Director of Public Prosecutions v Salmon-Urbani
[2021] VCC 1180
•20 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-01570
CR-20-00827
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MITCHELL SALMON-URBANI |
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JUDGE: | Her Honour Judge Hassan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 July 2021 | |
DATE OF SENTENCE: | 20 August 2021 | |
CASE MAY BE CITED AS: | DPP v Salmon-Urbani | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1180 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — theft — obtain property by deception — burglary — arson — aggravated carjacking — possess drug of dependence — handle stolen goods — drive whilst disqualified — deal with property suspected proceeds of crime — possess prohibited weapon — judge-alone trial — plea of guilty — parity — disparity — victim impact statement — disadvantaged childhood — attention deficit hyperactivity disorder — ADHD — drug abuse — polysubstance abuse — mandatory custodial sentence — minimum non-parole period — special reason — self-induced intoxication — youthful offender — moral culpability
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; Director of Public Prosecutions (Vic) v Drake [2019] VSCA 293
Sentence: Total effective sentence of six years and two months with non-parole period of four years
Section 6AAA declaration: four years with non-parole period of two years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B Sonnet | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr P Bloemen (Plea) Mr W May (Sentence) | May Lawyers |
HER HONOUR:
1Mitchell Salmon-Urbani, you have pleaded guilty to charges on two indictments. The charges on what I will call ‘Indictment 1’ or the ‘plea indictment’ are as follows. You pleaded guilty to:
(i)five charges of theft;
(ii)two charges of obtain property by deception; and
(iii)one charge of burglary.
2You have also pleaded guilty to three related summary offences in connection with this indictment and they are three charges of drive whilst disqualified.
3The maximum penalties are as follows:
· Theft — 10 years
· Obtain property by deception — 10 years
· Burglary — 10 years
· Drive whilst disqualified — two years
4The charges to which you have pleaded guilty on what I will call ‘Indictment 2’ or the ‘trial indictment’ are as follows:
(i)two charges of burglary;
(ii)two charges of theft;
(iii)one charge of arson;
(iv)one charge of possession of a drug of dependence; and
(v)one charge of handle stolen goods.
5You pleaded not guilty to a charge of aggravated carjacking. That charge proceeded in front of me as a judge alone. I found you guilty and have provided my reasons, which do not need to be restated in this sentence.
6In addition, connected with Indictment 2, you also pleaded guilty to three related summary offences, which are as follows:
(i)one charge of dealing with property suspected of being the proceeds of crime; and
(ii)two charges of possession of prohibited weapon.
7Again, the maximum penalties are as follows:
· Burglary — 10 years
· Theft — 10 years
· Arson — 15 years
· Aggravated carjacking — 25 years
· Possession of a drug of dependence — one year
· Handle stolen goods — 15 years
· Dealing with property suspected of being the proceeds of crime — two years
· Possession of a prohibited weapon — two years
8The offence of aggravated carjacking is a category 1 offence under the Sentencing Act 1991 (Vic), and pursuant to s 5(2G), a court must make a mandatory order for imprisonment.
9The offence of aggravated carjacking has a mandatory minimum non-parole period of three years for an adult offender. There is an exception to this rule if a court finds that a ‘special reason’ exists.[1]
[1] Sentencing Act 1991 (Vic) s 10AD.
Circumstances of Offending
10The circumstances of your offending in relation to both indictments are set out fully in the prosecution openings.
Indictment 1
11On 19 March 2019 at approximately 10:40am, Cori Harrison attended at 32 Kelly Street, Chadstone in a stolen Lexus vehicle with a female person (believed to be Zoe Pais). Harrison got out of the vehicle and Pais got into the passenger seat. Harrison walked over to a 2004 Ford Falcon (registration TBW296), gained access and drove the vehicle away. The vehicle belonged to Scott Phillips, who was working on a residential premise at 32 Kelly Street, Chadstone. He heard his vehicle starting up and ran onto the road and attempted to flag down the Lexus vehicle driven by Pais. Phillips then contacted investigating police. CCTV footage depicts Harrison stealing the Ford Falcon vehicle.
12An analysis of your mobile phone reveals videos recorded on 24 March 2019 whilst you are seated in the passenger seat of the stolen vehicle (charge 1 — theft of motor vehicle). On 30 March 2019, investigating police located the stolen Ford Falcon outside 40 Thwaites Road, Pakenham.
13On 25 March 2019 at approximately 8:30am, Matt Wilson parked his 2010 Mitsubishi Triton vehicle (registration XDA557) at a job site at 11 Curved Trunk Road, Officer. He left his keys in the ignition as he walked to the site. You and co-offender Cori Harrison attended the scene in a Toyota Hilux bearing stolen registration plates (S652AED) before getting out of the vehicle and into Wilson’s vehicle and driving it away. The theft of the motor vehicle was captured on CCTV footage. The vehicle was eventually recovered by investigating police after it had been damaged in a vehicle collision (charge 2 — theft of motor vehicle).
14On 25 March 2019 at approximately 8:42am, you and co-offender Cori Harrison attended a milk bar (trading as Aoshun International) on the corner of Irving and Ahern Roads, Pakenham. Harrison used a Commonwealth Bank card belonging to Matt Wilson to make a purchase to the value of $91.50. At the time, you were driving whilst your licence had been suspended (charge 3 — obtain property by deception; summary charge 35 — drive whilst licence suspended).
15On 25 March 2019 at approximately 4:10pm, you and co-offender Harrison attended 17 Feldspar Court, Narre Warren to inspect a 2014 Holden Commodore vehicle (registration 1GX8VF) that Christopher Wilson had advertised on the internet. You attended the scene in a Mitsubishi Triton vehicle bearing stolen registration plates (S652AED). Wilson gave the keys to Harrison for a test drive. Harrison drove the vehicle away at fast speed with the Mitsubishi Triton (driven by you) following behind it. The vehicle was not returned. Wilson reported the theft to investigating police. The stolen vehicle was later recovered by investigating police (charge 4 — theft of motor vehicle).
16On 26 March 2019, you attended at the Coles Express Service Station, Berwick driving the black Toyota Hilux vehicle (registration S652AED). You filled the vehicle with petrol valued at $59.59 and drove off without paying. The incident was captured on CCTV footage. At the time, you were driving whilst your licence had been suspended (charge 5 — theft; summary charge 38 — drive whilst licence suspended).
17On 27 March 2019 at approximately 8am, Aaron Lupton parked his vehicle outside the front of a job site at 5 Kennington Park Drive, Endeavour Hills. Lupton left his wallet, which contained bankcards and other personal items, in the vehicle. At approximately 2pm, Lupton returned to his vehicle to find that his wallet had been stolen (by you) (charge 6 — theft).
18On 27 March 2019 at approximately 12:10pm, you attended the Chemist Warehouse in Knowfield in the stolen Holden Commodore vehicle (registration 1GX8VF). At the time, your co-offender Harrison was also present. You entered the store and used Aaron Lupton’s stolen Commonwealth Bank card to make two fraudulent transactions to the value of $139.97. These transactions were captured on CCTV footage (charge 7 — obtain property by deception).
19On 28 March 2019 at approximately 9:10am, you attended Good Guys, Narre Warren driving the Toyota Hilux bearing stolen registration plates (S652AED). At the time, you were with an unknown co-offender. You drove the vehicle to the rear alleyway of the store next to the loading bay.
20You parked the Toyota Hilux next to the rear delivery door and exited with the co-offender. You and the co-offender entered the store and stole two television sets. The televisions were loaded onto the tray of the vehicle. However, as the vehicle drove away, one television set fell off the vehicle.
21The incident was captured on CCTV footage. The stolen property was valued at $8,790 (charge 8 — burglary; charge 9 — theft).
22At approximately 9:50am, you and an unknown co-offender attended Good Guys, Pakenham. You reversed the Toyota Hilux with stolen registration plates (S652AED) into the loading bay area where your unknown co-offender exited the vehicle and stole a television valued at $1,199 from a pallet. The incident was captured on CCTV footage. At the time, you were driving whilst your licence had been suspended (charge 10 — theft; summary charge 45 — drive whilst licence suspended).
Indictment 2
23On 1 April 2019 at approximately 11:40am, you with co-offenders Zoe Pais and Cori Harrison attended the residential premises at 13 Cross Road, Devon Meadows. Whilst there, Pais stayed in the vehicle whilst you and Harrison gained access to the premises via a rear sliding door. You stole a large quantity of property, mainly consisting of jewellery, computer equipment and passports. An off-duty police officer, SC Glenn Smith, observed you and your co-offenders’ vehicle as he travelled past the premises. The officer returned back to the premises but the vehicle drove away with you and your co-offenders inside. The officer checked the premises and observed that it had just been burgled. Fingerprints were lifted from the scene. The victim Rachel Hyatt estimated the value of the property stolen at $14,750. Investigating police later located a quantity of the property belonging to the victim in a stolen vehicle (charge 1 — burglary; charge 2 — theft).
24On 1 April 2019 at approximately 12:36pm, Glenn Bravo parked his Holden Colorado (registration 1KS3YV) in the driveway of 2 Inverway Way, Clyde where he was working. Bravo left the keys in the ignition of the vehicle and walked into the work site. Bravo left his wallet and mobile phone in the vehicle. You, in company with Harrison, attended the scene and stole Bravo’s vehicle. Later that day, the vehicle was recovered by investigating police after it had been set on fire by unknown offenders. On the following day, the victim located fragmented pieces of his mobile phone and case in the vicinity of the South Gippsland Highway, Hampton Park using an iPhone app. The victim’s wallet was later recovered by investigating police in a stolen vehicle (charge 3 — theft of motor vehicle).
25On 1 April 2019 at approximately 1:14pm, Graeme Dobson walked from his house to his son’s residential premises situated at 320 Officer South Road, Officer South after he observed an unknown vehicle in the driveway. Upon investigation, he observed you and an unknown co-offender exiting the house carrying property stolen from the house. Dobson states that the two offenders left in two different vehicles (a Holden Rodeo vehicle and a Holden Commodore vehicle). The property stolen from the house included computer equipment, a mobile phone, jewellery and cash. Upon police investigation of the premises, it was noted that the offenders had loaded further stolen property into a Ford Mondeo (belonging to the victim Jackson Grey) which was parked in the garage. Dobson had disturbed the offenders before that vehicle could be taken. Investigating police were able to recover some of the property stolen, including a computer laptop later found in the possession of Harrison (charge 4 — burglary; charge 5 — theft).
26On 1 April 2019 at approximately 1:35pm, investigating police were called to a vehicle on fire near 889 Wellington Road, Rowville. The vehicle was the Holden Colorado (registration 1KS3YV) stolen earlier from Mr Bravo. A vehicle was observed speeding away from the scene by the Police Air Wing. You were involved in destroying the Colorado by fire (charge 6 — arson).
27At approximately 1:57pm on 1 April 2019, you and co-offenders Pais and Harrison got into a stolen Mitsubishi Triton vehicle (registration XDA557) which had been parked near the Robert Booth Reserve, Hampton Park. Harrison drove south along The Fairway, Hampton Park. Harrison then turned right onto Fordham Road before continuing to Jeffrey Street, Hampton Park at a fast rate of speed. Harrison then turned into a driveway and performed a U-turn before heading back along Jeffrey Street, Hampton Park. Harrison crossed onto the wrong side of the road while overtaking another vehicle before turning left back onto Fordham Road, Hampton Park.
28Harrison continued driving erratically along Fordham Road until where it turns into Regans Road, Hampton Park. Harrison then turned left onto Somerville Road before crossing onto the wrong side of the road, turning onto Vanessa Drive, Hampton Park. Harrison turned left onto Pound Road and continued driving west before turning left onto the South Gippsland Highway, and continued driving southbound erratically.
29Harrison then drove straight through a red traffic control signal at the intersection with Abbotts Road and almost collided with a number of vehicles. Harrison continued heading south at a fast rate of speed and wove in and out of other traffic without indicating. Harrison then used the emergency lane to pass traffic before cutting back over to the right-hand lanes of the South Gippsland Highway, and performed a U-turn to head back north before turning left onto Northey Road, Lynbrook in a westerly direction. Harrison turned left into a slip lane before merging onto the Western Port Highway, and continued heading south at a fast rate of speed. Harrison turned right onto Glasscocks Road, using the wrong side of the road and almost colliding with another vehicle. Harrison continued heading west along Glasscocks Road at a fast rate of speed.
30Harrison then crossed onto the wrong side of the road to overtake a number of vehicles and continued driving at a fast rate of speed. Harrison turned left onto the Frankston-Dandenong Road and continued heading south at a fast rate of speed. Harrison continued straight through the intersection with Thompsons Road and continued heading south at a fast rate of speed, weaving in and out of traffic.
31At approximately 2:10pm, Harrison was driving at a fast rate of speed towards Wedge Road, Carrum Downs. Harrison then drove straight through a red traffic control signal and collided with the passenger side of a Holden Captiva (registration ULE601) driven by Nicole Welsh. The force of the impact caused the Holden Captiva to roll onto the driver’s side. You and your co-offenders in the stolen Mitsubishi Triton rolled to a stop just south of the intersection.
32You and your co-offenders made no attempt to render assistance to Welsh. Police arrived at the scene. The victim was conveyed to the Frankston Hospital by ambulance for treatment in relation to minor cuts and abrasions. The victim attended the Ballarto Medical Centre for follow-up treatment for her injuries sustained in the collision.
33Harrison got out of the driver’s seat of the stolen Mitsubishi Triton. Pais got out of the front passenger seat and you got out of the rear passenger side of the vehicle. Harrison, followed by you, ran onto the wrong side of Frankston-Dandenong Road and appeared to be attempting to signal down a Volkswagen sedan. However, it turned left onto Wedge Road.
34Harrison then ran back past the stolen Mitsubishi Triton, and to the other side of Wedge Road, in company with you. You jumped into the driver’s side door of a silver station wagon. At the same time, Harrison approached a Ford XR8 vehicle (registration XEQ740) parked behind the silver station wagon that you were in. Harrison pointed an imitation rifle at the driver, Kane Baker, and made the following demand: ‘Get out of the fucking car cunt or I’ll shoot ya!’. Baker was terrified and exited the vehicle, dropping his belongings on the ground next to the vehicle. As Baker was opening his door to get out of the XR8, you were getting out of the driver’s side of the silver station wagon. You approached the passenger’s side of the XR8 as Harrison was getting into the driver’s side. Pais ran over to the vehicle from the stolen Mitsubishi Triton and got in the vehicle before it drove off. The carjacking was witnessed by a number of members of the public. Investigating police arrived at the scene shortly after the incident. The prosecution alleged that you were complicit in the actions of Harrison (charge 7 — aggravated carjacking).
35Harrison continued to drive the vehicle in a reckless manner until the vehicle collided with other vehicles, coming to a stop out the front of the Settlement Hotel, Cranbourne.
Arrest
36You and your two co-offenders then exited the vehicle and scattered in different directions. However, each of you was arrested by police in close proximity to the XR8 motor vehicle.
37You were searched by investigating police and found to be in possession of a small quantity of methylamphetamine (charge 8 — possession of drug of dependence) and stolen goods (driver’s licence, trade card and bank card) in the name of Brett Barnes (charge 9 — handling stolen goods).
38You were also found to be in possession of the following items:
· A Flybuys card, two Myki cards, a wine voucher card, a white glove, a black glove, a camera in case and a pearl earring in case (summary charge 18 — dealing with property suspected of being proceeds of crime)
· A set of knuckledusters (summary charge 19 — possession of prohibited weapon)
· A hunting knife (summary charge 20 — possession of prohibited weapon)
39On 1 April 2019, Senior Constable Saunders made a copy of the Air Wing video recording which depicted the offending covered in the various police pursuits. A witness also provided investigating police with a dash camera recording of the collision with the victim Welsh and the aggravated carjacking in respect of the victim Baker.
Interviews with Police
40You gave ‘no comment’ records of interview with police in respect of both indictments.
Plea of Guilty
41I will turn to your plea of guilty. You indicated a preparedness to plead guilty to all charges except the charge of aggravated carjacking on 3 September 2019. This is an early plea and attracts a significant mitigatory discount, particularly in the current context of COVID-19 and its ongoing effects on the administration of criminal justice. I also accept that your plea of guilty on all charges bar the charge of aggravated carjacking is indicative of some remorse on your part.
Parity
42Issues of parity arise in sentencing you. Most of the charges were committed in the company of a co-offender, Cori Harrison. Mr Harrison pleaded guilty and was sentenced by his Honour Judge Ryan of this Court on 10 July 2020. He was sentenced to a total effective sentence of eight years and five months with a non-parole period of five years.
43I reproduce in these written reasons the helpful chart provided by the prosecution, which sets out fully the charges on which you and Mr Harrison are co-accused, and the individual sentences imposed on Harrison.
Indictment 1 (Plea Indictment)
1 24 March 2019 Theft of motor vehicle - 2 25 March 2019 Theft of motor vehicle Harrison — charge 14
6 months imprisonment
(1 month cumulative)3 25 March 2019 Obtain property by deception Harrison — charge 15
1 month imprisonmentS35 25 March 2019 Drive whilst disqualified - 4 25 March 2019 Theft of motor vehicle Harrison — charge 17
6 months imprisonment
(1 month cumulative)5 26 March 2019 Theft - S38 26 March 2019 Drive whilst disqualified - 6 27 March 2019 Theft
- 7 27 March 2019 Theft Harrison — charge 22
1 month imprisonment8 28 March 2019 Burglary - 9 28 March 2019 Theft - 10 28 March 2019 Theft - S45 28 March 2019 Drive whilst disqualified - Indictment 2 (Trial Indictment)
1 1 April 2019 Burglary Harrison — charge 25
12 months imprisonment2 1 April 2019 Theft Harrison — charge 26
12 months imprisonment
(4 months cumulative)3 1 April 2019 Theft of motor vehicle Harrison — charge 27
6 months imprisonment
(1 month cumulative)4 1 April 2019 Burglary Harrison — charge 28
12 months imprisonment
(4 months cumulative)5 1 April 2019 Theft Harrison — charge 29
12 months imprisonment6 1 April 2019 Arson - 7 1 April 2019 Aggravated carjacking Harrison — charge 32
5 years imprisonment
(base)8 1 April 2019 Possess drug of dependence - 9 1 April 2019 Handle stolen goods - S18 1 April 2019 Deal property suspected proceeds of crime - S19 1 April 2019 Possession prohibited weapon - S20 1 April 2019 Possession prohibited weapon -
Victim Impact Statements
44I turn now to the victim impact statements. There were two victim impact statements tendered at the plea. The first is from Kane Baker, the victim of the aggravated carjacking. Mr Baker says that prior to 1 April 2019 he had recovered from childhood trauma and regarded himself as someone who was living a good life and who was a strong person. Having a gun held to his face changed all that. He was subsequently diagnosed with depression and PTSD. He says he has fought back and that he is now in remission. Mr Baker says that he was self-employed and he has had to take time off work to recover from the effects of your offending. He says this has taken a very significant financial toll on his family.
45Rachel Hyatt was the victim of charge 1 on the trial indictment. You and your co‑offenders broke into her home and stole around $14,000 of her property. Ms Hyatt says the sanctity of her home has been violated. She says she found her home trashed and her dog fearful. She says she has lost many valuable items but, more importantly, she has lost items that are of little value but are irreplaceable, such as a charm bracelet from her deceased husband.
Objective Gravity of the Offending
46I turn now to consider the objective gravity of your offending. Your offending was a criminal rampage starting on 24 March 2019 and culminating in the events of 1 April. Most often acting alongside your co-accused Mr Harrison, you stole the property of multiple individuals, including stealing multiple cars. You set one of the cars alight, which is the charge of arson. You committed deceptions and you burgled both commercial and residential premises.
47As the victim impact statements of Mr Baker and Ms Hyatt attest, you have caused profound and long-lasting suffering to your victims.
48I have watched the police footage of the events of 1 April numerous times for the purpose of determining whether the prosecution had proven your guilt on the charge of aggravated carjacking. On that day, you and your co-accused showed a complete disregard for the safety of the public. You were complicit in the aggravated carjacking in which your co-accused Cori Harrison pointed an imitation firearm at Mr Baker and threatened to shoot him.
49Most of the offences you committed, when viewed in isolation, are low to mid-range examples of crimes of the kind, but viewed globally, yours was objectively serious offending and your behaviour on 1 April must have caused considerable fear to all those who witnessed what occurred.
50At the time of the relevant offending, you were subject to an operational community correction order imposed on 29 May 2018, and this constitutes an aggravating factor in sentencing you.
Personal Circumstances
51I turn now to consider your personal circumstances. Your background is set out in the report of Laura Scott, clinical neuropsychologist, dated 6 July 2021. You were assessed by Ms Scott on 22 June 2021. Ms Scott prepared a report which was tendered at your plea and she also gave evidence at your plea.
52You were born on 28 October 1996 and are presently 24. It is not in dispute that you had a highly disadvantaged childhood. You were born and raised in Dandenong and have a brother, Brett, and a sister, Sarah. Both your parents abused drugs and alcohol and there was significant family violence in the home.
53Your parents separated when you were nine. You lived with your mother, who went on to have another son. You lived with your mother until you were around 18 to 19 years old. Since then, you have lived a transient lifestyle. You completed year 9 and then went on to work as a concreter between the ages of 14 and 21.
54You were taken to see a paediatrician in your adolescence and were diagnosed with a conduct disorder. You reported to Ms Scott a history of polysubstance abuse beginning when you were only 10 years old, and that this was when you began smoking tobacco, using cannabis and drinking alcohol.
Evidence of Laura Scott
55Turning to Ms Scott’s evidence about your intellectual and cognitive function, Ms Scott stated in her report that you present with a globally reduced level of intellectual function. She assessed you as having an IQ score of 74, which is at the fourth percentile (that is, poorer than 96 per cent of the general population). She assessed you as having ‘severe impairment’ (scores below the first percentile) in higher attentional skills. She stated that your impaired higher attentional skills and executive functions, in conjunction with your behavioural profile of restlessness and poor behavioural control, was consistent with attention deficit hyperactivity disorder (‘ADHD’). She also stated that your responses on a formal psychological distress questionnaire were consistent with severe anxiety, moderate depressive symptoms and moderate stress, noting that you had previously been diagnosed with depression and anxiety.
56At your plea, Ms Scott said she did not think that your prior head injuries resulted in a significant permanent acquired brain injury, but she was very confident that you have ADHD of the ‘combined type’, involving both inattentive and hyperactive behaviours.
57Ms Scott said that a history of complex trauma as a child could have a significant impact on the way a child’s brain develops, making them more reactive and ‘less able to cope with stress’. You had early learning and behavioural difficulties as a child. You were diagnosed with a conduct disorder in 2006, which I have referred to, and which is typically diagnosed when a child has difficulty following behavioural expectations or societal rules, and is commonly comorbid with ADHD. Ms Scott felt that with the additional testing she performed, a diagnosis of ADHD was more accurate, rather than just the conduct disorder.
58Ms Scott said that ADHD in combination with a very low level of intellectual function would have early negative impacts on a child’s development, starting them at a disadvantage and putting them on a negative life trajectory where they struggle to form and maintain meaningful relationships and complete education and work. It leads to difficulties in developing appropriate or adaptive coping abilities when facing life stressors and problems regulating emotions. Ms Scott said the symptoms of ADHD, such as impulsivity, restlessness, and difficulty with planning and understanding consequences for actions, increase the risk that a person will make poor choices. This is then exacerbated by stressors such as relationship breakups, using drugs and socialising with dysfunctional people. Ms Scott also opined that people with ADHD and low IQ are at a far greater risk of using drugs than the general population. Indeed, your drug and alcohol use began, as I have stated, when you were aged only 10 years old.
59Ms Scott said the circumstances on the day of the carjacking — the very high pace and stress — would have caused a person with your cognitive and behavioural profile to be very overwhelmed, and you would have struggled to think carefully and rationally. She said that you would have struggled to consider future outcomes and may have followed along with your co-offender because you were too overwhelmed to come up with your own solution to the situation. She also said that you were quite vulnerable to manipulation and to being led by others.
60Ms Scott said that your very low level of intellectual function, history of trauma and symptoms of ADHD were ‘probably significant contributors to the offending behaviour’. She said that your intoxication at the time was also a significant factor and would have exacerbated your already significant cognitive impairments. She noted that all these factors could not be disentangled from one another.
61Ms Scott said that ADHD is a fairly treatable condition, and that your prospects for improvement would be very good if you were to avail yourself of medical and psychological treatment, including trauma-informed therapies. You would also benefit from a structured environment with daily routine and prosocial external influences. Ms Scott said that a period of incarceration would not likely cause any deterioration of your condition, but it would likely delay access to treatment.
62Ms Scott said you expressed regret for your actions. You told her that you understood that people losing their personal belongings is wrong, and that your actions would have caused people fear, which is also wrong. Ms Scott asked if you stopped and thought about what you were doing and how it was impacting on people at the time. You said that it was too late by the time you thought about it.
63Ms Scott acknowledged under cross-examination that despite your difficult childhood and youth, you had worked as a concreter for seven years between the ages of 14 and 21 and you had obtained your driver’s licence. She said that you had told her the explanation for your offending was that you had split up with your girlfriend and went on a drug binge, and you had told her that you were heavily addicted to methylamphetamine at the relevant time.
64She acknowledged that you had committed a number of offences alone and, moreover, offences that involved a degree of planning. She acknowledged that intoxication played a significant role in your offending. She acknowledged that when you were on bail and refrained from drugs you did not offend.
Evidence of Brett Aaron Goodman
65Your brother also gave evidence at your plea. Your brother is Brett Aaron Goodman. Mr Goodman stated that he lived with you in the family home until he moved out at 15. He said there was violence and drug and alcohol use in the home, which contributed to him leaving.
66He said that you lived with him and his family and worked for his roof plumbing business from April 2020 for about 12 months when you were on bail. He said you did well and that you were a good employee who worked hard. He said you told him you were sorry for your offending. He said you would always have a home and a job with him.
Criminal Record
67You have a criminal record but it is limited to appearances in the Children’s Court and three appearances in the Magistrates’ Court for a variety of offences, including driving, possession of weapons and family violence, but you have not been sentenced to a term of imprisonment involving a period of actual custody.
Submissions of Prosecution and Defence Counsel
68I turn now to the submissions of the parties.
69Mr Bloemen, who appeared on your behalf, submitted that you were a young person with good prospects of rehabilitation. He submitted that this is your first time in custody and it will act as a ‘circuit breaker’. He pointed out that you have done courses while in custody and made good progress living with your brother when you were on bail. He submitted that you have the ongoing support of your family.
70Mr Bloemen submitted that both Bugmy[2] and Verdins[3] principles were engaged in sentencing you, and he relied on the evidence of Ms Scott to argue a ‘special reason’ existed, namely your impaired mental functioning, to exempt you from the mandatory application of s 10AD of the Sentencing Act 1991 (Vic).
[2] Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
[3] R v Verdins (2007) 16 VR 269 (‘Verdins’).
71In terms of Verdins, Mr Bloemen submitted all limbs were enlivened, although when I referred him to Ms Scott’s evidence that a period in custody was not likely to cause any deterioration in your mental health, Mr Bloemen did not press the submission that Verdins limbs 5 and 6 were engaged. His submissions focussed on Verdins limb 1, that is, your mental health difficulties were causally linked to your offending, reducing your moral culpability.
72In terms of an exemption to the mandatory application of s 10AD of the Sentencing Act 1991 (Vic), Mr Bloemen relied upon s 10A(2)(c), that a court may make a finding that a special reason exists if —
(c) the offender proves on the balance of probabilities that—
(i) subject to subsection (2A), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability[4]
[4] Sentencing Act 1991 (Vic) s 10A(2)(c).
73I interpose to note that sub-s (2A) states that this exemption does not apply to impaired mental functioning caused substantially by self-induced intoxication.
74Mr Bloemen submitted, in the first place, I could find the exemption proven, and in such circumstances a community correction order was an appropriate sentence; but if I did not, alternatively, a sentence of imprisonment involving a head sentence and a non-parole period was required. Mr Bloemen submitted, however, given Mr Salmon-Urbani’s youth and good prospects of rehabilitation, a longer period of parole was called for.
75Mr Sonnet, who appeared to prosecute, submitted that the offending was serious and warranted a significant term of imprisonment. He submitted that it was accepted by the prosecution that you were a ‘youthful’ offender and that rehabilitation was an important sentencing purpose. He acknowledged that during the period when you were on bail and lived with your brother, you addressed your substance abuse and therefore had demonstrated that your prospects for rehabilitation were sound.
76On the issue of parity, Mr Sonnet submitted that apart from the aggravated carjacking, in which Mr Harrison played a greater role, you played an equal role in all other offences committed jointly with Mr Harrison. However, he submitted it is accepted by the prosecution that Harrison has a more extensive criminal history and that you have better prospects for rehabilitation. In short, it was submitted that disparity in your favour was open to me in sentencing you.
77Mr Sonnet submitted that the sentencing purposes of general deterrence, specific deterrence, protection of the community, and denunciation are all relevant sentencing principles engaged in sentencing you.
78Mr Sonnet accepted Bugmy principles were fully engaged in sentencing you, but submitted there was no application of Verdins.
79In respect to an exemption to the mandatory application of Sentencing Act 1991 (Vic) s 10AD, Mr Sonnet submitted that your offending was linked to your drug use. Ms Scott gave evidence that this was so. He therefore submitted that you were precluded from the application of the exemption. He submitted, in any event, you had not demonstrated on the balance of probabilities that your impaired mental functioning was causally linked to your offending and that your moral culpability was substantially and materially reduced.
Application of Sentencing Principles
80I turn now to consider the submissions of the parties and the application of sentencing principles.
81I begin by considering whether or not you have proven an exemption to s 10AD of the Sentencing Act 1991 (Vic). In my view, and Ms Scott has accepted this in her evidence, your offending is significantly and inextricably linked to your use of drugs. I therefore find that you are precluded from relying upon the exemption set out in the Sentencing Act 1991 (Vic).
82Even if I am wrong about this, I am of the view that, while your low-level intellectual functioning and ADHD may explain your offending to some extent, in that you are easily led and easily become overwhelmed and unable to make considered choices, even so, I do not consider that consistent with the requirements of the Sentencing Act 1991 (Vic) that your reduced cognitive function is causally linked, and to the extent that your moral culpability is substantially and materially reduced.
83It is clear that when you abstain from drugs you can achieve. During the period you were on bail and living with your brother, you were living a productive and law‑abiding life.
84You are therefore caught by the mandatory application of Sentencing Act 1991 (Vic) s 10AD in respect of charge 7, the aggravated carjacking.
85It is clear you have led a difficult and disadvantaged life and Bugmy principles are engaged in sentencing you. As the Court of Appeal has stated in the case of Director of Public Prosecutions (Vic) v Drake,
the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.[5]
[5] [2019] VSCA 293, [32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
86I find your moral culpability for your offending is moderated pursuant to Bugmy principles.
87I am also prepared to find that there is some engagement of Verdins moderating your moral culpability. Your offending was fuelled by your drug consumption, but you have been addicted from an early age and I am mindful of the authorities allowing for some mitigation of moral culpability where drug addiction commences at an early age and is connected with mental health difficulties and criminal offending.[6]
[6] See R v McKee (2003) 138 A Crim R 88, 94 [21] (Buchanan JA).
88I accept the submissions advanced by the prosecution on parity. In particular, I accept that, notwithstanding that you ran a trial on the charge of aggravated carjacking, because of your lesser role and because of your co-offender Harrison’s more substantial criminal history, there should be disparity in sentence, and it should act in your favour.
89I accept that your prospects of rehabilitation are good, given the ongoing support of your family and your brother in particular.
90I accept that prison will be a difficult place for you, given your youth and that this is your first time in custody, and in the current restrictive conditions necessitated by the COVID-19 pandemic.
91You are an appropriate vehicle for the application of both specific and general deterrence. You are a person from whom the community must be protected and your conduct must be publicly denounced.
92Weighing up as best I can all the matters to which I must take account under the Sentencing Act 1991 (Vic) and matters personal to you, I intend to sentence you as follows.
Sentence and Orders
93You are convicted on all charges, indictable and summary.
94In respect of Indictment 1: on charge 1, you are sentenced to three months’ imprisonment; on charge 2, five months’ imprisonment; on charge 3, one month’s imprisonment; on charge 4, five months’ imprisonment; on charge 5, one month’s imprisonment; on charge 6, three months’ imprisonment; on charge 7, one month’s imprisonment; on charge 8, 12 months’ imprisonment; on charge 9, nine months’ imprisonment; and on charge 10, three months’ imprisonment.
95On the summary charges of drive whilst disqualified, you are sentenced to an aggregate sentence of six months’ imprisonment.
96In respect of Indictment 2: on charge 1, 10 months’ imprisonment; on charge 2, 10 months’ imprisonment; on charge 3, five months’ imprisonment; on charge 4, 10 months’ imprisonment; on charge 5, 10 months’ imprisonment; on charge 6, 12 months’ imprisonment; on charge 7, four years’ imprisonment; on charge 8, one month’s imprisonment; and on charge 9, two months’ imprisonment.
97On summary charge 18, two months’ imprisonment; and on summary charges 19 and 20, 14 days’ imprisonment on each of them.
98Charge 7 on Indictment 2 is the base charge. I make the following orders for cumulation. Going back to Indictment 1: charge 1, one month; charge 2, one month; charge 4, one month; charge 6, one month; charge 8, four months; and charge 10, one month; and two months on the summary charge on the aggregate summary sentence. The cumulation orders in respect of Indictment 2 are four months on charge 2, one month on charge 3, four months on charge 4, four months on charge 6, one month on charge 9, and one month on summary charge 18.
99That makes a total effective sentence of six years and two months. I set a non-parole period of four years.
100I declare that you have served 408 days of pre-sentence detention.
Driver’s Licence Orders
101In respect of the driver’s licence orders, on Indictment 1, charges 1, 2 and 4, which are thefts of motor vehicles, your driver’s licence is suspended for three months in respect of each of those charges. I am not making any discretionary orders on the summary charges. On Indictment 2, charge 3, three months’ licence suspension on theft of a motor vehicle; on charge 7, four years’ driver’s licence suspension. That will commence today.
102So given that Mr Salmon-Urbani has served just over a year, there will be some implications for his licence if he gets parole at the earliest opportunity. That is my intention.
103It is often said that Sentencing Act 1991 (Vic) s 6AAA declarations are speculative in nature; this one particularly so, given that I have had to take the aggravated carjacking out of the picture and contemplate a sentence for the matters to which Mr Salmon-Urbani pleaded guilty. But doing the best I can, the s 6AAA declaration would have been a total effective sentence of four years and a non-parole period of two years. And that of course would cover offences not including the aggravated carjacking.
104I hope the driver’s licence orders were clear. You will certainly have a copy of the orders. But as I said, the effect is it is a four-year suspension beginning today and as I said, with a four-year non-parole period and 408 days having been served, if Mr Salmon-Urbani is granted parole at the earliest opportunity, and that of course is not a matter for me, there will be some carryover of the licence suspension. That is my intention.
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