Director of Public Prosecutions v Smith
[2025] VCC 1340
•12 September 2025
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01359
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRISTAN SMITH |
---
JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 September 2025 | |
DATE OF SENTENCE: | 12 September 2025 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1340 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentencing
Catchwords: robbery – commit indictable offence on bail – Bugmy – Verdins
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)
Cases Cited: Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 102.
Sentence:Total effective sentence of 298 days imprisonment combined with a Community Corrections Order of 8 months’.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Triandos | Office of Public Prosecutions |
| For the Accused | Mr T. Acutt | Sarah Pratt and Associates Pty Ltd |
HER HONOUR:
1Tristan Smith, you have pleaded guilty to one charge of robbery.
2You have also agreed to this Court hearing, and have pleaded guilty, to the summary charges of commit an indictable offence on bail.
Circumstances of the offending
3The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.
4At the time of your offending you were 24 years of age. You are now 25. Your victim, Braiyden Oakley, who was unknown to you, was 18 years of age at the time.
5At around 9:00PM on the evening of Friday 26 January 2024, Mr Oakley was walking home alone in the streets of Sebastopol after having attended the nearby Coles supermarket with a friend.
6As he walked, he came across you, with two associates, being your girlfriend and a male friend. You approached him while your male associate asked Mr Oakley for directions to the shops, which he provided.
7You moved forward to be around one metre away and stuck out your hand to thank him saying, ‘don’t be afraid’.
8He shook your hand and as he did so, he saw you look in the direction of the logo on his black Kathmandu jacket. You then made a demand for this jacket and Mr Oakley said ‘no’, believing you to be joking. You repeated the demand, but he still said ‘no’.
9You then said to Mr Oakley, ‘If you don’t give me your jacket, I’ll shank you’. While moving his left hand, he saw something shimmer and believed it was a knife.
10Mr Oakley became fearful, dropped his drink and wallet which he had been holding and removed his jacket.
11He threw the jacket at you and bent over to pick his wallet and drink back up off the ground, when you said, ‘give me your wallet as well.’ He picked up his wallet and ran home, hearing the group laughing as he ran.
12When Mr Oakley made it home, he immediately told his mother what had happened, who in turn called police to report the incident at approximately 10:20PM. He then later attended the police station to make a statement.
13As part of the investigation, officers attended the scene to conduct a search and obtain any available CCTV footage in the area. They reviewed footage from the nearby Coles Supermarket, identifying the group they believed matched the description given by Mr Oakley. The footage shows you entering the store and passing a jacket to an associate. You were recognised by police through previous interactions.
14At 2:30PM on Saturday 27 January 2024, investigators attended an address at Vale Street, Sebastopol and located you. During a search of a bedroom on the property, officers located a Kathmandu Jacket matching the description of the one taken from Mr Oakleigh.
15You were arrested and later interviewed. You made various admissions in your interview, as outlined in the prosecution opening.
Gravity of offending
16The charge of robbery is a serious offence as indicated by the maximum penalty of 15 years’ imprisonment. Principles of general deterrence, denunciation and community protection loom large.
17While it is accepted by your Counsel that your offending would have been frightening for the victim, he submits that it is a ‘lower-end example of robbery.’ He submits, the offending was not protracted; there was no use of physical force; the items stolen were of relatively low value and you derived no financial benefit from the offending.
18While I take into account these factors and consider that your offending can be described as relatively unsophisticated and unplanned, I still regard the offending as serious. This was an entirely unprovoked attack on a young man in a public place. Your conduct was unacceptable and likely to have been – as you yourself appear to recognise – frightening and impactful. I also take into account as an aggravating factor that you committed this offence while on bail. Given this, and to avoid double punishment, I indicate that I propose to impose a concurrent sentence on the bail matter.
19You instruct your Counsel that you were under the influence of prescription medications, GHB, cannabis and ice at the time of the offending. In addition to being severely drug affected you also recently described to the corrections assessor feeling angry as you were also grieving the passing of your grandmother three days before the offending. While this offers some insight into your likely circumstances at the time of the offending it is of course no excuse.
Plea of guilty
20I take into account your plea of guilty to the charges. The matter resolved to the charge on this indictment prior to trial and after a pre-trial ruling. However, it is agreed between the parties that you proffered a plea to this charge on 10 April 2024 and therefore your plea can properly be regarded as an early one, notwithstanding a committal hearing did proceed.
21Your plea has important utilitarian value and indicates your willingness to facilitate the course of justice and accept responsibility for your offending. I also accept that you have demonstrated some remorse for your offending, noting that in the record of interview you offered to return the jacket and apologise to your victim.
Personal circumstances
22Your personal circumstances were outlined by your Counsel and are canvassed in the neuropsychological report of Ms Jane Lofthouse, of 14 August 2021.
23In summary, you were removed from your biological mother, a Gunditjmara woman, at the age of 18 months. She apparently had struggled with her own substance abuse issues. From there you were placed into a foster home in Geelong. The only healthy connection to your family and culture was your maternal Grandmother who, as already noted, died shortly prior to the offending before the Court. You never knew your father and only met your biological mother at age 18 and she refused to have any relationship with you. Your attempt to reconnect with her was at the behest of your grandmother. As your Counsel explained, you arrived at 3:00AM and she refused you entry to the house and put you back onto the street.
24You have experienced some periods of stability with your adoptive family, however, as submitted by your Counsel your life has predominantly been shaped by the physical and sexual violence of older children while living in that house. You were beaten, slapped, burnt, and abused in ways that you are only beginning to be able open up about.
25As a result of this ongoing abuse and volatile environment, you left this home at the very young age of 11 and went to live in residential care in Warrnambool for a period. This was short lived, and you became transient. At the age of 14 you were reintroduced and reconnected to your older brother who then introduced you to drugs.
26A Barwon Health discharge summary, referred to by Ms Lofthouse in her report, notes that you have had a long-standing history of emotional deregulation, aggression and antisocial behaviour from age 12. A mental health plan prepared when you were nine noted that you were experiencing angry and uncontrolled behaviour marked by verbal and physical abuse.
27You attended school up until around the age of 16 and while you do not report significant learning difficulties you were often absent or suspended for behaviour issues and ultimately you were expelled.
28You report having had a couple of intimate relationships which appear to have been impacted and disrupted by your drug use.
29You report a long history of poly-substance abuse commencing from around the age of 13 and with cannabis. Soon after, in the context already referred to, you started using methamphetamine, and then GHB, heroin and also over the years you have abused benzodiazepines.
30You have a limited work history, having worked in concreting and in an abattoir, but your chronic and ongoing drug use has impinged on your ability to work or hold down a job.
31Over the years you have suffered additional traumas. In 2016 you were the victim of a burglary where you were struck to the head with a weapon. In 2016/2017 your younger brother was killed in a farming accident. In the same year you attempted suicide by hanging and engaged in other incidents of self-harm when you cut your arms. In 2018 you were run over by a car and sustained head injuries. In 2020 after taking GHB you were unconscious for two days and treated for an overdose.
32In her assessment back in 2021, Ms Lofthouse administered a range of formal tests. Your scores across tests of verbal and nonverbal abstract reasoning were varied falling in the average and low average ranges and indicative of mild executive dysfunction. Your type of presentation was likely consistent with the presence of the executive dysfunction with further contributing factors being emotional issues and drug use. Your intellectual deficits were within the premorbid function and not as a result of acquired brain injury or a developmental intellectual disability. Your likely verbal deficits were also impacted by you not being able to fully benefit from education due to the significant behavioural problems marked by aggression, homelessness and early drug use coupled with instability in your life. She opined that your intellectual impairment was likely to be long standing and present in the future.
33Ms Lofthouse also considered that you present with significant psychological issues and antisocial and borderline personality types which have arisen after your abuse as a child and ‘an unstable and chaotic life marked by early drug use and homelessness’.
34Ms Lofthouse explains that these traits impact on your behaviour in a vast variety of ways – including behavioural/emotional dysregulation; impulsivity; aggression and a pervasive pattern of disregard for the safety of self and others.
35You have a lengthy and relevant prior criminal history and have previously been placed on community corrections orders and have served lengthy custodial terms.
Other mitigating factors
36Your Counsel relies upon a range of mitigating factors on your behalf.
37Your Counsel submits that while not a young offender your youth is still a relevant consideration. I accept this submission and that rehabilitation still has an important role to play in sentencing you. As for your prospects, they must necessarily be seen as guarded. It seems that you require supports in the community and you need to address in particular your long-standing drug addiction. Your Counsel indicated that on your release, at least in the short-term, you are able to reside with a younger brother in Ballarat.
38Your Counsel also relies upon the risk of institutionalisation in your case and the sentencing objectives of preventing recidivism and institutionalisation and the need to facilitate reintegration into the community. I have also taken into account that for a good portion of your recent term in custody you have been held in relative confinement apparently for your own safety. Consequently, you have had less access to rehabilitative programs and greater restrictions placed on you, as described by your Counsel.
39Further, your counsel submits that there has been extra-curial punishment in your case, arising from the circumstances surrounding your arrest by the police, as canvassed in this Court’s previous rulings. How much weight I give this factor depends on all the circumstances of the case, which I am well familiar with. I take this factor into account as advanced by your Counsel, but in assessing the weight to give it I note that there is, for example, no evidence of ongoing consequences or impact.
40Your Counsel also relies upon your deprived background and the principles of Bugmy in the general sense as moderating your moral culpability[1]. On the evidence before the Court I accept that you were deprived the stability and security that all children are entitled to and that this has impacted your development, as canvassed by Ms Lofthouse. I accept this is relevant to an assessment of your moral culpability and other sentencing considerations. Of course however it also bears upon the importance of specific deterrence and community protection, particularly in light of your very relevant prior criminal history.
[1] Bugmy v The Queen [2013] HCA 37.
41Your Counsel also submits and I accept on the evidence that limbs 5 of Verdins is enlivened, in that your experience of custody is likely to be more onerous then someone not suffering from your conditions, as outlined in the report of Ms Lofthouse[2]. Given the long-standing nature of your conditions, I accept that the assessment of Ms Lofthouse in 2021 continues to have relevance. She did not consider that your intellectual impairment would make custody more onerous but she was of the opinion that your significant psychological symptoms, ‘likely to be present throughout any period of incarceration’ and personality traits which render you more susceptible to impulsive and aggressive behaviours, will adversely impact you, compared to others who do not suffer from these conditions.
[2] R v Verdins [2007] VSCA 102.
42The delay in your case finalising is also relied upon, as it has weighed on you, unresolved for a considerable period. Also, you have lost the potential of having this matter dealt with during an earlier hearing on 16 September 2024 when you were sentenced to 9 months imprisonment for a consolidation of matters.
Sentencing purposes
43The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. I accept that general and specific deterrence and community protection are particularly important in your case. I also accept, as already noted, that your rehabilitation should also, to the extent possible, be promoted.
44I take account the sentencing guidelines referred to in s5 of the Sentencing Act1991, where relevant in your case. I have also had regard to the general sentencing landscape for this offending. This has provided me some guidance but of course each case needs to be determined on its own facts and circumstances.
45I take into account the principles of parsimony, and proportionality. I also take into account the principle of totality, noting again that in September 2024 you were sentenced to a term of 9 months imprisonment for other offending that appears to have been proximate in time and that overall you have now been in custody for a substantial period.
46I consider that the only just and appropriate sentence in your case is one comprising a term of imprisonment. This was not disputed between the parties though your Counsel submits that time served in itself was a sufficient penalty. The prosecution initially submitted that a combination sentence was appropriate; however, upon receiving the assessment from Corrections, they submitted that a straight term of imprisonment should be imposed.
47I had you assessed for a community corrections order. The assessor expressed a range of concerns including your history with Corrections, lack of protective factors and poor pre-release planning and assessed you as unsuitable for an order. The MHARS report recommends that any corrections order made have as a condition ongoing assessment or treatment of your mental health. I have taken both these assessments into account.
48After carefully considering all relevant matters, and noting in particular the reservations expressed by Corrections, I have concluded that a combination sentence can best accommodate and reflect the denunciatory and punitive purposes of sentencing in your case and also assist in your reintegration and progress in the community. I indicate that I have substantially moderated the sentence I would have otherwise imposed to reflect the mitigatory factors advanced on your behalf.
49Synthesizing all relevant considerations, I impose the following sentence.
Sentence
50Charge 1, you are convicted and sentenced to 298 days' imprisonment.
51Is it 294 that he has available to him?
52MR ACUTT: Including today, Your Honour, yes.
53HER HONOUR: All right, just one moment, counsel.
54Yes, I impose a term of 298 days' imprisonment combined with a corrections order of eight months.
55On the summary charge I impose a sentence of seven days. I make no orders for cumulation, they are to be served concurrently.
56The 298 days should see Mr Smith released on or about Monday approximately. I don't know whether that's precise, but it is approximately Monday.
57On to a corrections order, the corrections order conditions are going to be as follows. I am going to have the order - it can be provided to Mr Acutt, who's in court, and then it can be emailed. Ms Goddard, you've obviously got email facility there, do you?
58MS GODDARD: I do, yes, Your Honour.
59HER HONOUR: All right. We're going to have the draft form emailed to you. I'm going to take Mr Smith through it, because I'm going to - what I propose to do is have him consent to the order remotely.
60MS GODDARD: Yes, Your Honour.
61HER HONOUR: And to sign it in that manner. So, Mr Smith, actually before I come to this and just so I don't forget, pursuant to s18 of the Sentencing Act I declare that you have served 294 days in presentence detention inclusive of today.
62Pursuant to s6AAA, but for your plea of guilty I would have sentenced you to some 20 months' imprisonment with a non-parole period of 14 months.
63I make the forfeiture order that was indicated by consent.
64So, Mr Smith, what I've done then is, as I said, you should be eligible for release - not parole, I beg your pardon, for release on the order on Monday. In any event, you will be eligible for release after you've served the 298 days and most of that has been reckoned. So do you understand that?
65OFFENDER: Yeah.
66HER HONOUR: You're coming out on a corrections order and I've set the period of eight months, all right?
67OFFENDER: Yes.
68HER HONOUR: The conditions of that order are as follows. There are core conditions and then there are additional conditions. The core conditions - and I know that you're familiar with this because you've been on orders before. The core conditions are that within two clear working days of the order commencing, and it will commence on the day of your release, you have to go into Ballarat Corrections. You know where they are?
69OFFENDER: Yes.
70HER HONOUR: All right. Mr Smith, you've got to be proactive. You have to do that. You're going to have to go in there and they're going to set a timetable for you. They'll give you your next appointment.
71OFFENDER: Is that at the courthouse, yeah? You have to go the
72HER HONOUR: No.
73OFFENDER: You go to the courthouse?
74HER HONOUR: It's at 22 Camp Street. I don't think - that's not the courthouse, is it? No, it's not at the courthouse. It's I think near the courthouse. The address will be on the order, all right? It can't be far from the courthouse. If you don't know where it is then maybe go into the courthouse and ask them, but I don't think it's far from there.
75OFFENDER: I'll find it. I'll find it.
76HER HONOUR: All right. It's close to there, isn't it? Yes. All right, so it's 22 Camp Street. You're going to have to go in there. These are the core conditions. You must not commit another offence which is punishable by imprisonment during the time the order is in force. So that is eight months as of its commencement date. You can't commit another offence punishable by imprisonment. You must comply with all obligations or requirements made of you, you must report to, as I've indicated, Corrections. That is the first fundamental core requirement. You must let them know within two clear working days if you change your address or your job.
77So as I understand it, you're planning to go and live with your brother. I'm not sure if that's been confirmed, but that's the plan. If that derails, if you end up somewhere else, you need to let them know.
78OFFENDER: Yeah.
79HER HONOUR: You must not leave Victoria without first getting their permission, you must obey all lawful directions and instructions from them. And further to that, all right, so they are the mandatory conditions, further, you must be under their supervision for a period of eight months. So that means going in for supervision appointments. You must undergo assessment and treatment for drug use or dependence as directed, for any alcohol abuse or dependence as directed, for mental health assessment and treatment as directed, and you must participate in programs and all courses that address factors relating to the offending.
80So first of all do you understand those conditions?
81OFFENDER: Yes, I do.
82HER HONOUR: Very well. You will breach this order, Mr Smith, if either within that eight-month period you commit an offence punishable by imprisonment or you don't follow one of these conditions, all right?
83OFFENDER: Yes.
84HER HONOUR: If you breach the order what that means is you can come back to court, no.1, for breaching and I can deal with you for that. That could be a term of imprisonment or a fine, it can be a penalty. And then furthermore it is open for me to resentence you in relation to this original charge. Do you understand?
85OFFENDER: Yes.
86HER HONOUR: Very well. So understanding what the conditions are, understanding how the order can be breached, do you consent to the order?
87OFFENDER: Yes, I do.
88HER HONOUR: All right, counsel, do I need to do anything else in relation to that? That is the order as it appears. Does anybody want to raise anything? Ms Godard, you have a copy of it?
89MS GODDARD: I don't have a copy of it yet, Your Honour, but I have no issues with what has happened so far.
90HER HONOUR: All right. Did we send that? You should have it.
91MR ACUTT: I've received it, Your Honour.
92HER HONOUR: What's that?
93MR ACUTT: I've received it, Your Honour. Apologies, yes, I've received it.
94HER HONOUR: You should have a hard copy.
95MR ACUTT: That's all right. I've got it digitally. That's all fine.
96HER HONOUR: All right. You've got it. Ms Goddard, you really should have it.
97MS GODDARD: I'm just checking again, Your Honour. Apologies, I do. It has come through. I can confirm I do have it.
98HER HONOUR: All right, thank you. Maybe just take a moment, check it. It really does reflect what I've indicated, but I just want to ensure that counsel agree.
99MR ACUTT: No issues from me, Your Honour.
100HER HONOUR: All right, thank you.
101MS GODDARD: Thank you, Your Honour, for that time. I confirm there's no issues either from my perspective. ..
102HER HONOUR: All right, we'll leave the link on. You can have a word with our client after we leave. All right, we'll adjourn the court, thank you.
0
2
0