Director of Public Prosecutions v Vicario

[2021] VCC 384

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01700

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL VICARIO

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2021; 30 March 2021
DATE OF SENTENCE:	31 March 2021
CASE MAY BE CITED AS:	DPP v Vicario
MEDIUM NEUTRAL CITATION:	[2021] VCC 384

REASONS FOR SENTENCE

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Subject:  Criminal law

Catchwords:  Theft; damage property; reckless conduct endanger serious injury; dangerous or negligent driving in police pursuit; aggravated reckless exposure of police officer to risk by driving

Legislation Cited:  Sentencing Act 1991 (Vic); Crimes Act1958 (Vic)

Cases Cited:  Azzopardi; Baltatzis; Gabriel (2011) 35 VR 43

Sentence:Total effective sentence of 2 years and 8 months detention in a Youth Justice Centre; licence disqualification of 24 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pathmaraj	Office of Public Prosecutions
For the Accused	Mr R. De Kretser	Stary Norton Halphen

HER HONOUR:

1Samuel Vicario, you have pleaded guilty on indictment to one charge of theft; one charge of damage property; one charge of reckless conduct endanger serious injury; one charge of dangerous or negligent driving in police pursuit; and two charges of aggravated reckless exposure of police officer to risk by driving.  You do have a co-accused for much of this offending, Mr Braydinn Witeri, who is yet to be sentenced.

2You have also pleaded guilty to related summary offences of drive in a manner dangerous, unlicensed driving, commit indictable offence whilst on bail (x2) and contravene a conduct condition of bail (x2).

3The offending that gives rise to these charges occurred on the night of the
2 June and the early morning of the 3 June 2020, when you were aged 19 years.

4In sentencing you for these crimes I am required to have regard to the maximum sentence for each of the offences which you have committed.  Theft, damage property and aggravated reckless exposure of police officer to risk by driving all carry individual maximum penalties of 10 years imprisonment.  Reckless conduct endangering serious injury carries a maximum penalty of five years imprisonment.  Dangerous or negligent driving carries a maximum penalty of three years imprisonment.

5The summary charges carry the following maximum penalties: dangerous driving - two years imprisonment with a mandatory minimum license disqualification period of six months; unlicensed driving - six months imprisonment; commit indictable offence whilst on bail - three months imprisonment; and contravene a conduct condition of bail also carries a maximum penalty of three months imprisonment.

6The circumstances of your offending were set out in a document entitled “Summary of Prosecution Opening” dated 8 February 2021 but filed 19 February 2021.  It is a detailed document and represents an acceptance by you of all the elements of the offences to which you have pleaded guilty as well as the factual basis on which I am to sentence.

The offending

7In short compass, on 2 June 2020 between 6pm and 8:30pm, you and your
co-offender, Mr Braydinn Witeri, attended in Bolton View, Derrimut.  There the two of you approached a red Nissan Navara, “the Navara”, belonging to victim Fesui Ioane.  The vehicle was uninsured.  You smashed a side window to the Navara and gained entry before manipulating the ignition and driving from the scene. These facts form the basis for Charge 1 – theft.  

8The Navara was then driven throughout the night of 2 June and early morning of 3 June 2020 by you, Mr Vicario, with Mr Witeri as your passenger.  It was used by you in a series of reckless, dangerous and erratic driving until your ultimate arrest many hours later at 4:42am on 3 June.  I accept the submission that your culpability is greater than that of your co-accused and that you are the primary offender.

9Some hours after the theft of the Navara, at about 3:00am on 3 June 2020 both you and Mr Witeri attended Dingley Street, Templestowe Lower.  The rear driver’s-side window of a Mitsubishi EVO belonging to Mr Daniel Barvieri was smashed.  Text messages linked to you, Mr Vicario, show you enquired of the victim’s address for the purposes of inspecting the car which had been advertised for sale - this does show a degree of planning.  When the victim, Mr Barvieri, heard his car alarm sound he ran out, noticed the smashed window, and the Navara speeding off.  You have pleaded guilty to Charge 3, damage property, arising from this event.  It is, in my view, a low-level version of an offence for its type.

10The two of you continued driving in the Navara around various places in Melbourne.  You, Mr Vicario, drove whilst Mr Witeri remained the willing and encouraging passenger.  At various times Mr Witeri took video footage of your actions on his mobile phone which was later retrieved by police.  I have had access to that footage which included driving along train tracks at an unknown location at about 11:37pm on 2 June 2020 and the driving over, around, and into a street sign on roundabout in an unknown location at 1:45am on 3 June 2020.

11At some time before 4am on 3 June 2020, the Navara sustained significant damage resulting in the complete loss of the right front wheel and tyre.  You continued to drive the Navara in that condition causing sparks to emanate from the right front area.

12A road user driving towards the city on the Eastern freeway called 000 and reported seeing the Navara driving in the right emergency lane without the front rim and sparks flying from beneath the Navara at about 4:08am on 3 June 2020.  She continued her observations, describing the erratic nature of the driving, the fact that it did not have headlights working and was travelling at around 60km/h.  At the off-ramp at Bulleen the Navara veered sharply from the right emergency lane and crossed all lanes to exit.  Fortunately, there was very little traffic on the freeway at the time of this manoeuvre.  These facts form the basis for  Summary Charge 46 - driving in a manner dangerous.

13Another road-user contacted 000 at 4:15am describing the Navara driving along Manningham Road.  By this stage police members were following and had activated their emergency lights.  Two police units were following you at this stage at a distance of about 50 metres as you turned onto Studley Road before turning right at Burgundy Street then Rosanna Road.  Police described the Navara constantly changing lanes and driving erratically, and, on occasions, driving on the wrong side of the road.

14By about 4:30am on 3 June 2020 the Navara was being followed by four police units along Greensborough Road.  Another police unit blocked traffic further ahead at the intersection with Grimshaw Street and Greensborough Road
by-pass.

15At 4:30am road-user Steve Kazonis was driving to work along Greensborough Road when he suddenly saw the Navara driving straight towards him on the wrong-side of the road.  He immediately braked and swerved to the left avoiding an imminent collision.  He noticed the Navara turn its lights off after passing him forming the basis of  Charge 4 – reckless conduct endangering serious injury.

16Police units continued to follow you in the Navara as you, Mr Vicario, continued to drive erratically.  You drove on the wrong side of the road near Grimshaw Street and spun out of control at one stage before continuing on the wrong side of the road with your headlights still off.  The Navara narrowly missed an ambulance at one stage and another car driving on the Greensborough by-pass forming part of Charge 5 – dangerous/negligent driving whilst pursued by police which was then ongoing until your arrest.

17You continued in the Navara along the Greensborough by-pass on the
wrong side of the road before crossing onto the correct side but over a grass median strip.  Police decided to attempt to intercept the Navara.  Police officers tried to pull up along-side you in the Navara in a 4WD vehicle.  Each time they got close the Navara swerved or ‘fish-tailed’ in a way preventing their intended intercept.  On the last attempt, you swerved the Navara into the side of the police 4WD colliding with it.  Those police members deemed it too unsafe to continue driving that vehicle.  The Crown do not allege that the swerving or fishtailing was a deliberate act.  These facts are Charge 6 – aggravated reckless exposure of emergency worker to risk by driving.

18You, Mr Vicario, continued along the Ring Road at speed and ‘overtaking’ another car from the emergency lane travelling in the same direction whilst still being pursued by a number of police units.  One police unit was driving with its lights flashing behind you and managed to get along-side the Navara before you swerved towards it and collided with its passenger side.  Again, this is not said to have been a deliberate act and forms the basis for Charge 7 – aggravated reckless exposure of emergency worker to risk by driving.

19Footage retrieved from Mr Witeri’s mobile phone from within the Navara at about 4:37am shows you, Mr Vicario, and Mr Witeri laughing and describing with enthusiasm that so many police units were in pursuit.

20Another police unit pulled up alongside the Navara then maneuvered to position in front of it in an attempt to slow it down.  The police unit slowed down but the Navara then collided into its rear causing it to shunt forward, and allowing the Navara to go around before continuing along the Ring Road.  Further footage from Mr Witeri’s mobile phone at 4:39am shows both of you laughing, indeed gloating, at being chased by police.

21You exited the Ring Road at Edgars Road and drove straight through a
red light without any regard to potential oncoming traffic.  You turned right and then left over a grass median strip onto the ‘off-ramp’ of the Ring Road.  You drove the Navara the wrong way down the ramp towards oncoming traffic.  Recognising the significant risk that it would be travelling the wrong way down the 100km/h Ring Road, police members used their police car to impact the
 rear-driver’s side of the Navara.  That caused it to spin in a clockwise rotation before another police unit rammed its rear side such that it was then facing the correct way on the off-ramp.

22The Navara then collided with an unmarked police vehicle containing Leading Senior Constable Barry travelling the correct way up the exit ramp.  The force of that collision caused the tray of the Navara to mount directly over the full length of the bonnet of the police car causing extensive damage and minor soft tissue injury to the police officer’s knee.  It is certainly more by good fortune than good management that the injury to Senior Constable Barry was not more serious.

23This led to a lack of traction on the Navara which then enabled police to arrest you and Mr Witeri at this time.  You were interviewed by police shortly thereafter and gave some “no comment” answers and made some admissions.

24At the time of committing these offences on 2 and 3 June 2020, you were already on bail as is reflected in two of the summary charges of committing an indictable offence whilst on bail.  You were also contravening a conduct condition of bail as contained in Charge 54 and Charge 55 of the related summary offences.  In addition, you were not licensed to drive as reflected and particularised in Charge 47 of the related summary offences.

25The primary focus in the sentencing exercise is on the driving offences - that is Charges 4, 5, 6 and 7 on the indictment - as well as the dangerous driving contained in the summary offences.

26It is perhaps obvious to say that your offending is extremely serious.  You were well aware that police were in pursuit.  You put yourself, your co-accused, police members and ordinary road users at extreme risk through your driving and you did so for an extended period of time.  It is disturbing that, if the footage taken by Mr Witeri is anything to go by, you found some pleasure in so doing.  Objectively, I see this offending in the mid-range of offending for its type.

27You had multiple opportunities to desist yet, you instead persisted in circumstances where, according to some of your prior criminal matters, and indeed common sense alone, would indicate that you simply should have known better.  I reject the submission that police conduct in attempting to ram you off the road on the Western Ring Road made some contribution to the dangerousness of some aspects of the incident.  You are wholly responsible.

28As will be revealed, your offending occurred in the context of drug use and abuse, immaturity and intellectual disability.  I see this final factor as being particularly relevant to the sentencing exercise.

Victim impact statements 

29Before I turn to those matters, I have had recourse to four victim impact statements tendered by the prosecution and as authored by police officers Andrew Gosnold, Ash Barry, Lachlan Webb, and Georgia McNamara.

30The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice system process by informing the court about the effects of your crime upon them.

31Andrew Gosnold spoke of his significant anxiety for several months afterwards and struggling to sleep.

32Ash Barry, after 15 years in the police force, states that this is the first time that he had real and genuine fears of being seriously injured - he literally thought he was going to die, he worried about his children being orphans, his de facto wife being a widow.  He does state that he has not experienced ongoing emotional distress or trauma.

33Georgia McNamara states that the events that unfolded are still haunting her to this day as do her thoughts on 3 June 2020 that “someone is going to die today”.  She does not believe that she is suffering any psychological or emotional distress or trauma from this incident but clearly has recollection of the events and emotions she felt at the time.

34Lachlan Webb’s victim impact statement was read to the court so at least the impact of your offending upon him cannot be lost upon you.  He had only been in the police force six weeks at the time of your offending.  He feared for police members, he feared for other members of the public.  He says he has chosen to use these events as a learning outcome and to give him understanding of how something has the potential to be life altering.

35It is certainly important through this process that you do have an understanding of how your actions impact on others besides yourself.  The victim impact statements tendered serve to highlight some of those impacts.

Plea of guilty

36In terms of your plea of guilty, you entered pleas of guilty to all charges at committal proceedings after negotiation.  The Sentencing Act obliges me to take into account the stage at which you entered such pleas.  In the circumstances I consider yours to be at an early stage.

37There is clear value in saving the victims and witnesses the need to give evidence, and utilitarian value in saving the community the expense of a trial.  These factors will be taken into account in your favour.  I also acknowledge that the pleas have occurred during the court’s response to the COVID-19 pandemic and has additional utilitarian value.

Personal circumstances

38I know turn to your personal circumstances.

39You are now aged 20 years but were 19 at the time of your offending.

40You were born and raised in Melbourne, you father Steve worked as a plasterer and your mother Nina as a gaming attendant.

41You are the middle of three boys, you have an older brother Leonardo aged 22 and a younger brother Charlie aged 15.

42You suffered a number of health complications at birth and had behavioural and learning problems from a young age, repeating four year old kindergarten.

43Upon commencing primary school you were diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiance Disorder and were prescribed Ritalin which you were inconsistent in taking.  The condition itself made you prone to impulsivity and poor decision-making.

44Behavioural issues saw you expelled from secondary school and then you attended specialist schools before dropping out.

45At seven years of age, in 2008, you were taken to the Royal Children’s Hospital  child psychiatric unit for investigation and again diagnosed with ADHD and recommended to trial Ritalin.

46At 13 years of age a further psychological assessment was undertaken and you were assessed as having a full scale intelligence quotient of 67 which is consistent with a mild intellectual disability.  It appears that disability was in fact first identified when you were approximately 10 years of age.  When you were in Year 7 at Mount Ridley College, you were displaying both learning and behavioural difficulties which had led to those referrals.

47Your parents separated that same year and you remained living with your mother and brothers whilst maintaining close contact with your father.  Your substance abuse issues commenced around the same time.

48Perhaps not altogether surprisingly, your criminal history commenced shortly thereafter.

Criminal history

49On 17 May 2016, you appeared at the Broadmeadows Children’s Court in relation to charges of theft of motor vehicle.  At that time, you were placed on an bond without conviction for a period of six months.  This included conditions that you engage with the youth substance abuse service and made other referrals.

50On 7 March 2017, you appeared at the Ringwood Children’s Court in relation to three charges of armed robbery, eight charges of theft of a motor vehicle, further charges of burglary, theft, unlicensed driving and committing an indictable offence whilst on bail.  At that time, you were placed on a youth supervision order for a period of nine months also without conviction.

51On 8 May 2017, you appeared at the Melbourne Children’s Court on charges of assault in company, theft, and trespass.  You were placed on probation for a period of six months.

52On 28 November 2017, you appeared at the Melbourne Children’s Court in relation to a charge of unlawful assault and were again placed on another good behaviour bond for a period of some three months.

53On 22 August 2018, you appeared at the Heidelberg Children’s Court for charges of dishonestly receiving stolen goods, driving a motor vehicle without a licence, and failing to state your name and address.  You were placed on a good behaviour bond for a period of nine months.

54On 12 April 2019, you appeared at the Melbourne Children’s Court in relation to a range of offences which included thirteen charges of theft of motor vehicle, three charges of burglary, four charges of theft, ten charges of committing an indictable offence whilst on bail, six charges of unlicensed driving, careless driving, failing to stop a vehicle on police direction and various other offences.  You were placed on a youth supervision order for a period of eight months.  This order was also made without conviction.

55Summaries of your prior offending were submitted by the prosecution detailing a relevant history for car theft and what could colloquially be described as ‘hoon driving’.  A VicRoads history was also provided containing five separate matters, two of which were for careless driving and two of which were unlicensed driving.

56The sentencing consideration of the Children’s Court are understandably and considerably different from that of the adult jurisdiction.  However, in the past it is clear that you have been placed on a range of supervisory orders designed to facilitate your rehabilitation and that, at first blush, they appear to have failed to assist you in any meaningful way.

57You are not to be punished for these prior matters a second time but they do have relevance to the weight that should properly be given to specific deterrence - that is putting you off further offending – denunciation, and the need to protect the community from your offending.  Relevant also to these considerations is your recognised intellectual disability to which I will now turn.

Intellectual disability

58A report authored by Anna McLaren, neuropsychologist, dated 31 January 2021 has been tendered on your behalf.  Ms McLaren has also prepared an addendum report dated 22 February 2021.

59Before I turn to that, numerous other letters and reports were also tendered outlining various assessments of you that have taken place over the years.  Whilst not doing those documents any justice, they confirmed the early identification of your borderline range of intellectual disability which appears, as I said earlier, to have been identified when you were aged approximately 10 years.  They also confirm earlier diagnosis of Attention Deficit Hyperactivity Disorder. I have had recourse to all documents tendered on your behalf.

60It also appears from the materials tendered that around March 2020 you qualified for a number of supports through the National Disability Insurance Scheme including positive behaviour support and occupational therapy which were designed to support you to obtain a degree of independence.  It is unclear as to whether or not the intended and recommended services were able to be implemented prior to you being remanded into custody, but I note that your qualification for those services occurred right as the COVID-19 pandemic hit Melbourne and, at the same time, you were removed from a program called the Synergy Program which had been of enormous assistance to you, again, as a direct result of the COVID-19 pandemic.

61Ms McLaren’s initial neuropsychological assessment confirms that your premorbid level of intellectual functioning was estimated to be within the borderline range.  She estimated your full-scale IQ to be at 67 which is within the extremely low range as she describes.  You are not considered to have a traumatic or acquired brain injury.  She accepts that your mild intellectual disability combined with a diagnosis of Attention Deficit Hyperactive Disorder should be considered as developmental in nature and hence permanent,
long-standing and in existence at the time of your offending.

62Your cognitive difficulties are also likely to be further compromised during times of substance use as was the case at the time of your offending.  Ms McLaren sees your drug use as a key factor to your risk of further reoffending.  She sees merit in you working with the NDIS scheme and sees merit in you being connected with a clinical psychologist which has assisted you in the past.

63Ms McLaren’s addendum report dated 22 February 2021 clarifies that your level of intelligence means you will have difficulty reasoning through and appropriately judging situations as well as understanding socially conventional behaviour.  You are likely to be vulnerable and gullible to the influence of others.  I accept that this does, in effect, make your time in custody more difficult or at least places you at greater risk than those more equipped to navigate that setting.  Ms McLaren also opines that your concrete thinking may mean that learnings from past behaviours may be more difficult for you to achieve.

64On balance, from the material before me I am satisfied that there is in effect a causal link between your intellectual capacity and your offending behaviour such as to reduce your moral culpability.  Further, there is a basis to reduce, or moderate, the weight that should attached to both general and specific deterrence.

Young offender

65In addition, at just 20 years of age as of today, you are considered to be a young offender for sentencing purposes.

66In the decision of Azzopardi; Baltatzis; Gabriel (2011) 35 VR 43; at [34]-[36] Redlich JA made clear the reasons to prioritise youth as a sentencing consideration. These include that ;

Young offenders are immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;

It is recognised by the Courts the increased potential for young offenders to be rehabilitated, which is of course in the public interest; and

Incarceration can impair, rather than enhance, a young offender’s prospects of rehabilitation.

I accept that these considerations all have application to your case.

67I do not consider the gravity of your offending to be such as to reduce the mitigating the impact of your youth.

Time on remand

68In terms of your time in custody, this is your first exposure to the adult custodial setting.  You have now spent 301 days on remand having previously spent three brief periods for other matters of detention in a Youth Justice Centre.

69You have found the adult setting challenging.

70You have been involved in a number of incidents.  These will not be held against you but serve to highlight the difficulty you appear to have in adjusting to that environment.

71In addition, at various times you have been subject to remand during Correction’s response to the COVID-19 pandemic.  This has included 14 days isolation on entry to the system and, at certain points in time, less access to physical activity, less access to courses and programs and until recently it has meant no physical visits. Given the closeness and importance of your relationship with your mother this would have been extremely difficult for you.  I take these matters into account in a general sense.

S317AF offending

72The two charges of aggravated reckless exposure of a police officer to risk by driving pursuant to section 317AF(1) of the Crimes Act 1958 are each category two offences pursuant to s.3(1) of the Sentencing Act. Pursuant to s.5(2H), the Court must make an order pursuant to Division 2 of Part 3 of the Sentencing Act, other than a combination sentence, for these offences unless the Court is satisfied on the balance of probabilities that one of the circumstances set out in subsections (a) to (e) exist.

73In your case reliance is not placed on those circumstances, rather, that the Courts powers, in the proper exercise of the provisions contained in s.5(2H) and, in consideration of all relevant sentencing matters, should see you placed in a Youth Justice Centre. The Crown do not seek to challenge that submission.

Youth justice assessment

74Accordingly, I have had you assessed as to your suitability for a Youth Justice Centre order. Section 32(1) of the Sentencing Act requires that if a sentence involving confinement of a young offender is justified, a court may make a Youth Justice Centre order if it has received a pre-sentence report, and, either believes there are reasonable prospects for the rehabilitation of the young offender, or, it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison.

75Further, in determining whether or not to make a youth justice centre order, a court must also consider the nature of the offence; and the age, the character, and the past history of the offender.  I have been through those aspects.

76A suitability for Youth Justice Centre order pre-sentence report dated 24 March 2021 and authored by Mr Gene Bell, senior court advice officer, has now been received.  Mr Bell is a trusted source in this arena.

77His report details that there have been approximately six incidents reported whilst you have been in the adult system on remand.  Whilst this is certainly concerning, it appears, as I have said, to represent the very real difficulty you have faced in adjusting to that setting.  You have been stood over by other prisoners and have been approached to participate in activities that would see you placed under a management regime.

78You have done your best to survive in that environment in the sense that you have gained a position working in the laundry which you do each day between the hours of 8am and 4pm.  You have tried to keep yourself isolated and away from such influences.  Mr Bell describes you as essentially trying to hide from the general population as you are fearful of them.

79You have been moved on a number of occasions and that fact, in combination with a reduction of available services during the COVID-19 pandemic, has meant you have had real difficulty accessing programs despite your reported willingness to do so.

80Your adult remand experience already, and overall, has utility with regard to specific deterrence. This also appears evident in the way you have responded to Mr Bell.

81Mr Bell described you as presenting as particularly keen to engage in the interviews held with him and to openly expressing a desire to work with Youth Justice.  It would appear that you are showing considerable insight in that you told Mr Bell that your time on adult remand has helped you realise that you need to address the areas of your life that have led to your criminal offending.  Furthermore, you are disappointed in yourself for returning to old behaviours during a high stress period of your life.  You have recognised that substance use and negative peers are key contributors to your offending.

82Your most significant support in recent times, apart from family, was the time you spent with the Synergy Program, as part of previous court orders.  As I have referred, it was cancelled during the COVID-19 pandemic and you fell back to drug use and poor associations.  You only had one module left to complete a certificate in automotive studies.  Apparently, that program is no longer funded but it has shown you the benefits of a supportive work environment and has highlighted your particular interest in pursuing the automotive field.

83Given your prior history you do have an established familiarity with Youth Justice and its programs.  Mr Bell describes you as having some positive outcomes with Youth Justice services and that in the past you have demonstrated a capacity to learn, develop, and engage in therapeutic interventions as well as to address issues which are pertinent to your offending.  He rightly comments that the offences for which you are now before the court are both disappointing and concerning given the otherwise reported positive progress you had made in the community.

84The pre-sentence report confirms that Youth Justice would be able to engage with service providers under your NDIS funded package.  I have already commented that you are well supported by family.

85Indeed, your mother has provided a reference.  During the COVID period she completed an online Certificate IV in Disability and has now enrolled in a Diploma of Community Services.  She has maintained her support of you in speaking to you on a daily basis whilst you have been in custody although was not able to visit you during the Victorian lockdown.  In her conversations with you she describes your remorse and her disappointment at your offending given you had been almost a year without intersection with the criminal justice system - which she largely attributed to your involvement in the Synergy Program.  She confirms that being sent home due to lockdown saw your access to that program cease and you to became re-involved with drug use and poor associations as I have already referred.  She clearly offers you ongoing support.  I accept from her reference and your response to Mr Bell that you are remorseful for your offending.

86An email authored by Natasha Rinaldi, Advanced Case Manager of Youth Justice, dated 17 February 2021 confirms that you were subject to an eight month youth supervision order between 12 April 2019 and 11 December 2019 which was outlined when I addressed your prior criminal history.  She describes your attendance as positive and that you were engaging satisfactorily with Youth Justice.  You presented as polite and forthcoming and your accommodation with your mother and brothers was seen as stable and stabilising.  In terms of your involvement with the Synergy Program you reportedly enjoyed the work and your attendance and engagement was positive.  It was after that time that you were linked in with the National Disability Insurance Scheme.  You were also actively working with a psychologist, Christine Harding, and youth substance abuse services in relation to a drug usage.

87A letter authored by Hala Choucair, Youth Justice Case Manager, dated 2 March 2020 reflects on a period of deferral prior to being placed on the same youth supervision order to which I have referred and also reflects on the youth supervision order itself.  In that correspondence you were described as respectful and polite and to showing a preparedness to engage in programs.

88This gives clear insight to the value that may well be possible to both you and ultimately the community in further involvement with youth directed supports.

89You are assessed as suitable for a Youth Justice Centre Order.  Mr Bell describes you as continuing to feel vulnerable to the behaviours and manipulation of older prisoners.  You have had difficulty adequately adapting to the pressures and challenges of that environment.  You are assessed as being particularly impressionable and likely to be subject to undesirable influences in an adult prison.  I accept his assessment.  Further, the report details that, in combination with the complexities of your intellectual disability, and your demonstrated capacity to apply yourself to further training and education, plus your willingness to do so, you were assessed by Youth Justice as having reasonable prospects for rehabilitation.

90Bearing in mind your participation in previous Youth Justice programs, your efforts to “hide yourself” in the adult system, the availability of NDIS programs and the support from family, I also accept this aspect of his assessment.  It seems this will be contingent on your ability to comply with programs and your ability to avoid drug use and previous associations.

Sentencing

91The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I am required to have regard to a range of matters, which include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.  I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as is possible, that offenders are rehabilitated and reintegrated into society.

92I have taken into account the relevant sentencing purposes referred to in s.5 of the Sentencing Act where it is relevant to your case.  I have also taken into account current sentencing practices for the offences to which you have pleaded guilty and I am grateful to your legal representative for referring me to at least 10 cases to which I have had recourse.

93Before I turn to sentence, licence disqualification is required in relation to the related summary offence of drive in a manner dangerous.  In relation to that offence, any licenses held are cancelled and disqualified for a period of six months as of today’s date.  

94Section 89A of the Sentencing Act requires me to turn my mind to licence disqualification in relation to Charge 1, theft of motor car and I do so for a period of six months; that is, all licences held are cancelled and disqualified for a period of six months.

95In addition, the charges on the indictment of aggravated recklessly exposing an emergency worker to risk are each serious motor vehicle offences.  Section 89 and s.87P of the Sentencing Act require that I cancel and disqualify any licenses held for a period of 24 months and I make that order.  I do not seek to extend beyond that period.

96In relation to Charges 1, 4 ,5 ,6 and 7 on the indictment, I do propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts, or form, or are part of, a series of offences of same or similar character.  In so doing, I also bear in mind the principles of both totality and proportionality, principles which also have application to the charges on the indictment as well as the summary offences.  It appears to me that two of the summary offences, a charge of drive in a manner dangerous and unlicensed driving, are also part and parcel of your offending of 2 and 3 June 2020 and that they could properly form part of an aggregate sentence.

97The two summary charges of commit indictable offence whilst on bail and two of contravene a conduct condition of bail can each also be separately dealt with by way of aggregate sentence.

98Indeed, in relation to the four summary charges relating to bail, bearing in mind the matters to which I’ve already referred and the low maximum penalty, you are convicted and to be detained in a Youth Justice Centre for a period of one month as an aggregate.  That sentence is concurrent with the other sentence I am about to impose.

99In relation to Charge 3, that of damage property, bearing in mind it is low level and again the principle of totality, you are convicted and discharged.

100In relation to the offences on the indictment of theft of motor vehicle, reckless conduct endangering serious injury, dangerous or negligent driving and police pursuit, and the two charges of aggravated reckless exposure of a police officer to risk by driving, and the summary offences of unlicensed driving and drive in a manner dangerous you are convicted and to be detained in a Youth Justice Centre for a period of two years and eight months as an aggregate.

101301 days are reckoned as having already being served.

102Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years and 10 months in a Youth Training Centre.

103I note that there are no ancillary orders sought.

104As best that you are able, Mr Pathmaraj, is there anything I have missed?

105MR PATHMARAJ:  No, Your Honour.  Can I just clarify just in relation to the bail offences, was that a one-month part of the aggregate sentence just to clarify, was it?

106HER HONOUR:  There are four bail offences.

107MR PATHMARAJ:  Yes.

108HER HONOUR:  I am imposing an aggregate sentence of one month which deals with all four of those matters.

109MR PATHMARAJ:  Yes.  All right.  Apart from that, Your Honour, nothing further from the Crown.

110MR de KRETSER:  And wholly concurrent on those?

111HER HONOUR:  Yes.

112MR de KRETSER:  Yes.  Thank you.

113HER HONOUR:  Anything I missed from your end, Mr de Kretser?

114MR de KRETSER:  No, Your Honour.  I think that was the only thing I wanted to make sure.  Thank you.

115HER HONOUR:  Thank you very much.  Well, I will do as indicated.  I will close the court now until 10.30 on Wednesday and give you the chance to speak with your client privately.

116MR de KRETSER:  As Your Honour pleases.

117HER HONOUR:  Thank you.

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