Director of Public Prosecutions v Michael
[2022] VCC 562
•29 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-01776
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER MICHAEL |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 February 2022, 7 April 2022 |
DATE OF SENTENCE: | 29 April 2022 |
CASE MAY BE CITED AS: | DPP v Michael |
MEDIUM NEUTRAL CITATION: | [2022] VCC 562 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Koori Court jurisdiction – Aboriginal offender - Aggravated carjacking – Attempted aggravated carjacking – Reckless conduct endangering life – Theft of a motor vehicle – attempting to obtain property by deception – Resisting an emergency worker on duty – Bugmy Principles – Intellectual functioning – Undiagnosed mental illness – Mandatory minimum sentence – Special reason exists
Legislation cited: Sentencing Act 1991 (Vic)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; R v Fernando (1992) 76 Crim R 58.
Sentence: Total effective sentence of 3 years’ imprisonment with a non-parole period of 20 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | Office of Public Prosecutions |
For the Accused | Ms R. Greensill | Robyn Greensill & Associates |
HIS HONOUR:
1Christopher Michael, you have pleaded guilty to a charge of theft of a motor vehicle, which is an offence carrying a maximum penalty of 10 years' imprisonment, a charge of attempting to obtain property by deception, which carries a maximum penalty of five years' imprisonment, one charge of reckless conduct endangering life, which carries a maximum penalty of 10 years' imprisonment, one charge of attempted aggravated carjacking, which carries a maximum penalty of 20 years' imprisonment, one charge of aggravated carjacking, which carries a maximum penalty of 25 years' imprisonment, and one charge of resisting an emergency worker on duty, which carries a maximum penalty of five years' imprisonment.
2You have also pleaded guilty to the uplifted summary charges of driving a motor vehicle on a highway while disqualified, which has a maximum penalty of 240 penalty units or two years' imprisonment and driving a motor vehicle when directed to stop, which carries a maximum penalty of 60 penalty units or six months' imprisonment, or both, for a first offence.
3You have relevant prior convictions which were admitted by you.
4The facts of your offending are clearly and succinctly set out in the Summary of Prosecution Opening, which was Exhibit A on the plea and forms part of these reasons for sentence.
Circumstances of Offending
5Eight days prior to your offending in this case, you were released from prison and moved in with your mother, Marcia, who attended your plea hearing.
6On the 13 of January 2021 at 12.33 am, you attended the United service station located at Bell Street, Preston, in a red 2009 Audi wagon. You were driving that vehicle and you knew it was stolen (Charge 1 – theft of a motor vehicle; and summary charge 8 – drive while disqualified).
7You then tried to fill up the vehicle with fuel but were unable to do so as pre-payment was required. You entered the service station store, spoke to the attendant, and then left.
8At 4.34 am you attended the BP service station at 925 Plenty Road, Kingsbury, driving the wagon. You tried to fill up the vehicle with fuel, again unsuccessfully as pre-payment was required. You then entered the service station with a female associate where you attempted to use a credit card (which belonged to the owner of the stolen vehicle), and you made an attempt three times to pay $54 worth of fuel. Each time the card was declined. That incident was captured on CCTV (Charge 2 – attempt to obtain property by deception).
9You and your associate then left the store and returned to the vehicle which remained stationary for a short period of time.
10At 4.33 am Victoria Police members attended the service station in an unmarked police car and approached the car you were in, lights flashing. You drove away from the police, executed a sharp U-turn, and drove out of the petrol station onto Plenty Road (Summary charge 13 – fail to stop vehicle on police direction).
11You then drove off in a southerly direction on Plenty Road in the north-bound lanes, against oncoming traffic. The headlights of your vehicle were off, and you were driving at a fast speed in excess of the 70 kph speed limit. This put other vehicles in considerable danger. It was dark at the time (Charge 3 – reckless conduct endangering life).
12The police lost sight of the car that was driven by you. You were driving fast, and the police did not pursue you due to the way you were driving.
13Later that day on the 13 January at 11.59 am, you boarded a Dyson bus and remained on it until it stopped at a bus stop at 251 Betula Avenue, Mill Park. The bus had stopped to change drivers. There were a number of other passengers on the bus. The incoming bus driver, Mr Pushpangadan, parked a Dyson vehicle in front of the bus and greeted the outgoing bus driver, Mr Joseph.
14As the drivers conducted a handover, you exited the bus and entered the Dyson vehicle which was unlocked with the keys in the ignition. You attempted to start the engine but were unable to do so due to the absence of an access device that was held by the drivers. The two bus drivers attempted to take the keys from the ignition and remove you from the vehicle. There was a scuffle, Mr Joseph sustained an injury to his wrist which was later sore when rotated. You then removed a small axe or hatchet from the front of your pants and brandished it towards Mr Joseph and Mr Pushpangadan, who backed away. Your actions in the vehicle were captured on a dashboard camera (Charge 4 – attempted aggravated carjacking – offensive weapon).
15Mr Pushpangadan went back to the bus with the passengers inside and locked the bus doors for safety. Mr Joseph called the bus depot to report the incident and request police assistance.
16You then got out of the Dyson car and approached the driver of another vehicle, a Toyota HiAce van being driven by Hamid Abed, who was returning home and waiting to turn into a nearby driveway. You spoke to Mr Abed, who then drove away. You then approached Nagi Beshay, who also lived in a nearby house and was standing in his driveway next to his parked Toyota Camry sedan. You spoke to Mr Beshay before you again approached Mr Abed, who had returned and parked his HiAce van nearby. You spoke to Mr Abed but he went into his house.
17You then rushed towards Mr Beshay and confronted him again, pushing and shoving him while demanding he hand over his car keys. You raised the axe in your right hand at him. You struggled with Mr Beshay, using your free hand to grab him and shake him. You managed to take the car keys from his pocket, and Mr Beshay sustained an abrasion to his elbow during the struggle. You then used the keys to enter and start Mr Beshay's vehicle, and you reversed it out of the driveway before it stalled (Charge 5 – aggravated carjacking – offensive weapon).
18Mr Beshay and another neighbour placed garbage bins in front of the car and wedged bricks underneath the tyres to prevent you from driving away. A truck approached the scene and the driver parked the truck in front of the stolen vehicle to prevent you from leaving. Another vehicle blocked the Camry from behind. Mr Beshay and a number of witnesses surrounded the vehicle to prevent you from leaving the scene.
19The police arrived a short time later. You refused to get out of the vehicle when instructed by police. Police smashed the window and physically removed you from the vehicle. You resisted by thrashing your body and resisting your arms being placed behind your back, and resulting in one of the arresting officers, Senior Constable Castellano sustaining a minor superficial laceration to his hand during the struggle (Charge 6 – resisting an emergency worker on duty).
Investigation
20Police located the hatchet that you had.
21You were arrested, sedated, and conveyed to the Northern Hospital for treatment of lacerations to your arm sustained during the arrest. A sample of blood was taken from you, a later analysis of which detected the presence of methylamphetamine. You were later transported to the Mill Park police station, where you were assessed by an officer and deemed unfit for interview.
Objective Gravity of Offending
22It was not surprising that you were unfit for interview. Your behaviour was chaotic and erratic. There was no sense or purpose to it. You had been acting irrationally and in a paranoid manner prior to the offending.
23During the sentencing conversation - which I have already noted was attended by your mother, your grandmother said this about the period leading up to your offending. She said:
On the 12th of January before this happened to Christopher, I rang - he came home I ran the CATT team because Christopher was certainly not in his right frame of mind. Now, they came, the ambulance and that but they didn't take him, but they should have. I think the police and the ambulance turned up and I don't think the CATT team came. If they would've came and saw what kind of condition he was in, he should've been taken to hospital, and this would not have happened but they didn't and this is the consequence of his actions.
24Your mother also touched on this topic later on in the conversation:
Yeah, before this happened, as is said, I've got Declan in my care. My son was like normal when he got out, and then a couple of days later, when he came to my house, he was ranting and raving, saying everyone was watching him, people across the yard was watching him, undercover police, I had to take him out of my house. I said, 'Chris, you need to get out of my house now' because he wasn't my son. I literally told him to get out of my house, and don't come back, and that hurts me, because he was not my son, and I had to kick him out of my own flat, because he was swearing and cursing at me, and he couldn't stay there because I had my grandson with me. So, now he's a lot different like than the last time I seen him.
25Your mother was explaining to Uncle Wally Harrison in the sentencing conversation that you are a lot better now and a different person to the way you were presenting prior to the offending.
26I sought a Forensicare report which was useful in relation to the lead up in your psychological state at the time of the offending. Dr Triglia stated at paragraphs 19 and 20 of her report:
He had been hearing voices throughout his time in custody for about 12 months prior to his release, and these continued after his release. He moved in with his mother and almost immediately met up with a friend, with whom he used methamphetamine. He said that over the ensuing days, he continued to use 2 to 3 points of methamphetamine daily as well as some GHB. Over several days he came to believe that strangers were following him and wanted to kill him. He believed there were numerous people, a “gang” who were “trying to send me crazy”. He said he started carrying an axe as a weapon because he was frightened.
On the evening prior to the first offences his grandmother contacted the Crisis Assessment and Treatment Team (CATT) because she was concerned about his mental state. Mr Michael said that they arrived with the police and he spoke with CATT staff, but they did not take him to hospital or offer follow-up or treatment.
27And again, at paragraph 60 of her report, Dr Triglia summed up as follows:
The offences with which he is currently charged occurred shortly after his release from custody. He rapidly relapsed into heavy methamphetamine use and developed persecutory delusions that he was being watched, followed and that strangers wanted to kill him. He carried a weapon to protect himself. His erratic behaviour related to the offences was driven by his fear that he would be killed and his attempts to escape. It is likely that the psychotic symptoms were drug-induced, caused by methamphetamine use. There did not appear to be a link between his pre-existing auditory hallucinations or obsessive-compulsive symptoms and the offences.
28Objectively, your offences are very serious. The footage provides the best means of assessing the danger you posed to others. Whilst they are very serious offences, your commission of them - as an example of those offences - was not of a high order of seriousness. Your use of a weapon is aggravating – although it is significant to my mind that you used it to threaten rather than by landing blows. You did not use it when police were forcibly removing you from the vehicle.
29Overall, your psychotic state largely explains the offending and assists in my assessment of the criminality involved. Due to the findings of Dr Triglia, it does not form a basis for reducing your moral culpability. However, it is a proper lens through which to assess the criminality that you engaged in. And as I have pointed out, it was senseless, erratic, and irrational behaviour driven no doubt by the paranoid thoughts you were experiencing.
Personal Circumstances
30You are a 31-year-old proud Aboriginal man. Your parents are both Aboriginal. You come from the Noongar and Gunditjmara peoples.
31You were born in Freemantle, Western Australia. Your early life was troubled. Your parents separated when you were young, and you are the only child of the union of your parents. Both of your parents have suffered from addiction which exposed you to drug use in the household from an early age, and both have spent time in custody.
32When you were about nine years of age you moved to Victoria with your family where your paternal grandmother took over as your primary carer. Your grandmother is not an abuser of alcohol or drugs, and I am told she has been the most stable influence in your life to date. You have very strong support from both your mother and your paternal grandmother. Both attended the sentencing conversation and spoke strongly in your support and about your life circumstances.
33Your education was limited. You attended primary school in Freemantle and changed to Thornbury Primary School following your move to Victoria. You had difficulty with the academic requirements and left school after completing Year 6. Your work history is limited to some cash in hand work in your early adult life and employment as a billet while in custody. You have also obtained a forklift license and barista qualifications during your time in custody.
34You have used drugs heavily since your early teenage years. I was told you commenced smoking cannabis at the age of 16 and methylamphetamine at 17. After two months of smoking methylamphetamine you commenced injecting the drug. At this point, your offending behaviour developed momentum. I am told you also regularly misused prescription medications and have used GHB a few times.
35You became involved in the criminal justice system at the age of 20 and there is a nexus between you entering the criminal justice system and your methamphetamine use. By your account, many of your offences relate to funding your substance abuse.
36You had a 12-month relationship with the mother of your son, who is now 12 years of age. The relationship with your son's mother ended after he was born because of your methamphetamine use. During your time on remand for these matters, your son has been unable to visit you due to the restrictions put in place during the COVID-19 pandemic.
Intellectual Functioning and Mental Health
37A 2019 psychological report of Dr Bernard Healey assessed you as having an overall IQ of 57. Based on this assessment, you would meet the criteria for intellectual disability, but you have not been linked with intellectual disability services. This may form part of a tragic pattern in your case of failure to provide you with the support services that you have needed for much of your life. Or as Dr Triglia allows, the assessment of your IQ may not be indeed that low. But I accept that you have an intellectual disability.
38During the sentencing conversation, your mother and your grandmother expressed a range of observations about your make up and history that suggested undiagnosed mental health disorders or illness. And accordingly, following the sentencing conversation, I ordered a psychiatric report which was prepared by Dr Triglia on the 17 March.
39I will go back to the sentencing conversation which was informative on this point, both for myself but also for Dr Triglia, and the Elders involved who are able then to engage with your mother and grandmother about the supports you need. Your grandmother stated:
Chris had a lot of problems growing up. He had a thing like OCD, which I now know is OCD… Like, we didn't know about mental illnesses, especially in children. He had anxiety, all that at school, and it wasn't picked up by the teachers when it should've been. His son now has the same thing that Chris had.
40And then your mother said:
His grandmother has to use gloves when she prepares his meals, like Chris.
41Referring to your son.
One spoon, one plate that belongs to him, and you're not allowed to use it, but he's got those same traits as Christopher, without Christopher getting the help for it, if we had known then what we know now, he'd have been taken to the doctors, but we didn't know. Like, we've just learnt about this, you know, and the same thing happened to him when he was growing up and at school to what Declan's going through now. Exactly the same.
42Your grandmother said:
I had Chris with appointments to go and see a psychiatrist. It took me three times going into the place to try to get him to come from the car into a place, into the Health Service because of the anxiety, but even with – even with the trouble with getting him whenever he was on a CISP program or whatever program he was, and we took him to see the lady, he started to engage, but it took a lot to get him into the place because of the anxiety that he suffers, and it's debilitating and even with putting his forms to Centrelink, I had to go and do it, so you know, he's been like that for a while, and recognising that he does have a mental illness is a big thing for somebody who’s got mental illness because they don't think there's anything wrong with them, but there is. Underlying issues, that's it. You know, he hasn't been diagnosed, there's not people around that diagnosed him with it, but I could see, and I've worked with a lot of people because I've worked at the Health Service as well, and at the Children's Hospital, so I do know about these things.
43Now, for the sake of the transcribers, I was reading from pages 25 and 26 of the transcript provided to me.
44There was then a helpful discussion with Uncle Wally Harrison and Ms Michael and Ms Calgaret about NDIS support.
45In her report, Dr Triglia raised the possibility that your full-scale IQ might be slightly higher than the results suggested in the 2019 report. Dr Triglia noted that symptoms of anxiety or psychotic symptoms, which I will discuss in greater detail below, may have affected your performance on cognitive testing.
46Dr Triglia summarised her professional opinion at paragraph [61] of her report as follows:
Mr Michael is a vulnerable man with complex problems and needs. He struggles to express himself and communicate his needs and he has limited coping strategies. He will require a high level of support when he returns to the community to manage his mental health problems, correctional requirements and activities of daily living.
47In her report, Dr Triglia noted that you have had a history of mental health and cognitive difficulties since childhood. You told Dr Triglia about your concerns about germs and contamination from an early age, consistent with the observations shared by your mother and grandmother during the sentencing conversation. Dr Triglia opined that these symptoms suggest you have obsessive-compulsive disorder. You have not disclosed these symptoms to the mental health staff you have seen intermittently over the years and have not received treatment for it.
48Dr Triglia opined that you likely suffered from schizophrenia. At paragraph 56 of her report, she explained:
He has been experiencing auditory hallucinations for about two years. He is now on treatment and so it is difficult to determine whether he has experienced other psychotic symptoms such as delusions and thought disorder. The duration of the symptoms and the family history of mental illness suggest he has schizophrenia and that his illness is somewhat treatment-resistant, given that his symptoms have not fully resolved with treatment.
49You began hearing voices during your last period in custody but did not disclose this to staff. Since you commenced taking the anti-psychotic olanzapine, you now hear the voices less frequently, two to three times a day, you reported.
50As I have stated, after you last were released from prison, you moved in with your mother and almost immediately began using methamphetamine and GHB. You came to believe that there were numerous people or a 'gang' who were 'trying to send you crazy', and you began carrying an axe as a weapon because you were frightened.
51As I have already alluded to, and I accept, the day before you committed the offences, your grandmother called the Crisis Assessment and Treatment Team (CATT), had been concerned about your mental health and erratic behaviour. And I accept they arrived with police. You spoke with them, but they did not take you into hospital or offer any follow up treatment. Several hours later you committed the first offence for which you are before me now.
52I am satisfied that there is a clear link between your exposure to negative influences and dysfunction as a child, and perhaps even more significantly your struggles with mental illness and disorder in your teenage years, and your descent into methamphetamine use and associated offending. A lack of understanding, services and supports for your mental health challenges experienced from childhood underpin your descent into drug use and associated offending. I am satisfied that when you are using methylamphetamine – the symptoms of your underlying mental health conditions are heightened. The likely intellectual disability you have adds to the difficulties you face in navigating the world without considerable support.
Prospects of Rehabilitation
53Your prospects of rehabilitation are closely aligned with the availability of treatment and supports for your cognitive limitations, as well as the support of your loving family. The availability of appropriate mental health and daily support of your life skills is uncertain, although the NDIS should be able to fill part of the gap at least in relation to the services you require to navigate your way through life.
54You must understand that you simply are a person that cannot go down the path of using illicit substances. The combination of your mental infirmities and methamphetamine use is catastrophic, as is apparent from the offending before me. The likelihood of your ongoing use is that you are simply going to offend in these significant ways that are harmful to the community and receive longer gaol terms in turn. This is something that must be addressed. And clearly, you need significant support in order for you to deal with the complex issues you have.
Other Factors in Mitigation
55The prosecution helpfully conceded some matters in mitigation that are of some significance. The prosecution conceded that your early guilty plea has a utilitarian benefit to the community, sparing the victims further trauma. And the plea has added utility in these times due to the court backlog, the trial backlog. The prosecution concede that there is also remorse expressed by your guilty plea and the early stage of that.
56The prosecution accept that the principles in Bugmy v The Queen (‘Bugmy’)[1] apply. They accept that more onerous conditions in custody exist for you than for others who do not serve their time in custody during the COVID-19 pandemic. The prosecution also conceded your intellectual disability and the mitigatory effect of it. They noted the totality principle has application and accepted that you had been drug free for a significant period whilst in custody.
[1] (2013) 249 CLR 571.
57I also accept that due to the matters referred to in Dr Triglia's report, particularly in relation to OCD and treatment resist schizophrenia, that your time in custody will be more onerous than for another who does not suffer those frailties.
Bugmy principles
58The principle that is often referred to as the Bugmy principle, or Bugmy factors also has some application in your case. In her report, Dr Triglia writes at 58 and 59:
He has a history of adverse childhood experiences with substance use in the household, instability of accommodation, parental separation and difficulties with school. He had very limited education and has no work history. He commenced illicit substance use in his early teens. It is likely that his substance use has had significant adverse effects on his mental state, although it is possible that methamphetamine use has provided some temporary relief from his anxiety symptoms and this has reinforced his use of it.
…
He has been involved in the criminal justice system since age 20, following his commencement of methamphetamine use.
59In Bugmy, the High Court described the manner in which factors of disadvantage are relevant to an assessment of an offender's moral culpability in the following terms:
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision.[2]
[2]Bugmy (at n 1) at [40], [43] – [44].
60The Bugmy principle applies in your case – the weight attached to it is better assessed holistically, in my view, when I consider the interplay between those factor, the factors of deprivation, instability, and exposure to illicit substance abuse, the interplay between those factors and your mental illness and personality disorder, and in turn the relationship between those matters and your drug use. It is the combination of all of those features which is significant in your case and are directly relevant to the offending before me. I must also of course consider carefully the protection of the community.
61Your upbringing and early childhood development had a number of features that are referred to by the authorities, including Wood J in R v Fernando (‘Fernando’)[3] and the High Court's statement Bugmy. Intoxication did play a role in the offences before me and it is relevant to my overall assessment of the circumstances of your offending, very much in an explanatory sense, but one which in turn bears upon your moral culpability as part of that holistic analysis that I have referred to involving Bugmy factors, mental illness, and personality disorder factors that went largely unrecognised and untreated throughout your formative years, and the connection between those matters and drug use.
[3]R v Fernando (1992) 76 Crim R 58.
62I also have regard to what might be referred to as your Aboriginality in this sense. Some care needs to be taken in not allowing an understanding of Aboriginal disadvantage generally and its relationship to the past and the present high rates of incarceration of Aboriginal people, for example, to distort the concept of individualised justice. I must sentence you as the individual. However, insofar as individualised justice in sentencing requires an assessment of the personal circumstances of the offender, an appreciation of those circumstances necessarily embraces an understanding of the socio-economic context, the cultural context, and in the case of an Aboriginal offender such as yourself for whom the full effect of the Bugmy principles apply, the historical context also.
63The circumstances that have led you to this court are not confined to those immediate factors which occurred to you at different times in your life. Others around you perhaps have also been the inheritors of trauma stemming from policies of segregation and assimilation and insidious racism and discrimination, or simply a lack of understanding, care, and provision of information and services, some of which I have referred to in relation to your adolescent functioning, and mental health. Those around you, and those who you have been in contact with, and grown up with, have perhaps also been a product of systemic disadvantage, or been exposed to it, that disadvantage flowing from the colonial experience. So, I take that into account as a matter personal to you in the way in which I have described it.
Participation in Koori Court
64You engaged in the Koori Court process which is also a matter I have taken into account. You were challenged by your Elders and they encouraged you to take responsibility for your rehabilitation. Your mother and grandmother also participated, and the Elders conversation with them was aimed at helping them develop the supports that you need.
65It is recognised that participation in the Koori Court process is more onerous than a traditional plea, and your engagement and exposure to the process is deserving of mitigation. I was able to observe you and assess your responses and the genuineness of your stated intentions and your remorse. I take it into account in a way favourable to you in a mitigatory sense.
Remorse
66I accept that you have genuine remorse in relation to your conduct.
Impacts of COVID-19
67I also take into account the fact that you have been on remand during the pandemic, and the restrictions and limitations of that are well understood.
Other Sentencing Considerations
Mandatory custodial sentence
68I must also consider s 10DA of the Sentencing Act, relating to mandatory custodial sentence and mandatory minimum non-parole periods. I must impose a custodial sentence for the offence of aggravated carjacking with a non-parole period of at least three years unless I am satisfied that a special reason exists.
69Under s 10A(2)(c)(ii), I can make a finding that a special reason exists if I am satisfied that you have impaired mental functioning that would result in you being subject to substantially and materially greater burdens or risks of imprisonment.
70The report of Dr Triglia makes clear that you suffer from a range of mental and cognitive difficulties, including an intellectual disability that constitutes impaired mental functioning.
71Her report also makes clear that your previously undiagnosed mental health disorders, in particular obsessive-compulsive disorder, increasing the burden of imprisonment beyond that of a person without mental impairment. At paragraph 11 she writes:
He said he was concerned about the cleanliness of the food and worried that co-prisoners spat in it. He said he had no reason to suspect this but nonetheless limited his food intake, preferred to eat instant noodles rather than cooked meals and kept a bowl for his own use in his cell.
After noting that these concerns had been present since childhood, Dr Triglia continued at paragraph 12:
At present this resulted in his mopping the floor of his cell daily and washing his hands multiple times per day after touching anything in his environment. He said he also liked order and lined up objects in his cell by size. He said that all light switches had to be turned off and he became anxious if unable to undertake these activities.
72A further plea was held in this matter after the report of Dr Triglia was obtained. At the further plea the parties made submissions regarding Dr Triglia's findings and their application to special reasons under s 10A. I am satisfied that special reasons exist by reason of your impaired mental functioning and the impact it will have on your experience of custody.
73In imposing sentence, I have had regard to totality. I have also paid careful consideration to the principles of general deterrence, denunciation, specific deterrence, and the protection of the community.
74I have imposed sentences and a total effective sentence that is lenient and merciful in all of the circumstances. This is due substantially to the combination of the Bugmy factors, your impaired functioning since childhood and its relationship to drug abuse, the lack of identification and supports for your mental health needs from your youth, and importantly, the identification of appropriate supports and treatments referred to in the report of Dr Triglia.
75One of those matters referred to by Dr Triglia was Wulgunggo Ngalu. I am uncertain as to whether that is a viable option as a condition of parole once you are released on parole. But if you are able to go to Wulgunggo Ngalu as a condition of parole, I recommend it.
Sentence
76Charge 1: Theft of motor vehicle, you are sentenced to four months' imprisonment. I also cancel your licence and disqualify you from obtaining another for six months from today's date.
77Charge 2: Attempt to obtain property by deception, you are sentence to one months' imprisonment.
78Charge 3: Conduct endangering life, 18 months' imprisonment.
79Charge 4: Attempted aggravating carjacking, two years. And your licence is also cancelled and disqualified for nine months.
80Charge 5: Aggravated carjacking, two years and six months. Your licence is cancelled and disqualified for nine months.
81Charge 6: resisting an emergency worker, you are sentenced to three months' imprisonment.
82For the relevant summary offences: Driving while disqualified, you are sentenced to one months' imprisonment and also six months of cancellation of licence and disqualification.
83Failing to stop after given a direction, one month imprisonment, and similar disqualification of licence for six months.
84I direct that three months of the sentence imposed on Charge 3 and three months of sentence imposed on Charge 4 be served cumulatively on each other and on the base sentence imposed on Charge 5.
85That makes a total effective sentence of three years' imprisonment. I set a non-parole period of 20 months.
86Pre-sentence detention is 470 days. Is that right?
87MR ROPER: Four hundred and seventy-one, but that is - - -
88HIS HONOUR: Four seventy-one. I was not sure.
89MR ROPER: That was excluding today. I did that earlier, Your Honour, I came up with 471.
90HIS HONOUR: Yes. Yes, no that is more accurate, no doubt. I make the declaration 471 days pre-sentence detention.
91Pursuant to s 6AAA, were it not for your plea of guilty, I would have imposed a total effective sentence of five years, with a non-parole period of three years.
92I make the forfeiture and disposal orders sought.
93And pursuant to s 89C, I make a findings that the relevant offences occurred whilst you were intoxicated. Are there any other orders I need to make?
94MR ROPER: No, Your Honour.
95HIS HONOUR: All right. Mr Michael, that leaves a bit of time between now and when you will be eligible for parole, so you will have some time to get yourself ready for the prospect of parole and plan for it, do whatever programs you can between now and then.
96OFFENDER: Yeah.
97HIS HONOUR: And make sure you avail yourself of every opportunity on parole to address the drug issue as a primary issue, but also underlying issues, and be grateful for the support of your grandmother and your mother.
98OFFENDER: Yes.
99HIS HONOUR: Yes, we will adjourn the court.
100OFFENDER: Thank you, Your Honour.
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