DPP v Spokes [2025] VCC 1368

six months. Aggravated carjacking is a category 1 offence. I must impose a non-parole period of three years' imprisonment unless an exception applies. You have admitted a relevant criminal record.

1. The circumstances of your offending are set out in the Summary of Prosecution Opening dated 5 May 2025, which forms part of these Reasons for Sentence. You had been on bail for very serious offending in the lead-up to this offending. You had absconded during the last of several deferrals of sentence in this court, and your bail had been revoked prior to your eventual remand in October and sentence in November last year. I refer to the sentencing remarks of

Judge Pillay - the medium neutral citation is [2024] VCC 1829 - in relation to the offending for which you were subject to a deferral of sentence at the time of your commission of the offences that are before me. The context of your offending was subject to deferral, as set out at paragraphs 31 to 36 of those reasons for sentence, and I adopt them herein. Those paragraphs read as follows, under a heading 'Procedural history and subsequent offending':

'Your matter first came before this Court for plea on 20 November 2023. It was at that time that you pled guilty to the offences in question. I deferred sentence and bailed you to enable you to undertake the Uniting Care Gippsland Youth Residential Rehabilitation Program ("GYRRP") for four months. Amongst your bail conditions were that you not leave GYRRP unless accompanied by a staff member of their nominee, and that you follow all reasonable directions by the program managers. GYRRP were to link you with a drug and alcohol program, a treating doctor and mental health support.

On 3 January 2024 you absconded from GYRRP, thereby breaching your bail conditions. You remained in the community and could not be located by police until 22 January 2024, when you were remanded in custody.

On 29 February 2024, I again bailed you to GYRRP under the same conditions to complete your rehabilitation.

On 2 April 2024, the Office of Public Prosecutions contacted the Court seeking that your matter be urgently listed for an Application to Revoke Bail due to your failure to comply with directions given by program staff. In particular, you were said to have: not attended group sessions; not remained within view of staff when visiting public spaces away from the GYRRP facility; and not ceased a relationship with a co-client within the program when requested to do so by staff. By the next day, you had again absconded from the GYRRP facility. On 4 April 2024, a warrant was issued for your arrest. You were not arrested until 23 April 2024.

When your matter came before me again on 1 July 2024, I bailed you to the Galiamble Men's Alcohol and Drug Rehabilitation Centre, a residential rehabilitation centre for Aboriginal and Torres Strait Islander men. Your bail conditions included that you participate in the rehabilitation program for 16 weeks and that you not leave the premises unless for an authorised purpose.

Around 26 August 2024 the OPP made application to revoke bail on the grounds that you had left Galiamble, breaching your bail conditions. A warrant was issued. You remained at large on 13 September 2024 when your further plea was listed for hearing. On about 17 October 2024 the warrant was executed. You have been on remand since. By reason of the deferral of the sentence the matter was then set down for further plea on 7 November 2024 with a view to sentencing by 20 November 2024 to comply with s83A of the Sentencing Act'.

1. So that is the extract from Judge Pillay's sentence that sets up the context of your offending before me. In brief terms, on 10 October, at around 11 am, your victim parked her vehicle at the Dandenong Plaza Shopping Centre. At around 1 pm, you entered the carpark and sat on a railing outside Kmart, smoking a cigarette and holding a plastic bag.
2. Your victim emerged a couple of minutes after your arrival and returned to her vehicle. You followed her to her vehicle. As she began to reverse her vehicle, you opened the driver's side door and told her to get out. Your victim saw that you had a hammer in your hand. You grabbed her wrist and pulled her out of the vehicle. You got in the driver's seat and reversed out of the carpark. You then drove toward to the McCrae Street carpark exit at a fast speed despite several pedestrians in the vicinity. You then drove the wrong way along a one-way path through the carpark at a fast rate of speed, endangering pedestrians and drivers and passengers in other vehicles.
3. You were arrested on 16 October and interviewed in the presence of an independent third person due to concerns for your mental health. You stated that you did not remember anything about the carjacking as you were on a lot of drugs at the time. You were remanded on this matter, but there is no

pre-sentence detection available for this matter due to the sentence you are undergoing.

1. Aggravated carjacking is objectively a very serious offence, as reflected in the maximum penalty and the Category 1 status of the offence. Your commission of the offence has several serious aspects to it. You followed a vulnerable victim. You physically extracted her from the vehicle. The aggravated element of the offence is made out by your having a hammer in your possession at the time of the commission of the offence. You did not use the weapon in the sense of wielding it or brandishing it, however. You were subject to a deferral of sentence at the time of the commission of the offence and in breach of bail.

1. You were 21 at the time of your offending, and you are now 22. You are a proud Gunai/Kurnai man. You were born in Melbourne, the youngest of 10 half-siblings born of different fathers. Your Aboriginality comes through your father's line. Your father was only 15 when you were born. Your mother was significantly older. You did not meet your father properly until you were 10. Two siblings - one of which was described in one of the reports as a foster

sibling - have passed, one from an overdose and one from a motorbike accident. You had limited contact with your father, who spent periods of time in prison. You lived with your mother in Pakenham, but your home life was unstable and deprived due to your mother's heroin use and your exposure to the negative influences and drug associates that accompanied the drug lifestyle that your mother was immersed in. Neglect, and absence of nurture, and profound disadvantage were the hallmarks of your childhood. Your mother battled significant mental health issues alongside heroin addiction. You went into the care of the Department at age nine. You had a close bond with your mother, however, and frequently left foster care to be with your mother. Sadly your mother passed away due to heroin overdose when you were 11. This occurred on an occasion where you left care to check on her and you discovered her. Following your mother's passing, you were to be returned into State care, but you insisted apparently on living with your sister, who has provided a more stable environment. 2. You attended primary school until Grade 4. School was an ordeal for you. You could not learn to read or write. The materials before me, including historic reports, identify the serious learning difficulties with literacy you had at primary school. These challenges, together with what was diagnosed at that time as ADHD, and no doubt also the effects of a trauma-affected home life, led to behavioural issues as well. You are illiterate, and this fact has posed a huge obstacle in your life, and in particular your ability to access and maintain services and to comply with Community Corrections Orders. As I understand your education history, you have no formal education post Grade 4. 3. At the age of 12, you commenced drinking alcohol to the point of intoxication, which has continued over the years. You also commenced smoking at that time. You started smoking cannabis around the age of 14. Initially you smoked socially, but progressed to daily use of around 3 grams per day from the age of 15 or 16. At the age of 15, you started smoking ice or methylamphetamine, up to 1 gram or more per day, and GHB at the age of 16. You also abused the prescription medication Xanax from the age of 17 every one to two weeks. At the time of the offending before me, you were using 7 mils of GHB daily. I understand that at one point in time you ceased all drug use when your then partner became pregnant with your daughter in early to mid-2021. You resumed your abuse of Xanax after your daughter was born and your use of GHB and ice in mid-2022. You now have two children with Ms Moore and, I was told, have video link access to them on a fortnightly basis. You spoke of these meetings with affection during your sentencing conversation. Your only employment occurred between the ages of 15 and 16 when you worked with your sister's ex-partner in bricklaying for six months.

1. At the time of your Koori Court sentencing conversation on 2 June, there was cogent material before me to suggest that you had an intellectual disability. Documents filed on your behalf included a formal statement of intellectual disability pursuant to the Disability Act 2006, signed by an authorised delegate of the Department of Health and Human Services dated 8 October 2019; a disability overview report dated 11 September 2024; a justice plan dated

11 September 2024; a Care Squared report dated 4 June 2024 prepared for NDIS; a detailed 16-page report from clinical neuropsychologist

Dr Yasmin Baliz; a psychological report from Dr Jessica Griffith dated

28 January 2021; and a report from Mr Bernard Healey, a psychologist. All of these documents supported a finding that you have had a lifelong intellectual disability. Legal submissions filed on your behalf at that time understandably emphasised what appeared to be your established intellectual disability. The prosecution's submissions at that time conceded that you had an intellectual disability for the very sound reason that the materials established that fact. You have also been assessed as fitting the criteria for alcohol use disorder, drug use disorder, generalised anxiety disorder, persistent depression, and ADHD. 2. Given the prominence of intellectual disability in the list of documents, and some confusion as to the role intellectual disability may have played in your offending, particularly where Mr Healey's report was concerned, the matter was adjourned for a further plea in order to provide some clarity on the situation. I ordered a Forensicare pre-sentence psychological report and received a report from

Dr Kiara Bird around 4 August. An arbias report was sought on your behalf by your solicitor, and I received the report from Dr Matt Treeby sometime after

1. Dr Treeby is a consultant clinical neuropsychologist at the

Children's Court Clinic. He is also a consultant clinical neuropsychologist with arbias. Dr Treeby notes you first came to the attention of child protection services when you were two days old. He sets out a detailed history outlining your exposure to trauma in childhood, as I have summarised. Dr Treeby also sets out a detailed history as to your school experiences and your literacy level, all of which I accept. He concludes with confidence that you do not have a mild intellectual disability. I accept this conclusion. He does assess you as operating at a borderline to low average level of cognitive functioning overall. He summarises at paragraph 61:

'Mr Spokes does have some long-standing cognitive limitations, particularly in the language domain, and his overall level of intellectual function is worse than 95 per cent of his similar-aged peers. It follows that Mr Spokes is likely to experience a range of functional day-to-day difficulties across life domains relative to most other young people his age when in the community. Mr Spokes has a poor capacity to engage in consequential thinking (extremely low to borderline). He has high sensation-seeking personality traits, and he has impulsive behavioural tendencies. He has a poor capacity to regulate his behaviour in a socially appropriate manner, and he is emotionally and behaviourally immature relative to his age'.

1. I accept Dr Treeby's conclusions at paragraph 64 to 66, which assist in understanding some of the functioning issues connected with your offending behaviours. I will read those:

'Mr Spokes' executive impairments will manifest in significant difficulties when in the community, and he may struggle to problem-solve and apply logical reasoning with confronted with various difficult situations. He becomes easily overwhelmed, and when his coping resources are exceeded, he tends to resort to maladaptive coping and problem-solving strategies, e.g. aggression or risk-taking behaviour. His impulsive behavioural tendencies will mean that he may act rashly without due consideration of the consequences. During times in which he is overwhelmed or substance-affected, his ability to control his emotions and behaviour would be even more impaired.

Mr Spokes impressed as behaviourally and emotionally immature relative to his age, and he seemingly has a limited capacity for other-oriented thinking. He met DSM-5 criteria for a diagnosis of conduct disorder during the developmental period, and it would seem Mr Spokes has gone on to maintain antisocial attitudes, beliefs and behavioural tendencies as a young adult. Mr Spokes's exposure to complex trauma, his early-onset polysubstance use and his gravitation towards antisocial peers likely had a negative impact on his personality, moral and psychosocial development during the formative years of adolescence.

Mr Spokes has limited verbal comprehension skills (borderline), and he has an impaired ability to process complex information. Due to the marked degree of concreteness in his language abilities, Mr Spokes is likely to encounter difficulties when he is required to effectively resolve conflict, negotiate, and communicate effectively with others. He struggles to think critically with respect to information presented to him, and this in some instances may render him susceptible to negative peer influence'.

1. Dr Treeby provides support for a conclusion that the Bugmy principle applies in a specific sense and that your complex PTSD is related to your traumatic childhood experience. At paragraph 68:

'Mr Spokes was subject to multiple adverse childhood experiences and cumulative harm during the developmental period. This trauma, along with his early-onset substance use, almost certainly compromised his social and emotional development and overall psychosocial trajectory. I agree with the diagnostic opinion of Dr Kiara Bird that Mr Spokes satisfies ICD-11 criteria for a diagnosis of complex post-traumatic stress disorder. I also agree with Dr Bird's opinion that Mr Spokes is at high risk of reoffending'.

1. Dr Bird's report provides a useful cross-sectional assessment of the historic records and assessments and your current presentation. Dr Bird elected not to undertake formal psychometric testing and provided an in-depth explanation as to why that was so at paragraph 28 of her report. Overall her assessment queries the accuracy and validity of the 2019 assessment in relation to intellectual disability. At paragraph 30, Dr Bird opines:
2. 'In my opinion, it is of paramount importance that Mr Spokes' current offending is considered within the context of his early experiences. Mr Spokes reported that he did not recall committing the offences though acknowledged he enjoyed the adrenaline rush associated with driving offences. Whilst he was embarrassed to acknowledge this, for someone who has so frequently sought to alter his emotional experience through drug use, engagement in such reckless behaviour could be understood within the context of offering the same outcome in terms of the pursuit of positive sensation or avoidance of negative sensation. In this way, the offending may be understood as part of a continuum of maladaptive means by which Mr Spokes has sought to avoid the reality of his circumstances. In particular, when these circumstances occurred, he was aware that he would likely receive an impending custodial sentence. Additionally, at the time of the offending, Mr Spokes reports having been under the influence of multiple substances. Whilst Mr Spokes's documented cognitive difficulties likely impact on his baseline ability to plan, problem-solve, make decisions and think about consequences, under such heavy levels of intoxication, any capabilities he did have in these areas are likely to have been highly diminished. I consider the offending is likely to have occurred impulsively, without thought or planning, and without consideration of potential consequences to himself or others.

1. In submissions filed on your behalf prior to the Koori Court plea hearing on

2 June, your solicitor Ms Greensill submitted that limbs 1, 3, 4 and 5 had application. The submission was based upon the report of Mr Healey and the findings expressed in the reasons for sentence of Judge Pillay. The prosecution challenges the application of Verdins principles in any respect based upon the materials, both in their thorough and very helpful written submission authored by Ms George and Mr Rattray and via Ms George's helpful oral submissions across the hearings. In further submissions filed on your behalf once all reports were to hand, your counsel on the further plea, Mr Hooper, abandoned reliance upon Verdins reasoning but maintained the relevance of your low functioning, complex PTSD, trauma background and early-onset drug use in assessing your moral culpability. In his written submissions of 2 August, he set out his argument as to the relevance of these intersecting factors at paragraphs 8 to 13. 2. The prosecution accept the relevance of Bugmy application in a general sense.[1] Based upon the opinions of Dr Treeby and Dr Bird, I found a connection between your early childhood experience, your functioning and your early gravitation toward drug use that enlivens Bugmy mitigation in the specific sense. The criminogenic factors which contributed to your offending have their roots in your childhood experiences that have shaped you and your responses into adulthood. The role of drug use in the offending is clear. Your moral culpability for drug vulnerability given your background and early exposure to drug use is negligible. I find mitigation applies in the DPP v Brooks and McKee sense.[2] As Judge Pillay found, I also conclude that profound childhood deprivations and your own intellectual limitations have an ongoing effect and inform the moral culpability of your offending.

1. You participated fully in the sentencing conversation with Uncle Trevor and Uncle Rod. Your sister Nicole was an important contributor in the sentencing conversation also, and she provided some insights into your childhood experience. You spoke about working in the canteen in custody and your goal to work with your sister's partner in bricklaying once you are released from custody. You spoke lovingly of your children. You expressed appropriate remorse for your offending. You indicated an interested in returning to Galiamble at some time in the future. You are entitled to mitigation for your participation in the sentencing conversation process, the shame and confrontation involved, and the remorse you expressed, which I find to be genuine. I have much greater insight into your functioning and your attitude to reform having listened to your engagement during the sentencing conversation.

1. You have been assessed as high risk of reoffending by Dr Bird and Dr Treeby. Your criminal history supports that finding, as do your failings during the period of deferral. Notwithstanding the risk you pose, you are still young, you are still maturing. As Dr Treeby observes, your frontal lobes are still developing. I refer to paragraph 72 of his report. He opines that your level of impulsivity and desire for sensation-seeking experiences may diminish to some extent over the coming years. You have the cognitive capacity to engage in vocational and recreational pursuits.

1. Your counsel Mr Hooper submitted that totality is an important sentencing factor. The sentence you are currently serving related to a series of offences occurring over a single day in September 2022. You were remanded in September that year. Your plea for those matters came on in November 2023. Sentence was deferred, and your bail, as set out above, to engage in residential rehabilitation. At the time of your sentence, in November 2024, you had served 571 days as pre-sentence detention, constituting the time on remand up until the deferral of sentence, the periods on remand due to revocation of bail over 2024, and the period of remand subsequent to your apprehension on this matter before me. You do not appear to have been given credit for some periods of Akoka time between November 2023 and late August 2024[3]. You were sentenced to a total effective sentence of four and a half years, with a

non-parole period of 35 months. You are approximately 29 months into that non-parole period. 2. Aggravated carjacking is a category 1 offence. Pursuant to s10AD of the Sentencing Act, this court must make an order imposing a sentence of imprisonment other than a combination sentence. Further, I must set a

non-parole period under s11 of at least three years unless a special reason exists. What that means in real terms is that a mandatory non-parole period from today's date would see you serving approximately five and a half years before becoming eligible for parole for the totality of offending which occurred on 13 September 2022 and 10 October 2024. That does not account for several months of Akoka time if you were entitled to it. This is an extraordinary consequence of the operation of s10AD if it were in fact the case. 3. The situation is compounded by the legitimate course this matter has taken through the system. You have been on remand for this matter since

mid-October 2024. You have no pre-sentence detection attributable due to this matter for reasons already stated. You pleaded guilty at the earliest opportunity. You exercised your cultural right to have your matter heard in the Koori Court, which occasions a slightly lengthier delay due to limited date availability. At the hearing in June, there was cogent documented evidence of intellectual disability. The defence reports relied upon were deficient in their approach to Verdins mitigation.[4] The prosecution fairly pointed these matters out in well-reasoned and balanced written and oral arguments. The matter was adjourned for further plea in order to receive a pre-sentence Forensicare report, which typically takes 12 weeks or more. Your representative also sought an arbias report in the interim. Two further adjournments were sought by your representatives in order to obtain this report and brief counsel for submissions. 4. In your representatives' first written submissions dated 29 May 2024, reliance was placed on special reasons being made out pursuant to s10A(c) and (e). There was a very reasonable expectation that, given the evidence at that time of intellectual disability, further material would buttress a special-reasons argument. In further submissions filed by Mr Hooper dated 2 August 2024, special reasons pursuant to s10A were abandoned, presumably due to the absence of a solid basis for intellectual disability and a causal nexus with functioning and the offending. Submissions were made in respect of totality. However, there was no mention of a three-year mandatory non-parole period in the written submissions. 5. I accepted that abandonment due to the new information that had come to light which undermined previous opinions as to intellectual disability. However, now having worked through the effect of the sentence you are undergoing and the lost opportunity for concurrency that has occurred while sentencing has delayed, I consider that I was too hasty in accepting the abandonment of the argument advanced pursuant to s10A(e). Factors in combination - including your low functioning, very significant Bugmy mitigation, your complex PTSD, ADHD, the connection between your early exposure to drug use and the offending, your youth, your Aboriginality and participation in the sentencing conversation, your plea of guilty and your remorse - amount to substantial and compelling reasons that justify not imposing the mandatory minimum. In making this assessment, I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in s5(1) of the Sentencing Act; I must give less weigh to your personal circumstances than to other matters, such as the nature and gravity of the offence; I must not have regard to an early guilty plea, prospects of rehabilitation, or parity with other sentences. 6. In determining whether there are substantial and compelling circumstances, I must have regard to the intention of Parliament that a sentence of imprisonment should ordinarily be made, and that a non-parole period of at least three years should ordinarily be fixed, unless the cumulative impact of the circumstances of the case would justify departure from such a sentence. The substantial and compelling circumstances I have set out are not exceptional and rare, however, in the sense that they are not out of the run of the mill. What tips the combination of factors into the exceptional and rare category in my assessment, having regard to the factors I must, are the effects of delay and totality that I have set out. Those circumstances also attract some mercy. However, as I have already foreshadowed, I am of the view that I do not need to find a s10A special reason in order to give full effect to totality/delay, to apply appropriate mercy and to do justice in your case. The operation of s14 of the

Sentencing Act 1991 provides the mechanism to impose a just sentence in all of your circumstances. I foreshadowed this position, and I have received written submissions, and I am grateful to the parties for those. 7. The construction that I foreshadowed in respect of the operation of s10A, s11 and s14 of Sentencing Act is challenged by the prosecution, and in the written submissions dated 17 September, Ms George sets out the basis of the alternative argument in relation to the construction of the relevant sections. In my view, on a plain reading of s10AD, the words are clear and unambiguous. Section 10AD provides that I must set a non-parole period in accordance with s11. I must set the mandatory non-parole period in accordance with s11. Given that I am imposing a sentence in circumstances where the non-parole period of the sentence you are undergoing has not yet expired, I must, however, set a new non-parole period in respect of all sentences, and I must set that pursuant to s14. 8. Sections 10AD and a similar section in the Act, 5(2H), have been observed by the appellate court in this jurisdiction to have draconian effect. By that I take it to mean that the sections are strict and are penal statutes occasioning what might be viewed as a harsh outcome in some circumstances. There is nothing in the wording of s10AD that establishes that a mandatory three-year

non-parole period must be set when imposing a new non-parole period pursuant to s14. 9. Ms George in her written submissions points out that s11A has been enacted for the fixing of a non-parole period for standard sentencing offences, and that section expressly states that the section applies to a court when fixing a

non-parole period under s14. The fact that standard sentences are explicitly brought within the ambit of s14 buttresses my view that a plain reading of the operations of ss10AD, 11, 11A and 14 make it clear that when imposing a new non-parole period the mandatory three-year non-parole period does not apply. Were it otherwise, s14 would not be silent on the matter, and a section such as s11A would specifically make reference to mandatory non-parole periods and how they have to be applied pursuant to s14. 10. I have had regard to your plea of guilty. I have had regard to the need to impose sentences that reflect the importance of general deterrence and denunciation. Specific deterrence is important in your case, as is the need to impose a sentence that considers protection of the public.

1. I sentence you as follows. Mr Spokes, on Charge 1, you are sentenced to

three years and three months' imprisonment. On Charge 2, you are sentenced to nine months' imprisonment. On the relevant summary offence, you are sentenced to three months' imprisonment. Four months of the sentence imposed on Charge 2 is to be served cumulatively on the sentence imposed on Charge 1. That makes a total effective sentence of three years and

seven months' imprisonment. That sentence is to be served concurrently with the sentence of imprisonment you are currently undergoing. I set a new

non-parole period of two years and three months from today's date. Pursuant to s6AAA, were it not for your pleas of guilty, I would have sentenced you to a total effective sentence of four and a half years' imprisonment, with a non-parole period of three years and three months. I make the following order against your licence. Pursuant to s89A I think it is of the - is it the Road Safety Act or the Crimes Act? 2. MS GEORGE: The Crimes Act, Your Honour. 3. HIS HONOUR: The Crimes Act - s89 of the Crimes Act, and your licence is cancelled and disqualified. You are disqualified from obtaining another for

three and a half years from today's date. Are there any other orders that were sought, Ms George? 4. MS GEORGE: No, Your Honour, nothing further. 5. HIS HONOUR: Thank you. All right. All right, Mr Spokes. Well, Mr Hooper will be able to explain to you the effect of that sentence. Unless there is anything else, we will adjourn the court. 6. MR HOOPER: Thank you, Your Honour. 7. MS GEORGE: As the court pleases.

[1] Bugmy v The Queen [2014] HCA 37.

[2] R v McKee [2003] VSCA 16.

[3] Akoka v The Queen [2017] VSCA 214.

[4] R v Verdins (2007) VR 16 296.