Sabbatucci v The Queen [2021] VSCA 340

1 The appellant ('NS') pleaded guilty to one charge each of aggravated carjacking, driving whilst disqualified and driving in a manner dangerous. He received sentences of imprisonment of 5 years, 4 months and 12 months respectively. With cumulation of 6 months of the sentence for dangerous driving on the sentence for aggravated carjacking, the total effective sentence was 5 years and 6 months' imprisonment. A non-parole period of 3 years and 6 months was fixed.

2 As McLeish and Emerton JJA explained in Mammoliti v The Queen,[1] legislation enacted in 2016 created a special sentencing regime for carjacking. The offence of aggravated carjacking carries a maximum sentence of 25 years' imprisonment.[2] Section 10AD of the Sentencing Act 1991 requires the imposition of a term of imprisonment for that offence, and the fixing of a non-parole period of not less than 3 years, unless the court finds under s 10A that 'a special reason' exists.

3 In the present case, NS relied on a combination of factors, one of which was his deprived childhood, in support of a submission to the sentencing judge that he should find that a special reason existed. If that submission were accepted, it was said, his Honour should consider imposing a combination sentence (imprisonment combined with a community correction order).

4 As will appear, his Honour rejected the 'special reason' submission. One of the grounds of appeal is that his Honour erred in so doing. The other grounds contend that the judge erred in not treating NS's childhood deprivation as engaging the principles articulated in Bugmy v The Queen,[3] and in assessing the objective gravity of the carjacking offence.

5 For reasons which follow, we would dismiss the appeal. His Honour was plainly correct to find that there was no 'special reason' and his assessment of the gravity of the carjacking offence was unimpeachable. As to the significance of the appellant's childhood deprivation, his Honour clearly acknowledged its relevance to the sentencing task, while correctly finding that the appellant had not suffered 'profound disadvantage' of the kind referred to in Bugmy.

6 As the Court made clear recently in Director of Public Prosecutions v Herrmann,[4] an offender's disadvantaged background will always be relevant to the sentencing task. Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.

7 The carjacking occurred after a 68-year-old man ('T') parked his car outside a milk bar. T was the only person in the car. As he was in the process of opening the driver's door to get out, NS approached him from behind and demanded the keys to his vehicle, saying 'give me the fucken keys' or words to that effect.

8 NS did so while brandishing a knife that T later estimated to be about five inches in length. Upon seeing it, T readily complied with the demand and handed over his keys. He then retrieved a bag from the front passenger seat and got out of the vehicle. NS then took possession of the vehicle. T estimates that the entire incident took about 30 seconds.

9 After NS got into the driver's seat, he revved the engine, reversed out of the car park and proceeded to drive away. This initial period of driving gave rise to the charge of driving whilst disqualified. The judge noted that, at the time, NS was part- way through a 2 year disqualification period, imposed by the Magistrates' Court when he was sentenced for numerous driving offences, including nine of drive whilst disqualified and one each of theft of a motor vehicle and attempted theft of a motor vehicle.

10 A short time later, NS performed a U-turn and headed back in the direction of the milk bar in which, by then, T had sought refuge. As NS drove past, he honked the horn in what the judge described as 'a rather callous and arrogant act'.[5] He then drove away from the scene to a friend's house, where he removed the registration plates of the vehicle.

11 A short time later, NS resumed driving the vehicle. He overtook a number of other vehicles by using the left-hand bike lane. As he did so, he was speeding and swerving in and out of traffic. He then drove at a high speed down a service lane, before driving through a car park.

12 As the judge recorded, his manner of driving caused considerable concern to those who witnessed it. Six calls were made to police by various members of the public in relation to the dangerous and erratic driving. One witness estimated the speed of the car to be between 90 and 100 kilometres per hour. The applicable speed limit on the road was 60 kilometres per hour, and in the service lane it was 50 kilometres per hour. This episode of driving forms the basis of the charge of driving in a manner dangerous.

13 When arrested, NS told police that he had just got out of prison and that he had wanted a car so that he could go and see his son in Edithvale. As the judge recorded, NS had been released from prison some five weeks earlier. The judge noted, however, that at no point between taking possession of the vehicle and his subsequent arrest 45 minutes later had NS appeared to take any active steps to visit his son.

14 In a detailed written submission filed on the plea, defence counsel (who did not appear on the appeal) identified the following features of NS's disadvantaged background:

• exposure to domestic violence between his parents from an early age;
• drug consumption from the age of 12;
• learning difficulties, attention problems and behaviour issues from an early age because of ADHD; and
• limited schooling, in that he did not complete Year 9.

15 In addition, reliance was placed on the fact that, before NS was 10, the Department of Health and Human Services had become involved, with the result that, for about three or four years, he lived away from his parents on and off. He was placed in foster homes and had a variety of experience with foster parents. According to the plea submission, NS:

describes trauma from this period with the trauma being a child that was going house to house, mum and dad fighting, family not together, and then the family trying to get back together.

16 Two other matters were relied on which, in our view, could not properly be regarded as aspects of childhood deprivation. The first is that, from the age of 15, NS worked with his father doing concreting. This was no doubt hard work, though trial counsel's description of it as 'doing hard labour' was overstated. The second was the death of his mother in his early adulthood. This was a relevant feature of NS's history but could not be regarded as an aspect of childhood deprivation.

17 The plea submission relied on what was said by the High Court in Bugmy and, more recently, by this Court in Director of Public Prosecutions v Drake.[6] In the first case, the High Court referred to 'the effects of profound childhood deprivation';[7] in the second, this Court referred to the 'profound dysfunction, disadvantage and abuse' experienced by the offender.[8] The submission for NS conceded that his background was not 'as shocking as some ... that come before the court'. Nonetheless, it was submitted, the circumstances relied on amounted to 'real disadvantage' and the Bugmy principles should be given 'full weight'.

18 In his reasons, the judge recorded each of these matters. No complaint is made about the factual accuracy of what his Honour said. Complaint is made, however, about his Honour's evaluation of the significance of NS's childhood experiences, which was expressed as follows:

Until more recent years, you enjoyed a consistent and commendable work history. That is very much to your credit and suggests that if you are able to overcome your problems with drug addiction and unresolved grief, and remain medication compliant for your ADHD condition, there is every reason to think that you can obtain and maintain employment once released from custody, whether on parole or at the expiration of your sentence.

I accept that you have been trying to take some active steps to improve your employment and rehabilitation prospects through prison work and education opportunities. Again, that is to your credit, and I take it into account.

Your lengthy and stable employment history together with the fact that you have been able to be part of two significant personal relationships, one of which was lengthy and the other of which has afforded you the added opportunity of parenting, demonstrates a degree of stability in your adult years that is somewhat surprising given the difficult childhood you experienced on account of the dysfunctional relationship of your parents, unstable accommodation, interrupted and shortened education, and early exposure to alcohol and drug use.

Whilst I will of course have regard to that difficult childhood, including the early and consistent resort to drugs which, at least to some extent, explains aspects of your criminal record, I do not share your counsel's view that your disadvantaged background is of the type or order that was discussed by the High Court in Bugmy's case when dealing with the effects of profound childhood deprivation.

Your background and personal history do, however, inform the court about your personal circumstances and some of your past offending. It is not surprising that you mixed with other disenfranchised youths and engaged in alcohol consumption and drug use. It may well have played a part in your early exit from the education system and thereby limited the scope of future job opportunities, although your ADHD was also a likely contributing factor.

Unlike some other cases, your offending does not appear to be causally related to a significantly disadvantaged background or to represent the very type of criminal conduct to which you were exposed in your childhood. Nor were you driven by your earlier experiences to resort to this offending in order to obtain the necessary money to live or buy drugs to feed an addiction. In a sense, that is a positive thing and suggests that the future is not yet bleak. You have a proven capacity to engage in meaningful employment and relationships and can do so again providing you successfully complete the necessary treatment and counselling for your drug addiction and unresolved grief. Taking the appropriate medication for your ADHD will also be important.[9]

19 Counsel for the appellant accepted the judge's finding that his 'difficult childhood' did not constitute 'profound childhood deprivation' of the kind discussed by the High Court in Bugmy. Nor was issue taken with the finding that there was no causal connection between this offending and the matters relied on to establish the appellant's 'real disadvantage'. Counsel also accepted that, as is apparent from the sentencing reasons, the judge took into account the appellant's background in arriving at the sentence.

20 As clarified in the course of oral argument, the real complaint was that the judge should have addressed the question whether the matters relied on justified the conclusion that the appellant's moral culpability for the offending was reduced. In the course of argument, counsel submitted that the circumstances might have warranted no more than a 'very moderate reduction in the assessment of [NS'] moral culpability' but maintained that his Honour had erred by not addressing that question.

21 In our opinion, there was no error. Importantly, although the defence submission on the plea invoked 'the Bugmy principles', there was no express submission that the appellant's moral culpability should as a result be seen as reduced. The only submission made was that:

In the circumstances of Mr Sabbatucci the Court should afford some moderation of the sentence that would otherwise be imposed.

22 Moreover, it will always be a matter for evaluation by the sentencing court whether the circumstances of disadvantage relied on warrant the conclusion that the offender should be viewed, on that account, as less morally blameworthy than another person committing the same offence who did not have the same deprived background. Such a conclusion does not, of course, depend upon the court first being satisfied that the circumstances in question constitute 'profound disadvantage' or 'profound deprivation'. It will be a question of fact and degree in every case.

23 So much is apparent from previous decisions of this Court. For example, in Bui v The Queen,[10] the Court said:

The determination of an offender's moral culpability does not depend solely on an objective assessment of the actions and conduct of the particular offender. Such a determination necessarily involves a careful consideration of matters that are personal to the offender, and which may provide an appropriate or some explanation of how the offender came to commit the offence. An offender's personal history, including deprived and isolated circumstances, are matters which inform the notion of 'individualised justice'; they are always matters to which careful consideration should be given by a sentencing judge as bearing, in perhaps only a limited way, upon his level of moral culpability.[11]

24 More recently, in Berry v The Queen, the Court said:

His difficult upbringing was noted by the judge, who applied the principles explained in Bugmy. The applicant's mother suffered from drug abuse and has a criminal record leading to an absence of a steady environment for the applicant. The evidence did not permit any detailed findings in this regard and the level of deprivation does not rise to the type considered by the High Court in Bugmy. Nevertheless it moderates, at least to some modest degree, the moral culpability of the applicant. He was diagnosed with ADHD as a teenager, began using cannabis at 14 and turned to methamphetamine and heroin in his late teens.[12]

25 Earlier this year, in Herrmann, the Court said:[13]

It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years. As the present case graphically illustrates, childhood trauma can permanently damage - and seriously distort - a person's view of the world around them and their understanding of social norms. Thus, in Freeburn v The Queen [No 2], it was accepted that the offender's 'background, of deprivation and abuse, played a material role in shaping his responses, and thus in his offending'. In Snow, the Court drew attention to 'the impact on the decision-making of individuals of growing up, and living, in circumstances of prolonged and widespread social disadvantage'.[14]

26 The question for the sentencing court is whether, and to what extent, 'the moral judgment expressed through sentencing' is affected by the circumstances of disadvantage relied on. As mentioned at the outset of these reasons, that evaluation will depend on the Court's assessment of the nature and circumstances of the offence, the nature and severity of the disadvantage and whether it can be seen to be in any way explanatory of the offending conduct.

27 In the present case, the judge noted that the appellant had a 'lengthy and stable employment history' and had been able to be part of two significant personal relationships, one of which was lengthy and the other of which had afforded him the added opportunity of parenting.[15] In his Honour's view, this history demonstrated:

a degree of stability in your adult years that is somewhat surprising given the difficult childhood you experienced on account of the dysfunctional relationship of your parents, unstable accommodation, interrupted and shortened education, and early exposure to alcohol and drug use.[16]

28 In the circumstances, in our view, it was well open to his Honour to conclude that no question arose of a reduction in moral culpability. Nevertheless, as we pointed out, his Honour expressly took all of the relevant circumstances into account in his assessment of the appellant and the determination of an appropriate sentence.[17]

29 As noted earlier, the judge was obliged to fix a non-parole period of at least 3 years, unless he was persuaded that a 'special reason' existed. Relevantly, the appellant had to persuade his Honour that there were

substantial and compelling circumstances that are exceptional and rare and that justify [making such a finding].[18]

30 For that purpose, defence counsel on the plea relied on a combination of four matters: childhood deprivation, early drug addiction, the murder of his mother and the additional restrictions in prison as a result of COVID-19. His Honour was not persuaded that, even when considered in combination, these matters amounted to a special reason in the statutory sense.

31 In our respectful opinion, that conclusion was well open.

Of course, any offence of aggravated carjacking is, by its very nature, intrinsically serious. That view is only reinforced by the fact that Parliament has seen fit to fix the very high maximum penalty that it has and the requirement for the sentencing court to fix a mandatory minimum non-parole period of at least 3 years unless satisfied that a special reason exists.

Whilst acknowledging the inherent gravity of this type of offence, counsel for each of the parties sought to persuade the court as to where on the spectrum of seriousness, for this type of offence, this particular example fell. The prosecution submitted that it was at the low to medium point whereas the defence argued that it was at the lower end of the spectrum.

It is important for the court to bear in mind what the essential features of the particular offence under consideration are, rather than simply placing a label or descriptor to it. In particular, it is necessary to assess and consider what the offender actually did in carrying out the offence under consideration.

In that context, I note that whilst Mr Sabbatucci did not physically assault or injure the victim, his behaviour was nonetheless very intimidating and very frightening, involving as it did a tactical surprise approach from behind and a forceful demand at knifepoint. The use of such a weapon automatically places this offending into a more serious category than some other cases where a weapon was not used. The timing of the offence and the targeting of this victim were deliberate rather than coincidental. They were designed to maximise the chances of successfully carrying out this offence. Caught by surprise whilst still seated, the 68-year-old victim was in a very vulnerable position and not well placed to put up any physical or verbal resistance to a younger and fitter armed assailant, even if he was inclined to want to do so.

Beyond that, however, the offending was relatively spontaneous in that it involved Mr Sabbatucci taking advantage of a situation that presented itself rather than resulting from a lengthy period of planning. In relation to the relative spontaneity of this offence and Ms Ferrari's opinion regarding

Mr Sabbatucci's ADHD condition, I am prepared to accept that he may not have appreciated the full consequences of his criminal conduct at the time. However, that is not to say that he did not realise that what he was doing was seriously wrong or that he did not appreciate that it would likely traumatise the victim. His conduct, including the brandishing of the knife, was deliberately engaged in so as to create that fear and therefore make it more likely that he would gain possession of the victim's vehicle. And, as I have already noted, the victim was significantly impacted by the offending. It was brazen offending carried out in broad daylight in a public street. Such offending engenders concern not only in the immediate victim, but also in members of the broader community, about their ability to carry out their normal daily activities safe from random and aggressive criminal acts.

In my view, all relevant things considered, this was a relatively serious example of the offence which, on proper assessment, is to be viewed as falling towards the middle part on the spectrum of seriousness rather than at the low end.[19]

33 Complaint is made about the highlighted statement that 'the use of such a weapon automatically places this offending into a more serious category than some other cases where a weapon was not used'. As the respondent properly acknowledged, the use of a weapon was the 'qualifying' circumstance which brought this offence within the scope of the more serious offence of aggravated carjacking. The other such circumstance is the causing of injury.

34 In our view, the judge's assessment of the objective gravity of the offence is unimpeachable. His Honour's description of the relevant features of the carjacking fully justified his rejection of the - somewhat surprising - defence submission that it was 'at the bottom end of the level of seriousness' for this offence. As appears from his Honour's description, the appellant's use of a knife to create fear was the key indicator of the seriousness of this offence.

35 In those circumstances, nothing turns on his Honour's use of the word 'automatically'. As this case illustrates, the use of a weapon in aid of a carjacking will almost always heighten the objective gravity of the offence (of aggravated carjacking). This is so irrespective of the fact that the use of the weapon is the 'qualifying' circumstance for aggravated carjacking.

[1] [2020] VSCA 52, [8]-[11].

[2] Crimes Act 1958 s 79A.

[3] (2013) 249 CLR 571; [2013] HCA 37 ('Bugmy').

[4] [2021] VSCA 160 ('Herrmann').

[5] DPP v Sabbatucci (Unreported, County Court of Victoria, Judge Gamble, 15 July 2020) [6] ('Reasons').

[6] [2019] VSCA 293.

[7] Bugmy [2013] HCA 37; (2013) 249 CLR 571, 595 [51]; [2013] HCA 37 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[8] [2019] VSCA 293, [32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[9] Reasons, [57]-[62] (emphasis added).

[10] [2015] VSCA 313, [44] (Redlich and Whelan JJA).

[11] Bugmy [2013] HCA 37; (2013) 249 CLR 571, 595 [44]; [2013] HCA 37 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); DPP v OJA [2007] VSCA 129, [64] (Nettle JA); DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 468 [46]; [2009] VSCA 220 (Maxwell P, Redlich JA and Robson AJA); Marrah v The Queen [2014] VSCA 119, [16] (Redlich and Tate JJA); DPP v Zhuang [2015] VSCA 96, [56] (Redlich, Priest and Beach JJA); Miller v The Queen [2015] NSWCCA 86, [99] (Schmidt J); Morrison v The Queen [2015] VSCA 249, [46] (Kaye JA) ('Morrison').

[12] [2019] VSCA 291, [30] (Maxwell P and Niall JA) (citation omitted).

[13] [2021] VSCA 160, [46] (Maxwell P, Kaye, Niall, Forrest and Emerton JJA).

[14] DPP v Snow [2020] VSCA 67, [79] (Maxwell P, Beach JA and Croucher AJA).

[17] See also Morrison [2015] VSCA 249, [42], [46].

[18] Sentencing Act 1991 s 10A(2)(e).

[19] Reasons [30]-[35] (emphasis added).