Director of Public Prosecutions v King
[2022] VCC 1012
•24 June 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-02009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAHMYLE KING |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2022; 18 February 2022; 1 April 2022; 31 May 2022; 16 June 2022 | |
DATE OF SENTENCE: | 24 June 2022 | |
CASE MAY BE CITED AS: | DPP v King | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1012 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Robbery; Attempted Burglary; Armed Robbery
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Dalgleish (a pseudonym) (2017) HCA 41; Worboyes v R [2021] VSCA 169; Azzopardi v R [2011] VSCA 372; Abela-Rogers v The Queen, Farrugia v The Queen [2022] VSCA 34
Sentence: 3 Years and 3 Months Imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Connolly | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr T. McCulloch | Ajak & Associates |
HIS HONOUR:
Introduction
1Jahmyle King, you have pleaded guilty before me to one charge of robbery, which carries a maximum penalty of 15 years' imprisonment; one charge of attempted burglary, which carries a maximum penalty of five years' imprisonment; and one charge of armed robbery, which carries a maximum penalty of 25 years' imprisonment.
2You have also admitted your criminal record.
Circumstances of the Offending
3The circumstances of your offending were set out in the Amended Prosecution Opening Upon 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.
4On the evening of 19 April 2021 at 7.05 pm you, together with your brother Mr Jacob King and Mr Christopher Nicholls, your co-offenders generally in this matter, attended the Liquorland store in Union Square, Brunswick West. The three of you entered the store and walked towards the cool-room, you walking past the store attendant, Mr Quinlin Retallack, waving to him. Mr Retallack was familiar with the three of you from previous incidents and stated, 'Hey, can you please not take anything?' Your brother Jacob replied, 'Don't worry, I'm not going to hurt you. We're just going to take some stuff'.
5All three of you entered the cool-room. A short time later your co-offenders walked out of the cool-room and left the store carrying slabs of alcohol without making payment. You then left the cool-room with alcohol in your hands, walking behind the counter where the store attendant was standing. You began taking cigarettes from the cabinet behind the store attendant, saying, 'Don't get in my way', and, 'Don't call the police or I'll jazz you'. You again stated, 'Don't get in my way', and continued taking cigarettes. You left the store briefly, before returning, walking behind the counter again and asking Mr Retallack, 'How do I open this?' before taking more cigarettes and leaving the store. Your conduct in this regard forms the basis of Charge 1 on the indictment, robbery.
6Later that evening at approximately 9.50 pm, you, together with your two co-offenders, attended the Brunswick City Soccer Clubrooms on Peacock Street, Brunswick West. The three of you attempted to gain entry into the clubrooms by using a small axe to try to open the roller door on the northern side of the building, however, you were unsuccessful. Your conduct in this regard forms the basis of Charge 2 on the indictment, attempted burglary.
7Shortly after 10.04 pm on the same evening the three of you attended the IGA Supermarket at 490 Albion Street, Brunswick West. CCTV footage was captured of your following conduct, it being played in court at your further plea hearing on 31 May 2022. The footage depicts you wearing a black jumper with white writing, your brother wearing a blue jumper and Mr Nicholls wearing a white jumper. You entered the store, walked past the store attendant, Mr Surya Guttikonda, who was standing behind the counter, and walked down an aisle where the three of you took bags of potato chips off the shelf and started placing them in your bags.
8Mr Guttikonda observed this, approaching the three of you and asking you to return the items to the shelf and leave the store. You walked towards Mr Guttikonda asking him, 'Are you going to hit me?' Your co-offender, Mr Nicholls, then stated, 'Let's start, let's start'. Mr Guttikonda put his hands up to stop you approaching any further. He then felt an object similar to a hammer under your clothing, before retreating to behind the counter. Together the three of you followed Mr Guttikonda to the counter. You walked behind the counter and began taking cigarettes from the cabinet, with Mr Guttikonda attempting to push you away.
9You then produced a small axe from under your jumper and threatened Mr Guttikonda, who then grabbed the axe, leading to a struggle between the two of you for possession of it. During this struggle your co-offender, Jacob, went behind the counter and grabbed Mr Guttikonda from behind around the neck, telling him to calm down and that the three of you would take what you wanted from the store. At this time Mr Guttikonda was unable to talk because of the pressure being applied to his neck and was finding it hard to breathe. Your brother threw him to the ground whilst your co-offender, Mr Nicholls, took possession of the axe, hitting it on the counter three times.
10You then tried to open the cash register, containing an unknown amount of cash, but were unsuccessful so you took it with you. Before the three of you left the store with cigarettes and the cash register, a female bystander spoke to the three of you, questioning whether you were doing a good thing. You and the others replied stating it was none of her business. Your conduct in this regard forms the basis of Charge 3 on the indictment, armed robbery.
11The next day, 20 April 2021, police executed a search warrant at you and your brother's address in which Mr Nicholls, your brother and you were located in the garage, arresting the three of you. Your brother and Mr Nicholls were arrested without incident in the garage, both wearing the same jumpers as captured in the CCTV footage from the IGA supermarket the night before. You, however, tried to flee through the house but were stopped by multiple police officers in the laundry. As a result of the search at your premises police located various items, including multiple axes, cigarettes, backpacks containing alcohol, a baton and a Ziploc bag containing what was believed to be crystal methamphetamine, amongst other items.
12The three of you were interviewed on this day, you denying all allegations, claiming that you were at home with your father and brother on the evening of the alleged offending, 19 April 2021. Your co-offenders both said they could not recall much of the evening of 19 April 2021 due to their intoxication, also claiming they were at your residence, however, both identified themselves from the CCTV stills, with your brother also identifying you. The three of you were all remanded in custody on 20 April 2021. Your brother Jacob and Mr Nicholls were granted bail on 21 April 2021 and 27 April 2021 respectively, however, you have not left custody since the date of your remand, accruing 430 days' pre-sentence detention.
Victim Impact
13No victim impact statements were obtained in relation to this matter, though it can be assumed that your serious criminal conduct, particularly in relation to the armed robbery at the IGA Supermarket, caused considerable fear and apprehension to your victim, Mr Guttikonda, who was simply going about his business working in a retail outlet.
Nature and seriousness of the offending
14Turning now to the nature and seriousness of the offending. All three incidents took place between 7.05pm and 10.04 pm on 19 April 2021, all in the Brunswick West area, and all whilst in the company of your brother, Jacob King, and Christopher Nicholls. Overall, your conduct must, in my view, be seen as an intense spree of offending, escalating in seriousness to the armed robbery offence at 10.04 pm.
15Turning firstly to the robbery at Liquorland, whilst no victim impact statements were obtained in this matter, it can be assumed that your victim in this incident, the store attendant, who was entitled to feel safe at work, was, at the very least, unnerved by your actions. As is clear from the prosecution opening, the victim was familiar with the three of you from previous incidents. That he had to endure criminality in these circumstances increases the seriousness of this incident. As was the case with regards to your victim for the armed robbery, this was essentially a soft target offence and the prevalence of this type of offence also enhances the objective seriousness of it.
16Armed with alcohol from the cool-room, you walked behind the counter to where the victim was standing, showing a degree to which you were determined in your actions and brazen in your conduct. Your words to your victim, whatever the meaning of the phrase 'I'll jazz you', were ominous. Significantly, after leaving the store, you returned shortly afterwards, again walking behind the counter and grabbing more cigarettes before leaving. This was, in my view, a concerning example of the crime of robbery.
17Turning to the attempted burglary offence, in my view this was a fairly rudimentary example of such a crime, committed some two and three-quarter hours after the robbery. In my view it represents a reasonably low-level example of the crime of attempted burglary.
18Turning finally to the armed robbery offence, this is clearly the most serious of the offences, as reflected in the statutory maximum penalty, 25 years' imprisonment. You were armed with a dangerous implement, an axe. You were in company with your brother Jacob and Mr Nicholls, as was the case with regards to the robbery offence, no doubt enhancing the degree to which your victim felt helpless and no doubt afraid as a result of your conduct. The seriousness of this example of armed robbery is reflected in the fact that it is a Category 2 offence due to the relevant definition contained in the Sentencing Act 1991, due to the fact that you were in company, requiring a term of imprisonment to be imposed unless one of the enumerated special reasons are established.
19Having viewed the footage of the armed robbery incident it is clear, in my view, that you are most definitely an active participant in this offence, threatening your victim with the axe and then engaging in a struggle with him for control of the axe. Your victim in this matter was simply working and was entitled to feel safe in this environment. Collectively, your behaviour, and in particular your treatment of the staff member, was appalling. There is clearly a bystander present for at least part of the incident, who no doubt was also adversely affected by what they saw and heard. Whilst in many respects this example of armed robbery is fairly unsophisticated, for example there were no disguises utilised by any of you, it nevertheless, in my view, represents a serious example of the crime of armed robbery, a matter conceded by your counsel at your plea hearing.
Level of responsibility and culpability for your offending
20Turning now to your level of responsibility and culpability for your offending. By virtue of your background and some aspects of disadvantage and deprivation, the details of which I will shortly outline, I accept that there is a degree to which your moral culpability for the offending is reduced in accordance with the well‑known Bugmy principles. However, your counsel did not submit that your moral culpability was otherwise reduced due to any impaired mental functioning in accordance with the well-known Verdins principles. Your offending on this day took place just three days after your release from youth detention. This fact alone very much elevates your culpability for your offending.
21It seems that you could not last more than three days before returning to what I would describe as a well-worn pattern of behaviour on your part. You have a significant and concerning criminal history for such a young man. Your very first prior appearance in the Children's Court in September 2017 was for offending, including armed robbery. You have other prior findings of guilt for aggravated burglary, various dishonesty offences and, significantly, you have multiple prior findings of guilt for robbery.
22Clearly previous penalties, which have included periods of detention in a Youth Justice Centre, have not deterred you from reoffending, and the fact that you have reoffended in such a serious and concerning manner so soon after your release from youth detention, with your significant criminal history, elevates, in my view, your culpability for your offending. Your culpability in particular for the armed robbery offence, committed just hours after the attempted burglary and robbery, is, in my view, significant. You have instructed that at the time you were affected by drugs and alcohol, which in no way reduces your level of culpability for your offending.
Personal circumstances
23I turn now to your personal circumstances. You are just 20 years of age, turning 21 in January next year. You were only 19 at the date of your offending. An analysis of your background details reveals an ongoing theme of a lack of stability in your childhood. You were born in Werribee but raised in various places, including Corio, Perth, Werribee and Altona. Your parents separated when you were aged six. You have no relationship with your mother. In your formative years up to about the age of 13 you were shifted back and forth between your father in Victoria and your maternal grandmother in Western Australia. Your father apparently has mental health challenges, and needs the assistance of a disability support worker, and had a limited ability to provide parental supervision and guidance during your formative years.
24You have an older half-sister, Heidi, aged approximately 21, and three younger brothers, your co-offender Jacob, another brother Joseph and a third brother Marley. You also have a younger sister, Mary-Ellen, aged approximately 16.
25In terms of the circumstances in which you came to reside with your maternal grandmother in Perth, apparently after your parents' separation she offered to take care of one of the children and chose to look after you. From 2010 up until 2015 you therefore spent extensive periods with your grandmother, separated from your father and siblings. Your grandmother has reportedly been a positive influence on your life, however, was quite strict which you did not like. Unfortunately, however, during this period, in the context of some time spent in Victoria with your father, you were apparently exposed to domestic violence through your father's second marriage in 2013-2014.
26Your problematic behaviours appeared to have commenced in 2016 after returning from your last period of care in Perth with your grandmother. You returned to live with your father, who was having difficulties controlling your behaviour and enforcing boundaries.
27Perhaps unsurprisingly, given the disruption and instability in your childhood years, you have had a disrupted schooling, attending numerous primary and secondary schools before disengaging from the Year 8 level. Corresponding with your return to Victoria in 2016, you have reported that your drug use commenced halfway through 2016 when you began smoking marijuana, initially about once per week. You also commenced drinking alcohol at this same time. You have reported to psychologist Warren Simmons, as evidenced in his report dated 25 January 2022, tendered at your plea hearing and marked Exhibit K2, that at the age of 14 you were introduced to methamphetamines by a friend, and whilst your smoking of this drug was not frequent in the beginning within 12 months it had increased to daily and peaked at about 1.2 grams per day, continuing until your incarceration in early 2021.
28Although you have indicated that you generally smoke this drug, you have reported commencing intravenous use at the age of 17. You have also reported limited use of GHB in 2019 and that once or twice you have smoked heroin.
29Your criminal history commenced in September 2017 when you were aged 15 and, as I have stated, for such a young person your history is indeed concerning. You have engaged in serious offending, including armed robbery, robbery on multiple occasions, aggravated burglary, various dishonesty offences, recklessly causing injury to a custodial officer and on multiple occasions you have breached court orders. Sadly, for such a young person, you appear to have spent much of the past five years going in and out of youth detention. None of the prior sentences, which have included both therapeutic orders and sentences of detention, appear to have deterred you from your ever escalating cycle of offending.
30At the age of 16 you met a young woman, Josie, and commenced a relationship with her, and together you have a son, Jaylen, now aged approximately two and a half years old. Jaylen is apparently now in foster care due to drug-related issues relating to Josie, who has also been incarcerated. You have, it seems, maintained contact with your son, who presents as a significant motivating factor for you with regards to your long-term rehabilitation.
31You have reported that the trigger for your current offending related to your inability to manage your own emotional distress following your inability to access your son after you were released from youth detention three days prior to your offending, causing you to resort to alcohol and drug use and then the offending, which was apparently motivated by a desire to obtain more alcohol. Unfortunately, these sentiments were not expressed to psychologist Warren Simmons in relation to queries regarding your motivation for the offending. You simply indicated to Mr Simmons that you were both alcohol and drug affected at the time of the offending.[1] According to Mr Simmons, your offending occurred when you were substance affected, and in the company of peers who were a negative influence, and the offending involved your attempt to obtain further alcohol.[2]
[1]Psychological Report by Mr Warren Simmons dated 25 January 2022 at Paragraph 24.
[2]Psychological Report by Mr Warren Simmons dated 25 January 2022 at Paragraph 31.
32I have already referred to the reduction to some degree of your moral culpability due to your disadvantaged background pursuant to the Bugmy principles. According to clinical neuropsychologist, Dr Frank Muscara, in the Children's Court Clinic report dating from September 2017, you have been exposed to domestic violence, disrupted parental attachments, separation from your immediate family and a disrupted academic career. You have disrupted attachments with your mother and stepmother, as well as the frequently changing care arrangements with your grandmother and father, meaning that you have not had consistency in carers and potentially you have been exposed to inconsistent boundaries and expectations regarding your behaviour.
33Likewise, in the most recent pre-sentence report relating to your suitability or otherwise for a Youth Justice Centre order authored by Case Manager Nicole Ruiz, dated 23 May 2022, Ms Ruiz indicates that you present with a significant trauma history influenced by witnessing family violence from a young age, disrupted parental attachments, separation from family and disrupted education. Based upon these reports, it is clear that your upbringing has been disrupted, warranting a reduction in your moral culpability for your offending.
Sentencing factors, principles and purposes
34The Sentencing Act 1991 requires me to take into consideration various factors, principles and purposes when formulating an appropriate sentence in your case. I have already referred to the relevant maximum penalties, the nature and seriousness of your offending and your level of culpability for it, and your previous character and matters personal to you.
35In formulating an appropriate sentence in your case I have had regard to current sentencing practices, particularly with regards to the most serious offence of armed robbery. Clearly, previous sentencing decisions of this and other courts have highlighted the prevalence of the crime of armed robbery, and the need for any penalty to reflect the important sentencing purposes of denunciation, general deterrence and community protection. While sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past,[3] and current sentencing practices represent just one of the relevant sentencing factors to be considered, clearly, sentences for the crime of armed robbery have involved significant sentences of imprisonment of some duration.
[3]DPP v Dalgleish (a pseudonym) (2017) HCA 41 at paragraph [83].
36Notwithstanding that you initially denied the allegations when interviewed by police on 20 April 2021, your matter resolved to a plea of guilty at the committal mention stage on 15 September 2021 and your matter was first listed for plea in this court on 2 February 2022. In those circumstances I accept that your plea of guilty was entered early in the proceedings warranting a sentencing discount. As a result of your early plea of guilty, witnesses have been spared cross‑examination and the community has been spared the costs and delays associated with contested proceedings.
37Your plea of guilty in these circumstances reflects your willingness to facilitate the course of justice and demonstrates your acceptance of responsibility. Your plea of guilty, therefore, has a significant utilitarian benefit. Significantly, you entered your plea of guilty in the midst of the COVID‑19 pandemic. Given the unprecedented challenges to the administration of criminal justice in this State due to the scourge of COVID‑19, and the consequential delays to criminal trials in this State, your plea of guilty has a significantly enhanced utilitarian benefit, having regard to the significant backlog of cases currently before the courts. An enhanced sentencing discount is therefore warranted.[4]
[4]Worboyes v R [2021] VSCA 169 at paragraph [35].
38I am satisfied that a further sentencing discount is warranted due to your remorse for your offending. In addition to the plea of guilty, in my view there is an evidentiary basis for a further discount on this basis due to the psychological report of Warren Simmons dated 25 January 2022. In describing your offending behaviour to Mr Simmons you articulated an awareness of the impact of your behaviour on the employees who were your victims. According to Mr Simmons:
'Certainly, it would appear that Mr King does have some insight into his behaviour although his ability to vocalise how this behaviour may have impacted on others is limited.'[5]
[5]Psychological Report by Mr Warren Simmons dated 25 January 2022 at Paragraph 24.
39Although limited, it appears that some mitigatory allowance is warranted due to your remorse for your behaviour.
40On 20 April 2021, when you were aged just 20, you were remanded in adult custody and you have remained in this environment since then, a period of 430 days. Particularly for a young offender with your disadvantaged background I accept that this is a matter of some significance. You have spent the entirety of your remand period in custody in the context of the COVID‑19 pandemic. I am satisfied that the circumstances encountered by you in custody in this context warrants a further mitigatory allowance. As is now well known, the custodial setting has been significantly impacted by the pandemic.
41To varying degrees, given the unpredictable nature of the pandemic, there have been significant restrictions in the custodial setting with regards to lockdowns, prison visits, access to employment, access to programs, services and therapies. Quarantining and isolation have become features of the custodial setting. All prisoners and their families have had to live with the ongoing stress and anxiety associated with the risks should COVID‑19 enter the custodial environment, with its compromised demographic. In your case, the impacts of COVID‑19 have been real and significant.
42Throughout your period in custody you have had a lack of access to programs, visits, employment and other therapeutic activities. As highlighted from the remand incident tendered at your plea hearing and marked Exhibit K6, you have been moved on multiple occasions, from the Melbourne Assessment Prison, Port Phillip Prison, Kareenga, the Metropolitan Remand Centre and back to Port Phillip Prison where you are currently located. I was advised and accept that prison movements invariably involve quarantine periods of up to 14 days, and I accept that on multiple occasions you have been subjected to isolation and restrictions attendant upon the quarantine requirements.
43Further exacerbating your difficulties in the custodial environment, on 23 January this year you contracted COVID‑19 requiring a further period of isolation. Whilst I understand you were initially medicated for depression upon your entry into the prison system, you apparently ceased taking that medication in November 2021. Nevertheless, I accept that you have psychological fragilities and, in combination with your youth, I have no doubt that your period in adult custody has been made more burdensome due to the COVID‑19 pandemic, warranting a mitigatory allowance in sentencing.
44I indicated earlier that on 20 April 2021 when you were aged 20 you were remanded in adult custody. I correct that now. You were still aged 19. At the age of 20, and notwithstanding your extensive criminal history, the fact remains that you fall to be sentenced as a young offender. It is, in my view, a matter of considerable significance to consider a sentence of imprisonment for such a young person, notwithstanding the seriousness of your offending. It is clear from well-established authority that any sentence should appropriately prioritise the need for rehabilitation with regards to young offenders.[6] In my view your youth remains a most significant mitigatory factor in sentencing, very much impacting upon the nature and extent of punishment which can be considered just in all the circumstances.
[6]Azzopardi v R [2011] VSCA 372.
45Whilst any sentence I impose should appropriately prioritise the need for your rehabilitation, sadly, in my view, your prospects for rehabilitation must be seen as guarded notwithstanding your youth. As I indicated at your plea hearing to your counsel, the conclusion from psychologist Mr Simmons with regard to your prospects for rehabilitation is tepid at best. Mr Simmons concludes:
'Mr King does have some prospects for rehabilitation given that he is relatively young. However, he was also aware that he will need to cut ties with antisocial peers which may be more difficult, especially if he does not have significant supports upon release.'[7]
[7]Psychological Report by Mr Warren Simmons dated 25 January 2022 at Paragraph 33.
46Furthermore, in the pre-sentence report with regards to suitability for a Youth Justice Centre order, Ms Ruiz concludes that your prospects of rehabilitation are questionable, and at this stage could not be considered as reasonable.[8] As indicated by Ms Ruiz, this is your third time in adult custody. You have an extensive and entrenched criminal history from a young age. You have been sentenced to seven Youth Justice Centre orders and four community based orders since 2017, all of which have resulted in breach action due to non‑compliance and further offending.
[8]Pre-Sentence Report for Suitability of a Youth Justice Centre Order by Nicole Ruiz dated 23 May 2022 at Page 5.
47You have been involved in some 32 behavioural incidents whilst in the Youth Justice Centre environment. You have been involved in some behavioural incidents since your remand in custody for this matter, the details of which were set out on page 2 of Ms Ruiz's report. Whilst your stated intentions with regards to re-engaging with your young son, Jaylen, are commendable, there are clearly challenges ahead in that regard. As evidenced from the contact between Youth Justice and your father for the purposes of the recent Youth Justice Centre assessment, your father remains supportive of you, and has indicated that you are always welcome to come home and he will continue to support you to the best of his ability, however, again clearly there are challenges ahead for you in this regard.
48In my view your prospects of rehabilitation are guarded, and very much dependent on your ability and willingness to engage with expert intervention with regards to your longstanding drug and alcohol issues and your associated antisocial behaviour.
Submissions
49Notwithstanding that you have previously been assessed as unsuitable for a Youth Justice Centre order, your counsel submitted that such an order would be appropriate in this case. Noting the realistic hurdles to such a disposition, I ordered that you be assessed as to your suitability for a further Youth Justice Centre order and, as I have indicated, a report was produced by Nicole Ruiz dated 23 May 2022. That report was detailed and referred to your history within the Youth Justice setting and your more recent history in the adult custodial setting.
50Ultimately Ms Ruiz found you not suitable for a Youth Justice Centre order and indicated that neither limb of s32(1) of the Sentencing Act 1991 had been met in her view. That is, your prospects for rehabilitation could not be seen as reasonable and you cannot be considered to be particularly impressionable, immature or likely to be subject to undesirable influences in an adult gaol. In particular, whilst Ms Ruiz indicated that you are assessed as being immature, you do not appear vulnerable or impressionable in adult custody as some of the incidents that you have been involved in pertain to standing over other vulnerable prisoners for their belongings and assaulting them. Ms Ruiz acknowledged that your behaviour may be a way to impress others. Ultimately, according to Ms Ruiz:
'Youth Justice assess that there is insufficient information to suggest that there are reasonable prospects for rehabilitation present that can be fostered to inflict significant change in Jahmyle's offending patterns and trajectory. Furthermore, while some information provided suggests Jahmyle may be easily influenced by his peers, Jahmyle does not meet the threshold to suggest he is impressionable, immature or likely to be subject to undesirable influences in adult custody. It is highlighted Jahmyle has been residing in adult custody since 20 April 2021.'
51In submissions before me your counsel, Mr McCulloch, pointed to earlier sentiments contained within the report with regard to potential influences from other inmates, and your acknowledgment that, although you did not want to engage in negative behaviours, you reported that inmates were pressuring you to engage and you felt the need to impress them.[9] Mr McCulloch also submitted that the report did not adequately take into account your positive progress in the final six months of your time in the Youth Justice setting, however, this sentiment was disavowed by Ms Ruiz at your further plea hearing on 31 May 2022, where she indicated that all periods were taken into consideration for the purposes of the Youth Justice assessment.
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52The prosecution in this case submitted in all the circumstances that a sentence of imprisonment with a parole eligibility component was the appropriate sentence.
Conclusion
53In my view, given the nature of your offending and your criminal history, the sentencing principles of general and specific deterrence, denunciation, just punishment and protection of the community all must be given some emphasis in the sentencing exercise. Given your youth, rehabilitation must remain an important sentencing purpose. As referred to by your counsel, referring to the decision of Abela-Rogers v The Queen, Farrugia v The Queen, a 2022 decision of the Court of Appeal, you engaged in what could be described as 'serious, grown‑up offending', albeit you are chronologically not far from the Children's Court jurisdiction.[10]
[10]Abela-Rogers v The Queen, Farrugia v The Queen [2022] VSCA 34 at paragraph [42].
54In my view, taking into consideration all relevant sentencing factors, principles and purposes, and consistent with the parsimony principle, there is no alternative to a sentence involving your confinement. Having considered the criteria set out in s32(1) of the Sentencing Act 1991, I have concluded that a sentence involving your detention in a Youth Justice Centre is not appropriate as the criteria are not met. Put simply, you have had ample opportunities in the Youth Justice setting. In my view your offending is simply too serious, your prospects of rehabilitation are too compromised and, in my view, you are not sufficiently immature, vulnerable or impressionable so as to warrant yet a further sentence involving your detention in a Youth Justice Centre. In my view, the only appropriate sentence in your case, notwithstanding your youth, involves a sentence of imprisonment.
55In my view, given the distinct criminality involved in the three incidents covered by your offending, there is a need for a modest degree of cumulation between the offences, subject as always to the overarching principle of totality.
56In my view the sentence to be imposed, in particular due to your youth, can be ameliorated by virtue of a substantial parole eligibility component. The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation, through conditional release when appropriate. A non‑parole period is the minimum time that I determine justice requires you must serve having regard to all of the circumstances. In this case, due to your youth, I will make a significant allowance for parole in the sentence I am about to impose.
Sentence
57Mr King, in relation to the charges on the indictment, you are sentenced as follows:
· on Charge 1 on the indictment, robbery, you are convicted and sentenced to 12 months' imprisonment;
· on Charge 2 on the indictment, attempted burglary, you are convicted and sentenced to six months' imprisonment;
· on Charge 3 on the indictment, armed robbery, you are convicted and sentenced to three years' imprisonment. This is the base sentence.
58I order that two months on Charge 1 and one month on Charge 2 be served cumulatively upon each other and upon the sentence imposed on Charge 3, making a total effective sentence of three years and three months' imprisonment. I order that you serve a period of two years' imprisonment before becoming eligible for parole.
59Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 430 days has been served by way of pre‑sentence detention and I order that this period be administratively deducted from your sentence.
60Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty, but been found guilty at trial, I would have imposed a total effective sentence of four years and six months' imprisonment, with a non‑parole period of three years.
61Finally, I will make the disposal order sought by the prosecution, the making of that order not being opposed by you.
62Turning firstly to you, Mr Connolly, any ambiguities with regards to the sentence or have I missed anything?
63MR CONNOLLY: No, thank you. As Your Honour pleases.
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