McGee and Ors

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00274
CR-21-00273

DIRECTOR OF PUBLIC PROSECUTIONS

William MCGEE and Colin CHARLES

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2021
DATE OF SENTENCE:	15 September 2021
CASE MAY BE CITED AS:	McGee & Ors
MEDIUM NEUTRAL CITATION:	[2021] VCC 1333

REASONS FOR SENTENCE
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Subject:Armed robbery
Catchwords: Guilty plea - high utilitarian value – deprived background – participation in sentencing conversation – additional criminality (McGee) – application of Verdins principles (Charles)
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act (1991) (Vic).
Cases Cited:Worboyes v R [2021] VSCA 169; Williams v R [2018] VSCA 171;
Farhan Fariah v The Queen [2021] VSCA 213; Marrah v The Queen
[2014] VSCA 119; Green v The Queen (2011) 244 CLR 462; Honeysett v R [2018] VSCA 214; R v Morgan (2010) VR 230

Sentence: McGee – TES 3 years, 4 months’ imprisonment, 2 years non-parole period.
Charles – 16 months’ imprisonment, 2-year community correction order with special conditions of supervision, drug and mental health rehabilitation and treatment, justice plan and judicial monitoring.

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APPEARANCES:

Counsel

Solicitors

For the Director of Public Prosecutions

Mr D Cordy

Office of the Director of Public Prosecutions

For William McGee

For Colin Charles

Ms A Kapitaniak

Mr E Brennan

Kurnai Legal

Emma Turnbull Lawyers

HIS HONOUR:

1William McGee and Colin Charles, you have pleaded guilty to a charge of armed robbery contrary to s 75A of the Crimes Act 1958 (Vic).
2William McGee you have also pleaded guilty to:
(a)one charge of conduct endangering persons contrary to s 23 of the Crimes Act; and
(b)a related summary charge of committing an indictable offence, armed robbery, whilst on bail.

Your offending occurred on 14 August 2020.
The circumstances are set out in the Summary of Prosecution Opening Upon Plea dated 24 June 2021.[1] They are agreed facts.
[1] Exhibit A.
Early in the morning of 14 August 2020, the two of you drove to a Kialla address. Anthony McNair was standing in the driveway. You, McGee, lowered the car window and asked him whether he was Anthony McNair. When he said he was, both of you got out of the car, you, McGee, from the driver’s seat, and you, Charles, from the front passenger seat.
You, McGee, told McNair he was a paedophile and “Leana” had told you to come and shoot him six weeks ago. You said, if he was a paedophile you would have put a bullet in his head.
The two of you got back into the car. There was a third person seated in the rear seat.
McNair asked his friend, Brett Sweet, who lived with him, to drive him to Mooroopna. When they left in McNair’s car, the two of you, with McGee driving, followed them. When they arrived at a Mooroopna address McNair got out of the car and went inside a house. When the friend drove off, you, McGee, followed him, along the causeway, travelling within millimetres of the rear of the car and flashing your headlights.
When Sweet turned onto Welsford Street, Shepparton, you, McGee, rammed the rear of the car he was driving. As he drove on you rammed his car three more times, before you drove around him and away. At approximately 4:00 am, Sweet called 000 to report the incident (McGee – Charge 2 – Reckless conduct endangering persons).
Sometime between 7:00 and 8:00 am, McNair arrived by car, with other friends, at a Kialla address where Narelle Jafer lived. When he got out of the car you both ran towards him. You, McGee, were carrying a baseball bat and you, Charles, a metal pole. The two of you blocked him from getting back into the car. You, McGee, told McNair that the three of you needed to go inside to talk.
Ms Jafer opened the front door of the house. You directed McNair into the lounge room and told him to sit on the couch. You, Charles, sat down next to McNair, put the metal pole on the floor and rummaged through his bag which contained his mobile phone.
You McGee, remained standing. You yelled at McNair demanding money and drugs. After he told you he didn’t have any, you threatened to “smash” him and hit him across his left shoulder with the baseball bat. When you moved to hit him again, McNair told you to stop and took his wallet from his back pocket. You, Charles, snatched it from him. There was $1,250 in cash in the wallet.
You, McGee, pulled a gold ring from McNair’s finger. McNair yelled at you to give it back. You, Charles, also yelled at McGee to give it back. You, McGee, returned the ring to McNair and told him you would be back for more and he better have a “1/2 ball” for you. When McNair repeated he didn’t have any drugs, you, McGee, told him he would have more money and he would give it to you (McGee and Charles – Charge 1 – Armed robbery).
The two of you then left the house with McNair’s mobile phone and wallet. McNair left shortly after you. His friend drove him home where he reported the robbery to police.
You, McGee, were on bail when you committed these crimes (McGee – Summary Charge 10 – Commit indictable offence on bail).
When police showed McNair photo boards, he identified you, McGee, but did not identify you, Charles.
On 15 August 2020, police arrested you, Charles. You were erratic and appeared highly drug affected. You were not fit to be interviewed. You were remanded in custody.
The next day, on 16 August 2020, during police questioning, you said McNair was a friend who sold drugs. You said you also knew Sweet. You said it had been a “while ago” since you had seen either of them.
You said you knew Jafer and had recently been at her house. You said you were being verbally stood over by McGee to go there with him to see McNair and did not want anything to do with it. You said you did not do anything wrong.
On 18 August 2020, after a phone call from police, you, McGee, voluntarily surrendered yourself at Shepparton police station where you were arrested, charged and remanded in custody.
You exercised your right to remain silent when police questioned you about your offending.
The charges against both of you were resolved following a committal hearing, which was conducted to identify and narrow the issues, in February 2020.
Each of you have a criminal record.
You, McGee, have admitted a number of convictions in Shepparton Magistrates’ Court between 29 July 2016 and 13 December 2019.
On 29 July 2016, you were fined $500 for making threat to kill, assault with a weapon, drug possession and driving offences.
On 16 June 2017, you were placed on a six-month community correction order for possession of a controlled weapon and a dangerous article, shop theft and driving offences.
On 13 March 2018, you were fined $1,000 for unlawful assault, possess a dangerous article and driving offences.
On 22 August 2019, you were placed on a three-month community correction order for contravening a conduct condition of bail and driving an unregistered motorcar.
On 13 December 2019, you were placed on a 12-month community correction order for shop theft, possessing a dangerous article, committing an indictable offence while on bail and other offences.
During the term of that order you committed these crimes.
You, Charles, have an extensive criminal history of summary dishonesty, violence, drug and weapons offences, and driving offences, between 18 June 2002 and 22 July 2020. Magistrates have imposed upon you jail terms, up to 12 months’, on 17 occasions. Thirteen of them involved the offence of driving whilst disqualified.
On 22 July 2020, for dishonesty, weapon and drug possession, driving offences and persistent contravention of a Family Violence Order, a Magistrate gave you the opportunity to avoid further imprisonment, after you had spent 132 days’ in custody, by imposing an 18-month community correction order for driving.
Three weeks later, you committed these crimes.
McGee
34Your Counsel, Ms Kapitaniak, relied on a number of documents on your behalf:
(a)   her comprehensive written submissions which she adopted,[2]
[2] Exhibit M1.
(b)   the psychological report of Carla Lechner who examined you on 17 June 2021,[3]
[3] Exhibit M2.
(c)   a letter from your sister, Lana,[4]
[4] Exhibit M3.
(d)   a letter from your partner,[5]
[5] Exhibit M4.
(e)   letter from Greg Paul, aboriginal well-being officer, Marngoneet Correctional Centre,[6]
[6] Exhibit M5.
(f)    “Take Stock” prison program certificates,[7] and
[7] Exhibit M6.
(g)   the neuropsychological report of Evrim March who assessed you on 12 and 18 August 2021.[8]
[8] Exhibit M7.
35You were born on 16 May 1992. You were 28 years old when you offended. You are now 29.
36Your personal circumstances are set out in Ms Lechner’s report.[9]
[9] Exhibit M2.
37You are a Yorta Yorta man. You were born in Shepparton and grew up in the area. You have three sisters.
38You told Ms Lechner you were bullied at school because you were chubby, and felt teachers discriminated against you because you are aboriginal and because of your surname.
39You described your home life as “ugly”; your father was violent and when he went to jail for widely publicised crimes, your name was tainted. You did not attend high school and, by the age of 13, you were “already drinking and smoking weed and getting into trouble.” You moved on to speed, then heroin and then ice. You said you took drugs “because it took (you) away from reality.”
40You have had intermittent work at the local abattoirs, in traffic management and at SPC.
41When you were 17 years old, you met your partner, Shenae. With her, you have seven children; the oldest is 11 years old and the youngest is about to turn one.
42Your sister confirmed your upbringing was traumatic. She described your father as violent and a notorious drug dealer. She wrote, when you were ten-years old, he was jailed and your mother left your sisters and you in her care. While she looked after the three of you, as best she could, you left school after being diagnosed with ADHD. She described you as a caring family member whose problem has been drug abuse.[10]
[10] Exhibit M3.
43Your partner has stood by you for 12 years despite your struggles with drug addiction. She described you as a respectful partner; as she put it, there is no shouting, there is no cheating. Your absence is hard for your children and her. She wrote it has been the hardest year of their lives. She speaks to you by phone daily and has visited you on the few occasions they have been permitted. She believes you are “ready to leave the past behind (learn from it, and) move on.”[11]
[11] Exhibit M4.
44The prison aboriginal well-being officer, Greg Paul, described you as a respectful prisoner who is a regular visitor to the Koori Cultural Centre where you regularly participate in cultural activities, including the art program, and offer support to new arrivals.[12]
[12] Exhibit M5.
45In prison, you have completed behaviour and health programs made available to you.[13]
[13] Exhibit M6.
46You told Ms Lechner that Mr McNair owed you drugs and you went to get what he owed you. You said you feel “really bad” for what you did and “jail has made (your) life clear”. You said it has given you “a positive attitude”. You said you have been working in horticulture, attending courses and not using drugs. You said this is the first time you have been drug free and, as a result, your physical and mental health have improved.
47To psychometric testing, your intelligence falls in the “extremely low/ borderline” range.
48In Ms Lechner’s opinion, you are “cognitively, socially and emotionally immature with a limited capacity to engage in reflective and consequential thinking, especially when drug affected”. In her view, you need to “learn skills to manage stress and negative emotions in the absence of drugs, and to manage relapse triggers such as peer pressure”, and you would benefit from a residential drug rehabilitation program.
49Mr March assessed you on 12 and 18 August 2021.[14]
[14] Exhibit M7.
50You told him, as a child, you were “always angry” and “hyperactive”.
51You said, generally, you feel suspicious and anxious. He said, in jail, your anxiety is worse, because you fear someone might “get” you, and you sleep poorly. You said you do feel connected to the other indigenous prisoners.
52Mr March assessed your mood as normal. You showed no obvious psychotic symptoms nor formal thought disorder.
53You tested borderline to low average intelligence. Your cognitive skills are adequate to good although you have some difficulties with arithmetic and remembering information.
54From your history, he diagnosed you with chronic substance abuse and alcohol abuse disorder, and anxiety disorder with paranoid features. You have a provisional diagnosis of ADHD.
55You reported loss of consciousness from head knocks and chronic substance use, sometimes with psychotic symptoms, from a young age. In his opinion your anxiety disorder, with drug use, “is a likely consideration” in your offending.
56Mr March believes that your mental health is at risk with prolonged incarceration.
57In his opinion, you do not have a mental disability which, with the steady presence of your sister, is a positive sign for rehabilitation. He noted, when you are not using drugs, you are not impulsive. He believes you are a risk of reoffending unless you address your substance abuse.
Defence Submissions
Ms Kapitaniak acknowledged your offending was serious. She submitted it was not the most serious example of an armed robbery considering the victim was not injured, a small amount of property was taken and the robbery, rather than being well-planned, was spontaneous, poorly thought out and in response to a grievance you had with the victim that he had ripped you off in a drug purchase.
In mitigation of penalty, Ms Kapitaniak relied on:
(a)   your early guilty plea,
(b)   your significant social deprivation,
(c)   your limited criminal history,
(d)   your remorse,
(e)   the additional hardship of custody to you because of your mental and cognitive difficulties,
(f)    your strong family and community connections,
(g)   your participation in the sentencing conversation,
60Ms Kapitaniak acknowledged your offending requires you to serve further time in custody.
61She submitted I ought allow for a longer than usual non-parole period to promote your rehabilitation.
McGee
Sentencing Conversation
62The elders were auntie Pam and Uncle Len.
63You were supported by your partner, Shenae, and your sister, Lana.
64You said your arrest was the “best thing” to happen because, in prison,
(a)   it is the first time you have been “clean”,
(b)   it is the best you have felt, and
(c)   you feel cultural connection with the “aboriginal boys” in jail.
65Your partner, Shenae, said your absence in jail is “hard at times”. She said your sister is a great help to her.
66Your sister also said it has been hard for the family while you have been in jail. Before you were remanded in August 2020, she was helping you to arrange residential drug rehabilitation but, when it became known that police wanted to speak with you, you handed yourself in. She said when she speaks to you, she is confident you are “on the right path”.
Charles
67Mr Brennan, who appeared on your behalf, relied on the following documents:
(a)   submissions which he adopted,[15]
[15] Exhibit C1.
(b)   the neuropsychological report, dated 8 July 2021, of Martin Jackson,[16]
[16] Exhibit C2.
(c)   your NDIS plan approval dated 12 July 2021,[17]
[17] Exhibit C3.
(d)   an occupational therapy plan review report dated 4 February 2021,[18]
[18] Exhibit C4.
(e)   your prison drug and alcohol program certificates dated 20 April 2021 and 23 April 2021,[19]
[19] Exhibit C5.
(f)    your Koori/English art class participation certificate,[20]
[20] Exhibit C5.
(g)   a letter from Michael Tibbitts, disability support Officer, Port Phillip prison,[21]
[21] Exhibit C6.
(h)   a letter from Mike Richardson, an Alcohol and Drug Clinician at Dardi Munwurro,[22]
[22] Exhibit C7.
(i)    your Sentence/ Remand Report,[23] and
[23] Exhibit C8
(j)    letters from:
(i)your sister, June[24]
[24] Exhibit C9.
(ii)Robert Briggs, a family and cultural engagement Officer at the Academy of Sport Health and Education in Shepparton,[25]
[25] Exhibit C10.
(iii)your sister, Violet,[26]
[26] Exhibit C11.
(iv)your aunty,[27]
[27] Exhibit C13.
(v)your mother,[28]
[28] Exhibit C14.
(vi)two family friends.[29]
[29] Exhibits C12 and C15.
68You were born on 8 November 1983. You were 36 years old when you offended and are now 37.
69You are a Yorta Yorta man who grew up in Shepparton. Your father died before you were born.
70When your mother re-partnered, she and her partner were drinking heavily and you suffered significant emotional and physical abuse. You grew up in the Shepparton area and went to local schools. You were bullied at school and, in Year 8, you were expelled for fighting. Around the same time you got into trouble with police and found yourself in the Children’s Court, when you were 13. It was the first of many court appearances.
71Through DHS, you did a spray-painting course called “Kids in Cars” which led to an interest in cars, but never any paid work. You like to buy cars, do them up and sell them. But you have never held a drivers licence. you e been jailed 13 times f driving whilst disqualified.
72You were in a relationship for seven years and have three children. You have not seen them for two years. You have had difficulties with their mother and consider that it is presently best to leave them alone.
73You have never drunk alcohol because you saw its effects on your mother and partner. At 18, you started using speed because of problems at home and then, when ice became the drug most available, you turned to it.
74Martin Jackson conducted a neuropsychological assessment.[30]
[30] Exhibit C2.
75You have low intelligence and an IQ of 65. In his opinion you have a mild intellectual disability and you likely have an acquired brain injury due to amphetamine and methamphetamine abuse over the last 20 years.
76Specifically, in his opinion, your disability affects your capacity to exercise appropriate judgements and make calm and rational choices. You told Mr Jackson that McGee and you had gone to see your drug dealer with money to buy a quantity of drugs, but when your dealer said the price was higher due of COVID-19, things got out of hand and “one thing led to another”.
77In Mr Jackson’s opinion, “this would be consistent with the cognitive impairments that [you have]”.[31] You would not have been able to cope with the fact that the price changed and that you did not have the right amount of money to buy the drugs. It is also seen, in your rationalisation, that it was the drug dealer who caused the problem as he had charged you too much for the drugs.[32] You are somewhat aggrieved that you and McGee are currently in custody “whilst the drug dealer [is] still out there selling drugs”.[33]
[31] Exhibit C2, p 15.
[32] Exhibit C2, p 15.
[33] Exhibit C2, p 15.
78Mr Jackson noted that when you were a child, you were diagnosed with ADHD. You have used speed and ice, both illegal stimulants, to cope with anxiety and mood problems for many years. He believes you would benefit from prescribed stimulant medication such as Ritalin or Dexamphetamine.
79He also believes you require drug treatment. Your past attempts at drug rehabilitation have been unsuccessful. You said, in the past, you were not ready, but with an enforced abstinence in prison, you have a clearer head. You reported to Mr Jackson that you are now ready.
80You told Mr Jackson you rely on others to clean your house, cook, wash your clothes, shop for food and pay the bills. Your partner did most of those things when you were together; your mother does all that now. You give her money from your pension in return. It is clear you need to learn some independent living skills.
81In July this year, you were approved for an NDIS plan to help you develop those skills when you are released from prison.[34]
[34] Exhibit C3 and C4.
82According to the disability support officer at Port Phillip Prison you have been held in the Marlborough unit for the last year.[35] You have trusted work as a cleaning billet and you have participated in the prison Drug and Alcohol program, the Koori Art program and weekly education classes.[36] You also train daily in the gym and play soccer.
[35] Exhibit C6.
[36] Exhibit C5.
83You have strong family support. Family members have confirmed your childhood trauma and abuse.
84Your older sister, Violet, believes that while you have been in jail, this time for an extended period, you have realised you need to change and you need help to do it. She is willing to have you live with her when you are released.[37]
[37] Exhibit C11.
85Her partner is an Engagement Officer at the Shepparton Academy of Sport Health and Education (ASHE). He has known you for about 20 years. You have helped around the house, mowing lawns, cleaning up and fixing things. You have also been a voluntary runner and water boy for the under 14’s football team he coaches.[38]
86He believes you have finally learned your lesson and are willing to turn your life around. He identified that strong alcohol and drug counselling, connection with culturally appropriate men’s healing places, employment and reconnection with your children, would assist your rehabilitation.[39]
87Your younger sister, June, who has had her own struggles, also believes that during this longer period of incarceration you have learned you must change. As she observed, getting your driver’s licence would be a good step forward.[40]
88Your mother acknowledged you had a disadvantage upbringing. As an orphan, so did she. She wrote you had health concerns from a very young age. At seven, you were diagnosed with ADHD. Back then, there was limited treatment.
89Without good male role models, you were led to bad ones. She has seen your mistakes but regards you as a generous person with a big heart. You miss your children badly. She feels you have reached a stage in your life where you are ready to make the necessary changes. She believes reconnecting with your culture, as you have started to do in prison through the Koori Art program, is important.[41]
90Your aunt described you as a kind, generous and loving person who has been affected by the trauma of your childhood. She wrote it is time you understood the stress your offending causes to your mother and sisters.[42]
91An elderly couple live with your mother.[43] They have known you for four years and regard you as a likeable, helpful and caring person. They have seen the impact of your offending has had on you mother and sisters. They wrote, “It’s time for you to pull up your socks and get your life on track”.[44]
Defence Submissions – Charles

Mr Brennan acknowledged your crime was serious and far more serious than any of the offending in your criminal history. He submitted, for the same reasons as Ms Kapitaniak advanced, the objective gravity of your offending was not at the higher end.
[38] Exhibit C10.
[39] Exhibit C10.
[40] Exhibit C9.
[41] Exhibit C14.
[42] Exhibit C13.
[43] Exhibit C12 and C15.
[44] Exhibit C12.
He relied on the following factors in mitigation of penalty:
(a)   application of Verdins principles because of your intellectual disability,
(b)   application of Bugmy principles because of your disadvantaged childhood,
(c)   the additional burden of remand incarceration due to COVID-related isolation, confinement and restrictions on visits and programs,
(d)   your early guilty plea,
(e)   your favourable prospects of rehabilitation taking into account your positive response to your time in custody and your strong family and community support, and
(f)    your participation in the sentencing conversation.
94He submitted, relying on Mr Jackson’s opinions, you have impaired mental functioning that is causally linked to the commission of your crime and substantially and materially reduces your culpability and, accordingly, a combination sentence is available in your case.
95The elders were Aunty Pam and Uncle Len. Uncle Len knew you and your family.
96Your sister, Violet, and your mother supported you in court.
97You said:
(a)   you are healthy, in a drug-free unit, and enjoy responsibility as a laundry billet who assists new prisoners;
(b)   you understand you need to break the cycle of being imprisoned and drug use only results in further jail;
(c)   ice is a “demon”;
(d)   you went to rehab six years ago but weren’t ready to accept treatment; you are now;
(e)   in 2020, when you were on your community corrections order, you tried to get into culturally appropriate drug treatment at Dardi Munwurro, but it was suggested you needed residential treatment before starting the community program;[45]
(f)    you then relapsed and “ran amuck”.
[45] Exhibit C7.
98You volunteered you had had about five previous Magistrates Court Koori Court appearances.
99You said, because you were charged with an offence much more serious than any of your prior offending, you elected to participate in the conversation to give yourself a chance to say something.
100Uncle Len observed you looked “better” and healthier than he had seen you before.
101You said daily training has improved your mental health.
102You said when you are released from prison you want to:
(a)   get off the drugs,
(b)   get your driver’s licence,
(c)   resume contact with your children, and
(d)   do a peer educator course with the assistance of your sister’s partner.
103Your sister, Violet, said:
(a)   when you are not under the influence of drugs you are a very kind person,
(b)   you were doing well at home on your community corrections order “until this”, and
(c)   she and your mother will stand by you.
Prosecution Submissions
104Mr Cordy, who appeared for the prosecution, submitted that your armed robbery offending was serious and requires a term of imprisonment.
105In your case Mr McGee, he submitted you are to be additionally punished for your dangerous driving which could have had horrific consequences.
106He acknowledged your guilty pleas were made early and attract a sentencing benefit. He also acknowledged your participation in the sentencing conversation was mitigatory.
Consideration
107Armed robbery, which, as the maximum penalty of 25-years imprisonment demonstrates, is a very serious offence. General deterrence, specific deterrence, denunciation and just punishment, as well as protection of the community, are important sentencing considerations. I must impose a term of imprisonment on each of you.
108Mr McGee, you are to be sentence for the additional criminality of your dangerous pursuit of the car driven by a friend of the armed robbery victim, and for offending while you were on bail.
109The maximum penalties for the additional charges brought against you, Mr McGee, are five-years imprisonment for reckless conduct endangering persons, and three-months imprisonment, or 30 units, for the summary offence of committing an indictable offence whilst on bail.
110I have used the maximum penalties and current sentencing practices as a guidepost to sentencing both of you.
111Mr McGee, you have a limited criminal history. This is your first time in custody. You also have a longstanding anxiety disorder which will make prison harder for you.
112Mr Charles, whilst you have an extensive criminal history. None of your prior convictions are as serious as the present case, and you have an intellectual disability which engages several of the Verdins principles.
113Considering your crime was a spontaneous and poorly thought-out response to a drug purchase grievance, your victim was not hurt but no doubt was put in fear, and the amount you stole was relatively modest, the offending was a relatively low-end example of armed robbery.
114There are a number of mitigating factors which I must also take into account.
115In both your cases:
(a)   you are both entitled to a demonstrable sentencing discount for your early guilty plea. While the courts continue to deal with the adverse effects of the COVID-19 pandemic, your guilty plea has greater utilitarian benefit than in normal times because it alleviates the current strain on the justice system;[46]
(b)   your childhood disadvantage and deprivation is significantly mitigating.[47] I accept it contributed to your criminal behaviour and, to an extent, explains it, but does not excuse it;[48]
(c)   you both elected to have your plea heard in the Koori court;
[46] Tyler Worboyes v R [2021] VSCA 169, [35] and [39].
[47] Farhan Fariah v The Queen [2021] VSCA 213.
[48] Marrah v The Queen [2014] VSCA 119, [16].
116I am satisfied by your guilty plea and your conversation with the Elders that both of you accept responsibility for your actions and are remorseful.
117I must have regard to the parity principle to ensure consistency in punishment. When two or more co-offenders are sentenced, any significant difference in sentences imposed upon them should be capable of rational explanation.[49]
[49] Green v The Queen (2011) 244 CLR 462, 472-3 [28].
118There is a justifiable basis to distinguish sentence between the two of you. The marked differences between you are:
(a)   Mr McGee, your additional criminality; and
(b)   Mr Charles, your reduced moral culpability due to your intellectual disability.
119Mr McGee, because you are to be sentenced for several offences, I must have regard to the totality principle to ensure your sentence properly reflects your overall criminality.
120Armed robbery committed in company is a Category Two offence. I must impose a prison sentence, unless I am satisfied that one of the circumstances in section 5(2H) of the Sentencing Act (1991) (Vic) is satisfied.
121In relation to you, Mr Charles, the neuropsychologist Martin Jackson opined by reason of your intellectual disability, you have cognitive impairments which affect your ability to exercise appropriate judgements and to make calm and rational choices. He explained the connection between your intellectual disability and your offending in his report.[50]
[50] Exhibit C2, paragraph 15.
122I am satisfied, on the balance of probabilities, you did have impaired mental functioning that is causally linked to your offending which substantially and materially reduces your culpability. Accordingly, a term of imprisonment with a CCO is open in your case.
123Mr Charles, to enable me to consider sentencing options I ordered a pre-sentence report and justice plan report.
124Understandably, given your criminal record, you were assessed as a high risk of reoffending. While your past history is relevant to specific deterrence, and your prospects of rehabilitation, I am satisfied you require an intensive community correction order to address your personal circumstances, the causes of your offending and to minimise the risk of reoffending.
125I accept the assessing officer's recommendations of drug and mental health treatment and rehabilitation, with a justice plan, supervision and judicial monitoring, as special conditions of any community correction order I might make.
126Overall, Mr Charles, I am satisfied a composite sentence of imprisonment and a lengthy community correction order can achieve all sentencing objectives in your case. [51]
[51] Boulton v R (2014) 46 VR 308, [2], [131] Williams [2018] VSCA 171 [47]
Sentence
127By the sentence I impose, I must denounce your conduct, punish both of you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
128Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner to you:
129Mr McGee:
(a)   On Charge 1 – Armed robbery, you are sentenced to three years’ imprisonment. This is your base sentence.
(b)   On Charge 2 – Reckless conduct endangering persons, you are sentenced to 12 months’ imprisonment. I direct three months of this sentence be served cumulatively upon the sentence I have imposed on Charge 1.
(c)   On the related summary charge of commit an indictable offence whilst on bail, you are sentenced to two months’ imprisonment. I direct one month of this sentence be served cumulatively upon the sentences I have imposed on Charges 1 and 2.
130Your total effective sentence is three years and four months’ imprisonment. To mitigate penalty and to advance your prospects of rehabilitation, I direct you serve a minimum period of two years before you are eligible for parole.
131I declare pursuant to section 18(4) of the Sentencing Act you have already served 393 days of your sentence by way of pre-sentence detention.
132Whilst there is some artificiality in the process, I declare but for your plea of guilty, I would have imposed a total effective sentence of four years and six months’ imprisonment and fixed a minimum parole period of three years.
133Mr Charles, on the charge of armed robbery, you are convicted and sentenced to 16 months imprisonment in combination with a community correction order.
134The duration of the community corrections order is two years’ and will commence upon your release from prison.
135In addition to the core conditions of a community corrections order, I impose the following special conditions:
(a)   you are to attend for supervision,
(b)   you are to attend for drug treatment and rehabilitation,
(c)   you are to attend for mental health treatment and rehabilitation,
(d)   you are to participate in the services specified in the justice plan, dated 6 September 2021, prepared for the court, and
(e)   you are to attend for judicial monitoring.
136Your first appearance for judicial monitoring will take place on 28 February 2022 at 9:30 am.
137I declare, pursuant to section 18(4) of the Sentencing Act you have already served 396 days of your sentence by way of pre-sentence detention.
138While there is some artificiality in the process, I would declare but for your plea of guilty, I would have sentenced you to three years’ imprisonment and fixed a minimum non-parole period of one year and nine months.
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[2021] VCC 1333

15 September 2021