Director of Public Prosecutions v Pavlovic
[2024] VCC 1327
•23 August 2024
| IN THE COUNTY COURT OF VICTORIA AT GEELONG | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-01907
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CALEB PAVLOVIC |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Geelong, Melbourne | |
DATE OF HEARING: | 19 June 2024 (plea), 9 August 2024 (further plea) | |
DATE OF SENTENCE: | 23 August 2024 | |
CASE MAY BE CITED AS: | DPP v Pavlovic | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1327 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Causing injury intentionally, attempted carjacking and criminal damage. Accused slashed face of taxi driver with box cutter, then attempted to car jack his car. Caused damage to his vehicle. Victim impact.
Accused 26 years old, with background of deprivation, intellectual disability. Prodigious prior criminal history of 27 appearances over 10 years. On justice plan for only 2 weeks before this offending. Plea of guilty. Recent availability of NDIS package and supports. Unsuitable for further justice plan, even with those supports just mentioned. Principles in Muldrock and Bugmy enlivened. Increased need for community protection.
Legislation Cited: Crimes Act 1958, Sentencing Act 1991, Control of Weapons Act 1990, Corrections Regulations 2019
Cases Cited:Bugmy v The Queen [2013] HCA 37, Phillips v The Queen [2012] VSCA 140, Worboyes v The Queen [2021] VSCA 169, Muldrock v The Queen (2011) 244 CLR 120, R v Verdins (2007) 16 VR 269, Ryder v The Queen [2016] VSCA 3, Marrah v The Queen [2014] VSCA 119, Norman [2023] VSCA 213, Mohamed [2022] VSCA 136
Sentence: Total effective sentence of 4 years imprisonment with non-parole period of 2 years, 9 months.
PSD of 439 days.
s.6AAA: 5 years 6 months with NPP of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Pirrie | OPP |
| For the Accused | Ms O. Thompson Ms M. Lester | Barwon South West Lawyers Kurnai Legal |
HIS HONOUR:
Introduction
1Caleb Pavlovic you have pleaded guilty to the following charges on the indictment as well as related summary offences (RSOs) occurring in June of last year.
# OFFENCE SOURCE OF OFFENCE MAX PENALTY 1 Causing injury
intentionallySection 18 Crimes Act 1958 10 years 2 Attempted aggravated
carjacking (offensive weapon)Section 79A Crimes Act 1958
Section 321M Crimes Act 195820 years 3 Damaging property Section 197(1) Crimes Act 1958 10 years RSO 5 Possession of a prohibited weapon without exemption Section 5AA Control of Weapons Act 1990 240 penalty units or
2 years’RSO 6 Possession of a controlled weapon without excuse Section 6(1) Control of Weapons Act 1990 120 penalty units or
1 yearRSO 7 Acting prejudicial to good order of police gaol Section 100G(1)(a) Corrections
Regulations 201910 penalty units 2You are a relatively young offender of 26. You had an upbringing punctuated by both deprivation and a number of organic cognitive issues as a result of Foetal Alcohol Syndrome. You have an intellectual disability. For those reasons alone, this is a complex enough sentencing exercise.
3Further though, for reasons that cannot be disentangled from your complex personal history and difficulties, you offend regularly and at times very seriously, and this is one of those times.
4You have now amassed some 42 pages of prior criminal history in the last decade. That criminal history is dominated by offences involving violence and aggression. You have been the recipient of almost every disposition that the court has to offer – which includes terms imprisonment with non-parole periods, as well as Justice Plans, and yet you continue to reoffend.
5This offending is grave, unpredictable and frightening. You present an ongoing serious risk to the safety of members of the community.
6You have served around 15 months in custody already which will be deducted from your sentence, but you will be sentenced to a term of imprisonment today of four years with a non-parole period of two years and nine months.
7My view is that the gravity of this offending, combined with the elevated role that protection of the community plays in sentencing, warrants that outcome. My reasons follow.
MATTERS CONCERNING OFFENDING
The Accused
8You were born in January 1998 and were 25 years old at the time of the offending. You are now 26. You were unemployed and had no fixed address.[1]
[1]Your lack of stable accommodation plays a role in this offending, dealt with, below.
The Victim
9Your victim was a taxi driver. He was the owner of a Geelong taxi, a 2017 Toyota Camry Sedan.
Offending
10On the 10th of June 2023 at 2:00 pm he commenced his shift. The following morning at 2:50 am he parked his taxi in the rank outside Moorabool Street in Geelong.
11You approached the taxi, opened the front door and sat down in the front passenger seat. You were talking on your phone as you entered the car, however, stopped to tell the victim that you wanted a ride to Colac because your girlfriend was sick.
12He asked, 'How would you like to pay?', to which you replied, 'My girlfriend will pay you when we get there'. You handed the mobile phone to him and continued to have a conversation with the person on the phone. The unknown person on the line provided a destination of Murray Street in Colac, to which your victim quoted a fare of $180.
13He handed you back your phone, put the address into Google Maps and started driving towards the destination.
14Whilst travelling along Latrobe Terrace in Geelong South, the driver had a further conversation with you in relation to your girlfriend paying via Apple Pay and provided his mobile phone number to your girlfriend. The victim described this conversation as entirely normal.
15As the vehicle passed along McKillop Street intersection on Latrobe Terrace, you became agitated for no discernible reason and said to the victim, 'Before you, I fucked one taxi driver and now I’m going to fuck you too'.
16In an unprovoked and sickening act of gratuitous violence, you produced a knife in your right hand, raised it towards the victim and slashed the blade across the left side of his cheek causing a laceration to the left side of his face from near the corner of his mouth to his ear.[2] That is Charge 1, causing injury intentionally.
[2]See Depositions, 113 – 119, 181-184.
Charge 1 – Causing injury intentionally
17The victim was unsure what happened and said, 'Don’t do that, I have cameras' and pointed to the cameras in the vehicle.
18Your response to that was to rip out the camera from the vehicle and throw it at his head.
19The victim then quickly drove the motor vehicle into the 7-Eleven located on Latrobe Terrace. At this point, you formed the intention to steal his car. The victim stopped the taxi in between the petrol pumps and you said, 'Give me your keys, I’m taking your car'. The victim replied, 'There is no keys, it’s a hybrid car'. You reached across the driver’s side of the vehicle under the steering wheel and continued to say to the victim to give him the keys to the motor vehicle. You were checking for the keys in the ignition, however, the victim had them in his pocket and did not hand them over.
Charge 2 – Attempted aggravated carjacking
20The victim then exited the motor vehicle, moved away, and called Triple 0. You exited the taxi, ran around to the driver’s door, got into the driver’s seat and attempted to drive off but the car would not start.
21Unsatisfied with injuring the driver in the way I just described and attempting to carjack his taxi, you got out of the car and chased him, still shouting 'Give me the keys, give me the keys'. He refused and simply ran away.
22Thwarted from attempting to acquire the car by force or by threats, you got onto the roof of the taxi and began stomping down on it with your feet, causing dents in the roof.[3] Charge 3, criminal damage.
[3]See Depositions, 148-155 (though it is not clear from the materials how much any repairs to the panels on the taxi were).
Charge 3 – Damaging property
23When you were on the roof of the car, the victim observed the police travelling north and waved his arms and said to police members Davis and Tinney, 'Please help me'.
24They drove their vehicles into the 7-Eleven and activated their body worn camera and as they arrived you jumped off the roof of the taxi and approached the police, and when speaking to Tinney he heard the victim say that he had been slashed and he observed blood on his face. Tinney yelled out 'knife' and you pulled away from him and started running away yourself, headed south along Latrobe Terrace.
25Davis followed in the police vehicle and Tinney chased on foot. As Tinney continued to follow you, you ran towards Geelong GMHBA stadium.
26Tinney and Davis surrounded you in a carpark. They approached you and put you under arrest.
27You had the presence of mind, though, to dispose of the knives you already possessed. After being arrested the accused provided, that is you, provided information that you had dropped the knives nearby.[4] That is Summary Offence 5, possession of a prohibited weapon, flick knife, and Summary Offence 6, possession of a controlled weapon being a box cutter.
RSO 5 – Possession of a prohibited weapon – flick knife
[4]See Depositions, 139-145.
RSO 6 – Possession of a controlled weapon – box cutter
28You said:
(a) 'They', meaning the knives, 'are there. Be careful of the box cutter, its sharp. I’ll be honest, that’s the one I used to cut him. Not the flick knife. I’m not going to beat around the bush with you boys.'
(b) You said, 'You’re here to help me', and then
(c) 'It’s not even funny man, like, I shouldn't have even done what I did.'
29You were then searched and placed in the police van by Tinney. Other police arrived and began assisting.
30At 3:00 am other police arrived at the 7- Eleven and spoke to the victim who provided an account of the incident. His injuries were photographed and so too was the damage to his car.
31At about 3:25 am Davis and Tinney arrived at Geelong police station with you in custody.
32At 3:50 am you were put in the Geelong Custody Room where an officer obtained your personal details and began to commence a detainee risk assessment.
33Demonstrating in real time the threats you made to harm yourself during the assessment, you became aggressive, removed a drawstring from your pants and put it in your underwear. You then said you would use it to kill yourself once you were in the cells.
34Other police members attended and assisted Police Custody Officer Bradley Coffey, the detainee risk assessing officer, in completing the assessment. The risk you posed to others manifested again here and your aggression towards police members escalated. As police commenced a full search you refused to hand over the drawstring, continued to yell and had to be placed in handcuffs.
35In a particularly offensive part of this whole episode while you were restrained, you yelled 'I’m a spitter you dogs, I’m going to spit.' That behaviour constitutes related Summary Offence 7, act in a prejudicial manner to the good order of a police gaol. Ultimately, you were controlled by police members and escorted to the cells.
Interview
36On the 11th of June 2023 at about 8:15 in the morning, Luke Searle, First Constable, spoke to you for the purposes of conducting an interview. You indicated that at that time you wanted to participate in an interview and assured them that there would be no threats of violence towards the police.
37An independent person was arranged and they attended the Geelong police station and spoke with you.
38By 9:50 am police custody officers attended the holding cell occupied by you to escort you to the interview room. Your promise of behaving yourself was very short-lived. You became aggressive again towards them, including making threats of violence and spitting towards them. As a result, a record of interview was not conducted simply because of safety concerns of the police.
39You have been remanded in custody where you have remained ever since – some 439 days, or nearly 15 months.
Case history
40The chronology of relevant events is as follows:
DATE EVENT OUTCOME 11 June 2023 Offending Arrested 13 June 2023 Filing Hearing Remanded 5 September 2023 Committal Mention 26 September 2023 Committal Mention 9 November 2023 Committal Hearing Committed 7 December 2023 Initial Directions’ Hearing 20 February 2024 Arraignment Pleaded Guilty 18 June 2024 Plea Adjourned for
Justice Plan assessment9 August 2024 Further plea Remanded for sentence 23 August 2024 Sentence 439 days Victim’s Injuries and Impact
41The victim’s injuries were assessed and treated at University Hospital Emergency Department.
(a) He had a 10 centimetre long transverse superficial cut wound to the left side of his face which had not been contaminated;
(b) It was a bit deeper in the middle portion of three centimetres;
(c) No active bleeding or deep structure damage was seen;
(d) There was no scalp/bone swelling or depressed fracture.
42The victim required the wound to be cleaned at his bedside, and the middle portion was closed with steri-strips and covered.
43Although not medically 'severe' or 'significant', given the injury posed no threat to life, Dr Schrieber still opined that: 'The victim will have a scar on his face, a sensitive part of his body, that may last long term or for the rest of his life without corrective surgery.'[5]
[5]See Depositions, 94.
44The victim authored a very understated and dignified victim impact statement which was tendered but not read aloud in court.[6]
[6]Exhibit B: Victim Impact Statement of Mohamed Bashir dated 15 March 2024.
45In summary, and understandably, he says he was terrified and feared for his life. He could not leave his own home for a week. His recovery from the experience was slow, but he has substantially recovered. The scar you gave him is still painful and it is a visible reminder of what you did to him every time he looks in the mirror. He is happy that he can work again but understandably does not want anyone else to experience what he did. I join in that wish.
Assessment of the offending
46This is terrifying offending.
47You had apparently disconnected from whatever positive supports you had in the community, were distressed over a lack of housing (and an upsetting interaction with a friend) and quickly found your way back into drug use. It is said[7] that you were experiencing paranoid and hallucinatory symptoms as a result of drug use, and sleep deprivation, but were also intoxicated. It seems that you had stopped taking anti-psychotic medication.
[7]Exhibit 3: Campbell report 23 April 24, 7.
48This is in a way hard to fully accept, because of course there is a logic and purpose to your behaviour in the sense that you were catching a taxi to your girlfriend's, you showed the driver your phone and discussed methods of payment. You attempted to take the taxi once it was clear the driver would no longer take you. You knew you needed keys to drive the car and you demanded them. You recognised the police were coming and ran away. You threw away the dangerous items you had before the police reached you.
49Paranoid, hallucinating or otherwise, the unpredictability and savagery of your violence is deeply concerning. No real reason has ever been offered for what you did. Not so much as a harsh word was exchanged between you and your victim before you attacked him. Your victim was at work, alone, in the early hours of the morning. He was vulnerable. You slashed at his face with a box cutter with the intention of causing him injury. You had with you inherently sharp dangerous items which you have an unhappy habitual habit of either carrying or using.
50Rather than being shocked by your own conduct and stopping, you instead went about trying to carjack his taxi with real determination and purpose, still possessing the weapons you had on you. I accept you formed the intent to take the taxi after you had slashed the victim’s face, rendering the former act all the more pointless and the attempted carjacking opportunistic.
51I was not taken to any cases said to be comparative in any way to this offending. I have familiarised myself both with statistical data on sentences imposed for offending of this kind, as well as reviewed recent authorities dealing with injury and carjacking cases. They are of course of very limited utility, especially given your unique personal circumstances.
52Overall, I find this to be a serious example of the offence of intentionally causing injury. Your sudden but deliberate use of a knife to the victim’s face could only really result in one outcome. I consider this to be the more serious of the offences, notwithstanding the attempted carjacking offence carries the higher potential maximum penalty.
53This is a mid to low-range example of the offence of attempted carjacking though. It follows actual violence visited on the victim, and you were still armed with an inherently dangerous item being the knife or object you just used. That object was not further used or brandished, or even mentioned. Perhaps there was no need to, given what you had done to the victim's face. You were persistent in your demands, chasing the victim around the car afterwards.
54It was entirely spontaneous with no planning whatsoever and seemed to evolve out of the situation you found yourself in after senselessly attacking the driver first. It was not particularly persistent or prolonged.
55Violent theft offences are considered serious as they inevitably involve a terrifying experience for victims, and they threaten the community’s wider sense of security. Events of this kind cause a tremendous amount of public disquiet, given the apparent randomness and senselessness of the attack especially.
56Carrying a weapon is an element of the offence and will not be treated as an aggravating circumstance for the attempted carjacking. However, it is appropriate to consider the nature of the weapon, its potential to cause harm and the manner in which it was used in the committing the offence. I have indicated how the possession of the knife falls to be considered in this offence.
57The principal sentencing purpose in cases of violent thefts are just punishment, denunciation, general deterrence, and protection of the community, especially for offences involving vulnerable victims or soft targets including taxi drivers. The Court of Appeal has held that particular circumstances of vulnerability engage and necessitate a special protective obligation on the part of a sentencing court.
58I have been careful not to double count the use of s weapon in both the injury and attempted carjacking offences with the related summary offences. The possession of them and the use of one of them is fundamental to both Charge 1 and 2. Your reason for having them, paranoia apparently of getting jumped, is clearly no real reason at all. I will impose short terms of imprisonment concurrent with the base sentence and with each other on those offences.
59After the failed carjacking, your aggression and unpredictability manifested in a different way. You decided to jump up and down on the taxi to damage it. Again, this was not planned but was effective enough to cause damage to the taxi that the victim used to earn a living. It adds to your overall criminality and will be reflected in a comparatively short sentence of imprisonment with a modest degree of cumulation upon the sentences imposed for the other offences.
60Your conduct in custody was in a similar erratic vein. I will fine you, which is the only penalty available to me in any event.
MATTERS PERSONAL TO YOU
61You were 25 years of age at the time of the offending and you are now 26.
62The recurring themes of your life are disadvantage, compromised functioning, drug use, conflict and offending.
Family
63You were placed into foster care at the age of six months. You have had limited contact with your biological mother. She sadly had alcohol and substance abuse issues which persisted throughout the pregnancy, and you were born with foetal alcohol syndrome (FAS).
64You did not have a relationship with your biological father, who passed away from suicide when you were eight.
65You grew up in a foster family, which was a positive experience. You remain in contact with your foster parents and they are supportive of you, although you are not able to reside with them any longer.
66You spent time in residential care from the age of 13. It was there that any anti-social attitudes you already held were strengthened. I understand it was a wholly damaging experience for you. Your psychosocial development was compromised there, it is deprivation of the kind that gives rise to the application of the principles in Bugmy v the Queen,[8] which I will come to later.
[8][2013] HCA 37.
67You were not just any child in residential care, you were labouring under a myriad of other disadvantages caused by your functioning, cognition and mental health.
Relationships and Children
68You are the father of two children, aged three and one. Your second child was born when you were on remand. You are motivated to establish a relationship with them.
Education and Employment History
69You have an intellectual disability (ID) and have struggled to engage in formal education. This is coupled with a diagnosis of ADHD and various other mental health diagnoses which resulted in you disengaging from formal education in Year 8.
70You have a very limited employment history, which is not unexpected given the fractured life you have led and the sheer magnitude of cognitive disadvantages you face.
Substance Abuse History
71You have a diagnosis of substance use disorder.[9]
[9]Exhibit 3: Campbell report 23 April 2024, [27].
72Consistent with what I said about your time in residential care aged 13, you commenced using alcohol when you were 14, used cannabis since the age of 15 and methamphetamine since the age of 16.
73You came to drug use as a child and were not fully informed of its risks. Moreover, you were not only a child but one who had significant developmental issues, surrounded by peers who were also marginalised and disadvantaged like you were. You could not have hoped to understand the long-term consequences of that drug use and the havoc it might play with your fragile mental health and functioning, and life generally.
74Your use of methamphetamine has resulted in episodes of drug-induced psychosis[10] and plays a role in much of your prior criminal history.[11]
[10]Exhibit 3: Campbell report 23 April 2024, [27].
[11]It is said to play some role in this offending too.
Psychological Conditions
75You have, as I said, a mild intellectual disability, a term which is widely misunderstood and seriously understates the degree in which your functioning is compromised. Your IQ was measured full-scale at 61,[12] a score that places you in the lower range of the mildly intellectually disabled category.
[12]Exhibit 9: Laura Scott Neuropsychological Report dated 31 July 2020, 9 & 13.
76Mr Austin Campbell, general psychologist, opines:
'The impact of [your] intellectual disability on [your] functioning appears to contribute to the maintenance of a number of challenging behaviours and likely had a significant impact on [your] ability to develop and reinforce healthy or adaptive behaviours.'[13]
[13]Exhibit 3: Campbell report 23 April 2024, [29].
77He states:
'[Your] use of violence in the current matters appears to be precipitated by poor problem-solving skills, poor impulse control which was exacerbated by intoxication, violence supporting attitudes and symptoms of drug induced psychosis. [Your] ability to consider the consequences of [your] actions were likely to be significantly impaired at the time of offending.' [14]
[14]Exhibit 3: Campbell report 23 April 2024, [28].
78There is certainly an interplay between your intellectual disability and your drug use. The drug use seems to exacerbate pre-existing and long-standing deficits and behavioural disturbances.
79Ms Laura Scott (neuropsychologist)[15] notes that you have an established diagnosis of intellectual disability (ID), ADHD, depression and anxiety in the context of foetal alcohol syndrome (FAS).
[15]See Exhibit 9: Laura Scott Neuropsychological Report dated 31 July 2020, which also suggests schizophrenia.
80All of your offending appears to be perpetuated by your underlying cognitive defects, as well as your lack of coping strategies, substance use, peer group and violent supporting attitudes. You have very poor impulse control even without alcohol or drugs. You become violent when you are emotionally dysregulated in an attempt to have your needs and wants met. You require significant assistance if you are to live in the community safely.
81Ms Scott says:[16]
Mr Pavlovic's symptoms of lntellectual Disability, ADHD, Depression, Anxiety and Schizophrenia combine to significantly impede his capacity to function at a level equivalent to his peers.
His globally reduced level of intellectual function severely undermines his ability to participate in the economic and social life of his community. He is easily overwhelmed and struggles with information processing at a basic level. He has an impulse control disorder which predisposes him to rash actions and short-term thinking. This also results in poor regulation of his emotions and actions relative to social expectations. He has a dysexecutive profile which makes him very vulnerable to external influence since he has difficulty independently generating plans for solving day to day problems (e.g. how to obtain money, food or other goods).
[16]Exhibit 9: Laura Scott Neuropsychological Report dated 31 July 2020, 14.
82I add for completeness, I have had regard to the historical reports tendered on the plea for further context.[17]
[17]Exhibit 16: Number of historical reports and assessments going back to 2012.
Forensic history
83It was conceded that you have a 'reasonably significant criminal history' and that is somewhat of an understatement. You have 42 pages of prior convictions, dating back to 2014 when you were just 16.
84You commenced with all manner of offending as a child and then were put on probation in 2014, which you breached. By October of that same year, you had committed offences of armed robbery, robbery, threatened to injure people or kill them. There is a note in your prior history even then made by a sentencing magistrate ordering you not to carry a knife or weapon at any time. You were sentenced to eight months YJC within the same year you started offending.
85And from that time barely a year has gone by without you further offending and presenting to court for sentence. You have appeared 10 times in the Children’s Court between 2014 and 2016. You have appeared in the adult jurisdiction a further 17 times. In other words, you have appeared in court about 27 times in 10 years.
86You have committed almost every conceivable species of violence: assaults, assaults with weapons (as well as possessing them or other dangerous items), threats to kill, threats to inflict serious injury, assault by kicking, aggravated assaults of females, assaulting police or emergency workers, reckless conduct endangering life and recklessly causing injury.
87Sometimes your violence intersects with acts of dishonesty, such as the case before me, where you commit offences such as aggravated burglary with an offensive weapon, robbery and armed robbery.
88You have a number of convictions for dishonesty as well as damaging property offences.
89You have breached intervention orders, bail, and supervisory orders imposed by the courts, all of which have been designed to promote your reform and support you.
90You have received terms of detention in Youth Justice, straight terms of imprisonment, terms of imprisonment with non-parole periods, combination sentences of imprisonment with CCOs, straight CCOs and those with a Justice Plan.
91Your counsel could not point to a court order such as bail, an intervention order or a CCO that you have abided by, save for perhaps a brief period of supervised bail in 2020.[18]
[18]There is a suggestion that at one point you may have completed a CCO in the Office of Corrections Assessment report, but it is not clear.
92The longest sentence you have received to date was 520 days, or about 17 months, followed by a CCO in 2020, and a 12-month sentence of imprisonment with a non-parole period of six months in 2022 for driving offences, breaching a family violence order, assault and assault police. I am told that you were not paroled then.
93I want to stress you are not being re-sentenced for this prior history, it simply paints a grim picture of your prospects for reform. It is a history where multiple courts over a decade have done everything possible to accommodate your vulnerabilities and keep you from long terms in prison. Every alternative avenue to lengthy confinement has been explored to reduce the risk you pose to the community and thus far every avenue has failed.
94You were placed on a 15-month CCO with a Justice Plan on 26 May 2023. That follows 146 days, or about five months' imprisonment, for persistent breach of a family violence order, assault, resist emergency worker, assault emergency worker (3 counts) and other offending.
95Within about a fortnight of being released on that Justice Plan you committed this offending and I consider that fact accentuates the gravity of the matters before me.
96That being said, there is obviously a context to this offending. The deeper context is to be found when one looks at your truly difficult life circumstances. Such circumstances cry out for intensive support. Though you have been eligible for an NDIS package for years now, it seems that nothing ever was really implemented for you. Certainly, nothing was in place under the NDIS at the time of your release. You were given the assistance of only a handful of days of accommodation, but no more additional support than that, which might have given the Justice Plan a chance to succeed. I have covered other stressors operating on you at the time too.
Post offence
97Post-offence you have spent your time in custody in Disability Specialist Unit Marlborough at Port Phillip.
98You reported coping well in this setting. You engaged with 'Power in You', a Geelong-based organisation that supports people with an intellectual disability involved in the criminal justice system.
99You hope to be able to reside in supported accommodation arranged under the auspices of 'Power in You' or Jigsaw, upon your release from custody. Mr Campbell opined that such a placement would be beneficial and would assist you with your transition to the less restrictive environment in the community compared to custody in a specialist unit.[19]Mr Campbell indicates that you would benefit from services to assist with this transition.
[19]Exhibit 3: Campbell report 23 April 24, [37].
100He cautions though: 'The stability experienced in custody compared with the instability [you] experienced in the community throughout adulthood places [you]at risk of becoming 'institutionalised' within a correctional environment'. [20]
[20]Exhibit 3: Campbell report 23 April 24, [34].
101You have self-harmed in custody which I will come to in due course.
102You have engaged in an impressive raft of courses with the Uniting Church.[21] You engaged with Elsie Station. They were able to assist you in whatever transition period may exist between your release and securing DFFH accommodation.
[21]Exhibit 5: AOD report Uniting Church 31 May 24.
103In a letter to the court on our own plea[22] you speak of your future in positive terms - becoming a barber, reconnecting with your children and your foster parents, and these are encouraging goals. You need to be given credit for the way you have engaged with courses in prison thus far.
[22]Exhibit 7: Letter from Caleb Pavlovic.
Supports in Place
104You have had previous releases where you have had accommodation issues and are not engaged in support. Your most recent release is the best example of that.
105You have an NDIS support plan in place and the full scope of that plan was set out in both the package tendered and summarised in the letter of Nathan Sean[23] from Spectrum.
[23]Exhibit 10: NDIS Documentation from Spectrum Support dated 8 July 2024.
106I was provided with a letter of Lara Northrop (formerly of Elsie Station) who now works with Jigsaw supports. They have been constant supporters of you and attended the court hearings in relation to this matter.
107She has spoken to you fortnightly and apparently there is a team of eight or more workers that you can work with.
108Prospective accommodation was said to be available in Mount Eliza with your own room, usual amenities and the like. You would have access to a support worker on-site at all times. All accommodation and utilities would come out of your disability support pension. You would be expected to engage in programs and abide by the direction of staff. It is an alcohol and drug-free facility and regular testing might be conducted to ensure your compliance.
109You engaged well with those who might assist you from that organisation in terms of dialogue and pre-planning for your eventual release. I am told that this is potentially the most well-supported you have been in your adult years, but that is not synonymous with your suitability for a Justice Plan.
110There is no suggestion that this package under the NDIS or plan would disappear if you were not placed on a CCO with a Justice Plan or released immediately, though the desirability of having some certainty of your release date was emphasised for you and those who support you. There are problems with this.
111Ms Thompson, who served you so well on your plea, urged me to sentence you to time served with a Justice Plan upon your release.
112It was said that with this new level of support you may enjoy, your prospects on such an order are enhanced. Further, the idea of judicial monitoring was said to be a powerful tool in keeping you accountable and focused. The threat of being re-sentenced was also said to be a personal deterrent to you.
113But sadly, I cannot accede or accept this submission. One reason is that you are simply not suitable for such an order.
Assessments
Disability assessment and justice Plan
114If you were to be placed on Justice Plan, then the Office of Corrections would need to be involved in this to engage, supervise and assist you, and if necessary, caution or breach you should you be at risk of re-offending or cease abiding by the conditions of such an order.
115In order to give myself as much flexibility and data in the sentencing task as I could, I had you assessed for a Justice Plan. This obviously included an assessment by the Office of Corrections.
116I received an overview report from Holly Barstow[24] which confirms that you have an intellectual disability, and although described as mild, what this really meant is:
'… whilst Mr Pavlovic can function with a level of independence, he requires support in some areas of daily living. Mr Pavlovic’s extremely low level of functioning was likely to be further impacted by foetal alcohol exposure, ADHD and conduct disorder.'
[24]Exhibit 11: Disability Justice Co-ordination Forensic Disability Services. 29 July 2024.
117Further, she quoted Ms Laura Scott, clinical neuropsychologist, who conducted a report of you in 2020. Ms Scott reports that:
'Mr Pavlovic received intermittent supports in childhood and adolescence, with these supports appearing to have been delivered by crisis driven events, poorly coordinated, and with little disability specific input.'
118Ms Scott suggests there is significant hope for improving your level of functioning through engaging you with NDIS supports, which is likely to reduce the risk of future reoffending.
119What was hoped was that you still engage with Elsie Station and other services, as well as take advantage of the NDIS package which involved support co-ordinators, a behavioural support practitioner and an occupational therapist.
120The Justice Plan itself contained recommendations that you engage with a disability coordinator from the DFFH for the duration of the order and participate in further planning as required.
121It was noted that you had an NDIS plan for the last year but your current NDIS plan really did only commence on 2 July 2024. A psychological assessment authored by Austin Campbell, Next Door Psychology, dated 23 April 2024, recommended that you would benefit from a skills-based approach, such as that utilised in DBT, to provide you with adapting coping strategies for identifying, communicating and managing distressing emotional experiences, along with a speech therapist to address issues with communication that can likely exacerbate your involvement in challenging behaviours.
Community Corrections
122You would obviously have to be supervised by the Office of Corrections.[25] In a comprehensive report by the Office of Corrections, which involved a number of interviews with you as well as being apprised of the full suite of NDIS support and others available to you, you were assessed as unsuitable for such an order.
[25]Exhibit 12: Pre-sentence report of Whiro Poutapu and Guri Dhillon dated 2 August 2024.
123You have failed to complete seven out of eight previous CCOs. You have a history of not focusing during orders and being unwilling to engage with workers during orders. You say that you have previously been focused on drugs but do wish to change.
124Your risk assessment caused me real concern. Out of the eight metrics used to assess your risk, you were rated 'very high' in six of them. For the remaining two domains you were still assessed as 'high.' [26]
[26]Exhibit 12: Pre-sentence report of Whiro Poutapu and Guri Dhillon dated 2 August 2024, 6.
125You have engaged in multiple episodes of damaging property in prison, including lighting fires, threats to self-harm, actual self-harm, attempts on your own life and non-compliance with directions and threats to staff.
126You could not apparently see the need to talk to a psychologist and claim that you have no supports, which is very much at odds with the letter that you wrote where you communicated with various people about this.
127Considering the incidents above, your inability to behave appropriately even within a controlled environment, was very concerning to Community Corrections as you pose not only a risk to yourself and the community but also to them.
128The assessor concluded as follows:
'Mr Pavlovic is assessed as being high risk of general re-offending.
His criminal history dates back to 2014 for offences that involve a range of violent offences which continue to escalate in a repetitive manner. Sentencing dispositions have encompassed terms of imprisonment coupled with CCOs, tailored appropriately to serve Mr Pavlovic via Justice Plans and other conditions to address matters that contribute to offending. These orders have all been contravened despite the best efforts of CCS and other service providers attempting to engage Mr Pavlovic with treatment. Mr Pavlovic appears to have little regards for court orders.
His history of violence is concerning and important to note as he poses a potential risk of occupational violence due to this inability to behave appropriately within a controlled and structured setting. As noted above, he has acted impulsively in a violent manner towards prison staff and towards himself and started fires in his cell. Due to this he poses a risk to CCS staff and other services who will frequently challenge and discuss his decision- making surrounding offending.
In consideration of all the information in the body of the report, he is unsuitable.'
129So it seems while you are prepared to engage in a controlled environment with those from the NDIS and other people of your choosing, that is not the case when you are dealing with the Office of Corrections. I am told today that support offered by organisations such as Jigsaw might provide a liaison or a barrier between you and the Office of Corrections to smooth your progress or assist you. I consider that speculative.
130Your unsuitability for an order is not determinative, of course, you are unquestionably a very high risk of offending. Those who would be tasked with supervising you say that they simply cannot do so safely or effectively. They say that even when they have been informed of the other services available to scaffold and support you.
131I make this observation, as your recent history suggests, admittedly without this possible level of support being present; within a fortnight you can go from release of custody on a Justice Plan to serious offending. Without careful management and the spectre of immediate consequences upon deviation from the terms of release, I fear you will behave similarly again.
132The Adult Parole Board will be well-placed to assess the risk that you inevitably present to the community at the time of your release. I repeat what I said earlier; there is no suggestion that the NDIS package will evaporate if you are imprisoned or not released immediately or that it will not be available on parole. I am entitled to expect that when and if the APB considers your release, they will have full regard to those supports available to you and liaise with them. If you were to be released it would be under their close supervision with much more severe and immediate consequences on a breach other than that which would occur on a breach of CCO.
SENTENCING PRINCIPLE
133I have dealt specifically elsewhere with matters of principle insofar as it relates to the offending before me. Principles of punishment, denunciation, general deterrence and especially protection of the community loom large.
Plea of Guilty
134You entered pleas of guilty after being committed for a trial. Your committal was done by way of submissions only and witnesses were not cross-examined.
135This plea is important, and you are entitled to a meaningful discount for it.[27] It demonstrates a willingness to accept responsibility for offending and to facilitate the course of justice as well as demonstrating remorse. The savings to the community are noteworthy.
[27]Phillips v The Queen [2012] VSCA 140 at [38].
136The principles established in Worboyes[28] are diminishing over time as the Court emerges from the resourcing issues of the pandemic. Nevertheless, this plea attracts a real utilitarian value and will be reflected in the sentence.
[28] Worboyes [2021] VSCA 169, [39].
137You evidenced a degree of remorse at the time of your arrest, and repeated that regret to the CCO assessor and again in your letter to the Court. I accept that you are contrite for what you have done.
Youth
138You are still relatively young, having turned 26 in custody. Your counsel urged me to still give your prospects for reform consideration in light of this and I have endeavoured to do so.
139I have taken into account your comparative youth, but I cannot give it the primacy in the sentencing exercise your Counsel wished me to. Here, it must yield to other sentencing considerations, especially the protection of the community,
Verdins / Muldrock
140It is principally your Intellectual disability that enlivens the principles of the kind discussed in Verdins[29] via Muldrock [30]
[29](2007) 16 VR 269,
[30](2011) 244 CLR 120
141The principles applicable to mental impairment due to mental illness are the same as the principles applied to the antiquated and offensive term I find, 'mental impairment due to mental retardation'. Verdins makes that clear. There is no separate category of case to which Muldrock appears but Verdins does not. [31]
[31]Ryder [2016] VSCA 3
142In Muldrock the High Court unanimously said the following:
50. The assessment that the appellant suffers from a "mild intellectual disability" should not obscure the fact that he is mentally retarded. The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly subaverage general intellectual functioning and significant limitations in adaptive functioning. "Significantly subaverage intellectual functioning" is defined as an intelligence quotient (IQ or IQ-equivalent) of about 70 or below. The position is well explained in a discussion paper published by the New South Wales Law Reform Commission:
"A person's intellectual disability can be classified as 'mild', 'moderate', 'severe' or 'profound', based upon certain IQ (intelligence quotient) ranges. A further category, 'borderline', is also used to indicate people just above the mild range in terms of intellectual functioning. A person with a 'severe' or 'profound' disability may be unable to learn basic social skills such as speech, walking and personal care, and is likely to require supported accommodation. The majority of people with an intellectual disability have a 'mild' level of intellectual disability and 'can learn skills of reading, writing, numeracy, and daily living sufficient to enable them to live independently in the community.' These classifications have limited utility and can sometimes be misleading. For example, such terms may suggest to criminal justice personnel, who do not have a full understanding of the disability involved, that a 'mild' intellectual disability is inconsequential." (footnotes omitted)
...
53. Black DCJ's finding, expressed in lay terms, that the appellant's intellectual disability is "significant", was apt. It was an error for the Court of Criminal Appeal to reject the finding, if that is what it did. Alternatively, it was an error for the Court to find that Black DCJ's determination, that general deterrence had no place in sentencing the appellant, was not justified by the evidence. One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:
"General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."
In the same case, Lush J explained the reason for the principle in this way:
"[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community."
54. The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community. [citations omitted]
143You can be assured I have applied these principles in the sentence I have imposed. Your moral culpability is of course lessened because of your cognitive issues and the inevitable connection it has to your offending. It is hard to make an example of you to others as you are not representative of a very large proportion of the community at all. I must still attempt to specifically deter you. You must be punished, and that punishment will be 'just' in the sense it accommodates your own makeup and vulnerabilities. Demonstrably, you suffer in custody as your many episodes of self-harm attest to.
144These are important considerations, but they are not the only considerations applicable to you.
Deprivation
145It is submitted that your background as particularised above is such that the principles outlined in Bugmy[32] should be given their full weight. This is unquestionably true and Mr Pirrie did not try and persuade me otherwise.
[32]Bugmy v R [2013] HCA 37.
146In Bugmy the High Court made the following observation:
“The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving 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 alcohol 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 may increase the importance of protecting the community from the offender.”[33]
[33]Bugmy v R [2013] HCA 37, [42]-[43].
147In Marrah[34], when addressing an Appeal where it was pleaded that the Learned Sentencing Judge had failed to take into account the Applicant’s deprived upbringing, the Court adopted Bugmy in the following passage:
“Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behavior. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending.”[35] (my emphasis added)
[34]Marrah v The Queen [2014] VSCA 119.
[35]Marrah v The Queen [2014] VSCA 119, [16].
Protection of the community
148In this case, the way in which you were raised creates the very kind of tension of the kind referred to in Marrah. There are twin edges to the Bugmy principles – on the one hand, a reduction in moral culpability, but on the other, there is a heightened need for community protection, if an accused's criminal history and the circumstances of the present offending compel such a finding. They do here.
149In your case, your culpability is reduced because of your deprived childhood and adolescence. Sadly, in part that childhood has shaped a man who the community now needs protection from, given your dangerous propensity for violence and the demonstrable efforts made to help you change have so far failed.
150The community can be protected either by removing you from its number for a period of time or promoting your reform which is of course the most durable and long-lasting protection the community has. Often, the protection of the community requires both, as is the case here.
151The Court is obliged, as far as it can, to impose a sentence that enhances your prospects for reform. Your history suggests your issues make reform very difficult. Even with the possibility of the NDIS support offered, it is still highly speculative in my view that you can be safely managed in the community. I repeat, my view is that the APB will be placed best to make that assessment at a date in the future.
152I have not concluded that your prospects for reform have been extinguished, but the community absolutely needs to be protected from you.
Totality
153I am mindful of the significance in this case of the application of that principle which requires me when sentencing you for multiple offences to ensure that the aggregate term I impose is a just and appropriate measure of total criminality.
154There must be an appropriate relativity between the totality of all criminality and the totality of the effective length of the sentence and that is true when I consider the interaction between the charges on the indictment. I determined an appropriate length for each charge, taking the applicable sentencing considerations into account, designated the highest term of the base sentence, and 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 will be.[36]
[36] Norman v The King [2023] VSCA 213, [54]-[55].
Parole
155I am aware that you have spent 430 days in custody, Mr Pavlovic. You have found that very difficult.
156Just punishment and protection of the community must be balanced against the risk that a crushing sentence may ultimately do more harm to the community than good. I have tried my very best to balance those matters. I have taken a parsimonious approach as the law requires me.
157I will fix a non-parole period for you. It is obvious that you require intensive supervision, monitoring and assistance. In fixing an appropriate sentence for you and allowing for a parole eligibility component, I have had regard to the principle of parsimony; as I have said, that is the requirement to not impose a sentence more severe than that which is necessary to achieve the purpose for which sentences must be imposed.
158The purpose of parole is to provide for mitigation of punishment in favour of reform through conditional release when and if appropriate. A non-parole period is the minimum time I determine that justice requires you must serve, having regard to all of the circumstances.
159I have very much attempted to allow to give you a meaningful parole period that may commence (if the APB grants it) in the not-too-distant future. This is by design. It is hoped that it will not be too far away that you lose focus, hope or contact with those who assist you once you are released. You may yet be in a position to re-enter society with serious support, and a sensibly structured sentence would serve the interests of community in minimising the risk of further offending following the completion of the sentence. [37]
[37] Mohamed [2022] VSCA 136, [66].
SENTENCE
160Having carefully considered, balanced and weighed all the relevant sentencing considerations, I will impose a sentence, as I said, that amounts to four years' imprisonment with a non-parole period of two years and nine months, and that is broken down as follows:
# OFFENCE MAX PENALTY SENTENCE CUMUALTON
(ON BASE ON EACH OTHER)1 Causing injury
intentionally[38]10 years 3y 3m BASE 2 Attempted aggravated
carjacking (offensive weapon)[39]20 years 2y 2m 8m 3 Damaging property[40] 10 years 4m 1m RSO 5 Possession of a prohibited weapon without exemption[41] 240 penalty units or
2 years’3m
Nil RSO 6 Possession of a controlled weapon without excuse[42] 120 penalty units or
1 year1m Nil RSO 7 Acting prejudicial to good order of police gaol[43] 10 penalty units $200 fine $200 4 y (48 months)
2 y 9m (33 months)[38]Section 18 Crimes Act 1958.
[39]Section 79A Crimes Act 1958 & Section 321M Crimes Act 1958.
[40]Section 197(1) Crimes Act 1958.
[41]Section 5AA Control of Weapons Act 1990.
[42]Section 6(1) Control of Weapons Act 1990.
[43]Section 100G(1)(a) Corrections Regulations 2019.
TES
161Given three years and three months is the base sentence, I will order eight months of the sentence imposed on Charge 1, and one month of the sentence imposed on Charge 3 to be served cumulatively upon the base, and on each other. That is how the figure is arrived at of four years.
Pre-Sentence Detention
162You have 439 days pre-sentence detention to be declared as reckoned as served and I will make such an order in the record of the court.
s.6AAA Sentencing Act
163To give you an indication, Mr Pavlovic, of how much your sentence has been reduced because of your plea of guilty, but for your plea of guilty I would have sentenced you to a term of imprisonment of five and a half years and I would have ordered you to serve at least four years before you were eligible for parole.
Ancillary Orders
164Given the correspondence with your instructor, Mr Pirrie, I am told there is automatic forfeiture given the nature of related summary offences 6 and 7, and there are no further orders sought.
165MR PIRRIE: That is correct, Your Honour.
166HIS HONOUR: All right. Does anything arise out of the sentence?
167COUNSEL: No, Your Honour.
168HIS HONOUR: Ms Lester, would you benefit from a brief period of time now discussing with Mr Pavlovic, while you have him on the line?
169MS LESTER: Yes, Your Honour, thank you.
170HIS HONOUR: Well I can facilitate that.
171MS LESTER: Thank you, Your Honour.
172HIS HONOUR: Thank you, counsel.
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