Director of Public Prosecutions v Pearson
[2023] VCC 2438
•21 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE KOORI COURT DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02172
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH PEARSON |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2023, 26 April 2023, 20 October 2023 | |
DATE OF SENTENCE: | 21 December 2023 | |
CASE MAY BE CITED AS: | DPP v Pearson | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2438 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Criminal damage – Aggravated carjacking – Possess drug of dependence – Related summary offences – Plea of guilty – Koori Court Jurisdiction – Application of Bugmy principles – Application of Verdins principles – Akoka time – Category 1 offence – Substantial and compelling reasons that are exceptional and rare found.
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] 249 CLR 571; R v Verdins [2007] 16 VR 269; R v McKee & Brooks [2003] VSCA 16; R v Fernando (1993) 76 A Crim R 58; Akoka v The Queen [2017] VSCA 214; DPP v Lombardo [2022] VSCA 204; Fariah v The Queen [2021] VSCA 213; Buckley v The Queen [2022] VSCA 138
Sentence: Total effective sentence of 436 days’ imprisonment in combination with a 3-year community corrections order and two $400 fines.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Dane | Office of Public Prosecutions |
| For the Offender | Ms H. Baxter | Balmer & Associates |
HIS HONOUR:
1Joseph Pearson, you have pleaded guilty in the Koori Court before me to offences on indictment of criminal damage, aggravated carjacking, attempted aggravated carjacking and possess drug of dependence.
2You have also pleaded guilty to relevant summary offences of failing to stop a vehicle after an accident, committing an indictable offence whilst on bail, stating a false name when requested and dangerous driving.
3The maximum penalties applicable are 25 years for aggravated carjacking and 20 years for the attempt, 10 years for criminal damage, 10 years for failing to stop.
4Three months for committing an indictable offence on bail, a fine for stating a false name and address, 12 months for dangerous driving and possessing cannabis. On my assessment of the quantity and the purpose it is five penalty units, as I understand it.
5You have admitted a limited criminal record.
6These are very serious charges before me, and they were committed as a series in a dangerous and violent criminal spree.
7You were 19 years old at the time of your offending and you are now 20.
8The circumstances of your offending are set out in the Summary of Prosecution Opening which was Exhibit A on the Plea and which forms part of these reasons for sentence.
9The offence of aggravated carjacking is a Category 1 offence and I am required to impose a head sentence and non-parole period, with a mandatory minimum of three years unless an exception applies.
Circumstances of Offending
Criminal damage - Charge 4.
10At 2:04 am on 27 August last year, you were captured on CCTV footage exiting an apartment complex at Shuter Street, Moonee Ponds. There are glass doors at the front of that complex.
11You opened the first glass door, and violently slammed the glass door multiple times into the glass structure, attempting to smash the door.
12You continued to the next glass door and slammed the second glass door into the glass structure. The entire glass door completely shattered onto the floor.
13Several hours later, it would seem, you were observed behaving in a 'loud and verbally aggressive' manner.
14Your behaviour was observed to be 'very strange'.
15The damage to the building cost the owners of the apartment complex over $12,000 to repair the damage, have the site cleaned and to have security on overnight.
Aggravated Carjacking
16The aggravated carjacking which, together with the attempt is the most serious aspect of your offending, occurred later on 27 August at around 6.50 pm.
17Your 44-year-old victim was in her parked vehicle, directly out the front of her block of units in Lalor.
18She left her unit and entered her Honda Accord, which was parked in the communal outdoor carpark, directly out the front of her address. She remained in her vehicle for approximately five minutes whilst she used her mobile phone.
19You opened the driver's side door of her vehicle whilst she was typing on her phone. Your victim got a fright and looked to her right to see you standing over her with a large knife in your hand.
20It was terrifying for her of course, as it would be for anyone in her unfortunate position.
21You yelled 'Get out, get out quick', 'get out quickly'. I will refer to your victim as Ms T. Ms T jumped out of the vehicle and you entered it. (Charge 1 - Aggravated Carjacking).
22You yelled again, 'Your handbag', and threw Ms T's red coloured handbag out of the car and onto the ground. She picked up her handbag and ran back inside her unit.
23Throwing your victim's bag out of the car was consistent with your account that you were in a drug addled and possibly psychotic state. You were concerned someone was after you and you wanted the car as a vehicle to get away and beat your perceived pursuer to your mother's house. You were not after any property located in the vehicle.
24I accept you were operating under this confused belief at the time.
25I accept that part of the circumstances leading up to this serious crime included:
·homelessness for a period of time – that period of time whilst you were unwelcome at either parents' abode due to your drug habits and the effects upon you of substances;
·you had not been taking anti-psychotic medication, you were experiencing paranoid thoughts. As you expressed to the extended CCO assessment reporter you had 'lost touch with reality for a bit'.
·You had underlying mental health issues at the time including anxiety.
·You were intoxicated with cocaine and alcohol to a significant degree.
26Your victim ran back inside her unit looking for her husband, and screaming 'Help me, help me'. Ms T woke up her husband and said, 'Quickly they got a knife and took my car, they tried to kill me'. She was crying and in considerable distress.
27You stole the victim's car and drove away from the address.
28Incident 2. I am referring to it as Incident 2 notwithstanding that it is a connected series, the offending before me, and this relates to the related Summary Offences 4 and 17.
Related Summary Offences 4 and 17
29You drove the stolen Honda Accord south down High Street and failed to stop at a red-light traffic signal at the intersection of High Street and Station Street, Lalor. You collided with a Mercedes Benz box truck.
30Both vehicles sustained considerable damage. You failed to stop and after a few seconds continued south down High Street, towards Thomastown.
31You continued travelling south on High Street in the stolen Honda Accord. You approached the intersection of High Street and Keon Parade. The PSO's on patrol at Keon Park Railway observed you travelling south on High Street and could hear the stolen Honda Accord vehicle's 'scraping noise along the road'.
32At approximately 7:03 pm you came to a stop at the red traffic lights at the intersection of High Street and Keon Park Road, Thomastown. You left the vehicle there and fled the scene.
Charges 2 and 3
33The victim in this matter is Mr K. He was 25 years of age.
34He was driving and working for Uber Eats at the time. His vehicle was a silver-coloured Mazda. On the evening of 27 August he was working and on that occasion his partner was travelling with him in the passenger seat.
35Around 7:00 pm he received a pick-up order at Bam Bam Burgers at Johnson Street, Reservoir.
36A few minutes later he arrived out the front and parked his vehicle directly out the front of the restaurant. He left his vehicle and left his engine running.
37Just prior to reaching the front door, he was grabbed to the left chest by you. You forcibly turned him around to face you and you screamed in his face, 'Do you have a car, do you have a car?', leaving him 'absolutely terrified'.
38Mr K tried to push you away, but you overpowered him.
39He was terrified you would steal his car and hurt his partner.
40You screamed 'Give me your car keys or I am going to kill you', and at the same time you removed the large knife from your pants, whilst staring directly at your victim (Charge 3 – Attempted Aggravated Carjacking).
41Mr K feared for his life and ran. You ran in the opposite direction waving your knife at oncoming cars.
42You were arrested a short time later. You provided an incorrect name to police providing the name of Jodee Percy, with a date of birth in October 2002.
43You were bare-chested wearing only tracksuit pants.
44Located in your pockets was approximately six grams of cannabis (Charge 2 – possess drug of dependence).
45You were remanded upon arrest and you spent 163 days in custody prior to your Koori Court plea and a total of 234 days before being released on bail to residential rehabilitation as a deferral of sentence.
Victim Impact Statements
46A victim impact statement has been prepared by Mr K and it became Exhibit C on the plea. I take the impacts upon both victims of the car-jacking and attempted carjacking into account.
47Mr K has described the terror he was subjected to and its ongoing impacts upon his life. His psychological well-being has been damaged significantly. The traumatic effects of your offending upon him has had far reaching negative impacts upon his work life, relationships, social, emotional and psychological health and well-being.
I am satisfied that you are genuinely remorseful for your conduct and its impacts upon all victims, particularly Ms T and Mr K.
Objective Gravity of Offending
48As I have already stated – these offences represent a very serious episode of offending.
49Parliament has set a maximum penalty of 25 years for aggravated carjacking.
50Further, Parliament has determined the offence to be a Category 1 offence.
51These facts emphasise the severity with which the community views offending such as yours.
52Accosting people such as Ms T with a large knife, screaming at her and stealing her car, must be denounced in strong terms. General deterrence is a very significant factor.
53The experience for Ms T, Mr K and others like them is horrific.
54I do accept that you were not thinking at all clearly. You were at a low ebb in your life. Couch surfing and grappling with mental health issues you did not understand then as well as you do now. Your family life was in disarray. You were unwelcome at home due to your substance and alcohol abuse.
55Your drug use and alcohol use was at a disturbingly high level.
56Your drug history goes back to childhood.
57I accept that you were on a downward spiral due to these excesses and other underlying issues.
58I will say more about the relevance of drug and mental health issues as a matter of mitigation and explanation below.
Personal Circumstances
59You are a proud Kamilaroi man born in Brisbane to parents Kane Pearson and Louise Pauly. Your Aboriginal heritage is through your mother's line.
60You have an older sister, Brooklyn, who provided a reference for the court who lives in Lalor with her partner and young baby, Elena, born in November last year whilst you were in custody.
61You have a younger sister, Elise, who lives with your father in Coburg. Your mother lives in Moonee Ponds. Your father works as a union organiser and your mother works as a cleaner.
62I am not going to go into detail about your exposure to alcohol, drugs and violence in your formative years, in the family home and through extended family.
63Your experience included strict corporal punishment from parents and relatives, and at times cruel treatment. You also witnessed violence within the home and extended family.
64These matters are referenced at Paragraphs 8 to 14 and 46 of Exhibit 1 of the Defence Outline and at Paragraphs 20 to 23 and 30 to 35 of Ms Cokorilo's report, and also in the extended CCO assessment and in the reference material that was before me. I have taken into account that reference material and it includes, alongside the reference from your sister, Brooklyn, the reference from Elizabeth Doidge which I have read and accept the contents thereof, Mr Shackleton, your grandparents, Donna Percy and Gregory Percy.
65I accept that you were exposed to violence and alcohol and substance abuse in your formative years and that your neuro-cognitive pathways and processes have been shaped as a result. You have acquired learned behaviours and behavioural patterns that are difficult for a child to re-program. You began to 'mirror' the behaviours of those in the home.
66I accept that inter-generational trauma has been part of the context for these exposures.
67You commenced using substances at a tender age. I was told that other than a period of abstinence in 2021, you could not remember a day prior to your arrest where you were not intoxicated.
68You first began drinking alcohol from the age of 13 and by 15 your consumption of alcohol had escalated to significant daily use. You first tried cannabis at the age of 13 and this again increased to daily use consuming at least five grams a day.
69I was told that you overdosed on Endone and cough syrup at the age of 14. You were using Ecstasy daily from 15. At age 17 you started using methamphetamine, smoking close to two grams of methamphetamine a day.
70You have also used heroin and GHB, MDMA, LSD, Xanax and more recently cocaine. You were using cocaine daily in the lead up to the offending, up to two and a half grams daily. Significant poly-substance abuse history, as I say, going back to a tender age, going back to childhood.
71At 13 and 14, thereabouts, your family moved to Melbourne, and I accept this was a very disruptive time in your life, and the reference material I have referred to, grandparents, sister and Mr Shackleton, touches upon that. It appears that the shift and subsequent family breakdown had a very negative impact on your outlook and coping mechanisms.
72You retreated further into substance abuse and a vicious cycle of loss of employment and homelessness followed.
73You had been engaged in gainful employment – you completed approximately three and a half years of a carpentry apprenticeship.
74Ms Cokorillo writes of your early disadvantage:
'Such an invalidating environment would have undermined his emotional, cognitive and behavioural development and contributed to the ensuing pattern of maladjustment, evidenced by early onset of psychopathology, alcohol and drug abuse, and criminality.'[1]
I accept Ms Cokorillo's conclusion that you began abusing substances to mask your feelings and self-medicate your anxiety.[2]
[1] Paragraph 79.
[2] Paragraph 47.
75Ms Cokorillo diagnoses a persistent depressive disorder, generalised anxiety disorder and probable ADHD. The materials before me are consistent with her findings and I include in that analysis the references tendered on your behalf.
76Ms Cokorillo also had reference to Ms Mynard's earlier report which made those findings as well.
77I will refer generally to Ms Cokorillo's report at Paragraphs 89, 93, 77, 37, 82, 66 and 69 and I accept the contents therein.
Mental Health
78You have been diagnosed with the following clinical diagnoses:
(a) persistent depressive disorder with current episode of major depressive disorder,
(b) generalised anxiety disorder,
(c) alcohol use disorder,
(d) cannabis use disorder,
(e) stimulant use disorder, and
(f) a provisional diagnosis of ADHD.
79You were prescribed Seroquel and an antidepressant in custody.
80As I have noted, you have past diagnoses from as young as 14 for general anxiety disorder, persistent depressive disorder, drug induced psychosis, cannabis and alcohol use disorders.
81Ms Cokorillo draws a link between your untreated psychopathology to your past and current offending, namely that:
'While depression and anxiety do not cause an individual to offend, negative affective states can alter cognition and behaviour, thus impairing impulse control and decision making, and ability to rationalise and consider alternative responses'.
82It also affects your ability to think clearly and act calmly.
83This finding of Ms Cokorillo was relied upon by Ms Baxter in her excellent submissions as providing an explanatory connection to your offending.
84As a result of your depression (with suicidal ideation) and anxiety, your experience in custody will be harsher than it would be for someone without those diagnoses. This is not disputed and I accept mitigation in relation to this factor is appropriate.
85I note you reported experiencing racism at school when you moved to Melbourne. I accept this experience and the psychological effect upon you of insidious and direct racism. The academic and scientific understanding of these effects is in its infancy but is recognised and developing daily.
86I accept in this context the observations of Gunditjmara man Joel Shackleton who wrote that – and I will not read his entire reference but a couple of aspects of it in reference to you –
'Moving interstate is difficult for any child, especially for those of strong ties to a geographically based cultural community. Most other Aboriginal children attend at schools and sports clubs a fair distance away in Melbourne's northern suburbs. As Joseph grew into a teenager he was without his own mob or a local Aboriginal community. I believe this contributed to Joseph leaving school at the age of 16 when he joined the construction industry where I became his close mentor.'
87And a little further on:
'It was evident to me at the age of 18 he was beginning to experience problems with his own mental health. Joseph found it tough to talk about his own struggles and not being from a Victorian Aboriginal mob it was difficult for him to access culturally sensitive services to find someone he could open up to. He didn't know what he was experiencing and had no idea how to look after himself. Joseph grew up in a community where he was taught not to trust police or doctors out of fear, that the system would victimise Aboriginal community members. Amplified by the lack of community around Joseph made it incredibly complicated for him to access support. This is what I believe Joseph, without awareness for what he was doing, turned to drugs and alcohol as a form of self-medication. I have a personal relationship with Joseph's uncle who suffers from the same mental health issues as Joe Joe.'
88He went on to say that you are a 'Good person, determined, intelligent, physically and athletically talented, truly gifted'. He also spoke about inherited trauma.
Participation in Koori Court
89You participated fully in the Koori Court sentencing conversation. You were challenged by Elders Aunty Yvonne Luke and Aunty Faye Muir.
90You were supported by many family and friends at your hearing.
91Your connection to culture and respect for culture and Aboriginal Elders was evident at the sentencing conversation. This strong connection has continued through your periods in culturally enhanced youth rehabilitation services and the recent letter from Ms Neelan emphasises that, and I will come to that.
92Overall, I was impressed by your engagement in the sentencing conversation and your genuine willingness to remain abstinent and free from offending.
93I take into account your participation in the Koori Court conversation and the exposure of your vulnerability, and the confrontation and the challenge that is inherent in the process.
Subjective Responsibility
94Submissions were made on your behalf in relation to the application of the Bugmy v The Queen (“”Bugmy”) principle and also R v Verdins (“Verdins”) in an explanatory sense.[3] The authorities of McKee &Brooks (“McKee & Brooks”) were also relied upon and I accept their application.[4]
[3] Bugmy v The Queen (“”Bugmy”) [2013] 249 CLR 571, R v Verdins (“Verdins”) [2007] 16 VR 269
[4] R v McKee & Brooks (“McKee & Brooks”) [2003] VSCA 16
95A combination of factors led you to where you were in August last year and a number of those factors come down to your own choice, your own choices you made on that day, but there are other choices that contributed to your offending that you did not make.
96Those combination of factors have a relationship with each other such that their combination has greater effect as a whole than the sum of their parts.
97Those factors can be summarised as Bugmy mitigation in a general sense, underlying mental health issues and the contribution of this factor to your functioning and resort to drug dependency as self-medication, and of course early exposure to drug use and associated vulnerability.
98These factors in combination, the interplay and relationship between them, is explanatory of your offending and your moral culpability is assessed in light of these factors.
99In particular, the role of intoxication was significant in your offending, and I find your moral responsibility for intoxication at the age of 19 to be reduced.
100You did not choose to be exposed to violence and drugs as a child. You did not choose your vulnerability to substance use. You did not choose to experience anxiety and depression as a child.
101As I have said, you made criminal choices in August last year that you have been paying the price for, but there are other factors that were related to that offending and you as an individual at the time which you did not choose.
102I am satisfied that these experiences contributed to the bizarre and irrational conduct over the course of this criminal spree. In particular the relationship between catastrophic drug intoxication, your early childhood use, exposure to traumas and dysfunction in childhood, and learned behaviours and responses – and the effect of these factors in combination upon your functioning have a strong explanatory nexus with the serious offending before me.
103I therefore accept the application of Bugmy mitigation in this way, and as I have said, your counsel also relies upon the specific mitigation that flows from the principles in McKee & Brooks. I accept that your case calls for mitigation of sentence due to the role of intoxication and your reduced moral responsibility for that circumstance of your offending.[5]
[5] See also R v Fernando (1993) 76 A Crim R 58
Deferral of Sentence
104I deferred sentence after you had spent effectively eight months in custody, and that was your first time in adult custody and it was a very difficult experience for you. On 20 April you were bailed to Birribi Youth Residential Service Facility and engaged in six days detox at Fitzroy withdrawal unit. On 26 April you were admitted to Birribi Youth Residential Facility at Eltham.
105On 6 June you were transferred to Bunjilwarra Rehabilitation Facility.
106On 15 August there was what has been described as a minor breach of the residential contract, and I consider it a minor breach also. You exited Bunjilwarra. Your bail was varied to reside with your father, Mr Pearson, where you remain living with him and working hard.
10715 August you commenced your participation in the Taskforce Reset Life Program and engaging in employment also.
108I have received during the time of the pleas, or at least further pleas, a letter from Pete Dawson from Bunjilwarra. I will not go back over that but I want to refer to some aspects of Ms Neelan's letter.
109The completion of residential rehabilitation in the 17 weeks that you participated is significant as a sentencing factor. It is significant personally for you and in terms of demonstrated rehabilitation, but it is also a significant sentencing factor in the Akoka v The Queen sense, and I will come to that.[6]
[6] Akoka v The Queen (“Akoka”) [2017] VSCA 214
110Those periods are summarised in the letter dated 20 December from Ms Neelan totalling approximately 17 weeks of Youth Residential programs. I also add that they are culturally specific programs and that is a significant matter for a young man such as yourself.
111Ms Neelan writes:
'Mr Pearson participated in all program types while at Bunjilwarra. He displayed natural leadership qualities and provided a positive influence on group dynamics. He applied himself in accomplishing his individual goals and Bunjilwarra leadership observed his personal development in achieving greater maturity and responsibility while in our care. I particularly note Mr Pearson's outstanding participation in the seven-week Koori Leaders for Change program.'
112And it goes into more detail about positive reports from others who were running that program.
113You remained in regular phone contact with Bunjilwarra staff since your exit from the program in August 2023. You returned to Bunjilwarra in September. Ms Neelan writes you were involved in a formal submission to the Yoorrook Justice Commission with other young Aboriginal men and Bunjilwarra co-manager and cultural leader Uncle Pat Farrant. This was given in conversation with Yoorrook Commissioner Keven Bell and Truth Receiver Shane Morrell. Commissioner Bell and Mr Morrell commented on Mr Pearson's articulate input to the submission process.
114Ms Neelan describes you as an 'intelligent charismatic young Aboriginal man.' It is the opinion of the Bunjilwarra leadership group that:
'Mr Pearson has the capacity to live a pro-social life and contribute meaningfully to his community. It is commendable that he has obtained employment and the reports have successfully maintained abstinence from illicit substance use.'
115It is a very good commendation and I accept those matters. It is significant and you clearly are a vastly different individual than you were in August last year.
116I have been told this morning that you have been working very hard of late, six days a week for the last three weeks in the suburban rail loop, and that is sessional work, it probably will not always be that busy, but you have shown that capacity.
117You are also taking antidepressant and antipsychotic medication and that has been a stabilising influence on you.
118You have the support of your parents, both of whom are here and both are providing strong support for you in more recent years, and I note that in particular given the findings that have been made in relation to early childhood.
119Your grandparents are also providing support, you have siblings and friends who care for you very much.
120You spent 234 days in custody, and as has been noted, a further approximate 17 weeks in voluntary, culturally specific full time residential rehabilitation, and that engages the principle drawn from the case of Akokav The Queen.
121Not only that, since release from Bunjilwarra you have participated in the Taskforce Reset Life Program, and that has not been perfect attendance but the reason for missing sessions and missing modules of that I accept has been a positive reason, and that is that you are engaged in gainful employment and difficult employment through BK Employment, that is still operating. As I have said, working on the suburban rail loop most recently in Clayton, I have been told.
122Importantly, there has been no further offending and I am satisfied that you are abstinent from drugs and alcohol.
123You have demonstrated great commitment and progress towards rehabilitation.
124You are currently winning the battle against drug dependency which was a significant contributor to your offending.
125It was put on your behalf that there are powerful combination of factors which are substantial, compelling, exceptional and rare, amongst others. The hardship in custody due to a major depressive disorder and anxiety disorder, persistent thoughts of death and self-harm in an adult custody setting and the fact that imprisonment would be more burdensome for you. A Youth Justice Centre order is not available, of course. Your strong family support was emphasised. And I will not list all the matters that have been submitted on your behalf by Ms Baxter, some of which will be accepted by Ms Dane in her very helpful and thorough submissions because I will summarise the combination of factors I have had regard to in a moment.
Other Sentencing Considerations – s10AD of the Sentencing Act
126Of course, aggravated carjacking is a Category 1 offence which therefore 10AD applies and engages.[7] The mandatory sentencing provisions which compel the court to effectively impose, in this case a head sentence and non-parole period of three years, non-parole.
[7] Sentencing Act 1991
Exceptions to mandatory sentencing
127Effectively that provision prohibits this court from imposing a non-custodial order or even a custodial order as part of a combination sentence unless an exception applies.
128There are a number of exceptions within the statute. Relevantly in this case defence submit that the exception applies because it can be shown that there are substantial and compelling circumstances that are exceptional and rare and that justify not imposing the mandatory term of imprisonment.
129It is an 'evaluative judgment'[8] that I have to make and when making that evaluative judgment as to whether such circumstances exist I must regard general deterrence and denunciation of your conduct as having greater importance than other purposes set out in s5(1) of the Act; and I must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence; and must not have regard to previous good character (other than an absence of previous convictions or findings of guilt); or an early guilty plea; or prospects of rehabilitation.
[8] There is no “…burden on an offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare”, see [24] in Fariah v The Queen [2021] VSCA 213.
130I am also required to have regard to Parliament's intention as expressed that a custodial order should ordinarily be imposed for a Category 1 offence.
131When making the evaluative assessment of whether there are substantial and compelling circumstances that are exceptional and rare, it is necessary to have regard to the sentencing considerations applicable to cases of aggravated carjacking since in order to justify not imposing imprisonment the circumstances would need to surmount those principles.
132In making that assessment my finding as to where your commission of the offence falls is a relevant factor and I do not propose to adopt descriptors such as 'low, medium', I rely upon my reasons for sentence and remarks in dealing with the objective gravity of the offence as where this matter is placed in the range.
133The Court of Appeal in DPP v Lombardo (“Lombardo”)[9] in relation to s5(2H), which deals with the famed expression of words 'substantial, compelling, exceptional and rare' in the sense of the exception contained in s5(2H)(e) in the Act, that being the case of course which was a dangerous driving causing death case, but it grappled with that phrase 'substantial, compelling, exceptional and rare', justifying departure from imposing imprisonment. The court considered in that case the statutory language and identified two key steps in the enquiry as to whether the exception was satisfied:
'First, the court must identify whether there are substantial and compelling circumstances. This has been interpreted as circumstances that are weighty and forceful or powerful. The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. That is the criterion by which the substance and compulsive force of the circumstances are to be assessed.
The second critical step, if the circumstances are substantial and compelling in the sense described above, asks whether they are also, 'exceptional and rare'. In our view, this is to be regarded as a composite phrase imposing a single test, rather than as two discrete tests. That is because the meaning of the words overlap; in particular, 'exceptional' means 'out of the ordinary course, unusual, special', which includes that which is 'rare'……the two words operate together and each influences the meaning of the overall phrase.'[10]
[9] DPP v Lombardo (”Lombardo”) [2022] VSCA 204
[10] Ibid at [66] – [67].
134The court went on to state:
'…exceptional and rare refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence …'[11]
[11] Ibid at [71]
135In making the evaluative assessment I am entitled to have regard to a combination of factors, and there are many factors personal to you and that relate to the circumstances of the offence and those circumstances that have arisen since the commission of the offence that in combination satisfy the test in my assessment. Those factors include:
·It being your first experience of custody and a difficult experience of custody for some eight months.
·Significant Bugmy mitigation due to childhood disadvantage and its connection with the drivers of the offending in this case, intertwined as this factor is with other relevant factors such as underlying anxiety and depression, vulnerability to drug use, maladaptive coping mechanisms and so on.
·The mitigation that flows from the principles of McKee & Brooks, the offending was clearly strongly linked to intoxication and when considering the application of that principle and your early exposure and early use in childhood in combination with the fact that you have worked hard to resolve that issue and on the evidence that issue now seems to be substantially addressed. That is a significant matter.
·Genuine remorse and desire to reform. The experience of eight months of custody was followed by genuine steps towards rehabilitation during the period of deferral, including engagement with culturally appropriate and culturally specific rehabilitation programs.
·In this context for 17 weeks, or thereabouts, not quite 17 weeks of residential rehabilitation engages the Akoka principle. In the context of a 19-year-old at the time of the offending, 20-year-old, entering rehab, a young person with the vulnerabilities and the history I have set out, that length of residential rehabilitation is significant. The application of the Akoka principle and that lengthy period of residential rehabilitation as well as demonstrating rehabilitation rather than falling under the umbrella of prospects of rehabilitation amounts to demonstrated rehabilitation. Quite apart from that, the restriction on your liberty in the Akoka sense is a matter which would not really be able to be reflected if the mandatory term was imposed. It would be very difficult in any sentence where an exception was not made out to reflect that Akoka time.
·Stability with housing and currently living with your father, the family support of your mother and father but other family members as I have noted, is an important factor as is employment. Participation in the sentencing conversation and the mitigation that flows from that is recognised as more difficult than a conventional plea. Your connection to culture that you demonstrated, and it has been ongoing, and I refer back to yesterday's letter of Ms Neelan.
·A plea of guilty rather than an early plea of guilty. Hardship in custody in a Verdins sense, due to those factors that have been accepted and referred to in my reasons, and my assessment of the circumstances of the offence.
136I am satisfied that these factors in combination amount to substantial and compelling reasons and in the circumstances of this case are exceptional and rare and justify not imposing the mandatory non-parole period, which effectively means a head sentence and non-parole period.
137I will impose a combination sentence. It will be an aggregate sentence due to the serious offending before me – it is properly regarded as a series or a spree and the circumstances of it are appropriate to engage the aggregate sentence provisions.
Sentence
138All charges will not be dealt with in that way. Charge 2, possess cannabis, Charge 2 on the indictment, you are convicted and discharged.
139The summary offence of state false name and address, you are fined $200.
140On all the other charges before me, on indictment and the relevant summary offences you are sentenced to an aggregate sentence of 234 days' imprisonment in combination with a three-year community corrections order.
141That is a lengthy order, it is very serious offending, and the order will include community work, because the principles of general deterrence, denunciation in particular, require it in my view.
142So pursuant to that three-year CCO you are to perform 125 hours of unpaid community work, up to 50 hours of treatment provisions can be credited towards that. You are to be subject to supervision, subject to drug and alcohol assessment and treatment, mental health assessment and treatment.
143I also make it a condition that you are to complete Taskforce Reset Life program.
144I declare that pursuant to s18 of the Sentencing Act you have served 234 days pre-sentence detention - - -
145MS DANE: Your Honour, I apologise for interrupting at this point. My learned friend and I have calculated it at 236.
146HIS HONOUR: It is 236 – yes, okay, I got that. I think it was written elsewhere. And that is very close to eight months. I want to change my order slightly now.
147The aggregate sentence will be 236 days' imprisonment in combination with the three-year CCO as I have just described, and the pre-sentence detention declaration is 236 days.
148Pursuant to s6AAA, if you pleaded not guilty to this matter I would have sentenced you to a head sentence of three years and nine months with a non-parole period of three years.
149I am required to make an order against your licence due to the theft of motor car which is part of the aggravated carjacking. Your licence is cancelled and disqualified for 12 months.
150I recognise that will be a significant imposition on you and a significant punishment itself given that your working life at present. It is important for you to reflect on why you have all this on your plate and it will not be hard for you to reflect back to those eight months in custody and what three years as a non-parole period would have looked like, which is what Parliament intended for this offending.
151An exemption has been found, an exception to those provisions based on, to a degree, your commitment and great efforts towards rehabilitation during the opportunity I gave you as deferral of sentence. The serious nature of the offending still requires those punitive aspects to reflect general deterrence and denunciation. So it will probably get tough over the years ahead, trying to complete the work hours, attend for programs and counselling as directed, particularly if you feel it is interfering with your work. But when you get to those points you have to remind yourself of why it has been imposed and what the alternative was.
152Do you consent to the community corrections order?
153OFFENDER: Yes, Your Honour.
154HIS HONOUR: We will have to stand down for a few minutes to prepare that and I will sign it and then it will go for your signature, but I will tell you more about the obligations of that when we come back for that aspect of it.
155Were there any other orders? Was there a compensation order? I can't recall now.
156MS DANE: I don't believe so, Your Honour, I can check that. I do wish to note – my apologies, Your Honour - - -
157HIS HONOUR: Yes.
158MS DANE: Just briefly in relation to the charge, you mentioned it at the commencement of your reasons, relating to the failure to stop. It was a five penalty unit sentence, and I apologise for that, Your Honour.
159HIS HONOUR: That's all right. No, it did seem odd to me when I was going over it this morning. That's going to require me to make a slight change. Of course, the maximum is not ten years for that offence, it's five penalty units, and therefore that charge, that relevant summary offence, will not be part of the aggregate sentence, it will stand alone. I impose a fine with conviction of $200 in respect of that matter.
160MS DANE: As Your Honour pleases.
161HIS HONOUR: All right, we will stand down briefly.
(Short adjournment.)
162HIS HONOUR: Yes, Ms Dane.
163MS DANE: Your Honour, I am greatly assisted by your very helpful clerk who has reminded me that there was a disposal order sought by the prosecution. There's two items on that disposal order being the cannabis and an iPhone. I would seek that that order is made.
164HIS HONOUR: I make that order, Ms Dane.
165MS DANE: Thank you, Your Honour.
166HIS HONOUR: I make that disposal order. Now I have signed the corrections order, we'll now provide it to your client, Ms Baxter, and if you want to go down with him that's fine, for his signature. All right, thank you Mr Pearson. So you will get a copy of this order and the obligations will be explained to you, you've got to report within two days to Corrections. I have to tell you that if you that if you don't comply with the order, if you breach the order, if you contravene it in any way, particularly by further offending, you can be brought back to me for re-sentence. Given the seriousness of the matters I would have to seriously consider a gaol term. So make sure you comply with it and keep doing what you've been doing.
167I must say it is pleasing that you've carried through on the residential rehabilitation which has enabled me to find the exceptional circumstances. Ms Baxter wrote in her, or referred in her outline to the statement from Buckley v The Queen[12] where the court said 'Mandatory sentencing is a blunt, oppressive sentencing regime contrary to the public interest and incompatible with modern sentencing jurisprudence.'
[12] Buckley v The Queen [2022] VSCA 138
168I think in your case, you're now a 20-year-old man who's working very hard when he gets the opportunity and who's been able to go through nearly 17 weeks of residential rehabilitation which the drug issue lay at the heart of your problem. I think your case really emphasises that point.
169So make sure you take the opportunity, it won't always be easy, like I've said, but it won't be difficult for you to remind yourself of the alternative. So all the best, good luck, and I thank everyone who has come here in support. Adjourn the court.
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