DPP v Oshla [2025] VCC 1417

Mr Nicolopoulos picked it up and at one point held it behind his back. Paragraph 15 of the Opening sets out in just a handful of lines what took place then, with others coming to provide assistance. One of the others was a passerby, Shannon O'Rourke. There is more detail in each of the relevant statements as to what unfolded at the scene and why. You were held until the police arrived. As I say, there was what I thought was a regrettable focus on this phase, as though there is much mitigation to be had from what befell you at the scene. There really is not. The agreed summary provides only the general setting. In so far as Mr De Witt sought to derive some mileage from what took place at the scene, he conceded it could not be sensible for me not to have regard to the relevant portion of the statements of Mr Stanvi (p114) , Mr Nicolopoulos (pp 125-6),

Mr O'Rourke (p132) and Ms McKenzie (p120). These are things I would not have had any regard to or even be mentioning, but for this argument pressed on your behalf. 14. The adult relatives of these children went to the scene not knowing what to expect, acting on the report of the two children. This was something that arose completely out of the blue that afternoon. From the statements, it was evident that there were periods where there was some brief aggression or non-compliance by you at the scene of the civilian arrest. There are descriptions of your lunging or pushing. Even one account of spitting. There are descriptions of the knife being seen and how it came to be seen and your attitude to the loss of it and your desire to recover it. The common theme is of you presenting as something of a handful and

Mr O'Rourke, he was a complete stranger, stepping in to assist, even handing his phone to Mr Stanvi to ring Triple 0. 15. The fact is these people were acting in the moment against a complete stranger who had committed a serious offence. Mr O'Rourke's assistance was plainly needed, as we can see from the footage. Even the portion that Mr De Witt focused on still shows you were struggling and not complying or signalling that you would comply. No-one there knew anything about you or what you might do to get away. The couple of short swings by

Mr O'Rourke were not greatly, if at all, out of order. I do not regard them as an assault in any fashion at all. To describe them as your counsel does as 'repeatedly striking you with such ferocity' is a completely overblown description of what we see on the footage. This was a bit of a non-event as far as I am concerned and had a prominence on the plea that it should not have had. 16. The better view of it is having committed a serious crime, you were very swiftly apprehended, firstly by a couple of pretty burly civilians using some physical force and then by the police, leading in to a night in custody for you. Your first. That this all up unpleasant experience was one that may play a role in deterring you in the future. That is as far as it goes, as far as I am concerned. 17. Police arrived at 3:15pm and arrested you and the search disclosed the small amount of cannabis that is the subject of Charge 2. The knife was seized. We can see a photograph of it at p190 of the depositions. It is a sizable, nasty looking weapon. 18. You were interviewed by the police and were not particularly helpful. You made either no comment responses, as was your right, or played a straight bat. You agreed that you had a knife in your pocket for protection. I can find no admissions made by you as to committing either a theft, robbery or armed robbery of the phone or in any way producing or displaying the knife. No account of how you came into possession of another person's property. No account at all of being affected by alcohol in any significant fashion. It is in no way a matter of aggravation that you chose to exercise your rights or selectively answered as you did in the police interview. It is just there is no mitigation to be had from your interview with the police, a fact that was conceded by your counsel who said that the police interview disclosed no remorse on your part. 19. You spent the night in custody and were bailed the next morning and have remained on bail. It follows that there is no declarable pre-sentence detention. Frankly, my task would be a far easier one if you had actually remained in custody and had a sizeable amount of pre-sentence detention to call upon. But you do not. 20. Attached to the agreed summary is a chronology of the matter before the court. The matter settled at a very early stage. 21. So much then for my brief summary of the agreed summary in this matter 22. As I have said, I will sentence pursuant to the more detailed agreed summary and those other matters flagged already in these reasons.

1. There is no impact statement from your immediate victim or his cousin. It is obvious that this was frightening offending. Your immediate victim, Luka, was just 13 years of age at the time. He was a boy. You were a good deal older and larger. Your victim and his cousin described how they felt at the time. Beyond that immediate impact and fear, in the absence of an impact statement, it is impossible for me to determine that there has been any long term or significant impact arising here. I am entirely confident that Luka will not forget this crime in a hurry. How could he?

1. Mr De Witt conducted the plea in mitigation on your behalf. I was critical of that one aspect of the plea in the running dealing with extra-curial punishment. But one thing was plain enough to me; your legal team could not be faulted for their level of preparation. It was very plain that Mr De Witt and your solicitor had done a good deal of work preparing the plea.
2. As a result, as often is the position when preparation is done, Mr De Witt was able to conduct a very detailed and comprehensive plea on your behalf. He relied upon an excellent outline of written submissions dated

5 September 2025. 3. He relied upon a report from a forensic psychologist, Ms Mynard, as well as a letter of apology from you and a letter from your girlfriend,

Ms Opanyaka. There was the footage which was played as well as a letter from YSAS. Since the plea was conducted there was an update from YSAS, which speaks of your engagement. Today, I was provided with an updated letter from YSAS (added to Exhibit 5) and a letter from your mother as well, who is present in court today, that is Exhibit 6. 4. I was provided with much detail as to your background. There was a comprehensive account in the report of Ms Mynard, as well as in the written outline. There were some supplementary oral submissions as well. Also some coverage in the court ordered reports. I will not repeat all that detail about your background now or later. The fact is I was more than adequately informed as to your personal background, and by that, I mean things such as where you were born, the makeup of your family unit, your early years, the immigration history, your educational, work, drug use, sporting, relationship and mental health history. 5. Mr De Witt made some submissions to the court as to the level of objective gravity of this offending, arguing that the armed robbery fell at a low level. He made some submissions as to the relevant sentencing purposes in play and also as to your prospects of rehabilitation, which he submitted were excellent. 6. In the thorough plea conducted on your behalf, he relied principally on the following matters in mitigation: * Your early guilty plea; * The presence of some remorse; * Your youth and the absence of any criminal history; * The application of the fifth and sixth limbs from the case of Verdins[1]. * The extra curial punishment arising from the way you were handled at the scene by Mr O'Rourke. 7. Mr De Witt argued that a stand-alone CCO could achieve all the purposes of sentencing in this case. That you ought not spend a day in custody, either adult or youth justice. Failing that, consideration could be given to a combination type order, or as he made plain a short time ago today, more likely, to detention in a youth justice facility given the concerns held in relation to exposing you to the influences in adult prison. He argued strongly that confinement was not warranted here, given the combination of matters in mitigation here, the major one is your youth and the absence of any past criminal history.

1. Mr Kominakis, the prosecutor, prepared some written submissions marked as Exhibit B. He made some oral submissions as well. The Crown took issue with the application of the sixth limb from Verdins, as well as the submission made as to extra curial punishment arising in this case. They took issue with your counsel's characterisation of the offending falling at a low level. The Crown rated it as falling at a higher level, somewhere at mid-range. That was owing to, amongst other things, the age and vulnerability of the victim, the offence occurring in a public place in broad daylight and with the use of a disguise and the conscious and deliberate steps taken to remove the iCloud account and to disable location services. There were, the Crown argued, things indicative of some planning or deliberation. They told me about an outstanding matter, that is a petrol drive-away occurring in mid-June this year and listed in October at the Broadmeadows Magistrates Court. This was a matter your own legal team was completely unaware of and likewise Ms Mynard. The allegation is that you were complicit in that theft of some petrol. I must put that matter aside as it has not yet been dealt with but it made just a little bit uncomfortable some of the submissions placed before me as to your good performance whilst on bail.
2. The Crown referred me to a handful of other sentencing decisions. I read them, and as is so often the case, they were only of marginal value. No case was on all fours. The Crown argued that the only disposition open to the Court in this case was one involving some form of confinement. They argued it would be open to impose a combination type sentence, with a prison sentence to be followed by release onto a CCO or alternatively, given your age, a straight period of detention in a Youth Justice facility. That the matter was too serious to be met by a stand-alone CCO without any time in custody.
3. I will come back later in my reasons to consider the various submissions made by each of the parties.

1. I will turn firstly though to your background. I will do that quite briefly, as I have no reason not to accept the submissions and the material placed before me as to your personal and family background. I see no need to repeat all of that detail as it really is not in dispute and I will act on it.
2. By way of short summary then, that is all it is, you were born in Egypt where your parents, or at least your mother, had settled to escape the civil war in South Sudan. You parents separated before you were born and you had no meaningful contact with your father during your childhood. That gap in your life has persisted since you were about 8 years of age, with your father living in Canada. You did and do have a loving stable relationship with your mother. You came to Australia in 2007 when 3 years old and lived in Sydney before moving to Melbourne in 2010. You are an Australian citizen. I asked specifically about that to ensure there were no issues in terms of possible visa cancellation and risk of deportation. Those things do not exist here.
3. You have a number of siblings. This is referred to in the materials
4. It was a loving family unit in Melbourne as well, but of pretty limited financial means and no privilege. No Bugmy submissions were made in this case but I do of course take into account your background as far as I am able to. You currently live with your mother and 10 year old brother in a rental in Clyde North. Your mother works in childcare. I am told none of your family has been involved in the criminal justice system.
5. You were educated to the end of Year 12. You were and still are a talented basketballer and had a sporting scholarship up to a college in the ACT. I was informed you had represented Australia at junior level. It was a challenge living away from your family. Prior to moving to Canberra, you had some association with the 'Bounce Back' program, playing a role as a mentor. Since finishing school, you have struggled to secure employment. You have also struggled with a string of tragic deaths amongst your peer group or associates, something spoken of in the written submissions,

Ms Mynard's report and also in the letter of your mother. 6. Cannabis and alcohol have been problematic. To a lesser extent cocaine. I was told that you have ceased cannabis use and reduced your intake of alcohol. I see in the CCO assessment report and the Youth Justice Centre report some reference to more recent cannabis use, this despite a specific bail condition requiring abstinence. The extent to which alcohol had any true role to play in this offending is very difficult for me to determine. You told Ms Mynard you had not used cannabis but had drunk a fair bit of wine, some two litres over two to three days. That may well have been true but what was your state on the day? There was a bottle of merlot kicking around in your belongings, whether empty or not, I cannot determine, as no one could tell me. You may well have had some alcohol on board. You probably did. You may have been disinhibited but if that were so, it would not be mitigatory and would not really explain this serious offence that you chose to commit. Whatever might be said of your state, you said nothing of it in the interview, and the police saw no problem in interviewing you, so they thought you were in a fit state. It was a rational interview and you gave details of some of your movements that day. Nor was the offending suggestive of some profoundly affected soul. You were taking very logical steps to rob this child, covering your face, showing a glimpse of the knife, disabling location services and asking him to sign out of the iCloud etc. 7. As I have said, you are living with your mother and 10 year old brother, taking him to and from school. You have returned to basketball and other than the appearance in October, there is nothing else outstanding. You have formed a relationship with a young woman who has written a reference. She is seemingly a pro-social influence from what I know of her.

1. I will turn now to some of the other matters raised on the plea, the first being your guilty plea.
2. It was a plea made at a very early, though not the very earliest of stages. I recognise there were some other charges which ultimately did not proceed and that the matter resolved on the basis it did. A decision had been taken to list the matter for a contested committal. The Crown opening sets out some of the chronology with a filing hearing and then three committal case conferences, at the last of which in March of this year, the decision was made to list the matter for a two-day contested committal with a number of witnesses required to attend, including the two children. Up to that point, there had been an earlier plea offer to robbery, but the aspect of armed robbery was plainly still in dispute. So too some of the other matters which ultimately did not proceed. The day before the committal which was listed on 24 June, for the first time, you made an offer to the armed robbery and the matter resolved. It is perhaps a shame the offer was not made earlier still. The children and other witnesses up until the resolution of the matter were expecting to be called. However, as it settled, happily no witnesses were required to attend on 24 June and you were committed to this Court on that day.
3. So I will treat it as a very early and highly valuable plea.
4. You have taken this responsibility for your crimes by pleading guilty at this very early stage.
5. As a result of your guilty plea, the time, cost and the effort of a contested committal hearing in the Magistrates Court, or a trial in this court, has all been avoided. All the witnesses have been spared the experience of actually giving evidence in either court. That is important. Two of them were child witnesses.
6. So you have in these ways facilitated the course of justice and you must be rewarded for doing so. I take these matters into account in mitigation. They are significant matters in mitigation

1. Let me turn then to the issue of remorse. Mr De Witt acknowledged there was no remorse on display in the interview with the police. He recognised there were some problems in the way Ms Mynard dealt with the issue, with her expressing an opinion as to remorse and yet giving no insight at all into the discussions that led to the formation of that opinion, and very little coverage of the crime you committed and any discussions with you as to why you chose to offend.
2. I do have your letter of apology and the letter from your girlfriend. I also have the letter from your mother where there is reference to your regret for the offending. I have also have your comments in the Court ordered assessments and they are of value. I also have your very early guilty plea. A guilty plea is usually, though not always, indicative of some remorse.
3. I am prepared to find that you do actually have some remorse for the armed robbery, and I take that into account in your favour.
4. I turn then to the submissions made as to the application of the principles from the case of Verdins.

1. Your counsel relied upon the report of Ms Mynard. That report provided some decent coverage of your background and it was relied upon in that way. It mentioned the things needed for your ongoing rehabilitation, including recommendations for further assessments and treatment. Mr De Witt also relied on the opinion of Ms Mynard as enlivening the application of the 5th and 6th limbs from that case you heard discussed of Verdins. The Crown challenged the application of the 6th limb saying the evidence fell short of the mark in that regard. I asked your counsel what actual conditions were relied upon to enliven Verdins. There was virtually no diagnosed condition, merely suspicions of conditions, or symptoms of conditions arising from screening tools or inventories, all of which required further investigation. So there were issues with grief and bereavement, the possibility of ADHD and symptoms of depression, anxiety and stress. See the diagnostic impressions set out at p9.
2. I do not act on Ms Mynard's opinion of any reduction in your culpability arising from any of these symptoms. Nor is it clear to me at all that alcohol was such a strong driver for the offending. Ms Mynard needed to reflect on the nature of the offence. What you were doing and why rather than just accepting some account of intoxication as though that was the answer. The obviously calculated steps you were taking on the day to avoid apprehension and to render the phone your own. Wearing a disguise, flashing the knife rather than boldly producing it for all to see, disabling location services and getting the victim to sign out of the iCloud. But she does not seem to consider these matters nor the absence of any objective evidence that you were actually significantly intoxicated. Her report is virtually silent as to the discussions she had with you, if any, about the offending. In fact the youth justice assessment report sheds far more light on the offending where you spoke of aspects of anger driving your conduct. You were in a fit state to be interviewed by the police and gave a detailed account of those movements you were content to disclose, and no comment answers in areas you preferred not to elaborate upon, as was your right. In any event, whatever she, Ms Mynard, says on the score of reduced capacity to exercise judgement, you were exercising it, and Mr De Witt was explicit in not relying on the first limb of Verdins. He made it abundantly clear he was only relying on the 5th and 6th limbs and explicitly stated that the first limb was not made out here. He was undoubtedly correct.
3. In terms of the 5th and 6th limbs, he relied predominantly upon paragraphs 74 and 75. I have reviewed all the materials. I believe it is a pretty marginal thing but I am prepared to accept that the 5th limb has some modest application here. You are a young man and have these symptoms and these vulnerabilities and that is what is important, not what tag or diagnostic label might be attached to them. As to the 6th limb, that was based on the opinion that 'prolonged imprisonment', whatever that means to Ms Mynard, would increase your risk of deterioration. She spoke of the likelihood of your condition deteriorating if imprisoned. That scarcely rises to the level of the 6th limb, which requires me to be satisfied on balance that there is a serious risk that prison (or confinement) will have a significantly adverse impact upon your mental health. Ms Mynard seemingly does not even address the availability of detention in a youth justice facility as an option, as opposed to adult imprisonment, and I can have no idea what she factors into her opinion when speaking of the notion of 'prolonged' imprisonment. Despite these reservations, I will make some very modest allowance for the 6th limb.
4. I was not greatly impressed by this report from Ms Mynard and by the failure of the author to consider the nature of the crime you committed and the matters spelling out your rational thought processes being exercised. I cannot be critical of her for not knowing of the existence of the matter said to have arisen whilst on bail. Your own legal teams learnt of that only when the prosecutor raised it in Court, but how might the laying of that charge and the allegation arising have impacted on her risk assessment? I can have no idea. Some risk assessment inventories or tools factor in matters not yet proven. Her risk assessment is made without any knowledge of the outstanding matter and seemingly was just a matter of her opinion and not in any way derived from any rigorous tool or inventory. See paragraph 80. However, for what it is worth, I reach a similar view to hers as to your level of risk, if not a more favourable one. She says a low to moderate risk. I would actually settle on low. So it follows I do not actually accept the suggestion in the CCO report of your having a high risk of reoffending. That was derived from an assessment tool or instrument that was employed. My sense, having sat as a judge for over 15 years, is that your risk is actually lower.
5. I take into account the report in the manner contemplated by your counsel.

1. I will discuss your future prospects of rehabilitation in one moment but in a way, they are very much connected up with the related topic of your relative youth, which I turn to now. You are a youthful first offender and that is a matter of great importance to my sentencing task. I apply the principles in relation to the sentencing of youthful offenders to my task. You had only recently turned 20 at the time of the offence and you are still only 20. There is no criminal history at all. None. Your offending, though undoubtedly serious, is completely out of character.
2. Young people are not fully mature and nor are their brains. Young people are less able or likely to think through the consequences of their actions and more likely to act unwisely. When dealing with a youthful offender, far greater emphasis is placed on rehabilitation. Young people are more likely to be amenable to rehabilitation, especially a young first offender such as you. It can easily be forgotten, it very often is but should not be, that the community needs no protection at all from someone who is rehabilitated. Young people are generally speaking, viewed by the law as being less culpable, and the benchmark for sending them to prison or confining them is an understandably high one. We, as judges, know that young offenders are more likely to be corrupted by the influences which exist in a prison setting or even those which can exist in a youth justice facility. It can in fact be quite counter-productive to incarcerate a youthful offender in the name of community protection. Sometimes, of course, confinement is just unavoidable. The fact is, the more serious the crime, the less weight is available to give to youth and to rehabilitation. More weight is given to matters such as punishment, deterrence and community protection. Nothing is set in stone. One always looks at the nature of the case, the age of the offender, and the various other matters that are raised in mitigation.
3. Youth would still be important, even if you had a relevant criminal history. You have none, and the subsequent matter is not something I can have any regard to at all. You are a youthful first offender and that is very important to my task for all the reasons spelt out in the case law, including the cases of Mills[2] and Azzopardi[3] _t_o which I was referred.

1. I turn then to your prospects of rehabilitation. I will be relatively brief. You have not put a foot wrong in the past. This offending represents a very significant departure. It is completely out of character. Unfortunately though, you have jumped in right at the 'deep end', committing an armed robbery such as this, a crime punishable by a 25 year maximum term of imprisonment. You have pleaded guilty at an early stage and do have some remorse. Earlier still you were swiftly dealt with at the scene, detained by the civilians, then arrested and you spent the night in the cells. With the exception of the allegation of having a peripheral role in the petrol drive away, there is nothing else outstanding. I mentioned already that I cannot have regard to that matter. The fact is, even if I had been told that you were pleading guilty to it or even if you were found guilty of it, it would not impact upon my findings as to your future prospects. It would represent offending at just a totally different level and the sort of thing which might arise by virtue of foolishness or misguided loyalty, as you were not even alleged to be the beneficiary. Anyway, it has not been dealt with and I simply put it aside altogether.
2. I have then a youthful first offender, one who has accepted responsibility for the offending by pleading guilty at a very early stage. The process of being arrested, held in the cells and then facing this day in court would all serve to deter you in the future. So too the sentence imposed by the court.
3. You are plainly not inherently criminal, though you have committed a serious crime. Alcohol really does not explain your decision to offend. Perhaps you were disinhibited to a degree, but even if you were under the influence, that is not mitigatory. There were aspects of your conduct that make it clear to me you were not blind drunk. I am impressed by your girlfriend, even though the relationship is a recent one. She, as with many other things in your life, is prosocial. You live at home with your mother, you look after your 10 year old brother and are back playing sport. You hope to pursue a career in basketball, but also have some hopes of going onto tertiary study. You need to continue to abstain from illicit drug use and obviously limit your alcohol use. You also need employment. You have expressed some motivation to engage with YSAS. Indeed since the plea, that has taken shape and you are making the right noises, as the updated letter makes clear. I was actually quite impressed by the way you engaged in the Court ordered assessments. It spoke of a level of maturity and insight.
4. Your counsel, for the reasons spelt out in paragraph 56 and 57 (a)-(h) argues you have excellent prospects of rehabilitation and a low risk of reoffending. I am prepared to accept that you have very favourable prospects into the future and quite a low risk of offending in this manner ever again. I would rate those prospects higher still if you had actually engaged with services for a longer period prior to court. You have not. It is however a positive that you are engaged with YSAS in the way that you are.

1. I have mentioned already my response to the submissions made as to extra curial punishment in this case. The matters raised in paragraph 38 to 42 of the submissions. I do accept that it did involve, as the heading suggested, the 'immediate consequences of your offending'. Here, you were swiftly detained by the civilians at the scene and dealt with in the manner described in the statements and observable in the portion of footage marked as Exhibit 4. It was not pleasant, but there was no reason for it to be pleasant. You were an armed offender . You were then arrested by the police and detained overnight. The immediate consequences were swift, unpleasant enough and exposed you to a regime you had never been exposed to. I do not ignore any of that. As to extra curial punishment arising from the acts of the civilians and Mr O'Rourke in particular, there is nothing much in that claim at all. I will not repeat all that I have said on the topic. There are some circumstances in which injury or loss to the offender can take its place as one of the many matters to be taken into account by the court in the development of an appropriate sentencing synthesis. Injury or loss to an offender may for instance assume real significance in the assessment of the need for just punishment, the weight to be given to expressions of remorse or to general and specific deterrence in the circumstances of the particular matter.
2. For the injury or loss to be mitigatory, it needs to be established on balance that the loss or injury would either add to the burden of the imprisonment and/or constitute a form of extra curial punishment. It is no answer to say that an offender has brought on the loss by their own offending. If that were so, an offender critically injured and left paraplegic in, for instance, a siege situation, would have no mitigation arising from their own lifelong, sad health predicament and that is simply not the law. But what was the loss or injury here? None really that I can see. The people who took steps to effect an arrest were worried civilians or people helping them. The passerby, Mr O'Rourke, as a good Samaritan, got involved as he needed to, as you were very evidently not complying and very evidently were not wishing to await the arrival of the police. You were struggling throughout. What did any of them know about you or what you would do if you were released or if you were able to break free? They had seen or were aware of one knife. Might you have had another? How could they know? They were acting on reports that you had committed armed robbery. You had. Quite simply, Mr O'Rourke went to assist

Mr Nicolopoulos, because Mr Nicolopoulos needed assistance. He was, as were others, ringing Triple 0. None of these people were trained members of the police force, or had handcuffs to restrain you.

Mr O'Rourke describes you spitting on him. I am not sentencing you for any such act. However the moment Mr De Witt started to raise the unreasonableness of Mr O'Rourke actions, it was necessary to consider material I otherwise would not have had regard to. I mentioned those various statements earlier in my reasons. 3. What is plain from the footage is the steps you were still taking to shrug/throw off these two large men. We can see the extent of your struggle. That was still the position when Mr O'Rourke swung a couple of pretty modest, short blows. Thereafter there was still some struggling and when you were pulled over onto your back, Mr Nicolopoulos was holding you from behind and Mr O'Rourke was intent on holding down your hands at the front. They were waiting for the police. I do not actually accept that the pretty minor blows delivered to discourage your struggles were excessive in the setting he, Mr O'Rourke, a civilian, was facing. Even if they were, so what? What was the injury or loss? I asked your counsel and he informed me there was no injury at all and no need for any treatment. I believe in fact there is some reference to a cut lip in the depositional materials. See p131. What was there other than the cut lip and the transient discomfort at the scene, you having committed an armed robbery? I am not satisfied on the balance of probabilities that these things amount to any meaningful extra curial punishment at all. There is nothing in the point at all and it represented an unnecessary and unprofitable distraction on the plea. I should make clear however, that in going to the relevant depositional material I have identified, as I had to in considering this submission, that course has not left you in any way in a worse position by way of sentence. It is just that the mitigatory matter is not made good. 4. I do however accept that the error of your ways was brought home to you very swiftly indeed and in a manner you are not likely to forget and that would play some role in deterring you into the future.

1. Let me turn to the offending. The agreed summary describes your offending and I do not see any point in restating all the agreed facts. The document does that.
2. I must pay regard to the nature and gravity of the two offences before the court. I will say nothing more as to the drug matter. It is a matter of no seriousness at all.
3. Your counsel accepts that armed robbery is an inherently serious offence. It is.
4. As usually happens, each party went to the offence in some detail, the prosecutor pointing out what was present, your counsel focussing more on the absence of features of aggravation. See paragraphs 36 and 37. He accepted that the age of the victim was a matter which elevated the gravity of the offence. It does. Your counsel spoke of the short-lived nature of the offence. That it was not in company. That it was spontaneous and unsophisticated, with no injuries occasioned. That there was the absence of actual physical violence or steps consistent with an intention to resort to physical violence. On that score, well, you said what you said and you said what you said whilst holding the knife, so it could be seen. Plainly you were reenforcing your demand and that secured compliance, as it was designed to. The distinction between a more open brandishing of the weapon and the use you made of it, is a matter of very little weight in my task. Certainly, it would be more serious if you had applied it to the person of the victim, obviously. At least the property was recovered and so there has ultimately been no loss. It would be more serious had that not been so, as the child would have lost his phone as part of the impact. That was more a matter of luck than anything else, and the recovery of the property was not germane to an assessment of the objective factors of seriousness in play at the time of the carrying out of the offence.
5. The fact is the various matters of aggravation absent are very commonly absent from soft target armed robberies. Most soft target armed robberies are brief. Most soft-target armed robberies have very limited planning. Many of them are committed without any endeavour to disguise the offender's appearance. Very many occur without any actual force or injury and are committed by an offender acting alone.
6. The absence of some features of aggravation is really not the best way for me to assess the seriousness of your offending.
7. Each party tried to place the offence of armed robbery somewhere on a spectrum of offence seriousness. I have said repeatedly over the years that this is always a problematic exercise. Your counsel argued it was a low level example of the offence. The Crown said it fell at mid-range.
8. I believe there is always difficulty trying to apply an adjective to describe where an offence falls. Words such as 'mid-' or 'low-' or 'high-range', mean different things to different people. It is actually far better to look at the actual conduct. At what you did rather than things you might have done but did not do.
9. This armed robbery does not fall at the lowest level at all. It was a soft target offence, committed upon a child, who was in company with another child, the two of them going about their business in broad daylight, in a public street. Plainly there was only some very limited planning. You were wearing the ski mask and must have seen and selected your victim and decided to rob him. You had the weapon. It was a nasty knife indeed. Your demand was sufficiently direct and strong to cause the child to worry for his own safety. Your victim was out on a street. He was completely physically exposed to you in a way that many service station attendants or retail assistants would not be, when there might be a level of protection offered by a counter or security screens or wires.
10. Plainly, it was not an intricately planned offence. Plainly, it was quite opportunistic. It was not an offence falling at the lowest level. It was however, a mile removed from the most serious examples of armed robbery. I find that it falls below the mid-range.

1. I have to consider a number of purposes of sentencing. Rehabilitation is one of those purposes and a very important matter in my sentencing task given your age and lack of history before the courts. Your prospects are very good. Of course, I am anxious as to playing a role in potentially disturbing those prospects, but rehabilitation is only one of the purposes of sentencing. This sentence is not all about you and what is best for you. I cannot just focus on that to the exclusion of many other matters.
2. I have to give appropriate weight to the various other purposes of sentencing as well, softened, as the punitive purposes no doubt are by reason of your youth.
3. I am required to punish you justly and proportionately.
4. I must also denounce your conduct. Of course that is of importance.
5. I must pay regard to community protection. If you were older and had relevant criminal history and less favourable prospects, it would be given far greater emphasis in this sentencing task. It can be significantly moderated here. Specific deterrence can also be significantly moderated for the same reasons.
6. I have reflected on the extent to which the community might not actually be protected by a custodial order being imposed, one which might interrupt or dent your rehabilitation. Regrettably, sometimes that is just unavoidable.
7. Deterrence is still a significant matter in my task. I must try to deter you, as well as others, from offending in this way in the future.
8. I have said already that specific deterrence, which relates to the need to deter you, can be significantly moderated here.
9. General deterrence is however in a different position. It is a relatively important purpose of sentencing in this case. It relates to the need to deter future offenders.
10. Armed robbery is a prevalent enough offence. It is often enough committed by young men.
11. The courts must pass sentences which will cause those considering committing such a crime as yours to reconsider and to reflect on their position. We want future likeminded offenders to actually pause for thought and to turn away from the commission of the offence. We want them to be deterred from offending.
12. I have to pay regard to the impact of the crimes and the maximum penalties for each of the offences before me. I have said already, armed robbery has a 25 year maximum prison term.
13. I have to pay regard to current sentencing practices. That is not a single controlling factor at all. I have looked at the Sentencing Advisory Council on-line statistics for the crime of armed robbery.
14. Sentencing statistics are of very limited, if any, use. I have looked at some other sentences including those to which I was referred. The fact remains that other sentences imposed upon other offenders for other crimes provide very little assistance to the Court. They are not 'precedents' or 'authorities' to be followed, unless they are somehow able to be distinguished. They are simply examples of other sentences imposed on other offenders for other crimes. There is no such thing as one correct sentence.
15. I have looked at the Judicial College of Victoria case summaries.
16. I have dealt with a large number of soft target armed robberies in the course of my 15 and a half years as a judge. I am well familiar with current sentencing practice.
17. What I have to do is sentence you for your crimes. That is not a mathematical or statistical task. It is not a task where the outcome is somehow dictated by what has happened in other cases or from consideration of the average outcomes or the trends which might be disclosed in the statistical material available to the court.
18. I have to sentence you for your crimes, taking into account all the matters in aggravation and mitigation in this case, the sorts of matters I have been mentioning in the course of my lengthy reasons to this point. Statistics are just numbers and and they are silent on those matters, and it is those matters which lead to the actual sentences being imposed by a court.
19. I have engaged in a last look at my sentence to ensure it is commensurate with your actual criminality.
20. A judge must not confine any person unless the purposes for which sentence is imposed cannot be achieved by a lesser disposition, one not involving confinement. That is the law.
21. Sending any person to prison or a Youth Justice Centre is genuinely a matter of last resort for any court. Sending a youthful first offender to prison, one who has some family support, as you obviously do, and one who has favourable prospects of rehabilitation, which you have, is never a step taken lightly or without a sense of regret. Sometimes however, a court is left with no choice.
22. This sort of case is a hard one for any judge, involving as it does a youthful first offender who has committed a serious crime. I do not pretend that this is an easy sentencing task. It really is not.
23. Mr De Witt referred me to the case of Boulton[4].
24. The Court of Appeal spoke in that decision of the dramatic change in the sentencing landscape brought about by the availability of, what was then, the new disposition of a community corrections order, either such an order on its own or an order in combination with a prison term at that stage of up to two years. That has changed since, of course.
25. That decision of Boulton counselled judges to reconsider and perhaps even to revisit conventional wisdom as to when it is appropriate and necessary to actually gaol or confine an individual. The Court of Appeal stated that the sentencing landscape had changed dramatically by reason of that (as it was then) new disposition. The Court of Appeal indicated that sometimes it will be open to place a person on such an order even for offending that previously might have been met with a substantial (or medium) term of imprisonment.
26. The precondition though to such an outcome was, if it was appropriate in the particular circumstances of the particular case.
27. It is obvious enough that not every offender for every crime can be admitted to such an order. There are some crimes where the purposes of sentencing simply cannot be given adequate weight by use of such an order.
28. So in this case, as in so many cases coming before the court, there are some tensions that exist as between the various purposes of sentencing. That is actually why sentencing is not easy. People may think it is easy but they are wrong. In fact the only people who say it is easy are those who either have never done it or who have long since ceased doing it.
29. You are a youthful first offender with very favourable prospects of rehabilitation.
30. As the sentencing judge, I am understandably anxious about interrupting your forward progress. I am anxious about the corrupting influences which I know exist in prison, or even in a Youth Justice facility. I am concerned as to how you will cope in such a place and how you might emerge from such an experience, concerned as to whether the trajectory of your rehabilitation may be impeded, if not lost.
31. Undoubtedly though, the armed robbery was a serious offence. There is a need to adequately reflect denunciation, punishment and general deterrence. Community protection and specific deterrence can be moderated to a sizeable degree for the reasons I have announced earlier.
32. Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement, unless the court concludes that the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached.
33. As a result then, a judge in my position needs to pay careful attention to the purposes for which sentence is to be imposed in the instant case. I have to consider whether they can actually be achieved by a stand-alone community correction order.
34. I have had you assessed for your suitability for a community corrections order as well as for detention in a Youth Justice Centre. Those reports have been provided to me. I made plain at the time that my calling for the CCO assessment should not imply to you that there was a positive outcome lying ahead for you. What I wanted to do, was to read all of the submissions and the materials placed before me, view the reports I had called for and consider what I could do in the sound exercise of my sentencing discretion. Prison or detention in a Youth Justic Centre were each possible outcomes. So too some consideration of a stand-alone CCO or one in combination with some adult prison, or even for that matter, the imposition of prison with a head sentence and a non-parole period.
35. What then is the answer in this case? Is it really open to the court not to confine you here at all, as your counsel submits to the Court? The Court of Appeal suggested in the case of Boulton that we as judges ask the following question:

'Given that a community corrections order could be imposed for a period of years with conditions attached, which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?' [5]

1. What it comes down to is this: Can a suitably conditioned community corrections order achieve all the needs of sentencing in this case? If it can, then as a matter of law, I must not confine you.
2. Prison will not assist you. Prison will not make you a better person. Nor for that matter would detention in a Youth Justice Centre. But confinement very seldom does either of those things, and I have sent plenty of people to these places, even enough youthful first offenders. First time offenders sometimes must be sent to prison or a Youth Justice Centre, such is the gravity of the crimes committed by them, and the need to adequately reflect the various purposes of sentencing.
3. As I have said, it is not just all about you and what is best for you. If it was, sentencing would be far easier. There are many purposes of sentencing and rehabilitation is but one. General deterrence is another. Punishment is yet another.
4. There is something of a public clamour for punishment in this State currently. Presently, a great clamour for punishment in relation to youth crime. The suggested, and if I might say, simplistic solution, is for the courts to lock up more and more people for longer and longer periods of time.
5. You are a youthful first offender with no criminal history at all. You are not a member of some gang. You are not a person with entrenched criminal disposition. In fact, I have assessed your future prospects as being very favourable indeed. You are heading in the right direction. I seriously wonder how those prospects might be affected, if in the name of punishment, retribution, deterrence and/or community protection, you, as a 20 year old are now sent to prison or to a YJC. Who or what might emerge? How will confining you actually protect the community? Might it in fact do quite the opposite? These are some of the tensions at play in this sort of sentencing exercise and it really is not easy.
6. Many years back a person who knew a fair bit about sentencing said the following;

'I think it should be remembered that in the long run, the community is better served and better protected if a young offender is rehabilitated and led away from a life of crime, than if after a short or long gaol sentence, imposed to satisfy a public clamour for retribution, he is taught the ways of the criminal'

1. This was not some starry eyed academic or criminologist, speaking at some new age conference or workshop or symposium. These were the words of Sir John Young CJ, the Chief Justice of this State, in dismissing an Attorney-General's appeal against the inadequacy of the sentences imposed on two young robbers. See The Attorney General v Chmil and Zanoni.[6] So a judgment delivered by the Court of Criminal Appeal as it was then called in August of 1977. Almost 50 years ago. That court allowing a robber to remain at large in the community on a probation order. Justice McInerney, who was another member of that Bench, agreed adding:

'I entirely agree with the Chief Justice's views as to the benefit to the community if a young offender, particularly an offender who has, as in one case here, only one conviction, can be rehabilitated and turned away from a life of crime.'

1. What the Court of Criminal Appeal was doing was highlighting the importance of youth in the sentencing exercise. Nothing has changed. There is nothing new about attaching great significance to youth in these courts. We, as judges, have done it for many decades and for good reason. The community needs no protection from a rehabilitated young offender.
2. Your counsel argues for a community corrections order and says that such an outcome is available without you serving any term of imprisonment. The Director argues that you must be imprisoned or, at the very least, detained in a YJC. That confinement is required here.
3. I do not ignore any of the submissions placed before me by either party, but of course I am not bound to accept them. After all I have to exercise my sentencing discretion. I do not ignore the Director's submission. Having perused the materials, and having considered the matters since the plea, I just do not believe it is correct in the particular circumstances of this case.
4. Ultimately then, I believe that I can place you onto a community corrections order in the sound exercise of my sentencing discretion. I believe I can do so without imposing an immediate prison term upon you. I have reached the view therefore that confinement is not warranted here.
5. I need to explain the order that I intend to impose as I can only place you on a community corrections order if you consent. I do not want anyone ever to be placed on one of these orders without understanding firstly the nature of the order, what is expected of them, and the potential ramifications should they be silly enough to breach the order.
6. This is what I am going to do. In terms of the drug matter, I will come back to that. I am going to deal with you by way of an adjourned undertaking in relation to the drug matter, a good behaviour bond essentially. The armed robbery of course is very different. In relation to the armed robbery what I intend to do is convict you of that charge, and place you on a three and a half year community corrections order. I am not imposing a prison term as well. It is a standalone community corrections order.
7. You are a newcomer to these courts. You have never had this sort of thing explained to you, even though there has been some explanation no doubt in the course of the assessment. You will be required to be on this order until March of 2029. It is three and a half years. You will be required to attend the Cranbourne Community Corrections Centre at the address on the document, you will get a copy of this, within two clear working days.
8. A community corrections order has a set of mandatory terms. Everyone who gets one has these same mandatory terms. The first of those is that you must not commit another offence for which you could be imprisoned during the time the order is in force. You stay out of trouble. That has not been a trouble for you for your whole life. It should not be a trouble over the next three and a half years.
9. If you commit any offence for which you could be imprisoned, you will breach this order. Virtually every offence these days is punishable by a term of imprisonment. A petrol drive away, even if it was some small amount of money, it is a charge of theft, and it is punishable by a term of imprisonment. That is something occurring from this point onwards. Whatever occurs in terms of that past matter will not breach this order obviously enough.
10. To illustrate it even more directly, I am not suggesting you are going to do this, but if you went into a milk bar and you stole a Freddo Frog that might be worth 50 cents or something like that, I do not think there is any magistrate in their right mind who would lock up someone for stealing a 50 cent chocolate, but that charge of theft is punishable by a term of imprisonment. You would breach the order.
11. You have got to stay out of trouble, full stop. That is the first of the terms. You have got to report and receive visits from the Corrections office. You have got to report within two clear working days. You have got to let them know within two clear working days of any change of address or job. You must not leave Victoria without first getting permission to do so, and you must obey all their lawful instructions. So they are the mandatory terms, breach any of those, you breach this order.
12. Then there are the tailored conditions that I tailor to achieve the various purposes of sentencing. The first of those is unmistakably punitive, and you are going to have to do some unpaid work. You must perform 350 hours of unpaid community work over the period of this order. You will be under the supervision of a community corrections officer for the period of this order. Then there are some treatment and rehabilitation conditions. You must undergo assessment and treatment, including testing, for drug abuse or dependency, as directed by the Regional Manager, and for alcohol abuse or dependency as directed by the Regional Manager.
13. You also must undergo any mental health assessment and treatment, and that is a longer condition, but you will see it on the order. So they are the conditions that I am going to attach to this order, unpaid work, supervision, and those treatment and rehabilitation conditions. I am not going to make it a special condition that you continue with YSAS. You obviously should and I suspect what will happen is the Corrections office will give you a direction to do that anyway.
14. What directions they give under this order I will not know. You will leave my company today and you will head out the door to your right out into the community, and hopefully I will not see you again. I do not know what work they will be telling you to do, just do it. You have never had one of these orders. Let me tell you a decent proportion of people who get these orders breach them, but a decent proportion of the people who get these orders have been committing offences throughout their lives. They have got significant issues with addiction and mental health issues, they have no support in their home life, no future that beckons.
15. You are in a very different position. Form a decent relationship with your Corrections officer. That is the starting point. If you are having some issues, report them to them. If you are running into issues in terms of drug use or anything like that, just disclose them to them. They are not going to rush back to court and bring it back to my attention, that would be the last thing they would do. They would give you directions to attend for treatment.
16. What are they going to direct you to do? I do not know. What is the work going to be? I do not know. What I do know is whatever directions they give you, comply. It is amazing how many people breach these orders, people who are sitting in the dock, as you are, who have had counsel urge upon the court this particular course, who no doubt, as I am sure you will be, will be greatly relieved to actually head home tonight. You did not know where you were heading tonight. You might have been heading to a prison. You might have been heading to youth justice. You probably thought you were.
17. You are not, so if at any stage your attitude to this order starts to wane, just think about how you felt last night, or how you felt coming to court today, because you will put yourself back in that position, in fact in a worse position when you think about it. Get the work done and do not leave it until late in the order. I have a mixed feeling in imposing the unpaid work, and that is because I have expressed concerns about the aspect of the corrupting influences that abound in prisons and in youth justice facilities.
18. Unpaid work will probably bring you into contact with some other people who have been before the courts. It is a risk I have to take because that is a significant punitive component of this order.
19. In terms of the directions about testing for drug abuse or alcohol abuse or mental health, again I cannot predict what they will tell you to do, just do what they ask. If at any stage you are having an issue in terms of turning up for an attendance on the order, do not do what other people have done in the past and put their head in the sand. Get on the phone, contact the Corrections officer, and no doubt they will reschedule. They might ask for some sort of supportive evidence. Corrections will treat you fairly and appropriately if you are honest with them.
20. If you keep using drugs you will breach this order. You had a condition of bail that you not use any drug of dependence. You have reduced your use but you have still been using. To use drugs, you have got to possess them, and possession of drugs typically is an offence punishable by a term of imprisonment. It would breach the order.
21. If you breach the order you are brought back to this court in front of me. Do not put yourself in that position. If you breach the order the most commonly used option is to cancel the order. That leads then to the need for the court to resentence. You have been given one chance today and it is a very closely run thing.
22. If I was confining you today, I would have confined you in a youth justice centre, but if you breach this order, and there is a resentencing exercise that will be off the table.
23. In terms of the drug matter, given the small quantity involved, on that charge without conviction, I will adjourn that matter for a period for 12 months on the condition that you be of good behaviour and appear if required. That is essentially a good behaviour bond. I have explained the matter in detail, Mr De Witt, are you satisfied I will be getting informed consent from your client?
24. MR DE WITT: I am.
25. HIS HONOUR: Do you need to speak to him at all? I will give you the orders and make sure they mirror my stated intentions, and if that be so you can go down and speak to him if needs be. Have those signed please.

1. Disposal orders are sought in this case. There is no opposition to the making of those orders. I am satisfied the criteria for the making of that order is made out under s78 of the Confiscation Act and I direct the forfeiture to the State of the property referred to in the schedule, the knife and the drugs are forfeited to the State, and they will be handled and dealt with in the matter contemplated by that signed order which have pronounced in an abbreviated form.
2. Stand up, Mr Oshla. Do you consent to entry into this community corrections order?
3. OFFENDER: Yes.
4. HIS HONOUR: You have signed the order saying that you understand the effect and the conditions of this order, and you consent to it being made, is that so?
5. OFFENDER: Yes.
6. HIS HONOUR: In terms of the drug matter, the possession of cannabis charge, you understand the effect and the conditions of that order? It is a good behaviour bond essentially for the next 12 months. Do you consent to that adjourned undertaking or good behaviour bond?
7. OFFENDER: Yes.

1. HIS HONOUR: I have told you that I have taken into account your guilty plea. I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these two offences following a jury trial, I would have convicted and sentenced you to a period of three and a half years' detention in a Youth Justice Centre. Thank you.

[1] R v Verdins [2007] VSCA 102 ('Verdins')

[2] R v Mills (1998) 4 VR 235 ('Mills')

[3] Azzopardi v The Queen [2011] VSCA 372 ('Azzopardi')

[4] Boulton & Ors v The Queen [2014] VSCA 342

[6] The Attorney General v Laszlo Joseph Chmil and Ross Anthony Zanoni (Unreported, 1 August 1977, Vic, CCA)