DPP v Backer [2018] VCC 592

• aggravated carjacking - 25 years' imprisonment, with a mandatory non-parole period of not less than three years unless a special reason exists;

• driving a motor vehicle when directed to stop - 120 penalty units or

• drive whilst disqualified - 240 penalty units or two years' imprisonment.

4 I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A in the plea proceedings.

5 Briefly, at approximately 9 pm on Thursday, 26 October 2017, you arranged for your friend, Malakai Kirby, to drive you to a house in Eaglehawk to meet an associate of yours. When you arrived at the address you parked on an angle behind a white Ford Falcon. Ricky Roberts and Paul Denton were seated in that car.

6 You walked to the driver's side of the Falcon and asked Mr Roberts who he was. After a brief conversation you produced a knife and told Mr Roberts to, "Get out of the fucking car." Mr Denton told Roberts, "Don't be stupid, just sit there." You adopted a more aggressive tone and said, "Get out of the fucking car." Mr Roberts took the keys out of the ignition and you said, "Leave the fucking keys there. Get out of the fucking car before I stab you." As you said this you thrust the knife into the driver's side door trim. You repeated your demand for him to get out of the car or you would stab him. Mr Roberts was extremely scared and thought he was going to be stabbed. He got out of the car and you said, "Give me the fucking keys." He handed them over in response to your demand. You then told Mr Denton, the passenger, to, "Fuck off before I stab you." Mr Denton got out of the car.

7 You took the vehicle and drove to your girlfriend's house. You argued with her. You drove off and proceeded to drive around the Bendigo area in the stolen car. At 12.48 am on Friday, 27 October 2017, you drove to the Apco Service Station in Strathdale and put $50 worth of petrol into the car. You drove off without paying.

8 Later that day, at about 3.40 pm, the police saw you making a left-hand turn at speed, which caused the car to skid sideways. The officers activated their blue and red lights and indicated for you to pull over. You kept driving to avoid apprehension and you were not intercepted.

9 At about 10.30 pm that night you tailgated a car in the Strathdale area and switched your lights to high beam as you drove behind it. You sped up alongside this car, leant out of the window almost to your waist and swerved back and forth as if to run the other car off the road. You pursued the car as its driver attempted to get away from you, entering a roundabout on the wrong side of the road and almost colliding with that car. You then stopped following the car and its occupants drove to the Bendigo Police Station to report your behaviour.

10 The next day, at 12.23 pm, you stole $60 worth of petrol from the Woolworths Caltex Service Station in Golden Square by filling up and driving away without paying.

11 At 4.36 that afternoon a police officer found you in the car, parked on a road in Kangaroo Flat. He was able to lean into the vehicle and take the keys from the ignition. You were arrested and taken back to the Bendigo Police Station where you gave a no comment interview.

12 Clearly, this is serious offending. You repeatedly threatened the victim with a knife and you stole his vehicle. It must have been a terrifying experience for him. You then used his vehicle over the following two days for your own purposes. You stole petrol, failed to stop when required by the police, drove whist disqualified and drove carelessly. It is an aggravating feature of your offending that you committed these offences whilst on a Community Corrections Order that had only been made some 20 days before.

13 The maximum penalty for the offence of aggravated carjacking is one measure of the seriousness with which this offending is regarded. I have a responsibility in sentencing you for this offence to deter other people who may be tempted to behave in the way that you did. General deterrence is a paramount sentencing consideration in this case.

14 You have relevant prior convictions. In 2011 you appeared at the Bendigo Magistrates' Court on charges of burglary and theft. You were placed on a

12 month Community Corrections Order (CCO). On 11 March 2016, you appeared at the Castlemaine Magistrates' Court for failing to comply with that order. The original order was confirmed. On 24 October 2016, you again appeared at the Bendigo Magistrates' Court for offences that included unlicensed driving, fail to stop motor vehicle on request, drive in a manner dangerous, possess methylamphetamine and receive stolen goods. You were convicted and placed on another 12 month Community Corrections Order.

15 You were apparently remanded in custody on 6 January 2017 for alleged further offending. You were released on bail on 31 March 2017. There was more offending and you were again remanded in custody on 21 July 2017. On

6 October 2017 you appeared at the Melbourne Magistrates' Court on a large number of charges that included traffic amphetamine, possess dangerous article, drive whilst disqualified (13 counts), fail to render assistance after an accident, theft of a motor car (four counts), fail to stop motor car on request, drive in a dangerous manner, dangerous driving while pursued by police and fail to stop vehicle on police request. You also admitted contravening a Community Corrections Order. You were convicted and placed on an 18 month Community Corrections Order. It was this order that you breached by committing the current offences. I have no doubt that the time you spent on remand was one of the matters that influenced the Magistrate's decision to again release you on a Community Corrections Order. It was an order designed to assist your rehabilitation. It included a condition to attend Wulgunggo Ngalu.

16 Wulgunggo Ngalu is a facility operated by Corrections Victoria. It offers Aboriginal men on a Community Corrections Order the opportunity to reside in a safe place whilst undergoing assessment and treatment for the issues that lie behind their offending. It also gives offenders the opportunity to strengthen their cultural connections. Regrettably, you did not attend at that place.

17 Given this history, specific deterrence and community protection are relevant sentencing considerations.

18 I now move to matters relevant to your background. You are 33 years old. You were born in Queensland and grew up in Beenleigh.

19 Your mother is an Aboriginal woman from Bourke in New South Wales. She is from the stolen generation and has no connection to her birth family and little connection to her country. Her life has not been easy. She was adopted in 1960 when she was a baby. Her adoptive parents were Dutch. The family spent time in the Netherlands from 1971 to 1974 before returning to live in Queensland.

20 Your mother's experiences as a child and teenager left a sad legacy. After leaving home as a young woman she told the court that she began to drink heavily. She battled alcoholism and depression. She had five children with five separate fathers. You were the second eldest of the five. There was a period when she was unable to care for all of the children. Two of them, Julien (the eldest) and Benjamin (the third son), were fostered, against her wishes, by her adoptive parents. You had no contact with your youngest brother, Bryce, because he went to live with his father when he was born. Alcohol was a major part of family life as you were growing up.

21 You had no contact with your father. He was not Aboriginal. Your mother re-partnered with Kenneth Butler when you were three and a half years old. He was an Aboriginal man of the Bundjalung people from the area around the NSW and Queensland border. You speak of your stepfather as being supportive. Tragically, he died in a car accident on 6 January 2018. The driver of the other car has been charged with criminal offences arising from this incident. The death of your stepfather has been a significant loss for you.

22 In sentencing you, I do take account of the hardship you suffered in your formative years. Your family circumstances were unsettled and difficult. Your mother struggled with problems associated with alcoholism and depression. It cannot have been easy for you. These are matters that mitigate sentence.

23 You were educated at Beenleigh High School. You were not a good student and you left part way through year 10. You commenced an apprenticeship, which you left when your girlfriend, Shellee McCarthy, became pregnant. You were both only 16 years old. This was a difficult time because you were both so young. However, with the support of her parents, you set about building a life for yourselves. Importantly, you obtained steady employment working as a roof trusser in Brisbane. You maintained that employment for a number of years. The relationship has produced three children aged 17, 15 and four.

24 In late 2007 or thereabouts, you and your partner separated and you formed a new relationship with Samantha Richter. When she became pregnant in 2008, you both moved to Bendigo to be close to her family. Shortly thereafter, your parents also moved to the area. Your mother still lives in Castlemaine. You lived in Bendigo until 2011 and during this time you were always in employment.

25 In 2011, after receiving the Community Corrections Order, you moved back to Brisbane and lived for a short time with your brother. You recommenced your relationship with Ms McCarthy and you worked again as a roof trusser. In early 2016 the relationship broke down and you returned to live in Bendigo. You have hardly worked since that time.

26 Drugs and alcohol have featured in your life. You commenced using cannabis at the age of 14 or 15. Your stepfather was a cannabis user. You started drinking alcohol when you were 15 years old and I was told that you had used heroin intermittently in the past. It is apparent from the reference provided by Ms McCarthy that alcohol was a significant problem for you throughout the period of your relationship. I quote from her letter: "We've had many ups and downs over the years but it was Ashley's alcoholism that made me leave with the children in the end. Without alcohol involved, Ashley was an excellent father, worker and partner. Ashley has hurt me deeply over the years so I had to move on but my children never will, they love their father and his absence in their life is simply a void in their life that I simply could never fill."

27 The breakdown of your relationship with Ms McCarthy was hard for you to deal with and you spent a week in a psychiatric unit in hospital. You decided to return to Victoria to be with your mother. You did so in early 2016. This was when your life began to spiral out of control. You were drinking heavily and you commenced using the drug, ice. You had not apparently had any previous involvement with this drug. As inevitably occurs with people abusing ice, offending followed. You appeared at the Bendigo Court, as I have already said, in October 2016, when you were placed on a Community Corrections Order with conditions that included drug and alcohol treatment and mental health treatment. You contravened that order. In 2017 you had two periods on remand and then the appearance at the Melbourne Magistrates' Court in October 2017. Again, you were given the opportunity to be supported within the community on a Community Corrections Order. This order had a condition for you to attend Wulgunggo Ngalu. You contravened the order by committing the current offences.

28 Your counsel submitted that I should not impose the standard minimum term in this case because you had impaired mental functioning that was causally linked to the commission of the offence and that substantially reduced your culpability.

29 Dr Cunningham, a forensic psychologist, has assessed you. He notes that it is only in the last two years that your life has gone off the rails and your offending escalated. He opines that whilst you meet the criteria for a Persistent Depressive Disorder and that you were likely to be suffering from symptoms of depression at the time of the offence, there is not a direct connection between the symptoms of depression and the offending. He notes that you were abusing drugs and alcohol at the time of the offending and that these were the main contributors to the offending. This is undoubtedly correct. From early to mid-2016 until the time of the current offending, you abused drugs and alcohol and committed a large number of offences. Attempts to support you in the community were unsuccessful. The offending occurs as a consequence of the drug and alcohol abuse, not as a consequence of your depression. This explains why I am unable to accept your counsel's submission on this point.

30 Your counsel also submitted that a number of factors combined to provide significant and compelling circumstances that would justify a decision not to impose the standard minimum term of three years imprisonment. Reliance was placed on your depressive disorder, the death of your stepfather whilst you have been in custody, your active participation in the Koori Court sentencing conversation and your desire to have contact with your children at some time in the future.

31 On this issue, the Court of Appeal has recently observed that it was clearly parliament's intention to impose a heavy burden on offenders seeking to establish a "special reason" that would enable a sentencing judge to depart from the statutory minimum non-parole period. The Court stated that the word "compelling" connoted powerful circumstances of a kind wholly outside what might be described as "run of the mill" factors. Mr Backer, as sad as the death of your stepfather has been for you and your family, the matters relied upon do not amount to the significant and compelling circumstances required by the legislation.

32 There are some matters in mitigation. I have already referred to the impact of the disadvantage and deprivation suffered during your formative years.

33 You have pleaded guilty. It is an acceptance by you of responsibility for your offending. It has saved the victims from the trauma of giving evidence and also saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.

34 You consented to having the charge heard in the Koori Court. In doing so you agreed to participate in a process that involves appearing before elders from the Aboriginal Koori community. The process is described as a "sentencing conversation." It was apparent to me from the way you participated in the process that you do have insight into the problems in your life that you need to address and that you are now expressing a willingness to use support to help you to try to address these problems. I give you credit for your participation in the Koori Court process. The Court of Appeal has recognised the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender."[1] Participation in the process is not easy. Indeed, it is challenging and your participation in the process is a factor that is relevant to sentencing.

35 In determining your sentence I take into account that this will be your first lengthy period of imprisonment.

36 I am guarded about your prospects for rehabilitation. The current offending is serious. Over a period of two years you showed contempt for the law and contempt for the community. You turned your back on the opportunities courts gave you to deal with your drug addiction and your mental health problems. You used drugs and alcohol to excess. The support from your family did not impact on your behaviour. Mr Cunningham is correct when he says that your ability to rehabilitate depends almost entirely upon your ability to break your dependence on alcohol and your dependence on the drug, ice. On the positive side, I acknowledge that you have shown insight into the problems that you need to address. It is significant that up until late 2015 you were a hardworking man and whilst you had some isolated problems with the law, they were nowhere like the problems you have had over the last two years. In addition, you have two important incentives that may persuade you to change your behaviour. First, you have the prospect of seeing your children at some time in the future. A Family Violence Order has now expired and it seems that Ms McCarthy is anxious for you to have some form of contact with the children. This provides a strong motive for you to deal with your drug and alcohol issues. Secondly, with the recent death of your stepfather, you have a responsibility to be a better son to your mother upon your release from prison and I am sure that weighs heavily upon your conscience.

37 Will you please stand. On Charge 1 you are convicted and sentenced to be imprisoned for a period of three years and nine months. On charges 2 and 3, two months' imprisonment on each charge. On the summary charge of drive whilst disqualified, four months' imprisonment. On the charge of fail to stop, two months' imprisonment. On the charge of careless driving, convicted and fined, $1,500. I order two months of the sentence on the charge of drive whilst disqualified and one month of the sentence on fail to stop be served cumulatively upon each other and upon the sentence on Charge 1 on the indictment. This makes a total effective sentence of four years. I fix a minimum term of three years before you will be eligible for release on parole. I declare 184 days pre-sentence detention.

38 On the three summary charges all licences are cancelled and you are disqualified from driving for a period of two years.

39 Had you pleaded not guilty and been found guilty after a trial, I would have sentenced you to a total effective sentence of five years and three months with a minimum term of four years.

40 Pursuant to s.464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth. If you fail to cooperate in the taking of the sample, the authorities may use reasonable force to obtain a sample and the sample may be a blood sample. I make the order because of the seriousness of this offending; your prior criminal history; the order is not opposed; and it is in the public interest.

41 I make the disposal order sought by the prosecution.

42 Just take a seat there for the moment. Is there anything else, Ms Nguyen or Ms Millar?

44 HIS HONOUR: Thank you. Mr Backer can be removed.

[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.