Director of Public Prosecutions v Smith
[2023] VCC 2379
•18 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01320
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEROME SMITH |
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JUDGE: | Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13; 18 December 2023 | |
DATE OF SENTENCE: | 18 December 2023 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2379 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Plea of guilty – Armed robbery – Category 2 offence – Causing injury recklessly – Youth – Childhood deprivation – Risk of deportation – Mental health – Substance abuse – Importance of promoting rehabilitation – Community Correction Order
Legislation Cited: Crimes Act 1958 (Vic); Bail Act 1977 (Vic); Migration Act 1958 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:R v Mills [1998] 4 VR 235; Bugmy v R (2013) 249 CLR 571; Newton (a pseudonym) v The King [2023] VSCA 22; Worboyes v The Queen [2021] VSCA 169; Guden v R [2010] VSCA 196; Loftus v R [2019] VSCA 24; DPP v Nichols [2022] VCC 1857; DPP v King [2022] VCC 2287; DPP v King [2022] VCC 1012; Dabaja v R [2023] VSCA 541; Wright v The King [2023] VSCA 243; R v Verdins (2007) 16 VR 269; Boulton v R [2014] VSCA 342
Sentence: Charge 1 – Imprisonment for 246 days – Charge 2 – 18 month CCO – s 6AAA declaration – Total effective sentence of 18 months’ imprisonment with a non-parole of 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Dearman | Office of Public Prosecutions |
| For the Accused | Mr T. Acutt | Slades & Parsons Criminal Lawyers |
HIS HONOUR:
1Jerome Smith, you have pleaded guilty before me to the following offences:
(a) One charge of armed robbery, contrary to s 75A of the Crimes Act 1958 (Vic) (charge 1); and
(b) One charge of causing injury recklessly, contrary to s 18 of the Crimes Act 1958 (Vic) (charge 2).
2These charges carry a maximum penalty of 25 years’ and five years’ imprisonment, respectively.
3In addition, you have pleaded guilty to a related summary offence of committing an indictable offence whilst on bail (summary charge 4), contrary to s 30B of the Bail Act 1977 (Vic), which carries a maximum penalty of three months’ imprisonment.
4In respect of charges one and two, you have been charged by way of complicity, on the basis that you intentionally assisted your co-offender Cedric Ellis.[1]
[1] A pseudonym; Crimes Act 1958 (Vic), s 323(1)(a).
Summary of the Offending
5You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 17 November 2023.[2] This is an agreed document. The following is drawn from the Summary.
[2] Exhibit P1.
6The Court was shown CCTV footage taken at the time from a camera in the park.[3] There are stills from that footage included in the Summary.
[3] Exhibit P2.
7Shortly before 5 pm on Saturday, 8 April 2023, a group of about 15 young males including Francis Mann,[4] his brother Edward Mann,[5] your co-offender in this matter Cedric Ellis, and yourself, met up at Errington Reserve in St Albans.
[4] A pseudonym.
[5] A pseudonym.
8At around 5:17 pm, whilst you stood close by, Francis was asked whether he ‘reps’ the ’47 gang’, which he denied. While you and several others stood close by, Mr Ellis put both Francis and Edward Mann into a headlock, resulting in them being unable to move.
9Mr Ellis punched Francis in the face, causing him to run away. You and Mr Ellis followed and Mr Ellis pulled Francis to the ground and punched him twice more to the face, while you again stood close by, near Francis’s head.
10You then kicked Francis’ feet causing him to fall down again. The next time he stood up, your co-accused grabbed him, held him up against a fence, and said ‘take off the vest’. He refused. You lunged forward and elbowed Francis into the fence, causing him to ‘whiplash’ over the fence at a 45-degree angle.
11Mr Ellis, and then you, punched Francis in the face. The force of your punch caused him to again ‘whiplash’ over the fence, this time at a 90-degree angle.
12As others began to gather around, Mr Ellis took Francis’ iPhone 11. He asked Francis to enter his PIN code in order to unlock the phone. Francis said ‘wait, wait’, and Mr Ellis put the phone away and pulled a knife with a 30cm blade from his waistband. Pointing the blade at Francis’s thigh and waist region, Mr Ellis said ‘give me that jacket, take it off’. You were still standing close by and turned to Francis and said “if you call the police, we’re gonna come after you’.
13Mr Ellis headbutted Francis and elbowed him in the face. You pulled a balaclava over your head as Mr Ellis continued to punch Francis to the face, causing him to again ‘whiplash’ over the fence, and then fall to the ground, unconscious.
14Mr Ellis removed Francis’s black puffer vest and used his right foot to stomp on, and then kick, Francis’ head while he lay on the ground unconscious. You and Mr Ellis then walked away, and you put on the puffer vest.
15The entire incident lasted about four minutes.
16Francis regained consciousness almost immediately. He was unconscious for 24 seconds. He initially stumbled to the ground and required his brother’s assistance to walk away. The boys’ father, Danny Mann,[6] came to pick them up.
[6] A pseudonym.
17Francis was taken to the Royal Childrens’ Hospital for treatment. He was treated for the effects of concussion and discharged later that night after scans were performed. He suffered a closed head injury and bruising over his right clavicle and swelling to his left cheek.
18You were arrested by Protective Services Officers on a train at Caufield Railway Station on 16 April 2023, after police obtained the CCTV footage depicting the offending from Brimbank City Council.
19You have been on remand since this date, for a total of 246 days. You have been remanded in an adult gaol.
Victim Impact
20The Court received four victim impact statements each of which was read by the prosecutor:
(a) Francis Mann dated 18 November 2023[7];
(b) Edward Mann dated 18 November 2023[8];
(c) Danny and Janette Mann[9] dated 18 November 2023[10]; and
(d) Eva Mann[11] dated 18 November 2023[12].
[7] Exhibit P3.
[8] Exhibit P4.
[9] A pseudonym.
[10] Exhibit P6.
[11] A pseudonym.
[12] Exhibit P5.
21I have read each of these statements and it is clear that the offending has impacted very negatively on Francis, his siblings and his parents. Each of the family members writes eloquently about the ongoing trauma that they have all suffered as a result of your offending.
22I have taken the impact of your offending on the five members of the Mann family into account in sentencing you as I am required to do.
Objective Seriousness of the Offending
23Armed robbery is an inherently serious offence. The maximum penalty of 25 years’ imprisonment reflects this. The elements are that you and your co-offender robbed Francis of his phone and vest (which contained money) and at the time your co- offender had a knife with him.
24Francis was a total stranger to you. He was a small 15 year old boy. It is clear from the CCTV footage that you and your co-offender towered over him. This was a brazen and cowardly attack in broad daylight which took place in front of other park users. Francis was helpless to resist as was his younger brother Edward.
25The victim impact statement from Francis makes it clear that he was traumatised by the ordeal. As he states, the offending has changed his life and he suffers from flashbacks. He has been left with deep emotional scars and ongoing physical pain.
26The offending appears to be opportunistic, with a low level of sophistication or planning although you brought and wore a balaclava presumably as a disguise. You told Dr Dawson that you offended in support of your friends who were members of a gang.
27You took Francis’ vest and your co-accused took his phone.
28It is noted however that you are charged on a complicity basis; though you tripped and elbowed the victim, unlike your co-offender, you did not strike or kick him while he was on the ground.
29It is agreed by the prosecution that you are to be sentenced on the basis that you were unaware that your co-offender had a knife before it was produced. Your complicity in the armed robbery is due to your continued involvement in the crime after you became aware of the presence of the knife.
30It is aggravating that you were on bail at the time of the offending.
31I assess the armed robbery as a low to mid-range example of the offence. I also assess the charge of recklessly cause injury in the same range of offending when compared with the examples of the offence that commonly come before this court.
Personal Circumstances
32You are 19 years of age, and at the time of the offending you were 18.
33You were born in New Zealand, and are not an Australian citizen. At the time of the offending you were experiencing homelessness, living a transient lifestyle alternating between sleeping on trains, in parks, and at friends’ houses.
34Your father left your mother before you were born, and your mother left you when you were an infant, leaving you to be raised by extended family and in particular your maternal grandmother. You describe living with your grandmother as ‘a bit rough’, stating that her partner was a bad drinker who would become physically aggressive towards your grandmother and yourself.[13]
[13] Psychological Report of Dr Hannah Watson dated 1 December 2023, [20].
35You moved to Samoa with your grandmother at the age of nine and were reunited with your mother. However as your mother could not afford to care for you, you were passed around family members and eventually placed with your grandfather, losing contact with your mother and grandmother.
36You moved again at 11, with your great-uncle, to Hillside in Victoria, Australia. You have not seen any of your family from New Zealand or Samoa since this time. You told Dr Dawson that you ‘apparently’ have a sister, however you have never met her.
37In Hillside you lived with eight to ten people and shared a room with your great- grandmother. At this young age you assumed a caring role for your great grandmother as she was in her nineties, contributing to the cooking and cleaning in the home.
38This living situation became more challenging as you got older. You describe the family as ‘very religious’ and you found living up to their expectations difficult. You report experiencing family violence in the form of physical abuse, isolation and control.
39At age 15 you left school after being given an ultimatum by your great uncle: leave the house or leave school and work for the family’s tree lopping business. You worked long and physically onerous hours for two years until protracted feelings of guilt, shame and isolation drove you to leave the family home at 17.
40You were unable to find employment due to having no identity documents, and resorted to couch surfing with your friends and sleeping rough. It was in this period whilst staying at friends’ houses, that you were introduced to the negative influences which led to the current offending.
41You have a history of drug and alcohol abuse dating back to when you were 17. You were under the influence of alcohol at the time of the offending.
42You have no prior criminal history but, since the date of the offending, you were found guilty of offending that occurred on 1 May 2022. There are also some outstanding summary matters which are only partially resolved.
43There is a concerning matter raised by Dr Dawson. She reports you are ‘currently serving a nine-month Youth Supervision Order[14] for sexual offences (sexual penetration of a 13-year-old when he was aged 17)’.[15] Dr Dawson reports that you refused to discuss this.
[14] Such an Order is imposed by the Childrens’ Court pursuant to s 389 of the Children Youth and Families Act 2005 (Vic).
[15] Psychological Report of Dr Hannah Dawson dated 1 December 2023, [49].
44The Court was informed that because you have been in custody while the Youth Supervision Order has been operative, you have not received any services under the Order.
Mental Health
45A comprehensive psychological report of Dr Hannah Dawson dated 27 November 2023 was provided to the court. There is no evidence of any previous assessment of your mental health.
46Dr Dawson completed a range of tests which indicated diagnoses of Post Traumatic Stress Disorder with generalised anxiety, Major Depressive Disorder, and problematic alcohol and drug use, and likely dependency.[16]
[16] Ibid, [103].
47Dr Dawson expresses the opinion that, based on Moffitt’s developmental taxonomy, you are ‘at a critical point where, with the right support, intervention and engagement, his offending may remain “adolescence limited” as opposed to him becoming a “life course persistent offender”’.[17]
[17] Psychological Report of Dr Hannah Dawson dated 1 December 2023, [126].
48I will consider the other opinions expressed by Dr Dawson later in these reasons.
Matters in Mitigation
Youth and Prospects of Rehabilitation
49You were 18 when you committed these offences and are now 19. Dr Dawson observes that Mr Smith’s offending began at a time when ‘he was sitting in a “maturity gap”, where his biological hormone changes placed him in adulthood, but society still considered him developmentally and cognitively to be a child.[18]
[18] Ibid, [128].
50You have your whole life ahead of you. It is well established when sentencing youthful offenders such as you that:
… 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 focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)[19]
[19] R v Mills [1998] 4 VR 235, 241.
51Dr Dawson describes your childhood as being ‘impacted by instability, as well as family displacement and difficulties with safety and rejection’. If anything, this understates your childhood dysfunction, which saw you living in three countries with different family members.
52Not surprisingly, Dr Dawson opines that the untreated trauma that has resulted ‘has played an underlying role in perpetuating [your] substance use as a method of coping’. Your substance abuse disorders have in turn exacerbated your underlying difficulties that you experience ‘leading to reduced self-inhibition and cognitive and behavioural self-control, thus contributing to [your] offending’.[20]
[20] Psychological report of Dr Hannah Dawson dated 1 December 2023, [139].
53Dr Dawson administered a range of psychometric tests and reported on the results. She also assessed your risk of future offending using the HCR-20 structured professional judgement risk assessment tool. Based on this test, Dr Dawson assessed you as a moderate to high risk of future physical violence ‘if [your] conditions remain untreated and you continue to abuse alcohol and other substances…’.[21]
[21] Ibid, [113].
54In my view, this evidence enlivens both aspects of the so-called Bugmy17principles. The general principle is that childhood disadvantage especially of a profound kind, will reduce the moral culpability of an offender. The specific principle is that, in cases where a causal link can be demonstrated between such disadvantage and the offending, a more substantial reduction in sentence may be called for to reflect the reduced moral culpability of the offender.[22]
[22] Newton (a pseudonym) v The King [2023] VSCA 22, [36]-[37].
55Dr Dawson considers that it is important for you to access support for your substance misuse to reduce your risk of recidivism. She is also of the view that without intensive therapy you are unlikely to develop alternative ways of understanding and coping with your emotional distress and lack of stability.[23]
[23] Psychological report of Dr Hannah Dawson dated 1 December 2023, [115]-[116].
56More positively, Dr Dawson opines that it does not appear that you possess ‘an overly criminal belief system or attitudes supportive of violence’.20 Your lack of a criminal record supports this opinion.
57Youth Justice has assessed your prospects of rehabilitation as ‘reasonable’ based on your age, limited offending history and preparedness to engage in programs while imprisoned.[24]
[24] Ibid, [120].
58I note that you have been participating in programs at the Hopkins Correctional Centre. You have completed ‘Healthy Relationships’, life skills and learning to adapt as well as a Certificate II in cookery and a Certificate I for vocational pathways. Importantly, you have worked in the kitchen since April 2023.[25]
[25] Youth Justice Centre Order Suitability Report dated 13 December 2023, 3.
59Community Corrections assesses you as a high risk of general offending.[26] The Report notes that you will likely face ‘responsivity barriers in the form of unstable housing and lack of employment/income’.[27]
[26] Community Correction Order Assessment Outcome Report dated 15 December 2023, 2.
[27] Ibid.
60In light of this evidence, and taking into account your lack of family support in the community, I consider your rehabilitation prospects to be no more than fair. However, they will be improved if you are able to access support and treatment to assist you to address your mental health conditions and drug and alcohol misuse. Whether you take advantage of those opportunities is a matter for you and only you can make the life changes that you need to make to be a contributing member of the community.
Remorse and Insight
61Dr Dawson considers that Mr Smith is ‘not considered to display much remorse for his actions’.[28] Dr Dawson reports that you described your victims as ‘not normal people; only other gang members’.[29]
[28] Psychological report of Dr Hannah Dawson dated 1 December 2023, [55].
[29] Ibid, [54].
62As against that, you are reported by Youth Justice as saying you feel ashamed to have assaulted Francis. You said that your behaviour was unacceptable and that you would apologise to Francis ‘if given the opportunity’.[30]
[30] Youth Justice Centre Order Suitability Report dated 13 December 2023, 2.
63Further, during your assessment for suitability to undertake a CCO, you expressed remorse for your offending, stating, “I feel really bad [for the victim]". You also took full responsibility for your actions.
64Finally, your plea of guilty made in the Magistrates’ Court is an indication of your acceptance of responsibility and a degree of remorse. The plea was entered at a time when the delays caused by the pandemic continued to have an effect and this entitles you to an augmented discount on sentence.[31]
[31] Worboyes v The Queen [2021] VSCA 169.
65The guilty plea spares the victims and other witnesses from the ordeal of having to give evidence and this entitles you to a significant sentencing discount for what is called the utilitarian benefit of a guilty plea.
Risk of Deportation
66As noted, you were born in New Zealand and came to Australia when you were 11 years old. You have had little if any contact with family in New Zealand.
67You are not an Australian citizen. You are therefore at risk of deportation to New Zealand if you are sentenced to a period of custody of more than 12 months, whether in a youth justice centre or an adult prison.[32]
[32] Migration Act 1958 (Cth), s 501(7)(c).
68This risk is relevant to the sentence I impose in two ways.[33]
[33] Guden v R [2010] VSCA 196, [79]; Loftus v R [2019] VSCA 24, [71].
69The first is that deportation renders imprisonment more onerous because you face that risk when you are released.
70I have taken into account these matters in sentencing you while noting that I may not artificially depress the sentence to avoid any possible migration consequences.[34]
[34] Loftus v R [2019] VSCA 24, [81].
Relevant Sentencing Principles
71Armed robbery contrary to s 75A of the Crimes Act1958 (Vic) is a category 2 offence. Pursuant to s 5(2H) of the Sentencing Act 1991 (Vic), the court must impose a term of imprisonment (other than a combination sentence) unless one or more of the circumstances set out in subsections (a) – (e) are engaged.
72Your counsel submits that exceptions apply under s 5(2H)(c)(i) and (ii).
73In support of that submission, your counsel relied on three decisions of this Court. In the first two cases, the offender was sentenced to Youth Justice Centre Order after pleading guilty to armed robbery.
74In DPP v Nichols,[35] His Honour Judge David Sexton was satisfied that the exception in s 5(2H(c)(ii) was made out. Judge Sexton concluded there was extensive evidence that the offender had severe depression, had made multiple suicide attempts and was at risk of further suicide attempts.[36] The evidentiary basis for this conclusion was cogent – see at [31] and [32]. Despite that assessment, his Honour still considered a period of detention without a CCO was appropriate and sentenced the offender to 15 months’ youth detention.
[35] [2022] VCC 1857.
[36] Ibid, [69], [71], [72].
75In DPP v King,[37] the offender was also from a very deprived background and Judge David Sexton accepted that the Bugmy principles were of considerable importance. On that occasion the exception in sub-section (e) was relied upon, however His Honour was not convinced that an exception applied, and sentenced the offender to 12 months in youth detention. In that matter there was a co-offender who had received 15 months’ imprisonment, so parity was important. Additionally, and unlike this case, there was no risk of deportation faced by the offender.
[37] [2022] VCC 2287.
76The third of these co-offenders was sentenced by the same Judge in the case of DPP v King.[38] He was 19 years old at the date of the offending but had a far more serious criminal history than the other two. He was sentenced to a total effective sentence of 3 years and 3 months’ in adult custody.
[38] [2022] VCC 1012.
77The Court was also referred to the Court of Appeal decision of Dabaja,[39] In that decision, a 20-year-old offender pleaded guilty to armed robbery. The offender had an intellectual disability (IQ of 66). It was common ground that the intellectual disability was causally linked to the offending, and that it substantially and materially reduced the offender’s culpability. The issue in the case was the application of s 5(2HA). The sentencing judge mistakenly applied the section on the basis that the self-induced intoxication played a role in the offending. The Court of Appeal clarified that the question for the sentencing judge was a different one: was the mental impairment caused by self-intoxication? If so, s 5(2HA) would prevent the exception under s 5(2H)(c)(i) from applying.
[39] Dabaja v The King [2023] VSCA 209.
78There is no such issue in this case. Here, the question is whether the exception applies. That is, firstly, was your mental impairment causally linked to the offending? And, if so, did it substantially and materially reduce your culpability? This is a high bar, and the court must be satisfied of it on the balance of probabilities, on the basis of the evidence before it.
79I accept that you had and have a mental impairment. The diagnosis is at [103] of Dr Dawson’s report and as stated earlier in these reasons is that of Post Traumatic Stress Disorder with generalised anxiety, Major Depressive Disorder, and problematic alcohol and drug use, and likely dependency. I note these are not diagnoses that had previously been made.
80In regard to the first question, that of linkage, your counsel relied on [139]-[140] of Dr Dawson’s report:
139: It is inferred that the difficulties that Mr Smith has had with processing his past experiences, as well as his need to ‘fit in’ and belong with his peers, have predisposed him and led to the development of alcohol and substance abuse, as a form of self-medication (escape/avoid his uncomfortable or unsafe state) and superficial self-esteem, in view of his low coping resources. His current Substance Use Disorders would have further exacerbated the underlying difficulties he experiences, leading to reduced self-inhibition and cognitive and behavioural self-control, this contributing to his offending.
140: Overall, the disinhibition from substance abuse, negative peer influences and an antisocial attitude somewhat supportive of violence, coupled with low frustration tolerance and emotion dysregulation appears to have contributed to Mr Smith’s offending. While Mr Smith being substance affected at the time of the offending increases his risk of engaging in impulsive and reckless behaviour, impairing insight, decision-making and judgement, his complex background and attachment and adjustment challenges play an underlying role in both the self-medication and the offending. Furthermore, due to Mr Smith’s age and stage of development, it is unlikely that his offending relates to an entrenched criminal belief system and orientation at this time, but it is critical that it is addressed whilst he is still young enough to be susceptible to social mimicry and develop personality stability.
81This evidence is unconvincing as to any linkage between the impairment and the offending, and I accept the prosecution position that Dr Dawson did not clearly express a causal link between your mental impairment and the offending, as required by s 5(2H)(c)(i). But even if I was satisfied of that, there is the second question which also sets a high bar. Your counsel relies on Dr Dawson’s opinion that:
138: These deficits would be amplified by stressors, a decompensation in [your] mental state (such as mood and affect disorders), and substance abuse. To some degree, these inherent difficulties explain Mr Smith’s failure to learn from previous mistakes, failure to comply with conditions and Orders, his continues abuse of substances, and associated offending. When highly activated, and his ‘window of tolerance’ is reduced, aggression is a likely response, known as ‘fight’. Thus, when Mr Smith becomes overwhelmed, his ability to self-inhibit and act with thought and planning is unlikely to be within his control, and rather he is responding from a position of needing to survive.[40]
[40] Psychological report of Dr Hannah Dawes dated 1 December 2023, [138].
82This evidence does not establish that your culpability is substantially and materially reduced and I accept the prosecution’s submission that the threshold has not been met and find that exception (i) does not apply.
83Your counsel also relied on exception (ii), that your impaired mental functioning would result in you being subject to ‘substantially and materially greater than the ordinary burden or risks of imprisonment’. Again, the bar is high. Dr Dawson discussed the effect imprisonment was likely to have on you, in light of your mental impairment. She said:
145: It seems fair to opine that imprisonment is likely to have a negative effect on Mr Smith’s development and future behavioural outcomes through loss of positive social structures and educational and vocational access, and exposure to negative peers at his impressionable development stage. Australian and international research has demonstrated the potential criminogenic effects of imprisonment stemming from reinforcement of criminal identity and exposure of susceptible young adult offenders such as Mr Smith.
146: While the sentencing disposition is solely a matter for the Court, it is noted that imprisonment would also likely weigh more heavily on Mr Smith than someone without his experiences. This is due to his vulnerability with regard to a false sense of community acceptance with antisocial peer groups, particularly given his young age and naivety with regard to the adult prison environment which would place him at a significantly higher risk of exploitation by others and ingratiating himself with offenders who display more entrenched attitudes, thus strengthening developing behaviours and beliefs.
147: Furthermore, it is noted that access to psychological treatment is reduced in a custodial environment due to high demand and limited resources, and only those that show signs of severe mental illness or acute medical issues are likely to be prioritised to receive treatment. It is, therefore, unlikely that his mental health will be adequately treated, particularly given the need for consistent, regular psychological interventions, particularly for trauma-related symptoms and the relationship of this to his offending, such as attitude to violence, as well as his sense of belonging, identity and problems with acculturation.
84I consider that the true position is that submitted by your counsel in written submissions:
The impact of imprisonment is substantially and materially greater given the constellation of factors of Mr Smith’s youth, his current period on remand being his first time in custody and his disadvantaged background[41]
[41] Supplementary Defence Submissions on Plea dated 11 December 2023, [25].
85But that does not enliven the exception.
86Your counsel places no reliance on s 5(2H)(e).
87As I am not satisfied that either exception (i) or exception (ii) is made out, I am required to impose a custodial order on the armed robbery charge. That order may not be a combination order.
88In considering the length of the imprisonment, I have taken into account:
(a) The relatively low level of objective gravity;
(b) The impact of your offending on Francis and his family;
(c) Your early plea of guilty;
(d) That this is your first time in custody, and that you have served it in an adult jail. Youth Justice have concluded that you have been subjected to undesirable influences due to your age and immaturity and that you have been assaulted by other prisoners;[42]
(e) Your youth and prospects of rehabilitation;
(f) Your mental health and the application of Verdins limbs 5 and 6, and the needs identified by Dr Dawson;
(g) Your very deprived childhood; and
(h) Your risk of deportation.
[42] Youth Justice Centre Order Suitability Report dated 13 December 2023, 3.
89Your co-accused, Mr Ellis, was sentenced to 36 days in youth detention by the Childrens’ Court. His offending was considerably more serious than yours. The sentencing principles in the Childrens’ Court differ from those which are applied in this Court, as general deterrence is not a relevant sentencing consideration. Even with that difference, given the violence of his attack on Francis as discussed above, the sentence imposed on Mr Ellis was lenient. Although the principle of parity does not strictly apply because of the different sentencing principles in the Childrens’ Court, the sentence imposed on Mr Ellis is a relevant sentencing consideration in determining the length of your sentence.
90In submissions on 18 December 2023, the prosecution did not concede that time served was sufficient.
91On balance, having regard to the above considerations I am satisfied that the time you have already served is an adequate sentence on charge 1. Therefore, you are convicted and sentenced to 246 days’ imprisonment. The punitive and deterrent components of your sentence are met by the period that you have spent especially as you have been in adult custody. If I was to sentence you to further time in custody, it would have been in a Youth Justice Centre as you have been assessed by Youth Justice as suitable having regard to the criteria in s 32 of the Sentencing Act 1991 (Vic).[43]
[43] Youth Justice Centre Order Suitability Report dated 13 December 2023.
92In relation to charge 2 and the related summary offence, the relevant sentencing considerations are denunciation, just punishment, and both specific and general deterrence. The promotion of your rehabilitation is a particularly important sentencing purpose.
93I am unable to impose a CCO in respect of the armed robbery offence as a matter of law. However, it is open to the court to impose a sentence of imprisonment in respect of charge 1 and a CCO in respect of charge 2 and the related summary offence provided the term of imprisonment on charge 1 does not exceed 12 months.[44]
[44] Wright v The King [2023] VSCA 243, [65].
94I have had you assessed for a CCO and you have been found to be suitable.[45] This is despite the ‘responsivity barriers’ noted earlier.
[45] Community Correction Order Assessment Outcome Report dated 15 December 2023.
95The principal barrier concerns accommodation. As noted, you were homeless at the time of the offending and in response to a question from the Court on 13 December 2023, your counsel advised that you will have nowhere to live in the event that the Court orders your immediate release from custody.
96Your case was adjourned to 18 December 2023 so that you could be assessed for suitability for a CCO. Mr Acutt informed the Court that this would provide an opportunity for inquiries to be made about emergency accommodation for you. At the resumed hearing today, the Court was informed that you would be assessed by Launch Housing once your outstanding matters in the Magistrates’ Court were finalised and that you would be assigned a case manager upon your release.
97An 18 month CCO with conviction is appropriate. It achieves the sentencing purposes of denunciation, deterrence and rehabilitation. The specific conditions of the CCO will be:
(i)You must report to Sunshine Community Corrections within two clear working days of your release from custody;
(ii)You are to perform 100 hours of unpaid community work;
(iii)You are to engage in treatment and rehabilitation for drug and alcohol use as directed by the Secretary or their delegate;
(iv)You are to engage in mental health treatment as directed by the Secretary or their delegate;[46]
(v)You are to be referred for appropriate programs to address risk of re- offending;
(vi)You are to be supervised as directed by the Secretary or their delegate; and
(vii)60 hours of treatment is to count as unpaid community work.
[46] The Court received a report from the Mental Health Advice and Response Service dated 15 December 2023. You were assessed as having a mild mental health problem and the recommendation is for ongoing assessment.
98Community Corrections has recommended against a judicial monitoring condition on the basis that you have not previously breached a community-based order.[47] However, I consider that the circumstances of your case are such as to make monitoring by the court appropriate. The Court of Appeal has recognised the value of the court’s ongoing involvement in cases involving young offenders.[48]
[47] Community Correction Order Assessment Outcome Report dated 13 December 2023, 2.
[48] Boulton v R [2014] VSCA 342, [195].
99I will impose a judicial monitoring condition. The first monitoring listing will be 9.15 am on 22 April 2024.
100In addition to these specific conditions, every CCO has the following general conditions:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) You must comply with any obligations or requirement prescribed by the regulations;
(c) You must report to and receive visits from the Secretary or their delegate during the period of the order;
(d) You must report to the Community Correction Centre specified in the order within two clear working days after the order comes into force, that is, within two clear working days of the date when you are released from prison;
(e) You must notify the Secretary or their delegate of any change of address or employment within two clear working days after the change;
(f) You must not leave Victoria except with the permission of the Secretary or their delegate either generally or in relation to a particular case;
(g) You must comply with any direction given by the Secretary or their delegate that is necessary for the Secretary or their delegate to give to ensure you comply with the order.
101I cannot impose a CCO on you unless you consent. Do you consent Mr Smith?
102I need to explain the consequences of breaching this CCO.
103You must understand, Mr Smith, that if you contravene any of the conditions of the order, then that in itself is an offence punishable by a maximum of three months' imprisonment. Should that occur you will be brought back before this court and it is possible that, depending upon the circumstances, the order will be cancelled and you will be ordered to serve a term of imprisonment instead.
104Pursuant to s 18 of the Sentencing Act 1991 (Vic) I declare that the 246 days you have spent on remand is to be reckoned as time served under the sentence I am imposing today on charge 1 and this is to be entered in the records of the court.
105Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), the total effective sentence I would have imposed if you had pleaded not guilty would have been imprisonment for 18 months with a non-parole period of 12 months.
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