Farmer v The Queen [2020] VSCA 140

1 On 4 February 2019, the applicant, who was then aged 18, together with two co-offenders, committed an armed robbery at a petrol station in Deer Park. One of his co-offenders, Pairama Peka, was 18 years of age and the other, AB, was 16.[1] The armed robbery was serious. The offenders were wearing balaclavas and gloves. The applicant's co-offenders were armed with a large machete and a large kitchen knife. The applicant was not armed, but as the judge would find, was equally complicit.

2 The console operator was told to open the cash register and complied. AB remained next to him, continuously pointing the machete at him. The victim was then told to get away from the register and kneel on the floor. He complied. Peka took approximately $200 to $250 cash from the register. The victim was asked whether there were any safes at the back of the store, to which he replied 'no'. One of the offenders then said: 'let's go, we are done here'. At this time, the applicant stole several packets of cigarettes, placing them down his jumper. All three of the offenders then left the store.

3 The applicant and Peka were both arrested on 13 February 2019 at their joint residence in Albanvale.

4 When interviewed by police, Peka minimised his involvement, giving a false account, inventing an explanation that another person, named 'Browen', had instigated and taken the lead role in the offence. Peka described himself as having been a 'lookout', had received $20 and a pack of cigarettes for his role and had waited in an alleyway while the robbery took place.

5 When interviewed, the applicant initially denied any knowledge of the armed robbery. He disputed that he was depicted in CCTV footage. He was shown photographs of a Facebook message exchange between AB and an account in the name of 'Righteous Mushie'. AB asks the applicant to bring a 'baseball bat and machet' [machete] and 'beanies and 1 more pare of globes' [gloves]. AB asks the applicant: 'wanna hit it tonight'. The applicant, who is the holder of that Facebook account, denied that this exchange related to the organising of an armed robbery. When the applicant was informed that he was going to be charged with armed robbery, the applicant said: 'Why the fuck am I being charged? I wasn't there'. He was then placed in a holding cell.

6 A short time later, the applicant requested to be re-interviewed by police. During this interview, he admitted his involvement in the armed robbery and identified the co-offenders as AB and Peka. He indicated regret for the offending and said that he wished he had never done it. He said that the armed robbery was Peka's idea because he was 'desperate for money' and that the applicant had tried backing out but the others had taunted him.

7 On his plea of guilty, the applicant was sentenced to nine months detention in a Youth Justice Centre. It is from that order he sought leave to appeal. On the day of hearing, we granted leave to appeal on ground 1, allowed the appeal and resentenced the applicant to time served. These are our reasons for making that order.

9 The applicant lives at home with his mother, stepfather and three younger siblings. The applicant has a close relationship with his parents. He also has a close relationship with his grandparents, with whom he lived for a 12 month period.

10 The applicant suffers from alopecia. This had a very significant impact on him during his school years and he was the subject of bullying because of it. He left school midway through year 10.

11 In evidence before the judge, his mother explained that when his alopecia became advanced, the bullying started and the applicant was assaulted twice at school. She described alopecia as a 'massive dark hit' on his self-esteem and resulted in the applicant suffering from anxiety.

12 The applicant's mother said the first she knew about the offending was when the police arrived to execute a search warrant. She described the applicant's arrest as 'really, really traumatic' on the whole family.

13 In his report dated 29 November 2019 Mr Jeffrey Cummins, psychologist, observed that the applicant presented as 'relatively unassertive and psychosocially immature'. He concluded that the applicant suffers from a Generalised Anxiety Disorder (with depression) and Agoraphobia in relation to suffering from alopecia.

14 Mr Cummins noted the significant effect that alopecia has had on the applicant. The applicant told Mr Cummins that his first year of high school:

... was my worst year. I'd been diagnosed with alopecia when I was about four or five and at Melton High I just got picked on the whole time. I'd shave what hair remained on my head to make things look better. I got bashed twice at the school because of how I looked. I was put out of the school twice and the school did nothing to protect me and the school didn't care. Alopecia is still the biggest concern to me and that's why I'm so anxious and that's why I rarely leave the house and whenever I leave the house I wear a cap.

15 Mr Cummins noted that the applicant attended the interview wearing a cap and that it was obvious when the applicant agreed to remove his cap that he suffers from a severe case of alopecia.

Mr Cummins noted that the applicant: 'spoke in an apologetic and remorseful manner concerning his offending. He expressed victim empathy and spontaneously stated he knew the victim of the offending would have been petrified and intimidated.'

16 In Mr Cummins' concluded view, the applicant's symptoms, which were relevant to the offending, related to the applicant feeling embarrassed and inferior as a result of his alopecia. Mr Cummins reported that the applicant acknowledged that he was grateful to be befriended by anyone because he always felt so embarrassed about the alopecia. In Mr Cummins' view, the impact of the applicant's Generalised Anxiety Disorder and Agoraphobia adversely impacted on his perception, judgement and reasoning ability.

17 In Mr Cummins' opinion, imprisonment would adversely impact on the applicant's mental health, and he was at risk of being stood over in a prison environment.

18 The judge noted that the applicant had been on highly supervised bail for over a year.[2] He had two reports from the applicant's primary case manager, Ms Patricia Alexander, who also gave oral evidence on the plea. Ms Alexander had three decades of experience within the Youth Justice Centre. The judge noted that this was impressive evidence.[3] Ms Alexander was extremely positive in her reports and in her oral evidence on the plea.

19 Ms Alexander had complimented the applicant on the quality and depth of his engagement with Youth Services and considered that he was truly remorseful and would be vulnerable in custody. In her evidence on the plea, when asked how she thought the applicant would fare in a custodial environment, Ms Alexander said she thought he would be 'eaten alive', 'very vulnerable' and 'targeted' and that 'it would have a detrimental effect on his mental wellbeing.'

20 In her second supervised bail progress report, dated 26 February 2020, Ms Alexander wrote that the applicant had attended all 39 appointments with Youth Justice and had been punctual, cooperative, polite and had engaged readily and willingly. Ms Alexander described the applicant as 'a pleasant, polite, cooperative and personable young man who, despite his mental health challenges, has made positive inroads throughout the adjourned period.' She noted that he had demonstrated a 'strong and determined commitment to his Court obligations' and had 'accessed support services appropriately and reliably throughout the supervised bail period.' She noted that the applicant comes from a 'loving and supportive family and appears focused and motivated to continue to access support services as required.'

21 The judge concluded that the applicant had positive prospects of rehabilitation and that specific deterrence had less of a role to play in the sentencing process.[4]

22 Section 5 of the Sentencing Act 1991 (the 'Sentencing Act') relevantly provides:

(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless -

(a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or

(c) the offender proves on the balance of probabilities that -

(i) subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender's culpability; or

(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment;

...

(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).

...

(2HC) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court -

(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and

(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

(c) must not have regard to -

(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or

(ii) an early guilty plea; or

(iii) prospects of rehabilitation; or

(iv) parity with other sentences.

(2I) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to -

(a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and

(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.

...

(3) Subject to subsections (2G), (2GA) and (2H), a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

(4) Subject to subsections (2G), (2GA) and (2H), a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.

...

23 The applicant pleaded guilty to armed robbery in company. Because that is a category 2 offence,[5] s 5(2H) required the judge to make an order under div 2 of pt 3 (ie a custodial order) unless one of the circumstances set out in paragraphs (a) to (e) of s 5(2H) was established. The applicant relied on paragraph (a) that he had 'assisted' law enforcement authorities; and paragraph (e) that there were 'substantial and compelling circumstances' that were 'exceptional and rare' and that justified the judge not making a custodial order.

24 The judge concluded that neither paragraph was available to the applicant.

25 The judge accepted that the applicant had provided assistance to investigators but held that the assistance was not of a sufficient quality or extent to come within paragraph (a). The judge construed paragraph (a) as containing the following qualification:

The sentencer must, however, perform a qualitative assessment of the assistance or undertaking. Whilst the exception provided for in s 5(2H)(a) is not fettered as is, for example, the exception provided for in sub-s (e), as to which see s 5(2H)(I), the assessment of the assistance must of necessity take place having regard to the legislative framework in which it occurs, a framework which has seen the enactment of category 2 offences. This contextualises the assessment of the assistance.[6]

26 After reciting a submission from the prosecution that the assistance must be of such significance as to warrant a substantial discount on the sentence,[7] the judge went on:

In my view it is preferable not to place any gloss on the words of sub-s (a) and the qualitative assessment of the assistance ought take account of the legislative framework, nature and quality of the assistance, the circumstances of the person providing the assistance and any other relevant matters.[8]

27 Applying that qualification, the judge considered the nature of the assistance provided by the applicant and concluded that the exception did not apply.[9] He noted that the assistance was in the form of admissions to police but came after the applicant's co-offenders had implicated him in the commission of the armed robbery and this had been brought to the applicant's attention.[10] Those admissions, the judge observed, were not admissible against his co-offenders.[11] The judge recorded that there was no evidence as to what extent (if at all) the applicant's assistance had benefited investigators.[12] He concluded:

Allowing that to some extent your belated admissions, Mr Farmer, not admissible in the trial of any co-offender, had some unspecified impact on and affected a co-offender's decision to enter pleas of guilty; and that in addition your assistance made some unspecified positive contribution to the investigators' task, allowing them for the prospect that your assistance furthered the public interest in the investigation and prosecution of both yours and other criminal conduct, in my view your assistance is insufficient to remove you from the clutches of s 5(2H).

Having regard to all of the circumstances, in my view your assistance in the form of belated admissions made in a subsequent interview falls well short of what is required in the circumstances of your case to enable you to avail yourself of the exemption from a custodial sentence provided for in sub-s (a). I will, however, have regard to your assistance otherwise in my sentencing of you and I accept that it has a clear relevance to other matters that I must consider.[13]

28 The judge then turned to paragraph (e). In that respect, the applicant relied on a number of personal factors in order to establish substantial and compelling circumstances. They were summarised by the judge as follows:

It was in the context of your background and personal matters which I have recited that your counsel relied upon the following as establishing substantial and compelling circumstances proving exceptional and rare: your cooperation with authorities in participating in your subsequent interview; your positive progress whilst on bail supervised by Youth Justice, as well as your lack of previous convictions; that you suffer from alopecia and agoraphobia and that you will be particularly vulnerable whilst in custody; that your safety will be compromised, given the admissions which you made in your interview, including disclosing the identities of your co-offenders; the current COVID-19 pandemic, its impact on you personally, given your underlying fragility, and that custody will be more burdensome for you; and, finally, that you are described as a suggestible young man who is responsive to positive role models.[14]

29 The judge did not accept that these circumstances were substantial and compelling proving exceptional and rare so as to come within paragraph (e).[15] The judge referred to the decision of this Court in Director of Public Prosecutions v Hudgson,[16] in which the court said that the word 'compelling' connotes powerful circumstances of a kind wholly outside what might be described as 'run of the mill' factors, typically present in offending of the kind in that case, which was intentionally causing serious injury in circumstances of gross violence.[17]

30 Applying that test, the judge concluded that the circumstances were not wholly outside what might be described as 'run of the mill' factors typically present in offending of this kind, nor were these reasons rare or unforeseen.[18] Finally, the judge said:

Many of these reasons relate to your perceived personal fragility and vulnerability. To find that these factors were exceptional alone or in combination would in my view elevate them beyond their legitimate status as relevant mitigating factors but factors that are hardly exceptional.[19]

(a) the judge erred in not finding that there were substantial and compelling reasons that justified a non-custodial sentence; and

(b) the judge erred in finding that the assistance given by the applicant to law enforcement authorities in the investigation of the offence fell short of what was required by s 5(2H)(a) of the Sentencing Act.

32 The applicant says that for the purpose of establishing the existence of 'substantial and compelling circumstances' that were 'exceptional and rare' for the purpose of s 5(2H)(e), he could rely on the following factors:

(a) his youth and immaturity;

(b) his lack of criminal history;

(c) his poor mental health at the time of the offending

(d) his limited role in the offending;

(e) his remorse and co-operation with investigators;

(f) his accomplished rehabilitation and compliance with Youth Justice supervision;

(g) his special vulnerability in a custodial setting; and

(h) the impact of CoVID-19 on the service of custodial sentences generally.

33 The applicant submits that it was not open to the judge to conclude that the combination of factors affecting the applicant did not constitute 'substantial and compelling circumstances' of an 'exceptional and rare' nature which fall within paragraph (e).

34 In his written case, the applicant does not take issue with the proposition, which was common ground below, that the judge was required to make a qualitative assessment of the assistance given or to be given, having regard to the legislative context (that is, the enactment of a presumptive requirement that a custodial sentence be imposed for a category 2 offence, with limited exceptions to permit 'a reduced scope for the imposition of non-custodial sentences').[20]

35 The applicant submits, however, that he provided assistance of the relevant kind in his record of interview. The assistance was reflected in his account, which inculpated himself and Peka, and which he offered to provide as a written confessional statement. He submits that an admission against interest can amount to assistance and that, having regard to the circumstances, the judge erred in concluding that it did not meet the qualitative threshold that the parties assumed the provision erects.

36 The applicant submits that 'assistance' encompasses admissions against interest and incrimination of co-offenders. Both serve the administration of justice. The latter carries additional risks that may render incarceration more onerous through the risks of reprisal and the need for protection.

37 The applicant submits that his admissions were of profound importance given the lack of identification evidence, the lack of co-offenders willing to give admissible evidence and the use, by Peka, of the applicant's phone and residence. The fact that Peka and the applicant lived in the same house meant that the stolen cigarettes found at the house would not necessarily incriminate Peka. The Facebook messages between the applicant and AB did not explicitly name Peka.

38 The applicant submits that it was not reasonably open to find that the applicant's conduct fell short of meeting the qualitative threshold required for 'assistance' within the meaning of s 5(2H)(a) and the applicant should be resentenced.

39 The respondent submits that it was reasonably open to the judge to determine that there were not 'substantial and compelling circumstances' which were 'exceptional and rare' such as to justify not making an order under div 2 of pt 3.

40 The respondent relies on the strength of the language in s 5(2H)(e), which indicates Parliament's intention to make it a rare occurrence that an offender being sentenced for a category 2 offence will avoid incarceration. The respondent says that it is an onerous task for an offender to establish the existence of circumstances which fall within the ambit of s 5(2H)(e). Routine and commonplace matters are not adequate and the matters raised by the applicant fall short of what is required.

41 In answers to questions from the Court, however, counsel for the respondent accepted that it would have been open to the judge to have found substantial and compelling circumstances within the meaning of s 5(2H)(e).

42 The respondent submits that it was open to the judge to find that the admissions made by the applicant in the record of interview did not constitute the type of 'assistance' contemplated by s 5(2H)(a), which must be of such significance as to warrant the Court deviating from an otherwise mandated custodial disposition for a relevant category 2 offence.

43 The respondent notes that the term 'assistance' is not defined in the Sentencing Act and it must be interpreted in accordance with common law interpretive principles. The respondent submits that having regard to the purpose for which 'special reasons' were enacted under s 10A of the Sentencing Act,[21] as revealed in the second reading speech of the Attorney General, in order to fall within paragraph (a) of s 5(2H), the assistance 'must pass a high qualitative threshold before it qualifies the offender to the exemption.'

44 Applying that construction, the respondent submits that the quality or value of the admissions made by the applicant in his record of interview was not high. It is noted that the admissions were not sworn and no undertaking to give sworn evidence was provided. The respondent also notes that the admissions came at a time when the police were already in possession of admissions of AB and Peka who had nominated the applicant as having been involved in the commission of the offence.

45 The phrase 'substantial and compelling circumstances that are exceptional and rare' appears in two related contexts in the Sentencing Act. In both, they identify circumstances in which mandatory sentencing provisions are not engaged. The first, in s 5(2H)(e), sets out one circumstance in which the mandatory obligation to make an order under div 2 of pt 3 for a category 2 offence does not apply. The other, in s 10A(2)(e), similarly provides a circumstance that constitutes a special reason for not imposing a mandatory minimum non-parole period.

46 The words 'that are exceptional and rare' were introduced in October 2018.[22]

47 Before that amendment, in Hudgson, this Court, said of the phrase 'substantial and compelling':

It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s 10 should be a heavy one, and not capable of being lightly discharged.

More specifically, we accept the Director's submission that the word 'compelling' connotes powerful circumstances of a kind wholly outside what might be described as 'run of the mill' factors, typically present in offending of this kind.[23]

48 The requirement that the circumstances be atypical was made explicit by the amendment that requires that they be 'exceptional and rare'.

49 In Paduano v The Minister for Immigration and Multicultural and Indigenous Affairs, Crennan J considered the meaning to be given to the word 'compelling' in the phrase 'compelling reasons for the absence' of a person from Australia. Her Honour noted that compelling is an ordinary English word that falls to be interpreted by reference to well-established principles. Her Honour said:

A perusal of commonly used dictionaries indicates that the words 'compel' and 'compelling' are ordinary English words which have not one, but several connotations. What they have in common is a semantic debt to the Latin pello/pellere - 'to force', 'to drive', 'to stimulate', 'to rouse', but it is clear beyond dispute that the idea of 'force' common to many of the dictionary entries is not confined to physical or legal force but includes moral force and the 'force' of mental stimuli such as from a 'compelling argument'.[24]

...

'Compelling' in its wide, ordinary meaning means 'forceful'. Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. There is nothing in the express wording of the relevant subclause which indicates that 'compelling', where it occurs, should be read narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing.[25]

50 In Plaintiff M64/2015 v Minister for Immigration and Border Protection, the High Court considered compelling reasons 'force or drive the decision maker irresistibly' to the relevant conclusion.[26] Gageler J also considered that compelling reasons are 'irresistible'.[27] As Beach JA has observed in the context of bail, however, the meaning of 'compelling reasons' must accommodate the particular statutory context.[28] In the context of bail, compelling did not mean 'irresistible or exceptional' because the Bail Act 1977 contemplated the even higher test of exceptional circumstances for certain offences.[29]

51 Within the context of s 5(2H), paragraph (e) is a residual category of limited scope. On any view, it is a very high hurdle that will not often be surmounted. The legislative norm is that category 2 offences will attract an immediate term of imprisonment, drug treatment order or detention in a Youth Justice Centre or youth residential centre. Importantly, community correction orders ('CCOs') or a combined CCO and term of imprisonment under s 44 are not available.

52 In many cases, given the type of offences within category 2, a term of imprisonment will be inevitable. In some cases, the operation of s 5(2H) will be harsh. In other cases a term of imprisonment or youth detention would be entirely unjustified, counterproductive from the view point of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree paragraph (2H)(e) guards against the risk of injustice. But the stringency of the test cannot be avoided.

53 Within the bounds of reasonableness, whether in combination the applicant's circumstances amounted to 'substantial and compelling circumstances' that are 'exceptional and rare' was for the judge to determine.

54 The judge was correct in concluding that a young offender who will be vulnerable in custody and who suffers from anxiety but who has committed a very serious offence is not rare or unforeseen. Generically, the factors relied on by the applicant are often seen.

55 However, although each of the aspects on which the applicant relies fit within a category or type that is common, in our view, the accumulation of detail was exceptional and compelled the conclusion that the mandatory detention provision should not be applied. We are of the opinion that the conclusion reached by the judge was not one which was open to him.

56 What makes this a most unusual case, in our view, is the physical disfigurement from which the applicant suffers, and the profound impact which it has had on his life. The affliction began when he was quite young and has profoundly affected his life. It significantly reduced his culpability with respect to the offending while also making him extremely vulnerable in custody.

57 The applicant was diagnosed with alopecia at the age of 13 or 14 and his mother described it as a 'massive dark hit' to his self-esteem. This uncommon condition causes partial hair loss, resulting in unsightly bald patches on the sufferer's head. Because of his appearance, the applicant was severely bullied at secondary school. As a result, he twice had to change schools. He became isolated, friendless and afraid to leave home. Disruption to schooling twice at a vulnerable age because of a physical condition, isolation and the cruel response of some students to it were highly significant in his physical and social development.

58 According to the uncontested expert evidence before the judge, it was the effect of the alopecia on the applicant which brought on what was diagnosed as a Generalised Anxiety Disorder (with depression) and Agoraphobia. The applicant told Mr Cummins that: 'as a result of suffering from the alopecia he feels inferior and feels relieved when any peers appear to like him or form a friendship with him. At interview he reported very low self-esteem.'

59 What is of particular significance, in our view, is that the applicant's condition, and its effect on him, provided an explanation for his involvement in this offending. Mr Cummins reported that the applicant acknowledged that his constant embarrassment about his appearance meant that he felt grateful to be befriended by anyone. In Mr Cummins' view, this 'was relevant in terms of what he perceived to be a friendship with the co-accused, [Peka and AB]'. In Mr Cummins' opinion, the applicant is suffering from 'severe symptoms' of his Generalised Anxiety Disorder and Agoraphobia and: 'the impact of these conditions on his self-esteem, in turn, adversely impacted on his perception, judgment and reasoning ability.'

60 On that uncontested evidence, there is a clear link between the applicant's physical affliction and his decision to become involved in this offending. He was both without any peer support beyond Peka and liable to be unduly influenced. On well-established principles, we would regard his moral culpability as significantly reduced. That is, he is to be judged - and punished - much less harshly than a person who was not suffering from these serious physical and psychological conditions.

61 Another direct consequence of these conditions was to render the applicant exceptionally vulnerable in custody. There was uncontested evidence that his physical disfigurement would expose him to bullying and ridicule in custody. As the judge recorded, the very experienced Youth Justice officer who had supervised the applicant while he was on bail predicted his fate in stark terms, namely that he would be 'eaten alive' and 'targeted' whilst in custody. In our experience, it is most unusual for an offender to call in aid as a sentencing consideration the probability that, if imprisoned, he will be exposed to bullying because of his physical appearance.

62 The evidence demonstrated that the applicant was so troubled by his physical affliction that he developed Agoraphobia and when he did venture out would always wear a hat.

63 In the opinion of Mr Cummins '... imprisonment would adversely impact on Mr Farmer's mental health, as it would be inevitable he would be ridiculed and intimidated for suffering from alopecia and most probably also in relation to his psychosocial immaturity.'

64 This is not a case where the applicant can hide his vulnerability in custody. As it did when he was in school, his physical appearance will likely mark him out for bullying and cruel mistreatment. This will inevitably make every day in custody more burdensome than it would be for someone who does not have this condition. Furthermore, as Mr Cummins said, being in custody was likely to result in a worsening of his condition.

65 This analysis demonstrates, in our view, just how exceptional the circumstances of this case are. As we have sought to explain, the applicant suffers from a serious physical disfigurement which has made his life a misery. This is a condition of a very particular kind, not one which affects his physical mobility, but one which directly affects his ability to lead a normal life. Its devastating impact on him at a young age has been a defining feature of his life, up to and including the time when he decided to take part in this offending. And, just as significantly, it makes him someone for whom a custodial environment is wholly unsuitable.

66 All of the features to which we have referred pointed irresistibly in favour of a non-custodial disposition. In combination, in our view, they are: '... substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 [of the Sentencing Act].' As noted, the respondent accepted that it was open to the judge to reach that conclusion. With great respect to the sentencing judge, we are of the view that no other conclusion was reasonably open. The considerations to which we have referred were, plainly, substantial and compelling. Equally plainly, the particular combination of physical and psychological conditions - and their direct connection to the offending - is exceptional and rare.

67 Sub-s (2I) provides that, in determining whether the circumstances satisfy the statutory test, one factor the Court must have regard to is 'whether the cumulative impact of the circumstances of the case would justify a departure' from a custodial sentence. For the reasons we have given, the cumulative effect of the applicant's circumstances is such as not only to justify a non-custodial order but to make that the only disposition reasonably open.

68 We would grant leave to appeal and uphold ground 1.

69 Paragraph (a) of s 5(2H) provides that the Court must make a custodial order unless 'the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence'. There is nothing in that text that serves to qualify or limit the extent of the assistance given, or offered, by an offender by reference to its value to law enforcement authorities. Nor are the words apt to require the judge to first determine whether there has been assistance, or an undertaking, and second to assess whether it is sufficient to justify a departure from the mandatory requirement to imprison the offender. The provisions gives rise to a single question: has the offender provided assistance or an undertaking to provide assistance in the investigation or prosecution of an offence?

70 The purpose of paragraph (a) is to identify one circumstance in which the obligation to make an order of imprisonment under div 2 of pt 3 does not apply. It reflects a legislative choice that the public interest in encouraging cooperation and assistance should not be undermined by a mandatory requirement to impose a term of imprisonment.

71 It is well-established that providing assistance to law enforcement authorities can be a powerful mitigating factor in sentencing.[30] The potency of its mitigation depends on various factors, including the nature and gravity of the crime, the benefit to authorities, the risk posed to the offender and the extent to which the offender will require protective measures in prison, making incarceration more onerous. Underpinning these factors is the very powerful public interest in encouraging offenders to cooperate with law enforcement authorities. In order to determine the extent to which assistance might moderate a sentence, it is necessary to have regard to the relevant factors. As a comparison of R v Johnston[31] and Director of Public Prosecutions v Cooper[32] shows, there can be a marked difference in the weight accorded to assistance in the bringing together of the various integers relevant to sentence.

72 Assistance is treated quite differently to admissions and confessions. Although it is true that an admission is helpful to police, it is not, in the usual sense, treated as assistance in the sentencing context. It does not carry the same burden or stigma on the offender and does not attract the same moderating force. Of course, admissions and pleas of guilty attract their own benefits as evidence of remorse and for their utilitarian value.

73 The special place of assistance, and the difference with admissions and confessions, is illustrated in the following passage from the judgment in R v Cartwright:

It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.

...

What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's cooperation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.

Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely cooperated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities.[33]

74 To place admissions and pleas of guilty in the category of assistance for the purpose of paragraph (a) would render the mandatory sentencing provisions inapplicable to many guilty pleas and produce a plainly incongruous result. It would not sit well with the other limited exceptions.

75 The judge placed some weight, as he was invited to do, on the observations of the Attorney General in his second reading speech to the effect that the provisions address the circumstances where assistance is of such significance as to warrant a substantial discount on the sentence.

76 The Crimes Amendment (Gross Violence Offences) Act 2013 introduced new offences which provided for minimum sentences unless an offender came within a designated exception. One of the exceptions features the same key phrase as s 5(2H)(a) (see s 10A(2)(a) of the Sentencing Act). In the second reading speech for the bill, the then Attorney General stated:

The first special reason is that the offender assisted or made an undertaking to assist the Crown or police, as may already occur pursuant to s 5(2AB) of the Sentencing Act 1991. This addresses situations where there is assistance or an undertaking to assist of such significance as to warrant a substantial discount on the sentence that would otherwise apply and justify a non-parole period below the statutory minimum. In its advice, the council recommended the inclusion of this special reason for public policy reasons. At paragraph 4.64 of its advice, the council stated that:

the reduction in sentence provided to an offender for assisting can be justified on the grounds that it goes towards the proper administration of justice, and secures the conviction of offenders who might otherwise avoid prosecution.

77 The Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 introduced category 2 offences. Section 1 of that Act provides that its purpose was (amongst other things) to amend the Sentencing Act to restrict the use by courts of non-custodial orders. In the second reading speech for the bill, the then Attorney General said:

The special reasons provided for in the bill will mirror existing s 10A of the Sentencing Act 1991, which provides the special reasons that a court must find in order to depart from the statutory minimum sentence for particular offences ... [t]he special reasons are an important legislative safeguard, which will exempt a court in limited circumstances from imposing a custodial sentence for a 'category 2 offence' where justified by the particular facts of the case or circumstances of the offender.

78 Although the second reading speech forms part of the context, it provides no warrant for departing from the text in this case. The judge was correct to reject the gloss placed on it by the respondent that paragraph (a) is only engaged where the assistance would result in a substantial discount in sentence. In our view the text is clear.

79 By its specific terms, paragraph (a) of s 5(2H) applies where a judge is persuaded that the offender has assisted or has given an undertaking to assist law enforcement authorities in either the investigation or prosecution process. There is no warrant to distinguish further and construe the provision as only applying to assistance of a particular kind, extent or quality.

80 Of course, it is necessary for the judge to determine whether the offender has assisted or has given an undertaking to assist. That depends on what the offender has said in the context of the investigation or prosecution. Where assistance to police is relied on, the information imparted has to be capable of assisting police in their investigation of the offence. It will include a consideration of its capacity to achieve a favourable law enforcement outcome such as recovery of stolen or dangerous goods, the interception of a shipment of illicit drugs, the prevention of a crime or the arrest or conviction of offenders.[34]

81 In the present case, the applicant, after initially denying any involvement in the offending, made admissions, identified his two co-offenders and explained their respective roles in the offending. At the conclusion of his second interview, the applicant was asked whether he wanted to make 'a further statement in relation to the matter' to which he replied: 'Yes, I've told you everything'.

82 The judge was persuaded that the applicant provided some assistance to authorities by virtue of his admissions in the sense that his admissions assisted proving the prosecution case against him.[35] In addition to making admissions, the applicant identified his co-offenders by name.

83 However, on the facts, the judge was bound to conclude that the applicant had not provided assistance to authorities within the meaning of s 5(2H)(a). In our view, his record of interview amounted to no more than admissions, and the identification of his co-offenders occurred at a time when police had already arrested and interviewed them. In the course of his initial denials, the applicant was told by police that the other two offenders had implicated him. When he confessed, the applicant knew that his co-offenders had already made admissions. It could not be inferred that by implicating them in his admissions he thereby intended to, or did, assist the police.

84 There was no material before the judge which suggested that the information the applicant provided altered the course of investigation, was not already known to investigators or led them to evidence that they would not otherwise have obtained. At the time the record of interview was complete, the applicant had cooperated with police and made full admissions. However, he had not provided assistance in the relevant sense. There was no error in the judge's conclusion that the exemption in paragraph (a) was not available to the applicant.

87 There is no doubt that the offending was serious and undoubtedly frightening and confronting to the victim. Further, it is imperative that this Court imposes a sentence that appropriately punishes and denounces this kind of offending. Although, as the judge noted, the applicant's prospects of rehabilitation were good, and this significantly moderated the need for specific deterrence, the role of general deterrence remains important in offending of this nature.

88 Although the applicant relied on the fact that a relatively small amount of money was taken, and the offending was unsophisticated, those factors are of no great moment given that the robbery was in company with bladed weapons, which were used in a gravely threatening way. Marking the seriousness of the offending is an important part of the sentence. Equally, like the judge, we would regard the applicant as an equal participant in the execution of the crime notwithstanding that he did not hold a weapon.

89 The applicant has no prior convictions, is a youthful offender, for whom rehabilitation must be the primary consideration[36] and, again, as the judge recorded, responded impressively to the terms of his strict bail. His disposition and medical condition make him particularly vulnerable in a custodial setting.

90 Taking these matters into account, in our view, a period of detention was not justified. Given the applicant's commitment to working with Youth Justice on supervised bail, and his prospects of rehabilitation that need to be supported, in our view, justice would have been served by placing the applicant on a CCO. However, given that he has been in youth detention, a further period of CCO would be unduly punitive. In the circumstances, we were satisfied that the period of detention served by the applicant to date appropriately met the demands for punishment and denunciation.

91 For these reasons we granted leave to appeal, allowed the appeal, set aside the sentence and resentenced the applicant to detention in a Youth Justice Centre for a period equal to time served.

[1] AB was sentenced in the Children's Court.

[5] As defined in s 3(1) of the Sentencing Act.

[17] [2016] VSCA 254, [112] (Weinberg, Whelan and Priest JJA) ('Hudgson').

[21] The respondent points to the fact that the exemptions in s 5(2H) were to mirror the special reasons in s 10A.

[22] Justice Legislation Miscellaneous Amendment Act 2018 ss 76(6), 79(5).

[23] [2016] VSCA 254, [111]-[112] (Weinberg, Whelan and Priest JJA).

[24] [2005] FCA 211; (2005) 143 FCR 204, 211 [32]; [2005] FCA 211.

[26] [2015] HCA 50; (2015) 258 CLR 173, 187-8 [31]; [2015] HCA 50 (French CJ, Bell, Keane, and Gordon JJ) (citations omitted).

[27] Ibid 197 [64] (citations omitted).

[28] Re Ceylan [2018] VSC 361.

[30] A summary of the applicable principles can be found in Haamid (a pseudonym) v The Queen [2018] VSCA 33.

[31] [2008] VSCA 133.

[32] [2018] VSCA 21.

[33] (1989) 17 NSWLR 243, 252-3 (Hunt and Badgery-Parker JJ) (emphasis in original); R v Su [1997] 1 VR 1, 77 (Winneke P, Hayne JA and Southwell AJA).

[34] R v Golding (1980) 24 SASR 161, 173 (Wells J).

[36] R v Mills (1998) 4 VR 235, 242 (Batt JA with whom Phillips CJ and Charles JA agreed).