Director of Public Prosecutions v Whitton
[2024] VCC 64
•7 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MILDURA
CRIMINAL JURISDICTION
CR 23-01135
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYREECE WHITTON |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 22 November 2023 | |
DATE OF SENTENCE: | 7 February 2024 | |
CASE MAY BE CITED AS: | DPP v Whitton | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 64 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed Robbery
Legislation Cited: Sentencing Act 1991;
Cases Cited:Ha (a pseudonym) v R [2021] VSCA 64; Bugmy v R (2013) 249 CLR 571; Worboyes v R [2021] VSCA 169; R v Verdins & Ors (2007) 16 VR 269; Director of Public Prosecutions (DPP) v Lombardo [2022] VSCA 204
Sentence: 3 years and 6 months imprisonment with a non-parole period of 2 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Wilson | Solicitor from the Office of Public Prosecutions |
| For the Accused | Mr Thompson | Martin Middleton Oates Lawyers |
HIS HONOUR:
Introduction
1Tyreece Whitton, on 22 November 2023, in the Koori Court division of the County Court sitting in Mildura, you pleaded guilty to two charges of armed robbery, an offence which carries a maximum penalty of 25 years' imprisonment, and one charge of committing an indictable offence whilst on bail, which carries a maximum penalty of three months' imprisonment.
2As the armed robbery offences committed by you were committed in the company of one or more persons, these are Category 2 offences, requiring a custodial sentence to be imposed unless any of the matters set out s5(2H) of the Sentencing Act 1991 are enlivened.
3On 22 November 2023, you also admitted your criminal record.
Circumstances of your offending
4The circumstances of your offending were set out in the summary of prosecution opening for plea dated 1 November 2023, Exhibit A at your plea hearing.
5Your offending took place on 11 February 2023 in Robinvale in company with three other offenders: Emily Smith who was then aged 19, Rhythm Nixon-Harradine, who was then aged 22 and Olivia Baxter, then aged 18. The victims of the two armed robberies, Mohd Bin Azmi and Mohd Farizam Hamzah, resided in a share property in Robinvale. They shared a bedroom at the property, sleeping in separate beds.
6Mr Azmi was known to one of your co-offenders Ms Baxter, an individual whom the prosecution says was the primary instigator in the offending.
7Early in the morning of 11 February 2023, all four co-offenders including yourself attended at the property occupied by Mr Azmi and Mr Hamzah. Ms Baxter had earlier engaged in a text conversation with Mr Azmi, requesting to attend at the property for a cigarette. Mr Azmi had unlocked the front door upon learning of Ms Baxter's arrival and, seeing her sitting on the porch, he returned to his bedroom at which point he and Mr Hamzah observed all four of you standing in their bedroom.
8Ms Baxter took a cigarette from Mr Azmi's bedside table and began smoking. She picked up Mr Azmi's iPhone and said she wanted a new phone like this one and Ms Baxter then asked Mr Azmi for the passcode. When he refused, Ms Baxter became angry and began to repeatedly demand the passcode. At this point, Ms Smith told Mr Azmi that he should just give Ms Baxter the code or Ms Baxter would become angrier. Initially both Mr Azmi and Mr Hamzah did not take this seriously, thinking it was a joke.
9Whilst Ms Baxter was standing in front of Mr Azmi, who was sitting on the bed, she removed a kitchen knife which had been concealed within her pants and held it to the left side of Mr Azmi's neck. Mr Azmi leaned back in an effort to distance himself from the knife, but Ms Baxter followed, resulting in her being on top of Mr Azmi with the knife still held against his neck.
10At this point you then removed a machete from your waistband and told Mr Azmi to do what Ms Baxter said. You also hit Mr Azmi on his right knee with the back of the machete, using little force. At this point one of your co-offenders struck Mr Azmi to the head and body with a chain wrapped around their hand.
11You then grabbed Mr Hamzah by the throat and held the machete near his neck. You then told Mr Hamzah not to do anything, which made Mr Hamzah feel very scared.
12At this point either Ms Baxter or Ms Smith went to hit Mr Hamzah, but Ms Nixon-Harradine said, 'No don't hit him, he's a good boy'.
13Ms Baxter continued to go through Mr Azmi's phone and, after she opened the banking application, she took Mr Azmi's finger and placed it onto the phone to gain access via fingerprint verification. When this first attempt failed, Ms Baxter appeared to become more agitated and forcibly tried again. After gaining access, Ms Baxter asked where all Mr Azmi's money was. Ms Smith and Ms Nixon-Harradine also began asking Mr Azmi where his money was. All four of you then began searching the bedroom and taking both of the victims' possessions. During this time, both Mr Azmi and Mr Hamzah remained silently sitting on their beds.
14Various items were stolen from each of your victims. In relation to Mr Azmi, $300, two backpacks, some clothing, a PlayStation 3 and the iPhone were stolen. In relation to Mr Hamzah, a blue speaker, two pairs of sneakers, a jumper and a pair of sunglasses were stolen.
15Your conduct in jointly engaging in these offences, where both victims were robbed of various belongings whilst one of you had with them a knife, forms the basis of the two charges of armed robbery on the indictment. As you were at the time on bail for charges of drug possession, failure to answer bail and contravening a community corrections order from the Dandenong Magistrates' Court, your conduct also forms the basis of the related summary offence of committing an indictable offence whilst on bail.
16All four of you then left the bedroom, at which point Mr Azmi vomited. Both of your victims exited the front door of the property to see where the four of you went. Whilst your three co-offenders ran down the road, you paused at the end of the driveway, pointed the machete at Mr Azmi, who was then standing in the front doorway, and told him to get back inside.
17A housemate of the victims who was home at the time but in another room observed the immediate aftermath of the offending and recognised Ms Nixon-Harradine. Police were ultimately called and through a combination of descriptions and names given to police, together with a location search with regards to Mr Azmi's stolen iPhone, all four offenders including yourself were located and arrested within hours of the offences, when police located all of you at a property at Robinvale at around 10.25 am, where police observed all four of you sitting around a table under the carport at the far end of the driveway.
18You were interviewed by police later in the evening of 11 February 2023, where you responded no comment to the allegations when they were put to you.
Nature and gravity of your offending and your role in it
19In all the circumstances, I regard your offending as representing serious examples of the crime of armed robbery, appropriately described by the prosecution in written submissions as reflecting medium level seriousness for this type of offending.
20Your offending occurred in company with others, no doubt increasing the fear experienced by your victims and therefore increasing the seriousness of your conduct. Multiple weapons were involved, a knife, a machete, and a length of chain wrapped around a hand. Whilst I am not satisfied beyond reasonable doubt that the four of you engaged in a pre-planned or premeditated armed robbery, it is clear to me that you collectively attended for some sort of antisocial purpose in company and with some of you, including yourself, possessing dangerous implements. Whilst the machete in your possession was not particularised as an element of the armed robbery charges, your wielding of this self-evidently dangerous implement in the course of the armed robbery highlights the seriousness of this particular example of armed robbery. It must surely have increased the level of apprehension and fear on the part of your victims. Your victims were very much unsuspecting, as entry to the property was gained under false pretences, with Ms Baxter utilising her knowledge of one of the victims. The offending took place in the victims' home, a place where they were entitled to feel safe, particularly in the very early hours of the morning. Whilst neither of your victims made victim impact statements, I am satisfied that they would have been adversely impacted by the offending. By way of example, as all four of you left the bedroom, Mr Azmi vomited. As highlighted in the prosecution written submissions document dated 22 January 2024 Mr Hamzah in his statement to police referred to being very scared at the time of the offending, particularly when he saw the knife. Thankfully, however, notwithstanding the presence and use of weapons, no injuries were sustained to the victims.
21In terms of your role in this serious offending, as submitted by the prosecution, each of you jointly and actively participated in the commission of the offending, though, as conceded by the prosecution, Ms Baxter was the primary instigator. I am satisfied that you were an active participant in these armed robberies both through your presence and through your conduct once inside the bedroom. Whilst Ms Baxter held a knife to the neck of Mr Azmi, you removed a machete from your waistband and told Mr Azmi to do what Ms Baxter said, thereby encouraging and facilitating the commission of the armed robberies. Concerningly, although using little force, you used the back of the machete to hit Mr Azmi on his right knee. Whilst Mr Azmi was struck to the head and body, you grabbed Mr Hamzah by the throat and held the machete near his neck, telling him not to do anything. Understandably this made Mr Hamzah feel very scared. I find your conduct during the commission of these armed robberies to be particularly concerning. In addition to joining with the other co-offenders in searching the bedroom and taking the property of your victims, your conduct in particular with regards to the machete makes your role particularly prominent. Even as you left the scene, in contrast to your co-offenders who ran down the road, you paused at the end of the driveway and pointed the machete at Mr Azmi and told him to get back inside, thereby engaging in menacing behaviour even after the commission of the armed robberies. There was no suggestion by your counsel that your level of culpability for your offending was in any way reduced due to any mental impairment. In all the circumstances I find your culpability for the offending to be high.
Personal circumstances
22You are now 23 years of age, having been born in Mildura to Aboriginal parents. Much of your background was set out in your counsel's amended outline of plea submissions dated 14 December 2023, together with a historical psychological report from Ms Carla Ferrari dated 23 February 2022.
23Sadly, your childhood was marred by abusive and chaotic environments and exposure to violence. You spent the majority of your childhood in foster care in New South Wales. You are the youngest of two sons, with your brother being some four years older than you. You have reported having a number of other half-siblings, including a maternal half-sister Tamika, whom you have a positive relationship with and you hope to live with her upon your release from prison.
24Your parents separated early in your childhood due to family violence and your first recollection of subsequent contact with your father was approximately six years ago when you returned to Victoria. Your upbringing was unstable and disadvantaged, with exposure to and experience of violence by your father and mother's subsequent partners, which led to medical interventions and police involvement on several occasions. Child Protective Services became involved in 2000 and 2001 and ultimately in November 2007 you were moved into the New South Wales foster care system. A Department of Families, Fairness and Housing case plan report from 2001 was tendered at your plea hearing, documenting your exposure to family violence at an extremely young age. Concerningly, that document refers to the Robinvale police attending a domestic violence episode between your parents where you, at the age of two weeks, were located by police on the ground, covered in your mother's blood.
25Whilst you were initially it seems placed in care with your brother, you were separated from him for the majority of your time in care in the foster care system, which extended until 2017. You apparently reported bullying perpetrated by your foster siblings in different placements and, whilst you denied sexual or physical abuse whilst in care, you were apparently mistreated emotionally and psychologically and made to feel unwanted. You reported to Ms Ferrari feeling sadness each night that you were in care, missing your family and feeling responsible for your removal. Understandably, you have been tearful in recounting your foster care days, which were disjointed and traumatic and marked by the absence of any healthy role models other than your brother and an absence of role modelling with regards to parenting or family responsibilities.
26Your parents it seems have had their own difficulties, particularly with regards to addiction. Though you reconnected with your father in 2018, you apparently do not have contact with him. You have previously reconnected with your mother who as of 2022 was residing on the Central Coast in New South Wales. You have reported a close relationship with your brother, who has had his own personal challenges, and, as I have explained, you maintain a close relationship with your half-sister Tamika.
27You have had two significant romantic relationships in your life, the second relationship resulting in your son De'kai, who was born in November 2020 and now resides with your ex-partner's relatives in Melbourne and is the subject of DFFH involvement. Prior to your remand in custody you were having access to De'kai once a week, though this has not continued as a result of your incarceration. You have reported great sadness with regards to your separation from your son and concerns with regards to his upbringing and he clearly represents a significant motivating factor for you in the future.
28Perhaps unsurprisingly, given your disadvantaged background, you have limited education to the Year 10 level, where you apparently ceased school in the context of your association with negative peers who had introduced you to methamphetamine. You have no employment history. You started consuming alcohol at the age of 15 and cannabis at an even earlier age, 13. At the age of 16 you started using methamphetamine. Both cannabis and methamphetamines have been problematic for you.
29You have what can only be described as an extremely problematic criminal history. As conceded by your counsel, you have a history of violent offending, having been before the courts on some seven occasions and having been sentenced to community-based dispositions and subsequently escalating to terms of imprisonment in the context of your more recent offending. You have prior convictions for offences against the Bail Act. You have prior convictions for assault. Your most recent prior conviction involved a sentence of imprisonment imposed by Her Honour Judge Hampel from this court on 30 November 2022 for home invasion and other offences. Given the significance of that prior matter, the reasons for sentence from that sentence were tendered at your plea hearing. That offending involved you in company with other young males breaking into a residential property in Mildura and stealing various items, including motor vehicles. You apparently performed the role of lookout whilst your two co-offenders entered the property. Having read her Honour's reasons for sentence, Her Honour was clearly moved by your background and noted the effects of intergenerational trauma. Her Honour referred to powerful testimonials from your brother and your sister Tamika, which, given their significance, have also been tendered at your plea hearing before me. Her Honour also referred to the very emotionally powerful sentencing conversation in which you participated before Her Honour and, in light of all of the circumstances, particularly what was described as your remarkable progress during a period of sentence deferral which included a 16-week stay at a rehabilitation program run by Dardi Munwurro, Her Honour imposed a sentence of three months' imprisonment with regards to the home invasion, this sentence already having been served on remand, and imposed a conditional undertaking to be of good behaviour with regards to charges of theft and fail to answer bail, which I note was still operational at the time of the offending now before me.
30I have provided significant detail with regards to this most recent prior conviction for a number of reasons. Her Honour's reasons for sentence highlight your incredibly difficult personal background, and the efforts you then made to rehabilitate. However, in the face of an extremely lenient sentence given the gravity of the crime of home invasion, notwithstanding the imposition of this sentence on 30 November 2022, you were engaging in the armed robberies for which you now fall to be sentenced just a few months later, on 11 February 2023. That you would engage in such serious criminality so soon after being sentenced by Her Honour Judge Hampel, and in the context of your other criminal history, is highly concerning and in my view amplifies your level of culpability for the current offending. It also highlights the need for any sentence I impose to reflect the important sentencing purpose of specific deterrence. It is also relevant to an assessment as to your prospects for rehabilitation which now must be seen as somewhat guarded. And, finally, it is relevant to the need to protect the community from you.
31In terms of your mental health and psychological functioning, a current psychological assessment appears not to have been undertaken with regards to the matters now before me. By way of background, Ms Ferrari in her 2022 report refers to a family psychiatric history and instances of deliberate self-harm by you.[1] As at the time of her report, Ms Ferrari indicated that you met the diagnostic criteria for post-traumatic stress disorder together with various substance use disorders. She also referred to a persistent depressive disorder.[2] According to Ms Ferrari your history of problematic polysubstance use from the age of 13 appears to have developed as a form of self-medication for your PTSD, anxiety, depression, and related emotional dysregulation.[3] Ms Ferrari refers to you previously having been prescribed medication with regards to low mood. Again, by reference to your prior matter, Ms Ferrari expresses the opinion in her report that imprisonment would likely weigh more heavily upon you , given your post-traumatic stress disorder and depressive disorder, than a person without such conditions.[4]
[1]Psychological report of Carla Ferrari dated 23 February 2022, paragraphs 48-49.
[2]Ibid, 97.
[3]Ibid, 104.
[4]Ibid, 120.
32I will return to the issue of your psychological fragility and its impact upon any sentence of imprisonment in due course. I have concluded that your psychological fragility and difficulties do not reduce your moral culpability for your offending. However, the same cannot be said with regards to your deprived and disadvantaged background. Pursuant to well-recognised principles, I am satisfied that your personal background of severe disadvantage and exposure to trauma has no doubt impacted upon your moral development as you have grown into a young man. The mitigatory aspects of this are significant and do not reduce over time, notwithstanding repeated criminal behaviour on your part. I am satisfied in a general sense that your moral culpability for your offending is lessened by virtue of your background of severe disadvantage and deprivation.[5]
[5] Bugmy v R (2013) 249 CLR 571.
Sentencing factors
33In formulating an appropriate sentence in your case, I am required to have regard to various factors. I have already referred to some of them: the maximum penalties for the offence of armed robbery and committing an indictable offence on bail, the nature and gravity of your offending, its impact upon your victims, your level of responsibility for it, and your personal circumstances. In addition to these factors, there are a number of other mitigatory factors relevant to the sentence I will impose.
34You were 22 years old at the time of the offending and you are currently aged 23. As conceded by the prosecution, whilst you are not considered to be a young offender pursuant to s3 of the Sentencing Act 1991, you are nevertheless a youthful offender, and the court must have appropriate regard to the principles applicable to the sentencing of youthful offenders and the importance of facilitating rehabilitation.[6]
[6]R v Mills [1998] for VR 235
35Again, as conceded by the prosecution, the indication by you of a plea of guilty at the third committal mention on 5 July 2023 represents a plea at the earliest opportunity, warranting a significant sentencing discount. Through your early plea of guilty, your victims have not had to relive the experience of being robbed at knifepoint and, through your plea of guilty, contested proceedings with the associated delays and costs have been avoided. Your plea of guilty was indicated and indeed entered whilst the adverse impacts of COVID-19 on the listing of contested matters was still operative so that an increased discount on sentence is warranted.[7]
[7] Worboyes v R [2021] VSCA 169.
36Furthermore, I am satisfied that your early plea of guilty demonstrates your acceptance of responsibility, your willingness to facilitate the course of justice and, in combination with the nature of your participation in the Koori Court sentencing conversation, the details of which I will soon articulate, warrants a further sentencing discount on the basis of your remorse for your criminal offending. A positive finding with regard to your remorse is relevant as to an assessment with regards to your prospects for rehabilitation.
37On 22 November 2023, you voluntarily participated in the Koori Court sentencing conversation procedure at the Mildura Koori Court, where you formally entered your pleas of guilty to these charges. This was something that you did not need to do and your voluntary participation in the sentencing conversation very much stands to your credit. Whilst you were at least initially rather reserved and softly spoken, over time a rapport was developed between you and the elders and I am satisfied overall that you engaged openly and conscientiously in what must have been a confronting hearing. I note that you also participated in a sentencing conversation before Judge Hampel in November 2022 with regards to the prior offending.
38I note from Her Honour's reasons for sentence that that sentencing conversation was extremely emotional. It is to your credit that you willingly engaged in such a procedure again, knowing just how challenging it would be. You submitted yourself to the shaming aspect that us integral to the Koori Court sentencing conversation. Rather than relying upon counsel to make submissions on your behalf, you engaged directly with the elders with regards to your offending and, although in my view you were reluctant to articulate precisely why you engaged in this serious criminality, in my view you did take appropriate responsibility for it.
39Participation in a sentencing conversation is more burdensome than appearing at a traditional plea hearing, warranting a sentencing allowance in your favour. As I have stated, in combination with your early plea of guilty, your participation in the sentencing conversation provides an evidentiary foundation for a positive finding with regards to your remorse for the offending. In the conversation with the elders, you were quite emotional when discussing your family and you spoke of a desire to change and to become more connected to culture. It was clear to me that your desire to restore relations with your young son in particular represents a considerable motivating factor for you. Overall, I was impressed with your participation in this onerous procedure, the Koori Court sentencing conversation, and your participation in it represents a mitigatory factor in the sentencing exercise of some significance.
40Furthermore, on a related issue, your Aboriginality represents a significant matter in the sentencing exercise. You are a 23-year-old Aboriginal man with an extremely difficult history and, as Her Honour Judge Hampel noted in her 2022 sentence, in many ways your family background is emblematic of the catastrophic impacts of intergenerational trauma brought about by colonisation which has wreaked havoc on the Aboriginal community, with its effects inexorably linked to the over-representation of Aboriginal people in custody. As has been stated in the Court of Appeal in this state, courts have a duty to be conscious of the need to avoid compounding these disproportionate incarceration rates, unless there is a good cause to do so.[8] Within the confines of orthodox sentencing practices, I am of course acutely aware of the consequences of imposing a custodial sentence upon an Aboriginal offender.
[8]Ha (a pseudonym) v R [2021] VSCA 64, 59.
41You have been in custody now for 314 days, your longest time in custody to date. Having regard to your psychological make-up and fragility, as referred to in the 2022 report from Carla Ferrari, I am satisfied that custody is more onerous for you, particularly having regard to your prior diagnosis of post-traumatic stress disorder and major depressive disorder, such that a mitigatory allowance is warranted.[9] I am also acutely aware that, whilst you have apparently had regular communications with your brother, half-sister and other family members, you have necessarily had no contact with your three year old son, which no doubt has reinforced the gravity of your predicament. To your credit, you appear to have used your time in custody productively and, whilst I was not provided with any documentary proof, in the circumstances I accept what I was informed from your counsel that you have undertaken several rehabilitative courses which have been culturally appropriate and you have also undertaken work in the prison kitchen.
[9] R v Verdins & Ors (2007) 16 VR 269.
42Your counsel submitted that your prospects of rehabilitation were fair and tied to your ability to address your diagnosed conditions, abstain from illicit substances and engage with medical and other treaters upon your release from custody. I accept that you were genuine during the sentencing conversation in articulating your desire for change, your need to connect better with your cultural community and generally to make a better life in order to be a real father to your son De'kai. I understand that you have accommodation available to you in the Robinvale area with your sister. Nevertheless, the reality is that you fall to be sentenced for serious offending committed just a few months after the imposition of a lenient sentence from Judge Hampel in the County Court on a background of problematic prior criminality. Other than wanting to assist others, you have not provided a meaningful explanation for your commission of the armed robberies. In my view, your prospects for rehabilitation must be seen as somewhat speculative and very much dependent upon your ability and willingness to grasp the specialist interventions which will hopefully be made available to you through a parole component of the sentence I will soon impose, to assist your reintegration to the community.
43In formulating an appropriate sentence in your case, I have also had regard as required by the Sentencing Act 1991 to current sentencing practices for the crime of armed robbery in particular. Clearly, consistent with the maximum penalty, previous sentencing decisions have highlighted the serious nature of this type of offending and the need for any sentence to reflect the important sentencing purposes of general deterrence, denunciation and protection of the community. Notwithstanding your early plea and positive participation in the Koori Court sentencing conversation, given your problematic criminal history I am satisfied that specific deterrence also is an important sentencing purpose in your case.
Considerations relevant to armed robbery committed in company - s5(2H) of the Sentencing Act 1991
44As I stated at the outset of my reasons, the commission by you of these offences in company means that these offences are Category 2 offences so that a custodial sentence is required unless an exception under s5(2H) of the Sentencing Act 1991 exists. Your counsel relied upon the exception contained in s5(2H)(e), submitting that your personal circumstances engage this exception as they give rise to substantial and compelling circumstances which are exceptional and rare. As set out in paragraph 78 of your counsel's amended outline of plea submissions dated 14 December 2023, the factors relied upon are your background of deprivation, your relative youth, your early plea of guilty, your parental responsibilities and your participation in the Koori Court sentencing conversation. In a realistic concession on your behalf, your counsel conceded that it would be open to the court to find that the circumstances are substantial and compelling but not exceptional and rare. In contrast, the prosecution submitted that no exception to mandatory sentencing with regards to these Category 2 offences had been established and accordingly the court must impose a custodial sentence.
45In conducting my own evaluation with regards to this exception, the circumstances relied upon must not only be powerful but also wholly outside the run-of-the-mill factors seen in offending of the relevant kind.[10] First, I must consider whether there are substantial and compelling circumstances, which involves a consideration of whether those circumstances are weighty and forceful or powerful. In conducting that assessment, I must regard general deterrence and denunciation of your conduct as being more important than other sentencing purposes such as just punishment, specific deterrence, rehabilitation and protection of the community from you. I must also give less weight to your personal circumstances than to the nature and gravity of your offending and I must not have regard to your previous good character (other than an absence of previous convictions or findings of guilt), an early guilty plea, your prospects of rehabilitation or parity with other sentences. In determining whether there are substantial and compelling circumstances, I must have regard to Parliament's intention that, in sentencing an offender for a Category 2 offence, a custodial sentence should ordinarily be made, and I must have regard to whether the cumulative impact of the circumstances of your case would justify a departure from such a sentence. If I find that the circumstances are substantial and compelling, the second step in the analysis requires me to consider whether these circumstances are also exceptional and rare, this phrase referring to circumstances that are wholly outside the ordinary factors typical of the relevant offence.[11]
[10]Director of Public Prosecutions (DPP) v Lombardo [2022] VSCA 204, 63.
[11]Ibid.
46In written submissions from both your counsel and the prosecution, reference was made to various sentencing authorities dealing with s5(2H)(e) and I am of course aware of those authorities and the overarching principle that this is a high hurdle to clear in order to avoid the imposition of a mandatory custodial sentence. Of course, each case is necessarily fact-specific.
47As one of the factors said to constitute substantial and compelling circumstances that are exceptional and rare, your counsel relied upon your early plea of guilty. I note for completeness that this consideration is expressly excluded by s5(2HC) of the Sentencing Act 1991. In your case, having carefully considered all of the relevant circumstances and having regard to the statutory provisions to which I have referred, I have determined that whilst your circumstances may be substantial and compelling they are not exceptional and rare. I am not satisfied that the cumulative impact of your circumstances justify a departure from the imposition of a custodial sentence. The mitigatory matters relied upon by your counsel and referred to in my reasons for sentence, however, do constitute a significant constellation of mitigatory factors impacting on the sentencing exercise. Put simply, those factors impact upon the length of the custodial sentence I am about to impose, together with the parole eligibility component that will form part of the sentence.
48In formulating an appropriate sentence in your case, I am conscious of the need to reflect the distinct criminality associated with each charge on the indictment, given that there are two separate victims. However, in my view your offending can best be described as one overall incident, albeit with two victims involved. A measure of some cumulation is required, subject to the overarching principle of totality and bearing in mind the sentiments that I have just expressed.
49Finally, in fixing an appropriate sentence and allowing for a parole eligibility component, I have had regard to the parsimony principle; that is the requirement not to impose a sentence that is more severe than that which is necessary to achieve the purposes for which the sentence is imposed. Having to the parole eligibility component, the purpose of parole is to provide for mitigation of punishment in favour of rehabilitation through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances.
50Mr Whitton, I now come to the time when I announce the penalties to be imposed.
Sentence to be imposed
51On Charge 1 on the indictment, armed robbery, you are convicted and sentenced to three years' imprisonment. This is the base sentence.
52On Charge 2 on the indictment, armed robbery, you are convicted and sentenced to three years' imprisonment.
53At the time of the commission by you of the armed robberies on 11 February 2023, you were on two sets of bail from the Dandenong Magistrates' Court and accordingly, on the related summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to one month imprisonment.
54I order that five months of the sentence imposed on Charge 2 on the indictment and the entirety of the one-month sentence imposed with regards to the related summary offence, be served cumulatively upon each other and upon the base sentence imposed with regards to Charge 1, making a total effective sentence of three years' and six months' imprisonment.
55I order that you serve a period of two years and six months before becoming eligible for parole.
56Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 314 days has been served by way of pre-sentence detention and I order that this be administratively deducted from your sentence.
57Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty of these offences I would have imposed a total effective sentence of four years and nine months' imprisonment with a non-parole period of three years and six months' imprisonment.
58There being no applications for ancillary orders, that completes my sentencing remarks. Mr Wilson, firstly, any issues or ambiguities with regards to the sentence I've just imposed?
59MR WILSON: No, Your Honour, thank you.
60HIS HONOUR: To you, Mr Thompson?
61MR THOMPSON: No, Your Honour, thank you.
62HIS HONOUR: Right. I'm going to stand down now, but the link to the prison will be made available for the next 10 minutes, Mr Thompson, to enable you to have a chat to Mr Whitton to ensure that he understands the sentence that I've imposed.
63MR THOMPSON: Thanks, Your Honour.
64MR WILSON: As Your Honour pleases.
65HIS HONOUR: Thanks.
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