Director of Public Prosecutions v Tarplah
[2022] VCC 2193
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-21-02495
Indictment No. M10820087
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYLEE TARPLAH |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 21 November 2022 | |
DATE OF SENTENCE: | 9 December 2022 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Tarplah | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2193 | |
REASONS FOR SENTENCE
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Subject:CRIMNAL LAW
Catchwords: Sentence – one charge of aggravated carjacking and two charges of theft – pleas of guilty – one uplifted summary matter – committing indictable offences whilst on bail – plea of guilty
Legislation Cited: Crimes Act 1958, s74; s97A; Bail Act 1977, s30B; Sentencing Act 1991, s3(1); s5(2G); s10A; s10AB and s16; Criminal Procedure Act 2009, s145
Cases Cited:Worboyes v R [2021] VSCA 169; Phillips v R [2012] VSCA 140; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; DPP v Bowen [2021] VSCA 355; Barbaro v R; Zirilli v R [2012] VSCA 288 Bugmy v R (2013) 249 CLR 571; Mammoloti v R [2020] VSCA 52; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43; Guden v R (2010) 28 VR 288
Sentence: Three-and-a-half years imprisonment with a non-parole period of three years; fines; 6AAA declaration – four years and two months imprisonment with a non-parole period of three-and-a-half years; 381 days of pre-sentence detention to be deducted administratively from the sentence imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C Paganis | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms M Brown (plea) Mr S. Kelly (sentence) | Stary Norton & Halphen |
HIS HONOUR:
1Waylee Tarplah, on 21 November 2022, you pleaded guilty to the following charges on Indictment No. M10820087:
Charge 1 ꟷ that at Mooroolbark in Victoria, on 12 April 2021, you stole alcohol belonging to Bottle-O, Mooroolbark, namely two boxes of Jack Daniels bottles and a ten-pack of Jack Daniels cans.
The offence of theft is contrary to s74(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 2 – that you at Kew in Victoria, on 13 April 2021, stole a vehicle, namely a 2008 Toyota Camry sedan, with registration ZCN 683, belonging to Sushil Kathuria, and that at the time of so doing, and in order to do so, you used force on Sushil Kathuria, and that at the time had with you an offensive weapon, namely a glass bottle, and in the course of the event caused injury to Sushil Kathuria.
The offence of aggravated carjacking is contrary to s79A of the Crimes Act 1958 and carries a maximum penalty of twenty-five years’ imprisonment.
The offence of aggravated carjacking is a “Category 1” offence defined under s3(1) of the Sentencing Act 1991. Pursuant to s5(2G) of that Act, in sentencing an offender for a Category 1 offence, a court must impose a sentence of imprisonment and cannot order a combined sentence order of imprisonment and a Community Correction Order unless a special reason exists.
Furthermore, s10AD of that Act requires that a term of imprisonment be imposed for the offence of aggravated carjacking and that a non-parole period of not less than three years be fixed under s11 of that Act, unless the Court finds, under s10A of that Act, that a special reason exists. The phrase “special reason” is defined within s10A of that Act.
Charge 3[1] ꟷ that you at Montrose in Victoria, on 13 April 2021, stole petrol belonging to BP.
The offence of theft is contrary to s74(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
[1]As originally pleaded on the Indictment, Charge 3 was pleaded as a second Charge 2, but at the beginning of the plea, application was made to amend that charge to read “Charge 3”
2One summary charge was transferred to this Court pursuant to s145 of the Criminal Procedure Act 2009. On 21 November 2022, you agreed to have the matter heard before this Court and pleaded guilty to this uplifted charge:
Charge 5 – that you at Mooroolbark, Kew and Montrose in Victoria, on 12 and 13 April 2021, did commit an indictable offence, namely “aggravated carjacking and two charges of theft whilst on bail”.[2]
The offence of committing an indictable offence whilst on bail is three months’ imprisonment and/or 30 penalty points pursuant to s30B of the Bail Act 1977.
At the time of the subject offending, you were on bail from the following Courts:
(a) On 11 November 2020, you were remanded to the Ringwood Children’s Court and in your absence, an undertaking of bail was extended by Magistrate N La Rosa; and
(b) On 6 July 2021 at the Ringwood Magistrates’ Court bail was fixed on your own undertaking by Magistrate D H Starvaggi.
Section 16(1) of the Sentencing Act 1991 provides that every term of imprisonment imposed on a person by a court must, “unless otherwise directed by the court”, be served concurrently with any uncompleted sentences or sentence of imprisonment. However s16(1A)(e) of the Sentencing Act 1991, provides ss(1) does not apply to a term of imprisonment imposed on any person for an offence committed while released on bail in relation to another offence.
Counsel for the prosecution notes that some of the offending committed by you has involved co-accused.
[2]As originally pleaded on the Charge Sheet, the words “whilst on bail” were not present, and by way of amendment on 21 November 2022, the charges were amended to read as stated
The circumstances of the offending
3Counsel for the prosecution tendered a document headed “Amended Summary of Prosecution Opening for Plea”, dated 18 November 2022 (Exhibit 1) and I was informed by your counsel that you agree with the contents of such document. In particular, I note the following:
· You have just turned twenty years old, having been born in December 2002 in Liberia. At the time of the subject offending, you were eighteen years of age and residing at the family home with your mother, father and siblings in Clyde North.
· On Monday, 12 April 2021, at approximately 6.00 pm, you and others, attended the Bottle-O store at Mooroolbark, located at 101B Cardigan Road, Mooroolbark. You were in a red 2011 Mazda 2 hatch which had been stolen in an aggravated carjacking two days earlier on Saturday, 10 April 2021. It is not alleged that you were involved in that aggravated hijacking.
· Others entered the bottle shop, stole two Jack Daniels giftboxes valued at $230 each and a ten-pack of Jack Daniels cans valued at $45, before running out the shop. The owner gave chase, however was unable to catch you or the other offenders, who drove off in the stolen Mazda. The offending was captured on the store’s CCTV footage (theft, Charge 1).
· On Tuesday, 13 April 2021, at approximately 12.46 pm, you and two others were all spoken to by police outside 11 Reid Street, Balwyn, where you provided details to police. The interaction was recorded by police on the body-worn camera (“BWC”) and such footage shows the clothes worn by you and the co-accused.
· The complainant in this matter is Mr Sushil Kathuria (“the complainant”), who was forty-one years old at the time of the subject offending.
· At approximately 2.00 pm on 13 April 2021, the complainant was sitting in the driver’s seat of his vehicle, a silver 2008 Toyota Camry sedan outside “Fig & Bloom Florist” situated at 126 Edgevale Road, Kew. The complainant worked as a delivery driver for Fig & Bloom Florist, and had just loaded up the vehicle with his final twelve deliveries for the day.
· The complainant noticed three males walking in the middle of the road towards the front of his vehicle and who initially walked past the vehicle, but then came back with you opening the door and saying to the complainant, “Do you have a cigarette?”, to which the complainant replied, “No, I don’t smoke, I don’t have cigarettes”.
· You then said, “Do you have any money?” and the complainant replied, “I don’t have any money”, to which you then said, “I have a knife” and gestured that you had a knife under your top in your pants. At that time, the complainant tried to close the driver’s door, however you had your hand on the top of the door preventing that.
· The complainant got out of the vehicle with the keys on a lanyard in his hand, and once out of the vehicle you struck him to the top of the head with a beer bottle, which you pulled from your pants. The bottle smashed on the complainant’s head and the glass went all over the road, causing the complainant to feel unstable on his feet.
· You then demanded that the complainant give you the keys to his vehicle, which were still being held by the complainant in his hand. You then punched the complainant to the face and hit his top lip, causing the complainant to fall to the ground on the road. The complainant tried to grab onto you as you got into the vehicle.
· You handed the keys to one of your co-accused, who was in the driver’s seat, with the other in the front passenger seat, after which the vehicle was driven away, leaving the complainant on the road (Charge 2).
· On Tuesday, 13 April 2021 at approximately 9.00 pm, you and one of the co-accused drove the complainant’s stolen vehicle to the BP service station at Montrose. He exited the vehicle and placed $66.31 of unleaded petrol into the tank, before getting into the front passenger side of the vehicle, and driving away, making no attempt to pay. This was recorded on CCTV and reported to police (Charge 3, theft).
· On Thursday, 25 April 2021, at approximately 9.00 am, police attended City Edge apartments at Box Hill on the basis of information provided and located you and the co-accused inside room 204. At that time, you were both arrested and conveyed to the Ringwood Police Station for the purposes of a recorded interview.
· During the interview, you specifically denied any involvement in the aggravated carjacking that occurred in Kew on 13 April 2021 and also denied any involvement in any of the alleged offending.
· Counsel for the prosecution sets out, in Exhibit 1, a chronology from the time of offending, leading up to the plea hearing on 21 November 2022. Your matter resolved after a committal hearing, where witnesses were required to give evidence, and a case conference in this Court. You were initially arraigned on 21 June 2022.
4Counsel for the prosecution notes that, although you have entered a plea of guilty, it is not at an early stage, but you should still receive the benefit of an appropriate sentencing discount.
5Counsel for the prosecution notes that you have been in custody from 22 April 2021 (that is the day from when you were initially arrested) until now, that being the day of a plea, a total of 579 days inclusive. However, she notes you have served two sentences during this period:
(a) The first sentence was imposed by the Melbourne Children’s Court on 20 August 2021, at which time you were sentenced by Magistrate Pillai to four months in a Youth Justice Centre, at which time 55 days’ pre-sentence detention was declared. This related to time on remand from 14 August 2020 to 7 October 2020. So, effectively, only approximately sixty-five days of this sentence was served during your current period on remand;
(b) The second sentence was imposed by the Ringwood Magistrates’ Court on 17 November 2021, when you were sentenced to five months’ imprisonment and 144 days pre-sentence detention was declared.
Accordingly, if one reduces the total period on remand by the 65 days declared in relation to the first sentence and the 150 days declared in relation to the second sentence, it leaves 364 days sentence as at the date of the plea hearing.
6Counsel for the prosecution also sought a disposal order in respect to the broken glass bottle – see Charge 2 – such order was not opposed.
Victim Impact Statement
7Sushil Kumar Kathuria, the complainant in the carjacking charge, made a victim impact statement, declared on 12 September 2021. I was informed by counsel for the prosecution that the complainant did not wish such victim impact statement to be read in Court. Due to oversight, this document was not tendered, and I direct that it be tendered and marked as “Exhibit 3”.
8In his statement, the complainant asserts that he cannot work properly anymore, is always under stress, and feels like crying all the time. He describes having “fear and frustration” in his heart, he does not get any deep sleep at this time, and is so scared that he does not turn off his bedroom light at night.
9The complainant reports that, after this incident, he had to undergo an x-ray of the knee and a CT scan of the brain, both of which have been reported as normal, but he has ongoing effects from the offending as follows:
· Experiencing head pain and forgetfulness from the empty glass beer bottle being broken on his forehead.
· Experiencing some loss of hearing in one of his ears, which was punched during the offending.
· Following the offending, he was taking ten Panadol a day and up to 100 tablets a week, and although he takes less now, he still takes some Panadol every week to alleviate his stress and fear.
· The complainant asserts he suffered a “huge financial loss” as a chef and delivery driver of flowers. He had to take off about seven weeks from his work, both as a chef and a delivery driver and, further, had to hire a car/taxi after his car had been carjacked, for any travel to doctors and the like. Ultimately, the complainant states:
“I don’t feel safe with people around me anymore. I have social fear with people coming near or around me. My co-worker at work say that I had bad Karma and I am bad person, that is why, the criminal incident happened with me.”
Your criminal record
10Reference was made to your criminal record as at 1 February 2022.
11Again, due to oversight, this document was not tendered and I direct that such document be tendered and marked as “Exhibit 4”.
12I refer to the criminal record and note the following:
(a) At the Dandenong Children’s Court on 21 December 2020, it was found that you committed theft from a shop and that such offence occurred while you were on bail. Without convictions being entered, these matters were adjourned to 25 June 2021 on the basis of you entering into a Good Behaviour Bond in the amount of $200;
(b) At the Dandenong Children’s Court on 23 June 2021, those charges were dismissed following compliance with the Good Behaviour Bond;
(c) At the Melbourne Children’s Court on 29 August 2021, you were found guilty of attempted robbery, armed robbery, intentionally causing injury, committing indictable offence whilst on bail, robbery, recklessly causing injury, making threat to kill, and state a false name when required, and convicted of such offences. You were ordered to be detained in a Youth Justice Centre for a period of four months. Time already held in custody of fifty-five days declared as time served;
(d) At the Ringwood Magistrates Court on 17 November 2021, you were found guilty of affray, recklessly causing injury and committing an indictable offence whilst on bail and sentenced to an aggregate period of five months’ imprisonment, to be served concurrently with any other State sentences. At that time, 144 days’ of custody were declared as a period of imprisonment already served under this sentence.
Your personal circumstances and background
13Your counsel tendered the following documents:
(a) a document headed “Submissions on behalf of the Accused”, dated 16 November 2022 (Exhibit “A”);
(b) the psychological report of the psychologist, Ms Sandra Cokorilo, dated 7 November 2022 (Exhibit “B”).
14Partly based on the documents which were tendered on your behalf, and various other submissions made to me by your counsel, I note the following:
· As already noted, you were born in December 2002 in Liberia.
· Your parents separated, after which, your father emigrated to Australia in 2009, after which you resided with your mother until the age of fourteen when you, and an older half-brother joined your father in Australia.
· Your informed Ms Cokorilo – the psychologist – that you were harshly disciplined by both parents and, in particular, grew up in fear of your father. You also reported a traumatic experience in Liberia and in particular explained that, at the age of twelve, you witnessed a friend being burnt to death for stealing. You also raised with the psychologist that you are facing deportation due to the subject offending and are worried about potential punishment on returning to Liberia.
· On joining your father in Australia, you lived with him until the age of sixteen, when you were evicted from home due to being arrested. You reported to the psychologist that you were homeless until a three-month juvenile detention term at the age of seventeen, after which you returned to live with your father, but you were again promptly evicted, and since then have been homeless, couch surfing with friends and living in cars on the street.
· You informed the psychologist that you had no contact with your father from when you were last evicted from home until you were remanded into custody on the current charges. You also informed the psychologist that you are no longer in contact with your mother, as she is “angry” at you for being incarcerated.
· You have a close relationship with your brothers, but noted they reside with your father and are studying tertiary degrees, and have no dealings with the justice system.
· You described to the psychologist “a stable and positive educational history”, reporting average academic performance and positive relationships with teachers and peers. Seemingly, there was no history of behavioural problems and you indicated that you were never suspended or expelled.
· On exiting secondary education after completing Year 10, you immediately commenced a bricklaying apprenticeship and reported to the psychologist that you were in the second year of such apprenticeship when you were remanded in custody on the current charges. At present, you work as a billet in custody.
· You informed the psychologist that you have never had a significant intimate relationship and do not have any children. In particular, you identified your brothers and friends as key sources of support.
· You informed the psychologist that you commenced social weekend use of alcohol and cannabis from the age of sixteen, and estimated that you were consuming, on average, forty-eight beers and 5 grams of cannabis each weekend. Furthermore, you also reported weekend use of Xanax from the age of seventeen.
· There is no family history of alcohol or substance abuse.
· You informed the psychologist that you had never been diagnosed with a mental health disorder, but did describe persistent low mood since childhood due to physical abuse, to which you were subjected by your parents. In particular, you reported to the psychologist that you have had anxiety since you have been remanded in custody on the current charges. Such anxiety impacted your sleep, rumination, worrying about deportation and the upcoming court proceedings.
You informed the psychologist that you attempted to commit suicide shortly after being incarcerated, when you were advised by your father that your mother had “collapsed” when she found out that you had been incarcerated.
· Since being incarcerated from April 2021, you reported to the psychologist that you had not had any conflict with officers, but did indicate that you had been involved in three fights with inmates, and noted that your nose was broken on one of those occasions. Furthermore, you reported you had been in solitary confinement for the past month, as you burned down the cell because you were depressed.
Circumstances of the current offending
· You informed the psychologist that, at the time of the offending you were homeless and abusing cannabis, benzodiazepines (Xanax) and alcohol with friends on weekends and, although you recall wanting “to get a car”, you do not recall striking the complainant, nor the details of the offending.
· You reported to the psychologist that you “feel[s] bad” for the complainant and the trauma you have caused him and stated that you would not have acted in such a way if you had not been heavily intoxicated”.
· You stated that you do not know how you found yourself in this situation, noting that you came from a “good family”, but began associating with peers who abused drugs and alcohol after you left high school, and were not considering the consequences of your actions.
The evidence of the psychologist
15Ms Cokorilo assessed you on 19 October 2022, at which time she obtained various histories – family and personal history, education/occupational history, relationship history, mental health and medical history, alcohol and substance abuse history and previous forensic history.
16Ms Cokorilo also made a mental state examination via video conference when in custody. Ms Cokorilo noted that you presented as an immature young man, with poor insight into your mental state and factors precipitating your behavioural problems. You rated your mood at that time as 3/10 and reported disturbed sleep, low mood and persistent worry.
17Ms Cokorilo undertook a variety of psychologist tests, and on the basis of all that material, has expressed the following opinions:
(a) Your reported symptoms are consistent with Persistent Depressive Disorder (“PDD”), with episodes of more significant psychopathology manifesting as Major Depressive Disorder (“MDD”). Further, Ms Cokorilo was of the opinion that you described intrusions, hyperarousal, negative alterations in cognitions and emotions, and avoidance, indicative of Post-Traumatic Stress Disorder (“PTSD”);
(b) You also reported a difficult transition into Australian culture and negative impacts from your mental health arising from the unexpected absence of your mother from your life. Ms Cokorilo notes that these types of circumstances contribute to higher incidents of psychiatric issues, specifically symptoms of depression and anxiety. Furthermore, Ms Cokorilo was of the opinion that, since arriving in Australia at the age of fourteen, you were with your father, with whom you had never had a positive relationship, and were subjected to very harsh discipline.
In particular, Ms Cokorilo opines, at paragraphs 73 to 80 of her report, that:
“These factors would have additionally exacerbated his chronically compromised mental health for which he has never received psychological support. His clinical profile, characterised by impulsivity, hyperarousal, affective instability and poor self-regulation, is associated with increased risk of aggression. Emotional dysregulation, implicated in MDD and PTSD, impairs problem-solving and healthy information processing and can deter prosocial responses, particularly in the absence of meaningful supports, which have been historically lacking for Mr Tarplah.
PTSD is associated with greater impulsivity, aggression, negative emotions, and affect dysregulation, and individuals with PTSD are more likely than those without a trauma history, to respond to situations disproportionately and even aggressively. Therefore, quick temper and aggressive behaviours with little or no provocation, common in PTSD, may have contributed to Mr Tarplah’s offending conduct.
It is also noted that PTSD is comorbid with diverse reckless and self-destructive behaviours. This well-established association prompted a new symptom criterion of reckless and self-destructive behaviours to be added to PTSD diagnostic criteria in DSM-5. Presence of depression, rumination, severity of trauma, younger age, and being male are relevant to Mr Tarplah as recognised risk factors associated with presence of reckless behaviours in PTSD.
Further, comorbid depression and PTSD are associated with higher incidence of anger and emotional regulation problems, than either disorder on its own. Negative affective states can alter cognition and behaviour, thus impairing impulse control and decision-making, ability to rationalise, and consider alternative responses. This is due to the neurological changes in the brain which impact the functioning of the prefrontal cortex, responsible for emotional regulation, executive functioning and impulse control.
Mr Tarplah’s presentation is further complicated by his alcohol and substance abuse. At the time of the offending, he met criteria for Alcohol, Cannabis and Anxiolytic Use Disorders, which would have additionally heightened his risk of engaging in impulsive and reckless behaviour, as well as impaired his insight, decision-making and judgement.
Although his intoxication with alcohol and drugs has likely played a key role in his offending, it is noted that adolescents with histories of experiencing maltreatment, such as Mr Tarplah, are at a particularly high risk of early initiation of substance abuse. His substance use disorders are inferred to have occurred in view of his low coping resources as an early maladaptive mechanism to cope with untreated emotional distress.
Lastly, Mr Tarplah’s age is considered a relevant factor in this case; at the time of the offending he was 18 years old. As outlined in the Sentencing Advisory Council’s report from December 2019 (SAC, 2019), there is a significant difference in the maturity of young adults in their late adolescence and early adulthood (aged 18-25) compared to adult offenders. This is due to their neurological development continuing beyond this age, and psychological limitations such as impaired understanding of consequences, increased impulsiveness, disproportionate emotional arousal and deficiencies in decision-making abilities.
There are a number of factors outlined above which are considered relevant to Mr Tarplah’s offending behaviour. His protective factors are limited. The concern is that deterrence alone will not be sufficient to promote his rehabilitation unless his mental health is adequately treated. From a purely psychological perspective, he would benefit from a disposition which promotes engagement with therapeutic resources.”
(My emphasis.)
18Ms Cokorilo also opined that your risk of re-offending can be considered to be “moderate” on the basis of your criminal priors, history of alcohol and substance abuse, association with negative peers, limited supports and compromised mental health characterised by impulsivity and emotional dysregulation.
19Ms Cokorilo was also of the view that, given your current presentation involving PTSD and MDD, this will most likely make imprisonment more onerous for you than an individual without these conditions. Furthermore, Mr Cokorilo was of the opinion that imprisonment would have a “significant negative effect on [your] development and future behavioural outcomes through a loss of access to positive social structures and exposure to negative peers at [your] impressionable development stage”.
20Finally, Ms Cokorilo notes that you appeared “genuine” in your expression of remorse and desire to reform yourself, but notes that you have presently poor insight and limited supports.
Submissions made by your counsel
21Your counsel submitted initially, correctly in my view, that there was no “special reason” as defined within s10A of the Sentencing Act 1991 to assist you, and, accordingly, pursuant to s10AD of that Act, a term of imprisonment must be imposed in relation to the offence of the aggravated carjacking with a non-parole period of not less than three years to be fixed under s11 of that Act. Furthermore, your counsel submitted, again, correctly in my view, that the operation of s11(1) and s11(3) of the Sentencing Act 1991 (which requires that if a court sentences an offender to be imprisoned in respect of an offence for a term of 2 years or more the Court must fix a parole period of no less than 6 months less than the term of the sentence) results in the minimum sentence in relation to Charge 2 on the Indictment, is a head sentence of three years and six months, with a non-parole period of three years.
22In particular, your counsel referred to the recent Court of Appeal decision of Buckley v R [2007] VSCA 138 wherein in the applicant had been sentenced in the County Court pursuant to the mandatory sentencing provisions for aggravated carjacking. His appeal turned on whether the judge, at first instance, should have found that a special reason exists to avoid such mandatory sentencing. In many ways, the circumstances in that case are similar to those in the present case.
23In particular, the Court of Appeal (consisting of Maxwell P and Forrest JA) were critical of the mandatory sentencing scheme and referred to DPP v Bowen [2021] VSCA 355 (Maxwell P and Priest, MacLeish, T Forrest and Walker JJA) wherein the court urged there was time to reform such legislation. In Buckley, the court highlighted the various problems associated in the legislation, particularly in respect to a young offender.
24Your counsel submitted that the offence of carjacking is a very serious offence, made plain by the maximum penalty of twenty-five years’ imprisonment. Furthermore, it was accepted that the circumstances of your particular offending in relation to the carjacking would have been very frightening for the complainant, who has suffered various consequences, as made plain in the victim impact statement.
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Your counsel submitted that such offending clearly warrants a term of imprisonment, but submits that given the various mitigating factors which do exist in this matter, the head sentence should not exceed three-and-a-half-years, with a
non-parole period of three years. To this end, your counsel submitted the following:
(a) Your counsel submitted, consistent with the submission made by counsel for the prosecution, that your plea of guilty was not at the earliest opportunity and also noted that the complainant was called at a committal hearing to give evidence. Also it was accepted that you had shown little remorse as a mitigating factor.
However, it was submitted that, by your plea of guilty, you had demonstrated:
(i)a desire to facilitate the course of justice;
(ii)such a plea was entered when the ordinary operation of the Court had been affected by the COVID-19 pandemic and such plea should attract an “actual and palpable amelioration of sentence” (see Worboyes v R [2021] VSCA 169 at paragraph 35;
(iii)such plea has utilitarian value, in that it saves the cost and time of a trial which, of course, would involve evidence being given by the complainant in relation to the carjacking offence and probably other witnesses in relation to the two thefts;
(b) At the time of your offending, you were approximately eighteen years and four months old and clearly a “youthful offender” within the meaning of s3 of the Sentencing Act 1991. Furthermore, as already noted, you have just turned twenty years of age and have been in prison since 22 April 2020 (when you were initially arrested) amounting to (as at the date of the plea) 579 days. Your counsel submits, correctly in my view, that your age is relevant in the following ways:
(i)rehabilitation is of paramount importance for youthful offenders;
(ii)young offenders, being more immature, are prone to ill-considered or rash decisions, consistent with the evidence of the psychologist, Ms Cokorilo,
(iii)young offenders may not fully appreciate the nature and seriousness, and consequences of their criminal conduct (again consistent with the evidence of Ms Cokorilo, the psychologist);
(iv)incarceration for young offenders is more likely to impair, rather than improve, a young offender’s prospects of rehabilitation. (See generally Azzopardi v R; Baltatzis v R; Gabriel v R (op cit));
(c) Given the mandatory provisions, you will be sentenced to a period of imprisonment of more than twelve months and as you are not a permanent resident, you face the almost certain prospect of deportation back to your mother, who remains in war-torn Liberia.
In this respect, it must be borne in mind that your father and brothers, (who apparently are being tertiary educated), would remain in Australia. Clearly, as outlined by Ms Cokorilo, the fact that you will probably be deported plays very much on your mind.
In this respect, it is submitted by your counsel that a period of imprisonment is more onerous, given the prospect of deportation, and also ultimately gives rise to a greater burden in the event that you lose the opportunity to settle permanently in Australia (Guden v R (2010) 28 VR 288);
(d) Based on the opinions expressed by the psychologist, it was submitted by your counsel that the so-called Limbs 1 and 5 set out in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 are enlivened. I refer to such principles, which state:
“Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. …
3. …
4. …
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person of normal health.
6.… ..” ((Ibid) at paragraph [32])
It was submitted by your counsel, that based on the opinions by your psychologist, your moral culpability is reduced because of your mental condition and this is to be reflected in any punishment. Furthermore, consistent with the opinion of the psychologist, the existence of your condition may cause any sentence to weigh more heavily on you than a person in normal health.
The response of the Prosecution
26Counsel for the prosecution tendered a further document headed “Outline of Prosecution Submissions”, dated 21 November 2022 (Exhibit 2) and, in particular, states that the subject offence of carjacking is an “inherently serious offence” and, in particular, submits that the following features are relevant to an assessment of the nature and gravity of your offending in relation to such offence:
(a) the offending was committed on a vulnerable victim during daytime;
(b) it was brazen offending at a time and place when the victim should have been safe, being during his hours of employment when he was undertaking work duties;
(c) you were armed with a knife, and also had access to a bottle;
(d) the offending was in company with other co-offenders;
(e) it is apparent from the Victim Impact Statement that the offending had “significant and longstanding effects on the complainant”.
(f) that you had engaged in organised (albeit unsophisticated) and premeditated offending;
(g) this was not merely opportunistic offending, at the very least, there had to be some preplanning involved;
(h) the offending was relatively short in duration.
27It was submitted that, bearing in mind these features, that the offending fell to be assessed as a mid-range example of the offence of aggravated carjacking and a low range example of the offence of theft. The offending is aggravated by the fact that, at the time of the offending, you had been bailed from two courts; one from the Children’s Court and one from the Magistrates’ Court.
28In relation to the submissions of your counsel regarding reliance on the two principles enunciated in Verdins, the prosecution submit that, while you have committed such offending under the influence of drugs and alcohol at the time of the offending, your moral culpability should not be reduced because of your mental state of health, alcohol or drug use. Although accepting that the psychologist, Ms Cokorilo, assessed you with PDD, PTSD, Cannabis Use Disorder and Alcohol Use Disorder, it was submitted that it is difficult to disentangle how much of the behaviour was affected by impaired mental functioning and how much was affected by intoxication.
29Ultimately, it was submitted that, if the Court was of the view that the Verdins’ principles have applicability in this case, it is submitted that any reduction of moral culpability should only be minimal, given the significant alcohol and drug use at the time of the offending.
30Furthermore, it was submitted that the plea of guilty, in, and of itself, does not demonstrate remorse or insight into the offending. Reference was referred to Barbaro v R; Zirilli v R [2012] VSCA 288 at paragraphs 27-42, where the Court of Appeal observed that:
“… a person wishing to rely on remorse as a mitigating factor, needs to satisfy the court that there is genuine penitence and contrition and a desire to atone.” (Ibid at paragraph [38])
31In particular, the Court went on to state:
“… sentencing judges should approach with caution assertions that the plea itself is a sufficient basis for a conclusion that remorse is present, warranting a discount over and above that which is to be granted on the basis of utility.” (Ibid at paragraph [40])
32Counsel for the prosecution submitted that you fall to be sentenced with a limited criminal history. However, you have been sentenced to matters subsequent to this offending which are relevant – that is, you were sentenced on 17 November 2021 to a five-month term of imprisonment for offending which occurred on 29 March 2021, approximately two weeks before the offending before this Court. Furthermore, the offence for which you were sentenced on 20 August 2021, in the Children’s Court, also predates the offending, but you were sentenced to them after.
33Counsel for the prosecution also submits that, apart from your initial offending on 23 March 2020 (which you were sentenced to on 20 August 2021 at the Children’s Court), all of your subsequent offending has been committed while you had been on bail.
34The prosecution submitted that the following mitigating factors exist:
(a) your significant trauma relative to your youth;
(b) family violence;
(c) difficult transition into Australian culture;
(d) separation from your mother at a young age;
(e) the utilitarian benefit of the plea.
35Counsel for the prosecution also submitted that the Court should be “guarded” in respect to your prospects of rehabilitation and, in this respect, noted the psychologist, Ms Cokorilo, in her report, asserted that you have limited protective factors. In particular, it was further submitted that your prospects were largely dependent on you remaining abstinent from illicit substances in the community.
36Ultimately, it was submitted that the predominant sentencing purpose must be general deterrence – that those who are likeminded to partake in offending of this kind must anticipate stern punishment from the Court.
37The objective seriousness of such offences are such that the importance of general deterrence and denunciation is heightened and as the importance of these factors increase, there is a corresponding diminution in mitigating factors, such as the prospect of rehabilitation. Specific deterrence is also important, as the offending occurred in breach of two undertakings of bail, and you have a prior history of breaching such bail undertakings.
38Protection of the community should also be relevant and be of high consideration, so it was submitted. In particular, the prosecution accepts that, as you are a young offender, rehabilitation is also a primary consideration, but notes that, consistent with Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43, as the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender’s youth.
39Ultimately it was submitted that, taking all matters into account, the seriousness of the offending, coupled with your prior history, the offending calls for a term of imprisonment, involving a head sentence with a non-parole period, being a minimum of three years.
Conclusion
40You have been charged with three offences on Indictment No. M10820087, consisting of, in part, two charges of theft:
(a) One charge of theft, which involved you, accompanied by others, stealing two Jack Daniels’ gift boxes and a ten-pack of Jack Daniels’ cans from the Bottle-O store at Mooroolbark on 12 April 2021. The value of the goods stolen was approximately $505 (Charge 1);
(b) The second charge of theft involved you, again in company with others, driving into a BP service station situated in Montrose on 13 April 2021, and placing $66.31 of unleaded petrol into the vehicle that you were driving, after which you drove away and made no attempt to pay (Charge 3).
41The maximum penalty for theft is ten years’ imprisonment – although I accept, as submitted by counsel for the prosecution, that the two theft charges on the Indictment are a low-range example of such offence. However, it should be noted that you have been found guilty of attempted robbery and robbery in the past.
42Given all of the circumstances, I intend to convict you of such offences and sentence you to a fine.
43By far the most serious offence is that involving Charge 2 on the Indictment, that is, the offence of aggravated carjacking. As already noted, such an offence carries a maximum penalty of twenty-five years’ imprisonment and, subject to some exceptions, also involves elements of mandatory sentencing.
44As both your counsel, and counsel for the prosecution, submitted to the Court, that offending was particularly serious given the brazen nature of the offending and, in particular, you striking the top of the head of the complainant with a beer bottle, which smashed, causing the complainant to feel unstable on his feet, and also punching the complainant to his face, causing him to fall to the ground. One only has to refer to the Victim Impact Statement to appreciate that your actions caused a physical, mental and financial impact on the complainant, from which he is still suffering.
45Although the psychologist – Ms Cokorilo ꟷ suggests that you have some degree of remorse for your actions, I doubt there is any realistic remorse, as you remember very little about your actions on that day, being under the influence of alcohol and/or drugs.
46Although I generally accept the submissions made by your counsel in relation to the various mitigating matters, I only apply minor weight to the proposition that, at the time of the offending, you were acting impulsively as a result of some psychological condition. As submitted by counsel for the prosecution, there does appear to be some degree of planning of the carjacking. I consider your prospects for rehabilitation to be guarded.
47However, it cannot be gainsaid that at the time of this offending you were just over the age of eighteen, and even now have just turned twenty, and confronted by a mandatory sentencing provision which requires you to be imprisoned for, at least, a non-parole period of three years.
48After consideration of all the matters, I consider that, although I am bound to apply the mandatory provisions, it is but one example where mandatory sentencing does not achieve the best result for the community, nor, indeed, the rehabilitation of you.
49I should also add, I consider issues of totality arise in that, if these matters had been dealt with the other summary hearings, it most probably would have resulted in overall lesser time in prison.
50In relation to the uplifted charge of committing the offences on the Indictment whilst on bail, I intend to convict you and, again, sentence you to a fine.
51Please be upstanding.
(a) in relation to Charge 1 on Indictment No. M10820087, you are convicted and sentenced to a fine of $400;
(b)
in relation to Charge 2 on Indictment No. M10820087, you are convicted and sentenced to a period of imprisonment of three-and-a-half years, with a
non-parole period of three years;
(c) in relation to Charge 3 on Indictment No. M10820087, you are convicted and sentenced to a fine of $200;
(d) in relation to the uplifted Charge 5, you are convicted and sentenced to a fine of $150;
(e) I declare that you have served up to, but not including this day, 381 days’ in pre-sentence detention, and that such period should be administratively deducted from the sentence ordered against you;
(f) I grant the application for disposal order in relation to the broken glass bottle (see Charge 2);
(g) I declare that, save for your pleas of guilty in relation to Charges 1, 2 and 3, I would have ordered a period of imprisonment of four years and two months with a non-parole period of three-and-a-half years.
(h) Yes. Anything to add, ladies and gentlemen?
(i) MR KELLY: Nothing, Your Honour.
(j) HIS HONOUR: Ms Paganis, anything to add?
(k) MS PAGANIS: No, nothing, thank you, Your Honour.
(l) HIS HONOUR: Yes, thank you. We will get that out to you in due course. We will adjourn sine die.
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