Director of Public Prosecutions v Outen-Lepoidevin

[2024] VCC 779

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00812

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHANIEL OUTEN-LEPOIDEVIN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2023
DATE OF SENTENCE:	28 February 2024
CASE MAY BE CITED AS:	DPP v Outen-Lepoidevin
MEDIUM NEUTRAL CITATION:	[2024] VCC 779

REASONS FOR SENTENCE

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Subject:                Criminal Law – Sentence upon plea of guilty. 

Catchwords:         Attempted aggravated carjacking - carjacking - young offender -

offences committed in company while intoxicated - absence of criminal

history - severe substance use disorder - early plea of guilty.

Legislation Cited:  Crimes Act 1958; Sentencing Act 1991.

Cases Cited:        Bugmy v The Queen [2013] HCA 37; Farmer [2020] VSCA 140; DPP v

Lombardo [2022] VSCA 204; DPP v Bowen [2021] VSCA 355; Hudson v

R [2016] VSCA 254.

Sentence:            Total effective sentence of 2 years and 6 months detention in a Youth

Justice Centre.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Dober	Ms G. Morison
For the Accused	Ms B. Proud	Ms S. Veit

1HIS HONOUR: 

2Nathaniel Outen, you have pleaded to one charge of attempted aggravated carjacking and one of carjacking.  The circumstances of these offences are outlined in a prosecution opening which was exhibited.  I will summarise the facts briefly.

3On 30 September 2022 Mr Lella, the victim in Charge 1, was working around 10 pm driving his car. He received a job to deliver an order from Hungry Jack's in Sebastopol.  He thought this was odd given the proximity of the address to the Hungry Jack's store.  Instructions on the order were 'Leave at door' and 'Please go round the back'.  Mr Lella left the order on the front doorstep instead.

4He turned to leave and four males and a female aged between 16 and 17 appeared from the side of the house, three had face coverings and all were wearing black.  The two who were not wearing face coverings had longer brown hair.

5The four males in the group assaulted him with a variety of items including sticks, poles and batons whilst demands were made for his keys.  Mr Lella tried to get in the car and was yelling for help and as he got in the car some of the group did as well.

6You hit Mr Lella multiple times with a wooden pole to the legs and broke it over his head.  Mr Lella grabbed the key as he was getting out of the car.  An unknown male and you grabbed him and threw him onto the road into oncoming traffic.  CCTV footage shows this action, which given the traffic on the road, exposed him to some considerable danger.

7As this was happening, a female came out of the front yard and went over to the car and got inside.  The three in the car appeared to be searching through the car. Other cars were pulling up. You got into the driver's seat and attempted to start the car.  The keys in the vehicle were not for the car and you were unable to start it. 

8Mr Lella got his phone out and attempted to record the events and at that point, you then got out of the car and ran down the driveway to where there is a hole in the back fence, that leads to Domino's car park.

9The residents from next door came to Mr Lella's aid.  He was assisted to the front of their house and they cleaned the blood off his face. Police were called.

10A female from the house from which you had come, came outside and whilst initially denying the order was hers when Mr Lella asked if her name was Kylie, she admitted it was and the order was hers.

11Lella was taken to Ballarat Base Hospital's emergency department by a friend.  He reported pain to his head, upper arm and lower leg following the assault.  It was noted he had some abrasions and swelling.  He was diagnosed with a minor head injury and a sprain to his left leg and left shoulder.  He underwent a CT scan of his head and C-spine which were clear and he was discharged.  Police took photographs of his injuries at the hospital, which were tendered during the plea. 

12A broken wooden pole was located at the scene next to the car.  CCTV and dashcam footage were obtained of the offending as well, showing movements of the group afterwards.  Footage shows Mr Lella arrive at the address at 10.10 pm, where he drops the delivery off.  He is surrounded by armed group with four chasing him to the car and assaulting him with weapons, before the fifth follows.  It also shows him on the road after being forced out of the car whilst headlights of oncoming traffic are visible, with a car stopping to avoid hitting him whilst on the road.

13Police located three of your fingerprints on the car, two on the outside driver's door window and one inside on the front driver's side window.

14At 2.51 am on 21 October a Ms Adams was intercepted by police.  You, AD and Jordan Kiely-Georgieff were in the car.  Police took photos of the three males under suspicion of an earlier incident, including yourself.  Ms Adams later drove you, Adams and Kiely‑Georgieff to your address in Soldiers Hill.

15That same night at 4.41 am Mr Hindle was working for the business called Nangs using his own car, a Commodore.  Nangs are silver nitrous oxide cylinders used to whip cream or blow up balloons, though some use it as an inhalant for a brief high.  Mr Hindle received a message to deliver an order to Jose Houten, a phone number and email address beginning in Nathaniel152004 were given.  The order was for 100 easy whip balloons and a noteholder for a total price of $120.  A note connects to the balloon which enables you to get high.

16Mr Hindle drove to the address and went to the boot to retrieve the order.  Two males approached him and he asked if they ordered nangs, and they replied that they did.  Then Mr Hindle saw two other males there.  One kept saying 'Give me your keys, give me your keys'.  One approached him and said 'I've got a knife, I want your car'.  The other said 'I have a knife too, I want your car'.  While Mr Hindle did not see a knife, he was scared he might be stabbed.

17He moved past the pair, got into the driver's seat and was holding his keys.  One of the offenders grabbed him by the jacket at the back of his neck and pulled him out of the car, telling him to sit on the ground.  You took his keys and got into the driver's seat, another in the passenger seat and the two others walked off, and possibly got into another car.  You then drove off.

18Mr Hindle sustained a cut on his right ring finger when the keys were taken out of his hand.  He also suffered a grazed knee.

19Inside the car was Mr Hindle's personal phone and a box and a half of nangs with dispensers and notes.  He had his work phone on him and he called Triple 0 and then his daughter.  He called his manager and reported what happened.  Previous orders were checked against the order's details and a search of the phone number given came up with the name NZ Outen-Lepoidevin. 

20Mr Hindle's daughter, Kylie, knew you as you were friends with her friend's son.  Checks on the number given for the order showed that the number is used by you.  Police recovered Mr Hindle's vehicle in bushland with significant damage a few days later.

21Warrants were executed at the addresses where Mr Lella made his delivery and your own address.  At the first location police found a green Woolworths bag containing a quantity of cream chargers, two empty boxes of cream chargers, three cream chargers, one mobile phone belonging to Adams, and one mobile phone belonging to Sebastian Adams.

22At your address police found a box of unopened cream charger, one used cream charge cannister and three cannister dispensers. 

23After the warrant was executed you presented yourself to the Ballarat police station at 5.30 on 3 October 2022, and you were arrested and interviewed.

24You were 18 years old at the time and you turned 19 on 15 July 2023.  Victim of Charge 1, Mr Lella, was 30 years old and working as an Uber Eats delivery driver at the time.  The victim of Charge 2 was Michael Hindle, he was 61, working as a delivery driver for Nangs at the time of the offending.

25You committed Charge 1 in the presence of AD, 17 years of age, and two unidentified persons.  You committed Charge 2 with AD and Jordan Kiely‑ Georgieff, who was 18, and one unidentified male.

26You were interviewed in relation to both offences and you said that you had been taking ice in the lead-up to it.  You denied that it was a planned attack.  You said the driver came to the door and you came out of nowhere and attacked him.  You were drug-affected at the time on ice and maybe cannabis. 

27You said you came out from the side of the house and everyone said 'Give me your shit'.  You all hit Lella and you hit him with a stick from the side of the house.  It was a handle or a curtain rod and another had a fridge handle.  You said all the others were in the car except you, and you kept hitting the windows because you had been shut out of the car.

28You got in the car, you went in via the back seat and climbed over.  You said someone else threw the victim onto the road.  You were trying to start the car with the random keys, including Bunnings keys that were in the car.  You think AD was in the driver's seat trying to start the car, then AD jumped over into the passenger side and you got onto the front seat and tried to start the car.  When you realised that the keys were not right, you ran away. 

29The unknown man and female were in the back.  You were not sure where ADs brother was.  You said had you been able to start the car, you would have driven off.  You broke the stick over Mr Lella and threw it over the roof or in a yard.  You and AD were at his house but you got bored and you had Ms Adams pick you up, and you went to see Jordan, where you drank.  You ordered some nangs and the three of you used the box at the park.  You placed another order but it went over the time frame in which an order is meant to come and so you placed another order. 

30When Mr Hindle arrived, you said to police you decided to go and take the box and run away.  Mr Hindle became physical and you wrestled over the box, then the other two came over and you took all the nangs and his car.  You said they pushed him over and were looking for the keys.  You got in the driver's seat, AD in the front and Jordan in the back, and you then did about 5,000 nangs.

31As an aside, I note nitrous oxide is a gas that when inhaled can cause laughter in fits, shortage for air, sound distortions, blurred vision, loss of coordination and gives a short but very intense high.  It has been used as an anaesthetic for about 140 years.  Nangs are 25 grams in weight and can cause acute asphyxiation due to hypoxia, sudden cardiac arrythmia.  Heavy users risk psychosis, cognitive impairments, degeneration of the spinal cord, and permanent disability in young people.

32Attempted aggravated carjacking and carjacking are serious offences which are prevalent, particularly where the offender is young. The seriousness of these offences is recognised by the legislators by the provision of stern maximum sentences. Attempted aggravated carjacking carries a level 3, 20 years' maximum term of imprisonment by reason of the provisions of s32P(1A) of the Crimes Act 1958. Carjacking carries a maximum of 15 years.

33The charge of carjacking, being an offence under s79(2) of the Crimes Act is a category 2 offence and pursuant to this category, a court must impose a sentence of imprisonment without attaching a community corrections order, unless an exception is engaged provided by the provisions of s52H-2HA of the Sentencing Act 1991. I will come to whether any exception is engaged in a moment.

34It is clear from the maximum penalties and the sentencing schemes mentioned above that the law views these offences seriously.  As demonstrated in this instance, the offences committed with the aim of gaining the use of a car, for purposes of using it, and in order to secure it the offender uses force, intimidation, aggression and violence.  It is practically invariably visited upon vulnerable, unsuspecting persons who are traumatised and impacted by the violence used.

35Two victim impact statements were tendered to the court.  Michael Hindle writes that his health has deteriorated since your offending.  He finds it hard to leave his house. He had to stop work to deal with his injuries.  His mental health deteriorated and the impact of your offending was extended to his family.  His injuries to back, neck and arms are ongoing, as is their treatment.  He relies on Centrelink support, is on antidepressant medication and feels stressed by the trauma suffered. These injuries have prevented him from enjoying the activities he once did with family and friends.  He lost the car and changed the lock on his home and other car.

36Mr Lella wrote of the nightmares which beset his sleep and the emotional disturbance caused by your actions. The events left him lacking confidence and trusting meeting people, preferring to be alone. The assault upon him occurred a short time after major surgery on his neck, and as a result of the assault upon him his health has suffered and he has been unable to work as he had hoped.  He has lost weight, lost sleep, developed a chronic ulcer and has had hospital admissions. He is hypervigilant, afraid to work alone, depressed and unable to confide in others.  He has suffered financially and socially.  He lost his peace of mind and his friends.

37These are impacts typical of this kind of offending.  You have caused these consequences upon these people together with your accomplices.  The court sees these impacts upon victims every day and knows they are long lasting, very real and painful.  I take these victim statements into account.

38It was submitted on your behalf that the objective seriousness of the offending was at the lower end of the scale of offences of the kind to which you pleaded.  It was said that this was so for a number of reasons.

39It was said the offending was unsophisticated with limited preplanning, not involving serious weapons, did not result in serious injury to the victims and was not committed for financial gain, committed by immature offenders who were intoxicated and motivated to consume more drugs.

40The submissions were made based on your answers to police in the interview generally, conducted by them in relation to both incidents.  In that interview you told police that the offending was 'No one's specific idea' and that 'Everyone was just there and it happened so quick' and that it was chaotic, none of it organised and 'All over the place'.

41As to the second incident, you told police you had initially intended to steal nangs from the victims and after a wrestle with the victim it was your co-accused who ended up taking all the nangs and his car. 

42It was of note that your explanations were said during the plea by your own counsel to be unacceptable. For example, you told the police you got the keys and got in the driver's seat. I found it difficult to accept your account of the circumstances, although the answers were largely admissions by you having handed yourself in. 

43I take into account your cooperation with police.  Once you had been told that there was a warrant out for you, you went to the police station and that is to your credit.  Your explanations were characterised by your counsel as those of an immature young person who was extremely intoxicated at the time of the offending, demonstrative of unsophisticated, opportunistic actions of children seeking more drugs to use.

44I do not accept that your offending lies at the lower end of the range of seriousness for offences of this kind. 

45The point about lack of sophistication is generally applicable to most aggravated carjacking attempts and carjackings themselves. Not for that reason are they less traumatic or effective. The point about lack of sophistication goes hand in hand with violence, aggression and thuggery which characterises these offences.  It involves usually objectively vulnerable victims going about their business and entitled to expect that they will not be chased, assaulted, injured and exposed to serious danger.

46There really was no sophistication about being thrown across the road on the path of oncoming traffic. The planning might have been limited but it was sufficient to have reached an understanding as to what was to be done with the victim and his car.  It evolved as an attack in company from the door to the premises to the front yard, onto the road and into the car, with seemingly singular purpose. 

47This is reflected in the CCTV footage which I have viewed repeatedly.  The driver had been lured there and then the agreement put into action without hesitation or retreat, until the attempt miserably failed. 

48If by serious weapons it meant knives and guns, then it is true, no such weapons were involved.  However, the use of a billiard cue-like stick which you smashed over the head of the victim in the assault, is a weapon with serious potential for injury.

49Serious injury did not occur, but the victims were injured.  It is not to the point that the offences were not committed for financial gain.  Carjackings are not usually committed for money or gain.  The mischief lies elsewhere.  This lack of financial motive is not an amelioration.

50Neither is the desire to procure drugs. Placing offences on grades or ranges or categories is not only difficult and imprecise but not really helpful.  Examining what was actually done by the offender is most often the best guide to the inherent gravity of the offending.  In my view, these examples of the index offences were serious. 

51I accept you were affected by cannabis and methamphetamine and acted with others mainly younger than you for the carjacking, and others around your age for the aggravated carjacking. 

52The defence submitted that your circumstances and the circumstances prevailing in this case fell within the exception provided by s2H(e) which would result in escaping the provisions under which I must impose a sentence of imprisonment.  It relied on what was said to be the existence of substantial and compelling circumstances that are exceptional and rare, that would justify not imposing a sentence of imprisonment.

53The defence submitted that your youth, the lower objective gravity of the offending, your lengthy engagement with Youth Justice on supervised bail, your limited exposure to a custodial environment, the application of limbs 5 and 6 of Verdins, the application of Bugmy principles and your good work history while on bail, combine to meet the test outlined above.

54It should be noted at the outset of this issue, that it is clear law that this exception is a residual category of exception of limited scope, presenting a very stringent test which will not often be satisfied.[1]

[1] Farmer [2020] VSCA 140; DPP v Lombardo [2022] VSCA 204; DPP v Bowen [2021] VSCA 355;

Hudson v R [2016] VSCA 254.

55The words of the section directs the court to circumstances that are sufficiently weighty and powerful to justify not imposing a custodial sentence, and if so the circumstances are also exceptional and rare, in the sense that they are wholly outside the run of the mill factors typical of the relevant offending.

56The accumulation of detail may compel that provision as to imprisonment not to apply.  The exception follows closely the test of special reasons for not imposing mandatory minimum sentences. This test directs the court in the specific terms of s5(2HC) and (2I) to:

57regard general deterrence and denunciation as the primary sentencing purpose;

58give less weight to the offender's personal circumstances than to other matters such as the nature and gravity of the offending;

59not consider the offender's prior good character (other than a lack of previous convictions);

60the early guilty plea;

61prospects of rehabilitation;

62parity; and

63to have regard to the Parliament's intention that a custodial term should ordinarily be imposed.

64All of these matters I have considered and will return to them on determination.  Once I recite the matters which were placed before me on the plea, these matters clearly are to be either not considered in the application of the test and are not discretionary, or to be given less weight.  Nevertheless, I will outline the matters put on your behalf before explaining my decision.

65You are 19 years of age and you were 18 years and two months old at the time of the offending and you have no criminal history.  You spent 11 days by way of pre‑sentence detention and then you were bailed.  You have been on Youth Justice supervision for over 12 months.  I should clarify that at the end of the plea, I sought a pre-sentence report, that was on 24 November 2023.  The report did not reach me until 18 or 19 December 2024, the last sitting day of the legal year.  It was dated 14 December 2023.  I adjourned the sentence to 24 January 2024, but because of ill health including surgery, until today I have been unable to come back to this sentence and I apologise for the additional delay.

66You are the oldest of five children and have three older maternal half-siblings.  Your father has been not in your life since you were very young.  Nine child protection reports were made between 2005 and 2019. These concern environmental neglect, lack of supervision, alcohol abuse by your parents, lack of management of family by your mother, and a lack of engagement with support services.  Following referrals to community services, none of these reports progressed to court orders. 

67At age 14 you were often away from your home and you would use cannabis and methamphetamine with that pattern continuing until your arrest.  Since being bailed it was said you had remained 'largely abstinent from drugs'. 

68At the plea it was said you had a new relationship with a young woman who had helped you, assisted you to remain abstinent and who disagreed with drug use, however later it was said that there had been a breakdown, resulting in an intervention order and criminal damage charges.  You have at least returned to live with your mother.

69You disengaged from school at Year 8 and never returned, despite partaking in a Berry Street family reconciliation program.  While on bail you have worked with your brother as a fulltime plasterer. This was not stable in that employment, you complaining that you were not treated properly from time to time. 

70Mr Shannon McArthur, the author of the supervisor bail progress report of 23 November 2023 and the advance care manager for the Ballarat office at the Department of Justice and Community Safety was called on your plea.  He told the court that the initial assessment was in October 2022, and that he had been case manager to March 23 and then team leader up until the day of the plea on 24 November 2023. 

71He outlined the focus of the assistance offered you, such as referrals for work, prosocial activities, transport assistance, sporting activities. He said your attendance was positive with concerns from time to time.  Appointments were made with a private psychologist, Mr Toohey, from October 22 until June 23.  That was discontinued because Mr Toohey had indicated that your engagement had declined and no further services were wanted by you.

72You are now living with your mother and working with employer Mr Matthews.  I note that Mr McArthur was the author of the suitability for Youth Justice Centre order report of 14 December, which I mentioned.  I will come to that report in a moment.

73Bail progress reports of Alicia Mewett, youth justice care manager of 31 March 2023, 17 May 2023, and 29 June 2023 were tendered to the court and I have read each of them carefully together with Mr McArthur's last report of 23 November. You did not breach bail reporting conditions at that time or breached your curfew.  You attended Youth Justice appointments after work.

74Your level of engagement has decreased from time to time, particularly due to full time work but you demonstrated some increased frustration with bail requirements. 

75The defence relied on a report from general psychologist, Austin Campbell dated 21 June 2023.  He wrote that as at that date you appeared to identify the relationship between use of substances and your offending and presented as motivated to address those issues and maintaining a prosocial lifestyle.

76Mr Campbell provided a family history, poor educational history and employment history.  You told him of the start of your methamphetamine use, attending school whilst substance affected as well as work. You appear to have limited insight into the impacts of your use on your mental health and functioning, which however have improved since your arrest.

77Mr Campbell completed some assessment at pp6 and 7 of his report and discussed adverse childhood experiences, symptoms of ADHD through adolescence and consistent with adult ADHD.  You did not report high levels of anxiety, depression or stress, or borderline personality disorder.

78At the time of the offending you described a severe substance use disorder.  You displayed limited empathy skills, antisocial attitudes which normalised the use of violence and offending, as problem solving strategies, which reflect disordered personality features and a predisposition to the acquisition of a number of maladaptive coping strategies. These personality features are likely to perpetuate your engagement in offending behaviour and the use of violence and aggression, in the opinion of Mr Campbell.  He recommended further personality assessments and dialectical behaviour therapy.

79The defence also raised other matters in mitigation.  Your plea of guilty, your age, your lack of criminal history, remorse, Bugmy principles, Verdins principles, and prospects of rehabilitation.

80It is important to distinguish the decision as to the test which is provided by s5H(e) and the instinctive synthesis which is adopted to weigh these matters in the sentencing exercise.  This is because of the matters I have just listed as relied on by the defence. Your youth as a personal circumstance of the offender, must be given less weight than to other matters such as the nature and gravity of the offence, and I must not have regard to your previous good character, other than an absence of previous convictions, or your early plea of guilty, or your prospects of rehabilitation.

81In the context of the determination under sub‑section 2H(e), whether there are substantial and compelling circumstances I must regard general deterrence and denunciation of your conduct as having greater importance than other purposes set out in s5(1) of the Sentencing Act.  And in this determination I must have regard to Parliament's intention that in sentencing the offender for a category 2 offence, only a sentence of imprisonment should ordinarily be made, and also whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.

82I have dealt with the proposition that the objective seriousness of the offending was at the lower end of the scale, as a matter going to the substantial and compelling circumstances that are exceptional and rare, and justifying a non-custodial order.

83The next matter was your lengthy engagement with Youth Justice in the community.  This I also considered to be a personal circumstance, which in this context, must be given less weight.  Your limited exposure to the custodial environment is part of your previous good character to which I must not have regard.

84Similarly, although I consider the limbs 5 and 6 of Verdins as enlivened by Mr Campbell's opinion, this is not a matter relevant to the test to be determined as being a personal circumstance of the offender. Similarly, the Bugmy considerations, although very relevant in the broader context of the application of sentencing principles, are not, in my view, part of the determination of the test.  Neither is your good work history while on bail, as relied on by the defence.

85Pursuant to s2(I), I must not only have regard to Parliament's intention, but the cumulative impact that the circumstances as I noted above to justify a departure from such a sentence. The test is stringent and in my view the matters raised are insufficient to overcome the high bar which the section sets.  I do not find there are substantial and compelling circumstances that are exceptional and rare, and that justify not making an order under Division 2 of part 3.  And further, I do not find that the circumstances would justify a departure from such a sentence.

86Having said that, I am conscious in this frankly difficult sentencing exercise of the provisions of s5(3), that subject to sub-sections the court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which it is imposed, and ss(4) which requires a consideration of those purposes, and whether they cannot be achieved by a sentence that does not involve the confinement of the offender.  I have given those long and anxious considerations.

87Having so determined and then forced to consider by use of instinctive synthesis all the matters put in mitigation on your behalf, the first of these is your youth which is an important consideration.  The principle as to young offenders have substantial and weighty application in your case.  When your lack of prior criminal history is added to this weighty matter of your age, a significant reduction in your sentence is warranted in order to enhance your prospects of rehabilitation, which are probably reasonable.

88I take your plea of guilty into account.  This too is a matter of some weight.  You cooperated with police by going to the local police station for interview.  Your plea has a significant utilitarian value, having spared the victims the need to attend the committal and at trial, saving the justice system time and cost.

89The plea comes at a time when the pandemic conditions still prevail to a large extent, particularly in the prison environment and in the community, with the prospect of detention a very real possibility when the plea was made.  Your plea will reduce your sentence.

90The plea is accompanied by some evidence of remorse expressed to police and to the psychologist.  Remorse in its fully formed state is a complex and profound feeling.  In your case, your disordered personality features, some antisocial attitudes and maladaptive coping strategies mean that your remorse will hopefully develop fully with time.  I accept your plea is further evidence of some remorse. 

91I accept that the matters outlined pertaining to your childhood enliven the Bugmy principles.  In this context, I read the closure summary dated 17 March 2020 carefully, the circumstances that predisposed you to the features in your personality which Mr Campbell writes about and which I have mentioned above.  I accept that to some extent the application of these principles permit me to view your moral culpability as being reduced.

92I accept that your personality structure has been impacted by your background, which connects it to your offending but the seriousness of the offences means that this reduction, in my view, is minor.

93You were aware that what you were doing was wrong.  I do not consider that the Bugmy considerations reduce or moderate greatly the sentence, as if you were suffering from a mental impairment.

94As I noted above, Mr Campbell's opinion as expressed in his report, I accept enlivens limbs 5 and 6 of the Verdins principles.  Your lack of adaptive coping strategies for managing distress and issues of managing interpersonal conflict mean that a sentence of detention may weight more heavily on you than in a person not beset by these issues.  Similarly, this may give rise to a serious risk that detention will have a significant adverse impact on your mental health, and these are weighty and mitigatory factors I take into account. 

95I accept that your lengthy engagement with Youth Justice without further serious offending or breaches of bail should stand to your credit. The supervised bail reports I have mentioned above of December 22, February 23, March, May, June and November 23 give an overview of your level of engagement, which although fluctuating from time to time, remained relatively positive particularly as to work and activities as organised by Youth Services.

96I accept that this will be your first experience of a custodial environment and this may require that exposure to reclusion at your age be moderated, particularly as your rehabilitation will be more requiring to be reliant on psychological intervention, enabling you to address underlying antisocial attitudes which perpetuate your engagement with offending behaviour, and to regulate emotions and distress, in the words of psychologist Mr Campbell.

97Due to all these factors and your age, in my view a Youth Justice Centre order is appropriate.  The requirements of general deterrence and just punishment, denunciation of your conduct requires such a disposition. I sought and obtained a report for suitability for such an order.  The report outlines your offending and particularly your explanations regarding it. 

98Mr McArthur noted your relative compliance prior to November 24th, and the observed decline of attendance and attitude after that date. 

99On November 27th you failed to appear before the Ballarat Magistrate's Court on a charge of criminal damage and a warrant was issued for your arrest. As at the date of that report, being 14 December 2023, you had still not contacted Youth Justice. Mr McArthur wrote that you met the criteria set out in s32 of the Sentencing Act.

100I mention these matters not because they aggravate your offending or should increase your sentence. It is clear that your prospects of rehabilitation however would be negatively affected should you be placed in adult custody.  An updated report dated 19 February 2024 was received by the court authored by Sarah Stephens, the advance case manager and endorsed by Mr McArthur, team leader for Ballarat Youth Justice.

101Since 19 December you attended five out of nine scheduled appointments.  Since that time, you have failed to engage with Youth Justice Community Support Services. These appointments were scheduled to allow you to engage in prosocial activities within the community. Due to your lack of engagement your referral was closed and Victoria Police confirmed you have not been attending to bail conditions since January 15th. 

102You ceased employment in November 23.  Despite this you were recently observed to re-engage each Monday afternoon however, a warrant is still outstanding.  I take these reports into account. 

103On the occasions on which date was set for sentence you failed to appear without explanation and the matters were adjourned by a week to today.

104The gravity of the offending in my view requires a period of detention which will be moderated substantially by the relevant matters I have outlined.

105On attempted aggravated carjacking you are sentenced to 24 months' detention in a Youth Justice Centre.

106On carjacking you are sentenced to 14 months' detention in a Youth Justice Centre.

107I order that six months on Charge 2 are to be served cumulatively on Charge 1, making a total effective sentence of 30 months.

108I order that you be eligible for parole after 16 months.

109I order forfeiture of the items in the Schedule thereto.

110But for your plea I would have sentenced you to 36 months with a non-parole period of 24 months.

111Are there any other orders, Mr Dober?

112MR DOBER:  Yes, Your Honour.  Just the matter of the licence disqualification, under s89(4).

113HIS HONOUR:  Is there a mandatory requirement, a minimum?

114MR DOBER: If there is a conviction it is a mandatory requirement, and if it is a finding of guilt it is a discretionary requirement.

115HIS HONOUR:  Yes.  The licences held will be cancelled and Mr Outen will be disqualified for a period of 16 months.

116MS PROUD:  Your Honour, just one query.  It is my understanding that Youth Justice Centre orders, do they require the imposition of a non-parole period?  Or is that something that is discretionary?

117HIS HONOUR:  It may be discretionary but it is an indication that I have given for the application to the Youth Parole Board, if and when that comes into being, but are you submitting that I shouldn't be ordering a non-parole period?

118MS PROUD:  My experience of these types of orders really is confined to those imposed in the Children's Court.

119HIS HONOUR:  Yes.

120MS PROUD:  I don't expect or I don't off the top of my head know of any different provisions in the Sentencing Act that require the imposition of a non-parole period.  My understanding - and maybe Mr McArthur might be able to provide some assistance in relation to this - my understanding was that the operation of a Youth Justice Centre order is really the total sentence is imposed by a court and it is then the Youth Parole Board, at their discretion, and generally that is at about 50 per cent of that sentence, they make those arrangements for youth parole and because it is such a fluid decision-making process and the work that Youth Justice do to reintegrate young people back into the community is so different to adult parole.

121HIS HONOUR:  It may be much shorter than that time, it may be longer, it depends on their own appreciation of what is happening at the time. If that helps with that particular application of parole, at the discretion of the Youth Parole Board then I will simply set the total effective sentence and I will not issue a non-parole period.  I do not know if Mr McArthur has anything to say about that or what his experiences about that, but in any event I considered that simply to be an indication.  The Parole Board can release Mr Outen long before that or at their own discretion, from my experience. I will not impose a non-parole period.

122MS PROUD:  Thank you.

123HIS HONOUR:  And leave it up to the Youth Parole Board to exercise their discretion in relation to that matter. Usually and in extremely rare and exceptional that the full time of the detention that's ordered is served, and the Parole Board applies its discretion much earlier on in the piece than that; it may do much earlier on in this case.

124MS PROUD:  As Your Honour pleases.

125HIS HONOUR:  I think I mentioned the forfeiture order.  Forfeiture orders were drafted and I have signed them for the items in the Schedules thereto.

126MR DOBER:  Yes, that's all, thank you, Your Honour.

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