Re Mr

[2025] VSC 626

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2025 0179

IN THE MATTER of an application for leave to appeal pursuant to ss 424 and 430 of the Children, Youth and Families Act 2005

MR	Applicant
v
OFFICER BRADLEY STAINER	First Respondent
OFFICER MATT WHELAN	Second Respondent

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2025
DATE OF RULING:	24 September 2025
CASE MAY BE CITED AS:	Re MR
MEDIUM NEUTRAL CITATION:	[2025] VSC 626

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CRIMINAL LAW – Offences – Armed robbery, burglary, criminal damage, robbery (x2), theft of motor vehicle, unlicensed driving – President of Children’s Court sentenced offender to total effective sentence of 10 months’ detention in a Youth Justice Centre – Offender’s late Notice of Appeal against sentence deemed to be application for leave to appeal against sentence – No merit in appeal – Application for leave to appeal refused – Children, Youth and Families Act2005, ss 362, 424, 430.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Cashmore	Dribbin & Brown
For the Respondent	Mr E Dober	Office of Public Prosecutions

Contents

BACKGROUND

CIRCUMSTANCES OF OFFENCES

Informant Stainer’s charges

Informant Whelan’s charges

Aggravating Circumstances

PROCEDURAL HISTORY

Impugned Sentence

Late Notice of Appeal

Co-Offenders

CIRCUMSTANCES OF OFFENDER

Bugmy considerations

Verdin’s considerations

Drug History

Verdin’s considerations (continued)

Antecedents

SUBMISSIONS

ANALYSIS

HIS HONOUR:

BACKGROUND

1. On the 24 September 2025, I struck out an application by MR for leave to appeal from a total effective sentence of 10 months’ detention imposed on him by the President of the Children’s Court for armed robbery, burglary, criminal damage, two counts of attempted robbery, theft of motor vehicle and unlicensed driving. I struck out the application because, in my view, the appeal had no merit. I said I would provide written reasons for my decision in due course. I do so now.

2. I will begin with the circumstances of MR’s offences.

CIRCUMSTANCES OF OFFENCES

1. By way of background, on 12 November 2024, MR received his first custodial sentence from the Children’s Court for offences which included four counts of armed robbery. It was a total effective sentence of 12 months’ detention with 128 days declared as time served.

Informant Stainer’s Charges

1. Later on 12 November 2024, at approximately 7.15pm, whilst in the Emerald Wing (North) of Parkville Youth Justice Centre, MR threatened a custodial officer with a shiv — a thin piece of steel approximately 20 cm long. He demanded and took possession of the officer’s key card and utility belt (Armed Robbery). He used the key card to open a security door. Two other detainees, JA and TJ followed MR into the security office where MR opened another door, namely, the door into the Emerald Wing (South), allowing two more detainees, HS and CA, into the security office. JA and CA armed themselves with two fire extinguishers, TJ armed himself with a pole and HS armed himself with a mop. MR led them from the Emerald Wing to the Education Unit where MR gained access using keys from the utility belt (Burglary). The group proceeded to damage the staff office inside the Education Unit, setting off fire extinguishers, ripping doors off cabinets, flooding the kitchenette and throwing and damaging equipment (Criminal Damage). They barricaded themselves in the staff unit when custodial officers located the group, but were eventually taken back into custody. The charges of armed robbery, burglary and criminal damage were laid by Informant Stainer.

2. On 17 March 2025, MR was released on youth parole.[1]

   [1]Transcript, 24 September 2025, p3.

Informant Whelan’s Charges

1. On 2 April 2025 at approximately 4.55pm, MR, who was still on parole, got out of a stolen vehicle parked in Bloomfield Rd, Keysborough and approached a male. He grabbed the male by the tie and punched him in the face, giving him a swollen and bloodied lip. He demanded the male’s phone and tried unsuccessfully to snatch it from his hands (Attempted Robbery). MR got back into the stolen vehicle and left.

2. The same day, at approximately 5.05pm, MR got out of the same stolen vehicle and approached a male who was on his phone, sitting outside the Noble Park Aquatic Centre. He demanded the male’s phone. As the male stood up, MR punched the male in the face. The male grabbed hold of MR who punched him twice more in the face (Attempted Robbery). The victim ran inside the Aquatic Centre with his phone. He suffered some slight swelling to his head and mild pain. He was treated by paramedics.

3. The same day at approximately 7.45pm, MR, in company with another male, was caught on CCTV driving the same stolen vehicle to and from Bunnings Keysborough (Theft of Motor Vehicle and Unlicensed Driving).

4. The charges of attempted robbery (x2), theft of motor vehicle and unlicensed driving were laid by Informant Whelan.

5. I note that on 7 April 2025, MR’s parole was cancelled.[2]

   [2]Pre-Sentence Report, 4 July 2025, p6.

Aggravating Circumstances

1. There are a number of aggravating circumstances in relation to the offences where Stainer was the Informant. They were committed on the same day that MR was sentenced to detention for offences which included armed robbery. They occurred in the setting of a Youth Justice Centre and the victim of the armed robbery was a custodial youth officer. Further, the burglary and criminal damage offences were committed in company and MR played a primary role. It was pre-meditated offending. MR told a Youth Justice worker that “the offending was pre-meditated with the other co-offenders … [and] that the makeshift weapon … had been crafted in the weeks prior to the offence”.[3]

   [3]Pre-Sentence Report, 4 July 2025, p4.

2. In relation to the offences where Whelan was the Informant, circumstances of aggravation are that the offences were premeditated and committed whilst MR was on Youth Parole.

PROCEDURAL HISTORY 

Impugned Sentence

1. On 8 July 2025, following guilty pleas, the President of the Children’s Court sentenced MR as follows:

Charge	Sentence	Concurrency or Cumulation	Other Orders/Declarations
Armed Robbery	8 months’ detention	Base Sentence	Total effective sentence of 10 months’ detention cumulative on any period owed to Youth Parole Board. PSD of 14 days. 12 month driving disqualification.
Burglary	4 months’ detention (aggregate)	2 months’ cumulative
Criminal Damage
Attempted Robbery	5 months’ detention	Concurrent
Attempted Robbery	5 months’ detention	Concurrent
Theft of Motor Vehicle	2 months’ detention	Concurrent
Unlicensed Driving

Late Notice of Appeal

1. On 9 August 2025 – four days late – MR filed his signed Notice of Appeal against sentence. Pursuant to s 430 of the Children, Youth and Families Act2005, his late notice of appeal was deemed to be an application for leave to appeal.

Co-Offenders

1. MR’s co-offenders who have been sentenced in relation to the offences committed at the Youth Justice Centre on 12 November 2024 were sentenced as follows:

   ·     CA was sentenced to 2 months’ detention (aggregate) for burglary and criminal damage;

   ·     HS was placed on an accountable undertaking for 6 months for burglary and criminal damage;

   ·     JA was placed on an accountable undertaking for 6 months for burglary.

2. Whilst there is a marked disparity between these sentences and that imposed on MR, they were not sentenced for the armed robbery and, in respect of the common offences, there were not the circumstances of aggravation referred to above which attended MRs offending.

CIRCUMSTANCES OF OFFENDER

1. MR was born in 2008 making him 16 at the time of the offences charged by Stainer and 17 at the time of the offences charged by Whelan.

Bugmy considerations

1. He has had a deprived life. Both his parents were illicit drug users. Child Protection Services (CPS) became involved whilst his mother was pregnant with him. MR was born methadone dependent.

2. During his infancy, reports of domestic violence between MR’s parents and repeated overdoses by MR’s mother led to ongoing involvement by CPS with the family. Another concern was MR’s father’s alcoholism. Both MR’s parents spent periods in custody.

3. MR and his two siblings were placed into care and, in 2013, when MR was almost 5, he was made a ward of the state. He had multiple carers and schools over the years and only limited contact with his parents and two siblings.

Verdin’s considerations

1. In 2019, when he was 11, he had a full scale IQ assessment with a score of 77.[4] The relevant neuropsychological report refers to MR having already been diagnosed with Autism Spectrum Disorder[5] and Attention Deficit Hyperactivity Disorder.[6]

   [4]See report of Dr Sarah Rossiter, clinical neuropsychologist, dated 18 June 2019, p8.

   [5]Ibid, p5. But note that Dr Rossiter says that MR’s then carer informed her that MR’s diagnosis of ASD was overturned.

   [6]Ibid, p5.

Drug History

1. MR began using cannabis at 13 and methamphetamine at 15. He progressed to daily methamphetamine use.

Verdin’s considerations (continued)

1. In 2024, when MR was aged 16, a neuropsychologist conducted an assessment of MR, finding that he was functionally impaired across all 9 domains addressed by the Adaptive Behaviour Assessment System 3^rd edition. His results were mainly in the extremely low range[7] and “confirmed the functionally compromised impact of [MR’s] ASD diagnosis”. 

   [7]See report of Dr Warwick Brewer, consultant clinical neuropsychologist, dated 4 October 2024, p2. The 9 domains were: 1. Functional academics; 2. Self-Direction; 3. Communication; 4. Leisure; 5. Social; 6. Health and Safety; 7. Self-Care; 8. Community use; 9. Home living.

Antecedents

1. Prior to receiving his first custodial sentence on 12 November 2024, MR was placed on 3 non-custodial orders. On 15 March 2024, he was placed on a 12-month Youth Supervision Order for some 24 offences which included armed robbery and attempted armed robbery (x2). On the 17 May 2024, he was placed on another 12-month Youth Supervision Order for some 17 offences which included 2 counts of armed robbery and attempted armed robbery. On 13 June 2024, he was placed on probation for 6 months for some 5 offences including an unlawful assault. He breached all of these orders and, as indicated above, on 12 November 2024 he received his first custodial sentence.

SUBMISSIONS

1. In written submissions, MR relied on the following mitigatory circumstances:

   ·Pre-sentence detention totalling 114 days in relation to previous non-custodial sentences imposed on MR, which MR’s counsel submitted should be taken into account pursuant to R v Renzella[8] or the principle of totality;

   ·The offending was spontaneous (sic);

   ·The offending was of brief duration;

   ·MR’s plea of guilty is indicative of remorse as well as having utilitarian value;

   ·The principles in Bugmy v R[9] regarding sentencing offenders with deprived backgrounds apply;

   ·MR suffers from mental impairment (ASD and ADHD), which engages Principles 1 (reduced moral culpability) and 4 (moderation of specific deterrence) of R v Verdins;[10]

   ·MR’s co-offenders received lighter sentences, giving rise to parity considerations;

   ·Delay;

   ·MR has reasonable prospects of rehabilitation;

   ·The approach to sentencing in the Children’s Court is very different to the adult jurisdiction.

   [8]R v Renzella [1997] 2 VR 88.

   [9]Bugmy v R (2013) 249 CLR 192.

   [10]R v Verdins (2007) 16 VR 269.

2. Regarding the alleged spontaneity of MR’s offending, MR’s counsel, in oral submissions, resiled from her written submission that the offending was spontaneous. Instead, in relation to the offences charged by Stainer, MR’s counsel submitted that they were committed whilst MR was struggling to regulate his emotional response to being sentenced earlier that day.

3. Regarding the 114 days of pre-sentence detention in respect of previous non-custodial sentences, MR’s counsel, in oral submissions, initially described this as probably her “strongest”[11] argument for why MR’s appeal had merit. However in discussion, MR’s counsel conceded that there was no obligation for the sentencing magistrates in those matters to make a declaration as to PSD and that it was reasonable to infer that the magistrates had taken into account the PSD when determining both the nature and length of the non-custodial sentences imposed by them. 

   [11]Transcript, 25 September 2025, p5.

4. Regarding MR’s prospects of rehabilitation, notwithstanding he is only 17 years of age, I am guarded about his prospects of rehabilitation, given his personal and criminal history.

5. Regarding alleged delay, it seems to me that MRs offending was dealt with expeditiously.

ANALYSIS

1. I am very mindful of the different approach to sentencing in the Children’s Court. As MR’s counsel stressed, the primary emphasis is rightly on rehabilitation, and general deterrence and denunciation are not relevant sentencing purposes. I am also mindful of the hard life MR has had and the mental impairments that afflict him. But the list of matters which are to be taken into account when sentencing children pursuant to s 362 of the Children, Youth and Families Act2005 include the following: 

   …

   (e)       the suitability of the sentence to the child; and

   (f)if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and

   (g)the need to protect the community, or any person, from the violent or other wrongful acts of the child—

   (i)in all cases where the sentence is for a Category A serious youth offence or a Category B serious youth offence; or

   (ii)       in any other case—if it is appropriate to do so; and

   (h)if appropriate, the need to deter the child from committing offences in remand centres, youth residential centres or youth justice centres.

2. In my view, a total effective sentence of 10 months detention in a Youth Justice Centre strikes an appropriate balance between these sentencing considerations and the other considerations mentioned above which were relied on in mitigation of penalty. For that reason, I struck out the application for leave to appeal as I did not consider there to be merit in the appeal.