DPP v Desacada [2025] VCC 287

7. Your victim complied with your direction and continued driving along the Goulburn Valley Highway before entering a Toyota dealership in the hope of alerting customers at that venue. Once the vehicle arrived outside the sales office, he stopped the vehicle and ran to the office screaming out for help.
8. You then left the vehicle and fled the scene into a bushland area nearby. You apparently had not located the cash that was in the vehicle at the time of your offending.
9. You were arrested some days later, on 28 October 2021, and were questioned by police. It is common ground that you made full and frank admissions to your offending. It is also accepted that you disclosed facts relating to that offending which might have been difficult for the police or the prosecution to have discovered. That is to be taken into account in your favour.
10. You were granted bail. On 7 June 2022 you failed to attend the Shepparton Magistrates Court as you were required to, having signed a bail order on 24 May 2022 at the Shepparton Magistrates Court.
11. There is no victim impact statement, but as the prosecution points out in their sentencing submissions dated 25 January 2025, it is likely that your offending had a significant impact upon your victim who, in his witness statement, said amongst other things in relation to your conduct: 'I think I was going to get kill by him. I was so scared.' And later: 'I very scared when this happened. I think I was going to die on this day. I cannot believe it.'
12. The prosecution also points out, and I take into account, that at the time of the offending in 2021 you had no criminal history, and your admitted criminal history is relevant only to your prospects of rehabilitation and reflecting upon the life that you have led since the offending.
13. Your counsel provided me with defence submissions dated 21 January 2025 and a number of other documents including a chronology of legal and personal matters running to three pages, a series of emails concerning the administrative history of the matter including reference to a community correction order that was made in relation to other offending, which you completed in 2024. That correspondence was Exhibit 2. Exhibit 3 was a letter dated 16 January 2025 from the Alfred Hospital concerning your son born in November 2021 and the regular therapy sessions that have been made available to you and your partner concerning his mental health care.
14. Next is a letter dated 27 March 2024, again from the Alfred Hospital regarding your and your partner's attendance there. Then a report dated 13 March 2024 from Mr Jeffrey Cummins, psychologist, to which I have made reference - Exhibit 5, and a certificate from an organisation called Kick-Start concerning your successful completion of a community-based program addressing substance abuse.
15. It seems, from the history I have read in Mr Cummins' report, that you were abusing methamphetamine at the time of this offending conduct and that you had been abstinent from use of that drug since 2022.
16. I was provided with a letter dated 18 February 2025 from the Sandringham Hospital concerning the multi-disciplinary assessment of your son - Exhibit 7. Exhibit 8 is a letter from the same hospital signed by a consultant paediatrician indicating that following assessment it is evident that your son has severe impairment in his communication and social skills, development and associated repetitive restrictive interests, behaviour and play. The letter goes on:

"His developmental differences are consistent with a diagnosis of Autism. Based on his current level of functioning he requires very substantial support (level 3 support)."

"[His] behaviour can be quite challenging. He has a restrictive diet and there are also sleep difficulties."

1. It was noted in the letter that your son has NDIS funding for allied health support.
2. Exhibit 9 is correspondence between the representative of your solicitor and the NDIS provider concerning the provision of NDIS support for your son.
3. Exhibit 10 is the NDIS revised plan for him, and Exhibit 11 is a letter dated 6 March 2025 confirming that he attends for speech pathology sessions on an ongoing basis, intended to continue on a fortnightly basis, and a reference to the fact that those sessions had been attended consistently by both parents, that is you and your partner, who is your son's mother.
4. All of those exhibits are relevant to various aspects of the submissions that are made on your behalf. It is accepted that your offending was serious, albeit of relatively short duration.
5. Your personal circumstances are set out there. You were brought up in the Philippines. Both of your parents are deceased. You have siblings residing in the Philippines. You married your first wife in 1993 when you were about 18 years of age. You and your first wife had four children together, all of whom are now adults. You assisted them to come to Australia.
6. You attended school in the Philippines and after school completed a welding course and then became a teacher of welding for six years in the Philippines. You then worked as a mechanic for 10 years in Taiwan and Japan and eventually came to Australia in search of further work opportunities, arriving in 2011 as a result of sponsorship from your then employer for whom you worked as a welder for three and a half years.
7. Whilst working there you sponsored your then wife and your four children to come to Australia. You received permanent residency in Australia automatically upon your arrival. It is said that in or about 2015 or 2016 you learned of your then wife's apparent infidelity and you left Australia to return to the Philippines where you met a lady with whom you had an intimate relationship for about 12 months. You then returned to Victoria where you undertook fruit picking work and worked in a vegetable store in Shepparton. You also had other employment.
8. You claim that it was a result of the allegations against your then wife in 2015/2016 of cheating on you that caused you to commence methamphetamine use. That was apparently readily available in the Philippines. When you returned to Australia you ceased using methamphetamine as a result of the increased cost but started using again following a job loss due to Covid-19 in 2020.
9. At the time of this offending you were using methamphetamine on a regular basis. You ceased using in 2022 and have not used methamphetamine since that time.
10. Although you have no formal diagnosis of anxiety or depression, you have on at least two occasions attempted to take your own life.
11. It was submitted that Mr Cummins' report provides a basis for concluding that you are suffering from complex PTSD. I am not convinced of that. Even if it were true, it provides no excuse for this offending. Reliance is placed on the proposition in Mr Cummins' report that your mental health would deteriorate further if you were incarcerated. Statements of that kind frequently find their way into psychologists' reports. It seems to me that it is not terribly helpful because it is hard to believe that anybody who was sentenced to a term of imprisonment would be likely to avoid some deterioration in their mental health as a result of serving that term of imprisonment. Statements along those lines fall well short of establishing the relevance of the principle arising under the Verdins principles concerning the serious risk of significant harm to mental health.
12. Your counsel indicated that you have no current physical health issues which would prevent you from completing community work hours.
13. Since 2020 you commenced dating your current partner, and as has been discussed this morning, she is currently on a Bridging visa A, seeking a protection visa which was initially refused and is now under review at the Administrative Appeals Tribunal. Today I was informed that a hearing is likely to take place in the next three months.
14. For reasons that I discussed on the plea hearing, the outcome of that is obviously up in the air and I cannot pre-empt what is going to happen. But if orders are made which change the circumstances to a point where other intervention is necessary, then remedies can be considered at that time. I have rejected the application to adjourn this matter or defer sentence under the possibility that something relevant may turn out from that hearing or that it would necessarily be finalised in three months' time.
15. Your son was born to you and your current partner in November 2021, shortly after this offending occurred. Her status as a resident in Australia is of course up in the air, and at the moment she has not been able to obtain a Malaysian passport for your son because apparently he was born in Australia and had been granted Australian citizenship as a result of you being a permanent resident of Australia.
16. There is no doubt that the difficulties of managing your son and the pressure that that is going to bring to bear on your partner, together with her uncertain migration status, the uncertain potential citizenship status of your son and his capacity to accompany her to Malaysia, will all weigh heavily upon you during your period of incarceration. I give considerable weight to the extra burden that that will place upon you in serving your sentence.
17. The question of whether the threshold is reached where I can properly take into account family hardship on its own in the reduction of sentence is something which I have not made a decision upon. It does not seem to me clear that a sound basis exists for concluding that this is truly an exceptional circumstance, as things stand at present, because your partner's status in Australia is yet to be determined. As for the Administrative Appeals Tribunal, I would imagine that they would have consideration to the impact upon your partner and upon your son's welfare if she were forced to leave Australia with or without her child whilst you were serving your sentence.
18. If it became necessary, urgent application could be made to the Court of Appeal to reconsider the sentence that will have been imposed in light of fresh facts and circumstances that might shed further light on those issues.
19. The extent to which a sentence of imprisonment, albeit requiring you to serve slightly less than 12 months' imprisonment, may have upon your status as a permanent resident of Australia is not something that I can predict, nor does it seem to me to be of significant relevance. To the extent that nevertheless it may weigh upon you during your period of incarceration, I take into account that uncertainty, as well as of course the uncertainty as to your partner's migration status and the consequences of her being forced to return to Malaysia may have in the future.
20. I take into account the fact that you had no prior criminal history in relation to these matters and that although there have been matters subsequent you have been offence-free since August of 2022.
21. You are entitled to credit for your pleas of guilty, and I take into account the period of delay which has been the subject of some debate this morning. Whatever the reasons for the delay, it is relevant. The matter has been hanging over your head for some considerable time in the knowledge that there was a risk, if not an inevitability, that you would have to serve a period of incarceration as a result of your offending conduct. That you may have contributed to that delay is of small significance only, but although court processes can be delayed unduly, I see no evidence of you seeking to accelerate the process. Therefore, I do not see any added mitigation from the calendar of events that has been provided to me to give you further credit beyond that which already arises from the period of delay.
22. Ordinarily, sentences for this sort of offending - attempted armed robbery, putting a totally innocent person in fear with weapons and threat of harm, which I have no doubt were taken seriously by the victim at the time - demand a term of imprisonment in order to fulfil the sentencing objects of just punishment, denunciation, and general deterrence in particular, notwithstanding the need to promote your rehabilitation to the extent that I reasonably can. General deterrence needs to be given the full measure in cases such as this and in my judgment demands a term of imprisonment that has the capacity to deter others.
23. Notwithstanding that, the concession by the prosecution is that a combination sentence, that is, a combination of a term of imprisonment of less than 12 months' imprisonment coupled with a community correction order, is available to me as a sentencing option.
24. Your counsel has urged me to give you time served in view of the family circumstances. That would, in my judgment, fall well short of what is required to fulfil the other sentencing considerations.
25. I will do my best to give full value to all of those factors. I sentence you as follows:
26. On Charge 1, you are convicted and sentenced to imprisonment for 12 months.
27. On Charge 2, you are convicted and sentenced to imprisonment for 10 months.
28. For the related summary offence of failing to answer bail, you are convicted and sentenced to imprisonment for one month.
29. All of those sentences will run concurrently, making a total effective sentence of imprisonment for 12 months.
30. I declare two days' pre-sentence detention as time to be reckoned as served on the sentences that I have imposed.
31. I further order that you be the subject of a community correction order, subject to your consent, for a period of 18 months, which will commence at the conclusion of the sentence of imprisonment that I have imposed and will require you to perform 150 hours of community work, 50 hours of which can be fulfilled by engaging in an equivalent number of hours of rehabilitation programs, which will require you to undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager of Community Corrections.
32. You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.
33. In addition, you must be under the supervision of a Community Corrections officer for the period of 18 months during which the order is in force.
34. There are a number of other conditions that attach to community correction orders. I am going to read those to you now, so please listen carefully because at the conclusion of my reading the conditions I am going to ask you whether you consent to be placed on an order and whether you accept that you must comply with the terms of the order.
35. The conditions that apply in addition to those that I have already read out to you apply to all community correction orders. They are as follows:
    • you must not commit another offence for which you could be imprisoned during the time that the order is in force;

• you must comply with any obligation or requirement prescribed by sentencing regulations, which provide that you must not attend supervision appointments drug- affected and things of that nature;
  • you must report to and receive visits from the Secretary of the Department of Justice or his or her delegate;
  • you must report to the Community Corrections centre within two clear working days of the order commencing, which will be upon the completion of your term of imprisonment - when you report you will be required to attend the Melbourne Community Correctional Services at 50 Franklin Street, Melbourne, Victoria 3000;
  • you must let a Community Corrections officer know within two clear working days of you changing your address or job;
  • you must not leave Victoria without first getting permission to do so from the Secretary of the Department of Justice or his or her delegate; and
  • you must obey all lawful instructions from and directions of the Secretary of the Department of Justice or his or her delegate.

36. If you fail to comply with the terms of the order that I have read out to you, you may be brought back to this court and a sentence of up to three months may be imposed for breaching the terms of the order and the court would have power to re-sentence you on the three offences to which you have pleaded guilty. That may involve further periods of imprisonment.
37. If you commit another offence punishable by imprisonment during the period of the order, you will be in breach of the order and subject to punishment for the offences that put you in breach, as well as for the offences that I have passed sentence upon you today.

38. If you fail to comply with the order requiring you to perform unpaid community work, the Secretary of the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work under the Sentencing Act.
39. Ms Stanley, do you want to go and ensure that your client has understood the terms of the order.
40. MS STANLEY: Yes, if I could have a moment, Your Honour.
41. HIS HONOUR: Yes, sure. We'll give you a draft so you've got it before you. I'll give you the one that I've got here.
42. MS STANLEY: Thank you, Your Honour.
43. HIS HONOUR: Just go through it with him and signal if you're happy with it and we'll give you a copy that he can sign.
44. MS STANLEY: Thank you, Your Honour.
45. HIS HONOUR: Perhaps he can sign that one, can he? He has to do it through an interpreter. I'd rather his counsel had the opportunity to do that.
46. MS STANLEY: Your Honour, thank you for that time, I am satisfied that my client understands the conditions proposed.
47. HIS HONOUR: And is he willing to comply with the terms of the order ‑ ‑ ‑ ?
48. MS STANLEY: He is willing to comply with those conditions, Your Honour.
49. HIS HONOUR: All right, well we'll give you a clean copy ‑ ‑ ‑
50. MS STANLEY: Thank you, Your Honour.
51. HIS HONOUR: And then if he could sign it and you can perhaps supervise and ensure that he knows where to sign. And then once he signs, I'll sign it, and then it'll be in place.
52. But for your pleas of guilty I would have sentenced you to imprisonment for three years and six months with a non-parole period of two years and four months.
53. Mr Custody Officer, if you wouldn't mind just keeping him in court for a few minutes whilst my associate provides a copy of the order.
54. Yes, thank you.