Director of Public Prosecutions v Patrice
[2023] VCC 67
•27 January 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CR-22-00872; CR-22-00873
CR-22-01010; CR-22-01318
CR-22-00962
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ATALI PATRICE ADUAL MABIOR MAYEN MAYEN |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 September & 5 December 2022 | |
DATE OF SENTENCE: | 27 January 2023 | |
CASE MAY BE CITED AS: | DPP v Patrice & Ors | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 67 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Legislation Cited: Sentencing Act 1991; Road Safety Act 1986.
Cases Cited:Gommers v The Queen [2021] VSCA 258; R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; R v Azzopardi (2011) 35 VR 43; May-Jordan v The Queen [2017] VSCA 30; Byast v The Queen [2021] VSCA 344; DPP v Lombardo [2022] VSCA 204; DPP v Bowen (2021) 65 VR 385; Buckley v The Queen [2022] VSCA 138; Phillips v The Queen (2012) 37 VR 594; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen (2014) VR 308.
Sentence: PATRICE: 4 years and 10 months’ imprisonment. Non-parole period of 3 years and 6 months. Section 6AAA declaration: 6 years and 6 months’ imprisonment with a non-parole period of 5 years. Licence disqualification period of 2 years.
MABIOR: 3 years and 10 months’ imprisonment. Non-parole period of 2 years and 4 months. Section 6AAA declaration: 5 and a half years’ imprisonment with a non-parole period of 4 years. Licence disqualification period of 2 years.
MAYEN: Term of imprisonment of 295 days reckoned as served, followed by a community corrections order for 12 months (with conditions).
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr E. Dober | Office of Public Prosecutions |
| For the Accused PATRICE | Mr S. Lindner | Ann Valos Criminal Law |
| For the Accused MABIOR | Mr M. Kozlowski Mr C. Pearson Mr Z. Petric | Unite Legal |
| For the Accused MAYEN | Ms S. Buckley | Chester & Metcalfe & Co |
HIS HONOUR:
Introduction
1This offending involves five young males:
(a) Atali Patrice (born November 2002);
(b) Adual Mabior (born November 2002);
(c) Mayen Mayen (born April 2003).
(d) Eric Lloyd[1] – who was a child at the time has been dealt with in the Children’s Court. He cannot be named or otherwise identified, and he is not before me for sentence.
(e) Shawn Evans[2] – was also a child at time of his involvement in the second incident. He too has been dealt with in the Children’s Court. He cannot be named or otherwise identified, and again he is not before me for sentence.
[1]A pseudonym.
[2]A pseudonym.
2At the time of the offending both Mabior and Patrice were 19, and Mayen was aged 18. These are the offenders I am called upon to sentence.
3They have pleaded guilty to the following offences, each having been committed on 5 December 2021:
Offender Offence Maximum Patrice Charge 1:
Armed robbery (Chapman matter)Level 2
(25 years)Charge 3:
Aggravated carjacking – offensive weapon (Holt matter)Level 2
(25 years)Mabior Charge 2:
Robbery (Chapman matter)Level 4
(15 years);Charge 4:
Causing serious injury intentionally (Holt matter)
Level 3
(20 years);Charge 5:
Theft (Holt matter)Level 5
(10 years)RSO5: Commit indictable offence on bail (charge 2) 3 months’ or
30 penalty units.Mayen Charge 2: Robbery (Chapman matter) Level 4
(15 years);RSO5: Commit indictable offence on bail (charge 2) 3 months’ or 30 penalty units. Circumstances of the offending[3]
[3]Exhibit A: Amended Summary of Prosecution Opening dated 24 September 2022 (Counsel acknowledged that this was to be an agreed factual basis upon which I was to sentence all offenders).
Chapman matter
4On 4 December 2021, Muigai, aged 17, and Ahmed booked a room at the Brady Hotel in the Melbourne CBD for one night. Muigai, Ahmed and Nyemdwe arrived at the apartment at around 11 pm with five young women, and two other male friends.
5At approximately 1.45 am on 5 December 2021, the five young men went on a ‘maccas run’ and left the apartment. The five young women remained in the apartment. When Muigai, Ahmen and Nyemdwe returned to the room, two other boys were present whom Muigai did not know and had not invited: Mayen, wearing a balaclava, and Lloyd, wearing a red hoodie. Mayen and Lloyd did not introduce themselves but agreed there would not be ‘any trouble’.
6At approximately 4 am, the five girls, Mayen and Lloyd left the apartment. Around 10 minutes later, Mayen and Lloyd returned using a key card obtained from the girls and hung around speaking on their phones for a few minutes before leaving again. They returned 10 minutes later.
7At approximately 4.33 am, Mabior and Patrice entered the Brady Hotel taking the elevator to level 11. Mabior was carrying a distinctive Gucci satchel with a tiger and snake patch. Patrice was wearing a baseball cap with the letter ‘P’ on it.
8In the apartment, Muigai felt uneasy and intended to leave but heard a loud banging at the door and someone yelling, ‘Hurry up. Open the door’.
9Lloyd opened it, admitting Mabior and Patrice to the apartment without force but without invitation from Muigai.
10The four offenders (Mayen, Mabior, Patrice and Lloyd) told Muigai to come to the bathroom with them. Muigai attempted to de-escalate the situation and walked into the kitchen area of the hotel room.
11Lloyd and Patrice forced Muigai to sit down at the kitchen table. Patrice then pulled out a large machete, hidden under his waistband. He pointed it at Muigai’s neck and asked for jewellery. Muigai refused. Patrice put the machete closer to Muigai’s neck and said, ‘I don’t have to stab you. Give me your watch’.Patrice then demanded Muigai’s silver chains. When Muigai refused, Patrice yanked the necklaces. It caused them to break. Patrice and Lloyd told Muigai to take off his designer jacket and sweater. Muigai handed them over. (Charge 1: Armed Robbery – Patrice).
12One of the other offenders (who was not specified) robbed Ahmed and Nyemdwe of their jackets while threatening Ahmed with a machete.
13Lloyd then robbed Muigai of his pants and shoes, thereby stealing his phone and wallet which were in the pockets of his pants.
14The way in which the case is put against Patrice is clear, as evidenced above.
15The charges against Mabior and Mayen are put on the factual basis that they were party to the robbery, but not party to a pre-existing plan to use weapons, and they did not in fact use weapons. (Charge 2: Robbery – Mabior and Mayen).
16The four offenders entered and searched the bedroom. Muigai, Ahmed and Nyemdwe fled the apartment.
17At approximately 4.38 am, Mabior returned to the ground floor via the elevator and passed the victim’s property to the other offenders. They encountered the victims on the ground floor. Lloyd issued the threat, ‘Don’t report us or we’ll come stab you.’
18Ahmed and Muigai crossed the road and were assisted by a passer-by. The passer-by gave Muigai — who was stripped to his underpants and socks — a jacket to wear, and called the police, relaying the information to emergency services that Muigai told him he had been threatened with machetes.
19Mayen’s fingerprints had a positive match to prints lifted from the interior of the front door to the hotel room utilised by Muigai.
Holt matter
20Later that same day, some seven hours after the events I have just recited, a second, more serious episode of public violence occurred. It was nothing short of terrifying.
Motor vehicle collision – uncharged
21At approximately 2 pm on 5 December 2021, the Malamas family (father: Stavros (driver), mother: Lorenza (front passenger) and daughter: Sophia (rear passenger-side seat)) were in their Skoda Octavia.
22The Skoda was stationary at an intersection in St Albans and commenced a right-hand U-turn at the intersection. A red 2007 Holden Commodore,[4] entered the intersection against a red light, travelling in the opposite direction to the Malamas family, causing the Commodore to collide with the Skoda. It is not known who was driving the Commodore in such a dangerous way.
[4]Registered in the name of a relative of Mabior’s.
23Significant damage was caused to both vehicles and members of the public stopped to assist. Two onlookers called Triple 0. Lorenza Malamas briefly lost consciousness. All members of the Malamas family were assisted to exit their Skoda.
24Four offenders exited the Commodore: Mabior, Lloyd, Patrice and Evans.
Aggravated carjacking
25Thi Do was driving her Honda Civic in the vicinity.
26Patrice approached her vehicle, calling for help and causing her to apply the brakes. Once she slowed down, one of the other offenders stood in front of her car. They told her to get out and demanded her keys.
27Patrice produced a large knife and told Do to get out of the car or he would strike her with a machete. Evans approached the same victim with a syringe. Lloyd, Evans and Patrice opened Do’s door and dragged her from the car by her hair and shoulder.
28An onlooker photographed the moment when Evans (dressed in white), Patrice holding a machete (with P as a letter on his baseball cap) and Lloyd (with a hooded puffer jacket) pulled Do, dressed in red, from the vehicle.
29Immediately after, Patrice threatened the passenger of a nearby vehicle, a grey Toyota Hilux, with a machete. Another photograph was taken at this time. Do can been seen cowering on the ground in that second photo.
30Patrice and Evans then entered Do’s vehicle. (Charge 3: Aggravated carjacking – Patrice and Evans).
Causing serious injury intentionally
31Complainant David Crockford, 69, lived adjacent to the street. He heard the commotion of the Skoda/Commodore collision and he walked to the end of his street to see what had happened. He observed offenders walking away from the collision and bystanders yelling at them to come back. This was prior to the incident involving Do.
32Crockford called out to a nearby driver of a grey Hilux that they should ‘arrest’ the offenders.
33Mabior, accompanied by Lloyd, approached Crockford and yelled at him. Crockford pushed him away.
34Mabior punched Crockford in the face, causing a chip to his front left tooth (this is an uncharged assault – prior to the aggravated carjacking and explicitly does not form part of the factual basis making up Charge 4.)
35The altercation, if it can be called that, moved down the road towards Crockford’s house.
36Do’s stolen Honda Civic was driven down the road by Patrice, nearly hitting those involved in the altercation (this was also uncharged). The Civic stopped amidst the arguing and Lloyd and Mabior both reached the car.
37Mabior then walked behind the back of the car and began karate kicking Crockford. Crockford heard Mabior shout to one of his co-offenders, ‘Give me the knife’.
38Lloyd reached into vehicle and approached Mabior, handing him a knife.
39Patrice and Evans got into the now commandeered Honda Civic.
40Crockford ran back across the street toward the safety of his own house, pursued by Mabior.
41Mabior reached him at the footpath and began punching and stabbing him in the torso with a swinging motion. Crockford went to the ground almost immediately. (Charge 4: Causing serious injury intentionally – Mabior).
42Multiple eye-witnesses called Triple 0 at this stage. Two witnesses had video recorded parts of the incident. The prosecution played those videos at the plea hearing.[5] They give a real sense of the chaos and terror that these offenders caused.
[5]Exhibits B and C.
43Witness Henry Nguyen, who had been driving past with his girlfriend, came to Crockford’s aid in the carport and cleverly distracted Mabior by pushing over a rubbish bin so Crockford could get back onto his feet.
44Crockford and Henry ran into Crockford’s front door. Henry was able to drag Crockford into the house.
45Mabior though, still armed with the knife, attempted to open the door. Crockford and Henry were able to lock it but Mabior yelled ‘fuck you’ and kicked the door.
46Crockford’s housemate Huang Nguyen, who was at home at the time of the assault, saw Henry help Crockford inside. He called Triple 0. He could hear banging on the security door and Crockford and Henry yelling at someone to go away. That person appeared to be attempting to get inside the house.
47This part of the offending is uncharged. It is not said to constitute an attempted aggravated burglary or the like, it is simply relied on as evidence of the level of animosity exhibited by Mabior and the fact that he was utterly undeterred from his offending even once he had stabbed an unarmed man nearly 50 years his senior he was not prepared to desist.
48Patrice and Evans waited in the stolen Honda Civic with the doors open.
49Lloyd and Mabior then walked to the Honda Civic and drove off at speed, placing bystanders at risk who were standing at the original motor vehicle collision scene. (Charge 5: Theft – Mabior only). I was informed that it was the driving away of this car that constitutes theft. I do not take into account the manner of driving when sentencing on this charge.
50Mr Crockford was conveyed to the Royal Melbourne Hospital suffering life threatening injuries. Those included wounds to his arm, right rib, right armpit, and the middle of his lower back causing a pneumothorax (collapsed lung), in addition to the chipped tooth (which I repeat, Mr Mabior is not to be sentenced for).
Investigation
51On 6 December 2021, Mabior was arrested for the Holt matter at an address in Tarneit. Police seized a distinctive Gucci satchel that Mabior carried during the Chapman incident. He was wearing clothing he was seen wearing during both incidents.
52On the same day, Patrice was also arrested for the Holt matter. Police seized from his possession clothing items worn during the incidents (including the baseball cap with the letter ‘P’ on it), as well as a watch believed to have been stolen from Muigai during the Chapman incident. Patrice also had in his possession a black machete, used in the aggravated carjacking.
53On 8 December 2021, Do’s Honda Civic was located in Taylor’s Hill. CCTV footage depicts the car being parked there on the day of the offending, and the four offenders involved in the Holt incident exiting the car.
54Mayen was arrested on 26 December 2021.
55Each of these accused before me made no comment records of interview.
Chronology
56This matter has taken the following path through the criminal justice system:
| Date | Event | Relevant to offender |
| 5 December 2021 | Date of offending Approx. 4am: Chapman matter Approx. 2pm Holt matter | All |
| 6 December 2021 | Date of arrest | Mabior, Patrice |
| 8 December 2021 | Filing hearing (Holt matter) | Mabior, Patrice |
| 26 December 2021 | Date of arrest | Mayen |
| 6 February 2022 | Filing hearing (Chapman matter) | Mayen |
| 7 February 2022 | Filing hearing (Chapman matter) | Mabior, Patrice |
| 21 March 2022 | Committal mention | All |
| 21 April 2022 | Committal mention | All |
| 23 May 2022 | Committal mention Patrice committed SHUB with a plea of guilty Mayen summary jurisdiction application (refused). Committed SHUB with a plea of guilty | All |
| 8 June 2022 | Committal mention Mabior committed SHUB with a plea of guilty (Holt matter) | Mabior |
| 27 July 2022 | Committal mention Mabior committed SHUB with a plea of guilty (Chapman) | Mabior |
| 21 July 2022 | Application for bail granted | Mayen |
| 29 August 2022 | Application to revoke bail granted due to contravention of curfew condition | Mayen |
| 29 September 2022 | Plea listed Adjourned as question of fitness of Mabior was raised and another accused required further time to seek reports | All |
| 5 December 2022 | Plea Patrice: 364 days (6 December 2021 to 5 December 2022) | |
| 23 Jan 2023 | Further plea and sentence | AP – 417 days AM – 104 days MM – 293 days |
The offending
Objective gravity
57The following submissions were made by the parties about the gravity of each of the relevant offences before me, and the role that each offender played in them.
The Chapman matter
Armed robbery / robbery
58The Crown says in the case of Patrice the relevant charge is the more serious offence of armed robbery of course, reflecting as it does the use of a weapon. But the circumstances as to how the weapon was used aggravates the armed robbery. Patrice held a machete at the victim’s neck while making demands for property.
59Counsel for Patrice contended that no force was applied to enter the apartment and when a watch, jacket, sweater and a silver chain, that is items of relatively low value, were taken that must be taken into account.[6] It is conceded that a threat was implied by the presence of a machete, but it is asserted it was not used to inflict injury. On that point the Crown points to the fact Patrice first held the weapon in a threatening manner, then after the victim quite reasonably refused the demand to part with his property, Patrice decided to bring it closer to the victim’s neck just to maximise the immediacy of the danger to him.
[6]Exhibit AP-1: Outline of Plea Submissions dated 24 September 2022, 5.1.
60Patrice then took no further part in the offending. He also states it was of brief duration, with no physical injury to the victim, before he withdrew from the offending conduct. On that basis it is said that the offence is at the lower end of the scale in terms of gravity.
61I note that in the report of Ms Lechner,[7] Patrice describes being angry, Xanax affected and frustrated that his victim would not simply relinquish his property, so he took it. He took it because he did not have material things as a child, and this appeared the only way to obtain them. He claims to have had a machete with him ‘for protection’.
[7]Exhibit AP-2: Psychological Report of Carla Lechner dated 8 August 2022, p 4.
62The Crown says that the underlying robbery was also a serious example, which has equal relevance to Mabior and Mayen. The robbery involves effectively four offenders acting against a single 17-year-old victim. The number of offenders would have made the experience materially more threatening for the victim.
63The impact on the victim was made more demeaning by being forced to remove his clothes down to his underwear. That in my view was an unnecessary humiliation.
64On Mayen’s behalf, it is accepted that the episode of criminality in which he participated, in the company of his co-offenders, is self-evidently serious.[8] He pleads on a complicity basis as already outline. The impact upon the victim Mr Muigai, who was then aged 17, is also acknowledged.
[8]Exhibit MM-1: Outline of Plea Submissions dated 26 September 2022, [40] and following.
65It is not alleged Mayen had any knowledge of the presence of the weapon or of his co-offender’s intention to use same. Partially for that reason it is said that although it was not entirely spontaneous, the offending was not necessarily pre-planned.
66Mayen did not in fact possess or use the weapon at any time during the commission of the robbery and does not fall to be punished for the co-offender’s conduct with respect to the production and use of the knife to threaten the victim. He did not physically assault the victim, he did not verbally threaten him or demand anything from him. Further, he did not actually take the victim’s clothes.
67Whilst his role was describing as somewhat passive, it is clear his presence deterred the victim from resisting the other offenders, who were encouraged and emboldened to act the way they did because of strength in numbers proffered by Mayen’s complicity. The same can be said of Mabior.
68So too was the humiliation caused to Muigai who was required to flee to the street in his underwear.
69These points made by Mayen’s counsel apply equally to Mabior. Mabior professes to have very little memory of any of the offending, such was his state of substance abuse at the time.
70The fact that Mayen was the subject of bail, two Children’s Court probation orders and an adjourned undertaking is also a relevant aggravating feature.
71Mayen and Mabior both fall to be sentenced for committing an indictable offence on bail, and thus care will need to be taken to avoid doubly punishing them for that offence.
72The robbery/armed robbery offences occurred on the same day as the subsequent offending on the indictment (the Holt matter involving only two of the three accused before me).
73However, they are obviously discrete offences and discrete episodes. The sentence imposed by the Court will reflect this distinct criminality, particularly where Mabior is concerned .
The Holt matter
Aggravated carjacking
74Aggravated carjacking is an inherently very serious offence. Parliament has a special sentencing regime for this offence, and the high maximum penalty, namely 25 years, makes that clear.
75Counsel for Patrice said although the offence was committed in company and a machete was produced, the threat implied may be an aggravating feature, but the machete was not in fact used to inflict injury.
76The car was located a short time later at Taylors Hill (on CCTV) and was recovered undamaged. I presume it had served its purpose for the offenders by then.
77Patrice also relies on the purported brief duration, with no physical injury to the victim, with Patrice said to have withdrawn from the offending conduct. It is submitted these matters mean the offending falls at the lower end of the scale in terms of gravity. I simply cannot agree with that assessment.
78This example of aggravated carjacking was made all the more serious by:
(a) three offenders acting against the single victim;
(b) this was a highly vulnerable victim, a small female in her car alone, who speaks little English;
(c) there was physical force used, distinct from the mere threat of force as she was dragged from her car; and
(d) there was more than one weapon used (the machete and the syringe).
79Patrice did not go on to assault Mr Crockford personally, nor did he encourage or incite Mabior to do so. I will turn to Mabior’s distinct, discrete offending now.
Causing serious injury intentionally
80The objective seriousness of a causing injury offence is not assessed solely on the scale of the seriousness of the injury, but also the manner in which it was caused.[9] Mr Dober submits on behalf of the Director that this is a very serious example of the offence, one which calls for condign punishment.
[9]Gommers v The Queen [2021] VSCA 258, [44].
81To make it clear, this was an attack on a 69-year-old male who was trying to assist in the situation.
82Mabior had already punched the victim when he asked his co-offender for a knife. This shows both a lack of spontaneity and some degree of calculation.
83It involved stabbing the victim four times while he was fleeing from a group of offenders.
84The attack continued while the victim was on the ground, and clearly posing no threat at all to Mabior. Whilst this is not alleged formally as a circumstance of gross violence, the relatively helpless and submissive position of the victim is clearly relevant.
85The attack was only interrupted when a good Samaritan distracted Mabior. Even after the good Samaritan and the victim entered his own home, Mabior still attempted entry to the house. As I noted earlier, Mabior is not to be sentenced for that uncharged conduct. The prosecution quite rightly relies on this fact to demonstrate that the attack did not end after the victim had been stabbed and was so obviously injured, but only ended once the victim was removed from harm.
86I repeat, the victim suffered life threatening injuries and Mabior’s conduct had life changing implications for Mr Crockford that I will come to in a moment.
Theft of motor vehicle
87Mabior is not to be sentenced for aggravated carjacking. However, the circumstances of the theft of motor vehicle still make it relatively serious. The vehicle had been immobilised and the driver forcibly removed during the carjacking.
88The use of the vehicle also involved a degree of danger to bystanders, though obviously that cannot be attributable to any particular offenders in the absence of a charge against someone identified.
Victim impact
89I said earlier that Mr Crockford suffered life changing implications as a result of this offending. Others were affected by offending too.
90The victims in this matter have been provided with an opportunity to make victim impact statements.
91From the Chapman matter, Muigai said in his statement—
This has impacted my mental health, I feel like I’m scared, I’ve got anxiety and I’m sad knowing that someone can come up to you and make you get naked and be humiliated in front of everyone.[10]
[10]Statement of Muigai dated 5 December 2021 (Depositions, p 42 [31]).
92One hardly needs a victim impact statement when the Holt matter is concerned. Ordinary people, simply going about their day in suburban Melbourne were subjected to this horrifying spectacle — which begins with an extremely poor episode of driving, and then escalates into a frenetic episode of violence, the forcible removal of a woman from her own car, the menacing of another road user with a machete no less, and then ends with a cowardly attack with a knife on a man causing him life threatening injuries before those involved run away.
93Anyone who saw this would be horrified. Anyone the subject of any of the malevolent attention of any of the offenders would suffer long lasting effects. In the case of Mr Crockford that would involve both physical pain and mental reminders.
94Mr Crockford did provide a Victim Impact Statement which was accompanied by a psychological report.[11] He was so traumatised by what had happened to him he could not make a victim impact statement himself, allowing the police to use the skill and insight of his therapist and psychologist to inform the Court as to the effect the crime had on him. Counsel agreed that this was a proper way for me to be informed of that impact. In short, Mabior’s gratuitous offending has had catastrophic effects on his victim.
[11]Exhibit E: Victim Impact Statement of David Crockford dated 16 September 2022; Medical Report Complied by Karin Steinhoff dated 20 September 2022.
95Ms Steinhoff, who is Mr Crockford's therapist, notes the following:
(a) Mr Crockford presents with complex PTSD, he’s more or less living with constant state of risk, as he assesses it, danger and anxiety.
(b) He continues to experience physical pain from the assault in 2021 – an event that he understandably thought was going to kill him.
(c) He now has poor hygiene, crippling chest pain and experiences frequent panic attacks.
(d) He is isolated, he fears leaving the house. He is numb and withdrawn.
(e) When he sleeps he dreams of being murdered.
(f) He cannot cope and a once proud, independently living man struggles to cope with most aspects of his life.
(g) He has lost confidence, and feels ashamed that he could not defend himself. He still feels that his attacker and associates know where he lives and will return.
96I will say this. Mr Crockford has nothing to be ashamed of. His attacker was a fit young man more than 40 years junior to him, emboldened to do what he did with the general company that he was in company with other young men (as most cowards are), armed with a knife when Mr Crockford was not armed in any way, and was determined to assault him.
97Ms Do provided a victim impact statement.[12] That statement deals with the aftermath obviously of what one can see in the images of her being dragged from her own car, and cowering on the ground while surrounded by young men, and particularly Patrice brandishing a machete.
[12]Exhibit D: Victim Impact Statement of Thi Do dated 24 May 2022.
98She had pain, headaches and stress following these events. She had flashbacks every time she passed the street. She had nightmares and could not sleep properly.
99She was inconvenienced in really practical ways while waiting for insurance to cover her lost car. Other people had to take her children to school. She was medicated for stress. She had the locks changed in her house (presumably as the offenders when they stole her car had also stolen her home keys). She does not allow her children to play in the street any more for fear that something bad will happen to them.
100The victims in this case have conducted themselves in an extraordinary way, showing courage, resilience and importantly they have refrained from demonising any of the accused in circumstances where it would be very easy for them to do so. They are remarkable, decent people who did not deserve to be treated the way they were.
101The effects of these crimes on those unfortunate enough to encounter all three of you in December 2021 cannot be overstated.
102I will turn now to matters personal to each of the accused. I will start with Patrice.
Matters personal to each accused
Patrice
103Patrice was born on 17 November 2002 in a refugee camp in Egypt, the second son of Rose Luang and John Patrice, who both fled the war in Sudan. When he was about four in 2006, his family settled in Australia namely Sunshine, where he attended primary school. He is an Australian citizen.
104He was 19 at the time of the offending and is still only 20.
105He is one a of sibship of six — he has an elder brother, younger brother, a half-brother and three younger sisters
106Throughout his childhood he witnessed and experienced sustained domestic violence perpetrated by his father against his mother, himself and siblings. Family Violence Intervention Orders were imposed in the past.
107In 2011 when aged just nine his parents separated, with all the children remaining with his mother, and they moved to temporary housing provided by Salvation Army, then to permanent housing in Sunshine.
108His father had intermittent involvement in his life from that point until 2020, with Child Protection being involved multiple times.
109In May 2021, the family moved to Meadow Heights.
110His mother thankfully remains supportive and would ideally like him to return to the family home.
111He completed Year 10 at Salesian, and was recorded as having failed, but having some success in sport.
112His education was interrupted due to disruption at home, youth justice detention and imprisonment. Most recently he has been attending classes, most through Parkville College, attempting Years 11 and 12 VCAL under Youth Justice and O‑Street.[13]
[13]The remarkable support service offered to young people exiting custody and returning to the community. See Letter of support from Mr Stirling at O-Street (Exhibit AP-6).
113The reference of Mr Stirling from O-Street is very hard for me to reconcile with the offender before me. Mr Stirling describes a respectful and mature young man, full of patience and brimming with leadership qualities in many contexts, but most notably in sport.
114Patrice has participated in TAFE building and construction courses, but has not completed them yet. He does hope to return to them. He is described elsewhere in the material as a young man keen to return to his education.[14]
[14]Notes in LEAP Criminal Record (24 September 2018 and 19 October 2021).
115He has had sporadic work experience as a general labourer on a building site. One would hope for more for Mr Patrice, particularly given the personal qualities that I have just referred to.
Alcohol and drug history
116Patrice experimented smoking cannabis at 14–16 years of age and engaged in occasional ecstasy and MDMA use. In a troubling theme that is common to all offenders before me, Patrice has been an active, regular user of Xanax (benzodiazepine) using five to six tablets in a day, and up to six to seven prior to the offending. Such drug use is connected with the present offending. I note in this case (as it is with all accused) this issue of benzodiazepine misuse was raised to contextualise the offending, and not excuse it. I consider it that way.
Prior criminal history
117Patrice’s criminal history commenced relatively late, it commenced in 2018., but since that time he has since accumulated seven prior Court appearances between then and November 2021.
118All of his prior appearances have been before the Children’s Court or Magistrates’ Court. It is true to say he has no prior convictions for armed robbery or aggravated carjacking for instance, but he does have a troubling history already of false imprisonment, affray, robbery, recklessly causing injury, various assaults, dishonesty offences, breaching Youth Supervision Orders and breaching bail.
119In 2019, he was sentenced to YJC for 18 months for violent and other offences.
120In October 2021, he was sentenced to 167 days' adult imprisonment, followed by a 12 month community corrections order. A month later, he was dealt with in the Children’s’ Court for dishonesty, violent and driving offences by way of a four-month youth attendance order with conditions. Within only three weeks of the latter, he committed the present offending, breaching both the youth attendance order and the community corrections order.
Verdins[15]
[15]R v Verdins (2007) 16 VR 269 (‘Verdins’).
121Ms Lechner says he is a young man who has a lower-than-average cognition. He has also attracted diagnoses of clinical depression; and trauma in the form of PTSD because of the family violence he witnessed and endured, and the transgenerational trauma in respect of the history of his parents who were exposed to unspeakable violence in their homeland.
122The report of Dr O’Meara,[16] says that he is not psychotic, that he has an IQ mildly below that of his peers, but does have a language development disorder that has a secondary impact on other cognitive functions. This affects the way in which he understands nuances in languages and the like and can lead to frustration in expressing himself and increase the risk of him responding physically to situations and stressors. Nothing was advanced understandably to link same with the offending.
[16]Exhibit AP-5: Neuropsychological Report of Rachel O’Meara dated 30 September 2022, p 12.
123Ms Cidoni,[17] and O’Meara tend to agree that there are features of this young man that will make time in custody more burdensome especially when it comes to being misperceived as being arrogant or uncooperative or making it easier to be misled or influenced. Part of this, of course, relates to his age and his comparative lack of maturity. I note that he expressly disavowed symptoms of PTSD to O’Meara.
[17]Exhibit AP-4: Psychological Report of Gina Cidoni dated 16 October 2021, [61].
124The prosecution concedes some of the applications of Verdins 5 insofar as Patrice’s language disorder may make certain aspects of the prison environment more difficult than a person of typical intellect.[18] The Court does not have an evidentiary basis to conclude that he is currently experiencing PTSD.[19] I agree.
[18]Exhibit AP-5: Neuropsychological Report of Rachel O’Meara dated 30 September 2022, p 13.
[19]Ibid, pp 12–13; Exhibit AP-2: Psychological Report of Carla Lechner dated 8 August 2022, p 7.
125The prosecution does not understand there is an evidentiary basis for me to conclude that there is a serious risk that imprisonment will have a significantly adverse impact on his mental health especially, and I agree with that proposition as well.
Bugmy[20]
[20]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
126The application of the principles in Bugmy, though, is an entirely different question. A distressing picture is painted in the very first comments by Ms Cidoni at page 3, paragraph [28] of her report regarding no less than nine reports to Child Protection in 10 years, specifically about environmental neglect, parenting capacity and lack of supervision of Patrice and his siblings.
127This is built on in the following remarks found in the opening portion of the report of Ms Lechner that I will read into the transcript:
Atali has a prior history of offending, including matters of violence. This seems to have arisen in the context of a number of intersecting factors, including exposure to family violence that has resulted in his own difficulties with managing angry impulses and a sense of insecurity whilst growing up, learning difficulties with associated frustration, and association with similarly disengaged youths. Atali has a strong sense of deprivation, both emotional and material, that he reports is also present within his peer network.
Atali has previously been diagnosed with Post-Traumatic Stress Disorder (DSM 5-TR). It is likely that he suffered trauma in respect of the family violence he witnessed and endured, and a degree of transgenerational trauma in respect of the histories of his parents who were exposed to violence in their homeland. He is reporting symptoms of depression and anxiety at a 'mild/moderate' level; at times he has 'self-medicated' with Xanax to block out his psychological distress.
Atali's offending behaviour is group-related and regarded as the 'norm' for his social network. Whilst he understands that such behaviour is not acceptable, he has limited insight regarding the impact of such behaviour on victims and continues to have strong peer group loyalty despite the impact on his personal circumstances (for example, incarceration). Atali, especially given his very young age and psychosocial immaturity, would benefit from intensive therapeutic intervention, such as the Adolescent Violence Intervention Program conducted in youth facilities.[21]
[21]Exhibit AP-2: Psychological Report of Carla Lechner dated 8 August 2022, p 1.
128The High Court in Bugmy, especially the majority (constituted by French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) considered the law providing for mitigation in circumstances where a prisoner has a deprived background. The experience of growing up in an environment surrounded by alcohol abuse and or violence may leave its mark on a person throughout their life. Amongst other things, a background of that kind may compromise the person’s capacity to mature and learn from life experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person may have a long history of offending.
129Because the effects of profound deprivation in childhood do not diminish over time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every decision. However, this does not suggest that an offender’s deprived background always has the same mitigatory relevance for all of the purposes of punishment.
130Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration, for instance, may increase the importance of protecting the community.
131The Crown accept that childhood deprivation always has application when sentencing. They though place emphasis on the fact that where moral culpability might be reduced, sometimes the need for community protection is increased.
132In the case of Patrice I will give that deprivation due weight. The balance will be struck between reducing his culpability because of the way that he was formed, the way that he was shaped by his childhood experiences, but I will not ignore the way that in some aspects those experiences have created a relatively dangerous young man that the community needs protection from.
133This aspect of the sentencing calculus is to be combined with many other factors, including youth.
Youth
134Patrice (as is his co-accused) is a ‘young offender’ within the meaning of the Act.
135Counsel submitted rightly that the principles in R v Azzopardi[22] are highly relevant in this case (even after considering the offending and his history in the lower courts). Specifically, it was submitted that:
(a) Youth should be a primary or very significant consideration;
(b) As a youthful offender, extended periods in adult imprisonment should be avoided; and
(c) His youth ought to be considered as lessening the weight attributable to the principles of general and specific deterrence.
[22](2011) 35 VR 43 (‘Azzopardi’).
136I agree that youth causes rehabilitation to assume real prominence in the sentencing equation. The Court of Appeal in Azzopardi identified three considerations which underlie the primacy given to an offender’s youth as a sentencing consideration:
(a) Young offenders, being immature, ‘are more prone to make ill-considered or rash choices’. They ‘may lack the degree of insight, judgment and self‑control’ possessed by a more mature adult. They may not ‘fully appreciate the nature, seriousness and consequences of their criminal conduct’.
(b) Courts recognise the potential for young offenders to be redeemed and rehabilitated.
(c) Incarceration of a young person for an extended period in an adult prison might be counterproductive through the antisocial influences of fellow prisoners.
137As I alluded to earlier, I am well aware that I am sentencing a very young man, who has been shaped adversely by his very recent difficult upbringing.
138I need to consider the proper approach with respect to the issue of youth (for all accused here. I have received guidance in the form of the Court of Appeal in May-Jordan v The Queen,[23] where the Court of Appeal heard a sentence appeal in circumstances not dissimilar to Mabior’s. In discussing youth, the Court said:
it is still true that the very serious nature of the offence is a matter that may lessen the impact of the offender’s youth in determining the sentence that may be imposed. It is not that youthfulness is disregarded. Rather, it is simply that other sentencing considerations may weigh more heavily in the particular circumstances of the case. In this regard, the judge having referred to the matters raised in Azzopardi said:
Your youth is not unimportant, I do not ignore it, I bear it constantly in mind. However, you have committed a serious offence, intentionally causing serious injury, and you have done so in the context of having a relevant criminal history and I must necessarily attach less weight to your youth and rehabilitation in all of the circumstances of this case. Other sentencing factors must also be given greater weight and your counsel concedes that. She concedes the prevalence of the carriage of knives by young people in this community, and you both carried and used one in a most startling fashion. I do not lose sight of your youth but I am afraid it is not the only matter that I have to consider. Far from it.
We detect no error on the judge’s part. General deterrence had to weigh more heavily in the sentencing exercise in this case than it might in others. It is very concerning that young people in the Latrobe Valley think that it is normal and acceptable to carry a knife with the possibility that it may be used to attack another human being. It is not. It is important that young people in that community know that it is not. One way of bringing this home to the community is to pay sufficient regard to general deterrence as a sentencing consideration. Of course that is not to say that it entitled the judge to ignore the applicant’s youth. But as the passage set out above discloses, he did not do that.
We would reject the applicant’s submission that it is only where the offence is both particularly serious and persistent that an offender’s youth does not apply in the same way that it would in other cases. In fact, in our view, the offender’s youth will always be an important factor; but its importance and force cannot help but be affected by other sentencing considerations which are likely to include either the seriousness of the offending or its persistence or both.[24]
[23][2017] VSCA 30, which was referred to by the Crown in part as an example of current sentencing practices. It has limited utility in that sense, but I have read it.
[24]Ibid [37]–[39] (footnotes omitted).
Prospects
139Despite Mr Patrice’s youth, and the relative recency of his criminality, I am very troubled by the persistence of his offending that has apparently escalated in gravity. I do not find his prospects of reform at present particularly favourable.
Mabior
140Mabior is 19. He was born in Egypt, to South Sudanese parents. His parents had also escaped the war. He is an Australian citizen.
141He has three biological brothers in their 20s and a younger maternal sister who is eight, from his mother’s present relationship.
142When Mr Mabior was two years his family migrated to Australia, first settling in New South Wales and then when he was 15 moving to Melbourne.
143His mother re-partnered when Mabior was a child, and he was raised by his mother and his stepfather.
144He attended two primary schools and two secondary schools. During his school years, the family relocated from Sydney to Orange. This was a difficult for him, and it was extremely socially isolating. There were few people of his background in Orange, a small country community, and he was finding it difficult to find a peer group. He did experience a degree of racism whilst there.
145When he was 15 his family moved to Melbourne. At this point, he stopped attending school for a year in order to assist his mother in looking after his younger sister so as to allow his mother to continue working and supporting the family. He then returned to school the following year (in year 9) and then exited the education system altogether.
146Following his exit from school, he commenced a plumbing pre-apprenticeship at TAFE. It is during this time he became involved in criminal offending and was remanded in juvenile detention. He ended up completing one day of an apprenticeship prior to being remanded. He has not recommenced any educational courses since.
147I am told that his ambition is to be a professional musician. I am told he is quite talented in creating and performing music. Prior to his current remand, he had been recording music in a studio with friends.
148He has had only one significant romantic relationship which lasted for two years and ended in August of last year, due to his partner’s disapproval of his drug use and criminal behaviour. This has affected him quite significantly and did become for some time something of a motivating factor for him to change.
Substance use
149Like his co-accused, substance use is particularly relevant to the offending in this case.
150Mabior began using cannabis daily and Xanax occasionally at the age of 15, when he came to Melbourne.
151By the age of 16, he began using alcohol on a regular basis. This began as occasional drinking, mostly in social settings, and on weekends. Following his most recent release from custody, his drinking escalated to something more frequent.
152At the time of the offending, he was using cannabis heavily. He was affected by alcohol and I am told cocaine, having consumed both over a period of days preceding the offending.
Mental Health
Ms Ferrari
153By way of mental health background, he has been assessed by Ms Carla Ferrari, forensic psychologist, who assessed him as having symptoms of persistent depressive disorder with current major depressive episode.
154She also commented that his depressive disorder is relevant to his offending behaviour. She opined that:
Whilst depression in itself does not directly cause an individual to offend or to behave violently, various studies indicate that mood states other than sadness, such as irritability and anger, exist in subjects with depressive symptoms. When irritability and anger are present during an episode of major depression, these symptoms appear to be clinical markers for a significantly more complex, chronic, and severe forms of major depressive disorder, as was relevant to Mr Mabior’s case.[25]
[25]Exhibit AM-3: Psychological Report of Carla Ferrari dated 6 September 2022, [84].
155Ms Ferrari found that Mr Mabior’s depression disorder is likely to result in a heavier burden of imprisonment than that which he would have faced had he not had the disorder and that his mental health condition is likely to be exacerbated by the prison environment.
156Further, she opines that his persistent depressive disorder is likely to be exacerbated within prison; his impairment in emotional regulation can cause undue distress and might place him at increased risk of further emotional deterioration in view of his low coping resources. Moreover, his presentation suggests reduced cognitive functioning, making him more vulnerable to being taken advantage of and exploited by other offenders, and he is particularly more likely to be easily influenced or coerced into complying with demands. These factors it was said result in Mr Mabior being subject to a substantially and materially greater than ordinary burden and it is considered that imprisonment would likely weigh more heavily on him.[26].
[26]Ibid [101].
Mr Staios
157In order to explore the issue of reduced cognitive functioning, a report was obtained by Mr Staios. On 27 October, 2022 he was assessed by neuropsychologist Mr Staios and his report was tendered at the plea.
158Following testing, Mr Staios found the accused had an intellectual developmental disorder.[27]
[27]Exhibit AM-6: Neuropsychological Assessment Report of Mathew Staios dated 29 November 2022, [7.1].
159Specifically, that opinion is expressed in this way:
Mr Mabior’s offending appears to have arisen in the context of learning difficulties in early childhood, limited social outlets, and persistent bullying, resulting in the genesis of a low self-esteem, an unstable self-image, and periods of depression. These issues appear to have led Mr Mabior to seek out the company of peers who display similar psychosocial vulnerabilities and conduct behaviours at a time when he was vulnerable to negative influences, leading to the integration of antisocial values into his personality structure. These aforementioned issues, in combination with a concrete thinking style and limited understanding of social norms, are likely to result in a reduced ability to monitor his actions and respond appropriately, rely on consequential and alternative thinking skills, and effectively monitor his behaviours without support. The impact of substance use is a factor that has likely served to further impact on his limited cognitive skills and in instances where he is acutely intoxicated, his capacity to regulate his behaviours and exercise consequential thinking is likely to be overall impacted. Overall, a combination of these factors leave Mr Mabior vulnerable to the influence of negative peer influences and increase his risk of offending behaviour.[28]
[28]Ibid [7.3].
160Mr Staios also expresses the opinion that, given the concatenation of the mental state features that are known, this accused is likely to be adversely affected by older individuals within a custodial setting.[29]
[29]Ibid [7.4].
161It was submitted on behalf of Mr Mabior by Mr Pearson that when the mental state features are looked at through the prism of Verdins considerations, it was submitted as follows:
(a) In relation to a reduction in the accused’s moral culpability for the offence, it is submitted that it is open to the Court to draw a causal connection between his mental state and the offending, such that his mental state does in fact affect the weight to be given to just punishment and denunciation as purposes of sentencing the accused.
(b) In relation to whether the mental state of the accused influences the type of sentence that should be imposed and the conditions in which the sentence could be served, it is submitted that confinement within a Youth Justice Centre should be preferred to adult imprisonment.
(c) While it was not be submitted that the mental state of the accused is so stark as to eliminate altogether the principles of deterrence — both specific and general — it was submitted that it would be open for me to reduce the weight to be given to deterrence as a purpose of sentencing.
(d) It is submitted that the mental state of the accused does cause an increase in the hardship that he will experience in prison.
(e) It is also submitted that the mental state of the accused is such as to justify a less severe sentence, because there is in fact a serious risk that imprisonment will have a significant adverse effect on his mental health.
162The Crown responds in the following way.
163Mr Mabior’s mental health is relevant to understanding his background, of course, and it is open for me to find that limbs 5 and 6 of Verdins may have some application. I do make that finding.
164However, the Crown contends limbs 1, 2 and 3 are not made out.
165A causal link between a mental illness and the offending is required to enliven these limbs as the Court of Appeal held last year in Byast v The Queen:[30]
As to the appellant’s mental state, the Verdins principles rest on the notion that an impairment of mental functioning may so distort a person’s decision-making, or affect their ability to exercise appropriate self-control, that the resulting criminal conduct is — to that extent — to be regarded as involuntary. Where that is established, the sentencing court may view the offender’s moral culpability and the need for specific (and general) deterrence as reduced.[31]
[30][2021] VSCA 344.
[31]Ibid [5].
166With respect to the persistent depressive disorder, the paragraph of Ms Ferrari’s report relied upon by Mabior,[32] establishes that there is no direct causal link between the offending and the depressive symptoms.
[32]Exhibit AM-3: Psychological Report of Carla Ferrari dated 6 September 2022, [84].
167Even if I was so satisfied the diagnosed depressive disorder contributed to the offending in some limited way, Verdins is not engaged because Mabior had previously undertaken treatment for that condition and decided not to continue or pursue with such treatment.[33]
[33]Byast v The Queen [2021] VSCA 344, [6]. See Exhibit AM-3: Psychological Report of Carla Ferrari dated 6 September 2022, [33], [55], [40], [42].
168With respect to the intellectual development disorder, paragraph 83 of Ms Ferrari’s report, which was also relied on, refers to intellectual disability, though not by way of formal diagnosis.
169The report of Mr Staios does identify a cognitive profile consistent with a diagnosis of intellectual development disorder.[34] While it identifies that disorder as a context for Mabior developing negative peer influences, no causative link is drawn between the intellectual development disorder and the offending before the Court.
[34]Exhibit AM-6: Neuropsychological Assessment Report of Mathew Staios dated 29 November 2022, [7.1].
170Even if the intellectual development disorder could be said to engage limbs 1 to 3 inclusive, the extent of its contribution must be viewed as limited. The better explanation for Mabior’s offending is in part alcohol and drug use, informed by the way he was shaped and the negative peer influences that surrounded him.[35]
[35]Ibid [7.3]; Exhibit AM-3: Psychological Report of Carla Ferrari dated 6 September 2022, [33], [55], [59].
171Reports have a number of limitations. I have been invited to disregard paragraphs 96, 98, 99, 102 and 103, for instance, of Ms Ferrari’s report as being irrelevant or outside the scope of expertise. I tend to agree.
172Similarly, the report of Mr Staios at 7.4 is of limited utility and I find it very difficult to have any regard to it at all.
Remand and other sentences
173Mr Mabior served a sentence of 15 months originally with a non-parole period of nine months on 19 April 2022 with 225 days of pre-sentence detention reckoned. That was imposed in the Magistrates’ Court for offences of robbery x 2, theft of motor vehicle, recklessly causing injury, affray and breach of bail.
174He served the entirety of the head sentence in that case, expiring on 14 October 2022. There was a period of time when he was remanded both for this matter and the summary matter, that being the period from 6 December 2021 to 19 April 2022.
175I will have regard to the principle of totality when sentencing.
176Since his remand, Mr Mabior has been moved between prisons Ravenhall and Barwon.
177He has been experiencing some loneliness while in custody. I am told that he has not formed any friendships with any of the other prisoners.
178He has been modestly working, putting out rubbish bins and the like, as well as working on his music.
179He has enrolled in a drug and alcohol course but has not been able to commence it, due to it being discontinued.
180I am reminded that particularly during the earlier part of his remand, Mr Mabior, as so many prisoners were, was subjected to a number of COVID-related lockdowns, related to prison management. I will refer to this in due course.
Assessment for YJC
181I was urged to have Mr Mabior assessed for YJC on 5 December 2022. I was mindful that the plea from his counsel had not been fully developed yet from the written submissions already filed on his behalf at that point. I do pause to note the written submissions were detailed and adopted by his counsel.
182I had Mabior assessed and received into evidence the report of Ms Quick from the Department of Justice on 17 January 2023.[36] It was a comprehensive report though it does not make particularly optimistic reading.
[36]Exhibit AM-10: YJC Assessment Report dated 17 January 2023.
183Mabior has limited insight about the role that peers play in his offending. He works with a small number of associates, he has a number of associates in a very small group of prisoners as friends and refused to engage in educational opportunities. He was engaged in two episodes that can neutrally be put as violent in nature while in custody already, necessitating a move to Barwon prison. He expresses superficial motivation to engage in services and has been resistant to engage in programs designed to reduce re-offending and has often disengaged from same in the community, with the exception of his commitment to the remarkable programs seen to be offered by O-Street. He expresses dismay at the effort required to be found suitable for YJC and would not have bothered had he known this beforehand. He wishes rather optimistically to be released from custody without conditions, rather than comply with conditions of parole post release.
184He was found, not unsurprisingly, unsuitable for YJC. His prospects are to be measured against a fairly consistent pattern of offending from adolescence until now, breaching conditions of previously imposed orders that were designed to assist him and the view he regrettably expresses about engaging in interventions only when forced to which is likely to be counterproductive.
185Further, he is not particularly impressionable or vulnerable. At 19, he is at Barwon and does not appear to be the subject of bullying or the like.
186The report from Ms Quick ends with this conclusion:
In consideration of all the relevant factors, it is the assessment of Youth Justice that Mr Mabior is not particularly impressionable, immature, or likely to be subject to undesirable influences in an adult prison. In light of his historic disengagement with services and lack of motivation to comply to possible conditions imposed to increase his prospects of rehabilitation, Youth Justice assesses that Mr Mabior's prospects for rehabilitation are poor at the time. He has returned to custody shortly after release on a number of occasions and has engaged in violent incidents while previously in a Youth Justice Centre.
Given his age and network of peers currently in Youth Justice Centres, it is assessed that a transfer to a Youth Justice Centre would be disruptive for Mr Mabior and escalate his risk by continuing his engagement with anti-social peers. Based on his previous behaviours, it seems likely he would engage in further incidents, as he would be associating with young people of lower age and maturity to himself, some of whom he has significant relationships with. In terms of rehabilitation, Mr Mabior would have access to similar programs in an adult prison which can foster his motivation for employment and it is assessed that he may be more responsive to the maturity, structure and routine offered in adult facilities.[37]
[37]Ibid p 7.
187Met with the above findings, his counsel noted in writing that I ought to be aware, and I am, that the accused is still a young man — now 20 year of age, and 19 at the time of the offending — from a disadvantaged background and with an intellectual developmental disorder.[38] There is a good level of both immaturity and bravado in his interactions with Youth Justice.
[38]Exhibit AM-11: Third Outline of Submissions for Plea dated 20 January 2023.
188Notwithstanding the contents of the report, it remains the defence position that all the sentencing purposes would be best met by the imposition of a period of detention within a YJC. In the event that the self-discipline and behaviour of the accused deteriorates in YJC, it would be open to the Youth Parole Board to transfer him into adult custody to serve out the unexpired portion of his sentence there.
189Implicit in this submission was the claim that two of the relevant exceptions under s 5(2)(h) of the Act apply — namely sub-s(c)(i) an (e).
190For the first of these exceptions under (c)(i) to be established the offender must prove on the balance of probabilities that he had at the time of the commission of the offence an impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces his culpability.
191Mr Petric relied on the diagnosis proffered by Mr Staios at 7.1 of his report, namely Mr Mabior suffers from an intellectual developmental disorder. The argument was advanced that these particular vulnerabilities contributed to his risk of committing offences of the kind before me and to that extent I could be satisfied of the relevant causality.
192Mr Dober responded that for the same arguments advanced by the prosecution in respect of the causation aspect in Verdins, questions of causation are rather undermined by Mr Staios when one reads his further opinion at 7.3 of his report where the myriad of factors, not least of all relates to prodigious substance abuse, contributes to the instant offending. I agree with the submission that Mr Mabior's functioning is an important and informative contextual matter for me to understand when sentencing him, but the existence of a disorder as described by Mr Staios does not rise to a sufficient level to meet this exception.
193In order for the second exception relied on to be made out there must be substantial and compelling circumstances that are exceptional and rare and justify not making an order for a term of imprisonment. This requirement places no onus on the offender. The engagement of this exception requires me to consider the circumstances relied on and to make an evaluative judgment as to the significance of those circumstances.
194I was referred to the recent decision of our Court of Appeal in DPP v Lombardo [2022] VSCA 204 which provides much assistance to a judge undertaking the task that I am required to undertake. The inquiry has two steps. First, the court must identify whether there are substantial and compelling circumstances. Those circumstances must be weighty and forceful or powerful. The issue is whether the circumstances are substantial and compelling such as to justify not imposing a term of adult imprisonment.
195The second step only arises if the circumstances are substantial and compelling in the way that I have just described. This further layer of analysis requires consideration as to whether the circumstances are exceptional and rare. This composite phrase imposes effectively a single test. The circumstances must be wholly outside the ordinary factors typical of the relevant offence.
196Applying these two steps of analysis calls for me to make an evaluative judgement of the relevant underlying facts. It is common ground that a set of circumstances might answer the description exceptional and rare even if they are wholly or relatively common.
197I note there are further considerations articulated in the Act that I am specifically directed to consider
(a) I must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in s 5(1); and
(b) I must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence.
198There are other factors I cannot explicitly have regard to, namely the defendant’s previous good character if he has one, an early plea if there was one, their prospects for reform or parity. Overall I must have regard to Parliament’s intention that in sentencing an offender for a category two offence ordinarily a custodial sentence ought be made.
199Mr Petric relied naturally on a combination of factors to make good this exception. He relied on the significant degree of immaturity of Mr Mabior, his intellectual deficits and the difficult background he had in meeting this test.
200Mr Dober observes that this test is now understood to be nearly impossible to satisfy.[39] When one looks at the remarkable features called on in aid in mitigation in Lombardo, where the Court found that in combination the circumstances were substantial and compelling, but not exceptional and rare, that is a point well made.
[39]DPP v Bowen (2021) 65 VR 385, [11]; Buckley v The Queen [2022] VSCA 138, [44].
201In this case, I do not find ether singularly or in combination that the circumstances of Mr Mabior and his offending are substantial or compelling, nor do I find they are exceptional and rare such that they justify not making an order for a term of imprisonment.
202In any event, there are further barriers to me imposing a YJC sentence. The relevant circumstances for imposing such an order tell against it:
(a) Nature of the offence: The example of causing serious injury intentionally is too serious and the four-year restraint for sentencing on a youth justice centre order is insufficient.
(b) Age, character and past history of the young offender: The accused is now 20, he is at the upper end of an age where he can be placed on such an order. He has extensive priors, including for robbery, attempted robbery breaching supervision orders imposed in the youth justice system. The current offending also breached a youth supervision order (which had been imposed for a robbery). He was assessed by Ms Ferrari as a high risk of general recidivism.
(c) Youth Justice report: In the report dated 17 January 2023, he has been assessed as unsuitable for a such an order. The reasons are clearly articulated in the report.
203Those were the arguments advanced on behalf of the Crown as to why YJC was not appropriate. I pause to note the first part of the argument, the four-year restraint, is not a particularly compelling in these circumstances and there are other reasons why I decline to impose a YJC sentence.
204It was argued alternatively in the event that a head sentence or minimum term of imprisonment had to be imposed, it was advanced on behalf of Mr Mabior that:
(a) Such a term of imprisonment should be moderated in order to reflect the features in mitigation, being principally his youth, disadvantaged upbringing and mental state consideration surrounding him; and
(b) Despite protestations that the accused will not apply for parole, I should provide for a proportionately shorter minimum term than might usually be the case, on the score of best promoting the prospects of rehabilitation of the accused.
205The prosecution emphasised their submission that the Court should impose a head sentence and non-parole period on Mr Mabior.[40]
[40]Exhibit F: Prosecution Submissions on Sentence dated 2 December 2022, p 6.
206In addition to other important sentencing purposes, one cannot lose sight of the role that specific deterrence must play in sentencing Mr Mabior. This is because:
(a) the current offending breached a youth supervision order, which itself was for a robbery;
(b) he has priors for breaching other court orders; and
(c) a relevant and recent prior criminal history.
207Mr Mabior’s prospects at present are in my view poor unless and until he makes a sustained effort with tailor-made supports in order to live in the community lawfully and safely.
208Protection of the community looms large, given the need for specific deterrence and Mabior’s high risk of re-offending.[41]
[41] Exhibit AM-3: Psychological Report of Carla Ferrari dated 6 September 2022, [93].
Mayen
209Mayen is still only 19 years old, having been born on 18 April 2003.
210He was born in Australia to South Sudanese parents. He has three siblings and two half-siblings on his mother’s side.
211Mr Mayen’s parents separated more than a decade ago. His mother relocated to Perth earlier this year whilst Mr Mayen was remanded in relation to this matter.
212He has one older brother, Daniel, aged 26 who is a youth worker at Ability Assist. He has an older sister, Arob who is 23, and a younger sister Nyandeng, who is 16. Arob works in a warehouse and Nyandeng attends a secondary school locally.
213Mayen’s father, Matthew, works in a meat factory in Brookland and lives in St Albans with his daughters.
214Mayen has maintained a close relationship with both of his parents since their separation and he retains thankfully their love and support. He is close with a number of siblings and a number of his cousins.
215He returned to the family home having been bailed prior to sentence today.
216He resides in a studio effectively at the rear of his family’s property that was constructed in June 2022 with the assistance of the ‘Kids Under Cover’ program, organised through Youth Justice.[42]
[42] Exhibit MM-8: Reference of Sam Woollard dated 20 July 2022.
Education and vocational history
217At the age of 15, he began working at a cafe as a kitchen hand preparing desserts.
218In 2019, he completed Year 10 at Catholic Regional College in St Albans.
219He continued to work in the cafe for approximately four months after he left school.
220He ceased work at the onset of the pandemic, and began receiving Youth Allowance benefits.
221He, too, benefited from the remarkable program offer by O-Street Flexible Learning Centre and continues where he can to engage with that service.
222In 2021, he commenced VCAL. He is yet to obtain his VCAL certificate, his progress as such being interrupted by periods on remand.
223One of Mr Mayen’s goals is to complete a Certificate IV in Music Industry at Box Hill. He has ambitions to pursue a career in music production and engineering and has been described as ‘quite gifted’ in this area.[43] He considers music to be therapeutic.
[43]Exhibit MM-3: CISP Suitability Report dated 15 July 2022, p 2 [4].
224Encouragingly, during the period on bail from 21 July 2022 he recorded a song at O- Street and was described as having continued to engage positively with their program.[44] Relevantly, Mr Mayen’s social worker, Cara Morrissy, observed the following:
Mayen has a very strong, secure relationships with staff and students alike and presents as a warm, mature, respectful and engaged person. Having known Mayen since August 2020, I can attest to his capacity for self-reflection and his high level of insight and maturity, which belies his age. Mayen is a highly capable and articulate young person, with sophisticated writing skills. This skill set is a strong foundation for Mr Mayen to build upon.[45]
[44]Exhibit MM-5: Reference of Cara Morrissy dated 26 August 2022; Exhibit MM-6: Reference of Cara Morrissy dated 3 August 2022.
[45]Exhibit MM-5: Reference of Cara Morrissy dated 26 August 2022, p 2 at [3].
Mental health
225Diagnostically speaking, Mr Mayen meets the criteria for post-traumatic stress disorder, moderate depressive episode and recurrent depressive disorder.[46]
[46]Exhibit MM-2: Forensicare RAPID Check dated 12 July 2022.
226He is reported to become withdrawn when discussing his diagnoses, mental health needs and past experiences.[47]
[47]Exhibit MM-3: Court Integrated Services Program (CISP) Suitability Report dated 15 July 2022, p 3 under ‘Mental Health’.
227With the exception of having attended ‘several counselling sessions with a psychologist whilst in custody’,[48] he has not previously engaged in mental health treatment.
[48]Ibid.
228It is noted that he participated in a three-hour long neuropsychological assessment with Dr Alison Schokman on 22 August, after having appeared before me on a CISP review that very morning.[49]
[49]Exhibit MM-5: Reference of Cara Morrissy dated 26 August 2022, p 1 at [3].
229The report of Dr Schokman[50] is compelling. Mayen has intellectual abilities at the borderline range, but moreover most learning and memory performances were profoundly impaired. He has patchy executive dysfunction resulting in profoundly impaired cognitive flexibility and planning skills. These severe cognitive impairments are likely to strongly affect his day to day functioning. There is a possibility that his history of substance abuse may contribute to his impairment but it is only a suspicion.
[50]Exhibit MM-10: Neuropsychological Report of Alison Alison Schokman dated 26 August 2022.
230There is a concerning overlay to this impairment in the form of PTSD and depression which he is reluctant to talk about and is naturally then difficult to treat.
231I will treat his youth in a similar way as I have done with the other accused and I will give weight to his cognitive limitations.
Substance use
232He commenced smoking cannabis at age 15, several times weekly.
233He began using Xanax at 16. He would use two tablets daily and, at the maximum, 12 tablets daily.
234He discloses, not unlike his co-accused, using Xanax primarily to suppress painful emotions regarding past experiences which he prefers to avoid discussing.[51]
[51]Exhibit MM-3: CISP Suitability Report dated 15 July 2022, p 2 under ‘Alcohol and Other Drugs (AOD).’
235He has also experimented with other illicit substances.
236Mr Mayen was substance affected at the time of the offending and during the CISP assessment said, ‘my head was all over the place at that time, taking lots of drugs’.[52]
[52]Ibid p 3 under ‘Participant perspective’.
237Pleasingly, according to Dr Schokman, he has been able to be abstinent for periods in the community and in custody. Her view is that given that he is so young, he runs a real risk of doing permanent cerebral damage if he continues to use benzodiazepines in the way he has in the past.
Forensic history
238He admits a prior criminal history which is relevant, commencing in the Children’s Court in July 2019, that is to say quite recently, when he was aged 16.
239His most recent sentence was on 4 March 2022 in relation to a single charge of assaulting a custodial officer on duty. This represented his first term of imprisonment in the adult jurisdiction and in an adult prison. It is also the first recorded conviction on his prior criminal history.
240It is accepted that he has a relatively poor history of breaching court orders and bail conditions. I revoked his bail in August 2022, as he was routinely ignoring the very important curfew condition. He was charged with other offending while on that bail
241The instant offending occurred whilst he was on bail, two Children’s Court Probation Orders[53] and an adjourned undertaking.[54]
[53]Relating to entries in the prior history from 20 September 2021 and 4 March 2021.
[54]Relating to his first appearance in the adult jurisdiction 13 September 2021.
242There were outstanding matters listed in the Sunshine Magistrates’ Court in October and November of last year that have since been dealt with.
243It is acknowledged these matters are relevant to a consideration of the weight to be given to specific deterrence and protection of the community, as well as the assessment of Mr Mayen’s prospects for reform.
244There is some complexity to his PSD, given he spent an additional 60 days in custody for summary matters that were not reckoned as served as they were not proven, in addition to the 295 days he spent in adult custody on this matter.
245I am mindful of the principle of totality and have built in acknowledgement of the previous undeclared time spent in custody by him when formulating my sentence.
Sentencing considerations for Mayen
246Ms Buckley urged me to impose time served for Mr Mayen. The Crown submitted that a Youth Justice Centre sentence was warranted.
247I have taken a view that Mr Mayen has served enough time in confinement to reflect his overall criminality. As I said, he is extremely young and with a constellation of issues that cannot sensibly be said to able to be improved in adult imprisonment.
248I had him assessed for a community corrections order and a comprehensive pre-sentence report was obtained for that purpose on 16 October 2022.[55] I adjourned the matter for further plea and bailed Mr Mayen on further CISP conditions. The updated report of CISP of 25 January 2023,[56] contained both positive and negative commentary regarding his progress on bail. It is again alleged he breached his curfew and failed to report on three consecutive days of non-reporting. I note he admits one.
[55]Exhibit MM-9: Extended Pre-Sentence CCO Assessment Report dated 16 October 2022.
[56]Exhibit MM-12: CISP Finalisation Report dated 25 January 2023.
249I am concerned about Mayen’s capacity to be supervised. I query whether that is a result of his functioning. I imposed on him a curfew when I bailed him in order to prevent him from associating with other disaffected youths at night and offending. I consider he is a risk to the community if he continues to do this. For this reason, I will impose a curfew condition on him pursuant to s 48I of the Sentencing Act.
250Having said that, because of the material available to me (especially the report of Dr Schokman) it has fortified my view that I would not return Mayen to custody but rather place emphasis on structuring a sentence to assist him to reform in the community. I would prefer to involve the Court in supervising the administration and provision of such measures to assist the accused and in turn benefit the community. I will impose judicial monitoring conditions. His prospects in my view still remain guarded.
Sentencing principles
251I have noted elsewhere where necessary relevant sentencing principles such as youth, Bugmy and Verdins. I will turn to more specific sentencing considerations regarding the offending. I will begin with the mandatory sentencing provisions associated with aggravated carjacking.
Mandatory sentencing provisions
Aggravated carjacking
252Self-evidently, aggravated carjacking is a serious offence where general deterrence plays a key role in sentencing, along with punishment, denunciation and protection of the community.
253It is a category 1 offence with the meaning of s 5(2G) of the Act. Accordingly, the Court must impose a custodial sentence on Patrice unless one of the exceptions has been claimed. I note it has not.
254A statutory minimum applies to the offence pursuant to s 10AD(1) of the Sentencing Act 1991. A mandatory minimum non-parole period of three years is required unless the court finds a special reason exists. The term of the head sentence must be six months more than the non-parole period.
255A court might find that a ‘special reason’ exists, for instance, at the time of the commission of the offence if the offender can prove on the balance of probabilities that he had ‘impaired mental functioning’, for instance, which was not caused substantially by self-induced intoxication, that is causally linked to the commission of the offence and substantially and materially reduces his culpability, or his impaired mental functioning would result in him being subjected to substantially and greater than the ordinary burden or risks of imprisonment.
256The report of Dr Rachel O’Meara was commissioned in part for this purpose and furnished on behalf of Patrice. Its contents did not reveal a special reason of the kind contemplated by the legislation.
257I was urged by Patrice’s counsel to conclude that all sentencing objectives can still be achieved for the totality of his offending by the imposition of the legislative minimum — that is to say three years is a heavy penalty by way of non-parole period on a young man such as Patrice and that alone would be an effective specific deterrent.
Armed robbery and intentionally causing serious injury
258These too are obviously serious offending where general deterrence plays a key role in sentencing, along with punishment, denunciation and protection of the community.
259They are also are category 2 offences within the meaning of s 5(2H) of the Act.
260Accordingly, the Court must impose a custodial sentence unless one of the circumstances of paragraphs (a) to (e) of the subsection apply.
261I have dealt with the exceptions sought to apply in Mabior’s case and found that they do not exist.
Guilty plea
262The Court is entitled to reduce a sentence to account for the utilitarian value of the plea.[57] Pleas of guilty during the Covid-19 pandemic are clearly of higher utilitarian value.[58] I note that the authority mentions that the discount must be a perceptible one. It will be.
[57]Phillips v The Queen (2012) 37 VR 594, 608 [47] (Redlich JA and Curtain AJA, Maxwell P agreeing) (‘Phillips’).
[58]Worboyes v The Queen [2021] VSCA 169, [35] (Priest, Kaye and T Forrest JJA).
263Patrice asserts his early plea was accompanied by remorse, as evidenced by some of his comments to Ms Lechner.
264On Mabior’s behalf it was submitted there was some limited expression of remorse as well.
265Mayen says his plea is a clear example of acceptance of his own wrongdoing.
266There must be evidence before the Court to further discount the sentence on the basis of the subjective value of a plea being a demonstration of remorse, an acknowledgement of responsibility or evidence willingness to facilitate the course of justice.[59] The Crown says that that is absent in this case and the pleas of guilty are entered in the face of a strong prosecution case.
[59]Phillips (2012) 37 VR 594, 604–5 [36] (Redlich JA and Curtain AJA, Maxwell P agreeing).
267In Patrice’s case, there is limited insight,[60] which appears to be motivated by the impact this case has on his own circumstances.[61] The prosecution invites the Court to consider Ms Lechner’s report in that regard at page 4 where Ms Lechner said, ‘He stated that the victim “probably felt scared … before the crime I don’t think much about the victim”’. At page 6 it is headed ‘Low empathy/Remorse’ where Ms Lechner writes, ‘He needed some encouragement to think about the impact on the victim, ultimately stating that they were “probably scared”’. That is not necessarily evidence of Mr Patrice’s remorse. But for the plea entered in the face of a strong prosecution case the argument goes, there is limited evidence of remorse, or insight.[62]
[60]Exhibit AP-2: Psychological Report of Carla Lechner dated 8 August 2022, pp 4, 6.
[61]Exhibit AP-5: Neuropsychological Report of Rachel O’Meara dated 30 September 2022, p 14.
[62]Exhibit G: Prosecution Responsive Sentencing Submissions dated 23 January 2023, [6].
268In Mabior’s case there appears to be a demonstrated absence of victim empathy.[63]
[63]See Exhibit AM-3: Psychological Report of Carla Ferrari dated 6 September 2022, [59].
269I make this remark. I am dealing with three very young, inarticulate, damaged young men. Each appears to have their own limitations in terms of insight, and the way that they express themselves and the way that they are presently grappling with their own criminality and identity. I am prepared to accept that there is some evidence of remorse evidenced by each of them through their pleas of guilty.
Circumstances in custody
270Increased periods of lockdown (namely confinement to cells) have been applied by prison authorities since 2020. Significant hardship has become more onerous during the Covid-outbreak, including the curtailment of prison programs and the prevention of family visits during lockdowns. Prisoners are usually highly anxious that there is a risk of contracting the disease in custody and there is additional stress that needs no further authority or example experienced by members of the community for are the prisoners’ families for those prisoners. I will take into account the fact that there has not been a harder time in recent memory to be a prisoner or remandee in the state of Victoria.
Totality
271Since Mayen and Mabior were on bail at the time of the offending, any term of imprisonment imposed by the Court on those charges must be cumulative unless I order otherwise.[64] I have concluded that this factor can be accommodated in the case of Mayen, by it being dealt with as part of a combination custodial/CCO sentence and in Mabior’s sentence as a short, stand alone, totally concurrent sentence to avoid the risk of double punishment.
[64]Sentencing Act 1991 s 16(3C).
272Moreover, especially in the case of Mabior and Patrice, there are two distinct episodes of criminality, each involving different harm to different victims.
273I am obliged in my view to impose a measure of accumulation upon some of those offences to properly reflect the total criminality of each accused.
274I am mindful of the significance in this case of the application of the principle that requires me when sentencing offenders for multiple offences to ensure that the aggregate term I impose is a just and appropriate measure of the total criminality involved. There must be an appropriate relatively between the totality of all criminality and the totality of the total effective sentence I impose. This is true when I consider the interaction between the charges on the indictment. I have determined an appropriate length for each charge, taking the applicable sentencing considerations into account and designated the highest term being the base sentence, then I determined the extent to which there should be any cumulation regarding each count and finally stood back and considered in light of totality what an appropriate sentence ought to be.
275I am also mindful in Mabior’s case I need to moderate the actual total effective term of imprisonment imposed given the totality of the sentence that he previously imposed and served, meaning his removal from the community has already been substantial.
276This might result, and does, in a head sentence that does not necessarily appropriately reflect the sheer gravity of the offending. Put another way, the sentence will be modestly ameliorated to accommodate the previous sentence imposed on Mabior because there is no facility for me to order it be served partially concurrently with the sentence that I am currently imposing.
Parity
277On 15 July 2022, a magistrate in the Children’s Court sentenced B, who was aged 15, on a consolidated plea including the armed robbery in the Chapman matter and the aggravated carjacking (as well as other offending). He was given a 15-month Youth Justice Centre order.
278The Crown submits that parity considerations do not really apply. B was sentenced in the Children’s Court under the relevant legislation. The sentencing synthesis under that legislation is materially different from the Sentencing Act 1991, not least that it does not permit the sentencing purpose of general deterrence to be taken into account.
279As between the three offenders, Mayen is of course in a different category. He is the youngest of the three, he is pleading to a robbery as the only substantive offence in one of the two incidents of concern here. His history is not the same as that of Patrice or Mabior and he is cognitively compromised in the way that I have already referred to. There are justifiable reasons to impose on him a sentence that is different in nature and magnitude to the others. Parity, likewise, does not necessarily apply very much when dealing with the substantive offences where the informant is Holt as between Mabior and Patrice, given they engaged in different offending.
Formulation of sentence
280With respect to Patrice and Mayen, I am going to impose a total effective sentence and a non-parole period for this offending.
281For their benefit, and the benefit of the community, the timing of their release and the strict manner in which they are supervised and assisted in the community will be a matter for the Adult Parole Board.
282The Court of Appeal has observed the legislation fixing mandatory minimum non-parole periods, for instance, has undesirable consequences. First, in cases where the mandatory term must be imposed it is antithetical to general sentencing principles and skews the court's exercise of the sentencing discretion. Secondly, it might lead to an unacceptable short, prospective period of supervision on parole.
283The Court of Appeal has held that with mandatory minimums as with standard sentencing generally the mandatory minimum serves really as a yardstick that sits along other existing principles but does not displace the instinctive synthesis. I note in this case there is some complexity to applying the principle given that Mr Patrice is pleading guilty to more than one offence but only one offence has the mandatory minimum. To that extent the mandatory minimum provides a less uncertain guidepost than it otherwise would.
284It is obvious each of you requires supervision, monitoring and assistance. In fixing an appropriate sentence for the accused and allowing for a parole eligibility component for two of you, I have had regard to the principle of parsimony; that is, the requirement not to impose a sentence more severe than that which is necessary to achieve the purposes for which sentence is imposed.
285The purpose of parole is to provide for mitigation of punishment in favour of reform through a conditional release when appropriate. A non-parole period is the minimum time I determine justice requires you serve, having regard to all of the circumstances.
286I have concluded with some reservation it is appropriate to allow for a meaningful period of parole for each of you. The non-parole period, that is, the period of imprisonment to be served before which you become eligible for parole, will appropriately take into account the mitigatory factors in this case and to facilitate your reintegration into the community and ultimate rehabilitation if that can be achieved.
287For Mayen the appropriate sentencing disposition is a combination sentence involving time served and a community corrections order which provides a more flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together.[65]
[65]Boulton v The Queen (2014) VR 308.
288It seems to me that I can denounce his conduct, punish him, deter others as well as himself and foster conditions that might assist in his reform by imposing a future community corrections order with strict conditions.
289I have formed the view in Mr Mayen’s case the community is best protected now by his further reform.
290Mayen will need much assistance to achieve this objective. One only needs to look at the eleven specific recommendations made by Dr Schokman in her conclusion to have a sense of the sheer magnitude of his difficulties and the work that it will take for him to overcome them.
291You can stay seated, Mr Patrice. On Charge 1, armed robbery, I sentence you to 18 months’ imprisonment. On Charge 3, aggravated carjacking, I sentence you to four years and two months’ imprisonment. Four years and two months is the base sentence. I will cumulate eight months of the sentence imposed on Charge 1 on the base. That will bring about a total effective sentence of four years and 10 months’ imprisonment. I will set a non-parole period at three years and six months. I declare 417 days declared as pre-sentence detention.
292Mr Patrice, but for your plea I can indicate the following. I would have given you six years and six months’ imprisonment with a non-parole period of five years.
293Mr Mabior, on Charge 2, robbery, I sentence you to eight months. On Charge 4, causing serious injury intentionally, I sentence you to three years and six months. That will be the base sentence. On Charge 5, theft, I sentence you to six months’ imprisonment. On the related summary offence 5, I sentence you to one month’s imprisonment. The one month I just mentioned for the commit offence on bail will be served concurrently with the base. I order that three months of the sentence imposed on Charge 2 and one month of the sentence imposed on Charge 5 be served cumulatively on the base and each other. This brings about a total effective sentence of three years and 10 months’ imprisonment. I declare that you will serve two years and four months’ imprisonment before you are eligible for parole. Pursuant to s 18 of the Sentencing Act I declare that you have served 104 days by way of pre-sentence detention.
294But for your plea of guilty, Mr Mabior, I would have sentenced you to five and a half years’ imprisonment with a non-parole period of four years.
295Mr Mayen, you can stay seated. On Charge 2 and related summary offence 5, provided you consent I am going to convict and sentence you to a term of imprisonment of 295 days reckoned as having already been served, followed by a community corrections order for a period of 12 months.
296Every community corrections order including this one contains core conditions. They will be:
(a) You must not commit another offence punishable by imprisonment during the period of the order.
(b) You must comply with any obligation or requirement prescribed by the regulations.
(c) You must report to or receive visits from the Secretary during the terms of the order.
(d) You must report to Sunshine Community Corrections Centre within two working days of the commencement of this order. That would be Monday.
(e) You must notify the Secretary of any change of address or employment within two working days after any such change.
(f) You must not leave the state of Victoria except with the permission of the Secretary.
(g) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
297There will be additional conditions.
(a) You will be the subject of supervision by the Office of Corrections.
(b) You will undergo assessment and treatment, including testing for drug abuse and dependency.
(c) You will undergo assessment and treatment including testing for alcohol abuse or dependency as directed.
(d) You will undergo mental health assessment and treatment as directed.
(e) You must undergo programs consistent with the purpose of treatment and rehabilitation which may include but is not limited to employment .
(f) You will abide by a curfew to remain at your house between the hours of 9 pm and 6 am each day. That condition will last for six months from today.
(g) I will order judicial monitoring with the first return date a date to be fixed approximately two months from now.
298You need to understand that if you consent and I impose such an order, if you were to breach the order in any way, either by committing a further offence or not complying with any of the conditions, you could be charged with breaching the order. The offence of breaching an order itself carries a maximum penalty of three months’ imprisonment, so if you were to breach the order you would come back before me, be sentenced for the breach and be re-sentenced for the offences of armed robbery and commit offence on bail. I would suggest that you would not find yourself in a position where that was the case.
299Would you like a moment to take some instructions?
300MR OVEREND: Your Honour, yes, if I might. Mr Mayen consents, Your Honour.
301HIS HONOUR: Thank you. Aggravated carjacking if arising out of the driving of a motor vehicle and while under the influence of alcohol or drug is a serious offence within the meaning of s 87P. There is a mandatory licence disqualification of not less than 24 months.
302With respect to Mr Patrice, I propose to make an order disqualifying him from driving for a period of two years effective from today.
303Mr Mabior, on the charge of theft of a motor vehicle, likewise I will impose a disqualification period under the Road Safety Act 1986 for a period of two years commencing today.
304I will make the ancillary orders sought by the Crown, specifically the disposal order. Disposal orders for both the Holt and Chapman matters include weapons, items used in the commission of the offence, property of value and a forfeiture order of the whole brief re the mobile phones, designer accessories and a watch.
305That was a lot of information, counsel. Do you want me to go through the orders again?
306MR DOBER: For my own sake, Your Honour, I’m all right, but there are two matters I’d raise for clarification.
307HIS HONOUR: Sure.
308MR DOBER: Subject to my learned friends. The first is the issue of the disposal order. Multiple have been sought but one of those is for the imitation firearm. I just want to confirm that Your Honour has that one.
309HIS HONOUR: Exhibit 128 on the Holt brief.
310MR DOBER: Yes, Your Honour.
311HIS HONOUR: Yes.
312MR DOBER: Thank you. And the other matter actually doesn’t arise from the sentence but I foreshadowed this with my learned friends before Your Honour took the Bench. I understand there was a media application held in abeyance and I just wanted to sure that Your Honour had that in mind. I’m taking from Your Honour’s response that you don't. we can perhaps return to that, but it was raised at our first hearing and it was held over, I see from my notes at least.
313HIS HONOUR: I have a note that there was an application but I cannot for the life of me think whether any member of the media attended in future. Is there a member of the media here?
314ASSOCIATE: No, Your Honour.
315MR DOBER: Certainly not to my knowledge, Your Honour.
316HIS HONOUR: It paints the application in a certain light, Mr Dober, does it not?
317MR DOBER: It does, Your Honour. I just wanted to raise it because I had a note that it was something that we needed or perhaps we might need to be aware of.
318HIS HONOUR: From memory, I very carefully referred to and curated the reasons for sentence and I think invited the parties to do the same, that the children that were dealt with as co-accused be simply initialised, but there was not much else, I do not think, that needed to be done. If no one is here to persist with the application I am not minded to spend any more of the parties’ time on it.
319MR DOBER: I am not pressing it, Your Honour.
320HIS HONOUR: Thanks. Nice use of the word 'press'.
321MR DOBER: Thank you.
322HIS HONOUR: Mr Lindner?
323MR LINDNER: I have notes of Your Honour's orders. I'm just trying to do a quick calculation, but I have the - - -
324HIS HONOUR: Yes. I will not leave the Bench until you are satisfied that it makes sense. Mr Petric?
325MR PETRIC: I am just consolidating my notes and I think I have everything, Your Honour. Nothing further on behalf of Mr Mabior, Your Honour.
326HIS HONOUR: Mr Overend?
327MR OVEREND: Nothing further. Thank you, Your Honour.
328HIS HONOUR: I will leave the Bench for 10 minutes. I do not want to put Ms Bell under pressure, he says while looking over her shoulder at the order she is preparing. We will just get the CCO printed out, I will come back on the Bench and have your client sign it. Is there any reason I cannot excuse then Mr Petric and Mr Lindner and those associated with their clients?
329MR DOBER: Not from the Crown's perspective, Your Honour.
330HIS HONOUR: Mr Lindner, ordinarily I would try and leave the link open but there are too many parties to allow that to happen for any of you to have any meaningful discussion so if you want to address your clients directly as to who will be in touch with them to debrief them about the sentence, you can do that when I leave the Bench, I have got no difficulty with that, and then you are excused. Are you content with that/
331MR LINDNER: Yes, I appreciate that, Your Honour.
332HIS HONOUR: That is fine. I will come back in 10. You too, Mr Petric. Can I thank counsel for their help and their patience today in what was a complex, difficult sentencing exercise. I will be back in 10.
(Short adjournment.)
333HIS HONOUR: Mr Overend, would you be able to show this to your client. I neglected to mention that the 6AAA declaration, if you want to make a note of it, was but for his plea I would have sentenced him to three years YJC.
334MR OVEREND: Thank you, Your Honour.
335HIS HONOUR: And that document in front of you should have a confirmed judicial monitoring date, I think about 28 March.
336MR OVEREND: Yes, thank you very much, Your Honour.
337HIS HONOUR: We will just print out a copy for you and a copy for your client.
338MR OVEREND: Thanks very much, Your Honour.
339HIS HONOUR: Thanks, Mr Overend.
340MR OVEREND: Thank you very much, Your Honour.
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