DPP v De Silva [2023] VCC 2406

1. Your offending the subject of Indictment N12135147.3 occurred first in time on 6 September 2022.
2. You were aged 19 years, as was your co-accused, Jok Gar. Your victim, Amal Kirti Singh, was not previously known to you.
3. On 6 September 2022, Mr Singh was out drinking at the Heartbreakers Bar near the intersection of Russell and Lonsdale Street in Melbourne. Around 1am, he left the bar feeling "pretty drunk" and proceeded to walk home. He took a wrong turn and ended up at the corner of Spring Street and Victoria Parade.
4. You and Mr Gar noticed this and walked towards Mr Singh with one of you saying "give me your phone and wallet". Mr Singh refused causing you to strike him, at which point he then fell on the ground. Both you and Mr Gar then attacked Mr Singh which caused him to lose consciousness. These facts form the basis for Charge 1, Robbery
5. During the attack a knife was used to cut Mr Singh to his right cheek and to partially amputate his right earlobe. The Prosecution do not allege that you used the knife, were complicit in its use or knew the knife was present. The Prosecution rely upon the injuries of loss of consciousness, abrasions to the head and swelling to the head and face to form the basis of Charge 2, Cause Injury Recklessly. The injuries referred to in paragraph 26 of the Crown opening are therefore not relevant to you.
6. You and Mr Gar then took Mr Singh's phone and watch, leaving him unconscious. Mr Singh regained consciousness and, bleeding heavily, walked approximately one kilometre to an address in Collingwood. He was subsequently attended to by the Police. Paramedics arrived and took him to Hospital.
7. At 4:30 am, Police located you and Mr Gar in the bathrooms at Southern Cross Train Station. You were arrested in relation to an alleged shop theft which had occurred at a nearby 7‑11 store and taken to North Melbourne police station.
8. You were spoken to by Police and said that you had seen four African males attack Mr Singh but that you did not get involved. You were not arrested at this time in relation to the robbery.
9. You were on bail at the time of this offending, which forms the basis of summary Charge 7, Commit Indictable Offence Whilst on Bail

1. Police obtained CCTV footage from various locations which showed you and Mr Gar walking through the area where the offending occurred. You were identified by your distinctive jacket.
2. CCTV footage shows you and Mr Gar walking away from the scene of the robbery quickly and with face masks up. It also shows you and Mr Gar entering a laneway off Little Bourke Street, leave camera view, then return with clothing items swapped.
3. On 7 September 2022, Police located the mobile phone belonging to Mr Singh in a drain on Lonsdale Street.
4. On 3 October 2022, Police executed a warrant at your home and you were arrested. You were subsequently interviewed with the assistance of your NDIS carer, Sarah Omogiade, being present as an independent third person.

1. In terms of gravity and victim impact, your offending is obviously serious.
2. Mr Singh was intoxicated and lost, and you and Mr Gar took advantage of that situation. There was two of you onto one which is cowardly and added to Mr Singh's vulnerability. The fact that your attack continued whilst he was on the ground further adds to his vulnerability and to the objective gravity of your offending. Your cowardice continued when you left him on the ground unconscious after stealing from him. This was particularly callous.
3. These days people keep much of their lives on their mobile phone and you took this from Mr Singh.
4. I accept that the injuries which resulted to Mr Singh - in terms of what is attributed to your actions - are not at the higher end. I also accept the submission on your behalf that this offence was both opportunistic and relatively unsophisticated.
5. Whilst I have no victim impact statement, it is obvious that Mr Singh suffered physical injuries, and I have little doubt that he was likely to have been psychologically affected. The prosecution submissions referred me to his statement which he made to police, speaking of his fear walking around the city and to being shaken up by what happened to him.
6. You, were, the subject of separate summary Charge 7, on bail at the time.

1. Your offending the subject of Indictment P10639226.1 occurred about 6 months later on 23 March 2023.
2. You were 20 years old by this time.
3. At approximately 4:22 pm, you rode your bicycle to 3/10 Coburns Road, Melton South where the Melton Kebab and Grill take-away was located.
4. Mr Surinder Brar was working in the Kitchen, and Ms Kiranjeet Kaur and Ms Manpreet Mann were working in the front of the restaurant.
5. You entered and approached Ms Mann where you produced a black handled knife and demanded money stating "give me all your money". Mr Brar, upon hearing the commotion, came into the front and stood with Ms Mann and Ms Kaur. Mr Brar saw you holding what he described as a chef's knife, about a foot long, with a dark or black handle.
6. You then went behind the counter attempting to access the register and stated "I'm taking the till alright?". You then disconnected the register, picked it up and proceeded to leave the restaurant. You placed the black handled knife on the counter. These acts form the basis of the charge of Armed Robbery.
7. Mr Brar attempted to restrain you as you were leaving but you broke free and continued to walk out of the restaurant with the till, followed closely by Mr Brar.
8. Immediately upon exit, Mr Brar grabbed you which caused you to drop the register. Mr Brar then wrestled you to the ground and restrained you, attempting to call out to passers-by to assist. Shortly after, Mr Brar released you and you ran.
9. Mr Brar took your bicycle inside the restaurant and Ms Kaur picked up the register and brought it inside. Ms Mann then called the Police.
10. A short time later, you returned asking for your bicycle. Mr Brar informed you that Police had been called and were on their way, at which point you again ran, leaving your bicycle behind.
11. Almost the entire incident was captured on CCTV and made available to the Court.
12. At this time you were also on bail - forming the basis of Summary Charge 2, Commit Indictable Offence Whilst on Bail.

1. At approximately 4:50 pm on 23 March 2023, Police observed you walking down Staughton Street, Melton South. Police approached and subsequently arrested you, taking you to Sunshine Police Station.
2. You participated in an interview assisted by a representative of the Youth Referral and Independent Person Program. During your interview, you largely responded "no comment" in response to the allegations put to you about the armed robbery. However, you did admit to being the subject of bail.

1. This is also serious offending.
2. It would appear the knife you had with you was relatively large and was obviously designed to help you escape with the till. Possession of a weapon has its inherent dangers. There must have been some planning for you to bring the knife with you, but I accept your offending was relatively unsophisticated.
3. Whilst you did manage to exit the store, you were undisguised, caught on CCTV and unsuccessful. For a charge of armed robbery, it is very much towards the lower end of the scale for an offence of its type.
4. This assessment is unlikely to make your victims feel any better. Mr Brar, Ms Kaur and Ms Mann were at their work, an environment in which they were entitled to feel safe when you came in and took the till.
5. Again, as already stated, you were on bail at the time - .the subject of separate summary charge.
6. In effect you report using cannabis and alcohol at the time of both sets of offending and perceived that you needed money to buy food and clothing. You were also stressed about a number of family relationships.
7. In some ways your offending first in time - that is the robbery and causing injury recklessly on 6 September 2022 - is objectively more serious than the armed robbery committed on 23 March 2023 in terms of its overall circumstances, although I remain mindful of the differing maximum penalties for each charge.

1. Your plea of guilty and its timing is also relevant.
2. You were arrested for the offences the subject of indictment N12135147.3 on 3 October 2022 and were granted bail for this offending on 14 November 2022.
3. On 23 March 2023 you were arrested for the offences the subject of indictment P10639226.1 and again remanded into custody. Bail was granted on 29 May 2023.
4. Both matters had resolved to a plea of guilty by June 2023.
5. While the matter has some history, I accept that you entered your pleas when appropriate charges had been settled.
6. You were again remanded into custody on 17 August 2023 after a successful application to revoke your bail.
7. Your pleas of guilty in relation to the two indictments before me now finalise all matters for you. Importantly, it gives certainty to the victims of your offending and other witnesses who might otherwise have had to give evidence about particularly traumatic or distressing events.
8. It has also saved the Court the time and expense of contested proceedings.
9. Your plea has additional utilitarian value as it occurred at a time when the Court was still responding to the backlog created by the COVID‑19 pandemic.
10. Importantly, you have taken responsibility for your wrongdoing.
11. These matters will all be taken into account in your favour.

1. I turn now to your personal circumstances.
2. You are currently 20 years of age, were raised in Broadmeadows, and are an aboriginal man.
3. You were born to Travis De Silva and Sarah Bruce and are the second of three boys, with your siblings being Jordan De Silva and Lyric De Silva. You have a half‑sibling named Xavier Bruce.
4. At around aged four, you were assessed and diagnosed with having a "moderate intellectual disability" and also diagnosed with Tubular Sclerosis Complex (TSC).
5. In addition to your recognised intellectual disability a letter authored by Dr Marco Fedi, neurologist, dated 15 December 2023, confirms both early childhood epilepsy and your diagnosis of TSC. TSC is described as "a complex multisystem disorder that can be associated with neuropsychiatric disorders which include behavioural, psychiatric, intellectual, neuropsychological, psychological issues and sleep disorder". Various additional investigations were recommended and I understand that at least an MRI is in train.
6. In addition, you were unfortunately exposed to family violence at a young age, with your father predominantly being the perpetrator. Your father has had limited involvement in your life but there were additional concerns about you and your siblings being exposed to criminal activities by him, your mother and an uncle at an early age, as well as to their drug abuse. As a result, you and your brothers were placed in and out of care of your mother and out-of-home care.
7. Various reports were tendered supporting your difficult background and the need for child protection services to become involved.
8. In May 2017 a "Protection Application" was made in relation to you and your brothers. Reports provided indicate concerns about non-attendance at school and your living conditions as being dirty and unhygienic. You were said to be scapegoated by your mother who struggled with severe neglect issues and depression. It would also appear she struggled with your particular difficulties.
9. In 2019 your mother was incarcerated, meaning that you and your brothers were placed in out-of-home care. You all were first placed in the kinship care of your maternal grandmother Debbie Wetmore. However, due to complexities, you were not under her care for long and were placed into a Residential Care operated by Anglicare later the same year.
10. In 2020, your mother was released and you and your siblings were placed in her care. However, you did not remain with her for long. You do maintain regular contact with your mother.
11. You experienced a seriously disrupted education. You attended Jackson Specialist School, Melton Specialist School, and finally St Joseph's Special School. You left St Josephs Special School, only attaining a Year 10 education.
12. You are unable to read or write.
13. Your employment history is also limited, only having occupied a number of low skilled jobs including fencing and brick laying.. You main income is from the Disability Support Pension and you are supported by an NDIS package. Your finances are managed through State Trustees.
14. You have been a user of both cannabis and alcohol.

1. Of course your prior criminal history does form part of your personal circumstances.
2. You first appeared on 3 May 2018 at the Sunshine Magistrates Court for relevant offences of armed robbery, theft-from shop, attempted armed robbery, commit indictable offence whilst on bail and intentionally damage property. You were placed on an adjourned undertaking without conviction for 12 months and entered into a good behaviour bond of $100.
3. On 7 March 2019 you appeared at the Sunshine Childrens Court in relation to charges of theft-from shop, theft and fail to answer bail. You were placed on Probation for a period of 12 months without a conviction being recorded.
4. On 7 November 2019 you appeared at Sunshine Childrens Court in relation to charges of theft-from shop, commit indictable offence whilst on bail and possess cannabis. You were placed on 2 separate bonds to be of good behaviour, each in the amount of $100, and for a period of 12 months.
5. On 11 November 2021 you were placed on an adjourned undertaking by the Sunshine Magistrates Court for a period of 12 months, without a conviction being recorded, for a single charge of traffick cannabis. This order required you to comply with a Justice Plan.
6. On 9 December 2021 you appeared at Sunshine Magistrates Court in relation to a number of dishonesty offences, breaches of court orders, damage offences and drug offending. You were placed on an adjourned undertaking for 12 months requiring you to comply with a Justice Plan.
7. You would have been subject to this undertaking at the time of your offending in September of 2022 which is an aggravating feature to this offending.
8. On 19 January 2022 you appeared at the Sunshine Magistrates Court in relation to charges of theft and commit indictable offence whilst on bail. You were placed on an adjourned undertaking for 12 months.
9. You would have been subject to this undertaking at the time of your offending in September of 2022 which is an aggravating feature to this offending.
10. On 22 June 2022 you received two days imprisonment, reckoned as served, for charges of commit indictable offence whilst on bail and contravene a conduct condition of bail. For charges of criminal damage, trespass, shop theft and theft you were placed on an adjourned undertaking for a period of 12 months requiring you to comply with all lawful directions made pursuant to the National Disability Insurance Scheme plan.
11. You would have been subject to this undertaking at the time of your offending in September of 2022 and March of 2023 which is an aggravating feature to this offending.
12. On 30 June 2022 you appeared at the Sunshine Childrens Court again in relation to relevant offending of attempted armed robbery, aggravated burglary and other dishonesty offences, offences against the Bail Act and compliance offences. You were placed on an a bond to be of good behaviour for a period of nine months in the amount of $25.
13. You would have been subject to this bond at the time of your offending in September of 2022 which is an aggravating feature to this offending.
14. On 14 October 2022 you appeared at the Sunshine Magistrates Court in relation to charges of shop theft, carry control weapon and offences against the Bail Act. You were placed on an adjourned undertaking for a period of 12 months with a requirement that you comply with all lawful directions of an NDIS plan dated 11 May 2022.
15. You would have been subject to this undertaking at the time of your offending in March of 2023 which is an aggravating feature to this offending.
16. On 14 November 2022 you appeared at the Melbourne Magistrates Court in relation to charges of shop theft, offences against the Bail Act, drug offences, robbery, attempted robbery and various driving offences. These of course are also relevant. You were placed on two adjourned undertakings until 14 November 2023 with a requirement that you participate in services specified in a Justice Plan for a period of 10 months.
17. You would have been subject to this undertaking at the time of your offending in March 2023 which is an aggravating feature to this offending.
18. You received two additional undertakings from the Melbourne Magistrates Court on 9 January 2023 and 31 January 2023 which were also in place until 14 November 2023 and required you to participate in a Justice Plan for a period of 10 months for dishonesty, driving, drug and bail offences.
19. Again, you would have been subject to this undertaking at the time of your offending in March 2023 which is an aggravating feature to this offending.
20. I am told that in advance of this outcome, you spent some 21 days in custody before being placed on an adjourned undertaking. You were on bail for your offending in October of 2022 at that time and thus it is not available to you as presentence detention in relation to the matters before me. That 21 days on remand is referred to as 'dead time" and I take it into account in accordance with the Renzella discretion.
21. You are not to be punished for your criminal history a second time. It is relevant to the weight to attach in your sentencing to the principles of specific deterrence, denunciation, and community protection.
22. Much of your offending is relatively low-level, but certainly not all. Your offending the subject of the two indictments before me seems to be in a more serious category than most of your previous history.
23. Previous courts have clearly taken into account your recognised intellectual disability - as they should. You have had difficulty abiding by court orders and promises by you to be of good behaviour. There is some explanation for that in the expert evidence before me.
24. Your criminal history is also relevant to an assessment of your prospects for rehabilitation, to which I now turn.

1. Your intellectual disability and criminal history raises obvious concern about how to best the protect the community.
2. Dr David Trainor, consultant psychiatrist, has provided a report dated 3 October 2023. You terminated your interview with him prematurely as you became frustrated with the questioning. Dr Trainor had access to considerable collateral material.
3. Dr Trainor indicates that your additional diagnosis of TSC involves a noncancerous tumour growth in the brain and other organs. It is a degenerative condition. This commonly results in neuropsychiatric sequeIae which include attention deficit hyperactivity disorder, autism spectrum disorder, mood disorders, intellectual impairment and behavioural difficulties. For you, this condition has resulted in behavioural difficulties and functional impairment. This has been exacerbated by what he describes as "significant developmental adversity" which can "predispose a person to later life difficulty with emotional dysregulation, impulsivity, antisocial conduct, interpersonal problems, and a reduced ability to empathise with others."
4. In my view there is a basis to reduce your moral culpability for your offending given your background of social deprivation. This is further reduced by a range of serious conditions which also factor considerably in the weight to attach to both general and specific deterrence in your sentencing.
5. Dr Trainor confirms that you have been diagnosed with TSC, Autism Spectrum Disorder, severe intellectual disability and Attention Deficit Hyperactivity Disorder. You have a long-standing problem with impulsivity, emotional dysregulation, aggression, hyperactivity and self-harm, which have their foundation in your background, in your intellectual disability and in the way TSC presents with you.

1. Your intellectual disability, TSC, Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder are all permanent disorders and have existed from your early childhood. They were in existence at the time of your offending behaviour.
2. Dr Trainor describes your conditions as severe and interrelated causing significant functional impairment. The use of alcohol and/or drugs exacerbates your impulsivity, judgement and ability to understand consequences for your actions.
3. In combination of your impairments, childhood adversity and substance use, you simply are more vulnerable to offending behaviour. Your conditions are lifelong and are likely to continue to affect you into the future.
4. These findings paint a bleak picture. It is also a unique picture.
5. You have now been in adult custody for the longest time you have experienced by either remand or sentence. Your distress at the time of your initial plea hearing on 13 November 2023 at being incarcerated was palpable. You have not received any visits.
6. In his report dated 3 October 2023, Dr Trainor did express concern for your ability to cope with imprisonment, more so than a prisoner without your conditions. You are vulnerable to being bullied and less able to cope with the demands of that environment. In addition, you need high-level support which is difficult to access in custody. In his opinion it is likely that aspects of your mental functioning would deteriorate in the context of incarceration.
7. A neuropsychological report authored by Dr Harriet Downing, clinical neuropsychologist dated 30 May 2023, has also been tendered on your behalf. That report was directed at your participation in interview with Police.
8. Dr Downing also had access to wide-ranging collateral material, as well as attending upon you in custody.
9. In her opinion, your full scale IQ was 48, in the extremely low range. I observe that in 30 years of practice I have never seen such a low IQ. Your profile was characterised by performances in the extremely low range for verbal comprehension, perceptual reasoning, information processing speed, immediate working memory as well as fluency set shifting.
10. In a supplementary neuropsychological report dated 30 August 2023, Dr Downing confirms significant impacts on your decision making and ability to think through consequences as a result of your disabilities.
11. She opines that 'due to his tuberous sclerosis and associated intellectual disability, and behavioural and emotional challenges (including mental health status) Mr DeSilva is clearly unsuitable for mainstream prison and would likely experience prison as more onerous than those without his condition (s).' You are also vulnerable to institutionalisation.
12. In combination, the reports of Dr Trainor and Dr Downing - both of which are unchallenged - raise real concern should you be further exposed to the custodial setting. In some ways I would consider it a cruel and unusual punishment. I take this aspect of their respective opinions into account in forming the view that incarceration is more difficult for you and that there are substantial risks to your overall wellbeing in that environment
13. Based on those reports, your Counsel relies on the decision and principles contained in R v Verdins & Ors[1], as well as the High Court decision of Muldrock v The Queen[2]. Verdins deals with offenders with impaired mental functioning and Muldrock with offenders who present with intellectual disability. Naturally there is considerable crossover in the application of the sentencing principles to be derived from those two decisions.
14. It is conceded that all Limbs in Verdins apply. I accept that this is so.
15. As stated, you are a poor vehicle for the application of either general or specific deterrence. Of course, each of your conditions are lifelong and remain in existence. They in part explain your offending in your impulsivity, poor reasoning and poor consequential thinking in a background of trauma and also impact on your experience in custody, likely impact upon you in the custodial setting on your overall wellbeing and, naturally, impact on what is an appropriate sentence in all the circumstances.
16. The decision in Muldrock goes to the causal relationship between an offender's intellectual disability and the offending behaviour.
17. Whilst the language today may be different, in that decision, the High Court observed, and I quote:

"A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and the needs of the community."

1. Your moral culpability is reduced by application of the Bugmy principles, Verdins and the Muldrock principles.
2. The issue again is how you can best be supported to live an offence free lifestyle. On any view of it you require considerable and extensive supports.
3. Tendered on your behalf is a letter dated 12 October 2023 authored by Mr Matthew Uyanna, Specialist Support Coordinator with Melbourne City Mission.
4. Mr Uyanna, together with Simone Fulton, work as your National Disability Insurance Scheme support coordinators. Your current NDIS funding assists you with daily activities, social community and civic participation, independent living skills and transport funding. Ms Fulton attended your plea hearing on 13 November 2023 and is again present today.
5. You have continued to receive support whilst in custody.
6. Importantly, you have stable accommodation located in Rockbank Victoria. You have lived at this property for approximately two years and had access to ongoing support by qualified support workers for 6 hours a day Monday through to Saturday. You reside with two other residents who receive similar support.
7. Whilst you have clearly offended whilst at this property I accept that it is a very supportive environment and you have expressed being happy there and to feeling safe. I understand that additional 1:1 support has been arranged.
8. An Activity Plan has been tendered today setting out target activities for you upon your release.
9. A letter authored by Marcus Hough, Senior Youth Practitioner with the Youth Support and Advocacy Service (YSAS) dated 17 October 2023 has also been tendered. He was present for your earlier plea hearing and is present again here today.
10. Mr Hough writes that you have been engaged with The Zone programme since 30 May 2023. That program is a youth alcohol and other drugs program that provides counselling, outreach intervention and case management. You are described as engaging extremely well and to expressing your desire to address substance use issues. The Zone is prepared to work with you for an indefinite period.
11. In an updated letter dated 18 December 2023 Mr Hough confirms that YSAS can assist you on any release from custody navigating around harm reduction, substance use, reoffending and re-entry into the community and can do so indefinitely.
12. There are clearly a range of existing therapeutic relationships which have merit in continuing.
13. A letter dated 27 October 2023 authored by Ms Bianca Muscat, Senior Disability Justice Coordinator with the Department of Families, Fairness and Housing confirms that the good behaviour bond with a justice plan attached imposed upon you 13 June 2022 expired on 3 March 2023 but you continued to remain engaged with Disability Justice Coordination and did so on a voluntary basis.
14. I should not lose sight of the fact that you are also a youthful offender. Despite the many hurdles faced by you this gives a basis to prioritise rehabilitation in your sentencing.

1. The parity principle demands that any sentence imposed reflects differences in the culpability and personal circumstances of co-offenders; and avoids unjustifiable differences in co-offender sentences.
2. On 18 December 2023 Mr Jok Gar was sentenced by another Judge of this court for the charges of Robbery and Causing Injury Recklessly for the offending with you on 6 September 2022. The factual basis outlined in the Crown summary alleged against him was the same as the facts alleged against you.
3. He received a total effective sentence, as an aggregate, of 2 years imprisonment with a minimum of 16 months before being eligible for parole. He is, as already outlined, of similar age to you.
4. He had an extremely limited criminal history with only one prior court appearance for the possession of cannabis and enter private place without excuse for which he received an accountable undertaking for a period of 12 months. However he was also currently on remand for charges of aggravated home invasion and intentionally cause serious injury in circumstances of gross violence.
5. A fundamental difference between the two of you is your intellectual capacity in your IQ of 48 in combination with your degenerative condition of TSC and other associated conditions such that it is appropriate that there be a different sentence imposed upon you for the offending where Mr Gar has been sentenced and you are to be sentenced.

1. The Crown submit that all relevant sentencing considerations, including the gravity of your offending, deterrence and future risk demand the imposition of a head sentence and non-parole period. These submissions were unchanged despite further materials being provided.
2. Your Counsel contends there is a proper basis for you to be released from custody to utilise available supports through YSAS and your NDIS support plan in addition to a further Justice Plan, or, alternatively to have you assessed as to your suitability for a Youth Justice Centre order.
3. In order to be better informed I requested that you be assessed as to your suitability for a Justice Plan. Given the expert evidence before me I was not attracted to a Youth Justice Centre order.
4. This required an adjournment from your plea date of 13 November 2023 to your further plea on 19 December 2023. In attendance today are Bianca Muscat, your Disability Justice Coordinator, Simone Fulton, your NDIS Coordinator, Jennie Wigginton, your Behaviour Support Worker as well as Mr Hough from YSAS.
5. An assessment outcome report dated 16 November 2023 found that you were suitable for a community based order. Anger management programs were recommended.
6. A Justice Plan dated 14 December 2023, has also been provided and is authored by Bianca Muscat. In that plan it was recommended that:

(a) you engage with a Disability Justice Coordinator Department of Families, Fairness and Housing, participating in further planning is required;

(b) you agree to engage with support and treatment services as identified by your Disability Justice Coordinator;

(c) you continue to participate in a referral to the Forensic Disability Clinical Services Team and participate in the assessment process and any offending behaviour programs as recommended. I understand that this is in train; and

(d) You undergo assessment and treatment for a suitable alcohol and/or drug treatment program.

1. Ms Muscat gave evidence today as to the services that would be implemented and your continuing ability to work with YSAS.
2. All the information before me indicates that various presentations contributed to your inability to abide by court orders independent of any internal willingness. Realistically, that is likely to continue. Either way, any court orders should not be overwhelming and risk, in effect, setting you up to fail .
3. There are a substantial range of appropriate supports, established relationships, and all likely to be available to you upon your release into the community. This of course assists with the protection to the community. There is access to a range of programs not previously available to you.
4. Now I am just going to check with each of you that I have not made any factual errors or there is anything that you wanted to bring to my attention?
5. MR DAVISON: No issues, Your Honour.
6. HER HONOUR: Thank you. Ms Siriwardana?
7. MS SIRIWARDANA: No factual errors, Your Honour. The one minor matter is that Ms Simone Fullerton is I think not online today, but otherwise was present on 13 November.
8. HER HONOUR: All right, thank you very much for that. And I just wanted to check in relation to - I had made that enquiry - I should have checked at the start in relation to pre-sentence detention, but there is in effect separate amounts in relation to each indictment. For the one that includes the robbery and causing injury recklessly, I understand 208 days are available, is that right?
9. MR DAVISON: Yes, Your Honour.
10. HER HONOUR: In relation to the indictment involving the armed robbery there were - - -
11. MR DAVISON: 192, Your Honour.
12. HER HONOUR: 192, and obviously there is some crossover.
13. MR DAVISON: There is.
14. MS SIRIWARDANA: That's agreed, Your Honour.
15. HER HONOUR: All right, do you agree with those pre-sentence detention days?
16. MS SIRIWARDANA: I do.
17. HER HONOUR: Thank you.
18. MS SIRIWARDANA: I do, thank you, Your Honour.

1. HER HONOUR: I do make the ancillary order as sought for the disposal of the knife.
2. The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.
3. I must also balance the interests of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and reintegrated into society.
4. I have taken into account the relevant sentencing guidelines referred to in s5 of the Sentencing Act. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the important principles of both totality and proportionality, noting that you are subject to two separate indictments.

1. If I firstly turn to the summary charge of committing an indictable offence on bail, bearing in mind the sentencing exercise overall, you are convicted and discharged.
2. On the two charges on that indictment, those of robbery and causing injury recklessly, I am of the view that this was part and parcel of the one event and accordingly, intend to impose an aggregate sentence. I do see it as the more serious of the offending before me.
3. As an aggregate, you are convicted and sentenced to 6 months imprisonment of which 208 days are reckoned as having already been served.

1. For the summary charge of committing an indictable offence on bail and for the same reasons you are convicted and discharged.
2. For the single charge on the indictment, that of armed robbery, you are convicted and placed on a community corrections order for a period of 24 months. There is considerable merit on the expert evidence before me of making that order therapeutic only and, accordingly, the only condition is that you comply with the Justice Plan dated 14 December 2023 noting the recommendations included in that plan.
3. Given it is a community corrections order there are standard conditions. The first and foremost of those is you must not commit any other offences punishable by imprisonment during the 24 month period. You must also report within two working days of your release to the nearest corrections office. You are also required to advise your supervising corrections office of any change of address of where you are living or working and must do so within 2 working days. It is a term of all community corrections order that you must submit to visits as directed and obey all of the instructions and directions of a corrections officer. You are not able to leave the State of Victoria without the prior permission of your supervising corrections office.
4. This order presents you with a chance to change your life in a positive fashion should you choose to take up that opportunity and the supports that should be made available. The order can be breached if you do not comply with it in terms of the conditions or reoffend whilst it is in place. If you do, you will have to come back before me for breaching the order and I may have to resentence you on the charges and to sentence you for breaching the order.
5. Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty. This is a somewhat artificial given the weight I have attached to your intellectual disability and other conditions, but if not for your pleas of guilty, across the 2 indictments, I would have extended the corrections order by 12 months and the imposition of the term of imprisonment for armed robbery to one of 12 months.
6. Any issue, any other matters you need to raise, Mr Davison?
7. MR DAVISON: No, Your Honour.
8. HER HONOUR: Ms Siriwardana?
9. MS SIRIWARDANA: No, thank you, Your Honour.
10. HER HONOUR: Okay, well I note you are present in court today, albeit virtually. I might ask that your instructor assist Mr De Silva with finalising the corrections order. I can stand down while that takes place and you will certainly be facilitated in discussing with him the arrangements for him to return to Rockbank.
11. MS SIRIWARDANA: I will, thank you, Your Honour.
12. HER HONOUR: I will stand down temporarily. Mr De Silva, what is happening now is your solicitor is going to help you with the orders that I have made. We will sort that out and then I will disappear and your lawyers can help you make the arrangements for you to go home.
13. OFFENDER: Straight away?
14. HER HONOUR: Pretty much. I think you will have to go downstairs and get your property and stuff like that. It might take a bit of time.
15. OFFENDER: (Indistinct words.)
16. HER HONOUR: There's certain things they just need to do, all right, so you'll just have to be patient with that but please don't come back.
17. OFFENDER: I won't.
18. HER HONOUR: All right.
19. OFFENDER: I'm gonna - I'll try my best not to.
20. HER HONOUR: I would really like it if you did that. All right, so I am going to stand down temporarily while Ms Brown assists with the order. When I can come back we'll finalise it and then I'll leave you to make the final arrangements, all right.
21. OFFENDER: Your Honour?
22. HER HONOUR: Yes.
23. OFFENDER: When you said I was living in a dirty house, I'm not a dirty person, I'm a clean person.
24. HER HONOUR: No, that was just material before me about when you were growing up, I'm not talking about now.
25. OFFENDER: Okay.
26. HER HONOUR: Okay, all right, I'll just stand down, thank you.
27. OFFENDER: Thanks, Your Honour.
28. (Short adjournment.)
29. HER HONOUR: Thank you, I understand that order's now been signed.
30. MS SIRIWARDANA: Yes, Your Honour.
31. HER HONOUR: Thank you. Well thank you, Ms Siriwardana, for your assistance in relation to this matter and that of your instructor, of course. Thank you also to you, Mr Davison, and that of your instructor. Sometimes people forget the invisible assistance that the instructors give. I am also very grateful to the two support workers here today who are able to assist Mr De Silva to return home, so thank you very much. And as I said, Mr De Silva, I don't want to see you again.
32. OFFENDER: I won't. I'll try (indistinct words) Your Honour.

[1] R v Verdins & Ors [2007] VSCA 102; (2007) 16 VR 269

[2] Muldrock v The Queen [2011] HCA 39