SUPREME COURT OF VICTORIA
COURT OF APPEAL	
	
S EAPCR 2023 0005	

DANIEL CASTILLO (A pSEUDONYM)	Applicant	
		
v		
		
The King	Respondent	

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JUDGES:	BEACH and TAYLOR JJA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	14 June 2023  	
DATE OF JUDGMENT:	20 June 2023	
MEDIUM NEUTRAL CITATION:	[2023] VSCA 150	
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v Castillo (a pseudonym) [2022] VCC 2180 (Judge Morrish)  	

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CRIMINAL LAW – Appeal – Sentence – Armed robbery – Intentionally causing serious injury in circumstances of gross violence – Sentence of six years imprisonment – Non-parole period of three years and three months – Applicant aged 17 at the time of offending – Whether judge erred in finding that exceptional circumstances enabling the making of a Youth Justice Centre Order were not established – Whether judge erred in failing to moderate general deterrence for a young offender – Whether sentence manifestly excessive – Leave to appeal refused.

Sentencing Act 1991, ss 5(2H), 32; Children, Youth and Families Act 2005, ss 360–362.

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Counsel	
Applicant:		Mr M D Stanton with Mr H Moodie	
Respondent:		Ms A Moran	
	
Solicitors	
Applicant:		James Dowsley & Associates	
Respondent:		Ms A Hogan, Solicitor for Public Prosecutions	

BEACH JA
Taylor JA:

Introduction and Overview
1	On 23 September 2021 the applicant pleaded guilty to one charge of armed robbery, one charge of intentionally causing serious injury in circumstances of gross violence and one charge of trafficking in a drug of dependence.
2	The first two charges arose from the same May 2021 incident. In short, the applicant, then aged 17 years, had arranged to meet the victim, then aged 16 years, in order to purchase electronic cigarettes (known colloquially as ‘vapes’) from him. At the meeting the applicant produced a large butcher’s knife. As the victim, still in possession of the vapes, attempted to flee, the applicant gave chase, unsheathed the knife and stabbed the victim in the back. The applicant kicked the victim to the upper body before stabbing him multiple times to the chest as he lay incapacitated on the ground. He also slashed the victim’s fingers, scalp and neck before fleeing the scene with the vapes. The third charge arose when police later executed a search warrant at the applicant’s apartment block and found cannabis along with vapes and the knife.
3	Following a plea, which continued over five dates between March and December 2022, the applicant was sentenced on 13 December 2022 as follows.
	Charge on Indictment		Offence		Max Penalty		Sentence		Cumulation	
	1		Armed robbery		25 years		3 years		1 year	
	2		Intentionally cause serious injury in circumstances of gross violence		20 years		5 years		Base	
	3		Trafficking in  a drug of dependence		15 years		1 month			
	Total Effective Sentence:		6 years’ imprisonment	
	Non-Parole Period:		3 years and 3 months’ imprisonment	
	Pre-sentence Detention Declared:		18 days	
	Section 6AAA Statement:		Total Effective Sentence: 9 years
	Non Parole-Period: 4 years and 10 months	
	Other Relevant Orders: Forfeiture order	
4	The applicant now seeks leave on the following grounds:
1.	The sentencing judge erred when considering whether exceptional circumstances had been established.
2.	The sentencing judge erred in failing to properly moderate general deterrence for a young offender who was a child at the time of the offending.
3.	The sentences imposed on charges 1, 2 and 3 are manifestly excessive. 
5	For the reasons that follow, leave to appeal should be refused.
Summary of offending
6	It is necessary to give some further detail of the offending.
7	The applicant and the victim were unknown to each other. On 21 May 2021 via Snapchat, the applicant arranged with the victim to meet at the North Melbourne railway station to purchase vapes. They met as arranged. The victim attended with a friend. Together all three walked to a nearby dog park. 
8	The applicant and victim sat together on a bench. The latter’s friend stood nearby. The victim produced the vapes from his backpack and the applicant counted $300 in cash from his wallet. The applicant put his wallet back into his own backpack. He picked up the vapes and put them back into the victim’s backpack before grabbing the backpack. He then reached under his shirt and produced a sheathed knife. The victim, who was still holding his backpack, snatched it away and attempted to flee. The applicant gave chase, unsheathing the knife in the process. It was a hunting style knife measuring 30 centimetres in length. Its blade measured about 18 centimetres. As the victim jumped a fence, the applicant stabbed him in the back, causing him to trip and fall. As he fell to the ground, the applicant kicked him to his upper body.
9	The victim was unable to move from his position of lying on his back on the ground. The applicant stood over him and inflicted multiple stab wounds to the chest and slash wounds to the fingers, scalp and neck. The applicant then took the victim’s backpack and fled the scene. He removed the jumper he had been wearing. Upon his arrival at his apartment block, the applicant placed the victim’s backpack containing the vapes and his own jumper, together with the knife and his own backpack inside a fire extinguisher cabinet in a public area of the building. These items, together with zip lock bags containing the green vegetable matter later identified as cannabis, were located by police on 1 June 2021. 
10	The victim’s injuries were very serious. 
11	Paramedics determined that he had suffered significant haemorrhaging, with multiple large clots identified. Upon presentation at hospital, the victim was in respiratory arrest. He required intubation and the insertion of a right intercostal catheter to drain 1.3 litres of blood. He further required the insertion of both a cannula into his bone marrow and a femoral arterial line with a right internal jugular ceratoid venous catheter. He experienced significant haemodynamic instability and consequently required a blood transfusion. The four to five centimetre stab wound beneath his right nipple required surgical intervention and post-operative admission to the intensive care unit. Absent surgical intervention, that stab wound was life-threatening. The victim was discharged from hospital after 10 days.
Sentencing reasons
12	In extensive and meticulously drafted sentencing reasons the sentencing judge commenced with noting the maximum penalties applicable to each charge and summarised the applicant’s offending. 
13	Her Honour then detailed the procedural history of the matter. Of note, with respect to this application, was that at the conclusion of the plea hearing on 14 June 2022, the matter was listed for sentence on 14 July 2022. However, at a mention on 24 June 2022, her Honour acceded to the applicant’s request that the sentence be adjourned until the end of the school year to allow him to complete Year 12. A date of  21 November 2022 was fixed for further plea. On that return date new counsel appeared for the applicant and applied for the matter to be transferred to the Children’s Court. Her Honour refused that application. 
14	The sentencing judge next considered a number of pertinent sentencing factors, namely the gravity of charge 2, the early plea of guilty, the impact of COVID-19, remorse, the applicant’s personal circumstances and his criminal history. 
15	As to the applicant’s criminal history, her Honour noted that on 30 January 2020, the applicant appeared in the Children’s Court with respect to three charges of armed robbery, one charge of false imprisonment, one charge of theft and two charges of obtaining property by deception. He was released upon entering a good behaviour bond in the amount of $100. The instant offences were committed about four months after the applicant had completed the required period of good behaviour.
16	Her Honour noted that there was ‘a remarkable resemblance’ between the prior and current offending. That prior offending spanned three separate incidents in which the applicant, either alone or in company, lured his victims to public places where he robbed them using a knife to enforce his demands and either used or threatened violence whilst they were defenceless and/or incapacitated. The sentencing judge stated that the applicant’s crimes were escalating in severity and that despite the previously expressed remorse and ‘merciful and lenient disposition’ he received in the Children’s Court, the applicant had not reformed or been deterred from similar offending.
17	The judge next summarised the evidence given about the applicant by his Youth Justice case manager, Ms Amy Taleb, which was overwhelmingly positive. Based on that evidence her Honour stated that the applicant had ‘shown remarkable commitment and dedication’ towards his rehabilitation. The judge quoted Ms Taleb as saying that the applicant was ‘the best compliance wise’ of all the youths she had worked with and had ‘significant insight’ into his offending. 
18	Further material, including a psychological report of Dr Tiffany Lewis was also summarised. Her Honour noted that the circumstances of the offending as described by the applicant to Dr Lewis did not completely tally with the instructions given upon his plea and were inconsistent with the applicant’s guilty plea to the drug trafficking charge. The judge also expressed concern at the applicant’s motive for the offending as told to Dr Lewis. He wanted his ‘own money’, rather than that provided by his family, because money would give him power and control. Dr Lewis offered no formal diagnosis of any psychological condition, behavioural disturbance or personality disorder but did consider that the applicant was then experiencing symptoms of anxiety and depression. Dr Lewis considered that those symptoms would likely be exacerbated in a custodial setting.
19	The sentencing judge next referred to the fact that the applicant had successfully completed Year 12 and gained an Australian Tertiary Admission Rank. Her Honour also referred to a letter of support written by the applicant’s mathematics teacher. 
20	Her Honour then referred to the statutory regimes applicable to sentencing young offenders, as well judicial principles concerning the same and the submissions of the Crown and the applicant as to the appropriate sentencing mechanism and outcome.
21	The sentencing judge concluded that analysis in the following terms:
[168]	I have adjourned your case on numerous occasions to give you every opportunity to demonstrate why you should be afforded the lenient approach to sentencing as contended for by your counsel. I have agonised over this difficult sentencing exercise. On the one hand, you are young, you have complied with strict bail conditions including participating in programs directed at your rehabilitation, you have pleaded guilty and shown some remorse, there are no charges pending, and you have strong family and community support. On the other hand, this is not the first time you have committed an offence involving violence with a knife. Indeed, the escalation of your use of violence with knives is most concerning. The armed robbery was premeditated and the injuries you inflicted while committing that crime were really serious and life threatening. In my view, the sentencing options available under the Children, Youth and Families Act are inadequate to respond appropriately to your offending. You will be sentenced under the Sentencing Act.
[169]	As I stated before, the Prosecution maintains its submission that a custodial penalty is warranted in this case, and that it is open to find that exceptional circumstances have been shown which enable the Court to impose a Youth Justice Centre Order, should the Court see fit to do so.
[170]	After careful examination of all the circumstances and the authorities to which I have referred and to which the parties have referred, I do not consider that exceptional circumstances have been established. In short, the concatenation of factors relied upon do not, in my judgment, amount to circumstances that are out of the ordinary course, unusual, or special. Moreover, the gravity of your offending together with all the matters to which I have referred, compel me to conclude that an aggregate sentence of four years’ detention in a Youth Justice Centre for all the offences before me is outside the appropriate sentencing range. Even less appropriate would it be to release you on a Youth Attendance Order as recommended by Ms Taleb.
22	In turning to the sentences to be imposed, her Honour stated:
[171]	I take into account all of the matters personal to you to which I have referred, including your youth, your compliance with the strict bail conditions, and your prospects of rehabilitation. I must, however, also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. I am required to take into account the question of the protection of the members of the community from you and bear in mind the likelihood of your re-offending. I am also required to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
[172]	In all the circumstances, I have no alternative but to impose terms of imprisonment.
Statutory Regimes
23	In light of the proposed grounds of appeal, it is convenient to detail the salient features of the relevant statutory regimes applicable to the applicant’s offending and the dispositions available to the sentencing judge. 
24	The applicant was aged 17 years at the time of his offending. He was a ‘child’ as defined under the Children, Youth and Families Act 2005 (‘CYFA’) and also a ‘young offender’ as defined under the Sentencing Act 1991 (‘Sentencing Act’).
25	As noted above, on 21 November 2022 the sentencing judge refused the application to transfer the matter to the Children’s Court. That being so, the sentencing judge was presented with a choice to sentence the applicant either under the CYFA or the Sentencing Act. 
26	The two main charges to which the applicant pleaded guilty fall within certain categories depending upon the age of the offender. 
27	Under the Sentencing Act and when committed by an adult, armed robbery is a Category 2 offence and causing serious injury intentionally in circumstances of gross violence is a Category 1 Offence. Neither category was applicable to the applicant. However, causing serious injury intentionally in circumstances of gross violence is also a Category A serious youth offence, as defined in the CYFA.
28	If sentenced under the CYFA, the sentencing exercise would be guided by Division 1 of Part 5.3 of that Act. 
29	Section 360(1) of the CYFA establishes a hierarchy of sentencing outcomes. Section 361 prevents a court from imposing a sentencing referred to in any paragraph of s 360(1) unless it is satisfied that it is not appropriate to impose a sentence referred to in any preceding paragraph. Possible sentences include, relevantly, a conviction with a youth attendance order (‘YAO’) and a conviction with detention in a youth justice centre (‘YJC’). The County Court may make an order detaining a young offender in a YJC for a maximum period of four years. Section 362(1) of the CYFA delineates a list of matters to which the court must, as far as practicable, have regard to when fixing a sentence. The need to protect the community, or any person, from the violent or other wrongful acts of the child must be considered in all cases where the sentence is for a Category A or B serious youth offence. General deterrence is a matter to which regard must not be had under the CYFA.
30	Under the Sentencing Act, mandatory orders of imprisonment apply to both armed robbery and causing serious injury intentionally in circumstances of gross violence except in particular circumstances. Where either offence is committed by a child, those provisions do not have direct application. Rather, s 5(2J) requires the court, when sentencing a child aged 16 years or more but under 18 years at the time of the commission of an indictable offence, to have regard to any requirement in the Act that a specified minimum non-parole period be fixed or a specified minimum term of imprisonment be imposed, had the offence been committed by an adult. 
31	Under the Sentencing Act, the court may sentence a young offender to a YJC instead of adult prison where a sentence involving confinement is justified and the court believes that there are reasonable prospects for the rehabilitation of the young offender and that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison. In determining whether to make a YJC order the court must have regard to the nature of the offence and the age, character and past history of the young offender. In sentencing a young offender for a category A serious youth offence, the court must not make a YJC order unless the court is satisfied that exceptional circumstances exist.
32	It follows that with respect to the offence of causing serious injury intentionally in circumstances of gross violence (charge 2), the sentencing judge could not impose a YJC order unless first satisfied that exceptional circumstances existed. 
Applicant’s contentions
Ground 1
33	The applicant argues that the sentencing judge, having determined to sentence the applicant under the Sentencing Act, failed to reach the correct conclusion on whether exceptional circumstances existed such as to allow her Honour to impose a YJC order on charge 2. 
34	Against the background of the prosecution’s concession that it was open to find that exceptional circumstances had been established, the applicant now relies upon an exchange between defence counsel and the sentencing judge during the plea to submit that her Honour adopted ‘an atomistic and erroneous approach’ to this determination in concluding that because each matter was itself not out of the ordinary, the circumstances could not be regarded as exceptional. It is submitted that that such an approach sets the bar ‘far too high’ and the applicant is entitled to rely upon matters in combination.
35	Those matters before the sentencing judge were rehearsed in this application. They were that the applicant was a child when he offended, his early plea of guilty and remorse, the additional impact and relevance of the COVID-19 pandemic, his very strong prospects of rehabilitation, his outstanding performance on intensive youth bail over 17 months along with his completion of courses and rehabilitative programs, his completion of Year 12, that he had abstained from alcohol and drugs and avoided further offending, that he had not previously served a custodial sentence and that there was a risk of deterioration in his mental health in custody along with the likely deleterious effects of adult imprisonment on a young offender. 
Ground 2
36	The applicant argues that in determining the sentences to be imposed, the sentencing judge ‘emphasised general deterrence.’ This is a reference to her Honour’s statement quoted above in paragraph 22 that general deterrence was ‘of importance… in a case such as this.’
37	The applicant submits that although general deterrence is applicable in the sentencing of young offenders under the Sentencing Act – as opposed to the sentencing of children under the CYFA – it was of limited weight in the sentencing exercise relevant to the applicant because the prosecution conceded it to be so.
Ground 3
38	The applicant argues that the sentencing judge gave excessive weight to the applicant’s prior criminal history, and to the principles of general deterrence, community protection and denunciation notwithstanding that he had engaged in significant rehabilitation over 17 months as part of intensive youth bail. The applicant further argues that the principle of parsimony was not applied and it was not open to the sentencing judge to sentence him to adult imprisonment.
Respondent’s contentions
Ground 1
39	The respondent submits that while the Crown conceded that it was open for the sentencing judge to find that exceptional circumstances existed as the necessary pre-condition to the imposition of a YJC order, it was a matter for the sentencing judge alone to make that determination. As to the complaint by the applicant that her Honour took an ‘atomistic’ approach to the issue, the respondent argues that the Reasons make plain that the sentencing judge considered the ‘concatenation of factors relied upon’. The respondent also submits that the combination of factors relied upon by the applicant point to no more than him being capable of conducting himself as a normal teenager should. That is not out of the ordinary. 
40	Further, the respondent argues that even if the judge had found that exceptional circumstances had been established, her Honour was not persuaded that a YJC order with a maximum term of 4 years was appropriate given the gravity of the offending. That finding, it is argued, was well within the sound exercise of her Honour’s sentencing discretion.
Ground 2
41	The respondent submits that that the sentencing judge gave careful consideration to the authorities addressing the evident tension between mitigating the effect of youth and the need for general deterrence in cases of serious violent offending. In all the circumstances there was no error in her Honour’s conclusion that general deterrence remained an important factor in the sentencing exercise, nor that denunciation and community protection were relevant. 
Ground 3
42	The respondent submits that the gravity of the applicant’s offending is high and that such casual violence by a 17-year-old is shocking. The applicant had offended in a similar manner on three previous occasions. The knife used was visually intimidating. The armed robbery was premeditated and committed upon a 16-year-old in a public place. The number and nature of the stab wounds make the charge of intentionally causing serious injury in circumstances of gross violence a serious example of the offence. It is argued that the applicant is fortunate not to have faced a murder charge. 
43	The respondent argues that it is clear that the sentencing judge balanced these matters with the mitigating factors relevant to the applicant and that the sentences imposed were within the range of her Honour’s sentencing discretion.
Analysis
Ground 1
44	The applicant’s submission that the sentencing judge took an ‘atomistic’ approach to the issue of whether exceptional circumstances existed such as to allow the imposition of a YJC order is not made out.
45	The exchange between her Honour and defence counsel at the plea as to the matters relied upon in support of exceptional circumstances being established was quite normal and proper. The judge afforded counsel the opportunity to identify what was exceptional or out of the ordinary about any of the matters advanced, before stating that she was not persuaded that any such factor was out of the ordinary. Defence counsel responded by submitting that the applicant’s progress on youth justice intensive bail was extraordinary. That exchange, occurring as it did during a plea hearing, cannot be taken to represent her Honour’s concluded position or mode of reasoning.
46	The Reasons, delivered over a week after the conclusion of the plea, are self-evidently considered and careful. Her Honour analysed each of the matters relied upon by the applicant as relevant to the existence of exceptional circumstances as well as their concatenation. That is, the sentencing judge considered these matters individually in addition to considering them in combination. 
47	The applicant relied upon the observation of this Court in DPP v Lombardo that ‘[i]t is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly, or even wholly, relatively common.’ Whilst undoubtedly correct as a matter of principle, the ability of common circumstances to combine to produce exceptional circumstances is necessarily fact dependent. So much is plain from Fariah v The Queen, cited by the Court in Lombardo, where Priest and Beach JJA said: 
	… the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare. Every case will necessarily depend on its particular facts.
48	The Court in Lombardo then cited earlier decisions in which a combination of particular circumstances had been found to meet the s 5(2H)(e) threshold and decisions in which they had not. 
49	In this case, it was open to the sentencing judge to conclude that the series of ordinary matters relied upon by the applicant did not combine to produce something out of the ordinary.
50	Her Honour rejected the submission that the applicant’s compliance with the youth justice intensive bail regime was extraordinary. He attended most – but not all – appointments, he completed courses and refrained from further offending. That, in Ms Taleb’s experience, he was her best client ‘compliance wise’ does not elevate this circumstance to out of the ordinary. Her Honour drew the obvious and appropriate conclusion as to the applicant’s positive rehabilitative prospects. As a young offender who had pleaded guilty, evidenced some remorse, refrained from further offending and enjoyed family support, that matter was not either alone or in combination exceptional.
51	It follows that proposed ground 1 must fail.
Ground 2
52	As accepted by the applicant, after the judge had determined that he was to be sentenced under the Sentencing Act rather than the CYFA, general deterrence was an applicable sentencing consideration. That in other cases concerning child or youth offenders general deterrence has played an ameliorated role does not proscribe the degree of amelioration to be applied in any other matter. 
53	The Reasons referred to the issue of general deterrence in her Honour’s instinctive sentencing synthesis on a single occasion. The judge said that it was ‘of importance in a case such as this.’ In our view her Honour was entirely correct to do so. The wielding and use of knives by late teenagers in public places is a matter of grave concern. Would-be offenders should be in no doubt that such behaviour will be met with significant punishment. 
54	In any event, it is clear that her Honour did balance the consideration of general deterrence, as well as considerations of specific deterrence, protection of the community and denunciation against the personal factors in mitigation which the applicant could call in aid. So much is plain from the first two sentences of paragraph 171 of her Honour’s Reasons, reproduced at paragraph 22 above. Appropriate moderation of general deterrence and the synthesis of all relevant factors is reflected in the sentence imposed.
55	In that balancing exercise, the extreme seriousness of the applicant’s offending must be recalled. The respondent is correct to point out that he is fortunate that the victim did not die. It is beyond doubt that an offender’s youth and rehabilitation, both achieved and prospective, are of less significance in cases of serious violence.
56	It follows that proposed ground 2 must fail.
Ground 3
57	As is well established, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge. It is a stringent requirement, difficult to satisfy. It must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of both the offending and offender. 
58	We are not persuaded that any of the sentences imposed on the applicant are manifestly excessive. Given the seriousness of the offending and the applicant’s prior criminal history, it was well within the range open to her Honour to sentence him to a term of adult imprisonment for the main charges. Her Honour was required to have regard to the mandatory sentencing provisions that would have applied had the applicant been an adult. Further, for reasons articulated with respect to the earlier proposed grounds, the actual terms imposed were well with range. Nor was the cumulation of 1 year outside the range. And, on any view, that the term of 1 month imprisonment for the trafficking charge was wholly concurrent with the other sentences was modest.
59	It follows that proposed ground 3 must fail.
Conclusion
60	The application for leave to appeal will be refused. 

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