Director of Public Prosecutions v Pavlovic

[2020] VCC 1663

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01922
CR 20-01095

DIRECTOR OF PUBLIC PROSECUTIONS

v

CALEB PAVLOVIC

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JUDGE:	HER HONOUR JUDGE LEIGHFIELD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 October 2020
CASE MAY BE CITED AS:	DPP v Pavlovic
MEDIUM NEUTRAL CITATION:	[2020] VCC 1663

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy
For the Accused	Mr D. Gibson

HER HONOUR: 

1Caleb Pavlovic, you have pleaded guilty to five charges across two indictments.  The first indictment, K10680139.1 contained a single charge of aggravated burglary for which the maximum penalty is 25 years' imprisonment.  The second indictment, K11582094 contained two charges of theft, Charges 1 and 2, one charge of handle stolen good, Charge 4, and one charge of criminal damage, Charge 3.  The maximum penalty for each of theft and criminal damage is 10 years' imprisonment whilst the maximum penalty for handling stolen goods is 15 years' imprisonment. 

2You also consented to this court hearing and pleaded guilty to a related summary offence of contravening a conduct condition of bail contrary to s.30(a)(1) of the Bail Act 1977 Victoria, which carries a maximum penalty of three months' imprisonment or 30 penalty units. These offences all occurred between 13 and 14 March 2019. At the time you were 21 years of age.

Circumstances of the offending

3The full circumstances of the offending are set out in two documents which were tendered on the plea, being the prosecution opening upon plea, dated 14 July 2020 which was tendered as Exhibit A in respect to the first indictment and the prosecution opening upon plea, dated 12 October 2020 which was tendered as Exhibit B in respect to the second indictment.  However, in brief compass, at approximately 5.15 am, on 13 March 2019 you and a co-accused who has been provided a pseudonym of Robin Norman[1] attended at a residential address in Tyabb.

[1] A pseudonym.

4A blue Mazda was stolen from the premises, Charge 1 on the second indictment, theft.  Shortly thereafter you attended at the United service station in Seaford an filled the motor vehicle with petrol to the value of $39.65.  You made no attempt to pay for the petrol and left the premises, which is Charge 2 on the second indictment, theft.  Somewhere between 6.34 am and 7.03 am on 13 March 2019, you and Master Norman both attended at an address at Clarinda.

5At the time, the owner of the house was not present having already left for work but his niece was present and was asleep in bed.  You and Master Norman were both on foot at the time.  You both entered onto the property where you walked down the driveway, through a side gate and to the back of the property.  The owner's niece was woken by the doorbell ringing but did not go to the front door as she thought the ringing was from somewhere else.  Five minutes later she heard a lot of banging and clattering.

6Master Norman had broken into the house through the backdoor, damaging both the wire metal screen door and the door frame.  The owner's niece then heard Master Norman thumping down the corridor of the house.  He opened her bedroom door, saw her and ran.  The owner's niece did not get a good look at the intruder.  She did not see any weapon and it is not alleged that Master Norman said anything to her.  That is Charge 1 on the first indictment, aggravated burglary.

7Master Norman ran out through the backdoor and out the side gate.  The owner's niece then got out of bed.  She was scared, nervous and startled.  She telephoned her uncle to tell him what had happened and then rang 000.  A neighbour who had seen someone fleeing in the street approached the house and asked the owner's niece if she was all right.  She spoke to him through two closed front doors as she was too scared to come out.  I am told that CCTV from the neighbour's house obtained after the incident shows you leaving the street in a Mazda utility at approximately 7.03 or 7.04 am and Master Norman running from the property at 7.04 am after you had already left the area.  Nothing was stolen from the house.

8At approximately 3 pm that same afternoon, you were walking on the footpath next to the Frankston-Dandenong Road in Frankston.  You were arrested and searched by police who located two items on you, a key to the stolen Mazda vehicle together with a key from a Toyota Corolla which is Charge 4 on the second indictment to handle stolen goods. 

9You were taken to Frankston police station for the purpose of being interviewed in respect of charges of theft of motor vehicle and theft of petrol.  The arresting members did not know of your involvement in the aggravated burglary at this time.  During a break in the interview you became extremely agitated and damaged a chair that was bolted to the ground.  You broke the back from the chair and rendered it unusable.  Charge 3 on the second indictment, criminal damage. 

10Ultimately the interview was concluded with you making admissions to stealing the petrol, driving the stolen Mazda and keeping the key to the Mazda.  You were then released on bail later that day.  One of your bail condition was a curfew condition requiring you to be at 80 Ashleigh Avenue, Frankston each evening between 9 pm and 6 pm.  The next day, 14 March 2019, police attended at 80 Ashleigh Avenue, Frankston at 9.30 pm and you were not present.  That absence from the address constitutes the related summary offence of contravening a conduct condition of bail.

11Police re-attended the address on 15 March 2019 to execute a search warrant.  On this occasion you were present and you were arrested and conveyed to the police station where you participated in a record of interview.  You were asked questions about two aggravated burglaries, the aggravated burglary the subject of this proceeding and another one which had also occurred in Clarinda on the same day.  You admitted that you had been driving a vehicle with Master Norman as your passenger on the morning of 13 March 2019. 

12You said that you had dropped Master Norman off in Clayton at some shops.  You stated that Master Norman had asked you for a knife so that he could do some burgs and that you gave Master Norman a small bladed flick knife.  You

13denied being involved in any aggravated burglaries.  You were remanded in custody following your interview and remained in custody until 5 September 2019 when you were granted bail.  Bail was then revoked on 31 October 2019 and you have been on remand since that time.  As a result you have now served a total of 522 days of pre-sentence detention not including today's date.

Guilty plea

14In respect of the first indictment, you were originally charged with two aggravated burglaries.  In July 2019, you did make an offer through your lawyers to plead guilty to the two charges which are now proceeding, but that offer was made on a different factual basis and the offer was rejected by the prosecution.  You then proceeded to run an informant only contested committal in the Magistrates' Court on 19 September 2019.  You were committed to stand trial in respect of both aggravated burglaries.  Your matter was listed for pre-trial argument on 15 July 2020, however after further negotiations the prosecution filed over an indictment containing a single charge of aggravated burglary to which you entered a plea of guilty. 

15Further, on that day, you made an application for this matter to be remitted to the Magistrates' Court for plea and sentence.  That application was refused. 

16Despite the fact that a plea to the aggravated burglary was not formally entered until the matter had reached this court, I still consider it to be a relatively early plea, given that you have indicated a desire to plead guilty to these two charges in some form, since an early stage in these proceedings. 

17Further, the plea is of significant weight for a number of other reasons.  Firstly, the victim of the aggravated burglary has not been required to give evidence at any stage, and has been saved the ordeal of reliving the events of that morning. 

18Secondly, your plea facilitates the course of justice and has utilitarian value, especially in the current climate of the pandemic and the significant impact that COVID-19 has had on the efficient running of the criminal justice system. 

19Thirdly, I note the prosecuting counsel conceded that if it was not for the admissions which you made in your record of interview there would have been no admissible evidence of the existence of the weapon during this aggravated burglary nor your role in provision of the weapon to the co-accused. 

20Fourthly, I am satisfied that your plea of guilty reflects an acceptance of responsibility by you for your offending and also reflects remorse within the extent of your capabilities.

21Insofar as the charges on the second indictment are concerned, those charges were laid by a separate informant and we listed to be heard summarily in the Magistrates' Court. 

22Given the inter-relatedness of the events forming the subject of the first and second indictment, whilst you had indicated an intention to plead guilty to some appropriately framed charges in respect to the second indictment, those matters could not be resolved until the events the subject of the first indictment had resolved.  

23The parties then appropriately took steps between the first hearing of this plea and today, to have the charges, the subject of the second indictment, uplifted into the indictable stream, and committed by way of straight hand-up brief to this court for a plea.

24As with your plea on the first indictment, I am satisfied that your pleas of guilty on the second indictment are also of significant weight.  You made admissions to some of the conduct, the subject of the charges when you were interviewed by police and were willing to plead guilty to at least some offences in respect of that offending, albeit the final resolution took some time, and further your plea has facilitated the course of justice, have utilitarian value and reflect acceptance of responsibility for your conduct.  Accordingly, I have given you a substantial discount on sentence for each of your pleas of guilty. 

Co-accused and parity

25Your co-accused Robin Norman pleaded guilty to his involvement in the aggravated burglary as part of a large consolidated plea in the Children's Court in mid-2020.  Master Norman was convicted on all charges in order to be detained in a Youth Justice centre for a total effective period of two years and 10 months.  He received a period of six months detention in respect of this aggravated burglary.  It is not clear what sentence, if any, Master Norman received for the theft of the motor vehicle. 

26Given the vast difference in the sentencing regimes as between the Children's Court and courts dealing with adult offenders and the age difference between Master Norman and yourself, the principle of parity has only a minimal role to play in sentencing you for this offence.

Victim Impact

27The victim of the aggravated burglary has not made a victim impact statement in this case.  However, even in the absence of a victim impact statement, a sentencing judge is entitled to draw reasonable inferences from the evidence before the court of any injury, loss or damage.  It is apparent from the material before the court that the incident shocked and scared the victim, at least in the short term which is understandable as she would have expected and would have been entitled to expect, to be safe in her uncle's home.  I take this victim impact into account.

28I note as a matter of completeness that I also did not receive victim impact statements in respect of any of the offences, the subject of the second indictment. 

Prior Criminal History

29As revealed by the criminal record filed with this court, you have a lengthy and serious criminal history for someone so young.  You first came before the court when you were 14 years of age, not long after you had spent six and a half weeks in the Maroondah Psychiatric Unit. 

30Between 2012 and 2016, you were sentenced in the Children's Court on at least ten different occasions, for a multitude of offences including dishonesty, violence and drug offences.  You received a good behaviour bond, probation and youth supervision orders before being sentenced to your first period of detention in a youth justice centre in 2015 when you were 17 years of age.

31Between 2017 and your remand on these matters, you also appeared on a number of occasions in the Magistrates' Court including the ARC List of the Magistrates' Court, largely for dishonesty and violence offences, whereby you received community correction orders and terms of imprisonment.

32Your criminal record shows that you have, until now, engaged in a consistent pattern of offending, being placed on orders and then breaching those orders by reoffending.  You have not, to date, been able to take advantage of the rehabilitative orders provided to you, which unfortunately is not surprising when your background, mental health and cognitive difficulties are considered.

Personal Circumstances

33You are now still only 22 years of age, but your life to date has been a difficult one.  You were born to a mother who was drug-addicted and who not only engaged in poly-substance abuse, but was also prescribed and took both Risperidone and methadone whilst pregnant with you.

34Further there was a history of foetal alcohol exposure and both of your biological parents had a history of serious mental health issues, including bipolar disorder and schizophrenia. 

35You were removed from the care of your parents when you were just three months of age, due to concerns held by the Department of Health and Human Services about your mother's social circumstances, mental health and drug use. 

36You were placed in foster care with Robin and Jim Johnson when you were five months of age, and Mrs Johnson has been, and continues to be very loving and supportive of you.  You consider her to be your mother.  Your biological father died when you were eight years of age and you last saw your biological mother when you were 15 years of age. 

37You had real difficulties at school, both with behaviour and learning.  You attended Hastings Primary School up to Grade 3 but struggled to learn letters, numbers and colours.  You also had trouble with regulating your emotions, communicating feelings and controlling impulses, which resulted in significant behavioural difficulties in the classroom. 

38You were then home-schooled for a year before recommencing school at Grade 4 level, attending part time at St Joseph's Primary School and two days per week at a special development school. 

39Soon after enrolment in 2008, you were diagnosed with a mild intellectual disability, and also provisionally diagnosed with ADHD conduct disorder and reactive attachment disorder. 

40You attended classes on a part time basis until Grade 6, mornings only, under the supervision of a teacher's aide. 

41You were then enrolled in Year 7 at Westernport Secondary College in 2011, where again you received the assistance of a teacher's aide.  It seems that you commenced using drugs during 2011 and in early 2012, you were admitted to Stepping Stones, a youth-inpatient psychiatric program for approximately six and a half weeks.

42This admission resulted from concerns for your wellbeing, after you had been frequently absconding from home and had had a number of hospital emergency admissions for various reasons, including overdosing on medication, superficial self-harm and drug use.  You were also expressing suicidal thoughts when angry. 

43Whilst you continued at school during 2012, you also continued to have behavioural and learning difficulties.  Your teacher's aide at the time reported that you had severe expressive and receptive language difficulties, but were able to engage in some basic academic work. 

44More positively, it was also noted at this time that you were an excellent skateboarder and BMX bike rider and this made you popular with your peers because of your skills.

45Unfortunately, during 2012, DHHS removed you from the care of your foster parents due to concerns about your behaviour in the home.  This was also the year that you first came before the court for offending behaviour. 

46You participated in a neuro-psychological assessment in 2012 with Dr Yasmin Boliz who confirmed the diagnosis of mild intellectual disability, and formed the opinion that some neuro-biological abnormalities were contributing to your behavioural difficulties, with your profile being consistent with foetal alcohol effects. 

47You did not return to school in 2013 and spent the five years between 2012 and 2017 in the residential care system, only returning to live with your foster parents in late 2017 after two further hospitalisations for psychiatric issues. 

48Throughout those five years, you had multiple engagements with the criminal justice system, engaged in extensive drug use and had several hospitalisations for mental health issues including for recovery after a suicide attempt.

49The one bright light throughout this period was your skill as a BMW rider and you managed to obtain sponsorship from a bike shop in that sport for a period.  However, ultimately your ongoing drug and mental health issues resulted in you longer riding. 

50Whilst you have loving and supportive foster parents, ultimately I am of the view that the social disadvantage which you suffered as a result of your birth and biological parentage has significantly impacted on your development, your mental health, your schooling, your socialisation and your susceptibility to drug use. 

51Accordingly, it is a relevant consideration in sentencing and I have taken it into consideration when assessing the weight to be given to each of the sentencing purposes. 

Cognitive functioning and application of Verdins principles

52You have recently been reassessed in respect of your cognitive functioning by Ms Laura Scott, a neuro-psychologist prepared a report for the purposes of this proceeding.  

53Ms Scott originally assessed you on 20 February 2020 and the conducted a review on 21 July 2020.  Ms Scott also had access to a number of historical reports as to your functioning and a copy of your NDIS plan, each of which were also tendered on this plea.

54It was argued by your counsel and not disputed by prosecuting counsel, that on the basis of Ms Scott's report I can be satisfied for each of the principles in
R v Verdins [2017] 16 VR 269 apply in respect of each of the offences before the court in this matter.

55That is, it was submitted that I could be satisfied that your moral culpability for the offences is reduced by reason of your cognitive functioning, thereby reducing the weight to be given to just punishment and denunciation. 

56Reduced weight should also be given to deterrence as the purpose of sentencing, both having regard to the impact of the mental impairment on you at the time of both offending and sentencing. 

57The hardship you will face in custody is greater than that suffered by others without your difficulties.  A less severe sentence is justified by reason of you being at serious risk of your mental health being significantly impacted whilst you remain in custody and your cognitive functioning influences the type of sentence which could be imposed and the conditions in which it could be served. 

58The report from Ms Scott was extensive and I accept the conclusions that she has reached.  I do not intend to recite all aspects of the findings made by Ms Scott nor the material she relied upon to reach those findings. 

59However, the following observations and conclusions of Ms Scott are of particular relevance to my sentencing task.  You have established diagnoses of mild intellectual disability, ADHD, depression and anxiety in the context of foetal alcohol exposure as well as a history of severe mental illness, including anxiety, depression and schizophrenia which has manifested itself in a history of self-harm, suicide attempts, acute psychotic episodes and a very high number of major depressive episodes. 

60You have a full scale IQ of 61 which is consistent with the results obtained on two prior testing occasions and the established diagnosis of mild intellectual disability and which places you within the lower range for a mild intellectual disability. 

61You present with an overall reduced level of cognitive function with many scores falling at or below the second percentile, performing poorer than 98 per cent of the general population.  You demonstrate particular difficulties with scores falling below the first percentile with attentional skills, working memory, new learning and recall of information as well as aspects of executive function including planning and organisation. 

62One example of the extent of your difficulties is that you have difficulty comprehending written information that is above Grade 1 level.  Behaviourally, you struggle to concentrate, are easily distracted, restless, perseverative and disorganised.  You struggle to cope independently in a community setting and are heavily reliant on input from family members to manage important activities of daily living such as meal preparation, financial matters, communication, relationships and adherence to social norms. 

63Your symptoms of intellectual disability, ADHD, depression, anxiety and schizophrenia combine to significantly impede your capacity to function at a level equivalent to your peers and your ability to participate in the economic and social life of the community. 

64You are easily overwhelmed and struggle with information processing at a basic level.  You have an impulse control disorder which predisposes you to rash actions and short term thinking and severely reduces your ability to regulate your own emotions and behaviour.  This also results in poor regulation of your emotions and actions relative to social expectations.

65You have a dysexecutive profile which makes you very vulnerable to external influence since you have difficulty independently generating plans for solving day-to-day problems, e.g. how to obtain money and food or other goods.  Impairments due to your intellectual disability and ADHD are permanent and typically present from early childhood which they did in your case.  These impairment would have been present at the time of the offending and been exacerbated by the effects of fatigue, acute intoxication and increasing mental illness. 

66You were able to demonstrate superficial understanding that your actions were wrong, particularly with regard to the aggravated burglary.  However, your severe difficulties with higher executive processes reduce your capacity to draw links between your actions and the future consequences of those actions.  Further, your difficulties concentrating, slow processing, disorganised though processes, limited capacity for abstract reasoning, impulsivity and mental inflexibility impede your capacity to make reasoned decisions and exercise sound judgment.

67Whilst your impairments and cognitive function are substantial and would be expected to diminish your capacity to fully appreciate the consequences of your actions for yourself and others, nonetheless, you demonstrate some remorse on the clinical interview.

68Your cognitive and behavioural impairments due to multiple neuro developmental disorders and severe mental illness and in particular, your impulsivity, poor executive skills and susceptibility to influence would have contributed significantly to your offending behaviour. 

69Your global impairments in cognitive functioning place you at a disadvantage in a custodial setting where you are at risk of victimisation and manipulation.  You are also at risk of unintentional breaches and failures to follow commands due to your poor concertation, poor memory and disorganisation.  Your impulsivity, restlessness and poor self-regulation could also increase the risk of interpersonal conflict.  You have, however, recently been transferred to the disability unit of the prison where you are responding well to the mental program and additional supports. 

70Your current mental state is concerning.  You are currently reporting mild symptoms of situational distress.  However, this could potentially worsen if you remain in custody for a protracted period of time.  Given your history of severe mental illness, self-harm and suicidality, there is an increased risk of deterioration of your mental health whilst in custody. 

71Moving forward, there is significant scope for improving your level of daily function.  Mild intellectual disability and ADHD are conditions which although permanent are amenable to treatment.  Whilst you received intermittent supports in childhood and adolescence, these were largely crisis driven and poorly coordinated.  You did however engage well with formal services and supports in the past albeit these were mostly mental health or justice oriented and there was little disability specific input. 

72You now have access to a well-funded NDIS plan.  It includes provision for behaviour support and care coordination which you have never had before.  Given this new situation, the prospects for improvement in daily functions seemed good. 

73Whilst you remain in custody, you will derive limited benefit from your allocation of NDIS funding and you are unlikely to receive appropriate treatment for your ADHD due to the stimulant medications used to treat ADHD being rarely prescribed in prison.  You would benefit from the opportunity to return to the community and engage fully with NDIS service providers, participation in a community-based or at least more likely to be successful if NDIS services are engaged early and from a cognitive perspective, your impairments may increase the risk of future offending.  However, if you can engage fully with the NDIS supports, this may be meaningfully reduced. 

74I am satisfied based on the material before the court that your cognitive functioning is such that your moral culpability for this offending is reduced, thereby reducing the weight to be given to just punishment and denunciation.  Further, the weight to be given to the sentencing purpose of general deterrence is substantially reduced in this case, by reason of both your cognitive functioning at the time of the aggravated burglary and currently.

75I am further satisfied that the hardship that you have faced in custody by reason of your intellectual disability and mental health issues has been until recently greater than that which would be suffered by someone without your issues and I also take that into account although I note that your current placement in the disability unit appears to have alleviated some of that burden of imprisonment.  I also place some very limited weight on the risk of serious deterioration of your mental health in custody. 

76Finally, I am satisfied that your cognitive issues and the now available treatment and support plan through NDIS are highly relevant factors in determining the type of sentence to be imposed and the conditions to be placed on that sentence. 

Impact of COVID-19

77During the period that you have been in custody, you have been impacted by the COVID-19 pandemic in a number of ways.  You are currently in the Marlborough Unit of Port Phillip Prison and are working as a billet doing cleaning.  However, since March and despite working in a billet, you have been in lockdown in your cell for between 12 and 18 hours of each day. 

78Educational programs have been suspended as have physical visits from family members and friends.  Your partner had been visiting you twice per week in addition to phone contact but you are now limited to one video contact with your partner per week as well as telephone contact. 

79You have both found it difficult to not see each other in person.  Further, you have had to face the additional stress in respect of concern for your health should the virus spread in prison and concern for your partner and foster mother in the community.  I take this added burden of imprisonment into account.

Gravity of the offending

80With respect to the first indictment, your role in the aggravated burglary is said to be as follows.  You drove yourself and Master Norman to the property.  You supplied Master Norman with the knife that he had with him when he entered the property and whilst you did enter the grounds of the property, you waited outside the house whilst Master Norman went inside the house. 

81Further, I note that the knife was not actually produced or used during the offending.  Master Norman left the house immediately upon realising someone was present and there was no associated abuse, violence or theft. 

82Aggravated burglary is a serious offence and this particular aggravated burglary was in my view in the middle range of such offences given the presence of the knife.  Ordinarily, in sentencing for such an offence, the sentencing purposes of general deterrence, denunciation and just punishment would need to be given significant weight.  However, given the findings I have made in respect of the contribution of your cognitive functioning to your offending behaviour and the resultant reduction in your moral culpability, the weight to be given to those factors in your case are substantially diminished.

83Insofar as the offences on the second indictment are concerned, the dishonesty offences are serious and aggravated by your history of similar offending.  However, they are clearly not as serious as the aggravated burglary.  The criminal damage and failure to comply with your bail conditions whilst also serious - who have we lost?  No?  That is all right - whilst also serious are reflective of your mental health issues and cognitive function. 

84As with the aggravated burglary, the weight I might have otherwise given to the sentencing purposes of general deterrence and denunciation in respect of each of these offences is diminished by reason of the contribution of your cognitive functioning to your offending behaviour.

Rehabilitation and community protection

85In the past you have not been able to take full advantage of rehabilitative treatment orders partly due to the lack of cohesion in support services available to you.  However, you are now in a position where you have a significant number of supports available to you.  You have family support through both your foster mother Ms Johnson and your girlfriend Chelsea Brown.  It is proposed that on release from custody that you will live with Ms Brown in the Geelong region away from the negative peer group you have previously been associated with. 

86You will have the ongoing support of Ermha Youth and Family Services.  You have been engaged with Ermha since March of 2016, however, there is now specific funding in place under your NDIS plan for them to provide you with extensive support.  Whist in custody you have been receiving five hours of direct support per week.  However, upon release, that will increase to over 40 hours of support per week including weekends, public holidays and even shifts. 

87Further, your current NDIS plan which is in place until 4 June 2021 had provision for 106 hours of specialist behaviour and intervention support, 30 hours of behaviour management plan and training in behaviour management strategies, 120 hours of specialist support coordination and funding for an allied health professional, therapist and skilled development group to assess and provide support in improving daily living.

88As identified by Ms Scott, this is the first time you will have available to you a fully coordinated disability specific support plan.  You and the community can only gain the full benefit of this support plan if you are in the community rather than in custody. 

89Therefore, whilst your prior history and prior engagement with rehabilitative sentencing orders are both extremely poor and point towards limited prospects for rehabilitation, you are currently in the best position you have ever been in in terms of being able to address and limit the impact of your impairments.  In my view, the sentencing purposes of rehabilitation and protection of the community are going to be best met through you being able to take advantage of these supports which are now available to you, especially given that you are also still a youthful offender.

Sentencing submissions

90Mr Gibson submitted on your behalf that a combination of imprisonment and a community corrections order is appropriate having regard to a number of factors including your role in the offences, your early plea of guilty, the impact of COVID-19 upon you in custody, the significant mitigation afforded through the impact of your mental health and intellectual functioning on both you and as a contributing factor in your offending behaviour, your deprived background, your youth and the significant supports in place to assist you in your rehabilitation. 

91Mr D'Arcy on behalf of the prosecution also submitted that the combination of a term of imprisonment and a community corrections order is open in the circumstances. 

92Whilst you have already been in custody for approximately 17 months, this does not prevent a combination sentence of imprisonment and a community corrections order being imposed in this case. 

93Pursuant to s.44(1) of the Sentencing Act, a community corrections order can be imposed in combination with a term of imprisonment if the sum of all of the terms of imprisonment to be served after the deduction of any pre-sentence detention is one year or less. 

94Further, pursuant to s.5(4C) of the Act, a court must not impose the confinement of an offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community corrections order. 

95As was recognised by the Court of Appeal in its guideline judgment of Boulton v The Queen [2014] 46 VR 308,

'A CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment such as for example aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide.  The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.' 

96Having carefully considered the various sentencing considerations raised by this case, I am of the view that all sentencing purposes in this case can be achieved through the imposition of a combination of a term of imprisonment and a community corrections order for the aggravated burglary, imprisonment for the offences on the second indictment and a monetary penalty for the breach of conduct condition of bail. 

97I have taken into account the principles of proportionality and totality in determining the length of imprisonment, the length of the community corrections order, the conditions imposed on the community corrections order and the amount of the fine. 

98I also note that I have had you assessed for a community corrections order and that you have been assessed as suitable for such an order.  You engaged well with the assessor and presented as a person who is eager to make positive changes in your life.

99Amongst the recommendations as to conditions, the assessing officer identified that you would benefit from being assessed by DHHS for suitability for a justice plan.  I note that the request for such an assessment was made at the same time as the request for a pre-sentence report.  However, an administrative error has resulted in a delay in receiving that report. 

100Given the significant assistance which will be afforded to you pursuant to your NDIS plan, I intend to sentence you today in the absence of that assessment for a justice plan being returned. However, when the report is eventually available, in the event that you are assessed as suitable for a justice plan, at the first judicial monitoring hearing in respect of your community corrections order, I will call upon the Secretary pursuant to s.48L of the Sentencing Act 1991 to advise as to whether a justice plan condition needs to be added to the order to advance your rehabilitation.

101If so, I would have no difficulty with varying the order upon the application of any party pursuant to ss.48M and 48N of the Sentencing Act. 

102So this is now the sentence.

103Mr Pavlovic, you will be sentenced on each charge as follows:

104Indictment K10680139.1:  On Charge 1 - aggravated burglary, you are convicted and sentenced to a term of imprisonment of 450 days.  In addition to the imprisonment component of the sentence, on your release from custody, you will be placed on a community corrections order with conviction for a period of 18 months.  In addition to the mandatory conditions of the order, you will be subject to the following special conditions. 

105You will be under the supervision of a community corrections officer for the entire period of the order.  You must undergo assessment and treatment including testing for drug abuse or dependency as directed.  You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.  You must participate in programs and/or courses that address factors relating to the offending as directed and you will be subject to judicial monitoring which means that you must reappear at court for review of your compliance with the order as directed by the court.  You must attend for your first review on 7 December 2020 at 9 am at the County Court at Melbourne.

106I note that pursuant to s.48L of the Sentencing Act, I request that Corrections provide me with an update on 7 December 2020 as to whether a justice plan condition needs to be added to the community corrections order to further assist with your rehabilitation.

107On the related summary charge of contravening a conduct condition of bail, you are convicted and fined the sum of $400.  That fine will be referred to Fines Victoria for collection and management. 

108On Indictment K11582094:  On Charge 1 of theft, I sentence you to a term of imprisonment of 90 days.  That will be the base sentence. 

109On Charge 2 - theft, you are sentenced to a term of imprisonment of 30 days .

110On Charge 3 - criminal damage, you are sentenced to a term of imprisonment of 30 days. 

111On Charge 4 - handle stolen goods, you are sentenced to a term of imprisonment of 60 days. 

112I direct that 15 days of the sentence imposed on Charge 2, 15 days of the sentence imposed on Charge 3 and 30 days of the sentence imposed on Charge 4 be served cumulatively with the sentence imposed on Charge 1 and with each other. 

113The total effective sentence on Indictment K11582094 is therefore 150 days.

Cumulation as between indictments

114I order that 70 days of the total effective sentence in relation to Indictment 11582094 be served cumulatively upon the sentence in respect of Charge 1 on Indictment K10680139.1.  Therefore the global total effective sentence is 520 days' imprisonment.

115The period of 522 days of pre-sentence detention, not including today's date, is hereby declared as having already been served in respect of the global total effective sentence and I order that such declaration and its details be entered in the records of the court. 

116Pursuant to s.6AAA of the Sentencing Act, I indicate that had you pleaded not guilty to the chargers for which you received a term of imprisonment today and being convicted of them, you would have been sentenced to a total term of imprisonment of 30 months with a non-parole period of 20 months.

117In respect of Charge 1 on the second indictment, theft of motor vehicle, you are disqualified from driving in the State of Victoria for a period of three months commencing today 13 October 2020. 

118No other ancillary orders have been sought. 

119Counsel, are there any other matters that either of you wish to raise at this stage in respect to either the sentence or the reasons for sentence before I address Mr Pavlovic in more simple terms as to the effect of my sentence?

120MR GIBSON:  No, Your Honour.  

121HER HONOUR:  Thank you Mr Gibson.

122MR D'ARCY:  No, Your Honour.  

123HER HONOUR:  Thank you Mr D'Arcy.  All right.

124So Mr Pavlovic, I still cannot see you but I assume that you are still there because Mr Gibson has not told me that you are not.

125OFFENDER:  Yeah.

126MR GIBSON:  He is, Your Honour, yes.

127OFFENDER:  Yeah, I can still see you.

128HER HONOUR:  Good, good.  So I know I was talking for a very, very long time then.

129OFFENDER:  Yeah.

130HER HONOUR:  But basically what all of that comes down to is that I have taken into account your plea of guilty ‑ ‑ ‑ 

131OFFENDER:  Yep.

132HER HONOUR:  ‑ ‑ ‑ and I have given you a lesser sentence because you pleaded guilty to all of the charges.

133OFFENDER:  Yep.

134HER HONOUR:  I have also taken into account a whole pile of other things including your mental health and your intellectual disability, all right?

135OFFENDER:  Yes, Your Honour.

136HER HONOUR:  And what you have ended up with overall is a total sentence of imprisonment of 520 days and you have already done 522 days.  So you will be released from prison today.  All right?

137OFFENDER:  Yeah, yeah.

138HER HONOUR:  All right.  And then what happens from today is that you have to start on a community corrections order.  And that is going to be ‑ ‑ ‑ 

139OFFENDER:  Yeah, I know how that works.  Sorry.

140HER HONOUR:  Sorry?  No, go on.

141OFFENDER:  I was going to say I know how it works and all that.

142HER HONOUR:  Good, good.  Well, I still have to explain it to you.  So that community corrections order is going to be for 18 months.

143OFFENDER:  Yes.

144HER HONOUR:  The first thing you have got to do on that community corrections order is within the next two days, so either - so today is Tuesday.  So by the end of Thursday you need to make a phone call to Corrections at Geelong ‑ ‑ ‑ 

145OFFENDER:  Yep.

146HER HONOUR:  ‑ ‑ ‑ so that they can tell you when your first appointment is going to be.  All right?

147OFFENDER:  Yes, Your Honour.

148HER HONOUR:  You will get some paperwork today and that will have the phone number on it that you need to ring, all right?

149OFFENDER:  Yes.

150HER HONOUR:  All right.  Once you have done that first report to Corrections, there is a series of things that you are going to have to do over the next 18 months.

151OFFENDER:  Yes, Your Honour.

152HER HONOUR:  So you are going to have to have supervision which means that there will be a Corrections officer who will help you throughout this entire 18 months and you will have meetings with that officer, all right?

153OFFENDER:  Yes, Your Honour.

154HER HONOUR:  All right.  You are also going to have to be assessed as to whether you need to do any treatment for drug use.

155OFFENDER:  Yes, Your Honour.

156HER HONOUR:  And you might have to do some treatment and you might have to give some urine tests.  So if you are asked to do that, you need to do it.

157OFFENDER:  Yes, Your Honour.

158HER HONOUR:  Same thing in relation to your mental health.  You might be asked to do some treatment for your mental health.

159OFFENDER:  Yep.

160HER HONOUR:  If you are asked to do that, then you need to do it.

161OFFENDER:  Yes, Your Honour.

162HER HONOUR:  And you need to do any programs that Corrections ask you to do as well.

163OFFENDER:  Yep.

164HER HONOUR:  And then what is going to happen is you are going to come back before me every so often so I can see how things are going, all right?

165OFFENDER:  Yeah, I have done judicial monitoring before (indistinct) past.

166HER HONOUR:  All right, good.  So you know how it works.  Good.  So I am really keen to see how this goes.

167OFFENDER:  When is my next court date? 

168HER HONOUR:  So 7 December.

169OFFENDER:  Okay.

170HER HONOUR:  At 9 am.  And we will have to work out with you whether you are going to appear by video from Geelong.  I think that is probably how we will do it, is get you to go to your Corrections office at Geelong and appear by video from Geelong rather than dragging you all the way up to Melbourne, all right?

171OFFENDER:  Yeah, thanks Your Honour .

172HER HONOUR:  Right.  Now, with that Corrections order, if you get yourself into trouble, so if you commit any further offences ‑ ‑ ‑ 

173OFFENDER:  Yeah.

174HER HONOUR:  ‑ ‑ ‑ and get charged by the police during the period of the order, so during the next 18 months, you can be brought back to court and I may have to look at whether I have resentenced you on the aggravated burglary, all right?

175OFFENDER:  Yeah.

176HER HONOUR:  So it is really important that you do not do anything else wrong in the sense of breaking the law, all right, in the 18 months?

177OFFENDER:  Yes, Your Honour.  Yeah.

178HER HONOUR:  The other thing is just that you need to make sure you do everything that you are asked to do otherwise, again, you can come back before me and I might have to resentence, all right?

179OFFENDER:  Yes, Your Honour.

180HER HONOUR:  All right.  And you are happy to do that order?

181OFFENDER:  Yes.

182HER HONOUR:  Right, good.  All right.  So the only other things are you cannot drive until you have got a licence first of all.

183OFFENDER:  Yeah.

184HER HONOUR:  But second of all, you are not allowed to drive at least in the next three months, all right?

185OFFENDER:  Yes, Your Honour.

186HER HONOUR:  And you have got a $400 fine to pay as well.  But it does not have to be paid immediately.  You can have some time to pay that.

187OFFENDER:  Yes.

188HER HONOUR:  All right?

189OFFENDER:  Yes, thank you. 

190HER HONOUR:  Do you understand all of that Mr Pavlovic?

191OFFENDER:  Yes, I do, Your Honour.

192HER HONOUR:  All right.  Most important thing for you to remember is to call Corrections by Thursday at the very latest all right?

193OFFENDER:  Yes, Your Honour.

194HER HONOUR:  Wonderful.  Anything further from counsel?

195MR D'ARCY:  Your Honour, in the pre-Webex days ‑ ‑ ‑ 

196HER HONOUR:  Yes.

197MR D'ARCY:  ‑ ‑ ‑ the accused used to have to sign an acknowledgment of the CCO.  Is that able to be done via the gaol?

198HER HONOUR:  That will be done at the prison, Mr D'Arcy.

199MR D'ARCY:  Yes, yes.

200HER HONOUR:  What we have been doing when we have somebody in custody is having a verbal acknowledgement but that includes putting all of the mandatory conditions and I thought that was probably a bit much to do in the stress of the court hearing for Mr Pavlovic.  So I would prefer that they just take him through it and just get him to sign it at the prison where there is a little bit more time and less pressure.

201MR D'ARCY:  Yes.

202HER HONOUR:  But Mr Gibson, I will give you some time with Mr Pavlovic when the rest of us leave this meeting so that you can have a discussion with him about hat sentence and what he needs to do, just to make sure that he has actually understood everything he needs to do.

203MR GIBSON:  Thank you, Your Honour. 

204HER HONOUR:  All right.  Is there anything further from counsel at this point?

205MR D'ARCY:  No, Your Honour. 

206HER HONOUR:  No?  Can I thank you both and also your instructors?  I can see Ms Andressen is still on but Mr D'Arcy, if you could pass on to Ms Schwarz as well ‑ ‑ ‑ 

207MR D'ARCY:  Certainly.

208HER HONOUR:  ‑ ‑ ‑ my gratitude for the assistance that each of you have provided and your instructors have clearly done quite a bit of work as well and have been scrambling behind the scenes when I have asked questions too.  So if you could pass that on to Ms Schwarz, Mr D'Arcy.

209MR D'ARCY:  Certainly.

210HER HONOUR:  And Ms Andressen can hear that for herself because she is still linked in.  All right.  And obviously, thank you both for your assistance too.

211COUNSEL:  Thank you, Your Honour. 

212HER HONOUR:  All right.  Ms Aguirre, if you would like to adjourn the court.

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