Director of Public Prosecutions v Lording
[2024] VCC 2091
•16 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-02136
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM LORDING |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 04 September 2024 | |
DATE OF SENTENCE: | 16 December 2024 | |
CASE MAY BE CITED AS: | DPP v Lording | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2091 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Aggravated carjacking-egregious – firearm-loaded – ADHD - generalised anxiety disorder - substance use disorder – ADHD - Forensicare Assessment – Verdins limb 5 – application of verdins limb 6 rejected – risk factors – rehabilitation-uncertain – category one offence – minimum non-parole period – head sentence.
Legislation Cited: Crimes Act 1958 (Vic); Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Mammoliti v The Queen [2020] VSCA 52; Sabbatucciv The Queen [2021] VSCA 340; DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
Sentence: Total effective sentence-7 years’ 9 months’ – Non-parole period 4 years’ – Disqualified licence-6 months’ – s 6AAA declaration – 10 years’ imprisonment – non-parole period 6 years’ 9 months’.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Overend | Office of Public Prosecutions |
| For the Accused | Mr Toohey | Giorgianni & Liang Lawyers |
HIS HONOUR:
1Adam Lording, you have pleaded guilty to the following offences:
(a) One charge of theft, contrary to s 74(1) of the Crimes Act 1958 (Vic) (‘Crimes Act’), which attracts a maximum penalty of 10 years’ imprisonment.
(b) Two charges of aggravated carjacking, contrary to s 79A of the Crimes Act, which attracts a maximum penalty of 25 years’ imprisonment. This charge is subject to a minimum 3 year non-parole period.
2You have also pleaded guilty to a related summary offence of driving a motor vehicle during a period (19 June 2023 and 22 June 2023) when you were disqualified from obtaining an authorisation to drive a motor vehicle contrary to s 30(1) of the Road Safety Act 1986 (Vic). The maximum penalty is imprisonment for 2 years.
3You will be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 13 August 2024, which I note is an agreed document.[1]
[1] Exhibit P1.
Summary of Offending
4You were 26 at the time of offending and are currently 28 years old.
Incident 1 - Aggravated Carjacking (Charge 2) and theft (Charge 1)
5On 19 June 2023, you were driving a stolen Audi RS3 Sedan north along the Hume Freeway (Charge 1). You were not authorised to drive (Summary Offence).
6At approximately 09:15 AM you collided into the rear of Martine Vincent’s Kia Sportage, causing significant damage. Your mobile detected the collision and automatically placed a call to emergency services.
7In the car with Ms Vincent were her daughter Hidee Vincent and her daughter’s partner Kurtis Foster. Ms Vincent pulled the car over into the left hand emergency lane, alongside the Audi.
8Mr Foster got out of the vehicle and engaged in conversation with you, asking you not do a ‘runner’. You got out of the stolen Audi and began to remove clothing and other items, placing them next to the vehicle on the side of the road. Ms Vincent then called triple zero.
9In the meantime, Mr Barney Williams, who was also driving north on the Hume, observed the Kia and the Audi on the side of the road and pulled his Holden Cruze in behind the Audi to see if he could offer assistance. At approximately 9:17 AM, Mr Williams called triple zero to report the collision.
10You then collected your items and walked towards Mr Williams in his vehicle, opened the front passenger door and place your items on the rear seat.
11You entered the Holden Cruze and sat in the front passenger seat. You demanded that Mr Williams get out of his car. You pulled back your jumper with your right hand and showed Mr Williams a black handgun that was in your left hand, pointing it directly at him.
12You said to Mr Williams ‘get the fuck out of the car, get the fuck out of the car right now cunt’. You cocked the firearm and Mr Williams saw a brass-coloured round in the chamber.
13You said, ‘get out or I will shoot you’. Mr Williams froze. You then leaned over him and opened the driver’s door yelling ‘get out’. Mr Williams said ‘let me see if it is safe’ and you again yelled ‘get out’.
14Mr Williams complied with your demand and got out of the vehicle. Ms Vincent began walking toward the Holden Cruze and Mr Williams warned her that you had a gun.
15You moved into the driver’s seat, conducted a U-turn and began driving the now stolen Holden Cruze in a southerly direction along the Hume Freeway.
Investigation
16Police attended the crime scene and located the following items, in the stolen Audi:
(a) A Victorian Driver Licence in the name of Adam LORDING;
(b) ‘UP’ Eftpos debit card in the name of Adam LORDING; and
(c) A black Nike backpack on the rear passenger seat, containing a box of 9mm Luger ammunition.
17Police later located Mr Williams’ Holden Cruze on Donovans Lane, Beveridge, which was approximately 5 km from the site of the original incident. You were not able to be located near the scene. Police found one unspent round of 9 mm Luger ammunition which was consistent with Mr Williams’ description of a brass coloured bullet.
18Your DNA was detected on the airbag of the Audi and grey lactose blood-stained shorts were recovered from the Holden Cruze.
Incident 2 - Aggravated Carjacking (charge 3)
19Three days later, on 22 June 2023, Mr Robert Hansford had parked his Mercedes car at Epping Plaza, 571—583 High Street, Epping. At approximately 1:30 PM, Mr Handford was seated in his vehicle when you walked up to the driver’s side window and knocked on it.
20Mr Hansford wound the window down halfway and you produced a grey handgun and said ‘get out of the car cunt’, whilst holding the firearm to your chest, parallel to your body.
21Mr Hansford opened the driver’s door and attempted to remove his black ‘crumpler’ bag from the passenger seat. You told him to ‘leave it in there cunt’.
22You got into the driver’s seat, stealing the Mercedes. Mr Hansford fled on foot to the Northern Hospital before calling triple zero.
23You abandoned the Mercedes a short time later in Viewbank Court, Epping near the Darebin Creek trail. You took Mr Hansford’s black suitcase from the boot of the vehicle and his ‘crumpler’ bag, containing personal items and walked across the parkland towards the Mantra Hotel. Mantra Hotel CCTV shows you entering and exiting the building multiple times.
24At the time of this offending, Mr Mohammed Albousweilem’s vehicle was parked directly behind Mr Hansford’s car. Mr Albousweilem videoed the incident on his mobile phone. The footage, which was played in court, depicts you next to Mr Hansford’s car holding the handgun in your left hand.
25At 2:04 PM, the Mercedes was recovered by police approximately 800 metres from the carjacking location but you were unable to be located. After reviewing CCTV footage from the Mantra, police seized the navy-blue Tommy Hilfiger hooded jumper worn by you during the carjacking, as well as the black suitcase and Crumpler bag.
Arrest and Record of Interview
26On 5 July 2023, you were arrested by Victoria Police Surveillance Operatives outside Unit 7/1 Hyde Park Avenue, Craigieburn. Search warrants were executed and multiple items of clothing that were seized have been identified as being the same worn by you during the aggravated carjackings based on the CCTV and iPhone footage.
27You were taken into custody and made a no comment record of interview. You were then remanded in custody, where you remain.
Objective Gravity and Moral Culpability
28The maximum sentence of 25 years’ imprisonment, combined with an effective minimum sentence of 3 years and 6 months’ imprisonment, clearly indicates that aggravated carjacking is a very serious criminal offence.
29When the offence of aggravated carjacking was introduced in 2016, the Attorney General explained that all Victorians should be able to ‘drive around without fear of being set upon by criminals’. Further, the Attorney explained that the penalties that were introduced ‘appropriately reflect the terrifying nature of these crimes’. In particular, the Attorney explained that the minimum sentence of three years ‘is intended to be a serious deterrent to those who plan to use weapons and violence to take another person’s vehicle’.[2]
[2] Victorian, Parliamentary Debates, Legislative Assembly, 1 September 2016, 3329 (Martin Pakula, Attorney- General).
30Where a charge is brought under s 79A(1)(a) of the Crimes Act, as is the case here, the particular weapon or imitation weapon used will be an important consideration in assessing the objective gravity of the offending. In addition, the manner in which the weapon is used will be an important consideration.
31In both instances you used a firearm.
32In the first instance, involving Mr Williams, the gun[3] was loaded and you pointed it at the driver while threatening him you would shoot him if he did not get out of the car. It was apparent to Mr Williams that the gun was loaded. While the court has no victim impact statement from Mr Williams it does not require much imagination to assess the impact on him of your conduct. He would have been terrified.
[3] A ‘black handgun’ – see SOPO at [15].
33The court does have a victim impact statement from Martine Vincent. Ms Vincent was the driver of the Kia with which you collided. In the car with her were her daughter and her daughter’s partner. In her statement dated 29 September 2024, Mrs Vincent states that she continues to have nightmares about the incident and she will have to live with the experience for the rest of her life.
34Charge one is an egregious example of the offence.
35Turning to the second charge involving Mr Hansford, this also involved a firearm. The agreed summary states that the gun used in this offending was a different colour to that used in charge 1.[4] The prosecutor could not advise if it was a different gun. Apparently no guns associated with the offending have been recovered which is obviously very concerning.
[4] The gun is described as a ‘grey handgun’ – see Exhibit P1 [27].
36Scene on the video recording made by the nearby motorist it is clear that you also pointed that weapon directly at Mr Hansford while demanding that he ‘get the fuck out of the car’.
37In his VIS, Mr Hansford eloquently describes the impact on him:
Since the crime occurred on June 22, 2023, I get into my car and immediately lock all the doors. Whenever I approach a carpark at a supermarket or shopping centre, I immediately feel anxious, tense up and become hypervigilant.[5]
[5] 12 September 2024.
38It is unclear if the gun used was loaded or not. In any event there is no suggestion that Mr Hanson was aware whether or not it was loaded. This makes charge 2 a slightly less serious example of the offence than charge 1 albeit that it is still egregious.
39As discussed below, there is little relied upon by your counsel to reduce your moral culpability for your offending which I consider to be very considerable.
Personal Circumstances
40You were born in Carlton and raised in Craigieburn. Your parents separated when you were six years’ old. You lived with your mother, brother, and sister in Craigieburn. Your mother was struggling at the time, so at age 12, you and your siblings moved in with your father.
41You stayed with your father from ages 12 – 16, where you would occasionally stay with your grandparents and at friends' homes. Both your parents and stepparents provided a stable home environment.
42You have an older brother and a sister who are 29 year old twins. Your sister lives in Wallan, and you are in occasional contact with her. You have no contact with your brother. You also have an older maternal half-brother and an older paternal half-sister.
43Your eldest paternal half-sister is still using drugs, and you admit to having used drugs with her in the past. Another sister was also using drugs but has since stopped.
44Your ADHD in childhood led to behavioural problems, which encouraged associations with the wrong crowd in your free time. One notable incident involved you smashing windows in primary school.
45You attended Niddrie Secondary College, where you completed Year 9 and started Year 10. You were expelled during Year 10 due to your involvement with drugs. Academically, you felt that you performed well and found the work relatively easy. Your attendance was generally good, with only occasional truancy.
46After leaving school, you briefly attended trade school at age 19 for a plumbing apprenticeship. You did your apprenticeship with CST Plumbing, which you held from the ages of 19 to 26. While you completed most of this qualification, your involvement with drugs before your arrest prevented you from completing the TAFE component.
47At 19, you started a relationship with Gemma, with whom you were in a relationship for seven years. You and Gemma lived together in Craigieburn and were about to purchase a home together, when the death of a close friend in a car accident on 22 July 2022 triggered a downward spiral for you. This led to your involvement in criminal activities.
48This period led to your relationship breakdown you then travelled to Queensland, and were in a rehabilitation facility for one month but left early and returned to Victoria. You then became homeless and your drug use escalated significantly.
49You were remanded for this offending on 5 July 2023. Since then you have reconnected with Gemma and are now in regular contact, speaking daily. You have maintained regular contact with your girlfriend, father, and stepmother, who are your main supports.
50You have a limited criminal record consisting of drug and driving offences dating back to 2019. The most concerning offence involved the possession or use of a prohibited weapon in April 2023. Your counsel informed the court the weapon was a pair of ‘knuckle dusters’.
51In the circumstances, the index offending represented a remarkable and largely unexplained escalation in your offending pattern.
Mental Health and Moral Culpability
52Your counsel relied upon a report prepared by Ms Gina Cidoni dated 29 August 2024. Ms Cidoni assessed you via videoconference for two hours.
53Ms Cidoni reports that you expressed ‘deep regret’ about your offending, stating that ‘he felt that he was in a terrible state and believed he should have been placed in a psychiatric ward’.[6]
[6] Psychologist Report of Adam Lording by Gina Cidioni dated 29 August 2024 (Exhibit D4) 2 [18].
54Ms Cidoni records that you reported significant concerns about your mental health before your incarceration and rated your depression at 9/10 at that time. Your prison experience has been ‘relatively stable’ and you reported your depression as 6/10 when you saw Ms Cidoni.[7]
[7] Ibid 4 [46].
55Ms Cidoni administered the Weschler Adult Intelligence Scale test but you did not produce enough scores to derive a Full Scale IQ. You were rated in the 2nd percentile on the Verbal Comprehension Index and in the 16th percentile on the Working Memory Index.[8]
[8] Ibid 4-5 [58]-[61].
56You exhibited severe levels of psychological distress.
57Ms Cidoni concluded that your overall assessment ‘indicates significant weight towards Bipolar disorder diagnosis’.[9] I will return to this matter later.
[9] Ibid 6 [71].
58Ms Cidoni placed you in ‘Risk Category 6 meaning you have a 44% chance of reoffending violently within an average of 7 years after release.[10] The identified risk factors are your history of severe drug use, your mental health challenges, significant family instability, past criminal behaviour and lack of impulse control.[11]
[10] Ibid 7 [84].
[11] Ibid 7 [85].
59Turning to her diagnosis, Ms Cidoni concludes that you have ADHD, Generalised Anxiety Disorder, Substance Use Disorder and PTSD. Your symptoms do not meet the criteria for a definitive diagnosis of Bipolar Disorder.[12] As for any link between these conditions and your offending, para [91] of the report reads:
His offending was significantly influenced by a combination of severe substance abuse and substantial mental illness, both of which critically undermined his capacity to make sound decisions. His prolonged use of Methamphetamine, GHB and other substances drastically impaired his cognitive functioning and judgement, leading to impulsive and reckless behaviour.[13]
[12] Ibid 7 [90].
[13] Emphasis added.
60According to Ms Cidoni ‘the interplay between [your] addiction and mental health issues directly contributed to the offences’.[14]
[14] Ibid 8 [92].
61Ms Cidoni opines that you are finding the prison experience ‘particularly burdensome due to a combination of untreated mental health conditions, lack of appropriate medication, and the inherent challenges of the prison environment’.[15]
[15] Ibid 8 [97].
62During the hearing of your plea on 4 September 2024, your counsel Mr Toohey drew the court’s attention to Ms Cidoni’s comments about the possibility of Bipolar Disorder and requested that the hearing be adjourned so that the court could request and consider a report from Forensicare.
63I acceded to this request and arranged for you to be assessed by Dr Remy Glowinski, a Consultant Forensic Psychiatrist.
64Dr Glowinski’s report dated 25 October 2024 is before the court.[16]
[16] Forensicare Psychiatric Court Report by Dr Remy Glowinski dated 30 October 2024 (‘Forensicare Report’).
65Dr Glowinski examined you via video link for approximately one hour on 8 October 2024. He took a detailed personal history from you which closely reflects that taken by Ms Cidoni.
66Dr Glowinski reports that your discussion about the index offending ‘was notable for a seeming lack of appreciation of the impact of his offending on the victims’. The lack of empathy left Dr Glowinski ‘unsure as to the presence or degree of remorse about the offending’.[17]
[17] Ibid 6 [70]; see also at [84] where your comments are described as ‘concerning’.
67Dr Glowinski rejects the suggestion of Bipolar Disorder and considers that your account of your symptoms is ‘more typical of an adolescent conduct disorder developing into a personality disorder with antisocial elements’.[18]
[18] Ibid 7 [78].
68Noting your history of substance abuse, Dr Glowinski identifies the main modifiable risk factor of recidivism as ‘his future decisions about substance use’.[19]
[19] Ibid 8 [86].
69Finally Dr Glowinski disagrees with Ms Cidoni’s conclusion about the effect of custody on your mental health. He notes that your psychological state has stabilised in the structured environment of prison without easy access to intoxicants. He concludes that ‘in the absence of acute mental disorder, I do not think that Mr Lording is more likely than the average prisoner of normal health to suffer if given a custodial disposition’.[20]
[20] Ibid 9 [87].
70At the resumed plea hearing on 28 November 2024, Mr Toohey called Ms Cidoni to give evidenceand asked her to respond to the opinions of Dr Glowinski. Ms Cidoni deferred to Dr Glowinski’s opinion about Bipolar disorder but took issue with his conclusion about the effect of prison on your ADHD in particular. Ms Cidoni noted Dr Glowinski’s concession that he is not an expert in ADHD.[21] Ms Cidoni maintained her opinion that the prison environment will be more challenging for you than for a prisoner of normal health.
[21] See Forensicare Report (n 16) 7 [79].
Rehabilitation
71I note the risk assessment opinions expressed by the two experts. I accept that there are several risk factors in your case. These must be balanced against other evidence. This includes a letter to the court dated 27 August 2024 from Kim Lording, your stepmother. Ms Lording explains that in late 2022 you ‘got mixed up with the wrong crowd and made a few bad choices’. Ms Lording describes you as a loving family member, hardworking, reliable and trustworthy and describes this offending as ‘totally out of character’.
72On balance, I can only assess your rehabilitation prospects as uncertain. Much will depend, as Dr Glowinski stated, on your attitude to drugs when you are released from custody.
Mitigation
73The principal matter that mitigates sentence is the relatively early pleas of guilty. A committal hearing at which only the informant was cross examined was held on 15 December 2023 and after a case assessment hearing on 26 April 2024, you accepted a prosecution offer to resolve the case on 12 June 2024.
74Your plea of guilty is a recognition of your responsibility for your conduct. It is some expression of remorse although I note the concerning opinions in this regard expressed by Dr Glowinski.
75The guilty pleas have a significant utilitarian value in this case because the giving of evidence by your victims at any trial would have been particularly burdensome.
76Ultimately your counsel eschewed any reliance on Verdins other than limbs 5 and 6. On balance, and with some hesitation, I accept Ms Cidoni’s opinion that custody will be somewhat more onerous for you than for a person in normal health thus enlivening limb 5. You are entitled to some limited moderation of sentence. I don’t accept that limb 6 is relevant.
Current Sentencing Practices
77The prosecution referred the court to two well-known decisions of the Court of Appeal which are indicative of sentencing practices in cases of aggravated carjacking.
78The first is the case of Mamolliti.[22] This was a case of aggravated carjacking in which the 84 year old victim was dragged out of his car onto the road. He suffered injuries as a result. The offending occurred while the accused was subject to a community correction order and the accused, who was 39 years of age, had an ‘extensive criminal record’.[23] A sentence of 6 years’ imprisonment was left undisturbed on appeal although it was noted to be an ‘outlier’ and was characterised by all three judges as ‘stern’.[24]
[22] Mammoliti v The Queen [2020] VSCA 52.
[23] Ibid [14].
[24] Ibid [61] (McLeish and Emerton JJA) and [75] (Croucher AJA).
79In the case of Sabbatucci,[25] the offender brandished a knife to deprive his 68 year old victim of his car. In mitigation, the offender had childhood deprivation, a guilty plea and some mental illness (ADHD). He also had relevant prior convictions. The objective seriousness was assessed as relatively serious. A sentence of 5 years with a non-parole period of 3 years and 6 months was upheld on appeal.
[25] Sabbatucciv The Queen [2021] VSCA 340.
80Within the limitations identified by the High Court highlighted in Dalgliesh,[26] I have taken current sentencing practices into account. Of course, each case must be approached on the basis of its own facts concerning the offending and the offender.
[26] DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
Consideration
81Aggravated carjacking is a category one offence. Therefore, unless you fall within one of the statutory exceptions, the court must sentence you to a minimum non-parole period of three years’ imprisonment in relation to each of charges 2 and 3.[27] Further, the head sentence on each of those charges must be at least 6 months more than the non-parole period.[28]
[27] Sentencing Act 1991 (Vic) s 10AD.
[28] Ibid s 11(3).
82Your counsel did not seek to rely on any of the statutory exceptions.
83Aggravated carjacking involving a gun is relatively rare, thankfully. Even rarer are aggravated carjackings where a loaded gun is used and pointed at the victim.
84This is, as I have explained earlier, undoubtedly serious offending – above the mid-range. Your conduct really is inexplicable but would have been no less terrifying for your victims who live with the trauma to this day.
85It is particularly concerning that you committed a second offence within days of the first having had the opportunity to reflect on your behaviour. Having said that, it is clear that you were not in a state of mind that allowed for quiet reflection.
86It is concerning that there was some planning associated with the second offence in the booking of the hotel.
87Deterrence – both general and specific - loom large as sentencing considerations as do protection of the community and denunciation of your conduct.
88Particularly as you are relatively youthful, I must do what I can to promote your rehabilitation in both your interests and those of the community. I have sought to do this in the setting of your non parole period.
Orders
89On charge 1, theft contrary to s 74 of the Crimes Act 1958, you are convicted and sentenced to 12 months’ imprisonment.
90On charge 2, aggravated carjacking, contrary to s 79A of the Crimes Act, you are convicted and sentenced to 6 years’ imprisonment.
91On charge 3, aggravated carjacking, contrary to s 79A of the Crimes Act, you are convicted and sentenced to 5 years and 9 months’ imprisonment.
92On summary charge 2, drive while disqualified, you are sentenced to 1 month in prison.
93The charge 2 sentence is the base sentence. 18 months of the sentence on charge 3 and 3 months of the sentence on charge 1 are to be served cumulatively on the base sentence and on each other. The sentence on the summary charge is to be served wholly concurrently.
94The total effective sentence is therefore 7 years’ and 9 months’.
95You will be eligible for parole after you have served 4 years’.
96Pursuant to s 89(4) of the Sentencing Act 1991, you are disqualified from obtaining a driver’s licence for 6 months’.
97I make the forfeiture and disposal orders sought by the prosecution noting that they are unopposed.
98Pursuant to s 18 of the Sentencing Act 1991, I declare that the period of 530 days not including today is a period served that is referrable to the sentences imposed today and direct that this be entered into the records of the court.
99Pursuant to s 6AAA of the Sentencing Act 1991, had you pleaded not guilty I would have sentenced you to a total effective sentence of 10 years’ imprisonment with a non-parole period of 6 years’ and 9 months’.
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