Director of Public Prosecutions v Joyce

[2024] VCC 111

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. 23-01313

DIRECTOR OF PUBLIC PROSECUTIONS

v

BLAZE JOYCE

---

JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 February 2024
CASE MAY BE CITED AS:	DPP v Joyce
MEDIUM NEUTRAL CITATION:	[2024] VCC 111

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – SENTENCE

Catchwords:              Armed robbery – youth – Bugmy – significant prior criminal history – unsuitability for youth justice

Legislation Cited:      Sentencing Act 1991

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Azzopardi v The Queen [2011] 35 VR 43; Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann [2021] VSCA 160; Sabbatucci v The Queen [2021] VSCA 340; Bergman (a pseudonym) v The Queen [2021] VSCA 148

Sentence:                  Term of imprisonment of 20 months with a non-parole period of 10 months. Declared 282 days served by way of pre-sentence detention.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McCarthy	Office of Public Prosecutions
For the Accused	Ms C. Hart	Hofman Carroll Criminal Law

HER HONOUR:

1Blaze Joyce, on 29 November 2023, you pleaded guilty on indictment P10984691 to one charge of armed robbery.

2Given your age and the submissions made at your plea, I ordered a pre-sentence report from Youth Justice and a Forensicare psychiatric report.  Your case was adjourned for further plea until 29 January 2024 and following that hearing, I ordered a Community Correction Pre-Sentence Assessment and also a MHARS assessment.  A further plea took place on 14 February 2024 and you now fall to be sentenced for your offending.

Circumstances of offending

3So the agreed factual basis for your offending is set out in a summary of prosecution opening and that is dated 2 November 2023 and that was tendered and marked as Exhibit A on the plea and what follows is a summary of that document.

4Late in the evening of 7 May 2023, the victim was in his apartment with his wife and at approximately 10.45pm he heard a car alarm coming from the ground floor carpark in the building.

5The victim went down to the car park and he observed a light-coloured Audi sedan containing three occupants including the driver. The male front seat passenger was later identified to be you and that person yelled to the victim ‘What are you wearing?’ and he replied, ‘A sarong’.  Suspicious of the car’s occupants, the victim followed the sedan to the basement level of the car park and the sedan then pulled up next to the victim and he asked, ‘Are you guys living here?’.  No one in the car responded.

6You then leaned out of the front seat of the car and sprayed the victim in the face twice with what he thought was a small black cannister of pepper spray.  At this time he was about a metre away from you.

7The spray stunned the victim and he took some steps away from the car.  The victim took out his phone to try and record the car as it tried to exit the carpark.  The car stopped and you exited the front seat holding a knife in your right hand and the victim observed the knife to be about 30 centimetres long and curved.  

8You approached the victim waving the knife in the air and said, ‘Give me your phone, give me your phone’.  At one point the victim also thought he heard you say, ‘I’ll cut you’.  Backed into a corner, the victim threw his phone under his wife’s car which was nearby.  You picked up the phone before returning to the sedan which then drove out of the basement carpark.

9The victim’s wife came to check on him and met him on the stairs of the building where he told her what had happened.  She observed that his face ‘was red and had spray on it’ and the incident was then reported to the police.

10In the course of investigating you for other offences, you were observed on the morning of 8 May 2023 in a silver sedan, registration CGQ 194.  The car was tracked by police including the use of the Air Wing.

11CCTV footage was obtained from the armed robbery which depicted a person, later identified to be you, wearing a black cap, black jumper, white pants and black and white shoes.  The footage also depicted a silver sedan with registration plates APG 413. The informant in this matter became aware that police members were pursuing another silver sedan, albeit with the registration CGQ 194.

12Police eventually recovered the silver sedan which you were observed in on the morning of 8 May.  In the car they recovered a curved blade knife, a can of WD-40 and two cloned registration plates with the registration number APG 413.

13You were arrested later in the afternoon of 8 May 2023 for unrelated offending.  As you were admitted to hospital shortly after your arrest, you were not interviewed. You were charged with this offending on 10 May 2023 and you were remanded in custody on this matter at that time.

Nature and gravity of offending

14The offence of armed robbery is inherently serious, as evidenced by the 25-year maximum penalty. Mr McCarthy for the prosecution submitted that the armed robbery committed by you was serious because of the particularly intimidating knife you used and because your offending occurred in the underground carpark of the victim's apartment complex, which was a place where the victim was entitled to feel safe.  Further, he submitted that the victim could be considered a 'soft target'.

15Mr McCarthy did concede on behalf of the prosecution that your offending was of relatively short duration, the victim was not injured, the offending was not committed in company and there was no evidence of any specific planning or preparation.  He described the offending as appearing to be opportunistic and somewhat random.

16Your counsel, Ms Hart conceded your offending was inherently serious and also accepted on your behalf that the victim would have felt immense fear when he was sprayed in the face and then confronted with a knife.  Ms Hart submitted that your offending occurred after limited interaction between yourself and the victim in a brief and spontaneous way.  Further, she submitted that there was no evidence of planning on your part and no evidence that your entry to the car park was motivated by an intention to commit such a crime.

17In her oral submissions, Ms Hart disputed the categorisation urged by the Crown, that the victim was a 'soft target'. She submitted that a 'soft target' armed robbery was committed in circumstances where the offender goes in with real purpose.  In comparison your offending was spontaneous and unfolded as a result of the circumstances in which you found yourself.  I agree with her submission in that regard.

18It is my view that your offending can be categorised towards the lower end of seriousness for offences of this nature. I accept your offending was spontaneous, of short duration, committed alone, without disguise, the victim was not injured and there was no planning on your part.  That is not to say that your victim would not have been extremely frightened to be confronted by you holding a large and intimidating knife in the underground carpark of his apartment block.

Personal circumstances

19So I turn now to your personal circumstances.  You are currently 19 years of age and you were 18 at the time of the offending.

20You were born in Shepparton and you are the eldest of four siblings, two of whom are half siblings.

21You identify as Aboriginal through your maternal grandfather who you have been told is of Gunditjamara heritage. You have not been brought up with a connection to Aboriginal culture though you have now demonstrated an interest in developing one. This has been hampered somewhat by difficulties having your Aboriginality recognised by Aboriginal community organisations.

22Your childhood was largely devoid of a stable and nurturing home environment.  Both of your parents abused illicit substances and alcohol and both engaged in violent and criminal behaviour.

23As a consequence, your parents were frequently absent and spent periods of time in and out of gaol during your formative years. Of the times that you recall both parents being present, they were often fighting.

24You stopped consistently residing with your mother when you were about six or seven years of age. From that time you moved back and forth, living with your father and your Nan. You described your father’s house as 'disgusting' with mess everywhere. There was not enough food and you were neglected.

25Your home environment prompted the involvement of Child Protection which, according to the Youth Justice report, received 14 reports over a five year period from 2012 to 2017. Reported concerns related to, among other things, family violence, neglect and substance use by both parents.

26You have little formal education beyond Grade six. You were enrolled in a high school but often skipped school.  Instead, you would smoke cannabis and hang out with friends. When you did attend school your behaviour was poor, and you were suspended multiple times for misbehaviour before eventually being expelled during Year 7.

27You spent some time at an alternative school for at risk teens near Shepparton and during your brief time there you gained connections to other young people who engaged in criminal activity.

28By age 16 you were in state residential care. You are reluctant to speak about your time there except to say that ‘everything changed for the worst’. Feeling neglected in this environment, you spent your time staying out all hours of the night and using drugs. This period marked a significant increase in drug use, including methamphetamine, which you were introduced to by another resident.

29You started drinking alcohol at age 11 and your drinking was out of control by the age of 16.  You would sometimes drink ‘a couple of slabs’ or ‘a straight bottle’ at a time and you are no longer interested in drinking, at least in part, because your use of other substances increased.  You began smoking cannabis from about the age of 12, eventually smoking up to two ounces daily.  By the time you were age 15 or 16, you were almost daily using methamphetamine, Xanax, MDMA and speed. You cannot recall the quantities you were consuming only that you would take whatever you could get your hands on at the time.

30During the psychological and psychiatric assessments conducted this year, late last year and this year, you said you understood that your alcohol and drug use was negatively impacting your life and you were motivated to stop and you hoped to achieve this by buprenorphine, rather than counselling.

31Other than two days’ work as a bricklayer, you have no employment history in the community and this is not surprising given your age and circumstances.  You currently have an interest in becoming a roof tiler and potentially working for a relative who has a roof tiling business in Heathcote.

32Your current relationship with your father is positive but it consists of being his cellmate in adult custody.  You have had a strained relationship with your mother and as at the end of January 2024, you had not spoken to her for several months. Youth Justice notes indicate that your mother has often enabled your offending behaviour and drug use, on one occasion attempting to provide you with contraband in custody.

33Since your childhood, you have considered your Nan, Margaret Joyce, to be the only reliable parental figure in your life. She has remotely attended court proceedings and you have told several people who have assessed you that she is a strong source of motivation to you to improve your life.

34You were also very close to your cousin, Kiara, and her young children and Kiara, of course, is deceased and that happened April 2023 when you were in custody.

35Your Nan has provided a reference in your support, tendered at your plea and marked exhibit 1, and she confirms the struggles and traumas you faced during your childhood which now continue into your early adulthood.  To her observation you made a real effort to stay on the right path following your release from custody just days after your cousin’s death.  However, the impact of this loss and its effects were overwhelming. Your mother came to Shepparton shortly after the funeral and you returned to Melbourne with her and continued to offend and take drugs. Your Nan believes you have shown fresh insight and maturation during your current period in custody and said that she will always be supportive of you into the future.

Prior criminal history and current remand

36Despite your young age, you have an enormous prior criminal history. To date your matters have been heard almost exclusively by the Children’s Court. A lot of your history contains priors relating to dishonesty offences such as burglary, theft and theft of motor vehicle. You also have several prior convictions for more serious offences such as home invasion and aggravated burglary. You were initially placed on various Good Behaviour Bonds and periods of probation as well as a Youth Supervision Order.

37According to the Youth Justice report, you have now spent a total of 24 periods of remand or sentence in Youth Justice custody. During your time in Youth Justice there have been numerous incidents of non-compliance, contraband possession, property damage and aggressive and sexualised behaviour towards staff and peers.

38This current period of time on remand has been your first experience of adult custody. You have noticed the supports are not the same compared to Youth Justice and you have had some difficulty being around adult prisoners.

39Around the time of your plea in November 2023 you had spent significant periods of time in isolation. During these periods you were permitted an hour to an hour and a half of exercise and otherwise you remained confined to your cell.  Your in-person visits were suspended until August 2024 as a consequence of you saving up medication for another prisoner. You have had some contact with your family by phone or video call but this is often restricted by your lack of money.

40At the beginning of 2024 you were moved to Ravenhall Correctional Centre where several other family members and friends are also incarcerated.

41You told Dr Batten and Forensicare mental health nurse, Mr Lane, that you continued to find adult prison challenging and you have had conflict with prison staff.  However, you have found sharing a cell with your father and being able to work, as two things that make adult prison more comfortable.

42As of January 2024, you have been prescribed an anti-depressant and medications to treat sleep disturbance and ADHD. You also receive methadone for drug dependence. Your medication has been closely monitored following attempts by you to misuse your medication.

43The wellbeing of your Nan and other family members have weighed heavily on you in custody and you are anxious to be released to support them.

Psychiatric history

44For the purposes of your plea a report dated 21 November 2023 was prepared by Christine Kennedy, provisional psychologist, and David Ball, forensic psychologist and clinical neuropsychotherapist.

45It was their opinion that your ‘overall lack of psychological safety and positive prosocial role models throughout [your] childhood experiences have negatively impacted [your] social, emotional and behavioural development’.

46They considered that you had immature socio-emotional development and issues with emotional dysregulation causing a tendency to respond to challenges with anger and aggression.

47They noted your dysfunctional childhood home environment has led to an insecure attachment style and poor coping skills.  From a young age you learned to rely on drug use as a maladaptive coping strategy.

48Their opinion was that you met the diagnostic criterias for disorders associated with the use of various substances and severe conduct disorder, the latter likely arising from your childhood home environment.

49They considered that you were at risk of developing anti-social personality disorder and depressive disorder if your current pattern of behaviours were not interrupted.

50Cognitive and psychometric testing could not be completed at that time due to your restricted environment at the time of the interview.

51The Forensicare psychiatric report I ordered was written by Dr David Batten.  He is a psychiatric registrar at the Victorian Institute of Forensic Mental Health.

52Dr Batten’s review of public mental health records show you have had extensive contact with mental health services since 2014. In fact, 2018 was the only year without recorded contact.

53You confirmed to Dr Batten that in early primary school you were diagnosed with ADHD and prescribed medication though you eventually stopped taking it. You said you have also been medicated for anxiety for several years and you have trialled several different anti-depressants. You have never been admitted to a psychiatric facility or experienced self-harm or suicidal ideation. You told Dr Batten that you thought you had an Acquired Brain Injury following several head injuries.

54Prior diagnoses noted in public mental health records included depression, behavioural and personality disorders and mental and behavioural issues caused by drug use.

55Dr Batten concluded you meet the diagnostic criteria for disorders associated with cannabis, stimulant, opioid and sedative use, in addition to oppositional defiant disorder and conduct disorder.

56He considered it was ‘likely’ that you met the criteria for ADHD and Generalised Anxiety Disorder and that it is ‘possible’ you have Complex PTSD.

57On the information available at the time, Dr Batten concluded it was unlikely that you have a serious intellectual or cognitive impairment but further testing would be needed to rule out their presence definitively.

58He did note in his report that you underwent a partially completed neuropsychological assessment in Youth Justice custody in May of 2022 and the testing, to the extent that it was completed, suggested your intellectual functioning ranged from very low to average across a range of areas and you had multiple risk factors for cognitive impairment.

59Dr Batten recommended that as part of any custodial sentence, you should have psychological and psychiatric treatment and oversight. Further, you would benefit from drug and alcohol treatment and programs to address literacy and numeracy, behavioural issues and skills for employment.

60If released into the community, Dr Batten recommended a mental health care plan through a GP to access a range of therapies and supports such as psychological services and referrals to specialists for management of your ADHD and a comprehensive neurocognitive assessment. He also recommended alcohol and drug treatment and engagement with social support programs such as ACSO or youth organisations.

61In relation to both custodial and non-custodial sentences, Dr Batten recommended engagement with Aboriginal programs and organisations.

Factors in mitigation

62A number of important factors were raised on your behalf in mitigation.

Plea of guilty

63The first of these is that you have pleaded guilty at a very early stage in the proceedings.  Following the prosecution’s acceptance of your offer to plead guilty to a single charge of armed robbery on 25 July 2023, you formally indicated an intention to plead guilty at a committal mention on 2 August 2023.

64A plea at this stage has significant utilitarian benefits in recognition of court time and resources saved, as well as sparing witnesses from cross-examination at committal hearing or trial. Further, it is an indication of your willingness to facilitate the course of justice and is evidence of an acceptance of responsibility for your behaviour, offending behaviour, that is.

65The backlog of cases caused by the pandemic has now substantially eased.  However, I consider your matter falls within the time frame when the additional benefit to be gained for a plea of guilty as recognised by the Court of Appeal in the case of Worboyes, still has application.[1]

[1] Worboyes v The Queen [2021] VSCA 169.

66Accordingly, I have given you a significant discount for your early plea of guilty.

Youth

67Another very significant factor in mitigation is your youth.  You were very young, barely into adulthood when you committed the offence before the court.  You were just 18 years of age and now at the date of sentence you are still one of the youngest offenders who come before this court at the age of 19.

68I regard your youth as a particularly important consideration in sentencing you.  In the case of Azzopardi, three considerations which underlie the general primacy afforded to an offender's youth as a sentencing consideration were identified.[2]

First, young offenders, being immature, are 'more prone to make ill‑considered or rash decisions'. In that respect, they 'may lack the degree of insight, judgment and self-control' possessed by a more mature adult. They may not 'fully appreciate the nature, seriousness and consequences of their criminal conduct'. Secondly, the courts recognise the potential for young offenders to be redeemed and rehabilitated. Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair rather than improve the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.

[2] Azzopardi v The Queen [2011] 35 VR 43.

69Your past offending, together with this offending, is partly reflective of your immaturity and lack of insight arising from your youth.  It is also partly reflective of your compromised and disordered development as a result of the deprivation, neglect and abuse you endured through your childhood. It is clear your offending occurred in circumstances that demonstrate impulsivity and a lack of consequential thinking.

Bugmy

70Your counsel submitted that the principles enunciated in the case of Bugmy are enlivened in your case.[3]  Although counsel for the prosecution conceded that the social disadvantage you experienced was relevant to sentence, Mr McCarthy referred the court to the case of Sabatucci where the Court of Appeal in quoting DPP v Herrmann said the following:[4]

'an offender’s disadvantaged background will always be relevant to the sentencing task. Whether and to what extent social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.'

[3] Bugmy v The Queen (2013) 249 CLR 571.

[4] Sabbatucci v The Queen [2021] VSCA 340 at [6]; DPP v Herrmann [2021] VSCA 160. Portion in italics was not included in the prosecutor's written submissions.

71Clearly, in making an assessment of your moral culpability or the degree of blameworthiness to be attached to you for your offending conduct, it is necessary to closely examine your personal circumstances and background and undertake an exploration of factors which may explain the offending conduct.  To the extent that the offending conduct is due to factors beyond your control the harshness of the moral judgement is likely to be moderated.[5]

[5] DPP v Hermann [2021] VSCA 160 at [14].

72To that end as I have already observed you experienced appalling and psychologically damaging harm, abuse and neglect at the hands of your parents, the very people who should have loved, protected and nurtured you, and who should have provided positive role models.  Your upbringing has had a negative impact on your social, emotional and behavioural development.  You were found to have immature socio-emotional development and issues with emotional dysregulation causing a tendency to respond to challenges with anger and aggression. Further you have poor coping skills, and have from a young age relied on drug use as a maladaptive coping strategy. You meet the diagnostic criteria for severe conduct disorder likely arising from your childhood home environment.

73In my view these factors go a long way towards explaining your offending.  You had a brief interaction with the victim and when challenged you reacted spontaneously and without thought of any consequences, with anger and aggression.

74In my view, your moral culpability for the offending cannot be equated with that of a person who committed the same offence who has had the advantage of a normal, stable home environment in which they have been guided by appropriate parenting.[6]  Further, the destabilising effect of your deprived childhood, together with your youth at the time of your offending are sufficient in my view to reduce your moral culpability.  Additionally, the deprivation you endured helps to put in context your prior history of offending.  However, it also raises the very real issue of protection of the community as a sentencing consideration and I will return to this issue shortly.

[6] Bergman (a pseudonym) v The Queen [2021] VSCA 148.

75The rehabilitation of offenders, particularly young offenders, is one of the great objectives of the criminal law.  It is recognised by courts that this is one of the ways to best achieve long term protection of the community.  In your case I have thoroughly explored options for your rehabilitation given your young age and the disadvantages you have endured.

76You have been assessed as not suitable for both detention in a Youth Justice Centre and a Community Correction Order.  In short, the reasons for this are that you have failed to take opportunities towards rehabilitation in the past and your behaviour in youth detention and in the community has been extremely difficult to regulate.  Neither Youth Justice or Corrections have confidence that you will be able to comply with the necessary programs and conditions that would be required of you in either the youth justice setting or on a Community Correction Order.

77In all the circumstances, I find your prospects for rehabilitation to be guarded.

78Although you have considerable experience in youth detention, as I have said, this is your first time in adult custody.  You have now served 282 days on remand in very difficult circumstances. As a result of behavioural issues and your inability to fit in you have been in solitary confinement for some portion of those 282 days.  Whilst in solitary confinement you have had very little time out of your cell each day and you have spent a lot of time watching TV. Your behaviour has in some instances occurred as a result of you trying to impress other prisoners and at other times you have perceived a need to stand your ground and not appear weak. I am conscious that an extended time in adult custody is likely to exacerbate your anti-social tendencies and further entrench your criminal behaviour.

Sentencing principles

79The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

80Given your youth, your background circumstances and my findings as to your reduced moral culpability, general deterrence must give way to the promotion of your rehabilitation as the primary purpose of sentencing.  In view of your young age, your difficult background circumstances and your experiences in custody I have moderated the weight to be placed on specific deterrence, although that is still relevant.

81In your case, I regard protection of the community to be a very relevant consideration. I consider the best way to provide supports and intervention to address your ongoing issues is via the adult parole system. In your case, compliance with interventions and supports for drug and alcohol abuse and psychological treatment is what will likely reduce the risk of future offending.  I encourage you to participate in all programs and courses you can whilst you are in gaol and later in the community.

82I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[7] where relevant to your case. In particular, I have had regard to the sentencing landscape for the offence of armed robbery and the comparable cases helpfully provided by the prosecution. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.

[7] Sentencing Act 1991 (Vic) s 5.

83The principles of proportionality and parsimony are also very important considerations here.  They require me to make sure that I impose an appropriate sentence in line with the gravity of your offending and that I do no more than is necessary to punish you.  I have taken these principles into account in fixing the length and structure of the sentence I will now impose.

84Weighing up all relevant matters in this difficult sentencing task I consider that the only sentencing option I have is one of a head sentence and non-parole period. Mr Joyce in relation to the charge of Armed Robbery you are convicted and you are sentenced to a term of imprisonment of 20 months.  I order that you serve 10 months before being eligible for parole.

85I declare that you have already served 282 days by way of pre-sentence detention and this is to be deducted from your sentence.

86Pursuant to s6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to three and half years with a non-parole period of 20 months.[8]

[8] Ibid s 6AAA.

87I intend to make the order for disposal sought by the prosecution. 

88That, on my calculation, means that if not now, very soon, you would be eligible for parole, but I think that you are going to need to make that application, and you might need to do some programs. In imposing that sentence, I have had to take into account that you might serve every day of the 20 months and that has been a significant factor in arriving at the sentence. When you get released will depend on how you go and how you perform in custody, all right?

89OFFENDER:  Yes.

90HER HONOUR:  All right.  Counsel, is there anything I've missed?

91MS HART:  No, Your Honour.

92MR McCARTHY:  No, Your Honour.

93HER HONOUR:  Can I thank both of you for your really helpful submissions and the way you have conducted the matter.  It has been of great assistance to the court.

94MS HART:  Your Honour pleases.

95MR McCARTHY:  As Your Honour pleases.

96HER HONOUR:  So we'll adjourn.

97- - -