Director of Public Prosecutions v Wilson

[2020] VCC 959

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 19-00363
CR 19-00637

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY DEAN WILSON

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Geelong and Melbourne
DATE OF HEARING:	Trial: 3, 5-7, 10-12 February 2020 Plea Hearing: 22 May, 19 June 2020
DATE OF SENTENCE:	29 June 2020
CASE MAY BE CITED AS:	DPP v Wilson
MEDIUM NEUTRAL CITATION:	[2020] VCC 959

REASONS FOR SENTENCE
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Subject:  Criminal law; Sentencing

Catchwords:  Aggravated carjacking; thefts; failing reporting obligations; resist emergency workers

Legislation Cited:  Sentencing Act 1991 ss 10A, 10AD
Cases Cited:  Bugmy v R (2013) 302 ALR 192;
  R v Verdins (2007) 16 VR 269; Mammoliti v R [2020] VSCA 52
Sentence:  Total: 3 years 8months; non-parole 2 years 9 months
  676 days pre-sentence detention

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	On Trial: Ms J Warren On Plea: Mr P. Raimondo	OPP
For the Accused	Mr R. Bhattacharya	Michael Brugman

HER HONOUR: 

1Ricky Dean Wilson, you are to be sentenced on a number of charges arising from your conduct between late February and late May 2018. 

2You were found guilty at trial earlier this year in Geelong, on a charge of aggravated carjacking.  You also pleaded guilty to three charges of theft, two of possession of a drug of dependence, one of failing to comply with reporting obligations, and two charges of resisting an emergency worker on duty. 

3You also agreed to have heard in this court and pleaded guilty to three related summary charges, being one of unlicensed driving, one of going equipped to steal and one of possessing a controlled weapon. 

4You have also admitted a substantial criminal history to which I shall refer later. 

5The most serious of the charges is the one for which you stood trial.  The charge of aggravated carjacking arose out of events late at night on 23 March 2018 in the car park inside the Eastern Gardens, Geelong. A young man, Mr Gledhill, and young woman, Ms Tucker, were sitting in the back seat of Mr Gledhill’s recently purchased black Ford XR6 car, when a white BMW sedan was driven into the car park, driven around and out, and then re-entered and stopped, facing the black Ford approximately one or two metres away. The driver of the white car flashed the car’s high beam lights on and off, and Mr Gledhill, whose window was slightly down, heard someone yell out, ‘Who is it?’ and he replied with his first name.  

6A young man then got out of the white car and walked towards the rear driver's side door of the black Ford where Mr Gledhill was seated.  That man demanded the car, saying words to the effect, 'I'm taking your car,' prompting Mr Gledhill to lean forward and grab his keys from the ignition. The offender then returned to the white car and opened the front passenger door, thereby illuminating the inside of the car, showing that there was at least a front seat passenger and probably another person in the rear seat. The offender then returned to Mr Gledhill’s window, holding a baseball bat, motioned that he was going to strike the window with the bat and, as Mr Gledhill tried to close his door, the offender opened it, demanded the keys and swung the bat towards Ms Gledhill, hitting him on the knees.   

7As this was occurring, Ms Tucker escaped from the car on the passenger side and ran and hid in some nearby bushes.  Mr Gledhill then got out of his car.  The offender snatched the keys from his hands and swung the bat at his right elbow, hitting him again.  Mr Gledhill then fled in the direction the young woman had taken and the offender got back into the black Ford and drove it out of the car park, following the white car.  Mr Gledhill then telephoned emergency services from his mobile phone, and police attended shortly afterwards.  The two victims gave descriptions of the car and the offender and his clothing. 

8The sole issue at the trial was the identity of the offender.  The verdict showed that the jury must have been satisfied beyond reasonable doubt that that was you. 

9The offence of aggravated carjacking is of its nature very serious, incorporating elements of the dishonest stealing of a vehicle, by using, or threatening force, and with an aggravating feature which in this case was the presence of an offensive weapon.  That was the only aggravating feature relied upon at the trial by the prosecution.

10The maximum penalty of 25 years' imprisonment reflects the objective seriousness with which Parliament regards offences of this nature.  Further, the fact that Parliament has introduced a mandatory minimum term for this offence is also an indication of its objective seriousness.

11This offence occurred after 11 pm in a relatively isolated location, when there were no other vehicles or people around, and the whole area was unlit.  The victims were sitting in the back seat of a car and had done nothing to attract your attention or provoke you or anyone with you in any way. There is nothing to indicate that the offending was anything other than opportunistic, and nothing to indicate that these particular victims or this car were specifically targeted. You were in company with at least two if not more others in the white car, although you acted alone in approaching the vehicle and threatening Mr Gledhill. The use of the weapon also appears to have been spontaneous, because you were not holding it when you first approached and demanded the car. On the other hand, compared with some other instances, it was over quite quickly and the victims were not detained in the car, nor were they driven or forced to drive you as the thief elsewhere. 

12I heard both Mr Gledhill and Ms Tucker give evidence during the trial.  Mr Gledhill made light of the actual injuries to his knees and elbow, and does not claim to have suffered lasting physical consequences.  However, the swinging of such a weapon at a person was clearly aimed at injuring him, and did so, although not seriously. Although neither victim has produced a victim impact statement, I am satisfied that each was frightened and shocked by the incident.

13Mr Gledhill, a car enthusiast, had bought for himself his Ford XR6 only six or so weeks earlier- obviously a personal achievement and point of pride for him. When it was found by police six days after this event, it had had its registration plates changed and was minus a wheel. It is not alleged that you kept the car or removed anything from it, nor that you kept the personal belongings of Ms Tucker including her purse which were in the car, and she lost despite efforts to recover them. 

14You have a considerable history of stealing cars.  Indeed, there are two charges of thefts of cars in the month before this incident, which you have said were done to get money for drugs.  The offence of carjacking, however, is much more serious as people were in the car and confronted by you and further, a weapon was used to put them in fear to achieve the theft. Moreover, in assessing the seriousness, I take into account that the baseball bat was used not merely as a threat of harm but twice actually used to strike Mr Gledhill. The offending involved actual physical violence in that regard, as well as a frightening confronting late at night, and must be viewed as considerably more serious than theft of a parked empty car.  

15The offence of aggravated carjacking in itself as I have said is very serious, occurring in the circumstances it did.  I assess this as above the lowest end, because of actual violence and the timing and isolation, but well below the more serious instances that potentially can and have occurred.

16As to the other charges, to which you have pleaded guilty, there are eight on a separate indictment, some of them closely related to the carjacking incident and some not. 

17Charge 1 is not.  It is of theft of a motor vehicle, a 2006 Ford station wagon belonging to Mr John Coatsworth, on 28 February 2018.  This car was parked in the street outside a milk bar with the keys in the ignition.  You stole it by driving it away.  This was unplanned, clearly an opportunistic offence, and the motor vehicle was recovered later the same day but without its keys. I accept from the victim impact statement that the owner felt violated and experienced considerable inconvenience being without transport for over a week. I read in his statement that there were also other keys in the car for both his work and his home, the disappearance of which was inconvenient for his work and led to feelings of insecurity in relation to his home. However, as the charge does not include theft of those keys, these were not strictly consequences of the theft of the vehicle. I do accept that the theft of this vehicle cause considerable inconvenience and some expense to the owner.

18The charge of theft has a maximum penalty of 10 years' imprisonment as a reflection of its potential objective seriousness, but in this instance is in the lower range for theft despite the inconvenience to the owner.

19At the time you stole this car on 28 February 2018, you did not have valid driver's licence, and that is the basis for the related summary Charge 4 of unlicensed driving, for which the maximum penalty is three months' imprisonment.

20Coming back to the charges on the second indictment, Charge 2 is of theft and relates to a white BMW sedan stolen on 23 March 2018, when parked in an open-air car park of apartments in Richmond. It is not alleged that you actually initially took that car, but you are charged with theft of it on the basis that you drove the vehicle later that night knowing it was stolen. That is the vehicle you were seen driving to and from a service station in Newcomb about 20 minutes before the aggravated carjacking took place some three to four metres away. It is the vehicle in which you travelled to the carjacking incident.   

21At the Caltex petrol station in Newcomb, you were seen on CCTV footage as the driver of the vehicle, filling it with petrol, and droving it away from the petrol station without paying for the petrol. This theft of petrol is the subject of Charge 3.  The maximum penalty for each charge of theft, that is of the second car and the petrol, is 10 years' imprisonment. While the cost of the petrol was less than $50, incidents like this are all too frequent and the sentence calls for general deterrence to send a message that theft of this type can attract serious punishment including imprisonment.   

22Charge 4 is of failing to comply with the reporting obligations under the Sex Offenders Registration Act.  You had been placed on the register in 2009.  Reporting obligations included notifying police of any change of address within 24 hours.  Between 4 April and 13 April 2018, you failed to notify police that you were no longer staying at your stepmother's address in Geelong, and had moved to stay with your mother at an address in Richmond. You did advise police of that move on 13 April 2018. You say that you did not advise it earlier because you did not have a phone at the time, and did not want to make the contact with police using a friend’s phone as any call back to that number would reveal the purpose of the call.  

23The maximum penalty for failing to comply with reporting obligations is five years' imprisonment.  The offence must be regarded as objectively of some seriousness, because the Sex Offenders Registration Act sets up a regime to try to ensure that registered sex offenders can be located whenever necessary. In this case, the prosecution concedes that this was more a reflection of the general disorder in your life at the time, rather than an attempt to avoid being able to be located. Indeed, although not within the required 24-hour period, nine days later you did notify of your change in residential address. I regard this as a relatively low level of seriousness for this offence, but you do have more than one prior conviction for failing to comply with reporting obligations under this Act, and so this charge requires the sentence to reflect the objective seriousness and general and specific deterrence.   

24Charge 5 is of possession of a drug of dependence.  When arrested, you were found to have 0.24 g of amphetamine and it is accepted that that was for personal use.  You were also found to have a small amount of cannabis for personal use and that is the basis of Charge 6. As each was a small quantity of a drug for personal use, and not for the purpose of trafficking, the maximum penalty on each of Charge 5 and 6 is one year’s imprisonment.  

25Charges 7 and 8 arise out of the circumstances of your arrest.  Each charge is of resisting an emergency worker on duty and relates to each of the two uniformed police officers who were attempting to arrest you. 

26At about 6.20 am on 27 May 2018, you were observed by two police officers in a patrol car riding a bicycle without wearing a helmet.  They asked you to stop but you rode away through a reserve in Reservoir and tried to hide the bike and yourself from them.  The officers chased you.  When the first officer, Constable Tran, reached you, you attempted to “face off” against him, so he deployed his baton and struck you and then wrestled you to the ground. The second officer arrived, but you continued to struggle against the two constables, trying to get one off your back. While you were on the ground. The second officer, Constable Castellano, again struck you with a baton on your arms and legs. A call for backup was made. You continued to resist their attempt to handcuff and arrest you, by moving and trying to get them off you on the ground. You were already on the ground and outnumbered and they did manage to handcuff you even before two further police officers arrived to assist them. 

27I read the statements made at the time by each police officer, and also each has made a victim impact statement which I have read. I am not satisfied, as I would need to be beyond reasonable doubt to find, that they were in the imminent danger that they each described. I do not accept that after the initial attempt to ride away, you were really likely to be able to escape police nor to do them serious harm. Constable Castellano describes you as not looking very large.   

28Constable Tran, the subject of Charge 7, in this statement at the time said that while on mobile patrol they saw you riding a bicycle in a Reservoir street, noticed you were not wearing a helmet and asked you to stop but you rode off into a reserve and they followed with emergency lights operating. Then he got out of the car and ran after you, and found you where you had got off the bike and hidden in the scrub. He says you shaped up with clenched fists and he yelled, ‘Police, don’t move’ and then deployed his baton and struck you and tackled you onto the ground. He said you began to wrestle with him on the ground and then Constable Castellano arrived and assisted to get you onto your stomach and he radioed for backup but you continued to resist. He had seen a syringe in your pocket by then.   

29In his victim impact statement, Constable Tran says he was so upset by this incident that he had to move to another police station.  He says that from when he first saw you, he knew something was “astray”.  I am concerned at the implications of that part of his statement, and it is to be hoped that his comment was not racially based.

30Constable Castellano is the subject of Charge 8 and he describes, in his statement made at the time, you as “heavily resisting” and that being the reason for continuing to strike you with his baton while you were on the ground and there were two police on top of you.

31I do not accept his statement that he believed that you were only seconds away from overpowering both of them.  I do accept that they were calling out to you to stop resisting, that they were at risk of being hit by you as you struggled, and that nevertheless you continued to struggle against them while lying on the ground. 

32Constable Castellano in his victim impact statement says he feels less safe in carrying out his duties because of this incident and believes he was at risk of being stabbed by you.

33On the summary before me, it is accepted by the prosecution that you had made no attempt to reach for or use the knife you had with you, and indeed, you disclosed it to the police before they searched you.

34I do not underestimate that police officers face personal risk when carrying out their duties, especially when interacting with people to question them about possible offending. However, I suspect that these police members' perceptions of the situation when writing their victim impact statements almost two years later are somewhat flavoured with some hindsight, as it was only after they obtained your name and ran checks that they became aware of your significant criminal history and that you were wanted for questioning on other serious offending.

35The offence of resisting emergency workers on duty, including police, carries a maximum of five years' imprisonment.  Objectively, it is not an insignificant offence, and the community requires that emergency workers be protected in the carrying out of their duties.  Nevertheless, and despite what each police officer has said in his victim impact statement, I regard these two charges as relatively low end instances of this offence.

36You should not have run away and certainly should not have physically struggled with them,  but there were clearly enough police to subdue you.  They used batons to do so, even to initially get you to the ground, and then continued to beat you with a baton on the ground and at that stage you were already outnumbered. Taking into account your history and personal circumstances, while your reaction should certainly not be condoned, it is understandable that you would not immediately be compliant with police asking you to stop to talk to them, even in relation to not wearing a bicycle helmet. It was certainly justified for police to stop you to ask about that, however, subduing you with baton strikes and wrestling you on the ground indicates that your resistance was ultimately destined to fail. 

37When arrested, you also had a 30-cm silver serrated knife about which you told the police without trying to use it.  That is the subject of summary Charge 17 of possessing a controlled weapon.  The maximum penalty for that offence is 12 months' imprisonment. I regard this incident of possessing a controlled weapon as at a low level of culpability for this charge in the circumstances.

38Finally, summary Charge 16, of going equipped to steal, arises from the fact that on your arrest on 27 May 2018 you had with you a backpack which contained a hammer, screwdriver, torch, a pair of gloves and a red bandana.  The maximum penalty for that offence is one year's imprisonment.

39You have pleaded guilty to all of the charges except the most serious one of aggravated carjacking.  For all of the charges for which you have pleaded guilty, you are entitled to some leniency in your sentence for saving the community the time and cost of disputed hearings, saving witnesses the inconvenience and in some instances stress of having to give evidence, and pleas of guilty for all of these were indicated early and reflect your acceptance of responsibility for that offending. There is also some remorse to be inferred from pleas of guilty in general, and although it is unclear in respect of each individual charge here, I accept that overall you have expressed some remorse for being involved in most of this offending.   

40In relation to the charge of aggravated carjacking, you do not receive a more severe sentence for exercising your legal right to stand trial, but you do not receive the leniency to which you would otherwise have been entitled.  I note, however, that there is some evidence of your feeling some remorse for the victims of the carjacking, expressed to psychologist Ms Lechner, who believed it to be genuine within the limits of your capacity to feel real remorse.  In the context of your own life experiences, I accept that this is probably as strong a feeling of remorse as you are likely to acknowledge.

41I shall tell you after imposing sentences what they would have been had you not pleaded guilty to 11 of these charges.

42I turn now to your personal circumstances.  You are now aged 25 and were 23 at the time of this offending. 

43You have a particularly difficult background, with a most disrupted childhood marred by exposure to parental substance abuse, violence, physical and emotional abuse and deprivation which led you into problematic behaviour and offending from an early age and, in adulthood, into what is already a sustained and serious criminal history. 

44You are the eldest of your parents' three children, born in Swan Hill.  Your parents separated when you were aged about four, and after that you lived mainly with your maternal grandmother for a number of years.  But you got into trouble from primary school age, had to leave several schools and with both of you parents abusing drugs, and at least your mother also suffering mental health problems, your whole childhood even through primary school was unstable.

45Much detail about your family and personal circumstances was put before me through reports to the Children's Court made in 2009 in respect of an extended protection order application, and then in 2010 in respect to offending at that stage.  I shall not repeat all of its detail but some does require mention.

46It is apparent that you were exposed from early childhood to physical violence, substance abuse by both your parents, and physical and verbal abuse by them.  You were aged only four when a child protection investigation was undertaken in 1998 into your being a child not protected from emotional or physical harm. By age five, after being removed from your grandmother’s care by your mother who at the time was not in a fit state to be caring for you or your siblings, a first order for Custody to the Secretary was made. Many further such orders were made. You lived with your maternal grandmother after that for a number of years and for many years had only limited contact with your mother and father.   

47Of more recent years, you have lived at times with your father and his partner, and you apparently have quite a good relationship with her.  Indeed, you have a better relationship with her than your own mother. It is with your stepmother that you were living in Geelong at the time of the carjacking. 

48You had what the Department called “a fractured educational history”.  That refers to your primary schooling when there were five changes of school.  You never attended a secondary school.  What further schooling you have had was whilst in youth detention.  

49It is clear that you became involved with abuse of alcohol before you were aged 10, and serious marijuana use from a very early age, probably about 10 or 11.  It is also clear that you were involved in misbehaviour ranging from absconding to direct involvement in criminal activity as well as substance abuse. It was reported in October 2008 on review of the custody order, that you were at serious risk of physical and emotional harm. Although you had not known physical medical illnesses, it is clear that your mental health was suffering. Apparently, you were diagnosed with ADHD and prescribed medication for that which you took until you were about 13.

50Attempts were made to involve you in education and training, with a pre‑apprenticeship course at TAFE in order to become a bricklayer, but you did not finish such a course, and have never engaged in any employment.  On the more positive side, from an early age and on a continuing basis, you had been noted to be physically active and to enjoy playing most sports, and being skilled at football and basketball.

51You are an Aboriginal man through your father's heritage, and have maintained connection with that cultural identity.  I read that over the years, you were in touch with a number of organisations which recognised your Koori heritage.  A report says that you had produced some impressive Aboriginal paintings in your mid-teens.  You were linked at that stage with Koori Kids Mental Health Service.

52It appears that when aged about 11 you moved to live in northern Queensland, initially with your paternal grandmother, but she struggled to manage your behaviours and you were then sent to live with a paternal uncle also in Cairns.  However, you were allegedly abused by him and returned to Victoria later that year.

53From 2007, you were in Parkville Youth Residential Centre on numerous occasions, sometimes under protection orders but also on remand, and sometimes serving custodial sentences. By 2010, you were living in Melbourne with a maternal aunt.  

54As I have said, I find that from early childhood your experiences were difficult, and deprived you of the stable nurturing to which every child is entitled.  I find that that left you not only undereducated formally, but without experience of behavioural parameters that most children are expected to learn through family and school. Between exposure to your parents’ drug abuse, violence, and mixing with other badly behaved children during your childhood, it is understandable that you turned to alcohol and drugs to try to cope, For an escape and for this reason, I am satisfied that you fall into the relatively small number of cases where the influence of drug abuse on your ongoing criminal behaviour is not to be regarded as wholly voluntary, and is capable of lessening your moral culpability as well as explaining the context of your offending.

55Your background has undoubtedly been taken into account by courts imposing many previous sentences, and I can see that various non-custodial sentences were attempted.  However, as the High Court stated in Bugmy's case,[1] the effects of profound deprivation do not diminish over time, and need to be given full weight in the determination of the appropriate sentence in every case.  It was also noted that the experience of growing up in an environment surrounded by [substance] abuse and violence may leave its mark on a person throughout life. 

[1]Bugmy v R (2013) 302 ALR 192

56I see from a report to the Children's Court in January 2010, that you had been sentenced in Melbourne Children's Court on 27 April 2009 for several sets of offences, the most serious being the one which resulted in your being placed on the serious sex offender register.  I have been given no details about that offence but note that the Children's Court placed you on the register notwithstanding that you were well under the age of 18 at the time. You were apparently released on parole in August 2009. That is only months after the sentence was imposed, and that was on the basis that you were to reside in the care of your maternal auntie, and specifically not the care of your father or mother, having absconded many times from your father’s care. Your youth parole order was cancelled and I do not have a fulsome description of all that happened at that time, nor of what has happened since since. However, I can see from your criminal history that you have spent repeated periods in youth detention and then in adult prison. You had only been released from prison some three months before the carjacking incident that brings you before this court.   

57You have admitted a formal criminal history dating back 10 years.  It consists of 17 court appearances of which nine were in the Children's Court.  As I have already mentioned, I am aware that you have a Children's Court history dating back even earlier than that, at least to 2007 when you would have been aged 13.

58In the last 10 years, that is based on your formal criminal history that is before this court, you have served multiple periods in youth detention, including in 2010 for offences committed whilst in youth detention, and following that, multiple offences of violence, damaging property and of dishonesty as well as escaping from custody, failing to answer bail and possession and use of drugs. In September 2011, you were sentenced for aggravated burglary with a person present; in April 2012, for an armed robbery and recklessly causing serious injury; in February 2013, for false imprisonment, all being dealt with in the Children’s Court. And relevant to some of the charges here, in January 2015 you were sentenced for failing to comply with reporting obligations, as well as thefts including theft of a motor vehicle.   

59There was a further sentence for aggravated burglary in January 2015 and other offences, relevant here, including failing to stop on police request, and assaulting a police officer, as well as contravening and failing to answer bail. In February 2016, you were sentenced for multiple offences including for breaching a CCO. Those charges again included assaulting a police officer, theft of a motor vehicle, use of GHB, and failing to comply with reporting obligations. The original sentence for that was 10 months’ imprisonment with custody recommendations focused on your being an Aboriginal person and recommending suitable assessment and supervision. On appeal in the County Court, the term of imprisonment was reduced to 250 days being time served to be followed by a CCO. However, the CCO was subsequently breached, and you were sentenced to an aggregate, at that stage, of six months’ imprisonment.  

60Further charges were dealt with in May 2017 including failing to comply with reporting conditions, theft of a motor vehicle and various driving offences.  An aggregate 12 months' imprisonment was imposed and it appears that was without a non-parole period.

61Finally, your last court appearance before the offending that brings you before me was, in October 2017, when you were sentenced to 60 days' imprisonment for recklessly causing injury, partly concurrent with another sentence being served at that time.  It appears as I have said that you were released from prison at the end of 2017. 

62Sadly, your long criminal history reflects entrenched behaviours of dishonesty, violence, use of drugs, resisting or assaulting police, and also failure to comply with reporting obligations under the Sex Offenders Registration Act.  [I am not sure who has a phone ringing but we can hear it.  All right.] 

63Various types of sentence which were clearly aimed at trying to assist you to break the cycle were attempted, but not successfully, and you contravened each CCO that was imposed of more recent years.

64There was a comment in 2010 in a report to the Children's Court that you were at risk of becoming institutionalised.  Your counsel submits that that has come to pass.  Clearly, with further periods in youth detention and then adult prison since 2010, that risk will have increased if not crystallised. 

65It appears that when released from custody, you have been unable or unwilling to abstain from drug abuse, or to stay clear of the friends who must influence or reinforce your impulses to turn to offending. 

66You were assessed by a psychologist, Ms Carla Lechner, earlier this month, and I have read two reports based on that assessment, the second additional after she had examined some of the records obtained by your lawyers from Justice Health.  Ms Lechner also had available to her some previous reports, including apparently a 2015 neuropsychological report, but neither that nor any of the other reports she had has been tendered before me.

67From the history Ms Lechner took, she accepted that you had been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) at primary school, and prescribed medication for that until about age 13.  From your presentation before her, including restlessness and fidgeting, she felt it likely that that had continued, and she diagnosed that you are suffering adult ADHD.

68On testing, your cognitive functioning was particular low in verbal intelligence - at the borderline range, apparently consistent with tests reported in 2015.  Your performance was slightly better in comprehension and expressive skills.  Ms Lechner was of the view that you may at times give the impression of being brighter than you actually are when it comes to critical thinking skills. 

69On a test for psychological distress, your score indicated that you are likely to have a severe mental disorder.  She also considered that you are suffering post-traumatic stress disorder (“PTSD”), particularly arising from a 2015 incident in which you witnessed the shooting of a cousin.  Her additional report confirms that such incident and diagnosis appears in the Justice Health records.

70You are also diagnosed both by Ms Lechner and apparently in the Justice Health records as having a chronic substance abuse disorder, in remission while in the controlled environment of prison.  Ms Lechner was of the opinion that your offending had arisen in the setting of a longstanding and chronic substance abuse disorder, most recently being “Ice” and GHB.  Your history was of complex developmental trauma that has undermined your social, vocational and emotional development.  You have genuine cognitive limitations. In addition to substance abuse disorder and PTSD and adult ADHD, she believed there was a severe problem with mood regulation in line with the Justice Health recording of a diagnosis of a Major Depressive Disorder.

71Your medication is currently methadone, and an anti-depressant and a medication for flashbacks and nightmares associated with PTSD. Apparently there have been difficulties at times whilst you have been in custody in maintaining consistency of dosages, and Ms Lechner notes that sudden short term ceasing of that medication makes your condition more difficult to handle, and has been difficult for you.   

72There has also been interruption and lack of continuity in psychological therapy in prison, and when you were moved to another prison, you lost contact with the therapist with whom you had started to engage.  Ms Lechner recommends, for the future, long term therapy with a consistent therapist, although she notes that is less likely to be able to occur in prison.

73Ms Lechner considered that you still present as cognitively, socially and emotionally immature, with a limited capacity to engage in reflective and consequential thinking.  Abstract verbal reasoning is a notable deficit.  You also seem to have genuine problems processing information, and in your attention span, that contribute to poor judgment and decision making.  She says you are inclined to act impulsively on partial information or to follow the lead of others without critically thinking about the potential outcome. You are however, able to identify some triggers to your negative feelings although you lack adaptive stress and mood management strategies. She assesses you as currently reporting symptoms which would be of likely severe mental health disorder and of a post-traumatic stress disorder, the latter arising as I have said from a shooting you witnessed.   

74She found you fixated on your current girlfriend, and noted you described being anxious about not being out there to protect her. You say you believe you can break your previous cycles of going on benders and committing crimes, and want to build a future with your girlfriend.  Ms Lechner sees the potential for a relapse to be triggered if there is any “hiccup” in this relationship.

75In discussing matters with Ms Lechner, you express shame and regret for your actions, and regret for what occurred to the victims, in particular, of the carjacking.  She felt these were limited but apparently genuine expressions of remorse in line with your limited capacity for abstract and conceptual thinking. 

76You are currently well-motivated to stay out of trouble, but you need to develop more robust coping skills to ensure that that is not entirely dependent on your partner.  Ms Lechner suggested that residential rehabilitation for your chronic drug abuse may be a suitable transition from prison.  That is not something on which I can make any finding or direction. 

77Ms Lechner's opinions are not challenged by the prosecution although the reports arrived very late in the piece.  Ms Lechner's opinions are of significance in sentencing of you. 

78First, she diagnoses at least one mental illness within the meaning of the Mental Health Act; that is Post-Traumatic Stress Disorder, and it would seem that more have been diagnosed by those treating your mental health in the prison, for example, Major Depressive Disorder. Under s. 10A(1)(a),[2] this constitutes a special reason that releases the court from sentencing you to imprisonment for a mandatory minimum term of three years.[3]The prosecution conceded that Ms Lechner’s diagnoses will constitute a special reason with this consequence. It is therefore not necessary for me to decide whether under sub-paragraph (e) of s.10A there is also a special reason constituted by any other substantial and compelling circumstances.

[2]Sentencing Act 1991

[3] S.10AD

79Secondly, it is submitted that Ms Lechner's opinions both as to your suffering psychological disorders, and also in relation to low cognitive functioning at least in some respects enliven some of what are known by lawyers as “Verdins principles” that would call for moderation of your sentence. 

80In assessing your personal culpability, that is your own blameworthiness for this offending, and in particular in relation to the aggravated carjacking, the thefts of vehicles and the resisting of police, you were acting impulsively and generally affected by illicit drugs.  Ms Lechner’s opinion is that your conditions of ADHD and also low cognitive functioning are likely to contribute to impulsivity and failure to think of the consequences before acting.

81Further, there is the impact of drugs on your behaviour and clouding what is already impaired judgement.  As I have already said, drug abuse is generally not mitigatory, but I am satisfied that in your case your chronic substance abuse falls into the limited number of cases where it not only commenced but became entrenched as a result of your particularly difficult childhood. I am satisfied that your drug abuse commenced and became heavy and addictive when you were too young to exercise reasoned restraint, and that it was not therefore wholly voluntary in the usual sense, and as a contributor to your offending, it does decrease your personal culpability.   

82The nature of the offences of aggravated carjacking as well as thefts and resisting police, would normally call for general deterrence to be an important sentencing purpose.  That means that the sentence should send a message to others tempted to engage in similar offending that it is likely to attract stern punishment. I find that your situation is not as great a vehicle to convey this message as it would be without the effects on your judgment of mental illness as found by Ms Lechner, of lowered capacity to think of consequence before acting and of the chronic influence on you of drugs. Therefore, although I do not think general deterrence has no role, I consider it to be of reduced importance as a sentencing purpose in this case.   

83Although the same factors that reduce the applicability of general deterrence, have application to specific deterrence, that is to discourage you from further offending by imposing a stern sentence.  Given your substantial and entrenched criminal history, and the fact that multiple custodial sentences have not deterred you from further offending, in my view specific deterrence is still an important sentencing purpose, although a little moderated by your mental conditions.

84Given your prior criminal history and the scope of the offences involved, unfortunately protection of the public is also a sentencing purpose that has some importance in this case, and that importance is not moderated as a result of your deprived background nor your mental disorders or intellectual limitations.

85I also take into account as calling for some further moderation of your sentences, the opinion of Ms Lechner that your mental illness will make your experience of imprisonment more burdensome.  Although she says that the prison environment may aggravate your mental illness, I note that you have been in similar environments on so many previous occasions that I am not convinced by that part of her opinion that further moderation is necessary because of the risk that imprisonment will aggravate your conditions.

86You have been remanded in custody for these offences for what is now just over two years and one month.  During that time, you were sentenced in the Magistrates' Court for other charges, for which a sentence of 88 days' imprisonment was imposed.  That period of almost three months cannot be counted as part of your pre-sentence detention for the current charges, although it is part of the total time you have been in custody since your arrest for these charges.  The principle of totality requires me to moderate your sentences to take into account the total time in custody. 

87Also relevant to your time on remand is that part of this time, indeed the last three or so months, has been served subject to restrictions introduced into the prison system to deal with the COVID-19 pandemic.  You do not have any personal health or other vulnerabilities making you more susceptible to the risks of that virus, but I do take into account that since mid-March there has been general concern and anxiety amongst prisoners generally of the dire effects that might result if the virus enters the prison system.  Thankfully, it has not done so to this stage.

88I do take into account that since 21 March 2020, the conditions under which you have been serving your time on remand have been generally more restrictive than usual.  All personal visits have been suspended.  I was told that the young woman with whom you have developed a relationship had been visiting you until such visits were suspended.  I take into account that at present that restriction continues and it is not known when it may be lifted. Further, while you have been serving most of your remand in a protection unit, so inevitably somewhat more restricted in activities or access to programs and courses than the general prison population, the COVID-19 emergency restrictions have imposed further restrictions on you. I am told that time out of your cell has been halved in your unit, and that also remains an ongoing restriction with an uncertain time frame. That of course has not applied for the whole of the time you have been on remand- only the last three and a bit months, but how long it will last into the future is unknown, and I take it into account as having made this last three or so months more burdensome on you.    

89I am not permitted to take into account any prospective administrative reductions as a result of the emergency restrictive conditions, although I understand there may indeed be some applied. 

90I was referred by your counsel to some other sentences for the offence of aggravated carjacking as an indication of current sentencing practice.  The two to which your counsel referred[4] were between three and a half and three and three-quarter years, after there had been pleas of guilty to that charge.

[4]DPP v Ibrahim [2018] VCC 1142; DPP v Backer [2018] VCC 592

91I have also noted the discussions and findings in the case of Mammoliti[5] in which it was noted that as a developing offence, the range of sentences on this charge so far is limited.  In that case, a sentence of six years' imprisonment with a non-parole period of four years was held to be within range although the highest up to that time.  That was a case in which there had been a plea of guilty. I also note that in that case, and in some of the others to which there had been earlier reference as County Court comparisons, the length of the sentence was considered in relation to the mandatory minimum non-parole period, because these were not cases in which there was special reason not to apply the mandatory minimum period.

[5] [2020] VSCA 52

92I have taken all of these other sentences into account, but all comparative cases of course depend on in the particular circumstances, and they cannot be seen as setting upper or lower limits on appropriate sentencing range. 

93Given your history and repeated lapses into drug use and further offending after past releases from custody, your prospects of rehabilitation, in my view are guarded at best.  However, at your age and especially taken with the disadvantages throughout your younger years, rehabilitation should not be abandoned as a sentencing purpose. 

94I am told that you are firmly resolved to stick to medication for your mental health, to stay clear of illegal drugs, stay clear of problematic old friends, and to try to build a stable future for yourself with your current girlfriend.  That will not be at all easy for you.  I consider that you will need assistance and supervision on release.  Hopefully, you will be granted parole before the final expiry of this sentence, and hopefully forward planning can be put in place with some suitable arrangements before your release. 

95However, ultimately your rehabilitation depends mainly on you yourself, Mr Wilson.  You need to commit to trying to turn your life around, to stay away from drugs and from criminal behaviour and friends who engage in both drug use and other criminal behaviour.  You will have to be very determined and to work hard within yourself to achieve those changes.  But I have taken into account that there should still be some encouragement for you to do so and that the sentences I set should not be so crushing as to discourage you from keeping up your resolve to do better next time you are released from custody. It may mean that you have to change long-held instinctive reactions including to engage in programs offered, and to accept supervision and recommendations even if it seems unfair or in your mind a waste of effort or time.  

96I recognise that you have felt that the justice system, and maybe the whole community, has not treated you fairly at different times, and you have been frustrated by that and reacted to it.  I saw something of that when the jury's verdict was delivered in February.  It will be a sign of maturity in you - and you have now turned 25 and spent more than the last two years in prison - if you can look past your disappointments and frustrations and keep focused on building yourself a stable, more responsible, and hopefully much happier life in the future.

97Ms Lechner was concerned that you might be expecting everything to change because of your girlfriend's influence.  It is important that you also take control of your own life and behaviour, because if you rely totally on your girlfriend, however hopeful you and she may be for long term happiness together, there is the risk that if something goes wrong in that relationship, you might have nowhere else to turn, and not have built the strength in yourself to stay away from your old ways.

98As I say, all of that is ultimately up to you.  It will take real courage and determination on your part, but if you are to have the hope of a happy future, this is going to be the opportunity, and you should accept what help and supervision there is offered.

99As I have already indicated, it was conceded by the prosecution that there is “special reason” - that means that on the charge of aggravated carjacking, the mandatory minimum sentence is not required, and all other aspects of the general sentencing discretion of judges in cases such as this apply.

100However, on the charge of carjacking, the seriousness of the offence and your criminal history still lead me to the decision that no sentence other than imprisonment is appropriate.  Further, several of the other charges for which I am sentencing you call for imprisonment; and as was conceded by your counsel, the overall structure of the sentence will necessarily be a head sentence with a non-parole period set.  Would you stand up now please?

101Ricky Dean Wilson, I sentence you as follows. 

102In Matter CR 19-00363, on the charge of aggravated carjacking, you are convicted and sentenced to three years and five months' imprisonment.  I must also make an order relating to your holding of a driver's licence.  As you were unlicensed at the time, I impose a licence disqualification period of 15 months.  That commences today.

103In the matter CR 19-00637, on the indictment, on Charge 1 - theft of a motor vehicle, you are sentenced to four months' imprisonment.  There will also be an order for a licence disqualification on that charge for 12 months.  That is concurrent with the other one.

104On Charge 2 - theft of a motor vehicle, that is the BMW, the sentence is four months' imprisonment and there is also an order disqualifying you from applying for a licence for 12 months.

105On Charge 3 - theft of petrol, you are sentenced to one week's imprisonment.

106On Charge 4- of failing to comply with reporting obligations under the Sex Offender Registration Act, one month imprisonment.

107On Charge 5 of possessing methamphetamine, two days' imprisonment.

108On Charge 6 of possessing cannabis, I find the charge proven and you are discharged without conviction.

109On each of Charges 7 and 8, that is of resisting an emergency worker, in these cases police officers, on duty, on each of those charges I impose one month's imprisonment.

110On summary Charge 4, of unlicensed driving, I impose 14 days' imprisonment. 

111On summary Charge 16, of going equipped to steal, 14 days' imprisonment. 

112On summary Charge 17, possessing a controlled weapon, 10 days' imprisonment.

113I direct that two months of the sentence on Charge 2, 14 days of the sentence on Charge 4 and seven days of the sentence on Charge 7, be served cumulatively on each other and on the sentence imposed on Charge 1, making a total effective sentence on the indictment of six months and 21 days' imprisonment.

114I make no order for cumulation in respect of any of the summary charges. 

115I direct that three months of the total effective sentence on the indictment in CR 19-00637 be served cumulatively on the sentence imposed in CR 19‑00363.  That is intended to create a total overall sentence of three years and eight months' imprisonment.  I set a minimum term of two years and nine months before you can be eligible for parole.  I declare 676 days of pre‑sentence detention reckoned as served.  It will be deducted from both the overall head sentence and the non‑parole period.

116That, on my calculation, will leave a little under 11 months from now before the minimum term is reached when you can be considered for parole under the orders I have imposed.

117I understand that due to the COVID-19 restrictions in the prisons there are to be administrative reductions for what are called emergency management days.  I have not taken that prospect into account as I am not permitted to do so.  However, it is my understanding that if you have been of good behaviour in custody during the period of those restrictions, and for any period that they continue, you are likely to be credited with more reductions.  As I have said, I do not know how much and I am not allowed to take them into account so I have not.

118So as I say, the sentences I impose lead to a total of three years and eight months with a non-parole period of two years 9 months of which 676 days are reckoned served.

119For the charges to which you pleaded guilty, I should state under s.6AAA what the sentence on those would have been had you not pleaded guilty.  That is artificial because I am not doing the same in relation to the sentence that carries the highest penalty.  However, pursuant to s.6AAA, I state that on the eight charges on the indictment in Matter CR 19-00637, had you not pleaded guilty but been found guilty of those charges after a trial, I would have imposed a total effective sentence on those charges of 10 months' imprisonment. 

120Now, as I have said, I do not do that on the aggravated burglary charge because you did not plead guilty and you did not get a reduction for pleading guilty. 

121I am not going to make a s.6AAA statement on the summary charges because they would not have been in this court if you had not pleaded guilty to them.

122Now, I was also asked to make two forfeiture orders.  In respect of the forfeiture order for the summary charge of going equipped to steal, I will make the order for disposal of those items. 

123The draft forfeiture order in respect of drugs of addiction, my only query about it is this.  I do not think it or the other was opposed.  Was it, Mr Bhattacharya?

124MR BHATTACHARYA:  No, Your Honour.  

125HER HONOUR:  Mr Raimondo, this draft order lists both the amphetamine and the cannabis, but also some other pills about which there is not a charge.  Is the order - is it appropriate that I include them in the forfeiture order?

126MR RAIMONDO:  No, Your Honour.  It was conviction based.  So the tablets should be deleted.

127HER HONOUR:  All right.  I will delete the tablets and otherwise sign that order.

128MR RAIMONDO:  Thank you, Your Honour. 

129HER HONOUR:  Now, is there anything I have overlooked?

130MR RAIMONDO:  No, Your Honour. 

131HER HONOUR:  All right.  You can take a seat for a few minutes, Mr Wilson.  Although my associate had a head's up, these are complicated orders that have to be created.  So if you wanted - you can keep standing if you like but you are allowed to sit if you would like for a few more minutes.  Now, can I also ask both counsel to check the arithmetic and structure of the sentence?

132With these orders, I am signing them now.  Obviously, you will get a scanned copy, Mr Raimondo, but I am just trying to have a photocopy arranged for Mr Bhattacharya at this stage.

133MR RAIMONDO:  Yes, Your Honour.

134HER HONOUR:  To speak to his counsel?  Yes of course.

135MR BHATTACHARYA:  Thank you, Your Honour. 

136HER HONOUR:  Mr Bhattacharya, if your client likes - I was going to leave the Bench and let you speak to him here.  I am not sure what the current situation for the visits downstairs because there are so few people brought into the building and in custody downstairs.  But if he wants to be taken back downstairs now, I will let him go.  It is just it is going to take time for the orders to be created and signed.

137MR BHATTACHARYA:  Yes, Your Honour.  I will just ask him, Your Honour.

138MR RAIMONDO:  Excuse me, Your Honour. 

139HER HONOUR:  Yes.

140MR RAIMONDO: Just before he does go, can I just confirm with Your Honour ‑ ‑ ‑ 

141HER HONOUR:  Yes.

142MR RAIMONDO: ‑ ‑ ‑ in relation to the Charges 7 and 8 on the two indictments, Your Honour's sentence was one month's imprisonment on each charge?

143HER HONOUR:  Yes.

144MR RAIMONDO:  And seven days on each charge cumulative?

145HER HONOUR:  No.  The cumulation is only on one charge.  I believe on a plea indictment it is frequently the situation that that would have been presented as one charge. 

146MR RAIMONDO:  Yes, Your Honour.

147HER HONOUR:  The same actions constituted resisting two separate police officers, but he did not do something different to each police officer.  I have imposed one month imprisonment on each charge, because they were two separate charges.

148MR RAIMONDO:  Yes, Your Honour.

149HER HONOUR:  But so far as cumulation is concerned, I have decided that seven days in respect of the incident is sufficient, and I have nominated the first of the charges being against Constable Tran because he is the first one to whom the initial resistance actually occurred.  The other, against Castellano - Mr Wilson by the descriptions was already on the ground by the time Mr Castellano came into the picture and used his baton to keep striking Mr Wilson.

150MR RAIMONDO: Yes, Your Honour.

151HER HONOUR:  But anyway, it is one month on each and a single seven days of cumulation for that incident, which I have put on Charge 7.

152MR RAIMONDO:  Yes, Your Honour.  I have no issue, Your Honour, on this total sentence.  It is correct ‑ ‑ ‑ 

153HER HONOUR:  That adds up, does it?

154MR RAIMONDO:  Yes.  Three years and eight months.

155HER HONOUR:  Thank you.  Because it's between two separate CR numbers, each will be endorsed, referencing the other but the non-parole period and the declaration of pre-sentence detention really only attach to the CR number with the aggravated burglary charge on it. 

156MR RAIMONDO:  Yes, Your Honour.

157HER HONOUR:  But at the bottom of it, it will say that together with the - cumulation from the CR 19-00636, the total overall sentence is three years, eight months.  But thank you for checking that arithmetic.  Now, my tipstaff wanted to check with me what she is to get you.  A copy of each to Mr Bhattacharya.  Thank you.

158MR BHATTACHARYA:  May I approach my client?

159HER HONOUR:  Yes.  If he wants to leave, as I say, I will let him.  But the order will take a few more minutes to be produced and signed.

160MR BHATTACHARYA:  Yes, Your Honour.  He is also requesting to head downstairs.

161HER HONOUR:  He is requesting?

162MR BHATTACHARYA:  Yes.

163HER HONOUR:  Yes, it has been a long time especially as everybody was here waiting for 25 minutes before technologically we could get started.  All right.  Mr Wilson, I have told you more than once what the sentence is and you can now be removed from the courtroom.  Until I have signed the orders you will be kept downstairs in this building but then you will return tonight to prison. 

164(Prisoner removed.)

165Given that Mr Wilson has now been removed from the courtroom, I do not know that there is any reason for me to stay on the Bench or for the WebEx platform to continue.  So I think we can discontinue this and I will sign the orders as soon as they can be produced.  Thank you.

166MR BHATTACHARYA:  Thank you, Your Honour. 

167MR RAIMONDO:  Your Honour pleases.

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