Director of Public Prosecutions v Zokhai
[2022] VCC 108
•8 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01506
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VUNGHKIMSIING ZOKHAI |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 November 2021 |
DATE OF SENTENCE: | 8 February 2022 |
CASE MAY BE CITED AS: | DPP v ZOKHAI |
MEDIUM NEUTRAL CITATION: | [2022] VCC 108 |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence upon plea of guilty
Catchwords: Aggravated Carjacking - Theft - Driving offence - Commit an indictable
offence whilst on bail - Youthful offender - Medium category of
seriousness - Early plea of guilty during Covid-19 - Accused acted in
company - History of racial bullying - evidence of remorse - Verdins'
principles
Legislation Cited: Sentencing Act 1991 (Vic); Mental Health Act 2014.
Cases Cited: Sabbatucci v The Queen [2021] VSCA 340; Peers [2021] VSCA 264;
Farmer [2020] VSCA 140; Fariah [2021] VSCA 213; Siilata [2019] VSCA
277; Mammoliti [2020] VSCA 52; Teryaki [2018] VCC 1876; Gazzard
[2019] VCC 2099; Anderson [2019] VCC 1131; Edwards [2019] VCC
631; DPP v Hudgson [2016] VSCA 254; Bumgy v R (2013) 302 ALR
192; Marrah [2014] VSCA 119; Hermann [2021] VSCA 160;
Sentence: Total effective sentence of 4 years imprisonment with a non-parole
period of 3 years. Fines with conviction. Driver licence cancellation and
disqualification for 4 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Van Den Akker | |
For the Accused | Mr T. Smurthwaite |
HIS HONOUR:
1Vunghkimsiing Zokhai, you pleaded guilty to aggravated carjacking, three charges of theft and two summary charges, one of a driving offence and another of committing an indictable offence whilst on bail.
2On Saturday 10 April 2021 in the afternoon, Ms Ribbon, who worked as a nurse at an aged care facility in Hawthorn, finished her shift and walked to her car, which was parked nearby. As she started the ignition, you and a number of others with you approached the car. You were armed with a large knife about 30 centimetres in length, which you were holding. You opened the door to her car and told her to get out. She did. You sat in the driver's seat and three others entered the car. Ms Ribbon asked you for her handbag, which you gave her. You then drove off, travelling to western suburbs.
3At about 6 pm, you filled up with $60 worth of petrol and drove off without paying at a petrol station in Truganina. Later that night at about 11 pm, you videoed yourself and two others driving the stolen car in front of a police car vehicle, drinking whilst saying,' Fuck the police.'
4On the following Monday the 12th, together with four others, you went to a bottle shop in Mooroolbark in the stolen car. You remained in the car, whilst your co-offenders stole over $500 worth of alcoholic drinks. You drove off and you again recorded this on your mobile phone and the events were recorded as well in the store CCTV system.
5A couple of hours later, at about 8 pm, you drove to a Coles store in Croydon with others and stole beer to the value of $100. Police recovered the car on 14 April from a co-offender's home in Ringwood. At the time, you were a learner driver and you did not drive with a qualified driver, which gives rise to the first summary offence. At the time of this offending, you were on bail, which had been granted on 1 January 2021 and you had breached the next day but had been granted again on 2 January to appear in court in May. On 3 January, you had entered into another bail granted again, to appear in court in May.
6You were arrested on 13 April and remanded on other matters. On 14 May, you were interviewed and charged with these offences on the 25th of that month. In July, at the committal mention, you indicated readiness to plead guilty and you were committed on a straight hand-up brief. You were interviewed by police at Ravenhall, and you told them that you planned the carjacking. I note your co-accused are all younger and have been charged and bailed to appear in the Children's Court.
7You told police you pulled out the knife to make the driver scared and it was more threatening that way. You wanted a car to go to 'the soccer thing' and to roll up to the East v West gang fights. It was to be a getaway car in case anything happened in the fight. It was also to be used to steal alcohol, which you said you needed more of. As to the carjacking, you said you wanted to apologise to the lady and that you felt bad. You did it in the heat of the moment and you knew it was wrong.
8You had been remanded on 13 April 2021 on other matters, but your first remand in relation to this matter was on 15 July. You have therefore been in custody related to this matter for 208 days, up to but excluding today.
9A victim impact statement was tendered to the court from Ms Ribbon. She wrote that the incident left her frightened and violated. She became a recluse, frustrated, sad and angry. Her sleep was disturbed, she experienced nightmares for weeks. She had the locks changed on her home, was emotionally overwhelmed at work. She felt depressed and had to seek psychological help. She has become paranoid and suspicious, needed to be accompanied to her car after she finished her work shift. She was not covered by insurance and had to work many shifts to buy a car and the impact of not having a car was very costly.
10She could not retrieve equipment from her car, like a projector and learning material, as she was teaching at that time, because the car had been badly damaged. Ms Ribbon was completing a course of study at the time and was unable to continue her studies. She remains hypervigilant and fearful. I take this statement and the impact upon her into account.
11In 2016, a particularly sentencing regime was introduced for carjacking, imposing special sentencing requirements for an offence like aggravated carjacking. Both the community and consequently Government, were very concerned by this kind of offending, which had recently become more common and which still causes much consternation and fear. It was said that, in effect, dragging people out of their cars had no place in daily life in the community, which should be able to drive around without fear of being set upon by criminals. The offence and penalty were said to reflect the terrifying nature of such a crime and in doing so, denounce the perpetrators in the strongest terms, sending a message that such activities would not be tolerated.
12If there was any doubt about the intention of the legislators, the offence was set at a maximum of 25 years. The Attorney-General at the time said that in order to recognise the seriousness of the offence, there was also a statutory minimum sentence of three years intended as a serious deterrent to those who planned to use weapons and violence to take another person's vehicle.
13Section 10AD requires the imposition of a term of imprisonment for an offence against s79A and the fixing of a non-parole period of not less than three years, unless the court finds under s10A that a special reason exists. These provisions make for a complex and frankly, difficult sentencing disposition in your case.
14Section 10A deals with special reasons relevant to imposing a minimum non-parole period. Section 10A(2)(c) (i) alternatively (c)(ii), or sub-s2(e) were relied on in submissions as producing the special reason required to enable the court to act otherwise than impose a three-year non-parole period. There are other relevant provisions which must also be had regard to in s10A, but I will deal with those later.
15I should make clear that the mandatory minimum operates as a legislative yardstick which does not displace sentencing principles of the common law but modifies them. So far, for example, the principle governing a reduction of a guilty plea does not cease to apply, but rather, the provisions sit alongside established sentencing principles and is neither intended to swamp the sentence discretion, nor dictate a departure from the instinctive synthesis approach to sentencing, affect the relevant matters which the court must take into account in sentencing.
16The remaining provisions in s10A which deal with having regard to general deterrence and denunciation, s2B(a), (b) and (c), as well as 2B(3), are relevant to the determination of the matters under s10A(2)(e), but do not alter the considerations applicable to the general sentencing principles to be considered.
17The first matter I note is that of your plea, entered at the first reasonable opportunity. The fact of the plea and its timing will mean that the sentence is reduced. I accept it has a utilitarian benefit in that it has avoided a criminal trial, its cost and complexity. I take into account that it was made at a time of pandemic, when the criminal justice system and the correctional system have been put under great stressors and pressures and made delivery of justice outcomes difficult. The plea facilitates the course of justice, must be given real weight under these circumstances.
18I take into account also the pleas made when in countenance of a likely prison term, at a time when imprisonment generally has been rendered more burdensome by the impact of quarantine, isolation and other requirements and limitations on movements, transfers, programs, visits and many other aspects of reclusion. This must also carry weight according to the plea.
19I accept that you have expressed some remorse. The plea of itself is some evidence of remorse, as is your apology in the record of interview. There are some other references as to this aspect, contained in the report of Ms Lechner, psychologist. However, these appear to be expressions of regret, with prompting and some empathy, the depth of which was said, paragraph 4 of an addendum report of 4 November 2021, to have been limited by your general sense of anger and resentment towards the broader community. Remorse is a difficult sentiment to assess and it may be that it is a development feeling, upon reflection, which is not yet fully formed in you.
20I assess the objective gravity of your offending as a relatively serious example of the offence and it falls towards the lower end of the middle part of the spectrum of seriousness, rather than at the low end. During the plea, I indicated that I had some difficulty accepting the submission that this offending fell at the lower end of the spectrum. By its very nature, the offence is intrinsically serious. That view is strengthened by the very high maximum penalty and the non-parole requirement, unless satisfied that special reason exists. A label or descriptor of itself is not particularly helpful. Rather, what is required is an analysis of what the offender did.
21You determined that you need a transport for a particular purpose and you led that enterprise. It was your idea and you clearly had a plan as to how to go about it. You told as much to the police in the interview, Question 51, that the car was needed to go to the fight, easier to get there and easier to get away. This was not a spur of the moment or spontaneous conduct. The duration of the seizing of the car having ejected the driver probably did not take long, but I am unpersuaded that in the context of that seizure, that much turns on this point.
22During an admittedly probable short time, you brandished a large knife near the driver. You told her to get out. Ms Ribbon was not physically assaulted or injured, but your behaviour was intimidating and very frightening. It involved a surprise approach and a forceful demand at knifepoint. You acknowledged the knife was there 'to make her scared' and 'more threatening.' You also told police you can 'keep a calm head.'
23Although your intoxication probably worsened as you bought more alcohol, it is also clear that you were already somewhat under the influence at the time of the offence. The use of the knife as a weapon places this offence into a medium category of seriousness towards a vulnerable member of the public not placed to offer resistance in daylight in a public area. Although there were no specific threats uttered, the situation created by you was threatening. It is true that you returned Ms Ribbon's handbag, when she asked for it, but this is an ambivalent action which, of itself, merits little credit under the circumstances.
24As I see it, this type of offence causes concern to the community and their right to go about their daily activity, safe from random and aggressive criminal acts. The use of the knife is a qualifying circumstance which brings this offence within the scope of the more serious offence of aggravated carjacking. The other is causing injury. The weapon, however, remains also a key indicator of its seriousness. Its use, in aid of carjacking, will, as it does in this case, heighten the objective gravity of the offence, irrespective of the fact that its use is the qualifying circumstance, see Sabbatucci v The Queen [2021] VSCA 340, at paragraphs 34 and 35.
25Before returning to the submissions which sought to persuade the court that special reasons were able to be found in order to defeat the operation of the applicable section, I will recite matters pertaining to your personal background and history, all of which I take into account.
26You were born in Myanmar in April 2002. You will be 20 in April of this year, you are currently 19 years of age. At that time, the time that you were born, your father was in a detention camp in Malaysia. He had left Myanmar in December 2001, having escaped after arrest by security forces there. Whilst waiting UNHCR interview, he was arrested and imprisoned in Malaysia and thereafter, detained for some 31 months. Your father then was able to come to Australia in February 2007 and you and your mother joined him here in December 2007, by which time you were almost six years old.
27Before this, you were looked after by an aunt while your mother worked. You attended preschool there and then continued in Australia until 2014. In a letter from your parents, they write that you suffered discrimination and bullying. They complained at the school but were not assisted. They write that since that time, you did not again discuss what happened at school. They also suggest your friends had the same experience at the same school. This appears, in their letter, to refer to a period 2008 to 2014, six years of primary school at Croydon Primary.
28Carla Lechner, a clinical psychologist, interviewed you and provided a report and an addendum on 25 October, 21 and 4 November 2021. She also gave viva voce evidence. Much of the plea was taken up by this evidence and I shall refer to the reports and evidence that was relied upon to a significant extent in your counsel's submission.
29Before doing so, Ms Lechner obtained a personal history from you, which adds to the background written about by your parents in their letter. You are the eldest of four sons. You report a positive relationship with your parents and siblings, who are 12, nine and seven. You referred to the bullying on racial grounds in primary school. By Grade 4 and 5 you were an average ability and could speak English. Most of your friends were of Asian heritage.
30You told Ms Lechner that the bullying stopped when you retaliated and then you would be in trouble and then, 'sometimes I get flashbacks of bad moments in primary school, or back in Burma. Things I saw, full on violence, drunk people in the street fighting.' You recalled, 'once after school, a couple of older boys were pushing me around, making racist comments and I couldn't do anything. I had bumps and bruises. Now a racist comment will get me angry.'
31Ms Lechner also spoke to your father and although this detail is not contained in the letter from your parents, she says that your father stated that the discrimination persisted through primary and high school. You attended Melba Secondary College from Years 7 to 9. You told Ms Lechner the racism and bullying continued. You completed Year 10 at another school and that move was prompted by suspensions and detentions.
32You began an apprenticeship at Box Hill TAFE but did not complete it and then obtained a bricklaying apprenticeship at Swinburne before your arrest. You said your family had high expectations of you for tertiary education. Your father works in the disability sector and your mother is a teacher's assistant. You also reported your father's discipline was physical in nature up until age 17 and he confirmed his heavy handedness with you. In her evidence, Ms Lechner referred to a conversation with your father on the morning of the plea, during which he admitted he was very heavy handed and, 'over the top', for which he apologised to you.
33During 2020, for six months or so, you lived with friends. Two or three years, you told Ms Lechner, you were part of a gang, The Asian Boys. You said, 'We fight other cultural groups, testing loyalty.' You also told her you got out of the gang recently in 2020. This is somewhat at odds with other evidence relating to the carjacking in question, which you planned in order to participate in fighting with another gang and also with your answers to police in the interview they conducted with you at Ravenhall Correctional Centre on 14 May 2021, in which you said you were headed for the fight and needed the car to drive off and get away, but you did not know what was going on, because you had two straight bottles of alcohol, which was, 'A bit too much', making your memory blurry.
34You said you were used to this stuff and kept a calm head, but that in prison, on remand, 'Everyone's family. There are some west-side people, but they're taking care of me and I'm respecting them. We're one community in here.' Later, you said, 'Outside, that's a different story to inside', then you added later, 'When the boys get involved, I can't sit around and do nothing.'
35You told the police the group was created to be safe around, take care of each other and help other Asians. Ms Lechner noted a prior history of offending in the Children's Court. You were placed on probation for robbery and intentionally cause injury, assault, commit indictable offence on bail and being in possession of a controlled weapon in November of 2019. In February 2020, you were again dealt with for robbery and assault in company, possessing a controlled weapon. You were placed on a bond to be of good behaviour.
36In relation to that first appearance, the court received a letter from Youth Justice prepared by Claudia Jones dated November 2021, in which there is a summary of the supervised bail program you undertook before the court determination of a probation order, during which program you attended all supervision and counselling appointments with nil future treatment recommended.
37When on probation, you attended your appointments which included the five-day bricklaying course at Swinburne TAFE and there was another course scheduled for March in 2020, when it was cancelled due to the COVID pandemic.
38Ms Lechner, in her report of October, writes that you reported consumption of alcohol and met criteria for a diagnosis of alcohol use disorder under the DSM-5. She wrote that your history of racial bullying led to symptoms of unresolved post-traumatic stress disorder, which:
'Undermined your subsequent vocational, social and emotional development.'
39You became part of a gang and confirmed that you were intoxicating at the time of the offence. That should be 'intoxicated' at the time of the offence.
40You have much unresolved anger in respect of past experiences. When interviewed, you said you had been involved in fights, during which you had received head injuries and had been distressed by the near-death experiences of friends during fights and flashbacks to primary school, big fights. You impressed as cognitively, socially and emotionally immature.
41It was said that you did not report any subjective cognitive change and Ms Lechner wrote you had the capacity to engage and reflect in consequential thinking, with your ability to do so undermined by substance abuse and emotional arousal, particularly anger, triggers to which you can identify, but manage poorly with a physical response, 'I have to bring violence into it', you said. You reported strong loyalty to your friends and a sense of belonging from your peer network.
42Your history of substance abuse began at age 15 with cannabis and MDMA use. You have used Ice and GHB and mushrooms, as well as Xanax. The alcohol was primarily a drug in this abuse, with daily drinking to excess and you are unsure if you are ready to give up this alcohol use in the future.
43In her report, Ms Lechner administered some psychometric testing, which found you to be mildly psychologically distressed. The international trauma questionnaire indicated the presence of symptoms of post-traumatic stress disorder and complex post-traumatic stress disorder, while referring to the near death of a close friend from stabbing in a fight, in particular. Some symptoms indicate long-term symptoms of complex post-traumatic stress disorder arising from the bullying experienced and the corporal punishment from your father, that is complex developmental trauma. These are unresolved symptoms related to these disorders, although the alcohol use is in remission while you are in prison. They are triggered by racial slurs and instances of bullying which may trigger a 'fight mode.'
44Ms Lechner recommends counselling, psychological supports like trauma focus therapy. This psychosocial immaturity has substantially diminished your ability to regulate your behaviour. Ms Lechner concedes that fluctuation in the ability of young people to think rationally and regulate behaviour and emotions is quite normal, but emphasised that in your case, the rate of development has been inhibited by the factors she described placing you at the less mature end of the developmental curve. Your ability to evaluate the risks involved in your offending and potential consequences appear, to Ms Lechner,
'To be impaired when compared with aged cohorts,' she wrote.
45She also wrote that incarceration in a juvenile facility would ensure you were less vulnerable to the influence of more seasoned inmates. In her addendum, Ms Lechner provided some relevant further opinions. She was specifically asked if the conditions which she diagnosed were mental illnesses, as defined in the Mental Health Act.
46During the evidence at plea, an issue arose from the language of the report, as to whether she was merely reporting the presence of symptoms of the disorders, or whether she had actually diagnosed these disorders. In some respects, the language used is ambivalent and it appears it may have been used interchangeably. Ultimately, I accept the oral evidence that Ms Lechner gave, transcript 11 and 15 to 16, that exhibiting symptoms of a particular disorder is the same as saying you have the disorder and that she had diagnosed those conditions, in that the symptoms make up the condition.
47In her addendum report, Ms Lechner does not directly answer the question posed about mental illness, but rather, recites the salient features of her earlier report. In her evidence, Ms Lechner said that the disorders overlap. Post-traumatic stress disorder and the DSM-5 is more to do with the reaction to discrete incidents such as witnessing horrific crimes, eliciting feelings of danger and giving rise to symptoms of hypervigilance, flashbacks, startle responses, emotional dysregulation. Complex PTSD can have exposure to a discrete experience, but also long-term exposure to chronic bullying, also giving rise to chronic low self-esteem, emotional dysregulation and other discrete symptoms.
48When asked in re-examination whether you are a person who suffers a significant disturbance of thought, mood, perception or memory, Ms Lechner's answer, p32 of the transcript, was:
'Quite significant is always a tricky term, I guess.'
49She added:
'He is much more sensitive to potential triggers, such as racial slurring, violence towards his race.'
50Later, she added:
'To behave in a way that is significantly impaired, in terms of a fight response.'
51Later, when again asked, she added:
'I think his perception is probably impaired, in terms of his increased sensitivity to those things. His mood, I wouldn't say, is significantly impaired. His memory appears sort of okay. It's not unusual not to have memories of when you were very young, so I'm not suggesting that's impaired and I wouldn't say his thought was disturbed, as much as maladaptive in certain circumstances', p33 of the transcript.
52Ms Lechner's answer about memory was in reference to something that she had given in evidence earlier in relation to what was said by your father to her, relating to an incident when you were a very young child, which she had not included in her report. She said that you had:
'Sort of vague memories of violence in Burma. They weren't particularly well formed.'
53Speaking to your father on the morning of the plea, he had told Ms Lechner of the stabbing of an uncle, which you did not witness, but you had been brought to the hospital where he was being treated and there, your father said, you were exposed to horrific scenes. In my view, this remains rather vague and speculative.
54The question about mental illness was probably asked of Ms Lechner, because the term 'impaired mental functioning' in s10A(2)(c), means a mental illness within the meaning of the Mental Health Act 2014, where it is defined in the terms of the question that was asked. That is characterised by significant disturbance of thought, mood, perception or memory, see s10A (1) definition.
55Under s10A(2)(c)(i), that impaired mental functioning at the time of the commission of the offence, which is causally linked to the commission of the offence and substantially in which materially reduces the offender's culpability, constitutes one special reason relevant to imposing a minimum non-parole period.
56Ms Lechner was then asked if she could express an opinion as to whether such a mental illness was causally linked to the commission of the offence. Her answer was:
'These conditions do not have a direct causal link to your offending.'
57She contrasted this with your alcohol abuse problem:
'Which is more directly linked with disinhibited behaviour.'
58In her evidence, Ms Lechner, transcript, p12, said:
'The PTSD itself doesn't lead directly to the offending. It's often an indirect link.'
59On this evidence, I am not satisfied to the required standard that you had impaired mental functioning at the time of the offending and that such functioning substantially and materially reduced your culpability.
60Ms Lechner was then taken to the next issue and that relates to the matters contained in s10A(2)(c)(ii), which could constitute a special reason. That is, an impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. Ms Lechner answered the question in her addendum and in her evidence in court. As I have concluded that you did not have an impaired mental function at the time of the commission of the offence, this potential reason also is unavailable to the court.
61The argument as to the impact upon you of reclusion was vigorously pursued on your plea to emphasise a greater burden and risk based on your disorders. However, the evidence, in my view, expressed by Ms Lechner, is significantly qualified by other evidence. Ms Lechner, in her addendum as to this limb, writes you are young, impressionable and particularly vulnerable within an adult prison, by virtue of your symptoms. She writes you could easily be stood over and manipulated, risking a fight response in that environment, leading to hypervigilance, flashbacks and a dysregulated mood.
62In her evidence of 9 November 2021 before me, Ms Lechner acknowledged that to her knowledge, nothing untoward had happened in prison up to this point and that the impact of being in an adult system for an extended period of time was speculative, transcript pp13 and 14.
63Beyond saying, when asked by me, at p15 of the transcript, in relation to the exacerbation of symptoms, Ms Lechner said there was:
'Potential for that' but could not go further.
64It is notable that you did not report issues of violence, or aggression, or fear, in custody, to Ms Lechner. Other sources suggest you have so far adjusted well in reclusion. There was a warning issued to you for apparently being involved in a brewing or distilling operation whilst in custody. I draw no conclusion from it, except that this does not appear to have generated other violent or aggressive features. You were not punished or placed on a regime because of it, or in isolation. You did not indicate to Ms Lechner you had been bullied or intimidated into it. Your answers to police during the interview conducted at Ravenhall suggest that at the time, on the subject of potential conflict, you were not experiencing any, even with rival gang members.
65Your parents, when writing to the court in their reference, indicate that you have made phone and video calls to them regularly and that you have changed in a:
'Very positive way, realising himself and being able to think and dream for the future.'
66They write of your encouragement of your younger brothers. They, of course, are concerned for your fears and potential for depression.
67On the required standard, I am not persuaded that you have impaired mental functioning that would result in you being subjected to substantially and materially greater than the ordinary burden or risks of imprisonment.
68I understand and was informed by your counsel during the plea that you have been able to participate in two six-hour long programs, being 'Alcohol and Me' and 'Ice and Me' and that you wanted to undertake courses in arts and music, obtain a forklift ticket and participate in Alcoholics Anonymous.
69You have now been in custody for about seven months. You are in mainstream and housed in a cottage facility with five others, which I was informed is enabled where a prisoner is deemed to be of good behaviour and good attitude.
70During the course of the plea, I was appropriately informed that there are some outstanding matters. Prosecutions in the Magistrates' Court are likely to resolve after this matter is finalised. There are five matters and was told something about three of them generally. They involve an affray, robbery, intentionally cause injury and assault, breach of bail, possession of a weapon, charged in April of this year, a shop theft of December 2021 and some driving matters involving allegations of leaving the scene of an accident. I will not draw anything from these matters adverse to you. They are pending. I simply note the serious nature of some of them.
71What then requires analysis is whether s10A(2)(e) has application. Sub-section (2)(e) provides that a special reason exists if there are substantial and compelling circumstances that are exceptional and rare, that justify not imposing a term of imprisonment and fixing a non-parole period of not less than three years. This section echoes the provisions of s5(2H) of the Sentencing Act and a number of decisions that looked at the wording of these sections in detail.
72In this context, I have reviewed particularly recent Court of Appeal authorities, including Peers [2021] VSCA 264, Farmer [2020] VSCA 140, Fariah [2021] VSCA 213, Sabbatucci [2021] VSCA 340, Siilata [2019] VSCA 277, Mammoliti [2020] VSCA 52.
73I also reviewed the decisions referred to by defence counsel, but which are not, in my view, of great assistance of my task. They are decisions of the County Court. Teryaki [2018] VCC 1876, Gazzard [2019] VCC 2099, Anderson [2019] VCC 1131 and Edwards [2019] VCC 631. In two of those decisions, Teryaki and Gazzard, the prosecution conceded that special reasons existed.
74The first matter I note is that s10(2)(e) similarly to s5(2H)(e), provides a residual category of limited scope, with a very high hurdle, which will not often be surmounted. Just like with s5(2H), the operation of s10(2)(e) may be harsh in some circumstances. The stringency of the test, due to the words used in the section, cannot be avoided. It is for me to evaluate and determine whether, within the bounds of reasonableness, in combination, your circumstances amount to substantial and compelling circumstances that are exceptional and rare.
75In Fariah, the Court held that s5(H)(e) does not impose a burden on the accused to prove, on the balance of probability, the existence of such circumstances. That is an evaluative judgment for me to make, once the underlying facts have been established.
76I also note the decision in DPP v Hudgson [2016] VSCA 254, in which the Court of Appeal said that the word 'compelling' denotes powerful circumstances of a kind:
'Wholly outside what might be described as run of the mill factors, typically present in offending of the kind' in that case.'
77The Court at p45 of Farmer's case, identifies the two related contexts in the Sentencing Act, without distinction as to the way in which the words of the relevant sections should be interpreted. In Hudgson, the Court of Appeal had stated in relation to s10 that plainly the intention of Parliament had been that the burden imposed upon an offender who sought to escape the operation of s10 should be a heavy one and not capable of being likely discharged.
78The addition of the requirement that circumstances be exceptional and rare made explicit, the Court said, at p48, that the circumstances were atypical.
79The Court then referred to a number of decisions in which the terms of the section were examined. In Farmer, the offender had a physical disfigurement from which he suffered profound impact on his life, which rendered it a most unusual case. This affliction reduced significantly his culpability, as found by the Court, while making him extremely vulnerable in custody. However, without endeavouring by some linguistic, tortuous and factually inauthentic process to seek to overcome the high bar set by sub-s2(e), I am unable to find that your circumstances are such as demonstrating the required compelling substantiality and exception and rare circumstances required to justify the finding of a special reason.
80Irrespective of what view I may have of the outcome of this, in determining this matter, I am required to not only look at the words and meanings of sub-s2(e), but then also in determining whether there are substantial and compelling circumstances, I must have regard to the matters in s2B of s10, which are of significance, as set out there.
81In 2B(a), as to general deterrence and denunciation, having greater importance than other purposes set out in s5 of the Act and s2B(b), the Court must give less weight to personal circumstances of the offender than other matters, such as the nature and gravity of the offence and (c) must not have regard to (1) previous good character, or (2) an early plea, or (3) prospects of rehabilitation, or (4) issues of parity, as well as having regard under sub-s3(a)(e), it is the Parliament's intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than three years should be fixed ordinarily for this offence.
82It is also notable that sub-s3 concludes with paragraph B, wherein it says that the Court must have regard to whether the cumulative impact of the circumstances of the case would justify a departure from that sentence, that is, a prison sentence and where relevant, the minimum non-parole period.
83In my view, a young offender who may have vulnerabilities in custody and who suffers from post-traumatic stress disorder, but has committed a serious offence, is not rare or unforeseen. Neither are the kind of factors relied on by you rarely seen or exceptional. Unlike in Farmer, in my view, the aspects which pertain to you remain common and even an accumulation of detail does not propel your circumstances to the substantial and compelling circumstances which would lead to the conclusion that the mandatory detention should not be applied, much less are they exceptional and rare.
84In Farmer, the Court found the significance of the condition was that it provided an explanation for Farmer's involvement in the offending. That is not the situation in your case. Your disorders did not impact adversely on your perception, judgment or reasoning ability, certainly not as much as the excessive alcohol you had drunk. This clear link is missing, in your case, as acknowledged in the evidence of Ms Lechner.
85In Farmer's case, his moral culpability was significantly reduced, for which he was to be judged and punished much less harshly than a person without the serious physical and psychological conditions that he had and even though, through the prism of the Verdins' principles, to which I will come in a moment, your moral culpability is also somewhat reduced. It is not of the same profound scale as Farmer which, in my view, is distinguishable.
86Farmer's disfigurement also meant he was exceptionally vulnerable in custody. That is a level of vulnerability and risk which is exceptional and rare. Your vulnerability, which I will take into account, is one which is nowhere near the scale of Farmer and which is a burden borne by young offenders in the adult environment frequently.
87In my view, unpalatable as that evaluation is to me, the cumulative impact of the circumstances neither justify departure from a custodial sentence, nor the non-parole mandated. In Fariah, the offender was 21 at the time of the offence. He was born in Somalia and both his parents were killed when he was an infant. The uncle who raised him was also killed when Fariah was nine. He lived in constant fear of his own death, violence was a pervasive aspect of his life and robbery and theft were highly prevalent and normal. Many of his friends were killed in front of him.
88By 18 he was drinking very large amounts of alcohol daily, in an attempt to block stuff out. He suffered complex trauma, he had no priors, a Court of Appeal considered that the applicant's youth, the prior background, early plea during a pandemic, his prospects of rehabilitation and threat of deportation altogether meant that the sentence passed upon him was wholly outside the range of sentences open in the sound exercise of the sentencing discretion.
89In my view, the factual circumstances pertaining in that case are very significant and significantly different from those here. Although it is true that some circumstances may be commonly encountered by this court, that is not the test to be applied. Some instances of common circumstances may, nevertheless, not be deprived of their character as substantial and compelling, exceptional and rare. Rather, each case depends on its own facts. Even in combination, here in my view, the circumstances that enliven the exceptions in 2(e), or the justification for departure from the sentence and non-parole period as envisaged by s10(3)(b).
90Having so determined, I must turn to a consideration of the sentence upon the sentencing principles which are still applicable to you, by way of instinctive synthesis. I have mentioned your plea of guilty already, which I take into account. I do take into account your youth, which is a matter of importance. As you are a youthful offender, I should regard rehabilitation as having significant weight in my determination as to an appropriate sentence and it remains an important mitigating factor.
91However, denunciation, general deterrence and specific deterrence must have greater emphasis as the seriousness of the offending increases. Given the levels of seriousness of the offence, the principles of rehabilitative prospects must give some way, to some extent, to these other sentencing principles here. Section 10A does not remove the need to consider Verdins and I have done so. In my view, despite a lack of a clear nexus to the offending, your conditions diagnosed by Ms Lechner, reflecting the harsh background of your early years, consequent bullying suffered by you in your formative years must be given due weight.
92Although these factors do not explain your conduct, so as to reduce your moral culpability substantially via the Verdins pathway, they are matters that I take into consideration and account as part of your personal circumstances. These are matters which an individualised justice should be taken into account.
93This background suggests a slight lessening of your moral culpability. This is so, even if the level of deprivation does not rise to the type considered in Bugmy by the High Court, which I reviewed, but moderates, to a modest degree your culpability, as matters that go beyond merely historical significance, but are matters that have shaped your view of yourself and the world and the community, see Marrah [2014] VSCA 119.
94In this sense, these disorders moderate and mitigate general and specific deterrence, denunciation and the full measure of punishment. These considerations go to moderate the head sentence. This is another difficult aspect of this sentence which the mandated non-parole period creates when setting the sentence which would normally proceed from the head sentence, but which the non-parole period has a tendency to invert. I have endeavoured not to invert the process and have set the head sentence at what I consider to be an appropriate level first, in view of the non-parole period to be imposed, which for this reason will represent a much higher percentage of that head sentence, but this reflects the impact of the Sentencing Act sections discussed, rather than, as usual, a non-parole based on the head sentence.
95There are features of your disorders which point towards moderation, as they equally point towards the need for community protection and whilst according some moderation, as I have stated, in my view, they do not require a longer sentence, given the head and non-parole to be imposed, which accord sufficient weight to community protection.
96In this sense, I am conscious of the injunction contained in Hermann [2021] VSCA 160, that a sentence expresses a moral judgment and it should, despite the relevant severity of the non-parole period to be imposed, because of the operation of the sections and the evaluation made pursuant to them, take into account the effects of disadvantaged violence and abuse in the person's formative years. These matters are also considerations that, in terms of Verdins 5 and 6, even if currently unrealised into imprisonment, being experienced more heavily by you than others, recognise the risk of that burden increasing with time and I will take that into account in some amelioration.
97In my view, the theft charges, while attracting short periods of imprisonment, are part of the course of conduct in which you engage and will be served concurrently. On the aggravated car-jacking, you are convicted and sentenced to four years' imprisonment. On the first charge of theft, Charge 2, you are convicted and sentenced to one month imprisonment. On the second charge of theft, you are convicted and sentenced to one month imprisonment. On the third charge of theft, you are convicted and sentenced to one month imprisonment, each of which are concurrent with the head sentence. On the first summary charge, you will be fined $200, that is the driving charge. On the second summary charge, the bail offence, you will be fined $300.
98That is a total effective sentence of four years, with a non-parole period of three years. But for your plea, I would have sentenced you to five years, with a non-parole period of three years. Pursuant to s89(4)(a)(i) of the Sentencing Act, your licence is cancelled, if you are currently holding any. You are disqualified for a period of four and a half years. I declare that you have served 208 days by way of presentence detention, and I will note that number in the records of the court. Ms Van Den Akker, are there any other ancillary orders to be made?
99MS VAN DEN AKKER: No, Your Honour, but I did have a query in relation to the summary charges. Were those fines with conviction?
100HIS HONOUR: Sorry, they were.
101MS VAN DEN AKKER: Thank you, Your Honour.
102HIS HONOUR: Mr Smurthwaite, is the impact of the totality of the sentence clear enough?
103MR SMURTHWAITE: Yes, it is Your Honour.
104HIS HONOUR: I note that Mr Zokhai is still linked and if you wish to speak to him, I'm happy to have everyone leave and you can have that opportunity, but I'm not wishing you to do so if this particular way of speaking to him is not conductive to you. I'm sure you'll have a conference otherwise, but if you do wish to take advantage of it, Mr Smurthwaite, I'm happy for you to do that and everybody else will just leave and you can do that.
105MR SMURTHWAITE: Yes, I'll stay on the link, if that's possible, Your Honour.
106HIS HONOUR: Yes, certainly. All right, well, Mr Schornikow, I will adjourn sine die and Ms Van Den Akker, if you could disconnect and I will leave the hearing and Mr Smurthwaite will have an opportunity to speak to Mr Zokhai while still connected, all right?
107MS VAN DEN AKKER: If Your Honour pleases.
108HIS HONOUR: Yes, thank you.
109MR SMURTHWAITE: Thank you, Your Honour.
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