Director of Public Prosecutions v Amanamoi [2018] VCC 1507

"(1) In sentencing an offender (whether on appeal or otherwise) for an offence against section 79A of the Crimes Act 1958, a court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than 3 years unless the court finds under section 10A that a special reason exists.

(2) Subsection (1) does not apply to an offender who is under the age of 18 years at the time of the offence."

4 Section 10AD of the Sentencing Act was inserted by s5 of the Crimes Amendment (Carjacking and Home Invasion) Act 2016 and also came into operation on 7 December 2016.

5 Section 10A of the Sentencing Act provides:

"(1) In this section -

impaired mental functioning means -

(a) a mental illness within the meaning of the Mental Health Act 1986; or

(b) an intellectual disability within the meaning of the Disability Act 2006; or

(c) an acquired brain injury; or

(d) an autism spectrum disorder; or

(e) a neurological impairment, including but not limited to dementia.

(2) For the purposes of section ... 10AD, a court may make a finding that a special reason exists if -

(a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or

(i) is of or over the age of 18 years but under 21 years at the time of the commission of the offence; and

(ii) proves on the balance of probabilities that he or she has a particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate his or her behaviour in comparison with the norm for persons of that age; or

(c) the offender proves on the balance of probabilities that -

(i) at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender's culpability; or

(ii) he or she has impaired mental functioning that would result in the offender being subject to significantly more than the ordinary burden or risks of imprisonment; or

(d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or

(e) there are substantial and compelling circumstances that justify doing so.

...

(3) In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court must have regard to -

...

(ae) the Parliament's intention that a sentence of imprisonment of not less than 3 years should ordinarily be imposed for an offence covered by section 10AD; and

(b) whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.

(4) If a court makes a finding under subsection (2), it must -

(a) state in writing the special reason; and

(b) cause that reason to be entered in the records of the court.

(5) ... ."

6 As "aggravated carjacking" incorporates a theft of a motor vehicle, it is incumbent on the Court to suspend or cancel the offender's driver's licence or learner permit. Reference was made to s89(4) of the Sentencing Act, which stipulates that where a person is, inter alia, convicted of stealing a motor vehicle, the court must disqualify him from obtaining a licence or learner permit for the period of time that the court specifies. Pursuant to s89(5) of the Sentencing Act, if a period of disqualification is not specified by the court, the period is three months.

7 It was submitted by counsel for the prosecution that in determining the appropriate length of any disqualification period, the Court should have regard to the following relevant factors:

(b) the period of imprisonment actually imposed and the need for the period of suspension/cancellation itself to serve its part as a punitive element in the context of the total punishment imposed;

(c) the degree of additional punishment that the period of suspension/cancellation of the licence will represent;

(d) the effect or impact that those orders may have on the offender's prospects of rehabilitation.

Reference was made to the decisions of R v Lefebure [2000] VSCA 79; (2000) 112 A Crim R 41; R v Tran [2002] VSCA 52; (2002) 4 VR 457 and R v Caldwell [2004] VSCA 40; (2004) 8 VR 1, which provide guidance as to the matters to take into consideration.

8 The prosecution has provided a document headed "Prosecution Summary for Purposes of a Plea Hearing" dated 20 April 2018. Such summary has been marked as an exhibit (exhibit 2), and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters contained in such prosecution summary are:

• The complainant is Konstantino Palsovic, who, at the time of offending was an eighty-six-year-old (born on 9 December 1930) retired man. The complainant's wife, Maria, was eighty-two years old (born on 14 August 1935) at the time of the offending.
• You are presently nineteen years old, having been born on 26 September 1998. At the time of the offending, you had turned nineteen years old approximately nine days earlier.
• The complainant had a hobby and routine of feeding bread to the ducks at a lake near his home in Narre Warren South. At about 3.00am on Thursday, 5 October 2017, the complainant left his home to go to the local shopping centre to search a bin/dumpster for bread thrown away by the supermarket outlet, IGA. This is something he would habitually do.
• The complainant drove his Holden Commodore utility, registration number TLF 331, to the back of the IGA store in Ormond Road, Narre Warren South, and pulled up in close proximity to the dumpster bin. He walked over to the dumpster bin and saw inside it a piece of bread, and reached in to grab the bread, when he dropped his car keys into the dumpster.
• The complainant then climbed into the dumpster to search for his car keys. Unable to locate the keys, he then walked home and woke up his wife, Maria, and requested that she drive him back to the store to help search for the car keys.
• The complainant and his wife then travelled together in her Mercedes Benz C-Class, registration number MP1935, arriving back at the dumpster some time after 4.00am.
• The Mercedes was parked next to the utility, after which the complainant and his wife got out, leaving the keys to the Mercedes in the ignition. The house keys were also on the car keys.
• The complainant got into the dumpster again to search for the keys, and his wife was looking around on the ground.
• At about this time, you and an unknown co-offender were in the area. You, at this time, were armed with an imitation handgun. In a subsequent record of interview, you stated:

"I brought it that night to use it for that robbery ... that theft. Yeah, I intended to do that to somebody that night. ... ."

• You also informed the police that you and the unknown co-offender had been watching and thinking about what you were going to do "for an hour or two" and you kept on walking up and down everywhere.
• After about fifteen minutes of the complainant looking for his keys, you and your co-offender approached the complainant who was, at that time, inside the dumpster. The complainant, in his statement, describes what occurred as follows:

"The two guys then came up to me when I was in the bin. They were standing next to each other. One of the guys said straight away 'give me the keys to your ute'. I said: 'I haven't got the keys because I lost the keys. I am looking for them now'. I noticed he was holding something in his right hand. He was standing so close to me and holding whatever was in his hand up to my chest with his arm bent in a 45 degree angle. He was taller than me when I was in the bin. He said: 'give me the keys or I'll shoot you'. I said: 'I don't have the keys, I've lost them'.

The taller guy hit me with whatever he had in his hand on the left cheek. Whilst hitting me he said 'give me the keys'. I kept saying: 'I don't have them, I've lost them', and he hit me again in the same spot on my cheek. He hit me 3 times altogether in the same spot on my left cheek whilst yelling at me for the keys. The last hit caused my glasses to break and fall off my face. I then fell down in the bin."

• The "something" being referred to by the complainant was an imitation handgun (see exhibit 3 which is a photo of such imitation handgun). At the time of the offending, your face was partly covered by clothing, and/or a scarf and a black top with a hood.
• The complainant suffered redness and bruising to his cheek and a laceration to his nose from where his glasses broke. The wife of the complainant observed the assault on her husband.
• You then ran to the Mercedes, where you and the co-offender got in and drove off. The wife of the complainant was standing close by and she was too afraid to intervene, having observed the "imitation" gun during the assault upon her husband.
• The wife of the complainant described the confrontation as follows:

"When the tall one was pointing the gun at us and demanding the keys for Stan's car he started to smack Stan ... He made contact with Stan's face several times. This caused Stan's glasses to come off his face and break when they hit the ground. He was saying 'give me key, give me key. I will kill you'. Stan was telling them he didn't have the key and that it was lost. The other male was just standing there, not saying anything. I was standing next to the bin while this was happening.

The smaller of the two males then ran over to my car and got in the driver's seat. The taller one then followed him and got into the passenger seat of the car."

• Approximately an hour later, you drove the stolen vehicle to Gwenda Street, Dandenong, where the keys were left in the vehicle.
• Six days later, on 11 October 2017, you were arrested, and a record of interview was conducted at the Narre Warren Police Station, where you made full admissions.
• In particular, you stated you modified the toy gun to look like a real gun and took gloves with you with the intention of robbing someone of their car so you could find a place to stay. You said you were wearing a gardening glove on one hand and a surgical-type glove on the other. You also informed the police that when you saw the elderly couple and approached them with the imitation gun, you demanded that the elderly man give you his keys. When the elderly man did not give you the keys and he did not appear to look very hard for them, you hit the man two to three times with the gun and slapped him once. The contact was to his face, although you did not believe you hit the man too hard as he was old.

9 You have been remanded in custody since your arrest and I was informed by counsel for the prosecution at the plea hearing that such pre-sentence detention amounted to 251 days, up to and including the first day of the plea on 18 June 2018.

10 Counsel for the prosecution also sought a disposal forfeiture order, which was not opposed.

11 Counsel for the prosecution also set out a chronology indicating that a filing hearing occurred on 12 October 2017 and that on 22 December 2017 a plea offer was made on your behalf (seemingly, at that stage, one of the charges was armed robbery) which was rejected by the Director of Public Prosecutions with an indication that it would resolve the matter if there was a plea of guilty to aggravated carjacking. Such indication was on 4 January 2018 and the matter resolved on 5 January 2018. On 8 January 2018, there was a committal mention where you pleaded guilty to the offence of aggravated carjacking and you were remanded in custody.

12 Your criminal record was tendered (exhibit 1) and I note that on 17 July 2017, at the Dandenong Magistrates' Court, you were found guilty of affray (common law), and recklessly causing injury, and sentenced without conviction to an aggregate fine of $1,500. Counsel for the prosecution noted that the attendance at the Dandenong Magistrates' Court on 17 July 2017 was approximately twelve weeks prior to the subject offending.

13 Furthermore, I was informed by counsel for the prosecution that the incident involved an acquaintance of yours being seriously assaulted at the Fountain Gate bus bay. You and five others stepped in to confront the perpetrator (that being the affray), all of whom assaulted the perpetrator (that being the recklessly causing injury) and, specifically, you punched the perpetrator in the head.

14 Counsel for the prosecution tendered the following Victim Impact Statements:

(a) Victim Impact Statement of the complainant declared on 8 February 2018;

(b) Victim Impact Statement of Maria Palsovic (the wife of the complainant) declared on 8 February 2018.

Neither the complainant, nor his wife, wanted the Victim Impact Statements read aloud in Court.

15 In his Victim Impact Statement, the complainant states that he feels "very angry and upset" in that he had to suffer your offending. Furthermore, he notes that the car was stolen, which was very inconvenient for both himself and his wife, as they had to rely on other family members to assist them, which caused upset as a result of their loss of independence.

16 In her Victim Impact Statement, Maria Palsovic states that she still feels "very angry and upset", particularly in having to see her husband being threatened and abused, and she continues to feel "very unsafe for the both of us". Furthermore, she notes that she feels "very disappointed" that she has to worry about people possibly coming to her house, as they stole "my car and garage remote". She also describes that, following your offending, she had many nights when she found it hard to sleep, which in turn impacted on her feeling tired during the day.

17 Your counsel tendered the following material:

(a) a psychological report of the consulting clinical and forensic psychologist, Mr Jeffrey Cummins, dated 2 May 2018, and a further supplementary report dated 18 June 2018 (exhibit "A");

(b) a bundle of character references, including a reference from Ms Lonin Lolik, the former chairperson of the Sudanese Community Church of Victoria, dated 29 April 2018; a reference from, your father, Mr Michael Molong Amanamoi, dated 17 June 2018; and a reference from Ms Victoria Lolika, president of the Mamaland Hope for Future Foundation, dated 26 April 2018 (exhibit "B"). I have read all such material.

18 Based on such material and, in particular, the information that you gave Mr Cummins, I note the following:

• Your parents were born in the South Sudan, and in order to escape the war in South Sudan they moved to Egypt for six or seven years, during which time you were born. You are the youngest of four children.
• In 2001, your parents and your three siblings emigrated to Australia and settled in Melbourne. You stated that your parents are still together, although your father returned to work in Sudan in 2013-2014, and is employed by the Government in the Ministry of Foreign Affairs in Juba in South Sudan. Your mother works in aged care.
• Your siblings consist of two brothers and one sister - your twenty-nine year old single brother is based in Brisbane and works for the Defence Force, while your other two siblings reside at home - your twenty-six-year-old brother works with a bank (until recently) and your twenty-two-year-old sister is attending university. You reported to Mr Cummins that none of these siblings have been in trouble with the law and none have had any problems with alcohol or other drugs. Furthermore, it was your belief that neither of your parents had ever had any trouble with the law.
• You did not commence any schooling until arriving in Melbourne, at which time you attended a couple of primary schools in Dandenong and Narre Warren before attending St Francis Xavier College in Beaconsfield, until such time that you were asked to leave the school midway through Year 10 because you were "not listening in class". You then attended Alkira Secondary College in Cranbourne until Term 2 of Year 12. You dropped out of school in Year 12 because your school attendance was poor and you were drinking alcohol frequently, and often daily. You left school in 2016.
• On leaving school, you subsequently had approximately three months' labouring work, but began "drinking and smoking a lot of dope". In particular, you informed Mr Cummins that:

"I wasn't in the right head space. Maybe it was because my dad was overseas, but I got in with the wrong crowd. A couple of my mates were from the Sudan and they were in trouble here in Melbourne. I think a couple of them had already done armed robberies and carjackings."

• In particular, on 20 September 2017, you were evicted from the family home following a big argument with family members - particularly your mother - which had been building up as a result of you abusing drugs and alcohol since you were fifteen or sixteen.
• You informed Mr Cummins that you hoped to become involved in furniture delivery and in studying logistics with the furniture-delivery industry, and presently have a learner's permit and planning to obtain your P Plates.
• You informed Mr Cummins that you have had limited involvement with gambling, but stated that has never been a problem. You have not undergone any surgery and never have been diagnosed with any chronic physical problem, nor have you been required to take medication long term. Furthermore, you have never been hospitalised in a psychiatric hospital or psychiatric ward and have never received mental health treatment.
• Prior to your incarceration you were single, and have never lived with a partner and have never had a steady partner, although you have dated a limited number of women on a casual basis.
• When you have your liberty you smoke cigarettes and commenced drinking alcohol at age fifteen, and said, by the age of seventeen or eighteen, you were drinking alcohol heavily. You started experimenting with cannabis at age fifteen, and estimated that you were a daily smoker of cannabis from the age of sixteen. Around the age of seventeen or eighteen, and in conjunction with the night club scene, you intermittently used Ecstasy tablets. You are currently on a waiting list to participate in an alcohol and drug education course in prison.
• You are currently held in Ballan Unit at the Melbourne Remand Centre and are currently un-medicated. You are not regarded as an identified drug user in custody. In prison, you have been working in the timber industries and have applied to work in the kitchen. You have not received any treatment for any physical medical condition or for any mental health condition while on remand. Since being on remand you have completed an occupational health and safety certificate and a traffic management certificate.
• Since being in prison, you have received one visit from your father and also have received visits from more family members except, initially, from your mother, whose name, until very recently, appeared as the protected person on the intervention order following your eviction from the household. However, in March 2018, your family applied to the Dandenong Magistrates' Court for the intervention order to be varied, and that application was approved, and arrangements are now being made so that your mother can visit you in custody.
• You have never been subjected to any sexual abuse, although there is a limited history of you and your twenty-six-year-old brother engaging in physical fights.

19 As I have already recorded, you rely on two reports from Mr Cummins, dated 2 May 2018 and 18 July 2018. Mr Cummins was also called to give evidence and was cross-examined.

20 Mr Cummins' first report was based on a video conference held on 20 April 2018, between him in his rooms and you at the Melbourne Remand Centre. He gave evidence that the video conference lasted approximately one-and-a-quarter hours and he had available to him, at that time, the Charge Sheets, the police summary and your Record of Interview. At the time of the video conference, Mr Cummins was unaware of s10AD of the Sentencing Act.

21 When informed by your legal representatives of that section, Mr Cummins authored the second report, although he did not confer with you beyond that first occasion on 20 April 2018.

22 In his report dated 2 May 2018, Mr Cummins noted that in response to question 36 of the Record of Interview, where you were asked why you stole the motor vehicle, you answered:

"I wanted to find a place to stay 'cause I had nowhere to stay that night".

Furthermore, Mr Cummins noted that at the time of committing the offending you were wearing non-identical gloves, and had a toy gun which was used to assault the complainant, who was elderly. You refused to answer questions concerning any co-offenders and stated that you had been drinking alcohol prior to the offending, and then, ultimately, in response to question 146 of the Record of Interview, stated:

"Like, yeah, I was intoxicated I reckon. Not too drunk probably, yeah".

Furthermore, Mr Cummins also noted that in response to question 49 of the Record of Interview you stated:

"I hit him with the gun - the toy gun like twice or three times. I don't remember. All I know is I hit him with it and then I slapped him I'm pretty sure."

23 Mr Cummins obtained the history that following the eviction from your home on 20 September 2017 you were subsequently "homeless", and that at the time of the offending you were "couch surfing", had no money and had nowhere to live, and was not in receipt of a Centrelink payment. Mr Cummins also recorded you stating, in relation to the offending, that:

"I wanted to do it because of my situation. Maybe I thought I'd sleep in the car. Somehow I thought that by stealing a car I'd be able to get some accommodation. I never thought I'd do this. I guess I never thought I'd end up in jail. I regret doing this. What I did was a stupid act and I wasn't thinking and I was drunk on alcohol."

24 Mr Cummins noted that you raised the issue of mandatory imprisonment in relation to charges of carjacking and that because of your previous problems with alcohol and cannabis, and the fact that your father spends much of his time in The Sudan, you hoped the Court would deal with you as a young offender and as an immature person, and that as a result will serve a sentence in a Youth Justice Centre.

25 Mr Cummins assessed your risk of committing a further offence of violence through the use of the HCR-20 program as "moderate". In his opinion, the specific risk factors for you were alcohol and cannabis dependency, having an absent father, having recently been evicted from home and therefore having no accommodation and no financial means of support, not being registered with Centrelink and not being able to communicate with your family as a result of the intervention order being in place.

26 Mr Cummins formed an opinion that at the time of the offending you were feeling depressed and directionless, and in this regard you eventually admitted that you were then missing having any regular contact with your father who, of course, was back in The Sudan. Furthermore, Mr Cummins formed the opinion that at the time of your offending your mental health problems were made worse with your dependency on alcohol and cannabis, although, at interview, he was satisfied that while both alcohol and cannabis may have exacerbated feelings of depression, you were already suffering from symptoms of depression prior to your dependency on those substances escalating.

27 Mr Cummins also records that you reported intermittently disturbed sleep, fluctuating appetite and daily negative ruminative thinking, and that these symptoms commenced after your father returned to live and work in The Sudan. In his opinion, Mr Cummins considered that you have been suffering from a Major Depressive Disorder which has been moderate in intensity and recurrent in type (DSM-5 code 396.32), with this condition developing around the time that your father returned to reside in The Sudan.

28 Mr Cummins also records that you apologised regarding your offending and stated that you were now feeling remorseful - however, Mr Cummins also records that you simultaneously expressed your immaturity by stating that you had not thought that your offending, if detected, would have culminated in you being incarcerated. This led to the view of Mr Cummins that because of what he perceived to be "immaturity", he recommended that you serve time in Juvenile Justice as opposed to further time in an adult prison.

29 During the mental state examination, Mr Cummins recorded that you maintained good eye contact, established a good rapport in the interview situation, was entirely orientated in time, place and person, and did not present as being Psychotic or Schizophrenic, and did not present as having any Antisocial Personality Disorder or an antisocial personality style. You did not speak in an anti-authoritarian manner.

30 You presented as being slightly below average in intelligence, and you did not present as being Paranoid, but as being mildly-moderately depressed and mildly anxious. Again, Mr Cummins saw you as being "immature and ... requiring guidance and supervision", which he considered would be more likely to be offered to you in the Juvenile Justice System rather than an adult prison.

31 It should be noted that Mr Cummins recorded that you are in mainstream at Melbourne Remand Centre and have never been in protective custody.

32 Prior to his second report, dated 18 June 2018, Mr Cummins interviewed your twenty-six-year-old brother, Mr Festo Amanamoi, at his rooms on 14 June 2018. Your brother also gave evidence and was cross-examined.

33 In his report, Mr Cummins, stated that the specific purpose of interviewing your brother was to review the history which you provided when he interviewed you on 20 April 2018, and also to canvas whether there were any other relevant issues that should be brought to his attention.

34 Your brother told Mr Cummins that he currently works as a machine operator, although having previously worked with a bank, and resides with your mother and one other sibling in Narre Warren South.

35 In particular, your brother explained to Mr Cummins that both of your parents entered Australia from Egypt in 2001, and that when South Sudan achieved succession in 2011, your father was invited to return to South Sudan to effectively undertake a traineeship with the Ministry of Foreign Affairs. Your brother emphasised that your mother and father have not separated and appear to be very at ease that they currently live apart and, typically, only see each other once every one to two years. Your brother explained to Mr Cummins that your problems commenced around 2015, after your father had been living back in South Sudan since 2012, and that your mother observed you had progressively "gone off the tracks and has failed to mature in an adequate manner".

36 Your brother explained to Mr Cummins that it was not until 22 November that he and your mother learnt that you had been arrested on 11 October 2017, after which your father was promptly notified, and hence flew back to Melbourne and visited you on three occasions while you were in custody between January 2018 and February 2018.

37 Your brother also acknowledged that approximately four years ago he had trouble with the law and ended up pleading guilty to a charge of affray and recklessly causing injury, in circumstances where he was heavily intoxicated with alcohol. At that time he was sentenced to a community correction order for a number of years and a large number of hours of community work.

38 Your brother noted that over recent years he had attempted to act as a father figure and a guiding light to you, although he believes that because of your "immaturity" and confused feelings in relation to your father, you had not been amenable to your brother's guidance and parenting.

39 After interviewing your brother, Mr Cummins opined that it was appropriate to diagnose you with not only a Major Depressive Disorder, but also an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct, with this condition being a trauma-related disorder, which has essentially developed in the context of your father's ongoing absence from the family home and, in effect, from your father's relative absence from your life.

40 In particular, Mr Cummins stated in his final report:

"I have now read Section 10A(2)(b) and (c) of the Sentencing Act 1991. I confirm on the basis of my assessment of Mr Otome Amanamoi and supported by the collateral information provided by his brother Mr Festo Amanamoi, it is my opinion Mr Otome Amanamoi meets the criteria of Section 10A(2)(b) in that he was over 18 but under 21 at the time of the commission of the offence and that on the balance of probabilities he displays psychosocial immaturity which has resulted in a substantially diminished ability to regulate his behaviour in comparison with the norm for persons of his age. Further, on the balance of probabilities, in my opinion Section 10A(2)(c) is also applicable because at the time of the commission of the offence he had impaired mental functioning which substantially reduced his culpability, and because he still displays impaired mental functioning which would result in him being subject to significantly more than the ordinary burden or risks of imprisonment."

41 During his evidence-in-chief, Mr Cummins accepted the proposition that after his interview with your brother his view of your immaturity was "crystallised", and when queried about what did he recognise in the conversations with your brother that confirmed his beliefs, Mr Cummins stated:

"Well, he spoke about his perceptions that Otome was, um, in his opinion easily led, vulnerable, ah, had been under the negative influence of older males, um, mainly old males, ah, that he had become directionless very quickly and that even - this is after his father returned to South Sudan, and that even though he continued with his studies for a number of years, he essentially was progressively not really a function member of the family unit and he was spending more time away from home that, um, his mother and Fesso (sic) himself were attempting to discipline and parent Otome but it became obvious to them that that was an increasingly difficult task. Then he spoke about his, um, drug use and his abuse of alcohol."[1]

42 When queried about the term "psycho-social immaturity", Mr Cummins gave evidence he had never seen it actually defined in a textbook and, certainly, it was not defined in the DSM-5, nor, to the best of his knowledge, defined in any of the precursor texts to the DSM-5. He proffered the view that when a psychologist talks about "immaturity", he would say they are talking about "psycho-social immaturity", but they do not use the qualifier "psycho-social".

43 Furthermore, Mr Cummins was asked how one came to an assessment that someone was suffering from that particular situation, to which he answered:

"...

A: The way that assessment is typically made is that a psychologist or psychiatrist would need to have had sufficient experience with assessing adolescents and young adults, ah, so, that they essentially had internalised a baseline of what - in this instance, say a typical 19 year old would - their manner of presentation, their - their communication skills, the reciprocity of their communication in - in an interview situation and, um, they would need to form some judgment of their - their level of fitting in with other youth of that age, ah, and ideally within their cultural group."

Q: How does Otome fit into that particular classification from your experience with him and obviously with experience with others?---

A: Well, the first thing I would say is that over the years I have assessed hundreds of adolescents and hundreds of males of his age and the first thing that struck me about him was that, um, he - he seemed immature. He didn't seem as alert to the range of cues that, if I could use the term, a typical 19 year old would - would be alert to.

Q: Even though he was in an adult gaol?---

A: Yes. Even though he was in an adult gaol.

HIS HONOUR:

Q: Did he give you any history of having any difficulty in the adult gaol?---

A: Not in particular, Your Honour, not in particular.

Q: Well, did he give any history at all?---

A: Well, what he specifically said was he was not, ah, receiving any mental health treatment."[2]

44 Mr Cummins also confirmed, on questioning from the Court, that you have not been in protection, and gave no history of being assaulted or any difficulties like that.

45 Mr Cummins expressed the view that for you to say that you committed this offence and stole the car in order to find accommodation was "pretty out there, like", and that would be consistent with "psycho-social immaturity".

46 Mr Cummins confirmed, on query from the Court, that you had some insight into your offending at the end, after which the following evidence was given:

Q: "Yes. Does that reflect a reasonable maturity?---

A: Well, it reflects a developing sense of maturity, yes."[3]

47 Under cross-examination, Mr Cummins confirmed that he had only one interview with you, and that it was correct that he had no direct contact with you in terms of sitting down with you and speaking with you to make the observations as to your level of maturity or immaturity compared to others of a youthful age. Furthermore, Mr Cummins accepted that to effectively make that assessment, it would be preferable to actually do it face to face and also over a period of time, involving multiple assessments.

48 Mr Cummins, under cross-examination, confirmed that in speaking with your older brother, your older brother proffered the explanation that you had been under the influence of older males. Thereafter, the following evidence was given:

Q: "That's not something specifically which the offender mentioned at any stage, did he? He said 'the wrong crowd' but no reference to older males, was there?---

A: Well, there was mention to older males and I apologise for not including that in my report. He said to me that he'd been associating with a range of people, a number of whom were from his cultural background and that they ranged in age from around his age or a little bit younger up to I think he said about 27, 28, but again I wouldn't necessarily regard him as a good judge of people's ages.

Q: Yes, can you point that out to me in your report please?---

A: No, I say it's not in my report.

Q: It's not in your report, all right?---

A: No, no.

Q: And you - did you take a note of that?---

A: I certainly took a mental note of that, yes."[4]

49 Again, under cross-examination, Mr Cummins confirmed that he had read the Record of Interview and then it was suggested to him that there was no evidence that the co-offender was older or coercing, or having any sort of control over you, and that there was an absence of any evidence to suggest that any other person was in any way dominant in relation to this offence, to which Mr Cummins responded:

"Well, I'd say there was just an absence of evidence, yes."[5]

50 After being taken to various questions and answers in the Record of Interview, including:

(a) that you had brought the imitation pistol to use for a robbery, or something like that;

(b) that you parked the car in Dandenong and then left it;

(c) that you had been walking around for an hour or two, waiting to commit the crime; and

(d) that you had spent an hour or two watching and thinking about what was going to happen,

Mr Cummins accepted that there was a degree of planning on your part in relation to the subject offending.

51 Mr Cummins confirmed that his understanding of the phrase "psycho-social immaturity" has come about from his experience and knowledge of the DSM-5 and its precursor texts, albeit that it is not defined in any of them. When queried as to whether he had done anything else to ascertain its meaning, Mr Cummins gave evidence that he had not, and was also unaware of the Sentencing Advisory Council Report in October 2011 which, among other things, made recommendations upon the subject section.

52 In particular, counsel for the prosecution put various parts of such report to Mr Cummins, and the following evidence was given:

Q: "All right, I'll read you parts from it, because I want to take you to their suggestions as to what it means, okay?---

A: Yes.

Q: To give you some insight into - - -?---

A: Certainly.

Q: - - - what this phraseology actually means?---

A: Certainly.

Q: This is the Sentencing Advisory Council report October 2011, it's headed, 'Statutory Minimum Sentences for gross violence offences' and the particular heading is, 'Particular psycho-social immaturity and/or particular vulnerability in custody', all right?---

A: Right.

Q: Clause 4.51, 'As discussed above, one of the primary rationales for exemption from the statutory minimum is that the offender has a significantly diminished level of culpability. Research in developmental psychology supports the view that several characteristics of adolescence distinguish young offenders from adults in ways that mitigate culpability'?---

A: Yes.

Q: So far that's - you'd agree with all that?---

A: Yes, yes.

Q: 'Those adolescent traits include, (1) Deficiencies in decision-making ability?---

A: Yes.

Q: (2) Increased impulsivity?---

A: Yes.

Q: (3) Greater vulnerability to external coercion particularly from peer associates'?---

A: Yes.

Q: 'As reflected by the Victorian Council of Social Service quoting the Office of the Chief Science Advisor in New Zealand, there is an inherent conflict between the practical focus on using chronological age to determine rights and obligations and the highly individualistic processes of maturation. Clause 4.53, specific research into psycho-social immaturity of children has focused on the effect of psycho-social measures such as, (1) Autonomy, (2) Independence, (3) Emotional temperance, and (4) Future time perspective and perspective of others on anti-social outcomes, and has found that psycho-social immaturity peaks at age 15 and then dissipates.' No issue so far, with any of that, does that all make sense to a psychologist?---

A: I'm - well it makes general sense, I'm not familiar with any literature that sort of substantiates that it peaks at age 15, but in general, I'm accepting of that.

Q: What I'm putting to you is that the markers of psycho-social immaturity are effectively deficiencies in decision-making ability?---

A: Yes.

Q: One, increased impulsivity with (2); and greater vulnerability to external coercion, (3); do you agree with that? I'm not saying it's exhaustive, but they're three of the markers or indicia of psycho-social immaturity?---

A: Yes, I would regard those as being three of the markers of what I call immaturity, and the question I would ask is, is that how psycho-social immaturity is specifically defined now in relation to s.10(A).

Q: This is the Sentencing Advisory Council report excerpts upon which this legislation was enacted, it was - - -?---

A: Yes, yes.

Q: It was designed to make recommendations and these are the recommendations that found their way into the legislation?---

A: Yes.

...

Q: - - - but I'm suggesting that there are some indicia about which I've just spoken, that give a psychologist a better understanding of what this phraseology means in the section with which we're dealing?---

A: Yes.

Q: Now, if one looks at those indicators alone, this was anything but impulsive, would you agree with that?---

A: No, I wouldn't necessarily agree with that, because you can have impulsivity and planning co-existing.

Q: He spent an hour or two - well firstly, he's brought a weapon to the scene?---

A: Yes.

Q: In order to do a robbery, according to his answer in the interview?---

A: Yes, yes.

Q: He spent an hour or two checking out the place?---

A: Yes, yes.

Q: Before doing it?---

A: Which are indictors of planning.

Q: And, and, and - - -?---

A: And what the point I make is that it is possible to have impulsivity and planning co-existing.

His HONOUR:

Q: Tell me what you would point to though in those circumstances as we thus know them, what do you point to, to support the view that it was an impulsive act?---

A: Well, I point to his explanation that he was stealing a car for the purposes of accommodation because he was then homeless. As I said earlier, I probably didn't put it very eloquently, Your Honour. That to me, in itself, is a measure of impulsivity and immaturity, if he was primarily focused on finding accommodation, why would a person steal a car? Why would a person, in their right mind, steal a car?

MR GIBSON:

Q: But isn't it the opposite? Isn't that it's not a deficiency in decision making ability. He had a problem, namely he had nowhere to stay, the best way of solving that problem is either to steal a car to sleep in it or to get to a friend's place to travel to in order to sleep there so, it's a problem which was solved by doing what he did?---

A: Well - well, that could be argued and I would say if you argued the matter like that, then I would say in response to that, well that showed deficient decision making. It was impulsive decision making, it was deficient. That was not the sort of decision making that, for instance, I would expect from an adult who was capable of thinking rationally and thinking through the - the consequences of their behaviour.

Q: But he said in the interview, he'd been staying with friends for two weeks up until that point?---

A: Ah, yes, well he'd been - what he said to me was he'd been couch surfing - - -

Q: Couch surfing, yes?---

A: - - - at various addresses.

Q: So, he had a solution for that two-week period?---

A: Yes, that would appear to be the case.

Q: So, is it possible that the sleeping matter that he's raised is simply an attempt to diminish what was otherwise just a bit of fun to steal a car from someone?---

A: Well, I would say that is a possibility but again I'd say, I - I couldn't elicit any evidence in support of that proposition.

Q: He wore gloves, being different type of gloves, so not - you know, he said in the interview he wore gloves?---

A: Yes, yes.

Q: Obviously one reason, he said in answer to a leading question from the police officer, 'Was it to keep warm?', he said, 'Yes'. This was in October?---

A: Yes.

Q: That might also have been part of the planning that he had undertaken?---

A: Yes. I'll accept that. Yes."[6]

53 Mr Cummins confirmed that he had not read s10A(2) of the Sentencing Act prior to him interviewing you. Furthermore, he also informed the Court that he was provided with the details of that subsection by your counsel the day after Mr Cummins interviewed your brother. Mr Cummins also confirmed that when it was brought to his attention he, of course, did not re-interview you.

54 Mr Cummins also accepted that throughout his first report he referred to the offence to be "carjacking" rather than "aggravated carjacking", to which Mr Cummins stated that he did not appreciate that there was any legal distinction between carjacking and aggravated carjacking. Mr Cummins was taken by counsel for the prosecution to his first report, where it was noted the references to "immaturity" and, thereafter, the following evidence was given.

Q: "You've done no testing as to - that is clinical testing as to his - where he fits on the scale of immaturity or immaturity compared to other persons of a similar age, I take it?---

A: No, I have not and I do not know of any formal assessment tool that has been validated in - in that regard.

Q: And nowhere in those references, in that first report, do you go on and - even appreciating that you had no understanding of aggravated burglary or s.10A2 at that time, you don't on and comment on, from a forensic psychologist's point of view, the effect that that immaturity has had on him beyond requiring guidance and supervision, do you?---

A: Well, it's probably correct I don't comment on that in a direct way. I talk about him, in my opinion, being diagnosed with a major depressive disorder, and in my view, a number of things flow from that.

Q: Sure, but you don't comment on what effect, if any, that had on the commission of the crime?---

A: No, I do not.

Q: You don't comment on any causal relationship between that and the crime?---

A: No, I do not.

Q: You don't comment on how his level of immaturity compares with others of a similar age?---

A: No, I do not."[7]

55 Mr Cummins was then referred to his second report dated 18 June 2018 and was taken to the various references he made about your immaturity and the following evidence was given:

Q: "Apart from, in paragraph 13, making the required conclusion about s.10A2 [10A(2)], you don't provide any details of why it is that you say he meets the criteria in s.10A2 [10A(2)], do you? You just state the fact of the matter without providing any analysis as to the causal connection between his level of immaturity and the offending, and any others that are of a similar age? You don't descend into any analysis as to why your conclusion in paragraph 13 is made out?---

A: No, I don't, and the reason I didn't was because, as I said earlier, immaturity is not clinically defined, um, in DSM-5 and I was unaware of the material you read out earlier dating back to 2011, and even when I downloaded a copy of the Sentencing Act, s.10A, the concept of particular psycho-social immaturity was not defined there, as far as I was able to ascertain.

Q: Moving on to the 'impaired mental functioning', s.10A(2), sub-paragraph C [(c)]. Hopefully I'm not putting this too simplistically, but in essence, the factors that led to your conclusion are that - or include that he was a habitual user of alcohol? Is that right?---

A: Sorry, that led to which conclusion?

Q: That he has impaired mental functioning?---

A: Yes, right.

Q: The conclusion in paragraph 13 of your second report. You've come out in paragraph 13 to say, 'I've now read s.10A2 [10A(2)] and in my opinion, he satisfies the two sub-paragraphs B and C [(b) and (c)]: (1), that he has a particular psycho-social immaturity that has resulted in a substantially diminished ability to regulate his behaviour in comparison with the norm for persons of that age, and paragraph C [(c)], at the time of the commission of the offence, he had impaired mental functioning that is causally linked to the commission of the offence, and substantially reduces the offender's culpability'?---

A: What paragraph is that again?

Q: Paragraph C [(c)] of s.10A2 [10A(2)]?---

A: Ah, no, no, no. You're reading - where you're reading from.

Q: No, I'm not reading. That's my point, Your Honour, that nowhere - that's my point. Nowhere do you descend into an analysis of how the impaired mental functioning - I'll take you to paragraph 13 of your second report. You see that there?---

A: Yes.

Q: Towards the end of that paragraph: 'In my opinion, s.10A2(C) [10A(2)(c)] is also applicable because, at the time of the commission of the offence, he had impaired mental functioning which substantially reduced his culpability, and because he still displays impaired mental functioning which would result in him being subject to significantly more than the ordinary burden or risks of imprisonment.' So you've repeated, effectively, paragraph C [(c)], i and ii, in a conclusive way. You've given that conclusion?---

A: Yes.

Q: But you haven't descended into any causal connection, or any detail, I suggest to you, as to how you reach that conclusion, have you?---

A: Well, maybe that's a fair comment to make. Ah, the issue of 'causal link', though - I appreciate this is something that has been canvassed in the courts, plus it's also an issue which is sometimes a different issue for clinicians, be they psychologists or psychiatrists.

In my opinion, there was a general causal link simply in the sense that I had initially, back when I first assessed this man, formed the opinion he was suffering from a major depressive disorder, and then, as a result of interviewing his brother and learning more information about the domestic circumstances and in particular, about how he had perceived Otome's mental health changing, Otome's attitude to life, attitude to himself changing, I formed the opinion he was also appropriately diagnosed with an adjustment disorder.

So in terms of the 'causal link' issue, the furthest I could - or, the most link I could make is that general link at the present time. If I'm being required to go beyond that, or if the court requires me to go beyond that, I would be - I would need to specifically interview him about that. And of course, I didn't - I was unaware of this material when I initially assessed him."[8]

56 In response to a question from the Court, Mr Cummins accepted that a diagnosis of substantial Depressive Disorder, if it be correct, does not mean that that is causally related to a crime.

57 During re-examination, Mr Cummins agreed that in the Record of Interview there was, not on a regular basis, but definitely reference to other people. Mr Cummins was then asked whether he was able to extract from you what influences these people may have had, to which Mr Cummins responded, that the closest he got was that:

"... he said to me he had been generally associating at times with others who he thought had been in the commission of - involved in the commission of armed robberies."[9]

58 Mr Cummins was then queried what response he obtained from your brother, again, suggesting that your brother had observed you with people, many of them who were older than you and who were essentially "unsavoury characters".[10] In particular, Mr Cummins ultimately agreed that he could not say whether, if you went out with older people, whether you were influenced by them or not.[11]

The evidence of Mr Festo Michael Malong Amanamoi.

59 Your brother, Festo Michael Malong Amanamoi gave evidence, and described himself as a machine operator (formerly working in one of the leading banks) and being twenty-six years of age (that is to say, a seven-year gap between the two of you).

60 During his evidence-in-chief, your brother confirmed that your father left Australia in June 2012 and, on average, he would return home every one or two years. Members of the family talked to him and your brother described talking to your father multiple times a week. In particular, he described that from his observations you were not close to your father prior to his departure, and since his departure you had spoken to him, but that diminished over time to nothing. In particular, he was questioned by your counsel whether he observed any behaviour patterns in you leading up to the intervention order, and the following evidence was given:

"Well, around the time late last year, I observed very drastic changes in his behaviour, attitude and conduct, and that goes back almost to when he was about 16 years old. Otome, naturally he's a very talkative, outspoken person and he's, ah - he's the most talkative one in the house. He likes to - um, he's a very sociable character. However, in the later stages of that three year period he has grown to become more reserved and almost reclusive. He would, ah, isolate himself from the family and he would spend more time with his friends outside of the house as opposed to the family. And it got to a stage where our - our communication was limited to only confrontations, because it was that bad."[12]

61 Your brother also gave evidence that he saw physical signs of you being inebriated and using cannabis. Your brother gave evidence that after you were evicted from the home in September 2017, he made a lot of effort to find you that night but ultimately did not hear from you until 22 November 2017, when you were already in the Metropolitan Remand Centre for six weeks.

62 In particular, your counsel questioned your brother as to whether or not your period of imprisonment has improved your attitude to how you want to behave within the community, to which your brother stated, "I certainly observe so".[13] When asked how he came to that conclusion, your brother stated:

"Well, firstly, I think it's important to know that when he was incarcerated, we were not talking, we were on very bad terms, and the first thing - and Otome initiated this, he apologised and he shed tears and he apologised and we reconciled and he was more open in his discussions and he would speak of times where he's sitting inside and he would ah, think about the future and what he had planned to do and he, he, he's even mentioned he feel a desire, a determination, to do a U-turn, and these are his own words, and prior to that I could not envisage Otome articulating that."[14]

63 Under cross-examination, your brother described how you had been employed as a truck jockey for a furniture removalist for approximately three months and that employment only came to an end because the owner of the truck sold the truck. Your brother accepted that your application to the work was good and that you had no difficulties about been drunk at work or high on drugs, and from his understanding you worked, effectively, as a furniture removalist.

64 Your brother was cross-examined about his observations of you prior to your eviction from the house. He asserted that you were picked up by people in a car, and your brother accepted that the limit of his observation was seeing you collected from the house, as he did not go with you in the car. In particular, the following evidence was given:

Q: "Right. So it's hard to say that his conduct and behaviour was influenced by older men, isn't it? Given that that's the limit of your observations?---

A: No. Ah, to be quite, to be quite candid, prior to him being picked up my friends at the door, his friends - those people used to come to the house, and it's - because I, at some times, very - I become very confrontational with them and they, they chose to not come inside, but I can see the effects and to be quite honest, we are a very tight community and I know what these people, they get up to. I'm well aware.

Q: And what's that?---

A: It's irrelevant.

Q: M'mm?---

A: It's irrelevant.

Q: I thought that you told Mr Cummins that he was easily led, vulnerable and under the influence of older men up to the age of 27. He can only be vulnerable and under their influence if they're off doing things that are bad. Why it would it be irrelevant?---

A: Ah, I do not recall saying that and Mr Cummins has stated it. Otome was the one who mentioned the age spectrum. It was not me.

Q: So you did not say those things?---

A: I did not say those things."[15]

65 On 19 June 2018, counsel for the prosecution referred to and relied on various submissions set out in a document headed "Prosecution Submissions on S10AD of the Sentencing Act 1991". Through oversights, such document was not tendered and I now direct it be so, and it shall be marked as exhibit 5. In particular, counsel for the prosecution highlighted that, pursuant to s10AD(1) of the Sentencing Act, the Court must impose a term of imprisonment and fix, under s11 of the Sentencing Act, a non-parole period of not less than three years - unless the Court finds, under s10A, that a special reason exists.

66 Counsel referred to s10A(2) of the Sentencing Act, which sets out what is a special reason in paragraphs (a), (b), (c), (d) and (e), all of which are disjunctive.

67 In particular, counsel for the prosecution referred to paragraph (e), which provides that a special reason can exist if "there are substantial and compelling circumstances that justify doing so". As counsel submitted, the expression is expressed conjunctively and the words "substantial" and "compelling" are commonly-used words and both must be given appropriate meaning.

68 I refer to the Court of Appeal decision of Director of Public Prosecutions v Hudgson [2016] VSCA 254, which involved an appeal by the Director of Public Prosecutions in relation to a sentence imposed for the offence of intentionally causing serious injury in circumstances of gross violence. In a similar way to the subject offending, s10(1) of the Sentencing Act provides that the person who is convicted of intentionally causing injury to another person in circumstances of gross violence must, in the absence of a "special reason", receive a non-parole period of not less than four years. At first instance, the judge found that there were two special reasons why the minimum non-parole period should not apply - one of which was based on paragraph (e). Relevantly, the Court of Appeal upheld the Director's appeal and, in particular, found that the defendant had not discharged his onus in establishing "substantial and compelling circumstances".

69 The Court of Appeal, had available, statements made in the Second Reading Speech, as well as the Explanatory Memorandum, and ultimately stated:

"It must be said that it is difficult, in some ways, to reconcile some of the statements made in the Second Reading Speech, as well as in the Explanatory Memorandum, with the structure and text of the various legislative provisions presently under consideration. However, in our view one thing is clear. It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s 10 should be a heavy one, and not capable of being lightly discharged.

.More specifically, we accept the Director's submission that the word 'compelling' connotes powerful circumstances of a kind wholly outside what might be described as 'run of the mill' factors, typically present in offending of this kind.

...

... the various matters upon which the respondent relied as giving rise to 'substantial and compelling circumstances', and which her Honour found to meet that description, fall well short, in our view, of doing so. There is nothing 'compelling' about them in the sense required. Nor can it be said that they are 'rare', or 'unforeseen' in cases of this type." (See paragraphs [111] - [112], [115])

70 Also, I refer to a more recent decision of Beach JA in Re Ceylan [2018] VSC 361, which dealt with, in part, with the words "compelling reason", as used in the Bail Act 1977. At paragraphs [37]-[45], Beach JA canvassed a variety of decisions, including Director of Public Prosecutions v Hudgson (op cit). In particular, at paragraph [45], Beach JA stated:

"In construing the expression 'compelling reason' in s 4(4), one must be careful to ensure that the words are construed in the context in which they occur and having regard to the legislative purpose of the provisions of the Act."

"... compelling reason in s 4(4) of the Act means reason which is forceful and therefore convincing ... ."

71 During the course of the plea on 19 June 2018, there was discussion as to what effect, if any, the amendment to s32(3)(b) of the Sentencing Act might have on any mandatory requirement pursuant to s10AD of the Sentencing Act for a court (absent special reason) to sentence an eighteen to twenty-one year old to a minimum non-parole period of three years and a head sentence of least three-and-a-half years (bearing in mind that pursuant to s11(3) of the Sentencing Act, a non-parole period must be at least six months less than the term of the sentence).

72 Section 32 of the Sentencing Act is contained within Subdivision (4) of Part 3 of the Sentencing Act, dealing with "Youth Justice Centre Orders and Youth Residential Centre Orders".

73 In particular, s32(1) states:

"(1) Subject to subsections (2A) (2B), (2C) and (2D), if a sentence involving confinement is justified in respect of a young offender a court may make a youth justice centre order or a youth residential centre order if it has received a pre-sentence report and -

(a) it believes that there are reasonable prospects for the rehabilitation of the young offender; or

(b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison."

74 In order for both parties to make further submissions based on the evidence of Mr Cummins given on 19 June 2018 and, also, to allow a report to be obtained from Youth Justice in relation to suitability for a youth justice centre order (requested by your counsel), the matter was adjourned to 30 August 2018.

75 On that day, your counsel made further sentencing submissions which are set out in a document "Further Sentencing Submissions", dated 17 August 2018. Again, through oversight, this document was not tendered, and I now direct that it be so, and marked as exhibit 3.

76 Such submission was largely directed to the issue of "special reasons". In such submission, your counsel submits that pursuant to s10AD of the Sentencing Act, the Court should find that the following "special reasons" exist:

(a) that you being over the age of eighteen years but under twenty-one years at the time of the offending, has proved, on the balance of probabilities, that you have a particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate your behaviour in comparison with the norm for persons of that age (s10A(2)(b) of the Sentencing Act); and/or

(b) that there are substantial and compelling circumstances that justify doing so (s10A(2)(e) of the Sentencing Act).

Your counsel relies on the evidence of the psychologist, Mr Cummins and, in particular, points to what he refers to as "markers" of your "psychosocial immaturity" -

• Deficiencies in decision making - this was said to be reflected in the concept of stealing a motor vehicle for the purposes of obtaining accommodation and using a firearm.
• Increased impulsivity - this was reflected in that the evidence of the complainant was that the taller of the two offenders was making demands for the keys to the ute and it was only when the keys of the Mercedes were observed that they decided to use that vehicle. Furthermore, there was increased impulsivity when it became obvious that the keys to the ute could not be found and violence was used as a tool to get what was needed.
• Greater vulnerability to coercion - and in this respect, the evidence of your brother that he observed others influencing you and that you were picked up by older men.

77 Your counsel also highlighted that your actions in trying to obtain somewhere to sleep in the manner described can only be seen as "immature" and not the actions of a person who is trying to obtain accommodation at any level.

78 In relation to the submission concerning s10A(2)(e) of the Sentencing Act, your counsel submitted that paragraph (e) can be seen as a "safety valve" and that the following features can be determinative to release the "safety valve":

• Your age.
• Your lack of prior convictions.
• Your early plea of guilty.
• Your full and frank Record of Interview.
• Your cooperation with the investigators regarding the collection of evidence.
• Your personal circumstances, taking into
• account the separation between you and your father, with whom you were close and, in this respect, your counsel referred to the reference made by your father.
• That all the features of your Record of Interview can be interpreted as an expression of remorse for your actions.

79 Counsel for the prosecution also relied on further submissions set out in a document headed "Prosecution Submissions on Section 10AD of the Sentencing Act 1991". Again, through oversight, such document was not tendered, and I now direct that it be tendered and marked as exhibit 6.

80 Initially, counsel for the prosecution made submissions as to the effect, if any, the amendment of s32(3)(b) of the Sentencing Act might have on the mandatory requirements in s10AD of the Sentencing Act for a court (absent special reason) to sentence an eighteen to twenty one year old to a minimum non-parole of three years and a head sentence of at least three-and-a-half years.

81 Counsel for the prosecution, in that document, in relation to that issue, made the following submissions:

(a) that s10AD(1) of the Sentencing Act does not apply to an offender who is under the age of eighteen years at the time of the offence (see s10AD(2) of the Sentencing Act). Furthermore, s10AD(1) of the Sentencing Act states that a court must impose "a term of imprisonment" and does not say "a period of detention", which is the language used in s413(2) of the Children, Youth & Families Act 2005. In particular, it was submitted that this means the ability of a court to utilise a Youth Justice Centre for orders under s32 of the Sentencing Act as a sentencing mechanism when sentencing for an "aggravated carjacking" offence under s10AD of the Sentencing Act is not available;

(b) Furthermore, s10AD(1) of the Sentencing Act mandates that (absent special reason) that a court must fix, under s11 of the Sentencing Act, a non-parole period and a head sentence (pursuant to s11(3) of the Sentencing Act) of at least six months more than the non-parole period. There is no power in a court to fix a non-parole period when imposing a youth justice centre order (see ss4, 5, 8-461 Children, Youth and Families Act 2005).

Therefore, it was submitted that the fact that a non-parole period must be fixed, and by virtue of the fact that a head sentence of at least three-and-a-half years must be fixed (absent special reason), this also prevents a youth justice centre order being made;

(c) Finally, counsel for the prosecution submitted that s32(3)(b) of the Sentencing Act was amended by s58 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (Act No. 43 of 217). Section 58 provided that in s32(3)(b) of the Sentencing Act the wording "three years" there be substituted "four years". Act No. 43 of 217 was assented to on 26 September 2017 and provided that s58 (among other sections) was to commence from 30 November 2017.

In particular, it was submitted, the application of the amended s32(3)(b) of the Sentencing Act was not retrospective. In this respect, I refer to s161 of the Sentencing Act, which was inserted by s64 of Act No. 43 of 2017.

In particular, s161(2) of the Sentencing Act provides, inter alia, that the amendments made by s58 "apply respectively to the sentencing of an offender or the hearing of a charge, for an offence alleged to have been committed on or after the commencement of that Part."

It was submitted by counsel for the prosecution that (absent special reason) the Court, even if it could order a period of detention (as opposed to a term of imprisonment) is limited to a maximum period of three years given the date of the offending and, accordingly, is not in conformity with s10AD(1) of the Sentencing Act.

82 I accept the foregoing submissions in relation to the application of s32(3)(b) of the Sentencing Act in relation to the mandatory requirements set out in s10AD of the Sentencing Act.

83 Counsel for the prosecution also made reference to s471(1) of the Children Youth and Families Act 2005, which provides that if the Adult Parole Board considers it appropriate in the interests of a person under the age of twenty-one to transfer a person to a Youth Justice Centre, then it may do so, so far as certain conditions are met. The ability to transfer rests with the Adult Parole Board not the County Court. All the Court can do is make a recommendation. In this respect, counsel referred to the matter of R v Sismanoglou [2018] VCC 1508, wherein his Honour Judge Gamble at paragraph [163] made such a recommendation.

84 Furthermore, s471(6) of the Children, Youth & Families Act 2005 also provides that in the event that a person is transferred from a prison to a Youth Justice Centre, then that person becomes, upon transfer, subject to the jurisdiction of the Youth Parole Board for the unexpired portion of the term of his sentence and that sentence is treated as a sentence of detention in a Youth Justice Centre.

85 Also, s471(7) requires that in the event of such a transfer, the detainee cannot be released from the Youth Justice Centre prior to the expiry of the non-parole period fixed under the term of imprisonment.

86 It was submitted that the practical effect of this is that if the Adult Parole Board transferred a prisoner to a Youth Justice Centre, then the detainee would be serving the non-parole period ordered under the term of imprisonment (less any pre-sentence detention).

87 In relation to the issue of "special reasons", counsel for the prosecution then set our various submissions as to the various "special reasons" set out in s10A(2) of the Sentencing Act.

88 Given that your counsel only relies on paragraphs (b) and (e) of s10A(2) of the Sentencing Act, I will only set out his submissions in relation to paragraph (b) (also bearing in mind that I have set out his earlier submissions in relation to paragraph (e)).

89 Counsel for the prosecution submitted that in order for paragraph (b) to be satisfied, the following must be proved:

• That you are aged eighteen, nineteen or twenty at the time of the offence and, indeed, there is no issue about that.
• That you have a "particular psychosocial immaturity", and
• That such a condition (that is the "particular psychosocial immaturity) has "resulted in a substantially diminished ability to regulate [your] behaviour in comparison with the norms of a person of [your] age".

The legislation requires that the offender prove the latter two requirements on the balance of probability.

90 Counsel for the prosecution noted that the Parliamentary materials cast "no further light on the meaning of the phrase". It is also to be noted that in his evidence, Mr Cummins said the term "psychosocial immaturity" was not really known to him and certainly was not contained in DSM-5 or, indeed, earlier DSM manuals. Counsel also noted that in the Second Reading Speech, it was considered that a claim based on paragraph (b) would ordinarily be established by expert evidence.

91 Counsel for the prosecution also referred to the booklet "Statutory Minimum Sentence for Gross Violence Offence Report, October 2011" produced by the Sentencing Advisory Counsel and, in particular, paragraphs 4.52 to 4.54. They state:

"(4.52) Research in developmental psychology supports the view that several characteristics of adolescence distinguish young offenders from adults in ways that mitigate culpability. These adolescent traits include deficiencies in decision-making ability, increased impulsivity and greater vulnerability to external coercion, particularly from peer associates. As reflected by the Victorian Council of Social Service (quoting the Office of the Chief Science Advisor in New Zealand);

[t]here is an inherent conflict between the practical focus on using chronological age to determine rights and obligations and the highly individualist processes of maturation.

[4.53] Specific research into psychosocial immaturity of children has focused on the effect of psychosocial measures, such as:

autonomy, independence, emotional temperance, future-time perspective, and perspective of others, on antisocial outcomes ... [and has found] that psychosocial immaturity peaks at age 15 and then dissipates. Indeed, most psychosocial variables appear relatively stable beyond age 18, with the exception of emotional temperance which improves through the mid to late twenties. Similarly, contemporaneous research has investigated psychosocial maturity in relation to competence to stand trial, finding that decision making incompetence is mainly seen in adolescents ages 15 and below.

[4.54]A number of offenders, however, fall outside of the standard developmental trajectory, and those few individuals will display particular psychosocial immaturity that is out of step with their chronological age. Victorian law implicitly recognises that people mature at different rates, and that their chronological age may not always represent their developmental age. (footnotes omitted)."

92 Counsel for the prosecution submitted that this exemption is likely to rely on proof that the offender suffered deficiencies in decision-making ability, presented with increased impulsivity and greater vulnerability to external coercion, had reduced autonomy, independence and emotional temperance, future time perspective and perspective of others.

93 It is submitted that the defence must prove both that the offender exhibited one or more of these conditions and this has "resulted in a substantially diminished ability to regulate his behaviour".

• That this exemption is likely to rely on proof that the offender:

• suffered deficiencies in decision-making ability;

• presented with increased impulsivity and greater vulnerability to external coercion;

• had reduced autonomy, independence, emotional temperance, future-time perspective and perspective of others.

• The defence must prove both that the offender exhibited one or more of these conditions and that this "resulted in substantially diminished ability to regulate his behaviour".
• In respect of the meaning of "particular" when used in the phrase "particular psychosocial immaturity", reference was made to the Sentencing Advisory Council report and, in particular, it was submitted that the term "particular" is a measure of degree and connection to the offending. Counsel for the prosecution referred to paragraph [4.59] of the Sentencing Advisory Council Report, wherein it is stated:

"... in order for a person's psychosocial immaturity to be seen as reducing culpability, it must be of a sufficient degree and have some connection to the offending behaviour: the offender must demonstrate a particular level of immaturity."

Counsel for the prosecution noted that if this is Parliament's intention in using the word "particular", it may simply emphasise the requirements of degree and causation that are, in any event, expressly enacted by s10(2)(b)(ii) of the Sentencing Act.

• The offender must prove that his "particular psychosocial immaturity" has "resulted in a substantially diminished ability to regulate his or her behaviour in comparison with the norm for persons of that age".

Counsel for the prosecution submitted that the offender must prove that his self-regulation ability was substantially worse than the norm for the reference group. The test here is not just "had a substantially diminished self-regulation ability".

It was submitted that it is not enough to prove that the offender had a substantially lower psychosocial immaturity than the general adult population but, rather, had weaker self-regulation than his age cohort who, themselves, are assumed to be weaker self-regulators than the general population. It was ultimately submitted on this issue that s10(2)(b)(ii) of the Sentencing Act creates a narrower exemption than would attest than merely require comparison to the general population.

• Furthermore, it is not enough that the offender had weaker self-regulation than the reference group - it must be proved to have been "substantially" weaker.
• The exemption requires comparison to an age-based reference group, but it is unclear whether the reference group is to eighteen, nineteen and twenty year olds, to which this provision applies, or it must be applied to the "norm for persons of that age" - in this case, nineteen year olds.

95 Ultimately, counsel for the prosecution submitted that to take advantage of this special reason you had to prove three things:

(a) you had a "particular psychosocial immaturity" (at the time of the offence);

(b) you had a relatively impaired self-regulation ability; and

(c) the condition described in paragraph (a) caused the result described in paragraph (b) above

96 Shortly prior to the adjourned hearing on 30 August 2018, the Court received a report authored by Mr Gene Bell, senior court advice officer, youth justice, in respect of a "Suitability Assessment Youth Justice Centre Order". When the matter came on for hearing on 30 August 2018, the parties advised they had not yet received a copy of this report, and on that day copies were made available to the parties. I made clear that when I adjourned the matter for sentence on this date, the parties were at liberty to contact my staff to arrange a further mention date if any submissions wished to be made on that particular report.

97 Of course, such report was directed to s32 of the Sentencing Act, as to whether or not a young person is suitable for a youth justice order rather than a mainstream prison sentence. As I have already indicated, given the circumstances of this particular matter, there is probably no legal basis to order a youth justice centre order in the event that you do not establish a special reason exempting you from the mandatory minimum non-parole period.

98 In any event, I will have such report marked as an exhibit, being exhibit 7. It is to be noted that in that report, Mr Bell interviewed you on the 2 and 8 August 2018, had all the material available to the Court and also had the advantage of communicating with various people involved with your incarceration. In that report, Mr Bell states, in part:

"In order to ascertain whether a young person is suitable for a Youth Justice Centre Order the writer must adhere to the provisions of Section 32 of the Sentencing Act which requires consideration of whether a young offender has:

➢ Reasonable prospects for rehabilitation; or

➢ Is particularly impressionable, immature or likely to be subject to undesirable influences in an adult jail.

Mr Amanamoi has not demonstrated any inclination to complete programs that address issues pertinent to his offending behaviours. He has now spent a considerable period of time in adult remand and during his time and has displayed challenging behaviours with a number of incidents involving other prisoners and prison staff. This has resulted in his separation from the general population and being placed into a management regime unit, including a period in isolation. I have confirmed that Mr Amanamoi has recently being assessed as suitable to return to a general population unit, however at the time of interview, he was awaiting an available being before being transferred.

Mr Amanamoi does not present as being particularly immature, impressionable or subject to undesirable influences. He appears to have adapted to his environment and unfortunately has displayed challenging and concerning behaviours in the context of both verbal and physical aggression whilst in remand towards prison staff. Mr Amanamoi refutes these reports and stated that he has been specifically targeted. His offending conduct in the community, subsequent performance in adult custody and lack of engagement in rehabilitative programs over the past nine months does not support a favourable assessment for youth justice detention at this time, notwithstanding material provided to the Court on his behalf.

Although Mr Amanamoi was polite during the interviews and expressed a desire to be placed in youth detention, I am concerned that he may present as a negative influence towards other more impressionable and immature young men already at Malmsbury.

The writer has read all the material supplied by the Court and has consulted with the relevant authorities in the Youth Justice system in regard to Mr Otome Amanamoi's suitability to a Youth Justice Centre Order. It is the view of the Department of Justice and Regulation (Youth Justice) that Mr Amanamoi does not meet any of the criteria stipulated in the Act and is therefore considered to be a NON-SUITABLE candidate for a Youth Justice Centre Order."

(sic)

99 It would appear from the report of Mr Bell, he had access to much more information about your activities in prison. Of course, Mr Bell interviewed you on two occasions in August 2018 and had access to a variety of people involved in your incarceration. Mr Cummins saw you for an hour and a quarter via video link in April 2018.

100 The offence of "aggravated carjacking" is a very serious offence. The legislature has seen fit to give a maximum sentence of twenty-five years in relation to the offence and, more particularly, has seen fit to impose, absent any "special reason", a minimum non-parole period of three years. During the Second Reading Speech introducing the Bill which created such offence, the Attorney-General stated:

"The Government is introducing offences and penalties which appropriately reflect the terrifying nature of these crimes. In doing so, the Government, and the Parliament, denounce the perpetrators of such crimes in the strongest terms and send a message to the community that such activities will not be tolerated."

101 Your offending is an example of the terrifying nature of such offence.

102 At some time after 4.00am on Thursday, 5 October 2017, you and a co-accused approached the complainant, who was an eighty-six year old man, and his wife, who was eighty-two years old, and doing no more than searching for a set of keys in a dumpster, which were dropped when the complainant was searching for bread thrown away to feed ducks at a lake near his home. When you approached the complainant he was in the dumpster and you were holding an imitation handgun, demanding that the keys of the complainant's utility be handed over. When they were not forthcoming, you struck the man two or three times with the imitation handgun and also slapped him once. When your co-offender realised the keys were left in the car driven by the wife of the complainant, you went off in that car.

103 The offending must also be seen in the context that even though you have no prior convictions, you were found guilty of affray and recklessly causing injury and sentenced, without conviction, to an aggregate fine of $1,500 at the Dandenong Magistrates' Court on 17 July 2017 - approximately twelve weeks prior to the subject offending.

104 The Victim Impact Statement of the wife of the complainant is particularly telling - she reports that she is "very angry and upset", particularly so in having to watch her husband being threatened and abused by you. Furthermore, she continues to feel "very unsafe for the both of us".

105 In 2001, your parents and siblings came to Australia from Egypt, where your family had been living for a period of time after leaving war-torn South Sudan. You attended a number of schools until leaving during Year 12 in 2016. Over the years leading up to then, you had commenced drinking alcohol and had started experimenting with drugs at approximately the age of fifteen. Ultimately, on or about 20 September 2017, you were evicted from the family home following a big argument with family members - particularly your mother - which you accept had been building up as a result of you abusing drugs and alcohol over the preceding few years. At the time of the offending, you believed you were inebriated to some extent.

106 In particular, your father, although always remaining married to your mother, has returned to the South Sudan to take up a diplomatic role, and you have expressed concerns that, on his departure, this had an adverse effect on you. One of the references relied on by you is from your father, wherein he describes how he and your mother have worked hard and made sacrifices for many years to "pave a clear path to success and prosperity for our children". In reference, he makes clear his love for you and his regret that his feeling of obligation to serve his country of birth, has, in some way affected you. Be that as it may, your brothers and sisters have all moved on to successful employment and your mother is engaged in work also.

107 I accept that when you were evicted from home, you commenced to "couch surf" and had little funds. I also accept that you made a conscious decision, as stated in your Record of Interview, to steal a car in order to sleep in it or find a place where you could sleep.

108 It was submitted by counsel for the prosecution that the mandatory minimum sentence should be used as a "guide post" as to the gravity of the offence. He referred to the matter of DPP (Cth) v Haidari (2013) A Crim R 134, wherein at paragraph [43] the Court of Appeal (consisting of Weinberg, Harper and Priest JJA) stated:

"Whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender. Where there is a minimum statutory sentence of imprisonment, the question for the sentencing judge is where, having regard to all relevant sentencing factors, the offending falls within the range between the least serious category of offending for which the minimum is appropriate and the worst category of offending for which the maximum is appropriate."

(Footnote omitted.)

109 It was submitted by counsel that where it applies, the three-year minimum non-parole period should be taken into account as an indicator of the appropriate sentence for the least serious category of this offence committed by an offender with significant mitigation of the kind that does not establish a special reason exception.

110 Sentences for more serious offending, or less mitigated offenders, should be adjusted upwards by reference to this guidepost. He further submitted that a judge should not determine a sentence without reference to this guidepost and then adjust any lower sentences upwards to comply with the mandatory minimum (reference was made to Bahar v R [2011] WASCA 249).

111 I consider that the first issue is whether the Court finds, under s10A of the Sentencing Act that a "special reason exists", which obviates the requirement that there be a non-parole period of not less than three years. Your counsel relied on s10A(2)(b) and s10A(2)(e).

112 Dealing with the paragraph (e) "special reason", I am not satisfied that you have established that there are substantial and compelling circumstances that justify a finding that a special reason exists. The matters to which your counsel referred to in support of such submission are clearly matters relevant to mitigation, but cannot be said to connote powerful circumstances of the kind "wholly outside what might be described as 'run of the mill' factors, typically present in offending of this kind" (see Director of Public Prosecutions v Hudgson (op cit)).

113 Again, nor can it be said that such reasons are "rare" or "unforeseen" in cases of this type. As pointed out by the Court of Appeal in Director of Public Prosecutions v Hudgson (op cit), it is plain that the intention of Parliament is that the burden imposed upon an offender who seeks to escape the operation of s10A, should be a heavy one and not capable of being lightly discharged.

114 I also reject the submission of your counsel that you have proved, as a matter of probability, the "special reason" set out in s10A(2)(b) of the Sentencing Act. The basis of such submission was said to be the evidence of Mr Cummins. Generally, I found the evidence of Mr Cummins to be unimpressive and certainly not persuasive as a matter of probability.

115 The "special reason" set out in s10A(2)(b) consists of two sub-paragraphs; the first, (i), requires that the offender is or over the age of eighteen but under twenty-one years of age at the time of the commission of the offence. Of course, there is no issue that you comply with such age requirement. The second part consists of (ii), which I accept requires expert evidence, such as that from a psychologist or a psychiatrist (without attempting to limit the nature of the expertise).

116 As made clear by Mr Cummins, the words "psychosocial immaturity" are not known to DSM-5 or indeed earlier editions. Of course, there is no definition within the Sentencing Act, or any other act, as to what that term means. Mr Cummins, in his evidence, referred to psychologists using the term "immaturity", which does involve some of the matters referred to by counsel for the prosecution, and for practical purposes, he considered that "psychosocial immaturity" would be a similar concept to "immaturity".

117 I generally accept the submissions of counsel for the prosecution that an appropriate starting point is the Sentencing Advisory Council Report of October 2011, wherein there are helpful comments as to the meaning of "psychosocial immaturity" and the relationship between that condition and the need for that condition to result in a "substantially diminished ability to regulate his or her behaviour in comparison with the norm for persons of that age".

118 I did not find the evidence of Mr Cummins either to be impressive or persuasive for the following reasons:

(a) Mr Cummins only interviewed you on one occasion on 20 April 2018 by way of teleconference - that is, he was in his rooms and you were situated in prison. At that time, he did not know that you were charged with "aggravated carjacking" rather than "carjacking" and, in particular, had no knowledge whatsoever of s10AD(1) and s10A of the Sentencing Act. Indeed, Mr Cummins had no knowledge of those sections, even at the time of his interview of your brother, and only learnt of those sections a short time before his supplementary report dated 18 July 2018. In that report, Mr Cummins did little more than baldly state that you satisfied the requirements of S10A(2)(b) of the Sentencing Act;

(b) Your counsel, in his submission, in support of there being a "special reason" pursuant to s10A(2)(b), referred to the evidence of Mr Cummins in relation to "deficiencies in decision-making", "increased impulsivity" and "greater vulnerability to coercion" in support of that submission.

It seems clear enough that such markers are some of those referred to in the Sentencing Advisory Council Report and which are relevant to the issue of "psychosocial immaturity". However, I do not accept that there is a realistic factual basis in support of each of these factors.

In particular, Mr Cummins seemed to be suggesting that the fact that you decided to steal a car in circumstances where you had been previously "couch surfing" for a couple of weeks and intended to either sleep in the car or travel to where you could sleep, was some evidence of "deficient decision making" or, indeed, impulsive behaviour. In regard to the latter, Mr Cummins seemingly accepted that there were many pointers to planning about this particular offending, in that you had an imitation firearm with you, had waited around for a while, and watched the complainant, and had the intention of stealing a vehicle - Mr Cummins proffered that although there was planning, it was also possible to have impulsivity. When put to him that this was, in your eyes, the best way of solving the problem given that you had nowhere to sleep, Mr Cummins responded that this would be evidence of "deficient decision making" and he would not expect this sort of decision making, for instance, from an "adult who is capable of thinking rationally and thinking through the consequences of their behaviour". Of course, the reference point is not to an adult in any event.

Furthermore, it was submitted that the "increased impulsivity" was reflected in that the evidence of the complainant was the taller of the two offenders was making demands for the keys to the ute, and it was only when the keys to the Mercedes were observed that you decided to use that vehicle. This is in circumstances where you are the person making the demands on the complainant and holding the imitation firearm and, indeed, ultimately assaulting the complainant in order to obtain the keys. The obtaining of the keys, and what was planned over a period of time to obtain a vehicle and drive away, was the very thing that you did.

Much was made of what was said to be your "greater vulnerability to coercion". But, again, there was no evidence of this whatsoever in relation to the offending - if anything, you were the leader holding the weapon and assaulting the complainant. Furthermore, Mr Cummins made reference to being told by your brother that he had observed you being under the influence of older men. When queried about such allegation, your brother gave blunt evidence that he had never said such thing to Mr Cummins;

(c) Furthermore, there was no attempt at all by Mr Cummins to explain his reasoning process that if you had a "particular psychosocial immaturity" how that condition "resulted in a substantially diminished ability to regulate [your] behaviour in comparison with the norms of that age".

119 However, I do consider that there are a number of significant mitigating factors, including:

(a) I accept that your plea of guilty to this offence was at a very early time and had the utilitarian effect of saving the Court the time and cost of a trial, as is made clear by Phillips v R [2012] VSCA 140 at paragraph [36]. In particular, your plea of guilty to the offending obviated the need for the complainant and his wife to give evidence at a trial, and to have to relive the circumstances of the offending in a public forum;

(b) It is always a question for the sentencing judge whether remorse or willingness to facilitate the course of justice and an acceptance of responsibility are to be inferred from a plea of guilty (see again Phillips v R (op cit)) at paragraph [96]. I do accept that your plea of guilty is some evidence of remorse and, furthermore, you have made expressions of remorse to both Mr Cummins and, indeed, to your brother;

(c) I also note that you made a full and frank Record of Interview, admitting all aspects of the crime and, furthermore, cooperated with investigators regarding the collection of evidence - again, showing a willingness to facilitate the course of justice and an acceptance of responsibility;

(d) in particular, given your age, you are a "youthful offender", and probably the most significant mitigatory factor is to take account of your age at the time of offending - that is, nineteen years old . I refer to the well-known decision of R v Mills [1998] 4 VR 235, which established that the rehabilitation of a young offender is the paramount consideration in determining an appropriate sentence. I also refer to another well-known Court of Appeal decision of Azzopardi v R; Baltatzis v R; Gabriel v R [2011] VSCA 372; (2011) 35 VR 43 wherein in paragraphs [34]-[35], the Court of Appeal stated:

"There are a number of considerations which underlie the general primacy of an offender's youth as a sentencing consideration. Firstly, young offenders being immature are therefore 'more prone to ill-considered or rash decisions'. They 'may lack the degree of insight, judgment and self-control that is possessed by an adult'. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct ... .

Secondly, courts 'recognize the potential for young offenders to be redeemed and rehabilitated'. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, 'is one of the great objectives of the criminal law'."

(Footnotes omitted.)

120 Clearly, bearing in mind what has been stated earlier, a distinction lies between what may be referred to as general mitigating factors - involving the youth of an offender - and what is referred in s10A(2)(b) and s10A(2)(e) of the Sentencing Act. Even though I have determined that you have not proved, as a matter of probability, that particular "special reason", I consider that normal sentencing principles involving consideration of mitigating factors are relevant in reaching an appropriate disposition, just as are aggravating factors.

121 As pointed out by your counsel, I consider the prospects of your rehabilitation to be "reasonable". Seemingly, you have a supportive family and you have re-established contact with your mother and others in the family. As I have pointed out, your father seems very supportive, and clearly you have a family base to return to after completing your prison sentence. Furthermore, it does appear that you are making strides in overcoming your alcohol and drug problems in prison and this all bodes well for the future.

122 As your counsel points out, this is the first time you have experienced prison and, indeed, you have no prior convictions for any type of offence - although it is to be remembered that you were found guilty of affray and recklessly causing injury by a Magistrates' Court on 17 July 2017.

123 I take all these matters into account in coming to an appropriate sentence, bearing in mind that no special reason has been established by you.

(a) In respect to the charge of aggravated carjacking, you are convicted and sentenced to three-years-and-ten-months' imprisonment and I order that you serve a period of imprisonment of three years before becoming eligible for parole;

(b) I declare that you have served up to, not including this day, 341 days in pre-sentence detention and such period should be administratively deducted;

(c) I will grant the disposal and forensic sample orders sought by the prosecution;

(d) Pursuant to s89 of the Sentencing Act, I order the cancellation of any driver's licence or learner permit that you hold and disqualify you from obtaining a further one for a period of three years from this date;

(e) I declare, further, pursuant to s6AAA of the Sentencing Act, that save for your plea of guilty in relation to the offence on the Indictment, I would have sentenced you to six years imprisonment;

(f) Having heard from each of the parties and after a consideration of the particular circumstances that relate to you, I have decided to accede to the defence request for me to recommend that the Adult Parole Board give consideration to exercise these powers under s471 of the Children, Youth and Families Act 2005 to direct that you be transferred to a Youth Justice Centre to serve your sentence there.

Accordingly, I will ensure that the record of the sentencing orders of this Court will make reference to that recommendation and that a copy of my sentencing reasons will be forwarded to the Adult Parole Board for their consideration.

I want to make clear, however, that the ultimate decision is properly one for the Adult Parole Board.

[1] Transcript ("T") 37, Lines ("L") 5-18