Director of Public Prosecutions v Jones
[2024] VCC 571
•27 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-01789
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEVI JONES |
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JUDGE: | HIS HONOUR JUDGE SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2023; 24 January 2024 | |
DATE OF SENTENCE: | 27 February 2024 | |
CASE MAY BE CITED AS: | DPP v Jones | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 571 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated Carjacking - Offensive Weapon; Theft-From Shop (Shopsteal)
Legislation Cited: Sentencing Act1991 (Vic)
Cases Cited:Mammoliti v The Queen [2020] VSCA 52; Bugmy v The Queen [2013] 249 CLR 571; DPP v Hermann [2021] VSCA 160; R V Mills [1998] 4 VR 235; Ha (a Pseudonym) VR [2021] VSCA 64; Buckley v The Queen [2022] VSCA 138; DPP v Lombardo [2022] VSCA 204
Sentence: Three years and ten months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Sparrow | Office of Public Prosecutions |
| For the Accused | Ms A. Patterson | Freshwater Lawyers |
HIS HONOUR:
Introduction
1Levi Jones, you have pleaded guilty to an indictment containing two charges – aggravated carjacking which carries a maximum penalty of 25 years’ imprisonment, and theft which carries a maximum penalty of 10 years’ imprisonment. You have also pleaded guilty to two related summary offences, driving at a speed which is dangerous, which carries a maximum penalty of two years’ imprisonment, and committing an indictable offence whilst on bail, which carries a maximum penalty of three months’ imprisonment.
2You have also admitted your prior criminal convictions.
Circumstances of your offending
3
The circumstances of your offending were set out in the Summary of Prosecution Opening dated 29 November 2023, Exhibit 1 at your plea hearing before me on
12 December 2023.
4Your offending can be briefly summarised. On 22 May 2023, your victim Tamara Hansen and her four children were staying overnight at a friend’s place in Sunshine. The victim and her children were homeless at the time, and were using a friend’s motor vehicle, a Holden HSV Senator to store their belongings. This vehicle was parked in the driveway.
5At about 12.55am, the victim went to the vehicle to retrieve some personal items. As she sat in the driver’s seat, you approached the driver's side door. Your face was covered with only your eyes visible, and you were holding a machete with a blade which was 40 to 50 centimetres in length. You told the victim to get out and to give you the keys. She initially thought it was a joke and froze. As she continued to look at the machete she realised how serious the situation was. When you repeated your demand, the victim got out of the car and moved towards the house. As she did so, you told her to keep moving and waved the machete in her face. Understandably, she was fearful that you would use the machete against her. You then got into the vehicle and drove away, as the victim struggled with her phone and called Triple 0. Your conduct in this regard forms the basis of Charge 1 on the indictment, aggravated carjacking.
6You drove the stolen vehicle to a 7-Eleven petrol station on the corner of Ballarat and Hampshire Roads and filled the vehicle with petrol and drove off without payment. Your conduct in this regard forms the basis of Charge 2 on the indictment, theft.
7
Police responded to the Triple 0 call and soon observed and followed the vehicle being driven by you as it turned onto Ballarat Road, westbound. Police observed the vehicle intermittently being driven in excess of the relevant speed limit at the time, 80 kilometres per hour. The vehicle then travelled onto the Western Freeway, which had a road speed limit of 100 kilometres per hour. You were observed by police to be driving at speeds in excess of 150 kilometres per hour. Once the vehicle entered the Rockbank area, where the Western Freeway has a speed limit of 90 kilometres per hour, you were observed to be driving at approximately 140 kilometres per hour. Ultimately, you exited the Western Freeway in the Melton area and travelled on various roads. At one point the vehicle driven by you was observed to go through a roundabout at a fast rate of speed, and a police aerial unit recorded the vehicle being driven at 147 and
183 kilometres per hour through residential streets. Police next observed the vehicle being driven by you on the Gisborne-Melton Road towards Gisborne. Again, the aerial unit recorded the vehicle as being driven at 188 and
192 kilometres per hour on country roads. The vehicle came to a stop at the corner of two roads in Gisborne, and police then observed you exit the vehicle and jump over fencing into the backyard of a property in Gisborne. You attempted to hide from police on the roof and in the garden before you were located and arrested. Your driving conduct forms the basis of the related summary offence of drive at a speed dangerous.
8Following your arrest you vomited. Your phone was obtained, and police observed that a route to Echuca had been programmed into the maps application. The vehicle was examined by police, and a machete was located in the driver’s footwell together with a black balaclava on the front passenger seat.
9You were later offered the opportunity to participate in a Record of Interview, however you refused.
10Subsequent police investigations revealed that at the time of this offending you were subject to a grant of bail from the Magistrates’ Court in South Australia from 25 January 2023 in relation to five driving offences, and had been bailed to appear at the Elizabeth Magistrates’ Court on 22 March 2023. As your offending occurred whilst you were subject to a grant of bail, your conduct forms the basis of the related Summary Offence of committing an indictable offence whilst on bail.
11You were remanded in custody on the date of your offending, 22 May 2023, and have been in custody since this time, a period of 281 days.
Nature and gravity of your offending and your level of responsibility for it
12Dealing firstly with the aggravated carjacking offence, the gravity of this particular conduct is of course reflected in the relevant statutory maximum penalty, 25 years’ imprisonment. Furthermore, aggravated carjacking is a Category 1 offence which, pursuant to the relevant provisions of the Sentencing Act 1991 (‘Sentencing Act’), the court must impose a custodial disposition. In addition, this offence has a mandatory minimum non-parole period of three years’ imprisonment unless the court is satisfied that a special reason exists, pursuant to ss 10AD and 10A of the Sentencing Act. As the then Attorney-General stated in Parliament when this offence was created in 2016, both the maximum penalty and the statutory minimum sentence of three years were imposed in order to recognise the particular seriousness of this offence, and to provide a serious deterrent to those who plan to use weapons and violence to take another person’s vehicle.[1] Furthermore, given the prevalence of this particular offence, in addition to the sentencing purposes of denunciation, and protection of the community, there is a need for any sentence I impose to reflect the important sentencing purpose of general deterrence, that is, seeking to deter other like-minded offenders from engaging in such serious criminality.
[1]Victoria, Parliamentary Debates, Legislative Assembly, 1 September 2016, 3329 (Martin Pakula, Attorney-General), as cited in Mammoliti v The Queen [2020] VSCA 52 at [9].
13In your case, the circumstances which elevate your offence to that of aggravated carjacking relate to your possession and use of an offensive weapon, namely a machete. This is objectively a serious weapon, a bladed item capable of causing serious injury at least, and your brandishing of the machete during the commission of this offence would no doubt have been very frightening for your victim. Your conduct with regards to the machete was not passive. As your victim attempted to retreat towards the house, you waved the machete in her face, highlighting the seriousness of your conduct. Furthermore, I am satisfied that your conduct involved a level of pre-meditation or forethought, given your possession of the machete, together with the fact that your face was covered with only your eyes visible. This does not appear to have been a spontaneous act on your part. Your victim was vulnerable, a female on her own at night, seated in the driver’s seat of the vehicle which you ultimately stole. Whilst your victim did not provide a Victim Impact Statement in this matter, as indicated by the prosecution in written submissions, in her police statement the victim notes her fear that you would use the machete against her, and her acute awareness throughout the incident that her children were inside the house.[2]
[2]Prosecution submissions on sentence dated 11 December 2023, Exhibit 2 at paragraph 17.
14At the time of your offending you victim was using this vehicle as storage for possessions and clothing of her and the children. Your theft of the vehicle containing these items would no doubt have significantly affected and inconvenienced the victim and her children. Furthermore, you were subject to a grant of bail at the time of the offending, and this fact elevates both the nature and seriousness of your offending, and your level of culpability for it. Further enhancing this aspect is the fact that you appear also to have been subject to parole for violent offences in New South Wales at the time of this offending. That you would engage in such serious criminality whilst subject to both parole and bail is highly concerning. Your offending with regards to the aggravated carjacking does appear to have been fairly short-lived. You were on your own, and there was no physical remonstration with your victim, nor was your victim injured as a result of this conduct. In all the circumstances, I agree with the prosecution that the commission by you of the aggravated carjacking is reflective of a mid-range example of this particular crime.
15In relation to the theft charge, no monetary amount is stipulated with regards to the value of the fuel stolen by you. It was clearly a non-confrontational crime on your part, though it appears to have been committed soon after the aggravated carjacking, accordingly in a stolen vehicle, and is reflective in my view of your ongoing criminality on this particular night.
16As conceded by your counsel, your driving at a speed dangerous involved you driving at extremely high speeds in both residential streets and on country roads, and there was a high degree of risk to other motorists and the public. It was also fairly sustained on your part, and appears to have occurred in the context of a police pursuit. This was in my view determined criminality on your part, motivated by a desire to avoid arrest. As I have stated, you were on bail for driving offences at the time. There is a need with regards to any penalty I impose on this charge to reflect the important sentencing purpose of general deterrence.
17In terms of your culpability, your counsel did not submit that your culpability was in any way reduced by virtue of any mental impairment pursuant to the Verdins principles. As I have stated, your culpability is enhanced by virtue of the fact that you were then subject to New South Wales parole and a grant of bail. You also have a fairly significant criminal history from both New South Wales and Victoria, where you have previously been dealt with for violent offences and robbery, and have previously received both non-custodial and custodial dispositions. Your concerning criminal history also enhances your culpability for the current offending. In all the circumstances, I find your level of responsibility for the offending to be high.
Personal circumstances
18Whilst I have concluded that your level of culpability for the offending is high, it is nevertheless reduced by virtue of your deprived background, childhood displacement, trauma history, and your experience of foster care in a general way, in accordance with what are often referred to as the Bugmy principles.[3]
[3]Bugmy v The Queen [2013] 249 CLR 571, DPP v Hermann [2021] VSCA 160 at [36], [40] and [45].
19Both at the time of your offending and now you are aged 23. You are a young Aboriginal man, born on Gadigal land in Sydney, New South Wales, and belonging to the Dundgundarra mob. You are one of nine siblings, including four half-siblings, two stepsiblings, and two biological sisters. You were essentially raised by your mother Glenda. Your father left the relationship with your mother when she was pregnant with you, and you have apparently only met your father on a handful of occasions. You were therefore essentially raised by your mother as a single parent.
20From an early age, your childhood was marred by a lack of stability. You have reported a long history of drug and alcohol abuse within your family, with your mother historically using cannabis, methamphetamine and alcohol habitually. You have reported that you were physically beaten by your siblings whilst residing with your mother.
21At the age of eight you relocated with your mother to Hay in New South Wales before you were placed into foster care in the Seymour area in Victoria. You have reported experiencing abuse whilst in foster care. When you later returned to your mother’s care, the family moved around several times to various towns throughout Victoria, contributing to a sense of instability on your part.
22In 2016, when you were aged 16, whilst serving a period in juvenile detention in New South Wales, you have reported that you were sexually assaulted by a uniformed officer during a strip search when you were touched inappropriately causing you severe discomfort. This matter was not reported. After your time in detention you apparently returned to your mother in Hay, before relocating with some of your siblings and your mother to Echuca in Victoria. Unsurprisingly given your childhood instability, your education has been interrupted and problematic. Following behavioural problems on your part in the primary school system, you have apparently been previously diagnosed with oppositional defiant disorder and attention deficit hyperactivity disorder. You have been educated only to partial completion of Year 7. You have subsequently obtained employment as a musterer for some three and a half years on and off, before relocating to Echuca where you obtained some employment with a concreting company but have otherwise been unemployed. You have been unemployed since 2020.
23You have a problematic history with regards to drug and alcohol use. You were introduced to illicit drugs at a young age following exposure to illicit use amongst your maternal and paternal relatives. You began consuming alcohol and using cannabis from the age of 10. You first tried heroin at the age of 12, and graduated to intravenous use which was problematic up until late 2022. You first tried methamphetamine at the age of 15 and you rapidly escalated to persistent daily use. You were apparently using methamphetamine right up to the time of your offending.
24You have had a number of significant intimate relationships in your life. From a relationship in 2013, you have a child Savannah aged seven whom you have limited contact with. Between 2016 and 2022 you were in another relationship resulting in a son, Harper, now aged five, with whom you have maintained ongoing contact. The woman with whom you had this relationship also has another child, Harley who you treat as your own due to the length of the relationship with Harley’s mother, and you have maintained contact with him. You subsequently entered another relationship with another woman, resulting in another child Ryder aged two with whom you also maintain contact.
25I have already referred to your problematic criminal history. You have multiple prior findings of guilt with regards to dishonesty and property offences, including matters of violence which have resulted in previous sentences of imprisonment. As I have stated, you were on parole at the time of this offending.
26
A comprehensive psychological assessment was undertaken by psychologist Rebecca Fakhri with her findings set out in her assessment report dated
3 November 2023.[4] Ms Fakhri referred to your established history of substance misuse, leading to antisocial and violent behaviour. She referred to your childhood being reflective of a lack of stability, and your experiences of unstable and insecure attachments.[5] She confirmed a diagnosis of attention deficit hyperactivity disorder and confirmed a diagnosis of major depressive disorder and generalised anxiety disorder.[6] According to Ms Fakhri you meet the diagnostic criteria for complex post-traumatic stress disorder as a result of the trauma you have experienced in your youth, including sexual abuse, displacement from your parents and witnessing violence to others. In that regard I note your counsel’s reference in written submissions to you reporting that you have witnessed incidents of people being stabbed, run over, and physically assaulted, in addition to witnessing a woman killed in a tunnel whilst living in Seymour. You have reported experiencing nightmares and flashbacks as a result of being taken from your mother’s care and as a result of your experiences in juvenile detention.[7]
[4]Exhibit A.
[5]Paragraphs 108 and 109.
[6]Paragraph 113.
[7]Paragraph 21 of Exhibit C.
27Unsurprisingly, Ms Fakhri also diagnosed you with various substance use disorders given your complex history of illicit substance misuse. You reported to Ms Fakhri that you were using heroin and methamphetamine intravenously at the time of your offending, as well as smoking cannabis.
28Your chronic history of disadvantage, deprivation and instability and trauma is certainly relevant, as I have described, to an assessment as to your moral culpability for the offending. I have little doubt that your difficult background has adversely impacted upon your development as a young man, warranting a moderation of your moral culpability and to some degree the application of general deterrence. Of course, it cannot be forgotten that your adverse experiences and resulting dysfunctionality are relevant with regards to your rehabilitative prospects. According to psychologist Ms Fakhri, you represent a moderate to high risk of future physical violence if your conditions remain untreated and if you continue to abuse substances to cope with your stressors.[8] You current offending represents an escalation in your criminality in comparison to your criminal history, and any penalty I impose must also reflect the important sentencing purpose of community protection in these circumstances.
[8]Paragraph 97.
Sentencing factors
29There are in my view a number of mitigatory factors relevant to the sentencing exercise in your case.
30At the age of 23, you are a young offender within the meaning of the Sentencing Act and generally speaking, rehabilitation is of greater importance in sentencing youthful offenders than deterrence.[9]
[9]R V Mills [1998] 4 VR 235, 241.
31I am satisfied that a further mitigatory allowance is warranted by virtue of your early plea of guilty, with your matter resolving just prior to the third committal case conference on 13 October 2023. Through your plea of guilty, your victim has not had to relive the experience of the aggravated carjacking, and through your plea of guilty, contested proceedings with associated delays and costs have been avoided. Your early plea in these circumstances represents an acceptance of wrongdoing and a willingness to facilitate the course of justice.
32Your counsel submitted that a further sentencing discount was warranted by virtue of your remorse for the offending, as evidenced through your early plea of guilty. Conversely, the prosecution urged me to be cautious before accepting that your plea indicates remorse, particularly noting your comments relating to your offending to psychologist Ms Fakhri at page six of her report, where you clearly sought to downplay at the very least your responsibility for the offending.
33Whilst this may be the case, having regard to your participation in the Koori Court Sentencing Conversation on 12 December 2023, I am satisfied that a further sentencing discount on the basis of your remorse is warranted. You voluntarily participated in the Koori Court Sentencing Conversation procedure before me, and a respected person from the Aboriginal community. This was something that you did not need to do, and your voluntary participation in the Sentencing Conversation very much stands to your credit. In my view you engaged wholeheartedly in the Sentencing Conversation with the Aboriginal elder, and submitted yourself to the shaming aspect that is integral to the Koori Court Sentencing Conversation. Rather than relying upon counsel to make submissions on your behalf, you engaged very directly in that conversation and in my view took responsibility for your offending. You were articulate and, in my view, honest in expressing your shame for your criminal conduct, and openly discussed difficult aspects of your background, your family makeup, and your hopes for the future. At times you were quite emotional. Participation in a Sentencing Conversation is more burdensome than appearing at a traditional plea hearing, warranting a sentencing allowance in your favour. Your participation also represents a positive factor with regards to your prospects for rehabilitation, given your willingness to meaningfully engage in this process.
34On a related issue, your Aboriginality represents a significant mitigatory matter in the sentencing exercise. You fall to be sentenced as a 23-year-old Aboriginal man, who, I am satisfied, is both interested in and committed to your culture. As is well known, the Aboriginal community remains significantly overrepresented in the custodial setting as a result of the intergenerational trauma brought about by colonisation and the flow on adverse effects on the Aboriginal community. As has been stated in the Court of Appeal in this State, courts have a duty to be conscious of the need to avoid compounding these incarceration rates unless there is good cause to do so.[10]
[10]HA (a Pseudonym)v The Queen [2021] VSCA 64 at [59].
35You have been in custody now for 281 days. I accept that you have done your best to keep busy whilst in custody. At the further plea hearing on 24 January 2024, you referred to previously working in the area of timber production, before obtaining work as a cleaning billet, a position of some privilege, since your initial plea hearing in December 2023. Whilst no documentation was provided, I accept your indication that whilst in custody you have undertaken a number of courses and classes, and have had regular contact with mental health providers when available. Unfortunately, due to a positive urine screen midway through last year it seems, you have had no visits, or no contact visits and I accept that the dislocation from contact with your children has no doubt adversely impacted upon your time in custody. Your mother Glenda has a number of health issues it seems, and I accept also that your anxieties associated with your mother’s health have made your time in custody harder. Furthermore, based upon the opinions expressed by psychologist Ms Fakhri,[11] I am satisfied that as a result of your psychological fragilities, in particular your ADHD and your complex post-traumatic stress disorder and your major depressive disorder, that a term of imprisonment would likely weigh more heavily upon you than someone without these conditions, warranting a mitigatory allowance pursuant to Verdins principle 5. You are more prone to emotional dysregulation. You are vulnerable with regards to a false sense of community acceptance within antisocial peer groups, particularly given your youth and naivety with regard to the adult prison environment.
[11]Paragraphs 131, 132 and 133.
36At today's hearing, I received further mitigatory material, on your behalf. Firstly, I received a letter written by you yesterday, which you read out in court today. I am satisfied that that letter is entirely and utterly consistent with your previous articulations with regards to your remorse for your offending. Given the difficult background circumstances to which I have referred, it is to your credit that you are able to articulate yourself in such a way and I am satisfied that you are genuinely sorry for your behaviour and genuinely committed to changing your life in the future. In that letter, you referred to being on the Buprenorphine program whilst in custody and it is hoped that you continue to receive pharmacotherapy assistance whilst in the custodial setting to facilitate your ultimate reintegration into the community.
37I also received a letter from an organisation named About Time For Justice, indicating on a positive note that you have reached out and made contact with regards to the beginning of what will no doubt be an arduous process of counselling, dealing with the historical aspects of abuse that have so deleteriously affected your upbringing.
38Particularly given your young age, and notwithstanding your rather troubling criminal history, it is important in my view for any sentence I impose to appropriately facilitate your rehabilitation. I have concluded that your prospects for rehabilitation are fair, but rather speculative given the number of challenges in your life. In my view your ability to successfully reintegrate into the community and forge a productive life is heavily dependent upon your willingness to accept the specialist interventions that will be required with regards to your longstanding substance use problems, and your various psychological disorders. I repeat again that the material provided today does give me some hope with regard to your prospects for rehabilitation.
39The sentencing purposes of general deterrence, denunciation, punishment and protection of the community are all important in your case. Given your criminal history, specific deterrence also has a role to play in the sentencing exercise.
Parties submissions
40Your counsel conceded that a custodial sentence involving a head sentence and a non-parole period is warranted in the circumstances of your case. However, your counsel submitted that a deviation from the mandatory minimum sentence with regards to aggravated carjacking was warranted due to the existence of substantial and compelling circumstances that are both exceptional and rare, pursuant to s 10A(2)(e) of the Sentencing Act. In essence, your counsel submitted that it was open to me to impose a non-parole period of less than three years, having regard to a combination of factors, namely your youth, Aboriginality and deprived background and trauma history, your complex mental health presentation and diagnosis, the increased burden in custody, the impact of imprisonment on your relationship with your young children, and your mother’s ill health.
41In contrast, the prosecution submitted that the cumulative impact of the circumstances relied upon do not justify a diversion from the statutory minimum period.
42The phrase 'substantial and compelling circumstances that are exceptional and rare' has been considered by the Court of Appeal, both in the context of s 10A and s 5(2H)(e) of the Sentencing Act.[12] In coming to my decision with regards to this aspect of sentencing, I have considered those and other recent cases dealing with this threshold. Clearly the threshold is extremely high. Whilst in my view the matters relied upon represent significant mitigatory factors, they do not reach the level of substantial and compelling circumstances, nor are they exceptional and rare. Accordingly, the mandatory statutory minimum with regards to the offence of aggravated carjacking applies.
[12]Buckley v The Queen [2022] VSCA 138; DPP v Lombardo [2022] VSCA 204.
Sentence to be imposed
43On Charge 1 on the indictment, aggravated carjacking, you are convicted and sentenced to three years and six months’ imprisonment. This is the base sentence.
44On Charge 2 on the indictment, theft, you are convicted and sentenced to three months’ imprisonment.
45On the related Summary Offence of drive at speed dangerous, you are convicted and sentenced to six months’ imprisonment.
46On the related Summary Offence of committing an indictable offence whilst on bail, you are convicted and sentenced to one month imprisonment.
47I order that four months of the sentence imposed on the drive at speed dangerous offence be served cumulatively upon the base sentence, with all other sentences being concurrent, resulting in a total effective sentence of three years’ and 10 months’ imprisonment.
48I order that you serve a period of three years’ imprisonment before becoming eligible for parole.
49Pursuant to s 18(4) of the Sentencing Act, I declare that you have served a period of 281 days by way of presentence detention, and I order that this amount be deducted administratively from your sentence.
50Pursuant to s6AAA of the Sentencing Act, I declare that had you pleaded not guilty but been found guilty of these offences, I would have imposed a total effective sentence of five years’ imprisonment with a non-parole period of three years and nine months’ imprisonment.
51In relation to the conviction for aggravated carjacking, I order that any driver’s licence held by you be cancelled, and you be disqualified from obtaining another for a period of 12 months.
52Finally, I will make the disposal order with regards to the machete, this application not being opposed by you.
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