Director of Public Prosecutions v Smith
[2019] VCC 1759
•25 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-18-01064
CR-18-01211
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES SMITH |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9 & 20 August 2019 | |
DATE OF SENTENCE: | 25 October 2019 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1759 | |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Armed robbery - attempt to obtain property by deception - theft -
aggravated carjacking
Legislation Cited: Disability Act 2006, Sentencing Act 1991
Cases Cited:
Sentence: 5 years and 6 months’ imprisonment, 3 years non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the Director at hearing For the Director at sentence | Mr M. Regan Ms A. Birkin | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Ms J. Hughes Mr N. Leslie | Papa Hughes Lawyers |
HIS HONOUR:
1 James Smith, you have pleaded guilty to two charges of armed robbery, one charge of attempting to obtain property by deception, two charges of theft and one charge of aggravated carjacking.
-Armed robbery carries a maximum penalty of 25 years’ imprisonment.
-Attempting to obtain property by deception carries a maximum penalty of 5 years’ imprisonment.
-Theft carries a maximum penalty of 10 years’ imprisonment.
-Aggravated carjacking carries a maximum penalty of 25 years’ imprisonment with a statutory 3-year minimum non-parole period, unless the Court finds that a special reason exists for not imposing that minimum non-parole period.
2 You are currently 33 years of age, having been born in May 1986. At the time of the offending around two years ago you were aged 31.
3 You have an extensive criminal history about which I will go into more detail shortly.
4 The circumstances of the offending as to the 5 October 2017 charges, that is, Charges 1 and 2 of armed robbery and Charge 3 of attempt to obtain property by deception, are as follows.
5 At approximately 12 am on 5 October 2017 a Mr Wilsen Polus was driving north on Blair Street, Broadmeadows. A Mr Matti was in the front passenger seat.
6 Mr Polus noticed a four-wheel-drive vehicle behind his car, flashing its lights and beeping its horn. Mr Polus pulled over to the side of the road, as he assumed it was somebody he knew who wanted to pull him over.
7 As Mr Polus pulled over, the car behind him pulled over as well.
8 You, Mr Smith, were in the passenger seat of the four-wheel-drive. You got out of the car and walked towards Mr Polus. The driver of the four-wheel-drive stayed in it.
9 You knocked on the window of Mr Polus' car and asked him to open it. Mr Polus did so. You said, “Oh relax guys, I'm just trying to look for an address”. Mr Matti noticed that you sounded, as he expressed it, 'tipsy' at the time. Mr Matti replied, “Okay, where do you wanna go?”. You then said, “You guys were dating my wife”, to which Mr Matti replied, “No mate, we were having coffee at Olsen Place”. You then remarked, “No, you guys were, 'cause she said that you guys were in a white Hyundai or a Honda.” Mr Matti replied, “This is a Toyota, not a Hyundai or a Honda.” You asked Mr Polus whether his vehicle was a Nissan. Mr Polus again told you that the vehicle was a Toyota.
10 As to Charge 1 of armed robbery, you then reached in through the window and turned the ignition off. At the same time you pulled out a knife that was about four to five inches long.
11 You held the knife about one centimetre away from Mr Polus' neck and said, “Give me your wallets and your phones.” Mr Matti told Mr Polus to calm down and handed over his wallet and mobile phone to you.
12 The phone cover contained Mr Matti's work access card, various business cards and a Myki card. Mr Matti's wallet included several cards, including his forklift licence, his Victorian driver's licence, his ANZ credit card, a Westpac debit card, a Bank of Melbourne debit card, approximately $150 in cash, a work key and other personal effects.
13 As to Charge 2 of armed robbery, you then said, “Give me another phone.” As Mr Polus reached for his mobile phone he dropped it in the foot-well of the car. You became agitated and started pushing the knife against Mr Polus's neck. You said, “You guys are lying to me, where is the other phone?” Mr Matti replied, “It's on the floor under the seat.” You replied, “You guys are bluffing and lying.” Mr Mattie told you to calm down and open the car door so that you could see the phone. You opened the door and Mr Polus handed his phone over to you.
14 After taking the phone you pulled hard on the set of keys in the ignition of the car, causing the house keys to snap off from the main car key.
15 You then walked back to and entered the four-wheel-drive. The four-wheel-drive then drove towards Riggall Street. The victims attempted to follow the four-wheel-drive but were unable to locate it due to heavy traffic.
16 The victims subsequently attended Broadmeadows Police Station at 12.20 am and reported the offending to police.
17
As to Charge 3 of attempt to obtain property by deception, later that same day at approximately 1.28 am you went to the Caltex Service Station at
87 Horne Street, Sunbury in a red Mitsubishi Outlander station wagon which bore the registration plates BM7 7MJ.
18 You walked to the service counter where you attempted to make two purchases for several items with victim Mr Matti's ANZ bank card. The first attempted purchase was for $99 and the second attempted purchase was for $97.70.
19 Both transactions failed. After the second transaction failed you left the service station in the Mitsubishi Outlander. This was captured on CCTV footage.
20 As to the events of 17 February 2018 represented by Charges 4 and 5 of theft and Charge 6 of aggravated carjacking: at approximately 2.11 am on 17 February 2018 you went to the Parkville Motel located in Park Street, Brunswick driving a Toyota white van bearing registration number 1FI 6SV.
21 That Toyota was owned by a man called Kerbriti. Mr Kerbriti was arrested on 5 February 2018 while asleep in that car at a Caltex petrol station. You subsequently stole that car. This conduct gives rise to Charge 5 of theft.
22 As stated, you arrived at the motel in the stolen Toyota van. You got out of the van and entered an unlocked silver Ford Escape wagon which belonged to a Mr Shaun Barnett (who happened to be staying at the motel).
23 You stole the following items from that vehicle, giving rise to Charge 4 of theft:
· Service book
· Dark blue cap
· Gloves
· Navman GPS
· iPhone earphones
· Sunglasses
· Welding helmet
24 Later that morning Mr Barnett went to get something from his vehicle and noticed that the above items had been taken. He reported the theft to police.
25 As to Charge 6 of aggravated carjacking, at approximately 4 pm that same day (17 February 2018) a Mr Mohammad, an apprentice panel beater, was closing up the On Duty Panels store located in Somerville Road, Sunshine West. At the time Mr Mohammad was the only person present on the premises.
26 Once Mr Mohammad had closed the store he got into the driver's side of a car, namely a black 2002 Subaru Impreza sedan bearing registration 1MD 4JY.
27 Shortly after entering the car you arrived driving the same white Toyota van bearing registration number 1FI 6SV. You pulled up at the store and parked directly in front of Mr Mohammad's vehicle. Mr Mohammad observed there to be a driver and a front passenger in the van. The passenger in the Toyota van was Christopher Sinclair, who was 30 years old at the time of the offending.
28
You got out of the vehicle and approached Mr Mohammad, who was still inside the Subaru. Mr Sinclair remained in the van.
29 As you approached Mr Mohammad you asked him, “How you doing? Is this a panel beating shop?”. Mr Mohammad replied, “Yes, it is”. As you continued to talk you were going through a bum-bag. Mr Mohammad got out of his vehicle whilst leaving the keys in the ignition. You said, “I work at the wrecker's shop. I'm just going to give you a card because you may need some parts for cars”. Mr Mohammad replied, “Yes, for sure. Why not?”.
30 Then you pulled out a taser from your bag and pointed it at Mr Mohammad, whilst doing so stating, “This is a robbery. I'm stealing your car.” You repeatedly told Mr Mohammad to back away. Mr Mohammad put his hands in the air and started walking backwards. You then got into the Subaru and drove it towards Somerville Road.
31 Mr Sinclair remained inside the van during the duration of the confrontation. After you drove away in the Subaru, Mr Sinclair got into the driver's side of the van, reversed it quickly and drove in the same direction.
32 Mr Mohammad called 000 and reported the offending. Police attended and ultimately seized CCTV footage of this incident.
33 On 21 February 2018 police located the van parked in a driveway in Doreen. Ms Sinclair, your girlfriend at the time, lived at that address. Ms Sinclair is the sister of Christopher.
34 Police executed a warrant at the address and conducted a search of the residence. The stolen Subaru and the Toyota van were located. The keys to the stolen Subaru were located in the laundry of the residence.
35
Police seized Ms Sinclair's mobile phone, which revealed several messages from a contact named ‘Jimmy’. Those messages indicated that you had run away from that address prior to the execution of the warrant. Police were unable to subsequently locate you.
36 Police also seized CCTV camera footage from Ms Sinclair's address which revealed the following:
· On 16 February 2018 you and Christopher Sinclair arrived in the Toyota van at 5.21 pm at Ms Sinclair's address - you were the driver, Mr Sinclair was the passenger.
· On 17 February 2018 Christopher Sinclair (as a passenger) and you (being the driver) returned to the address 40 minutes after the offending in the stolen Subaru. You both emptied the vehicle of Mr Mohammad's clothing. You reversed the Subaru into the garage of the residence approximately an hour afterwards.
37 Checks conducted by police revealed that Christopher Sinclair was residing at premises in Cookes Road, Doreen. Police attended at his address at approximately 12.08 pm on 21 February 2018, where they subsequently located him and arrested him.
38 On 2 April 2018 enquiries by police revealed that you were residing at the Quest apartments in Annandale Road, Melbourne Airport. At approximately 11.06 am police attended the Quest apartments and arrested you there. You were with Ms Sinclair when you were arrested.
39 You were subsequently conveyed to the Broadmeadows Police Station.
40 On 2 April 2018 you were interviewed by police. The police put to you that you had committed the offences on 5 October 2017. You stated, “I wish to remain mute”. You did tell police that you had arrived at the Quest apartments the day before, and you stated that you bought and sold what you called “legit” cars.
41 I now turn to your personal circumstances.
42 As I noted earlier, you are currently 33 years of age and at the time of the offending you were aged 31.
43 Again as I noted earlier, you have an extensive criminal history, commencing in 2004 at the Sunshine Magistrates' Court when you were fined $50 for possessing liquor whilst under-age (you had just turned 18 at the time).
44 A year later at the Broadmeadows Magistrates' Court you were given nine months' detention in a youth training centre for a multitude of offences including burglary, theft, handling stolen goods, possessing amphetamine, obtaining property by deception, failing to answer bail and a variety of driving offences.
45 This kind of offending set the tone for the next few years of your young life, as you were variously fined, given more time in a youth training centre, imprisoned (partially suspended), imprisoned on breaching the suspended sentence, imprisoned for various periods, the longest sentence being from the County Court in August 2012 for three years and three months for driving in a manner dangerous, causing serious injury and associated offences. You were 26 at that time.
46 Your last sentences in Victoria were in March and July 2014 when you were imprisoned and fined for theft, obtaining property by deception and handling stolen goods.
47 You then moved to New South Wales where your criminal career continued. You received a sentence of two years' imprisonment in the Griffith District Court in 2016 for, amongst other things, aggravated breaking and entering and committing a serious indictable offence in company.
48 Your personal history has been comprehensively described in psychological reports and in written submissions tendered on your plea. I have taken all that material into account.
49 In summary, you grew up in Broadmeadows with your parents and older brother. You parents were drug users and it was often left to you and your older brother to fend for yourselves at home with some money left for takeaway food. You recall your mother being hospitalised due to drug psychosis on a number of occasions.
50 Your parents' relationship was characterised by regular conflict, often violent, and your mother was also violent towards you and your brother. Living at the family home was extremely stressful.
51 You attended primary school in Broadmeadows, leaving during Year 7.
52 You left home when you were 13 or 14 and, after staying with your aunt for a short time, became homeless.
53 Around age 15 or 16 you began a plastering apprenticeship and lived in a private rental in Sunbury for a period of two years.
54 At age 18 you had begun using amphetamines and at 19 began using ice. You used ice for the following decade. You have also used heroin, cannabis and GHB.
55 When you were 22 you met the mother of your daughter and in 2009 your daughter was born.
56 After being released from prison in January 2009 you resided with your partner and daughter and worked at Boral Plaster in Thomastown until late 2010.
57 In 2015 you completed a nine-month parole period in the community, and for some time afterwards remained abstinent from the use of illicit substances until relapsing into using ice and GHB during 2016 and continuing until your arrest on the present charges. You stated that GHB, “puts me into a different person”. You recalled that sometime GHB helped you feel calmer, and at other times you would feel more crazy.
58 In mid-2016 you began a relationship with a woman who also had a history of drug use, and your relapse occurred in the context of that relationship.
59 In June 2016 you and your then partner left Victoria, intending to travel to Queensland for a holiday.
60 On 28 June 2016 you were arrested and charged with the matters which appear on your New South Wales criminal history.
61 You were released from that sentence on 27 June 2017 and soon after returned to Melbourne. You were unable to sustain the abstinence you had achieved whilst in custody, and at the time of these offences you had again relapsed into drug dependency.
62 Despite your history of drug use and difficult childhood you have maintained a number of employment positions, including at Vitale in Essendon, Boral Plaster in Thomastown, with a timber merchant in Preston and many other short-term or casual positions.
63 You have been engaging in various programs, including educational programs, in prison and you are committed to being reunited with your daughter who is now around 10 years old.
64 Comprehensive and detailed material was provided to the court on your plea concerning your neuropsychological and psychological conditions.
65 It is evident on the reports, and accepted by the prosecution, that you present with an intellectual disability as defined in the Disability Act 2006. Your intellectual disability has been present from childhood and was present at the time of the current offending.
66 Your Full-Scale Intelligence Quotient was assessed by Mr Lewis, psychologist, as being in the ‘Extremely Low’ range, with only one per cent of the standardisation sample for your age having a score in a lower magnitude.
67 Ms Mynard, clinical psychologist, also assessed your cognitive function as within an intellectually impaired range of functioning. Ms Mynard reported that you have difficulty paying attention, found it hard to maintain concentration since a child and, since a car accident in 2010, have noticed a deterioration in your ability to regulate your emotional state, impulsivity and risk taking.
68 Formal testing undertaken by Ms Mynard revealed responses consistent with your own feelings. Ms Mynard noticed that in various timed tests you demonstrated difficulty inhibiting your responses under pressure, even if they were incorrect. Ms Mynard opined that your disinhibition means that you have a low ability to check your own responses to others and keep track of your own behaviour to other people.
69 Ms Mynard made a further diagnosis of Major Depressive Disorder, Post Traumatic Stress Order and Stimulant Dependence Disorder represented by substance addiction to GHB and methamphetamine at the time of offending, which likely further inhibited your decision making, impulsivity and impaired reasoning (in addition to your impaired cognitive functioning).
70 In a supplementary report Ms Mynard summarised your cognitive disability in the following terms.
'Mr Smith has an intellectual disability or an acquired brain injury that has resulted in extremely low cognitive functioning ability. These weaknesses in his cognitive functioning were evident in his offending behaviour and are a stable feature of Mr Smith's presentation, specifically lack of consequential thinking, lack of self-monitoring and impulsivity … Whilst the writer believes that he was able to know the difference between right and wrong, his inability to inhibit his impulsive behaviours was evident.'
71 I note that the notion of you perhaps having an acquired brain injury was discounted by the psychologist, Mr Lewis.
72 Specifically to the time of offending, Ms Mynard opined that this low cognitive functioning ability means that you had extremely low abilities to think consequentially, lacked insight into the potential harm of the offence, a lack of verbal reasoning skills and slower processing of what was going on around you.
73 You were also intoxicated with the drug GHB at the time of the carjacking and GHB and ice at the time of the armed robbery. Ms Mynard opined that due to you being substance-affected, in combination with your lower intellectual functioning, it would appear that your ability to reason, think clearly and make good decisions was significantly impaired.
74 Mr Lewis opined that your intellectual impairment would have contributed to the offending behaviour in that, compared with same age peers, you would have been slower and limited in your ability to think through your actions, and would have had difficulty managing information and emotions to form calm, reasoned decisions and appropriate judgments.
75 In evidence on the plea Mr Lewis expanded on this topic and made the following points:
· ... in a disability you see a general reduction of the ... level of cognition across a whole range of areas;
· That would mean a reduced capacity to inhibit impulses, which would lead to a reduction in impulse control and a reduced ability to appreciate some of the ... abstract concepts around consequences of [your] behaviour as well;
· ... intellectual disability ... impacts on someone’s ability to control impulses or think about ... the consequences of their actions … they have sort of less conscious control of their own actions;
· The intellectual impairment would apply to all areas of decision making ... in every aspect of life;
· Someone with an intellectual disability will have ... even if they are aware of it ... difficulty breaking (those) patterns of behaviour.
76 Your offending on this indictment reflects a series of incidents involving some of the most serious crimes against the community and represents a brazen and disgraceful disregard for the property and personal safety of members of the public. The offending was committed within the context of you having already spent a considerable time previously in custody for offending in a wide manner of circumstances.
77 Armed robbery is a particularly frightening experience and the use of a knife as a threatening weapon aggravates that offence.
78 The victim impact statement tendered by one of your victims to the armed robbery provides eloquent testimony of the experiences frequently felt by victims of this type of offence.
79 Carjacking has been only relatively recently introduced as a crime and the maximum penalty of 25 years' imprisonment, together with an expressed intention of Parliament that a minimum non-parole period of three years' imprisonment should ordinarily be imposed reflects how seriously Parliament, representing the community, views that offence.
80 You compounded your offending against the second victim in the armed robbery by attempting to use his bank card, you had ransacked an unlocked car for low value items which you stole and you were driving a van that you had previously stolen at the time of the carjacking.
81 In sentencing you, ordinarily principles of specific and general deterrence, punishment, denunciation and the protection of the public from you would be paramount considerations.
82 Furthermore, I note that on 28 December 2017 and 18 January 2018 you were admitted to bail. So you were on bail when you committed Charges 4, 5 and 6 on this indictment. Consequently, there is a presumption that the sentences imposed on those charges be served cumulatively unless the court directs otherwise.
83 However, due to the mitigating circumstances and principles of totality, in this case I intend to impose only the cumulation which I will note shortly.
84 I further note that for the offence of carjacking, Parliament has provided a caveat to the requirement that there be a minimum three-year non-parole period imposed if the court finds that a special reason exists. In the present circumstances a special reason exists if, on the balance of probabilities, the offender had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender's culpability, or if there are substantial and compelling circumstances that justify finding that a special reason exists.
85 I have read and considered the various relevant authorities provided in submissions on the plea.
86 The prosecution accepts the defence submission that the evidence submitted on your plea establishes, on the balance of probabilities, that at the time of the offending on Charge 6 you had impaired mental functioning and that mental functioning is causally linked to the commission of the offence.
87 I also accept that submission of the defence based upon the combined evidence of Ms Mynard and Mr Lewis, portions of which I have expressed earlier in these remarks.
88 The prosecution does not accept, however, that the evidence of intellectual disability substantially reduces your culpability for this offending, or that there are substantial and compelling reasons that justify a finding that a special circumstance exists.
89 In my view, the evidence of Ms Mynard and Mr Lewis does establish, on the balance of probabilities, that at the time of the commission of the offence you had impaired mental functioning that is causally linked to the commission of the offence that substantially reduces your culpability. My reasons are as follows.
· You have been diagnosed as suffering from an intellectual disability within the meaning of the Disability Act 2006.
· Your intellectual disability has been present from childhood and was present at the time of the current offending.
· Your Full-Scale Intellectual Quotient was assessed as being in ‘Extremely Low’ range with only 1% of the standardisation sample for your age having a score in a lower magnitude.
· Your disability has resulted in extremely low cognitive functioning ability, specifically, lack of consequential thinking, lack of self-monitoring, and impulsivity, lack of insight into the potential harm of the offence, and slower processing of what was going on around you.
· Your disability would have contributed to the offending behaviour in that compared with same age peers, you would have been slower and limited in your ability to think through your actions, and would have had difficulty managing information and emotions to form calm, reasoned decisions and appropriate judgments.
· Your previous life circumstances reflect many years of inability to regulate and manage your behaviour and provide support for the proposition that you find it difficult to constrain your impulsivity and readily appreciate the consequences of your behaviour across a wide area of behaviour.
· Whilst it was submitted by the prosecution that your voluntary intoxication by GHB impacts on your culpability to reduce what otherwise might be accepted as being substantially reduced by your mental functioning, I accept that the inability per se that you have to manage your drug addiction cannot be divorced from your long-standing mental functioning. Mr Lewis made the specific point that intellectual impairment would apply to all areas of decision-making across a whole range of areas, in every aspect of life.
· Furthermore, whilst the actual carrying out of the carjacking involved measured steps and process, articulated in submissions by the prosecutor as being a ‘sober interaction’ on your part revealing a ‘calm, collected predatory act … clinical … with no hysteria or heightened emotion’, I accept the explanation by Mr Lewis that simply because a person may appear to act in a calm way does not necessarily mean that they are thinking about the consequences and the impact that they might be having on someone else.
· In that context, I also accept that there is insufficient evidence to accept that the decision to undertake the carjacking was anything other than a spontaneous decision, impulsively made to steal a car when the opportunity suddenly materialised when seeing a person just entering a car, being the only person present and isolated at a closed workshop.
90 If I am wrong in the determination I have just expressed, I am also satisfied on the balance of probabilities that the evidence establishes substantial and compelling circumstances that are exceptional and justify a finding that a special reason exists for not fixing a non-parole period of not less than three years for the offence of carjacking. I make this finding on the basis of the cumulative effect of the following circumstances:
· Your long-term impaired mental functioning as represented by your intellectual disability within the meaning of the Disability Act 2006 and which has hitherto been undiagnosed. I accept, on the basis of my reasons mentioned earlier in these remarks, that the application of Verdins principles 1, 2, 3 and 4 as reflecting moderation of the sentence should be applied because of your lower moral culpability and moderation of both specific and general deterrence.
· That your impaired mental functioning has been accepted by the prosecution as existing and is causally linked to the offending.
· Your long-term drug addiction, commencing in your teens and progressing into regular and sustained use of serious narcotics.
· Your disadvantaged childhood involving drug-addicted parents, often in violent conflict either with each other or with you and your brother, lack of parenting and fending for yourself.
· Your poor educational attainment at primary school and lack of any secondary school education.
· Your periods of custody already served and the risk of you becoming completely institutionalised.
· The occasions you have shown towards attempting a level of stability in abstinence whilst under strict parole.
· That you have on occasion been able to maintain some regular employment.
· Your remorse, evidenced by your early plea made at committal proceedings, and subsequent feelings of shame and empathy.
· That the offending was not pre-meditated, you were not in disguise and apart from a threat you did not resort to any physical violence and the victim did not suffer any physical violence.
· The property was recovered.
· That your long history of prior offending does not include convictions for violence.
· Your likely Post-Traumatic Stress Disorder.
· Ms Mynard’s diagnosis of Major Depressive Disorder.
· The significant efforts you have made towards your own rehabilitation by undertaking courses in prison.
· The support you have from persons who know you and who have worked with you.
· The ability of the court to properly apply the principle of totality to the overall sentence to be imposed taking into account the other serious matters for which you are to be sentenced in a way that will not impose a crushing sentence and risk institutionalisation.
91 In mitigation, I have considered and taken into account the matters submitted by your counsel and, in particular, taken into account all the matters just expressed as they apply generally to all charges and specifically to Charge 6 and in addition, as to the armed robbery charges:
· that whilst two offences were committed, the circumstances are such that they arise out of the one incident and there should be significant concurrency;
· that you were not disguised and neither victim was physically injured during the incident.
92 I make the observation that overall your prospects of rehabilitation are not encouraging; however, there is evidence that with support and structure in your life you can achieve periods where you have been able to moderate your drug use and maintain regular work. Your desire to rebuild your relationship with your daughter should provide some motivation.
93 The basic purposes for which a court may impose a sentence are punishment, deterrence (being both specific and general), rehabilitation, denunciation and the protection of the community. In sentencing, I must have regard to a range of matters, such as the seriousness of the offence, your culpability for it, your personal circumstances and those of any victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
94 I further note that on 24 May 2018 Christopher Sinclair pleaded guilty in the Magistrates' Court to theft of a motor vehicle and was sentenced to 30 days' imprisonment.
95 Your circumstances are readily distinguishable from those of your co‑offender.
96
Mr Smith, can you now please stand.
97 On Charge 1 of armed robbery you are convicted and sentenced to three years' imprisonment.
98 On Charge 2 of armed robbery you are convicted and sentenced to three years' imprisonment.
99 On Charge 3 of attempt to obtain property by deception you are convicted and sentenced to three months' imprisonment.
100 On Charge 4 of theft you are convicted and sentenced to four months' imprisonment.
101 On Charge 5 of theft of a motor car you are convicted and sentenced to 12 months' imprisonment.
102 On Charge 6 of aggravated carjacking you are convicted and sentenced to four years' imprisonment.
103 Charge 6 is the base sentence.
104 I direct that six months of each of the sentences imposed on Charges 1 and 2 and six months of the sentence imposed on Charge 5 be served cumulatively on the sentence imposed on Charge 6 and upon each other. The sentences are otherwise concurrent.
105 The total effective sentence is five years and six months' imprisonment.
106 I direct that a minimum period of three years be served before eligibility for parole.
107 The sentence starts today.
108 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that a period of 571 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
109 Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the total effective sentence that would have been imposed over all charges is seven years and six months' imprisonment with a minimum period of five years to be served before eligibility for parole.
110 I note that your theft Charge 5 involves a motor vehicle and this has enlivened s.89(4) of the Sentencing Act. Pursuant to that section, on Charge 5 I further order that any driver's licence that you hold is cancelled and you are disqualified from obtaining any such licence for a period of two years effective from today.
111 You may be seated for the moment.
112 Are there any other matters from either counsel?
MS BIRKIN: No, Your Honour.
MR LESLIE: Nothing from this side, Your Honour.
HIS HONOUR: Thank you. Mr Smith can now be removed.
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