IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
GENERAL LIST
Case No. CR-23-01572
CR-23-01571

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
BILLY SHARMAN 		
		
and		
		
DIRECTOR OF PUBLIC PROSECUTIONS 		
		
v		
		
JORDAN WEST		

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JUDGE:	HER HONOUR JUDGE MARICH	
WHERE HELD:	Melbourne	
DATE OF HEARING:	29 October 2024	
DATE OF SENTENCE:	14 November 2024	
CASE MAY BE CITED AS:	DPP v Sharman & West	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1816		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW - SENTENCE
Catchwords:	Carjacking, possession of a drug of dependence, possess cartridge ammunition – concerning offending – texts demonstrating intent – luring out of car - victim struck and vehicle taken - victim not previously known to offenders - escalation in offending compared to criminal histories – intellectual disability – youth - Akoka - pleas of guilty entered at a mid-stage of proceedings.
Legislation Cited:	Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic).
Cases Cited:	R v Verdins [2007] VSCA 62, Muldrock v The Queen (2011) 244 CLR 120, Bugmy v The Queen (2013) 249 CLR 571, Akoka v R [2017] VSCA 214 Farmer v The Queen [2020] VSCA 140, Peers v The Queen [2021] VSCA 264, Fariah v The Queen [2021] VSCA 213, DPP v Lombardo [2022] VCC 93. 
Sentence:	Mr Sharman – 1 year and 11 months imprisonment, 12 month non parole period, 70 days pre-sentence detention, 6AAA: 2 years and 9 months imprisonment. Mr West – 2 years and 2 months imprisonment, 14 month non parole period, 80 days pre-sentence detention, 6AAA: 3 years imprisonment.

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APPEARANCES:
	Counsel	Solicitors	
For the DPP

For the Accused Sharman

For the Accused West	Mr T. Couch

Mr T. Acutt

Ms K. Ballard	Office of Public Prosecutions

James Dowsley Associates

Slades & Parsons	

HER HONOUR:

Introduction
1	Billy Sharman and Jordan West, you have each pleaded guilty to one charge of carjacking, which carries a maximum penalty of 15 years' imprisonment.
2	Mr West, you have also pleaded guilty to one charge of possession of a drug of dependence, namely methylamphetamine, which in the circumstances of this case carries a maximum penalty of one year's imprisonment.
3	Mr Sharman, a related summary offence, of possess cartridge ammunition without being the holder of a licence or permit, was uplifted into the hearing of your plea in mitigation of penalty, and you pleaded guilty to that charge and have permitted me to sentence you in respect of that charge, which carries a maximum penalty of 40 penalty units.
4	The circumstances in which you each came to commit those offences are contained in the summary of prosecution opening for plea dated 5 September 2024, which was read aloud and exhibited as Exhibit A on your plea.  Since the conclusion of the plea in mitigation of penalty, Mr West, I have received prosecution submissions on application of s5(2H) of the Sentencing Act 1991 in the plea of Jordan West, which I will now receive and mark as Exhibit B.
5	In addition to the matters developed in the oral argument, Mr Sharman, your counsel relied on:
•	outline of submissions for plea dated 8 October 2024 (Exhibit 1);
•	confidential psychological report by Marlese Bovenkerk dated 14 June 2024 (Exhibit 2);
•	letter of Ms Maria Hutchison, addiction counsellor, dated 11 May 2023 (Exhibit 3);
•	acceptance letter by Mr Aaron Gilhooley of The Cottage dated 11 May 2023 (Exhibit 4);
•	bundle of letters from The Cottage (Exhibit 5);
•	certificate of completion at The Cottage dated 19 September 2023 (Exhibit 6);
•	letter of employment of Mr Joe Barbante, CCS Metro Traffic, dated 5 June 2024 (Exhibit 7);
•	letter confirming termination of pregnancy dated 21 August 2023 (Exhibit 8);
•	bundle of character references (Exhibit 9);
•	discharge summary of Benji Quinn from Mercy Hospital for Women dated 10 September 2024 (Exhibit 10);
•	email from Ms Tanya Peacock, advanced practitioner, Community Correctional Services, dated 4 October 2024 (Exhibit 11).
6	In addition to the matters developed in oral argument, Mr West, your counsel relied on:
•	outline of defence submissions on plea dated 28 October 2024 (Exhibit 12);
•	outline of defence submissions on sentence indication dated 25 June 2024 (Exhibit 13);
•	psychological report of Dr Aaron Cunningham dated 17 December 2019 (Exhibit 14);
•	letter of Dragana Johnstone, Disability Justice Coordinator, dated 25 June 2024 (Exhibit 15);
•	letter of Claire Bouraad dated 25 June 2024 (Exhibit 16);
•	statement of intellectual disability dated 6 March 2020 (Exhibit 17);
•	letters of Michael Diab, psychologist, dated 24 June 2024 and 14 September 2024 (Exhibit 18);
•	letter of Mirah Issa of Essential Care Victoria, dated 25 June 2024 (Exhibit 19);
•	letter of Andrew Carlile of Bendigo Bridge, dated 24 October 2024 (Exhibit 20);
•	letter of St Vincent's confirming detox dated 22 October 2024 (Exhibit 21); and
•	CISP final report dated 12 December 2023 (Exhibit 22).
7	Since the conclusion of the plea in mitigation of penalty, Mr West, I have received bundle of certificates of urine screens, which I will receive and mark as Exhibit 23, and letter of Andrew Carlile of Bendigo Bridge Program dated 13 November 2024, which I will mark as Exhibit 24.
8	I have taken all exhibited materials into account in determining my reasons for decision and the ultimate orders, as well as having reflected carefully upon the matters advanced via counsel in oral argument.
Circumstances of your offending
9	The two of you have pleaded guilty to a charge of carjacking which occurred on 
25 March 2023. A co-offender, Jake Patton, is pleading guilty to a charge of theft in the Magistrates' Court. Your victim was Joshua Barmby, then aged 33 years old. Mr Sharman, you were then aged 22; Mr West, you were then aged 26; and Mr Patton was aged 23.  
10	In the early hours of that morning of 25 March 2023, Mr Barmby was home, watching television.  He was a friend of Mr Patton, and had arranged for Mr Patton to come to his house to visit; he had not met either of you before that day.  At about 6 am, Mr Patton parked across the street from the victim's home, and the three of you then went into the house.  
11	The two of you and Mr Patton and the victim went to the garage of the house, and you socialised.  You, Mr West, asked the victim a number of questions about his Jeep Cherokee, which you had observed parked out the front, including how much it cost.
12	Whilst you were in the garage, you, Mr West, sent a message to you, Mr Sharman, at approximately 6.10 am 'Cunts blowy as', and another message at 6.13 am stating 'I’m going to cook this cunt'. You, Mr Sharman, responded at 6.14 am, texting 'Yeah hahaha mad'.
13	At about 6.26 am, your group decided to go and buy cigarettes.  The victim drove you in his Jeep Cherokee to the BP service station in Donnybrook, where he remained in the car with Mr Patton. The two of you went into the store, bought some cigarettes, and then returned to the car.
14	The victim then started driving home. At some point, you, Mr West, began to give him directions about where to drive. He followed the directions, at some point pulling over and parking the car near an address that he happened to recognise along this route, at a location in Blackmore Road, Mickleham.
15	You, Mr West, exited the vehicle and asked the victim to open the bonnet of his car. He opened the bonnet, and you, Mr West, looked in the engine for about a minute before closing it. Then, the victim was struck to the head several times.  He could not identify which of the men inside the car had struck him, and I do not make any finding that it was one or the other of you.  One of the two of you and your co‑accused, Mr Patton, then opened the driver's-side door, and pulled the victim out of the car. He also felt someone pushing him out from inside the car, and he fell onto the ground and then got up and ran away. By your pleas of guilty to the charge of carjacking, you have accepted responsibility for the application of force to the victim in order to steal his car, and this is the commencement of the offending relating to your charge of carjacking.
16	From a distance, your victim looked back and could see Mr Patton standing outside the car, and he then observed Mr Patton get back into the back passenger seat, and the car drive away. One of the two of you, Mr Sharman and Mr West, drove away, and the other was in the car. Your theft of Mr Barmby's Jeep in circumstances involving the application of force, is the offending referable to your charge of carjacking.
17	The Victim retained the keys to the jeep, as the vehicle could be started by pressing the start button. He also noticed that he had left his mobile phone in the car.
18	CCTV depicted the Jeep returning to the street on which the victim lived, and 
Mr Patton left the Jeep and got into his own car, before both cars drove away.
Police investigation, arrest and interviews
19	The victim returned to his home, and told his mother about what had happened, and she contacted police. Police attended and were informed that the location of offending was the address at Blackmore Road in Mickleham. Crime-scene officers attended and photographed the scene and took swabs of what appeared to be blood. Mr Barmby was taken by ambulance to the Northern Hospital where he was admitted and received treatment. He was injured in the course of the incident.
20	On 26 March 2023, police located the victim's Jeep parked at a location in Eastwood Street, Kensington.
21	It was returned to the victim and whilst he may have experienced pain, trauma, distress and inconvenience, he did not lose his vehicle.
22	At approximately 2.30 pm on 31 March 2023, you, Mr West, drove to Bunnings Thomastown, and a short time later you were arrested. Police searched your car, Mr West, and located a small zip-lock bag containing methylamphetamine, which is the offending referable to your Charge 2, of possess drug of dependence for a purpose other than trafficking. As a consequence of your arrest, your phone was seized by police, and the text messages exchanged between you, Mr West, and you, Mr Sharman, shortly after 6 am on the day of your offending, were identified. You, Mr West, were then arrested and conveyed to the Broadmeadows police station and were interviewed by police. You answered 'No comment' to all questions, as is your right.
23	At approximately 2 pm on 7 April 2023, police attended your home, Mr Sharman, in Craigieburn, and you exited the house voluntarily and were arrested. In the course of the ensuing search, seven shotgun shells were located in your bedroom, which is the offending referable to your related summary offence, of possess ammunition. You were conveyed to Broadmeadows police station and were interviewed by police, and answered 'No comment' to all questions, as is your right.  
Plea of guilty and timing; remorse
24	Mr West, I have mentioned that you were arrested on 31 March 2023, six days following your offending; you were then remanded into custody.  Mr Sharman, you were arrested and charged on 7 April 2023 and were also remanded.  Mr Sharman, you were granted bail on strict conditions on 24 May, and Mr West, you were granted bail on 19 June 2023.  
25	The matter proceeded through the indictable stream of the Magistrates' Court, and on 6 December 2023 a committal hearing took place, at which each of you 
cross-examined witnesses, including the victim.  You were committed to stand trial on a more serious charge than that which you currently face.
26	The matter proceeded through a series of directions hearings and was adjourned for resolution discussions to occur between your legal representatives and the prosecution.  The matter resolved with each of you entering a plea of guilty to the proceeding charge following my indication as to the sentence that I would be likely to impose if the matter were to resolve on this charge, in July 2024. On 2 August 2024, you each indicated your acceptance of that indication and were arraigned and pleaded guilty to the charges now before me.  The matter was then adjourned for plea in mitigation of penalty for a period of months, to permit you, Mr Sharman, to be present at the birth of your child.  
27	I accept and take into account that your pleas of guilty were entered at a mid-stage of proceedings before the matter had been set down for trial, which is of considerable utilitarian benefit, in that it has saved the victim and the other witnesses the stress and inconvenience of needing to come to court to give evidence, and it has saved the Court and the community the time and expense of a trial.
28	Further, I accept and take into account that your pleas reflect your remorse.  I mitigate the sentence that I must impose on each of you on these bases.
Personal circumstances
29	Mr Sharman, as I have mentioned, you were 22 years of age at the time of your offending, and you are now 24. You are the younger of two sons born to your parents. Unfortunately, your parents had a toxic and conflictual relationship marred by family violence. You have told Marlese Bovenkerk that your parents would argue 'all the time' and would break and throw objects during these arguments.  Their relationship involved physical aggression, and as a child you felt compelled to intervene to try and protect your mum. It was a traumatic childhood and I take that into account in mitigation of sentence. 
30	You then lived with your mother and brother, and you have always maintained a positive and supportive relationship with the two.
31	You were diagnosed with dyslexia during primary school, which, understandably, led to you experiencing learning difficulties, and you had difficulty focusing and concentrating, as well as sitting still.  You have not been assessed for Attention Deficit Hyperactivity Disorder, however have received feedback from work colleagues to suggest+ you have symptoms consistent with that condition.
32	During Year 10, you attended school two days per week, and you started a plumbing apprenticeship three days a week. You passed Year 10 and then continued in the apprenticeship, but did not complete it, owing to a growing addiction to drugs.
33	In recent times, you have helped your uncle with building work sporadically, and have experienced periods of unemployment, and prior to being remanded in custody on this matter on your plea, you were employed in a traffic management role on a casual basis, but you typically worked four to five days a week. I have read references from family friends who have told me that you have turned your life around, and they speak highly of your character. They have also told me of your remorse for your offending, which as I have said, I take into account in mitigation of penalty.
34	You first started consuming drugs in your early adolescence, smoking cannabis, which led to using pills at the age of 15 or 16, and then ice.  When you started using ice, your drug use escalated to what you describe as a 'whole other level', and you began using the substance on a daily basis, which continued beyond the age of 18.
35	Prior to commission of these offences, you had appeared before the Court on approximately eight occasions. In September 2018, you appeared before the Magistrates' Court for offending including property offences, theft of a motor vehicle, reckless conduct endanger serious injury, and fail to stop vehicle on police direction, and were sentenced to a period of imprisonment, accompanied by a community correction order. This was the subject of a successful appeal to this court and a community correction order was substituted.
36	In November 2018, you appeared in the Children's Court, for property offences, including theft of a motor vehicle, possess prohibited weapon and unlicensed driving and you were placed on probation.
37	In June 2019, you were sentenced to a further period of imprisonment for four charges of theft of a motor vehicle, other property offences, three charges of driving whilst disqualified, and reckless conduct and endanger serious injury.  In May 2020, you received a sentence of imprisonment in combination with a community correction order for offences including reckless conduct endanger serious injury, property offences including multiple charges of theft of a motor vehicle, multiple charges of driving whilst disqualified, multiple charges of possess methylamphetamine, and other charges.  In March 2022, you received a sentence of imprisonment for multiple charges of theft of a motor vehicle, and other charges including reckless conduct endanger serious injury and possess methylamphetamine, and the length of the sentence was reduced on appeal.
38	You are supported by your partner, Shelby, who has children from a previous relationship, who are unable to reside with you both given your criminal history and DFFH involvement.  As a condition of your bail on this matter, you were admitted to The Cottage for residential drug rehabilitation, and Shelby became pregnant, however when she was 20 weeks pregnant, I understand you both learned that your unborn daughter had a rare genetic condition with a dire prognosis. You made the difficult decision to terminate the pregnancy together.  However, Shelby needed to undertake the termination alone, as you had been bailed to the residential program.
39	Your son, Benji, was born in September this year. He has had some health difficulties early in life.
40	I am pleased to note that the progress you made at The Cottage in your residential program has assisted you in your recovery from your substance use disorder and since satisfactorily completing the 16-week program on 19 September 2023, you have been abstinent from drugs and alcohol.  I have been provided with details of the program, including the initial four-week phase of residential detox, with a heavy commitment to rehabilitation coursework and monitoring, followed by an 
eight-week program, during which you were eligible for offsite day leave without supervision and were able to receive visitors, concluding with a four-week component which enabled you to return to work via liaison and approval from management, with eligibility for weekend leave.  I accept and take into account in mitigation of your sentence, as urged upon me by your counsel, that the first four weeks of this program falls squarely within the principles discussed in the case of Akoka v R [2017] VSCA 214 and to a lesser extent the second phase of the program does as well, which I take into account in mitigation of sentence.
41	I have mentioned that you were assessed by Ms Bovenkerk, forensic psychologist, who has provided me with a report.  She interviewed you and administered relevant empirical testing.  She considers you to be a moderate risk of general 
re-offending, with factors elevating your risk profile being your criminal history and reliance on drugs and alcohol.  She notes, to your credit, that you informed her you have distanced yourself from negative peer influences and have abstained from using illicit substances for more than 12 months.  In her view, in addition to your learning disorder, you do meet the criteria for Attention Deficit Hyperactivity Disorder, and you have largely been reliant on illicit substances to manage your emotions, mood, and to mask symptoms of your untreated trauma.  There are symptoms in you that suggest the presence of an adjustment disorder with mixed anxiety and depressed mood and of course you have also experienced considerable trauma in your childhood.  
42	I accept your counsel's submission that you are entitled to considerable credit for participating so energetically and successfully in the early stages of your rehabilitation journey, i.e., by undertaking the rehabilitation program at The Cottage, by abstaining from drug and alcohol use, by returning to full-time employment, and by supporting your partner through your combined difficult journey of losing a pregnancy and recovering from the grief in order to welcome your son.
43	I also accept and take into account that you were 22 at the time of your offending, which allows me to offer some mitigatory weight to your youth, in accordance with the legal authorities.  I will emphasise rehabilitation in the sentencing exercise in accordance with these authorities, particularly having regard to your own efforts at rehabilitation between the time of your offending at the age of 22, and your current age of 24, with your additional family responsibilities.
44	I was advised that in October 2023, you were placed on a 12-month community correction order with various conditions for offending which pre-dates this offending, and I am pleased that you completed this order without breach.  I consider that, by reason of your separation from your partner and young child, this sentence will weigh heavily upon you, and I mitigate sentence on the basis of your anguish.
45	Mr West, you were 26 years of age at the time of your offending, and you are now 28. You are the youngest of four children born to your parents. Your father was an alcoholic and was frequently violent, and your parents separated when you were around nine years of age. After the separation, you and your two older brothers and older sister lived with your mother, and unfortunately you needed to move frequently due to financial struggles, and, at times, to escape harassment from your father. I consider that the evidence shows that you did experience a traumatic and deprived childhood, complicated further by your intellectual disability, and I am willing to mitigate sentence on that basis Bugmy v The Queen (2013) 249 CLR 571, [43]-[44]. 
46	You went to primary school in Roxburgh Park, and repeated prep, and then went on to satisfactorily complete primary school, and you attended the Lakes South Morang College, and left after Year 9.  You then started a panel beating apprenticeship, but did not finish it.
47	You started using drugs when you were 15, and you have struggled with addiction ever since. In a report prepared by Dr Aaron Cunningham, psychologist, in December 2019, it was then noted that you were using up to half a gram of methamphetamine per day, and 150 millilitres of GHB, and prior to the date of that report, you attended the Bendigo Bridge Program for six weeks, but relapsed in a context of peer associations immediately upon being released.  Unfortunately, in August 2018, when you were 21, your brother Mitchell died after a police pursuit.  You witnessed the collision and were present when your brother was taken off life support.
48	In Dr Cunningham's report, he notes that he administered the WAIS-IV to assess your cognitive functioning and at that time it was noted that you presented with an intellectual disability, with a full scale IQ of 70, within a range of 67-75, performing better than 2 per cent of your age peers where 98 per cent of your age peers would perform better. Your overall thinking and reasoning skills were in the extremely low range. Dr Cunningham's assessment eventually led to you being assessed by the Forensic Disability Statewide Access Service of DFFH in February 2020, and that assessment demonstrated an overall level of your adaptive behaviour to be within the extremely low range of functioning, requiring support to function in the community, especially in conceptual and practical skills. Consequently, on 6 March 2020, you were issued with a statement that you had an intellectual disability within the meaning of the Disability Act 2006, and you are eligible for assistance under the National Disability Insurance Scheme (NDIS), and receive a Disability Support Pension.  I have read a number of reports and certificates from your support workers, and they commend you for your participation in the various support programs, including your participation in weekly sessions of psychology, with overall strategies to promote self-sufficiency, and to enhance your social skills and interactions.
49	Additionally, the NDIS Scheme support allocated to you allows you to receive transport services to attend your psychology and allied health appointments, and occupational therapy. I understand that you live with your partner Brylie in NDIS supported accommodation in the community.
50	You have a reasonably long criminal history, with 10 court appearances preceding your commission of these offences.  In October 2014, you were placed on a Good Behaviour Bond for offences of possess cannabis and proceeds of crime. In December 2016, you received a disposition involving detention in a youth training centre, following findings of guilt on 14 charges of theft of motor vehicle, seven charges of theft, a series of charges of commit indictable offence whilst on bail, and contravene a conduct condition of bail, and other offences. In July 2018, you were placed on a community correction order, for three charges of theft of a motor vehicle, bail offences, other property offences, driving offences, and a number of drug offences.
51	In October 2018, you were sentenced to imprisonment for property offences, including multiple thefts of a motor vehicle, and in May 2019, you were placed on a combination of gaol and a community correction order for offences including thefts, thefts of a motor vehicle, driving offences, and possess methamphetamine. The community correction order was subsequently breached. In April 2020, you received a further sentence of imprisonment for offences including property offences, theft of a motor vehicle, two charges of commit indictable offence on bail, and possess methamphetamine.
52	In November 2020, you received a further sentence of imprisonment for multiple offences of theft of a motor vehicle, driving offences, and other property offences. In February 2022, you were sentenced to a further period of imprisonment for offences including possess methamphetamine, and GHB, commit indictable offence whilst on bail, and contravene a conduct condition of bail, and unlicenced driving, and the length of the gaol sentence was reduced on appeal.
53	Since you were bailed on this matter, you have largely managed not to come to police attention, and did engage well with the CISP program. However, deeply concerningly, I have been told in the most recent hearing of your plea in mitigation of penalty, that your drug use continued this year, including after the Sentence Indication Hearing, resulting in your hospitalisation for an overdose of your consumption of the drug GHB. 
54	You were admitted to DePaul House in Fitzroy for voluntary community alcohol and drug withdrawal on 15 October 2024, and were discharged a week later, and completed intake into treatment at the Bendigo Bridge Program, a 12-week residential rehabilitation program on 22 October 2024. Shiralee Dawkins, Chaplain of the Salvation Army, who contributes her valuable services to the Bridge Program, gave evidence before me in relation to the components of this program, and I accept the value of such a program and the good work of those who contribute. 
55	In your case, the significance of your intellectual disability is a significant consideration in sentence. Your counsel directed me to the well-known High Court case of Muldrock v The Queen (2011) 244 CLR 120, [53]-[55], and in Victoria intellectual disability may attract the application of Verdins principles as a result. I have reflected on the significance of your disability carefully. In each case, the court has reasoned that a sentencing Judge must move past diagnostic labels, and examine the causal relation, if any, between an offender's illness, or intellectual setback, and the commission of the offence and then consider other sentencing principles.
56	To demonstrate a connection, an offender must establish that, at the time of the offence, the impairment:
•	affected his or her ability to appreciate the wrongfulness of the conduct; or
•	obscured his or her intent to commit the offence; or
•	impaired his or her ability to make calm and rational choices, or to think clearly.  
57	Mr West, the evidence does not demonstrate these connections explicitly, as the reports relate to the fact of your diagnosis and not its interlinkages with your offending. Perhaps, your condition impairs your ability to make calm and rational choices, to think clearly, and to resist the temptation not to take advantage of the circumstances in which you find yourself. Perhaps, it stops you from thinking through the consequences of your actions. Your case is complicated in that any disinhibition would not be exclusively attributable to your intellectual condition, given your admitted use of drugs. In my evaluation, I do not accept your counsel's submission that it moderates your moral culpability on the evidence available to me. However, I do accept that I can moderate slightly the weight that I attach to general deterrence based on your intellectual disability and I mitigate sentence on that basis. This limb of Verdins does not require me to find a causal link between your condition and the offending.
58	I also find that a return to a custodial environment from the security of your current circumstances, of your residence with your partner, on hold for the moment due to your admission for in-patient rehabilitation, is disruptive for you, and your condition may mean that a sentence will weigh more heavily upon you than it would on a person in full intellectual capacity.  I have mitigated sentence on this basis and have also considered how it should bear on the kind of sentence that is imposed and the conditions under which a sentence should be served. I welcome your involvement in a program such as the excellent one provided by The Bridge, however the timing of your entry into this program is troubling, given the necessity and importance of concluding this matter, just four months shy of three years after you committed the offences. I also worry, understandably, about the risk of relapse after your release, which has occurred previously upon your last admission to the program. 
Prospects for rehabilitation
59	Mr Sharman, you have a relatively long prior criminal history, and whilst you have worked very hard to rehabilitate from addiction, you will experience the temptations of your drug addiction in the years to come. You were a young man at the time of this offending, and you are still young. You have demonstrated your capacity to grow, commit to your family, abstain from drugs, and engage in rehabilitative programs. You are remorseful not only for this incident but have also endeavoured to make repairs to your life ever since. I am prepared to infer that your prospects for rehabilitation are good, provided that you continue to abstain from drugs.
60	Mr West, you also have a long prior criminal history, and you have only just commenced a lifestyle wholly abstinent from drugs. You have challenges ahead, negotiating a meaningful life with your circumstances, and grappling with your childhood trauma with the help of your NDIS psychologist. You were still a relatively young man at the time of this offending. Your prospects for rehabilitation are fair.
61	Each of you has the desire to rehabilitate, and I intend to structure my sentence so as to facilitate that process as best I can in all of the circumstances of the case.  

Objective seriousness of the offending; moral culpability
62	Mr Sharman and Mr West, your carjacking offence causes me real concern. Your victim was not previously known to you, and you took advantage of him when he hosted you in his home, and you learned of his vehicle. Each of you has a long history of car theft. Violence, though, is not in either of your histories, and this represents a considerable escalation in offending compared to your criminal histories. 
63	Mr West, your text messages sent to Mr Sharman while your victim was hosting you in his home show your intention at the time, literally, 'to cook this cunt'. You played the dominant role in the events which followed – you directed the victim where to drive, you lured the victim out of the car on the pretence of looking under the bonnet, and this led to him being distracted when he was struck. Mr Sharman, you were a willing participant in this offending and had insight into the plan. I make no finding, of course, as to who struck the victim, however, I do find that both of you were aware that the victim was struck at the time of the car theft, based on your plea.
64	Each of you, in company with each other and another present, stole the victim's car, taking advantage of the fact that he had been struck violently. It is shameful and serious offending. 
Relevant sentencing principles, sentencing submissions
65	I accept that the gravity and prevalence of the offence of carjacking requires a conclusion that general deterrence is a significant sentencing purpose in each of your cases. As I have indicated, I have moderated slightly the weight to attach to general deterrence in your case, Mr West, owing to your intellectual disability; Mr Sharman, the fact of your relative youth at the time of your offending also permits me to de-emphasise general deterrence slightly in the balance of matters that I take into account. 
66	I consider that I must emphasise specific deterrence in each of your cases, given your prior criminal histories; Mr West, for a man not yet 30 years of age, you have a very considerable criminal history, as do you, to a lesser extent, Mr Sharman.  
67	The sentence that I will impose will punish you and denounce your behaviour, whilst allowing and emphasising your continued efforts at rehabilitation. In doing so I allow for community protection.
68	I have been mindful of the parity principle of sentencing. Mr West, I have found that the evidence demonstrates that you played an enthusiastic role in the offending, you are older than your co-accused, and you have a longer criminal history, and there are factors in each of your personal circumstances that mitigate sentence. Mr West, you have the benefit of a short period of Akoka time in the Bridge Program; Mr Sharman, you had a longer spell in The Cottage, and enjoy a more significant Akoka benefit. 
69	Mr West, your counsel urged me to defer sentence until your residential rehabilitation program concludes, to allow you to participate in a program aimed at addressing one of the significant underlying causes of your offending, that is your addiction. Whilst you are now in residential rehab, this is not the first time you have undertaken such a program. You also completed a CISP program as a condition of your bail. It is well in excess of two and a half years since you committed these offences. It is over three months since you entered pleas of guilty to the charges. I am not willing to defer sentence further. It may be that you can return to The Bridge in due course. 
70	The offence of carjacking is a Category 2 offence under the Sentencing Act 1991 (Vic). A term of imprisonment must be imposed upon each of you unless one of the exceptions in s 5(2H)(a) to (e) can be established. A sentence involving a combination of custody and a community correction order is not permitted. 
Mr Sharman, your counsel, appropriately, did not contend that such an exception existed in the circumstances. 
71	Mr West, your counsel has urged me to find that there are substantial and compelling circumstances that are exceptional and rare, which permit me to depart from the mandatory regime. 
72	You bear the burden of establishing one of the statutory exceptions on the balance of probabilities. Whether an exception is established in accordance with settled principle is an evaluative judgment for me.
73	Your counsel indicated that your intellectual disability, your relative youth, your deprived upbringing, your plea of guilty, your high degree of compliance with bail, and your connection with supports in the community justified this finding. The prosecution urged against this course. In my view, the circumstances do not meet the high threshold of 'substantial and compelling' which alleviate the statutory responsibility of immediate custody to be served other than a combination sentence, and, further and separately, even if the statutory test was satisfied, the only proportionate sentence is one of immediate imprisonment with an order for parole eligibility. Farmer v The Queen [2020] VSCA 140; DPP v Lombardo [2022] VCC 93.
Sentence
74	I now impose the following sentences:
Mr Sharman, on the charge of carjacking, you are convicted and sentenced to one year and 11 months' imprisonment, and I order that you serve 
12 months before parole eligibility. On the related summary offence of possess ammunition, you are convicted and discharged. Were it not for your plea of guilty, had the matter proceeded to trial but resulted in a guilty verdict, I would have imposed two years and nine months' imprisonment.
Pre-sentence detention.
MR ACUTT:  I have 70 days, Your Honour, for Mr Sharman.
HER HONOUR:  Yes.   I will reckon 70 days as served.
Mr West, on the charge of carjacking, you are convicted and sentenced to two years and two months' imprisonment, on the charge of possess methamphetamine, you are convicted and sentenced to one month wholly concurrent, and I order that you serve 14 months before parole eligibility. Were it not for your pleas of guilty, had the matter proceeded to trial but resulted in a guilty verdict, I would have imposed three years imprisonment.
Pre-sentence.
MS BALLARD:  Eighty days.
HER HONOUR:  Any ancillary orders sought, Mr Crouch?
MR CROUCH:  No, Your Honour.
HER HONOUR:  Thank you.  I will now adjourn until the next hearing.
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