Mammoliti v The Queen [2020] VSCA 52

1 On 22 January 2019, the applicant pleaded guilty in the County Court at Melbourne to charges of aggravated carjacking, driving whilst disqualified and failing to report an accident to police.

2 On 1 February 2019, the applicant was sentenced by Judge Davis as follows:

s 79A of the Crimes Act 1958

s 30(1) of the Road Safety Act 1986

s 61(1)(f) of the Road Safety Act 1986

Not less than 14 days' and not more than 1 month's imprisonment or 10 penalty units

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: 8 years' imprisonment, with a non-parole period of 5 years and four months.

Disqualified from obtaining any licence or permit for 3 years

3 The circumstances of the aggravated carjacking and the use and fate of the car subsequently are uncontroversial.

4 On 2 June 2018, at approximately 11:30 am, the victim, an 84 year old man, drove to the Brimbank Central Shopping Centre. Unable to find a parking spot, he pulled over on the north side of the car park, leaving the keys in the ignition and the engine running. While the victim was using his mobile phone to contact his wife, the applicant approached the car and opened the driver's side door. He leaned in, reaching around the victim's body to release his seat belt. The applicant then grabbed the victim by the arm, dragging him out of the vehicle and onto the road. As the victim fell to the ground, he dropped his mobile phone and his hearing aid fell out of his ear. The applicant got into the car and drove away, leaving the victim lying in the middle of the road. The victim, unable to stand up, remained lying on the road for two minutes before he was attended to by a passer-by and emergency services were called.

5 The victim's injuries included a bleeding finger, a scratch to his right ear, bruising to his right arm, and swelling and abrasions to both of his elbows and both of his knees. His injuries were attended to and he was prescribed antibiotics by his GP.

6 The applicant drove the car for approximately 45 minutes until he crashed into the barrier of an overpass on Hampshire Road, Sunshine. The car came to rest blocking the west-bound lanes of the overpass. As a result of the crash, the car was badly damaged. The applicant left the scene of the accident on foot and failed to notify police of the accident or the damage caused.

7 Two days later, on 4 June 2018, the applicant was identified by a member of Victoria Police after CCTV images of his face were circulated internally at Victoria Police. On 19 June 2018, the applicant was arrested and charged. He entered a plea of guilty to all charges at the first committal case conference in the Magistrates' Court.

8 In 2016, amendments were made to the Crimes Act 1958, the Sentencing Act 1991 and the Bail Act 1977 to create new offences of carjacking, aggravated carjacking, home invasion and aggravated home invasion, and to impose special sentencing and bail requirements for those offences. In Parliament, the Attorney General explained the reason for the new offences and penalties as follows:

The Andrews Labor government is very concerned about recent serious criminal offending, which has involved breaking into people's homes and dragging people out of their cars.

There is absolutely no place for this sort of behaviour. All Victorians should be able to feel safe and secure in their own homes. All Victorians should be able to drive around without fear of being set upon by criminals.

The government is introducing offences and penalties which appropriately reflect the terrifying nature of these crimes. In doing so, the government, and the Parliament, denounce the perpetrators of such crimes in the strongest terms and send a message to the community that such activities will not be tolerated.[1]

9 In relation to aggravated carjacking, the Attorney General said:

The offence carries a maximum period of imprisonment of 25 years. In order to recognise the particular seriousness of this offence there is also a statutory minimum sentence of three years. This is intended to be a serious deterrent to those who plan to use weapons and violence to take another person's vehicle.[2]

10 As foreshadowed, s 79A of the Crimes Act prescribes a maximum sentence of 25 years' imprisonment for aggravated carjacking. Section 10AD of the Sentencing Act requires the imposition of a term of imprisonment for an offence against s 79A and the fixing of a non-parole period of not less than three years, unless the court finds under s 10A that 'a special reason' exists.[3]

11 These provisions mirror the applicable laws for aggravated home invasion.

12 In her reasons for sentence,[4] the judge commenced by making reference to the maximum penalty of 25 years' imprisonment and the minimum non-parole period for the aggravated carjacking offence. She also described aggravated carjacking as a category 1 offence under the Sentencing Act, in respect of which s 5(2G) required the court to make an order for imprisonment.

13 In fact, the judge was incorrect to state that the carjacking offence before her was a category 1 offence, as it was not a category 1 offence at the time of the offending, but that error is of no consequence having regard to the sentencing requirements of s 10AD, which were clearly applicable.

14 Turning to the applicant's personal circumstances, the judge recorded that at the time of the offending, the applicant was 39 years old, homeless, unemployed and the subject of a community correction order. He had an extensive criminal record, dominated by offences of dishonesty, drug possession, driving offences, burglary and criminal damage. In 1997, he was fined without conviction for intentionally or recklessly causing injury and he had subsequent convictions for recklessly causing injury in 1999, 2001, 2003 and 2009. In mid-2017, he was convicted of aggravated burglary and unlawful assault, among other offences.

15 The judge referred to three psychological reports (a psychological assessment for the purposes of the plea hearing[5] and two neuropsychological assessments[6]) tendered on behalf of the applicant showing that he suffered from cognitive limitations and a range of mental health issues, including post-traumatic stress disorder ('PTSD'). The judge also made reference to a letter from the applicant's former partner indicating that upon his release from prison he could come to live with her in Queensland and a letter from a potential employer stating that he was willing to employ the applicant as a warehouse assistant.

16 The judge described the applicant's difficult childhood, which was marred by physical and emotional abuse from his parents that resulted in him living with his grandparents for extended periods. Following the deaths of his grandparents while he was in his teens, his life went downhill and he engaged in heavy substance abuse and began the cycle of offending. The applicant lived on the street for most of his life after leaving school, apart from periods spent in prison and a five year period between 2010 and 2015 when he lived with his former partner. When she left Victoria for Queensland in 2015, he again became homeless and resumed using drugs and offending. In 2015, he was stabbed by a stranger and suffered a ruptured spleen, which had to be removed. In 2016, he fell off his bike and fractured his clavicle, but did not seek medical help because he feared being unable to pay the bills. He contracted septicaemia and encephalitis and had to spend several months in rehabilitation.

17 The neuropsychological assessments found the applicant's level of overall intellectual ability to be borderline impaired, including executive dysfunction affecting the efficiency of new learning and memory skills. He was also found by Ms Crole to have attention-deficit/hyperactivity disorder, an anti-social personality disorder and methamphetamine and heroin use disorders, as well as PTSD arising from the stabbing incident in 2015.

18 At the plea hearing it was submitted on the applicant's behalf that his impaired mental functioning due to PTSD constituted a 'special reason' permitting the imposition of a non-parole period of less than three years pursuant to s 10A of the Sentencing Act. This was rejected by the judge and was not pursued on appeal.

19 The judge stated that it was clear from the maximum sentence and the requirement, absent any special reason, to impose a minimum non-parole period of at least three years, that Parliament regarded the offence of aggravated carjacking as a very serious one in respect of which the principal sentencing considerations were denunciation, just punishment, specific deterrence and protection of the community.[7] However, her Honour also recognised that she had to take into account the applicant's personal circumstances and his prospects of rehabilitation.[8]

20 The judge found the aggravated carjacking offence to be a serious example of that type of offence, as it was committed while the applicant was subject to a community correction order. She described it as a brazen act in broad daylight against an 84 year old man who was dragged from his car and dumped on the road, and emphasised the vulnerability of elderly drivers and the need to protect them against offending of this kind.[9] The offending also had to be seen in the context of the applicant's substantial criminal record.[10]

21 The judge accepted that the applicant's early plea of guilty had utilitarian value and that it provided some evidence of remorse.[11] While she considered that the applicant's deprived childhood was not so great as to enliven the principles in Bugmy v The Queen,[12] she acknowledged it to be very significant and to be taken into account more generally as affecting the applicant's culpability.[13]

22 The judge found that the applicant's moral culpability was also to be regarded as somewhat reduced by virtue of his borderline intellectual capacity and that he was not as appropriate a vehicle for specific deterrence as an offender without that kind of reduced intellectual capacity.[14] Further, having regard to the fact that the applicant lived a fairly normal life between 2010 and 2015 with his former partner and that he intended to live with her following his release, the judge considered his prospects of rehabilitation 'overall to be reasonable'.[15]

23 The single proposed ground of appeal is that the sentence imposed on Charge 1 (aggravated carjacking) and the non-parole period are manifestly excessive in all of the circumstances, and particularly in light of:

(b) the applicant's plea of guilty at the earliest opportunity;

(c) the judge's finding that the applicant's prospects of rehabilitation were 'reasonable'; and

(d) current sentencing practices for offences of the same type.

24 The issue on appeal is whether, in all of the circumstances of the case, it was reasonably open to the judge to impose a sentence for aggravated carjacking of six years' imprisonment with a non-parole period that exceeded the mandatory minimum by one year. Before addressing that question, it is necessary to consider the operation of s 10AD of the Sentencing Act.

25 The applicant submitted that in sentencing an offender who is subject to a mandatory minimum non-parole period under s 10AD of the Sentencing Act, the following principles apply:

(a) the mandatory minimum non-parole period operates as a legislative yardstick;[16]

(b) the imposition of a minimum sentencing regime 'does not oust either the sentencing principles of the common law or those affected by [statute], but necessarily modifies both';[17]

(c) although the mandatory minimum non-parole period is a yardstick, it is not necessarily reserved only for those cases falling at the lowest extreme of the spectrum. An offender may still receive the mandatory minimum non-parole period despite having relevant prior convictions and/or despite running a trial;[18]

(d) the principles governing a discount for a plea of guilty do not cease to apply in cases where there is a statutory minimum term. Rather, there will be a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability;[19] and

(e) the requirement to impose a mandatory minimum non-parole period should not be permitted to swamp the sentencing discretion.

26 For its part, the respondent agrees that the mandatory minimum non-parole period is not just a floor below which a non-parole period cannot be imposed and that s 10AD of the Sentencing Act provides a guidepost for sentences in cases where an exception under s 10A does not apply. The respondent 'broadly' accepts the propositions in the applicant's case outlined above.

27 We agree that the mandatory minimum non-parole period operates as a legislative yardstick, that it must sit alongside the established sentencing principles and that it is not intended to depart from the instinctive synthesis approach to sentencing. In Brown v The Queen,[20] when considering the guidepost operation of 'standard sentences',[21] this Court confirmed that the standard sentence:

(b) does not affect the established 'instinctive synthesis' approach to sentencing;

(c) does not require or permit 'two-stage sentencing'; and

(d) does not otherwise affect the matters which the court may, or must, take into account in sentencing.[22]

28 Although the Court's analysis in Brown was based on the construction of the statutory provisions for standard sentences, the proposition that the guidepost operation of the sentence does not affect the instinctive synthesis or permit two stage sentencing or otherwise affect the matters which the court may, or must, take into account in sentencing, is applicable to the mandatory minimum non-parole period.

29 However, unlike for standard sentences, the guidepost operation of the mandatory minimum non-parole period is problematic because it sets a floor, for the non-parole period only, that applies whether the offender is being sentenced for a single offence or for multiple offences. The significance of the guidepost will vary between single charge cases and multiple charge cases. Because of s 11(3) of the Sentencing Act, for single charge offending the three year mandatory minimum non-parole period establishes a minimum charge level sentence of three and a half years. However, if other sentencing orders in a multiple charge case produce a head sentence of three and a half years or higher, and a non-parole period of three years or higher, then s 10AD might be satisfied by an individual sentence on an aggravated carjacking charge of three years' imprisonment or less. As a result, it may be uncertain what the 'guidepost' (if any) is in relation to the head sentence in a given multiple charge case.

30 The respondent submits that this Court should resolve this uncertainty by affirming the 'guidepost' operation for s 10AD in the following way:

(a) where it applies, s 10AD identifies three years as an appropriate non-parole period for an offence in the least serious category of this offence, committed by an offender with significant mitigation of the kind that does not establish a 'special reason' exception;

(b) the court is required to reflect this guidance in fixing both the non-parole period that is directly governed by s 10AD and the sentence imposed for such an offence;

(c) this guidance should be regarded as equally applicable whether the charge is a single charge that must be supported by the mandatory minimum non-parole alone, or one of several charges, where the mandatory non-parole period could be complied with despite a lower sentence being imposed for the s 79A offence; and

(d) while s 11(3) permits a six month difference between the term of the sentence and the non-parole period, this will not ordinarily be sufficient to satisfy general sentencing principles. If s 10AD serves as a guidepost, it must operate not simply by fixing a floor sentence, but by recalibrating the court's assessment of the punishment demanded for an offence. In principle, that recalibration should be reflected in the charge-level sentence as well as the non-parole period.

31 The respondent further submits that the impact of the 25 year maximum should be assessed by reference to the following considerations:

(a) it is a newly fixed maximum penalty and not an old maximum fixed 'at a very high level in the last century';[23]

(b) 25 years' imprisonment is the second highest penalty level, and indicates an offence of the utmost gravity; and

(c) 'it is to be expected that there would be a spread of cases across the statistical range' leading up to this 25 year maximum, and there should be 'appropriate relativities' between sentences imposed and this maximum penalty.[24]

32 The respondent submits that, having regard to these principles, for an offence with a mandatory minimum non-parole period of three years, a charge level sentence of less than four years' imprisonment should be rare.

33 According to the respondent, then, the 'recalibration' effected by s 10AD results in a shift in the head sentence relative to sentences for otherwise comparable offences such as armed robbery. This stands in contrast to the proposition advanced by the applicant that no increase in head sentences is intended and that there will be compression of sentences at the lower end where the offending is not a serious example of aggravated carjacking.

34 The applicant submits that even if the mandatory minimum non-parole period is used as a yardstick, it does not compel a higher head sentence on an individual count. Section 11(3) of the Sentencing Act requires there to be at least six months' difference between the head sentence and the non-parole period, but other than that it is not evident that there needs to be any increase in the head sentence for offences of that type. Had Parliament intended head sentences for aggravated carjacking to be at a 'higher level',[25] it could have legislated to that effect. Instead, the legislature has fixed the minimum jail term that has to be served before the offender can be released.

35 The applicant further submits that the principle of compression is a mechanism by which the courts can retain well-established sentencing principles such as proportionality and discounts for a plea of guilty, while also complying with the legislative requirement for minimum non-parole periods. The principle of compression, the applicant submits, permits the Court to impose a sentence at the lower end of the spectrum, recognising that cases at the very lowest end will receive a similar sentence. In this case, the applicant has a number of prior convictions and cannot rely on the full range of mitigating factors. Nevertheless, so it is argued, his offending is at the lower end of seriousness and should, applying the principle of compression, be treated very similarly to cases at the very lowest end.

36 The applicant relies on the decision of this Court in Haidari[26] for the 'principle of compression'. There, the respondent had been convicted and sentenced for people smuggling. The relevant legislation[27] imposed both a maximum and a minimum sentence for the offending. Harper JA (with whom Weinberg and Priest JJA agreed) observed that minimum sentences were for offending within the least serious category, just as the maximum sentences were for offending within the worst category. He said:

There is no single instance at either extreme; but the question is whether it is possible to place a serial organiser of people smuggling, on being sentenced for the third time for this offence, into the least serious category of offending.

I think that it is.[28]

37 His Honour stated that although the imposition of a minimum sentencing regime does not oust the sentencing principles of the common law or these principles as reflected in the statute, it necessarily modifies both. While the common law principles relating to such matters as general deterrence, totality and parity continue to apply, minimum sentences may affect the sentencing court's approach to mitigating circumstances. In this regard, Harper JA quoted the following passage from the judgment of Wheeler JA in Atherden v Western Australia:

[I]n relation to at least some offences which fall towards the lower end of the range of culpability, the presence of a minimum term makes it impossible for a sentencing judge to apply the quantum of discount for a plea of guilty which he or she would ordinarily apply, because to do so would mean that the sentence imposed would fall below the statutory minimum. Where an offence is right at the bottom of the range of culpability, it may be that no discount at all can be given, for the same reason.

However, I do not think it follows that the principles governing the awarding of a discount for a plea of guilty cease to apply in cases where there is a statutory minimum term. Rather, the result will be that there is a compression of sentences towards the lower end of the range, with offences at the bottom of the range of culpability treated effectively in the same way as those which are towards the lower end, but not at the extreme lower end, of culpability.[29]

38 We understand the 'compression of sentences towards the lower end of the range' to be a function of the fact that the minimum sentence is for offending assessed to be at the lowest level of seriousness. If a discount for a plea of guilty is applied to a sentence that already warrants no more than the minimum sentence, the sentence will technically fall below the minimum, which is impermissible. However, that does not mean that there is a 'principle' of compression which guides the sentencing exercise. It is merely a recognition of the results which may be produced by the application of ordinary sentencing principles in the context of a minimum sentencing regime.

39 Where the mandatory minimum non-parole period applies to a sentence for a number of offences, the logic of compression becomes more complex. However, that is not this case. It suffices to say that, where an offender is sentenced on a single charge or where, as here, only one charge attracts a sentence of imprisonment, the mandatory minimum non-parole period, in combination with the requirement that the term of the sentence exceed the non-parole period by at least six months, serves to create an effective 'minimum sentence' for aggravated carjacking of three years and six months' imprisonment. As we have said, it may be that in this circumstance, there will be some compression of sentences for offending falling within the least serious category and offending that does not quite fall into that category, being slightly more serious. However, equally, when determining the head sentence for aggravated carjacking, the sentencing judge must steadily bear in mind that the offending attracts a maximum sentence of 25 years' imprisonment, and the offending must be assessed using both the maximum sentence and the mandatory minimum non-parole period as guideposts. By the maximum sentence and the mandatory gaol term to be served for no less than three years, the legislature has made it clear that aggravated carjacking is a serious offence. There is no escaping a relatively long custodial sentence. Accordingly, the mandatory minimum non-parole period must be reflected in the head sentence.

40 For these reasons, in a single-charge case, or where only one charge attracts a term of imprisonment, we accept the summary of principles advanced by the applicant and broadly accepted by the respondent, as set out at [25] above.

41 It is not presently necessary to say more about the operation of s 10AD in cases involving multiple charges attracting terms of imprisonment. As the Court pointed out in Hudgson,[30] the sentencing process becomes problematic and unorthodox if a sentencing judge has to start with the non-parole period and 'work upwards'. That problem does not really arise in a single charge case. For the reasons we have given, there is in that situation a minimum head sentence which guides the sentencing discretion and it is not necessary to start with the non-parole period. But in a multiple charge case, this observation would only hold true if the proper construction of s 10AD is that it demands a minimum sentence of three years and six months for all offences against s 79A. Otherwise, the court is guided only by the non-parole period, being a period fixed in respect of all the offending, normally at the end of the process. We need not decide this question.

42 Returning to the present case, the applicant's submissions rest on the proposition that the applicant's offending, while not in the least serious category, falls somewhere not far above the least serious category. We turn to consider that question in the context of whether the sentence was reasonably open to the judge.

43 The applicant submits that the sentence of six years with a four year non-parole period was not open, having regard to where the offending fell on the spectrum of seriousness for that type of offending, the applicant's early plea of guilty, his prospects of rehabilitation and current sentencing practices.

44 The applicant submits that the judge was wrong to describe the offending as a serious example of aggravated carjacking. According to the applicant, his offending was a relatively low-level example of what is an inherently serious offence for the following reasons:

(a) the injuries to the victim occurred as a result of being forced from the car and falling to the ground, rather than from separate application of force intended to incapacitate or injure him;

(b) the injuries were at the lower end of injuries within the definition of 'injury' in s 15 of the Crimes Act;

(c) the incident was brief: there were only 17 seconds between the time the victim's car door was opened and the door closing as the applicant drove away;

(d) the applicant did not make any threats against the victim nor use any kind of weapon;

(e) the offence was not carried out in the company of other offenders;

(g) the offending was unsophisticated in that the applicant made no attempt to disguise himself or conceal his identity; and

(h) the applicant stole the vehicle under the compulsion of drug addiction rather than for financial gain.

45 The applicant submits that, contrary to the findings of the judge, the fact that the carjacking occurred in broad daylight does not make it more serious than a carjacking at night, and the fact that the carjacking occurred in a public space does not make it more serious than a carjacking at a private residence. Further, so the applicant submits, the fact that the victim was injured during the offending does not aggravate the offending, but rather forms an element of the offence of aggravated carjacking.

46 As to the applicant's plea and expressions of remorse, the judge accepted that the plea of guilty was indicative of some remorse on the part of the applicant.[31] The applicant submits that expressions of remorse can also be found in the reports of Crole and Kennedy. Furthermore, the judge found the applicant's prospects of rehabilitation to be reasonable.

47 The respondent concedes that if, in describing the offending as 'serious', the judge was intending to position the applicant's offending as a higher-range offence, then such a characterisation might be indicative of error. However, the respondent submits that counsel for the applicant on the plea conceded that the offending was 'serious offending, and it results in a significant term of imprisonment', and that that characterisation is supported by the factors summarised by the judge.

48 The respondent submits that the six year sentence of imprisonment imposed where the maximum penalty for the offence is 25 years indicates that the judge did not fall into error by positioning the offending as a higher-range offence and that, notwithstanding the absence of various circumstances of aggravation, the violence of the offending (assessed by reference to the vulnerability of the victim) moved the objective seriousness of the case above the low level.

49 The respondent submits that the mechanism of causing injury is not a mitigating factor, and that had the applicant caused the victim's injuries by striking him in order to force him out of the car, it would not have constituted worse offending. The respondent submits that the injuries were caused in a frightening and humiliating fashion, exposing the victim to the risk of worse injuries as he struck the ground and was left on the road. The injuries must also be assessed as injuries suffered by an 84 year old man. Furthermore, although the violent part of the offending lasted only 17 seconds, the victim remained vulnerable on the roadway for two minutes. As for the motivation for the offending, although there is often no financial gain from theft of a motor vehicle, where the car is wrecked - as in this case - there is substantial trauma to the victim and a cost to either the victim or an insurer which contributes to the gravity of the theft.

50 The respondent further submits that although opportunistic offending is capable of indicating a mitigating absence of planning and premeditation, where the offending is not out of character, as in the applicant's case, it may instead be confirmation of the dangerousness of an offender, increasing the need for specific deterrence and community protection.

51 We do not accept the submission that had the applicant struck the victim rather than simply dragging him out of the car, that would not have constituted any worse offending. The actual offending, though serious, falls into the less serious category of offending of this type: no weapon was used, no threats were uttered and the victim's injuries were relatively minor. We accept, however, that the age and vulnerability of the victim were significant factors in assessing the seriousness of the offending, as was the fact that he was roughly removed from his car and left lying helplessly on the road (where he might well have sustained further - much more serious - injuries). The fact that the offending was relatively spontaneous does not detract from its gravity. It was a violent and humiliating assault on a vulnerable member of the community, whose car was then badly damaged by the applicant. In our view, it was well open to the judge to describe the offending as 'serious'.

52 Furthermore, in our view, the applicant's plea of guilty, remorse and reasonable prospects of rehabilitation, along with the other mitigating factors considered by the judge - including his deprived childhood, cognitive deficits and PTSD[32] - need to be balanced against his long criminal history. The applicant has a poor history of offending and of responding to penalties, raising the need for specific deterrence and community protection. It is significant that the offence occurred while he was serving a community correction order. The judge was entitled to treat the applicant's personal circumstances as being in balance.

53 We conclude that there was nothing wrong with the judge's assessment of the seriousness of the offending and the way in which she took into account his plea of guilty and prospects of rehabilitation.

54 On this basis, having regard to the maximum sentence and the minimum non-parole period, a sentence of six years with a non-parole period of four years is, in our view, within range.

55 The question that remains is whether 'current sentencing practices' require any different conclusion.

56 The parties identified a small number (nine in total) of County Court sentences for aggravated carjacking where the s 10A 'special reason' exemptions were either not relied upon or not satisfied. All of those cases of aggravated carjacking involved a weapon of some kind[33], most involved threats of violence[34] and a number involved vulnerable victims, including an elderly couple,[35] but they nonetheless attracted lower sentences than the applicant's.

57 The respondent concedes that when compared to the sentences imposed in the surveyed cases, the applicant's six year sentence is an 'outlier by a notable degree'. The only sentence that approaches the applicant's six year sentence is a sentence of five and a half years, and the offending in that case involved a handgun.[36] However, the respondent submits that current sentencing practices for the offence of aggravated carjacking should be regarded as still developing and non-constraining, and that the limited number of cases identified should be regarded as failing to constitute a 'sentencing practice' within the meaning of s 5(2)(b) of the Sentencing Act. Based on the principles identified above, the respondent also submits that the three year sentences in some of the cases surveyed were likely to be based on an error of principle.

58 The applicant concedes that, as aggravated carjacking is a relatively new offence, there were limited comparable cases to assist the court. However, he submits that the cases surveyed do provide some guidance.

59 We agree that the cases surveyed provide some, albeit limited, guidance. As we have explained, in a single offence case, a sentence of less than three years and six months would contravene 11(3) of the Sentencing Act. Lower individual sentences for aggravated carjacking might be permitted in multiple charge cases. Sentences for aggravated carjacking imposed under s 10AD in multiple charge cases must therefore be treated with considerable caution before treating them as comparable cases for the purposes of sentencing for a single offence. Moreover, while current sentencing practices are to be taken into account pursuant to s 5(2)(b) of the Sentencing Act, they should not be given undue weight, and certainly not controlling effect,[37] especially in circumstances where those practices are still evolving. However, we also accept the respondent's submission that sentences of three years for aggravated carjacking (even if technically permitted, in a multiple charge case) may well be too low, having regard to the maximum sentence of 25 years and the

fact that the mandatory minimum non-parole period is a legislative direction that the offender spend at least three years in custody, even if the offending is of the least serious kind.

60 The ground of manifest excess will only succeed if it can be shown that the sentence was wholly outside the range of sentencing options available, that is, that it was not reasonably open to the sentencing judge.[38] There is no error of this kind simply by reason of the judge imposing a higher sentence than in the cases surveyed.

61 Although stern, we do not consider that the sentence of six years with a non-parole period of four years is manifestly excessive.

62 Leave to appeal will be granted but the appeal will be dismissed.

63 I have had the considerable advantage of reading in draft the reasons for judgment of McLeish and Emerton JJA.

64 I agree, substantially for the reasons given by their Honours, that the application for leave to appeal should be granted but that the appeal should be dismissed.

A fundamental distortion of sentencing process

66 First, the requirement that there be a minimum non-parole period tends to invert - or, at least, fundamentally distort - the sentencing process as we know it

in this State. Conventional reasoning tells us to fix any individual sentence or sentences first by reference to the circumstances of the offence, the circumstances of the offender and any particular statutory requirements (such as the maximum penalty for the offence and so on); then, in the case of multi-count indictments, to consider the rules of concurrency and cumulation so as to fix a total effective sentence; and then, and only then, to consider the fixing of a non-parole period in relation to that total effective sentence, or, in the case of a single-offence sentence, to consider the fixing of a non-parole period in relation to that single - or head - sentence.

67 While, in my respectful opinion, with one exception, McLeish and Emerton JJA have deftly made as much sense of the approach to sentencing affected by s 10AD of the Sentencing Act as is reasonably possible, the reality is that whatever construction is arrived at is something rather grotesque to the minds of those trained in applying mostly sensible cohesive principles to varied factual situations.

68 The difficulties are not confined to sentencing for aggravated carjacking alone. For example, how are judges to approach sentencing for multi-count indictments involving aggravated carjacking and other offences that are not afflicted with minimum non-parole periods? The issue did not arise so squarely in the present case because the other two offences were comparatively minor and, understandably, attracted short concurrent sentences. Another example is: how are judges to approach sentencing for aggravated carjacking when another offence on the indictment (say, an armed robbery) appears to be objectively more serious and carries the same maximum penalty and yet, in the judge's view, warrants a sentence less than the aggravated carjacking? The examples can be multiplied.

69 It is as if the Sentencing Act - a pretty impressive piece of work in its original form - now has (another) addition to it that ensures that the Act will never again make sense as a seamless whole.

70 The second point addresses the exception I mentioned earlier.

71 While I accept the Director's submission that, assuming the offender to be eighteen or older at the time of offending and that no 'special reason' exists, a sentence for aggravated carjacking, when charged as a single count on an indictment, must, in effect, be one of at least three-and-a-half years' imprisonment with a non-parole period of three years, I do not accept that, when the indictment alleges two or more offences of aggravated carjacking, the individual sentences for those offences may be something less than three-and-a-half years' imprisonment provided that, after cumulation, the total effective sentence is one of at least three-and-a-half years' imprisonment and the non-parole period is at least three years.

72 While such a construction may be open because there is nothing in the Sentencing Act expressly prohibiting it, it seems to me that to apply that construction in practice inevitably will produce incongruent outcomes.

73 In my opinion, the better view is that, unless there is some compelling reason to the contrary (and, as presently advised, I cannot think of one), and provided the preconditions mentioned earlier are present, a notional minimum sentence of three-and-a-half years' imprisonment should be regarded as applying to every offence of aggravated carjacking, whether charged as a single offence or as one of multiple such offences on an indictment.

74 Thirdly, initially at least, I was troubled by the fact that this sentence does appear to have been an 'outlier by a notable degree', to use the words in the Director's written case, when compared with the other sentences imposed for this offence thus far. However, when regard is had to the fact that only nine such sentences were in that survey, and the fact that, contrary to my view of the correct approach to sentencing for this offence, some of those individual sentences were less than three-and-a-half years' imprisonment, the pattern of sentencing revealed by those decisions is of less weight than it first appeared.

75 Finally, I turn to the ultimate question: whether the sentence, or any aspect of it, is manifestly excessive. Like McLeish and Emerton JJA, while I regard both the individual sentence imposed for the carjacking and the non-parole period as stern, I am not persuaded that either aspect of the sentence is manifestly excessive.

76 While some may have imposed a lesser sentence for this offence of aggravated carjacking, and a lesser non-parole period, and while only a minimum level of violence was employed to effect the victim's removal from the car and the resulting injuries were minor, the fact is that it was a particularly nasty thing to do to a man of 84. Moreover, the applicant callously left the victim prostrate on the roadway, where he was exposed to the risk of serious harm. The CCTV of the incident, which is quite confronting, shows just how shaken-up the victim was by the whole incident. It must have been a terrifying experience.

77 Even allowing fully for the factors in mitigation, I can understand how the judge arrived at this sentence in the sound exercise of the sentencing discretion. That others might have imposed a lesser sentence is not to the point, unless some aspect of it is manifestly excessive. And, as I have said, I am not persuaded to that conclusion.

[1] Victoria, Parliamentary Debates, Legislative Assembly, 1 September 2016, 3329 (Martin Pakula, Attorney-General).

[3] Section 10A of the Sentencing Act 1991 sets out the circumstances where a court may make a finding that a special reason exists for the purposes of s 10AD. Although on the plea the applicant's counsel advanced an argument that a special reason pursuant to s 10A existed, the judge's finding that there was no such reason was not challenged before this Court.

[4] DPP v Mammoliti [2019] VCC 47 ('Reasons').

[5] Report of Alice Crole dated 7 January 2019.

[6] A report prepared for the plea hearing by Leanne Kennedy dated 26 December 2018 and an earlier report by Nerissa Cordy dated 2 September 2016.

[16] Citing Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381, 396 [48]; [2013] HCA 40 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

[17] Citing DPP (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134, 144 [42]; [2013] VSCA 149, [42] (Harper JA, Weinberg and Priest JJA agreeing at [1] and [55]) ('Haidari').

[18] Citing DPP v Hudgson [2016] VSCA 254.

[19] Citing Haidari [2013] VSCA 149; (2013) 230 A Crim R 134, 144 [42]; [2013] VSCA 149 [42] and Atherden v Western Australia [2010] WASCA 33, [42]-[43] (Wheeler JA, McLure P and Owen JA agreeing at [1] and [3]) ('Atherden').

[20] [2019] VSCA 286.

[21] Ibid [4], [55] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[23] Citing Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 372 [30]; [2005] HCA 25, [30] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[24] See Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658, [60]-[61]; [2012] VSCA 302, [60]-[61] (Maxwell P, Neave JA and Coghlan AJA).

[25] As the offence is a new one, we take the applicant's reference to sentences 'of a higher level' to be refer to sentences for comparable offending, such as armed robbery.

[26] (2013) 230 A Crim R 134; [2013] VSCA 149.

[27] Migration Act 1958 (Cth).

[28] Haidari [2013] VSCA 149; (2013) 230 A Crim R 134, 144 [40]-[41]; [2013] VSCA 149, [40]-[41] (Harper JA, Weinberg and Priest JJA agreeing).

[29] Ibid 144-5 [42], quoting Atherden [2010] WASCA 33, [42]-[43] (Wheeler JA, McLure P and Owen JA agreeing).

[30] [2016] VSCA 254, [6] (Weinberg, Whelan and Priest JJA); see also [106].

[33] Mostly knives, but in one case a firearm (DPP v Najjar [2018] VCC 206) and in another an imitation firearm (DPP v Amanamoi [2018] VCC 1507).

[34] DPP v Kennedy [2018] VCC 1769; DPP v Brady [2018] VCC 1501; DPP v Arvidson [2017] VCC 1264; DPP v Palmer [2018] VCC 2011; DPP v Backer [2018] VCC 592; DPP v Proctor [2019] VCC 130; DPP v Bysouth [2018] VCC 1471.

[35] DPP v Amanamoi [2018] VCC 1507; DPP v Proctor [2019] VCC 130.

[36] DPP v Najjar [2018] VCC 206.

[37] See DPP v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 450 [68]; [2017] HCA 41, [68] (Kiefel CJ, Bell and Keane JJ).

[38] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89]; [2011] VSCA 157, [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).