Lachlan Carpio v The Queen
[2019] VSCA 244
•29 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0040
| LACHLAN CARPIO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 October 2019 |
| DATE OF JUDGMENT: | 29 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 244 |
| JUDGMENT APPEALED FROM: | DPP v Carpio [2019] VCC 54 (Judge Grant) |
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CRIMINAL LAW – Appeal – Sentence – Armed robbery, theft and other offences – Applicant participated in riots at Parkville Youth Justice Centre – Young offender – Applicant characterised as ‘leader’ of riots in pre-sentence report – Whether sentencing judge erred by accepting that characterisation – Leave to appeal refused – No material error established – Substantial criminal history – Applicant not a candidate for Youth Justice Centre detention – Sentencing Act 1991 s 8D.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Leanne Warren & Associates |
| For the Respondent | Mr P L Bourke | John Cain, Solicitor for Public Prosecutions |
WHELAN JA
I agree with Priest JA.
PRIEST JA:
Following a ‘sentencing conversation’ in the Koori Court Division of the County Court, on 31 January 2019 the applicant was sentenced to a total effective sentence of three years and nine months’ imprisonment, with a non-parole period of two years and six months, for armed robbery and other offences. The sentencing orders are conveniently summarised in the following table:
Charge Offence Sentence Cumulation 1 Armed robbery[1] 3 years 3 months Base 2 Theft[2] 3 months 3 Theft 3 months 4 Theft 3 months 5 Attempted carjacking[3] 1 year 6 months (aggregate) 6 months 6 Making a threat to kill[4] 7 Intentionally damaging property[5] Relevant summary offence 4 Wilful trespass[6] 2 months 3 Total effective sentence 3 years and 9 months’ imprisonment Non-parole period 2 years and 6 months Pre-sentence detention 262 days Section 6AAA declaration 5 years and 3 months’ imprisonment with 4 years non-parole [1]Crimes Act 1958, s 75A. The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 74(1). The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, ss 79(1) and 321M. By virtue of s 321P, maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.
[5]Crimes Act 1958, s 197(1). The maximum penalty is 10 years’ imprisonment.
[6]Summary Offences Act 1966, s 9(1)(d). The maximum penalty is six months’ imprisonment or 25 penalty units.
The applicant seeks leave to appeal on a single ground asserting specific error:
The sentencing judge erred by having regard to the fact that the applicant was described in the Youth Justice pre‐sentence report as ‘a leader of the Parkville riots in October 2017’, a description that was not true.
I would refuse leave to appeal. In my opinion, the complaint embodied in the ground is without substance.
The applicant today turned 20.[7] He was aged 18 years when he committed the present offences. Born in Western Australia the fourth of eight children, the applicant is a young Aboriginal man whose family moved to Victoria when he was 12 years of age. At the time of the current offending, his family was homeless. As the sentencing judge put it, the applicant ‘comes from a background of instability, disadvantage and hardship’.
[7]His date of birth is 29 October 1999.
For one so young, the applicant has an appalling criminal history. Thus, in the Children’s Court on 13 February 2014 he was sentenced to be detained in a Youth Residential Centre on charges which included recklessly causing injury (two charges); robbery (two charges); attempted armed robbery (two charges); aggravated burglary; burglary; arson; damaging property; theft (five charges); theft of a motor vehicle; attempted theft from a motor vehicle; tampering with a motor vehicle; obtaining property by deception (six charges); and bail offences. A few months later, on 19 June 2014, the Children’s Court sentenced the applicant to another period of Youth Residential Centre detention for recklessly causing injury; resisting police; and stating a false name. The following year, on 12 November 2015, the Children’s Court released the applicant on a Youth Supervision Order for 12 months, with a condition that he engage with YSAS (Youth Substance Abuse Service), on charges including robbery (two charges); resisting an emergency worker on duty (two charges); dealing with property suspected of being the proceeds of crime; obtaining property by deception (eight charges); theft; theft of a motor vehicle; theft from a motor vehicle; theft from a shop; bail offences (five charges); and driving offences. On 9 March 2016 and 30 November 2016, he was dealt with for a range of offences, including armed robbery; assaulting an emergency worker; theft; theft of a motor vehicle; and other dishonesty and driving offences. Significantly, on 30 October 2017, the applicant was sentenced in the Children’s Court to a term of 18 months’ detention in a Youth Justice Centre for offences including aggravated carjacking; armed robbery; affray; assault; assaulting an emergency worker; criminal damage; burglary; theft; theft of a motor vehicle; a host of other dishonesty offences; escaping from a prison or police gaol; wilfully trespassing in a public place; and bail, weapon and drug offences. Finally, on 2 February 2018, the Children’s Court released him on a Youth Supervision Order for three months for assault by kicking.[8]
[8]The applicant also has convictions and findings of guilt in the Children’s Court, South Australia, on 22 January 2014, related to dishonesty, driving and other offending; and in the District Court of New South Wales (on appeal from the Children’s Court) on 13 May 2016 and 16 June 2016, for a range of dishonesty and driving offences.
Certainly so far as the first charge is concerned, the applicant’s conduct was disturbing. The sentencing judge aptly described it as ‘sudden and frightening violence directed against a man at the West Footscray tennis courts’. In the Summary of Prosecution Opening Upon Plea the applicant’s offending was described as follows:
Charge 2:
2. About 5:00 pm on Saturday, 14 April 2018, the [applicant] drove a maroon Chrysler van to the Coles Express service station on The Avenue, Ardeer. The [applicant’s] girlfriend, Gina Toamau, was a passenger in the van. She put $60.00 worth of fuel in car. The [applicant] and Toamau drove away without paying for the fuel.
Charge 1:
3. At about 6:30 that evening (14 April 2018) the [applicant] drove the van to Wattle Street, [Footscray]. He stopped the van in the carpark of the tennis courts next to a parked Holden Commodore wagon. The Commodore was owned by Alex McLaws (aged 22). McLaws was returning to his car as the [applicant] parked. McLaws got into his car.
4. The [applicant] gestured to McLaws to put his window down. McLaws did, and the [applicant] asked him, ‘what are you doing?’. McLaws said ‘nothing mate, I am just about to leave’. McLaws put his window up.
5. The [applicant] drove the van directly behind McLaws’ car (which prevented him from leaving the carpark). The [applicant] was yelling out from his car. McLaws put the window down again and heard the [applicant] ask for a cigarette. McLaws told him that he didn’t have a cigarette.
6. The [applicant] got out of the van and rushed over to McLaws. He asked again for a cigarette. McLaws looked around his car, found a pouch of tobacco and gave it to the [applicant].
7. The [applicant] said, ‘can you roll it for me?’. McLaws said no and the [applicant] threw the tobacco back at McLaws.
8. McLaws said, ‘can you just let me go’. The [applicant] ‘got really aggressive’ and pulled out a flick knife. The blade of the knife was approximately [five] inches long.
9. McLaws was trying to put the window up and get away. The [applicant] said, ‘put the window down, I’ll break the fucking window’. The [applicant] kicked the car window causing it to smash.
10. McLaws jumped out of the passenger side of the car. The [applicant] lent [sic] into the car and took McLaws’ phone, wallet and a $50 note from the centre console.
11. The [applicant] repeatedly asked for ‘the bags’. McLaws did not have any bags.
12. McLaws was scared of the [applicant] and so picked up a mug that was in the car. The [applicant] said, ‘I’ll fuckin get you, I’ll get you’. He chased McLaws around the car.
13. The [applicant] then took the keys out of the ignition, returned to his van and drove away.
14. McLaws contacted police.
Charge 3:
15. At about 1:30 pm on 16 April 2018 (two days later) the [applicant] drove the van to the BP service station on Geelong Rd, Brooklyn. Gina Toamau, was a passenger in the van. She put $50.00 worth of fuel in car. The [applicant] and Toamau drove away without paying for the fuel.
Charge 4:
16. At about 9:10 am on 24 April 2018 (about a week later) the [applicant] drove the van to the Coles Express service station on Fitzgerald Rd, Derrimut. He put approximately $73.00 worth of fuel in car. The [applicant] drove away without paying for the fuel.
Charges 5 and 6:
17. At 1:00 am Monday 14 May 2018 the [applicant] was a passenger in [a] taxi travelling along Leeds St, Footscray. Detective Acting Senior Sergeant Jarman intercepted the taxi. As he walked toward it, the [applicant] ran. Detective Jarman chased him, calling out to him to stop.
18. The [applicant] ran towards Chambers Street. He turned to face Detective Jarman and attempted to open the zip of the waist-pack he was wearing. Detective Jarman drew his firearm and demanded he stop and get on the ground. The [applicant] then turned and ran onto Paisley Street.
19. Md Hoque was sitting in his car which was stopped in Paisley Street. He was driving an uber and had just picked up Matthew Crowe who was on his way home from work.
20. He was about to drive away when the [applicant] approached the car and tried, unsuccessfully, to open the driver’s door. He punched the widow. He then opened the right rear door of the car and aggressively shouted ‘drive, drive, drive’. Crowe said no. The [applicant] said to ‘drive or I’ll kill you both’. He grabbed Hoque on the shoulder and again said ‘drive or I’ll kill you both.’
21. Detective Jarman approached the car and tried to open the right rear door. However, the [applicant] was holding it shut. Detective Jarman went around the other side of the car. Hoque opened the window and Detective Jarman deployed his OC [oleoresin capsicum] spray onto the [applicant]. The [applicant] got out of the car and ran.
Charge 7 and related summary offence:
22. After running from police, the [applicant] climbed a drain pipe onto the roof of a nearby building.
23. Police Air Wing members attended. Using an infra-red camera they observed the [applicant] on the roof top. About 2:00 am the [applicant] entered the roof cavity of the building.
24. The [applicant] made his way through the roof space to Victoria University Metro West. He fell through the roof. He was seen by police in the reception area but they were unable to access the building.
25. When the [applicant] saw the police he broke open glass doors within the building and went further inside the building.
26. Members of the critical incident response team and the canine unit attended. After negotiating with police the [applicant] came out of the roof space, and was arrested, at about 4:30 am.
27. The [applicant] caused damage to doors and ceilings at various parts of the centre. The cost of repairing the damage was $2,783.
At the time of the offending, the applicant was on youth parole, which, as the judge acknowledged, is an aggravating feature.[9]
[9]See DPP v Dickson (2011) 32 VR 625, 628 [11].
Counsel for the applicant submitted that the judge ought to consider sentencing the applicant to be detained in a Youth Justice Centre (rather than imprisonment), a course that was not resisted by the prosecution.[10] As a result, the judge had the applicant assessed by Youth Justice for suitability for detention in a Youth Justice Centre, and was furnished with an appropriate report, dated 29 January 2019. In his sentencing reasons, the judge remarked:
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.
…
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 [seen] … demonstrated reports of his standover and intimidation of staff and others to introduce contraband and his sustained pattern of resistance to therapeutic services.
[10]By virtue of s 32(1) of the Sentencing Act 1991, if a sentence involving confinement is justified in respect of a young offender — that is, an offender who at the time of being sentenced is under the age of 21 years — a judge may make a youth justice centre order if it has received a pre-sentence report and the judge believes either that there are reasonable prospects for the rehabilitation of the young offender, or that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
Counsel for the applicant seized on the judge’s reference to the observation in the pre-sentence report that the applicant was ‘a leader of the Parkville riots in October 2017’.[11] This reference, so counsel submitted in this Court, demonstrated that the sentencing discretion miscarried. It was contended that, in her submissions to the sentencing judge, the applicant’s counsel had clarified that the applicant was not a leader of the Parkville riots. The sentencing judge, it was submitted in writing, ‘mistook the true facts and consequently had regard to an irrelevant consideration, a consideration that in turn infected the sentencing process as a consequence of its role in his Honour’s execution of the instinctive synthesis’. Counsel contended that this ‘was not a trivial or inconsequential error, given the scale of those riots and the criminality associated with being a leader of them’, and that it ‘was unfair to the applicant that that misinformation ultimately informed the sentencing task’. If error is established, a lower sentence ought to be imposed having regard to the applicant’s youth; onerous experience in adult gaol; early guilty pleas and remorse; participation in the Koori Court process; exposure to violence from a tender age that precipitated his Post-Traumatic Stress Disorder (‘PTSD’); intellectual impairment; and circumstances, including homelessness, at the time of offending.
[11]This is an apparent reference to a riot at the Parkville Youth Justice Centre which involved a number of youth detainees.
In oral submissions, counsel for the respondent in this Court accepted that, when the applicant was to be sentenced in relation to his participation in the ‘Parkville riots’, the prosecution had not alleged that he was a ‘leader’, only that he was a ‘participant’. Thus, insofar as the pre-sentence report suggested that he was a ‘leader’, it was ‘wrong’. As counsel pointed out, however, the reference to the applicant’s participation in the riots was but part of a more detailed description of the applicant’s overall behaviour in custody, so that the reference to him being a leader rather than a participant was of ‘no moment’. Far more pertinent was the judge’s reference to that part of the report describing the applicant’s ‘more sophisticated and manipulative’ behaviour in detention, and ‘reports of his standover and intimidation of staff and others to introduce contraband and his sustained pattern of resistance to therapeutic services’.
In my view, even if it be accepted that the author of the pre-sentence report — who, I note, had been the applicant’s case manager ‘for a number of years’ — erred when describing the applicant as a ‘leader’ of the riots, I do not accept that the applicant has demonstrated that the sentencing judge’s exercise of discretion somehow thereby miscarried.
Section 8D of the Sentencing Act 1991 provides a mechanism for challenging a pre-sentence report. It is in the following terms:
8D Disputed pre-sentence report
(1) The prosecution or the defence may file with the court a notice of intention to dispute the whole or any part of a pre-sentence report.
(2) If a notice is filed under subsection (1) before sentencing is to take place, the court must not take the report or the part in dispute (as the case requires) into consideration when determining sentence unless the party that filed the notice has been given the opportunity—
(a)to lead evidence on the disputed matters; and
(b)to cross-examine the author of the report on its contents.
The effect of s 8D is that a party may file a notice of intention to dispute the whole or part of a pre-sentence report. Once such a notice is given, a sentencing judge cannot take the disputed part of the report into consideration when determining sentence unless the party who has filed the notice has been given the opportunity to lead evidence on disputed matters and cross-examine the author of the report on its contents.
In the present case, the first part of the plea hearing (involving the sentencing conversation) was conducted on 17 December 2018. The hearing was then adjourned so that the judge could obtain a pre-sentence report. By the time that the plea resumed on 31 January 2019, the parties had been furnished with the pre-sentence report from Youth Justice. The judge said ‘so there may be more submissions you want to make, [defence counsel], in relation to the report, … [so] now is the opportunity for further submissions to be made on sentence’. As the record reveals, defence counsel neither sought to lead any evidence, nor to cross-examine the report’s author. The following exchange reflects the sum total of what was put on the applicant’s part with respect to the contentious part of the report (that is, that he was a ‘leader’ of the Parkville riots):
[DEFENCE COUNSEL]: In terms of the ultimate conclusion with the suitability assessment, it does say that [the applicant] is not suitable for a youth justice centre order from the Department’s perspective. At the end of the day, it’s a decision for Your Honour in terms of whether or not Your Honour is of the view that a youth justice centre order would be appropriate in any event, and what I - - -
HIS HONOUR: But the report speaks strongly against the making of such an order.
[DEFENCE COUNSEL]: It does, but in my submission the majority of the matters raised in the report were matters that were known at the time of the plea in terms of the behaviour and conduct in adult prison. That was already known at that stage.
HIS HONOUR: But what wasn’t known is, his poor behaviour in the youth justice centre in the past.
[DEFENCE COUNSEL]: It was certainly known that there had been involvement, although not at a ringleader level in terms of the riots at Parkville. That’s on the prior history, so that's not something that’s new. That’s noted in the report at p.6. It mentions that he was a leader in the Parkville riots. I represented Mr Carpio for that. He wasn’t submitted to be a leader. He was involved, yes, and pleaded guilty to criminal damage, which is what all of the children were charged with, but it certainly wasn’t the case that he was a ringleader. That was at Parkville at a younger age. …
Not only was the assertion in the report that the applicant was ‘a leader’ of the Parkville riots not challenged in the manner contemplated by s 8D, but the submissions made in support of the proposed ground of appeal ignore the wider context in which the impugned statement in the report appears. Quite plainly, the contentious aspect of the pre-sentence report needs to be put into proper context. It falls within the following paragraphs at the conclusion of the report:[12]
[12]Emphasis added to this and following passages.
Suitability for a Youth Justice Centre Order
In regard to suitability for a Youth Justice Centre Order the writer must adhere to Section 32 of the Sentencing Act 1991. The Act specifies that the critical components for the Court to consider are:
► Reasonable prospects for rehabilitation; or
► Is particularly impressionable, immature or likely to be subject to undesirable influences in an adult jail.
When considering Lachlan’s prior opportunities to rehabilitate via the Youth Justice system, persistent serious offending and his continued display of anti-social behaviour both in the community and custodial facilities, it is the Department’s assessment that Lachlan does not adequately meet the criteria as suitable for a Youth Justice Centre Order.
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.
The writer notes Lachlan’s youthfulness, Aboriginality, and cognitive impairments. Lachlan is a young person lacking the internal fortitude to effectively deal with his complexities and problem solve, despite his desire to lead an offence free lifestyle. Lachlan has not been subject to a Youth Justice Centre Order through the adult jurisdiction previously however has been afforded the same opportunities due to his age that young people who are part of the dual track system experience such as placement in the least restrictive environment by way of placement in the open units and he has failed to embrace this opportunity by his conduct, standover and introduction of contraband resulting in his return to a secure unit. His positive presentation, display of regret, together with his constructive attitude should be noted however premised on the basis that his is consistent when he is a contained environment and ordinarily at the time of finalisation of his matters.
Youth Justice custodial services have been consulted in relation to Lachlan’s suitability for a further sentence in youth justice. Custodial Services have indicated significant concerns based on his involvement in behaviour that has continued to threaten the safety and good order of the centre, he was a leader of the Parkville Riots in October 2017 that resulted in the loss of a significant amount of accommodation units. To Lachlan’s credit he has opportunity to involve himself in the Malmsbury escape in January 2017 indicated his ability to engage in consequential thinking and reasoning as well as a marked increase in maturity. It is however the assessment of custodial services that Lachlan’s behaviour in youth justice has become more sophisticated and manipulative which has been demonstrated reports of his standover and intimidation of staff and others to introduce contraband and his sustained pattern of resistance to therapeutic services.
The writer has read all the information supplied by the Court and has consulted with the relevant authorities in the Youth Justice system in regard to Lachlan’s suitability to a Youth Justice Centre Order. It is the view of the Department of Justice and Community Safety (Youth Justice) that Lachlan Carpio does not adequately meet the criteria stipulated in the Act, therefore, not considered suitable for a Youth Justice Centre Order.
These matters are respectfully placed before the Court for its consideration.
An earlier part of the report casts light on why the applicant was assessed as unsuitable for detention in a Youth Justice Centre:
Current situation/ Assessment interview
Lachlan is currently remanded at Port Phillip Prison and has been in adult custody since 14 May 2018. Initially being remanded at Metropolitan remand centre (MRC), Lachlan was classified to maximum security and has never been housed in a youth unit due to his assaultive behaviours on other prisoners along with returning a significant number of positive urine screen for buprenorphine which has required period of times on restricted regimes. The issue of contraband use and introduction was present when Lachlan was in the youth justice custodial setting.
As the writer has been Lachlan’s case manager for a number of years, visits were maintained to him whilst he was at MRC, following the request of this report the writer conducted a further [three] visits at Port Phillip prison to complete the current assessment on 31/12/18, 16/1/19 and 23/1/19.
Lachlan has not settled into the prison environment, having spent the majority of his remand time on management regimes resulting out of suspected dealing in contraband, positive urine screens and fighting with as well as assaulting other inmates. There was also an incident where the guards found a note that Lachlan was ‘going to be assaulted to be taught lesson’ as a result of standing over other inmates, and was briefly isolated for his own protection whilst the matter was investigated and reported that Lachlan raised no concerns regarding his safety and he was placed into another unit. This behaviour is of significant concern should Lachlan be placed into the youth justice setting given the vulnerability of young people in youth justice and Lachlan being confident and prepared to stand over, intimidate and assault adult prisoners.
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It is also to be noted that the judge also had before him an affidavit sworn by Mr Brendan Money, Assistant Commissioner, Sentence Management Division, Corrections Victoria, sworn 13 December 2018. Without reciting its contents in any detail, it recorded that the applicant had been remanded to the Melbourne Assessment Prison (‘MAP’) on 15 May 2018. Among other things, Mr Money deposed that, whilst at MAP, the applicant had been involved in damaging his cell; had apparently put graffiti on walls; had physically fought with other prisoners; in urine screens had tested positive several times for buprenorphine; and had been found in possession of buprenorphine. As a result of his behaviour, the applicant had been warned; been moved to different units; and had been disciplined at a number of Governor’s Disciplinary Hearings.
Although, of course, when examining the judge’s exercise of the sentencing discretion the principal focus must be on the judge’s reasons for sentence, the following exchange between counsel and judge upon the resumed plea hearing is also illuminating:
HIS HONOUR: All right. But [defence counsel], this notion of intimidation of others and introducing contraband is corroborated by the affidavit that I’ve received from Brendan Money about his behaviour in adult custody.
[DEFENCE COUNSEL]: Yes, in relation to the contraband, it was a suspicion of bringing contraband in. There’s never been any charges in respect of that. The affidavit largely referred to the positive urine screens. There was one instance where there was a letter that was written, suggesting that Mr Carpio was going to be assaulted to be taught a lesson because he had been standing over, and there were a couple of instances of fighting in custody as well, where there were charges in custody, and they were dealt with.
But just in terms of the contraband, there weren’t any charges in relation to that, although as a result of that he spent a significant period of time in the management regimes in the 23-hour lockdown as a result of that.
HIS HONOUR: But given his behaviour in custody, use of buprenorphine, at times refusing to submit urine samples, found with a white substance in folded paper which was clearly buprenorphine, refusal on one occasion to attend court, said to be engaged at times in fights with others. This doesn’t indicate a young man who’s subject to undesirable influences in an adult prison. It indicates a young man that’s a real management issue in the prison system.
[DEFENCE COUNSEL]: Well, in terms of the undesirable influences, the first paragraph on p.5 does say that Mr Carpio had reported that he has been pressured by other prisoners to follow their directions, so in terms of being subject to influences there is a level of that that he reported to Your Honour. But that's not the only consideration for Your Honour. If Your Honour’s of the view that there are reasonable prospects for rehabilitation, that’s sufficient.
HIS HONOUR: Yes, well I’m not. How could I be, given the history of a man who — and look, he’s a man with complex problems, and multiple complex needs. At one level his engagement in the system from a very young age indicates how the system has failed him. But he’s had the opportunity on youth supervision order, youth attendance orders, youth parole. This offending occurs whilst he’s on youth parole.
[DEFENCE COUNSEL]: It did occur whilst he was on parole, and I note the paragraph in relation to his performance on parole doesn’t really make a lot of sense in terms of the way it’s written. It indicates at the top that his compliance was not positive, and then at the bottom of the sentence says he largely adhered to the conditions of his parole.
...
And obviously that all occurred in the context of the whole family being made homeless and not having anywhere to live. And that was detailed on the last occasion, and there's also reference made to that in this report.
HIS HONOUR: But one thing you don’t expect someone on youth parole to do is to commit an armed robbery, and then a little while later to be involved in an attempted carjacking, threatening to kill the people in the vehicle, and then absconding from the police. So it’s not just the case of a person committing one very serious offence, it’s a case of a person committing two lots of serious offences.
And the whole point of youth parole is to offer a young offender very strong support in the community, designed to try and ensure they don’t reoffend. And when you’ve got someone who’s had the benefit of a youth supervision order, which is an intensive form of support; a youth attendance order, an even more intensive form of support; youth parole order, and they continue to offend, then a court has to be incredibly guarded about the person's prospects.
He’s not a reasonable prospect for rehabilitation, unfortunately.
In the light of the foregoing, the respondent has persuaded me that the judge’s reference to the applicant being the leader of the Parkville riots — even if it be assumed to be erroneous to so characterise his participation — could not materially have affected the sentence imposed by the judge. Those parts of the pre-sentence report that remained unchallenged, coupled with the other material available to the judge (including Mr Money’s affidavit and the applicant’s criminal history), made it abundantly clear that the applicant was not a candidate for detention in a Youth Justice Centre.
Finally, I should observe that, had I concluded that the sentencing discretion had miscarried in the manner primarily contended for by the applicant, I would nonetheless have refused leave to appeal, since there is no reasonable prospect that a less severe sentence would be imposed.[13] In my view, notwithstanding the applicant’s history of deprivation and abuse; his associated PTSD; and his intellectual deficits; given the objective gravity of the applicant’s offending, and his very poor criminal record, the sentence imposed by the judge is lenient.
[13]See Criminal Procedure Act 2009, s 280.
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