Director of Public Prosecutions v Macfarlan (a pseudonym)
[2023] VCC 226
•17 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AUSTIN MACFARLAN (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 February 2023 |
DATE OF SENTENCE: | 17 February 2023 |
CASE MAY BE CITED AS: | DPP v Macfarlan (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 226 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW- Sentence
Catchwords: Sexual penetration of a child under 16 years – aggravated burglary (person present) – standard sentencing regime – young offender – deprived upbringing from birth – desperate driven offending due to homelessness – Bugmy principles apply
Legislation Cited: Sentencing Act 1991, s5(4C); 5B(2)(b); 17(1A); Criminal Procedure Act 2009, s145
Cases Cited:Brown v The Queen [2019] VSCA 286; Worboyes v The Queen [2021] VSCA 169; R v Wyley [2009] VSCA 17; Azzopardi v The Queen [2011] VSCA 372; R v Mills (1998) 4 VR 235; DPP v Herrmann [2021] VSCA 160; Bugmy v The Queen [2013] HCA 37.
Sentence:In relation to Indictment No. M11943246, convicted and sentenced to three months’ imprisonment together with a two-year community corrections order.
In relation to Indictment No. N12630028, convicted and sentenced to six months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms B. Goding | Director of Public Prosecutions |
For the Accused | Ms Z. Broughton | Victoria Legal Aid |
HIS HONOUR:
1Austin Macfarlan[1], on 11 November 2022 at the County Court of Victoria at Melbourne, you pleaded guilty to one charge on Indictment No.M11943246; sexual penetration of a child under 16 years. This charge has a maximum penalty of 15 years' imprisonment. This charge is also subject to the Standard Sentencing Provisions of the Sentencing Act. The standard sentence for this offence is six years' imprisonment.
[1] A pseudonym name.
2You admitted your prior criminal history between 24 April 2015 and 17 January 2020. Between those dates you have appeared in the Children's Court on 10 separate occasions. Your offending has included violence, dishonesty, damage to property and driving charges. You have no prior convictions for sexual offending.
3You had spent at that time 25 days in pre-sentence detention before being placed on bail for this offence that I had granted on 18 November 2022. You were then arrested for other offending on 6 December 2022. Your bail on the charge before this court was revoked on 13 December 2022. You have been on remand for this offence until today, that is for this particular offence, a total, on my calculations, 91 days pre-sentence detention.
4On 14 February 2023, you pleaded guilty at the Melbourne County Court before me to a single charge on the Indictment No.N12630028; aggravated burglary person present. This charge has a maximum penalty of 25 years' imprisonment. You consented to three related summary charges being transferred to and heard by this court pursuant to s145 of the Criminal Procedure Act. You pleaded guilty to the following summary charges:
·Charge 3, unlawfully on the premises, that is my summary of the charge, at Derby Crescent in East Caulfield. This charge has a maximum penalty of six months' imprisonment;
·Charge 4, commit an indictable offence whilst on bail. This charge has a maximum penalty of three months' imprisonment; and
·Charge 5, failing to comply with a condition of bail, that was the curfew condition that I had set. This charge has a maximum penalty of three months' imprisonment.
5As I have said, you have admitted your prior criminal history. The two sets of offending are two years apart and consequently the relevant prior criminal history is different for each of the sets of offending. The criminal history between the two sets of offending, that is 15 December 2020 and December 2022 is:
(1) On 16 November 2022 at the Melbourne Children's Court you were dealt with for theft, property by deception and receiving stolen goods and you were placed on a good behaviour bond.
(2) On the same day, you also were dealt with for driving offences and fined $400.
(3) In the matter of common law assault, it was adjourned to 12 December 2022 without conviction.
6You reoffended on 6 December 2022 whilst on bail and the adjourned undertaking to be of good behaviour. Your criminal history prior to your offending on Indictment No.M11943246 is common to both sets of offending. I have outlined some of it but the offending commences in Moorabbin Children's Court on 24 April 2015. You were released on a good behaviour bond for one year on a combination of charges including damage to property, theft and assault. This pattern of offending and disposition occurred on a further three occasions and ultimately they were dismissed in 2016.
7On 7 March 2018, you were back at the Moorabbin Children's Court for dishonesty assault and damage to property offences and without conviction you were then placed on probation for seven months. On 29 June 2018, you were back before the Dandenong Magistrates' Court on robbery and other dishonesty charges, breach of probation and placed on probation for eight months without conviction. On 10 May 2019, before the Dandenong Children's Court, breach of probation for the earlier matters and without conviction placed on probation again for 12 months.
8You were then on the merry-go-round of offending and court hearings and they were as follows:
·21 June 2019, you were back at the Dandenong Children's Court;
·4 October 2019, you were back at the Dandenong Children's Court;
·16 December 2019, you were back at the Dandenong Children's Court; and
·17 January 2020, you were placed on youth supervision for 18 months.
9The offending in respect of the aggravated burglary was committed whilst you were on bail. Section 17(1A) of the Sentencing Act removes the presumption of serving sentences for other offending concurrently. I will refer to this later in my reasons, but I order that all of the sentences of imprisonment are to be served concurrently with one another at the end of this sentence.
10The pre-sentence detention for the charge of Indictment No.N12630028 is on my calculation 73 days not including today. The parties have agreed to and facilitated the consolidation of all of your offending to be heard and determined at the same time by the same judge. I am grateful to them for that approach.
The circumstances of your offending relating to Indictment No. M11943246
11At the time of your offending, you were then 19 years old. The victim of your offending was 15 years and two months of age. The prosecution filed a Summary of Prosecution Opening upon Plea dated 8 November 2022. It was marked as Exhibit “A”. You and your victim commenced communicating on the online platform of Snapchat in the months before December 2020. The two of you then moved your communications system to Instagram. Your victim detailed herself as a 15-year-old. In the online sense, you were in a relationship with one another. You had never met in person.
12On the morning of 15 December 2020, your victim decided to run away from home and packed her bags. You then met with her at the Wallan railway station at around about 10.30 am on that day, 15 December 2020. You both went to McDonald's, a park and then a skate park and walked around the Wallan area. You and the victim then caught a train together. Your victim got off at Craigieburn and you continued on to Melbourne. Your victim then went to a friend's house in Craigieburn where she spent the night.
13By that time, your victim's mother had returned home later that day to find a note from her, which read as follows:
'Goodbye, Mother. You have now lost two daughters. Thanks for not giving me enough attention.'
14The victim's mother reported her missing to the police. The victim's family also appealed through social media for anyone with any knowledge of her whereabouts.
15On 16 December 2020, the victim took an Uber which had been booked by you from Craigieburn to your apartment which you then had in Melbourne Central Business District. When she arrived, the victim and you played video games with your housemate and you cooked the victim a dinner. There were a number of online warriors, that is how I describe them, who contacted you seeking information about the victim's whereabouts.
16Police attended your address at approximately 7 pm looking for the victim. Police rang the bell at your place and you attended at the ground level to allow the police into the premises. You denied that the victim was at your apartment and told police that you only contacted her through social media and not seen her. Police conducted a search of your apartment and could not locate her.
17Later that evening, the victim and you watched a movie on your bed and she laid on top of you. You have placed your hands on her bottom over her clothing and asked whether she had lost her virginity. She told you no. You then asked whether she would ever lose her virginity to you. She responded, 'I don't know, maybe'. Anyway, she took off her clothes, you had penile-vaginal sex with her. The victim did not see if you had a condom on or not.
18Police returned to the apartment at about 10.15 pm that night after receiving an anonymous tipoff. They spoke to you through the intercom system again at the ground level and you allowed them access to your apartment. You had hid the victim in the laundry and told her that you did not want her to be taken away from you. You then met, as I say, the police outside your apartment, you told them that the victim was not at the address. The police asked you if you knew where she was or had a contact number for someone who might know where she was. You then responded that you would have to go into the apartment to get your phone. The police followed you inside.
19They conducted a second search of the apartment and located the victim in the laundry. The victim told police that she had been staying at your apartment due to a family violence incident between herself and her mother. She was then transported by police and the victim's mother was called.
20Police returned to your apartment to collect the victim's belongings in the early hours of the next day which was 17 December 2020. You told police that the victim had told you she was 17. When asked, how old she really was, you responded that she was 15. You knew how old she was. You allege that as soon as you found that she was 15, you had phoned police.
21When questioned why you did not tell the police that she was present in the house when they first attended, you responded that because she had run away from her mum and did not want to go back to her mum. I note here that the victim herself was hiding at your place. The victim disclosed to her mother that she had sexual intercourse with you. She disclosed to the police that you were wearing a condom but it may have broken, that there was blood on her underwear et cetera. She declined to undergo a forensic medical examination. She made a VARE, that is a video recording of evidence, on 17 December 2020.
22You were later arrested that evening at your apartment. You were interviewed and made the following comment:
·She lied to you about her age and told you she was 17. You found out she was 15 when the police told you the night before.
·You had met her in Wallan and picked her up and let her stay at your house.
·You described your relationship as close friends.
·You told police that she had only been at your house for about 10 minutes before the police arrived.
·You then told police that you had been to the pool during the day and had separate showers, played FA, watched movies and fallen asleep.
·You said that you both laid down and she cuddled you.
23The victim left when the police first arrived because she thought she would get taken to her mother's place and returned after they had left. You denied anything sexual had occurred but admitting to kissing. You then told police the only reason his DNA would be on her underwear was if she had done something while you were asleep.
24Forensic results confirmed blood and semen were present at the victim's underwear. It was your DNA. You were charged on summons on 31 August 2021. The proceeding was a hand-up brief procedure as a plea of guilty. You have cooperated with this prosecution.
Victim impact statements
25In this case, two victim impact statements were filed and read into the record of the court. Exhibit “B” was the victim impact statement of the victim, Alicia Bell[2], which was dated 10 June 2022. Ms Bell says she felt scared and did not know what was going on. She stated she has nightmares and scared you were going to come into her house. She stated her mental health has gone downhill and she is now closer to her mother. Ms Bell states she is worried she will run into you if she is out and about with friends.
[2] A pseudonym name.
26It is difficult to reconcile these statements in the victim impact statement with the evidence set out in the depositions at pages;100, 134 and 258. Ms Bell stated to police she ran away from home because her mother tried to hurt her by physical assaults and punched holes in the walls of the house. Her mother called her a slut and said, 'Run away, run away now'. Alicia Bell ran away and the events before the court occurred thereafter. The note left behind by Alicia Bell at her home tends to confirm the above matters.
27The victim impact statement of Charlotte Lindrum[3], the victim's mother, was also filed. It was dated 10 June 2022. It was Exhibit “C”. Ms Lindrum states that the mother/daughter relationship had become damaged due to Alicia losing trust in others including friends and family. Ms Lindrum says she has suffered depression and lost work because she had to attend to Alicia's mental health and emotional needs. Ms Lindrum says that she has lost sleep. She has lost work due to attending counselling sessions for herself and for Alicia at CASA and CHAMS. Ms Lindrum says she feared that you would attend at the family home. There was no evidence that I could see anywhere that you even know where they live.
[3] A pseudonym name.
The circumstances of the offending for Indictment No.N12630028 and related summary charges
28The prosecutor read into the record and tendered a Summary of Prosecution Opening upon Plea dated 12 February 2023. It was Exhibit “A” in the hearing relating to Indictment No. N12630028. There were also three photographs depicting your balaclava and your co-accused's bandana which were worn by you at the time of the aggravated burglary which was Exhibit “B”.
29At the time of the offence, you were on bail and one week shy of turning 21 years of age. You were homeless.
The offending
30In the early hours of 6 December 2022, Ms O'Brien and Mr Cummins were asleep in their house located on Queens Avenue in Caulfield East. At approximately 1.50 am, Ms O'Brien got out of bed and went into the hallway of the house to use the bathroom. You and your co-accused, King, were inside the house and walking towards her. King wore a blue jacket with a bandana covering his mouth and nose and you had a black beanie covering your face with eye holes cut in it.
31Ms O'Brien asked you who are you to which King responded, 'I want your money and your car keys'. You asked whether there was anyone else in the house. King then repeated the demand for money and the keys to the car. Ms O'Brien led you and King towards the front of the house before she ran to the front door, opened it and ran outside screaming as loudly as she could which startled both of you. You ran out the front door followed by King. Ms O'Brien's screams awoke Mr Cummins who was inside the house and he saw Mr King who was then carrying a black bag under his arm leave the house. That is the charge of aggravated burglary.
32An inspection of the house showed that nothing had been stolen. The point of entry to the house was a rear sliding door which had been left unlocked to allow trades people who had been completing work at the property entering during the course of the day. Access to the backyard had been gained by moving aside a piece of temporary metal fencing at the rear of the premises.
33Ms O'Brien and Mr Cummins called the police and they attended. The K9 unit tracked you along Queens Avenue, along adjoining streets of Derby Crescent where the track entered the property under construction at Derby Crescent, some 300 metres from Queens Avenue. The house on the property was under construction but at a lock-up stage.
34Police entered that site shortly after 3 am and called out the persons inside the address. Your co-accused, King, approached the front door from inside the property with his hands up. He was directed to exit the house through a front window as the door was deadlocked. He complied and was arrested. Police then entered the property where they arrested you.
35At the time of the offending, you were on bail following a grant of bail by me on 18 November 2022. It was a condition of your bail, Mr Macfarlan, that you were not to leave your place of residence between the hours of 10 in the evening and six in the morning; this offending having been committed at 1.50 am, that is the contravention of that bail condition.
36The police conducted a search at the Derby Crescent address and located your black beanie with the eyes cut out which had been worn by you and the bandana worn by King as well as an iPad. On the iPad were two videos made by you. On Video 1, which was made at 1.56 am on 6 December 2022, it runs for four seconds and shows you inside the house at Derby Crescent and you say, 'Fucking worst day of my life'. Video 2, which was made shortly after 2 am, 6 December 2022, it runs for eight seconds and again shows you inside the Derby Crescent address. In the video, you say, 'If you don't hear from me, it's because I've just got done for an agg burg, dead set, it's fucked, I'm sorry'.
37I am told that these videos are made by you prior to your arrest. The contents of the videos show that you have some insight into your offending because those videos are made before your arrest and shows regret and remorse that you have offended whilst you were on bail and reoffended generally.
38The first mention of these charges was on 15 December 2022. On 10 February 2023, the charges were uplifted to this court to be heard as a plea on 14 February 2023. The plea was indicated at the earliest time.
39Your victims have been given the opportunity to make victim impact statements but have declined to do so.
Your personal circumstances
40At the time of the first offending, you were 19 years of age. You just celebrated your 21st birthday in December last year whilst on remand for the offending before the court. This has been your first time in adult custody. Initially, you were on bail for the offence of sexual penetration of a child under 16 charge. On 4 March 2022, the charge resolved to a plea of guilty and was set for plea hearing at County Court on 19 July 2022 effectively as a straight hand-up brief as they are referred to. You failed to attend your plea hearing and were ultimately arrested and remanded on 25 October 2022. On 11 November 2022, your plea hearing was heard before me. You were granted bail pending the Forensicare report preparation. You then subsequently offended.
41At the age of seven years, you were referred to Berry Street Take Two program by the Department of Human Services on 27 June 2008. At that time, you had been placed in the care of your father by the Department. The report dated January 2011 (which is Exhibit 3) when you had just turned 10 states as follows:
'[Austin] was exposed to prenatal family violence as well as his mother and father's drug and alcohol addiction since birth which had had significant impact on his development. His mother also suffers mental health issues which have affected the level of violence directed towards [Austin] and his father. [Austin's] mother's mental health problems have also affected the primary attachment relationship to [Austin], whom she has rejected and physically abused since birth. His father has also had polydrug addiction and has committed burglaries to support his habit which has resulted in his incarceration for periods of time. He has also exposed [Austin] to his apparent attempts to take his life when he crashed his car into a pole. [Austin] has also experienced his parental transitional unstable lifestyle and their eventual separation 18 months ago. Since his parents' separation, [Austin] has been allegedly directly exposed to his mother's sexual activity with partners and to the pornographic material in possession of his mother's friends. [Austin's] mother has also exposed [Austin] and his younger siblings to an erratic neglectful transitional lifestyle where she has lived with people who have sexual offending histories and self-harming behaviours.'
42It is little wonder that the same report notes you had inappropriate sexual behaviour which was a risk to you and others at the age of seven.
43Your mother is Aboriginal and so are you. Your connection to your culture and community has been fractured by your mother's abandonment of you. You have expressed an interest in connecting with your Aboriginal culture and have received support from an Aboriginal and childcare agency referred to as ‘VACCA’ in the past. That's Exhibit 5. You are awaiting a copy of your birth certificate so you can follow up your heritage through your maternal grandparents.
44You have a younger brother and sister who have been cared for and live with your paternal grandmother. You now have no contact with your father.
45When you were six years of age, your mother, the word used is, 'relinquished' you. You were then in the care of your maternal grandmother for a short period of some six months and thereafter foster care arrangements. You had four residential care placements between October 2012 and November 2012 due to your father's incarceration. The final blow to your family connection was when your father “relinquished” care of you on 28 December 2012.
46You then had a series of 15 residential care placements. These are not home-like environments but institutional in nature. You experienced considerable and consistent beltings from your father. You were in the care of the Department of Human Services through Berry Street until 12 December 2019. That was your 18th birthday. You have had youth supervision orders imposed on you by the courts.
47I have outlined your criminal history in detail earlier in my reasons for sentence. I will not repeat it here.
48In summary, your prior offending sounds worse than in fact it has been. The court disposition show that to be the case. You have a history of alcohol and drug abuse. You have been homeless on numerous occasions and in particular for your offending in December 2022. When I take into account your deprived upbringing from birth and the violence and other circumstances you have been exposed to by both of your biological parents, it is surprising that your criminal history does not include numerous and lengthy periods of at least Youth Justice Centre detention. The reality is that your first periods of incarceration are the remand periods for the offending before the court here.
Sentencing considerations
49The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.
50I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences. I have considered both the statistics and current sentencing practices, mindful that each case must be considered in light of its own particular circumstances and as many of the cases would be distinguishable from your case as indeed they are from one another.
51I am also mindful of the provisions of the Sentencing Act and in particular s5(4C) which directs a sentencing court to consider whether a community corrections order (“CCO”) can achieve the purpose for which this sentence is to be imposed. I have reviewed the case of Boulton considering if a CCO would be appropriate in your case and I have had you assessed for a CCO. You have been assessed as not suitable for one of those orders. That of course is not the end of the matter.
52The prosecutor submitted that a combination sentence of imprisonment and a CCO was in the range for all of your offending before this court.
53You have pleaded guilty to these charges. Your plea of guilty was early. Your plea does have the utilitarian value allowing for the orderly and effective administration of justice, there is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters. Your plea vindicates the public confidence set up in the legal process which is set up to protect the community.
54Your plea is also a clear acknowledgement by you that you accept the responsibility for your criminal behaviour on each of these occasions. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your part. Your pleas of guilty have also removed the need for the victims of your offending to give evidence in court and your admissions of guilt will give them some closure.
55Your plea of guilty is entered at a time when the backlog of cases for trials has expanded due to the COVID-19 pandemic. The Court of Appeal in Worboyes' case clearly stated that a plea of guilty in times of the COVID-19 period in the run-off, if I can call it that, has a further utilitarian value and a plea of guilty should attract a perceptible amelioration of sentence. The Worboyes discount is applicable in your case.
56The objective seriousness of your offending is, in my assessment, at the lower end of the aggravated burglary, despite the presence of a person at the time of the offence The indicators are as follows:
1)the offending occurred late at night;
2)people were present in the premises at the time you entered it;
3)you wore a balaclava or a disguise;
4)you entered the house with a co-accused, King;
5)your entry was through an unlocked door at the rear of the premises;
6)you decamped as soon as the alarm was raised by Ms O'Brien;
7)you were on bail and a youth supervision order at the time of your offending; and
8)your offending was over a very short time.
57The related offending of unlawfully on the premises which is Summary Charge 3 was a building site that you and a co-accused were effectively squatting in as you were homeless.
58The objective seriousness of your offending in respect of the sexual penetration to a child are in my assessment at the lower end for that serious offending. The indicators are:
(a)your victim was 15 years and two months of age and you were 19 years of age, the age gap was approximately four years;
(b)you met your victim through social media and you had an online relationship with her prior to your physical meeting;
(c)your victim was running away from her home and sought your assistance in accommodating her;
(e)you offered your place of abode as accommodation to your victim;
(f)your victim hid from the police when they searched the premises in an attempt to locate her;
(g)you admitted your involvement to the police ultimately; and
(h)you expressed concern for your victim after the police spoke to you about the offending.
59There has been a delay of two years and three months since your offending against Ms Bell. Part of the delay is due to your non-appearance at court for your plea date in 2022. Of course, you have committed an aggravated burglary whilst on bail for the sexual penetration charge. The nature of offending whilst on bail is completely different from the sexual offending. You were homeless and back in desperate circumstances. The aggravated burglary, as I have said, was at the lowest end of that offence and was desperation driven offending. For these reasons, all terms of imprisonment are to be served concurrently with one another.
60The offence of sexual penetration of a child under 16 is subject to the standard sentencing regime. The maximum sentence for that charge is 15 years' imprisonment. The charge is subject to the standard sentencing provisions; the standard sentence of that offence is six years' imprisonment. The standard sentence only takes account of the objective factors affecting the relative seriousness of the offence of sexual penetration of a child under 16.
61The maximum sentence and the standard sentence are to be taken into account as guideposts in the sentencing process. In s5B(3)(b), Parliament enacted the standard sentencing divisions are not to affect the approach for sentencing known as the instinctive sentencing synthesis. Champion J in the case of R v Brown set out that the standard sentence is not to take the predominant role in sentencing and is just one of the factors that a court is required to take into account.
62It follows that the standard sentence does not assume a dominant role in the determination of the sentence for that particular charge. The standard sentence prescribed by Parliament for the offence is simply one of the relevant sentencing factors to which a court must have regard along with other sentencing factors identified which are required to be taken into account in s5(2) of the Sentencing Act.
63Further, so far as consideration of current sentencing practices are concerned in respect of this charge, that is the sexual penetration of a child under 16, s5B(2)(b) requires a court when considering current sentencing practices for a standard sentence offence to only consider sentences previously imposed where the relevant offence was subject to the Standard Sentencing Scheme. That is what I have done.
64Your offending and circumstances of the offending are significantly less than the objective features relevant to the standard sentence. I have taken into account your personal circumstances. Three matters stand out as significant features in a sentencing consideration. The features are:
(a)you are a young offender;
(b)you need assistance with alcohol and drug abuse and dependence; and
(c)Bugmy principles apply to your circumstances.
65At the time of your first offending, you were 19 years of age and you have recently turned 21. You are a young offender. You have prior convictions. It is a principle of sentencing law that when a young offender such as yourself, the sentencing disposition should be tailored taking into account all other sentencing considerations to promote your rehabilitation. This approach serves the interests of the individual offender, that is you, and the community as a whole.
66In the case of R v Mills, which is reported at (1998) 4 VR 235, three propositions of sentencing were set out;
“i. Youth of an offender, particularly a first offender, which you are not, should be a primary consideration for a sentencing court where the matter properly arises.
ii. In a case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on the rehabilitation is to be preferred. (Rehabilitation benefits the community as well as you, the offender.)
iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he's beginning to appreciate the fact of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition has particular application on the general principles expressed in s5(4) of the Sentencing Act.)”
67Mills was decided a long time ago. In more recent times, the Court of Appeal has made pronouncements on the consideration of youth in sentencing practices. In the case of R v Wyley [2009] VSCA 17, Maxwell P stated as follows:
'Mills constantly reminds sentencing courts, and this court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than non-custodial sentences. Thus understood, the later cases of DPP v Lawrence and R v Nguyen, are not to be viewed as "excluding the principles in Mills", but simply as instances of how those principles are to be applied.
'As counsel properly conceded towards the end of his submissions, there is a role for general deterrence to play in relation to every class of cases. In relation to certain classes of case, however, general deterrence may have a particularly important role to play. The present case is of that kind. Violence of this kind, and that is what this case was about – “in circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance. But, again, the role of general deterrence will vary with the circumstances of the case.”
68These issues were also considered in Azzopardi v The Queen (2011) VSCA 372 where, Redlich JA with whom Coghlan and Macaulay AJJAs agreed and said the following:
“The general proposition which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and the protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effect of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”
69In your case, your youth, both at the time of the offending and at the time of sentence, results in my judgment in an amelioration on your sentence. You have an extremely deprived upbringing including abandonment or 'relinquished' as it is described in the reports, physical violence, exposure to sexual activity by adults at a very young age and a separation from your cultural background as an Aboriginal man.
70Your experiences have too many common features with Mr Bugmy. The first matter is that your life experiences reduces your moral culpability for the offending itself. The second matter was clearly set out in Herrmann's case by the Court of Appeal reported at [2021] VSCA 160 and at paragraph 46:
'It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years. As the present case graphically illustrates, childhood trauma can permanently damage — and seriously distort — a person's view of the world around them and their understanding of social norms. Thus, in Freeburn v The Queen [No 2], it was accepted that the offender's "background, of deprivation and abuse, played a material role in shaping his responses, and thus in his offending". In Snow, the Court drew attention to "the impact on the decision-making of individuals of growing up, and living, in circumstances of prolonged and widespread social disadvantage".'
71Despite your background, you have managed to maintain employment on occasions. It is clear however you continue to have a disruptive life and need support when you live in the community with housing, work and contact with prosocial people.
72The reports tendered on your behalf refer to your alcohol and drug abuse. I assess your prospects of rehabilitation as guarded given your background but more particularly your offending within two weeks of the bail that I granted to you.
73I note the report and evidence of Mr Leigh Booth who was from GEO Group Australia Pty Ltd. Mr Booth was working with you to engage in a Nexus program on your release from Ravenhall Prison. You have recently been moved from Ravenhall to the MRC and Mr Booth stated in his evidence that his outreach service would not follow you to the MRC over an extended period but he could refer you to other services. Mr Booth said GEO and its Nexus program with housing, employment and the outreach services would be for an intensive period of three months which is the critical period upon any prisoner's release from prison.
74The sentence for aggravated burglary charge necessarily has to reflect the level of seriousness of that charge including the fact that the offending occurred whilst on bail. A level of specific deterrence is also relevant in the sentence.
75In finalising the sentence in respect of both of these matters, I take into account the totality of the two sentencing dispositions in order; (1), not to crush you and, (2), to give you your best chance of rehabilitation.
76The sentencing principles of general and specific deterrence, just punishment, protection of the community and denunciation of your actions on both offending occasions and your rehabilitation dictate that a just sentence is a combination sentence of imprisonment with a community corrections order.
77Now, I am going to sentence you in respect of the two different indictments. So on Indictment No.M11943246 which is Court Number CR 22-00334, that is the charge of sexual penetration of a child under 16 years, you are convicted and sentenced to three months' imprisonment together with a two-year community corrections order.
78The conditions of the community corrections order are that:
1)you are to be supervised;
2)you are to attend for drug and alcohol treatment and rehabilitation; and
3)you are to attend for assessment and treatment for mental health rehabilitation.
79And you are to report to - because I do not have an address for you, I do not know where to send you to upon your release on the other matters, you are to report within two days of your release to Melbourne Community Corrections which is up here in Carlton within two days of your release, all right?
80In respect of that case, I declare that you have served 91 days pre-sentence detention. In effect you have served that sentence, the time inside I mean.
81On Indictment No.N12630028, which is CR 23-00194, on the charge of aggravated burglary, you are convicted and sentenced to six months. That is the base sentence.
82In respect of the related summary charges, that is Charge 3, unlawfully on the premises, which is where you were squatting, you are convicted and sentenced to two months. On the charge of committing an indictable offence on bail, which is related Summary Charge 4, you are convicted and sentenced to seven days. And in Charge 5, which is a breach of the bail condition, the curfew, you are convicted and sentenced to seven days.
83All of those sentences are to be served concurrently and with the sentence of three months before. Sorry, on the previous one I have just given you.
84The pre-sentence detention on CR 23-00194 I think is 73 days, is it?
85MS GODING: Yes, I agree with that, Your Honour.
86HIS HONOUR: Thank you. So I declare that.
87Now, s6AAA; in respect of CR 22-00334, but for your plea of guilty, I would have given you a sentence of two years with a one-year non-parole period.
88In respect of the aggravated burglary charge, which is CR 23-00194, but for your plea of guilty, I would have sentenced you to three years with a two-year minimum non-parole period.
89In respect of CR 22-00334, you are on a Sexual Offenders Registration for a period of 15 years.
90MS BROUGHTON: As Your Honour pleases.
91HIS HONOUR: Does everyone understand what I have said?
92MS GODING: Yes. The effect of it ‑ ‑ ‑
93HIS HONOUR: Yes.
94MS GODING: ‑ ‑ ‑ in summary is that six months to serve with a two-year CCO to follow.
95HIS HONOUR: Correct.
96MS GODING: Yes. Thank you, Your Honour.
97HIS HONOUR: And the 15 ‑ ‑ ‑
98MS GODING: With PSD ‑ ‑ ‑
99HIS HONOUR: Yes. Yes.
100MS GODING: Yes.
101HIS HONOUR: Thank you. So, Mr Macfarlan, you heard that summary; that is roughly what it is. It is literally that; it is six months; of the six months effectively, well, you have served 73 days of that six months, the last of the sentences and I think that is how it works and that is how I think it works and then after that you have got two-year CCO.
102Now, you do not have to listen to anything I have got to say from now on, all right? You have had an absolute terrible start in life. You know, I know it. But in the end, you know, you are 21 now, in the end, you know, you had Mr Connellan looking after you down there in the Dandenong Court, some might say you sort of got me looking after you here. They might. What I am saying to you is at some stage, you are to grab the nettle yourself and that is right now. Right now.
103OFFENDER: Start (indistinct) myself.
104HIS HONOUR: Yes. And start trying to be in control of what you do.
105Now, I fully understand that that is difficult given what you are working from. All right? But you have got to fight against that and control that. All right? So that in the end you get the best out of this CCO, with a bit of luck, you might get back to Ravenhall. If you do, get onto Mr Booth and let him know you are back so that you can get on the nexus program on exit from prison and you have got a chance of getting somewhere to live because there was a problem with the aggravated burglary. They are the sort of things you have got to focus on. Just narrow it down, your focus.
106And the other thing I want to tell you is tell me when you think the drugs were good for you.
107OFFENDER: Never.
108HIS HONOUR: Never. All right? So, you know, just remember anyone who is selling you drugs ‑ ‑ ‑
109OFFENDER: Is an idiot.
110HIS HONOUR: One, he is an idiot but also he is doing this; he is farming you.
111OFFENDER: He is controlling my life.
112HIS HONOUR: Yes, he is farming you. No different from a bloke who has a mob of sheep out in the paddock and shears them every year. All right? You become one of his sheep. He comes on and shears you for the money, gives you the drug. Think about it, all right?
113Anyway, as I said, you do not have to listen to anything I said there but best of luck and do your best on this CCO. There will be a judicial monitoring which I forgot to say and the date will be - I will have a guess now. All right. June; we will make it a Friday morning. 9 June at 9.30. No, not here? On circuit. Sorry. It will have to be June 16 and I want you to come back to court, all right? On June 16, I want you back here wherever I am in this court building at 9.30 in the morning and I want to see you bright-eyed and bushy-tailed and everything is going well and you got somewhere to live, all right? At 21, you have got to grab the nettle.
114Is there anything else? Sorry. Yes, there are a few things. The Sex Offenders Register's papers, I will just have them handed to Ms Broughton first of all and then ask you to sign them. The effect of this order is that you have to tell the - upon release, you have to tell the police where you live, what car you are driving, all these sorts of things. They are all set out in that. If you breach that order, you come back before me.
115MS BROUGHTON: There will be an application for exemption from that order but that will be filed.
116HIS HONOUR: Yes. Yes, that is a separate matter, as I understood it, later on. You would come back to this court though, you wouldn't you, for that or not?
117MS BROUGHTON: Yes. Yes.
118HIS HONOUR: Yes. Yes. So just whenever that occurs, get in contact with my associate and sort out a date. We will try and do it in an early of one day so that you can do other things. I am not saying it is an inconsequential matter, it is just that generally speaking, that should be of short duration is what I am really getting at.
119MS BROUGHTON: As Your Honour pleases.
120HIS HONOUR: And there is a CCO he has to sign. Just check that the conditions, Ms Broughton. Thank you. I will just have a copy of that made so that - sorry, I have got to sign it first.
121I will have three copies made so that prosecution have one, you have one, Ms Broughton, and of course Mr Macfarlan, you will have one to take back to prison with you.
122MS BROUGHTON: As Your Honour pleases.
123HIS HONOUR: Ms Goding, those that instruct you, and, Ms Broughton, thank you very much for organising all of these matters into the one hearing. Right or wrong, I think it is the appropriate way for a multiplicity of charges to be dealt with particularly in the circumstances of Mr Macfarlan.
124MS GODING: I think both sides are indebted to our instructors ‑ ‑ ‑
125HIS HONOUR: Yes.
126MS GODING: ‑ ‑ ‑ for their hard work behind the scenes.
127HIS HONOUR: Yes, of course they are and I just want to make sure that they understand the court appreciates their effort as well.
128MS GODING: Thank you, Your Honour.
129HIS HONOUR: All right. Mr Macfarlan, I will see you on 16 June, all right? Yes.
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