Director of Public Prosecutions v Leese

[2025] VCC 1081

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

 Revised

Not Restricted

 Suitable for Publication

CR 24-01971

CR 24-02229

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYDEN LEESE

and

ROMESH PERERA

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2025 and 11 June 2025
DATE OF SENTENCE:	30 July 2025
CASE MAY BE CITED AS:	DPP v Leese & Anor
MEDIUM NEUTRAL CITATION:	[2025] VCC 1081

REASONS FOR SENTENCE

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Subject:  CRIMINAL Law - Sentence

Catchwords:   Plea of Guilty – Aggravated Carjacking – Recklessly Cause Injury – Theft – Obtaining Property by Deception

Legislation Cited:                  Sentencing Act (Vic) 1991

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571 - R v Verdins (2007) 16 VR 269 – 1 Buckley v The Queen [2022] VSCA 138 - 2 Xian v The King [2024] VSCA 227.

Sentence:2 Years and 10 Months Imprisonment, 3 years and 3 Months Youth Justice Centre

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar	Office of Public Prosecutions
For Accused Leese	Ms J. Clark	Greg Thomas Barrister & Solicitors
For Accused Perera	Ms J. McColl	Victorian Legal Aid

HIS HONOUR:

1Hayden Leese and Romesh Perera, you have each pleaded guilty to aggravated carjacking on separate indictments, although you are co-accused and co-offenders in respect of this charge. 

2Hayden Leese, you have also pleaded guilty to causing injury recklessly, two counts of theft and you have admitted the relevant summary offences of possessing a controlled weapon without excuse, unlicensed driving, contravening Family Violence Interim Intervention Order, failing to ensure a passenger not in the seat of another and using a mobile phone while driving.  Romesh Perera, you have also pleaded guilty to theft and two charges of obtaining property by deception.  The maximum penalties are:

Aggravated Burglary – 25 years

Causing injury recklessly – 5 years

Theft – 10 years

Obtaining property by deception – 10 years

Possessing a controlled weapon – 1 year

Unlicensed driving – 6 months

Contravene FV Interim IVO  - 2 years

Failure to ensure passenger not in seat of another – 10 p.u.

Use mobile phone – 10 p.u.

3Aggravated carjacking is a Category 1 offence.  Accordingly, it has a mandatory minimum non-parole period of three years unless a special reason is made out pursuant to s.10A.  Hayden Leese, you have admitted a number of Children's Court prior convictions.  Romesh Perera, you have a very limited criminal record, disclosing a without conviction disposition which does not appear to be particularly relevant for these purposes.

Circumstances of Offending

4Hayden Leese, you were 18 at the time of the offending.  Romesh Perera, you were 38 at the time of the offending and are now 39.  The circumstances of each of your offending are set out in the Summary of Prosecution Opening dated 17 April 2025 which forms part of these Reasons for Sentence. 

5On 12 May 2024, you Hayden Leese called the Punjab Cab Network to book a cab and got put through to cab driver and victim, Mr Singh.  You arranged to be picked up from Leggatt Street, Melton South to be taken to the nearest train station.  Earlier, you had both been stranded at Melton train station without money in the company of co-accused Mr Nowabalavu and two others.  PSOs at the station suggested you call an Uber or a taxi. 

6There was some sort of plan to either leave the cab without paying after your journey or more likely on my assessment, plan to hijack the vehicle which is what happened; certainly, from your point of view Mr Leese.

7When your victim arrived at your location, you, Mr Perera and Mr Nawabalavu hid, two others got in the back of the vehicle, you Mr Leese got in the front passenger seat.  You, Mr Perera then came out of the bushes.  Immediately after sitting down, you Mr Leese pulled a large machete from your pants, brandishing it and waving it towards your victim.  You were yelling, 'Get the fuck out, get the fuck out.'  You stabbed Mr Singh on the left side of his stomach, leg and upper left arm, with the machete bending and not puncturing his clothing. 

8Your victim tried to cover himself and you hit him on the back of the head with the machete causing a laceration.  That is Charge 2.

9You, Mr Perera, had a small pair of scissors and showed them to Mr Singh as you, Mr Leese, tried to force the victim out of the cab. 

10Your victim managed to undo his seatbelt and get out.  You, Mr Leese, jumped into the driver's seat.  You, Mr Perera, jumped into the passenger seat. 
Mr Nawabalavu then got into the rear seat.  Mr Singh tried to open the door again.  You slammed it shut, Mr Leese.  Mr Singh kept hanging on and you, Mr Leese, threatened to kill him if he would not let go.  You drove off and
Mr Singh raised the alarm. 

11An ambulance attended and Mr Singh was conveyed to Footscray Hospital where his wounds were treated.  His injuries were photographed and exhibited on the plea.  He suffered a five-centimetre horizontal laceration on his head and lost about 100 millilitres of blood.  He received six staples to close his head.  He was discharged later that day. 

12CCTV footage of the incident was also captured and tendered on the plea and I viewed that footage.  The footage revealed a very violent and shocking incident.  You, Mr Perera later stole petrol from a petrol station whilst a passenger in the vehicle.  Later that day, you used Mr Singh's stolen GM Cabs card to make two separate purchases.  They are Charges 3 and 4 on your indictment.

13You, Mr Leese, were observed stealing number plates from another vehicle early on the morning after the theft.  You attached them to the cab later that night and you also stole petrol whilst in control of the cab.  CCTV footage also shows you driving in breach of road safety rules.  I refer to summary Charges 12 and 13. 

14You were arrested on 29 May last year at your mother's address, that is you Mr Leese.  Your attendance was in breach of a Family Violence Interim Intervention Order.  Mr Perera, you were arrested and remanded on 15 August.

Objective gravity

15Aggravated carjacking is a Category 1 offence and carries a three-year minimum non-parole period unless a special reason exists.  The maximum penalty is 25 years imprisonment.  The objective gravity of your offending is reflected in those strict and severe provisions.  These provisions reflect the community's denunciation and concern with offending, such as each of yours. 

16Your commission of this offence is a serious example of the offence of aggravated carjacking and several serious aspects of the offending include;

·     the manner in which your victim was lured to the vicinity,

·      the carjacking was committed in company at night,

·     brandishing and use of the machete to inflict injury was a particularly terrifying aspect of the offence. 

You, Mr Leese, bear most responsibility for that conduct and you showed very little restraint in your use of such a dangerous weapon to terrify and subdue your victim.  You also threatened your victim at the same time to effect the crime in a most aggressive and violent way.  The vehicle was kept and used for a protracted period of time.  The impact upon the victim will be lasting.

Personal Circumstances

17Turning to your personal circumstances Mr Leese, you were 18 at the time of the commission of these offences.  You have a Children's Court history involving some serious offending including armed robbery.  You are now 19.  You are the fifth of six children born to your parents.  You remain close with your mother and younger sister.  You identify as Aboriginal through your maternal grandmother, your mob is Wiradjuri.  You were born in Blacktown, west of Sydney. 

18I accept that departmental records provide a basis for being satisfied that your background was one of profound disadvantage and I accept that the records establish that you grew up in a turbulent environment and that you were exposed to family violence growing up.  I accept these matters on the basis of the Youth Justice Bail Service report dated 14 August 2024. 

19Your parents separated when you were around eight years of age.  Your father was a violent man. He is also serving a sentence for offending against your three older sisters.  You moved to Horsham with your mother and younger sister when you were eight or nine.  Your mother re-partnered and you were again exposed to violence due to the new relationship.  Child Protection became involved with you and your younger sister. 

20Over the years that followed from eight, nine or so to 17, you moved between foster homes, family members addresses and residential care whilst in the custody of Child Protection.  You always wanted to return to live with your mother and frequently ran away from care to do so.  Throughout your developmental years, whether in care or at home, you were exposed to negative influences and substance use.  You were returned to the care of your mother who has supported you throughout these proceedings and appears again today.  You were homeless at the time of the offending.  Your drug use in combination with severe untreated ADHD perhaps made it impossible to live with you in a sense and your mother understandably could not abide it. 

21You commenced offending in 2022 and your first appearance was in January 2023.  You have received without conviction dispositions, first Probation, then a Youth Attendance Order and in December 2023, a Youth Supervision Order for armed robbery and common assault. 

22I received two expert reports in relation to you.  The first came from
Dr Carmelo Scuderi, undated but apparently from 2023.  It deals with Children's Court matters.  It does provide helpful background as to your circumstances and some helpful analysis.  On p6 of the report, Dr Scuderi writes:

'His offending cannot be removed from the chaotic and disruptive childhood experience he has had in his family and then with Child Protection who despite their good intentions have not been able to provide a stable solid and thoughtful response to his trajectory through adolescence towards adulthood.'

23That opinion holds, in my view, for the serious offending before me and has relevance to the application of the Bugmy principle.  I also received a report from Mr Austin Campbell, psychologist, dated 10 June 2025.

24Mr Campbell examined you in relation to the offending before me and your current circumstances.  Mr Campbell conducted testing in relation to ADHD.  You were diagnosed as suffering ADHD by Orygen Mental Health Services, specifically Dr Sarah Scherbel, Senior Clinical Neuropsychologist who provided that diagnosis in late 2023, whilst you were in custody at Parkville Youth Justice Centre and you commenced some treatment then, but at the time of the commission of this offence, you were not taking medication or being treated.

25I accept Mr Campbell's opinion that testing shows that you fall in the high range for ADHD, substantially higher than the clinical cut-off consistent with a diagnosis of ADHD.  He states:

'These results reflect pronounced ADHD symptoms that significantly impact multiple areas of functioning, notably difficulties with attention and related executive functions.'

26Mr Campbell opined that as a result of early life experiences you appear to have developed an insecure attachment style.  He concludes that your emotional and social development appears to have been impacted by functional impacts of your ADHD on your capacity to engage in education. 
Mr Campbell provides some detail as to your history, at paragraphs [10] to [12] of his report, and I accept those matters and adopt them. 

27At paragraph 27 of the report Mr Campbell writes:

'The impacts of trauma on an individual's development can contribute to the development or exacerbation of mental health issues throughout their life.  Mr Leese's substance use issues appear to have been precipitated and exacerbated as a result of experiences of trauma throughout his life.'

28I accept this conclusion.  I also accept his conclusion in paragraphs [31] and [32]: 

'Mr Leese's engagement in the current offending appears to have been precipitated by an escalation in substance use behaviours, his removal from the family home and his ongoing associations with anti-social peers.  He appears to have impulsively engaged in dangerous and destructive behaviours while under the influence of various substances without consideration for potential harms, the consequences of his actions.  The impacts of Mr Leese's ADHD on executive functioning were likely compounded by the effect of intoxication. 

'Mr Leese's mental health issues appear to be perpetuated by his insecure attachment style and a lack of adaptive coping strategies.  He appears to lack the skills necessary to effectively identify, communicate and manage experiences of distress, resulting in his repeated engagement in maladaptive behaviours in an attempt to reduce, and avoid experiences of distress.  Mr Leese also appears to perpetuate unhealthy social relationships in an attempt to maintain a sense of safety, stability, increasing his exposure to anti-social attitudes and behaviours. 

'These issues in conjunction with the impacts of his ADHD on executive functioning, for instance, poor consequential thinking, impulse control and goal-directed behaviours appear to perpetuate his engagement in offending behaviours in the context of substance abuse and anti-social peer associations.'

29Mr Campbell goes on to say:

'Without appropriate treatment Mr Leese presents as a risk of relapsing to illicit substance use in response to acute stressors, underlying mental health issues or negative peer influence.  If this were to occur, his risk of reoffending is likely to increase significantly with him being at risk of impulsively engaging in harmful and destructive behaviours during periods of impaired functioning.'

30Mr Campbell also provided an opinion in relation to your experience in custody.  At [36] he writes:

'Mr Leese will receive a custodial sentence and enter the adult correctional system.  His mental health issues are likely to make any period of incarceration more challenging in comparison to individuals who do not have a similar history of trauma and executive functioning issues.  The impacts of ADHD on executive functioning, impulsivity, hyperactivity and poor self regulation can contribute to an individual experiencing difficulties conforming to the strict nature of the correctional environment.  Additionally, individuals with ADHD have been found to be at greater risk of involvements in aggressive incidents in custody compared to non-ADHD individuals.'

31I note the prosecution submission in relation to the conclusions that
Mr Woollard from Youth Justice drew as to your experience in adult custody.  I do not view Mr Woollard's conclusion as inconsistent with Mr Campbell's opinion as to custodial experience.  Each author is assessing different criteria and approaching the question from a different theoretical perspective. 

32I accept the opinion of Mr Campbell as to hardship, I also accept what he states at [37] and [38] in relation to appropriate treatments, in particular Dialectical Behaviour Therapy and my view that you stand a better chance, or a more likely chance of having appropriate treatments in a setting other than an adult custodial setting.  I accept the matters raised in Mr Campbell's report and it is consistent with the historic reports. 

33I monitored you for several months on supervised bail.  You first came before me in December last year.  The prosecution was seeking to revoke your bail.  I heard evidence from Mr Woollard from Youth Justice.  I determined to give you an opportunity to continue on bail provided you complied with Youth Justice Supervised Bail and remained stable and offence-free.

34I was provided with regular reports as to your progress.  I have been provided with supervised bail reports, dated 14 August last year, 18 September, 14 October and 2 December.  Once I became seized of the matter I received further supervised bail reports, 16 December 2024, 11 February this year, 19 February this year, 19 March, 25 March, 28 April.  I required you to attend court in respect of those updates and monitorings. 

35Your progress on supervised bail was not optimal, barely satisfactory in fact, but in the context of your ADHD and your life's experiences and trajectory, it was expected there would be failures and difficulties.  Someone who has come from your traumatic and troubled early childhood and spent years bouncing around the Child Protection system, all the while navigating untreated, pronounced ADHD symptoms and drug addiction, typically has trouble engaging perfectly with strict supervised bail conditions. 

36You told Mr Woollard in your recent assessment that you felt you did well on bail and made progress.  From your perspective and in the context of your past experiences, I have no doubt that is a view genuinely held by you. 

37I had you assessed for suitability for detention in a Youth Justice Centre. 
Mr Woollard was well-placed to compile that assessment, given his level of involvement with you over the past 12 months.  Mr Woollard has assessed you as suitable and I place considerable weight upon his frank assessment.  Mr Woollard writes:

'Youth Justice assesses his age, his cultural background and Hayden's involvement with welfare, Child Protective Services from a young age has likely influenced his current attitude towards programs and how he perceives his current progress.  It appears Hayden genuinely believed he was doing well in the community, despite the information provided to the contrary.' 

38It was acknowledged in the report that a Youth Justice Centre detention order would be a final opportunity to redirect your trajectory via the services of Youth Justice.

39Your Counsel submits that a special reason exists in your case to avoid the mandatory non-parole period because there are substantial and compelling circumstances that are exceptional and rare and that justify you not receiving a gaol term with the mandatory minimum. 

40Ms Clark relies upon a number of circumstances in order to satisfy the test of substantial and compelling and exceptional and rare, to justify not imposing the mandatory minimum. 

41In brief, Ms Clark relies upon your Aboriginality, your youth, Bugmy mitigation, untreated ADHD at the time of offending having some nexus with the commission of the offence, progress on supervised bail, availability of Youth Justice Centre detention, hardship in custody due to ADHD and treatment matters, the evidence as to you being treatment-ready having a significant shift in attitude and your plea of guilty. 

42The prosecution submit that the test is not met.  The prosecution provided helpful submissions dated 24 June and rely on Buckley v The Queen [2022] VSCA 138 and Xian v The King [2024] VSCA 227.

43As well as addressing me on the operation of the provisions in the case law, the prosecution placed particular importance upon the weight to be given to general deterrence in the exercise and the corresponding reduction in weight to be given to personal circumstances. 

44The prosecution pointed out the concern for your engagement and behaviour during the period on bail, including alleged offending; your attitude in custody and your attitude to Youth Justice initially, your poor motivation in that regard, your lack of expressed remorse and what the prosecution submit are poor prospects of rehabilitation. 

45Quite rightly, the prosecution emphasised particular aspects of the offending.  You were undoubtedly the leader, you were armed with a frightening weapon, you acted and spoke in a threatening and violent manner throughout. 

46I must make an evaluative assessment as to whether, in your case, the test is met.  When making the evaluative assessment of whether there are substantial and compelling circumstances that are exceptional and rare in this case, it is necessary to have regard to the sentencing considerations applicable to cases involving aggravated carjacking, since in order to justify not imposing the mandatory minimum term of imprisonment, circumstances would need to surmount those principles.

47In determining whether there are substantial and compelling circumstances that are exceptional and rare, and that justify not imposing the mandatory minimum I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in s5(1) of the Sentencing Act.  I must give less weight to your personal circumstances than to other matters, such as the nature and gravity of the offence, I must not have regard to an early guilty plea, prospects of rehabilitation or parity with other sentences. 

48In determining whether there are substantial and compelling circumstances, I must have regard to the intention of Parliament that a sentence of imprisonment should ordinarily be made and that a non-parole period of three years, at least three years should ordinarily be fixed, unless the cumulative impact of the circumstances of the case would justify a departure from such a sentence. 

49In my evaluation, you meet the test for a special reason for this offence, notwithstanding the serious aspects of your commission of the offence.  No single feature in your case comes close to satisfying the test, but in combination the relationship between several aspects relied upon form a powerful case that is substantial and compelling and which is also exceptional and rare, in the sense that it is wholly outside the run-of-the-mill.  Considered in combination, the mitigatory effect of each part is amplified beyond the sum of the parts - significantly. 

50Your Aboriginality and your youth, for example, take on greater significance when considered in light of the extreme hardship and deprivation you experienced as a child and how these experiences were further exacerbated by untreated and pronounced ADHD, and the relationship between these factors and substance use vulnerability. 

51Your homelessness, early exposure to drug use and association with negative peers are factors that understandably emerge from this background.  Taken as a whole, these factors substantially explain your offending.  Your moral culpability is substantially reduced when assessed in light of these formative and personal factors. 

52There is a strong public interest in rehabilitating young offenders.  Curial responses that advance rehabilitation serve to protect the community also.  The disadvantage and deprivation you experienced as a youth, including a long involvement with Child Protection is also sadly consistent with your Aboriginal lineage. 

53The course you have taken through Youth Justice and now into adult custody is also sadly consistent with shared Aboriginal experience.  An opportunity arises in your case to seize an opportunity for you to serve a period of detention in a Youth Justice Centre.  There is a strong public interest in addressing over-representation and acknowledging the effects of inter-generational and inherited traumas and systemic disadvantage.  

54The watershed moment of this opportunity in your case gives rise to the application of some mercy and leniency.  The period you have spent on bail is a period of delay for which you are entitled to some mitigation, particularly given the conditions that applied to your supervised bail, your engagement with Youth Justice and your appearances before this court.

55When I assess all of these features in combination including some mitigation due to hardship in custody in the Verdins sense and the availability of treatments, programs and services to you in a Youth Justice Centre setting, my assessment is that the combined circumstances for your case are substantial and compelling, such as to justify departure from the mandatory sentence; that must be so.  The mitigatory effect of these factors in combination could not be reflected adequately in a mandatory sentence. 

56I find that they are also in combination, exceptional and rare.  The complex whole is far greater than the sum of its parts and when one considers the number of features, their relationship to each other, the augmentation of these features in combination and their relevance to sentencing considerations, the combination of circumstances is wholly outside the run-of-the-mill. 

57Nevertheless, having reached this conclusion, general deterrence, specific deterrence and denunciation remain very significant sentencing factors in a case such as this and the sentence I impose will reflect those factors. 

58Romesh Perera, you are 39 now and were 38 at the time of the offending.  The circumstances you find yourself in, at your age, being involved in this serious offence with much younger people such as Mr Leese and indeed a child it would seem as well, is extremely unusual, given your limited history.  I accept that your role in the offence was substantially inferior to that of Mr Leese, though you participated nonetheless. 

59As I understand it, you have never entered custody prior to your arrest on this matter.  You have languished on remand for almost 12 months.  You made admissions and expressed remorse.  You have done whatever courses you could do whilst on remand.  Your counsel provided a very helpful outline of your background and relevant sentencing matters and submissions.  I was also provided with a useful report from psychologist Naomi Cameron and a letter from your sibling, your brother. 

60Your background is relevant to this exercise.  You were born in a regional town in Western Sri Lanka in 1985 during the long-running civil war.  Your father fled Sri Lanka when you were two years of age and sought asylum in Australia.  You, your brother and sister were raised by your mother until 1993 when you were all sponsored by your father to join him here in Melbourne.

61In those eight years or so growing up in a war-torn country, you were exposed to significant traumas that are barely imaginable in this country.  I was told you saw dismembered body parts on the streets belonging to people that had been killed by landmines, you saw dead bodies at hospital.  A friend of yours was killed after stepping on a land mine.

62After arriving in Australia, I accept that you also experienced further significant trauma in the form of sexual trauma in your tender years at age seven or eight and 10 to 12.  You had learning difficulties when you arrived here in Australia including Attention Deficits and Distractibility.  Your parents, perhaps due to being preoccupied with adjusting to life in a new country did not seek formal assessment or intervention.  I also accept that you experienced persistent bullying in your early years of secondary school, and this bullying was connected to your ethnic background and skin colour and name.  It was difficult to make friends and as is often the case, this led to disengagement, absenteeism, gravitation towards negative influences and drug use. 

63You left school after Year 10 but obtained Certificates 1, II and III in Information Technology at a TAFE but I was instructed you have never worked in that field.  You have been involved in unskilled casual and short-term work, factory work, kitchen-hand work, shelf stacking, labouring, things of that nature.  You had not worked for the two years or so prior to your remand.  You have had some significant relationships including with a current partner.  It has been a disrupted relationship of course and your partner has battled with alcohol issues I am told.  She has a son who you have helped raise from being an infant who is now around about six years of age, and you remain in contact with them, they remain in contact with you whilst you are in custody. 

64Your family are shocked at your current situation and remain supportive of you.  I was told that you used cannabis from the age of 13 and alcohol excessively from the age of 15.  You began using methamphetamine from the age of 21.  That background that I have referred to and which is helpfully summarised in the report of Naomi Cameron, but also in the outline of submissions of your counsel which was Exhibit 1 in your case, goes a long way to explaining your psychological functioning and vulnerabilities and the connection between those matters and your gravitation towards drug use. 

65Psychologist Naomi Cameron sets out the cumulative effects of exposure to violence and death in Sri Lanka, childhood abuse in Australia and bullying and racial vilification in early teenage years and how those cumulative effects have shaped your psychological development, resulting in low self-esteem, ongoing need for belonging, maladaptive coping strategies such as alcohol and drug use, delayed social maturity, poor emotional regulation, disinhibition, risk taking and impulsivity.  She concludes that you have PTSD arising from early exposure to traumas.

66At paragraph [174] Ms Cameron opines:

'He had a history of severe trauma including exposure to graphic violence, death and separation from his father during the Sri Lankan civil war as well as alleged childhood sexual abuse by two perpetrators.  These cumulative adversities appear to have significantly shaped his psychological development contributing to difficulties with emotional regulation and externalising behaviours, identity disturbance and maladaptive coping strategies.' 

67At [178], Ms Cameron opines:

'Over time, Mr Perera appears to have developed a pattern of emotional masking and avoidance minimising the severity of his traumatic experiences when recounting his childhood.  This desensitisation to trauma where exposure to extreme adversity became normalised, likely compromised his ability to process and seek support for these experiences, reinforcing a reliance on externalising behaviours such as risk taking and impulsivity.'

68At [183]:

'Mr Perera's affiliation with younger anti-social peers such as his co-accused likely reflects the combination of delayed psycho-social development, low self-esteem and an ongoing need for belonging.  His early trauma disrupted schooling and chronic substance use contributed to delayed social maturity leaving him more closely aligned with younger peers.  This likely provides him with a sense of validation and identity reinforcement compensating for his own feelings of inadequacy and disconnection from pro-social adult networks.' 

69At [192] Ms Cameron opines:

'Taking into consideration Mr Perera's developmental history, psycho-social vulnerabilities and the circumstances leading up to the alleged offences, his offending behaviour appears to have been precipitated by unemployment, transience, intimate partner conflict, polysubstance use and association with anti-social peers.  His motivation to engage in the offending alongside his co-accused appeared to be primarily transactional and instrumental in nature, driven by his desire to obtain methamphetamine and facilitate his return home.  At the time of the offending, Mr Perera's capacity to engage in rational decision-making and appreciate the wrongfulness and consequences of his conduct were impaired.  His intoxication would have heightened his risk-taking behaviour, impulsivity and behavioural disinhibition consistent with research demonstrating the impact of alcohol, cannabis and methamphetamine use on pre-frontal functioning, behavioural inhibition, executive control and decision-making capacity.'

70I find I am unable to identify a causal link between mental functioning and your PTSD, and the commission of the offences, however it remains vitally relevant to your psychological development, your gravitation towards drug use, your impulsivity, risk-taking behaviour but also your maturity and thus, has an explanatory role in relation to the circumstances of your offending, why you found yourself in that situation to begin with, and I find all of these matters in combination provide an appropriate context in which to assess your moral culpability. 

71I do accept Ms Cameron's opinion as to your experience in custody.  She writes at [199]:

'The volatile and unpredictable nature of the prison environment could lead to an exacerbation of his PTSD symptoms particularly in the context of his repeated victimisation in custody.  His emotional dysregulation and personality vulnerabilities further heighten his sensitivity to interpersonal conflict and environmental stress resulting in disproportionate responses to situational crises due to his lower threshold for stress compared to individuals without a similar formed history.'

72I accept that due to that aspect of your functioning, your experience of custody will be harsher than it would be for another who does not have those experiences.  Further, the fact that this is your first experience of custody at a relatively late age and that you have been stood over  in custody to date.  These are other reasons why your experience in custody has been and will be particularly difficult. 

73You are a permanent resident in this country.  Your visa will be subject to cancellation on receiving a sentence of more than 12 months imprisonment, which is what must be imposed in a case such as this.  Your Counsel has relied upon that matter and made submissions for the application of the principle that that fact is relevant to sentence in two ways; the expectation of deportation upon release increases the burden of imprisonment, and the loss of opportunity to remain in Australia where family and loved ones live would be an additional punishing consequence of the offending.  Both those matters will weigh particularly heavily upon you. 

74Your Counsel also made a submission that a special reason exists in your case due to a combination of circumstances.  Substantial emphasis was placed on your experience in custody due to PTSD although, in the final analysis, your Counsel did not rely upon that as a stand-alone feature pursuant to s10A(2c)(ii)- it was relied upon in combination with other circumstances that amounted to substantial and compelling reasons justifying departure from the minimum non-parole period but also exceptional and rare in their combined effect. 

75The Prosecution in their submissions dated 10 June this year, also helpfully set out their opposition to that finding and the reasons why in their submission the test cannot be surmounted.  In particular, Ms Fallar addressed each of the matters that were relied upon in combination in your case and made submissions as to why those matters would not meet the test. 

76In my evaluative assessment of all the circumstances in your case, I find the test of special reasons is met.  I agree with the prosecution that individually they do not attract that description but in combination as I said in respect of Mr Leese's matter, in combination, those features are substantially augmented due to their relationship with each other and the experience you are currently having in custody in particular. 

77In your case, the significant circumstances in combination include your limited role in the instigation and the physical commission of the offence, your cooperation and remorse as I find it, the plea of guilty, the unusually late age at which you have been a participant in a violent offence and in turn, the unusually late age at which you first entered custody for a matter such as this.  The hardship you will experience in custody due to the matters referred to in paragraph [199] of Ms Cameron's report, your vulnerability in custody, the traumatic experiences in childhood that shaped you, and in turn contributed to early drug use, vulnerability to drug use, and the features of PTSD referred to by Ms Cameron. In particular, the fact that you will serve the sentence I impose with the knowledge that there is a strong possibility you will be deported and lose your opportunity of settling in Australia, is compelling. 

78Furthermore you have an absence of prior convictions:  you have one previous appearance for a without conviction disposition.  It is a significant matter in my view.

79The combined effect of these factors leads me to the conclusion that the circumstances are substantial and compelling, such as to justify departure from the mandatory sentence.  They are also exceptional and rare, particularly when regard is had to your experiences in Sri Lanka and their effect upon you; your experiences upon arrival in Australia, the weight of the risk of deportation and the late age at which you are entering a custodial setting. 

80In your case, I nonetheless must impose a sentence that adequately reflects general deterrence and denunciation in particular. 

81In both of your cases, I considered parity.  Your role Mr Leese was substantially greater than
Mr Perera's, you also have the injury charge.  Against that, your youth is a very significant factor, whilst you Mr Perera were older, substantially so.  There are other features that are disparate, in terms of antecedents for example, and some features which are more similar.  For example, you both have available to you Bugmy mitigation.  Both of you have mental health factors that are relevant to the sentencing exercise. 

82I have done my best in arriving at sentence to have due regard to issue of parity.  I sentence you as follows: 

Sentence

83Hayden Leese, I sentence you on indictment Q11137531 and related summary offences as follows: 

84In relation to Charge 1, aggravated burglary, you are sentenced to three years' detention in a Youth Justice Centre. 

85In relation to Charge 2, nine months' detention in a Youth Justice Centre;

86Charge 3, three months' detention. 

87Charge 4, one month detention. 

88For related summary offence 6 possessing controlled weapon, one month detention. 

89For unlicenced driving, one month detention. 

90Contravening a Family Violence Interim Order, convicted and discharged;

91In respect of Charge 12, you are fined $100. 

92In respect of Charge 13, you are fined $300. 

93Three months of the sentence imposed on Charge 2 is to be served cumulatively on the sentence imposed on Charge 1.  That makes a total effective sentence of three years and three months' detention in a Youth Justice Centre. 

94Pursuant to s18 I declare that you have served the following number of days as pre-sentence detention. Do we have an accurate figure? I declare 154 days. Now, I propose to cancel and disqualify your licence for two years attaching to the aggravated carjacking. Is that – I mean theft of motor car, I must confess I did not look at this prior to coming in but is aggravated carjacking an offence that carries with it a mandatory licence, given it is a theft. I mean theft of motor car does, so I presume it would, but in any event, if I have got discretion, I will be cancelling, disqualifying your licence for two years from today's date, pursuant to s6AAA of the Sentencing Act, were it not for your pleas of guilty, I would have sentenced you to four years imprisonment with a non-parole period of three years. 

95Romesh Perera, on indictment Q11724880 I sentence you as follows: 

96Charge 1 aggravated carjacking, you are sentenced to two years and 10 months imprisonment;

97Charge 2, theft: one month.

98Charge 3, obtaining property by deception, two months.

99Charge 4, obtaining property by deception, two months.

100Total effective sentence is two years and 10 months' imprisonment.  I set a non-parole period of 22 months before you are eligible for parole. 

101Pursuant to s18 of the Sentencing Act I declare that you have served 349 days as pre-sentence detention.

102Pursuant to s6AAA were it not for your pleas of guilty, I would have sentenced you to a total effective sentence of four and a half years with a non-parole period of three years. Your licence is also cancelled and disqualified for two years.

103Now, were there any other orders that were sought.  There's no disposal orders Ms Fedyszyn.

104MS FEDYSZYN:  There have been previously filed draft disposal orders for Mr Leese for some items and green vegetable matter and whatnot.  I understood that some of those were objected to, but I have not heard anything from defence on the items at issue.

105HIS HONOUR:  Look, I will – has that gone any further, Ms Clark.  Disposal orders.

106MS CLARK:  No.  Was one of them in relation to phone.

107HIS HONOUR:  I will make the disposal orders subject to any submission that is made.  I will not make the disposal orders today, but if we have not heard anything by Monday, I will make them.

108MS CLARK:  Apologise, Your Honour.  Yes, if Your Honour pleases.  Thank you. 

109HIS HONOUR:  Nothing else?

110MS FEDYSZYN:  Nothing else from the Crown, Your Honour. 

111HIS HONOUR:  Yes, thank you.  All right, yes, we will adjourn the court. 

112MS CLARK:  As Your Honour pleases.

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