Director of Public Prosecutions v McCulloch
[2023] VCC 1819
•10 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02223
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARCY MCCULLOCH |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2023 | |
DATE OF SENTENCE: | 10 October 2023 | |
CASE MAY BE CITED AS: | DPP v McCulloch | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1819 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Young offender – category 2 offence – armed robbery - totality
Legislation Cited: Sentence Act 1991 (Vic)
Cases Cited:Warboyes v R [2020] VSCA 169; Azzopardi v R [2011] VSCA 372; R v Mills [1998] 4 VR 235.
Sentence: Total effective sentence of 3 years 6 months detention in a Youth Justice Detention Centre; 9 days presentence detention reckoned as served; 6AAA declaration – a term of imprisonment in adult custody.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. McMaster (plea) Ms B. Cunningham (sentence) | Office of Public Prosecutions |
| For the Offender | Ms M. Greener (plea) Mr D. Risstrom (sentence) | Emma Turnbull Lawyers |
HER HONOUR:
Introduction
1Darcy McCulloch, you have pleaded guilty to an indictment containing:
· three charges of handling stolen goods, each of which carries a maximum penalty of 15 years' imprisonment;
· three charges of theft, each of which carries a maximum penalty of 10 years' imprisonment;
· three charges of obtaining financial advantage by deception, each of which carries a maximum penalty of 10 years' imprisonment;
· one charge of armed robbery, which carries a maximum penalty of 25 years' imprisonment;
· two charges or causing injury recklessly, each of which carry a maximum penalty of five years' imprisonment;
· one charge of destroying property, which carries a maximum penalty of 10 years' imprisonment;
· one charge of attempted robbery, which carries a maximum penalty of 10 years' imprisonment;
· one charge of conduct endangering persons, which carries a maximum penalty of five years' imprisonment;
· one charge of damaging property, which carries a maximum penalty of 10 years' imprisonment;
· one charge of common assault, which carries a maximum penalty of five years' imprisonment;
· two charges of robbery, each of which carry a maximum penalty of 15 years' imprisonment; and
· two charges of prohibited person possess imitation firearm, each of which carry a maximum penalty of 10 years' imprisonment.
2At the hearing of your plea in mitigation of penalty, nine related Summary Offences were uplifted with your consent into the hearing, and you pleaded guilty to these charges, namely:
· five charges of commit an indictable offence whilst on bail, being commission of your offences of theft of motor vehicle, handle stolen goods (four charges), obtaining financial advantage by deception (two charges), reckless conduct endangering serious injury, obtaining property by deception, robbery, each of which carries a maximum penalty of three months' imprisonment;
· two charges of driving whilst disqualified, each of which carries a maximum penalty of two years' imprisonment;
· one charge of failing to stop motor vehicle after accident, which carries a maximum penalty of 14 days' imprisonment; and
· one charge of dangerous driving, which carries a maximum penalty of two years' imprisonment.
3The circumstances in which you came to commit those offences were set out in a summary of prosecution opening dated 29 August 2023, which together with the amended prosecution outline of submissions on plea dated 1 September 2023 was marked into evidence as Exhibit A in the hearing. The prosecution also relied on:
· prosecution plea submissions dated 28 August 2023 with prosecution chronology (Exhibit B);
· victim impact statement of Brett Lynn (Exhibit C);
· victim impact statement of Sacha Joargenson dated 29 August 2023 (Exhibit D);
· victim impact statement of Josh Raiti (Exhibit E);
· victim impact statement of Stephen Khlentzos dated 24 August 2023 (Exhibit F);
· Community correction order report progress to date of 21 July 2023, together with the correspondence, and update on progress on community correction order dated 30 August 2023 (Exhibit G); and
· assessment report from youth justice dated 28 August 2023 (Exhibit H).
4In addition to the matters developed in oral argument, your counsel relied on defence plea submissions dated 30 August 2023 (Exhibit 1); psychological report by Naomi Cameron dated 26 April 2022 (Exhibit 2); a court report from Jodie Armstrong of IPC Health Alcohol and other Drug Services dated 31 August 2023 (Exhibit 3); a bundle of character references (Exhibit 4) – and I have today been handed – a further document, notification of completion of community corrections order, which I will now receive and mark a Exhibit 5.
5I have had careful regard to each of these documents as well as to the matters advanced in oral argument when determining the appropriate sentences in your case.
Circumstances of your offending
6The circumstances of your offending are set out in the detailed summary of prosecution opening.
7At the time of your offending, you were 19 years of age and you were in a relationship with a co-offender, Ms Morgan Ainsley[1].
[1] A pseudonym.
8In brief, following a spree of offences committed around the Melbourne metropolitan area in December 2021 and January 2022, Victoria Police set up an investigation. You were one of a number of young people implicated in the alleged offending identified by police in this investigation. There were a number of others identified in connection with the offending.
9Between 25 and 31 December 2021, number plates and vehicles were stolen from various addresses.
10On 31 December 2021, you, in company with co-offenders Mr Yates[2] and Ms Ainsley, drove a blue Holden VX Commodore to Latest Car Wreckers located at an address in Pakenham. The vehicle had two different number plates attached. Your vehicle and the occupants, with you as driver, were recorded on the car yard's CCTV camera as arriving at 11.12 am.
[2] A pseudonym.
11You spent some time walking around the car yard before leaving.
12On 2 January 2022, police attended at an address in Hoppers Crossing, which was the address of your co-offender Rhylie Carter[3], where a gold coloured Holden Commodore was located, displaying the same two plates as were previously on the blue Holden Commodore. Your assistance in the retention of the stolen goods, namely the number plates, is the offending referable to your Charge 1 of handing stolen goods.
[3] A pseudonym.
13On 3 January 2022, a woman parked a Holden Rodeo utility on the street outside an address in Bourke Street in Coburg. Between 11.00 pm and 5.00 am, unknown offenders forced a passenger side rear window down, and entered the victim's vehicle stealing loose change, a set of keys, and the victim's bank card. At some time prior to 5.04 am on 4 January 2022, you came into possession of the Visa bank card issued by Victoria Teachers Limited, belonging to the victim Ms Bianca North.
14At 5.03 am on 4 January 2022, CCTV from the Southvale BP service station at 303 Bell Street, Coburg showed the gold Holden Commodore enter the car park and park at the side of the service station, with you as the driver and with co-offenders in the vehicle, and you entering the service station. Upon you entering the service station, you used Ms North's bank card to purchase two packs of cigarettes valued at $55.00 each, and $30.00 worth of fuel. A co-offender used another stolen bank card to make other purchases whilst the two of you were inside.
15Shortly thereafter, at 5.11 am, CCTV from the 7-Eleven store located at the corner of Bell and Elizabeth Streets in Coburg depicted the gold Holden Commodore arrive with you driving and other co-offenders in the vehicle, and you entering the store with the co-offender Trickett[4]. At 5.13 am, electronic bank records show that you purchased cigarette filters and papers, and a packet of cigarettes valued at $59.39 again using Ms North's bank card. You also used the bank card to purchase Krispy Kreme Donuts valued at $14.50.
[4] A pseudonym.
16Your use of Ms North's bank card, to which you were not entitled, to purchase the items that I have listed, is the offending referable to your Charge 2, a course of conduct charge of obtaining financial advantage by deception.
17On 1 January 2022 at 12.29 am, you and co-offenders Mr Yates and Ms Ainsley, as well as another unidentified person, again attended the business of Latest Car Wreckers. You and co-offenders entered the yard and gained access to an unregistered 1998 gold coloured Holden Commodore. You walked around cyclone fencing and entered the neighbouring yard, which was also a car wrecking business, where you gained access to an unregistered 2007 purple Holden Commodore, and an unregistered 2007 white Holden utility. The gold Commodore, the purple Commodore, and the white Holden utility were stolen from the car yards at that time, after you and the co-offenders cut the cyclone fencing with bolt cutters to allow those vehicles to be driven out of the car wrecker's yard. Your acts of driving the stolen vehicles on the dates of commission of other offences, to which I will refer, is the offending referable to your Charges 3, 7 and 15 on the indictment, of theft of motor vehicle, via your assumption of the owners' rights on these occasions.
18On 7 January 2022, at 12.49 pm, you and a number of co-offenders were in the gold Holden Commodore, with you in the front passenger seat and co-offender Ms Ainsley driving. At 1.31 pm, the gold Holden Commodore was seen by police driving along Millers Road in Altona North, without registration plates attached. Police followed the Commodore with the intention of intercepting it. Once the vehicle had stopped and the motor had ceased running, police parked their divisional van across the rear of the Commodore, and police activated their emergency lights.
19You got out of the Holden Commodore, and Police Officer Holzer lowered his window and asked you about the missing number plates, and you replied, “it must have fallen off”. As Constable Holzer got out of the van and walked towards the Commodore, he saw you get back into the vehicle, and the ignition to the Commodore was then turned on and co-offender Ms Ainsley reversed the vehicle very quickly, causing it to collide with the passenger side of the police van, where Police Officer Hughes was still in the driver's seat. Constable Holzer jumped backwards away from the Commodore to avoid being hit. Constable Holzer drew his firearm and pointed it at your co-offender, yelling for her to stop the vehicle, and she then drove the Commodore slowly in a forwards direction and then reversed it at high acceleration into the police van again, causing the police van to move several metres, which then allowed room for her to extract the Commodore and drive away.
20The Commodore then collided with the rear of a grey BMW, causing damage to the rear bumper, and then the Commodore sped away. A report was made to Triple 0. At approximately 1.55 am, the same Holden Commodore was observed to be driving on the Princes Freeway in the direction of Werribee. Ms Sacha Joargenson was in her vehicle with her partner Mr John Raiti, and another passenger. Those within the car saw the rear bumper hanging off the Commodore. Ms Joargenson sounded her horn to notify the driver of the Commodore and Mr Raiti pointed backwards and yelled out of the window 'your rear bumper is dragging on the ground'.
21Your co-offender sped up and changed lanes to position the Commodore in front of Ms Joargenson's vehicle, and then braked suddenly. Ms Joargenson moved into the right lane swiftly to move away from the Commodore and the occupants of the Commodore, including you, began gesturing out of the windows, and you threw a screwdriver towards Ms Joargenson's vehicle. Ms Joargenson took the Sneydes Road exit ramp in an attempt to get away from the Commodore. She was pursued by your co-accused. Ms Joargenson turned right and pulled up on a patch of grass just off the exit ramp, and the Commodore turned around and parked behind her vehicle. Co-accused Ms Ainsley and Mr Yates and you got out of the Commodore and began walking towards Ms Joargenson's vehicle. She had also climbed out of her vehicle and began walking to the front of the Commodore. She started saying that 'they were just trying to tell you that the bumper bar was dangerous', and you co-accused replied by saying 'did you fucking notice the baby seats in the back'.
22Mr Raiti began to open the door to tell Ms Joargenson to come back, when your co-offender Yates and you approached him. Mr Yates stabbed Mr Raiti in the left forearm with a screwdriver while he was seated in the passenger seat; Mr Raiti pushed him back and you attempted to punch Mr Raiti twice but missed.
23You then ran back to the Commodore where you retrieved an axe handle or hockey stick and then commenced smashing the rear windscreen of Ms Joargenson's vehicle.
24You then moved towards Mr Raiti with the axe handle and hit him repeatedly to the left arm, leg and stomach, whilst you yelled at him to give you Ms Joargenson's purse which you could see in the centre console near the handbrake. He repeatedly said no, and you kept hitting him with axe handle. Mr Heath told Mr Raiti 'just give it to him' (meaning you), 'otherwise he's going to keep hitting you' at which time Mr Raiti handed over the purse to you.
25This is the offending referable to your Charge 4 of armed robbery, occurring in company, involving your robbery of Mr Raiti of the purse and at the time you had with you the offensive weapon namely a hockey stick or other similar item. It is also the offending referable to your Charge 5 of recklessly causing injury to Mr Raiti. As a result of your offending, Mr Raiti suffered a broken left arm, a stab wound to his left forearm and bruising to his left leg. Ms Joargenson's purse contained $2,800 cash at the time it was stolen, and neither the purse nor the money have been located.
26This is also the offending referable to your Charge 6 of destroying property, namely the rear window of the vehicle belonging to Ms Joargenson.
27The three of you returned to the Commodore and drove away, and Ms Joargenson rang the police who attended shortly thereafter.
28On 8 January 2022, approximately 2.20 am, your victim Stephen Khlentzos, was walking to his vehicle on St Georges Road in Fitzroy North. As he did so, he saw a white Holden utility drive around him slowly. He got into his vehicle and as he did so, the utility pulled up next to him. A male passenger of that vehicle got out and opened up Mr Khlentzos' driver's side door and the man said, “give us your wallet and phone”. Initially, Mr Khlentzos laughed as he thought it was a joke until the man said, “give us your fucking wallet and phone or I'll stab you”. The man appeared to be, to him, holding a knife or screwdriver in his left hand, and continued to demand that he hand over his phone, which Mr Khlentzos then did, followed by his wallet. Here I interpolate that the prosecution does not assert that you were aware that your co-offender was armed with some sort of weapon.
29The man got back into the utility and drove off towards Alexander Parade.
30A number of bank cards and personal cards belonging to Mr Khlentzos were within the stolen wallet. This is the offending referable to your Charge 9 of robbing Mr Khlentzos of property namely a wallet and mobile phone.
31A number of bank cards and personal cards belonging to your victim were within the stolen wallet, and at 2.22 am, Mr Khlentzos' National Australia Bank debit card was used at the Metro Service Station in Carlton, to make purchases in the sums of $49.98, $101.45, and $57.46.
32At 2.39 am, the white Holden utility travelled south along Lygon Street in Carlton, towards the Melbourne central business district. At 2.50 am, it stopped at the BP service station in Southbank. You got out of the driver's side of the vehicle and walked into the store, as the CCTV shows. You then used Mr Khlentzos' NAB debit card to purchase a number of items valued at $61.98. This is the offending referable to your Charge 10 of obtaining financial advantage by deception. You then returned to the driver's seat of the white Holden utility and drove away from this service station.
33At 3.05 am, Mr Yasin Ilanbey, an Uber driver, was driving his vehicle, a red Honda Jazz. He parked in Haig Street in Southbank, and took a short nap, leaving the engine running and his window down approximately four centimetres. About ten minutes later, a person, and you, drove into Haig Street in the white Holden utility. Mr Ilanbey awoke to a man holding a silver knife, stating “give me your wallet, give me your wallet!” He attempted to put his hand through Mr Ilanbey's window, but it would not fit, so he then punched the window two to three times with a closed fist and kicked the driver's side door twice, causing a large dent. Mr Ilanbey drove off quickly. The prosecution does not assert that you were aware that the co-offender was armed with a weapon. This is the offending referable to your Charge 11 of attempting to rob Mr Ilanbey of his wallet.
34The white Holden utility then chased Mr Ilanbey's vehicle and collided with it twice while he tried to get away. Mr Ilanbey drove past the casino, towards Docklands, driving through two red lights in an attempt to escape from the pursuit. He called Triple 0 as he made his way towards Spencer Street, and as he passed the Holiday Inn on Clarendon Street he saw a police vehicle. He parked next to it and sought assistance from a police officer, at which point you stopped pursuing him, and the police directed him to the West Melbourne police station to report the matter. As a result of your attempted robbery, Mr Ilanbey's vehicle sustained damage to the driver's side door, as well as scuff marks to the rear of the vehicle as a result of the utility colliding with him. Your act of driving in pursuit of Mr Ilanbey over the sustained period is the offending referable to your Charge 12 of conduct endangering persons. Your act of damaging his Honda Jazz is the offending referable to your Charge 13 of damaging property.
35In the late afternoon on 8 January 2022, Mr Srivivas Yadamareddi was driving his motor vehicle in Hoppers Crossing. As he approached a roundabout, his vehicle was struck in the rear by the white Holden utility. The utility drove around the roundabout, overtaking Mr Yadamareddi. Mr Yadamareddi followed the white Holden utility, until it pulled over on Dowling Avenue. You got out of the driver's seat with a large machete raised above your head in your right hand. Mr Yadamareddi immediately began to drive away, when you struck the front passenger door with the machete resulting in damage to that door as well as to the rear bumper from the collision. Your actions of threatening Mr Yadamareddi is the offending referable to your Charge 14 of common assault.
36On 10 January 2022 after 9.00 pm, vehicle registration plates were taken from a vehicle parked on the street at an address in Dublin Avenue in Strathmore. That vehicle belonged to Mr Ismail Arslan, and the plates were attached to his black Ford Ranger utility. Your dishonest assistance in the retention of those registration plates is the offending referable to your Charge 16 of handling stolen goods.
37At approximately 2.30 am on 10 January 2022, Mr Brett Lynn was walking along Melville Road in Brunswick West. The purple Holden Commodore drove past Mr Lynn, then did a U-turn and drove up beside him. Two men got out of that vehicle and one said to him “give me your fucking shit!” Mr Lynn asked, “are you serious?” to which the man continued to demand his possessions. Both men then assaulted Mr Lynn by punching him repeatedly to the face and dragging him to the ground. A third man got out of the vehicle at which point Mr Lynn lost consciousness as he was being choked by one of the men. He was then kneed in the face a few times.
38The men took his wallet and demanded the pin code to his bank cards and stole his car keys to his motor vehicle as well. You and your two co-offenders then returned to the Holden Commodore and drove off. Mr Lynn walked to a service station nearby and the attendant called Triple 0 for him. He was taken to the Royal Melbourne Hospital with injuries including bruising to his left arm, abrasions, swelling to his jaw and bruising and soreness to his head. This is the offending referable to your Charge 17, of robbery of Mr Lynn's car keys and his wallet, and Charge 18 of recklessly causing an injury.
39At 2.37 am, the purple Holden Commodore with stolen registration plates attached attended at the 7-Eleven service station in Pascoe Vale, and a bank card belonging to Mr Lynn was used to purchase items to the value of $63.98. At 2.40 am the purple Holden Commodore parked at the Caltex service station in Pascoe Vale South, and you are seen on the service station CCTV getting out of the rear of the vehicle. You purchased cigarettes valued at $75.90 using Mr Lynn's stolen bank card, and another co-offender then used the card and you returned to the vehicle and drove away from the service station. In the early hours of the morning of 10 January 2022, Mr Lynn's bank card was used at a number of other locations throughout Melbourne suburbs. You were specifically identified from CCTV footage to have made purchases over the period between 2.43 am to 5.00 am at different service stations, purchasing two packets of cigarettes valued at $75.90, two packets of cigarettes valued at $63.00, mints and cigarettes valued at $64.90, two packets of cigarettes and a Bic lighter valued at $62.80, and three packets of cigarettes valued at $89.97. These five purchases are the offending referable to your Charge 19, a course of conduct of obtaining financial advantage by deception. On 12 January 2022, Mr Lynn's wallet was handed in to the Cobram police station containing his identification cards, but not his bank cards.
Police investigation and interview
40Police attended co-offender Mr Yates’ address in Cobram where they saw the purple Holden Commodore parked, with the stolen registration plates attached. You, and co-offenders Ms Ainsley and Mr Yates were arrested. Police conducted a search of the address and located your mobile phone, a mobile phone belonging to the co-offender Mr Yates, but containing Mr Khlentzos' sim card. Police then found the keys to the stolen white utility, and the keys to the stolen Holden Commodore in the co-offender Ms Ainsley’s handbag.
41You were interviewed by police on the same day, and said initially that you had never been to the car wrecking yard in Pakenham, but then you identified yourself, and the two co-offenders in a CCTV still image. You said that you had been smoking cannabis on that day and did not remember much.
42You denied any knowledge of the events on 7 January 2022.
43In relation to the events of 8 January 2022, involving Mr Khlentzos and Mr Ilanbey, you stated that you would have been at your mother's house with co-offender Ms Ainsley on the night, that you were in the CCTV still images from BP service station in Southbank, but then you told police you had never been in a white Holden utility, and had not been involved in an armed robbery, or attempted robbery.
44You told police that the purple Holden Commodore belonged to co-offender Mr Yates, and that you had only been in the vehicle to go to the shops, and you did not know anything else about the vehicle and had never been in the vehicle in the metropolitan suburbs of Melbourne.
45Police then located the white Holden utility displaying stolen vehicle registration plates nearby, in Cobram. Forensic examination yielded various items of clothing worn by you, and personal documents in Ms Ainsley’s name. Bolt cutters were located inside the vehicle.
46Various clothing worn by you and your co-offenders were located in the purple Holden Commodore.
47On 25 January 2022 at about 8.20 am, police officers executed a search warrant at two addresses in Hoppers Crossing, and located an AUG brand imitation firearm with a black scope, which is the offending referable to your Charge 20 of prohibited person possess an imitation firearm; and an unbranded imitation firearm with a brown scope, which is the offending referable to your Charge 21, also prohibited person possess an imitation firearm.
48You were interviewed at your house and told police that you purchased two 'gel blasters' from the internet for $150 each because they looked cool, and that you did not know that they were illegal at the time you purchased them.
49You provided a sample of DNA to police voluntarily, and swabs taken from relevant items yielded matches to your DNA on a yellow drinking straw, contained within the gold Commodore, and the steering wheel of that car, the mid-region of the axe handle used in the assault and armed robbery of Mr Raiti, and on the baseball cap thrown out of the gold Holden Commodore just prior to the robbery of Mr Raiti.
Effect on the victims
50I have received victim impact statements from four victims of your spree of offending.
51Mr Raiti, the victim of your armed robbery and against whom you recklessly caused injury, told me that the injuries that you caused, caused him to feel scared, and also angry due to the fact that he was to start work the following day at a new job, and your offending has also caused a strain on his relationship with his girlfriend as he became reliant on her for everything from self-care, bathroom use, dressing, eating, requiring her to drive him to appointments and full financial support. He told me that he has lost his independence, and he felt annoyed and frustrated with all that was happening.
52You caused him to stay in a cast for six weeks, and he was stuck at home causing him to feel restricted, frustrated, and angry.
53You have also caused him a mental drain, and he became silent, withdrawn and understandably he just wanted to be alone.
54As a result of his injury, he has needed surgery, and a metal plate installed. He welcomed a child this year, however, he is not able to hold the baby for long periods, give him a bath or nurse him to sleep. He feels on edge around new people and in social settings as a result of your offending.
55Ms Joargenson, whose property you destroyed in such dangerous circumstances, has told me that your offending led her to be much more on high alert looking for and avoiding various vehicles and roads. You caused her financial hardship.
56Mr Khlentzos, the victim of your act of robbery, told me that your offending led him to experience disturbed sleep, and anxiety in public places. He told me that he would get paranoid suddenly, suspicious of people and very anxious. He needed to buy a new phone to replace the one you stole, which cost him around $700.00.
57Mr Lynn, the victim of your robbery, and against whom you recklessly caused injury, provided me with a victim impact statement which he read aloud, which was very articulate and deeply moving.
58He is a disability pensioner, who experiences a number of neurological conditions, and a weakened immune system. He suffered a severe concussion as a result of your offending, as well as a smashed phone, his glasses taken as evidence, and a wallet and a large amount items of value taken from him.
59As a result of blows to the side of his head, he experienced vertigo, from which he took a considerable period of time to recover. His eyes were damaged, and he is no longer able to see without his glasses for many activities. This caused him financial expense.
60He feels barely capable of leaving his home, for day-to-day activities, and simple social activities. He feels extremely nervous, on edge and angry, and slight noises would set him off. He encounters trauma when someone enters his line of sight while wearing a hoodie, which causes him discomfort and what might be termed hyper vigilance. You have taken his comfort and confidence away from him.
61He has slowly recovered from his physical injuries via physiotherapy. Your offending affected his ability to work and left him financially destitute. He has needed to replace a significant number of personal items.
62He considers that he was isolated to the point of depression, and he encountered suicidal thoughts. You have damaged his memory, energy, ability to walk, and cognitive ability. This has caused him to experience strange relationships with friends and family.
Procedural history; pleas of guilty and timing, remorse
63You were charged following your arrest and were initially remanded, and then subsequently bailed. Your matter proceeded through contested committal with witnesses cross-examined, and you were committed to stand trial in this court in November 2022. The matter proceeded through a series of procedural hearings in this court with plea discussions occurring, eventually resolving as pleas of guilty on the day that the trial was scheduled to commence.
64This is a late plea of guilty, but you have still saved the witnesses the stress and inconvenience of needing to testify before a jury, and you have saved the court and the community time. This is of special significance in the current era, where the effects of the pandemic continue to linger upon the listing of trials. I understand that your pleas are also indicative of remorse and understanding of wrongdoing, and I mitigate sentence on each of these bases.
Personal circumstances
65You are now 20 years of age and were 19 at the time of your spree of offending. You were born in Werribee. Your mother was a sole parent, and you lived with her and your maternal grandparents. You never met your biological father, and I am told that he had excessive substance use problems.
66As a child, you experienced disrupted parental attachment and neglect. I understand that your mother also had a history of substance use, and you subsequently experienced neglect during some of your formative years. Child Welfare Services became involved and attempted to place you in out of home care, however, you rarely stayed there and you were returned permanently to your family after two years.
67You were mostly raised by your grandparents, and you have reported being well cared for by them. I am pleased to hear that you have a very close relationship with both grandparents, and I was saddened to hear of the untimely death of your grandfather when you were aged eight.
68Your mother left the family home approximately eight years ago, and she has re-partnered, with a man with whom you are amicable, and you have a younger half-brother.
69Your grandmother is your closest current support in the community. I have the benefit of a letter from her, and she speaks very well of you.
70I am told by her that you have completely reversed your past behaviour, to which I will return, over the past 18 months, and you are now in a loving stable relationship with your partner, and are now the father, she said then, of a five- month-old baby boy. I have also received a reference from your partner.
71Your highest level of formal education was Year 9, though you received a Year 10 equivalent pass. You did not enjoy school due to your experience of social anxiety and bullying. From Year 7, you became involved in physical fights with the other students.
72Since exiting school in Year 10, you have worked for your uncle in landscaping, and your uncle has also provided me with a letter of reference in support of you. He told me that you were working with him three days per week, and at times when you were not subject to community service order obligations, you worked full-time. You have excellent interaction with all of his ongoing clients, and he speaks highly of your professional abilities. He considers that you have put your earlier life behind you and have made enormous change over the past 18 months.
73Unfortunately, after the death of your beloved grandfather, you started using cannabis, which you would use periodically from the age of 10 and the frequency of your use increased to daily. You reported to Naomi Cameron, Forensic Psychologist, that you have used anywhere between 0.1 gram and 10 grams of cannabis daily as a form of self-medication in the context of grief, stress and depression.
74You began using methamphetamine at the age of 16 with friends and your use gradually increasing to over 0.1 gram daily. You have had two drug induced psychoses as a result of your use, involving visual and auditory hallucinations and body paralysis.
75You have also used MDMA, Xanax, and GHB. You reported to Ms Cameron being abstinent from all illicit substances for the two months prior to her report, that was in April 2022, which appears to coincide with the period of good behaviour of 18 months that your grandmother and uncle have told me about.
76You have admitted four prior appearances before the court. In September 2018, you appeared in the Children's Court on a number of significant offences, including intentionally damage property, multiple offences of commit indictable offence whilst on bail, extensive dishonesty offending, driving offences, intentionally exposing emergency worker to risk while driving, and reckless conduct charges, and you were placed on a probation order with suitable conditions.
77In January 2020, you appeared before the Children's Court on further offending of reckless contact endangering life, multiple dishonesty offences, multiple offences of committing indictable offence whilst on bail; and multiple drug offences, and you were ordered to be detained in the Youth Justice Centre for a period of 92 days and were placed on a youth attendance order with appropriate conditions.
78In February 2020, you appeared in the Children's Court on multiple driving offences, and a charge of resist police officer, and were placed on a good behaviour bond.
79In July 2020, you appeared in the Children's Court for breaching the youth supervision order and were resentenced on those early offences to a youth supervision order. You also have a history of other driving offences.
80A combination sentence, including a Community Correction Order, has been imposed since the date of your offending, and I have been provided with correspondence and reports from those with whom you engaged as part of this order. Initially, I was told that there were unacceptable absences and concerns that you would use avoidance tactics in relation to the completion of conditions of your order. That correspondence discloses that you have been diagnosed with attention deficit hyperactivity disorder, as well as the generalised anxiety and depression that Ms Cameron alluded to. You completed an offence specific behavioural program. At the time of the letter, you had completed approximately half of the community work imposed. I understand that you have benefitted from the counselling associated with the program, which you report through your counsel to have assisted you to develop insight into the difficulties that you encountered as a child as a result of the disadvantage of an insecure relationship with your mother, your crushing grief as a result of the loss of your grandfather, and the relief that you have experienced to have found stability in your current relationship, and your good fortune to have had the opportunity to be a loving father to your young son.
81I am today told that you have satisfactorily completed that order.
82Ms Cameron, Forensic Psychologist, considered at the time of her report that you displayed poor insight and judgement relating to your offending behaviour and did not take full accountability for your offending and appeared to externalise blame onto others and minimise your role in some of your offending. Additionally, to her, you presented with some offence supported attitudes and a lack of appreciation for the law, which is likely attributable to your anti-social peer group and lifestyle. This perspective, I interpolate, has changed, and the author of your Youth Justice assessment, to which I will return, considers that you are now more insightful.
83You did express to Ms Cameron a genuine willingness and motivation to seek alcohol and drug addiction support to maintain your abstinence.
84Ms Cameron undertook empirical testing and considered that you experienced moderate levels of depression and stress and extreme levels of anxiety.
85To her, your risk of re-offending is considered moderate, on the basis of your multiple current offences, history of education and employment problems, some reliance on social issues, social isolation, relationship problems, anti-social peer group, history of substance use problems, and mental health problems.
Objective gravity of offending; moral culpability
86I accept without any hesitation the prosecution characterisation of your offending as very serious. You engaged in a spree of offending, in company, motivated by your dishonesty, accompanied by scandalous and traumatic acts of violence. You showed absolute indifference to the rights of others, including their rights to personal safety and to property. You have caused a number of your victims to experience injury, fear, lasting trauma and loss. Your offending occurred against a backdrop of drug usage. A number of your victims were preyed upon at night.
87You are still a young offender, which is a topic to which I will return as well. Your moral compass is affected by your lack of maturity, and your drug addiction. But you also have a serious history of dishonesty offending, and these dishonesty offences at the time of commission were not out of character for you, which saddens me.
88You have, however, shown that you are a person capable of maturity and insight, and you have taken significant steps towards establishing a meaningful life for yourself, with your loving partner and grandmother, employed, and caring for your son. I am prepared to infer that you have tangible prospects for rehabilitation, given this support in the community, your motivation to continue your rehabilitative journey, and the fact that you are now aging into adulthood. Ultimately, whether you reoffend will largely depend on whether you can remain drug free. As is my obligation under the legal principles that I am about to discuss, I intend to pass sentence which makes considerable allowance for your rehabilitation. I consider that a measure of specific deterrence is needed in your case. Your offending also calls for emphasis of the sentencing purposes of general deterrence and denunciation, moderated based on your age.
Sentencing submissions; relevant sentencing principles
89I must take into account that you are still a young person, 19 at the time of offending, and now 20. The Victorian Court of Appeal has endorsed a number of propositions relevant to the sentencing of youthful offenders. These have been applied many times in many later cases.
90Relevantly, youth of an offender, particularly a first offender (you are far from that), should be a primary consideration for a sentencing court where that matter properly arises. Further, it was said in the case of Mills, to which your counsel referred my attention, that in the case of a youthful offender, rehabilitation is far more important than general deterrence. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred, as rehabilitation benefits the community as well as the offender.
91In Azzopardi, Baltatzis and Gabriel v The Queen, the court considered that the general primacy of an offender's youth as a sentencing consideration is underpinned by a number of considerations relevant to these points.
92First, young offenders being immature are therefore “more prone to ill-considered or rash decisions”. They “may lack the degree of insight, judgment and self-control that is possessed by an adult. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct”.
93Secondly, courts “recognise the potential for young offenders to be redeemed and rehabilitated.” This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, “is one of the great objectives of the criminal law.
94Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed.
95These principles apply in your case, however, their force is moderated by your criminal history. As I have mentioned, I mmoderate sentence on the basis of your youth, and I intend to impose sentence that emphasises and allows for your rehabilitation, whilst also paying some attention to the other purposes of sentencing that I have mentioned, including the need to punish you and denounce your behaviour notwithstanding these principles.
96In considering your suitability for detention in a Youth Justice Centre facility, the authors of the Youth Justice report considered the criteria set out in s32 of the Sentencing Act 1991 (Vic) and came to the following conclusions. Your offending is impulsive in nature, of high harm consequence, and commenced at a young age. You have breached previous Justice orders. You are able to articulate victim empathy. You have a supportive family. You meet the threshold for reasonable prospects for rehabilitation. you are in the upper chronological age range of Youth Justice, you experience mental health conditions and have used your period on bail effectively. Your period on adult remand caused you significant distress and you were the victim of incidents perpetuated by older anti-social prisoners. A further period in adult custody may erode the progress that you have made in the community. You are particularly impressionable, immature, or likely to be subject to undesirable influences in custody. You therefore meet the criteria for eligibility for detention in Youth Justice and have been recommended for suitability for detention in a Youth Justice Centre.
97I note that a considerable period of time has passed since the commission of your offences, which occurs in the case of each matter listed for trial in the current environment in this court, but the matters have been hanging over your head during that time. You have shown yourself to be capable of rehabilitation, as I have said, and I take this into account in my sentence.
98As I have mentioned, your pleas of guilty were entered at a time when the court system in Victoria was experiencing significant impediments as a result of the unfortunate effects of the COVID-19 pandemic. There was a significant utilitarian benefit in you entering pleas of guilty to the preceding charges.[5]
[5]Worboyes v R [2020] VSCA 169
99Your counsel submitted that I could utilise the nine days' pre-sentence detention to impose a custodial sentence on your Category 2 offence of armed robbery and impose a community corrections order on the balance of the offences. Alternatively, I should impose a sentence of detention in Youth Justice. The prosecution has submitted I ought impose a head sentence with a minimum period before parole eligibility.
100Having weighed the competing submissions carefully; in light of the matters of fact and law, and sentencing principle to which I have referred, I will impose a sentence of detention in Youth Justice.
101I have been very mindful of the totality principle of sentencing in structuring my sentences, including in respect of orders for cumulation.
Sentence
102I will now pass the following sentences:
103On Charge 1 of handling stolen goods, you are convicted and sentenced to two weeks in youth detention, to be served concurrently with other sentences.
104On Charge 2 of obtaining financial advantage by deception, you are convicted and sentenced to three months in youth detention, to be served concurrently with other sentences.
105On Charge 3 of theft, you are convicted and sentenced to three months in youth detention, one month to be served cumulatively upon the base and upon other sentences.
106Turning to the spate of offending on 7 January 2022, on Charges 4 and 5 of armed robbery and causing injury to Joshua Raiti, you are convicted and sentenced to an aggregate of two years in youth detention. This is the base sentence.
107On Charge 6 of criminal damage on that day, you are convicted and sentenced to three months in youth detention, one month to be served cumulatively upon the base and upon other sentences.
108Turning to your spate of offending on 8 January 2022, on Charges 7 and 8 of theft and handling stolen goods, you are convicted and sentenced to an aggregate of four months in youth detention, one month to be served cumulatively upon the base and upon other sentences.
109On Charges 9 and 10 of robbery of Stephen Khlentzos and obtaining financial advantage by deception, you are convicted and sentenced to an aggregate of six months in youth detention, three months of which is to be served cumulatively upon the base and on other sentences.
110On Charges 11 and 12 of attempting to rob Yasin IIlanbey, and conduct endangering persons involving him, you are convicted and sentenced to an aggregate of eight months in youth detention, four months of which is to be served cumulatively upon the base and upon other sentences. On Charge 13 of damaging his property, you are convicted and sentenced to two months in youth detention, to be served concurrently.
111On Charge 14 of assaulting Srivivas Yadamareddi, you are convicted and sentenced to four months in youth detention, two months of which is to be served cumulatively upon the base and on other sentences.
112Turning to your offending on 10 January 2022, on Charges 15 of theft, and 16 of handling stolen goods, you are convicted and sentenced to an aggregate of four months in youth detention, to be served concurrently with other sentences.
113On Charges 17 and 18 of robbing Brett Lynn and causing injury to him recklessly, you are convicted and sentenced to an aggregate of 18 months in youth detention, six months of which is to be served cumulatively upon the base and on other sentences.
114On Charge 19 of obtaining financial advantage by deception, you are convicted and sentenced to four months in youth detention, to be served concurrently.
115Turning to the two charges of prohibited person possess an imitation firearm, on Charges 20 and 21 you are convicted and sentenced to an aggregate of two months in youth detention, to be served concurrently.
116On the five related summary offences of commit an indictable offence whilst on bail, you are convicted and sentenced to an aggregate of three months in youth detention, to be served concurrently.
117Here I will interpolate that as I have taken that fact into account in aggravation of the offending which breached the order of bail, I have had regard to the totality principle resulting in concurrent sentences.
118On the two charges of driving whilst disqualified, you are convicted and sentenced to an aggregate of four months in youth detention, to be served concurrently.
119On the charge of failing to stop motor vehicle after accident, you are convicted and sentenced to four days in youth detention to be served concurrently.
120On the charge of dangerous driving, you are convicted and sentenced to three months in youth detention to be served concurrently.
121This is a total effective disposition of three years and six months' detention in youth justice, and I declare and reckon nine days pre-sentence detention as served.
122Were it not for your pleas of guilty, had the matter proceeded to jury trial and resulted in guilty verdicts, I would have imposed a sentence in adult custody. I am unable to quantify that sentence having regard to the complexity of the facts of offending and your personal circumstances and the fact that different matters of principle might apply in those circumstances.
123Now let's go through ancillary orders. I understand that there was an application for forfeiture and an application for disposal.
124I imagine there's an application that he be disqualified from obtaining a licence.
125MS CUNNINGHAM: With respect to the licence, Your Honour, there are mandatory orders that arise from the theft charges, as well as the dangerous driving. Ultimately, Your Honour, the minimum mandatory term is six months' disqualification.
HER HONOUR: Having regard to the seriousness of offending and its recurrence, I am going to disqualify the accused from driving for a period of three years from today's date.
126MS CUNNINGHAM: As the court pleases.
127HER HONOUR: Are there any other ancillary orders sought?
128MS CUNNINGHAM: No, Your Honour.
129HER HONOUR: Thank you. I'll make a note in relation to custody that Mr McCulloch has mental health issues and ought to be seen by a general practitioner immediately and might be at risk of self-harm.
130HER HONOUR: Thank you, let's adjourn until tomorrow.
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