Director of Public Prosecutions v Solofuti
[2022] VCC 1681
•28 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01769
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JANET SOLOFUTI |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June & 5 August 2022 | |
DATE OF SENTENCE: | 28 September 2022 | |
CASE MAY BE CITED AS: | DPP v Solofuti | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1681 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence; Guilty Plea; Carjacking; Theft; Aggravated Carjacking; Recklessly Causing Serious Injury; Complex Posttraumatic Stress Disorder; Deportation; Youth; Positive Prospects for Rehabilitation; Category 1 and 2 offending; Special reasons
Legislation Cited: Sentencing Act 1991 (Vic); Migration Act 1958 (Cth)
Cases Cited:R v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] 249 CLR 571; R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] 35 VR 43.
Sentence: 24 Months Imprisonment; Community Corrections Order for a Period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | The Office of Public Prosecutions |
| For the Accused | Mr H. Moodie | James Dowsley & Associates Pty Ltd |
HER HONOUR:
1Janet Solofuti, you have pleaded guilty on indictment M10196124 to one charge of carjacking, one charge of theft, one charge of aggravated carjacking, one charge of attempted aggravated carjacking and one charge of recklessly causing serious injury.
Circumstances of offending
2The prosecution opening was tendered on the plea and marked as Exhibit A. I do not propose to recite that document in full. What follows is a summary of your offending.
3
So in the early hours of 10 January 2021 the first victim of your offending,
Mr Ruhallah Nabizada, was driving home in his white Toyota Corolla
(registration INH8RE). He stopped at traffic lights in Hallam, at the intersection of Princes Highway and Wedgewood Road, and it was here that your offending commenced. Mr Damian Raux, ('your co-offender') approached Mr Nabizada's car, opened the driver side door, and held a 30-centimetre long hunting knife against his throat and instructed that 'if you don't get out, I will kill you'. Your co‑offender then dragged the first victim from the car and punched him in the head several times. You had been acting as a lookout, hidden in bushes nearby. You emerged from your position and said something like 'let's go to Officer' to your co-offender. Before this time you were not aware that your co-offender had a hunting knife.
4Mr Nabizada was repeatedly punched and fell to the ground, he lay with his eyes closed, finding it difficult to see. You and your co-offender stole his wallet, containing 11 personal cards, some of which were bank cards, $540 cash and a gold iPhone X. You both then left in the victim's vehicle. This conduct amounts to Charges 1 and 2, the carjacking and theft. Your first victim was helped by passers‑by, who took him to the Pakenham police station.
5In the following days you and your co-offender continued to drive the stolen vehicle, and were seen variously visiting a McDonald's in Officer, travelling through Grisham Drive and departing the vehicle. Forensic testing located latent finger prints and palm prints from the vehicle that matched both you and your co‑offender. The Find My iPhone app on the first victim's phone indicated that his mobile phone was in the vicinity of the home you shared with your co‑offender.
6
On 11 January 2021 you began communicating with your second victim,
Mr Faieq, by way of Instagram. You used the fake name 'Yanika' and made plans with the second victim to meet in the coming days. Five days later, on
16 January, you met with the second victim at his home. You both entered his car, a silver Toyota Camry (registration 1PK5MS). Mr Faieq proceeded to drive to a BP service station so that you could purchase a lighter and cigarettes. Once there he exited the car and bought these items for you. When he got back in the car you informed him that your cousin was at a nearby bus stop and had just had an argument with his girlfriend. Mr Faieq agreed to pick up your 'cousin' and drove to the bus stop at Tristania Street in Doveton.
7
At the bus stop your co-offender entered the car and sat in the rear passenger seat behind you. You asked Mr Faieq to drive you both to the Dandenong railway station. During the drive your co-offender produced a knife, held it to the neck of your second victim, and demanded that he 'stop the car or I will kill you'.
Mr Faieq stopped the car on Kidds Road in Doveton, and was able to flee the car, despite your co-offender attempting to stop him. You got into the driver's seat of the vehicle and your co-offender entered the passenger seat. You drove the vehicle away. Mr Faieq attempted to hold on to the driver's side door, as a result he fell to the ground. This conduct gives rise to Charge 3, aggravated carjacking. Mr Faieq was helped by a member of the public, who contacted Victoria Police. The police investigation linked you to the Instagram account that had interacted with the second victim and CCTV depicted your co-offender waiting at the bus stop at Tristania Street. Later that morning police located the stolen car in Lawson Way, Endeavour Hills. It had been extensively damaged.
8
On 13 January 2021 you received a friend request on Facebook from Mr Hussain Shah, who was the third victim of your offending. You and Mr Shah, who was unknown to you prior to this, began messaging on Facebook and made plans to meet on 23 January 2021. Despite these plans you ended up meeting at around
2 am on 24 January 2021. Mr Shah drove his car, a black BMW
(registration YTA753) and parked in a common driveway between Arlington and Clairwood Avenues in Pakenham, near Ascot Park. You met Mr Shah there and you spoke for a short time at the park. Mr Shah then departed, but returned shortly after at your request. When he arrived you were speaking with someone on the phone and asserted that it was your cousin. You entered the car and
Mr Shah began driving you both to a hotel. You asked that he return you to Ascot Park and he did so. Once more, after his departure, you asked that he return and again he did so.
9You entered the car and asked if Mr Shah had any drugs with him. When he told you that he did not, you produced a knife, 10 to 15 centimetres in length, and pointed it at the victim, demanding that he give you his car keys. Mr Shah stepped out of his car and was confronted by your co-offender, who began calling Mr Shah a paedophile. Both you and your co-offender pushed Mr Shah. He did not surrender his vehicle to you. Angered by this, you approached him, still holding the knife, and stabbed him in his lower abdomen. This conduct gives rise to Charge 5, recklessly causing serious injury.
10Mr Shah began running from both of you, calling for help as you pursued him. CCTV depicts you chasing him with the knife in your hand. Your co-offender caught up with him, and punched Mr Shah in the head several times, causing him to fall to the ground. Your co-offender put Mr Shah in a headlock and you attempted to stab him again, but he was able to prevent this by grabbing your wrist. Witnesses who heard this incident called Triple 0, and heard Mr Shah yelling 'Help, they are going to kill me'. Another witness who heard Mr Shah cry for help attempted to deescalate the situation, and witnessed you attempt to stab Mr Shah. Eventually both you and your co-offender stopped and left the area. This conduct gives rise to Charge 4, attempted aggravating carjacking.
11
Mr Shah was taken to hospital by ambulance and underwent emergency surgery on his abdomen to repair the wounds you caused when you stabbed him. This injury caused damage to a blood vessel in his abdomen and to his bowel.
Mr Shah lost over a litre of blood, requiring both a blood transfusion and an emergency surgery to address the bleeding, bowel damage and to clear the abdomen of blood. Mr Shah had 30 staples in total and spent a full six days in hospital before he was discharged.
12
Police who had attended the scene found your co-offender's phone in Mr Shah's car. They were able to identify it as his phone as it was registered to his
Youth Justice worker, who had given it to him in late 2019.
Arrest and procedural history
13On 29 January 2021 police attended the home you then shared with your co‑offender. You were both arrested and a search warrant was executed. In the course of that search the 11 personal cards belonging to Mr Nabizada were located in the spare bedroom.
14
You were interviewed and told police Mr Raux did not live with you at the
24 Grisham Drive address. You made various admissions, and claimed that
Mr Raux was not present in the carjacking subject of Charge 1, and that you had bashed Mr Nabizada and had 'dumped' him in Officer. You denied knowledge of the man shown to you by police in photos, that being Mr Raux. You conceded that the Instagram account used to contact your second victim belonged to you, and asserted that the knife used in the offending belonged to you and that you had brought it from home. You also claimed to have had 'MD' that evening. In relation to the final incident involving Mr Shah, you stated that you had been using Xanax all day, potentially upwards of five tablets, and that you hate being sober. You initially denied that there was any plan to steal his vehicle, but acknowledged that you did want a car, before stating that it was, in fact, a plan. You accepted that you asked Mr Shah if he had drugs, but stated that you did not realise you had stabbed him until you saw the blood on the knife, as you had not meant to stab him. You further asserted that Mr Raux was not in your company at the time of offending. You explained your offending generally as the result of you hating to use public transport.
Nature and gravity of offending
15
Ms Solofuti, it is important for you to understand that the offences of aggravated carjacking and carjacking, in particular, are very serious offences. Not only are they punishable by a maximum of 25 years and 15 years' imprisonment respectively, but Parliament has seen fit to define them as category 1 and category 2 offences. For category 1 offences s5(2G) of the Sentencing Act
('the Act') provides that you must receive a term of imprisonment[1]. Further, pursuant to s10AD of the Act[2], the court must impose a statutory minimum non-parole period of three years for aggravated carjacking unless a special reason exists pursuant to s10A of the Act[3]. Pursuant to s5(2H) of the Act[4], for category 2 offences you must receive a term of imprisonment other than a sentence of imprisonment in combination with a CCO, unless one of five specific circumstances listed in s5(2H) (a) to (e)[5] exist.
[1]Sentencing Act 1991 (Vic) s5(2G).
[2]Ibid at s10AD.
[3]Ibid at s10A.
[4]Ibid at s5(2H).
[5]Ibid at s5(2H)(a)-(e).
16
The particular circumstances of your offending are a serious example of offending of this nature. You offended against three victims in total. The first
two victims were left shaken and frightened. On the third occasion you were not only armed but you used your weapon, a knife, to cause your third victim serious injury that required life-saving surgery. Your offending in relation to the
second and third incidents was planned and you lured your victims via
social media chat. Each incident occurred in public and was extremely brazen and as a whole represents a serious episode of criminal conduct. Put simply, your offending was audacious and outrageous, and must be sternly denounced by the court.
Victim impact
17Mr Faieq, who was your second victim, made a victim impact statement that was read to the court. He described that he was a refugee who fled war‑torn Afghanistan and your offending has been the worst thing that has ever happened to him. You have undermined his sense of wellbeing and he no longer feels safe driving at night as an Uber driver. He was very afraid during the offending when the knife was held to his neck. Mr Faieq's car, which was also his livelihood, was significantly damaged and required him to spend $3,000 to have it fixed.
18
Despite the fact that neither your first and third victims have made a victim impact statement, it is clear that your offending, particularly in relation to
Mr Shah, would have had a devastating impact.
19I take into account the impact that your offending has had upon your victims when sentencing you.
Personal circumstances
20
You are now 20 years of age and you were only 19 years old when you offended. You were born in Auckland, New Zealand, in 2001. Your early years were unsettled, and you migrated to Australia with your family when you were only
two years old. Your family spent a few years in Sydney and then settled in Melbourne. Your father worked, at that time, in a warehouse in Dandenong, and your mother at a chocolate factory. You are the fifth child of seven children in your family.
21Life within your family home was turbulent and violent. In fact, your history makes distressing reading. Your father was violent towards your mother, and towards you and your siblings. As a child you lived in fear of your father's aggression which was sadistic. You told psychologist, Mr Coffey, that 'he made sure we bled'. You tried to help your mother on several occasions after she had been injured by your father, as well as attending school visibly bruised. The strength of his intimidation and aggression was such that no one ever sought help. There were a few occasions when neighbours would call police to your house, however, no further action was ever taken.
22Not surprisingly, you struggled to concentrate and apply yourself at school. You found primary school difficult. You learnt English in prep, having come from a Samoan speaking household, and were slower to learn than your peers. You brought the violence and anger you experienced at home with you to school. You were frequently involved in fights with other children, notably punching a child in prep after being pushed from the monkey bars.
23
The hardship of your family life intensified. Your mother became unwell with kidney disease which limited her ability to care for the children. Between the ages of 10 and 14 you were the victim of sexual abuse by a male relative. This abuse occurred regularly, and both within and outside of your family home. You felt unable to speak or seek help, as you believed first that your family would not understand, and, later, that they would not believe you. It was within this context of violence, abuse and trauma that you first began to consume cannabis at
12 years of age and alcohol at 14. The use of drugs and alcohol helped you to feel calm. You also began to physically harm yourself when you were distressed.
24You entered into secondary schooling and continued to struggle academically. You had finished your primary education with limited numeracy and literacy, and had real difficulty in reading simple texts. You wagged secondary school often, playing truant with similarly inclined friends, and continued to physically fight other students. Amid all the chaos one clear strength became apparent, you were a gifted rugby player. You were so capable that at 16 years old, in Year 9, you were asked to represent the state of Victoria. Sadly, owing to the lack of family interest or support, you abandoned rugby.
25In the next year of your education, Year 10, you were suspended from school and simply never returned. After leaving school you had no clear direction, and your drug and alcohol use continued daily.
26Your mother left the family home for a year to reside with an aunt in Melton. You remained living with your siblings and your father in Dandenong. During the day you would look after your nephew and nieces, ensuring the eldest got to and from school as necessary, and that the younger children were cared for through the day. In the evenings you would use drugs in the company of your friends. This was a period of your life marked by criminal offending and tragedy, as one of your friends died of an overdose.
27
Your prior offending was violent in nature, and often in company, publicly attacking and robbing people, and stealing cars, often while substance affected. This string of prior offending resulted in several periods of remand. In 2019 you spent two separate periods of a few days, and then three months, in
Youth Justice detention. In April 2020 you were remanded for five weeks. In October of that same year you were sentenced to perform an
18-month community corrections order. Throughout the course of these interactions with the criminal justice system a psychiatric review was undertaken, and noted that you were experiencing depressed moods, anxiety, frequent nightmares, and poor sleep, appetite and energy. Accordingly, you were started on a treatment of antidepressants, but a review one month later indicated you had not been taking your medication.
28
In the months immediately preceding the offending before this court you had returned to your family home, and resided with your parents and two of your brothers. Your father was working as a school cleaner and your mother had ceased working entirely owing to the severity of her chronic kidney disease. Much of your time was devoted to caring for your nephew and nieces, and in the evenings you would use drugs and spend time with your friends or Mr Raux. Although the physical violence of your father, which had terrorised your childhood, had abated, he remained verbally aggressive and the family home was tense. You report that the dinner table was often so uncomfortable that you would eat in your bedroom or go out to eat. You were drinking heavily, consuming upwards of 750 mils of spirits every night, as well as smoking
8 grams of cannabis and taking 10 Xanax tablets daily. Further, you would smoke 100 milligrams of methamphetamine up to five times a week and would use MDMA frequently. You had also been self-harming, cutting yourself on occasion to release panic.
29At the time you were not receiving any income or financial support. You would access money either from your friends or from the proceeds of theft. At the time you offended you had moved out with your boyfriend, who was also your co‑offender, for a few months. Given your history you struggled with relationships and easily became distrustful and jealous. Almost every night in the lead up to the offending you were drinking a significant amount of spirits and smoking a significant amount of cannabis and methamphetamine, as well as abusing Xanax tablets and MDMA. You clearly recognised that your life was out of control and, despite being on a CCO at the time, you did not know where to turn for help.
Mental health
30
A comprehensive and thorough psychological report from Guy Coffey dated
5 April 2022 was tendered on your plea. Mr Coffey saw you on a total of
four occasions, three of these were by video conference and one was face to face. Each occurred whilst you were incarcerated at the Dame Phyllis Frost Centre. In total he spent seven and a half hours in interview with you. Mr Coffey also reviewed your Justice health files and a variety of past psychological and other material.
31
Mr Coffey graphically detailed the conditions in which you have been held in custody. For approximately nine plus months you were held in a management unit where you were locked up 24 hours per day. Your cell was about
4 metres square. You had a bed, toilet, sink, a set of pigeon holes, a bench without a chair and a TV. A window looked onto the gaol perimeter wall. You could turn your cell light on and off and you had access for six hours a day to an enclosed yard 20 steps long and five steps wide. For the first four months of your time in this unit you were handcuffed in the company of others. As a result of being held in these conditions your mental state deteriorated over time. This was documented in Justice health files and has been repeated in Mr Coffey's report at paragraphs 60 to 68.
32Mr Coffey expressed the following opinions:
(a) At the time of the assessment you were suffering from substances use disorders, currently in abeyance due to the custodial environment.
(b) You were also experiencing the long-term sequelae of developmental trauma, including distressing memories of sexual abuse and family violence, posttraumatic nightmares, marked emotional dysregulation particularly in relation to anger, hallucinations which appear posttraumatic and dissociative in nature, identity confusion, trauma related distortion in the interpretation of social cues, and difficulties forming stable attachments. This cluster of symptoms, dysphoric experiences and maladaptive social cognition is best captured by the diagnostic category of complex posttraumatic stress disorder.
(c) Each of the diagnostic criteria of Complex PTSD are met: re-experiencing of the traumatic event; deliberate avoidance of reminders likely to produce re-experiencing of the traumatic event; persistent perception of heightened current threat; severe and pervasive problems in affect regulation; persistent beliefs about oneself as diminished, defeated or worthless, accompanied by feelings of shame, guilt or failure; persistent difficulties in sustaining relationships; and significant impairment in important areas of psychosocial functioning.
(d) Your extended remand has had both a beneficial and deleterious effect on your mental health. For the first six months of your remand you worked productively and undertook a number of courses. You have been free of illicit substances and alcohol for a sustained period for the first time since you were 12 years old. You have for the first time engaged in counselling which is addressing the consequences of your disturbed childhood. You have been removed from a chaotic and criminally focused lifestyle and you have had time to re-evaluate your priorities. All this has been beneficial to you.
On the other hand, at least some of your posttraumatic symptoms have become worse due to your custody. This is in part due to your social isolation and the time you have had to yourself. You are now experiencing distressing memories, auditory hallucinations and nightmares more frequently than when in the community. Your placement in a management unit for nine months, during which you have spent nearly all your time confined to your cell with minimal social contact, and no routine other than what you can create for yourself, has intensified your posttraumatic symptoms.
(e) It is commonly the case that confinement causes people with posttraumatic conditions to deteriorate because, absent an ability to cope through activity and distraction, they fall prey to posttraumatic reminiscences and interpret the current environment as threatening and unsafe. 'It is my opinion' - and this is the opinion of Mr Coffey - 'that imprisonment is made more onerous for Ms Solofuti owing to her posttraumatic condition and other psychological vulnerabilities than it would be for a person without those characteristics'.
33I accept the opinions of Mr Coffey. I also accept the submission of your counsel that although limbs 1 to 4 of Verdins[6] are not enlivened in your case, your mental state and history are such that I can take them into account generally and I do.
[6]R v Verdins & Ors [2007] VSCA 102.
34In addition, I accept that the fifth and sixth limbs of Verdins are enlivened and I take that into account in your favour.
Category 1 and 2 offending
35
As I have previously mentioned, the charge of aggravated carjacking is a
category 1 offence that has a statutory minimum non‑parole period. This means that s5(2G) of the Sentencing Act[7] operates and I must impose a term of imprisonment other than a combination sentence.
[7]Sentencing Act 1991 (Vic) s5(2G).
36
Pursuant to s10AD of the Act[8] I must impose a minimum non-parole period of three years unless I am satisfied on the balance of probabilities that a special reason exists pursuant to s10A of the Act[9]. Your counsel relied upon
10A(2)(c)(ii)[10], that is, he contended that you have impaired mental functioning that would result in you being subject to substantially and materially greater than ordinary burden or risks of imprisonment.
[8]Ibid at s10AD.
[9]Ibid at s10A.
[10]Ibid at s10A(2)(c)(ii).
37
The offence of carjacking is a category 2 offence. Section 5(2H) of the Act[11] operates in your case and provides that I must make a custodial order for imprisonment, other than an order for imprisonment and a community correction order, unless I am satisfied that there are special reasons. These
special reasons are listed in s5(2H) (a) to (e)[12]. Your counsel, Mr Moodie, again submitted that sub-s(c)(ii) applied in your case[13]. This is in identical terms to s10A(2)(c)(ii) as I have just detailed[14].
[11]Ibid at s5(2H).
[12]Ibid at s5(2H)(a)-(e).
[13]Ibid at s5(2H)(c)(ii).
[14]Ibid at s10A(2)(c)(ii).
38
Given the circumstances of your case and in particular the evidence from
Mr Coffey, I am satisfied on the balance of probabilities that, pursuant to s10A(2)(c)(ii)[15] and s5(2H)(c)(ii)[16], special reasons exist in your case. That is, I find that you have impaired mental functioning, that is, you suffer from complex PTSD and other psychological vulnerabilities to such an extent that you have been subject to substantially and materially greater than ordinary burden or risks of imprisonment.
[15]Ibid.
[16]Ibid at s5(2H)(c)(ii).
39Having made this finding, I must go on to consider the other sentencing considerations that apply in your case.
Plea of guilty
40I accept that your plea of guilty was entered at a very early stage in the proceedings. There is a significant utilitarian benefit in your plea of guilty in that you have spared victims the need to give evidence and you have spared the court from what would have been a time-consuming trial.
41
In addition, I note what the Court of Appeal recently said in the case of
Worboyes v The Queen
[2021] VSCA 169 at paragraph 39[17]:
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. Although a sentencing judge need not quantify the extent of any 'discount', he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.
[17]Worboyes v The Queen [2021] VSCA 169, 39.
42As a result of these factors I propose to allow a significant discount for your plea of guilty.
Remorse
43Your counsel also submitted that you are remorseful for your offending. This submission was supported by various sources of evidence. First, your plea of guilty. Second, your admissions in your record of interview. Third, your expressions of empathy for your victims in the psychological report of Mr Coffey, and, lastly, the letter of apology tendered on your behalf.
44Ms Solofuti, you have taken the very important step of accepting responsibility for your offending. You are undertaking treatment in the form of counselling with West CASA and Good Shepherd to deal with the difficult issues that led you to offend, and you are now abstinent from drug use, albeit that you are in custody. I accept that your remorse is both profound and genuine.
Application of Bugmy principles
45Mr Moodie, on your behalf, submitted that the principles of Bugmy[18] applied in your case and are a significant mitigatory factor that I should take into account. In this regard, he relied upon the psychological report of Guy Coffey. The case of Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing in and of itself. This is so because it is likely that moral culpability will be reduced for someone whose early years have been marked by such disadvantage. The effects of such hardship do not diminish over time, and full weight must be given to those matters in sentencing. Bugmy principles are relevant to the court's assessment of moral culpability for the offence itself and also for the court's consideration of the weight to be given to your prior criminal history.
[18]Bugmy v The Queen [2013] 249 CLR 571
46In your case, I accept that your childhood involved significant deprivation as a result of the following factors: your exposure to significant aggression and family violence perpetrated within the family home that meant you and your siblings lived in fear; you would attend school with bruises and struggled to concentrate and learn in school such that you finished primary school with minimal literacy and numeracy; towards the end of your primary school years your mother became ill with kidney disease which impacted and limited her ability to care for you and your siblings; you were sexually abused by a paternal uncle from the ages of 10 to 14.
47Mr Coffey, in his report, makes the following relevant findings:
At the time of each of the index offences Ms Solofuti was abusing alcohol, illicit substances and an anxiolytic medication. She was experiencing the sequelae of severe early developmental trauma and of an unstable and violent family life. Her life was centred on substance use and offending. She was involved in familial childcare but nothing else productive. Her days had become feckless; she had few if any prosocial influences in her life.
Ms Solofuti's very disturbed family life, mental disorders and addictions had a more distal relationship with the offending. They were instrumental in creating life circumstances and a psychological disposition that made association with criminally inclined peers and the creation of barriers to pro-social pursuits much more probable.
48I accept the opinion of Mr Coffey that there is both a foundation and a nexus between your experience of significant childhood deprivation and the current offending, albeit distal in some respects. As a result, I find that your moral culpability should be somewhat reduced. I also consider that these same factors would have been in operation at the time of your prior matters and, therefore, put your prior convictions in context. It is still my view that there is a place for general and specific deterrence in your case although it is reduced as a result of my findings pursuant to the Bugmy principles.
Deportation
49
Ms Solofuti, you are not an Australian citizen. You are therefore very much at risk of deportation. As discussed at the plea hearing, a sentence of 12 months' imprisonment or more triggers the mandatory cancellation provisions of the
Migration Act[19]
and places you at risk of deportation.
[19]Migration Act 1958 (Cth).
50As noted previously, you have lived in Australia since 2003 when you were aged two years. You came to Australia from New Zealand with your mother, father and six siblings. Apart from one older brother who has been deported you have no family in New Zealand. All of your ties and connections are in Australia.
51You have now been in custody for a total of 607 days.
52I accept that the prospect of deportation has made your time served in gaol on remand more onerous. I also accept that the deportation, should it occur, would constitute an additional punishment because it would destroy the opportunity for you to settle permanently in this country. The courts have recognised that the impact of deportation may vary depending on the offender's circumstances. Australia has been your home since 2003 when you arrived here as an infant. Your mother, father and five of your siblings currently reside in Australia, and these relationships are very important. You have no family (other than one older brother) and no supports in New Zealand. I take into account the likely consequences of the risk of deportation in your case. However, I note that such consequences cannot replace or stand as a proxy for the imposition of an appropriate sentence reflecting the nature and gravity of the offending before a court.
Onerous conditions in custody generally and due to COVID
53
Your time in the management unit has been described above and effectively resulted in you being held in 24‑hour lockdown for approximately nine months. Not only do I take into account the onerous conditions you have spent in custody as a result of your placement in the management unit, but I also take into account the onerous conditions in custody as a result of the COVID-19 pandemic. Quarantine, lockdowns, no visits, limited programs and an inability to distance from infection are all factors that are now regular features of the custodial experience. The effects of the pandemic for prisons are serious, ongoing and fluid. This is particularly so in light of community outbreaks of
COVID-19.
Youth
54At the time of the offending you were 19 years of old. You are now 20 years of age and, as such, you fit the definition of a young offender within the meaning of s3(1) of the Act[20]. In my view, although the offending before the court is very serious, it is not so serious as to entirely displace the principles that generally apply to the sentencing of young offenders. These principles include that:
(a) the youth of an offender should be a primary consideration for a sentencing court where that matter properly arises;[21]
(b) young offenders are immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;
(c) courts recognise the increased potential for young offenders to be rehabilitated, which is in the public interest; and
(d) incarceration can impair, rather than enhance, a young offender's prospects of rehabilitation.[22]
[20]Sentencing Act 1991 (Vic) s3(1).
[21]R v Mills [1998] 4 VR 235.
[22]Azzopardi v The Queen (2011) 35 VR 43, 34.
55Your age and circumstances at the time of your offending reduce your level of moral culpability and reduce the weight that the court must put on general deterrence.
Rehabilitation
56Ms Solofuti, you are still a very young person. You have supports in the community from your mother and sister-in-law and one brother in particular. You have, however, had a lengthy prior history of offending. In Mr Coffey's view an objective empirical approach to risk would lead to a fairly pessimistic prognosis.
57However, Mr Coffey is of the view that there are some aspects of your case that may provide a beginning point for rehabilitation. You now eschew violence. This was accompanied by an important observation that being a victim of violence yourself can either desensitize you to violence against others or lead you to understand its destructive effects. You spoke about your victims with some empathy. You recognize the incompatibility of substance use and association with offenders with your rehabilitation. You have for the first time engaged in counselling directed at ameliorating the effects of your troubled past. You have acknowledged your propensity for intense and disproportionate anger and are curious about its origin and how to address it. You claim to be open to whatever treatment and support is required to achieve a productive law-abiding life.
58In the circumstances I find you have positive prospects for rehabilitation provided you are given and utilise the supports, counselling and supervision you require in the community.
Sentencing
59I consider the relevant sentencing principles that must be applied in your case are general and specific deterrence, albeit moderated to a degree, denunciation, protection of the community and just punishment. I must also be mindful of the principles of parsimony and proportionality. I am of the view that community protection in your case can best be achieved by your rehabilitation. Ms Solofuti, I can indicate but for your age, plea of guilty, and the compelling and significant matters relevant to mitigation, I would have imposed a substantially longer period of imprisonment involving a head sentence and non-parole period.
60
I have taken into account the sentencing guidelines referred to in s5 of the
Sentencing Act[23]
where relevant to your case. I have also taken into account, as far as possible, the current sentencing practices for the offences, particularly the charge of aggravated carjacking, to which you have pleaded guilty.
[23] Sentencing Act 1991 (Vic).
61In fixing the overall and individual sentences, including the orders for cumulation, that I will announce shortly, I have had regard to the principle of totality and considered the entirety of the criminality involved in your offending.
Disposition
62So, Ms Solofuti, I now convict you of each of the charges and I sentence you as follows:
· In relation to Charge 1, of carjacking, I sentence you to 10 months' imprisonment.
· In relation to Charge 2, of theft, I sentence you to six months' imprisonment.
·
In relation to Charge 3, of aggravated carjacking, I sentence you to
16 months' imprisonment and this is the base sentence.
·
In relation to Charge 4, attempted aggravated carjacking, I sentence you to
10 months' imprisonment.
·
In relation to Charge 5, recklessly cause serious injury, I sentence you to
14 months' imprisonment.
63
I order two months of Charge 1, one month of Charge 4 and five months of
Charge 5 be served cumulatively on the base sentence. So the total effective sentence is, therefore, 24 months' imprisonment and I declare that you have served 607 days by way of pre-sentence detention. So, on my calculation, that was about 20 months or thereabouts, which means you have got about
four months to go and, given the period that you have served has been during the COVID-19 pandemic, and it is significant, I would not be surprised if you have considerable emergency management days.
64
So, in addition, on Charges 1, 2, 4 and 5 I intend to impose an aggregate community correction order. So you have been assessed as suitable for such an order. So you are placed on a community correction order for a period of
two years from the date of your release from custody.
65The conditions of this community correction order include:
(a)assessment and treatment for alcohol and drug use;
(b)assessment and treatment for mental health issues;
(c)assessment and treatment for programs to reduce re-offending;
(d)supervision by the Office of Corrections; and
(e)judicial monitoring. So I want you to come back and see me in about six months' time, because I am really interested to see how you go on the order and I really hope that you are doing well. So I have set the first judicial monitoring to take place on 31 March 2023 at 9.30 am and, if necessary, we can do that online. Sometimes people might appear at the Office of Corrections and appear with their corrections officer. Sometimes they might appear from their phone or from a laptop or similar, but, equally, if you wanted to you could come into court.
66In addition to the conditions I have imposed, there are standard conditions to a community correction order. The first and foremost of these is that you must not commit any other offences which could be punished by imprisonment during the two-year period. You must also report within two working days of your release to the Cranbourne Community Correctional Services - and I think that that is to be done by phone. It will be apparent on the order and we will make sure that Mr Moodie, and hopefully you, are provided a copy of that order by sending it out to the gaol.
67
You are required to advise your supervising corrections officer of any change of address of where you are living and working, and this must be done within
two clear working days. It is a term of all community correction orders that you must submit to visits as directed and you must obey all the instructions and directions of the community correction officer. You cannot leave the
State of Victoria without prior permission.
68I must inform you that if you breach the order by reoffending, or you do not comply with the conditions I have imposed, you will be charged with a contravention of the order and you will be brought back before me, and it may be that I am required to resentence you for the original charges.
69Ms Solofuti, do you understand what is required of you for such an order? Hang on one sec, I will just get you to repeat that because you are on mute. Do you understand?
70OFFENDER: Yeah, I understand that - - -
71HER HONOUR: All right.
72OFFENDER: I understand (indistinct words) I have to put in a lot of work and just do it.
73HER HONOUR: There is a lot of work. There is no community work though so it is just the counselling. It is all about working on yourself. And I am thinking that you won’t have to do everything all at once. It might be that, you, do some drug and alcohol counselling to start with, and then build on what you've been doing in custody. So my hope is that you keep up with the CASA and you keep up with the Good Shepherd work stuff. So work on those issues, it's designed to provide some supervision and support for you. It's also punitive because you've got to give up your time to attend. You've got some hard work to do. All right. So do you consent to doing that?
74OFFENDER: Yeah. Well, I've already got involved with West CASA, I've spoken to them, so I've already got my supports all lined up. So, yeah, they're already there for me.
75HER HONOUR: That's good. All right.
76Now, pursuant to s6AAA of the Act[24] but for your plea of guilty I would have imposed a total effective sentence of four years and six months, with a non‑parole period of three years' imprisonment.
[24]Sentencing Act 1991 (Vic) s6AAA.
77There was an order for forfeiture that has been requested by the prosecution which I will make it is for the Adidas long-sleeved jumper and a Champion bum‑bag and a grey‑hooded jumper. So I'll order that those items be forfeited.
78HER HONOUR: Ms Solofuti, I wish you all the very best and I hope that things go well for you and I look forward to seeing you in March. And I hope you get released fairly shortly and you can get back into the community and start doing some counselling on the outside.
79HER HONOUR: And thanks, Mr Moodie, for your really detailed and persistent submissions.
80MR MOODIE: Yes, Your Honour.
81HER HONOUR: They were really helpful. Thank you.
82MR MOODIE: Yes, Your Honour.
83HER HONOUR: And if you get a chance to relate any feedback to Mr Coffey can you let him know it was of great assistance as it was thorough and detailed and very helpful.
84MR MOODIE: I did intend to provide him your sentence, Your Honour
85HER HONOUR: Thanks. All right.- - -
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