Director of Public Prosecutions v Okot
[2020] VCC 1404
•4 September 2020
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-20-00960
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDWIN OKOT |
---
| JUDGE: | HER HONOUR JUDGE DAWES |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 August 2020 |
| DATE OF SENTENCE: | 4 September 2020 |
| CASE MAY BE CITED AS: | DPP v Okot |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1404 |
REASONS FOR SENTENCE
---Subject: Criminal Law - Sentence
Catchwords: Aggravated home invasion, theft.
Legislation Cited: Sentencing Act 1991 (Vic); Mental Health Act 2014 (Vic).
Cases Cited: R v Verdins (2007) 16 VR 269; Astbury v The Queen [No 2] [2020] VSCA 158.
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | Ms R. Marques, Solicitor for Public Prosecutions |
| For the Accused | Mr P. Smallwood | Greg Thomas Barrister & Solicitor |
HER HONOUR:
1Edwin Okot, you have pleaded guilty to:
·one charge of aggravated home invasion, the maximum penalty is 25 years' imprisonment; and
·one charge of theft of a black C43 Mercedes, the maximum penalty is 10 years' imprisonment.
You have also pleaded guilty to the related summary offence of committing the aggravated home invasion while on bail. The maximum penalty for that offence is 3 months' imprisonment.
2At around 5:00am on 5 April 2020, you travelled in a stolen Volkswagen SUV to Flora Grove, Wantirna South, in the company of five other offenders. Upon your arrival, you and four of your co-offenders left the vehicle, conducting surveillance in the street for about 10 minutes.
3At 5:11am, you and four of your co-offenders, being Moses Riek, Oliver Bana, Oscar Ranford[1] and an unknown male, approached the front door of 13 Flora Grove. At the time, you were carrying a weapon, namely a wooden stick. Two of your co-offenders were also armed, carrying a metal pole and another wooden stick. You used the weapons to force entry into the premises, by splitting the wooden front door. The two adult victims and their two young children were asleep upstairs at the time. You all went inside, entering the lounge/kitchen area and removed a number of items belonging to the victims, including sets of car keys.
[1] Oscar Ranford is a pseudonym
4After approximately one minute, you and your co-accused moved outside into the garage. Riek was carrying keys to the black Mercedes and entered the driver’s seat. You got into the front passenger seat and Ranford entered the back seat. The unknown offender approached the rear of the Mercedes but then ran off, getting back into the Volkswagen that was waiting in the street. Bana got into another car that was parked in the garage, a Jeep Grand Cherokee, and attempted to start it.
5At the same time, the adult victims who had been awoken by two loud bangs, came down to the garage. The female yelled, “Get out of my house” and the male opened the driver’s side door of the Jeep. Bana jumped out of the car and ran to the Mercedes, which drove away after he got into the back seat. By this time, the victims had called the police. The male was able to track his stolen car via an app he had on his phone. He advised the police about the location of his car. As a result, police were able to covertly follow the stolen vehicle as it was driven in the Upper Beaconsfield area.
6At the time the road was dark, it was raining, and visibility was poor. At 5:52am, the driver accelerated the stolen car, entering into an intersection against a red light and colliding with a 25-tonne crane truck. The collision destroyed the Mercedes and damaged the truck. Riek, Ranford and Bana were trapped in the car and arrested at the scene. You fled on foot and were arrested soon after, a short distance away.
7You were conveyed to the Dandenong Hospital as a result of injuries you suffered in the collision, as were Riek and Ranford. Bana was taken to the Pakenham police station. You were transferred to the Alfred Hospital. You were charged without being interviewed and remanded. You were discharged into custody on 5 April 2020, where you have remained since that time.
8On the day of your plea hearing both adult victims were present and read to the court Victim Impact Statements that they have prepared.
9Both statements clearly articulate the significant and ongoing trauma, insecurity and distress that had resulted from your conduct. The female victim describes being emotionally distraught by this experience. It has challenged her perception of safety in her home. For her family to have been the victims of an aggravated home invasion has left her in an ongoing state of fear and concern. The distress has also caused physical symptoms, that have resulted in her having to give up her employment. The loss of her income has affected the family's capacity to maintain their lifestyle. She feels angry, sad and is unable to erase this incident from her memory. Both she and her husband have sought professional assistance to try to overcome the residual difficulties of your conduct.
10The male victim's statement outlines the burden that you have imposed on the family, having eroded their sense of security in their home. He feels that he failed to protect his family as he did not prevent the incident from occurring. He states, “I will never forget what happened that night. It’s ingrained in my mind like a tattoo…..” He too, continues to suffer trauma from this incident.
11It was conceded by your counsel that the victims have eloquently described the impact of your conduct and that their distress is significant. I take the content of the Victim Impact Statements into account.
12Aggravated home invasion is a serious offence. This was planned, where you armed yourself and acted in company with other armed men. You broke into a family's home while they were asleep, in the early hours of the morning. The victims were not known to you and I accept the selection of their home was a random one. It appears that your motive was to steal the Mercedes vehicle that was parked in the garage. Although the event only lasted for a short period of time, the victims were terrified. They confronted you and your co-accused in the garage, before you drove away in what was described as their 'dream car'. The community expects that those who engage in the serious offence of aggravated home invasion must be punished and denounced for their conduct.
13You were 20 years old at the time of this incident. You have one prior appearance at the Dandenong Magistrates' Court on 30 August 2019, where you pleaded guilty to theft, obtaining property by deception and failing to answer bail. You were sentenced without conviction to an adjourned undertaking for 6 months.
14You have a number of unrelated, outstanding charges, some for which you were on bail at the time of the instant offending. They are listed for mention at the Dandenong Magistrates' Court in October and November 2020, being:
·Failing to give information as to the driver of the vehicle on 30 May 2019;
·Assaulting an emergency worker on duty and resisting an emergency worker on duty, on 31 October 2019; and
·Two charges of theft, obtaining property by deception, attempting to obtain property by deception and committing an indictable offence while on bail, on 22 March 2020.
15The current offences occurred in breach of the undertaking of bail and you have pleaded guilty to that related summary offence. The fact that you were on bail at the time is an aggravating feature of your offending.
16I do not take the outstanding matters into account when determining the appropriate sentence in this case.
17A filing hearing proceeded on 3 April 2020. Your matter resolved to a plea of guilty at the committal case conference 4 months later, on 5 August 2020. Your plea of guilty has a significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial. You have spared the victims the ordeal of giving evidence. In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that, particularly in the current environment where jury trials are not proceeding in light of the COVID-19 pandemic. Your early plea of guilty also demonstrates an acceptance of responsibility for your offending conduct.
18The speedy resolution of your case and subsequent plea hearing has enabled this matter to be finalised prior to your twenty-first birthday, on 6 September 2020. It is submitted that this may have some significance for sentencing purposes. It has, therefore, also been in your own interest to have the matter resolved quickly.
19I accept that you are now remorseful for your offending. Your plea of guilty is consistent with developing an insight into the effect of your conduct on the victims and on the community. Your counsel advised that when the victim impact statements were read to you, you began to cry as the impact of your conduct became clear. You have prepared letters of apology to the court and to the victims. You explained that this was not a targeted attack, admitting that you associated with the wrong crowd and were affected by drugs at the time of your offending. I accept that you have acknowledged the need to address your lifestyle issues. While you say that your time in an adult custodial environment has been very challenging, you accept that there will be significant consequences for your serious criminal conduct.
20In a letter to the court written to your mother, Ms Agnes Teri, dated 18 August 2020, she confirms that you expressed regret and sadness for your offending when she first saw you in hospital, after the accident. You acknowledged the wrongfulness of your actions. You understand that you have brought shame on yourself and on your family. You have been trying to better yourself while in custody, working towards improving your future. You are fortunate to have always had the support of your mother, who was present with other family and community members at the plea hearing.
21I have also read several character references from community members who have known you throughout your life. They confirm your previous involvement in community activities such as youth events and basketball. They continue to support you and your family.
22You have been in a relationship for several years. On the day of this incident, your partner told you that she was pregnant. You panicked about this as you had no money and turned to drug and alcohol use that day. You have recently been advised that your partner has terminated the pregnancy. This has come as a shock to you. You have had to deal with this news in the absence of supportive contact visits from your partner and family, in light of the current restrictions imposed by Corrections. This has increased the burden of your imprisonment and a lack of personal visits will continue for the foreseeable future.
23You are currently held in Ravenhall. You completed an OH&S and food handling certificate and have been working in the kitchen while in custody. You have also completed a treatment program relating to excessive alcohol use, although access to ongoing educational and vocational programs is more limited at the moment.
24I am aware that the measures taken by Corrections to deal with the COVID-19 pandemic will add to your hardship as a prisoner, particularly as this is your first time in custody and you are only 20 years of age. The prosecution concedes as much.
25The first 14 days you spent in custody were in 24-hour lockdown, due to quarantine requirements. I do not provide any specific sentencing benefit for this or for the possibility that lockdown may occur again. As I understand it, when this occurs you may receive sentence reductions as a result of the administrative decision of the prison authorities.
26I accept that at the current time, imprisonment will be more stressful for you than it would be if you were in the community, not only due to your personal position of confinement but also the hardship you will undergo being absent from your family. You are also likely to feel more vulnerable to the possibility of infection from the virus in light of your incarceration. The Court of Appeal has recently acknowledged in Astbury v The Queen [No 2][2] that these hardships justify a sentencing benefit.
[2] [2020] VSCA 158, [33].
27You committed these offences at the age of 20 and you are almost 21 years old. You are to be sentenced as a young offender. In light of the seriousness of these offences, the mitigating effect of age and your youth is reduced, although not extinguished. These factors are still relevant when considering your prospects of rehabilitation. Denunciation and general deterrence must have a great emphasis, however, as the seriousness of the offending increases.
28You were born on 6 September 1999 in South Sudan, being one of 10 children. As a result of the civil conflict, your family relocated to Egypt when you were six months old. You stayed there until your family immigrated to Australia in 2004, when you were five years old. You are now an Australian citizen.
29You attended Hampton Park Primary School and St Patrick's Primary School in Pakenham. You then attended St Francis Xavier College in Beaconsfield. You struggled in secondary school, attempting both VCE and then VCal. Although you remained at school, you did not successfully complete Years 11 and 12.
30After leaving school, you worked as a brickies’ labourer for two months at the end of 2018, then worked part time packing boxes in a factory in 2019, until February 2020. Your employment ceased as a result of the COVID-19 pandemic. You were enrolled in a Certificate II in Business Management at Dandenong TAFE before being remanded in custody.
31As a young child, you developed a deformity of your skull. You underwent elective cranial surgery at the Royal Children's Hospital when you were 6 years old. Hospital records indicate that all aspects of your brain function were normal both before and after the operation. You were, however, teased by your peers about the deformity and also because you stammered when you spoke, an unrelated issue.
32Prior to your remand, you lived in Hampton Park with your mother and siblings. Your father was violent and abusive towards all your family and your parents separated about 3 years ago. Around the time your father left the family home, 3 of your friends died in different circumstances in quick succession.
33Many negative consequences have flowed from these series of losses. Your engagement at school diminished, you sought relief in using cannabis, MDMA, cocaine and alcohol regularly and you developed a problematic lifestyle.
34In 2019, you would leave home and ‘couch surf’ because you would get into trouble from your mother for your substance abuse and associated behaviour. You first came to the attention of the police in 2019. On the day of these offences, you had taken a number of Xanax tablets for the first time. You have not received any treatment for your issues.
35You state that you have no recollection of committing these offences. You had been getting a ride home with friends and used a combination of drugs and alcohol prior to the incident. You recall waking up in the Alfred Hospital, but you do not know exactly what happened. Hospital records show that you suffered injuries in the accident, including pulmonary contusion, a non-displaced sternal fracture and perhaps a subtle shallow contour rapture of the spleen. There is no evidence that you suffered an acute traumatic injury to the brain. You have now recovered. Your counsel submitted that the injuries you suffered are extra curial punishment for your offending.
36Several factors in combination including your background of intergenerational trauma and family violence, as well as your personal circumstances are relevant when considering your level of moral culpability. While these factors may be relevant to your offending, you admit that you were also affected by drugs of dependence and alcohol at the time. The effect of your substance use on your ability to control your behaviour is hard to determine. Notwithstanding this, I accept that this history of social disadvantage has the effect of modestly reducing your moral culpability.
37At the request of your solicitors, you participated in an assessment with consultant psychologist Ms Gina Cidoni on 19 July 2020. Ms Cidoni describes her qualifications as having completed tertiary studies in psychology and criminology at Melbourne University and postgraduate study at La Trobe University. In her report, dated 12 August 2020, she made the following findings:
·Your symptoms of anxiety and depression had intensified since you were remanded. You indicated that you were prescribed medication in custody, but you did not want to take it.
·You obtained a full-scale IQ of 68, an extremely low intellectual function on the Wechsler Adult Intelligence Scale – 4th edition (‘WAIS-4’).
·Cognitively, you struggle with impulse control, disinhibition, thinking clearly and problem solving.
·She expressed a concern that you suffered a brain injury when you had the operation as a child. Potential damage could have resulted in cognitive problems as well as social problems. She had access to your school reports from Years 10, 11 and 12.
·Taking into account your youth and impaired brain functioning and other problems, there was a high probability that it affected your decision making and in turn, your culpability for the offending conduct.
·Based on your impaired functioning, prison would be more onerous for you. You would most certainly fall victim to bullying and she would expect your mental illness to worsen.
·You presented with a serious cognitive impairment, persistent depressive disorder (dysthymia) and adjustment disorder.
·You used drugs including cannabis, Xanax, MDMA and LSD during 2019 and you were drinking heavily prior to your arrest. She stated that at the time of the offences, your acute intoxication, being a symptom of the adjustment disorder, also hindered your already impaired capacity to think clearly or to make calm, rational choices.
·Ms Cidoni recommended an investigation of your medical records and that you undergo a neuropsychological assessment.
38On 17 August 2020, you were assessed by clinical neuropsychologist, Mr Martin Jackson. Mr Jackson's qualifications are a Bachelor of Science (Honours) from the University of Melbourne, a Master of Science (Clinical Neuropsychology) from the University of Melbourne, Introduction to Clinical Psychology, Austin Hospital, Melbourne and a Certificate in Workplace Leadership, Swinburne University of Technology. He has provided a report for the court dated 20 August 2020.
39Mr Jackson assessed your records from the Royal Children's Hospital and confirmed that there was no evidence of an acquired brain injury or impairment existing from the surgery that took place in 2006.
40He also had access to your school reports from Years 5, 7, 8, 10, 11 and 12.
41Mr Jackson made the following findings:
·Your education and occupation history do not represent your level of cognitive abilities as your performance at school clearly deteriorated after four personal tragedies (your father leaving the family home and the death of three friends).
·On the WAIS-4, you obtained a full scale IQ of 77, meaning that you are not in the mild intellectual disability range.
·The possible cause of your cognitive impairment at the time of Ms Cidoni's assessment four weeks earlier, was a combination of a mild traumatic brain injury sustained in the motor vehicle accident on 2 April 2020, ongoing recovery from drug and alcohol use, as well as impairments due to acute mood issues (depression and anxiety).
·In terms of your current cognitive impairments, the only impairment you have is slowed processing speed. You do not have impairments that impact your ability to control your impulses or understand the consequences of your actions. Your intelligence, executive skills, language skills and new learning and memory skills are all within the low average to average range.
·The main thing that is likely to make imprisonment more difficult for you is your mood issues. You report that you do not like being in prison and that other prisoners are picking on you and trying to control you.
·Your mood had improved significantly from your clinical presentation four weeks earlier.
·You did not present as being particularly impressionable. You do not have a cognitive profile that would put you at risk of being subject to undesirable influences in an adult prison.
·You do not require treatment or intervention for cognitive difficulties as you do not have a major cognitive impairment.
·You do, however, require intervention for the traumatic events that have occurred over the past three to four years including your father leaving the family home and in particular the deaths of your three friends. These have been the trigger to your life spiralling downhill and turning to drug use.
42Ms Cidoni was provided with a copy of Mr Jackson's report. She provided an addendum report, dated 22 August 2020. She did not further examine you. She agreed that you are a vulnerable young person experiencing his first time in custody. She confirmed her earlier diagnosis of dysthymia and adjustment disorder reflecting a president maladaptive emotional or behavioural reaction. She also confirmed her finding that imprisonment would be significantly more onerous for you than for someone who does not suffer from an adjustment disorder and depression.
43In Ms Cidoni's view, you would not be able to access treatment at the level required if you are imprisoned.
44When assessing your cognitive function and overall mental health, I prefer the opinion provided by Mr Jackson, for the following reasons:
a)He had access to your records at the Royal Children's Hospital and to a larger range of school reports.
b)His assessment, where you showed a significant improvement in your cognitive functions, was conducted more recently. He provided a cogent explanation for the improvement in your clinical presentation.
c)Your counsel has abandoned his reliance on Ms Cidoni's opinion that you have an impaired cognitive function or a serious cognitive impairment.
d)Ms Cidoni did not conduct a further assessment before providing her second report.
e)I regard Mr Jackson's qualifications as impressive and his opinions to be well-reasoned and persuasive.
45Your counsel has submitted that Limbs 5 and 6 of Verdins[3], being hardship in custody and the risk of deteriorating mental health are relevant considerations here. In light of Mr Jackson's report, I am not persuaded on balance that you are at risk of deteriorating mental health while in custody. I accept that as a young offender, however, given your modest cognitive abilities, that you will be more vulnerable in custody and I take that into account in your favour.
[3]R v Verdins (2007) 16 VR 269.
46When considering rehabilitation, Mr Jackson believes that you have very good prospects. While you were not able to cope with or manage the traumatic events that occurred after your father left the family home and the death of your friends, you turned to drug use. You have not received any formal treatment for these events to date. In Mr Jackson's view, if you can benefit from therapy to assist dealing with these issues, as well as therapy for your drug and alcohol use, then your prospects are high.
47I accept his opinion. Taking it into account as well as your family's ongoing support and the supports you have in the community, in the context of your limited criminal history, I find that with access to appropriate therapy and treatment, your prospects are good.
48In order to address all possible sentencing options, a pre-sentence report has been obtained to determine whether you are suitable for a Youth Justice Centre order. In the report prepared by Mr Stephen Riordan, dated 31 August 2020, you expressed to the author concern about being sentenced to a term of imprisonment, as you did in the letter that you wrote to the court. You reported that it has been ‘hard’ for you in gaol as you associate with older, more experienced criminals. You stated that you wanted to move to a Youth Justice facility to be with people your own age and to have access to educational programs, as well as programs to address your offending behaviour.
49The assessment found that:
·You fall within the age range for entry to a Youth Justice Centre, although only by a few days.
·You may adopt undesirable behaviours in order to adapt to the prison lifestyle.
·You could be easily led and manipulated in an adult custodial environment, and
·You are suitable for detention in a Youth Justice Centre.
50When considering sentence in this matter, I am obliged to consider that aggravated home invasion is a Category 1 offence pursuant to the Sentencing Act 1991.[4] The Act is prescriptive in the type of penalty to impose in such a case, being a term of imprisonment.
[4]Sentencing Act 1991 (Vic) s 3(1) (definition of ‘Category 1 offence’) para (ia).
51For the offence of aggravated home invasion, s10AC Sentencing Act directs that a non-parole period of not less than 3 years must be fixed unless the court finds under s10A that a special reason exists.[5] The Sentencing Act directs that a non-parole period must be at least 6 months less than the sentence imposed.[6]
[5]Sentencing Act 1991 (Vic) s 10AC(1).
[6] Ibid s 11(3).
61 Relevantly, s10A Sentencing Act states:
(2) “… a court may make a finding that a special reason exists if—
(c)the offender proves on the balance of probabilities that—
(ii) he has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
…
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.”
…
(2B) In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court—
(a)must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and
(b)must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c)must not have regard to—
(i)the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii)an early guilty plea; or
(iii)prospects of rehabilitation; or
(iv)parity with other sentences.”
(3) In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court must have regard to—
…
(ad) the 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 10AC; and
…
(b)whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.”[7]
[7]Sentencing Act 1991 (Vic) ss 10A(2)(c)(ii), 10A(2)(e), 10A(2B)(a)-(c), 10A(3)(ad), 10A(3)(b).
62 The threshold to impose an alternative disposition to a gaol term is very high. Ultimately, you must satisfy the court on balance of these factors.
63 Your counsel has submitted that you have impaired mental functioning that would result in your being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. The prosecution does not agree with that submission.
64 When considering the submission, impaired mental functioning means a mental illness within the meaning of the Mental Health Act 2014.
65 The Mental Health Act defines mental illness as:
… a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.[8]
[8]Mental Health Act 2014 (Vic) s 4(1) (definition of ‘mental illness’).
66Your counsel relies on Ms Cidoni's assessment of your suffering from an adjustment disorder and depression as a mental illness, and that in her addendum report, she states that imprisonment would be significantly more onerous for you over someone who does not suffer from that.
67For the reasons that I have already expressed, I am unable to be satisfied to the required standard that you have impaired mental functioning that comes within the definition, or, in particular that it can be characterised as a significant disturbance.
68I am not satisfied that it would result in your being subject to substantially and materially greater than the ordinary burden or risks of imprisonment, in light of Mr Jackson's report.
69Your counsel has also submitted that substantial and compelling circumstances that are exceptional and rare, justify the finding that a special reason exists. The prosecution does not agree.
70You rely on a number of factors in combination, namely:
·Your youth and vulnerability in adult custody,
·Your background of family violence and intergenerational trauma,
·Being teased due to your deformity and speech impediment and undergoing surgery at 6 years of age,
·The death of your 3 friends when you were a teenager,
·That you require intervention for the traumatic events that have occurred,
·Your lack of treatment for adjustment disorder and dysthymia,
·Your lack of treatment for substance abuse,
·Your extra curial punishment,
·The hardships that you have endured on remand, particularly now that you have discovered that your partner has terminated the pregnancy,
·The unusual circumstances of isolation as a result of the current pandemic, and
·The hardship that you would continue to endure if required to serve a sentence in adult custody.
71The section directs that these factors, which are, in effect your personal circumstances, must be given less weight than the nature and gravity of your offending when considering sentence.
72It is neither rare nor unforeseen for a young offender, in custody for the first time and who has committed a very serious offence, to be feeling anxious or mildly depressed, or to feel vulnerable in an adult custodial environment. I accept that negative consequences flowed from the series of losses that resulted in your substance abuse and associated criminality. While these factors in combination with your other circumstances do arouse sympathy, I am unable to be satisfied that your circumstances are sufficiently substantial to find that a special reasons exists.
73The intention of Parliament is clear from the language used. My sentencing discretion in this case has been pared back by Parliament. I am not satisfied that you have established that a special reason exists.
74In relation to the other charges that are before the Court, general deterrence, specific deterrence and protection of the community must be given significant weight in the sentencing process. Rehabilitation must also strongly feature in the sentencing mix.
75The offence of aggravated home invasion is a Category A serious youth offence.[9]
[9]Sentencing Act 1991 (Vic) s 3(1).
76A young offender cannot be given a Youth Justice Centre order for a Category A serious youth offence, unless the court is satisfied that exceptional circumstances exist.[10]
[10]Sentencing Act 1991 (Vic) s 32(2C).
77In light of the finding that I have made that the sentence to be imposed under s10AC Sentencing Act is appropriate and that a special reason does not exist, I do not need to consider this section.
78I take into account the maximum penalties for each offence. I have considered current sentencing practices. I am aware that there is a presumption of cumulation for offences committed while on bail for another offence. I take that into account while also considering the principle of totality. I have taken care not to doubly punish you for the offences.
79You currently hold a probationary licence. As a result of pleading guilty to the theft of a motor vehicle, I am required to make an order against your licence.[11]
[11] Ibid s89(4).
80Balancing all the factors as best I can, I sentence you as follows:
81Charge 1, you are convicted and sentenced to 3 years and 6 months' imprisonment.
82Charge 2, you are convicted and sentenced to 9 months' imprisonment.
83Charge 3, you are convicted and sentenced to 14 days' imprisonment.
84The principle of proportionality requires the total effective sentence to be commensurate with the aggregate criminality of your offending. In those circumstances, I direct that Charge 1 be the base sentence; that 2 months of Charge 2 be served cumulatively upon the base sentence and that Charge 3 be served concurrently.
85That is a total effective sentence of 3 years and 8 months.
86I set a mandatory non-parole period of 3 years.
87You have been found suitable for Youth Justice detention. I recommend that the Adult Parole Board considering directing that you be transferred to serve at least part of your sentence in a Youth Justice Centre.
88Your licence is suspended for 6 months.
89I will make an order for disposal of your clothing once I receive that order. I understand that there is no objection to that application.
90I direct that 155 days pre-sentence detention be entered in the records of the court.
91The declaration I make under s.6AAA is had the matter not proceeded as a plea of guilty, I would have imposed a sentence of 4 years and 3 months with a non-parole period of 3 years.
92Ms Duckett and Mr Smallwood, is there anything further?
93MS DUCKETT: No, Your Honour.
94HER HONOUR: Thank you.
95MR SMALLWOOD: No, Your Honour.
96HER HONOUR: I will formally adjourn the court. I remind Mr Okot that my associate and tipstaff will remain present in the link and give Mr Smallwood an opportunity to speak with his client and family before the link terminates at 10 o'clock. Thank you.
97MR SMALLWOOD: As the court pleases.
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