CITED AS: | DPP v Johnson | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1214 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Guilty plea – Armed robbery – Theft – Trafficking in a drug of dependence – Possession of a drug of dependence – Commit indictable offence on bail – Breach bail conditions – Drive whilst suspended – Fraudulently use a registration label – Aboriginal offender – Substantial criminal record – Offender’s low cognitive functioning and dysfunctional upbringing
Legislation Cited: Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991; Disability Act 2006
Cases Cited:Worboyes v R [2021] VSCA 169; Peers v R [2021] VSCA 264; Farmer v R [2020] VSCA 140; Fariah v R [2021] VSCA 213; R vVerdins & Ors (2007) 16 VR 269; Bugmy v R (2013) 249 CLR 571
Sentence: Three years and two months with a minimum non-parole period of two years. S 6AAA: four years and six months with a minimum of three years and four months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Dane (plea) Ms J. Malobabic (further plea and sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J. Clark | Kurnai Legal Practice |
HIS HONOUR:
1Henry Johnson, you have pleaded guilty to the following charges: armed robbery, which has a maximum penalty of 25 years' imprisonment; theft, which has a maximum penalty of 10 years' imprisonment; trafficking in a drug of dependence, which has a maximum penalty of 15 years' imprisonment; and possession of a drug of dependence, five years' imprisonment.
2You have also pleaded guilty to related summary offences as follows: committing an indictable offence on bail, maximum penalty three months' imprisonment; breaching of bail conditions, maximum penalty three months' imprisonment; driving while suspended, maximum penalty two years' imprisonment; and fraudulent use of registration plates, maximum penalty two months' imprisonment.
Circumstances of the offending
3The facts of your offences are set out in the Prosecution Opening, which was tendered as an exhibit on the plea and read during the sentencing conversation by the prosecutor, Ms Dane. I will summarise those circumstances.
4You are now 30 years old. When this offending occurred, you were living at Oulton Crescent, Reservoir. You held a Victorian learner's permit which had been suspended in May 2021 for a period of 12 months.
5You were on bail when all the offences occurred, with conditions as set out in paragraphs 3 to 5 of the Prosecution Opening which I will not repeat.
6Turning then to the first set of charges. The victim in this matter is Slavisha Radovanovic, who was 41 years old at the time of the offences.
7On 20 August 2021 Mr Radovanovic was asleep in a bedroom at Murray Road, Preston. He woke up at 3.00am when he heard a knock on his door. He got up to put on his clothes, as he had been naked. Suddenly, there was a bang and two men burst into the room, one of whom was you. The first male, your unknown co-offender, a man of Aboriginal background, was carrying a hammer with a wooden handle, and a telescopic extendable baton in his right hand. You were carrying a large hammer with a red plastic handle in your right hand.
8You and the co-offender said to Mr Radovanovic in a threatening way, 'Don't move. Stay down'. Your co-offender then used the hammer to strike the victim's Oppo F17 Pro green mobile phone which was lying on the bed. The phone did not break.
9The co-offender then grabbed Mr Radovanovic's small yellow bum bag from the bed and put it inside his pants. The bum bag contained Radovanovic's driver's licence, forklift licence, WorkSafe card, Commonwealth Bank passport, $450 in cash, two Myki cards, a purple bike lock, house keys and car keys for a 2012 Holden Commodore ute registered in his name. This is the basis of Charge 1, armed robbery.
10You and your co-offender then left Mr Radovanovic's address, or the address where he was asleep, and stole his Holden Commodore Ute. This is the basis of Charge 2, car theft. All of this offending constitutes committing indictable offences on bail, Summary Offence 2, and in committing these offences you contravened the conduct conditions of your bail which imposed curfew, as amended this morning.
11Mr Radovanovic reported this incident to Preston Police on 25 August 2021. He made a statement to police on 1 September 2021 where he said one of the offenders was Henry who uses the nickname ‘H’. He subsequently identified you from a photoboard.
12Turning then to the next set of offences. Your co-offender in this matter is Jermaine Tui. He was 21 years old at the time of the offending.
13On 1 September at about 3.50pm you drove the stolen Holden Commodore belonging to Mr Radovanovic into the Ampol service station at 204 Widford Street in Broadmeadows. By this time the vehicle was bearing fraudulent registration plates belonging to a 2010 Holden Ute. Mr Tui filled the stolen vehicle with petrol to the value of $45.73. You then went into the service station with another person, Amy Tauafao, but you did not pay for the fuel. You walked back to the stolen car and Tui got into the back passenger seat. You drove off without paying for the petrol which is the basis of Charge 3 of theft. The incident was captured on CCTV.
14On Saturday 4 September 2021 Mr Tui was found passed out in the Holden Commodore. Checks on the vehicle revealed that it was the Ute taken from Mr Radovanovic.
15The next set of offences occurred on Wednesday 16 September 2021. You were found in Thomastown by officers of the Special Operations Group who intended to arrest you. They saw you trying to get into the passenger side of a 2013 silver Chrysler with false registration plates. There was a co-offender with you named Braydon Williams. You were searched and police found two Ziplock bags containing what later proved to be methamphetamine. The weight of this methamphetamine was approximately 3.9 grams. That is the basis of the possession charge.
16Later in September police downloaded the contents of your mobile phones which indicated you had been trafficking in drugs - the basis of the trafficking charge.
17You were interviewed by police on 16 September 2021. You made no comment in relation to any of the offences.
Guilty plea
18The filing hearing for these matters took place on the following day. There were several committal mention hearings in this case. You pleaded guilty at the third committal mention hearing on 12 May 2022.
19I regard your plea of guilty as having been entered at the earliest opportunity. I accept your guilty plea indicates some remorse and a willingness to facilitate the course of justice. The utilitarian value of your guilty plea is significant and is heightened in the current circumstances, where this court faces a substantial backlog of trials because of the suspension of trials during the pandemic. I apply the principles from the Court of Appeal decision of Worboyes and other cases. The sentencing discount must be palpable.
20Turning then to the sentencing conversation in this case. You participated in the sentencing conversation in a sincere way. You were open in your discussion with Uncle Rod Jackson about your personal circumstances and awareness that you need to change your lifestyle and that you will need support to do so. You said you did not want your children to experience the same disadvantages that you did as a child by reason of your behaviour and incarceration. I have taken into account in your favour your genuine participation in the sentencing conversation.
21Your partner was also present at the sentencing conversation. You have been together for over 10 years, with some periods of separation. She brought with her your youngest daughter who is now two months old. Your partner contributed to the sentencing conversation, suggesting that you do need rehabilitative support and that you have not had this in the past.
22I should indicate that whilst your perception and that of your partner is that you have not been offered rehabilitative support, your criminal history does show that you have received correction orders in the past which you have breached. In this case you were placed on CISP bail which has a rehabilitative focus, but you reoffended whilst on that bail. That said, I do not discount that those rehabilitative opportunities have not always been suitable to you and your circumstances.
Criminal history
23You do have a substantial criminal record which commences in June 2011 when you were dealt with for a shop theft. Your prior convictions include violent offending, family violence offences, dishonesty offending, drug offending and driving offences. However, as Ms Clark pointed out in her submissions, you do not have prior convictions for armed robbery or trafficking.
24On 11 April 2012 you were placed on a community correction order for a period of 18 months for a charge of intentionally causing injury and a threat to inflict serious injury. You breached that correction order and you were fined an aggregate sum of $1,000 in December 2014. You have a prior conviction for breaching intervention orders in October 2012. In May 2018 at the Dandenong Magistrates' Court, you were sentenced to 18 months' imprisonment, with a non‑parole period of 12 months, for offences of false imprisonment, threats, unlawful assault and other offences.
25Then in September 2018 you were dealt with in the County Court for false imprisonment, reckless injury and driving in a manner dangerous. You were sentenced to a period of imprisonment of two years, with a minimum non-parole period of 15 months. This non-parole period was a new non-parole period to cover the sentence imposed on that day and the earlier sentence from the Dandenong Magistrates' Court. I have been provided with the sentence of Judge Condon for that offending, which was serious offending against a woman, as was the earlier offending in the Dandenong Magistrates' Court. I am told you were not granted parole pursuant to Judge Condon's sentence. Therefore, you would have been released after the completion of that sentence some time in 2020.
26Your appearances before the courts have continued unabated since then. In December 2020 you were sentenced to 128 days reckoned as pre-sentence detention for a variety of offences. Then, in May 2021, for theft of a motor vehicle, breaching bail conditions and possessing a controlled weapon, you were sentenced to an aggregate period of two months' imprisonment and suspended from driving for 12 months, with 67 days pre-sentence detention.
27On 18 November 2021 after this offending, you were sentenced to four months' imprisonment for drug possession offences, possession of an imitation firearm, motor vehicle theft and bail offences. These were the matters you were on bail for when you committed the offences before me. You had been refused bail earlier in 2021 for those matters; again, it is clear a substantial period of pre-sentence detention was deducted from that sentence.
28You are not to be punished again for your prior convictions, but your history is considerable and is relevant to your prospects of rehabilitation, community protection, specific deterrence and your moral culpability for this offending. Over the last few years, you have returned to custody several times very soon after release from prison sentences or after being granted bail.
Personal circumstances
29Turning to your personal circumstances. You were born in March 1992. You are now 30 years old. You are a Wurundjeri, Wiradjuri, Yorta Yorta man. You are the second youngest of four children. Your parents are Owen Thorpe and Nadelle Williams. They separated when you were six years old. You were placed into residential care and foster homes until approximately the age of
11 years old. You then went to live with your paternal grandmother until you were 16 years old. From the age of 16 you were homeless at times, although there were some periods back with your grandmother and other family members.30You and your partner have three children together: a nine years old, a six years old and a two months old. Your youngest was born after you were remanded in custody for these offences.
31You have a son from another relationship relating to a period of separation from your current partner.
32Your personal circumstances are set out in the neuropsychological report of Dr Evrim March, in the defence submissions and in the psychological report of Sandra Cokorilo which were tendered on the plea. In the latter report you refer to being the victim of sexual assault as a child. You also lost a brother in a car accident when he was just 12 years old. You have a lengthy history of drug abuse from a young age.
33You had a disrupted education, with numerous transfers between primary schools, and then a limited secondary education. You are functionally illiterate. You do not have a history of attending special schools or any assessment that identifies an intellectual disability as a child or adolescent. However, in the neuropsychological report of Dr March, based on an assessment in May of this year, she concluded: that you have a significant cognitive impairment across the board; that the assessment is consistent with a mild intellectual disability mostly developmental in nature; that it is likely you have an acquired brain injury due to chronic alcohol and drug use; and that you suffer from a major depressive disorder of moderate severity.
34Dealing with the application of Verdins principles, Dr March said that it is unclear to what extent your depressive disorder would have been operating at the time of the offending. However, your limited intellect and cognitive skills 'have a potential impact with regard to your ability to reason, make good decisions and act in a controlled manner during the offending behaviour'. She added that, if drug affected, you would have been particularly vulnerable.
35Ms Cokorilo refers to your sexual abuse as a child which she says has resulted in PTSD. She said that you present with an antisocial personality disorder and that you have impulsivity as a result of ADHD. She writes that those conditions impair your ability to exercise proper judgement and make calm and rational choices and affect your ability to appreciate the wrongfulness of your conduct.
36Dr March also noted that you are currently experiencing severe depression and describes you as particularly vulnerable in prison. You are suspicious of others and feel isolated and excluded by others. You also feel disconnected by having had no contact with your new child.
37Ms Cokorilo referred to a dysfunctional upbringing when you were exposed to family violence, parental incarceration and drug abuse. Your education was interrupted, and you have experienced periods of homelessness. You have no real history of employment. You disclosed to her sexual abuse as a child which continues to traumatise you. Ms Cokorilo writes:
'Such adverse and invalidating environment has undoubtedly compromised his emotional, cognitive and behavioural development, and contributed to the negative life trajectory'.[1]
[1] Psychological Report of Ms Cokorilo, paragraph 1 of ‘Summary and Opinion’.
38Dr March identified the following Bugmy considerations:
• early exposure to drug and alcohol abuse;
• incarceration of your mother;
• exposure to domestic and family violence;
• periods of homelessness;
• childhood sexual abuse;
• interrupted schooling; and
• low socio-economic status.
39I will return to the significance of these matters but turning now to the gravity of this offending.
Gravity
40Armed robbery is a serious offence as reflected by the maximum penalty of 25 years' imprisonment. Serious features of this offence include that it took place in the victim's room, or at least in the room where the victim was sleeping, where he was entitled to feel safe. He was also asleep naked and, therefore, highly vulnerable. You committed this offence in company and both you and your co‑offender had weapons. Whilst nothing is known of the lead up to this offending, I infer from the circumstances that there was some premeditation and forethought to what took place.
41No victim impact statement has been provided and I cannot draw any conclusions about the long-term impact of this offending on Mr Radovanovic, but common sense is that such an event must have been extremely frightening for him. He was in a bedroom sleeping at 3.00am in the morning, when you and your co-offender broke in and accosted him with hammers. You stole significant items, including money, personal documents, house keys and keys to his car. Then you took his car and had it in your possession some 12 days later when you drove it into the service station on 1 September. You have prior convictions for car theft in recent times where you have received prison sentences.
42I accept this armed robbery was relatively unsophisticated and some aggravating features are absent, such as the use of disguises and a direct physical assault. It nonetheless remains a serious offence for the reasons I have described. Ms Clark sensibly made no attempt to argue otherwise.
43The fact that you were on bail is an aggravating feature. That applies to all the substantive offences in this case.
44I accept the trafficking was a low-level example of what is a serious offence and that it would have been heard summarily if not committed in the wake of the armed robbery offence. Similarly, the theft of petrol is a relatively minor instance of a theft offence, but theft is an offence for which you have numerous prior convictions.
Sections 5(2H) and 5(2I)
45Turning to the application of s 5(2H) and s 5(2I) of the Sentencing Act. This armed robbery offence was committed in company which means it is a Category 2 offence. Sections 5(2H) and 5(2I) provide, in sentencing an offender for a Category 2 offence, I cannot make an order other than an order of imprisonment, excluding a combined prison sentence and community correction order, unless you, the offender, show on the balance of probabilities - this is sub-section (c) of section 5(2H):
'(i) at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability; or
(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.'
Or sub-section (e): there are substantial and compelling circumstances that are exceptional and rare that justify not making an order for prison other than for a prison sentence, again excluding a combined prison sentence and community correction order under s 44.
46Section 5(2I) provides that in determining whether there are substantial and compelling circumstances under s 5(2H)(e), I must have regard to the Parliament's intention that a prison sentence should ordinarily be the order made and I must determine whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
47The effect of all these provisions is that I am required to impose a term of imprisonment unless sub-paragraph (c) or (e) are satisfied.
48Your counsel, Ms Clark, initially submitted that you meet the criteria in s 5(2H)(c)(i) and (ii) based on the psychological material to which I have already referred. She later withdrew that submission in respect of sub-paragraph (c)(ii), accepting the prosecution submission based on the case of Peers[2], where the Court of Appeal observed that this sub-section poses a more stringent test than that required for the application of the Verdins principles relating to increased burden of imprisonment. Ms Clark conceded that the evidence in this case does not meet that test.
[2] Peers v the Queen [2021] VSCA 264; 97 MVR 379
49She submitted that s 5(2H)(e) applies based on a combination of factors to which I will return.
50The prosecutor, Ms Dane, submitted the psychological evidence does not satisfy the requirements of s 5(2H)(c)(ii). She submitted that in circumstances where you had a significant drug problem it is not possible to disentangle drug use from other reasons for the offending and, therefore, the causal link required is not present.
51In response to this submission, Ms Clark submitted there is no real evidence about the circumstances which led to the offending, so I cannot infer you had taken drugs before the offences. She submitted that although there was evidence of general drug use there was no evidence of drug use on this occasion.
52The impaired mental functioning in this case is argued to be an intellectual disability based on Dr March's opinions. The definition of impaired mental functioning in s 5(2H) and s 10A of the Sentencing Act is the same as the definition in the Disability Act. An intellectual disability is defined in the Disability Act as 'significant sub-average general intellectual functioning and significant deficits in adaptive behaviour, each of which became manifest before the age of 18 years'.
53Ms Clark accepted on the plea there is no direct evidence that your intellectual disability falls within this definition and that I would have to draw an inference from the reports that your intellectual disability was manifest before the age of 18 and also that there were significant deficits in adaptive behaviour before the age of 18. In my opinion, on the material before me, such an inference is not open.
54Moreover, in my opinion the test in (c)(i) is more stringent than the Verdins 'realistic connection' to the offences test. In this case where I know very little about how these offences came about, I cannot find that your intellectual disability is causally linked to the commission of the offences in a way which substantially and materially reduces your culpability.
55Ms Clark submitted that s 5(2H)(e) applies based on a combination of factors which are listed in her further submissions, including: your mental state issues, your disadvantaged and unstable formative years, the availability of residential rehabilitation, your participation in the sentencing conversation, ongoing support from your partner and the conditions in custody because of the pandemic.
56For the prosecution Ms Dane, and then Ms Malobabic on the further plea, submitted that these matters do not meet the statutory test.
57In assessing these matters and the test, I must regard general deterrence and denunciation as having greater importance than any other sentencing purposes. I must give less weight to the personal circumstances of the offender compared to other matters, such as the nature and gravity of the offence. I must not have regard to an early guilty plea or the offender's prospects of rehabilitation.
58In the case of Farmer[3] dealing with a Category 2 offence of armed robbery, the Court of Appeal made this observation at paragraph 51:
'Within the context of s 5(2H), paragraph (e) is a residual category of limited scope. On any view, it is a very high hurdle that will not often be surmounted. The legislative norm is that Category 2 offences will attract an immediate term of imprisonment.'
[3] Farmer v The Queen [2020] VSCA 140
59In Farmer the offender suffered from alopecia from a young age. The court, in holding that s 5(2H)(e) was engaged, found that his alopecia had a direct link to the offending and meant his life would be a misery in prison.
60In the case of Fariah[4], again involving a Category 2-armed robbery offence committed by a 21 year old offender, 23 at the time of sentencing, without a significant criminal history, the Court of Appeal said at paragraphs 24 and 25:
'In our view, the judge erred in considering that the applicant bore an onus to satisfy the court that there were substantial and compelling circumstances that were exceptional and rare. We accept the submission of the applicant's counsel that s 5(2H)(e) does not impose a burden on the offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare. This is an evaluative judgment for a judge to make once the relevant underlying facts have been established in accordance with settled principle.
'We also consider that the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare. Every case will depend on its own facts. Circumstances which individually are relatively common may in combination enliven the exception in s 5(2H)(e).'
[4] Fariah v The Queen [2021] VSCA 213
61Some of the matters here relied on concern your personal circumstances which I must accord less weight in applying the statutory test. Some of the circumstances seem to me to relate primarily to prospects of rehabilitation, such as family support and the availability of a place at Galliamble, which I am precluded from taking into account. However, I have nonetheless had regard to these matters to the extent they relate to addressing community protection and the need for specific deterrence. I am precluded from taking into account your early guilty plea.
62I have weighed the combination of circumstances relied on against the gravity of this serious offending and your criminal history, and I have had regard to Parliament's intention that a prison sentence should ordinarily be fixed. I have had regard for the need for this sentence to reflect general deterrence and denunciation as the most important sentencing principles.
63In my view the circumstances relied on, viewed as a combination, are not commonplace but fall short of being exceptional and rare, and they are not substantial and compelling as required by the legislation. The cumulative impact of the circumstances of the case does not, in my opinion, justify a departure from a prison sentence.
Verdins principles
64Turning then to the application of the Verdins principles. The psychological assessments and opinions relied on in support of the arguments relating to s 5(2H) are also relevant to the application of the Verdins principles. The psychological evidence was not contested by the prosecution. Nor did the prosecution argue against the application of the Verdins principles, reducing to an extent the assessment of moral culpability and justifying a moderation of general deterrence.
65I have accepted on the material that your intellectual disability deprived you to some extent of the ability to make reasoned decisions with respect to this offending. You said as much in the sentencing conversation. However, the circumstances that led to the offences are not clear and, in my view, you did understand the wrongfulness of your offending. The motive seems to have been fairly basic, money and property, probably related to the acquisition of drugs, which seems to have been a motivation that has driven some of your previous offending.
66In my opinion you did understand the wrongfulness of the armed robbery offence and the other offences so the reduction in the assessment of your moral culpability is limited by the lack of clarity around the connection between your intellectual disability and the offending. Nonetheless, I have moderated my assessment of your moral culpability and I have moderated general deterrence to reflect your intellectual disability, but these principles are far from extinguished in this case.
67There is no issue between the parties that the burden of your imprisonment is increased by your mental state as described by Dr March. I have also moderated the sentences to reflect this matter.
Bugmy principles
68The prosecution, similarly, did not take issue with Ms Clark's submission that the Bugmy principles apply based on the matters listed in Ms Cokorilo's report and Dr March's report. There is in this case an overlap in the relationship to your criminality between the effects of your mental health issues, particularly your cognitive deficits, and the influence of your formative years. On this point Dr March writes at paragraph 49-50, page 9 of her report:
'Mr Johnson has both a limited level of intellect, and a disadvantaged background, that provided him profound instability during childhood. In an emotionally volatile and unstable family, school can at times provide a sense of stability, particularly if a child is able to connect with a teacher who is aware of their home situation. This was not the case for Mr Johnson who changed 15 primary schools and multiple foster families. As a result, and subsequent to witnessing parental drug use and domestic violence, incarceration of his mother, separation from parents and siblings…Mr Johnson was already at high risk of drug/alcohol use as a means of coping, and significant mental issues in life, both of which are currently relevant and increase his risk of incarceration.
'The disadvantaged background factors remain psychologically unresolved for Mr Johnson…His fragile sense of self and depressed mood only serve to maintain the drug and alcohol use, which acts as a coping mechanism, therefore, perpetuating the offending behaviour.'
69I do not have any difficulty accepting that the dysfunction and instability of your childhood and adolescence, together with your low cognitive functioning, rendered you vulnerable from an early age to substance abuse and related criminality, and these factors have continued to impede your capacity to rehabilitate.
70In this case, as a separate matter to the Verdins principles, I accept that your moral culpability is reduced because of the circumstances of your upbringing, which also serve to explain to an extent your lengthy criminal history and failure to rehabilitate.
71That said, these same factors related to your lengthy criminal history also bring into focus the need to protect the community from your significant offending.
Prospects of rehabilitation
72Turning then to your prospects of rehabilitation. Whilst the following factors provide a cause for some optimism: the insight you showed during the sentencing conversation, the continued support of your partner, the potential employment through RAW Recruitment, the availability of rehabilitation facilities such as Galliamble; other factors pull the other way: your lengthy prior convictions, long term drug abuse, the gravity of the armed robbery offence and the multiple offences committed since your last substantial sentence, mean that I can only take a guarded view of your prospects of rehabilitation. I will, however, fix a non‑parole period which allows for a reasonably significant period of supervision.
73I accept that the burden of the period you have spent on remand has been increased by the restrictions in the prison system in response to the pandemic. Ms Clark described the difficulties you have encountered. Such restrictions are likely to continue for some time. I have taken this into account in mitigation.
74The prosecution submitted that a proper application of sentencing principles requires the imposition of a prison sentence with a head sentence and a non‑parole period. Having regard to my findings concerning s 5(2H), that is the only option. Ultimately though, I find myself of the view that even if a combined sentence had been available such an order would not have been an adequate sentence in the circumstances of this case.
75The totality principle requires me to ensure that the overall term is just and proportionate to the total criminality of the offending. To comply with this principle, I have made the sentences substantially concurrent. Additionally, the armed robbery and car theft charges arise from the one incident, a factor in favour of significant concurrency. However, I must also consider the fact that you were on bail when most of this offending took place and the statutory presumption in favour of concurrency is reversed. I have also taken into account the six days of Renzella time in respect of the two‑month sentence imposed in 2021 where 67 days was declared as pre-sentence detention.
76The non-parole period is the minimum term that justice requires you to serve, in all the circumstances, before being eligible for release on parole. In fixing the non-parole period in this matter I have had regard to the gravity of the offending and all of the mitigating factors that apply, including the need to facilitate your rehabilitation.
Sentence
77I turn now to the sentences in this case.
· In relation to Charge 1 of armed robbery, you are convicted and sentenced to a period of imprisonment of two years and eight months.
· In relation to Charge 2 of motor vehicle theft, you are convicted and sentenced to a period of imprisonment of eight months. On this charge your licence is cancelled and you are disqualified from obtaining another licence for a period of 18 months.
· In relation to Charge 3, which relates to the theft of the petrol, you are convicted and sentenced to one month's imprisonment.
· In relation to Charge 4 of trafficking, you are convicted and sentenced to two months' imprisonment.
· In relation to Charge 5 of possession, five days' imprisonment.
· In respect of the summary offences relating to the bail offences, so that is Summary Offence 2, Summary Offence 7, Summary Offences 10, 14 and 15, I impose an aggregate sentence of one month. It is my view that this series of offences of committing offences on bail, and contravening conduct conditions, constitutes a series of offences of the same or similar character and an aggregate sentence is justified. So, one month for all of those offences.
· For the drive while suspended, one month.
· For the fraudulent use of numberplates, seven days.
78With respect to orders for concurrency and cumulation, I will frame these in terms of cumulation: three months of the sentence on Charge 2, that is, the motor vehicle theft; one month of the sentence on Charge 3, the theft of petrol; one month of the sentence on Charge 4 of the trafficking; and the sentence for the drive suspended are cumulative on each other and on the base sentence of two years and eight months.
79So that should be a total effective sentence of three years and two months. I fix a minimum non-parole period of two years.
80Pursuant to s 6AAA, but for your plea of guilty I would have imposed a sentence of four years and six months, with a minimum of three years and four months.
81Now, can you just remind me of the pre-sentence detention today, Ms Malobabic?
82MS MALOBABIC: I have 290 days, Your Honour.
83Pursuant to s 18 of the Sentencing Act I declare 290 days as pre-sentence detention to be deducted from the sentence that I have imposed.
84I'll make the forfeiture and disposal orders as applied for by the prosecution and I'll make a compensation order in the sum of - was it $45.73? I think it was - in the amount applied for. Who's that in favour of? The service station, is it? Yes. All right.
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