Director of Public Prosecutions v Smith

[2024] VCC 814

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

KOORI COURT DIVISION

CR 23-00420

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENDON SMITH

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2024
DATE OF SENTENCE:	3 June 2024
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2024] VCC 814

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:  Aggravated carjacking – Intentionally damaging property – Related summary offences – Koori Court jurisdiction – Plea of guilty – Category 1 offence – Substantial and compelling circumstances which are exceptional and rare – Application of Bugmy principles –15 months CISP bail -Watershed moment

Legislation Cited:     Sentencing Act 1991

Cases Cited:R v Verdins [2017] VSCA 62; R v McKee [2013] VSCA 16; Bugmy v The Queen (2013) 249 CLR 571

Sentence:Total effective sentence of 190 days’ imprisonment in combination with a two and a half year CCO.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Tykocinski	Office of Public Prosecutions
For the Accused	Mr D. De Witt	Victorian Aboriginal Legal Service

HIS HONOUR:

1Brendon Smith you have pleaded guilty in the Koori Court, after a sentencing indication, to the following charges on Indictment N11632580:

·Aggravated Car Jacking, maximum 25 years' imprisonment.

·Four charges of Intentionally damaging property, each have a maximum of 10 years' imprisonment.

2You have also pleaded guilty to relevant summary offences:

·Unlicensed driving, maximum of three months.

·Drive in a manner dangerous, maximum of two years.

·Fail to stop vehicle after an accident, maximum penalty of 14 days' imprisonment.

·Fail to give name address to owner, maximum 14 days.

·Fail to render assistance after an accident, 14 days' maximum.

·Fail to stop at red traffic light, maximum of 10 penalty units.

3You have a lengthy criminal history. Your criminal history includes a number of prior convictions for burglary and theft related offences, criminal damage, assaults and driving offences. You have served a number of periods of imprisonment, mainly in New South Wales, and for terms ranging from six months to 18 months.

4On my reading of your history the offence of aggravated carjacking before me is the most serious offence you have been convicted of.

5Your criminal history is consistent with your personal history of homelessness, substance abuse, associated mental illness and history of childhood trauma.

6Aggravated carjacking is a Category 1 offence.  This means that I must impose a gaol term with a non‑parole period of not less than three years, unless I find a special reason exists to do otherwise.

7I indicated at a Sentencing Indication Hearing that I was satisfied of substantial and compelling reasons that are exceptional and rare in your case due to a combination of factors that justified departing from the legislative intention in your case.

8My reasons are set out below.

Circumstances of Offending

9The circumstances of your offending are set out in the Summary of Prosecution Opening which was Exhibit A on the Plea and forms part of these Reasons for Sentence.  In brief terms:

10You were 43 at the time of the offence- you are now 45. 

11On Monday 1 August 2022 you were loitering in the car park of a McDonald's restaurant in Broadmeadows.  Your victims, 54-year-old Jade Matthews and her son 17-year-old Paul Warris arrived in the car park and parked their car. Ms Matthews was driving the vehicle. She exited to go into the McDonald's, leaving her keys in the ignition.

12You approached the car, opening the driver's side door. You asked the
17-year-old Warris whose car it was. He replied 'It's my mother's car.'

13You told him to 'get the fuck out'. He asked if you were serious, at which point you showed him a hammer you had concealed in your sleeve.

14You swung your arm toward him in some manner, although the prosecution concede that the hammer did not get very close to the young person. He was understandably in fear that he may be harmed, and he got out of the vehicle.

15You drove the vehicle out of the car park along Pascoe Vale Road, Broadmeadows.  A couple of minutes later you collided with a vehicle being driven by Stephen Morris. His daughter was a passenger. You did not stop after the collision. You were unlicensed to drive.

16A few minutes later you drove into a random driveway in Roxburgh Park, colliding with the letterbox (that is one of the charges of criminal damage).

17You left the vehicle and wandered into another premises approaching the front door as though you were about to enter. You were told to 'piss off'. You opened a car door and were seen feeling around in the cabin. You were told to 'go away' and you did so.

18You climbed onto the roof of 9 Nowell Court.  You were walking on the roof muttering to yourself saying 'I'm here. I'm here.' You began removing tiles from the roof causing damage (that is another charge of damage property).

19You remained on the roof for about 5 minutes before then walking on the roof at No.7. You removed tiles from this roof (again damaging property) and threw them at the window of No.5, causing the window to smash (another charge of damaging property).

20Police arrived. At one point you said to them 'I'm up here stupid.'  You were taken to Broadmeadows police station. You were deemed to be unfit for interview.

Objective Gravity of Offending

21Aggravated carjacking is obviously a very serious offence given the maximum penalty and given its status as a Category 1 offence.

22There are a broad range of circumstances that may fall into the description of aggravated carjacking and there is a range of seriousness encompassed by the offence.

23I accept that this was a terrifying experience for your principal victim and would likely have lasting impacts upon both he and his mother.

24I do consider however that within the range of seriousness encompassed within this very serious offence, your example of it lies toward the lower end.  I say that for the following reasons.

i.I accept that the offending was relatively spontaneous and opportunistic.

ii.It was of short duration.

iii.The level of threat and violence displayed, whilst serious, was not mid-range or higher.

iv.There was no physical contact or actual assault, nor was there an explicit threat of injury.

v.The offending was unsophisticated. You made no attempt to conceal your identity. Your victim initially believed you to be joking when you told him to get out of the car apparently.

vi.I accept your motivation for the offending, if I can call it motivation, lay in the psychotic processes operating upon you at the time. It was not for the purpose of financial gain or to pursue some criminal activity. I accept that it was driven by auditory hallucinations you were experiencing which prompted a desire to get away.

25It is appropriate at this point to set out in brief some relevant lead up events that are documented in collateral sources.

Lead up to offending

26You have a past history of mental illness having prior diagnoses of schizoaffective disorder, bi-polar affective disorder, depression, post-traumatic stress disorder and substance use disorder.

27On 10 March 2022 you self-presented to St Vincent's Hospital Emergency Department, talking quietly, reporting that people were spying on you, and you were worried that people were hearing the conversation. You appeared vague, distracted and frequently lost your train of thought. You had been sleeping rough. You were observed speaking to yourself in a hospital cubicle. You were given Olanzapine. You requested assessment by an Aboriginal Liaison Officer but they could not be located.  You left several hours later with a diagnosis of 'hallucinations'.

28On 16 March 2022 you presented to Royal Melbourne Hospital Emergency Department. You were assessed by the Aboriginal Liaison Officer who noted you were 'very spaced out and unresponsive to questions'. Later, you wanted to see a clinician because you were concerned about your 'hallucinations and delusions'. A psychiatrist diagnosed 'psychosis' and you were linked with community services.

29You attended Royal Melbourne Hospital Emergency Department again on
9 May, and then again on 11 May, stating that you wanted to 'keep the community safe'. You complained that you were struggling to sleep.

30You have given a history of the lead up to the offence. On balance I accept this history.  Essentially, I accept that your mental health had deteriorated significantly in the period leading up to the offending. I accept that you were hearing voices, experiencing flashbacks and struggling to sleep.

31On the date of the alleged offending, you had been wandering the streets as a means of trying to escape auditory hallucinations.  You did not go to an Emergency Department because you had sought admissions to hospital in the past but were instead referred to community services.

32I accept on balance that you became paranoid and tried to find a car to steal to escape the voices.  You ended up retreating to the rooftops to escape the torment of the voices. At police request, you came down off the roof and made immediate admissions to police.  You said that you were tired and thirsty.

33In her psychiatric report dated 24 March 2024 (Exhibit 2 on the plea) Nicole Zimmerman wrote:

‘[116]  At the time of the offending in August 2022, I believe that Mr Smith was likely psychotic, secondary to an episode of drug-induced psychosis. He was on no psychiatric medication, was using ice and behaved in a disorganised and bizarre manner. This was particularly evident in his behaviour when on the roof of houses, removing tiles and yelling out. By his own report he was plagued by voices at the time and was yelling at them to leave him be. In fact, he described taking the car and driving off as being the result of fear and a need to escape the voices. I note that he was deemed unfit for police interview after his arrest.

[117]   In his psychotic state, Mr Smith was suffering from impaired mental functioning affecting his perception (hearing voices) , emotions (fearful) and judgment (behaving in an impulsive and poorly thought through manner).

[118]I believe there is a link between Mr Smith's offending and his drug-induced psychosis in that it caused him to exercise impaired judgment in deciding to take and drive off in a car, first threatening the passenger. Whilst Mr Smith stated that he did so in order to flee the voices that were harassing him, this is not consistent with earlier accounts provided to clinicians. The clearest causal link seems to be between his psychosis and his behaviour on the roofs of the houses where he removed tiles and yelled out in a nonsensical fashion in response to auditory hallucinations.’

34You are not entitled to mitigation, by way of moderation of moral culpability in the sense outlined in R v Verdins,[1] this is due to your ingestion of methylamphetamine and its likely causal relationship with your psychosis.

[1]R v Verdins [2017] VSCA 62.

35It does however explain your behaviour and place it in context.

36Following a different line of authority, such as Bugmy v The Queen; and R v Brooks and McKee,[2] I find that there is a strong link between your childhood experiences, including early homelessness and exposure to substance use, and the homelessness and vulnerability to substance use when under stress, which has such a strong relationship with the offending before me.

[2]R v McKee (“Brooks and McKee”) [2013] VSCA 16.

Personal Circumstances

37Your childhood experiences fit the description of profound disadvantage.  Your childhood circumstances are reflective of inter-generational trauma, and sadly your life's trajectory and inherited trauma sits squarely within the experience of Kamilaroi people (and the wider Aboriginal community) since British colonisation.

38Both of your parents, and all of your grandparents as I understand it, and I am referring to the County Koori Court accused information sheet, are Aboriginal. Many, including your mother, and maternal grandparents were removed as children and placed in foster care. You yourself experienced foster care, child protection and placement in boy's homes.

39The effects of intergenerational harms, in particular on those raised by members of the Stolen Generation are well recognised today.[3]

[3]See generally Australian Institute of Health and Welfare (2019), Children living in households with members of Stolen Generations.

40The history of the Kamilaroi is your history and the unique experiences of the Kamilaroi nation have shaped your forebears and you in turn. In the pursuit of pasture for sheep, Kamilaroi country was overrun in the 1830s, bloodshed and slaughter followed.  The massacres of Kamilaroi people at Waterloo Creek and later Myall Creek were documented at the time and remain two of the more prominent stains on this nation's history.

41Of course, injustice upon injustice followed down the years from that point forward for your people.

42You have heard these stories and more, and you touched on those conversations you have had with Elders in the Blue Mountains when you participated in the Sentencing Conversation.

43You were born in Sydney and grew up in Northern New South Wales and Liverpool.  Your mother was 16 years-old when you were born.  You did not know your father until later in your life.

44Throughout your childhood your mother struggled with her own mental health and substance dependence issues.  Your mother had been removed from her parents and placed in the foster care system. Throughout her life she experienced considerable abuse. She was disconnected from family throughout her childhood.

45Your maternal grandparents were members of the Stolen Generation. They similarly struggled with the trauma associated with this experience.

46I was told your mother has lost all of her siblings to suicide and substance dependence.  These losses caused her (and you) considerable distress over the years.  You lived with your mother and stepfather until you were seven.  During this period, you were exposed to violence, neglect and substance abuse. You recall witnessing your mother stabbed in front of you on one occasion.

47You were removed from your mother's care by Child Protection following a particularly violent incident at home and the involvement of the police.  You were placed with Aboriginal foster parents, Stephen and Pauline (who had also cared for your mother when she was a child).  You remained with them until you were 10.

48This would have been a sound environment save for your exposure to sexual abuse at the hands of others. You were sent to reside with a second set of foster parents in Gosford between 10 and 12.  At aged 13, you left the house, deciding to sleep rough and live independently.

49During this time, the Department attempted to place you at two different boy's homes in Sydney. These boy's homes were not safe places; notoriously so. They did not nurture. During this time, you recall being routinely separated from other Aboriginal children.  You opted to flee these homes and reside on the streets where you felt safer.

50Your schooling was disrupted by the instability in your home life. You were bullied and did not enjoy school. Your learning difficulties have been confirmed by Carla Lechner in her 2020 report and Neuropsychologist Dr Kelly Sinclair in her July 2023 report.  Due to these learning difficulties at school, and in conjunction with your social difficulties and disadvantage, you drifted from school and started drinking and becoming distracted by older peers. You left school at 13, you were living on the streets.

51I accept Dr Zimmerman's opinion as to the formative experiences of your life:

‘While there are some minor differences in details, the collateral information available to me and the account provided by Mr Smith present a consistent picture of a childhood marred by disrupted attachments to his biological parents and exposure to some violence and substance use in his childhood. Both his biological and adoptive parents had experienced the impacts of violence against First Nations People. Mr Smith experienced this in the form of transgenerational trauma but also ongoing experience of racism that he perceived in the community and the Justice system.’

52I accept this summary of your formative experiences. I also accept
Dr Zimmerman's opinion as follows:

‘A learning difficulty would have impacted on his engagement with school and, combined with some lack of stability in his supports, contributed to the early uptake of substances and drift into truanting and then offending. Unfortunately a pattern of being placed in institutions – the boys homes, Juvenile Detention Centres and then adult prisons – began in his teens and has continued into his forties…

[103] Perhaps predictably, Mr Smith's early and subsequent experiences have been the cause of considerable mental anguish and combined with substance misuse, he has experienced clear symptoms of psychosis alongside low mood/depressive episodes…’

53And at [107]:

‘Mr Smith described longstanding periods of low mood associated at times with feelings of helplessness, hopelessness, problems sleeping and anhedonia or lack of pleasure in life. I believe that he has suffered from recurrent episodes of depression and that his significant substance use has been in part an attempt to self‑medicate to manage his negative emotions and thoughts.’

54Your Counsel relied upon your exposure to family violence, untreated trauma and neglect in combination, as constituting disadvantage which enliven the principles articulated by the High Court in Bugmy v The Queen[4] concerning the assessment of moral culpability.  I have no difficulty accepting this. There is a causal relationship between what I will refer to as Bugmy trauma and disadvantage and criminogenic factors, such as homelessness, early drug use, child protection placements, poor education, and poor employment history that have marred your life.

[4]Bugmy v The Queen (“Bugmy”) (2013) 249 CLR 571.

55The connection between these factors and your methylamphetamine dependency in later life enlivens the considerations enunciated in Brooks and McKee.

56I find your moral culpability for the offending before me to be substantially reduced from the standard due to these considerations.

57You were first introduced to alcohol at eight years of age.  You recall drinking beer mixed with cordial. Your alcohol consumption markedly increased after leaving home to live on the streets. From that time, you recall drinking wine regularly with other homeless peers.

58You started smoking cannabis at aged 13, introduced to the substance by your uncles. You also experimented with various other drugs during your formative years.  There was clear evidence, including your more recent history, in dealing with the reasons for your travel to live in Victoria, that your wider family and extended family were all affected by serious illicit drug abuse.  You commenced methylamphetamine dependence at aged 35.

59At paragraph 110 of her detailed report, Dr Zimmerman wrote:

I believe that on a background of intergenerational and ongoing trauma, struggles functioning socially, homelessness, isolation, depression and sustained substance misuse since his early teens, Mr Smith began experiencing psychotic episodes during his 30s, around the time that he began using methylamphetamines …

60Dr Sinclair assessed your general IQ as low average at 84.  You fall within the borderline percentile with respect to verbal comprehension and verbal reasoning.  You fall within the extremely low percentile in relation to immediate recall.  In Dr Sinclair's opinion, at the time of the offending, verbal cognitive weaknesses were likely present and cognition would have been further impacted by acute intoxication and acute psychosis and mental health symptoms given the report of having experienced auditory hallucinations.  Cognitive functioning may have influenced your capacity to make fully informed and reasoned decisions and judgments.

61In 2020 Carla Lechner opined:

‘Mr Smith tends to live a day-by-day existence in which he attends to his immediate needs, without plans or aspirations for his future. This has been the story of his life essentially – to simply survive each day. His planning and organisational skills are poor. Mr Smith finds it hard to identify specific triggers to his negative feelings and responds to internal distress with drug use, a pattern established in his early teenage years.’

62This assessment of Ms Lechner is reflective of what I have concluded in respect of Bugmy mitigation, entwined with your cognitive functioning.

Post-Offence developments

63In the context of the above factors that I have summarised, and the resultant lifestyle you were experiencing, your commitment to the intensive CISP bail program over 15 months is remarkable.  You spent six months and six days in custody on remand after your arrest. You are no stranger to custody.  A perusal of your record reveals the regular sentences you have received over the past 27 years.

64The period you have been on CISP bail awaiting the conclusion of this matter is on your assessment the longest period you have remained at liberty since childhood.  A perusal of your record bears this out. You have either received sentences involving imprisonment, or been serving sentences of imprisonment, in every year since 1997 up to your remand on this matter in 2022, on my reckoning.

65Your experience of custody on remand prior to your release on CISP bail was at a time when COVID restrictions impacted in a negative way upon the experience of custody. It was a significantly harsher experience than six months would be if served at this point in time.

66You were released on CISP bail in February last year.  CISP bail requires regular engagement and supervision with your case worker, referrals to agencies, healthcare and drug and alcohol services to address your criminogenic risk factors.  It also involves regular Court appearances by way of supervision, regular updates in court to me, and attendances by yourself and in company with your case worker, Ms Adams, who has faithfully attended through all of those reports and I note is here again today.

67I have received eight detailed CISP reports on your progress and engagements. I have also received a one page letter from your case worker Anya Adams dated 24 April this year.  I have also received two letters from Jason Collins from the H2H Launch Housing Program, and from Mario Canas from Dardi Munwurro. 

68All your workers indicate your engagement and progress.Your case worker, Ms Adams describes you as having made 'significant improvements' in your engagement and disposition with support services.

69You have connected with Dardi Munwurro, initially attending the weekly men’s group where you reconnected with other members of the community in a culturally safe space that enabled you to open up about your history and current struggles.  The value of a culturally appropriate, Aboriginal led service such as this for a man in your circumstances cannot be overstated.

70Mr Manas speaks positively about your engagement with Dardi Munwurro.  You report having significantly reduced your alcohol intake since commencing this treatment.

71You have resumed engaging with a GP to take anti‑psychotic medication. You report that you have stopped hearing voices since commencing that treatment and I received a letter from Dr Todaro from The Living Room, that is the doctor that you have been treated by, and that is dated 6 May 2024, it is a recent letter.  She writes:

‘Brendon’s best chance of living a normal life in the community would be to increase his engagement with myself, more regular appointments, engage with services, such as case workers et cetera to assist him with keeping appointments, mental health workers and AOD workers. He would also benefit from a neuropsychological assessment with ARBIAS due to his poor memory and cognitive impairment. Brendon is in agreement with these recommendations.’

72You were accepted into Launch Housing's Homelessness to a Home program, an initiative created to provide holistic, intensive support to people experiencing long-term homelessness.  Your current Case Manager, Mr Jason Collins, has authored letters to the court confirming your positive engagement in the program and collaborative work across their service and Uniting Care, Dardi Munwurro and the CISP program.   

73NDIS funding appears to be on the horizon for you in order to provide further community supports.  You now have housing which is a significant step for a man with your history and circumstances.  A return to custody to serve the minimum non-parole period would see you lose this housing. 

74Dr Zimmerman was asked to provide opinions as to the likely experience for you in custody and in particular, in a return to custody.  She writes:

‘The risks of imprisonment that are most pertinent in Mr Smith's case are in fact associated with the breaking of the community supports and stable accommodation that he currently has in place, rather than any toxic effect of the prison environment per se.  In fact, he is sadly all too familiar with the custodial environment.  The effect of imprisoning Mr Smith would be more detrimental than for someone without his impaired ability to function independently in the community because of the disruption of crucial support networks.  There is also the risk of a deterioration in depressive symptoms.  Mr Smith has a history of depression in prison in the past and self-reports attempted hanging in police cells.  I note the increased rates of self-harm in completed suicides in First Nations People and suggest that Mr Smith faces an increased risk of depression and suicide compared to a non-Indigenous person without a diagnosis of a mood disorder.

‘He has a history of depressive episodes and had mild symptoms of depression when I met with him.  He is at risk of a future relapse with this lifelong condition, particularly in the context of feeling that he is unable to manage his life in the community in the context of loss of supports.  There is a risk of suicide given his reported attempts to hang himself in custodial settings.  Finally, I believe that Mr Smith has a history of recurrent drug induced psychosis that have impacted on his ability to function effectively in the community, and are likely related to some of the matters that brough him before the courts.

As noted above, I believe that a custodial sentence would impact on Mr Smith more than it would on someone without his cultural background, his history of institutionalisation and his diagnosis of depression.  Mr Smith has repeatedly been diagnosed with and treated for depression in prison.  He self-reports attempted hanging in police cells.  I note the increased rates of self-harm and completed suicides in First Nations People and suggest that Mr Smith faces an increased risk of depression and suicide compared to a non-Indigenous person without a diagnosis of a mood disorder.  I believe that Mr Smith's developmental and life experiences have rendered him significantly institutionalised.  He has been incarcerated in care homes, juvenile and adult prisons over his life and in many ways it is the isolation, lack of housing, and problems accessing normal societal services that prove the greater burden for him.  Indeed, in matters currently before the Magistrate's Court Mr Smith attended police cells prior to offending, asking to be locked up and given counselling and assistance.

Custodial options have been viewed in a way as the normal for Mr Smith and it is my opinion the personal deterrent effect would be minimal.  As noted, Mr Smith has received little to no treatment in the community due in part to his lack of stable accommodation and ability to engage with treating services.  His tendency to present in crisis but then discharge himself, has also impacted on his ability to receive stable support.  The exception has been the prison system where he has been treated at times with antipsychotics, a mood stabiliser and antidepressants.  However, poor adherence coupled with diagnostic uncertainty means that he is unlikely to have received regular medication for any period of time.’

75Those opinions of Dr Zimmerman are important considerations in my assessment of your circumstances.  So too is her opinion at [138] where she says:

‘I believe that Mr Smith's ability to engage in rehabilitation will depend on a very intensive outreach model of support to allow him to maintain his all-important stable accommodation, to manage his finances, and ensure he has access to a phone and a means of transport.  The services need to be coordinated and communicating regularly to ensure that Mr Smith does not become overwhelmed by numerous workers, and is receiving regular and consistent messages and help.  Without this support, I believe that his prospects of rehabilitation will be reduced.  As alluded to, Mr Smith's longstanding institutionalisation and reduced ability to function independently in the community are the main potential impediments to rehabilitation.  Mr Smith has internalised the narrative of repeated failures that led to growing low self-esteem and helplessness over his life.  Ensuring small incremental successes will enhance the prospects of effective rehabilitation.  It appears that involvement in the CISP program has seen some progress in this regard although the trajectory has not been without some hiccups, as would be expected in a case of this complexity.  Should Mr Smith return to regular ingestion of ice I believe that he would be at significant risk of experiencing another episode of psychosis.’

76I accept those opinions of Dr Zimmerman.  In my view, nothing would be surer to return you to the cycle of recidivism and reincarceration than to gaol you for the requisite non-parole period of three years.

77The legislative requirement would break the supports and the progress made and leave you upon release subject to a very short period of parole and a likely return to homelessness, depression, substance use and as Dr Zimmerman opines, a return of your psychiatric illness.

78These circumstances would result in you posing a danger to the community.  The best way to protect the community from the danger posed by you when psychotic, is to maintain current supports and engagement pursuant to a Court supervised Order.

Koori Court Sentencing Conversation

79You participated in the Koori Court Sentencing Conversation.  You have a positive connection to your cultural heritage. I was told that you express your heritage through art (having previously sold art through The Torch program), through dancing and songs (which you have learnt in language, I was told).

80You credit Elders in the Blue Mountains for teaching you about your culture, including cultural dances.  You touched on this in your conversation with the Elders in your Sentencing Conversation.  You told Auntie Jackie and Uncle David that Kamilaroi are your mob, and that you look up to Elders who brought you up.  You said you got told a lot of stories about a lot of injustices that 'happened to us'.  You said 'I was one of those young ones that were taken in, too young…at 13'.  I took this to be a reference to juvenile detention.  You said 'A lot of strong people took it well…' and you implied that you did not.

81Auntie Jackie urged you to become a leader like some of the people you were referencing, such as Archie Roach.  She urged you to become a leader at somewhere like Dardi Munwurro.

82You apologised to your victims during the Sentencing Conversation. You talked about your engagement with family and ringing them regularly. You talked about how you did not meet your father till you were 13, and that you have been ringing him but unfortunately. he passed earlier this year. Despite the effect on you of his passing, you have stayed the course on bail.  You spoke about the kitchen work that you have done in the past, that you are capable of and could seek in the future.

83You are entitled to mitigation for your participation in the Koori Court process.  It is recognised as more difficult than a general list plea.  You are required to be accountable in the conversation.  You faced the Elders and their questions.  There is an element of shame. It was not an easy process and it was not easy for you.  I accept the remorse you expressed and your genuine commitment to maintaining your supports.

Section 10A of the Sentencing Act

84Your matter was first before me for a Sentencing Indication in October last year. At that point your Counsel, Mr De Witt, sought an adjournment part heard in order to obtain the Dr Zimmerman report.  At that point in time you had been on CISP bail for seven to eight months.  You have now been on CISP for some
15 months.

85Mr De Witt relies on this engagement against your background as being capable of surmounting the test set out in the exception in the Act, that in your case there are substantial and compelling reasons that are exceptional and rare such that they justify not imposing the mandatory sentence.

86He relies on your progress since 7 February 2023 as representing a watershed moment for you. He submitted there has been a crystallisation of remorse and resolve to do better, and you have been able to stabilise what has been a chaotic life, in particular stabilising accommodation.  The importance of housing cannot be understated.  It is a driver of criminal activity; it is a well-known criminogenic factor.

87What would otherwise be mundane achievements on bail reach the standard of exceptional and rare due to the history you are pushing up against, Mr De Witt argues.  The intergenerational trauma, in and out of foster care, Bugmy factors and the combination of these being the genesis of substance use.  He said that when your mental health stabilises you do not commit offences.  He emphasised the practical effect of ripping you from accommodation and supports and sending you back to gaol with the negative peers, the corrosive environment that you have fought very hard to disentangle yourself from.

88He made submissions about community protection and deterrence being reflected in his submission rather than the prospects of rehabilitation.  He relied upon the application of some mercy in your circumstances.

89The Prosecution, as they have throughout, submit that the exception is not made out.  The prosecution made sensible concessions in relation to Bugmy mitigation and other mitigation available to you, but they say the combination of circumstances simply cannot surmount the very high bar. 

90When looking at the offence, the Prosecution say; a hammer was brandished, a 17-year-old victim, it is a very serious offence and Parliament's intention in the mandatory provision is clear.  The prosecution say you are to be commended for your progress on bail but it does not amount to substantial and compelling circumstance that are exceptional and rare.

91Further, they argue that I am precluded from including your steps toward rehabilitation in my evaluation of circumstances for the purpose of the exception by virtue of s10A(2B)(c)(iii).[5]

Analysis

[5]Sentencing Act 1991

92When making the evaluative assessment of whether there are substantial and compelling circumstances that are exceptional and rare, it is necessary to have regard to the sentencing considerations applicable to cases of aggravated carjacking, since in order to justify not imposing imprisonment the circumstances would need to surmount those principles.  The fact that I have assessed your offence as a low-level example of the offence is relevant to my evaluative assessment.

93In determining whether there are substantial and compelling circumstances, I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes for sentence set out in s5(1) of the Sentencing Act1991.

94I must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence; and I must not have regard to an early guilty plea, prospects of rehabilitation, or parity with other sentences.

95In determining whether there are substantial and compelling circumstances, I must have regard to the intention of Parliament that a sentence of imprisonment should ordinarily be made and consider whether the cumulative impact of the circumstances of your case would justify a departure from such a sentence.

96In relation to the Prosecution submission that what is put in your case as substantial and compelling reasons falls into the category of prospects of rehabilitation, I have already indicated that I find otherwise.  During the period of delay since the commission of the offence you have:

i.served 6 months of imprisonment;

ii.embarked upon an intensive supervised bail regime for 15 months, engaging with services that have allowed you to disentangle yourself from a revolving door you have been caught in, on one view, since childhood;

iii.this period lies against a backdrop of repeat offending and incarceration going back to childhood.

iv.the context of early childhood deprivation and exposure to trauma, and its relationship with criminogenic factors and drug use emerging in teenage years is relevant to an assessment of what has taken place over the past 15 months.

97These circumstances create what might be described as a watershed moment, a chance to break the cycle.  In this sense the progress goes to community protection as equally as it does toward prospects.  But as a watershed moment in your particular case, it stands alone as a consideration, in my view.  To break the cycle of incarceration for a 45-year-old Aboriginal man, whose life from infancy has reflected the experiences of too many of your community, represents a different consideration than simply your prospects of rehabilitation.

98Sentencing principles recognise that rehabilitation during a period of delay is mitigatory. The retrospective recognition of this as a mitigatory factor separates this consideration from 'prospects of rehabilitation' which necessarily looks forward.  Given the draconian nature of this legislation I see no reason to expand 'prospects of rehabilitation' to embrace the 'effects of delay'.

99The person I am sentencing has changed markedly from the person who committed the offences before me.  The hardship in custody you would experience as a result of returning you to custody after this period is a consideration.  As I have already indicated, I do find in your case that there are substantial and compelling reasons that are exceptional and rare and that justify a departure from the mandatory sentencing regime.

100To summarise, these circumstances, in combination give rise to the exception on my assessment. It is the interplay and entwining of these circumstances that give rise to my assessment rather than the sum of individual parts:

i.Intergenerational trauma and early childhood traumas, including foster care, boys' homes, living on the streets, giving rise to Bugmy mitigation with full effect. Kamilaroi experience and wider Aboriginal experience of what you have experienced in your development is unique to your community.

ii.The link between these experiences and early drug use.

iii.The link between these factors and mental illness, including depression, and the relationship between mental health and drug use.

iv.the link between these factors and other criminogenic factors such as homelessness, poor education, and poor employment.

v.The role your cognitive profile has played in exacerbating some of these features.

vi.the regular appearances in court, and periods of imprisonment over the past 27 years (adult history).

vii.the six months you have spent in custody and the circumstances therein.

viii.the negative consequences of returning you to custody for the mandatory term, including the risk of self-harm, but also the loss of external supports, loss of housing in particular.

ix.the negative consequences for community protection based upon
Dr Zimmerman's assessment in the passage I referred to about relapse.

x.Sentencing Conversation participation, you are not only entitled to mitigation for your participation, but in my view, it enhances the watershed moment effect.

xi.Remorse.

xii.Culturally appropriate services available to you likely to be lost in custody.

xiii.The application of mercy, which is justified in your case given what I have said about breaking the cycle and the watershed moment.

xiv.The plea of guilty.

101And I should add, in relation to return to custody, the risk of institutionalisation and again make reference to Dr Zimmerman.

102The cumulative impact of these circumstances are such that they are substantial and compelling, and exceptional and rare, and they justify a departure from the mandatory head sentence with a three year non-parole period.

103I had you assessed for a community corrections order and there was also a Mental Health Advice Response Service assessment.  Those documents are on file.  I accept the contents therein.  You were assessed as suitable, although high risk for a community corrections order.

104I consider that for the reasons I have stated and when I consider the importance of general deterrence and denunciation and community protection and your prospects of rehabilitation, that having found the exception the appropriate sentence in your case is a combination sentence of time served in combination with a lengthy CCO.

105As part of the CCO I will in fact impose two CCOs for the reasons I will explain.  Part of the CCO I will recommend in these sentencing reasons without necessarily being part of the order, that you continue to engage with Dr Daniela Todaro to monitor your mental health and accept treatment, and that if Corrections could support her recommendation for a neuropsychological assessment with ARBIAS.  That you continue to engage in psychological counselling with Groundwork Psychology.  Continue to engage with supports from Launch Housing and continue to engage with Dardi Munwurro.  They are recommendations.

106In relation to sentence I sentence you as follows, Mr Smith.

Sentence

107On Charge 1, the charge of aggravated carjacking, you are sentenced to
190 days' imprisonment in combination with a two-and-a-half-year community corrections order.

108That community corrections order will have a special condition of 100 unpaid community work, you will be subject to supervision, and there will be judicial monitoring which I will commence at the four month mark.

109I declare that you have served 190 days pre-sentence detention.

110In relation to Charges 2-5 on the Indictment and the relevant summary offences I propose to impose an aggregate sentence, and that is due to viewing them as a series of offences in an extended transaction of driving behaviour and then the associated bizarre behaviour on the rooftops.

111For Charges 2 to 5 on the indictment and the relevant summary offences of driving unlicensed, driving in a manner dangerous, fail to stop vehicle, fail to give name and address, fail to render assistance, and fail to stop at red traffic light I impose a community corrections order of two and a half years' imprisonment with conditions that you:

i.attend for mental health assessment and treatment as directed;

ii.drug assessment and treatment as directed;

iii.alcohol assessment and treatment as directed;

iv.attend programs to reduce reoffending;

v.be subject to supervision.

112I have made those recommendations in relation to engagement. 

113The red light, the maximum is a fine, but I do not see any reason why that cannot be part of a community corrections order, Mr De Witt.

114MR DE WITT:  No, nor do I.

115HIS HONOUR:  No.  Now I am going to make an order against your license as well.  The offences of driving in a manner dangerous, driving unlicensed, failing to stop, failing to give name and address, fail to render assistance, in relation to those offences you are disqualified from obtaining a license for a period of two years.

116There is no mandatory term that I have been told about is there?

117MS TYKOCINSKI:  No, Your Honour, it's discretionary.

118HIS HONOUR:  Discretionary, thank you. Thank you very much for that.

119Pursuant to s6AAA, were it not for your pleas of guilty I would have sentenced you to a total effective sentence of four years' imprisonment with a three year non-parole period.

120I make the disposal order that is sought.

121I have made the declaration of pre-sentence detention.

122Now Mr Smith, do you consent to the community corrections orders?

123OFFENDER:  Yes, Your Honour.

124HIS HONOUR:  All right.  Thank you everyone for your patience.  Now those orders are going to be prepared, I will sign them.  You have got to report within a couple of days.  You have got Mr De Witt and Ms Adams to impress upon you the importance of doing that.  Look in many ways, Mr Smith, the hard work begins now.  I don't think I need to impress upon you the line you have walked for the last 15 months with a three year non-parole period hanging over your head, it's been a very close run thing, but you have done the work but now the sentence of this court takes place.  The community corrections orders, there's requirements as part of both orders.  Community work, attendances for treatment.  If you don't do it, if you reoffend, commit offences on these orders you will be back here and I will have to resentence you.  It becomes a difficult exercise for you.  If you don't attend appointments and Corrections breach you, you will be back here for resentence, so you have made a good effort thus far, but the real work now begins.

125All right, we will have those orders and I'll sign these and Mr De Witt can have a look at them.

126MR DE WITT:  Your Honour, can I just raise two matters?

127HIS HONOUR:  Yes.

128MR DE WITT:  Firstly, the fourteenth matter that Your Honour identified as forming part of the basis for the finding of both of the legislative tests was a plea of guilty.

129HIS HONOUR:  Plea of guilty, yes – not at early plea of guilty.

130MR DE WITT:  Just to clarify it's not, not an early ‑ ‑ ‑

131HIS HONOUR:  It's not an early plea.

132MR DE WITT:  Thank you, Your Honour.

133HIS HONOUR:  And I probably should have said that, that on any view this wasn't an early plea because it came after a sentencing indication in this court.

134MR DE WITT:  Yes.  And Your Honour the other matter was the summary matters are due to return on 15 July.  If Your Honour was in a position to provide even a draft reasons, would you be ‑ ‑ ‑

135HIS HONOUR:  I think we'll have them published by then.

136MR DE WITT:  Thank you, Your Honour.

137HIS HONOUR:  Don't let the meandering nature of my delivery mislead you that there's a scrawl of handwritten notes all over – most of its typed up.

138MR DE WITT:  Thank you, Your Honour.

139HIS HONOUR:  Mr De Witt.  All right, Mr Smith, you will get copies of those and as I said, don't be under any illusions that it's plain sailing from here on in, it's hard work and you'll just need to approach it each day at a time, as you have been, a day at a time, a week at a time.  Don't stress out by looking too far down the track about it, and you have got the supports there, so make sure you use the supports and engage with the supports.

140All right, thank you very much.  Thank you, we will adjourn the court.

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