Director of Public Prosecutions v Smith

[2018] VCC 1794

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01401
CR 18-01447

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIAM SMITH

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2018 and 1 November 2018
DATE OF SENTENCE:	5 November 2018
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2018] VCC 1794

REASONS FOR SENTENCE
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Subject:  Sentencing.

Catchwords:  Pleas of guilty; co-operation; first incident as follower and tried to limit assault by co-offenders; second incident alone, protracted and personal culpability more serious; young offender, aged 20 at time of sentencing; prior criminal history and orders breached; whether YJC or adult custody; IQ in borderline range.

Legislation Cited: Sentencing Act 1991, sections 5(2AB), 6AAA, 32 (1) &(2).

Cases Cited:R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269; R v Mills [1998] 4 VR 235;

Sentence:                  TES 2 years, 9 months in YJC

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes (Plea) Ms L Treasure (Sentence)	Office of Public Prosecutions
For the Accused	Mr J Barrera	Stary Norton Halphen

HER HONOUR:

1Liam Smith, you have pleaded guilty to one charge each of intentionally causing injury, armed robbery, kidnapping, being a prohibited person possessing an imitation firearm, theft of a motor vehicle and possession of a drug of dependence.  You have also agreed to have heard in this court and pleaded guilty to a summary charge of unlicensed driving.  You have also admitted to a criminal history, to which I shall refer later.

2The maximum penalty for armed robbery and for kidnapping is 25 years' imprisonment.  That is the second-highest maximum sentence known to the law in this state.  Ten years' imprisonment is the maximum penalty for each charge of intentionally causing injury, theft, and being a prohibited person in possession of an imitation firearm. The maximum penalty for possessing methylamphetamine in the circumstances alleged against you is one year imprisonment, and for the summary charge of unlicensed driving, it is three months' imprisonment or
25 penalty units.  These maximum penalties reflect the relevant objective seriousness with which each of the offences is to be regarded, and I have taken them into account as doing that.

3Charge 1 of intentionally causing injury arises from an incident on 18 November 2017.  You and two other men, Michael Golotta and Leigh Wallace, had been outside a house in Springvale with your respective partners, talking and connecting a trailer to a car parked there.  Another car sped past, narrowly missing two of the women, and Wallace took such offence at this that he got into a car and followed the vehicle to an address approximately 350 metres away.

4He confronted the driver, Mr Andrew Fletcher, who turned into his driveway and went inside the house.  Meanwhile, you and Golotta had arrived in another car and also walked down the driveway.  Golotta kicked the tailgate of Fletcher's vehicle, while Wallace armed himself with a flagpole from the garden.  You were carrying an unidentified object in your right hand.

5Fletcher walked back out of the house, holding a rifle that he had retrieved from inside, holding it in an attempt to scare you three off.  He appeared to be intoxicated.  He struck Golotta with the rifle in a swinging motion.  You tried to intervene and placed him in a headlock because you saw his finger on the trigger as he was grappling with Golotta. Fletcher bit you on your left arm, causing you to release the headlock.  Golotta then punched him in the nose very hard and the rifle was taken from him by Wallace, who came to assist. 

6You attempted no further physical contact with Fletcher, but he was attacked further by Wallace and Golotta, including being struck on the ankle and the cheek with the butt of the rifle, jumped on in the ankle area, and punched and kicked to all areas of his body while he was on the ground. You attempted to stop the attack by pulling Wallace and Golotta off Fletcher, who at that stage was not able to fight back at all.  Fletcher saw a knife, which he tried to grab, but instead received a laceration to his finger.  It is not alleged that you held the knife.

7The three of you then started to leave, but Golotta returned to further assault Fletcher as he still lay on the ground.  You tried to hold Golotta back.  Wallace had been walking towards the street, but turned and walked back and further assaulted Fletcher as he lay motionless on the ground.  Wallace violently struck Fletcher with the butt of the rifle. You were halfway up the driveway, but turned around and tried to remove Wallace from where Fletcher lay. 

8Then Golotta, who had returned to his vehicle in the street, got out of this vehicle, re-entered the property and again approached Fletcher to further assault him. At this stage, Fletcher's 88-year-old grandfather, who had been in the house, went outside to protect his grandson.  He was thrown to the ground by one of the offenders and had his chest stomped on, although this is not the subject of a charge against you.

9You three then left the premises in two vehicles.  Wallace kept possession of the rifle taken from Fletcher.  The whole incident lasted a little under two minutes from the time that Fletcher was disarmed of the rifle to the time that the three of you left that address.  This is able to be calculated because the incident was captured on CCTV footage by cameras at that address, although that footage was not shown or tendered before me.

10As a result of the assault, Fletcher suffered significant swelling to his eye socket.  That is the subject of Charge 1 against you of intentionally causing him injury.  He also suffered a broken ankle, requiring surgery, three broken ribs and a broken and lacerated finger as a result of the actions of Golotta and Wallace.  He was taken to the Alfred Hospital for treatment.

11After the incident, the other two men went and hid the rifle.  On 22 November, investigators attended a garage accompanied by Wallace and located the rifle.

12On 10 April this year, that is 2018, you were arrested for the matters the subject of the other charges to which I shall refer shortly.  You were interviewed by police, and during that interview, you described the incident which injured Fletcher that had occurred last November, and subsequently you made a statement admitting your role and describing the whole event. You said that Wallace and Golotta “went overboard”, and that they had jumped on Fletcher's leg four to five times.  You maintained that putting Fletcher in a headlock during the incident to subdue him, until you were bitten on the arm, was your only physical contact with him. 

13Fletcher has not made a Victim Impact Statement in relation to that charge against you, but I am satisfied that he was the subject of a violent attack that evening and suffered considerable injuries as a result, although most were inflicted by your co-offenders, and I accept that you had intervened more than once to try to make them stop injuring Fletcher further.  I am sentencing you solely for causing the injury that caused him serious swelling around the eye.

14In relation to that incident, it is also of significance that you made a statement to police describing your own role and that of your co-offenders, and that you have given an undertaking before me to give evidence in accordance with that statement if called upon to do so in the prosecution of those two men.  I am told that their committal hearings have not yet been held. Your undertaking to give this evidence attracts entitlement to considerable leniency in your sentence - in fact, reduction in what the sentence would otherwise have been, not limited to this charge - because it not only confirms your willingness to facilitate the course of justice, but places you potentially at some risk if it becomes known.  Not specifically from the co-offenders, but from others, especially while you are in custodial circumstances, because there are people there who adhere to the view that all “lagging” deserves punishment.

15All of the other charges that I am dealing with arise from your conduct on
10 April this year.  In those matters, you acted alone. 

16At about 6.30 pm, you entered a milk bar in Noble Park North and asked the owner to call you a taxi.  The owner did so, and about ten minutes later, a taxi driven by Mr Umar Bin Amin arrived to collect you. You entered the passenger's seat and asked to be driven to Yarraman train station.  However, when you arrived there a short time later, you asked the driver to continue past the station and pull over at the end of the road.  This was at approximately 6.47 pm, and you reached into a pocket in your vest and removed a black-handled imitation handgun. You pointed the gun towards the driver's stomach and said, "Give me the money."  He handed over $60 in cash notes, as well as a quantity of coins, but you started looking through the console in the taxi for more money, and unable to find any, asked him where his bank card was.  He handed over an expired bank card and told you that there was not any money in the account. 
You responded that you did not believe him, and said: "You're going to take the money out and show me the receipt."

17You then required Mr Bin Amin to drive to several ATMs in the area over a period I am told that the total period of this offending was close to one-and-a-half hours.  First, you directed him to Dandenong to make a withdrawal from an ATM, but on arrival there, you decided that the location was too visible, so directed him to drive to a fast-food outlet, but again decided that location was too visible, and directed him to a group of shops on Menzies Avenue, Dandenong North, where another ATM was located.  You threatened him not to tell anyone or you would shoot him. At that store, Mr Bin Amin got out of the taxi and approached the ATM where he attempted to make a withdrawal.  CCTV footage apparently shows him doing this, and you following him and standing behind him as he attempted the withdrawal.  He told you that he did not have any money on the card, and you replied that he must be lying and to get back into the car and not to tell the police or anyone.

18Inside the car, you asked him to hand over his driver's licence, and out of fear he did.  You then said that you knew where he lived now, and not to tell police.  You then directed him to drive towards Noble Park, and to pull over at an ATM on Oak Road, where you told him to transfer money between bank accounts to enable a withdrawal.  He transferred $200.

19Next, you directed him to drive to the Commonwealth Bank at Waverley Gardens in Mulgrave.  On arrival there, you told him you would be sitting in the car watching him.  He got out and approached the ATM and made four consecutive withdrawals which totalled $190 cash, which he gave you when he returned to the taxi. Mr Bin Amin drove you away from the shopping centre, but after a short distance, you made him pull over again.  You said you needed another $200 and told him to transfer more money between his bank accounts.  He refused and told you that he did not have any money left.

20You directed him to drive to a service station at an intersection in Noble Park, and when you arrived there, took his mobile phone and keys to the taxi. 
You again threatened him and said you would be back in a minute, and to give you the car keys.  You went inside the service station to purchase cigarettes with the money stolen from him, and while you were there, he ran from the taxi and hid nearby.

21You then left the service station, stole the taxi and drove off down Browns Road, Noble Park.  When he saw the taxi drive off, Mr Bin Amin ran to a shop where he rang 000 and shortly afterwards, police attended.  When they found him at the service station, he was highly traumatised, by the incident to the extent of vomiting due to his level of anxiety.

22Much of this conduct was apparently caught on CCTV camera from various places attended, and from inside the taxi, but these have not been shown to me nor put in evidence.

23The charge of armed robbery arises from your initial taking of the $60 cash from Mr Bin Amin, threatening him with the imitation handgun, and then from your subsequent obtaining from him under such threat the cash you forced him to withdraw, being $190.

24The charge of kidnap arises from your conduct when you required him to drive from where you stole the cash near the train station to Dandenong and then to the various other locations until he was able to escape.  Although the kidnap had not started on the initial drive from where the taxi collected you to just past the train station, I conclude that the period of the kidnap lasted more than an hour.

25Charge 4 of theft of a motor vehicle relates to your stealing the taxi.  Charge 5 of being a prohibited person in possession of an imitation firearm relates to -
I think I may have those round the wrong way.  But the charge of theft of a motor vehicle relates to your stealing the taxi.

26The charge of being a prohibited person possessing an imitation firearm relates to the imitation gun which you had with you in your pocket and produced to threaten Mr bin Amin, initially into handing over his cash and then to continue to drive you around as you demanded for him to make bank withdrawals to give you more money.

27After this incident, a search was undertaken for the taxi and for you.  The taxi was found dumped on a nature strip in Dandenong North.  Police Air Wing conducted a fly-over of your home address, where they identified a number of people entering a car at the front of that address, and then tracked it as it drove off. At that point, it was unknown to police who was in the car, but it pulled over and the front seat passenger ran from the car, entered the yard of a house and jumped the fence into another backyard.  Members of the Critical Incident Response Team located that person, and it was you.

28You were arrested and a search was conducted.  You were found to be in possession of Mr Bin Amin's Victorian driver's licence and of a small snap-lock bag containing methylamphetamine.  Your possession of that drug is the basis of Charge 6, and it is not alleged that it was for other than personal use.

29You were interviewed at Dandenong police station on the same day and made full admissions to this incident.  As I have said, you also described the incident in which you had been involved the previous November, that being the attack on Mr Fletcher.  You subsequently made a statement in relation to your
co-offenders in that incident.

30The taxi driver you robbed at gunpoint, kidnapped and made drive you around for more than an hour, and threatened in various ways, although there are no charges of making threats, was clearly highly traumatised and frightened by this experience.  He has made a victim impact statement which he did not wish to be read aloud in court, so I shall not repeat details of its content.  However,
I accept that the incident had an immediate physical and financial impact on him, and has had an ongoing psychological impact, undermining his trust in people, his enjoyment of socialising with other taxi drivers, and has damaged his sense of purpose in the job he was doing of driving people in his taxi. By taking his driver's license and pointing out that you knew where he lived, and threatening him not to tell police, you left him frightened to go home to that address.  You have acknowledged to Dr Cunningham and to the Youth Justice Officer who interviewed you that you could see what a very frightening impact you were having on Mr Bin Amin.  You did not, however, cease your actions and it was not until he escaped that the incident ended.

31I must assess the seriousness of these offences and your role in them. 
In relation to the first incident against Mr Fletcher, although this was an incident of considerable violence and ultimately caused him extensive physical injuries, I accept that your role was much more limited in injuring him and not as serious in the part in which you participated as the role of your co-offenders.  You did not instigate the following of Mr Fletcher to his home to seek some sort of revenge after the manner that he had driven past your group.  Although you lent your support to that purpose by accompanying the other two men, and walking onto the property with them, you did not initiate violence, and I accept that you were a follower and probably influenced by being in the company of older men than you. I accept that the reason you put Fletcher in a headlock was that he was threatening your friend, Michael Golotta, with a firearm.  You released him when he bit you, and you did not have any further physical contact with him.  Indeed, you tried to pull each of the other two men off him while they were attacking him on the ground together, and when each walked back separately down the driveway to resume assaulting him, you tried to stop them.

32This was a violent physical attack on Mr Fletcher, no matter what had provoked it, and even though he confronted you all holding a firearm after you had all followed him home and onto the property.  The offending requires just punishment and general deterrence in your sentence, but I accept that your role and the degree of violence you inflicted on Mr Fletcher was considerably less than those of your co-offenders, and that there are circumstances which lower your culpability.  Further, the fact that you are willing to give evidence against your co-offenders reflects cooperation and acknowledgment of the wrongfulness of the incident.

33I view as much more serious your role in the incident involving Mr Bin Amin in April this year, even though he was not caused much in the way of physical injury.  Not only are the offences of armed robbery and kidnapping objectively more serious as reflected in the maximum penalty on each of 25 years' imprisonment, but a purpose of this sentence must be protection of people in his position - that is, a person working alone and in a position that is regarded as a “soft target”, providing a service to the community, often after dark.

34This offending was instigated - that is, started - carried out solely by you.  It was not spontaneous in that you asked for a taxi to be called, and had with you an imitation gun, and it lasted over a relatively prolonged period of time. 
I regard as particularly cruel the fact that you used to frighten Mr bin Amin the fact that you knew his home address from having stolen his driver's license.

35The nature and seriousness of the offending against Mr bin Amin requires that general deterrence - that is, to send a message to others that they can expect serious punishment if they engage in this type of offending - and community denunciation of this type of offending, be important purposes of this sentence, as well as just punishment.  In light of your criminal history, as I shall explain shortly, I regard specific deterrence - that is, to deter you from further offending - as also relevant.

36I take into account in your favour that from the time of your arrest, you were cooperative with police - indeed, blurting out at some length your description of the latter incident. 

37You pleaded guilty to both sets of offending at an early stage.  You are entitled to leniency for those pleas of guilty, as they have saved the community the time and cost of disputed hearings, and saved witnesses the inconvenience as well as the stress of attending court and reliving these events. By your pleas of guilty, you also acknowledge responsibility for your offending.  Given your actions in trying to pull your co-offenders from further harming

Mr Fletcher, and your prompt acknowledgement of responsibility for your offending against Mr Bin Amin and the fear he must have experienced, I am prepared to infer that your pleas of guilty also reflect remorse. I shall tell you after I have imposed sentence what your sentences would have been had you been found guilty after trials of these offences.

38I turn now to your personal circumstances.  You are now aged 20 and were
19 at the time of all of this offending.

39I am told that you were raised by your mother with an older half-sister. Your biological father was never part of your life, but you had a good relationship with your stepfather, to whom your mother was married during your childhood.  You still have contact and support from him, and indeed, the offer of work with him when you are released.  You told Dr Cunningham that your drug-taking harmed your stepfather's business, so it is to his credit that he not only still provides moral support to you, including visiting regularly while you have been in custody, but is willing to offer you work again. 

40I am told that your schooling was problematic.  You were expelled from one primary school in grade 4, from which I infer bad behaviour, and you did not complete secondary school.  You say that you were bullied at school and disliked going.  You apparently struggled to read and write.  I infer that you have not improved your literacy since, although it would be wise for you, at your age, to still attempt to do so.

41You worked for your stepfather at times over several years, but I gather that this was not steady due to your pattern of substance abuse.  You say that you want to try to work again and for your stepfather, and it is to be hoped that you maintain some constancy of employment if you do that.

42On a reading of your criminal history and in light of the summary charge before me, I assume that you have never obtained a driver's licence. 

43Your childhood, I am told, was also affected by your being physically abused by a partner of your mother after she and your stepfather separated.  That relationship ended when you were about 12, and I understand there has been no further contact from that man. 

44I also understand that your mother had and probably still has her own psychological problems, particularly depression, and that creates difficulties for you.

45You formed a relationship from the age of 14 with Jasmine, who is five years older than you.  The two of you have stayed together, and you now have two children, a two-year-old son who lives with his maternal grandmother, and a four-month-old baby born since you have been in custody for these offences, and whom I am told you have not seen.  Your partner and baby are living with your mother, and that is where I am told it is intended you live on release.

46You told Dr Cunningham that you started using cannabis at age 14, forcing yourself to do so as despite finding the experience unpleasant, as both your partner and mother smoked it.  However, you became addicted and were aggressive and violent when withdrawing to the extent that, at age 15, you were evicted by your mother who obtained an intervention order against you.  I am told that that expired years ago, and that you have reconciled with your mother.

47You also took up using methylamphetamine, apparently in the company of friends with whom you were living, and became heavily addicted.  You have undertaken two residential drug rehabilitation programs in the past, but relapsed after each.  The current offending is said to have been committed while you were under the influence of that drug; that is, both the November last year and April of this year offending.

48Drug abuse is not an excuse, although it explains a degree of impulsivity in the offending.  It is also relevant to your prospects of rehabilitation. 

49You have admitted a criminal history in which your first court appearance was at age 15 before the Children's Court at Dandenong for a considerable range of offending, including stalking, unlawful assault, attempted armed robbery, burglary and causing criminal damage, as well as a number of driving offences, including being unlicensed and dangerous driving while pursued by police. You were placed on a Youth Supervision Order without conviction, but breached it by further offending of recklessly causing injury and resisting a police officer.  And for that, you were again placed on a Youth Supervision Order. 
You breached that order by further offending, and you were sentenced in September 2016 for armed robbery.

50I have no details of the circumstances of any of this offending, but I take into account that the range of your prior offences include violence and dishonesty, and armed robbery, and an attempt at it, and that you breached Youth Supervision Orders which presumably were designed to address your underlying problems including drug abuse. You clearly were not sufficiently deterred by these sentences.  You have never had a custodial sentence before, and have clearly been shocked by the experience of being remanded in adult custody since April of this year.

51Dr Aaron Cunningham provided a psychological assessment of you in July this year.  After testing, he concluded that you have a full-scale IQ of 74, which puts your cognitive functioning in the borderline range.  He also diagnosed you as suffering a persistent depressive disorder with persistent low mood with a tendency to panic attacks when feeling overwhelmed, and some obsessive-compulsive symptoms as a method of attempting to minimise anxiety.

52Dr Cunningham regarded your drug abuse and association with drug abusing and offending individuals, as the main contributors to your offence behaviour.  He considered that your borderline intellectual disability increased the risk of influence by negative peers.

53I accept that your borderline intellectual capacity may well have been relevant to your becoming involved in the first offending; that is, with other men who were older than you, and you seem to have followed them into that incident.  To your credit, but not entirely consistent with the evidence that your intellectual capacity renders you particularly impressionable and easily led by others, you seem to have maintained enough independent thinking to try to stop your co-offenders from continuing to assault Mr Fletcher, especially when he was on the ground and not causing any threat to them.

54Nevertheless, I regard your intellectual capacity as likely to have reduced your ability to refuse to accompany the co-offenders into that situation, and to therefore reduce your moral culpability and also, to an extent, the need for general and specific deterrence, for that offence[1].

[1]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269.

55I find it more difficult to see a link between your borderline intellectual capacity and the offending in the second incident; that is, against Mr bin Amin.  Not only were you acting alone, but there was a degree of thinking ahead to ask for a taxi to be called and also to bring the imitation gun. Further, you were capable of pursuing a sustained purpose for more than an hour, during which you assessed which ATM machines were in too exposed a position, and when you accepted that the driver could not withdraw more money on the first card, you thought of asking him to transfer money from another account.

56That course of conduct, although not sophisticated, seems to me to reflect that you had the capacity to think through the problem and maintain concentration on it.  It may be that your underlying depressive disorder influenced you to be taking drugs at the time, but that would only be an indirect influence, and not mitigatory.

57It may be that your depressive disorder influenced you to do something you knew to be wrong in order to get yourself out of the pressure of personal circumstances at the time with your mother, the protection issues with your older child, and your partner being pregnant again, those being the matters of which you have told Dr Cunningham. However, I am not satisfied that there is evidence to truly form a nexus between that depressive condition and the commission of this offence.

58I do not regard your borderline intellectual capacity or depressive disorder as warranting any reduction in your sentence for lower moral culpability or general or specific deterrence for this incident[2].

[2]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269.

59There is some persuasive information that your experiences in the last six months in adult custody have been more difficult for you than they would have been for most prisoners in such a position.  You apparently suffered panic attacks that led to your being taken for medical treatment and to hospital for a few days.  I am told that was in May, while you were at Fulham Prison. Further, you have had interactions with other prisoners leading to your being placed in isolation for your protection at Fulham Prison, and as a result of panic attacks in that scenario, being removed to MRC where you were placed in isolation for your protection.

60I have moderated your sentence to a modest extent to take into account the more-than-usual burden of your time on remand influenced by an underlying psychological disorder and in combination, your youth and borderline intellectual capacity.

61Your lawyer argued that any further time that you are required to spend in custody should be served as detention in a Youth Justice Centre, rather than as adult imprisonment.  You are a young offender, being under age 21, and
I may make a Youth Justice Centre order if you qualify under s.32(1) of the Sentencing Act, and if I consider it appropriate after having regard to the nature of the offence and your age, character and past history.

62It was submitted on your behalf that you should be found eligible for youth detention because you have both reasonable prospects of rehabilitation and the Youth Justice system is where that would be best achieved, and also, because you were impressionable and vulnerable in the adult prison system as reflected during the past months when you have been on remand with adult prisoners.

63The prosecution argued against youth detention because of the seriousness of the offending, particularly the events involving the taxi driver, and further, due to doubt as to your impressionability and vulnerability to the influences in the adult system.

64I requested a pre-sentence report on your suitability for youth detention. 
You were found suitable, although only under the second, and not both possible grounds.  That has been explained further this morning by an author who contributed to that report, in that you were not found eligible as having reasonable prospects of rehabilitation due mainly to your past interaction with Youth Justice Orders, being Youth Supervision Orders, and your failure to adhere to them, and commission of further offences.

65On reading that report, your counsel urged me to take into account your expressions of remorse and apparent willingness to facilitate the course of justice by your cooperation with police, and your stated resolve to avoid reverting to drug abuse on your release.  The prosecution maintained its submission against a YJC order after receipt of that report.

66I must consider both part (a) and part (b) of s.32(1) of the Sentencing Act.  I have real hesitation as to your prospects for rehabilitation.  Rather than reasonable, I consider that they are guarded, although by no means hopeless.

67I accept that you have, in this Youth Justice assessment, and to Dr Cunningham, stated that you intend to stay away from drugs when next released, and you appear to acknowledge that there has been a relationship between your drug abuse and offending. Unfortunately, you have failed in attempts to give up drug use in the past, despite two residential rehabilitation programs, and including while on Youth Supervision Orders, you apparently relapsed into drug abuse and committed further offending in breach of those orders.  Further, the offending for which I am sentencing you is said to have occurred when you were abusing drugs, specifically methylamphetamines.

68You told Dr Cunningham what took you to take up drug use.  If your partner continued to use drugs, and possibly also your mother, at least cannabis, that may explain to an extent your prior lapses, but will make your abstinence more difficult when you resume living with them.  You have not attempted any drug programs in custody so far, although I infer that while held in management for your protection, that might not have been possible.

69I have taken into account what I am told is your resolve after being in custody for six months, including that having been absent for the birth of your second child, you want to be better support for your partner and baby when released, and you realise that you have these responsibilities.  You did not manage to take that responsibility for your elder child in the past, but at the age of 20, it is possible that you will show a greater commitment to taking responsibility for your family by staying out of trouble, including away from drugs and other drug users.

70For these reasons, as I have said, I am not satisfied that your prospects of rehabilitation can be categorised as “reasonable” for a finding of eligibility for a Youth Justice Centre order.  It will be open to you to prove me wrong.

71I am satisfied that you qualify under ground (b) for eligibility for a Youth Justice Centre order.  I am satisfied that a combination of factors - your immaturity and youth, your borderline intellectual capacity, and depressive order - contribute to rendering you particularly impressionable and immature, or likely to be subject to undesirable influences in an adult prison.

72You have already struggled in interactions with other prisoners, placing your personal safety at some risk, and I accept that that leaves you not only vulnerable to direct harm but susceptible to bad influence or adverse influence of others.

73It was suggested that your giving an undertaking to give evidence against
co-offenders also leaves you vulnerable in the prison system.  The actual test under part (b) is not for “vulnerability”, but for immaturity, being particularly impressionable and immature, or likely to be subject to undesirable influences.  But as I have said, I have taken into account your experience in adult prison over the last six months.

74I have taken into account, as I must in considering whether to make a Youth Justice order, the seriousness of the offending, especially in the second incident, as I have already explained.  I have taken into account as already describe, your prior criminal history.  I do note that you have not previously served a sentence of custody of any type, and certainly not in a Youth Justice Centre. You have been on remand in adult prison, where you have not coped well, both through panic attacks and also interactions with other prisoners, and I consider that this period on remand should have had a very salutary and deterrent effect on you.  I have taken into account your early admissions, once arrested, and the cooperation and undertaking you have given in relation to your co-offenders in the first incident.

75In all of the circumstances, I am satisfied that you should be given the opportunity to serve the balance of your time in custody for these offences in the Youth Justice system, so that what opportunities there are for your rehabilitation can be optimised.  The result of this will be that I shall impose a total effective sentence and it will be for the Youth Parole Board to decide when to release you on parole and on what conditions.

76Although I found your prospects of rehabilitation less than reasonable, I find that they are not hopeless, and that that at age 20, and despite poor prior history of criminal offending and breaches of prior orders, rehabilitation should still be a significant purpose of your sentence, although not the primary one, given your criminal history[3].  I am of that view because it is ultimately in not only your own and your family's best interests, but the community's best interests, that you be rehabilitated.

[3]R v Mills [1998] 4 VR 235.

77I have taken into account the importance of general deterrence as a sentencing purpose to reflect the nature and seriousness of the offending, especially in the second incident, modified a little by your youth and immaturity as well as for the first incident by your impressionability and influence of others.

78I also regard just punishment and specific deterrence - that is, to deter you, to persuade you not to engage in further offences - as relevant sentencing purposes.  However, in that regard, as I have said, I regard the six months you have spent on remand in adult custody as likely to have gone a considerable way to achieving both a salutary and deterrent experience.

79I have considered some other sentences of young offenders brought to my attention - all in this court, and all of course, dependent on their individual circumstances.  I am not satisfied that a Community Corrections Order would adequately achieve sentencing purposes, whether on its own or in combination with an initial period of imprisonment. However, as I have said, I am satisfied that I should make a Youth Justice Order to cover the time to serve in custody from here onwards.

80Due to the seriousness of the circumstances of the offending, I have decided that no sentence short of further time in custody would adequately meet sentencing requirements.

81Finally, I have taken into account the principal of totality, in particular, for the charges arising out of the April offending.  Although constituting separate offences, the possession of an imitation firearm was an element of the armed robbery, and the kidnap was an aggravating feature of the armed robbery; that is, keeping the taxi driver captive while having him drive around while you tried to obtain further money from him. I have taken those features into account in arriving at the sentence on Charge 2 of armed robbery.  For these reasons, I have applied only modest cumulation for those offences, despite their objective seriousness.  I have also applied only modest cumulation for the theft of the taxi because it was found soon afterwards and not badly damaged.

82I have not ordered any cumulation for the possession of methylamphetamine, nor for the unlicensed driving charge, and I have allowed for some cumulation to reflect, from Charge 1, that that was a totally separate incident in which you were involved.

83Would you stand up now, please?

84Liam Smith, on each charge on the indictment, you are convicted and sentenced as follows.

85On Charge 1 of intentionally causing injury, four months' detention in Youth Justice Centre.

86On Charge 2 of armed robbery, 28 months' detention in Youth Justice Centre.  That is the base sentence.

87On Charge 3 of kidnap, six months' detention.

88On Charge 4 of being a prohibited person in possession of an imitation firearm, three months' detention.

89On Charge 5 of theft of the taxi, five months' detention.

90On Charge 6 of possession of methylamphetamine, 14 days' detention.

91On the summary charge of unlicensed driving - as I read it, it was at least your third such charge - I impose one month detention. On that charge, any driver's licence held by you is cancelled, although I do not believe you do have one, and you are disqualified for applying for a licence for six months, effective today.

92I direct that two months of the sentence on Charge 1 and one month of the sentence on each of Charges 3, 4, and 5 be served cumulatively on each other and on the sentence on Charge 2.  All other sentences will be served concurrently.

93That makes a total effective sentence of 33 months, or two years, nine months' detention in a Youth Justice Centre.

94I declare 209 days of pre-sentence detention reckoned served, and direct that that be entered in court records.

95I state, for the purposes of s.6AAA of the Sentencing Act, that if you had not pleaded guilty but been found guilty after a trial of all of these offences, I would have imposed a total effective sentence of four years' imprisonment and set a non-parole period of two years, nine months; that is, all in adult prison, not Youth Justice Centre.

96I further state, under s.5(2AB) of the Sentencing Act that I have imposed a less severe sentence than it would otherwise have been, had you not given an undertaking on 1 August 2018 before me to give evidence if called upon in the prosecution of Leigh Wallace and Michael Golotta in accordance with the statement you made, and which is Exhibit A.

97I also make an order for compensation - that is, that you pay $250 to Mr Umar bin Amin.  His address will not be on the order, but the amount will have to be paid through the OPP, the Office of Public Prosecutions, for him.

98Finally, I will also make the disposal order that was sought and not opposed.

99The total effect of that, Mr Smith, I am sure your lawyer will explain.  But it is two years, nine months in a Youth Justice Centre.  The 209 days you have served so far, which is getting close to - it is a bit more than six-and-a-half months, it is a bit less than seven months - that will count.  That comes off the total. 

100It is up to the Youth Parole Board when they think you should be applying for parole and when they decide to grant you parole.  The nature of the Youth Justice system is that the judge does not fix that minimum term, so it will be up to you make the most of the opportunities you get there towards some further education and rehabilitation programs, and to convince those in charge of you that you are ready to be released and can see your way to building a more responsible life for yourself once released.

101You can take a seat now while the orders are prepared.  Yes?

102MS TREASURE:  Just in relation to that compensation order, Your Honour.

103HER HONOUR:  Yes?

104MS TREASURE:  I need to complete a form that anonymises the address, rather than having it through the OPP, but I'm having some technical issues. 
If I could send that through this afternoon?

105HER HONOUR:  If you can send it this afternoon, I will make it then.

106MS TREASURE:  Yes, Your Honour. 

107HER HONOUR:  And a copy can be sent out ‑ ‑ ‑ 

108MS TREASURE:  Yes, Your Honour. 

109HER HONOUR:  ‑ ‑ ‑ to both parties.  Mr Smith knows he has got to pay $250 that he stole from the taxi driver.  It seems to me he probably stole a bit more, because the coins were not counted, but it is at least the - he got $190 in cash out of the ATMs and the $60 in cash in the taxi, and he knows he has got to pay it at some stage, and I will make an order in a form that does not disclose the address.

110MS TREASURE:  As the court pleases.

111MR BARRERA:  As Your Honour pleases.

112HER HONOUR:  All right.  Now, the - what do we have?  We have disposal order to be signed.  Have you both checked the arithmetic?  I think it worked, but did you check it?  Thank you.

113MS TREASURE:  It's correct, Your Honour.

114HER HONOUR:  Thank you.  All right.  I have signed those orders, all except the compensation one.  It is going to come this afternoon.  It will be necessary for Mr Smith to be removed from the court room, but given there is family present, I will let him remain in the court room for no more than three or four minutes and let family members, if they wish, speak with him but no physical contact because he is in custody.

115MR BARRERA:  Yes, Your Honour.  As Your Honour pleases.

116HIS HONOUR:  All right.  He will then be taken back into custody, and I will adjourn the court, please, until 10.30 Wednesday.

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