DPP v Carpio
[2019] VCC 54
•31 January 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
KOORI COURT
CRIMINAL DIVISION
CR 18-01949
CR 18-01999
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN CARPIO |
---
JUDGE: | HIS HONOUR JUDGE GRANT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 December 2018 | |
DATE OF SENTENCE: | 31 January 2019 | |
CASE MAY BE CITED AS: | DPP v Carpio | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 54 | |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Bhai | OPP |
| For the Accused | Ms H Cooper | Leanne Warren & Associates |
HIS HONOUR:
1 Lachlan Carpio, you have pleaded guilty to seven charges on indictment and one related summary offence. The maximum penalty for each offence is as follows:
· Theft: 10 years' imprisonment;
· Armed Robbery: 25 years' imprisonment;
· Attempted carjacking: 10 years' imprisonment;
· Make threats to kill: 10 years' imprisonment;
· Trespass: 6 months' imprisonment or 25 penalty units; and
· Criminal damage: 10 years' imprisonment.
2 I have heard a summary of the offending. It is not my intention to repeat that summary.
3 Obviously, this is very serious offending.
4 The offending that occurred in April 2018 involved sudden and frightening violence directed against a man at the West Footscray tennis courts. You parked behind his car, thereby blocking his exit, and approached him asking for a cigarette. Within moments you produced a flick knife and put your foot through a window of his car. You took his phone, wallet and a $50 note. You chased him around his car before taking his car keys and driving your van from the scene. Although I have not been provided with a victim impact statement I have no doubt that the victim would have been terrified by your behaviour.
5 Charges 5, 6 and 7 on the indictment occurred on 14 May 2008 when at about 1 am a police officer tried to intercept you. It appears that this was in relation to an outstanding Children’s Court warrant. You ran from the officer and endeavoured to carjack a vehicle. In the course of that attempt you threatened to kill the two people inside the car. The pursuing police officer arrived on the scene and endeavoured to arrest you. You ran away and climbed the drainpipe of a nearby building. You entered the building via the roof cavity and you caused $2,783 worth of damage. The police critical incident response team and the police canine unit attended and after some negotiation you surrendered yourself at 4.30 am. You have been in custody ever since.
6 Even though the victims in charges 6 and 7 have not made victim impact statements, I have no doubt that they must, at the very least, have been scared and frightened by your behaviour.
7 With this offending, general deterrence, that is the need to deter others from behaving in the way that you did, is an important sentencing consideration. Denunciation of your behaviour and just punishment are also relevant.
8 You have a number of prior convictions for offences of violence. Your court appearances commence in early 2014 when you were just 14 years old. On 13 February 2014 you were sentenced in the Children’s Court to 6 months in a Youth Residential Centre for multiple offences that included robbery (2 counts), attempted armed robbery (2 counts), criminal damage by fire, aggravated burglary and 2 counts of recklessly cause serious injury.
9 There are a number of appearances after that date. In November 2015 the Children’s Court placed you on a 12 month Youth Supervision Order for a large number of offences including robbery and resisting an emergency worker. A special condition of that order required you to engage with the Youth Substance Abuse Service (YSAS) as directed. In March 2016 you were sentenced to one month’s detention in a youth justice centre with 56 days declared as pre-sentence detention. In November 2016 you were released on a six-month Youth Attendance Order for offences that included armed robbery. Finally, in October 2017 you were sentenced to a total of 18 months' detention in Youth Justice Centre for a large number of offences, including aggravated burglary, affray, armed robbery and assaulting an emergency worker on duty. It is an aggravating feature of your current offending that it occurred whilst you were on youth parole. Given your criminal history, specific deterrence and protection of the community are relevant sentencing considerations. Your criminal history, together with your inability to respond positively to previous youth justice interventions, also explains why I am very guarded about your prospects for rehabilitation.
10 Your personal circumstances have been comprehensively set out in three reports. The first, from ARBIAS, is dated 20 March 2013. Dr Julia Sheckleton, a clinical neuropsychologist, wrote the report. She saw you on 13 March 2013 when you were on remand at the Melbourne Youth Justice Centre. It is not clear to me why you were on remand at that time. You were only 13 years old. The second report is from Dr Aaron Cunningham, a forensic psychologist, who assessed you on 6 December 2018. The third is a comprehensive report from Youth Justice dated 29 January 2019. Much of what follows is a summary of the material from those reports.
11 You are a young Aboriginal man who comes from a background of instability, disadvantage and hardship. You were born in Western Australia. You are the fourth of eight children. You also have three older half siblings. You have lived in a number of different locations throughout Western Australia, Queensland and Victoria. Child Protection has had involvement with the family in each of those states.
12 You were 12 years old when the family moved to Victoria and since that time the family has changed addresses many times. Indeed, at the time of the current offending the family was homeless. Your mother has battled throughout her life to support you and your siblings. She has had to cope with one child being diagnosed with Acute Myeloid Leukaemia and another child who has had a hip condition that has seen him confined to a wheelchair at times. Your father has not always been a positive influence, with a history of violence towards your mother. You were exposed to this violence and also to the use of drugs, alcohol and inhalants from a young age. I was told that your father has spent time in prison.
13 Child Protection intervened in your life and you were found to be in need of protection by the Children’s Court of Victoria. You were placed on a Custody to Secretary Order that expired on 25 January 2016. As I already said, at the age of 13 you were remanded into youth custody where Dr Sheckleton assessed you. Her assessment indicated that your level of general intellectual ability was significantly lowered with your overall score falling in the Extremely Low range. Your cognitive ability was consistent with the criteria for Mild Intellectual Disability. Given your background and your disability it is no surprise to be told that you are poorly educated.
14 In her report Dr Sheckleton said:
"Lachlan’s extremely low level of intellectual ability places him at a significant disadvantage compared to his same aged peers. His overall performance at the current assessment indicates that he is functioning at a level which is below more than 98 per cent of his same aged peers (approximately). Lachlan’s low level of intellectual functioning is considered to be long-standing and likely irreversible, meaning that it is most likely to remain at or below this level. His performance at the current assessment demonstrated that he possesses very basic problem solving and reasoning skills ... Lachlan’s cognitive profile is likely to have a substantial impact on his adaptive and functional skills in the community. His ability to successfully navigate his way through even mildly complex issues which occur in everyday life is also impacted by his extremely low level of intellectual ability. Lachlan will therefore benefit from long term support which recognises his low level of cognitive ability and his ability to identify and capitalise on functional strengths".
15 In his report, Dr Cunningham confirms Dr Sheckleton’s findings in relation to your low level cognitive abilities. He notes that at the age of 15 you started using methylamphetamine and, in more recent times, liquid GHB. He also opines that you suffer from Post-Traumatic Stress Disorder as a result of the trauma you suffered in your formative years, particularly the violence directed by your father towards your mother. It is his opinion that there are in essence three matters that feed into your criminal behaviour - your history of childhood trauma, the disinhibiting impact of drug abuse and your low-level cognitive abilities acting to impair your thinking and reasoning abilities.
16 Dr Cunningham also expressed the opinion that, because of your mental impairment and young age, you are at risk of abuse and manipulation in an adult gaol environment. He recommended a further attempt at rehabilitation through the Youth Justice system, where there would be a focus on appropriate psychological intervention, drug and alcohol counselling and, engagement with disability services.
17 Whilst the affidavit from Mr Brendon Money, Assistant Commissioner, Sentence Management Division, Corrections Victoria, contradicted Mr Cunningham’s opinion as to your vulnerability in the adult system, I nonetheless decided because of your age and personal circumstances, to obtain a detailed pre-sentence report from Youth Justice before making a final decision on how you should serve your time in custody.
18 The report from Youth Justice is unfavourable. It notes the efforts that have been made over the past five years to support you in the youth justice system. Those efforts have included intensive support in the community by way of a Youth Supervision Order, a Youth Attendance Order, and a youth parole order. Notwithstanding that support, the offending has continued. As I have already said, the current serious offending occurred whilst you were on Youth Parole. The report from Youth Justice says this:
"Given Lachlan’s history, his immediate prospects for rehabilitation must be considered marginal. He has stated some good intentions and desires to break his offending pattern by accessing treatment and training programs. Nevertheless, he has been unable to sustain and consolidate the same positive improvements in his behaviour and decision-making".
19 I cannot disagree with that assessment.
20 The report also refers to your poor behaviour in youth detention in the past. For example, you are described as being a leader of the Parkville riots in October 2017. The report says:
“It is however the assessment of custodial services that Lachlan’s behaviour in Youth Justice has become more sophisticated and manipulative which has been - I interpose here that I think that word should be 'seen' - demonstrated reports of his standover and intimidation of staff and others to introduce contraband and his sustained pattern of resistance to therapeutic services".
21 This assessment is consistent with the affidavit of Mr Money (that I have already referred to) detailing your behaviour in adult custody.
22 Your past behaviour in youth detention and your recent behaviour in adult custody speaks against Mr Cunningham’s opinion that you are at risk of abuse and manipulation in the adult system.
23 Mr Carpio, considering the serious nature of the current offences, your past criminal history, your past failures to respond to the supports offered through the Youth Justice system, your past behaviour in youth detention and your reported behaviour whilst on remand in adult custody, a sentence of detention in a Youth Justice Centre would not be an appropriate order in this case. Nor would a combined sentence. A sentence of imprisonment is the only suitable order. In imposing that sentence I must, of course, ensure that I comply with the principle of totality. That is, I must evaluate the overall criminality involved in all of the offences for which you are to undergo sentence, ensuring that there is no disproportion between the totality of your criminality and the totality of the effective length of sentence imposed.
24 In determining your sentence I have taken account of the following matters in mitigation.
25 First, you have suffered significant hardship and disadvantage in your formative years and for this reason there should be some moderation of the application of the principles of deterrence and denunciation. On the other hand, your background has left you with a concerning propensity to behave aggressively and violently towards others. This means I have to carefully balance the moderation that flows from your disadvantaged background with the need to make orders that protect the community.
26 Secondly, it is a relevant matter that this sentence will be your first period of adult custody.
27 Thirdly, you are still a young offender. You are 19 years old. As a general rule, a court places very great weight on the principle of rehabilitation in dealing with offenders of your age. However, the serious nature of these offences together with your prior criminal history means that rehabilitation is not the paramount consideration in this case. Appropriate weight must also be given to those other principles such as deterrence, just punishment, denunciation and community protection.
28 Fourthly, whilst Disability Services have assessed you as being "outside of the legislated Target Group" to receive their services, I am satisfied that you do suffer an intellectual impairment that influences your behaviour. It is a matter that I take into account, in a general way, in determining your sentence.
29 Fifthly, you have entered pleas of guilty at a very early stage. In doing so you have accepted responsibility for your offending and saved the victims from the trauma of giving evidence. In addition, your plea has saved the community the cost and expense associated with a criminal trial. You will be given appropriate credit for these matters.
30 Finally, you consented to having the charges heard in the Koori Court. In doing so you agreed to participate in a process that involved appearing before Elders from the Koori community. You participated in a positive way. You expressed remorse for your behaviour and you showed some insight into the problems in your life that you need to address. You said that you understood the importance of addressing your drug addiction and the importance of maintaining appropriate engagement with therapeutic services. If you were able to act on your insights, your prospects for rehabilitation would be enhanced. The report from Youth Justice confirms that whilst in adult custody you have completed programs including, programs relating to the abuse of drugs and alcohol. You have also expressed a desire to work. These are positive developments which, if built upon, may provide some hope for your future. However, it is important to keep these matters in perspective. You have found it very difficult in the past to maintain commitment to your rehabilitation, outside a custodial environment. That is notwithstanding the very strong support that you have had from your youth justice workers in the past.
31 Will you please stand. You are sentenced as follows.
32 On Charge 1, which is the armed robbery: 3 years and 3 months' imprisonment;
33 Charges 2, 3 and 4: 3 months' imprisonment on each charge;
34 Charges 5, 6 and 7: an aggregate term of 18 months' imprisonment on those three charges;
35 On the summary charge of trespass: 2 months imprisonment.
36 I order 6 months of the aggregate sentence on Charges 5, 6, and 7 be served cumulatively upon the sentence imposed on Charge 1. This makes a total effective sentence of 3 years and 9 months' imprisonment. I fix a minimum term of 2 years and 6 months before you will be eligible for release on parole. I make a declaration that you have served 262 days pre-sentence detention.
37 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence of 5 years and 3 months' imprisonment with a minimum term of 4 years before you would be eligible for release on parole.
38 You can take a seat there for the moment. Were there any other matters, Ms Bhai? You didn't have any other orders that needed to be made?
39 MS BHAI: No, Your Honour. No.
40 HIS HONOUR: Thank you. Mr Carpio can be removed.
- - -