Director of Public Prosecutions v Smith
[2021] VCC 1627
•22 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01465
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAVIS SMITH |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 October 2021 |
DATE OF SENTENCE: | 22 October 2021 |
CASE MAY BE CITED AS: | DPP v Smith |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1627 |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Theft; armed robbery; aggravated burglary; causing injury intentionally
Legislation Cited: Sentencing Act 1991; Disability Act 1986
Cases Cited:Bugmy v The Queen [2013] HCA 37; DPP v Drake [2019] VSCA 293; R v Verdins & Ors (2007) 16 VR 269; Muldrock v The Queen [2011] HCA 39; Worboyes v The Queen [2021] VSCA 169; DPP v Grabovac (1998) 1 VR 664; Joshua Brown v The Queen [2019] VSCA 204
Sentence:Total effective sentence of 5 years 8 months imprisonment, with non-parole period of 3 years 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Regan | Office of Public Prosecutions |
For the Offender | Mr P. Bloemen | Galbally & O'Bryan |
HER HONOUR:
1Travis Smith, you have pleaded guilty on indictment to two charges of armed robbery, one charge of aggravated burglary, one charge of causing injury intentionally and eight charges of theft committed over a 12-day period in November of 2019.
2You have also pleaded guilty to six related summary offences. There are three charges of unlicensed driving, one of failing to answer bail, one of unlawful assault and a rolled-up charge of committing an indictable offence whilst on bail.
3In sentencing you for your crimes, I am obliged to have regard to the maximum penalty for each of the offences which you have committed.
4In terms of the charges on the indictment, the maximum penalty for armed robbery and aggravated burglary is 25 years' imprisonment. Intentionally cause injury and theft each carry a maximum penalty of 10 years' imprisonment.
5For the summary offences, the charges of unlicensed driving each carry a maximum penalty of six months' imprisonment; failing to answer bail carries a maximum of two years' imprisonment; and committing an indictable offence whilst on bail and unlawful assault each carry a maximum of three months' imprisonment.
6These maximum penalties reflect the seriousness with which Parliament regards each of these offences.
7The circumstances of your offending were set out in a document entitled “Amended Summary of Prosecution Opening for Plea” dated 5 October 2021. This is an agreed document and reflects your acceptance of the elements of the offences to which you have entered your guilty pleas, as well as the factual basis on which you fall to be sentenced.
Charge 1 – Theft of Motor Car – white Mazda sedan reg 1KX 6DI
8At approximately 4.28 am on Saturday, 9 November 2019, police patrolling Oak Avenue, Doveton observed a white Mazda sedan with Victorian registration plates 1KX 6Dl being driven erratically. Police attempted to intercept the sedan but were evaded. You admit to being the driver of that vehicle which had been stolen from Hallam the preceding evening.
9These facts also comprise the Summary Charge 24, unlicensed driving.
Charge 2 – Theft of Petrol/unlicensed driving– Coles Express Mulgrave
10At 9.20 am that same morning, you drove the stolen white Mazda into a Coles Express Service Station in Mulgrave. You stole $15.43 worth of unleaded petrol by putting petrol into the car and driving off without paying. These facts also include the continuation of Summary Charge 24, unlicensed driving.
Charge 3 – Armed Robbery – North Dandy Liquor Store Saturday 9 November 2019
11At about 10 am also on 9 November 2019, you and Liam O'Halloran entered the North Dandy Liquor Store in Dunearn Road, Dandenong North, arriving in the stolen white Mazda sedan. This also represents a continuation of Charge 24, unlicensed driving.
12You both walked inside the store and each picked up a 10-pack of Jack Daniels premixed alcohol cans valued at $55.00 each.
13As you both approached the sales counter, you pointed a box cutter knife at the counter attendant, Hiu Tse, saying "Don't come", before leaving the store without paying. Mr Tse initially froze, but then went to the front of the store. He saw you getting into the white Mazda and driving off and made a note of the registration number.
Charge 4 – Theft of Petrol Coles Express Service Station Hampton Park
14At about 11.45 pm later that same day, you drove the stolen white Mazda into a Coles Express Service Station in Hampton Park and again stole petrol, this time to the value of $30.53. Those facts also comprise part of Summary Charge 24, unlicensed driving.
Charge 5 – Armed Robbery 10 November 2019
15At 10.50 pm on 10 November 2019, victim Adam Augustin was walking along Webb Street, Narre Warren when stopped by you and your accomplice, Jordan Mungatopi. You both emerged from what Mr Augustin described as a "white Toyota Camry hatch".
16After getting out of the vehicle, you held a knife to Mr Augustin's throat, demanding his property and ultimately taking his OPPO ASX 5 mobile phone and wallet containing personal identification cards.
17The stolen white Mazda sedan 1KX 6DI was later recovered police on 11 November 2019 in Noble Park. Your fingerprints were located on that vehicle.
Charges 6 and 7 - Theft of Motor Car - Silver Nissan Pulsar registration PIV 099 and Petrol
18At approximately 6.10 am on Tuesday 12 November 2019, Barry Smith discovered that his 1998 Silver Nissan Pulsar sedan Victorian registered number PIV 099 had been stolen from outside his home in Wren Street, Hampton Park.
19You had changed over cars. At 6.50 pm on Tuesday 12 November, you drove this stolen silver Nissan Pulsar sedan into the Coles Express Service Station in Noble Park North and stole $29.71 worth of petrol by again driving off without paying. (These facts also comprise part of the continuing Charge 25, also unlicensed driving).
20The stolen silver Nissan Pulsar PIV 099 was subsequently discovered by police abandoned in Doveton on 13 November 2019 with your fingerprint on that vehicle.
Charge 8 – Theft of Motor Car – 19 November 2019
21Between 11.00 pm on Tuesday, 19 November 2019 and 12.05 am on Wednesday, 20 November 2019, victim Ahmed Khan discovered his 1998 Maroon Nissan Pulsar sedan, registration number 1KG 4OJ, had been stolen from outside his home in Stevenson Avenue, Dandenong North. Through your plea you admit responsibility for this theft and had again changed over cars.
Charge 9 – Aggravated Burglary – Bungalow at 6 Warrington Close Narre Warren
Charge 10 – Causing Injury Intentionally (to Matthew Nehm) in bungalow
Charge 11 -Theft of various items from bungalow
Related summary charge 19 – unlawful assault (M Nehm)
22At 10.15 pm on Wednesday 20 November 2019, you and three unidentified accomplices attended at 6 Warrington Close, Narre Warren and undertook an aggravated burglary on a bungalow in which Matthew and Alan Nehm resided.
23In the lead-up to this event, Matthew Nehm was in the bungalow alone and answered the door at around 8 pm that same evening to see a male of aboriginal appearance who called himself "Travis" with a second male also of aboriginal appearance. “Travis” is admitted to be you and you asked him for "weed" before you both left peaceably.
24You and the second male came back a couple of times before 10 pm asking for cigarettes and “weed” and each time left peaceably.
25Alan Nehm then returned to the bungalow.
26At about 10.15 pm, you and the other male returned to the bungalow, this time in the company of three other unidentified males.
27Some of the males were wearing masks on their faces, and you now had no top on and were holding a tyre-iron or tyre-lever wrapped in a tea towel, pointing it at Matthew Nehm as if it was a gun, trying to intimidate him.
28These males pushed into the bungalow - forming the basis for the charge of aggravated burglary - and jumped on Matthew and his brother Alan. Matthew Nehm was pushed onto the couch and was then stomped on.
29In a somewhat gratuitous act, you struck Mathew Nehm forcibly to the head with the tyre-iron forming the basis for causing injury intentionally to Matthew Nehm.
30In terms of that injury, a medical assessment of Matthew Nehm at Monash Medical Centre described him as having an "open wound to the scalp and swelling to the face". A CT scan was conducted and revealed a 1.4 cm fracture fragment of the outer table of the frontal bone in the right parasagittal vertex with 5 mm cranial displacement. Small comminuted fracture fragments/foreign body were noted in the subcutaneous skin and adjacent soft tissues. The remainder of the cranial vault was said to be intact. The Monash Health discharge summary notes "#Frontal bone fracture – Patient underwent washout and debridement – Wound washed out and debridement with removal of bone fragment – No complications."
31In terms of his observation, Alan Nehm saw three people enter the bungalow and he fought with them. He says that he was outnumbered and observed the males to wear dark hoodies with shirts covering their faces. One of your unidentified accomplices held him down and hit him on the head with an unknown item. No injury resulted.
32Summary Charge 19 (Unlawful assault of Alan Nehm) encompasses these facts and is put on the basis that, although you did not directly assault Alan Nehm, all intruders present were acting pursuant to an agreement, arrangement or understanding that the occupants would be attacked.
33Alan Nehm eventually managed to dial 000 and the offenders abruptly withdrew after partially ransacking the bungalow and stealing relatively small value items referred to in the Crown Opening.
34For some reason, after four or five minutes, the five males temporarily returned into the back yard, by which time Matthew and his brother Alan were in the main house with their grandmother.
35A male described as being of Maori appearance kept tapping at the bungalow window with something they thought was metal for two or three minutes before the offenders finally left.
36At about 11.30 pm you arrived at Jessica Hosking's place topless and asking for a glass of water. You told her that you had just robbed and bashed some drug dealers and were on the run from police. You left in a maroon-coloured Nissan Pulsar.
Charge 12 – Theft of Petrol – 7.50 am Thursday 21 November 2019 – BP Dandenong
37At 7.50 am on Thursday 21 November 2019, you drove into the BP Service Station on the corner of Princes Highway, Dandenong in the stolen Maroon-coloured Nissan Pulsar and stole $29.25 worth of petrol by again driving away without paying. You were driving whilst unlicensed on this date, the subject of Summary Charge 27.
Arrest
38In terms of your arrest, at about 7.50 am on Tuesday, 26 November 2019, a Crimes Act section 465 search warrant was executed by police at an address in East Bairnsdale.
39You were arrested in a bedroom hiding under blankets.
40Items relevant to the police investigation were also located.
41Whilst an interview with you and police commenced, it did not continue when it became clear you were declining to be further interviewed. You made no admissions.
42It is agreed between the prosecution and defence that the indictment offences occurred between 9 and 21 November 2019 and at a time when you were on a grant of bail imposed on 22 October 2019, which forms the basis for Summary Charge 21, a rolled-up charge of committing an indictable offence whilst on bail.
43It is also agreed that you were on bail as detailed above and that you failed to appear at the Dandenong Magistrates’ Court on 19 November 2019 forming the basis for Summary Charge 14, failing to answer bail.
Offence gravity
44I now turn to the assessment of the gravity of your offending. Whilst the petrol drive-offs which constitute Charges 2, 4, 7 and 12 are serious and impact on the livelihoods of the petrol station owners, they are obviously less serious than the armed robbery charges and the aggravated burglary at the Nehm bungalow. Each of these offences were coupled with Summary Charges 24, 25 and 27, which must be reflected in penalty.
45The cars you have stolen were motivated by a combination of factors, including your drug use at the time, an obvious means to get around, somewhere to sleep on occasion and facilitated your other offending - in the sense that you chose to change cars after the two armed robberies and again after the theft of petrol the subject of Charge 7. One can only imagine the moment when each of your three victims of car theft went to their respective vehicles to find them missing. They were inconvenienced in the very least and without a car and the ability to move as they wished and conduct their day-to-day lives with the assistance of their own vehicle.
46In terms of the armed robbery charges:
a. Charge 3 is the armed robbery which you committed on Dandy Liquor with Liam O’Halloran present over 110 dollars' worth of alcohol. Whilst I accept it was not the most sophisticated offence of this type, as you used the box cutter in order to ensure your escape from the bottle shop with the stolen alcohol and without being challenged, there were two of you, you had taken some care to shield your appearance from the CCTV cameras and Mr Tse was vulnerable and a soft target as he was working on his own. Whilst no victim impact statement has been provided, Mr Tse was in his workplace at the time of your offence, an environment in which he was entitled to feel both safe and secure.
b. Charge 5 is the armed robberly of Adam Augustin in Webb Street, Narre Warren the following day. Again, this offence was committed in company, with Jordan Mungatopi. Mr Augustin was a child at the time and was vulnerable as he was approached by two men whilst he was alone and was clearly caught by surprise. On this occasion you held a knife directly to his throat, elevating the seriousness of this Armed Robbery above that in Charge 3.
47I do accept that the two armed robberies would appear both spontaneous and opportunistic.
48Your next offending does not fit that description.
49Charges 9,10, 11 on the indictment and the related summary offence of unlawful assault encompass the offending at the Nehm bungalow, all of which occurred in relatively short compass time-wise. This must also be reflected in penalty.
50On any view of it, the aggravated burglary is particularly serious.
51In your case it is particularised as entry as a trespasser with an intent to steal and that at the time you had with you a weapon, namely the tyre iron or tyre lever.
52I am assisted by the decisions of the Victorian Court of Appeal, including that of DPP v Bowden [2016] VSCA 283, DPP v Hogarth [2012] VSCA 302, and DPP v Meyers (2014) 44 VR 486.
53In Hogarth, the Court held that sentences generally imposed for “confrontational aggravated burglary” were too low and that sentencing practices needed to change to reflect the objective gravity of this kind of offending.
54This was further clarified by the decision in DPP v Meyers (2014) 44 VR 486 which included a non-exhaustive range of factors to be considered in assessing the objective gravity of an aggravated burglary, which is of course complete on entry. These factors included the offender’s intent at the point of entry (that is, whether to steal or commit assault or cause damage); the mode of entry (such as by forcing a door or breaking a window); whether the offender was carrying a weapon; whether the offender was alone or in company; the time of day at which the burglary took place; what the offender knew or believed about who would be inside and/or about where the person(s) would be; and whether the offender was someone of whom the victim was particularly frightened.
55Your entry to the Nehm bungalow was in the late evening, there were five of you, disguised, and you pushed your way in. In advance of your entry, you had attended the premises on a number of occasions, which would have made you aware of the likely occupants, the nature of the premises and given you as a belief as to what you were likely to obtain. Confrontation in these circumstances was inevitable and you had planned for that given the number of offenders, the use of some disguise and the presence of the tyre iron or tyre lever. Given your target was alleged drug dealers, your offending was committed in circumstances where you would have expected that there would have been no complaint made.
56A degree of planning must have been involved to gather together the group, make some effort to disguise yourselves and to collect the tyre iron. The circumstances of your entry would have been highly intimidatory and frightening, as no doubt it was intended to be.
57Upon your entry, each of the Nehms were the victim of actual physical attack, the subject of separate charges. In each case, it is more by good fortune than good management that the injury caused was not more serious, particularly in the case of Matthew Nehm.
58Whilst no victim impact statements have been filed, this offending has occurred in their private residence, again, an environment in which they were entitled to feel both safe and secure.
59Over some objection, I do accept the submission made on your behalf that the penalty imposed for the charge of unlawful assault - given the low maximum penalty, that it was put on a complicity basis, and the need to apply totality - should be a sentence that is concurrent with the sentence imposed for the aggravated burglary. The theft charge was of relatively low-value items, was part of your intention on entry and again the principle of totality applies, as it does to all matters. Any sentence of that offence should also consider concurrency with the aggravated burglary.
60However, there is a basis for some cumulation for the charge of causing injury intentionally to Matthew Nehm - for which you were directly responsible - on the charge of aggravated burglary given the deliberate and unnecessary nature of the attack upon him with a weapon
61As described earlier, this offending overall is serious, and denunciation, deterrence and the need to protect the community from you need to loom large in the sentencing mix.
Prior criminal history
62Your admitted criminal history commences in the Dandenong Children’s Court in 2012. It is a relevant prior history.
63On 22 June 2012, your appeared at the Dandenong Children’s Court in relation to charges of robbery, attempted robbery, shop theft, failing to answer bail, damaging property, theft of motor vehicle, aggravated burglary, burglary and theft and you were placed on a good behaviour bond for a period of six months.
64You next appeared at the Dandenong Children’s Court on 17 May 2013 in relation to charges of recklessly cause injury, shop theft, being drunk in a public place, criminal damage, theft and burglary. At that time, you were placed on probation for a period of six months.
65Your next appearance on 4 March 2016 at the Dandenong Magistrates' Court in relation to a range of offending which included sexual penetration of a child under 16 years, dishonesty offending, affray, armed robbery, make threat to kill, failing to stop a vehicle on police direction, and bail related offences. At that time, you were convicted and ordered to be detained in a Youth Justice Centre for various periods of time which, in effect, amounted to 20 months; 116 days were reckoned as having already being served.
66On 15 June 2016, you appeared at Melbourne Magistrates' Court in relation to a single charge of theft and received seven days in a Youth Training Centre.
67On 12 September 2016, you appeared at the Kyneton Magistrates' Court in relation to charges of criminal damage and were sentenced to 28 days in a Youth Training Centre.
68On 26 April 2017, you received a further month in Youth Detention from the Dandenong Magistrates' Court in relation to charges of theft and 10 charges of theft of motor car.
69On 31 July 2017, you were sentenced by the Kyneton Magistrates' Court to one month in a Youth Training Centre for a charge of assault in company.
70You criminal history also reflects an appearance in the Wollongong Local Court on 6 November 2018 for driving offences which resulted in six months' imprisonment.
71Whilst not to be punished for this criminal history a second time, it is most concerning that at now 24 years of age your criminal history spans some nine years. That history reflects a range of dishonesty and violent offending and a failure to respond to either supervisory orders or periods of detention and adult gaol. You have directly relevant prior history for driving and bail offences, theft, aggravated burglary and armed robbery.
72For a man of still relative youth, in recent times you have spent a significant amount of time in youth detention or adult gaol. Current sentencing for a number of reasons must have regard to your risk of institutionalisation and certainly must not be crushing.
73The chronology helpfully provided by your Counsel indicates that you were released from a Youth Justice Centre sentence in December 2018 but remanded for allegations of further offending on 5 August 2019. You were granted bail on 27 August 2019 and the offending the subject of this indictment occurred in November of that year. You were arrested as I have outlined on 26 November 2019 and have remained in custody since that time. On 17 April 2020, the Dandenong Magistrates' Court sentenced you to 150 days' imprisonment of which 143 days was reckoned as having already been served. This intervening sentence is relevant to the principle of totality.
74Based on this history alone, and the offending before this court committed over a 12-day period, your prospects for rehabilitation would appear at this time to be guarded.
75There is, however, some context to this history in your personal circumstances, to which I will now turn.
Personal circumstances
76You were born on 21 December 1995 in Campbelltown, New South Wales and at the time of this offending you were 22 years of age.
77Your upbringing was characterised by instability, poor role models and a sense of continuing chaos.
78Your father is unknown to you. You apparently met him once when you were an infant.
79Your mother never repartnered permanently. You have five half-siblings aged between 18 and 43 years. It is you and your sister, Courtney, aged 27 years, who were brought up by your mother. Your four older siblings were raised by their respective fathers and all became wards of the State.
80Your recollection is that you “grew up all over the place”. Your childhood was characterised by a high degree of domestic violence, constant moves and constant changes in your housing arrangements. Police would frequently attend. You recall staying for a few months in Queensland, Perth, Sydney, Kalgoorlie and various Melbourne suburbs. You would stay with your mother, sisters, cousins or aunties. You recall fighting and drug and alcohol abuse in the homes in which your resided.
81Most unfortunately, your mother passed when you were only 13 years of age. Prior to that, she had struggled as a victim of family violence to her various partners, which you were unfortunate to witness. Your mother had her own demons in terms of alcohol and drug use.
82You recall often being part of an over-full household and would frequently abscond and experience periods of homelessness. You were the subject of a guardianship to the Secretary order and placed in residential care in 2014 when aged 16 years.
83In this context you were unable to form any friendships, have stability or lasting and guiding positive relationships. Naturally your education suffered and to this day you are largely illiterate. You truanted and did not continue your education past Grade 4.
84This upbringing almost inevitably led to your resort to drug and alcohol use.
85You were hospitalised for alcohol poisoning at the age of 10. By the age of 13 years you were a regular user of alcohol and cannabis. From that age, you report drinking 4 litres of alcohol a day until you were 17 years old and using 2 grams of cannabis a day up until your remand in November. By the time you were 17 years of age, you were also using the drug ice.
86At the time of the offending before me, you were using alcohol, cannabis and ice.
87In this context, it is perhaps unsurprising that your criminal history commenced when you were only 15 years of age.
88You have never worked and claim a disability support pension.
89Reinforced by the expert evidence to which I will shortly refer, I accept that this background gives application to the Bugmy principles (which were further considered in DPP v Drake [2019] VSCA 293), that is, the effects of social disadvantage and trauma during formative years do not diminish with time, notwithstanding any criminal history.
90In part, they explain that history. The effects of profound childhood disadvantage endure and must be given their full weight in every sentencing exercise. Both parties submit that these principles have application to your case.
91I accept that your moral culpability should be reduced as a result of this social deprivation and disadvantage in your formative years. Your moral culpability for the offending cannot be equated with that of a person who had committed the same offending, but who had had the benefit of a stable and normal upbringing during their childhood and adolescence.
Expert reports and their relevance to sentencing
92Tendered on your behalf was a confidential psychological report authored by Anna Napoli, psychologist, dated 3 June 2006. You were aged nine years and five months at that time. Ms Napoli’s report was commissioned to determine your eligibility for a program for Children with Disabilities. At that time you were living with your mother in Dandenong, two older siblings and a nephew. Your mother self-reported to Ms Napoli that she was illiterate, a recovering alcoholic and that your father was a heroin addict.
93Ms Napoli’s report confirms at that time the transience of your family as you had already resided in Preston, Glenfield, New South Wales and Gingin in Queensland. Prior to moving to Victoria, you and your family had been traumatised by frequent police raids and your mother being placed into ‘lock up’.
94Your teacher reported to Ms Napoli that you were far behind academically and that there were severe behavioural issues, including both school refusal and truanting.
95Ms Napoli conducted various assessments of you and identified that you had a Mild Intellectual Disability. You were assessed as eligible to apply for the programs for students with disabilities. There is no evidence that you did so. And in fact it is highly likely on the chronology before me that you left your education around this time.
96Also tendered on your behalf was a neuropsychological report authored by Dr Loretta Evans and dated 3 September 2021.
97Some of Dr Evans’ intended assessment tasks could not be undertaken because of your illiteracy. She does consider, however, that her test results are valid.
98She does identify difficulties with your cognitive function, but you have both strengths and weaknesses. Dr Evans found that in the context of your limited literacy, your verbal intelligence borders on mildly intellectually disabled range, yet your non-verbal intellect is within a very low to low average parameter, with strength for activities that require visuo-spatial and constructional thinking skills. You have the capacity to make rational choices.
99With increased complexity you are easily overwhelmed and prone to fragmented thinking, a failure to appreciate details and to self-monitor. You become impulsive in that context.
100She does not believe you suffer a formal intellectual disability pursuant to the Disability Act 1986.
101In Dr Evans’ opinion, you have an underlying developmental disorder which she diagnoses as Specific Learning Disorder. In addition to an underlying neurodevelopmental disorder, Dr Evans finds that a coexisting contributor to your presentation is your exposure to abuse and chronic stress during childhood, which she opines is highly detrimental to, firstly, your capacity to learn as well as your brain maturation.
102She also expresses concern that that you are vulnerable to the development of an underlying maladaptive personality structure given your exposure to violence, paternal abandonment, early drug and alcohol use, early offending behaviour, behavioural difficulties at school and a forensic history which indicates difficulty in controlling your anger.
103In essence, it is Dr Evans’ opinion that you present with a complicated neuropsychological profile, exacerbated by long-standing emotional dysregulation, highly disrupted educational opportunities and a cortical vulnerability that has potentially been compromised by the onset of illicit drug use during critical phases of your brain maturation.
104In her opinion, your cognitive limitation and likely psychiatric pathology may have contributed to your offending to a mild degree. However, in her opinion, it is your drug and alcohol use at the relevant time that she sees as the key contributor impacting on your decision-making to offend.
105You are assessed as presenting with a high risk of reoffending without considerable interventions. Given this aspect of her assessment, your history and personal circumstances and the offending spree over a 12-day period, protection of the community is highly relevant to the sentencing exercise.
106Dr Evans opines that you can cope with the gaol setting but may present as hypervigilant and reactive.
107You did express remorse as to your own predicament but you also acknowledged to Dr Evans your remorse and shame for the wrongfulness of your behaviour.
108Neither expert report is the subject of challenge and I do accept them in their entirety.
109Based on those reports, particularly that of Dr Evans, your Counsel relies on the decision and principles contained in R vVerdins & Ors (2007) 16 VR 269, as well as the High Court decision of Muldrock v The Queen [2011] HCA 39. Verdins deals with offenders with impaired mental functioning and Muldrock with offenders who present with intellectual disability. Naturally there is considerable crossover in the application of the sentencing principles to be derived from those two decisions.
110In terms of Verdins, your Counsel submits that limb 1 applies - that is, your mental impairment could reduce your moral culpability for the offences, which could affect the weight given to both just punishment and denunciation as a sentencing purpose. As stated, Dr Evans opines that your cognitive limitation and likely psychiatric pathology may have contributed to your offending to a mild degree. The Crown accept the application of limb 1 to a minor extent and, based on the evidence before me, I accept that submission.
111The decision in Muldrock goes to the causal relationship between an offender's intellectual disability and the offending behaviour.
112In that decision, the High Court observed, and I quote:
"A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community."
113Given the findings of Dr Evans' report as to your relative strengths and weaknesses, the circumstances of your offending, including your excessive drug use, and that you would not qualify under the Disability Act, I am not satisfied that Muldrock has a significant role to play. However, this does not take away from the fact that in Dr Evans' opinion you do have a complicated neuropsychological profile in the way she described. This has relevance to your personal circumstances and I allow for some moderation of general deterrence from those circumstances.
Plea of guilty
114You have taken responsibility for your offending through your pleas of guilty.
115The Sentencing Act obliges me to take into account the stage at which you entered your pleas. You indicated a willingness to plead guilty to the charges on the indictment following participation in the case conferencing process as part of the County Court’s response to the COVID-19 pandemic.
116Case conferences are designed to discuss pathways to resolution where possible or to narrow the issues prior to listing any trial. Your decision to resolve and plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the Court’s operations have been significantly disrupted and many trial dates remain as yet unfixed.
117In the recent decision of Worboyes v The Queen [2021] VSCA 169 at [39], the Court of Appeal said, and again I quote:
"A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time…"
118I accept that this has relevance to your case.
119You were committed for trial on more serious charges. You had indicated a willingness to try and resolve the matter. The resolution which ultimately unfolded, therefore, in effect, represented pragmatism from both sides, but also in that sense an opportunity for you to plead guilty to the charges with which you were prepared to admit your responsibility. In that context it is a relatively early stage, although not the earliest stage.
120Your plea also has utilitarian value in saving the court the time and expense of contested proceedings, and the witnesses the need to attend court and give evidence in what may well have been a long and complicated trial and one which included a range of vulnerable witnesses.
121On balance, I accept that you are remorseful for your conduct.
122All of these factors will be taken into account in your favour.
Rehabilitation
123In terms of your rehabilitation, I have already made comment that your prospects appear to be guarded. You have previously commenced culturally appropriate rehabilitation programs but are yet to meet with success.
124You are currently in a relationship with Nina Wireepa and in May of last year, whilst on remand, your first child, T-Jay, was born. You are genuinely disappointed in missing the birth of your son and see him as a reason to make change in your life. You say that the birth of T-Jay is the best thing that happened to you.
125You are motivated by wanting your relationship with Nina to continue and to be a stepfather to her two children aged three and four years as well as to your son.
126You hope to do as many courses as possible in custody in order to best equip yourself to find employment upon your release and provide for your family. You have completed a drug and alcohol course whilst in custody, and are waiting to do an anger management course, which you understand you cannot do until such time that you are sentenced.
127Hopefully your current insight and the desire to develop a relationship with your son will give you the impetus for positive change.
128Your current goal is to relocate to Perth and obtain work in the mining industry. In the alternative, you may live with your sister Courtney in Lakes Entrance.
129Otherwise you have now spent some 570 days in adult custody, the longest period in custody in any form which you have experienced. You told Dr Evans that you could not see any positives about gaol which you associated with your prison cohort. You told Dr Evans that, "I never want to come back to this place, never".
130This is of course coupled with the fact that your period of remand has been during the Corrections response to the COVID-19 pandemic which in general terms has meant less access to freedom of movement, limits on personal visits and less access to programs and therapeutic interventions. In your case, you are yet to physically see your own child.
131You have been isolated recently as your cell mate was experiencing cold-like symptoms and therefore considered a potential COVID-19 risk. You have not contracted that condition but it has come in close contact and adds to the anxiety associated with your remand and of course any sentence.
132Overall, the need for a Corrections response to the pandemic in the prison system is not to be criticised but, in my view, it does make the remand and sentenced prisoner experience more difficult than it would usually be and it is an additional factor I take into account.
133In my view, there has already been a degree of sanction and deterrence from your remand period to date.
134Given you are still relatively young and have considerable motivation, it could not be said that you are beyond rehabilitation.
Delay
135Added to this has been a degree of delay.
136You were charged on or about 26 November 2019. A committal hearing on 15 June 2020 was administratively adjourned due to the impact of the COVID-19 pandemic. Once committed, an initial directions hearing in the County Court on 18 March 2021 also required administrative adjournment due to issues with the committal recording.
137As previously outlined, the case management process facilitated resolution, but that in itself took time. When your plea hearing was eventually listed on 5 October 2021, it was unable to proceed as there was an inability for the prison to connect you to the court with both audio and visual facilities as you were isolated due to your cellmate's cold-like symptoms.
138I will take the delay into account in a general sense given the burden hanging over your head for a period of close to two years. In your particular case, as already outlined, this has occurred during the Corrections response to the COVID-19 pandemic which has meant more onerous circumstances of your remand.
Sentencing
139In terms of sentencing, I do made the ancillary orders as sought for disposal and forfeiture of scheduled items.
140As described by the learned prosecutor, in your sentencing exercise the totality principle is overarching and paramount given the mix of your offending.
141The totality principle requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains ones that is ‘just and appropriate’ for the whole of the offending. Care must be taken particularly where offending is overlapping, as it is with the unlicensed driving charges and the petrol thefts and the thefts of motor car.
142In the decision of DPP v Grabovac (1998) 1 VR 664, Ormiston JA, with whom Winneke P and Hedigan AJA agreed, explained the method in which to structure multiple sentences in order to give effect to the sentencing principles of both totality and proportionality. Ormiston JA explained that an appropriate sentence might be arrived at by either moderating individual sentences so as to reach an appropriate total or by imposing sentences without moderation and reaching an appropriate total through orders for cumulation and concurrency. He explained that the second approach was the one to be preferred, and the approach which ought be adopted, as the first approach can give rise to significant potential problems, most obviously the potential for the imposition of artificially high or low sentences on individual counts. I intend to follow that preference, as in the preference expressed by Ormiston JA.
143Adjustments to sentences to accommodate totality and proportionality must not be made if they result in inadequate or excessive sentences. The starting point should be sentences which are proportionate to and appropriate for each offence for the reasons explained in Grabovac.
144The prosecution has provided me with the Sentencing Snapshot for the offences of armed robbery, causing injury intentionally and theft. Whilst limited in their utility as statistics only, I have had recourse to these documents, as well as a summary provided by the Crown referencing recent decisions of the Court of Appeal and the County Court in relation to the offences of armed robbery and aggravated burglary. I have also been referred to the decision of Joshua Brown v The Queen [2019] VSCA 204, which dealt with the charge of aggravated burglary and canvassed a number of recent sentences for that offence. This was designed to assist the court with current sentencing practices, just one of the factors I am required to take into account.
145The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.
146I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated safely into society.
147I have taken into account the relevant sentencing guidelines referred to in section 5 of the Sentencing Act 1991. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of totality and proportionality.
148I now turn to the sentences I intend to impose.
149In terms of the summary offences relating to bail, that is Charges 14 and 21, you are convicted on each of these and sentenced to one month's imprisonment, to be concurrent with other sentences imposed this day.
150For each of the charges of unlicensed driving, I note that you do have one prior matter and that the charges themselves occurred in close proximity to each other and at the same time as the thefts of petrol and, effectively, the thefts of motor car. For each of those charges, you are convicted and sentenced to two months' imprisonment, which will also be concurrent with other sentences imposed this day.
151For each of the four petrol theft charges, you are convicted and sentenced to six months' imprisonment. Again, with totality in mind, these sentences are concurrent with each other and the other sentences imposed this day.
152For each of the theft of motor car charges you are convicted and sentenced to 12 months' imprisonment. One month of each of these is cumulative on each other and other sentences imposed this day.
153I turn now to Charge 3, armed robbery. For that offence, you are convicted and sentenced to 18 months' imprisonment. Four months is cumulative on the base sentence and other sentences imposed this day.
154Charge 5, also armed robbery; for that offence, you are convicted and sentenced to two years and four months' imprisonment, six months of which is cumulative on the base sentence and other sentences imposed this day.
155For Charge 9, aggravated burglary, you are convicted and sentenced to four years and four months' imprisonment. This is the base sentence.
156From the same incident, you are convicted and sentence to seven days for the unlawful assault and 12 months for the theft charge each of which are concurrent with other sentences imposed this day for reasons previously outlined.
157On the charge of intentionally causing injury to Mathew Nehm, you are convicted and sentenced to 12 months' imprisonment, of which three months is cumulative on the base sentence and the other sentences imposed this day.
158If my maths does serve me correctly, this comprises a total effective sentence of five years and 10 months' imprisonment.
159In my view, there is merit in supported transition upon your return to the community. It represents a means of community protection in the supports offered and in the quick response to non-compliance if required. I therefore fix a period of three years and four months before you are eligible for parole.
160I reckon 570 days as already having been served pursuant to section 18 of the Sentencing Act.
161Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of seven years and six months with a minimum of five years and six months before being eligible for parole.
162Whilst not raised in the conduct of your plea, I am mindful section 89(4) of the Sentencing Act does require a license disqualification for the theft of motor vehicle charges and on each of those, any licenses held are cancelled and disqualified for a period of 12 months.
163Now, I am mindful I did not raise that with either of you but otherwise is there anything arising, Mr Regan?
164MR REGAN: No, Your Honour, it was on my mind as well this morning so - - -
165HER HONOUR: Thank you. Mr Bloemen?
166MR BLOEMEN: No issue to raise with that. I am just doing the arithmetic, Your Honour.
167
HER HONOUR: Yes. Well, I am happy to give each of you a moment to
double-check that. Maths has never been my strong point and then I will remove myself and give you the chance to speak to Mr Smith.
168MR BLOEMEN: Thank you, Your Honour.
169MR REGAN: Just checking, Your Honour; four months cumulative Dandy Liquor, six months cumulative Augustin armed robbery?
170HER HONOUR: That is right so far.
171MR REGAN: Three months cumulative, Nehm injury?
172HER HONOUR: Yes.
173MR REGAN: It is just a matter of arithmetic.
174MR BLOEMEN: And one month each cumulative on each of the theft of the motor vehicle.
175HER HONOUR: That is right.
176MR REGAN: All right.
177MR BLOEMEN: I think I am getting five years nine but I am going to double-check that.
178HER HONOUR: Well, I might double-check it too then, Mr Bloemen. Thank you.
179I think you are right, Mr Bloemen.
180MR BLOEMEN: Well, I have got 17 months' worth of cumulation when I add up the six months on the Augustin matter, the four months on the Dandy Liquor, four months on the theft of motor vehicle and the three months on the intentionally cause injury which on top of four years four months, as far as I can tell, take us to five years nine months.
181HER HONOUR: I do think you are right. I will just get Mr Regan's view.
182MR REGAN: I am not as rapid as either of you.
183HER HONOUR: All right. There is only three car thefts, Mr Bloemen.
184MR BLOEMEN: So I am giving - so there should be three months cumulative on that then - - -
185MR REGAN: Yes.
186MR BLOEMEN: - - - which takes me down a month from what I have just said then. I do apologise.
187HER HONOUR: No, look, I should apologise. I should have been more careful about the maths before I got to this stage.
188MR REGAN: So four years four months base.
189HER HONOUR: Yes.
190MR REGAN: Six months cumulative Augustin.
191HER HONOUR: Yes.
192MR REGAN: Six months cumulative Dandy Liquor and one month on each of the three theft of motor car.
193HER HONOUR: All right. So let's just do that another way. Three months for the theft of motor cars in effect, four months for Charge 3, which is Dandy Liquor, so that takes us to seven, six months for Charge 5 takes us to 13.
194MR REGAN: Yes.
195HER HONOUR: And three months for Matthew Nehm; does that take us to 16?
196MR BLOEMEN: It does.
197HER HONOUR: Which on top of four years and four months - - -
198MR BLOEMEN: Is one year and four months.
199HER HONOUR: Which takes us down to five years and eight, does it?
200MR BLOEMEN: It does. It does, Your Honour.
201MR REGAN: I have got 68 months, would that be agreed, if it is done on a month's basis?
202HER HONOUR: Yes.
203MR REGAN: If that be the case then, Your Honour - if it is the 68, I have just been doing paper scratching arithmetic. If it is a total effective of 68 months of course that translates to five years eight months.
204MR BLOEMEN: I agree with that, Your Honour.
205HER HONOUR: In terms of my intention to sentence, there have obviously been that error in my maths. It does affect the total effective sentence, I will amend to five years and eight months.
206MR BLOEMEN: Yes.
207HER HONOUR: Not outside the considerations that I had and accordingly because of the error in my maths on the head sentence, I will slightly adjust the non-parole period to three years and three months.
208MR REGAN: Yes.
209HER HONOUR: And I apologise for the error.
210MR REGAN: Understood, Your Honour. Yes. Adjustment to the NPP. Yes. All right. Thank you.
211MR BLOEMEN: Thank you.
212HER HONOUR: So that is all within the consideration of the sentencing principles which I have referred. It was just an error in the maths but the amendment is not outside my intentions and accordingly I announce the total effective sentence of five years and eight months with a minimum of three years and three months before being eligible for parole. I obviously still reckon the 578 days.
213MR REGAN: May it please the court.
214MR BLOEMEN: May it please the court.
215HER HONOUR: So we should have all finally arrived at the correct mathematical equation. I will remove myself from this hearing and let you speak privately, Mr Bloemen, with Mr Smith and at this stage I will close the court till 2.15. Thank you, Ms Ransom.
216MR REGAN: Would you wish me to go into the lobby, Your Honour, or sign off completely?
217HER HONOUR: Well, I do not think you need to hang around, Mr Regan, unless you particularly want to.
218MR REGAN: No, Your Honour. Thank you.
219HER HONOUR: All right. Thank you.
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