IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication 	
AT MELBOURNE
criminal JURISDICTION

CR-24-02144
Indictment No. Q10880171

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
NGOR MALOTH		

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JUDGE:	HIS HONOUR JUDGE TINNEY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	3 April 2025 	
DATE OF SENTENCE:	4 April 2025	
CASE MAY BE CITED AS:	DPP v Maloth	
MEDIUM NEUTRAL CITATION:	[2025] VCC 423 		

REASONS FOR SENTENCE
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Catchwords:  	Armed robbery - Prohibited person possess firearm - 23 years of age at time of offending in October 2023 - 24 years of age as at sentence - Criminal history - Some subsequent matters - Youth; R v Mills (1998) 4 VR 235;  Azzopardi v The Queen [2011] VSCA 372 – Disadvantage; Bugmy v The Queen [2013] HCA 37 - R v Verdins [2007] VSCA 102; limb 5 - Early guilty plea - Remorse  
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms N. Stevic	Office of Public Prosecutions	
			
For the Accused	Ms S. Stanley	Ajak & Associates 	

HIS HONOUR:  

1	Ngor Maloth, you pleaded guilty yesterday to one charge of armed robbery and one charge of being a prohibited person in possession of a firearm arising out of events taking place on 21 October 2023.  
2	The prosecution plea opening sets out the relevant maximum penalties. Those maximum penalties are 25 years' imprisonment for the armed robbery and 10 years for the firearms matter. 
3	Because of the firearm, the armed robbery is what is described in the Sentencing Act 1991 as a Category 2 offence, but nothing hangs on that in this case. It is not suggested that you fall into any of the exceptions or that there is any doubt as to the required outcome here. 
4	You have admitted a prior criminal history which is of some relevance to my task. You were on a community corrections order at the time of this offending.
5	The prosecutor, Ms Stevic, opened this matter to me yesterday in accordance with a written summary of prosecution opening for plea dated 10 March 2025 which was marked as Exhibit A. In fact, it had been amended to add in a portion relating to the Category 2 status. The date was not altered but the transcript will reflect what took place yesterday.  Your counsel told me that with the exception of the issue of the bruises on the arms being caused by the offending, (see Paragraph 26), that this was an agreed summary. I do not regard those bruises as having any significance at all in my ultimate sentencing task. 
6	I will sentence pursuant to that otherwise agreed summary and see no need to restate all the facts in these my reasons. 
7	I will give only a brief summary so that my reasons and ultimate sentence might be understood by anyone who happens to access these sentencing remarks when they come to be published, as they will be. Otherwise, the sentences that I impose would exist in something of a vacuum.
8	By way of very brief summary then, in October 2023 you were 23 years old, and were a prohibited person under the Firearms Act by virtue of an active intervention order then in place.  You were also on a community corrections order which itself would have made you a prohibited person. 
9	In the early hours of 21 October 2023 at around 1.00 am, you arrived at an address in Thomas Street, Dandenong, in a white Mercedes. You got out of the passenger seat, and you were pacing back and forth outside a newsagent. There was an ATM at that location.
10	At around 1.20 am, your victim Zac Gleeson who was 22 years of age at the time, had got off a train at the nearby Dandenong railway station. As he walked down Thomas Street, he noticed you on the other side of the road pacing around impatiently. 
11	You were unknown to each other and there was no interaction. He saw you and it would seem very likely that you saw him given what took place some minutes later.
12	For at around 1:40 am, as he walked in Kids Road on his journey home, there was a tap on his back, and he turned around. It was you.  A white sedan was facing him, and he could not see within that car owing to the glare of the headlights. You were holding what you said was a gun and told him to drop, as you put it, 'all the shit' out of his pockets. He said he had nothing, and you responded by hitting him to the left side of the face with the end of what looked like a pipe to him but was in fact the barrel of the sawn-off shotgun. Having hit him, you then said, 'drop your shit, I know you have a wallet on you'. Your victim took his wallet out as you kept trying to strike him. He backed off and dropped the wallet and you then said, 'don’t move or I’ll shoot you’.  You kept pointing the 'pipe' at him - that is the way he viewed it - whilst you picked up the wallet and then ran back to the car. 
13	You got in and the car took off. 
14	Your victim blocked his cards, he went home and he rang the police. He sustained a semicircular bruise under the left side of his jaw, but later in the piece, he also found some bruises under his arm and to his right upper arm near the shoulder. There were some photographs that show the sum total of those injuries. There was some debate about them on the plea as to whether the arm and shoulder bruises were caused in the incident. It is a matter of no weight at all in my task, however, out of an abundance of caution I will not sentence you as having caused those later discovered bruises. What is not in dispute is the manner in which you made the demand and then struck him to the face and continued to try to strike him as well as the threat that you issued. The seriousness of the armed robbery is not determined by the degree of his injuries. Those small bruises would not add to the seriousness of the offence one iota in my view, but I will disregard them. 
15	Later that morning at around 2:58 am you foolishly attended your ex-partner's home out in Cranbourne and disposed of the gun in the rubbish bin - hence Charge 2 on the indictment. 
16	A bag containing the gun was found by your ex-girlfriend’s mother and she took it to the police. Your name was mentioned. Your ex-girlfriend was not too impressed with your actions in dumping the bag in the bin and you explained to your ex-partner that you had put the bag there with the gun as there had been an incident with the police. 
17	That bag contained some clothing and the sawn-down shotgun and a cartridge.  The serial number had been erased, and the stock had been shortened. The ammunition was suitable for use in that weapon. DNA matching your DNA was found on the trigger.   
18	On 31 October 2023 you attended at the police, and you were then arrested. You denied that anything had happened with the firearm. You gave a garbled account of that firearm and how you came to dispose of it. You were not charged at the time. 
19	Subsequent data mapping put you at the vicinity of the armed robbery and at the location of the disposal of the weapon. There was also some CCTV footage showing your movements and the movements of the white car including in relation to the victim and later at the scene of the disposal of the weapon. 
20	On 27 April the following year, so 2024, after you had been arrested in North Balwyn on an unrelated matter, a second police interview was conducted. You claimed not to have any recollection of the event that I am dealing with. 
21	The charges arising from that later event are being dealt with by way of a plea on Monday of next week in the Magistrates' Court. Those charges relate to possession by you, a prohibited person on the 27 April 2024, of a loaded .22 handgun and spare magazines containing ammunition, as well as a charge of attempted car theft.
22	You have been in custody since 27 April on those matters and the matters that I am dealing with.
23	Attached to the agreed summary is a chronology of the matter before the court. The matter settled at a very early stage. 
24	So much then for my brief summary of the agreed summary in this matter - agreed, that is to say, with the exception of the matter I have mentioned which was not agreed and which I will disregard relating to those other bruises.  
25	As I have already said then, I will sentence pursuant to the more detailed agreed summary dated 10 March, together with the selection of photographs marked as part of that same exhibit. They show the firearm and also the relevant bruise to the face. 
Impact
26	There is no impact statement from your victim, but it is plain enough that this was frightening offending. It was designed to be. This was serious offending, and your victim will never forget it. Beyond that immediate impact and fear, and perhaps a sense of shock over the brief period beyond, in the absence of an impact statement, it really is impossible for me to determine that there has been any long term or significant impact arising here.
In mitigation
27	Ms Stanley conducted the plea in mitigation on your behalf. There was a bit of a false start, where she tried to persuade me to refer this matter to the Drug Court for an eligibility hearing. 
28	In the days leading up to the plea, steps had been taken by the defence to have the matter referred off to the Drug Court. A referral form had been completed asserting that there was no actual bodily harm inflicted in this case. That was simply incorrect. Ms Stanley conceded yesterday that you were never eligible for such an order given that there was actual bodily harm occasioned here.  As minor as the injury or bodily harm was, it was not covered by the exception or ‘carve out’ in s18Z(5). That exception only applies in the Magistrates' Court, and the section could not be clearer. I had spoken to the head of the Drug Court who had confirmed the strict approach taken to that provision. The Practice Direction is explicit, and the specific question is posed in the referral form at Question 8 in the following way: 'Do any of the offences involve the infliction of actual bodily harm?' It then footnotes the Statutory impediment in s18Z(a)(ii) to any such matter being the subject of a Drug Court order.  The question then has three boxes, one of which it expected will be ticked, and ticked accurately; 'yes’, ‘no’ or ‘unsure’. A tick in the 'yes' box will be fatal to the matter being referred off. I simply have no idea why your counsel and her instructors opted to tick the 'no' box. They plainly should not have. 
29	So, there was that brief and quite unnecessary distraction at the outset of the plea, but one that has got nothing to do with you or the sentence that I will impose upon you. It was not your conduct, and I put that issue aside altogether.
30	The fact is that after that brief hiccup yesterday, your counsel then conducted a very detailed plea on your behalf. She was plainly very well prepared. She relied upon an outline of submissions dated 31 March, which had been prepared in support of the hoped for Drug Court assessment. There was no need to rebadge it, and she made it clear that she relied upon those matters contained within that document and was ready to conduct the plea. 
31	She relied upon a report from forensic psychologist, Ms Cokorilo. There was a bundle of course completion documents and a letter from the YMCA Bridge program. There was also your letter of apology. 
32	Either in the written materials or her oral submissions to the court, your counsel told me of your personal background, so things such as your family, educational, work, drug use, relationship and mental health history. She spent some time dealing with your criminal history as well as the subsequent matters to which you are pleading guilty on Monday of next week. 
33	She made some submissions to the court as to the level of objective gravity of this offending, arguing that the armed robbery fell at the ‘mid-level’.  She made some submissions as to the relevant sentencing purposes and also as to your prospects of rehabilitation. 
34	In the comprehensive plea conducted on your behalf, Ms Stanley relied mainly upon the following matters in mitigation:
•	Your early guilty plea;
•	The presence of some remorse; 
•	Your disadvantaged background (Bugmy);
•	Your relative youth; 
•	The application of the fifth limb from the case of Verdins.
35	She conceded the inevitability of a head sentence with a non-parole period. 
Prosecution
36	The prosecutor Ms Stevic made some brief submissions. The Crown challenged the application of the principles from the case of Bugmy, dealing with disadvantage, as well as the application of the fifth limb from the decision of Verdins. They argued that the evidentiary foundation was not present for either matter. They dealt with the seriousness of the armed robbery, and those submissions were uncontroversial. The Crown argued that you had a long criminal history and poor prospects of rehabilitation. The Director of Public Prosecutions was calling for a head sentence with a non-parole period, but so much had already been conceded by Ms Stanley on your behalf. 
37	I will come back later in these reasons to consider the various submissions made by each of the parties.
Background 
38	I will turn firstly though to your background. I am going to do that briefly, and that is because I have no reason not to accept the submissions and the material placed before me as to your personal and family background. I see no need to repeat all of that detail as it really it is not in dispute. 
39	By way of executive summary then, you were born in South Sudan in July 2000, so you are now 24 years of age, turning 25 in July. You migrated to this country with your parents and two siblings when you were three. You have an older and younger sister, and you have a close relationship to them.  You have reported a poor relationship previously with your father when you were young, with you say some exposure to family violence in the home, and some violence directed at you.  You claim that he was a harsh disciplinarian. Nonetheless, you describe feeling loved and supported by him and describe the relationship improving over the years. I do note there was a family violence order in place. You described your mother as loving and caring, and your siblings have remained out of trouble, as have your parents, so they are law-abiding people. 
40	You had no learning difficulties, but you described yourself to Ms Cokorilo as a below average performer at school. You said there was some racial bullying. There were a large number of suspensions for fighting and disruptive behaviour, and you say that at one point you were expelled. You were asked to repeat Year 10 but chose instead to leave school. 
41	You went on to complete a certificate in building and construction and also a certificate in steel construction, and you worked in a variety of jobs in a patchy enough pattern. The employment record is relatively patchy. (See Paragraph 23 of Ms Cokorilo's report). 
42	You are working as a billet in custody and you have done a number of courses and certificates which are marked as Exhibit 5 on the plea, and that is a positive. 
43	You have had two intimate relationships of note with a four-year relationship ending in December 2024. 
44	Alcohol and drugs have been very problematic in your life and for a long time. (See Paragraphs 32 to 46 of Ms Cokorilo’s report).  I am not going to set out all the history, she does that.  You have used a large variety of drugs, including cocaine, ice, cannabis, Xanax and ecstasy. You have had some treatment along the way but really never stuck at it. 
45	You claim to have been diagnosed with post-traumatic stress disorder and to have been treated in the past for mental health issues. Those matters are described in Ms Cokorilo’s report.
46	You have given an account to Ms Cokorilo as to your lesser role in this offending and your reasons for being involved out of loyalty to another. You gave an account to her of having initially being reluctant to engage in this way. That other person that you were with remains unidentified. I am not prepared to act on your account to Ms Cokorilo. You plainly took the lead role in this offending. You had the gun. You were out of the car. I do not doubt that you might have been disinhibited by drugs and alcohol, but that is in no way mitigatory here. There is simply no satisfactory material before me suggesting in any way that you were pressured into the crime, or in any way a reluctant player, or a reluctant possessor of the firearm for that matter. 
47	I asked directly, and I was told, you definitely are an Australian citizen and that you were made one at a ceremony, I believe, back in 2007, so the issue of the risk of deportation that sometimes does arise in this sort of case, does not arise here. 
48	You have a criminal history before the courts. The prosecutor said it was a long criminal record. Ms Cokorilo said it was a significant offending history. Well, I have been sitting as a judge for 15 years. It does not strike me as that long, containing only four appearances, and it would seem none in the Children's Court.  I see no need to set out the full details of that criminal history, the document does that, and it will not alter.  There have been a handful of appearances in the adult court since 2019 with dishonesty, Bail Act, and driving offences and an assault and some intervention order breaches. I was told that the assault was against your father, and so too the intervention order breaches that have been dealt with. 
49	You received a community corrections order in May 2022 and another in May 2023.  The most serious offence in the criminal history is the aggravated burglary, for which you were placed on that community corrections order in May 2023. Ms Stanley told me it was a residential aggravated burglary as there were persons present. There were other offences dealt with on that day including car thefts. Of course, you were on that community corrections order at the time of this offending, and that is a matter of aggravation, as is conceded.
50	You do not fall to be sentenced a second time for any of your past crimes. You received those past sentences, and you served them. Your past criminal history does not in any way aggravate the offending that I am dealing with or remove the need for a proportionate and just response to this offending.  Nor for that matter, the pending matters that I was told about, they do not have that effect either.
51	I do, though, have to make judgements as to your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight to be given to protection of the community. The community corrections order imposed in May 2023 did not impede your offending. You did not take the chance offered to you then by the court, but your criminal history is not overly long and it gives no indication to me that you are not reclaimable.  
52	I have mentioned the subsequently committed offences. I only have regard to them as I have been told explicitly that they are definitely proceeding as guilty pleas on Monday. Had I been told that the course of those matters had not been determined, I would have just put them out of consideration altogether. But that is not the position. You are admitting that you committed those crimes.  I am not sentencing you for them, but I can have some regard to them in my assessment of future risk, your future prospects of rehabilitation, community protection and the need to deter you. It is a real concern that you would offend again in that way having been interviewed in relation to the possession of the sawn-off shotgun in October 2023. Here you were in April 2024 possessing a loaded .22 handgun, whilst prohibited, and magazines, and attempting to steal a car in the early hours in North Balwyn. 
53	I have not canvassed every detail of your background. I act on the more complete detail placed before me, much of which is in the report of Ms Cokorilo. 
	Guilty plea
54	 Let me then turn to some of the other matters raised on the plea. 
55	The first of those is your guilty plea. It was made at what I will treat as a very early, though not the earliest of stages. That is important.  A strange decision had been taken to list the matter for a contested committal where I was told that identity was in dispute. Your counsel came into the matter and the matter settled the day before the committal on 4 December 2024, so at least witnesses were not required to attend despite having been summonsed. They were able to be called off for the committal was the following day, on the 5th.
56	You have taken this responsibility for your crimes by pleading guilty at a very early stage. 
57	As a result of your guilty plea, the time, the cost and the effort of a committal hearing in the court below, or a trial up in this court, has all been avoided. All the witnesses have been spared the experience of actually giving evidence.  
58	You have in these ways facilitated the course of justice and you must be rewarded for doing so. You were also cooperative in that you politely answered questions in both of the police interviews, which I have had an opportunity of reading overnight. I have regard to that as well. 
59	I take these various matters into account in mitigation.  

Remorse
60	I am prepared to accept that you do harbour some actual remorse. I have your guilty plea, and the stage of that, a very early one.  A guilty plea is usually, though not always, indicative of some remorse.  I treat your plea in that way. 
61	I also have references though to remorse in the report of Ms Cokorilo, and more significantly, I have your apology. I believe there was an aspect of downplaying your role when speaking to Ms Cokorilo, as you did at Paragraph 52. Your own apology, which is before me and marked as Exhibit 3, is more complete.  I take the presence of some actual remorse into account in your favour.
Bugmy 
62	I have dealt only quite briefly with your background, as I said I would.  I have not covered every detail that was placed before me or that is referred to in Ms Cokorilo’s report, or in your counsel’s written submissions. Ms Stanley indicated that she was relying upon the principles derived from the High Court case of Bugmy. 
63	An offender's circumstances and their experience during their childhood in their formative years must be considered in sentencing, not just out of some historical curiosity but because the effects of social disadvantage do not diminish with time. They are likely to have profound and lasting consequences, and they can sometimes explain, but not excuse, the offending.  Taking lifelong damage that is the result of childhood exposure to violence, or abuse or neglect, into account when sentencing is the mark of a humane society.
64	These Bugmy principles, as they have come to be called, have been re-stated in a large number of cases since, including the case of Herrmann .  Ms Stanley made it clear she was relying upon those principles only in the general fashion described in the case law. The prosecution argued there was no real evidentiary foundation, there was purely your self-report. They challenged the application of these principles submitting there could be no meaningful reduction in your culpability.  
65	The application of these principles does not depend upon proof of any causal connection between the background and the offending. A causal connection is very difficult to establish, and it was not being relied upon here. 
66	Nor does the disadvantage have to rise to a particular level. 
67	I am prepared to find that your background was disadvantaged to a degree. As was conceded on the plea, however, it was just nowhere near as disadvantaged as so many backgrounds that we do see. You had a home, you had parents who loved you, you have felt a level of support. There was, however, some exposure to family violence directed at you in your early life and witnessed in the home.  It was in that sense an unenviable background. I give it full weight in the way in which that phrase is employed in the case law, including those cases I have referred to, Bugmy and Herrmann but also Sabatucci, Newton and Dhal.  
68	That case law makes it clear that social disadvantage will not attract the same weight in every case or in the same fashion and that the weight to be given to disadvantage will depend on the nature and the extent of that disadvantage, the nexus, if any, with the offending, though as I have said, no causal link is required, and also the nature of the crime or crimes under consideration.  It requires a consideration of the relative importance in the particular case of sentencing considerations such as deterrence, community protection and rehabilitation.  (See the case of Terrick).  
69	I take your background into account as far as I am able to. It does not lead to any large reduction in your culpability. In fact, it is a very modest reduction.
Report of Ms Cokorilo; Verdins Limb 5
70	Ms Stanley relied upon the report of Ms Cokorilo as providing details of your background, but also as raising the application of the fifth limb from the case you heard discussed of Verdins v The Queen.  Ms Stanley argued that there was a modest increased custodial burden here provoked by the post-traumatic stress disorder (PTSD) and the depression spoken of in that expert report. The Crown challenged that submission. 
71	The report was hardly strong on this topic. Ms Cokorilo seemingly took you at your word as to a past diagnosis of post-traumatic stress disorder. She set out your account of your past treatment but had no supporting documents at all. She conducted a number of brief tests, including some screening tests or tools, and relied on your self-report of your various symptoms. Your counsel was explicit in saying that she was not relying upon the first to the fourth limb, or the sixth limb of Verdins, and that was irrespective of some of the theories that were advanced by Ms Cokorilo in her report. There was plainly no realistic connection between any condition and the offending and Ms Stanley’s concession was sensibly made. Though not amenable to Verdins, I will have regard to the conditions in a general fashion, as I said I would.
72	As to the increased prison burden argument, she was pointing to Paragraphs 98 and 99 in particular. She argued there was a modest increased burden. I am prepared to act on that submission, having reflected on it overnight.  It is not a large matter on the plea. Indeed, you seem to be doing well, if not very well in custody and doing such courses as you can. As to the balance of that report, there is the risk assessment and the statements made by Ms Cokorilo as to your rehabilitative needs. I have said already, I just will not act on your account of the offence set out at Paragraphs 52 to 54.  
73	Your risk is judged to be moderate in relation to future violent offending and high in relation to general offending. 
74	Again, I have not mentioned every aspect of the report, and I do not intend to. I take into account the report in the manner contemplated by your counsel.    
Youth
75	I am going to come shortly to discuss your future prospects of rehabilitation. That issue is very much connected up with your relative youth. I apply the principles in relation to the sentencing of youthful offenders to my task. You were only 23 at the time and are still only 24, and though you are not by any stretch of the imagination a youthful first offender, there is no sizable criminal history. I reject the contention made by the Crown that it is a long criminal history. It really is not that long, and it is worth restating it does not involve appearances in the Children’s Court. So, your criminal history involves four appearances since 2019. 
76	Young people are less developed. The are not fully mature and nor are their brains. Ms Cokorilo refers to some of these matters in scientific language in her report. I shall not. Young people are less able to think through the consequences of their actions and more likely to act unwisely or in a group setting. Greater emphasis is placed on rehabilitation. It can be forgotten, but should not be, that the community needs no protection from someone who is rehabilitated. Young people are less stuck in their ways, and they are more likely to be amenable to rehabilitation.  Young people are generally speaking viewed by the law as being less culpable and the benchmark for sending them to prison is understandably a high one. They are also more likely to be corrupted by the influences which exist in a prison setting. It can in fact be quite counter-productive to incarcerate them in the name of community protection. Sometimes, of course, it is just unavoidable, and that is plainly the position in this case. You were not some silly teenager out committing your first minor offence. You were 23 years of age, on a community corrections order at the time and committing serious criminal offences. Nonetheless, your relative youth is important to my task for all the reasons spelt out in the case law, including the cases of Mills and Azzopardi.  
Rehabilitation 
77	I turn then to your prospects of rehabilitation. Ms Stanley argued that you had favourable or good prospects of rehabilitation. The Crown argued that they were poor. I fall between those two points, but perhaps a bit closer to your counsel's submission than the prosecutor's. 
78	It is true that the offending is serious and that it represents a worrying escalation in offending. Nor has it been helpful that you committed the subsequent matters six months later. 
79	You were on a community corrections order at the time you committed the armed robbery.
80	You will be deterred to a degree, I am sure, by being held on remand for as long as you have been held, and also by the sentence I will soon impose which will extend your custodial liability.  This is your first ‘taste’ of prison. There is still some family support here, and that is a positive. Your criminal history is not overly long, you are still quite young, and as I have said a moment ago, with youth comes hope for change.  You are doing what you can in custody to improve your prospects. It is an encouraging letter from the Bridge program. I do not see the need to set it out, but I have read it again since the plea and it is a good letter.  You are making the right noises, and you have done courses as well. I have your own letter, and I am not at all dismissive of it. Sometimes letters of apology are just hopeless and plainly written to gain an advantage at court. That is not the nature of your letter in my judgment. You are obviously an intelligent person, and I do accept that you are sorry for what you have done.  I have already mentioned my allowance for remorse in this case.
81	Your counsel was submitting that I should find that you had favourable or good prospects of rehabilitation. 
82	I do not doubt that you wish to change. I do not doubt that you have some prospects. I would not rank them quite as highly as your counsel does at this point, but you are far too young to write off. You can still hopefully live a contributing life.  I do not currently view your prospects as being poor, so I reject the Crown's submission in that respect.  They will be if you keep using illegal drugs. I am guardedly optimistic at this point. I believe there are relatively favourable prospects. Those prospects will increase significantly if you can abstain from illegal drug use in the future and cease negative peer association as well.  However, can you do these things?  Drug use has been very problematic for many years. If you cannot abstain from illegal drug use, if you keep using drugs of dependence and abusing alcohol, your prospects of rehabilitation will be greatly reduced indeed. 
The Offences
83	Let me turn to the offending.  The agreed summary describes your offending, and I do not see any point in restating all the agreed facts. The document does that. 
84	I must pay regard to the nature and gravity of the two offences before the court. Ms Stanley accepts that the armed robbery is a serious offence. Of course it is. It is after all an inherently serious offence, and this was no minor example of it.  
85	Each party spelt out features of seriousness that existed, as well as some which were absent. Your counsel for instance spoke of the relatively brief nature of the offence and that it was not a group attack. She conceded there had been some limited planning but argued that the targeting of the victim was spontaneous, and a decision made by you alone. That, if I may say so, completely conflicts with what you have told Ms Cokorilo at Paragraphs 52 and 53, as well as the actual facts themselves that are before me. You were not the driver, the car stopped, you go out, the car waited. You had travelled in the car. You had the firearm. The Crown pointed to the time and location and the vulnerability of the victim, and the physical actions in striking him, as well as the weapon that you carried and the threats that you made.  Most armed robberies are brief. Most soft-target armed robberies have limited planning, some far less than this one did. 
86	The absence of some features of aggravation is really not the best way for me to assess the seriousness of your offending.
87	Each party in one way or another tried to place the offence of armed robbery somewhere on a spectrum of offence seriousness. That is always a fraught task and really is not the best way to assess the gravity of the offence. Your counsel, for instance, argued it fell in the ‘mid-range’. I took the crown to say it fell at a higher level than that. But maybe they were just saying it was a serious offence. It plainly is a serious offence. 
88	There is always difficulty when applying an adjective to describe where an offence falls. Words such as 'mid' or 'low' or 'high range', they mean different things to different people. It is actually far better to look at the actual conduct - what you did.
89	Well, this armed robbery was no minor example of that offence, not by a long shot. It was a soft target offence, committed upon a lone male in a public place in the early hours. That public place was a street he should have been safe to walk along to his home. He was not because of you and your offsider.  Your offsider remains unidentified. Plainly there was some limited planning. You must have seen your victim and decided to rob him. You had the weapon. Your possession of that weapon is not in any way sensibly explained at all. The car had moved from A to B. It had been waiting outside the ATM, but you got out with your gun, and you committed this armed robbery.  It did not involve joint physical action, so in that sense it was not committed ‘in company’.  Your offsider did not get out of the vehicle. You made the demand and when your victim refused to comply you then struck him, and you struck him to the face with the barrel of the gun and then continued to try to strike him. At the end, you told him not to move or that you would shoot him. Now, I have to be astute to avoid double punishment. You were a prohibited person, and that offence relates to later in the night at Cranbourne. The fact is that the gun disposed of by you at that point was used in the earlier armed robbery. You were prohibited at that time then but also later in Cranbourne. There are differing elements and a different vice obviously but plainly there is a connection or overlap such that I must be astute to avoid double punishment. Not, however, the level of connection that exists in one of the cases to which I was referred where the shortening of a barrel of a gun embraced by one charge was done to permit its use in the actual armed robbery itself.  (See the case of Kruzenga). 
90	This armed robbery was not an intricately planned offence, I am not suggesting it was, but it was certainly not some low-level example of this offence. It was a long way removed from the most serious examples but placed well above the lowest examples given the weapon employed and the actual violence that was used, as well as all the surrounding circumstances including the location and time.  I am prepared to accept that it fell at the mid-range. 
91	The fact is so many armed robberies that we see in this court involve a demand being made and compliance, and they have a lesser weapon and often no actual violence at all.  This one had actual force, nasty force at that given the nature of the strike, and then it had the threatened use of a firearm. I am not able to find beyond reasonable doubt that the firearm was then loaded. You struck the victim to the face with that weapon. 
92	The charge of the possession of the weapon at Cranbourne is no minor example of that offence. That was conceded. This was an operational sawn-off shotgun with ammunition suitable for that weapon. It was not some non-functioning weapon found down the back of a garden shed or behind a wardrobe. It was an operational shortened firearm possessed by you and disposed of by you in the manner described. You were a prohibited person. You had no business being in possession of such an item. Your counsel was not suggesting that it fell in the lower 'category' of cases described in the Berichon line of authority. 
93	No doubt, if we did not have the armed robbery and your possession of the firearm related to a plan to shortly commit such a crime, it would fall directly into the higher category of offending. I have got to be very careful about that, for here we do have the armed robbery involving that weapon, and if the possession charge pertained to that same act and time, there would be an obvious overlap.  In that sort of setting, the possession charge could not be elevated to the more serious category, that is to say possession for a criminal purpose, because the firearm was used in the course of the other offending. To avoid double punishment in that setting, the sentence imposed for the possession charge should not include any penalty for the use or possession of the firearm in the other offending. Here, however, the indictment has been drawn in such a way that it specifies a different time and place in relation to the prohibited person in possession charge. There is not then that complete overlap, but there is still the issue of double punishment to consider and the need not to aggravate the prohibited person in possession charge by reference to the criminal purpose disclosed in the armed robbery committed earlier, or, for that matter, to aggravate the armed robbery on the basis that you were prohibited. To do either of those things would be quite wrong, and I will not engage in that exercise. 
94	I have said already, you were on a community corrections order at the time of this offending.  

Purposes
95	I have to consider a number of purposes of sentencing.  Rehabilitation is one of those purposes. Your prospects are, as I say, relatively favourable. 
96	I have to give weight though to the various other purposes of sentencing as well. 
97	I am required to punish you justly and proportionately. Punishment is an important sentencing purpose in this case.
98	I must also denounce your conduct.  Again, that is of importance here.
99	So, too, community protection.  
100	Deterrence is also a significant matter in my task. I must try to deter you, as well as others, from offending in this way in the future.
101	Specific deterrence relates to the need to deter you.  That is obviously of some importance in my task. Past sentences have seemingly not deterred you. The armed robbery represents an escalation in offending, and you have committed further firearms offences since. Plainly, I must strive to deter you from offending in the future.
102	I would give more weight to this purpose and to community protection if you were older or if you had a more significant criminal record, or less favourable prospects of rehabilitation. That is not the position, so I believe there can be some moderation. 
103	Then there is the aspect of general deterrence.  That is an important purpose of sentencing in this case.  It relates to the need to deter future offenders.
104	Armed robbery is a prevalent enough offence. Prohibited possession of an operational firearm is also a serious matter. We, for obvious reasons, do not want guns in the wrong hands.
105	The court must pass sentences which would cause those considering crimes such as yours to reconsider and to reflect on their position. We want future likeminded offenders to actually pause for thought and to reconsider their conduct. We want them to be deterred from offending - to turn away from offending.
106	I have to pay regard to the impact of the crimes and the maximum penalties for each of the offences before me.  Armed robbery, as I have said, has a 25-year maximum prison term. It is, as your counsel recognises, an inherently serious offence, and this one does not fall at a low level by any stretch of the imagination. 
107	I have to pay regard to current sentencing practices.  That is not a single controlling factor at all. I have looked at the Sentencing Advisory Council on-line statistics for each of these offences. 
108	Having said that though, sentencing statistics are of very limited, if any, use.  I have looked at some other sentences, but other sentences imposed upon other offenders for other crimes provide very little assistance.  They are not 'precedents' or authorities to be followed unless they are somehow able to be distinguished. They are simply examples of other sentences imposed on other offenders for other crimes. There is no such thing as one correct sentence, in any event. I have looked at the Judicial College of Victoria case summaries. 
109	I have looked at the small selection of cases provided to me by your counsel. None of those cases is on all fours. They never are. As is usually to be expected, there were varying matters in mitigation and in aggravation. There is differing offending, differing personal circumstances, including, for instance, one accused who had very, very serious mental health issue and who had only recently become fit to plead, and another who had a very decent period of residential drug rehabilitation under his belt.  I really was not assisted by those cases. They represent a tiny sample, and I have dealt with a large number of armed robbery and prohibited person matters in the course of my 15 years as a Judge. I am well familiar with current sentencing practice. 
110	What I do have to do is sentence you for your crimes. That is not a statistical task. That is not a task where the outcome is dictated by what has happened in other cases or by the average outcomes or the trends which might be disclosed in the statistical material.  I have got to sentence you for your crimes taking into account all the matters placed before me, matters in aggravation and mitigation in this case, the sorts of matters I have been mentioning in the course of my reasons. Well, statistics are silent on those issues, and it is those matters that lead to the actual sentences being imposed by a court. 
Totality
111	I do take into account the principle of totality of sentence. I have to consider whether the effect of these sentences is just and appropriate and commensurate with your overall criminality.  I have two charges to deal with. The most serious offence is the armed robbery. The armed robbery took place on the same day as the prohibited person charge, so there is that strong temporal connection. Not just a temporal connection but the weapon the subject of the prohibited person charge was the weapon employed in the armed robbery hours before.  There is, however, not a complete overlap between the two offences despite the same gun being employed in the earlier armed robbery. The seriousness of Charge 2 was not dependent upon another offence being committed with that gun. The prohibited person charge is, in its own right, a serious criminal offence.
112	There must, however, be recognition of those connections and that degree of overlap, and in my judgment that must lead to very significant moderation of the order for cumulation. I have said earlier, although I am not going to repeat it all, that I must be astute to avoid double punishment in this case given the overlap. 
113	I have engaged in a last look at the sentences imposed by this court and the overall effect to ensure it is commensurate with your overall criminality, and in an endeavour to guard against the imposition of a crushing term upon you. Your criminality was high here.  
114	Prison is a disposition of last resort. A court must never impose a more severe sentence than is required to achieve the purposes of sentencing. If prison is required, a court must never impose a longer term than is required to achieve the various purposes of sentencing. 
115	Well, a sizeable prison term is simply inevitable here given the seriousness of the offending. Your counsel concedes the inevitability of a prison outcome and one of a dimension requiring the court to fix a non-parole period. 
116	She argued at point four of the written outline that there should be a head sentence with a longer than usual non-parole period. I am sure that was a slip. She really was submitting that there should be a longer gap between the head sentence and the non-parole period. So, essentially a shorter non-parole period. There is, by the way, no such thing as a usual non-parole period.
117	I must not take into account the likelihood of your early release on parole.  I am required to fix a non-parole period and that is owing to the size of the head sentence which I will soon pronounce upon you.  The Adult Parole Board will make the decision as to whether you can be released on parole.  That has got nothing to do with me. It will be between you and them. I must have no regard to the possibility of early release.
Disposal 
118	A disposal order is sought in this case.  There is no opposition to the making of that order pertaining as it does to the firearm and the ammunition.
119	I am satisfied that the relevant provisions, s151 of the Firearms Act, come into play and that it is appropriate to order pursuant to those provisions the forfeiture to the Minister of the property referred to in the schedule, being the firearm and the ammunition.
Sentence 
120	I am now going to sentence you.  If you would please stand then Mr Maloth: 
121	On Charge 1, which is the charge of armed robbery, I convict and sentence you to three years and nine months' imprisonment.  That is the base sentence. 
122	On Charge 2, the charge of being a prohibited person in possession of a firearm, I convict and sentence you to two years' imprisonment. 
Concurrency 
123	The base sentence is therefore the three years and nine months, I have imposed on the armed robbery.
124	 I make the following order for cumulation.  I direct that: 
•	Three months of the sentence imposed on Charge 2 is to be served cumulatively, that is on top of the base sentence.
Total Effective Sentence
125	It follows then that this order for cumulation produces a total effective sentence in your case of 48 months or four years' imprisonment. 
Non-parole period
126	I fix a period of 28 months or two years, four months, during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
127	You have already served 342 days of this sentence by way of pre‑sentence detention and that declaration is made pursuant to s18 of the Sentencing Act and is entered into the records of the court.
Section 6AAA
128	Finally, I have told you that I have taken into account your guilty plea. I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these two offences following a jury trial, I would have convicted and sentenced you to six years' imprisonment.  I would have fixed a non‑parole period in that setting of four years and four months.
129	Have a seat then for a moment.  Is there anything else from either of you, or not.
130	MS STEVIC:  No, Your Honour.  
131	MS STANLEY:  No, Your Honour.  
132	HIS HONOUR:  Well, that completes the matter.  You will go down and see your client today, Ms Stanley, and have a discussion about what has occurred here today and the sentence, and his rights in relation to it.
133	MS STANLEY:  Yes, I will, Your Honour, and perhaps if I could ask for him to just remain in the dock for a couple of minutes - - -  
134	HIS HONOUR:  No, I won't.  I won't have him remain in the dock, you will have to go downstairs to see him - - -  
135	MS STANLEY:  Could I also seek Your Honour's permission to provide the Magistrates' Court with a copy of the orders from today, just so that the Magistrates' Court is appraised of what that sentence was that has been imposed - - -  
136	HIS HONOUR:  There's no problem doing that, they will be orders of the court.  I am happy to - I will sign those in a second.  Are you doing the plea, or not.
137	MS STANLEY:  No, I believe someone from Ajak and Associates is briefed for doing the plea, so I just want to make sure they are obviously taking notes of Your Honour's reasons today.
138	HIS HONOUR:  Yes, I mean there's no question - you can have the order, there's no problem with that.  I am wondering whether they might be assisted by my reasons.  
139	MS STANLEY:  Yes - - -  
140	HIS HONOUR:  It would be an unrevised - - -  
141	MS STANLEY:  Unrevised, yes, and perhaps if I can undertake that they are only provided to the Magistrates' Court and to the prosecution for the purposes of Monday's plea - if there are unrevised marks that might be available come Monday morning.
142	HIS HONOUR:  Yes.  I'm just thinking, there's probably no reason why I - I mean, it's going to be unrevised, I've gone pretty much from the script and my associate sometimes follows along, I think she has, and where I've moved off the script, she's probably adapted that.  But it won't be a revised version, so let me just - but it's not going into your hands, only your hands, that's the issue.  So, who is it going to then.
143	MS STANLEY:  Ajak and Associates is my instructing firm, Your Honour.
144	HIS HONOUR:  And is the plea being - is it just being prosecuted by Vic Pol, is it, or - - -  
145	MS STANLEY:  Yes, it will be Victoria Police.
146	HIS HONOUR:  Yes.  Just bear with me.  
147	MS STANLEY:  Yes, Your Honour.  
148	HIS HONOUR: I'll provide a copy of my unrevised reasons, they will be provided by email by my associate.  We'll copy in the Crown as well to that, as we do for any email.  But they'll be spelling out that they are only to be used for that limited purpose.  Once I get these reasons back, I will revise them.  I always do it on pretty much the day that I get them, so it won't be too long until there's a revised version.  But they're not to be further distributed. They're for the purposes of your client's plea on Monday - - -  
149	MS STANLEY:  (Indistinct) - - -  
150	HIS HONOUR:  I mean, I have no problem with the Magistrate being provided with them, if I can put it in those terms, but they're to be - I think they're to be recovered and they're to be then destroyed, all right.
151	MS STANLEY:  As Your Honour pleases.  Thank you very much, Your Honour, I am most grateful.
152	HIS HONOUR:  It probably makes the plea a bit easier, I suspect, but anyway - - -  
153	MS STANLEY:  Yes, it will, Your Honour.  Thank you.
154	HIS HONOUR:  Are there any other matters, or not.
155	MS STEVIC:  No, Your Honour.  
156	MS STANLEY:  No, Your Honour.  
157	HIS HONOUR:  Mr Maloth, Ms Stanley is going to come down and see you downstairs. She'll come down and have a chat to you about what's happened here.  So, if Mr Maloth can be removed now then please, thank you.  10.30 on Monday.
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