Director of Public Prosecutions v Matete

[2025] VCC 550

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-25-00015
CR 25-00586

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSIAH MATETE

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April and 15 May 2025
DATE OF SENTENCE:	15 May 2025
CASE MAY BE CITED AS:	DPP v Matete
MEDIUM NEUTRAL CITATION:	[2025] VCC 550

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Plea of guilty – indictment C2400367: theft (2 charges); arson (4 charges) – summary charge of possess an imitation firearm (1 charge) – summary charge of cartridge ammunition without being licensed (1 charge) – indictment Q11897286: armed robbery (1 charge); theft (1 charge); causing injury intentionally (1 charge); aggravated carjacking (1 charge) – summary charge of drive while suspended (2 charges) – summary charge of fail to comply with direction (1 charge) – summary charge of careless driving (1 charge) – summary charge of fail to provide name and address at scene of accident (1 charge)

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991; Disability Act 2006

Cases Cited:Castillo (a pseudonym) v The King [2023] VSCA 150

Sentence:                  Total effective sentence of four years’ detention in youth custody facility

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C Davis	Office of Public Prosecutions
For the Accused	Mr J Bourke	Slink and Keating

HER HONOUR:

1Josiah Matete, on Indictment C2400367 (“the first indictment”), you have pleaded guilty to two charges of theft of motor vehicle contrary to section 74(1) of the Crimes Act 1958, and four charges of arson contrary to sections 197(1) and 197(6) of the Crimes Act 1958, as well as to related summary offences (3 and 4) of non-prohibited person possess an imitation firearm contrary to section 5AB(1) of the Control of Weapons Act 1990, and possess cartridge ammunition without being licensed contrary to section 124(1) of the Firearms Act 1996. These charges concern conduct which occurred on three days in May 2024.

2On Indictment Q11897286 (“the second indictment”), you have pleaded guilty to one charge of armed robbery contrary to section 75A of the Crimes Act 1958, one charge of theft of motor vehicle contrary to section 74(1) of the Crimes Act 1958, one charge of causing injury intentionally contrary to section 18 of the Crimes Act 1958 and one charge of aggravated carjacking contrary to section 79A of the Crimes Act 1958, as well as to related summary offences of drive while suspended contrary to section 30(1) of the Road Safety Act 1986 (summary charges 6 and 7), fail to comply with direction contrary to section 465AAA(4) of the Crimes Act 1958 (summary charge 8), careless driving contrary to section 65 of the Road Safety Act 1986 (summary charge 12) and fail to provide name and address at scene of accident contrary to section 61(1)(c) Road Safety Act 1986 (summary charge 13). These charges concern conduct which occurred on 10 and 16 August 2024.

3There was a committal on the first indictment in January 2025 but no witnesses were cross-examined. The two matters were resolved on 2 April 2025. As you will turn 21 in May 2025, an expedited plea hearing was allocated. The plea hearing began on 29 April and concluded today on 15 May 2025.

4The maximum penalty for each of the offences of aggravated carjacking and armed robbery is 25 years’ imprisonment. The maximum penalty for arson is 15 years’ imprisonment. The maximum penalty for each of the offences of theft and intentionally cause injury is 10 years’ imprisonment. The maximum penalty for each of summary charges 3, 6 and 7 is 2 years’ imprisonment or 240 penalty units. The maximum penalty for summary charge 4 is 40 penalty units. The maximum penalty for summary charge 8 is 2 years’ imprisonment. The maximum penalty for summary charge 12 (first offence) is 12 penalty units. The maximum penalty for summary charge 13 (first offence) is 14 days’ imprisonment or 5 penalty units. A conviction for car theft or aggravated carjacking requires the Court under section 89(4) of the Sentencing Act (“the Act”) to suspend, or cancel and disqualify your licence.

5The details of the offending the subject of your pleas are set out in the Summary of Prosecution Opening in respect of each Indictment, which was accepted by your counsel, and I sentence you on the basis of the facts set out in those documents.

The first indictment

6The conduct the subject of the first indictment occurred in May 2024. Your co-accused was your biological father, Petros Patto, who is 36 years old.

7Charges 1, 2 and 3 refer to conduct which occurred on 12 May 2024. On 18 April 2024, a white KIA Sportage SUV (“the KIA”) was stolen. On 20 April 2024, an unregistered grey Hyundai Tuscon SUV (“the Hyundai”) was stolen from a repair shop in Coolaroo.

8On 6 May 2024, you messaged a person called Wally Khaldie seeking to obtain a stolen vehicle. He offered you the Hyundai and you texted him that you and your father agreed to take the vehicle and asked him to park it somewhere. On 10 May you exchanged messages with him about using the KIA. On 12 May 2024, the Hyundai and the KIA were driven to Hadfield Finest Fruit & Veg. Your father got into the Hyundai, handed you several clear bottles of liquid, then used the car to ram the front of the building twice, damaging the roller door and internal frontage. You both got out of the car and threw the contents of the bottles into the property. Your father took a rag from the car, lit it and threw it into the property. The premises and the car quickly ignited. This is the subject of charges 1, 2 and 3. You sent messages to people claiming responsibility for the arson. Police and fire crews attended and the fire was extinguished. The scene was investigated.

9On 15 May 2024, at around 8.45 pm, persons driving the stolen KIA stole registration plates from a sedan belonging to Stephen Gaffee, which was parked in Dimboola Rd, Broadmeadows. A few minutes later, you and your father attended a Caltex service station in Broadmeadows in the stolen KIA, which had affixed to it the registration plates stolen from Mr Gaffee’s car. This is the subject of charge 4.

10On 16 May 2024 at 5.50 am you and your father attended the Major Road Milk Bar in Fawkner in the stolen KIA. One of you got out of the car and cut the padlock securing the front shutters. You or he then reversed the KIA into the store. You both entered the store, poured accelerant inside the store, ignited it, and fled in the KIA. This is the subject of charge 5. The shop owner living at the property connected to the back of the store was woken by the store alarm and called 000. He tried to put out the fire. Emergency services put the fire out. Police obtained CCTV footage from the area and tested items at the scene. DNA testing of a vape found at the scene was linked to you. An arson chemist examined the car and concluded that the fire was ignited directly by a match or cigarette lighter.   

11At 7.00 am, the KIA crashed in Westmeadows. The two of you set fire to it before leaving the scene on foot. This is the subject of charge 6.

12You were arrested at home on 17 May 2024. In your bedroom, police located a black plastic imitation firearm (summary charge 3) and cartridge ammunition (summary charge 4). You and your father were separately questioned by police and each gave a no-comment interview. You were granted bail on 29 May 2024 but were later rearrested.

The second indictment

13On 10 August 2024, at 11.20 pm, Mr Gurjitpal Singh parked his car near premises at 35a Northgate Drive, Thomastown. Ten minutes later, you and your younger co-accused parked your car nearby and loitered near the premises. You had a scarf covering your face, were wearing a tracksuit and black Nike shoes, and were holding a bottle as a weapon. Your co-accused was wearing a tracksuit and white Nike runners and was armed with a knife. You both confronted Mr Singh as he walked to his car. You hit him on the head with the bottle. Mr Singh gave you $400 in cash and the keys to his car. You both pushed Mr Singh to your car but Mr Singh was able to flee. In doing so, he lost his shoes, shirt and jacket, and his CBA card which was in it. This is the subject of charge 1, armed robbery. As Mr Singh ran away, your co-accused stabbed him in the back. This is the subject of charge 3, intentionally cause injury.

14Mr Singh kept running and called 000. CCTV footage showed one of you driving his car away from the scene, and the other of you driving the car you had arrived in. This is the subject of charge 2, theft of motor vehicle, and summary charge 6, driving while suspended.

15On the way to hospital, Mr Singh cancelled his bank card and was told that attempts were being made to use it with Uber Eats. Mr Singh was treated in hospital where he received stitches in his back and treatment for a chest wound, injury to the right forehead and abrasion to the left shoulder. He was discharged the same day.

16Police investigation located some of Mr Singh’s items. CCTV footage from multiple cameras had caught the incident. Information from Uber Eats revealed that someone from your address had tried to use Mr Singh’s bank card.

17On 16 August 2024, Mr George Elarmaly was delivering pizzas in a Toyota Yaris. You and your co-accused were in a Toyota Prado and followed him to an address. When he returned to his car after making a delivery, the Prado drove forward into the back of his car. He tried to speak with you. You were wearing a t-shirt used as a balaclava, dark tracksuit pants and gloves. Your co-accused was wearing the same head-covering, tracksuit pants and gloves. He was armed with a machete. You demanded that he give you his car keys and the co-accused brandished the machete. Mr Elarmaly tried to run away but you chased him and started punching him. Your co-accused tried to slash him with the machete, damaging his jacket. You both continued to demand his car keys. He threw the keys away from him. You held on to him and made threatening gestures, while the co-accused pointed the machete at his head.

18You then both went back to the cars. You drove the Prado, and your co-accused drove Mr Elarmaly’s car away. This is the subject of charge 4, aggravated carjacking. Police were called. Shortly after leaving the scene, the Prado you were driving collided with a black BMW, causing it to collide with a White Toyota Kluger. This conduct is the subject of summary charges 7, 12 and 13. You ran away from the scene. The Prado and the BMW were badly damaged. Witnesses called 000. Police examined the Prado, obtained CCTV footage from the area and your call records. DNA recovered from items in the Prado were linked with you.

19Mr Elarmaly’s car was located in Coolaroo on 28 August 2024.

20On 5 September 2024, police executed a search warrant at your home and seized clothing matching those worn by you during the offences. You refused to give police the passcode for your mobile devices. This is the subject of summary charge 8. You were arrested and gave a no comment interview.

21There are 264 days of pre-sentence detention not including today, across both indictments. 

Victim Impact Statement

22The prosecutor read out the Victim Impact Statement of Mr Elamarly dated 22 April 2025. Mr Elamarly stated that the incident changed his life completely. Prior to the incident, he was a happy, well adjusted, employed person with healthy social relationships. Since the incident he has become an isolated, anxious, hypervigilant person who suffers from mood swings and depression, is afraid of driving, has constant nightmares, and some days cannot get out of bed. He was so traumatized by the incident that when he got his car back he could not get into it and had to sell it at a loss. He had to borrow money to change the locks on his house. He lives in constant fear for himself, his family and his friends.

Prosecution submissions

23In relation to both indictments, the prosecution sought a term of imprisonment comprising a head sentence with a non-parole period which complies with the mandatory minimum of 3 years for aggravated carjacking. It was submitted that you were a significant participant in multiple types of offending over multiple days, and that your offending was planned through the scouting of locations, the sourcing of stolen vehicles and the choice of locations.

24The aggravating factors of your offending include: that it was committed in company; that it was planned; that the victim of the May 2024 offending lived behind the shop; that you tried to conceal that offending by torching the car used; and that all of the offending the subject of the second indictment was committed while you were on bail for the May 2024 offences. The second episode of offending was more serious in that you concealed your face and were armed, on one occasion, with a bottle; that the offending was carried out against members of the public not known to you, and, in the case of Mr Elarmaly, while he was carrying out his work duties. The impact of your offending on Mr Elarmaly has been profound. 

25The prosecution accepted that you have no prior convictions and that your pleas had utilitarian value in sparing the expense and inconvenience of a trial.  It was accepted that your moral culpability is moderated to some degree by your disadvantaged upbringing and your intellectual disability. It was submitted that, given the seriousness of your offending, less weight ought to be given to your youth than would usually be the case. It was submitted that it is difficult to assess your prospects of rehabilitation because you had little recollection of the offending due to your drug taking and that the neuropsychological report of Dr Yamin did not address the relationship between your drug-taking and your offending. Importantly, Dr Yamin’s report did not state that you did not understand what you were doing, or that your conduct was wrong. For these reasons, it was submitted that specific deterrence and community protection remain relevant considerations. It was also submitted that Dr Yamin’s report did not address how imprisonment would worsen your condition. 

Personal circumstances

26Your personal circumstances were addressed in the neuropsychological report, dated 18 April 2025, by Dr Sami Yamin. Dr Yamin provided an updated addendum report which was tendered on 15 May 2025. There were also brief medical and other assessments confirming your intellectual impairment and ADHD.[1]

[1] Letters from Dr Muy Lim dated 11 October 2015 and 30 October 2022, and from Dr Sian Hughes dated 23  August 2017; and an occupational therapy assessment report dated 31 May 2016 by Trisnawati Tanumihardjo.

27You were born in Australia as an only child to a Maori mother and Iranian father. You were cared for by your mother and had limited contact with your father. Between the ages of six and eleven you lived with your grandmother due to physical and mental abuse from your mother’s partner. You then returned to live with your mother.

28You have an intellectual impairment and attended a special needs school and were diagnosed with ADHD, for which you received medication for a number of years. You started smoking marijuana at age 13, began abusing Xanax at the age of 16, and used methylamphetamine from the age of 18. At the time of offending you were using up to 2 grams of methylamphetamine per day and abusing Xanax. You had little memory of the offending but recalled leaving the scenes and being arrested.

29Upon testing, Dr Yamin assessed you as having extremely low intellectual functioning, with a full scale IQ of 61. Dr Yamin concluded that your intellectual functioning is predominantly in the “Extremely Low” category and that you have “a severe cognitive impairment with reduced intellectual function, memory and learning and executive function”.[2] Dr Yamin opined:

In terms of the presence of an intellectual disability at the time of the offending, intellectual disabilities are neurodevelopmental in nature and therefore are present from birth. As such, Mr Matete’s intellectual function was most certainly in the Extremely Low range at the time of the offence. Again, the neurodevelopmental nature of this condition will mean that deficits will remain stable and will be lifelong.

The deficits outlined represent an immaturity in his thinking and therefore would have influenced Mr Matete’s behaviour by impairing his ability to exercise appropriate judgment and to make clear and rational and even age appropriate choices. The results of the assessment also indicate that he is likely to have been disinhibited at the time the offences were committed.

The cognitive deficits while in themselves do not explain why he committed the offences, these factors do reduce or mitigate his moral culpability as per Verdins principles…..His ability to reason and consider his choices is not the same as other individuals his age and this should be taken into consideration.[3]

[2] Neuropsychological Report of Dr Sami Yamin dated 18 April 2024, 4.

[3] Ibid 5.

30In his addendum report, Dr Yamin noted that your intellectual disability places you in the bottom 0.5% of the population.[4] Your intellectual disability makes you more susceptible to the influence of others, especially those, like your father, who you perceive to be a trusted person. Dr Yamin noted that due to your cognitive deficits and your limited verbal skills, you find it more difficult to understand instructions and processes, and you would find it difficult to make age-appropriate decisions, which would make you vulnerable in prison to the influence of older prisoners without a cognitive disability. Dr Yamin noted that you lacked positive role models, have not been provided with adequate care and support to manage your disability, and require support to manage your mental health and polysubstance and alcohol abuse. He considered that your prospects of rehabilitation are reasonable if these supports are provided. He noted that you expressed some remorse for your actions but had a poor memory of the offending.

Aggravated carjacking – Section 10AD

[4] Addendum Report of Dr Sami Yamin undated, filed 15 May 2025.

31The most serious of the offences you committed is that of aggravated carjacking. Section 10AD(1) of the Act requires that a custodial sentence must be imposed for the offence of aggravated carjacking, and that the non-parole period fixed must be not less than 3 years “unless the court finds under section 10A that a special reason exists.”

32The prosecution submitted in relation to the mandatory minimum 3 year non-parole period for the offence of aggravated carjacking provided under s10AD of the Act, that the evidence of Dr Yamin was not sufficient to warrant deviation from this mandatory minimum on the basis of a finding of “special reasons” under s10A(2)(c)(ii) of the Act, namely because of your intellectual disability you are “subject to substantially and materially greater than the ordinary risks of imprisonment.”[5]

[5] Prosecution submissions dated 29 April 2025 [5].

33Your counsel submitted that, as a person with impaired mental functioning in the form of an intellectual disability within the meaning of the Disability Act 2006, a special reason exists because the Court should find, on the balance of probabilities, under s10A(2)(c)(ii) you have impaired mental functioning “that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.”

34I accept the evidence of Dr Yamin concerning the impact of your intellectual disability on your ability to make age-appropriate decisions, and on your vulnerability to negative influence from other, older, cognitively intact prisoners. I am satisfied that a special reason exists which would attract a less than the mandatory 3 year minimum non-parole period in respect of the offence of aggravated carjacking.

Section 32 exceptional circumstances

35As the offence of aggravated carjacking is a Category A serious youth offence under section 3 of the Act, the Court must not make a youth justice order unless satisfied that exceptional circumstances exist under s 32(2C) of the Act. The prosecution conceded that each case turns on its own facts, but submitted that your circumstances do not rise to the level of exceptional.[6]

[6] In this regard, the prosecution relied on the case of Castillo (a pseudonym) v The King [2023] VSCA 150.

36Your counsel submitted that, taken together, your intellectual disability, disadvantaged background, young age, lack of prior convictions, guilty pleas, application of limbs 2-5 of Verdins, and positive prospects of rehabilitation constitute “exceptional circumstances” which make you suitable for a Youth Justice Centre Order (“YJCO”).

37I considered that, in the circumstances of this case, the combination of factors relied upon by your counsel: that is, your seriously disadvantaged background, your intellectual disability, your youth, reduced moral culpability, vulnerability to the influence of others (and therefore the unsuitability of your serving a term of imprisonment), lack of prior convictions, guilty pleas; together constitute exceptional circumstances warranting the assessment of your suitability for a Youth Justice Centre Order and I therefore ordered a Pre-Sentence Report.

38The Pre-Sentence Report dated 8 May 2025[7] assessed you as suitable for detention within a Youth Justice Centre for a number of reasons, including: the relatively late age you commenced offending; your satisfactory engagement with Youth Justice; your engagement with programs in custody; your insight into the consequences of your offending for both the community and your victims; and the support you have from your mother and grandmother. It was considered that you have reasonable prospects of rehabilitation.  

[7] Suitability of Youth Justice Centre Order Pre Sentence report, 8 May 2025.

39The report noted that whilst on bail you attended 10 of 15 scheduled Youth Justice appointments and that whilst on remand at Ravenhall Corrections Centre, you have completed the Ice and Me AOD Program and have been referred to the Healthy Body and Mind and Keeping Your Cool programs.

Final submissions

40Your counsel acknowledged the seriousness of your offending but relied on your intellectual impairment as moderating your culpability and as enlivening limbs 2-5 of Verdins. It was noted your offending occurred when you were 19 and 20 years old, and immature. Your counsel relied on your disadvantaged upbringing as warranting some moderation in sentence.

41Your counsel also relied on your youthful immaturity as warranting emphasis on rehabilitation to protect the community from further offending, and as warranting consideration that the effect of incarceration in an adult prison on a young offender is likely to impair, rather than improve, the offender’s prospects of successful rehabilitation. Your counsel submitted that your prospects of rehabilitation are reasonable as you have expressed pro-social intentions of engaging in further education and seeking employment.

42In addition, your counsel relied on the absence of any prior convictions, the utilitarian value of your pleas which also reflect your acceptance of responsibility and provide some evidence of your remorse as well as the remorse expressed to Dr Yamin and the Pre-Sentence Report authors, albeit that it was of a limited nature.

43Finally, your counsel relied on the principle of totality to avoid a crushing sentence having regard to your intellectual disability, young age and disadvantaged background. In this regard, your counsel submitted that it was open to the Court in imposing penalty to not declare the 264 days of PSD already served by you.

44The prosecution conceded your pleas of guilty, intellectual disability, youth and early disadvantage but submitted that, in all the circumstances, the appropriate disposition in relation to the totality of your offending is one of the imposition of term of imprisonment with a non-parole period which takes into account the mandatory minimum non-parole period of 3 years in respect of the offence of aggravated carjacking.

Sentencing Considerations

45I consider that for the reasons outlined by the prosecution, your offending is serious. I note that the offending in the charges the subject of the second indictment is more serious again. However, I accept the matters put in mitigation on your behalf.

46Having regard to all of the material before me, and having carefully considered all the matters raised by counsel, I note that in spite of your intellectual impairment,  you did not commit offences until the age of 18 or 19, and then only in company. I consider that you have reasonable prospects of rehabilitation and that due to your youth, immaturity and intellectual impairment, you would be particularly impressionable or likely to be subject to undesirable influences in adult custody.

47I am satisfied that all the purposes of sentencing , including general and specific deterrence, denunciation, just punishment, community protection and rehabilitation, particularly of youthful offenders, can be met by the imposition of a Youth Justice Centre order. I propose to impose an aggregate sentence of detention in respect of the offences under each indictment. In order to give weight to the seriousness of your offending, I indicate that I have deliberately not taken account of pre-sentence detention served to date.

Sentence

48Would you please stand, Mr Matete.

49On the summary charges and the charges contained in the first indictment, I impose an aggregate sentence of 12 month’s detention in a youth custody facility.

50On the summary charges and the charges contained in the second indictment, I impose an aggregate sentence of four years’ detention in a youth custody facility.

51Pursuant to section 6AAA of the Act, I indicate that but for your pleas of guilty to the above charges, I would have imposed a total effective sentence of 6 years with a non-parole period of 4 years.

52As the charges of carjacking and car theft on each indictment carry mandatory interference with your driver’s licence, I propose to suspend your licence for a period of two years. This will be noted on the court’s record in relation to each indictment.

53As there was no objection from your counsel, I make the disposal and forfeiture orders as sought by the prosecution on each indictment.