Director of Public Prosecutions v Murray
[2025] VCC 1424
•22 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-25-00413
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLIVE MURRAY |
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JUDGE: | BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2025 Koori Court | |
DATE OF SENTENCE: | 22 September 2025 | |
CASE MAY BE CITED AS: | DPP v Murray | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1424 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Aggravated Carjacking – serious youth offence – Category A offence – youth – Youth Justice – Aboriginality – Verdins – Bugmy – mental health – borderline intellectual function – substance use – substantial and compelling factors that are exceptional and rare – reasonable prospects of rehabilitation
Legislation Cited: Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Honeysett v The Queen (2018) 56 VR 375; R v Morgan (2010); Bugmy v R [2013] HCA 37; DPP v Tirris [2022] VCC 1575; DPP v Cody Herrmann [2021] VSCA 160; R v Fuller-Cust (2002) 6 VR 496; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Elias v The Queen (2013) 248 CLR 483; [2013] HCA; Azzopardi v The Queen (2011) 35 VR 43; Siilata v The Queen [2019] VSCA 277; DPP v Kenneison [2023] VSCA 321; Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213; DPP v Lombardo [2022] VSCA 204; Dabaja v The King [2023] VSCA 209; Buckley v The Queen [2022] VSCA 138; Dabaja v The King [2023] VSCA 209
Sentence: 42 months detention in Youth Justice Centre
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Brad Hardisty | Office of Public Prosecutions |
| For the Accused | Kestin Mildenhall | VALS |
HER HONOUR:
1Clive Murray on 1 September 2025 I granted your application for a sentence indication. Pursuant to section 207 of the Criminal Procedure Act 2009 (Vic) I indicated that if you pleaded guilty to one charge of aggravated carjacking, I would likely impose a term of detention in a Youth Justice Centre or a head sentence and non-parole period not exceeding 3 years.[1]
[1] Criminal Procedure Act 2009 (Vic).
2Through your counsel you accepted this indication. You were arraigned on indictment Q12316826 and formally entered a plea of guilty to one charge of aggravated carjacking. Your matter was adjourned to be dealt with in the Koori Court and on 16 September 2025 you took part in the Sentencing Conversation.
3On 22 September 2025, I heard evidence from Ms McGeoch who is the team leader of Northwestern Youth Justice and a signatory of the Suitability for Youth Justice Centre Report dated 19 September 2025. I received further written and oral submissions from your counsel Ms Mildenhall. Mr Hardisty on behalf of the prosecution has submitted further written submissions which were received on 25 September 2025.
Circumstances of offending
4The full circumstances of your offending are set out in the Prosecution Opening for Plea dated 15 September 2025. This document was tendered on your plea and what follows is a summary.
5At around 7:00am on 29 October 2024, Julia O’Callaghan drove to the Bakers Delight in Heathmont in her Holden Commodore. CCTV captured you walk past the storefront as Ms O’Callaghan entered to purchase some bread rolls. You are seen waiting out the front of the store. Ms O’Callaghan walked back to her car, remotely unlocking it from a few metres away. As she opened the driver’s door she heard yelling, which was you saying ‘give me your keys, give me your keys’. You are seen on CCTV to run to the driver’s door; you pulled the bread rolls from the Ms O'Callaghan's hand and ushered her out of her car. You had your hood up and your identity was obscured from the camera.
6A witness who was walking across the parking spots in the direction of Bakers Delight saw you run up behind Ms O'Callaghan when she was standing at her open car door. The witness noticed you move your hand from behind your waist and saw what she thought looked like a black gun.
7Ms O'Callaghan saw you had a gun in your right hand. She kept hanging onto her wallet, phone and keys. Ms O'Callaghan observed you to be acting ‘very erratic’ waving the gun around while keeping it close to your chest.
8Another witness had just parked and was walking to one of the shops when he heard yelling and turned to see what was taking place. He yelled out and moved to help Ms O'Callaghan but when he saw the gun, he put his hands up and backed away. The store manager from the Bakery also saw the gun being pointed at Ms O'Callaghan’s chest and heard the demand for her keys.
9Ms O'Callaghan moved to the footpath and threw her keys behind you. They landed near the rear door of her car. You were still yelling for the keys, and she directed you towards them. You turned and picked up her keys off the ground. You got into the driver’s seat of her car. You reversed out of the parking space and drove away slowly. You then rapidly increased speed causing the tyres to smoke.
10Ms O'Callaghan then collapsed to the ground and the Bakery manager called 000. The police attended the scene and spoke with Ms O’Callaghan. Later that morning she attended the Ringwood Police Station and made a composite face image. Ms O'Callaghan gave the final image a 75-80% likeness to the male that stole her car.
11At around 8am CCTV from a Reservoir address captured you arrive in the Holden Commodore and exit on foot in the direction of an address occupied by your partner’s mother. At around 9.30am you were seen on foot near this address by police who asked you to stop. You refused and walked away. At around the same time CCTV later located by the police showed you enter the Holden Commodore and drive away at speed.
12At 1:43pm, separate police officers observed the Commodore exit the carpark at Strathmerton Street. The Commodore proceeded right through the wrong side of the roundabout and proceeded to travel at speed. At around 2pm CCTV from the area captured you parking the Commodore and running in the direction of an address in Strathmerton Street.
13At 2:20 pm, officers attended 16 Strathmore Street where they located the locked Holden Commodore. Shortly after the police officers attended a Strathmerton Street address. You were located, arrested and taken to the Preston Police Station. You participated in a Record of Interview where you denied the offending.
14On 24 November 2024, Ms O'Callaghan attended the Ringwood Police Station and identified your image as the offender, from a photo board.
Victim Impact Statement
15Julia O’Callaghan attended the Koori Court Sentencing Conversation. Ms O’Callaghan came to the table and read her Victim Impact Statement. Ms O’Callaghan’s statement was confronting and emotionally difficult to hear. Your crime has had a considerable impact upon not just Ms O’Callaghan but those she loves and cares for.
16Ms O’Callaghan described that since your crime she regularly experiences nightmares, fear and panic attacks. She feels extremely vulnerable around men, and this has placed a strain on her marriage and her relationship with her family. She is constantly on edge and feels unsafe in public and at home. The process of writing a statement and preparing for trial caused her traumatic memories to resurface. Ms O’Callaghan has required counselling for her trauma, something she initially found shameful. Your crime has left her drained, stressed and anxious.
17Since the aggravated carjacking Ms O’Callaghan has been hospitalised for chest pains and has for the first time in her life, felt the physical effects of panic attacks. Such effects include an increased heart rate, shakiness and sweating. She now takes medication for anxiety.
18Ms O’Callaghan has suffered a financial cost because she has missed work to recover her car, attend the hospital and attend counselling appointments. Although Ms O’Callaghan had insurance, she estimates your crime has cost her almost $15,000.
19Ms O’Callaghan struggles to connect with her family, and she avoids outings that involve the use of her car. Daily activities like shopping and visiting the crime scene, her local bakery, continue to be distressing. She is now hypervigilant, constantly checking her surroundings for escape routes. Your crime has taken away her sense of safety and security.
20The court has heard first-hand the profound impact your crime has had upon Ms O’Callaghan, and I take this into account in sentencing you. I hope that the process of reading this statement to the court has brought some healing to Ms O’Callaghan and that she can at the very least gain some closure and relief from the trauma you have caused.
Nature and gravity of offending
21The offence of aggravated carjacking is a very serious offence as is evidenced by the maximum of 25 years’ imprisonment. Additionally, Parliament has seen fit to define aggravated carjacking as a Category 1 offence. For Category 1 offences, s 5(2G) of the Sentencing Act (‘the Act’) provides that you must receive a term of imprisonment.[2] Further, pursuant to s10AD of the Sentencing Act,[3] the Court must impose a statutory minimum non-parole period of three years for aggravated carjacking, unless a special reason exists pursuant to s10A of the Act.[4] These provisions were introduced by the Parliament in 2016 to reflect the terrifying nature of these crimes and to denounce the perpetrators of such crimes in the strongest terms and send a message to the community that such activities will not be tolerated. It was intended to be a serious deterrent to those who plan to use weapons and violence to take another person’s vehicle.[5]
[2]Sentencing Act 1991 (Vic) s5(2G).
[3] Ibid at s10AD.
[4] Ibid at s10A.
[5] Victorian Parliamentary Debates, Legislative Assembly, 1 September 2016 3329 (Martin Pakula, Attorney General) as quotes in Mammoliti v The Queen [2020] VSCA 52 [8], [9].
22Mr Hardisty for the Prosecution submitted your offending represented a mid-range example of this offence. He submitted your offending was aggravated because it was blatantly carried out in broad daylight against an unsuspecting lone female member of the public without provocation or warning. Further, he submitted that you used a deadly weapon to instil fear and force compliance with your demands. He submitted the only motivation for your offending was to obtain a car, a desire you prioritised over the wellbeing of the victim and other spectators.
23Mr Hardisty also submitted that your offending could not be described as completely spontaneous as you selected and waited for the victim, you had possession of the imitation firearm, and you thought to pull you hood over your head as a disguise. Mr Hardisty conceded the confrontational aspect of the offending was of short duration and conceded that you had not made physical contact with the victim. In answer to the submission that your offending did not involve a threat of harm, Mr Hardisty submitted that the pointing of a firearm at a person while making a demand could only be taken as an imminent threat.
24Your counsel Ms Mildenhall conceded that the charge of aggravated carjacking is an inherently serious crime. She submitted, however, that your offending should be considered at the low to mid-range for such offending. Ms Mildenhall submitted that your encounter appeared opportunistic. Further she submitted that whilst you had an offensive weapon there was no threat of harm made only a demand for the keys. Ms Mildenhall also submitted that although your offending was confrontational you made no physical contact with the victim and the whole episode was extremely brief.
25Mr Murray, you offended against a woman who was on her own and who had just stopped to buy bread rolls. I accept the submission of your counsel that your offending appears opportunistic. However, I also accept the submission of Mr Hardisty that your offending was not completely spontaneous as you waited for your victim to come out of the store, you had the imitation firearm with you, and you pulled your hood over your head to conceal your identity.
26Your offending was extremely brazen, occurring in a public place in broad daylight and was all the more serious because you had an imitation gun with you at the time. You waved the imitation gun around and pointed it at your victim who was terrified. Although, your offending was short lived and you made no physical contact with your victim, what you did was audacious and outrageous and must be sternly denounced by the court.
27It is an aggravating factor that this offending occurred during the operational period of a CCO.
Sentencing conversation
28Through your mother you are part of the Gunai Kurnai people, and you strongly identify with your Aboriginal heritage. You chose to have your plea take place in the Koori Court, even if this choice was based upon the advice of your lawyers.
29The objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process of the County Court through the role played in that process by the Aboriginal Elders and Respected Persons. Others such as family members and supports can contribute to what is referred to as the sentencing conversation.
30The Sentencing Conversation provides a perfect vantage point for the Court to assess your responses to the challenges from the Elders and Respected Persons and others. It provides a vantage point to assess your insight and remorse, and to assess whether these expressions and responses are genuine and how deeply held they are.[6] Genuine participation in the Sentencing Conversation has mitigatory effect.[7]
[6] Honeysett v The Queen (2018) 56 VR 375 at [54].
[7] See R v Morgan (2010) 24 VR 230; Ibid.
31At the outset, the Court heard a summary of your offending after which Ms O’Callaghan approached the table and read her victim impact statement. Her statement was eloquent and emotional and graphically detailed the impact of your offending.
32Aunty Pam Pederson and Lawrence were the respected Elders who led the sentencing conversation. Each of the elders directly challenged and shamed you. Both elders channelled the hurt and anger of the victim and her husband to you. You remained respectful towards them throughout the conversation. Lawrence pointed out to you that it was your actions that had brought the victims to court and that you had brought yourself here – that you had caused them trauma. Lawrence spoke of the road to recovery for the victims and the road to redemption which is yours.
33To my observation, it took you some time to find your voice, however, you told the Elders several things including the following:
a)That you were disappointed in yourself and were sorry for what you had done and wished it never happened.
b)That you had been trying to get better by doing the courses available to you.
c)That you were trying to fix your substance use by now taking methadone.
d)That you were doing Koori Art in custody but otherwise there was no Aboriginal Liaison Officer at Western Plains and a lack of cultural services.
e)That you had spoken with your sister and hoped to stay with her upon release until you find your own house.
f)That you were working on ground maintenance at the gaol which you enjoyed.
g)That you were doing the ATLAS course and had two sessions to go to complete the whole ten.
h)That a better life to you was one where you did not hang out with negative people, where you were off drugs, had a nice job, stable income and a good relationship with family.
i)That you were wary about how things would go when you were released.
34When invited to speak direct to Ms O’Callaghan through Lawrence, you said you didn’t know what to say and that you would need time to think about it. When I asked you at the end of the sentencing conversation how you felt you indicated that you felt a bit stronger.
35The Prosecution made several criticisms of your involvement in the sentencing conversation.[8] Whilst I understand the basis for these submissions, I reject these criticisms. In my view, it is important that your engagement in the sentencing conversation be measured in the context of your difficulties particularly your borderline intellectual ability and your severe anxiety. Further, there was considerable frustration on your part given the difficulties with transport to attend the hearing and you were two hours late. It was a less-than-ideal lead in to such a confronting and important court case. You had expected to have support from your foster grandmother, your sister and your father but you were alone. As your counsel, Ms Mildenhall observed this situation reflects your life, that you haven’t had much support. Your foster grandmother, who has been your biggest supporter, was unable to attend as she had been hospitalised with a hip and shoulder injury, due to a fall.
[8] See [17] to [23] Prosecution Submissions for Plea 24.09.25.
36In assessing what weight is to be given to your involvement in the sentencing conversation I have considered how you participated; your disappointment in yourself; that you are sorry; your expressions of wanting to reform and the steps you were currently taking in custody to achieve that goal. I consider your participation in the process to be part of your healing and part of your rehabilitation. Ultimately, it will be up to you to maintain your determination for reform. On the whole, I consider your participation to be genuine and as such it is a matter I take into account in mitigation.
Personal Circumstances
37Mr Murray, you are 20-year-old. You turn 21 tomorrow and from that time you will no longer be considered a ‘young offender’ according to the Sentencing Act.
38Much has been written about your life both in Department of Health and Human Services (DHHS) or Department of Families Fairness and Housing (DFFH) (‘the Department”) files and in four psychological reports that were tendered on your plea. Your personal history has been documented for the courts since you were a baby. The first of the reports from Gina Cidoni dated 29 May 2020 was commissioned by the department and Ms Cidoni had access to your department files.
39A summary of your personal background taken from these sources is as follows. You are the youngest of four children. Your mother Irene Hood is deceased. Your father is Shane Murray. Your older brother is 5 years older than you and you have two maternal half-sisters, one 3 years your senior and the other 6 years older. Over the years you have had limited contact with your siblings. Whilst you predominately remained in Victoria they were moved to Albury, New South Wales.
40Your childhood adversity was documented to have begun when you were only 12 months old. It was reported that your mother was intoxicated and had dropped you on your head. Consequently, you were removed from your mother’s care and put in foster care, where you stayed for one year. Given your mother’s ongoing difficulties, you were then returned to your father. Reports were received that at times your father was alcohol affected whilst caring for the children and there were concerns that you and your siblings were at times left unsupervised.
41In October 2007, when you were 3 years old, your mother died whilst you and your siblings were in her care. You were said to be found in the streets looking for food. Your father struggled to cope with the death of your mother and requested that you and your siblings be placed in foster care. A report was made when your father failed to collect you and your siblings, and an Interim Protection Order (‘IPO’) was taken out by the Department. Shortly after the IPO was made you and your siblings were returned to your father’s care.
42By the age of 3 you had been taken from your mother and cared for by several different people. You had moved at least 6 times, between your parents and foster care placements.
43In early 2008 there was a report that your brother’s foot was run over by a car, whilst you and your siblings were unsupervised. Your brother and sister went to hospital without an adult, and your father could not be contacted. Around this time there were reports that your father injected drugs intravenously in front of you and your siblings and there was violence occurring in the home.
44In January 2010, when you were 5 years old, a Permanent Care Order was made, and you were placed in the care of foster grandparents, Mr and Mrs Forsyth. You referred to the Forsyth’s as Nan and Pop. Mrs Forsyth is a proud Gunditjmara woman and worked hard to ensure you remained connected to your culture. By the time you were 12 the Forsyth’s had struggled to manage your behaviour and were provided support by the department. It was reported that you were absconding from home, refusing to attend school and using cannabis.
45By late 2018 you were temporarily placed in a residential care unit through Anglicare. You were 14 years old.
46Whilst in care you acknowledged that you needed to work on anger management and therapeutic treatment for other behaviours. You were reportedly well behaved in the residential unit and helped in the home. There were times when you did not abide by the curfew and on two occasions you had appeared drug affected. You engaged with an education support worker and Barreng Moorop worker, Mr Angelo Acevedo. These services were provided through VACCA, to help you re-engage with school and manage both your anger and your behaviour.
47You returned to live with the Forsyth’s on an Interim Accommodation Order. In March 2019, there was an incident where you assaulted Mr Forsyth and caused property damage. This was reported to the police, but the Forsyth’s later made a statement of no complaint. You stayed with a friend and his mother for a time, in the aftermath of this incident. By November 2019 the Forsyth’s relinquished your care. This occurred in the context of your disclosure of physical abuse that had been perpetrated by Mr Forsyth. Although investigated by police, no action was taken.
48You went to live with a neighbour and family friend, Natasha Carpenter. This placement seemed to be positive, you were happy, and Ms Carpenter was willing to care for you. You engaged with Kids First and VACCA and were said to show insight into your behaviour. Being next door to the Forsyth’s allowed you to maintain your strong, positive relationship with Mrs Forsyth. You spent some time with Mrs Forsyth and saw Mr Forsyth briefly when Mrs Forsyth was present. In February 2020, there was an incident where you were violent towards Mrs Forsyth. You were questioned by the police, and it appears no other action was taken.
49Despite what appeared to be a positive arrangement with you living with Ms Carpenter, the department did not consider it appropriate given the physical abuse perpetrated by Mr Forsyth and his proximity next door. It was recommended that you be placed on a Care by Secretary Order for two years.
50By May 2020 you were living in a VACCA Therapeutic Unit, and you were working with a Child Protection worker, a Kids First worker and Mr Acevedo from VACCA. You had support through Koori Kids Stay and were being supported by another worker to re-engage with education. You were referred to Better Futures, and you had a further worker to develop a Cultural Support Plan. You were referred to VAHS and an Aboriginal Family Led Decision Making meeting was to be held for a decision to be made regarding your long-term placement. You returned to live with the Forsyth’s in August 2021.
51In February 2022 the Forsyth’s again relinquished your care. If your living situation had not been unstable enough, you struggled with even more instability after this. Sometimes you would stay with your father and at other times with your older brother. On 1 April 2022 VACCA Nugel arranged for you to reside in hotel accommodation in Bundoora, until something more permanent could be found.
52VACCA Nugel were able to arrange a property and on 27 May 2022, at the age of 17, you moved into a property in Thomastown, living on your own. Although this began as a positive experience your use of substances increased, and you struggled to live independently. Eventually you were evicted, and you moved back to live with the Forsyth’s. This did not last long and by December 2022 you went to live with your father. Your father was often not present in the home and you struggled by yourself. At these times you engaged in antisocial and destructive behaviours, usually because of experiencing negative thoughts and perceptions, association with antisocial peers and using illicit substances to avoid negative thoughts and to reduce your distress. It was around this time that you began to offend.
53On 7 March 2023 you entered a detox briefly, upon exit you returned to live with your father. On 25 April 2023 you were remanded. On 24 June 2023, Mr Forsyth passed away suddenly. You were in custody at the time and became aware of his passing when you were released on 26 June 2023. Your grief was overwhelming and led to a disengagement from support services and further offending. Since this time in mid 2023 you have spent several periods remanded in adult custody. When in the community you have lived with your father in Preston.
54In terms of education, you attended Craigieburn Primary School until Grade 6. During your primary school years, you were diagnosed with Attention Deficit-Hyperactivity Disorder (ADHD) but were not prescribed medication. You completed a semester of Year 7 at Rosehill Secondary College but changed schools due to poor behaviour and negative experiences. You felt out of place compared to your peers and were bullied. You enrolled at Mount Ridley College and engaged with some consistency between years 7 and 9. Towards the end of Year 9 you went downhill and began to truant, spending time with antisocial peers and using drugs. You attended Year 10 for two days and then attended TAFE for one day. You left in the context of feeling directionless in comparison to others and you felt unsure yourself and what you could gain from attendance.
55Of your school experience, you reported to Mr Campbell that you had issues with maintaining attention, easily becoming distracted and often engaging in disruptive behaviour which resulted in disciplinary action from your teachers. These symptoms appear consistent with ADHD that was diagnosed in primary school and other disorders subsequently diagnosed by Ms Cidoni, which I will come to shortly.
56Apart from occasionally assisting your foster grandparents with their trucking business and a short time spent working landscaping as a labourer you have not worked in paid employment. When incarcerated in 2024 you worked in industries and more recently whilst in custody you have worked in grounds maintenance. You have enjoyed both forms of employment whilst in custody and are keen to pursue relevant certifications to assist you gain similar employment in the community.
57Drug use has plagued your life since the age of 10. At this age of you were first introduced to cannabis by your older brother and friends. You soon came to use daily. You also used alcohol at times which you would often steal from bottle shops. When under the influence of alcohol your anger would surface. You became involved in several fights with your grandparents, friends and partners. You described to Mr Campbell that you would use alcohol to ‘soothe pain’ and to reduce experiences of psychological distress. At times you would mix alcohol with Xanax which invariably led to blackouts and reported violent and aggressive behaviour.
58Your use of methamphetamines began when you were only 12 years old after you were introduced to the substance by an older peer. By the time you were 15 years old you used the substance regularly, particularly when you were living in residential care and associating with antisocial peers. Your use of methamphetamine has contributed to your offending behaviour. From around the age of 17 you have also used GHB. You acknowledge that use of this substance causes issue with violence and aggression. It is your stated desire to abstain from all illicit substances in the future.
59You have enjoyed relatively good health throughout your life, however, you were hospitalised in 2023 due to experiencing a drug induced psychosis. This occurred following the death of your foster grandfather where you experienced a period of extensive substance abuse. You suffered auditory hallucinations and paranoia. Subsequent to this you were admitted to YSAS Geelong Withdrawal Unit and successfully completed a 14 day detox. You were then admitted to Birribi Rehabilitation Centre in March 2023, where you remained for 8 days. Your next attempt at residential rehabilitation was an admission to YSAS Fitzroy Withdrawal Unit in October 2023. Followed by admission to Ngwala Yitjawudik Residential Rehab on 2 November 2023. You voluntarily discharged yourself on 10 November 2023.
60On 27 February 2025 you were admitted to bail for this current offending. The conditions of bail provided that you were to reside at Bunjilwarra Koori Youth Alcohol and Drug Healing Service. Unfortunately, you made the decision to leave, influenced by another young person who was admitted. A letter from Emma Nealon, the Justice Coordinator at Bunjilwarra confirms that you had been engaging positively with all program activities and had been communicating well with staff and fellow residents. Such is your desire for rehabilitation that you again sought entry to Bunjilwarra on bail which was refused.
Psychological reports
61As mentioned, four psychological reports were tendered on your plea. The first of these was authored by Gina Cidoni and was dated 29 May 2020. You were 15 years old at the time. Ms Cidoni, reported that you had been diagnosed with ADHD in primary school for which you had never been medicated. Ms Cidoni undertook intellectual testing which revealed that you had a FSIQ of 77. Other testing suggested that you had severe adjustment difficulties and impulse control problems and that you felt insecure and inadequate. Ms Cidoni reported that you were prone to angry outbursts when frustrated and that you had problems controlling your anger. She described that your academic performance was poor, and you had behavioural problems in school. You expressed feelings of abandonment, feeling unloved and unwanted.
62In summary, Ms Cidoni opined that you are a disadvantaged young man who suffered negative exposure and trauma in your childhood followed by a period of relative stability with your carers until about age 12. Your behaviour deteriorated from that time and by 2019 you were in residential care. You have borderline intellectual capacity and your general intellect is probably low average. You have defective processing speed that lowered your overall score and this is linked to poor decision making and correlates with a diagnosis of ADHD. Further, you have lowered ability to express yourself in words and low reasoning ability. Your MMPI profile indicated the presence of a disruptive behaviour disorder like ADHD. Drug use was problematic, and you were reportedly trying to stop but likely used drugs as a coping strategy. Ms Cidoni considered a behavioural management approach was probably best and anger control may be addressed through modelling approaches. Stress inoculation training and cognitive behavioural interventions were also recommended along with Psychiatric referral to assess the need for stimulant medication.
63Ms Cidoni’s second report was dated 4 June 2022. At this time, you were aged 17 years. The report was prepared in response to offending that had occurred when you were 16 years old and included a home invasion where a Mercedes motor vehicle was stolen and driven at dangerous speeds. You were said to be living with your parents, there was conflict within the household, you were associating with bad influences and had been using drugs. It was also reported that you had sporadic involvement with Youth Justice Bail that had improved more recently. You were linked with workers from VACCA, Regional Education Children’s Court office, Dardi Munwurro, Youth Through Care and a psychologist through Kids First.
64Ms Cidoni opined at this time that you experienced early feelings of abandonment and loss because of your mother’s death, and you were put in foster care because your father was unable to care for you. Whilst in foster care you experienced physical abuse from your foster grandfather. Ms Cidoni further opined that this unstable environment contributed to your ongoing sense of insecurity and defensiveness. You experienced disrupted attachments and multiple placements moving between foster care friends’ homes, residential care and eventually independent living. You lacked stable supportive relationships and consistent guidance. In this context you were exposed to negative influences and drug use from the age of 10. Your use became daily and led to further behavioural issues. You disengaged from education because of bullying and a lack of positive connection which limited your opportunities and contributed to your low self-esteem.
65It was the opinion of Ms Cidoni that these adverse experiences resulted in longstanding psychological issues. Ms Cidoni confirmed your borderline intellectual function and IQ of 77 and the diagnosis of ADHD which she considered was consistent with disruptive behaviour disorder. Ms Cidoni undertook testing that confirmed diagnoses of Oppositional Defiant disorder, Conduct Disorder, Intermittent Explosive Disorder, Conforming (Compulsive) Personality Traits with Unruly and Egotistic Features. Ms Cidoni opined that you had a tendency to perceive yourself as a victim of unjust treatment which justified your outbursts and antisocial behaviour. You coped by substance use and occasional aggression to manage underlying anxiety shame and anger stemming from your upbringing.
66Ms Cidoni recommended that you undergo psychological therapy to counter behavioural and emotional rigidities, increase self-awareness and promote flexible thinking. Further, Cognitive behavioural therapy could lead to change. Ms Cidoni considered you were vulnerable to relapse as your coping resources were low and that you would be assisted by support from Youth Justice and AOD services. Ms Cidoni further recommended developing your cultural identity to protect against mental health symptoms and buffer distress which can then reduce offending.
67Austin Campbell’s first report was dated 27 May 2024. This report was prepared in relation to youroffending for which you received the CCO. The report was authored five months prior to the offending currently before this court. At the time, you were 19 years of age and in adult custody at the Metropolitan Remand Centre.
68Mr Campbell opined that you experienced a difficult and deprived childhood which included the loss of your mother at a young age, early involvement with protective services and multiple foster placements. These experiences contributed to your development of an insecure attachment style which has affected your ability to form healthy relationships and develop adaptive coping mechanisms.
69Further, Mr Campbell opined that you have a history of ADHD, limited support for your mental health, and that you began using substances from a young age as a coping mechanism. Your substance use developed into a severe Substance Use Disorder, which has been a significant factor in your psychological distress and offending behaviour. Your offending is linked to periods of psychological distress, substance use, and association with antisocial peers. You often engaged in opportunistic offending without considering the consequences, driven by a need for acceptance and impaired impulse control due to ADHD and substance use.
70During your assessment, Mr Campbell, considered you to be engaged, receptive to feedback, and demonstrating a willingness to address your issues. You acknowledged the need to change your behaviour and expressed a desire to engage in psychological support and develop a healthier routine. Mr Campbell viewed your prospects for rehabilitation as positive. It was his opinion that you would benefit from psychological intervention (such as Dialectical Behaviour Therapy), ongoing support services, and structured routines to help you develop adaptive coping skills, reduce reliance on substances, and build positive social networks. With appropriate support, he opined that your risk of reoffending can decrease.
71Mr Campbell recommended that you receive tailored psychological treatment, support for ADHD-related cognitive weaknesses, and assistance in building a stable, prosocial routine. Regular check-ins and practical interventions were also recommended to ensure continued engagement and progress.
72In his addendum report dated 21 September 2025, Mr Campbell detailed that upon your release from custody in May 2024 you had planned to live with your father but only spent a brief period at your father’s home. Your time was spent with your then partner and her family. You engaged with Community Corrections for two weeks but then lost your phone and disengaged from that service. You made no attempt to reconnect with Corrections.
73Within a month, you relapsed into the regular use of cannabis, methamphetamines and GHB. Your mental health deteriorated because of your ongoing substance abuse, disconnection from positive supports and ongoing instability in social relationships. Your time in the community was full of drama, and you felt paranoid and unsafe. You self-medicated with illicit substances which exacerbated your feelings of paranoia and your erratic behaviour, hence creating a destructive cycle of distress, drug use and depression.
74It was whilst you were in this mindset and during this period of acute destabilisation that you committed the offence for which you fall to be sentenced. Mr Campbell opined that you acted in an impulsive manner, whilst significantly substance affected, seeking a short-term solution to meet your immediate needs, obtaining a vehicle so you could travel home. You acted without contemplation of the consequences of your actions. Testing undertaken by Mr Campbell revealed that you were experiencing moderate levels of stress, severe levels of depression and extremely severe levels of anxiety.
75Mr Campbell gave several opinions including:
a)That “your background remains significant and predisposes you to ongoing psychological vulnerabilities. Your early childhood experiences of neglect, maternal loss, multiple foster placements and insecure attachment continue to underpin difficulties in developing adaptive coping strategies and healthy interpersonal connections. The presence of ADHD remains a significant developmental factor contributing to impulsivity, distractibility, and difficulties with executive functioning. These vulnerabilities increase your susceptibility to maladaptive coping through substance use and reinforce difficulties with consequential thinking.”
b)That your “difficulties are perpetuated by the ongoing interplay between unresolved grief/loss, insecure attachment patterns, and a lack of adaptive coping skills.”
c)That your relapse following release highlights the fragility of your community supports and the ease with which destabilisation occurs in the absence of structured intervention and monitoring. Your offending appears to have been opportunistic, impulsive, and substance-driven, consistent with the impacts of ADHD and impaired executive functioning.
76While your prognosis remains guarded in the context of your high relapse risk and limited history of sustained treatment engagement, the presence of renewed family supports, your receptiveness to feedback, and your expressed willingness to engage in psychological intervention are encouraging indicators for rehabilitation if appropriately supported.
77I accept the findings and opinions of both Mr Campbell and Ms Cidoni.
Application of Bugmy principles
78The Prosecution accept that the Bugmy principle is enlivened in your case due to childhood neglect, deprivation and instability. The link between childhood deprivation or trauma and later substance abuse is well established. The opinions of both Ms Cidoni and Mr Campbell confirm your early childhood experiences of neglect, maternal loss, multiple foster placements, domestic violence and insecure attachment have caused you to experience ongoing psychological vulnerabilities. These vulnerabilities have increased your susceptibility to maladaptive coping through substance use and have reinforced your difficulties with consequential thinking. The effects of your childhood trauma are perpetuated by the ongoing interplay between your unresolved grief and loss, insecure attachment patterns, and a lack of adaptive coping skills.
79As I have observed previously your offending occurred whilst you were in a period of acute destabilisation when you were significantly drug affected and acting impulsively. The relationship between your traumatic and unstable upbringing, other trauma and loss you have experienced in your life, your psychological distress, your drug abuse and your offending in the present case, are centrally relevant to a proper assessment of your subjective culpability for the offending in this case. These factors intertwine to attract significant mitigation in this case.
80In Bugmy,[9] the High Court described the way 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 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.[9] Bugmy v R [2013] HCA 37 [40], [43] – [44].
81As His Honour Judge Johns, the head of the Koori County Court observed in DPP v Tirris,[10] there are more recent, more refined, statements of this concept,[11] for example Kaye J’s remarks in DPP v Heyfron, of which part thereof reads:
The respondent’s values, and his responses, were necessarily shaped by the trauma and dysfunction to which he had been subjected in the course of his formative years. While those matters do not, of course, excuse the respondent’s offending, they were, properly, taken into account by the sentencing judge in the assessment of the respondent’s moral culpability.[12]
[10]DPP v Tirris [2022] VCC 1575.
[11] See for example DPP v Cody Herrmann [2021] VSCA 160 at [42]-[46].
[12] DPP v Heyfron [2019] VSCA 130 [56]-[59].
82Your values, responses and vulnerabilities in life have been shaped by your experiences, and they are not experiences which most of society must contend with. They are experiences that sit within the context of your Aboriginality, your connection to culture and the disadvantages you have endured.
83The concept of individualised justice is an important consideration. You are not to be sentenced differently because you belong to a particular ethnic group.
84In DPP v Fuller-Cust Eames JA stated:
Sentencing principles are the same for all Victorians. Race is not a basis for discrimination in the sentencing process. Nothing I say in these reasons should be taken as suggesting that Aboriginal offenders should be sentenced more leniently than non-Aboriginal persons on account of their race. The offences committed by the applicant and admitted by him are extremely serious - as I shall discuss. That is not to say, however, that considerations and factors of race may not be taken into account on sentencing where they are relevant….
[79] To ignore matters personal to the applicant, and his history, in which his Aboriginality was a factor, and to ignore his perception of the impact on his life of his Aboriginality, would be to sentence him as someone other than himself. Not only would that offend principles of individual sentencing which apply to all offenders but in this case it would fail to identify the reasons for his offending and, in turn the issues which have to be addressed if rehabilitation efforts are to successfully be adopted so as to ensure that he does not reoffend and, in turn, to ensure the long-term safety of the public.…[80] To have regard to the facts of the applicant’s Aboriginality would not mean that any factor would necessarily emerge by virtue of his race which was relevant to sentencing, but it would mean that a proper concentration would be given to his antecedents which would render it more likely that any relevant factor for sentencing which did arise from his Aboriginality would be identified, and not be overlooked. Exactly the same approach should be adopted when considering the individual situation of any offender, so that any issue relevant to that offender’s situation which might arise by virtue of the offender’s race or history would not be overlooked by a simplistic assumption that equal treatment of offenders means the differences in their individual circumstances related to their race should be ignored.[13][13] R v Fuller-Cust (2002) 6 VR 496 [78].
85The concept of individualised justice is an important consideration. You are not to be sentenced differently because you belong to a particular ethnic group. Some care needs to be taken in not allowing an understanding of Aboriginal disadvantage generally and its relationship to the past, and to the present high rates of incarceration of Aboriginal people to distort the concept of individualised justice.
86In assessing your moral culpability or degree of blameworthiness to be attached to you for your offending conduct, it is necessary to closely examine your personal circumstances and background and an exploration of factors which may explain the offending conduct. To the extent that the offending conduct is due to factors beyond your control the harshness of the moral judgement is likely to be moderated.[14]
[14] R v Hermann [2021] VSCA 160 at [14].
87This focus on you reflects no disregard of the impact on the victim(s), nor of the seriousness of the offending. It is, rather, a function of the judge’s obligations to impose punishment which is ‘just in all the circumstances’[15] and to deliver ‘individualised justice’.[16]
[15] Sentencing Act s 5(1)(a).
[16] Wong v The Queen (2001) 207 CLR 584, 612 [77]; [2001] HCA 64 (Gaudron, Gummow and Hayne JJ); Elias v The Queen (2013) 248 CLR 483, 494 [27]; [2013] HCA 31 (French CJ, Hayne, Kiefel, Bell and Keane JJ).
88Your history of deprivation, neglect and instability has been documented in the department records reproduced by Gina Cidoni. It has also been documented through psychological assessment and report in 2020 when you were 15, in 2022 when you were 17, in 2024 when you were 19 and now at 20 years of age in 2025. I accept the opinions of Mr Campbell and Ms Cidoni as to the lasting impact this has had upon you and in your case I am satisfied that there is a sufficient evidentiary foundation and nexus to the offending such that your moral culpability ought be reduced.
89I also find that the Bugmy considerations give context to your prior history. Your prior history is unenviable but it is confined to a two year period and has involved one sentence of imprisonment which was time served on remand, two Community Corrections Orders and a period of probation from the Children’s Court. You have breached each of these orders likely because of your ongoing instability and other issues.
Application of Verdins principles
90Your counsel submitted that Verdins limbs 1, 3 and 4 were enlivened in your case. Ms Mildenhall relied upon the opinions of both Ms Cidoni and Mr Campbell that you suffer from a longstanding diagnosis of ADHD, against a significant childhood background of neglect that has led to psychological vulnerabilities that are complicated by your borderline intellectual function. The impact of these diagnoses she submitted reduced your ability to exercise appropriate judgement, make calm and rational choices, think clearly or appreciate the wrongfulness of your conduct. In the circumstances, Ms Mildenhall submitted that your moral culpability should be significantly reduced.
91Ms Mildenhall also relied upon the recent opinion of Mr Campbell in his addendum report, that your offending occurred during a period of acute destabilisation when you were significantly substance affected, impulsive and seeking short term solutions to meet immediate needs and his opinion that your difficulties are perpetuated by the ongoing interplay between unresolved grief and loss, insecure attachment patterns and a lack of adaptive coping skills.
92As to limbs 5 and 6 of Verdins, Ms Mildenhall relied on the opinion of Mr Campbell that you may experience some issues due to the risk of interpersonal conflict and vulnerabilities. As a result, Ms Mildenhall submitted that because of your impairments imprisonment will weigh more heavily upon you than it would on a person in normal mental health.
93Mr Hardisty on behalf of the Prosecution submitted that there was no evidentiary basis to engage the Verdins principles. He submitted that the reports of Ms Cidoni from 2020 and 2022 were outdated and antedate key cognitive developmental milestones. Although the 2020 report provided some evidence of a diagnosis of ADHD, Mr Hardisty submitted this was not replicated in testing undertaken in 2022. Mr Hardisty submitted that Mr Campbell undertook no testing to confirm the presence of a diagnosis of ADHD but merely accepted what he had been told. The testing Mr Campbell undertook five months before the offending, revealed mild levels of depression, moderate levels of anxiety and extremely severe levels of stress but it was not clear whether these impairments were persisting at the time of offending. Further, Mr Hardisty submitted that it was impossible to disentangle the use of illicit substances from an involuntarily varied mental state such that moral culpability should be lowered. In relation to limbs 5 and 6 of Verdins again Mr Hardisty submitted there was an insufficient evidentiary foundation.
94Based on the contents of the psychological reports, I accept that you suffer psychological vulnerabilities such as severe levels of depression, extremely severe levels of anxiety and moderate levels of stress. I also accept that you were diagnosed with ADHD in primary school, that this remained largely untreated and you developed a range of behavioural difficulties as diagnosed in 2022 by Gina Cidoni. Further, I accept against this background you developed a significant polysubstance abuse disorder as a form of coping mechanism to soothe pain. In my view, these conditions were in existence at the time of your offending and had an impact upon your poor decision making and impulsive actions. However, I agree with the prosecution submission that these conclusions regarding the causes of your offending more readily lend themselves to a finding and a linkage to Bugmy rather than Verdins.
Youth
95The Court of Appeal in Azzopardi v The Queen summarised the three considerations which underlie the general primacy afforded to an offender's youth as a sentencing consideration:
Firstly, young offenders are often more prone to impulsive and ill-considered decision making. They may lack the insight and self-control of adults and may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
Secondly, that courts recognise the potential for rehabilitation in young people because they are at an earlier stage in their mental and emotional development. They therefore may be more open to positive change than adults with entrenched anti-social behaviours. Further, the community has an interest in such rehabilitation as in the long term it is protective from the impacts of future offending.
Thirdly, the incarceration of young offenders is more likely to hinder rather than improve their prospects of rehabilitation. Young people in custody are likely to be exposed to corrupting influences which can entrench criminal and anti-social tendencies. These effects have detrimental flow-on consequences in the community.[17]
[17] Azzopardi v The Queen (2011) 35 VR 43 [34]-[36].
96Mr Hardisty submitted that the severity of your past and present offending was such that you should not receive the full presumptive leniency afforded to young offenders through the depression of general deterrence. To make good his submission Mr Hardisty relied on statements from the case of Azzopardi and also the case of Siilatta.[18] Mr Hardisty did acknowledge that the sentence imposed should give increased weight to the purpose of rehabilitation and facilitate the same.
[18] Siilata v The Queen [2019] VSCA 277.
97In consideration of this submission it is important to bear in mind that the case of Azzopardi itself involved offending committed by a group of young offenders, under the cover of darkness, where vulnerable victims were deliberately targeted. Each of the young offenders pleaded guilty to approximately 40 charges involving numerous counts of armed robbery. The case of Siilatta involved a charge of aggravated carjacking. The offences was committed in company, with a degree of planning, a weapon was used, the victim was stabbed and died. Each of these cases could be described as very serious examples of offending.
98Mr Hardisty conceded on behalf of the Prosecution that your offending represents a mid-range example of the offence of carjacking.
99I consider your offending to be serious. However, I do not consider that there is sufficient evidence or that the degree of criminality of your offending requires that the sentencing objectives of deterrence, denunciation, just punishment and protection of the community should become more prominent in the sentencing calculus than the weight to be attached to youth.
100Your offending was opportunistic, unsophisticated, impulsive relatively unplanned and of short duration. The combination of your youth, immaturity, the causes of your offending and the mitigatory effects already canvassed in relation to the application of Bugmy are relevant to my assessment of the degree of your criminality and your moral culpability.
101In my view, your youth is a significant mitigatory factor and I give it considerable weight in the sentencing synthesis.
Special reasons s. 10AD
Category 1 offending
102
As I have previously mentioned, the charge of aggravated carjacking is a
Category 1 offence that has a statutory minimum non‑parole period. This means that s5(2G) of the Sentencing Act operates and I must impose a term of imprisonment other than a combination sentence.[19]
[19]Sentencing Act 1991 (Vic) s5(2G).
103
Additionally, pursuant to s10AD of the Act[20] I must impose a minimum non-parole period of three years unless I am satisfied on the balance of probabilities that a special reason exists pursuant to s10A of the Act.[21] Your counsel relied upon
sub-s10A(2)(c)(i) and sub-s10A(2)(e). Given the state of the evidence and my findings in relation to Verdins, I do not find that a special reason based on mental impairment would be open in your case. The submissions of counsel and my focus has been upon whether a combination of substantial and compelling factors that are exceptional and rare, exist in your case, the cumulative impact of which would justify departure from s10AD.[22]
[20] Ibid s10AD.
[21] Ibid s10A.
[22] Ibid s 5(2H)(e).
104In determining whether this subsection has application, I must regard general deterrence and denunciation of your offending conduct as having greater importance than other sentencing purposes set out in s5 of the Sentencing Act.[23] I must give less weight to your personal circumstances than the nature and gravity of the offending and I must not have regard to your early guilty plea, your prospects for rehabilitation or parity with other offenders. I must not have regard to your previous good character other than an absence of prior convictions. Further, I must have regard to Parliament’s intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than 3 years should ordinarily be fixed for an offence covered by section 10AD.[24]
[23] Ibid s 5(1).
[24] Ibid s10AD.
105In the case of the DPP v Kenneison the Court of Appeal stated of the identical provision,
“… that s.5(2H)(e) establishes a very high hurdle that will not often be surmounted a requirement that is no doubt quite deliberately – almost impossible to satisfy and that such observations must not be treated as a substitute for the statutory language it is plain that the words substantial and compelling circumstances that are exceptional and rare have real work to do. The circumstances must be both sufficiently weighty and powerful to justify not imposing a custodial sentence and wholly outside the ordinary factors typical of the relevant offence”. [25]
[25] DPP v Kenneison [2023] VSCA 321 [38].
106I have reflected upon several Court of Appeal cases where this test has been considered, particularly the cases of Farmer, Fariah, Lombardo, Dabaja and Buckley.[26] In the cases of Farmer and Fariah the very high threshold was met. However, in the cases of Dabaja, Lombardo and Buckley it was not. Each of the cases, Farmer and Fariah involved young offenders who had a particular profound childhood difficulty that had impact into adulthood.
[26] Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213; DPP v Lombardo [2022] VSCA 204; Dabaja v The King [2023] VSCA 209; Buckley v The Queen [2022] VSCA 138.
107For Farmer, this was the condition of alopecia that resulted in him being severely bullied and socially cast away where he had fallen into an offending peer group grateful for anyone who would befriend him.[27] This significantly reduced his culpability with respect to the offending while also making him extremely vulnerable in custody. For Fariah, this was his exposure during childhood to the atrocities of civil war in Somalia that resulted in the loss of several family members, including his mother and father, prior to his coming to Australia at the age of 15.. Among other things, violence, robbery and theft were a pervasive, normalised and highly prevalent aspect of his life. The Court of Appeal found that the applicant’s appalling childhood experiences, along with his youth, remorse and risk of deportation were sufficient to engage the exception in s. 5(2H)(e).[28] The Court restated the principles outlined in Farmer, that circumstances which individually are relatively common may in combination enliven the exception in s.5(2H)(e).[29] The Court also clarified the use of the word ‘common’ and specified the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone deprive them of their character as substantial and compelling and exceptional and rare.[30]
[27] Farmer v The Queen [2020] VSCA 140.
[28] Fariah v The Queen [2021] VSCA 213.
[29] Ibid [25]
[30] Ibid.
108The case of Buckley involved an 18-year-old convicted of car-jacking. Unchallenged expert evidence found that the applicant was exceptionally immature and vulnerable in prison. Maxwell P and T Forrest JA found that while the matters relied upon ‘…taken in combination might well constitute “substantial and compelling circumstances” justifying a non-custodial order’,[31] they ‘…simply could not be described as “exceptional and rare’.[32]
[31] Ibid [43].
[32] Ibid.
109In Dabaja the Court of Appeal agreed with findings of the sentencing Judge that although the combination of factors relied upon were substantial and compelling, they were not exceptional and rare.[33] To be considered exceptional and rare would require something 'wholly outside the run of the mill factors typical of the relevant kind of offending'.[34]
[33] Dabaja v The King [2023] VSCA 209.
[34] DPP v Lombardo [2022] VSCA 204 [70].
110In your case, Ms Mildenhall submitted that there were several factors that combined to satisfy the test of substantial and compelling reasons that are exceptional and rare. In summary these factors include:
(a) Childhood deprivation;
(b) Youth;
(c) Your range of diagnoses;
(d) Your Aboriginality and your need to be connected to culture;
(e) Your vulnerability in custody and risk of being institutionalised;
(f) Participation in the Koori Court sentencing conversation.
111The cumulative impact of these circumstances Ms Mildenhall submitted would justify a departure from the minimum non-parole period.
112Mr Hardisty on behalf of the prosecution submitted that when appropriate weight is given to relevant matters and when matters are appropriately disregarded the high hurdle required for a finding pursuant so s. 10AD(2)(e) had not been achieved in your case. He submitted your relative youth, disadvantaged background and involvement in the sentencing conversation do not collectively or individually amount to circumstances of a kind wholly outside run of the mill factors typical of this kind of offending and therefore do not meet the requisite of being exceptional and rare, particularly when it is borne in mind that the requirement is almost impossible to satisfy.
Analysis
113Having weighed up the matters to which I may have regard, I have come to the view that there are substantial and compelling reasons that are exceptional and rare in your case that justify my departure from the imposition of a minimum mandatory non parole period of 3 years.
114Many of these factors have already been canvassed in these reasons and they include;
(a) The neglect, abandonment, loss and deprivation you endured throughout your childhood that was the foundation of the my finding pursuant to the Bugmy principles.
(b) Your youth and your immaturity that is consequent upon your borderline intellectual function and the Bugmy factors which have resulted in insecure attachments, limited and flawed coping strategies and have led to difficulties with consequential thinking.
(c) The range of diagnoses and their impact upon you including ADHD, Oppositional Defiant disorder, Conduct Disorder, Intermittent Explosive Disorder, Conforming (Compulsive) Personality Traits with Unruly and Egotistic Features, severe levels of depression, extremely severe levels of anxiety and moderate levels of stress.
115It is not just the existence of these factors but rather the very real impact they have had individually and in combination upon you to significantly reduce your criminality and moral culpability that give them a quality over and above ‘the run of the mill’ or outside of what is ‘commonplace’.
116The other factors relied upon by your counsel, your Aboriginality and need for cultural services, your participation in the sentencing conversation and your vulnerability and risk of institutionalisation at such a young age I consider to be very weighty factors. These confirm and add to my level of satisfaction.
Youth Justice Pre-sentence report
117Having found the existence of special reasons that justify departure from the minimum mandatory non-parole period requirement means that I must now consider what order to make under Division 2 of Part 3 of the Sentencing Act. The alternatives are a term of adult imprisonment or given your age and designation as a young offender, a Youth Justice Centre Order.
118I requested a pre-sentence report from Youth Justice. You were assessed as unsuitable. Youth Justice did not consider that you satisfied the s32 criteria, that is, they did not consider that you had reasonable prospects for rehabilitation or that you were particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison. I am not bound by the recommendation of Youth Justice it is for the Court to evaluate whether it believes that you have reasonable prospects for rehabilitation or whether it believes that you are particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
119I accept the findings of Youth Justice that you have prior convictions and have breached several court orders. I do not accept that your offending is necessarily escalating in frequency although I do consider the offending before this court to be the most serious offence you have committed to date. I accept that your past engagement with services and supports has not resulted in sustained reform or change and that at times you have not engaged fully with services. I consider the judgements as to your lack of education, previous employment and lack of informal community supports and accommodation to be extremely unhelpful. These are the very factors that need to be addressed if you are to reform.
120In terms of your prospects for rehabilitation I have had regard to the following:
(a) Your three attempts at residential rehabilitation;
(b) Your involvement in the Atlas program;
(c) Your participation in Koori Art;
(d) Your work in custody undertaking grounds maintenance and previously in industries;
(e) Your stated desires for rehabilitation and future goals as detailed during the sentencing conversation;
(f) The support you do have in the community from your Foster grandmother, sister and father.;
(g) Your relatively young age, background and personal circumstances.
121The combination of these factors lead me to find that you do have reasonable prospects of rehabilitation.
122Further, I consider you to be relatively immature for the reasons I have previously stated, including your borderline intellectual function, your experiences of deprivation and neglect and the impact that has had upon your development. As one of the youngest prisoners at Western Plains in the absence of any significant programs, with extremely limited cultural support and the evidence from Ms McGeoch that you had been the victim of assault earlier this year whilst in custody, it is my view that you are likely to be subjected to undesirable influences in adult prison.
123Given my finding that special reasons exist, subject to the test of substantial and compelling circumstances that are exceptional and rare, it is my view, for the same reasons that there are exceptional circumstances in existence, that I am able to sentence you for aggravated carjacking, a Category A serious youth offence, to a Youth Justice Centre Order. [35]
[35]Sentencing Act1991 (Vic) s. 32(2C).
Plea of guilty
124For completeness, I have considered your plea of guilty. In the circumstances of your case your plea could not be considered an early plea. However, it has spared the need for Ms O’Callaghan to relive the crime in detail by giving evidence and being cross examined in court. Your plea has spared the court the time and expense of a trial. I find that your plea has a utilitarian benefit and that you have facilitated the course of justice. As such, I propose to allow an appropriate discount.
Sentencing
125
I have taken into account the sentencing guidelines referred to in s5 of the
Sentencing Actwhere relevant to your case.[36] I have also taken into account, as far as possible, the current sentencing practices for the offence of aggravated carjacking, to which you have pleaded guilty.
[36] Sentencing Act 1991 (Vic).
126I consider the relevant sentencing principles that must be applied in your case are general and specific deterrence, albeit moderated given my findings as to Bugmy and your youth, denunciation, protection of the community and just punishment. I must also be mindful of the principles of parsimony and proportionality. I am of the view that community protection in your case can best be achieved by your rehabilitation. Given the very serious nature of your offending, your prior history, your lack of successful engagement with previous supports, the personal and psychological factors that you need to address, including your drug use, it is my view that only a sentence involving a lengthy period of confinement is appropriate in your case.
Disposition
127Mr Murray, on the charge of aggravated carjacking you are convicted and you are sentenced to be detained in a Youth Justice Centre for 3 and half years.
128As further canvassed with Ms McGeoch in her evidence, Youth Justice provide comprehensive, specialist, targeted services that are intensive. Importantly these services will begin whilst you are confined and then continue during your reintegration into the community, whilst subject to the intensive supervision of the Youth Parole Board. I consider that this will better support you, make you more accountable and in the long term better serve the interests of the community.
129I declare that you have served 273 days by way of pre-sentence detention and these days will be deducted from your sentence.
130Mr Murray, this is the last opportunity you will have in the Youth Justice system I suggest you make the most of the services that will be made available to you.
131Pursuant to s. 6AAA,[37] had you not pleaded guilty and been found guilty I would likely have imposed a sentence of adult imprisonment in the order of 4 years.
[37] Ibid s6AAA.
132Is there anything further.
133MR HARDISTY: Nothing from the prosecution, Your Honour.
134MS MILDENHALL: No, Your Honour.
135HER HONOUR: All right. I know that Ms O'Callaghan is on the link, and I hope that this can give her, some closure for what was a very confronting and traumatic, and devastating experience. My best wishes to her and her husband and family.
136Thanks very much to counsel. Mr Hardisty, thank you for your very detailed written submissions that I received on Thursday. Ms Mildenhall, the same, they were very helpful.
137Mr Murray, One of the things that has weighed on my mind is that you will be captive whilst the services to which I have spoken about can be commenced. You don't have to engage, but it will all be there for you. There will be offending behaviour programs, mental health support, cultural support, lived experience mentors, people who, have walked your path, people you will be able to relate to. And importantly, there will be training and education. So, there will be no excuse, and as I said, it's the last opportunity that you've got in the Youth Justice system, so really make the most of it, because I don't want you to come back. I don't want you to hurt another person in the way that you've hurt Ms O'Callaghan.
138ACCUSED: Yes.
139HER HONOUR: Thanks everyone, we'll adjourn.
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