Director of Public Prosecutions v McLachlan

[2023] VCC 530

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-22-02130
     CR-22-02131

Indictment No: C2215654

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS MCLACHLAN

JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF PLEA  HEARING:	14 February 2023
DATE OF SENTENCE:	5 April 2023
CASE MAY BE CITED AS:	DPP v McLachlan
MEDIUM NEUTRAL CITATION:	[2023] VCC 530

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Two charges of armed robbery, one charge of robbery, one charge of attempted robbery and one charge of attempted armed robbery, together with three summary charges, namely, two charges of committing an indictable offence whilst on bail and one charge of contravening a conduct condition of bail – 18-year-old offender with multiple appearances before the Childrens Court between November 2018 and March 2021 for similar offending and multiple breaches of Youth Supervision Orders – history of seven reports to Child Protection over a nine-year period leading up to 2018 relating to high-risk behaviour of family members and himself, resulting in a Family Preservation Order until May 2019 – offender diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiance Disorder in childhood and, more recently, Stimulant Use Disorder (in enforced remission in custody) – serious offending, with some offences committed in company and all whilst on bail – issue of applicability of the principles in Verdins’ case – issue of extent to which emphasis should be placed upon rehabilitation of a young offender given seriousness of offending – Pre-sentence report assessed offender as unsuitable for a Youth Justice Court Order – court satisfied that the young offender is particularly immature and likely to be subjected to undesirable influences in an adult prison – Court had regard to s32(a) and (b) Sentencing Act

Legislation Cited:      

Cases Cited:

Sentence:                  Total Effective Sentence: 3 years and 3 months detention in a Youth Justice Centre.

S6AAA – 5 and ½ years imprisonment with non-parole period of 3 years and 4 months

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms V Worrell	Solicitor for the Office of Public Prosecutions
For the Offender	Ms H Anderson	Greg Thomas Solicitors

HER HONOUR:

1Thomas McLachlan, you have pleaded guilty to two charges of armed robbery, each of which carries a maximum penalty of 25 years’ imprisonment; one charge of robbery, which carries a maximum penalty of 15 years’ imprisonment; one charge of attempted robbery, which carries a maximum penalty of 10 years’ imprisonment and one charge of attempted armed robbery, which carries a maximum penalty of 20 years’ imprisonment.  In addition, you have consented to three indictable matters being heard before this Court and have pleaded guilty to those matters.  They compromise two charges of committing an indictable offence whilst on bail, each of which carries a maximum penalty of 30 penalty units or three months’ imprisonment and one charge of contravening a conduct condition of bail, which also carries a maximum penalty of 30 penalty units or three months’ imprisonment. 

2The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea.[1] 

[1]Exhibit “A”.

3Charges 1, 2 and 3 on the Indictment, being charges of armed robbery, robbery and attempted robbery, were committed by you on 8 April 2022.  At approximately 5.30pm at Box Hill Central, you approached your two victims, Cooper Hogan and Jacob Russell, each of whom were aged 16 years. You demanded that they “come to the fucking alleyway right now” and, when one refused, you stated, “do you want get jibbed?”  You then pulled out a large hunting knife from your pants, which was about 10 inches long, and demanded that Mr Hogan hand over his Nike Tech Fleece jacket, stating, “give me your shit otherwise I’ll (sic) stab you”, which caused your victim such fear that he handed over his jacket. This is the conduct comprising Charge 1, armed robbery.  You then demanded that that same victim hand over his Apple Air pods, which he refused to do.

4You and your co-offender then approached Mr Russell, who was attempting to walk away.  You threatened him in such a way that he felt compelled to walk with you and was frightened that you would hurt him.  You demanded, “give me your stuff and you won’t get hurt”. Mr Russell was so fearful of being bashed or stabbed that he handed his backpack to you.  In his backpack, was a Pacific Rim bag containing his Apple Air pods, a drink bottle, asthma medication, a portable charger, house keys and a wallet with $50 cash.  This is the conduct comprising Charge 2, robbery.

5Later that same evening, at approximately 10.40pm, Jonathan Chang, who was aged 20 years, was with his friends Nathan Ip, Erica Looi and Xinjia Yuan outside a café in Whitehorse Road, Box Hill. They were saying goodbye after having had dinner together.  You were part of a group of four, including two women.  Your co-offender, Joel Walsh,[2] walked past Mr Chang and Mr Ip, stating, “you guys are talking shit” and, when they replied they were not talking about you, you and your co-offenders began screaming and behaving erratically.  Your co-offender, Walsh, attempted to kick Mr Chang in the head and, as he and his friends tried to walk away, you and your co-offenders began to punch Mr Chang and Mr Ip.  You threatened to stab Mr Chang and reached towards your bag and appeared to be pulling something out, which Mr Chang thought could have been a knife, but he did not actually sight a weapon.  An unknown female called to your group to stop and you and your co-offenders, Walsh and Coombes, ultimately stopped assaulting Mr Chang and Mr Ip. During the scuffle, you attempted to rob Mr Chang of his wallet and phone, but Mr Ip managed to take them back.  This offending constitutes Charge 3, attempted robbery.

[2] A pseudonym.

6You were arrested on 2 May 2022 and made a “no comment” record of interview, as is your legal entitlement.  You were remanded in custody but, on the following day, 3 May 2022, were granted Youth Justice bail at Melbourne Magistrates’ Court.

7Some six weeks after being placed on bail, you committed some further serious offending.

8On 19 June 2022, at approximately 3pm you were outside Box Hill Central Shopping Centre where you met a man whom you knew, Shervin Shokaty. Mr Shokaty had gone to school with Jason Pickett, a twenty-three-year-old man who has an intellectual disability.  Another friend of Mr Pickett, Nicholas Dempsey, aged 21 years, also turned up, and Mr Shokaty introduced you to both Mr Pickett and Mr Dempsey.  A few minutes later, Mr Shokaty and Mr Dempsey left, and you approached Mr Pickett, stating, “I need to have your wallet, your money and your bank details”.  You stated that, if he did not listen, you were going to stab him, and then lifted your shirt and exposed a large kitchen knife which was down your pants.  Your victim, Mr Pickett, handed over his Tommy Hilfiger satchel to you.  You removed Mr Pickett’s wallet, which contained $50 cash, various cards and an ANZ bankcard and stated, “this is a robbery, do what I say”.  Over the following hour, you repeatedly compelled him to go to ATMs and the self-checkout in both Woolworths and Coles in order to withdraw money from his bank account.  At one stage, when you realised Mr Pickett’s phone had a message from his bank advising him that his account had been locked due to suspicious activity, you demanded that he call his mother to try and get into the NetBank application on his phone.  This was unsuccessful, but you then forced Mr Pickett to answer a number of security questions via his phone until his account was re-activated, so that you could compel him to withdraw further money from his account.  You somehow lost Mr Pickett’s ANZ bank card, but were convinced that he had possession of it, so took him around the corner and stated, “I’m going to make you strip”.  You then instructed him to take off his jumper and searched his pockets, but were unable to locate the card.  This conduct came on top of you earlier having taken him into an alleyway and instructed him to take off his Tommy Hilfiger pants and swap them for your pants.  Your conduct, in stealing, at knifepoint, Mr Pickett’s iPhone 6, his Tommy Hilfiger bag, his wallet, a total of $1,000 and his Tommy Hilfiger pants and iPhone charger, comprises Charge 4, armed robbery.

9After you committed the armed robbery upon Mr Pickett, you then came across his friend, Mr Dempsey, again.  By this stage, it was approximately 5.05pm.  You lifted your jumper and exposed the large kitchen knife to Mr Dempsey in a threatening manner, demanding that he give you, his bag.  Mr Dempsey refused to hand it over.  You became angry and demanded that he give you, his watch.  Mr Dempsey then started walking away at a fast rate and you followed him, continuing to lift your jumper to expose the large knife. However, Mr Dempsey managed to get away without you stealing any of his items.  This is the conduct comprising Charge 5, attempted armed robbery. 

10Summary Charge 3 relates to you having committed the indictable offences of armed robbery, robbery, and attempted robbery on 8 April 2022, while you were on bail. 

11Summary Charge 4 relates to you having committed the armed robbery and attempted armed robbery on 19 June 2022, while you were on bail. 

12Summary Charge 6 relates to you having contravened a conduct condition of bail by failing to report to Box Hill Police Station on five different occasions between 3 and 17 June 2022. 

13You are presently aged nineteen years, having been born in February 2004.  You come before the Court with a history of some seven appearances before the Children’s Court (at Ringwood, and also at Melbourne) between 28 November 2018 and 10 March 2021:

·     Your first appearance on 28 November 2018, was for shop theft, attempting to commit an indictable offence, unlawful assault, committing an indictable offence whilst on bail, burglary, theft of a motor vehicle, unlicensed driving, careless driving, failing to stop after an accident, failing to report an accident to police, using a hand-held mobile phone while driving, carjacking and armed robbery.  On each of those charges, without conviction, you were released upon a Youth Supervision Order for a period of twelve months. 

·     On 30 January 2019, and 29 May 2019, you again appeared before Ringwood Children’s Court on dishonesty offences.  On each of those dates, without conviction, you were placed on a Good Behaviour Bond for a period of six months. 

·     You re-appeared at Ringwood Children’s Court on the 27 February 2020, for new offences of shop theft, robbery and committing an indictable offence on bail, as well as for breach of the Youth Supervision Order upon which you had been placed on 28 November 2018.  Without conviction, you were again, placed on a Youth Supervision Order for a period of twelve months. 

·     On 5 August 2020, you came before the Ringwood Children’s Court for contravening a Family Violence Intervention Order, intentionally damaging property and committing an indictable offence whilst on bail, as well as for breach of the Youth Supervision Order.  Yet, again, you were given a without-conviction Youth Supervision Order for a period of eight months. 

·     Finally, you were brought before Melbourne Children’s Court on 10 March 2021 for charges of aggravated burglary, unlawful assault, theft of a motor vehicle, obtaining property by deception, attempting to obtain property by deception, theft from a shop, stating a false name, attempting to commit an indictable offence, and theft, as well as other charges of criminal damage and breach of the Youth Supervision Order.  On that date, with conviction, you were placed on a Youth Attendance Order for a period of four months, with special conditions of undergoing drug and alcohol counselling and engaging in community work.  That Youth Supervision Order apparently expired in or about July 2021, less than nine months before you committed the offences on 8 April 2022.

14In a plea on your behalf by Ms Anderson, the Court was told that you claim to have no recollection of any of the offending for which I must sentence you, as you were under the influence of a combination of Xanax and methylamphetamine.  You instructed Ms Anderson that, after initially being arrested and having spent one night on remand in police cells, you were granted bail with Youth Justice support. You claim you were working in steel fabrication, but, after re-offending in June 2022, you became fearful of being re-arrested, and breached your bail conditions and ceased attending work, and relapsed back into drug use.  You were arrested and remanded on 23 June 2022, and have remained in adult custody since that time.

15Ms Anderson stated that you are the youngest of three children and your parents separated when you were aged about four.  Between the ages of five and fourteen, Child Protection Services received some seven reports relating to high risk behaviours by your older brother, alleged parental illicit substance use and neglect of you, and, from 2018 onwards, reports of your substance use and negative peer associations, all of which led to a Family Preservation Order being made, which expired in May 2019.  In addition, you were apparently diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiance Disorder (“ODD”) during your childhood.  You were prescribed the medication, Ritalin, followed by another medication, Concerta, but became non-compliant with your medication.  You had begun consuming alcohol at about aged thirteen.  You also used cannabis from a young age and graduated to using methylamphetamine, GHB and MDMA, as well as abusing Xanax, by the age of fifteen.

16You attended mainstream schools until the end of the first term in Year 8.  You apparently found the work difficult because you were easily distracted and you were suspended on a number of occasions because of behavioural problems.  You were bullied because of your small build and physical appearance, and this resulted in truancy.  Thereafter, you enrolled in some alternative education programs, but, in or about August 2019 were exited from a “Refresh” program, which is apparently the equivalent to Year 10, as you sometimes attended classes while affected by illicit substances.  It appears that you have never progressed beyond studying part of Year 10. In 2020, you left school in order to obtain some work, as the young woman with whom you had been in an “on-and-off” relationship since you were about thirteen years of age, became pregnant.  She ultimately gave birth to your daughter on 17 March 2022.  As your partner also had illicit drug-use problems, there was intervention by Child Protection services and, ultimately, the child was removed from your partner’s care and placed in the care of her parents, that is, the child’s maternal grandparents.  Prior to being remanded into custody on 23 June 2022, you had been living with your father in Blackburn, but spending part of your time with your partner in Bulleen. Apparently you were not permitted to see your daughter and have never met her but instructed your counsel you would like to do so and be a good father to her. Apparently, you and the child’s mother are no longer in a relationship.

17You instructed your counsel that, when you were about fourteen, you were the victim of a sexual assault, which continues to cause you distress, and you claim that you experience “flashbacks”.  Although the court heard that this allegation is apparently mentioned in your Child Protection file, there is no evidence that it was investigated or that criminal charges were laid.  Save for the assertion that this occurred, the Court was not provided with any details as to the alleged circumstances of such offending. I note that a Pre-Sentence Report dated 27 April 2022, which had been prepared for the Children’s Court was tendered by your counsel. There is no mention in it of any allegation of sexual abuse. Rather, it was noted that ‘Thomas did not report any traumatic events in his childhood’.[3]

[3]Ex 2, page 5.

18At the plea hearing held on 14 February 2023, your counsel urged that a disposition by way of a combination sentence of up to one year of imprisonment with a Community Correction Order should be made by the court.  I took issue with the appropriateness of such a disposition in the light of the gravity of your offending, which includes aggravating features in that the first three offences were committed in company and all offence were committed whilst you were on bail.  The alternative disposition sought by your counsel was that of a Youth Justice Order.

19A report of Ms Gina Cidoni, psychologist, dated 6 February 2023, which was tendered on your behalf, confirmed the clinical diagnoses of ADHD and ODD, together with Stimulant Use Disorder (in enforced remission). It also noted that you had suffered childhood trauma and drug use while your brain was still undergoing development, and Ms Cidoni’s opinion is that you lack maturity in terms of consequential thinking and are in need of both medication and counselling to address your diagnosed disorders.[4] In light of this report, I considered it appropriate to adjourn the matter so that a pre-sentence report could be obtained concerning your suitability for a Youth Justice Centre Order.

[4]Exhibit “1”

20Pursuant to the Court request, a pre-sentence report, dated 7 March 2023, was provided to the Court.[5] This report was authored by Mr Adrees Shah, court advice worker from Youth Justice and endorsed by Ms Amelia van Lint, senior practitioner adviser from Youth Justice. The report concluded that you were not suitable for a Youth Justice Centre Order as, in the opinion of the author, neither of the qualifying criteria in s32 of the Sentencing Act 1991 are met by you.

[5]Exhibit “E”

21The first qualifying factor is whether a young offender has reasonable prospects of rehabilitation. The author noted that, since you first became involved with Youth Justice in May 2018, you had “promptly escalated through the sentencing hierarchy due to a pattern of violent, reckless and acquisitional offending, similar to that (for) which [you] appear before the court”. He went on to note that, despite being afforded numerous supports to address your offending behaviour by several community-based orders and engaging, to some extent, in education and employment, you had not curtailed your offending.  He considered that, during your current remand, you had demonstrated limited motivation to engage in psychosocial programs and he assessed you as having limited insight into your offending behaviour.  Mr Adrees Shah referred to your current motivation to re-engage with Youth Justice being predominantly related to the fact that you have been sharing a cell in adult custody with your twenty-eight-year-old brother, who is likely to soon be released, and the fact that you had limited family support and continue to be involved in problematic behaviours in adult custody, which he detailed as having involved eight “incidents” over the period from 18 July 2022 to 20 January 2023.  On this basis, the author concluded that your “current prospects for rehabilitation appear limited”.

22The second additional or alternative qualifying factor is whether a young offender is particularly impressionable, immature or likely to be subject to undesirable influences in adult prison.  In relation to this factor, the author acknowledged that you do present with ADHD and ODD and had a history of trauma, including separation from your parents, involvement with child protection, bullying, and a reported sexual assault.  He went on to conclude:

“Whilst his age and mental health are relevant factors, there are supports available to him within adult prison to address these concerns and there is no information to suggest that these factors have caused Mr McLachlan to be vulnerable in adult prison.  Instead, it is proposed that he has caused others to experience vulnerability through his participation in incidents, namely being a perpetrator in a physical altercation with another.”

23You have a lengthy involvement with Youth Justice which includes breach by you of Youth Supervision Orders made by the Children’s Court on 28 November 2018, 27 February 2020, and 5 August 2020. You also contravened an interim Family Violence Intervention Order on 5 August 2020 and, on a number of occasions, have committed indictable offences whilst on bail.

24You have been given multiple opportunities in the past by the Children’s Court to engage in rehabilitation, but you not have been found to have taken advantage of those opportunities.  The one exception to this is that you did manage not to offend for the duration of the Youth Attendance Order imposed by the Melbourne Children’s Court on 10 March 2021 for a period of four months to 9 July 2021.  However, it is apparent from Exhibit 2, tendered by your counsel, that less than two weeks after the expiry of that Youth Attendance Order, you committed an attempted burglary on 21 July 2021 and, then, on 6 September 2021, committed offences of dishonestly retaining stolen goods, carrying a controlled weapon without excuse, obtaining property by deception, attempting to commit an indictable offence, and theft from a shop.  Further, on 11 November 2021, you committed an offence of theft from a shop, and on 19 January 2022, you committed more offences, namely, assault, attempted theft from a shop and committing an indictable offence whilst on bail.

25It seems that all of the offending to which I have just referred, which was committed prior in time to the offences for which I must sentence you, was ultimately dealt with at Ringwood Children’s Court on 14 December 2022, after some of the matters had been the subject of a deferred sentence, on which date you were convicted and discharged.[6] By that date, you had been held in remand in adult custody since 23 June 2022. It is no part of my role to deal with you for any of that offending. I note that generally, it is of a lesser serious nature than the matters for which I must sentence you. However, it is fair to say that it does not enhance the court’s view of your prospects of rehabilitation.

[6]See email from the Prosecutor, Ms Worrell, to the Court dated 30 March 2023, paragraph 3, together with attached summaries relating to the offending

26The pre-sentence report dated 7 March 2023,[7] required clarification in a number of respects.  The court had been alerted to matters raised with the author of the report in an email sent to him by your counsel, Ms Andersen, on 10 March 2023.[8] Subsequently, in response to an email request sent by my staff, an undated addendum to the pre-sentence report was received from Mr Adrees Shah on 31 March 2023. As previously mentioned, the pre-sentence report had determined that you did not meet the criterion of being particularly impressionable, immature or likely to be subject to undesirable influences in adult prison. Rather, it suggested that you had caused others to experience vulnerability through your participation in incidents, particularly being a perpetrator in a physical altercation with another prisoner and being verbally abusive towards custodial staff.

[7]Exhibit “E”

[8]Exhibit “4”

27The addendum to the pre-sentence report makes it clear that there were no prison or police charges laid in relation to either the alleged physical assault of another prisoner or the verbal abuse towards a member of staff. One “incident” was, in fact, a complaint by you of chest pain which resulted in you being assessed by medical staff. Other allegations were either not substantiated or in one case actually dismissed. Of the eight incidents referred to in the pre-sentence report, only one resulted in a consequence being imposed. This was on 15 January 2023, when custody staff located a large quantity of “smoking material”. As a result, you were placed on a regime under which your out of time cell was limited to four hours per day for a period of 28 days.

28The pre-sentence report had indicated the view that your current prospects for rehabilitation appeared limited on the basis of you having demonstrated limited motivation to engage in psychosocial programs whilst on remand, on top of a longstanding lack of engagement by you with support services that had been offered by Youth Justice over a number of years. The addendum stated that, whilst on remand, you had not expressed an interest in or referred yourself to any alcohol and drug programs and, contrary to what the court had been told, you had not enrolled, nor were you on a waitlist, for the “Connect With Your Kids” program or “The PPP Parenting” program. 

29The addendum also indicated that Correct Care Australasia, the mental health service provider for the Metropolitan Remand Centre where you are currently held, had advised that they were aware of your mental health diagnoses and you had engaged in several appointments with a psychiatric nurse.  It was noted that you are not currently medicated, but should it be the assessment of the mental health team at the prison that you do require medication for your ADHD, then such medications can be made available to you.  The comment was made that “more recently” you had been referred to Forensicare for ongoing psychological support with the identified goal being to address your trauma, which would involve once weekly individual sessions.  I can only assume that the words “more recently” must refer to a time after the pre-sentence report dated 17 March 2023.

30Whilst I appreciate that time and effort must be put into assessing suitability of a person for a Youth Justice Centre Order, in your case, with some reservation, I have determined not to follow the recommendation of the pre-sentence report that assesses you as unsuitable for such an order.  I am very mindful that, at the time of the offending on Charges 1, 2 and 3, you had turned 18 years of age only 6 weeks previously. By the time of the later offending in June 2022, you were aged 18 years and four months, that is, you had only recently attained the age whereby you come within the jurisdiction of the adult courts. You turned 19 years of age shortly after the plea hearing before me held on 14 February 2023.   Whilst I have deemed only one of the alleged eight “incidents”  described in the pre-sentence report to be of relevance, the fact that you have, on multiple occasions, been brought to the notice of prison staff, and have been moved to different prisons on a number of occasions during the period of approximately eight months on remand, to my mind is as equally consistent with you not settling well into adult custody because of your young age and immaturity, as it is with you being a deliberate troublemaker.  Perhaps it is a combination of both.

31In any event, less than one year before the pre-sentence report and addendum, an earlier pre-sentence report dated 21 April 2022,[9] had noted a number of factors in your favour.  These included that you had demonstrated insight with regard to your offending advised in that report, had acknowledged that you were responsible for it, and were able to identify contributing factors, including being under the influence of Xanax and alcohol, albeit that you appeared unable to reflect on the impact of your offending on the owners of the stores which were the subject of that offending.  The author considered that, apart from your lack of engagement in structured activities and your problematic substance use, your lack of consequential thinking appeared to be linked with your offending.  In arriving at the recommendation for a probation order, the author of that report took into account, amongst other things, your “impressionability and immaturity” and that you had “rehabilitative prospects and (required) support to obtain motivation to improve (your) circumstances and consolidate more protective factors”.  It was further noted that you had “self-disclosed alleged serious further offending throughout the deferral period of youth supervision”.  The author identified the need for a probation order with special conditions of assessment and treatment for offence-specific intervention, as well as participation in education or training. 

[9]Exhibit “2”

32The date of the report is close to the time that you committed charges 1, 2, 3 on the indictment. Obviously, you committed the more serious charge 5 and 6 some 6 weeks later. However, it is difficult to understand how, in a period of less than 12 months, you then become assessed in Exhibit “E” as not being vulnerable in an adult prison, and as someone who has “current prospects for rehabilitation (which) are limited”. Clearly, you did not get the benefit of the probation order which had been recommended in the earlier pre-sentence report dated 21 April 2022 because, by the time your various matters came to be heard at Ringwood Children’s Court in December 2022, you had been in adult custody since June 2022. Hence, the disposition of the Children’s Court was one of you being convicted and discharged on all matters.

33I also note that one of the factors mentioned in Exhibit “E” as supporting the opinion of your current prospects of rehabilitation is said to be your “limited family support”, whereas in the pre-sentence report last year, it was recorded that you had “reported predominantly positive relationships with both (your) parents”. Indeed, your counsel, in her most recent submissions, noted that your mother and father are supportive of you and that you had had regular contact with both parents.  Although the author of the pre-sentence report and the addendum to it noted that there had been a discussion held with your father, the substance of that discussion was not disclosed.[10] Your counsel put on your behalf that you had been living with your father prior to being remanded in custody and proposed to live with him, again, upon your release. Indeed, you are said to be distressed by your father’s ill health, details of which were tendered as Exhibit “3”.

[10]Supplementary plea submissions by counsel for defence, 17 March 2023 “MFI-2”, page 3, paragraph 4(j)

34I have found this to be a somewhat difficult sentencing exercise.  You, Mr McLachlan, have repeatedly breached court orders and shown yourself to be an arrogant “law unto yourself”. The offending for which I must sentence you is very serious. It is brazen, cruel and callous in nature.  The impact upon your victims is understandable and very concerning. 

35Jacob Russell, the victim of Charge 2, in a Victim Impact Statement made on 10 February 2023,[11] stated how he was too scared to run because he thought that may have so angered you and the others, that you all would have chased him and stabbed him. He said that, afterwards, he was shocked and continued to feel frightened, especially at night when he was alone. So, he would call his parents and ask where they were and when they would be home, and needed to turn on all the lights inside the house in order to try and feel safe.  He has often experienced flashbacks to the incident. He now feels unsafe walking around the streets with friends and is afraid to go out at night and misses social events which he used to enjoy.  He is frustrated by the unfairness of you having taken his backpack. He lost cash which he needed to buy lunch, his iPod which he had been given as a gift, and a Myki card and important forms of identification, all of which he had to apply for again.  He was only 16 years old at the time of your offending.  Amongst other things, I note that he had asthma medication in his backpack. Had he suffered an asthma attack after you took it from him, it does not bear thinking about what may have happened to him.

[11]Exhibit “B”

36Jacob Russell’s mother also made a Victim Impact Statement on 10 February 2023.[12]  She stated that, despite the fact that it has been almost a year since you robbed her son, she has been constantly worrying about his safety.  She mentioned that she has installed locks on every bedroom inside the house, and she has experienced nightmares often.  When her son is out and she calls him, and he did not answer, she starts to panic.  She, too, began to feel unsafe when alone in public areas, whereas she had previously enjoyed her neighbourhood.  She commented upon the change in her son’s behaviour in not wanting to be at home by himself, always asking her to drive him to locations, and always locking his bedroom door.  She expressed the hope that you and the other offenders can realise how much pain and loss you have brought to herself and other families.

[12]Exhibit “C”

37Jason Piggott, the victim of Charge 4, made a Victim Impact Statement on 12 December 2022.[13]  He is 23 years of age and on a disability support pension.  He refers to how bullied he felt by you and how now he is always shaky when he is out, and worried that someone else will steal his things.  He is not as confident as he was previously and has had trouble sleeping because of your offending.  He refers to the fact that, prior to this incident, he was working as a trainee in customer service earning $14.00 per hour, which he had managed to save, yet you made him withdraw over $1,000 of his hard earned money which has still not been returned to him. The consequences of which he speaks are understandable. He underwent a protracted ordeal over an hour or so, with you many times demanding that he make further withdrawals from his account. You intimidated him and humiliated him and made him undress and handover his trousers and, during the ordeal, you filmed him on his own phone while mocking him.

[13]Exhibit “D”

38The consequences expressed in the Victim Impact Statements are the result of your brutish, nasty conduct in intimidating other people.  It is important in sentencing you, that your victims be heard and that they feel vindicated.  On the other hand, I am concerned that you are still relatively young, and although you have far from covered yourself in glory, both before and during this offending, I think it would be wrong of this Court to write you off as having little or no rehabilitation prospects, even though your behaviour in relation to repeated rehabilitative dispositions does you no credit whatsoever.

39I am very conscious of the significant line of jurisprudence that, generally speaking, where an offender is a youthful offender the principle of rehabilitation should be the predominant sentencing principle.[14]  I am also conscious that this principle must be balanced against the seriousness of the offending.  There is no doubt that your offending is serious, as reflect in the maximum penalties for all charges on the indictment.  The offending on Charges 1, 2 and 3 involves an aggravating factor of you having been in company with others at the time of offending, which heightens the intimidation to victims.  In addition, you were on bail at the time of committing all offences.  It is quite remarkable that, even after you had been arrested in relation to Charges 1, 2 and 3, and held overnight but granted bail on 3 May 2022, you offended again within a matter of weeks.  However, I am conscious of the need not to impose double punishment, as you have pleaded guilty, also, to summary offences of committing an indictable offence whilst on bail.

[14]R v Mills [1998] 4 VR 235; Bowen v The Queen [2011] VSCA 67

40This style of violent, intimidating offending against innocent victims who were minding their own business out socialising, or going about their everyday affairs, is of an offensive nature because it seriously erodes the sense of security of not only your victims but other members of the community, who are adversely affected when it is known they become fearful about the thuggish behaviour of offenders who menace others with knives, and take their property.  The quality of life in our wonderful society here in Australia is diminished by the selfish, vile, antisocial conduct of people like you, Mr McLachlan, in sentencing this court must denounce your conduct and it must place emphasis on general deterrence.  That means that, in sentencing you, the court must send a message to other people who might be minded to commit similar violent, antisocial acts of dishonesty that they will be appropriately punished.  It is also necessary to specifically deter you because you have offended in similar ways in the past and not abided by court orders which have sought to address your offending. This makes the protection of the community sentencing consideration relevant.

41Ironically, you were bullied at school, yet you have behaved in a most appalling bullying fashion to your victims.  All of your offending comes on top of a history of lawlessness where you have been given repeated opportunities to reform but have thumbed your nose at those opportunities.

42On the other hand, it is a sad factor that people who themselves have been bullied (like you have been because of your small size and appearance) sometimes end up being bullies themselves.  There is no doubt that you have had a vulnerable background of some disadvantage, as reflected in the fact that, over a period of nine years from when you were aged between 5 and 14 years, there were multiple reports made to Child Protection.  I accept that parental neglect whilst you are in crucial stages of development is a significant childhood disadvantage which should be taken into account and courts acknowledge that such childhood neglect has enduring consequences.[15]  In addition, your use of illicit substances from an early age in your teens is of significance because that adversely impact upon a developing brain.  I accept that you have ADHD, ODD and a Stimulant Use Disorder (albeit in enforced remission whilst you have been in custody).

[15]Bugmy v The Queen [2013] HCA 38; DPP v Herrmann [2021] VSCA 160

43I consider that the application of principles 1-4 in Verdins in your case is problematic by reason of the fact that you had ingested illicit substances and were apparently intoxicated by them.  However, I accept Ms Cidoni’s opinion that, generally speaking, your disadvantaged background and the adverse impact of substance abuse on your neurodevelopment means that you suffer both impulsivity and poor emotional control which, indeed, are features of both ADHD and ODD. 

44Further, I accept that, at the age of 18 when you committed these offences, your neurodevelopment was lagging in terms of maturity in terms of consequential thinking skills which are well-developed in older adults.  Leaving aside your abuse of illicit substances, generally speaking, you had judgement which was unreliable in the sense of thinking only of the short-term consequences.  I have already noted that this was a feature which was highlighted in the pre-sentence report provided to Ringwood Children’s Court in April last year, namely, that the offending to which that report related appeared “to be linked with your engagement in lack of structured activities, problematic substance abuse and lack of consequential thinking”.  That report stated that you had engaged in risk taking behaviour since the age of 14, and hypothesised that your substance use and negative peer associations throughout your formative years may have impacted upon your education as well as your brain development, noting that you had been diagnosed with ADHD and ODD.[16]  That hypothesis is in accordance with the view expressed by Ms Cidoni in her report.[17]

[16]Exhibit “2”, pages 7-8

[17]Exhibit “1”, pages 6-7, paragraphs 77-83

45I am satisfied on the balance of probabilities on the basis of the entirety of the material before me that, notwithstanding the pre-sentence report and addendum to it,[18] you are particularly immature and lack developed consequential thinking skills.  Further, although you have shown limited motivation to engage with rehabilitative programs to date, I consider it would be wrong of this Court to condemn you as having limited capacity for rehabilitation when you are only aged 19 years. As I have already stated, your brain is still capable of further development, particularly its capacity for consequential thinking.

[18]Exhibits “E” and “F”

46In your favour, I also take into account your pleas of guilty. They were early please, entered on the date of the Committal Mention on 15 November 2022.  At that point of time, the COVID-19 pandemic was still impacting adversely upon the ability of the courts to conduct criminal trials. Accordingly, the utilitarian value of your plea is higher in those circumstances.[19]  Although I have reservations about you having true or full remorse, I take into account that you allege that you have no memory of the offending and did tell Ms Cidoni that you were “very upset when [you] learned what had happened when [you were arrested]”[20]. By reason of your pleas of guilty, you are entitled to a discount upon the sentence that otherwise would have been imposed.

[19]        Worboyes v The Queen [2021] VSCA 169.

[20]        Exhibit 1, page 2 para 15.

47I have wrestled somewhat with the objective gravity of your offending and whether it should displace the emphasis upon rehabilitation that is generally warranted when sentencing a young offender. As I have stated, it is with some reservation that I propose not to follow the recommendation in the pre-sentence report which assesses you as unsuitable for a Youth Justice Order.  This is primarily because of my assessment of your immaturity and vulnerabilities relating to your disadvantaged childhood and impact of it upon your neurodevelopment, including the adverse effect of illicit substance abuse since your early teen years.  In particular, I consider that your conditions of ADHD and ODD and your impulsivity, are likely to bring you into situations of conflict in adult custody.  I consider it likely that these conditions will be better understood and managed in a Youth Justice Centre. 

48You have not previously had a period of detention in a Youth Justice Centre.  I consider that such a disposition should be made in your case with a view to trying to reclaim you and endeavour to help you to become a decent and contributing member of the community.  In my view, this requires significant education in relation to substance abuse and its impact and relapse strategies, treatment for your ADHD and ODD by way of medication and/or counselling, and guiding  you to obtain some more formal education to help you to obtain employment when you are ultimately released back into the community.

49It is the rigid and focused structure of a Youth Justice Centre order which I consider to be required in your case, particularly if you are granted parole by the Youth Parole Board.  I accept Ms Cidoni’s conclusion that since you are still maturing developmentally and socially, interventions at this stage can still positively impact upon your life trajectory.  I agree with Ms Cidoni’s opinion that, having you continue to serve a sentence in an adult prison is very much less likely to achieve any positive change, but rather endorse the negative antisocial traits which have got you into trouble thus far in your life.

50Accordingly, albeit with some reservation, I do propose to sentence you to a period of detention in a Youth Justice Centre. In arriving at this decision, I have had regard to the nature of the offences and your age, character and past offending as I am required to do pursuant to s32(2) of the Sentencing Act. Lest you think that you have hoodwinked this Court in some way, Mr McLachlan, you need to be aware, if you do not behave yourself appropriately in a Youth Justice Centre, then you are unlikely to get parole at the earliest available opportunity. Whether you get parole will be dependent upon your behaviour. If you behave like a smart alec and interact violently and unpleasantly with fellow detainees or staff, and do not do what you are supposed to do, and do not focus upon achieving abstinence from illicit drugs and get some education and make something of your life, then you will risk not getting parole and improving your life. In addition, there is also a real possibility that, if you are a disruptive, unruly presence in the Youth Justice Centre you will simply be transferred from there to an adult prison. If you are able to remember anything of what I have said, try to remember that, because it is very much in your interest to do what you are told and try and rehabilitate yourself.

51Thus, although I regard your prospects of rehabilitation as being guarded at this stage, I consider that your young age, disadvantaged background and conditions of ADHD and ODD, along with your long-term substance abuse problem, need to try to be addressed now, otherwise it will be too late and you will end up being a menace to society and simply find yourself in and out of prison for the rest of your life.

52It should be noted, that a co-offender on Charges 2 and 3, Joel Walsh, pleaded guilty at the Ringwood Children’s Court on 21 September 2022 to two charges of robbery, affray and two charges of committing an indictable offence whilst on bail. The disposition of the court was a, without conviction, good behaviour bond for a period of six months. Obviously, this co-offender was younger than yourself, as reflected in the fact he was dealt with before the Children’s Court, and the disposition seems to be indicative of a limited criminal history, however, I have been given no further details. The sentencing regime in the Children’s Court is very different from that in the adult courts. Moreover, in relation to Charge 2, the victim Mr Russell was apparently aware that you, unlike Walsh, had possession of a knife and this was why Mr Russell handed over his backpack to you. Further, in relation to Charge 3, you made a threat to stab Mr Chang (albeit, that Mr Chang was unable to say that what you were pulling out of your bag was actually a knife) and even after your co-offenders had ceased assaulting Mr Chang and Mr Ip, you attempted to rob Mr Chang of his wallet and phone.

53On the first two charges on the indictment, I propose to impose an aggregate sentence. This involves one sentence for the two offences. It is a recognition that the offending on these charges was closely linked in time and circumstances, that is, they are part of criminal behaviour by you of the same or similar character.

54I am mindful of the presumption of concurrency relating to sentences of detention imposed on a young offender pursuant to s33(1) of the Sentencing Act. In my view, the overall gravity of your offending, which occurred on different dates and involved a number of different victims, together with the fact of you offending whilst on bail, makes some cumulation appropriate in order to arrive at a sentence which justly reflects the seriousness of your offending but, also, takes into account the principle of totality.

55On Charge 1, armed robbery, and Charge 2, robbery, you are convicted and sentenced to be imprisoned to an aggregate sentence of 12 months’ detention in a Youth Justice Centre.

56On Charge 3, attempted robbery, you are convicted and sentenced to be detained for a period of three months in a Youth Justice Centre.

57On Charge 4, armed robbery, you are convicted and sentenced to be detained for a period of two years in a Youth Justice Centre.

58On Charge 5, attempted armed robbery, you are convicted and sentenced to be detained for a period of six months in a Youth Justice Centre.

59On Summary Charge 3, committing an indictable offence of armed robbery whilst on bail on 8 April 2022, you are convicted and sentenced to be detained for a period of one month in a Youth Justice Centre.

60On Summary Charge 4, committing indictable offences of armed robbery and attempted armed robbery whilst on bail on 19 June 2022, you are convicted and sentenced to be detained for a period of one month in a Youth Justice Centre.

61On Summary Charge 6, contravening a conduct condition of bail between 3 and 17 June 2022 by failing to report to police on five different occasions, you are convicted and sentenced to be detained for a period of one month in a Youth Justice Centre.

62The base sentence is that of two years’ detention in a Youth Justice Centre imposed on Charge 4.  I direct that nine months of the aggregate sentence imposed on Charges 1 and 2, one month of the sentence imposed on Charge 3, two months of the sentence imposed on Charge 5 of the indictment and the whole of the one month sentences imposed on each of the Summary Charges 3, 4 and 6 be served cumulatively upon the base sentence and upon each other.  The total effective sentence imposed is thus that of three years’ and three months detention in a Youth Justice Centre. 

63Pursuant to s35 of the Sentencing Act 1991, I declare that a period of 287 days during which you have been held in adult custody relating to these offences be reckoned as a period of detention already served under the sentence imposed this day.

64Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed this day would have been five and a half years’ imprisonment with a non-parole period of three years and four months.