Director of Public Prosecutions v Vicario
[2023] VCC 2462
•13 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-02289
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| SAMUEL VICARIO |
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| JUDGE: | KARAPANAGIOTIDIS |
| WHERE HELD: | Melbourne |
| DATEOFHEARING: | 30 June 2023 |
| DATEOFSENTENCE: | 13 October 2023 |
| CASEMAYBECITED AS: | DPP v Vicario |
| MEDIUMNEUTRALCITATION: | [2023] VCC 2462 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Theft – Theft of a motor vehicle – Attempted theft of a motor vehicle – Burglary – Attempted burglary – Possession of a drug of dependence – Negligently dealing with the proceedings of crime – Plea of guilty – Youth – Intellectual disability
Legislation Cited: ss 5 Sentencing Act 1991
Cases Cited: Azzopardi v The Queen [2001] HCA 25.; Ellis v The Queen [2021] VSCA 229; Muldrock v The Queen [2011] HCA 39; R v Evans [2003] VSCA 223; Ralph v The Queen [2022] VSCA 185. R v Verdins & Ors [2007] VSCA 102, Worboyes v The Queen [2021] VSCA 169
Sentence:Community Corrections Order for a period of 18 months.
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| APPEARANCES: | Counsel | Solicitors |
FortheDPP | N. Simpson | The Office of Public Prosecutions |
FortheAccused | S. Kelly | Stary Norton Halphen |
HER HONOUR:
1Samuel Vicario, you have pleaded guilty to the following charges:
(a) Nine charges of theft, six of which relate to the theft of a motor vehicle;
(b) One charge of attempted theft of a motor vehicle;
(c) Three charges of burglary;
(d) One charge of attempted burglary;
(e) One charge of possession of a drug of dependence; and
(f) One charge of negligently dealing with the proceeds of crime.
2You also agreed to this Court hearing, and you have pleaded guilty to one summary charge relating to the possession of a prohibited weapon without exemption or approval.
Summary of the offending
3The circumstances of your offending are outlined in the prosecution opening which was marked as an exhibit. In summary, between 1 and 4 July 2022, you and your co-accused Reece Marshall[1] and Kelly Sturgen[2] engaged in a crime spree, during which you committed various offences of theft, burglary, attempted burglary and attempted theft in various suburbs around Melbourne.
[1] A pseudonym.
[2] A pseudonym.
4I will address each charge briefly.
Charge 1: Theft (Nissan Navara, UNP145)
5At approximately 12.24 am on 1 July 2022, you and your co-accused stole a blue Nissan Navara, registration UNP 145 from an address in Taylors Hill. It’s alleged that you committed the offence by way of possession and use of the vehicle and that is the basis of Charge 1.
Charge 2: Attempted theft (Nissan Patrol, SLW552)
6At approximately 3.00 am on the same day, the blue Nissan was captured on CCTV at the BP Service Station in Baxter. It also depicted you and your co-accused attempting to steal a 2003 Nissan Patrol, registration SLW 552.
7Damage was caused to the vehicle from the attempted theft, including broken glass on the driver’s side rear window and that is Charge 2.
Charge 3: Theft (Toyota FJ Cruise, 1DP3JT)
8On 30 June 2022, the owner of a freight service began transporting two vehicles for a customer from Victoria to Queensland. He was driving a Volvo Multi-Deck Car Carrier, with a Toyota FJ Cruiser, registration 1DP 3JT, and a Mercedes loaded on the back.
9At about 8.30 pm, the owner used a roadhouse facility at the BP in Baxter, at
1401 Peninsula Link. Before going to his cabin to sleep, he made sure the vehicles were secured. He left the Toyota (IDP 3JT) unlocked and the keys in the vehicle’s centre console.10The prosecution allege that at approximately 3:30 am, you and your co-accused stole the Toyota (1DP 3JT). The vehicle was captured on CCTV being reversed off the back of the Volvo. It was then captured leaving in convoy with the Nissan (UNP 145) that I previously referred to.
Charge 4: Theft (Nissan Navara, 1QV3PT)
11At about 7.50 pm on 3 July 2022, the Toyota (1DP 3JT) is captured on CCTV entering the vicinity of the victim’s residence on Corella Drive, Whittlesea. Access is gained to the victim’s Nissan Navara 1QV 3PT parked in the street nearby the side of his house, by breaking the rear passenger vehicle. The prosecution allege that you and your co-accused were utilising the Toyota (1DP 3JT), referred to previously, and that you have then stolen the Nissan Navara (1QV 3PT). That is the basis of Charge 4.
12The Nissan Navara (1QV 3PT) was located on 4 July 2022 in Roxburgh Park and was towed. Upon examination the vehicle was observed to be muddy, with various damage.
13The owner paid $420 to retrieve the vehicle from the towing company and spent approximately $2,000 to fix it, as it was not insured.
Charge 5: Theft (Nissan Navara, BID135)
14In the early morning of 4 July 2022, a white Nissan Navarra (BID 135) was parked out the front of the owner’s residential address in Roxburgh Park. The car was locked.
15At about 5.04 am on 4 July 2022, CCTV captured the vehicle being stolen. The rear driver’s side window of the vehicle was broken to gain entry and the ignition barrel was tampered with. The prosecution allege that you and your co-accused stole the vehicle.
16Later in the month the vehicle was located and had been burnt out at
Craigieburn Road, in Oaklands Junction. That is the basis of Charge 5 theft
Charge 6: Theft (Excavator)
17Between about 11.57 pm on 3 July 2022 and 5.41 am on 4 July 2022, a white Utility vehicle is captured entering and exiting a construction worksite on Donnybrook Road, Mickleham. The prosecution allege that you and your
co-accused entered and exited the property at various stages, in both of the stolen Nissan Navarras (BID 135) (1QV 3PT) that I have just referred to.18At about 4.37am, a white Utility vehicle is captured leaving the worksite in convoy with a large CASE excavator. The prosecution allege that you and your and
co-accused were in the excavator and white Utility vehicle.19At about 6.20 am on 4 July 2022, an employee of the construction company arrived at the site and noticed that the front gate had been knocked open and was flat on the ground and that the excavator was missing. He and another employee noticed muddy track marks and separately they went for a drive following them. Observations were made of Nissan Navara (BID 135) ahead in the paddock and the excavator on a vacant block of land in the area. Also observed was a black Toyota Kluger and a male in it. Observations were also made of a white dual cab Nissan Navara and three people in that vehicle acting suspiciously. The prosecution allege that the occupants of the vehicle were you and your
co-accused.20The stolen excavator was valued at $594,000. And that relates to Charge 6.
Charges 7 and 8: Burglary (Normanby Road) and Theft
21At approximately 10.00am on 4 July 2022 a white, muddy, Nissan Navara is captured on CCTV parked outside an address on Normanby Road, Kew. The prosecution allege that you and your co-accused were using this vehicle. They further allege that you and your co-accused gained entry to the property shortly thereafter and stole various items.
22Police observed that the front automated gates to the property and the front door had been forced to gain entry.
23Stolen from the property was:
(a) A wooden jewellery box from the master bedroom, containing valuable jewellery pieces belonging to Ms Pan; and
(b) Several expensive handbags from the storage room.
24The estimated value of the stolen property is $62,000. The stolen items were also not insured and some of them had sentimental value.
25Items stolen from this property were located on your co-accused at the time of their arrest on 4 July 2022in vehicle 1SR 6RJ, associated with you and your
co-accused on 4 July 2022. That is the basis of Charge 7 and 8 burglary and theft.
Charge 9: Burglary (Faversham Road)
26Next at approximately 11.45 am on 4 July 2022, you and your co-accused attended an address on Faversham Road, Canterbury. Witness, Leah Kitchen, observed a muddy white Nissan Navara Utility outside the property and two males banging on the front door of the property at the time of offending. The prosecution allege that this was you and your and co-accused, Reece Marshall, and that you both gained access to the property with the intent to steal.
27The occupant of the property advised police that he was the resident of it, had not moved in yet, and the property was empty of furniture. That is the basis of Charge 9 burglary.
Charge 13: Attempted Burglary (Lewis Street)
28Next, Charge, 13 attempted burglary. At approximately 12.45 pm on 4 July 2022, the Nissan Navara (BID 135) was captured on CCTV at the front of a residence on Lewis Street, Mount Waverley. The prosecution allege that you and your
co-accused were using this vehicle.29Your co-accused, Reece Marshall, was captured walking to the front door, kicking it three times in an attempt to gain access to it. You are then seen exiting the vehicle and walking through the front gate of the property, where you run up and kick the front door. You and your co-accused were unsuccessful in gaining entry to the premises.
Charges 10-12: Burglary (Karma Avenue), Theft and Theft from motor vehicle
30Next, and this relates to Charges 10 through to 12. At about 1.25 pm, the same Nissan Navara, that is, (BID 135) was parked out the front of an address on Karma Avenue, Malvern East. The prosecution allege that you and your
co-accused were in the vehicle at the time. CCTV captured the vehicle park over the driveway of the Karma Avenue address. Your co-accused,
Reece Marshall, is depicted approaching the victim’s vehicle parked in the front yard, and rummaging through the contents of the vehicle, running back and forth between the property and the vehicle.31At about 1.28 pm, you are captured on CCTV attending the front door of the property. You entered it and remained there for approximately ten minutes.
You and Reece Marshall made numerous trips back and forth between the house and vehicle, leaving at 1.43 pm.32At approximately 5.00 pm, the resident returned home and noticed his front door had been damaged. The windows in the front door, and to the side of the front door were broken. There was damage to the security screen door.
33Personal property stolen from the residence includes:
(a) PlayStation 4 with two controllers;
(b) Cash, foreign currency and credit cards;
(c) 142 mobile phones belonging to customers of the resident's business.
34The resident was required to replace all the locks to the house, the glass for the door and the window, and two security screen doors. The approximate cost of repairs to the property was $4,000.
35Items stolen from this residence were located in the vehicle I have already referred to, that is, (1SR 6RJ) which was associated with you and your co-accused later that day.
Charge 14: Theft (2015 Nissan Navara)
36On 4 July 2022, a Nissan Navara, and that is the registration I have referred to a few times now, (1SR 6RJ), was parked outside the owner's home address on Power Street, Hawthorn. Sometime that afternoon the vehicle was stolen. The prosecution allege that vehicle was stolen by you and your co-accused, having been located and arrested in the vicinity of the vehicle later that day.
37A few days later, the vehicle was found with considerable damage and the owner paid $900 in excess for the insurance claim.
Arrest and interview
38At approximately 6.55 pm on 4 July 2022, police observed this vehicle travelling south on Exhibition Street, Melbourne. Checks confirmed it was an outstanding stolen vehicle.
39The vehicle was then observed travelling east across Bourke Street on the wrong side of the road with its headlights turned off.
40At about 7.06 pm, the vehicle was spotted parked along Parliament Place.
41CCTV from the area depicted two males and two females exiting the vehicle and leaving the site.
42At about 7.20 pm, the vehicle was secured by police. Police seized items from inside of it, including an orange shopping bag filled with numerous mobile phones and accessories and expensive designer handbags.
43At 9.26 pm, you and your co-accused were located heading in the direction of Parliament railway station. Police were called to assist in arresting and processing you.
44At approximately 9.42 pm, police arrested you, transported you to the police station where you were processed. Located in your property and seized was an Apple iPhone. The iPhone was subsequently downloaded and located were relevant and incriminating images and videos, as detailed in the prosecution opening. You were then interviewed by police, made a no comment record of interview and were released pending summons.
45Following further investigation, on 4 August 2022, a search warrant was executed at Moor Park Drive, Craigieburn address. You were present at the address and arrested.
46Following this search, you were also charged with negligently dealing with proceeds of crime, that is cash in the sum of $1,320, possessing cannabis and possessing an extendable baton.
47You engaged in a record of interview and claimed that the money was yours from your pension and that the cannabis was for personal use and was pre-packaged because you used about four grams a day.
Gravity of offending
48Mr Vicario, that is a brief summary of your offending and it can properly be described as a brazen spree of offending between 1 July 2022 to 4 July 2022. As for the individual offences, they vary in objective seriousness, with the most serious offending constituted by the burglary charges.
49The theft of motor vehicles the subject of Charges 1, 2 and 3 all occur between approximately 12.24 am and 3.30 am on the 1 July 2022. In respect of the theft, the subject of Charge 6, I take into account the high monetary value of the excavator. I accept your counsel’s submission that the likely benefit derived from this theft was a 'joyride,' not that this justifies or mitigates your offending. I take into account that the excavator was seized and returned to its owner without damage. Generally I note that much of the property stolen was ultimately recovered. I accept the prosecution submission that this does not mitigate your offending but rather reflects the absence of a matter in aggravation.
50As for the burglary charges, the seriousness of these charges are reflected in the applicable maximum sentence. While it is difficult to precisely discern on some charges the precise nature or duration of your offending, what is clear is that you invaded people’s homes and stole their personal possessions. In relation to Charges 7 and 8, the estimated value of stolen property was $62,000 and it also contained items of sentimental value. In respect of Charges 10 to 12, a large number of items were stolen including 142 mobile phones from the owner's business. The owner returned home to notice his front door had been damaged and his personal property stolen.
51In assessing the objective seriousness of your offending overall, I take into account that with the exception of Charges 15, 16 and summary Charge 22, all charges were committed in company. I also accept the prosecution submission that your offending demonstrates a degree of planning and premeditation, though on the evidence, I don’t consider this to have been particularly sophisticated. In respect of the burglary charges, aside from what is suggested by their repeated nature and the fact that they were committed in company, it is difficult to discern any real planning involved in this offending. I also note that it occurred either late in the morning or early afternoon, as opposed to being committed at night-time.
52I also take into account that there was some damage caused to the vehicles the subject of Charges 2, 4, 5 and 14 and some damage to the properties the subject of burglary Charges 7 and 10.
53Further, I take into account as an aggravating feature that you were on youth parole at the time of the offending.
54In relation to the offending, Mr Vicario, you told clinical psychologist,
Ms Carla Lechner, that you had stopped working at the time, that your routine and mental health were not good because you were on Xanax; and you didn’t give any thought to the consequences of what you did.
Plea of guilty
55You entered a plea of guilty at the earliest opportunity which entitles you to a substantial discount in sentence. Your plea of guilty also has considerable utilitarian value and attracts a further discount on sentence, having been entered during the COVID-19 pandemic.[3]
[3] Worboyes v The Queen [2021] VSCA 169
56I also accept that your plea of guilty is indicative of remorse. While you struggle with consequential thinking and insight, you told Ms Lechner that you have a lot of regret. 'I regret committing more crimes. I feel sorry for the victim. If it happened to me, I’d be sad and angry'. In your assessment with corrections today you said that you felt sorry for the victims of your offending and the anxiety that you have caused them.
Personal history
57Your personal history was canvassed by your counsel and in the psychological reports that have been tendered on your behalf.
58Briefly, you were raised in Melbourne by both parents and you are one of three children. Your parents separated when you were around 15 years of age and you continued to live with your mother after the separation.
59At a young age you were diagnosed with attention-deficit/hyperactivity disorder and prescribed Ritalin. Apparently, your learning and behaviour at school improved dramatically but you remained behind and delayed. You have also described a history of anxiety and depression.
60You attended school to a Year 8 level at Mt Ridley Secondary College. After leaving school you were enrolled at Hume Valley School, which is a school for children with mild intellectual disabilities, but you didn’t return after attending only twice. Subsequently you have engaged in schooling whilst in custody at Parkville and TAFE training at the Kangan Institute.
61You have obtained a Certificate II in Automotives, with a focus on panel beating and spray painting. You obtained employment as a panel beater with Synergy Motor Repairs in 2020 and Rockit Carwash in 2021. You are currently employed by Flagstaff Autobody on a full-time basis and you are in discussions to commence an apprenticeship as a panel beater which I am told today is likely to occur soon. This employment has been full-time since August 2022.
62As for drug use, you have used cannabis, methylamphetamine, cocaine and Xanax through your teenage and early adult years. You instruct that you have been abstinent from drug use for what is now approaching around a 12-month period.
63You have a relevant prior criminal history for matters that include theft of motor vehicle and committing indictable offences on bail, mostly in the Children’s Court. On 31 March 2021 you were sentenced in this court on charges including theft, damage property, reckless conduct endangering serious injury, and two charges of aggravated reckless exposure of police officer to risk by driving. You were sentenced to a Youth Justice Centre order for an aggregate period of 2 years and 8 months, with 301 days declared as pre-sentence detention. You were released on parole in August 2021. The parole board was apparently aware of this offending but took the view that no action was warranted and you continued engaging until the expiry of your parole in February 2023.
Intellectual disability
64During primary school, you were referred to a clinical psychologist because of concerns about your cognitive functioning and in both 2011 [4] (full scale 73) and 2014[5] (full scale 67) your full scale IQ was assessed within the extremely low range and you were diagnosed as having adaptive behavioural difficulties and a mild intellectual disability. On 16 November 2016 the Department of Health and Human Services issued you with a statement of intellectual disability in accordance with the Disability Act 2006.
[4] Lisa Palmaisano, Samuel Vicario – Psychological Assessment Report, 21 October 2011, page 4.
[5] Josephine Motta, Samuel Vicario – Psychological Assessment Report, 30 June 2014, page 5.
.
65In 2021 you were assessed by clinical neuropsychologist; Anna McLaren. Ms McLaren outlined findings in a report dated 31 January 2021 and a further report of 22 February 2021. In brief summary, she offers the following opinions.
(a)'On testing you obtained a full scale IQ of 67, which is within the extremely low range and operates as a good overall indication of your intellectual functioning. Your overall intellectual functioning has remained within the borderline to extremely low range for the past 10 years.
(b)'Your results on neuropsychological assessment in January 2021 indicated overall level of intellectual functioning within the extremely low range. Your poor verbal intellectual skills, including verbal reasoning and comprehension within the borderline range, will mean you will have difficulty reasoning through and appropriately judging situations, as well as difficulties with understanding social conventional behaviour. [6]
[6] Anna McLaren, Addendum Neuropsychological report of Samuel Vicario, 22 February 2021, page 1.
(c)'Your concrete thinking may also mean that in any learnings from past behaviour (positive or negative) may be difficult for you to extrapolate to new or unfamiliar scenarios, which combined with your unreliable memory, will likely mean it will be difficult for you to apply new more adaptive behaviour or strategies to novel situations'.
66Also you were assessed by clinical psychologist; Ms Lechner in March 2023. She states in summary.
(a) 'Your executive functioning was in the borderline range for verbal abstract reasoning, and extremely low for idea generation. This would suggest that your capacity for consequential and reflective thinking, as well as your ability to take perspectives other than your own is genuinely restricted. [7]
[7] Carla Lechner, Psychological report of Samuel Vicario, May 21 2023, page 3.
(b) 'In addition, you continue to evidence symptoms of ADHD that affect your ability to process complex or too much incoming information. Therefore, you are likely to run with partial information in a fairly impulsive manner, without taking into consideration the possible personal costs'. [8]
[8] Ibid, page 3.
67There is no dispute between the parties that, what we refer to as the Verdins principles, are enlivened in your case, that is limbs 1, 3, 4 and 5.[9] The prosecution submit that while general and specific deterrence are not eliminated, they accept in light of the evidence that they are moderated. In a case that we refer to as Muldrock's case, the court recognised the special status of persons suffering an intellectual disability and how it is capable of substantially lessening their moral culpability and the retributive and denunciatory aspects of sentencing. [10]
[9] R v Verdins & Ors [2007] VSCA 102
[10] Muldrock v The Queen [2011] HCA 39; [54].
68I accept, Mr Vicario, that your intellectual disability enlivens the relevant principles that I have just referred to and operates to reduce your moral culpability and the relevance of deterrence and denunciation. I also accept that a term of imprisonment would weigh more heavily on you then a person without your special needs. Ms McLaren refers to someone of your low level intellectual functioning as struggling to appropriately judge and understand social situations, and to learn new or more appropriate ways of dealing with evolving situations. Ms Lechner also considers that your level of anxiety would escalate significantly in prison and you would relapse to depression. I take all of these matters into account in sentencing you.
Youth
69Further, you are a youthful offender. You are now 22, you were 21 years of age at the time of the offending.
70Your youth is an important consideration. There are well settled principles in relation to young or youthful offenders that do have application in your case. The courts recognise that due to their immaturity young offenders may be more prone to ill-considered or rash decisions and may lack the degree of insight, judgment and self-control that is possessed by an adult. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. Ms Lechner describes you as someone who impresses 'as cognitively, socially and emotionally immature with a limited capacity to engage in reflective and consequential thinking'.
71The courts also recognise the potential for a young or youthful offender to be redeemed and that their effective rehabilitation in the long term better protects the community from further offending. I must also weigh these considerations with the seriousness of your offending in this instance but overall.[11] I do not consider that the gravity of your offending is such as to reduce the mitigating impact of your youth.
[11] Azzopardi v The Queen [2001] HCA 25.
Prospects of rehabilitation
72Given your relevant prior criminal history and the previous opportunities extended to you, there is a need for some caution in assessing your prospects of rehabilitation. However, over around the last 12 months I accept that you have demonstrated significant progress. You have not re-offended since
4 August 2022 and you have spent your time on bail in a productive manner. You have been employed as a panel beater, as I have already referred to, for at least around the last 10 months, with a prospect of an apprenticeship. Your employer provided a character reference in which he describes you as showing initiative, taking care in your work, growing in confidence and working well, and being a valued member of their team. He also states, 'it is our commitment to Sammy that we will provide him with training, guidance and support as an apprentice'.73You also have the support of the NDIS plan, which was renewed in April of this year with further funding. Further, you have the ongoing support of your family, your mother in particular, who I note has attended court in support of you, and with whom you continue to reside within Craigieburn, along with your brother. Your mum told the disability justice worker that she has been pleasantly encouraged by your increasing maturity and your gradual willingness to open up to her about a range of issues. Further I note that you have been engaging with psychologist, Christine Harding, for an extended period of time. You originally connected with her through Youth Justice but have continued treatment with her on ongoing basis and most recently have had fortnightly appointments. She states that you have previously engaged well in sessions and have been open.
74Ms McLaren refers to you as being someone who is vulnerable and at risk from negative influences. She makes a number of suggestions including input from an occupational therapist or clinical neuropsychologist, support around employment and training and treatment with a clinical psychologist. She states, 'of note, it will be imperative that any intervention provided to Mr Vicario be tailored to his level of extremely low to borderline level of functioning and attentional deficits'.
Sentencing principles
75The basic purposes for which a court may impose a sentence a punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. As I have already indicated, I accept that given your youth, rehabilitation is an important sentencing consideration. Also, the operation of the Verdin's principles and/or your intellectual disability moderates the principles of general and specific deterrence and denunciation.
76In sentencing you I also take into account the principles of proportionality, parsimony and totality. I must ensure that the sentence imposed overall reflects your criminality and circumstances.
77I also take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case. I have had regard to the current sentencing practices for the offences to which you have pleaded guilty to and the cases referred to by counsel. Of course, each case turns on its own particular facts and circumstances.[12]
[12] Ellis v The Queen [2021] VSCA 229; Ralph v The Queen [2022] VSCA 185.
78In respect of your co-accused, their cases were dealt with in the Children’s Court and I note that Mr Marshall appears to have been placed on a good behaviour bond. Given the very different sentencing regime of the Children’s Court, I consider that parity as between co-offenders has little role in sentencing you.[13] You were the oldest amongst your co-offenders though I do note that in your case, your chronological age, is not an indicator of your level of functioning.
[13] R v Evans [2003] VSCA 223.
79As for sentence, your counsel submits that a community corrections order (CCO) is capable of reflecting the relevant sentencing objectives and can be used to both rehabilitate and punish you. The prosecution submit that such an order is appropriate given the accepted significant matters in mitigation, though given the objective gravity of your offending, it should be combined with a term of imprisonment. Your counsel submits that a CCO alone can be punitive through its duration and conditions and that a term of imprisonment, if imposed, would jeopardise the rehabilitative progress you have made.
80Taking into account all the circumstances in your case, I am satisfied that a disposition, other than imprisonment, is capable of adequately addressing each of the sentencing principles and purposes that arise in your case.
81I had you assessed for a CCO and you were assessed as suitable, given your self reports of abstinence, motivation and positive support.
82I requested a justice plan and the recommendation was that you engage with a disability justice coordinator to help reduce the likelihood of re-offending. The disability overview report canvassed in detail your history and your current circumstances. It is anticipated that disability justice coordination of services involved will provide you with a framework of support and through monitoring and review of your needs, will be able to address your offending behaviour and disability-related requirements. I note Ms McLaren’s opinion that given your low intellectual functioning, unreliable memory function and impaired attentional abilities, you may have difficulty complying with a community corrections order unless provided with significant and specialist supports. I consider that a CCO with a justice plan attached is the best and most effective way to advance your rehabilitation and also better protect the community.
Sentencing
83Mr Vicario, can you stand please. So synthesising or weighing up all of the relevant matters that I have considered in your case, including the nature of your offending and your personal circumstances, on all charges but for the charge that relates to cannabis which is charge 15, you are convicted and you are sentenced as follows -
84I am placing you on a community corrections order for a period of 18 months with the following conditions:
(c) Supervision.
(d) Treatment and rehabilitation. I note on the report it says mental health. I am going to include it for mental health and drugs. So treatment and supervision for mental health.
(e) Treatment and supervision for drugs.
(f) I am imposing community work and I am setting 80 hours and I propose to offset 60 hours against treatment.
(g) The last condition is a justice plan.
85Mr Vicario, I can indicate that I have given some pretty close consideration to your case generally and also to the conditions of the order that I have just imposed. In setting the community hours I have taken into account that you are currently employed, you have been for some time, and I consider this to be a significant achievement on your part and one that is critical and very important to your ongoing rehabilitation. I have factored that matter in. I consider that all of these conditions and the length of the order that I have imposed, along with the justice plan, results in a sentence that is just an appropriate in all the circumstances. Now you are going to receive paperwork in relation to this community order that we will go through to ensure that you understand it and that you consent to it, all right. That will be done in a moment.
86In respect of Charge 15 which is the possess cannabis, taking into account a variety of considerations including that it is not suggested that it was not for personal use and it is a small quantity I am convicting and discharging you of that offence, all right. Now if you – you can take a seat please.
87I am not required to make s6AAA declaration as I understand it but I indicate this to you, Mr Vicario, actually do you mind standing up again. Thank you.
88I can indicate that but for your plea of guilty I would have imposed a combination sentence. In other words, I would have required you to serve a term of imprisonment so I am not giving specifics, I am not required to, but I want you to understand and know that the way you have dealt with this matter, taken responsibility for your actions, entered an early plea of guilty, has effectively meant that you are not going to be serving a prison sentence, all right. So that is how important it is. Now you can take a seat.
89Counsel, I make the disposal and forfeiture orders in the terms sought that were unopposed. Were there any other ancillary orders? Is there anything here, for example, that requires me to – my mandate to interfere with the licence here.
I do not understand that Mr Vicario has a licence. He is best advised to make efforts to get one I would have thought as it would assist in his rehabilitative efforts particularly given his employment, particularly given his interest in cars, but am I required to interfere with that?90MS SIMPSON: I don't believe so. I believe it is a discretionary matter.
91HER HONOUR: All right. Do either of counsel wish to be heard?
92MR KELLY: In fairness I think - - -
93HER HONOUR: It is mandatory, isn't it, on a conviction, is it?
94MR KELLY: On conviction. The period - - -
95HER HONOUR: Yes, I think that - - -
96MR KELLY: The period is not specified, so it is within Your Honour's discretion to impose a period.
97HER HONOUR: That is right.
98MR KELLY: If no period is specified it is three months.
99HER HONOUR: I think that is right. I am just going to have that confirmed.
100MR KELLY: Section 94.
101HER HONOUR: Yes, all right. My associate has provided me the section. If a person is found guilty or convicted of stealing or attempting to steal a motor vehicle, as is the case here, the court may and must in the case of a conviction, as is the case here, suspend that licence or cancel that licence and disqualify him from pertaining a further one for a period of time the court specifies. AI mandated period of time here. It is just mandated that on conviction I interfere with the licence. All right. So Mr Vicario does not have a licence presently?
102MR KELLY: He does not. And as relevant to the discretion that Your Honour can exercise he is being placed on bail with a bail condition not to drive a motor vehicle. So that has been a relevant impediment to him ever applying for a licence whilst he has been on bail.
103HER HONOUR: Yes, all right. So that has been a condition that he not – all right. Look, I will take that – do either of you wish to be heard any further on this point?
104MS SIMPSON: No, Your Honour.
105HER HONOUR: All right. I take that consideration into account. I also take into consideration just the observations I made moments ago what I reflect upon as being the importance of having a licence to continue employment and live a really meaningful and productive life. I consider that it would be something that would really assist Mr Vicario so I take into account, as I understand I am entitled to, those rehabilitative aspects and how they apply to licence interference. So in the circumstances also having a regard to the delay in this matter and those bail conditions what I will do is I will disqualify Mr Vicario for a period of 28 days … Do you understand?
106ACCUSED: Yes, Your Honour.
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