Director of Public Prosecutions v Seppelt (a pseudonym)
[2020] VCC 1232
•11 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZANE SEPPELT (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 July 2020 |
DATE OF SENTENCE: | 11 August 2020 |
CASE MAY BE CITED AS: | DPP v Seppelt (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1232 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Manning (Plea) Ms M. Zammit (Sentence) | Office of Public Prosecutions |
For the Accused | Mr A. Patton | SLKQ Lawyers |
Introduction
1Zane Seppelt[1], you have pleaded guilty:
(a) to a charge of aggravated carjacking, where the maximum penalty for this offence is 25 years' imprisonment;
(b) to a charge of armed robbery, where the maximum penalty is again 25 years' imprisonment;
(c) and to a charge of committing an indictable offence while on bail, where the maximum penalty is three months' imprisonment or a fine not exceeding 30 penalty units.
[1] ‘Zane Seppelt’ is a pseudonym.
Circumstances
2In September 2019, you and two others, Claire Heysen[2] and Aidan Holtermann[3], were living in your car. However, your car was then involved in an accident and was towed away. Since you and the others were now homeless, the three of you started living at the home of a friend in Narre Warren.
[2] ‘Claire Heysen’ is a pseudonym.
[3] ‘Aidan Holtermann’ is a pseudonym.
3Holtermann had incurred significant debts due to his drug use. Those to whom the debts were owed became aware of the address of the home where he was living. They threatened to 'run through' the house and, presumably, steal property in order to pay the debt. In order to avoid this, Holtermann was instructed to steal a vehicle and give it to a third party.
4At 1.40 am on 15 January 2020, one of the three of you hired a Uber car. Five minutes later it arrived, and Heysen entered the front seat of the car. After driving a short distance, she told the driver to stop to pick up her friends. He did so, and you and Holtermann approached the car from the nearby bushland. Holtermann was wearing a dark hooded jumper with the hood drawn, dark pants and a mask covering the bottom half of his face. You were wearing dark clothing, gloves, a full face mask and sunglasses. You carried a baseball bat.
5Holtermann tried to open the driver's door, but it was locked. Heysen took a flick knife from her pocket and said to the driver if he did not open his door, she would stab him. He unlocked his door. Holtermann then opened it and told the driver to get out. While doing so, he pointed an imitation firearm at him. The driver believed the firearm was real.
6You and Holtermann got into the car, with Holtermann driving it away. The driver was very shaken and scared for his life. He knocked on the door of a nearby house without result and then ran towards a nearby road, seeking help. As he stood on a nature strip, a car approached. He waved it down. The car pulled over. No doubt, to his horror, it was his car with the three of you inside it. You had returned, seeking the keys to the car.
7Holtermann asked for the keys. The driver lied, saying that they were in the centre console. Holtermann yelled at him to check his pockets, while you got out of the car and walked towards him. Holtermann also got out of the car, pointed his imitation firearm at the driver and said he would shoot him if he tried to run away and demanded the keys. The driver began shaking and handed them over. You told the driver he was lying to you and the others and struck him on the left arm with the baseball bat. It was not said that blow caused any physical injury. You and Holtermann checked the driver's pockets and took his wallet. It contained identification, credit cards and $25. The three of you then drove away in his car.
8Not long afterwards, the police found the car outside where you were living. They saw two persons in black clothing running away from the car. The police tracked you back to the house. And at 4.45 am, you and the two others were arrested outside the house without difficulty.
9You were twice interviewed by the police. In the first interview, you denied any involvement, saying you were at home and the baseball bat belonged to Holtermann. After speaking to Ms Benstead[4], there was a second interview, in which you made admissions.
[4] ‘Benstead’ is a pseudonym.
10At the time of committing these offences, you were on bail for two driving offences, two charges of robbery and possessing a prohibited weapon. On
19 January 2020, you were found guilty of the charges. An aggregate fine of $1000 was imposed for the charges, except that of possessing a prohibited weapon; on that charge you were convicted and discharged.11These offences occurred on 14 July last year in Federation Square, when you and three others attacked two victims, robbing them of a phone and money. The victims were punched, but not by you. Instead, you kicked one of them. One of your co-offenders was Heysen.
Victim impact statement
12There is no victim impact statement. The victim returned to Sri Lanka before making a statement. He cannot return to this country while the COVID-19 restrictions prevent travellers from overseas arriving.
13No one submitted I should adjourn this proceeding to enable a statement to be made.
Prior convictions or findings of guilt
14You have no prior convictions or findings of guilt.
Guilty plea
15At your second interview, you made significant admissions. However, to an extent, you sought to minimize your part in the offences. However, your pleas of guilty and acceptance of the correctness of the matters set in the prosecution opening overcome any shortcoming in the second interview. To a very significant extent, you assisted the police.
16Following on from your assistance to the police, you pleaded guilty to these charges at the committal case conference held on 8 April 2020. These are pleas of guilty made at the earliest reasonable opportunity. They entitle you to a significant discount on the sentences I would have imposed if you had not pleaded guilty. The pleas are further evidence of your remorse. They have utilitarian benefit, including relieving the victim and other witnesses from giving evidence at a trial.
Pre-sentence detention
17You were arrested on 15 January 2020 and remanded into custody, where you have remained. Excluding today, you have spent 209 days in custody.
Personal circumstances
18You are 22. It is surprising that your co-accused are considerably younger than you. Heysen is now 18 and Holtermann is now 17. At present, their cases are in the Children's Court. Your association with persons much younger than you suggests an intellectual disability. However, that is not the case for, according to Ms Ferrari, a psychologist, you are of average intelligence.
19You were born in New Zealand; you are Maori.
20Although you are the eldest of six children, only Archie[5], aged 21, is a full brother. You have two half-brothers, Luke[6], aged 17, and Max[7], aged 12. They are your mother's children from the relationship she formed after the one with your father broke down. Your mother formed another relationship after that, out of which Jorja[8], aged five, and Jai[9], aged four, were born.
[5] ‘Archie’ is a pseudonym.
[6] ‘Luke’ is a pseudonym.
[7] ‘Max’ is a pseudonym.
[8] ‘Jorja’ is a pseudonym.
[9] ‘Jai’ is a pseudonym.
21You have never lived with your mother or your father. In fact, you first contact with your father occurred last year when you spoke to him over a video-link.
22Until you were seven, you were raised by your grandparents. Unfortunately, they used alcohol and cannabis and you were exposed to that.
23At the age of two or three, you were sexually abused by a family friend.
24You were born deaf. You have no hearing canal in one ear. You wear hearing aids. Your inability to hear properly was not detected until you were five. This deficit delayed your development; it appears you did not speak until five. You did not go to school in New Zealand. You were then living in Auckland.
25At the age of seven, you and your brother, Archie, were sent to Australia to live with your mother's sisters. You now went to school. Despite your lack of schooling, you were placed in Year 4, solely because of your age. Missing out on those earlier years proved difficult for you. You repeated Grade 6 and moved schools in order to have a teacher's aide. You had an aide until Year 9.
26During Years 7 and 8, you were bullied, mainly because you wore a hearing aid and were academically inferior to your fellow students. This bullying led you to be embarrassed by the wearing of these aids. You grew your hair to cover the aids. It is only while living in your present accommodation that you have allowed the aids to be seen.
27Nevertheless, you were able to complete Certificates I and II in business and the Victorian Certificate of Applied Learning. You then started a pre-apprenticeship in carpentry. You dropped out in your second year due to leaving your aunt's home. You then found work labouring in bricklaying and plastering.
28Your relationship with your aunt had been good until your mid to late adolescence. You felt you were being blamed for things you had not done. At 18 or 19, you were evicted from the home because of ongoing conflict. Your leaving was acrimonious. Your aunt allowed to leave home with a change of clothes and your work clothes. You could not take your tools, car or other belongings. You now have occasional contact with your aunt and the relationship is improving.
29From your aunt's home, you went to live with Abbey[10]. You lived with her between 2017 and 2019.
[10] ‘Abbey’ is a pseudonym.
30In March or April 2019, you and your brother, Archie, were attacked by a group of 30 people at the Fountain Gate Shopping Centre. They were trying to steal your brother's car and were attacking him using knuckle dusters, a baton and a whip. You lay on your brother to protect him. You thought he might be killed. You were assaulted.
31Following this incident, you became more depressed. You experienced flashbacks of the incident and nightmares. You broke up with Abbey. You stopped work. You were drinking heavily. You were now homeless and living in your car. Your co-offenders were also homeless, and they also lived in your car. This remained the arrangement until your car was written off in an accident in September 2019.
32In the years leading up to 2019, your depression worsened. While you were homeless and sleeping in your car, you cut your wrists on one occasion and attempted to jump off a bridge on another. Your partner, Abbey, encouraged you to seek help, but you did not want to admit you needed help.
33In August 2019, you briefly reconciled with Abbey. During the reconciliation, your daughter, Anna[11], was conceived. She is now about seven weeks old.
[11] ‘Anna’ is a pseudonym.
34In about January 2019, you met Alexis Biaggini[12]. You visited her home a few times. When it was realised you were homeless and living in your car, her family invited you to stay at her home and you did so from 22 September 2019. Remarkably, your co-offenders were also invited.
[12] ‘Alexis Biaggini’ is a pseudonym.
35Isabelle Benstead[13] is the mother of Alexis. She wrote a reference for you and she gave evidence.
[13] ‘Isabelle Benstead’ is a pseudonym.
36Ms Benstead is a business owner. She has known you for 13 or 14 months now. You came to live in her home after your car was written off in an accident.
37While living there, she found you helpful, respectful, caring and very hard working. Until your arrest, your employment was continuous, Monday to Friday, with some Saturdays. You worked long hours carting plaster, getting up at 4 am and returning between 5 pm and 9 or 10 pm. You paid board.
38You helped around the house. You had your own room, which you kept spotless. You became part of her family. Apart from Alexis, there are two younger children, aged eight and six. You played sport with them.
39In September or October, Ms Benstead knew of and approved your relationship with Alexis. She sees your relationship with her daughter as very loving and caring. She looks forward, as do you and Alexis, to the birth of your son next month.
40You and she have had long conversations. You have disclosed many things to her, including you being born with clubfeet. This is something no one else has raised because you do not mention it, not considering it as a disability.
41Ms Benstead and her husband allowed Holtermann and Heysen to stay at their home. She realised you were very protective of them. There were a few occasions when you told them to obey her instructions.
42In January of this year, Ms Benstead became concerned about your drinking. She knew you drank a lot of alcohol, beer and whiskey. This concerned her, but you were never nasty, angry, agitated or aggressive. You obeyed her rules about not drinking in the presence of other members of the household.
43She assisted you in being re-interviewed by the police. In that interview, you made certain admissions. While you have been in custody, Ms Benstead has maintained contact wherever possible. She says you have been extremely remorseful.
44Your arrest and remand has affected Alexis. She is stressed because she faces her pregnancy without your support, the uncertainty of what will happen to you and the possibility of your deportation. She prefers not to leave the home and is withdrawn. She has stopped attending school and is not continuing her Year 11 in the Victorian Certificate of Applied Learning at present. She sleeps poorly. Ms Benstead has rearranged her business so she can stay at home more and help her daughter.
45Ms Benstead sees you as a son and a big part of her family. You are welcome to return to live at their home after your release.
46You spoke to your father for the first time in 2019 by video call. This did not go well. You maintain semi-regular contact with your mother, but you and she are not close.
47When interviewed by Ms Ferrari, you admitted thinking about suicide. You denied having any intent or plan to kill yourself. You told her the fact of your relationship with Alexis and your children persuaded you against suicide.
48You started drinking alcohol at 14. After the assault in 2019, you drank heavily, up to two or three slabs of beer daily. Your consumption reduced after you returned to work.
49You have used cannabis, MDMA and methamphetamines. Cannabis was used twice monthly, while the other drugs were used occasionally.
50You are currently at the Fulham Correctional Centre, near Sale. You were working as a unit billet or cleaner until that unit closed. You are looking for other employment in the facility. You have completed a programme called 'Cannabis and Me'.
51During the COVID-19 restrictions, visits from Alexis, her mother and others have stopped. You occasionally see people by audio-visual link. It is expected these restrictions will continue for some time.
Psychological
52Carla Ferrari is a forensic psychologist. On 27 May and 2 June 2020, she interviewed you at the request of your solicitors.
53The defining event was the assault at the shopping centre in March or April of last year. You traced the decline in your mental state from then. You became depressed. Initially, you experienced flashbacks and nightmares about the attack. You stopped working. You drank excessively. You separated from Abbey, became homeless and lived in your car for about six months. You were angry and depressed and, strangely, feeling weak and unable to defend yourself.
54You were living in Alexis' home at the time of these offences. You explained your offending to Ms Ferrari in these terms:
'When questioned about the actual offending, he noted he was not supposed to go out with his co-accused, but due to having consumed several beers and ruminating over his situation, he left the house with them, returning alone sometime later.'
55Although Ms Ferrari does not explain what she means by the words 'ruminating over his situation', in the context of the earlier paragraphs of her report, it is a reference to your anger, depression, feeling weak and inability to protect yourself, together with your disagreement with Alexis about how you would manage your responsibility to Abbey, your daughter, and to Alexis and her child.
56As to remorse, Ms Ferrari records:
'He realized that his actions were wrongful, and described being ashamed of his behaviour, and wishes every day that he did not become involved. He recognizes his actions not only affect him, but have affected the victim, his partner, her family, and his children's future.'
57You completed a questionnaire called the Depression Anxiety Stress Scale (DASS 21). It showed your level of depression was moderate, anxiety mild and stress normal.
58You also completed a post-traumatic stress disorder checklist. It showed you had clinically significant symptoms of the post-traumatic stress disorder. The degree of severity of your symptoms varied from the mild to moderate.
59Ms Ferrari administered an Alcohol Use Disorders Identification Test. The results placed you at high risk of alcohol related harm. While in custody, you have been in remission, but that is a controlled environment.
60Overall, Ms Ferrari diagnosed you as suffering from post-traumatic stress disorder, a major depressive disorder, which she described as recurrent and moderate, and an alcohol use disorder. She believes the first two disorders led to the third.
61Given your DASS score, it is interesting that she diagnosed a Major Depressive Disorder. It appears she did so on your description of the symptoms you experienced:
'He describes persistently low mood for at least two weeks duration, themes of helplessness and hopelessness, suicidal ideation, as well as neurovegetative symptoms, including insomnia, concentration problems, low energy, poor motivation, and anhedonia.'
62These symptoms persist, but have improved while you have been in custody.
63Ms Ferrari analysed the factors behind your offending when she says :
'It appears that there are a number of factors outlined above which are causally linked to Mr [Seppelt]'s behaviour and impaired functioning at the time of the offending. Whilst his acute intoxication with alcohol contributed to actual commission of the offence, his deteriorated mental health also played a significant role in the incidents and in his self-medicating. There does not appear to be evidence of a criminal belief system; Mr [Seppelt]'s actions are more a reflection of his untreated psychological symptoms, distress, and self-medication with alcohol.'
64Your use of alcohol and substances, together with some of the symptoms of your two psychological disorders raised your risk of engaging in impulsive and reckless behaviour and impairing your insight, decision-making and judgment.
65She noted that you are motivated to reform yourself because of your realisation you are in a state of transition from adolescence to adulthood and your responsibilities to your daughter and, hopefully, soon to be born son. She considers your risk of reoffending as low to moderate. The risk factors can be treated and may be substantially reduced. She traces your decline to the assault in 2019.
66As I said, Ms Ferrari assesses you as being a low to moderate risk of reoffending. She identifies a number of risk factors which led her to that assessment. Positively, she believes these factors can be treated by a combination of psychological treatment and, if necessary, medicines. If successful, your risk of reoffending will diminish. The psychological treatment would include teaching you techniques to manage the symptoms of your disorders rather than resort to alcohol, as you have in the past.
67She believes imprisonment will worsen the state of your mental health unless you are supported properly. She does not believe this will happen, particularly regarding the symptoms of your post-traumatic stress disorder.
68Ms Ferrari stresses the need for support after your release from prison. She says you impressed her by having good insight and motivation to reform yourself and show a strong propensity for rehabilitation if given appropriate supports.
Sentencing considerations
69The purposes of sentencing are set out in s.5(1) of the Sentencing Act 1991. Those purposes are described briefly as just punishment, specific deterrence, general deterrence, rehabilitation, denunciation and protection of the community.
70Section 5(2) of the same Act contain a number of factors to which I must have regard when sentencing you.
71There were two incidents giving rise to the two principal charges. Each incident was of short duration and separated by a short period of time. The offences were committed by three of you, not you alone. You and Holtermann wore masks. There was violence involved. Holtermann had an imitation pistol and threatened the victim with it twice. The victim believed the imitation pistol was real. Heysen possessed a flick knife. She threatened to stab the victim with it. You possessed a baseball bat and struck the victim with it once. Not unnaturally, throughout these events, the victim was terrified, and you were aware of that because you told the police during your interview that he was scared and 'freaking out'.
75The offences were not committed on the spur of the moment when an opportunity presented itself. There was some planning involved. The victim was lured into a trap. However, the prosecution accepts you were not aware of the plan beyond the request for your support in stealing a motor vehicle. When asked by Holtermann to be part, you said 'no'. However, after speaking to Alexis, you decided to go. The discussion with Alexis did not concerned the proposed offences. It was about how you would manage your responsibility to your daughter and her child. These issues must have been too much, for you decided to join the others.
76Both incidents were significant examples of serious offences.
77Despite the difference in age between you and Holtermann and Heysen, amazingly, you were not the principal offender. That was Holtermann. He had the imitation firearm. He made the demands upon the victim. However, you were a willing and active participant even though you did not benefit from the incidents. Heysen obtained the phone and Holtermann the car. Although it cannot be said you knew Holtermann had the imitation firearm before the carjacking, you knew he had it during the armed robbery. During the course of the carjacking, you armed yourself with a baseball bat and during the second incident, you used it to strike the victim on his left arm. Your striking him was gratuitous. He had handed over the keys to the car by then.
78You were on bail at the time of these offences, charged with offences, including two charges of robbery and one charge of possessing a prohibited weapon. You were fined, without conviction, a total of $1000. Judging from the penalty, it appears your part in the robberies were largely peripheral.
79Bail involves a release from custody subject to conditions. One of the two essential conditions is that you do not commit an offence while you are bailed: you committed two very serious offences. Section 16(3C) of the Sentencing Act 1991 requires the terms of imprisonment I am imposing for the aggravated carjacking and armed robbery must be served cumulatively upon the sentence imposed on the charge of committing an indictable offence on bail, unless directed otherwise.
80The maximum penalty for aggravated carjacking and for armed robbery is 25 years' imprisonment, respectively. And with aggravated carjacking, there is the mandatory non-parole period of three years unless there is a special reason not to impose such a period. Twenty-five years' imprisonment is the second highest maximum penalties for offences under State law, with life imprisonment the highest. Plainly, aggravated carjacking and armed robbery are very serious offences. The appropriate sentences for these offences must be made bearing these maximums and that minimum as a guide.
81You pleaded guilty to these charges at the first committal case conference. Realistically, that is a plea of guilty at the earliest reasonable opportunity. It entitles you to a significant discount on the sentence I would have imposed if you had not pleaded guilty but had been found guilty. They are evidence of remorse. They avoid a trial, which avoids the calling of witnesses including the victim. They avoid delay and the cost caused by a trial.
82At 22, you are a youthful offender. As was said in R v Mills[14]:
'In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.); (c), a youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender, and where the offender has not previously been incarcerated a shorter period of imprisonment may be justified.
[14] [1998] 4 VR 235 at 241.
83However, as the Court said Siilata v R[15]:
'True it is that the applicant was young, but, as the cases make plain, the more serious the offending, the more the mitigating effect of youth diminishes. Denunciation, general and specific deterrence must have greater emphasis as the seriousness of the offending increases.'
[15] [2019] VSCA 277 at [31].
84The offender in that case was 18 at the time of the offences. The prosecution accepts your offending is not so grave as to eliminate consideration of your age. Your youth still entitles you to some mitigation.
85Your youth overlaps with your prospects of rehabilitation. They are excellent as long as your untreated psychological disorders are treated. Ms Ferrari is somewhat pessimistic about that occurring in prison. Apart from her experience, there is no other evidence on the point. On balance, your disorders will receive less than adequate treatment in custody. They will add to the difficulty for you of imprisonment.
86You have expressed remorse repeatedly and I accept you are remorseful. Upon your release from prison, you propose to return to Alexis and her family. She loves you and her family holds you in high regard. You are able to live in their home.
87I must ignore the hardship caused to Alexis through your absence because the way it affects her does not amount to exceptional circumstances[16]. If they did, I would be able to consider them. But your absence from her leading up to after the birth of her child will weigh upon you.
[16] Cross v R [2019] VSCA 310 at [50] to [52].
88Your counsel relied upon two of the propositions in the case of R v Verdins[17]:
(a) your impaired mental functioning could have a bearing on the kind of sentence that was imposed and the conditions in which it was to be served;
(b) where there was a serious risk of imprisonment having a significant adverse effect on your mental health, this would tend to mitigate punishment.
[17] (2007) 16 VR 269.
89For the charge of aggravated carjacking, this is a category 1 offence. Under the Sentencing Act 1991, I am required to sentence you to imprisonment[18] and to impose a non-parole period of not less than three years' imprisonment, unless under s.10A, there is a special reason not to do so[19].
[18] S 5(2G) of the sentencing Act 1991.
[19] S 10AD(1) of the Sentencing Act 1991.
90Section 10A(2) sets out five circumstances justifying a special reason not to do so. Only one could possibly apply here, that is 'there are substantial and compelling circumstances that are exceptional and rare that justify doing so.'
91For the charge of armed robbery, I am required to sentence you to imprisonment unless an exception within s.5(2H) of the Sentencing Act 1991 applies[20]. The exceptions are somewhat similar to the special reasons under s.10A(2). Again, the only exception which could possibly apply here reads:
'there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).'
[20] S 5(2H0 of the Sentencing Act 1991.
92Emphasising the limited scope, the legislation requires in determining whether there are substantial and compelling circumstances, I must:
(a) regard general deterrence and denunciation of your conduct as having greater importance than the other purposes of sentencing in s.5(1). Those other purposes are specific deterrence, protection of the community and your rehabilitation;
(b) give less weight to your personal circumstances than to other matters, such as the nature and gravity of the offence;
(c) disregard your previous good character, other than the absence of previous convictions or findings of guilt;
(d) disregard your early plea of guilty;
(e) disregard your prospects of rehabilitation;
(f) disregard parity with the sentences imposed on your co-accused. Since they have not been sentenced, this issue does not arise;
(g) regard Parliament's intention that a sentence of imprisonment should ordinarily be imposed and a non-parole period of not less than three years should ordinarily be fixed; and
(h) regard to whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.
93In another case called Farmer v R[21], the charge was armed robbery. The offence occurred after the amendments to s.5(2H)(e) and s.10A(2)(e) of the Sentencing Act. Speaking of the two circumstances where the phrase had been amended to include the words 'that are exceptional and rare'. Before these amendments, the paragraphs were considered in Hudgson and the Court said[22]:
'it was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s 10 should be a heavy one, and not capable of being lightly discharged. More specifically, we accept the Director's submission that the word 'compelling' connotes powerful circumstances of a kind wholly outside what might be described as 'run of the mill' factors, typically present in offending of this kind.'
[21] [2020] VSCA 140
[22] [2016] VSCA 254 at [111] – [112]
94Following the amendments, the Court in Farmer said[23]:
'The requirement that the circumstances be atypical was made explicit by the amendment that requires that they be 'exceptional and rare.'
[23] At [48].
95The Court added later[24]:
'Within the context of s.5(2H), paragraph (e) is a residual category of limited scope. On any view, it is a very high hurdle that will not often be surmounted.'
[24][24] At [51].
96As the prosecutor pointed out, you rely largely on your personal circumstances for the purposes of 'substantial and compelling circumstances', and the legislation requires less weight is given to such matters than to other matters, such as the nature and gravity of the offence you committed which had aggravating features.
Current sentencing practice
97The prosecutor referred me to the summaries of judgments of the Court of Appeal and this court in cases of aggravated carjacking. These summaries appear in the Victorian Sentencing Manual published by the Judicial College of Victoria.
Character references
98Four written character references have been submitted. Surprisingly, two are from your co-accused. I have already discussed Ms Benstead's reference.
99Alexis has known you longer than her mother. Although aware of your difficulties with drugs, mainly alcohol, and your present predicament, she wants you to return. She looks forward to you being a good father to your yet to be born son. She says:
'We are both delighted about becoming parents and looking forward to this next stage of our lives together. [Zane] is especially excited to fulfil his new role as a father as he says he now gets the opportunity to teach and do things with his son that his father never did with him…'
100The prosecutor invited me to disregard the references from the co-accused. They are useful in showing how you cared for Holtermann and Heysen, ensuring they were fed properly and buying them clothes, blankets and pillows.
Discussion
101I have already discussed the circumstances of the offending. That you, at 22, should take part in these offences, the idea of a 16-year-old boy and a 17-year-old accomplices, is remarkable. Your involvement was due ultimately to your impaired thinking brought about the poor state of your mental health.
102You have never lived with your parents. Until the age of seven, you were raised by your grandparents. It appears they were not proper carers. They used cannabis and drank alcohol to excess. Even though you were born deaf, your deafness was not discovered until you were five. You did not speak until that age and did not attend school until after you came to Australia at the age of seven.
103Because of your age, you were put into Year 4, despite your lack of any earlier education. You struggled. You needed a teacher's aide to help you through Years 6 to 9. You were bullied in Years 7 and 8 because you wore hearing aids. Notwithstanding these difficulties, you completed the Victorian Certificate of Applied Learning.
104Leaving school, you started a pre-apprenticeship in carpentry. However, you were required to leave your home after difficulties with your aunt. You ceased your pre-apprenticeship while in your second year. You then found employment as a labourer in bricklaying and plastering.
105Your early years were very difficult. But after coming to live with your aunt, you were housed and educated. You managed to complete Year 12 and entered a pre-apprenticeship. You stayed out of any trouble with the law until 2019.
106The critical event is the attack upon you and your brother in March or April 2019. This caused you to suffer post-traumatic stress disorder. Coupled with your depressed state, you were sad and angry and felt helpless and hopeless. This was your state when you offended despite your accommodation, your relationship and your employment.
107No doubt, your mental state led to your attempts at suicide, in cutting your wrist and attempting to jump off a bridge. You still think about suicide, although you have no plan to do so.
108Suicide is the ultimate expression of a mental disorder. Attempting to kill oneself is not far behind. For someone as young as you, it is an appalling circumstance that you continue to think about suicide, having attempted to do so twice. It indicates a very unsettled mental state.
109Neither your Post-Traumatic Stress Disorder, nor your Major Depressive Disorder has been treated. Unwisely, you rejected the suggestion of treatment in 2019. The need for treatment is critical. Many instances of Post-Traumatic Stress Disorder are difficult to treat, especially if the disorder is not treated early. Your disorder has existed from the time of the incident in March or April 2019, which is a long time to be untreated.
110Before hearing from her, I was prepared to believe that Ms Benstead was naïve. Having heard from her, I am not of that view. She is a remarkable person. Presumably, her partner is as well. Despite your offences, she sees you as a suitable partner for her daughter and father to her grandchild. She goes further and sees you as very much a son. This view is based on long conversations with you. She sees considerable value in you. When released from custody, you will be welcomed back into her home. She discussed the offending with Holtermann and Heysen and learned about the reason for the threatened 'run through'. Incredibly, she paid Holtermann's debt. Holtermann and Heysen now live elsewhere. In my experience, what is held out to you by the Biaggini family is most unusual.
111Your counsel submitted I should consider the possibility of your deportation. Section 501 of the Migration Act 1958 empowers the relevant minister to cancel a visa enabling a person to stay in Australia. You are a New Zealand citizen. You are not an Australian citizen. Although you have lived in Australia for 15 years, your right to do so is based on a visa. I was not told what sort of visa. Nevertheless, under the legislation, the minister must cancel your visa if you do not pass the character test. In your case, you do not pass that test because you have, after today, a substantial criminal record, simply evidenced by my sentence of imprisonment of more than 12 months. Once your visa is cancelled, you have the ability to apply to reverse the cancellation. If the cancellation is maintained, you will be deported to New Zealand.
112The issue of deportation and sentencing was the subject of an informative paper, dated November last year and issued by the Sentencing Advisory Council and entitled 'Deportation and Sentencing: An emerging area of jurisprudence'.
113Once sentenced to more than 12 months' imprisonment, your visa will be cancelled. That fact cannot influence the sentence that I would impose. To allow it to do so would be improper.
114I cannot assess the likelihood of you being deported, for there is no evidence before me on the point. All I can say is there is a significant risk you will be deported to New Zealand at some stage in the future. This is a significant factor for both your counsel and the prosecutor noted:
(a) from the time of my sentence until the final decision of the relevant minister and any court process, you will not know whether upon release you will be immediately detained and then deported to New Zealand. This will make your time in prison more burdensome than other prisoners who do not face the possibility of deportation;
(b) if deported, this will be an extra punishment because you lose the chance to live in Australia permanently and all that involves in your case.
115The COVID-19 restrictions have made your time in custody more difficult. Such conditions are likely to last some time.
116I have set out a number of unusual circumstances in your case. As the court observed in Freeman[25]:
'However, although each of the aspects on which the applicant relies fit within a category or type that is common, in our view, the accumulation of detail was exceptional and compelled the conclusion that the mandatory detention provision should not be applied.'
[25] At [55].
117For a person who commit the offences of aggravated carjacking and armed robbery, the individual circumstances you rely upon are not exceptional and rare, but their accumulation creates substantial and compelling circumstances that are exceptional and rare and justify not making the relevant order of a mandatory minimum sentence. However, the same finding does not cause me to avoid imposing a sentence of imprisonment for the charge of armed robbery.
118I do not consider a sentence of imprisonment and a community correction order is appropriate. The period of imprisonment is too short for your case.
119I do not see the charges of aggravated carjacking and armed robbery as possessing the necessary similarity to enable the making of an aggregate sentence of imprisonment. In any event, it would serve no useful purpose.
Sentences
120On charge 1, the charge of aggravated carjacking, I sentence you to 30 months' imprisonment. This is the base sentence.
121On charge 2, the charge of armed robbery, I sentence you to 30 months' imprisonment.
122On Charge 3, the charge of committing an indictable offence while on bail, I sentence you to one month imprisonment.
123Six months of the sentence on Charge 2 will be served cumulatively on the sentence on Charge 1. The sentence on Charge 3 will be served cumulatively upon the sentences on Charges 1 and 2.
124The total effective sentence is 37 months' imprisonment. I will fix a non-parole period of 18 months.
125I declare 209 days of pre-sentence detention, excluding today.
6AAA
126If you had not pleaded guilty to these offences, I would have sentenced you to a total effective sentence of 55 months' imprisonment, with a non-parole period of 27 months.
Disposal and Forfeiture orders
127I will make the disposal and forfeiture orders as sought.
Cancellation and disqualification
128The prosecution seeks the cancellation of your driver licence and disqualification, relying on s.89(4) of the Sentencing Act 1991. It is appropriate to make such an order.
129Any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining such licence or permit for 18 months.
Section 89C of the Sentencing Act 1991
130The prosecutor sought a finding under s.89C of the Sentencing Act 1991. Sub-s (1) provides:
'Subject to subsection (2), a court, in addition to making an order under section 89(1), (3) or (4), may make a finding that the offence was committed while the offender was under the influence of alcohol or a drug, or both alcohol and a drug, which contributed to the offence.'
131Your counsel submitted there was insufficient evidence of you being under the influence of alcohol which contributed to the offence. Based on what you told Ms Ferrari, your consumption of alcohol was an important factor in the commission of the offences. It is appropriate to make the finding, and I do so.
132Are there any other matters?
133MR PATTON: No, Your Honour.
134MS ZAMMIT: No, Your Honour.
135HIS HONOUR: All right.
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