Director of Public Prosecutions v King
[2022] VCC 2287
•15 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02578
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB KING |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Plea: 02 February 2022 Further Plea: 01 April 2022; 31 May 2022; 24 June 2022; 01 July 2022; 15 July 2023; 09 September 2023; 08 December 2022 | |
DATE OF SENTENCE: | 15 December 2022 | |
CASE MAY BE CITED AS: | DPP v King | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2287 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed Robbery
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Cases Cited:R v Verdins & Ors [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37; DPP v Drake [2019] VSCA 293; Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213; DPP v Lombardo [2022] VSCA 204
Sentence: 12 Months in a Youth Justice Centre
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Goetz | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms R Khan | Ajak & Associates |
HIS HONOUR:
Introduction
1Jacob King, you have pleaded guilty before me to one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment.
Circumstances of the offending
2The circumstances of your offending were set out in the Amended Prosecution Opening for Plea dated 3 February 2022, Exhibit B at your plea hearing. That document sets out the agreed factual basis for the offending in relation to which you now fall to be sentenced. Your offending can now be briefly summarised.
3At about 10.04pm on 19 April 2021, you were in the company of your two co‑offenders in relation to this matter, your brother, Jahmyle King, and Christopher Nicholls. Earlier that evening, the three of you were involved in a theft at the Liquorland store in Union Square, Brunswick West, and other dishonesty offending at the Brunswick City soccer clubrooms in Brunswick West.
4At about 10.04pm, the three of you attended at the IGA supermarket at 490 Albion Street, Brunswick West. The three of you entered and walked past the store attendant, who was standing behind the counter, before walking down an aisle and starting to place bags of potato chips in your bags. The store attendant approached, having observed the actions of the three of you, and asked you to return the items and leave the store. Jahmyle King walked towards the store attendant, and said “are you going to hit me?” Nicholls said “let’s start, let’s start.” When the store attendant tried to stop Jahmyle King from approaching any further by putting his hands out, he felt an object similar to a hammer under Jahmyle King’s clothing. The store attendant retreated behind the counter, and the three of you followed him to the counter.
5Jahmyle King walked behind the counter and started taking cigarettes from the cabinet, with the store attendant trying to push him away from behind the counter. At this point, Jahmyle King produced a small axe from under his jumper and threatened the store attendant with it. When the store attendant grabbed the axe, he and Jahmyle King struggled for control of the axe, with you telling the victim to calm down and that you would take what they wanted. You then went behind the counter and grabbed the store attendant from behind, around the neck, while Jahmyle King continued to struggle for the axe. The store attendant was not able to talk because of the pressure around his neck and was finding it hard to believe.
6You then threw the store attendant to the ground and Mr Nicholls took possession of the axe, and then hit it on the counter three times.
7Jahmyle King tried to open the cash register but was unsuccessful, and he then took the register which contained an unknown amount of cash. The three of you then left the supermarket with cigarettes and the register, but not before a female bystander spoke to the three of you, asking whether you were doing a good thing, to which you collectively replied that it was none of her business.
8The three of you were arrested two days later, on 20 April 2021, when police executed a search warrant at Jahmyle and your address. The three of you were then present in the garage. You were arrested without incident, wearing the same jumper that had been seen in CCTV footage from the supermarket.
9When interviewed by police on the day of your arrest, you said that you could not recall much of the evening of 19 April 2021 due to your intoxication, but recalled that you were at home. You identified yourself and your two co-offenders from CCTV stills.
10You were remanded on the day of your arrest on 20 April 2021, before being granted bail on 21 April 2021. Having spent two days on remand, you have been on bail since this time, some 20 months.
11As indicated in the procedural history attached to the Prosecution Opening, your matter resolved to a plea of guilty at the committal mention stage on 30 November 2021. You were arraigned before me on 2 February 2022, formally pleading guilty to the charge of armed robbery. You have subsequently appeared before me during 2022 on numerous occasions with regards to plea submissions and bail review hearings, your most recent hearing prior to sentencing being on 8 December 2022.
12You have subsequently been dealt with with regards to the criminality in the hours preceding the armed robbery, together with, as I understand it, other offending within the same time period. You are currently subject to a Community Correction Order imposed at the Magistrates’ Court on 28 January 2022, and I understand that this Community Correction Order expires in January 2023.
Nature and seriousness of the offending
13Having previously sentenced your two co-offenders, Jahmyle King and Christopher Nicholls, I will make the same comments now with regards to the nature and seriousness of the offending with regards to the armed robbery offence. The gravity of the armed robbery offence to which you have pleaded guilty is reflected in the statutory maximum penalty of 25 years’ imprisonment. It is one of the most serious offences in the Crimes Act 1958. The seriousness of this example of armed robbery is reflected in the fact that it is a Category 2 offence pursuant to the relevant definition contained in the Sentencing Act 1991, due to the fact that you were in company, requiring a custodial penalty to be imposed unless one of the exceptions contained in s5(2H) of the Sentencing Act 1991 applies. Through your plea of guilty, you have acknowledged responsibility for participating with two others in serious and inherently violent offending. Your victim, a store attendant at an IGA supermarket, was a soft target, simply going about his work as a store employee. Due to your offending in company, the objective seriousness of your criminality is increased. The presence of three offenders no doubt emphasised the vulnerability in the mind of your victim. Likewise, the prevalence of this type of serious offence also enhances the objective seriousness of it. There is a significant need for any penalty to reflect the important sentencing purposes of denunciation and general deterrence. Furthermore, the community has a right to be protected from such serious criminality. At your plea hearing, I viewed the CCTV footage of the armed robbery, Exhibit C at your plea hearing. That footage graphically highlights the violent, dangerous and no doubt frightening nature of the armed robbery. Whilst no victim impact statement was provided by the store attendant, it can be reasonably assumed that he was frightened by your collective actions. As I have described, this armed robbery involved physical contact and aggression, at least on the part of you and your brother, and this further enhances the objective seriousness of this particular example of the crime of armed robbery. There was also a female bystander present for at least part of the incident, who no doubt was also adversely affected by what she saw and heard. I accept in many respects, that this example of armed robbery was fairly short-lived, and was unsophisticated in the sense that none of you were meaningfully disguised. However, in all the circumstances, this incident represents, in my view, a serious example of the crime of armed robbery.
Level of responsibility and culpability for your offending
14As I have stated, you acted together with your two co-offenders, and therefore collectively, in my view, bear responsibility for the armed robbery. In your case, I find that your role was anything but passive within this collective enterprise. Once your brother, Jahmyle, walked behind the counter and started taking cigarettes from the cabinet, and the store attendant tried to push him away from behind the counter, at which point your brother produced the axe and threatened the store attendant with it, upon Jahmyle and the store attendant struggling for control of the axe, you told the victim to calm down and that you would take what they wanted. You then went behind the counter and grabbed the store attendant around the neck from behind whilst your brother was continuing to struggle for the axe. This caused the store attendant to be unable to talk because of the pressure around his neck, and he was finding it hard to breathe. You then threw the store attendant to the ground, at which point Mr Nicholls took possession of the axe. This was, in my view, disgraceful behaviour on your part, undoubtedly to assist your brother in the commission of this armed robbery. Accordingly, I find that you played a pivotal role in the commission of this armed robbery, engaging in overt physical violence with the victim. In these circumstances, your culpability for the armed robbery must be seen as significant. I will turn to your counsel’s submissions with regards to any reduction in your level of culpability due to your disadvantaged background and pursuant to the Verdins mental impairment principles later in my reasons for sentence.
Personal circumstances
15You are 19 years of age, and were just 18 at the time of this offending. As at the time of the offending, you had no prior convictions.
16You were born in Australia, of Maori descent, with your father being from New Zealand. He apparently lost one leg in his teens due to a motorbike accident, has a history of unemployment, problematic alcohol consumption, an acquired brain injury, depression, and episodes of suicidal behaviour. He, along with your older brother, Jahmyle, and your younger brother, Joseph, have criminal histories. You are one of six children, with two older siblings and three younger. You currently live with your father, but also spend significant periods of time with your children who are in the care of their maternal aunt, Sarah Jane Everingham.
17Your background is a sad and traumatic one, being punctuated by accumulating grief and trauma from an early age. The incidents to which I am about to refer were set out in a detailed chronology tendered on your behalf at your plea hearing and marked Exhibit JK3.
18Your mother apparently left the family unit when you were aged seven, taking the younger daughter, Mary Ellen, with her. You have reported seeing your mother twice more after she left, with the last occasion being at Geelong Court when your mother appeared in a custody case regarding your sister, Mary Ellen. You have reported no fondness for your mother or desire to have any ongoing contact with her.
19Collateral records indicate involvement from Child Protection as early as 2010, in the context of arguments between your parents and subsequently due to protective concerns.
20Some three years later in 2013, at the age of ten, you witnessed the death of a friend, who was hit and killed by a bus. You also in that year witnessed your nine year old younger brother being hit by a car and subsequently hospitalised with serious injuries. You have described witnessing your younger brother’s accident as one of several traumatic experiences in your life. Around this time, you yourself were hospitalised following an accident involving a sliding door. According to your counsel’s chronology, concerningly, from this period of time when you were aged just ten, you took on a parenting role at home.
21Three years later in 2016, at the age of 13, you witnessed a serious suicide attempt by your father, finding him and believing him to be dead. This incident was apparently due to an overdose of medications. You have experienced subsequent episodes of trauma, being struck by a car as a pedestrian and hospitalised, and in that same year having a good friend killed by a shotgun blast, all when you were just 15 years of age.
22Unsurprisingly, you have described a very disrupted education, moving schools several times due to familial instability and residential relocation. Nevertheless, you managed to complete Year 11 level. You have had a very limited employment history, having only had a few months of employment putting brochures and flyers in letterboxes. You indicated a previous employment goal was to join the army, and you have also expressed an interest in carpentry or landscaping.
23You were raised in an environment in which alcohol was prevalent. Your father has apparently consumed alcohol at problematic levels for many years. Noting that at the time of your arrest for the current offending, you were located in proximity to a substantial quantity of alcohol, you have reported that alcohol became problematic in your life by the age of 18, as you would easily go through a slab a night. You have reported that you and your co-offenders would steal three or four cartons of beer and sometimes other alcohol and share them.
24You commenced smoking cannabis at the age of 12 and over time you have used cannabis daily, 3 to 4 grams, either in joints or bongs. You have reported also misusing prescription drugs including Tramadol, Valium, Codeine and Seroquel.
25When you were 15 years of age, you met Cheree Everingham, who apparently lived in a share house with a friend of your brother. Despite her then being 33 and you just 15 years of age, a sexual relationship commenced. Collateral records from Child Protection from June 2018 indicate protective concerns with regards to this relationship and Ms Everingham, who was apparently supplying you with cannabis notwithstanding your age.
26The relationship with Ms Everingham has borne two sons, Noah, born on 12 January 2019 when you were 15, and Declan, born on 11 May 2020 when you were 17. With regards to Noah, who is now three years of age, I have read and considered the diagnostic report from Irabina Autism Services dated 8 June 2022, Exhibit JK6 at your plea hearing. According to that assessment, it is considered likely that Noah meets the diagnostic criteria for Autism Spectrum Disorder with an accompanying language disorder, and without an accompanying intellectual impairment. In terms of the impact of Noah’s Autism Spectrum Disorder symptomatology, he presents at level 2 severity, requiring substantial support for the management of his difficulties with social interaction, reciprocity and establishing and maintaining relationships. Likewise, he presents at level 2 severity, requiring substantial support for the management of his restrictive/repetitive behaviours and sensory needs.
27According to your counsel in written submissions,[1] you have been a witness to and a victim of family violence – both perpetrated by each of your parents and also your brother, Jahmyle, who has had a destructive and unhealthy influence upon you. There was apparently a concern that your father would be incarcerated for violent offending when you were 14. You have also, it seems, been exposed to significant violence in the context of your relationship with Cheree Everingham, the mother of your children.
[1]Outline of Submissions on Plea dated 14 July 2022, exhibit JK4, paragraph 27.
28I turn now to a consideration of your mental health history. According to psychologist, Michael Crewdson, who assessed you and provided a report dated 13 July 2022 which was tendered at your plea hearing and marked Exhibit JK2, you meet the relevant diagnostic criteria for Complex Post-traumatic Stress Disorder and persistent Depressive Disorder, together with anxiety, Alcohol Use Disorder, elements of Social Anxiety Disorder or social phobia, and unusual personality traits including anti-social or dissocial elements. The relevant assessments by Mr Crewdson appear to have taken place on or about 12 July 2022.[2] Complicating the picture, in the report by Dr Ingrid Cranston, senior clinical psychologist with Orygen Youth Justice Mental Health Clinic, Dr Cranston indicates that you were referred to Orygen on 20 May 2021, approximately one month after being bailed in relation to this matter, and since September 2021, you have attended upon Dr Cranston, initially on a fortnightly basis and otherwise for semi-regular appointments. According to Dr Cranston, you did not, as at 27 January 2022, present with any acute mental health difficulties such as a psychotic illness or clear depressive disorder, and you did not present with any current condition which would warrant pharmacological treatment. Rather, in the opinion of Dr Cranston, you then had difficulties with anxiety and stress management. For the purposes of this matter, you were subsequently assessed by senior clinical and forensic psychologist, Dr Anne Davidson, from Forensicare, and her findings were contained in a psychology court report dated 6 December 2022, a report ordered by the Court. This is the most recent report available with regards to your mental health status. According to Dr Davidson, who interviewed you over approximately two and a half hours, you have no formal history of mental illness.[3] On a review of the relevant public mental health database, you had only one mental health contact for a brief psychiatric review by the Forensicare MHARS program at the Melbourne Magistrates’ Court on 21 December 2021, clearly after being bailed in relation to this matter. Documentation with regards to that review referred to you having a mild mental health problem with symptoms that had minimal impact on your daily functioning.
[2]Psychological Report by Michael Crewdson dated July 13 2022, paragraph 21.
[3]Psychological report by Dr Ann Davidson dated 6 June 2022, paragraph 25.
29I have already referred to the psychological report of Mr Crewdson. Mr Crewdson gave evidence at a further hearing before me on 15 July 2022, to amplify various aspects of his report. In evidence, Mr Crewdson essentially indicated that there was a nexus between your psychological difficulties and your offending behaviour, through a phenomenon described by him as “reaction formation.” As I indicated at the time of the hearing and have indicated to counsel subsequently, I found the evidence of Mr Crewdson in this regard neither discernible nor helpful in understanding the psychological underpinnings of your offending.
30Further complicating the picture with regards to your mental health, in the opinion of Dr Davidson from Forensicare, clinically you do not present with a major mental illness.[4] You present with some symptoms of anxiety and depression, but none at a level indicating a persistent disorder, as your mood is situationally variable. Your trauma history is complex and, given your youth, the consequences of this are dynamic but your apparent poor self-concept and self-reported lack of empathy – the latter claim more likely reflects the former – are components of your psychological difficulties. According to Dr Davidson, further assessment over time and not in the context of legal proceedings would provide a more useful diagnostic profile. According to Dr Davidson, many aspects of your psychological presentation, including anxiety, low mood, and problems with self-esteem for example, are not uncommon in young people trying to navigate a complex world as they individuate and separate from family, but in your case your difficult background setting continues to be your sociocultural environment and does not offer the support and exemplars you need to thrive.[5] In terms of any connection between your psychological functioning and your offending, according to Dr Davidson, whilst your current offending involved violence, that behaviour was not driven by attitudes supportive of violence and the commission of offending or as a preferential offence in other situations. Your offending primarily relates to acquisitive crimes and the risk factors addressed for general offending are broader and more relevant to your rehabilitative needs. According to Dr Davidson, it is not evident therefore that your offending was driven by a mental illness. You were misusing alcohol at the time and were despondent about your circumstances.[6]
[4]Ibid 44.
[5]Ibid 45.
[6]Ibid 48.
31Given the disparate psychological material in this matter, to the extent that there is any conflict, I favour the opinions of the expert from Forensicare, Dr Davidson. In my view, her report is detailed and cogent, and is broadly consistent with the Orygen report. For reasons that I have explained, there are aspects of the evidence of Mr Crewdson that I have found to be problematic. I am not satisfied to the requisite standard that at the time of the offending, you were suffering from any mental impairment pursuant to Verdins Principle 1, such that your moral culpability would be reduced. Nor am I satisfied that Verdins Principles 5 and 6 have applicability, given Dr Davidson’s opinion that prison itself would not likely weigh more heavily upon you than a normal person or aggravate your mental state.[7] According to Dr Davidson, any likely decline in your mental state would likely ensue due to your youth and being separated from your children, and the anticipated negative effect upon your older son which would weigh heavily upon you. For the sake of completeness, your counsel at the most recent plea hearing before me on 8 December 2022 maintained that Verdins Principles 3 and 4 applied given your mental impairment; that is, the moderation of the principles of general and specific deterrence. For the reasons that I have explained, I am not satisfied that you suffer from a mental impairment, and accordingly, in my view, neither of these Verdins principles have application in your case.
[7]Ibid.
32However, in my view, it would be artificial and quite simply unfair to ignore the impacts of your history of profound trauma and disadvantage in the sentencing process. You have been exposed to violence both in the family home and in the context of a significant relationship. You have been exposed to drugs and alcohol from a young age. You have experienced parental abandonment and the attendant instability that flows from this. You have been a victim of sexual exploitation from the age of 15, and have assumed parental responsibilities yourself from an extremely young age. I have no doubt that your education, employment, and more general life opportunities have been adversely impacted due to these circumstances. Pursuant to the well-known Bugmy principles,[8] your background of childhood deprivation is relevant to the sentencing process. It is likely, in my view, that your experience of growing up in an environment surrounded by alcohol abuse and violence has left its mark upon you, has compromised your capacity to mature and to learn from experience, is a feature of your makeup, and therefore remains relevant to the determination of the appropriate sentence. As articulated in the case of the DPP v Drake [2019] VSCA 293, in dealing with the Bugmy principles, such a background is relevant to an appropriate evaluation of your moral culpability.[9] I am satisfied, pursuant to these principles, that your subjective culpability for your offending is reduced by virtue of your deprived background and its impact upon you, and this serves to mitigate your sentence.
[8]Bugmy v The Queen [2013] HCA 37.
[9]Ibid 32.
Progress since being bailed
33Having been remanded in custody on 20 April 2021, you were granted bail on 21 April 2021, having spent two days in custody. You have now been on bail for almost 18 months. Overall I am satisfied that you have complied with the various conditions attached to your bail for a protracted period of time. Save for an allegation that in December 2021, you kicked a car mirror, that matter proceeding to mention at the Magistrates’ Court on 12 January 2023, you have not committed any subsequent offences, and for the sake of clarity, I do not take into consideration this pending matter, as it has not yet been determined.
34You have, since being granted bail, been subject to supervision through Youth Justice. At the various hearings throughout this year, I have received updated progress reports from Youth Justice, all of which have been on the whole positive with regards to your compliance and general progress. The most recent progress report is dated 1 December 2022, Exhibit JK10 at your hearing. As indicated in that report, you continue to reside with your father and younger brother in Brunswick West, but you spend a considerable amount of time at the home of your maternal aunt in Cranbourne as she has the care of your two sons, Noah and Declan, and you spend significant amounts of time with the children at this address. I accept that you are devoted to your children, who understandably are a primary motivator for you.
35You have complied, it seems, with the Community Correction Order imposed on 28 January 2022, that order being due to expire on 27 January 2023. You also received a work-based Community Correction Order on 26 August 2022, and I understand you have complied with that order as well. I was informed by your counsel at your most recent hearing, and I accept, that you have successfully fulfilled the requirements of the mental health condition of your primary Community Correction Order, and you are currently engaging voluntarily on a weekly basis in this regard.
36Returning to the most recent progress report from Youth Justice, whilst you have had difficulties with your attendances on Caraniche with regards to your substance use in recent months, you have apparently recently confirmed your willingness to still engage with Caraniche with regards to your substance use issues. Overall, according to Youth Justice, you have engaged positively with them, however there is capacity for continued improvement with regards to your engagement with Support Services. According to the progress report, although your attendances waned in the past month, you have recently restated your commitment to attend regularly with Caraniche. The author of that report, Mr Chris Saxton, Youth Justice case manager from North West Metropolitan Area, was present at your most recent plea hearing on 8 December 2022, and amplified the contents of the report. He indicated that you still have a large number of community work hours remaining on your Community Correction Order, but otherwise have been progressing well, both with Corrections and with Youth Justice. You have exhibited a recently changed attitude with regards to mental health support, on a background of previous reluctance to discuss your mental health issues. Consistent with my understanding, according to Mr Saxton, you have strong sense of duty to your children.
37Finally with regards to your progress on bail over the past 17 to 18 months, you have attended all County Court hearings in relation to this matter, often accompanied by your father who clearly remains supportive of you.
Sentencing factors
38Pursuant to the Sentencing Act 1991, I have taken into account various factors, principles and purposes in formulating an appropriate sentence in your case. I have, of course, had regard to the maximum penalty for the offence of armed robbery, the nature and seriousness of your offending, and your level of culpability for it. I have also taken into account in a general sense current sentencing practices for the offence of armed robbery, noting the seriousness with which courts have viewed this prevalent and inherently violent offence.
39I accept that you made admissions in your police interview following your arrest and you pleaded guilty at the earliest opportunity. There is a significant utilitarian benefit – saving the community the cost and inconvenience of a trial and sparing the victim and other witnesses the time and experience of attending court and giving evidence. Your plea of guilty is also an indicator of your acceptance of responsibility, your willingness to facilitate the course of justice and your remorse. The value of your plea of guilty is significantly enhanced given that it occurred in the context of the COVID‑19 pandemic and its unprecedented impacts upon the Court, which is experiencing unparalleled delays with regard to the disposition of matters. A significant discount pursuant to the decision of Worboyes is warranted.
40Turning more specifically to the issue of remorse, I am satisfied in all the circumstances that you are remorseful for your offending, warranting a further sentencing discount. Remorse is a positive matter with regards to your prospects of rehabilitation and the need for any penalty to reflect the sentencing purpose of specific deterrence. In your conversations with psychologist, Mr Crewdson, you clearly acknowledge the impact of your offending on your victim, and the fear that would have been involved. Likewise, when assessed by Dr Davidson from Forensicare, you recognised the harm to your victim through your offending.[10] Whilst I have certainly made an allowance for your remorse, as indicated at your most recent plea hearing, I remain somewhat troubled with your level of insight with regards to your offending. You apparently maintain that you were unaware that your brother, Jahmyle, was armed with an axe until it was produced, and you maintain that you only physically intervened with regards to the victim to prevent the situation deteriorating further, essentially maintaining that you restrained the victim rather than harming the him.[11] Having reviewed the materials, and in particular the footage of the armed robbery, I regard your physical intervention with regards to your victim as demonstrating your integral involvement in the facilitation of the armed robbery, and remain somewhat troubled that you do not appear to have wholeheartedly embraced this notion.
[10]Psychological report by Dr Ann Davidson dated 6 June 2022, paragraph 35.
[11]Outline of Submissions on Plea dated 14 July 2022, exhibit JK4, paragraph 7.
41Pursuant to well-established authority, your youth remains a prominent sentencing factor. You fall to be sentenced as a young offender, 18 at the time of your offending and 19 now. I accept, of course, that there is significant community interest in the successful rehabilitation of a young person to better ensure community protection. You have demonstrated your rehabilitative efforts over the past 17 or so months, and in the context of your most difficult background and your youth, the need to facilitate your rehabilitation remains a significant sentencing factor in this case. In all the circumstances, having regard in particular to your progress over the past 17 months in the context of your difficult background, you are clearly willing and able to engage with appropriate rehabilitative services. You have significant motivation with regards to your rehabilitation in the form of your two young children. In all these circumstances, together with your youth, I regard your prospects of rehabilitation as being reasonable, provided you engage appropriately with the specialist interventions needed in your case.
42Returning the issue of COVID‑19, I have made a mitigatory allowance for the hardships associated with the COVID‑19 pandemic in the custodial setting. As is now well-known, the circumstances of confinement, be they adult or juvenile, have been made more arduous given the impacts of COVID‑19, with restrictions on freedom of movement, access to visits, and access to therapeutic and rehabilitative activities, not to mention the increased anxieties understandably experienced by prisoners and detainees with regards to COVID‑19 in the custodial setting, given the compromised demographic. Furthermore and on a related issue, given the sentiments expressed by Dr Davidson from Forensicare in her report that your youth and being separated from your children and the anticipated negative effect upon your older son with autism would weigh heavily upon you, leading to a likely decline in your mental state, a mitigatory allowance is warranted due to the hardship of custody and its impact upon you in particular.
Legislative requirements with regards to armed robbery in company
43As I have previously stated, armed robbery in company is a Category 2 offence, such that s5(2H) of the Sentencing Act 1991 applies. Pursuant to that provision, I must impose a custodial sentence (which includes a term of detention in a youth justice centre), rather than a sentence of imprisonment imposed in addition to making a Community Correction Order, unless one of the exceptions set out in s5(2H)(a)‑(e) applies. Many of the submissions from earlier hearings have focussed upon these provisions. Sensibly in my view, in light of the recent report from Dr Davidson from Forensicare, the previous submissions relating to the exceptions contained in s5(2H)(c)(i) and (ii) are no longer pressed on your behalf. However your counsel maintains the submission that the exception contained in s5(2H)(e) of the Sentencing Act 1991 was satisfied in your case – that is, that there are substantial and compelling circumstances that are exceptional and rare that justify not making an order of imprisonment.
44The hurdle to be overcome with regards to s5(2H)(e) is a most significant one. As the Court of Appeal stated in the decision of Farmer,[12] this exception is a residual category of limited scope, and it represents a very high hurdle that will not often be surmounted. As the Court stated in that case:
“In many cases, given the type of offences within category 2, a term of imprisonment will be inevitable. In some cases, the operation of s5(2H) will be harsh. In other cases a term of imprisonment or youth detention would be entirely unjustified, counterproductive from the view point of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree paragraph (2H)(e) guards against the risk of injustice. But the stringency of the test cannot be avoided.”
In the more recent decision of Fariah,[13] this exception was made out due to a combination of circumstances. The Court in that case stated:
“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 necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception in s5(2H)(e). Indeed, in our view, the applicant’s appalling childhood experiences, coupled with his youth and other factors relied upon, were sufficient in combination to engage s5(2H)(e).”
[12]Farmer v The Queen [2020] VSCA 140, paragraph 52.
[13]Fariah v The Queen [2021] VSCA 213, paragraph 25.
45In Fariah, the offender was a young offender with no prior convictions, and had come to Australia via Somalia on an Orphan Relative Visa, with both of his parents having been killed when he was an infant, and an uncle who had subsequently assumed the role of father figure also being killed when the offender was aged nine. He lived in constant fear of his own death and lived in an environment where violence was a pervasive aspect of his existence, and where robbery and theft were normalised and highly prevalent.
46The operation of s5(2H)(e) was most recently considered in the case of Lombardo.[14] In that case, the Court of Appeal emphasised the stringency of the provision, and noted that the introduction of the phrase “exceptional and rare” in addition to the earlier phrase of “substantial and compelling” highlighted that the circumstances must not only be powerful, but also “wholly outside the run of the mill factors seen in offending of the relevant kind”.[15] According to Lombardo, the inquiry under s5(2H)(e) has two key steps – first, a consideration of whether there are substantial and compelling circumstances, which involves a consideration of whether those circumstances are “weighty and forceful or powerful.” In relation to this first substantial and compelling circumstances test, the Sentencing Act 1991 imposes a number of further conditions. I must regard general deterrence and denunciation of your conduct as being more important than other sentencing purposes such as just punishment, specific deterrence, rehabilitation and protection of the community from you. I must also give less weight to your personal circumstances than to the nature and gravity of the offence. I must not have regard to the matters in s5(2H)(c), which include your previous good character (other than an absence of convictions), an early guilty plea and prospects of rehabilitation. I must also have regard to Parliament’s intention that in sentencing an offender for a Category 2 offence, only an order for a custodial sentence should ordinarily be made.
[14]DPP v Lombardo [2022] VSCA 204.
[15]Ibid 63.
47The second critical step, if I find that the circumstances are substantial and compelling, requires me to consider whether those circumstances are also exceptional and rare. According to Lombardo, this phrase refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence. In relation to this statutory exception to mandatory imprisonment or detention, your counsel relied upon a number of factors – your history of trauma, your complex personality structure, your youth, your lack of criminal history, your current circumstances with regards to your young children and likely adverse consequences should you be imprisoned, and your positive rehabilitative progress since being bailed with both Youth Justice and Corrections. It was submitted that your circumstances were therefore unique. It was submitted that it is very rare that someone with your background could rehabilitate to the extent that you already have, and the level of trauma to which you have been exposed is most unusual, warranting an exception to mandatory imprisonment.
48Having carefully considered this matter, notwithstanding the restrictions contained in s5(2HC) of the Sentencing Act 1991, having regard to your youth, impoverished background, exposure to considerable trauma, and your rehabilitative efforts whilst on bail, including your maintenance of a relationship with your young children, I have formed the view that your circumstances are substantial and compelling. However, in my view, they are not, in addition, exceptional and rare.
49Having considered all of these matters relied upon, I am unable to conclude that your circumstances are of a kind wholly outside the run of the mill factors typical of the relevant kind of offending. You engaged in serious violent offending, through what can only be described as a serious example of the offence of armed robbery. A weapon was involved. You physically restrained and therefore harmed your victim. You have spent only two days in custody to date. Your level of culpability for this serious offending remains significant. There is no meaningful reduction in your level of culpability pursuant to any mental impairment. Whilst your personal circumstances both before and after your offending are indeed substantial and compelling, they are not wholly outside the run of the mill factors seen in offending of this kind.
50In my view, therefore, whilst you have a significant constellation of powerful mitigatory factors impacting upon the sentence to be imposed, they do not rise to the high level encapsulated by s5(2H)(e).
Custodial sentence required
51Having made my determination, I turn now to the type of confinement required in your case. In further submissions on sentence on behalf of the Director of Public Prosecutions dated 7 September 2022, Exhibit E, at your hearing, the prosecution conceded that it would be appropriate in all the circumstances that any sentence of confinement or imprisonment be served in a youth justice centre.
52In that regard I have read and considered the suitability report from Youth Justice dated 25 August 2022. Having considered the requirements of s32 of the Sentencing Act 1991 with regard to suitability for a youth justice centre order, you have been found suitable on both limbs, it would seem: that you have reasonable prospects for rehabilitation, and that you are particularly impressionable, immature, or likely to be subjected to undesirable influences in an adult prison.
53Accordingly, it is my intention to make a youth justice centre order in your case.
54In determining the length of the youth justice centre order, I have taken into consideration the principle of parity, noting that I sentenced your co‑offender Christopher Nicholls to a term of detention in a youth justice centre for 15 months. In my view, both you and Mr Nicholls have powerful mitigatory factors relevant to the sentencing exercise. Having considered this matter, I have concluded that there are grounds for a modest degree of disparity in your case in your favour, given your younger age than Mr Nicholls, your impoverished background and exposure to significant trauma, and most significantly your very positive progress whilst subject to a sustained period of bail, and the additional hardship upon you due to your separation from your two young children, including your eldest son, who has autism. In contrast to Mr Nicholls, I have found your rehabilitative prospects to be reasonable, and in those circumstances a moderate degree of disparity in your favour is warranted.
Sentence to be imposed
55As I have stated, you have engaged in a serious example of an inherently violent offence, such that the principles of general deterrence, moderated somewhat by virtue of your impoverished background, remains a significant sentencing purpose. Given your absence of prior convictions, and your plea of guilty and evidence of remorse, specific deterrence is of less importance in your case. Community protection, given the nature of your offence, remains important, and, as I have stated, the need to facilitate your rehabilitation to the degree appropriate, given your youth, is also significant.
56In relation to the offence of armed robbery, you are convicted and ordered to be detained in a youth justice centre for a period of 12 months.
57Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of two days’ pre‑sentence detention.
58Pursuant to s6AAA of the Sentencing Act 1991, had you pleaded not guilty but been found guilty of this offence, I would have imposed a sentence involving two years’ detention in a youth justice centre.
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