Director of Public Prosecutions v Lumm

[2012] VCC 1844

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-01902

DIRECTOR OF PUBLIC PROSECUTIONS

v

MANA JAMES LUMM

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2012
DATE OF SENTENCE:	19 November 2012
CASE MAY BE CITED AS:	DPP v Lumm
MEDIUM NEUTRAL CITATION:	[2012] VCC 1844

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Pleas of guilty – Attempted armed robbery – Burglary – Theft – Recklessly causing injury – Relevant criminal record – Dysfunctional family background – Youthful offender - History drug and alcohol abuse – Intellectual disability

Legislation Cited:     Crimes Act1958

Sentence: Convicted and to be detained in Youth Justice Centre for period of 14 months’ detention to commence today running concurrently with the unexpired portion of detention currently being undertaken – Ancillary order forensic sample order – s.6AAA Sentencing Act 1991

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E. Finnigan	Office of Public Prosecutions
For the Accused	Ms N. Giorgianni	Melasecca, Kelly & Zayler

HER HONOUR:

1       Mana James Lumm, you have pleaded guilty to one charge of attempted armed robbery, one charge of burglary, two charges of theft and two charges of recklessly causing injury.

2       The maximum penalties for these offences are as follows:

Attempted armed robbery – twenty years' imprisonment.

Burglary – ten years' imprisonment.

Theft – ten years' imprisonment.

Robbery – fifteen years' imprisonment.

Recklessly causing injury – five years' imprisonment

3       Your offending was summarised by the Crown as follows:

The offending occurred on three separate days and involved five victims. 

4       The Crown opened Charge 1, attempted armed robbery, in the following way.

Charge 1 attempted armed robbery–

5       About 11.40 pm on 5 March 2012, you approached a person by the name of Glen Woodall, who was cooking food on a public barbecue in a park between Railway Avenue and Station Street, Pakenham.  You and your co-offender, to whom you referred as “Wheels”, approached Mr Woodall.  Your co-offender had railway ballast (rocks) in his hands.  He asked Mr Woodall if he had any cigarettes.  As Mr Woodall handed his packet of cigarettes (which were a Stradbroke Gold brand) to you and your co-offender, your co-offender said, “Now give me your money or I'm going to throw these rocks in your face”.

6       Fearing for his safety, Mr Woodall ran towards Woolworths at the Pakenham marketplace.  You and the co-accused chased him, throwing railway ballasts at him.  Mr Woodall entered the store and when he was unable to find a security guard, he left again.  He was then threatened by your co-accused who said, “Leave my girlfriend alone or I'll kill you, you’re a rapist.”  Mr Woodall replied, “I don’t what you’re talking about” and returned to the store, where he spoke to a security guard, asking him to call the police.  The security guard noted that Mr Woodall was shaking.

7       Mr Woodall then noticed that you and your co-offender were across the road in some bushes.  You left the area and walked down John Street, towards the Princes Highway.

8       At about 3.14 am on 6 March 2012, during a police patrol on Main Street, Pakenham, you and the co-offender were identified.  You were seen to be smoking and produced a packet of the same brand of cigarettes as those which you had taken from Mr Woodall.  You and your co-offender ran from the police.  However, the co-offender was arrested a short time later, taken back to the Pakenham Police Station and interviewed.  He denied any involvement in the offence, but you were not found at this time.  I sought clarification via email as to what had become of your co-offender, and was advised that he was questioned but that there was insufficient evidence to charge him.

Charges 2 and 3 – burglary and theft

9       

In relation to Charges 2 and 3, burglary and theft, I was told that a David Daniel had left his home at 122 Duncan Drive, Pakenham at 11.30 am on

7 April 2012 and did not return until 4.00 pm on 8 April 2012.  When he returned, he noticed the rear window had been forced open and an iPad2, iPad charger, iPod Touch, computer tablet, a set of car keys, a ring and his motor vehicle, a Ford Falcon, plus electrical tools had been stolen.

10      When you were later arrested and took part in a record of interview, on 16 April 2012, you made full admissions in relation to the burglary and theft, saying that you were sitting across the road watching the owner leave his home.  You said that after they left, you went to the property and knocked on the front door.  When no one answered, you went to the rear of the property and forced entry through a back window.  You admitted to stealing the items previously referred to, saying that you gave the car keys to a friend, Shane, but that you had no involvement in the theft of the car and tools.  You said that you sold the stolen goods for drugs. 

Charges 4, 5 and 6 – theft and recklessly causing injury (x 2)

11      

In relation to Charges 4, 5 and 6, I was told that at about 1.45 am on 14 April 2012, you approached an Alexander Robinson, Michael Elliott and Joel

Elliott-Roberts, as well as an Eric Sheldon.  They had been walking along Duncan Drive, Pakenham.  Michael Elliot and Joel Elliott-Roberts were known to you and they knew you.  Mr Robinson had headphones on and was listening to music on his mobile phone.

12      You asked Elliott-Roberts for cigarettes.  When he answered that he did not smoke, you said, “Don’t backchat me” and punched him to the face with a clenched fist.  As a result of the punch, Mr Elliot-Roberts received a cut to the inside of his mouth, as well as a sore jaw and sore left ear.  This gives rise to Charge 6.

13      You also punched Mr Elliott to the face.  As a result of this punch, Mr Elliott’s lip bled, and that forms part of the basis for Charge 5.

14      At one stage, you told the four males to walk towards the lily pond.  Mr Sheldon and Mr Roberts ran off, fearing for their safety.  You then punched Elliott to the face again and then wrapped his T-shirt around his throat, starting to choke him with it, and you dragged him along.  This conduct forms part of Charge 5 as well.

15      You told Mr Elliott to get his friends to return.  Mr Elliot-Roberts then called out to Robinson and Sheldon to return.

16      Mr Robinson returned and was holding his mobile phone.  You said, “Give me the phone" and threatened him.  Fearing for Mr Elliott’s safety, Mr Robinson handed you his mobile phone.  I will just clarify that.  You in fact said "Give me the phone or I'll kill him", and in fearing for the safety of Mr Elliott, Mr Robinson handed you his mobile phone.  This gives rise to Charge 4.  You also punched Mr Robinson to the chest, which winded him a little.  This was alleged as an uncharged act for the purposes of context only.  I do not sentence you on the basis of this matter, which was not the subject of a charge.

17      You then released Mr Elliott and all four males ran away and contacted the police.  When police spoke to Mr Elliott and Mr Elliot-Roberts, they both appeared to be visibly shaken by the incident.

18      On 16 April 2012, you were arrested at your home address and taken to the Pakenham Police Complex and interviewed.

19      When interviewed, you said in respect of the attempted armed robbery which you committed on 5 March 2012 that when you first approached Mr Woodall he was at the barbecue area.  You said, “Wheels” may have had some rocks in his hands but that you picked up the railway rocks later.

20      You said that your co-offender had asked Woodall for cigarettes and that he then started to hit Woodall.  You said that Woodall punched “Wheels”, causing him to fall to the ground.  This is not something that Mr Woodall speaks of at all in his police statement.

21      You said that you chased Mr Woodall towards Big W and threw railway rocks at him.

22      You also told police that the packet of cigarettes which you showed police were from Mr Woodall and were given to you by your co-offender for hitting the victim.  You said that you thought Mr Woodall had a knife and denied that anyone made a demand for money from him.

23      You said that you believed someone else had made the comment about Mr Woodall being a rapist.  I shall return to this particular aspect in a moment.

24      In relation to the burglary and theft committed on 7 April 2012, you volunteered an admission in relation to your involvement.

25      In respect of the theft and injury charges of 14 April 2012, you did not deny your involvement.  However, you had no memory of the assault, as you were affected by drugs and alcohol.  Further, you stated that you wished to apologise to Mr Elliott.

26      On 18 April 2012, police took photos of the injuries suffered by Mr Elliott‑Roberts and observed that his left ear was inflamed, swollen and had dried blood on it.

27      I was told that this matter resolved on 17 August 2012 at the committal mention stage, and that you have been in custody in relation to this matter from that date until 2 October 2012.

28      A Victim Impact Statement was prepared by the female occupant of the property which you chose to burgle.  The residents of that property had planned to live there as a couple.  However, after you broke in, they felt uneasy to the point where the female occupant could not stay there by herself, such was the fear that your offending had caused her.  As a result, the victims bought elsewhere, well away from the area.  They were unable to sell the property at what they considered a reasonable price and were forced to borrow a higher sum because of this.  They lost their sense of security and enjoyment of the home which you burgled, and incurred costs to move away, as well losing the neighbourhood which they had come to enjoy.

29      No Victim Impact Statements were provided in respect of the other victims involved in your offending.  However, it is not difficult to imagine that Mr Woodall, Mr Elliott and Mr Elliott‑Roberts found your thuggish behaviour towards them most frightening.

30      On the plea, your counsel said that before attempting to rob Mr Woodall, you and the co-offender had a discussion where your co-offender told you that Mr Woodall had sexually assaulted his girlfriend.  These were instructions with which you provided your counsel, Ms Bate, but they are not reflected in the record of interview.  Indeed, in that record of interview, you indicate that you regarded Mr Woodall as a “bum” who lived in the park.  You said you believed that someone else had made a comment about Mr Woodall being a rapist, but you did not nominate your co-offender as having said this or as having said anything to you about him before the attempted armed robbery.  In the circumstances, I am not prepared to find that the discussion took place – a discussion which was apparently put forward on your behalf as being a more noble reason for you to behave towards Mr Woodall as you did.

31      I regard the attempted armed robbery as a fairly serious example of this offence in circumstances where you armed yourself with rocks which you threw at the victim as you chased him.  Such conduct was of a particularly menacing and dangerous nature.  I regard your behaviour toward Mr Elliott and Mr Elliott‑Roberts, as well as Mr Robinson in particular, as thuggish and of a bullying nature.  Your counsel said that you had a history going back to school days with Joel Elliott-Roberts and it was in this context that you offended as you did on 14 April 2012.  As I said in discussion with your counsel, there was one of you and four males in the other group and it would appear to me that you were able to “lord it over them” in order to get when you wanted.

32      In particular, your treatment of Michael Elliott was despicable.  Like an actor from a B-Grade movie, you threatened to harm Mr Elliott if Robinson did not hand over his phone.  In this way, you relied on Mr Robinson’s decency in order to get what you wanted from him. 

33      As to your allegation in the record of interview that Mr Woodall punched your co-offender to the ground at one stage during the attempted armed robbery, this was not accepted by the Crown.  Mr Woodall does not give such an account but, even if this did occur, it was at a time after the initial confrontation and could be readily seen as an act of self-defence.  On any view of matters, even if this event did occur, it does not mitigate your behaviour or that of your co-offenders, for that matter.

34      You have a fairly significant criminal history which commences with your appearance in the Dandenong Children’s Court on 14 December 2007.  On that occasion you were placed on probation for 12 months without conviction in respect of burglary, two charges of theft and attempted theft, and assault with a weapon.  There were some other offences in respect of riding a bicycle.

35      On 4 March 2008, you breached probation and the original order for probation was confirmed.  It appears that you breached probation by virtue of further offending comprising criminal damage, theft of a motor vehicle, make threat to kill, intentionally threatening serious injury and threatening to destroy or damage property.  In fact there were five charges of theft of a motor vehicle, and two threats of intentionally threaten serious injury and threat to destroy or damage property.  Without conviction, you were placed on probation for ten months and ordered to attend education or day programs as directed by Youth Justice.  However, at the Melbourne Children’s Court on 18 November 2009, you breached that probation order, which was then cancelled.  Without conviction, you were placed on a youth supervision order for five months in respect of one of the breaches, and you were released on a youth supervision order for seven months in respect of the other breach.

36      The offences which gave rise to the breach are numerous, involving dishonesty charges, criminal damage, burglary, failing to answer bail, recklessly causing injury and assault in company.  In relation to these matters, you were also placed on a ten month youth supervision order.  You were required to attend and participate in anger management and counselling, and comply with a plan prepared by Disability Services.

37      Your counsel on the plea before me said that you had now been assessed as having an intellectual disability, referring to the progress report from Southern Youth Justice Program dated 13 November 2012.  However, it may be that the authorities were aware of such an intellectual disability as at November 2009, in light of the requirement to comply with a Disability Services plan.  I arranged for this matter to be raised with counsel via email (again, both parties being copied in) and I received the response that although there was such an awareness at that time, subsequent assessments from various people did not confirm this until such time as the Southern Youth Justice Program report was to hand.

38      On 15 July 2011, before the Dandenong Children’s Court, you were fined without conviction for using threatening words in a public place, and on 10 February 2012 at Dandenong Children’s Court, you were fined without conviction for three charges of shop theft and one charge of dealing with property suspected to be proceeds of crime.

39      I was told that, as at October this year, you had been undergoing a sentence of nine months' Youth Justice Centre, which was imposed in the Magistrates’ Court.  It appears that you are progressing well on the order, which is due to expire on 1 July 2013. 

40      I was helpfully provided with a chronology of your offending which indicates that the matters for which you were sentenced to nine months’ Youth Justice Centre on 2 October 2012, were committed on various dates between 27 January 2011 and 16 February 2012.  All but one of these offences was committed in February 2012 and it is noteworthy that the offences for which I now sentence you were committed in March and April of 2012.  There are some pending matters which are listed for trial on 29 January 2013, which were allegedly committed on 14 April 2012, being the same offence commission date for Charges 4, 5 and 6 before me.  Before sentence was imposed in October this year, you had been in adult custody since your arrest on 16 April 2012.  In relation to the pending matters, I do not take these into account as they have not been finally determined.

41      You are still a young man – being eighteen years of age.  You will turn nineteen on 5 December this year.

42      I take into account the psychological report dated 14 November 2008, which was prepared by Mr Bob Ives in relation to earlier offending but which contains some helpful information.

43      It is evident that you come from a sadly deprived and dysfunctional background, where you have been bereft of any positive role models insofar as family members are concerned.  Both of your parents have suffered from drug addiction and your father turned to crime to support his drug habit, which has resulted in him having a criminal record of drug-related crime.  In the past, at least, your father has shown a great deal of volatility and a propensity for violence and uncontrolled anger.  Your mother, who has been a long-term heroin addict and has abused alcohol, also has anger management problems.  It would appear that both your parents have suffered psychiatric difficulties because of their drug use and your father has ongoing health issues.

44      You have six siblings, two of whom are older than you, and the youngest of whom is only six years old.  Unfortunately, the Department of Human Services has had to intervene in supervising you and your siblings from time to time throughout the years of your upbringing.  Indeed, when you were twelve months old, you were placed in the care of the Department of Human Services for a time.  Your upbringing has resulted in you having limited moral development and it appears that you are further hampered because of your intellectual disability and lack of education.  Indeed, despite the efforts of some teachers to help you, such efforts were obstructed by your parents, which is most unfortunate.  You struggled with learning, which is perhaps understandable in all of the circumstances, but at one stage at least you did show that you had an active interest in learning.  This was seen during your Grade 6 year where you tried to improve your reading, which is to your credit.  Unfortunately, against the advice of primary school teachers, you were made to go to secondary school in circumstances where you had the literacy skills of a seven-year-old. 

45      As I said at the plea hearing, your level of literacy, your ability to read and write is not something to be ashamed of.  Many people have difficulties with reading and writing in our community.  It would be in your best interests to improve your literacy skills, which I understand is something that you are trying to do whilst you are at Youth Justice Centre.  In this regard, I was told that you have placed yourself on the waiting list for literacy and learning programs, as well as trade programs.

46      Returning to your history in terms of education, unfortunately your days at secondary school were short-lived as you were completely overwhelmed by the level of learning which was involved, and you did not graduate very far at all insofar as secondary education was concerned in circumstances where your level of capacity was still really at primary school level.

47      Whilst at Youth Justice Centre I was told you have also engaged in drug and alcohol counselling.  The reason for this is that the offences which you committed for which I now sentence you were committed while you were in the grip of drug addiction and you also have abused alcohol for a number of years.  You have little or no recollection of the events of 14 April 2012 as you had apparently consumed a slab of alcohol and used methamphetamine and benzodiazepines on that day.  You told Pamela Matthews, psychologist, who saw you on 26 July 2012 at Melbourne Remand Centre, that you felt disgusted with yourself for what you had done on that occasion and for how you had affected the victims.  I also note that you wished to apologise to Joel Elliott for what you did to him, as you regarded your grievance as being with his older brother, rather than with him.

48      Insofar as remorse is concerned, I accept that you have limited remorse to the extent that you have expressed it concerning the victims to whom I have just referred.  However, in view of your criminal history and the fact that you have been selective with the victims to whom you would like to apologise, I find that you have fairly limited remorse, notwithstanding your early plea of guilty to the matters.

49      Your substance abuse dates back to when you were aged thirteen years when you commenced using cannabis, then used alcohol from the age of fourteen years.  At that stage, your consumption was a six-pack of alcohol when you could have someone buy this for you, plus 4 grams a day of cannabis.  You reported to Ms Matthews that more recently you had been drinking a slab of alcohol a day and smoking half a bag of cannabis per week.  From ages sixteen to seventeen years, you have been using ecstasy, speed and ice – being half a gram to a gram thereof over an extended period of any given Thursday to Sunday.  You reported that you then used street-purchased benzodiazepines or Seroquel to “come down”, as you put it.  You reported to Ms Matthews that you often cannot remember your weekends.  You told her that you funded your substance abuse by work or crime.  Your counsel told me that you funded your drug and alcohol abuse by committing crimes.

50      You have apparently come to the realisation that in order for you to go forward in your life, you need to become independent of your family.  You also need to be free of drugs and alcohol dependency.  I was told that all family members, including your six siblings, have until recently been living in the same household.  This was a new situation as previously, your two older siblings had lived in the care of their grandparents and in other households.  Inevitably, the situation led to difficulties and two weeks before the plea hearing your mother was removed from the household when an intervention order was taken out against her by police.  I was told that her mental health issues had led to this step being taken, which now leaves your father to look after others in the household; although I note that your two older brothers in particular should be old enough and well enough equipped to contribute in this regard.  On my reckoning they are now approximately twenty-three and twenty-four years of age.

51      Before going into custody, you had moved in with your girlfriend in a bid to distance yourself from your father, with whom you had engaged in significant conflict.  Your girlfriend does not have a criminal record, although she does use cannabis on occasion.  When you moved from the family household, your relationship with your father improved.

52      Your parents had been on the Methadone program for some time and your father is now free of drug use and no longer dependent on the Methadone program to assist with this.  He has a number of heart problems and has been in hospital on a number of occasions because of this.  He does experience regular difficulties in respect of his heart condition but he is now concerned to care for your siblings on his own.

53      Your realisation that you cannot return to the family household is a good one, notwithstanding that it will be hard for you to live separately from your siblings – especially your youngest brother, Bailey, with whom you are close.  You have decided that it would be best if you were able to concentrate on your rehabilitation by living independently.  It is to be hoped that if you are able to do this, that you engage in further counselling for substance abuse and any other prevention programs which you can find in order to provide you with necessary support in the community.

54      According to Pamela Matthews, you meet the diagnostic criteria for polysubstance abuse and in her view your substance abuse played a significant role in your offending.  Ms Bate, your counsel, referred to the report of Mr Ives (at page 11, second paragraph) where he said this:

“… such a low level of intellectual ability will severely restrict his capacity to foresee the likely consequences of his actions, to learn from his experience, to cope with any level of complexity beyond the concrete and the ‘here and now’, to have insight into his emotional conflicts and motives, to control his impulses, to effectively plan and organise his activities, to produce constructive solutions to personal problems, to deal in any insightful way with other persons, and to understand the nature of society and the legal system.”

55      This was something Mr Ives said about you four years ago when you were fourteen years old.  Your counsel referred to it as being still pertinent in your case.  Further, she relied on the progress report from Youth Justice, which indicated that you have an intellectual disability.

56      Mr Lumm, your intellectual disability, your substance abuse, your criminal history and your offending on the occasions for which I now sentence you, all give me cause for concern as to your prospects of rehabilitation.  I regard your prospects of rehabilitation as being not too good, but it is encouraging that you have made a decision not to return to the family home.  You have a close relationship with your brother, Bailey, who needs a good role model in his life.  I do hope that you become that role model for him and that while in Youth Justice Centre you do your very best to learn to read and write and to overcome your substance abuse problems, as well as engage in any course which helps you to get a job when you are released, and which helps you behave yourself in a productive fashion.

57      In the circumstances, I must give not insignificant weight to specific deterrence and I must give significant weight to general deterrence.  I must also impose a punishment which is just in all of the circumstances and I must denounce your conduct.  I must also place some weight on the need to protect the community from you.

58      Further, it is an aggravating feature of your offending that you committed the offences whilst you were on bail. 

59      In imposing sentence, I take into account that a good deal of the time spent in custody so far has been spent in an adult gaol, which is most unfortunate.  While in adult custody you were subjected to an assault by two adult prisoners and while at Melbourne Assessment Prison and then Melbourne Remand Centre, you received no visitors.  Your father has a criminal record and was therefore not allowed to see you at those facilities.  While at Youth Justice Centre, your father has visited you on one occasion only and you have been there for five weeks now.  In fact, probably six weeks by the time of this sentence.  You instructed your counsel that while in adult custody, some prison guards told you that if you stepped out of line they would tell other inmates that you were facing sex offence charges, which added to the degree of hardship that you suffered whilst in adult custody.  As I have said, I take these matters into account when imposing sentence for the matters before me.

60      To your credit, you pleaded guilty at the earliest opportunity in respect of all of the offences.  Therefore, you are entitled to a significant discount on the sentence you would otherwise receive as you have saved the witnesses, especially the victims, the trauma and time of giving evidence, and you have saved the community the time and expense of running contested proceedings.  Over and above this, you have facilitated justice in respect of Charges 2 and 3, as you claimed responsibility for this offending in circumstances where, as I understand the position, the police were not in a position to identify the perpetrator.  Further, you made some admissions in respect of Charge 1 in circumstances where there was insufficient evidence against your co-offender to found a charge.  I also note that in relation to the motor vehicle which went missing from the relevant premises, you are not charged with the theft of that vehicle in circumstances where you have said that you gave the car keys to someone else.  I do not sentence you for any matter which is not the subject of a charge.

61      Although there was a shade of planning involved in the burglary and subsequent theft which is the subject of Charges 2 and 3, this appears to be limited to you watching the property until the occupants left.  The other side of that is that you took steps, including knocking at the door, to avoid the possibility of people being present, which is a far better situation than entering whilst people were present or risking that situation.

62      Although your counsel referred to a link between your offending and your intellectual difficulties which were compounded by substance abuse, I did not understand her to be submitting that this reduced your moral culpability.  However, I take into account these matters in a general sense when sentencing you.

63      I put you on notice that if you commit an offence in the future whilst affected by drugs or alcohol, then your decision to take drugs or alcohol on the occasion in question may be seen by a sentencing judge in the future as an aggravating feature of your offending, which may well lead to a higher sentence than would otherwise be the case.

64      In addition to completing the drug and alcohol addiction program, I was told that you have or are undertaking a forklift and bobcat course and are engaging in a number of other courses whilst in detention.  I was told that there have been no disciplinary issues while you have been at Youth Justice Centre, which is supported by the progress report tendered at the plea hearing.

65      

In the past you have worked in the area of bricklaying, but after arguing with your boss you left this job then commenced working as a roof tiler.  I was told by your counsel that you had recently placed your previous employer in respect of roof tiling on your phone list, and have spoken with him.  He said that he had been to your home to see if you would come back to work for him and he has indicated that he will offer you employment upon your release. 

I note that it was through this work that it appears you were introduced to amphetamine and so if you do pursue this work, you would be well advised to stay away from any negative influences in this regard.

66      It was agreed as between the prosecution and defence that a further period in Youth Justice Centre was the most appropriate disposition in your case, if you were deemed acceptable for this.  As you have been progressing well at Youth Justice Centre, I agreed to have you assessed for a further order and you have now been deemed acceptable.  As you are still a young man, I must do what I can to maximise your prospects of rehabilitation when imposing sentence upon you.  In this regard, I take into account that you are an impressionable and immature young man with intellectual difficulties and substance abuse problems.

67      In terms of your level of maturity, Ms Matthews is of the view that you are clearly still in the adolescent phase of your development.  In order to graduate to the next stage of development, it is necessary to ensure that appropriate structures are placed in your life, which will assist you in growing as a person and leading a life which is free of crime.  In this way, the community can be best protected and you can make a positive contribution to the community.

68      In sentencing you, I take into account that the offences were committed at about the same time as those for which you received an order for Youth Justice Centre in October of this year.  I must be mindful of the principle of totality and, in applying this principle, I also have regard to the fact that you have spent five months in an adult gaol in rather stressful circumstances to which I have previously referred.  However, bearing all these matters in mind, a sentence which effectively imposes a level of cumulation is warranted to reflect the separate offending and separate victims involved in respect of the matters for which I sentence you.

69      The prosecution submitted that in light of the seriousness of your offending, singling out in particular the attempted armed robbery, and in light of other matters including your criminal history, I ought order you to be detained in a Youth Justice Centre for a period of between twelve to eighteen months, and I ought impose nine months of any sentence to be cumulative with the sentence you are currently undergoing.

70      Ms Bates submitted that the level of cumulation was too great in view of the matters in mitigation and the principle of totality.  She submitted that such a sentence would result in you being detained for a period of two years in total, which was too great in circumstances where this would be your first period of detention and where you had spent a significant period in detention thus far in adult custody.

71      I have carefully considered these submissions and had regard to the weight which I must give to all relevant sentencing considerations, including the principle of totality.

72      Would you please stand up, Mr Lumm.

73      In relation to all matters, you are convicted and I order that you be detained in a Youth Justice Centre as follows:

In respect of Charge 1 – ten months.

Charge 2 – six months.

Charge 3 – three months.

Charge 4 – two months.

Charge 5 – eight months.

Charge 6 – six months.

74      I make orders for cumulation as follows.  I order that one month from the sentence on Charge 2, two months from the sentence on Charge 5 and one month from the sentence on Charge 6 be served cumulatively with each other and with the sentence on Charge 1, giving a total effective term of fourteen months’ detention in respect of the matters before me.  That sentence begins today and is to run concurrently with the unexpired portion of the sentence you are undergoing, which means that, factoring in the pre-sentence detention in respect of the sentence which I impose, I estimate the expiry date for your detention would be notionally about September 2013.

75      I declare that you have already served 168 days in custody in relation to the matters for which I impose sentence, which will be reckoned as already served.

Ancillary Orders

76 I make an order pursuant to section 464ZF of the Crimes Act1958 that a forensic sample be taken by way of a buccal swab being applied to your mouth.  I make the order because of the seriousness of the offences, your prior convictions, because the order is not opposed by you and because it is in the public interest to make such an order.  Although you do not oppose the order being made, I should tell you that if you do not cooperate in the sample being taken, the authorised officer can use reasonable force in order to obtain the sample from you.

77      If not for your pleas of guilty, I would have sentenced you to a term which required you to be detained in a Youth Justice Centre for a total effective period of three years.

78      Can you take a seat, please?

79      Is there anything further, counsel?

80      MS FINNIGAN:  No, Your Honour.

81      HER HONOUR:  Right, thank you.  Could you please remove Mr Lumm?  I will just stand down very briefly.

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