Director of Public Prosecutions v Sarpor
[2022] VCC 773
•30 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02584
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v WILFRED SARPOR |
---
JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2022 | |
DATE OF SENTENCE: | 30 May 2022 | |
CASE MAY BE CITED AS: | DPP v Sarpor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 773 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Carjacking - Theft of a motor vehicle - Arson - Aggravated carjacking – Co offender - Multiple victims - Theft - Youthful offender - No criminal history - Alcohol use disorder - Sedative use disorder - Post-traumatic stress disorder - General deterrence - Rehabilitation as a prominent sentencing consideration - Early plea of guilty - Prior good character - Difficult upbringing – Mandatory Non Parole period
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited: Verdins v The Queen [2007] VSCA 102; R v Mills [1998] 4 VR 235; Mammoliti v The Queen [2020] VSCA 52;; Worboyes v The Queen [2021] VSCA 169; Barnard, Stephen (a pseudonym) v The Queen [2022] VSCA 42; DPP v Pan [2022] VSCA 98; Power v The Queen [1974] HCA 26; Farmer v The Queen [2020] VSCA 140; DPP v Hodgson [2016] VSCA 254; Fariah v The Queen [2021] VSCA 213; Peers v The Queen [2021] VSCA 264; Sabbatucci v The Queen [2021] VSCA 340; Firebird Global v Republic of Nauru [2015] HCA 43
Sentence: Imprisonment of 4 years and 6 months with a non-parole period of 3 years - Compensation order - s 6AAA declaration - Imprisonment of 6 years with a non-parole period of 4 years - Licence disqualification
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Ms S. Buckley | Chris McLennan & Co |
HIS HONOUR:
1Wilfred Sarpor, you have pleaded guilty to:
(a) a charge of carjacking, which has a maximum sentence of 15 years’ imprisonment;
(b) two charges of theft; each have a maximum sentence of 10 years;
(c) a charge of arson, which has a maximum sentence of 15 years;
(d) a charge of aggravated carjacking, which has a maximum sentence of 25 years’ imprisonment; and
(e) a charge of possession of controlled weapons, for which the maximum sentence is imprisonment for one year or a fine of no more than 120 penalty units.
2I sentence you on the basis of the Summary of Prosecution Opening dated 4 May 2022, which is an agreed summary. The following summary of your offending is drawn from the Opening.
Factual background
3On 24 March 2021, you travelled to Clifton Hill together with a child co-offender who was 17 years old.
4At approximately 8:25 pm on that day, Ms Rachael Hall was sitting in her white BMW which was parked outside her home. She was parked between two other cars. Your co-offender opened the front passenger door and sat in the passenger seat. He produced a knife, told Ms Hall to leave her belongings and demanded that she get out of the car. Ms Hall told him that he was not going to take her car. Your co-offender reminded her that he was the one with the knife. Ms Hall asked if she could keep her phone. Your co-offender enquired about the model then told her that she could keep it.
5
Ms Hall got out of the car and screamed her husband’s name. You were standing to the side of the vehicle. Your co-offender told you to take Ms Hall’s phone.
Ms Hall bumped into you and you dropped her phone.
6Your co-offender sat in the driver’s seat and revved the engine. This conduct is the subject of the offence of carjacking. You were charged with this offence on a complicity basis. (Charge 1 – Carjacking).
7Ms Hall’s husband came out of the house. Then, one of you said to the other, 'just leave it, let’s go'. Both of you then ran to the Audi Q7 - which had been stolen three days earlier by your co-accused without your involvement - and drove off with you in the car. It is this use of the car by the two of you that is the subject of the charge of theft of a motor vehicle. (Charge 2 – Theft of a Motor Vehicle).
8The next morning, at approximately 4:45 am, you were involved in a collision in the stolen Audi at Point Cook. As a result, the front of the vehicle was damaged and the air bags were deployed.
9After the collision, your co-offender lit a fire in the rear driver’s side footwell and told you to 'come burn the fucking car; it has my prints all over it'. You recorded your co-accused setting fire to the vehicle on your mobile phone. Your complicity in the destruction of the car by fire is the subject of the charge of arson. (Charge 3 - Arson).
10Later that day, at approximately 5:30 pm in Narre Warren, Ms Anida Stojic was walking back to her car after spending several hours in the community library studying. She unlocked the car, which was in a public car park, and placed her backpack, containing her laptop, wallet, car keys and paperwork on the front passenger’s seat. She then walked to the driver’s door and sat in the car. She started the car and checked her mobile.
11You and your co-offender approached the car, having first walked past it as is clear from the dash camera footage played in court. Your co-offender opened the driver’s door and you opened the passenger’s door. You sat in the front passenger’s seat, produced a knife and held it to Ms Stojic’s neck. Ms Stojic screamed. Your co-accused told her to calm down and that no one was going to hurt her. Your co-accused then asked for her phone password and wallet. She gave you her wallet and told you that she could not remember the password. Your co-accused told to leave the phone there. Your co-offender told her that you were 'not going to hurt [her]' and ordered her to get out. He told her not to make any noise 'or that’s going to change'. He then told her to walk to the shops and not to say anything and threatened that he would run her over with the car if either of you saw anything. This conduct is the subject of the charge of aggravated carjacking. (Charge 4 – Aggravated Carjacking)
12Ms Stojic got out of the car. Your co-offender sat in the driver’s seat and attempted to drive off. However, the foot brake was engaged, and he encountered some difficulty.
13Ms Stojic ran over to two men, Corey and Ethan Chambers, and told them that her car had been stolen. They noticed that she was incoherent and could barely talk and they ran after the car. Corey attempted to open the passenger’s door. Ethan approached the driver’s door and was confronted with a knife. You are not charged with any offence arising from this conduct, but it is part of the context of your offending.
14Your co-offender drove out of the carpark onto the road. However, the car was blocked by Corey Chambers’ truck.
15You grabbed Ms Stojic’s bag, then both of you got out of the vehicle and ran. This act is the subject of the offence of theft in relation to the bag and its contents, including a laptop. (Charge 5 - Theft)
Apprehension, investigation and interview
16After a brief altercation with Corey Chambers, you ran off, dropping Ms Stojic’s bag as you ran. Your co-accused and you ran in and out of various stores before entering a Hungry Jacks restaurant and hiding in the disabled toilet.
17An employee of Hungry Jacks called Triple Zero and police attended shortly thereafter and arrested the two of you. The police searched the toilet and found numerous items including Ms Stojic’s wallet and phone. They also found the key to the stolen Audi, and two knives. (Summary Charge 10 – possession of controlled weapons).
18The two of you were transported to Narre Warren police station. You were interviewed by police and you made a number of admissions and said that you were sorry for Ms Stojic’s distress.
Impact of your offending
19Section 5(2)(daa) of the Sentencing Act 1991 (Vic) requires me, in sentencing you, to have regard to the impact of your offending on any victim of the offence.
20I received two victim impact statements in this case. One was from Mr Jaspreet Singh Kohli, the owner of the stolen and destroyed Audi Q7 motor car. The second was from Ms Anida Stojic, the victim of the aggravated carjacking.
21Mr Kohli describes the financial impact of your offending which he describes as ‘very big financial stress’. The impact is exacerbated by the lack of insurance which Mr Kohli discontinued due to the impact of the pandemic. He explains that he owes the bank $90,000.
22Turning to the impact on Ms Stojic, I can only do justice to the profound suffering that she describes by quoting parts of her victim impact statement.
23Ms Stojic states:
'On a daily basis I get flashbacks of the moment when the two offenders approached me blocking my freedom to escape, holding a knife to my neck. I cannot find the correct words to truly explain the sheer terror that I felt. It was in this moment I never thought I would come out of this alive. I closed my eyes, crying, begging for my life. This is the moment when my whole life changed. This is when I was convinced that my life is going to come to an end, then and there. I remember my body had a terrible reaction to the incident, my body was in so much shock, that I could not literally move my legs as they were numb. All I was thinking in that moment is my two year old son, and that I am never going to see him again. I had my son’s face appear in front of my eyes, like he was literally standing there, and I wanted to touch, hug and kiss him for the last time. I was begging the offenders not to hurt me. The feelings of fear, trauma and stress of this violent attack was so extreme, that I was having something like 'out of body experience' and I was convinced I was no longer alive. This is when my body responded to this trauma by releasing fluid.
...
I have never been so scared in my life. My life is no longer what it was. I have a constant fear every moment of the day. When I am at home, I am scared when I hear the slightest noise. My son can no longer have a mum who was able to go to the park and have fun. The offenders have not only robbed me of my happiness, but also my son. Every action move and thing I do throughout the day, I have a constant flood of thought of what if something like this happens again. I can no longer just walk out my front door ready to start the day. The biggest challenge for me is to try and be strong enough for my son, to see that his mum is okay.
...
As a result of this violent incident, I have received psychological treatment and had been diagnosed with PTSD, severe anxiety, depression, social phobia. I had been recommended medication to assist me if I am struggling to get better.
...'
24Ms Stojic goes on:
'I have trouble sleeping at times, as I get flashbacks of the incident and someone attacking me and cutting my throat with a knife. I get daily reminders of the violent incident by triggers such as seeing a knife, watching tv, news or movies, seeing a red car (which is the car I got attacked in), driving close to the suburb I got attached at and many more. How will I be able to ever be the same person again after experiencing such a horrible and terrifying crime?
…
Due to my mental health struggles as a result of the incident, I was unable to continue with my honours thesis and Practical Legal Training test last semester and needed to take some time off to focus on my mental health, before being able to return. I had to postpone my final law unit to next semester, and needed to push back my PLT and employment, which has put me in a difficult financial situation.
…'
25And finally Ms Stojic says:
'To put it in perspective, if I have failed to do so already, not a day goes by when what was done to me does not interfere in with my life or limit the life I lead in some way. My life consists of extreme fear in everyday tasks, small or big. The life full of fear on daily basis is extremely painful. I was robbed of my security and feeling safe in the community, all as a result of violent act committed against me. But not only me, my family and friends are also affected. All those pleasant moments that I was once meant to experience, are taken away by this disgusting crime'.
26I have taken into account the impact of your crimes on Mr Kohli and Ms Stojic.
Previous character and personal circumstances
27I have also taken into account your previous character and personal circumstances.
28You were born in Danane, Ivory Coast in 2001.
29In 2002, civil war broke out and you fled the country with your mother, siblings and aunties. Between the ages one and four, you lived in refugee camps in Guinea and then Sierra Leone.
30When you were five, you moved to Newcastle in Australia with your family and you remained there for approximately seven years.
31When you were 12, your family moved to the western suburbs of Sydney.
32During this period, your father consumed alcohol excessively and behaved violently towards you.
33When you were in Year 8 at school, your parents separated and you relocated to Melbourne with your mother.
34You completed Years 8 and 9 at Tarneit Prep-9 College and you then moved to Victoria University Secondary College, where you completed Years 10 and 11. You commenced Year 12 at Staughton College, but you left school in third term.
35You have applied for labouring jobs, but you have been unsuccessful in gaining employment.
36Sadly, you encountered racism at school and in your efforts to attain employment.
37You commenced a Certificate III in construction in the months prior to being remanded in respect of these offences.
38You were assessed for the purposes of this plea by Ms Daria Sizenko, provisional psychologist under the supervision psychologist, Pamela Matthews on 26 April 2022. Their report dated 3 May 2022, was relied upon in your plea. You told
Ms Matthews that you are completing your construction white card while in custody and that you hope to commence an apprenticeship with a cousin who works for a plumbing company.39You have played soccer competitively for a number of years, and prior to your remand you were playing in the National Premier League for a Melbourne-based team. You would like to play soccer professionally one day.
40At the age of 14 or 15, you commenced drinking alcohol and would drink to the point of 'blacking out'. It was around this time that you commenced smoking cannabis daily.
41From the age of 16, you commenced using MDMA and Xanax and often consumed these substances with alcohol.
42In the days leading up to the offending, you had been consuming excessive amounts of alcohol.
43Prior to being remanded, you had not engaged in any drug and alcohol counselling or mental health services. While in custody, you were diagnosed with PTSD.
Ms Mathews diagnoses you with mild alcohol use disorder, moderate sedative use disorder, anxiety and depression.44In the weeks prior to the offending, your alcohol and drug use resulted in your mother asking you leave home. You effectively became homeless, staying with friends from time to time. At this point, your alcohol and drug use escalated.
45You had consumed straight whiskey, marijuana and Xanax from the morning of
24 March through to the time of your arrest on 25 March.46You have no prior convictions and this is your first time in custody. I have noted that you served the entirety of your remand prison in an adult prison and I accept this has been particularly onerous.
47While you have been in custody, you have had regular contact with your mother Onesha and your sister Nataye, and your half siblings Lambert, Comfort, Keith and Priscilla. You retain the love and support of your family and your mother observed the proceedings in court. I consider that your family are key to your rehabilitation.
Psychological assessment
48As I noted earlier, you were examined by Ms Daria Sizenko under the supervision of Ms Matthews.
49In their report, they note that you have no evidence of formal thought disorder and appear to have some insight into your offending and substance use issues. However, your judgment is limited due to your immaturity concerning the severity of your substance abuse problems.
50You told Ms Sizenko and Ms Matthews that you continue to have distressing dreams and flashbacks of people’s bodies, gunshots and attempts to find shelter. They note in this context your diagnosis with PTSD. You were administered the DASS-21 Depression Anxiety and Stress Scale short form and scored in the extremely severe range for depression and the severe range for anxiety.
51Your scores on the Inventory of Offender Risks, Needs and Strengths indicate that your ‘risks and needs are greater than that of your peers’, but you have ‘fewer protective factors at your disposal’ (p 5).
52You were assessed as meeting the DSM-5 criteria for Mild Alcohol Use Disorder and Moderate Sedative Use Disorder.
53Ms Matthews opines that your substance use would have played a significant role in [your] offending, further undermining [your] abilities to regulate impulses, resolve problems, and regulate [your] emotions (p 6). She concludes as follows:
'His partial insight, current compliance with medication, and desire to engage in counselling are positive indicators for successful rehabilitation or intervention. Ongoing support from his family, ability to empathise and desire for proactive engagement, such as finding work and resuming involvement in sport, will likely further support Mr Sarpor’s rehabilitative process'.[1]
[1] Report of Ms Sizenko and Ms Matthews dated 03.05.2022.
54I note that your counsel placed no reliance on the principles in the case of Verdins v The Queen[2] in your plea.
[2] Verdins v the Queen [2007] VSCA 102.
Purpose of sentencing
55Section 5(1) of the Sentencing Act 1991 (Vic) sets out the purpose for which a sentence can be imposed. Of these, I consider that the most important in this case are specific and general deterrence, protection of the community and, given your age and absence of any prior criminal history, the need for my sentence to facilitate your rehabilitation.
56The rehabilitation of a youthful offender is ‘usually far more important than general deterrence’.[3]
[3] R v Mills [1998] 4 VR 235 [241].
Current sentencing practices
57Section 5(2)(b) of the Sentencing Act 1991 (Vic) requires me to have regard to current sentencing practices. The Court of Appeal has emphasised that current sentencing practices are not a controlling factor in a sentencing case and ‘should not be given undue weight’.[4] This is particularly the case where, as is the case with this offence, those practices are still evolving.[5] The offence of aggravated carjacking is relatively new, having been created in 2016.
[4] Mammoliti v The Queen [2020] VSCA 52 at [59].
[5] Ibid.
58Mamolliti was a case of aggravated carjacking in which the 84 year old victim was dragged out of his car onto the road. The victim suffered injuries as a result. The offending occurred while the accused was subject to a community corrections order and the accused, who was 39 years of age, had an ‘extensive criminal record’.[6] A sentence of six years imprisonment was left undisturbed on appeal, although it was noted by the Court of Appeal to be an ‘outlier’ and was characterised by all three judges as ‘stern’.[7]
[6] Ibid [14].
[7] Ibid [61] (McLeish and Emerton JJA) and [75] (Croucher AJA).
59Within the limitations identified by the Court of Appeal, I have taken current sentencing practices into account in your case.
Relevant sentencing principles
60The most serious offence to which you have pleaded guilty is aggravated carjacking contrary to s79A of the Crimes Act 1958 (Vic.). The offence carries a maximum penalty of 25 years’ imprisonment. It is a Category 1 offence which means that I must sentence you to a term of imprisonment.[8]
[8] Sentencing Act 1991 (Vic) s 5(2G).
61The offence of carjacking contrary to s79 of the Crimes Act 1958 (Vic) is a Category 2 offence. I am required to sentence you to a term of imprisonment for that offence unless one of the exceptions in s5(2H) of the Sentencing Act 1991 (Vic) applies. Your counsel did not argue that any of the exceptions applied to your case and I find that there are no such circumstances for the purpose of sentencing you on the carjacking charge.
62In sentencing you, I must have regard to the matters listed in s 5(2) of the Sentencing Act 1991 (Vic).
Gravity of Offences and Offender’s Culpability
63Carjacking is a serious criminal offence, involving as it does the stealing of a motor vehicle while putting the driver in fear that they, or another person, will be subjected to force.
64Your involvement in the carjacking of the BMW belonging to Ms Hall was not as significant as that of your co-offender, who was the primary offender. It was your co-accused who wielded the weapon and uttered the threats. You were present while this occurred and sat in the car while the co-accused revved it.
65Similarly, your involvement in the theft of the BMW, (which had been stolen by your co-accused three days earlier), was less significant than that of your co-accused.
66The fire that destroyed the Audi Q7 at Point Cook was lit by your co-accused. You recorded the event on your phone and the footage was shown in court. The area where the fire was lit was a park that was near residential houses. As noted above, the owner of the car was uninsured and now has a significant debt. You will be ordered to compensate him, a matter that I discuss below.
67Of your offending in this crime spree, the aggravated carjacking is by far the worst.
68Aggravated carjacking is particularly serious because its elements are those of carjacking, with the addition of either the presence of a weapon or causing injury.[9] In the present case, the aggravating feature was the presence of a knife.
[9] Crimes Act 1958 (Vic) s 79A.
69The use of a weapon by an offender in aid of carjacking ‘will almost always heighten the objective gravity of the offence’.[10] In the present case, the particular way in which you used the weapon is especially aggravating. You held the knife to the throat of Ms Stojic, while your co-offender was making threats to her. Not surprisingly, Ms Stojic was terrified.
[10] Sabbatucci v The Queen [2021] VSCA 340 [35].
70
Your violent offending against Ms Stojic in broad daylight in her own car was outrageous and brazen. I denounce your conduct in the clearest terms. The dashcam footage played in court shows you and your co-accused walking past
Ms Stojic’s car, before doubling back and opening the doors. In your record of interview, you denied that you had targeted Ms Stojic because she is a woman.[11] I accept that the offending was spontaneous and relatively unplanned, and that the identity of the driver was not a consideration of yours.
[11] Record of Interview dated 26.03.2021, Q and A 183.
71Your counsel’s written submissions accept that the presence of the knife and the way in which it was used, ‘is a key indicator of the seriousness’ of your offending. However, your counsel submits that I should take into account in your favour that you ‘did not utter any verbal threats’ and the victim was ‘not physically assaulted or injured’. I do not accept that these are mitigating aspects of your case. They amount to little more than the absence of matters of further aggravation.
72Another aggravating feature is the presence of your co-accused.
73As the prosecution has submitted, it is also concerning that the aggravated carjacking offence was the last offence in the crime spree in which you and your co-accused engaged.
74While the other offences to which you plead guilty are less serious than the aggravated carjacking, each is significant. I accept that you played a relatively minor role in the carjacking of Ms Hall’s car. Although, I have no victim impact statement from her, I can infer that the experience would have been challenging for her.
75Mr Kohli’s Audi had previously been stolen by your co-accused. However, your participation in the destruction of the car, by filming your co-accused, encouraged him in the act of setting the car on fire.
76Finally, you have pleaded guilty to the summary offence of possession of two controlled weapons. I note that one of these weapons was used by you to affect the aggravated carjacking, although I have ensured you are not doubly punished for that.
Matters of Mitigation
77You have pleaded guilty at an early opportunity. This has a significant utilitarian benefit as it spares the witnesses, especially Ms Stojic, from giving evidence and re-living her experience. You are entitled to credit for that. Your guilty plea also saves court time and the cost to the community of a trial and I take that into account.
78Your plea of guilty is also significant as it reflects remorse on your part for your offending. It is what is known as objective evidence of your remorse. Importantly in your case, it is accompanied by subjective expressions of remorse in your record of interview[12] and in the report of Ms Matthews dated 3 May 2022.
[12] Record of Interview Q and A 95-99.
79At the present time, your plea of guilty carries more weight than was the case before the pandemic. As the Court of Appeal has repeatedly emphasised, the delays in our court system are such that an accused who pleads guilty at present, is entitled to an 'additional augmented mitigatory effect on sentence' because it 'will benefit the beleaguered administration of justice' in this state. You must benefit from a 'perceptible amelioration of sentence'.[13]
[13] Worboyes v The Queen [2021] VSCA 169 [39]; see also Barnard, Stephen (a pseudonym) v The Queen [2022] VSCA 42 [18].
80You are 20 years old and are therefore a ‘young offender’ within the meaning of s3(1) of the Sentencing Act 1991 (Vic). I note that your counsel did not seek a Youth Justice Centre order. In any event, because aggravated carjacking is a ‘Category A serious youth offence’,[14] such an order could only be made in your case if I was satisfied that ‘exceptional circumstances exist’.[15]
[14] Sentencing Act 1991 (Vic) s 3(1).
[15] Sentencing Act 1991 (Vic) s 32(2C).
81Generally speaking, an offender’s youth is relevant to sentencing ‘because the law generally recognises that young persons are more prone to rash behaviour, lacking the self-control that comes with maturity, rehabilitation of young offenders is of central importance and incarceration in an adult prison is likely to impair rather than assist in rehabilitation’.[16]
[16] DPP v Hodgson [2019] VSCA 49 [72].
82In the recent case of DPP v Pan, the Court of Appeal summarised the relevance of the youth of an offender to sentencing:
'In assessing the culpability of a young offender, it is important to recognise that ‘the young and immature are more prone to ill-considered or rash decisions,’ ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’ and may not fully appreciate the nature, seriousness and consequences of their criminal conduct. Secondly, rehabilitation and avoiding or reducing the adverse effects of incarceration in an adult prison will usually be a fundamental aspect in sentencing, serving both the interests of the offender and the community more broadly'.[17]
[17] DPP v Pan [2022] VSCA 98 [49].
83I consider that your youth is a powerful mitigating factor to which I give considerable weight. It means that the sentence you receive will be considerably lower than that which would be imposed on an older offender in identical circumstances.[18]
[18] Ibid, [51].
84As I have noted, this is your first appearance, not just in this court but in any Victorian court. You are entitled to full credit for your lack of any prior convictions. As you have been in custody since the date of these offences, there are no subsequent matters.
85Your youth, immaturity, family support and lack of prior convictions lead me to conclude that your rehabilitation prospects are good.
86In summary, I consider this to be a serious instance of the serious offence of aggravated carjacking. The effects on Ms Stojic of the offending were and continue to be profound. You played a significant role in the offending and your moral culpability is considerable. However, as against those considerations, there are significant matters of mitigation in your case, which include your youth, your prior good character and absence of prior convictions, your early plea of guilty, coming as it does in the ongoing context of the pandemic, and your difficult upbringing and its ongoing effect as described by Ms Matthews in her report to the court.
A distorted sentencing process
87Ordinarily, I would fix individual sentences for the other offences to which you have pleaded guilty and then consider the rules of concurrency and cumulation to fix a total effective sentence. Only then would I fix a non-parole period in relation to that total effective sentence.[19]
[19] See Sentencing Act1991 (Vic) s 11(4) and Mammoliti (n 4) [66] (Croucher AJA).
88However, s10AD of the Sentencing Act requires me to consider the non-parole period only in respect of the aggravated carjacking offence without consideration of the other offences.[20]
[20] As discussed in Mammoliti (n 4) [68]; see also [41].
Non-Parole Period
89In Power v The Queen,[21] the High Court explained that the purpose of a non-parole period is:
'To provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve, having regard to all the circumstances of his offence.’
[21] Power v The Queen [1974] HCA 26.
90Section 11 of the Sentencing Act 1991 (Vic) requires me to fix a period during which you will not be eligible for parole, unless I consider that to be inappropriate. Ordinarily, such a non-parole period must be at least six months less than the term of the sentence.[22] And further, an offender’s youth will usually be highly relevant to the determination of an appropriate non-parole period.[23]
[22] Sentencing Act 1991 (Vic) s 11(3).
[23] DPP v Pan (n 17) at [56]
91However, in 2016, the Sentencing Act 1991 (Vic) was amended to limit the exercise of a court’s discretion in setting a non-parole period in cases involving certain offences including aggravated carjacking.
Special Reasons
92Section 10AD of the Sentencing Act 1991 (Vic) provides that in sentencing an offender for the offence of aggravated carjacking, I must impose a term of imprisonment. In addition, I must fix, under s11, a ‘non-parole period of not less than three years’ unless I find under s10A, that ‘a special reason exists’. The section does not apply to an offender who was under the age of 18 years at the time of the offence. I note that you were 19 years and four months of age at the date of the offending.
93Section 10A relevantly provides that for the purposes of s10AD, ‘a court may make a finding that a special reason exists if:
'…
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify doing so’.
94In applying s10A(2)(e), I am required to:
(a) regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b) give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence.[24]
[24] Sentencing Act 1991 (Vic) s 10A(2B).
95Further, and importantly in your case, I am not to have regard to:
(a) the offender’s good character, (other than an absence of previous convictions or findings of guilt);
(b) an early guilty plea;
(c) prospects of rehabilitation; or
(d) parity with other sentences.[25]
[25] Ibid, s 10A(2B)(c).
96Finally, I must have regard to:
‘The Parliament’s intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than three years ordinarily be fixed for an offence covered by s10AD’.[26]
[26] Ibid, s 10A(3)(ae).
97In the case of Farmer v The Queen,[27] the Court of Appeal held, in a case involving the application of the identically worded s5(2H), that circumstances must generally be ‘atypical’ to satisfy the requirements of the section.[28] Referring to paragraph (e), the court described it as a ‘residual category of limited scope’ that sets a ‘very high hurdle that will not often be surmounted’.[29] The court accepted that in some cases, ‘the operation of s 5(2H) will be harsh’.
[27] Farmer v The Queen [2020] VSCA 140.
[28] Ibid, [47]-[48].
[29] Ibid, [51].
98In DPP v Hodgson, the Court of Appeal held that ‘compelling’ in this context means ‘wholly outside what might be described as run of the mill factors, typically present in offending of the kind in that case’.[30]
[30] DPP v Hodgson (n 16) [112].
99Your counsel urged me to find that the test in s10A is satisfied in your case and that your circumstances amount, in combination, to ‘substantial and compelling circumstances that are exceptional and rare’. I was referred to two cases in the Court of Appeal where the court found that a combination of otherwise relatively common factors amounted, in combination, to ‘substantial and compelling circumstances that are exceptional and rare’.
100The first was Farmer v The Queen, a case of armed robbery. The Court of Appeal concluded that while each of the aspects upon which the appellant relied in that case ‘fit within a category or type that is common’, taken in combination they were such as to exclude the operation of the mandatory detention provision. I note that what made the case ‘a most unusual’ one, was the physical disfigurement from which the applicant suffered and which had a profound effect on his life and would make his time in custody particularly difficult. He had suffered from alopecia from the age of 13 and it provided an explanation for his part in the offending, according to the expert evidence before the court.[31]
[31] Farmer v the Queen (n 27) [55]-[65].
101In the second of the cases, Fariah v the Queen,[32] the Court of Appeal considered that the appellant’s ‘appalling childhood experiences’ in combination with other circumstances such as heavy drug use and PTSD symptoms, amounted to substantial and compelling circumstances. The court there noted that both of the appellant’s parents were killed when he was an infant and that he saw many of his friends killed in front of him.[33] I also note that in contrast to the present case, that case was assessed by the Sentencing Judge as one that was ‘miles from the most serious case of armed robbery’.[34]
[32] Fariah v the Queen [2021] VSCA 213.
[33] Ibid [7]-[9].
[34] Ibid [15].
Onus of Proof
102Turning to the question of the onus of proof, your counsel submits that s10A(2)(e) of the Sentencing Act 1991 (Vic) ‘does not impose a burden on the offender to prove the existence of substantial and compelling circumstances that are exceptional and rare’. Rather, it is submitted, that ascertaining if such circumstances are present, is ‘an evaluative judgment for a Sentencing Judge once the relevant underlying facts have been established’.[35]
[35] Defence Submissions on Plea dated 12.05.2022 [107].
103In support of this submission, I am referred to the case of Fariah v The Queen.[36] In Fariah, the Court of Appeal overturned a decision of this court in which it had been held by the Sentencing Judge that the offender bore the onus.[37] As your counsel’s submissions recognise, that case was concerned with s5(2H) and not with s10A. Having said that, the two provisions are identically worded.
[36] Fariah v the Queen (n 32).
[37] Ibid [24]; see also Peers v The Queen [2021] VSCA 264 [68].
104The case of Sabbatucci v The Queen[38] was, like the present case, concerned with s10A and s10AD and was decided shortly after Fariah. In Sabbatucci, the Court of Appeal held that ‘the [accused] had to persuade his Honour that there were substantial and compelling circumstances that are exceptional and rare…’ in order to avoid the mandatory non-parole period in s10AD.[39]
[38] Sabbatucci v the Queen [2021] VSCA 340.
[39] Ibid [29].
105Unlike the position in Fariah, the court in Sabbatucci was not specifically concerned with the onus question, as it was not raised as a ground of appeal. As against that, the language employed by the court was the language usually associated with the legal onus of proof. Further, I note that the court in Sabbatucci does not appear to have been referred to Fariah or Peers where a differently constituted Court of Appeal also concluded there is no onus on an accused.
106There appears to be no reason for the two identically worded sections to have a different operation in relation to something as important as the onus of proof. The same words in a statute are assumed to have the same meaning, wherever they are used.[40] Only in Fariah was the court expressly called upon to consider the issue. Further, the context in which s10A(2)(e) is located supports a construction that imposes no onus. Unlike s10A(2)(c), paragraph (e) makes no reference to the need for the accused to ‘prove on the balance of probabilities the relevant matter'. Had the parliament intended to impose an onus under paragraph (e), it could easily have employed such prefatory words.
[40] Firebird Global v Republic of Nauru [2015] HCA 43 [190].
107In the circumstances, I have therefore approached my task under s10A as making the ‘evaluative judgement’ described in Fariah, without there being any onus imposed on the accused to persuade me.
108The particular matters that were identified in your counsel’s submissions as satisfying the statutory test are your:
(a) youth;
(b) your lack of prior and subsequent convictions;
(c) plea of guilty during the pandemic;
(d) cooperation and admissions;
(e) remorse;
(f) difficult upbringing giving rise as it should to reduced moral culpability;
(g) experiencing of symptoms of PTSD and scoring Extremely Severe for depression and the Severe range for anxiety;
(h) hardship in custody resultant from the pandemic;
(i) very significant time spent on remand in an adult prison; and
(j) productive and positive use of the time spent on remand.[41]
[41] Defence Submissions (n 35) [111].
109Of these, I would ordinarily consider your youth to be of the utmost importance in moderating your sentence. I have taken your youth into account as an important mitigating factor in determining the head sentence, as it is primarily relevant to your prospects of rehabilitation. I am not permitted to take it into account for the purposes of determining your minimum non-parole period.
110The other matters may be described as ‘personal circumstances of the offender’ and therefore they must also be given less weight than ‘other matters such as the nature and gravity of the offence’.[42] I have already assessed the nature of the offence as serious having regard to the maximum sentence and its inherent elements. Further, I have assessed your offending as a serious example of the offence of aggravated carjacking for the reasons explained in earlier.
[42] Sentencing Act 1991 (Vic) s 10A(2B)(b).
111I have regard to the need to give greater weight to general deterrence and denunciation than other sentencing considerations as required by s10A(2B)(a) of the Sentencing Act 1991.
112The mandatory minimum non-parole period sits along-side, and does not displace, established sentencing principles. It does not depart from the instinctive synthesis approach to sentencing.[43]
[43] Mammoliti v The Queen (n 4) [27].
113It is therefore necessary to consider not just the mandatory minimum non-parole period, but also the maximum sentence of 25 years imprisonment. As the plurality in the Court of Appeal observed in Mammoliti, ‘by the maximum sentence and the mandatory gaol term to be served for no less than three years, the legislature has made it clear that aggravated carjacking is a serious offence. There is no escaping a relatively long custodial sentence. Accordingly, the mandatory minimum non-parole period must be reflected in the head sentence’.[44] Even if I am wrong about the construction of s10A(2)(e), on either construction, I do not consider there are ‘substantial and compelling circumstances that are exceptional and rare’ and that justify finding the existence of a ‘special reason’.
[44] Mammoliti v The Queen (n 4) [39]
Orders
114Turning then to the orders that I make. Having regard to the various matters I have discussed above and synthesising the various sentencing considerations, you are convicted and sentenced as follows:
115On Charge 1, carjacking, I sentence you to 15 months’ imprisonment with a period of licence disqualification of 1 year.
116On Charge 2, theft of a motor vehicle, 12 months’ imprisonment and licence disqualification of 3 months.
117On Charge 3, arson, I sentence you to 12 months’ imprisonment.
118On Charge 4, aggravated carjacking, I sentence you to 4 years’ imprisonment with a period of licence disqualification of 2 years.
119On Charge 5, theft of a laptop and other items belonging to Ms Stojic, I sentence you to 18 months’ imprisonment.
120On the summary offence of possession of controlled weapons, I sentence you to 2 months’ imprisonment.
121The aggravated carjacking sentence is the base sentence.
122Unless I direct otherwise, the various sentences of imprisonment are to be served concurrently.[45] I consider that a degree of cumulation is necessary to reflect the separate criminality of Charges 1 to 3. I therefore order that 2 months on each of Charges 1, 2 and 3 be served cumulatively on the base sentence. As Charges 5 and 6 are part of the one course of conduct with the aggravated carjacking, the sentences for those charges are to be wholly concurrent.
[45] Sentencing Act 1991 (Vic) s 33(1).
123The total effective sentence is therefore 4 years and 6 months.
124As I do not consider that a special reason exists, I am required under s11 of the Sentencing Act to fix a non-parole period of not less than three years. I have noted above that in determining if a special reason exists, I am required to give less weight to your personal circumstances, such as your youth and lack of prior convictions, than to matters ‘such as the nature and gravity of the offence’.
125However, in determining whether the non-parole period should be longer than the minimum period of three years, I can and do give full weight to your youth, lack of prior convictions, early plea of guilty and difficult childhood. Taking these matters into account and noting the total effective sentence of four and a half years years, I do not consider that you should serve any longer than three years before you are eligible for parole. A longer non parole period would be inimical to your rehabilitation. As discussed above, your rehabilitation is in your interests and those of the community.
126I order that you serve 3 years before becoming eligible for parole.
127I declare that 431 days be reckoned under s18 of the Sentencing Act 1991 (Vic) as pre-sentence detention.
128Pursuant to s86 of the Sentencing Act 1991 (Vic.), you are to pay Jaspreet Kohli compensation in the sum of $56,200, being the agreed amount of Mr Kohli’s loss.
129Pursuant to the Confiscation Act 1997 (Vic), I make the forfeiture and confiscation orders sought by the prosecution noting they are not opposed.
130Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I declare that, had you pleaded not guilty to the charges, and had you been found guilty of each of them after a trial, the sentence I would have imposed would have been a total of 6 years, with a non-parole period of 4 years.
131The periods of licence disqualification are to commence on the date of these orders.
- - -
0
13
0