Director of Public Prosecutions v Mackenzie
[2019] VCC 1523
•19 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-19-00478,CR-19-00479,CR-19-00480,CR-19-00481
Indictment No: CI912536
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW BRUCE MACKENZIE |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZOE EMILY THWAITES |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 4 September 2019 | |
DATE OF SENTENCE: | 19 September 2019 | |
CASE MAY BE CITED AS: | DPP v Mackenzie & Anor. | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1523 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Criminal law – sentencing – multiple armed robberies and theft of motor vehicle and related summary charges – immediate term of imprisonment imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Joosten (Plea) Ms N Burnett (Sentence) | John Cain, Solicitor for the Office of Public Prosecutions |
| For the First-Named Offender | Mr J Moore | Dribbin & Brown Criminal Law |
| For the Second-Named Offender | Mr J D Williams | Stary Norten Halphen |
HER HONOUR:
1 Andrew Bruce MacKenzie and Zoe Emily Thwaites, you have each pleaded guilty to four charges on the Indictment, being three charges of armed robbery and one charge of theft of a motor vehicle.
2 In addition, you have both pleaded guilty to a related summary offence. Andrew MacKenzie, you pleaded guilty to one charge of commit an indictable offence, namely armed robbery, whilst on bail, the offence date being 13 December 2018. Zoe Thwaites, you have pleaded guilty to commit indictable offence whilst on bail, the offence date being 2 December 2018.
3 The offences are serious and that is reflected in maximum penalties that are prescribed by law, and they are 25 years' imprisonment for armed robbery, and 10 years' imprisonment for theft and 30 penalty units or 3 months' imprisonment for committing an indictable offence whilst on bail.
4 Mr MacKenzie, you committed these offences whilst you were the subject of a Community Correction Order and that is a further aggravating feature of your offending. The Community Correction Order was originally imposed at the Dandenong Magistrates' Court on 10 November 2017 and was varied at the Dandenong Court on 2 October 2018.
5 Armed robbery is a Category 2 offence and when sentencing an offender in relation to a Category 2 offence, a court must impose a custodial sentence under Division 2 Part 3 of the Sentencing Act 1991, (other than a sentence of imprisonment imposed in addition to a Community Correction Order, pursuant to s.44), unless one of the provisions of s.5(2H)(a)-(e) of that Act applies. Neither party sought to rely on any of those exceptions.
6 Mr MacKenzie, you admitted your prior criminal history. It spans a period from 4 June 2015 to 2 October 2018. There are prior appearances in respect to possession and use of methylamphetamine, as well as convictions for possess Ecstasy, possess cannabis, dishonesty offending and various driving offences and theft of a motor vehicle (2017), for which you received a term of imprisonment, and further dishonesty offending, unlawful assault, and driving and other dishonesty offences (2018), for which you received a separate sentence of imprisonment.
7 In the past you have had a variety of dispositions imposed, including convictions, adjourned undertakings, fines and Community Correction Orders. You have been dealt with in respect to a contravention of a community correction order on two occasions and this is your third time being held in adult custody.
8 Ms Thwaites, you admitted your prior criminal history. It spans the period from 16 May 2013 to 3 October 2017 and there are Children’s Court appearances in respect to burglary and theft (2013), assault with intent to rob, unlawful assault, theft of a motor vehicle and unlicensed driving (2014), and fail to answer bail, negligently deal with proceeds of crime and commit an indictable offence whilst on bail (Magistrates’ Court 2017). In the past, you have been dealt with on the basis of without conviction undertakings being recorded and this is your first time in adult custody.
9 At the time of these offences, Mr MacKenzie, you were on bail to appear at the Dandenong Magistrates' Court, on 9 January 2018, in relation to offences of obtain property by deception. You were bailed on 27 November 2018. After failing to appear on summons on 12 November 2018 a warrant was issued.
10 Ms Thwaites, you were bailed from the Dandenong police station on 11 July 2018, in relation to charges of obtain property by deception, attempt to obtain property by deception, theft, theft of a motor vehicle, HSC, deal with proceeds of crime, use and possess and unlicensed driving.
11 You were initially to appear at Dandenong Magistrates' Court on 6 September 2018. Bail was extended on that date when you failed to appear to 4 October, and then a warrant was issued on that date and executed on 3 November.
12 You were bailed to appear at Dandenong on 8 November 2019.
13 In the meantime, a summons was issued by another informant on 24 July 2019, for false imprisonment, assaults and injury offences and you failed to appear on that summons on 8 October. Then a warrant was executed on 3 November and you were bailed to Dandenong on 8 November.
14 I will now proceed to sentence you both on the basis of the prosecution opening that was read at the plea hearing.
15 Mr MacKenzie, you were aged 33 at the time of the offending and Ms Thwaites, you were aged 19 and you are now 20.
16 You had both been in a relationship for about two years and the context of the offending were that you were both using drugs heavily and the offending was committed to obtain money.
17 The offending constitutes a course of conduct involving three armed robberies, each of which were committed against lone taxi drivers. The theft of a motor vehicle relates to the use of a stolen motorised scooter on 13 December 2018. The motorised scooter had been stolen from 1 Holloway Court, Noble Park on 23 November 2018.
18 I turn now to the circumstances of the offending. The first armed robbery occurred on Saturday, 1 December 2018. Together you both rode a blue motorised scooter to a dead-end street in Rowville. You were both wearing full motorcycle apparel, including motorcycle helmets. A booking was made using the 13CABS application in the name of “Ton” by a registered user with an associated phone number of 0484 732 132 and an email address of [email protected].
19 The phone number and email address were linked to Thanh Van Nguyen, who was in custody. He had previously been in a relationship with you, Ms Thwaites prior to being held in custody.
20 The victim, Mr Kirk, accepted the booking and drove to the location. After arriving at the address, he tooted his horn several times to signal his arrival, but no-one came out of the house.
21 He then noted that both of you were walking from the pedestrian walkway to his taxi. Mr MacKenzie, you approached the driver's side of the taxi while Ms Thwaites, you stood by the front passenger door. You were both still wearing full motorcycle helmets. Mr MacKenzie, you spoke to Mr Kirk through the front driver’s side window and asked him if he had a jerry can, to which he responded that he did not. You then told him that you required him to drive you both to the nearest petrol station. After saying this, you pulled out what Mr Virk believed to be a knife, and held it against his throat and said, “You motherfucker, give me all your money and your wallet. Hurry up, we don't have time”.
22 Mr Virk took out approximately $250 to $260 cash from his top pocket and handed it to you, Mr MacKenzie. Mr MacKenzie, you took the money and then you both ran away (Charge 1, armed robbery).
23 The second armed robbery occurred on Sunday, 2 September 2018. On that occasion a taxi booking was made using the 13CABS mobile phone application and that requested that a taxi attend a location in Dandenong. On that occasion, the booking details provided the name Andrew, with a phone number 0474 333 203 and an email of [email protected]. The phone number was one being used by you, Mr MacKenzie.
24 Mr Hassan accepted the booking and arrived at the address. Upon arrival, he saw you, Ms Thwaites, standing in front of a bush on the opposite side of the road. You were wearing a black hoodie and black track pants. You crossed the road and opened the front passenger door of the taxi. You asked Mr Hassan how much the fare would be to drive you to Caulfield. He was about to answer when you, Mr MacKenzie opened the front driver's side door of the taxi and held what Mr Hassan believed to be a knife towards his neck, and said, “Give me your money”. At the time, Mr MacKenzie, you were wearing a black motorcycle helmet on your head.
25 Mr Hassan could feel the weapon against his neck and tried to grab at your hand, Mr MacKenzie, in order to push the weapon away. In the process of doing so, he sustained a minor laceration to his left hand, which did not require medical treatment.
26 Mr Hassan reached into his front shirt pocket and pulled out approximately $80 in cash, which he handed to you, Mr Mackenzie (Charge 2, armed robbery).
27 On that occasion, after receiving the money, you both ran away.
28 The third armed robbery occurred on Thursday, 13 December 2018. At that time, a telephone booking was made through 13CABS for a taxi to attend a different location in Dandenong. On this occasion the details provided were Emily, and the number 0477 212 262. The phone is registered on the integrated phone number, but databased to Ms Thwaites.
29 Mr Alee accepted the booking and he drove to the address, located in an industrial area. He arrived there at approximately 3.15am.
30 Ms Thwaites, you approached the front driver's side door of Mr Alee's taxi and showed him a $50 note. You then opened the door and asked him if he could drive you to a service station so that you could get some fuel and also you asked him whether he had a jerry can.
31 Whilst he was talking to you, Ms Thwaites, you, Mr MacKenzie, opened the front driver's side door of the taxi and held what he believed to be a knife under his chin, and you yelled at Mr Alee, “Give me all your cash. Give me your phone otherwise I'll kill you”.
32 Mr Alee was terrified and thought he was going to be killed. He gave you, Mr MacKenzie, all of the cash in his top pocket, which was about $200 to $300, as well as his iPhone 7 Plus (Charge 3, armed robbery).
33 You both ran off and got onto a motorised scooter. MacKenzie, you were driving the scooter, while Ms Thwaites, you sat behind. Initially, Mr Alee followed the scooter in the taxi and was making multiple requests for you to return his phone. Ms Thwaites, you yelled out that the phone had been dropped. As this was going on, MacKenzie, you lost control of the scooter, you turned sharply and hit the front right panel of Mr Alee's taxi. Mr Alee then left the scene to try to report the matter to police. He was unable to rouse the police where he attended, so that he returned to the area to look for his phone. At that time, he was able to flag down some police officers who were attending the scene. Ambulance Victoria attended and Mr MacKenzie you were taken to hospital, where you were treated for a fracture to your right humerus, as well as multiple abrasions from gravel rash. Your shoulder was relocated.
34 The motorised scooter was stolen from 1 Holloway Court, Noble Park on 23 November 2018 (Charge 4, theft). The basis of the theft charge was that you had both been using the stolen motorised scooter on 13 December 2018.
35 Mr MacKenzie, you were placed under arrest at the Dandenong Hospital and later you refused to be interviewed.
36 Ms Thwaites, you were ultimately arrested on 18 December 2018 and subsequently interviewed, but made no comment.
37 Mr MacKenzie and Ms Thwaites, this is serious offending and in particular, each of the armed robberies targeted vulnerable taxi drivers who were going about their business. There was a degree of planning involved in terms of how you would execute each of your crimes and your respective roles were coordinated in the manner that you set about to achieve robbing each of the taxi drivers, with the accompanied threat of real violence. The nature of the offending is such that it would have instilled real fear into the victims. This is reflected in the very powerful Victim Impact Statement that was read to the court that was authored by Mr Virk.
38 Mr Virk had been driving taxis for about 40 years and loved that work prior to this offending. He now has difficulties sleeping and fears for his safety as well as that of his family. He suffers flashbacks and is constantly anxious and feels his confidence is eroding. He continues to ruminate about the offending, and it has impacted upon him personally at home as well as work. He has reduced his social activities and no longer enjoys working as a taxi driver. It has impacted upon him quite significantly.
39 The other two victims were asked but declined to make a statement. However, common sense dictates having regard to the nature of the offending that they would have been quite fearful of your actions.
40 It was an aggravating feature of the offending that the armed robberies were committed in company and that, Mr MacKenzie, you were armed with the offensive weapon that you used to make your threats. Mr Moore, on your behalf, submitted to the court that the weapon used was a multifunction plastering tool. However, each of the victims believed such to be a knife. A multifunction plastering tool has a stainless- steel component with a blade-like curve at the end. It does look like a knife and is used by plasterers, so it possibly may be able to inflict serious harm. I am not sure. There was no evidence given about that. But nonetheless, in this case, it is the case that each of the victims all perceived that they were being threatened by a knife and real fear was instilled in them by the use of such tool.
41 Objectively I consider the armed robberies fall in the mid-range of objective seriousness within the broad range of conduct that this charge of armed robbery represents, and that was the submission made by both counsel for MacKenzie and Thwaites. I have already indicated some of the features that are aggravating, namely that it was in company, involved a degree of planning and some understanding as to the respective roles that was used, in order to affect the armed robberies. In the first armed robbery you made some attempt to disguise your identities, in that you were using the full motorcycle helmets and also you used the identity of Mr Nguyen to obtain the attendance of the taxi. In the second armed robbery, Mr MacKenzie, you were wearing the motorcycle helmet.
42 Each of the victims were going about their business as taxi drivers. They were all vulnerable, isolated and alone and each believed a knife was being used to threatened them, such that they were compelled to hand over their cash takings. Notwithstanding that it was only a relatively small amount of money stolen on each occasion, the features of your offending are such that I do consider that the offending is serious and therefore I have assessed it as falling in the mid-range of objective seriousness for this charge.
43 In sentencing you both, denunciation and general and specific deterrence and protection of the community are important considerations. Although with respect to Ms Thwaites, I will be commenting further about that shortly.
44 Mr MacKenzie, I refer now to your personal history and background. Mr Moore on your behalf, appropriately acknowledged that these were serious offences and acknowledged the harm that was caused to the victims.
45 You have the support of your father and sister who were present in Court at the plea hearing.
46 Mr Moore referred me to Ms Carla Lechner's, report dated 18 June 2019. She is a clinical psychologist and she confirms that you present with symptoms of stimulant use disorder in early remission in a controlled environment and also symptoms of depression. You are being treated with antidepressant medication.
47 You commenced drug use with cannabis at age 13, progressing with other illicit drugs, beginning to use ice in 2014 that progressively became a daily habit such that you were using up 3.5 grams of ice per day.
48 I accept that your prior history of offending relatives directly to your escalating drug addiction problem. Your prior history is of relatively recent onset and shows that your offending is becoming more serious.
49 You are the older of two children. Your parents separated when you were nine. There are four older half-siblings and there is a younger sister.
50 You were cared for by your father together with all of your siblings following your mother's departure from the marriage.
51 You have two children aged five and three respectively. In the past, you had been in a relationship for some 12 years and you separated from your partner in 2017. The children remain in their mother's care.
52 More recently you were in the relationship with Ms Thwaites and that relationship was characterised by one of mutual drug use.
53 You left school at the end of Year 10 and obtained a mechanic's apprenticeship. You remained working in that field and obtained further qualifications in LPG and automotive engineering. You worked with C Fulton, Garden Supplier, for about five years until 2016 as well as operating your own mobile mechanics business.
54 Due to the impact of your escalating drug use, your employment and your relationship with your previous partner ceased. Following your separation, your drug use spiralled further out of control with consequential offending and periods of imprisonment.
55 In the years leading up to the breakdown of your relationship, you had been experiencing some neurological problems that have been explored. You had been prescribed Epilim at a stage, for seizures. However, the material suggests that those seizures were non-epileptic in type. Nonetheless, the neurological problems inhibited you from working as a mechanic for some time in 2016 and you lost some employment because of that.
56 As a direct consequence of the collision between the motor scooter and the taxi on the occasion of the third armed robbery, you suffered a dislocated right shoulder with multiple abrasions on your feet and right elbow. The dislocated right shoulder was relocated. Your arm was placed in a sling. You fractured your humerus. You were told to wear the sling for two weeks with no active range of movement. You suffer some pain and discomfort as a consequence of your injury, and it is accepted that you suffered a form of extra curial punishment as a consequence of your offending and I have taken that into account.
57 Mr Moore submitted that your offending was out of character and relied on the absence of prior convictions in respect to violence offences.
58 Your sister, Sonya, provided a reference to the Court which confirms that she is aware of the charges. The news of your charges horrified her, as the person she knows is a loving and caring soul. She describes you as being empathetic and always deeply caring about the suffering of others.
59 Mr MacKenzie, this offending does represent a significant escalating in your offending behaviour, but I accept up to 2015 you were a person who was otherwise hardworking and of good character and I have taken that into account.
60 I have further taken into account the other matters put in mitigation on your behalf.
61 I accept you entered an early plea of guilty. That was indicated at the earliest stage, prior to the first committal mention. The plea has real utilitarian value. You have spared the State the expense and inconvenience of a trial and further, importantly in this case, the trauma of witnesses having to come to court to give evidence. You have facilitated justice and your sentence will be discounted accordingly.
62 I accept the plea is evidence of remorse that is genuine and I have taken into account the statements you made during your assessment with Ms Lechner, and also your sister's statement that you are now strongly motivated to improve your life, to reconnect with your family, and particularly your children in a more meaningful way.
63 You now accept that your actions were wrong, and you have demonstrated appropriate insight into your behaviour. You accept that the offending would have been very frightening for each of the victims and you acknowledge the seriousness of your offending and its impact on them.
64 You have used your time positively in prison undertaking courses and working and you have done some limited courses on substance use and lifestyle.
65 You enjoy an enhanced status in custody because of your positive conduct. You have been working as a leading hand in the nuts and bolts section, performing quality control and pallet packing. This is a regular five-day week role. Previously you also worked in the kitchen when you were held at the Metropolitan Remand Centre.
66 You have had no visitors whilst you have been in custody, but you do maintain regular telephone contact with both your father and your children.
67 Ms Lechner in her report recommends that intensive drug rehabilitation and counselling be provided to you, both in custody and upon your eventual release back into the community. Otherwise you remain a person at risk of further relapse with associated offending.
68 Ms Lechner says that you need to address your addictive personality style and the psychological dependency you have on stimulant drugs and that you may be assisted by some pharmacotherapy but also you need to develop some strategies to manage cravings, relapse triggers and even potential relapses.
69 For the future you plan to be a more positive role model for your children and that is a strong motivating factor for you to improve your life. You are also motivated to deal with your drug problem currently and to obtain employment upon your eventual release.
70 At this stage you do not have any stable accommodation and it is recommended that the authorities take all steps they can to transition you from gaol into the community with an appropriate residence, so as to enhance your rehabilitation prospects.
71 Overall, given your positive conduct whilst in gaol, your expressed motivation to reform, your family support and the steps that you have already taken in custody to address your offending behaviour, I have assessed your rehabilitation prospects as being reasonable.
72 I turn now to Zoe Thwaites and her circumstances. Mr Williams on your behalf outlined in detail your difficult life circumstances and the associated long-term addiction to illicit substances since your early adolescence.
73 Mr Jeffrey Cummins, consultant psychiatrist, sets out in great detail the history which is accepted. You have a sister who is six years your senior and it is said that you never had a relationship with your father. You were informed that he died when you were aged 15. You were told that he died as a consequence of being stabbed in a fight when you were aged seven.
74 You have been a long- term drug user, commencing from age 12, initially using cannabis and then very quickly you were introduced into methylamphetamine and GHB use.
75 Between the age of 12 and 16 you were in the care of the Secretary of the Department of Human Services and placed in residential care and foster placements.
76 You had a son born in 2016 and he has been removed from your care over the years. Currently, he is in the care of a great uncle and auntie, Robert and Sheryl Jackson. He has also been cared for in the past by your half-sister, Amanda. You have, whilst you have been in custody, had regular daily phone calls to your son and you desire to be reunited with him. You have been working with the relevant authorities in order to re-establish your relationship with him.
77 Your mother, Michelle, gave evidence to the Court which confirmed your very complex history and background. She suffered from severe alcoholism that impacted upon your childhood. She confirmed that at an early age you were abused by one of her partners, that included sexual abuse. She said that from about age 12, you would run away from home and you had a very troubled existence. She only had spasmodic contact with you from about age sixteen.
78 In recent times your mother has overcome her addictions. She acknowledged that she had a very difficult relationship with you in the past and in particular, there was an Intervention Order in place to prevent you from returning to her home. In the most recent past, she has revoked that Intervention Order. She accepted, upon hearing your arrest, that you were at a low ebb and she considered that she was in a better place now to support you, now that she was sober and obtained an order revoking the Intervention Order. She then arranged to have her name placed on your visit list and she now visits you regularly and has maintained daily contact with you via the telephone. Your relationship is now a healthy one and your mother confirmed that she has observed a dramatic change in your behaviour since you have been placed in custody at Dame Phyllis Frost.
79 She confirmed that your intentions for the future are that upon your eventual release, that you want to work towards having the day to day care of your son.
80 She states that you have demonstrated remorse to her and that you accept that the impact of the offending on the victims was serious and you sincerely regret your behaviour.
81 You gave evidence in the plea hearing and adopted a written apology, from which I quote. You say to each of the people who are the subject of the armed robberies:
'I don't expect to be forgiven for what happened at the time to all three of you, but I would like you to please accept my sincerest apologies. I understand how much this trauma has impacted upon your lives and it is with deepest regret that I am responsible for this. I realise that at the time of this crime I was out of control and under the influence of drugs, and whilst this is not excuse, I was unable to understand the gravity and the damage I was doing to each of you then. Since being incarcerated I have withdrawn from drugs and completed several self-help courses and drug programs, which have made me aware of my inability to control myself at that time. I have learnt to recognise my triggers and understand it will be an ongoing battle to control myself. However, I am a much stronger and wiser person. I am sure I will be able to turn my life around and become a better person and be able to put my drug use in the past'.
82 And finally you sign off: 'I would like to sincerely apologise to each of you and hope that my stupid actions do not taint your lives in the future. I am not asking for forgiveness, but that you please accept my deepest remorse'.
83 I am satisfied having heard you give evidence, that your expressions of apology are sincere and that you do now have a proper understanding of the trauma that you inflicted upon each of those people, and that you do sincerely regret your actions. You now have demonstrated real insight, where you do not excuse your behaviour, but you acknowledge that you were responsible for the commission of the armed robberies.
84 It was submitted on your behalf by Mr Williams that there were different roles played in this offending, insofar as it was Mr MacKenzie who was the person who brandished the knife and made the demands for cash and threatened each of the individuals directly.
85 I confirm my view is that the roles, whilst they did involve each of you performing different acts, I am satisfied that the method employed on each occasions was similar and that there was an agreement that you had both reached prior to the execution of the armed robberies, whereby you had agreed as to your modus operandi and that you acted out accordingly on each occasion, in order to effect the armed robbery. My view is that you both played an equal role in the offending and you will be sentenced on that basis, and that is notwithstanding Mr MacKenzie is somewhat older than Ms Thwaites. My assessment is that you, Ms Thwaites, are a very mature person, old before your time, probably borne of your years of living on the streets, living on your own resources. Mr MacKenzie I have assessed as being a very immature 33 year-old.
86 Moving onto your personal circumstances. I accept that currently, whilst you have been in Dame Phyllis Frost, that you are in a very good position to be able to turn your life around and make good your commitment to change. You have made excellent progress whilst you have been on remand at Dame Phyllis Frost. You are currently living in an open unit with five other people.
87 You have provided the court with evidence that you have withdrawn from drugs and given your history that you were a daily user of both the drug GHB and ice, I consider that that is significant.
88 You have been working as a level one billet and you have done some work in the laundry too. You are getting on well with co-prisoners and you have importantly, re-established a more significant and meaningful relationship with your mother. You have actively explored pathways for future employment. You said in evidence that you had obtained your white card and that you were positive about the future.
89 You have been able to live independently at the unit and enjoy privileges that you have earnt whilst in custody. So, I accept that you have taken every opportunity whilst in custody to address your underlying offending behaviour, and that overall I consider that you do have very good prospects of rehabilitation.
90 This is a case where ordinarily the court could have had regard to the imposition of a Youth Justice Centre order, however having regard to your demonstrated level of maturity and the fact that you have made such positive progress whilst at Dame Phyllis Frost, to do so would be to disrupt your present situation, such that I did not consider that a disposition of that nature was warranted. I have also had regard to the particular seriousness of the offending, which I have already said is mid-level of seriousness for armed robbery.
91 I accept all the matters that have been put on your behalf by Mr Williams. I accept that yours is an early plea of guilty which has real utilitarian value, and for the same reasons as earlier expressed, I accept that you have facilitated justice and your sentence will also be discounted accordingly.
92 I have had particular regard to your traumatic past history and background, and I accept that your background has been one that is characterised by significant and profound trauma and deprivation and I have applied the principles annunciated in Bugmy[1]. The effects of profound childhood deprivation do not diminish with the passage of time or repeated offending and I have given full weight to that, in formulating the appropriate sentence.
[1]Bugmy v R (2013) 302 ALR 112.
93 I have had regard to that in terms of assessing your moral culpability and also the need to impose general and specific deterrence and I have moderated that, having regard to your situation.
94 You are a young offender and therefore your rehabilitation is a primary sentencing factor. I have applied the Mills[2] principles. I accept that you have now demonstrated substantial and significant changes whilst in prison and that you have excellent rehabilitation prospects.
[2] [1991] 4VR 235, 241
95 I noted that you did have a limited criminal history and there was only one entry that was of relevance to me, and that related to an assault with intent to rob and unlawful assault and that related to a situation where you were with a group of young people drinking in the Central Business District, and you requested money and used threats. It was stated that this was a relatively minor assault and I do not have any other details of that, but I have had regard to that.
96 I have also had regard to and read the extracted entries from the Monash Medical Centre emergency department and I accept the context to the offending was that you were a person who was struggling with homelessness, mental health issues and issues associated with sexual assaults and domestic violence prior to the offending. (ED attendances; sexual assault (Jan 2018), Sept 2018 – assaulted by Mr Tran, self-harm (June 2018) mental health assessment (August 2018).
97 It was noted that you were not taking medication or seeing a psychologist and I infer from the various attendances, that your lifestyle over the period of January 2018 leading up to September 2018 was one that was characterised as being very chaotic and centered on the heavy use of GHB and methylamphetamines, and that impacted upon your mental health as well, so I have taken that into account.
98 In formulating the appropriate sentence, I have had regard to the principle of parity, which requires that like offenders be treated in a like manner whilst allowing for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different subjective circumstances. [3]
[3] Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26; Lowe v The Queen (1984) 154CLR 606 at 609-610; [1984] HCA 46.
99 There are factors which do justify a disparity in sentence in this case. In particular, Ms Thwaites, you are a young offender, you can rely upon the principles of law that apply in relation to sentencing for youthful offenders and also the need for rehabilitation to be a primary sentencing consideration. In addition, your prior criminal history is not as extensive as your co-accused, Mr MacKenzie. Further your traumatic family background and mental health issues also play a role in moderating your sentence as I have earlier articulated. I have also had regard to the fact that this is the first occasion that you have experienced being held in custody and it has been in an adult facility.
100 Overall, I must impose just punishment. I have had regard to the principles of totality and proportionality.
101 I will now announce the formal orders, so I ask that both of you please stand. I will deal with Mr MacKenzie first. I will state that an aggregate term of imprisonment will be imposed in respect to the armed robberies, that is one sentence, because I consider that the armed robberies form part of a series of offending, of same or similar nature and I consider such a term of imprisonment to be appropriate.
102 Mr MacKenzie, in relation to Charges 1, 2, 3 the armed robbery charges, you will be convicted and sentenced to an aggregate term of imprisonment of three years;
103 In relation to Charge 4, the theft you will be convicted and sentenced to 12 months' imprisonment. I order that 6 months of that sentence be cumulative upon the aggregate sentence imposed in respect to Charges 1 to 3, making a total effective sentence of 3 years and 6 months' imprisonment.
104 In relation to the summary charge of commit indictable offence whilst on bail you will be convicted and sentenced to 1 month imprisonment and that is cumulative upon the sentence imposed with respect to the indictment. So that makes a total effective sentence of 3 years and 7 months and I fix a non-parole period of 2 years' imprisonment.
105 I make the following declaration, pursuant to s.6AAA of the Sentencing Act 1991. But for your plea of guilty, I would have imposed a term of five years' imprisonment to serve three years' imprisonment.
106 I make the following declaration of pre-sentence detention: I declare you have undertaken 280 days pre-sentence detention and direct that that be entered into the records of the court. You can now sit down, Mr MacKenzie.
107 Ms Thwaites, in relation to Charges 1, 2, and 3, the armed robbery charges, you will be convicted and sentenced to an aggregate term of 2 years' imprisonment
108 In relation to Charge 4, the theft, you will be convicted and sentenced to 12 months' imprisonment and I order that 6 months of that sentence be cumulative upon the aggregate sentence, making a total effective sentence for the indictment of 2 years and 6 months imprisonment.
109 In relation to your summary charge of commit indictable offence whilst on bail you will be convicted and sentenced to 1 month imprisonment, cumulative upon the sentence imposed with respect to the indictment. That makes a total effective sentence of 2 years and 7 months.
110 I fix a non-parole period of 10 months' imprisonment. I have fixed a non-parole period shorter than it would otherwise have been because of your efforts towards and prospects of rehabilitation.
111 I make the following declaration, pursuant to s.6AAA of the Sentencing Act: But for your plea of guilty, I would have imposed a term of four years', to serve 2 years' imprisonment.
112 I make the following declaration of pre-sentence detention: I declare you have undertaken 275 days pre-sentence detention and direct that that be entered into the records of the court.
113 Finally with respect to you, Ms Thwaites, I make an order pursuant to s.464ZF(2) for the taking of a forensic sample. I note the order was not opposed and I have had regard to the seriousness of the circumstances of the offending, and consider such an order is warranted and the granting of the order is in the public interest.
114 What that means in respect to you, Ms Thwaites, is at some stage you will be asked to provide a forensic sample by way of what is called a Buccal sample. They will give you a little cotton bud to put in your mouth, to rub against your cheek and provided that you comply with that, the order will be fulfilled. But if not, I have to tell you that reasonable force can be used to take that forensic sample, and that can be by way of a blood sample. So hopefully that will not be necessary.
115 I am not making any orders in relation to the licenses.
116 MS BURNETT: As Your Honour pleases.
117 HER HONOUR: It is discretionary, and I do not consider that there is any utility in making an order of such nature in these circumstances. I think that covers everything for both of them.
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