Director of Public Prosecutions v Young-Green and Ellis
[2020] VCC 1793
•11 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-20-00836
Case No CR-20-00837
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REECE YOUNG-GREEN MATTHEW ELLIS |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2020 | |
DATE OF SENTENCE: | 11 November 2020 | |
CASE MAY BE CITED AS: | DPP v Young-Green and Ellis | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1793 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Aggravated home invasion – Dangerous driving while pursued by police (Young-Green) – Offenders forced entry into victim’s home at night attempting to steal contents of a safe – Offenders armed with shot gun, jemmy bar and glass breaker –– Young-Green drove away from the scene dangerously to avoid police – Young-Green a youthful offender – Ellis a young offender – Remorse – Category 1 offence – Category A serious youth offence – s 10A special reason and s 32(2C) exceptional circumstances established (Ellis) – Circumstances surrounding COVID-19 taken into account.
Legislation Cited: Crimes Act1958 ss 77B, 319AA, 464B; Sentencing Act 1991 ss 6AAA, 10AC, 10A, 18, 32, 32(2C), 35, 89(3).
Cases Cited: Director of Public Prosecutions v Ghazi [2015] VSCA 188
Sentence: Imprisonment for a period of 4 years and 6 months with a non-parole period of 3 years (Young-Green); Detention in a Youth Justice Centre for a period 3 years (Ellis).
APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr A Sprague | Office of Public Prosecutions |
| For Reece Young-Green | Mr J Jassar | Bayside Solicitors |
| For Matthew Ellis | Mr P Lunt | Peter Lunt Lawyers |
HIS HONOUR:
Introduction
Reece Young-Green and Matthew Ellis, you have each pleaded guilty to one charge of aggravated home invasion contrary to s 77B of the Crimes Act1958, which carries a maximum penalty of 25 years imprisonment.
Reece Young-Green, you have also pleaded guilty to one charge of dangerous driving while pursued by police, contrary to s 319AA of the Crimes Act1958, which carries a maximum penalty of three years imprisonment.
Reece Young-Green, you have admitted your prior criminal history.
Matthew Ellis, you have no prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
By way of background, you Reece Young-Green employed you, Matthew Ellis and your co-offender Thomas Sexton[1] as landscape labourers.
[1] A pseudonym
At the time of the offending you Reece Young-Green were 24 years of age, and you Mathew Ellis were 18 years of age. Thomas Sexton was 16 years of age.
The primary victim in this matter, Jack Cooper, was 20 years of age at the time of the offending and lived at 15 Moorhead Avenue, Mornington with his mother, Joanne Cooper. At the time of the offending, the victim’s friends Corey Northcote who was 21 years of age, and Tegan Basile who was 19 years of age, were also present at his address.
In early April 2020 you, Matthew Ellis, had been at the victim’s address and had seen a large amount of cash and drugs in a safe in his bedroom. You told Reece Young-Green and Thomas Sexton about the cash and drugs and in the days prior to the offending, the three of you formed a plan to attend the victim’s address to steal the cash and drugs from the safe.
Prior to attending the victim’s address, the number plates were removed from a black Toyota Hilux that Thomas Sexton had borrowed from an acquaintance some days prior to the offending.
Aggravated home invasion
At 3.07am on 10 April 2020, the three of you arrived at Mr Cooper’s address in the Toyota Hilux and parked outside the front of the property. You were all dressed in black long sleeved hoodies and black track pants. You had your faces covered, but your footwear was distinguishable.
You all exited the vehicle and you, Reece Young-Green used the remote control to lock the car. You all then immediately headed to a sliding door located on the right hand side of the property.
You, Matthew Ellis were in possession of a jemmy bar and handheld glass breaker to effect entry to the premises and you Reece Young-Green were in possession of a sawn off shotgun. Thomas Sexton was in possession of a backpack containing an angle grinder.
The victim saw you all arrive as he was monitoring his CCTV surveillance system on his mobile phone. He ran to lock the sliding door, then ran to his mother’s bedroom where she had been sleeping. The victim barricaded himself and his mother in the room and called police. The victim had no direct interaction with any of you at the house during the incident, and you were unaware that the victim was in his mother’s bedroom, believing he had escaped out the front door.
You, Matthew Ellis used the jemmy bar to pull off the sliding security mesh and then used a glass breaker to break the glass of the sliding door. You all assisted in forcing entry using the jemmy bar and entered the property at 3.09am. It is these facts that relate to Charge 1, aggravated home invasion.
Upon entry, you all immediately proceeded to the victim’s bedroom located to the right of the entry location, which was known to you all.
Once inside the bedroom, you all confronted the other occupants of the address, Mr Northcote and Ms Basile. You, Reece Young-Green, holding the firearm, told Mr Northcote to empty his pockets to which Mr Northcote responded that he didn’t have anything to give you.
A short time later, you, Reece Young-Green, still armed with the firearm, directed Mr Northcote and Ms Basile out of the bedroom and to the lounge room area, an adjacent room a couple of metres away. Mr Northcote asked if he and Ms Basile could leave and was told they could move to the lounge room provided they did not ‘do anything stupid.’
All three of you attempted to gain entry to the safe in the bedroom at different times by using the angle grinder. After a short time and numerous attempts, you were unable to gain entry to the safe. At 3.19am all three of you left the address, exiting the house from the same point of entry. You all got into the Hilux and you, Reece Young-Green entered the driver’s seat and drove away from the address.
CCTV surveillance cameras cover much of the outside and inside of Mr Cooper’s house, but not his bedroom where the safe was located. The cameras captured much of the incident and the footage was tendered on the plea.
You, Reece Young-Green, were holding the firearm throughout the offending observable from the CCTV outside the house and in the living area, apart from a short period when you, Matthew Ellis had possession of the firearm just before you all left, carrying it out of the house to the vehicle.
Dangerous driving while pursued by police
A short time after you drove away, as police approached the victim’s address, they observed the Hilux at the intersection of Moorhead Avenue and Bentons Road and directed the vehicle to pull over by activating the lights and sirens on the police vehicle. You, Reece Young Green, continued to drive, increasing speed to avoid being intercepted.
A pursuit of the Hilux led police through Mornington, Red Hill and Merricks North. You Reece Young-Green continued to drive in a dangerous manner at speed to avoid police and police then lost visual contact of the vehicle.
At approximately 3.30am, you crashed the vehicle into a tree while going around a bend at high speed. It is these facts that relate to Charge 2, dangerous driving while pursued by police.
Arrest
After the collision, you all separated and ran into paddocks. Police located the Hilux shortly after at 207 Bittern-Dromana Road, Merricks North. Police searched the vehicle and did not find the firearm. A cordon was established, searches conducted and additional police units including the Dog Squad, Airwing and Critical Incident Response Team arrived to assist.
At approximately 4.30am, you, Matthew Ellis, walked out onto the road near an intersection approximately 800 metres from the collision site and were arrested. A mobile phone found in your possession was found to belong to Thomas Sexton, which you later stated you had used as a torch in an unsuccessful attempt to return to the vehicle crash site to retrieve your own phone.
A mobile phone, which belonged to you, was recovered from the Hilux as well as an angle grinder, wheel change tool, angle grinder discs and a shotgun cartridge shell.
You had a conversation with police at the scene and made admissions to committing the home invasion to steal cash and drugs from inside a safe, but stated you had no idea of the whereabouts of the firearm and stated ‘no comment’ when asked to name your accomplices. You were conveyed to Frankston Police Station where your clothing was seized, and you were interviewed.
During the interview with police, you made various statements and admissions, including that you went to the house in Moorhead Avenue with two others, broke in and unsuccessfully tried to access the safe before leaving with nothing. You stated that you knew the occupant of the house as ‘JC’ and that you had been to the house before to buy weed from him. You said that you had seen a lot of money in the victim’s safe and you went to steal it.
A number of other admissions were made by you which are summarised in the prosecution opening and which are largely consistent with the CCTV and events described by the occupants of the house.
At approximately 8.30am on the same day, Thomas Sexton was located and arrested in Merricks. He was interviewed by police at Frankston Police Station, answering ‘no comment’.
You, Reece Young-Green were arrested near your home at approximately 3.30pm the same day. You were interviewed at Rosebud Police Station and provided consent for police to attend your home address and seize the clothing you wore during the home invasion.
During the police interview, you made various statements and admissions, including that Thomas Sexton and Matthew Ellis worked for you and that you all went to the victim’s house because you knew that he had drugs and a safe with cash. While you essentially made admissions to the offending, you also made some statements to minimise your involvement. For example, by stating that Matthew Ellis and Thomas Sexton held the firearm at the house, when clearly the video shows you holding the firearm but for the time as outlined in the summary when Matthew Ellis carried the firearm while leaving the house. Otherwise your admissions are largely consistent with the events described by the victims and shown in the CCTV.
Recovery of firearm
On 8 May 2020, pursuant to s 464B Crimes Act1958, Mr Sexton was temporarily transferred into police custody in relation to a planned search for the firearm. At 11.30am the firearm, a sawn off shot gun, was located at the base of a tree on a property at 103 Merricks Road, Merricks North, a short distance from the vehicle crash site.
The firearm was partially buried in dirt, leaves and pine needles. It was unloaded and significant corrosion was observed on one side of the shotgun due to exposure to the elements. Mr Sexton stated to police that he had unloaded the firearm in the Hilux, and that the ammunition was left in the Hilux when they crashed. The recovery and location of the firearm was recorded on police video.
While you Reece Young-Green stated in your record of interview that the firearm was loaded, I note that the prosecution position is that the evidence does not enable a conclusion to be drawn beyond reasonable doubt, that the firearm was loaded at the time of the offending.
Police subsequently searched the premises at 15 Moorhead Avenue, Mornington, and located a safe containing cash and drugs.
Nature and gravity of the offending
Having viewed the CCTV footage of this incident it is self-evident that this offending was well planned. It was planned based on the knowledge that there was a safe in the house that contained cash, and this was your target. To that end you arrived with an angle grinder you had sourced in order to gain access to the safe. You obtained a car and removed the number plates to avoid detection. You were all dressed in dark clothes with your faces covered. You came equipped with a jemmy bar, which can be seen being used on the wire door, and a glass breaking tool, which was used to smash the sliding door before entry. You, Reece Young-Green can be seen throughout the incident holding the sawn off shot gun while speaking to occupants of the house. At the end of the incident the gun was carried out of the house by you, Matthew Ellis. The incident lasted approximately 10 minutes and therefore was not a brief event.
There is little to distinguish your roles and it is clear on the evidence that the three of you each worked together with the same objective. As to the two of you specifically, you Reece Young-Green held the firearm for the majority of the incident and drove the vehicle, while you Matthew Ellis smashed the door and entered first before assisting in trying to open the safe. While there are subjective matters that distinguish one from the other which will be discussed below, I accept the submission of the prosecution that in relation to both of you and Thomas Sexton, you all jointly and actively participated in the commission of the aggravated home invasion.
While the victims have not provided victim impact statements, it is indisputable that this would have been a frightening experience for those in the house. You entered the home in the way described in the dead of night, a time when people are entitled to feel safe in their own homes while sleeping. Joanne Cooper, in her police statement, stated that she was ‘really shaken and upset about what’s happened’. Cory Northcote stated that he was ‘afraid and scared of being shot’.
The seriousness of the offence of aggravated home invasion is reflected in the maximum penalty of 25 years imprisonment. Parliament has also classified the offence as a Category 1 offence and as such, pursuant to s 10AC of the Sentencing Act1991, an offender must be sentenced to a period of imprisonment and the court must fix a non-parole period of not less than three years unless the court finds a special reason exists, further reflecting serious nature of the offence.
It was submitted on behalf of both of you that while the seriousness of the offending is accepted, some features of higher level examples of this offence are not present. For example, there was no physical assault, the firearm was not discharged, and you ultimately left empty handed. Further, having failed in your attempts to open the safe you did not then ransack the house or take other personal items from the victims. Having viewed the CCTV, while it is clear that the incident would have been frightening, it is not exacerbated by overt aggressive behaviour or pointing the gun directly at the victims. Thus, while categorisation by terminology of seriousness of offending has its limitations, in all the circumstances I accept the assessment given by the prosecution that the offending falls within the ‘medium level’ of seriousness.
As to Charge 2 relating to you Reece Young-Green, in my view this is also a serious offence. You were well aware that the police were pursuing you and you drove at speed in order to escape them ultimately losing control and crashing the vehicle. While no one was injured, your driving was nonetheless dangerous.
Personal circumstances
Reece Young-Green
Turning first to you Reece Young-Green.
You are currently 24 years of age and were 24 at the time of the offence.
You were born in Williamstown however from a very young age you moved locations constantly as a result of your mother’s volatile relationships and her substance abuse issues. You have a younger sister and a younger
half brother.
Your father left your mother when you were two years of age and has nothing to do with you. You met him once when you were 22 years old however you have had no further contact.
You have suffered significant disadvantage from a very young age. You were subjected to physical abuse from your mother being hit, punched and spat on regularly. On one occasion when you were aged seven, in an angry outburst your mother hit you in the face with a piece of wood splitting your nose and requiring stitches to your forehead. The abuse only ceased when you were taken out of her care and placed in foster care at nine years of age.
You were also subjected to sexual abuse by one of the partners of your mother when you were very young. You mother was in this relationship for approximately four years and you state that the abuse continued throughout that period.
In general terms, the time spent with your mother was extremely difficult for you. Your mother battled with drugs and alcohol and on many occasions, you were left at home with your siblings while your mother was out. Your mother would come home with different men and on occasions would not come home for days, leaving you without food. You would on these occasions take on the responsibility for your siblings by ensuring your sister went to school.
Following intervention by DHS and then Children’s Court proceedings, you and your sister were placed first in the care of your maternal grandparents and then with a foster parent, Leigh Treweek and his partner for approximately 18 months. You then went back with your maternal grandparents.
Your grandfather was very strict with you however you were cared for and your grandparents paid for you and your sister to attend Padua College, a Catholic Secondary School. After having attended some six primary schools as a result of moving with your mother, you settled into some stability completing year 11 and leaving during year 12.
At the age of 15, while still at school you obtained some work with a hardware store where you worked until age 18 when you started a plumbing apprenticeship, however you were required to leave after two years due to you suffering epileptic fits. Your epilepsy has been managed with medication over the years however as the medication made you ill, you ceased medication and were self-managing your condition with marijuana.
At age 21 you worked for a landscaping business where you learned the trade and some aspects of running a business. Your employer encouraged you to start your own business which was called RYG Lawns and Gardens and you ultimately employed the two co-offenders. I was told on the plea that you intend to recommence your business upon your release.
After leaving school you engaged in drug use and became a heavy user of marijuana and were, at the time of the offending using daily and had also consumed Xanax tablets in the evening before the offending.
Despite your very difficult childhood and drug use, you have a limited prior criminal history where the most serious disposition has been a fine without conviction.
A report was prepared by consultant clinical psychologist Dr Paul Grech and tendered on the plea. While Dr Grech was only able to assess you based on one consultation via teleconference, he did not identify any psychological conditions you were suffering now, or at the time of the offending. Dr Grech states that if you remain drug free and engage in psychological treatment upon your release, your risk of reoffending is low.
Two references were tendered. The first is from Leigh Treweek who has known you since you were six and was involved in your care as a foster parent as outlined above. He was shocked to hear of the offending the subject of this hearing and states that this behaviour is not consistent with your character. Your partner, Georgia Colliver-Piper who works as a disability support worker, has known you since high school. She also states that your conduct is out of character and notes that you have expressed a deep level of remorse in relation to the impact of your actions on all parties involved including the victims and the police. She remains supportive of you.
Whilst in prison you have engaged in courses despite the limitations as result of the COVID-19 restrictions. You are also working in the prison industry.
Matthew Ellis
I turn to you, Matthew Ellis.
You are 19 years of age and were 18 at the time of the offending.
You grew up in the Mornington Peninsula area and you have one older sister aged 20. Your parents separated when you were 12 with you remaining with your mother. Your father was a heavy drinker and you report that the family environment was tense at times. Your sister suffered some mental health problems and was admitted to a psychiatric hospital for a period of time. You state that you maintain a strong relationship with your sister and that since you have been in custody, your relationship with your father has improved.
Your mother has also battled with mental health issues and she was admitted to a psychiatric unit in 2017 for a period of three weeks.
You attended local primary schools and then Padua College until the end of Year 9, when you obtained an apprenticeship. You completed two years of a carpentry apprenticeship however you were using drugs during this period and ultimately left work. You worked as a concreter for a limited time in 2018 and then in the year leading up to the offending, you worked as a landscape gardener in the employ of Mr Young-Green. During your primary school years you were also diagnosed with ADHD which was untreated.
As to your drug history, you began smoking cannabis at age 12 and by age 14 you were smoking daily. At the time of the offending you were smoking heavily. You began using ecstasy at age 14 and have intermittently used ice, cocaine, GHB and ketamine. In the period leading up to the offending you were also binge drinking on weekends. At the time of the offending you state that you had taken about ten Xanax tablets and some cocaine.
A report was prepared by Carla Lechner, clinical psychologist and tendered on the plea. Ms Lechner clinically assessed you and conducted some psychometric tests. Ms Lechner is of the view that you present with symptoms of cannabis, benzodiazepine and alcohol use disorder in addition to your ADHD and a major depressive disorder.
Ms Lechner notes that you expressed regret for your behaviour stating that you understand now that the victims would have been extremely frightened.
Ms Lechner is also of the view that despite putting on a brave face, you are anxious about your ability to continue in the adult prison environment, with the potential that you may be contaminated by more seasoned inmates.
An historical report was tendered from Filomena Micozzi summarising counselling you received at your school as part of a mental health plan. It seems that you were struggling with a number of behavioural issues in relation to your parents’ conflicts at home.
Your mother Nicole Ellis wrote a letter to the court where she expresses her ongoing support of you. She provides further historical information in relation your struggles during your childhood. She is also aware of your drug use and the devastating effect it has had on your employment and development as a young man. She is of the view that since being in custody and having ceased drug use, you are much more positive about your future. She notes that you have expressed extreme regret for what you put the victims through.
Your sister Brooke Ellis provided a letter where she speaks of the difficulties you faced in dealing with her as she battled her own mental health concerns. She also observed your decline into drug use. She is supportive of you and has remained in contact with you since you have been remanded. Like your mother, she has observed significant changes also reporting that you have expressed remorse for your actions.
Doug Law, the builder who employed you for your apprenticeship, provided a reference to the court. In very frank terms he describes how you changed from being a kind, hardworking boy to someone who began to engage in dangerous practices at work as a result of your drug use. Mr Law states however that he would take you back at any time once you have dealt with your drug problem.
You wrote a letter to the court where you express remorse for your actions and state that while you now appreciate the effect of your actions on the victims, at the time, it simply did not cross your mind. You state that you now wish to look forward to a new start on your release. While letters such as yours are often viewed with caution, when read together with the other material, I accept that you are genuine in your remorse and in wishing to change your life and move away from the negative influences that led you in to this offending.
Sentencing considerations
First, I take in to account your pleas of guilty. In relation to each of you, once you were in police custody you both made full and frank admissions. In each case your pleas were entered early. Your pleas of guilty have thereby saved court time and expense and the potential trauma the witnesses would experience in giving evidence about the incident. Thus, in the circumstances your pleas have utilitarian benefit and have facilitated the course of justice.
In relation to both of you, I also accept that you have demonstrated a degree of genuine remorse. Over and above your pleas of guilty and frank admissions, it appears from the evidence that you are both beginning to gain insight into the effects of your offending on the victims and others such as your family members.
Mr Sprague who appeared on behalf of the Director of Public Prosecutions, submitted that in cases of aggravated home invasion, general deterrence is of fundamental importance. Denunciation, just punishment and protection of the community are also relevant and applicable sentencing considerations. I agree however in relation to you Matthew Ellis, for the reasons stated below, when consideration is given to a Youth Justice Centre disposition, general deterrence must be viewed differently.
As to you Reece Young-Green, it was submitted that but for your full and frank admissions and cooperation with the police, there was little evidence connecting you to the offending. As a result of you covering your face there was no identification evidence by reference to the CCTV and no physical evidence left at the scene. In the circumstances I accept that your admissions provided sufficient evidence to establish the case against you and the investigators were not required to investigate further. You are entitled to have that taken into account in your favour.
I take into account your personal circumstances and in particular your very difficult childhood disadvantages. However, despite the many obstacles you faced in your younger years, you have been able to establish a business and employ others. It seems that drug use was a significant contributor to your poor decision making in circumstances where you were settling into being a contributing member of the community. You are nonetheless determined to restart your business upon your release.
I take into account the fact that you are still a youthful offender at age 24 and that despite the serious nature of the offending, your rehabilitation must still feature in the sentencing equation.
You have the support of your partner who is in stable employment and hopes to build a life with you upon your release. You have also remained drug free in custody as evidenced by a clean urine screen tendered. You have engaged in courses in custody to assist you in your ultimate reintegration into the community. Further, you have limited prior criminal history with no offending of this nature. Therefore, in all the circumstances I assess your prospects of rehabilitation as very good.
Turning to you Matthew Ellis. You also have experienced a number of significant difficulties in your younger years as a result of your parents’ separation and having to deal with mental illnesses suffered by your mother and your sister.
You are, at the age of 19, a young offender and you come before the court with no prior criminal history. Therefore, despite the seriousness of the offending, rehabilitation must remain an important sentencing consideration in your case. You have supports in the community including your mother and your sister and you have the offer of employment. In your case I assess your prospects of rehabilitation also as very good.
Pursuant to s 10AC of the Sentencing Act 1991, in sentencing an adult offender for the offence of aggravated home invasion, a court must impose a term of imprisonment and fix a non-parole period of not less than three years unless a special reason is able to be established pursuant to one of the exceptions outlined in s 10A.
In relation to you Reece Young-Green, Mr Jassar who appeared on your behalf, in the circumstances did not seek to establish a special reason, sensibly in my view. However, he submitted that in all the circumstances, even taking into account both charges, the minimum non-parole period is within range.
In relation to you Mathew Ellis, Mr Lunt who appeared on your behalf conceded that a term of imprisonment or confinement in a Youth Justice Centre is warranted. However, Mr Lunt submits that a combination of circumstances personal to you are able to establish substantial and compelling circumstances that are exceptional and rare and that justify the finding of a special reason pursuant to s10A(2)(e). Further Mr Lunt submits that in the circumstances, if a special reason is able to be established, an assessment for a Youth Justice Centre order should be obtained.
In order for a court to consider a Youth Justice Centre order when sentencing in relation to a Category A serious youth offence which includes an offence against s 77B of the Crimes Act 1958, exceptional circumstances must be established pursuant to s 32(2C). However, in the circumstances here, as s 10AC requires a term of imprisonment to be fixed with a non-parole period of three years (which does not include a Youth Justice Centre order), a special reason must first be established pursuant to s 10A.
In determining whether there are substantial and compelling circumstances under sub-s(2)(e), the court must have regard to the fact that Parliament’s intention, pursuant to sub-ss(3)(ad) is that a three year minimum be imposed for the offence of aggravated home invasion. Further, the court must have regard to whether the cumulative impact of the circumstances of the case would justify a departure from a sentence of imprisonment with the minimum non-parole period of three years, pursuant to sub-s(3)(b).
However, the court must also take into account the matters listed in s 10A(2B). That is, giving greater importance to general deterrence, less weight to personal circumstances and not have regard to previous good character (other than the absence of prior criminal history) or early plea of guilty or prospects of rehabilitation or parity.
Mr Lunt submitted that when consideration is given to a combination of matters, not abrogated by the legislation, that those matters justify a departure from the mandatory sentencing regime in this instance. Mr Lunt relied on a number of matters as outlined in his written submission including:
· your youth (18 at the time) and your immaturity;
· the fact that you have no prior convictions;
· your frank admissions and co-operation with police;
· the fact that you are now receiving medication for mental health issues for the first time;
· that you are now drug free;
· your substantial family instability throughout your younger years in the context of untreated mental health issues;
· your major depressive condition;
· the vulnerabilities and influences you face while in adult remand; and
· the impacts of the COVID-19 pandemic resulting in no contact visits with your family, reduction in programs and the risk of outbreak of the virus in the prison.
Taking into account the matters above in combination and applying the relevant provisions, in my view the cumulative impact of the circumstances justify a departure from the mandatory sentencing provisions that apply to Charge 1 in your case.
As I have found that a special reason is able to be established, if I am to consider a Youth Justice Centre order, I must be satisfied that exceptional circumstances have been established. Mr Lunt also relied on the combination of matters that were relied on in establishing a special reason. In my view those matters in combination also meet the test of exceptional circumstances.
I had you assessed for your suitability for a Youth Justice Centre order and you have been assessed as suitable. Pursuant to s 32(1) of the Sentencing Act 1991, the writers of the pre-sentence report state that in your case, there are reasonable prospects for your rehabilitation and you are particularly impressionable, immature or likely to be subject to undesirable influences in adult custody. Having taken into account all of the relevant material, I concur with the views of the report writers.
In assessing your suitability for a Youth Justice Centre order, I am also mindful of the other matters the court is required to take into account pursuant to s 32(2) while keeping in mind that general deterrence does not form part of the consideration.[2]
[2]DPP v Ghazi [2015] VSCA 188 at [34]-[35].
Finally, in relation to both of you, I take into account the circumstances surrounding the COVID-19 pandemic. It is well settled that the pandemic has imposed greater burdens on prisoners and their families. Physical visits to prisons are not permitted, prisoners experience greater periods of lockdown and many programs have been restricted.
Sentence
Reece Young-Green, on Charge 1, aggravated home invasion, you are convicted and sentenced to 4 years and 6 months imprisonment. On Charge 2, dangerous driving while being pursued by police, you are convicted and sentenced to 8 months imprisonment. I direct that 3 months of the sentence on Charge 2 be served cumulatively on Charge 1. That makes for a total effective sentence of 4 years and 9 months. I direct that you serve 3 years before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 215 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 6 years with a
non-parole period of 4 years.
In relation to Charge 2, pursuant to s 89(3) of the Sentencing Act 1991, any licence you hold will be cancelled and you will be disqualified for a period of 12 months from today.
Matthew Ellis on Charge 1, aggravated home invasion, you are convicted and sentenced to 3 years detention in a Youth Justice Centre.
Pursuant to s 35 of the Sentencing Act 1991, I declare that 215 days be reckoned as the period of detention already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to a period of 4 years detention in a Youth Justice Centre.
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