Director of Public Prosecutions v Abbott

[2024] VCC 1253

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-23-01793

DIRECTOR OF PUBLIC PROSECUTIONS

v

CORY DEAN ABBOTT

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JUDGE:	HOLDING
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 July 2024
DATE OF SENTENCE:	15 August 2024
CASE MAY BE CITED AS:	DPP v Abbott
MEDIUM NEUTRAL CITATION:	[2024] VCC 1253

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:                Plea of guilty – 4 Charges – Aggravated Carjacking  Prohibited Person Use Firearm – Common Law Assault               1 Summary Charge of Drive whilst disqualified.

Legislation Cited:               Crimes Act 1958 (Vic); Firearms Act 1995 (Vic);  Road Safety Act 1989 (Vic).

Cases Cited:Bugmy v R (2013) 302 ALR 192; R v Verdins [2007] VSCA 62; Barci & Asling (1994) 76 A Crim R 103.

Sentence:  Total Effective Sentence of 8 years and 1 months’  imprisonment with a non-parole period of 6 years and 1     months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr M. White	Abbey Hogan, Solicitor for Public Prosecutions
For the Defendant	Mr C. Pearson	Paul Vale Criminal Law

HIS HONOUR:

1Cory Abbott, after you accepted a sentence indication given by me on 3 July 2024 you were arraigned on 11 July 2024 and pleaded guilty to the following charges:

·Charge 1 – Aggravated Carjacking contrary to s 79A of the Crimes Act 1958 (Vic) – maximum penalty of 25 years imprisonment or 3000 penalty units.

·Charge 2 – Prohibited Person Use Firearm contrary to s 5(1) of the Firearms Act 1996 (Vic) (‘Firearms Act’) – maximum penalty of 10 years imprisonment or 1200 penalty units.

·Charges 3 and 4 – Common Law Assault – each carrying a maximum penalty of 5 years imprisonment or 600 penalty units.

·Summary Charge 4 – Driving whilst disqualified contrary to s 30(1) of the Road Safety Act 1986 (Vic) – maximum penalty of 2 years imprisonment or 240 penalty units.

Circumstances of your offending

2The circumstances of your offending are not in dispute and were outlined in the Prosecution Opening for Sentence Indication dated 7 June 2024[1].

[1] Exhibit 1.  

3I will now summarise the facts of your offending briefly. At approximately 3.50pm on 17 February 2023, Gary Bulmer, who was 75 years old at the time and was not known to you, was driving his vehicle along Iona Street, Norlane when you confronted him. You were on a bicycle in the middle of the road.

4Mr Bulmer locked the doors of his vehicle. You spoke to him through the car window and before he could drive away, you reached through the open driver’s window and took his keys from the ignition of the car.  

5There was a struggle through the window. Mr Bulmer tried to grab a torch under his driver’s seat. You unlocked the driver’s door and Mr Bulmer relocked it with his elbow. You produced a firearm and banged it on the window. It was then that Mr Bulmer observed the firearm and described it as a ‘grey coloured pistol’ (Part of Charge 2 – Prohibited Person Use Firearm).

6Mr Bulmer saw you ‘cock’ the pistol and heard a click as you told him “I will shoot you, I will shoot you, I am not bluffing”. You told Mr Bulmer to get out of his vehicle.  

7Mr Bulmer who was understandably frightened, got out of his vehicle while you pointed the gun at him. You then stole the vehicle and drove off. At the time you were disqualified from holding a driver’s licence and you were also a ‘Prohibited Person’, as defined by the Firearms Act, due to your prior criminal history. The above conduct constitutes the offence of aggravated carjacking, being a prohibited person in possession of a firearm, and the summary offence of driving disqualified.

8After you drove away the victim, Mr Bulmer, contacted ‘000’ and reported your offending.

9After the carjacking you drove to a block of units in the area and spoke with a nearby witness. You asked this witness if they knew how to “bleed the radiator”. The witness said that they did not have the tools and told you that they would leave you to sort your business out. You then lifted your singlet and revealed the firearm tucked into the front of your waistband.

10This witness then observed you leaving the unit block and driving in a manner where you appeared to be attempting ‘burnouts’.

11A description of the vehicle you had stolen was broadcast over the police radio. You drove past some police members and gestured towards them giving them the ‘thumbs up’ signal.

12DLSC Normoyle and DSC Shirra, were patrolling in the area and saw the car parked in Warrawee Avenue. They drove around the bowl of the avenue checking the registration at the time to confirm it was the car that was reported stolen.  They observed you to be in the driver’s seat looking down into your lap. You looked up, noticed the police vehicle, and became animated and frantic in your movements.

13DLSC Normoyle positioned the police vehicle into the driver’s door of the stolen vehicle to prevent you from being able to get out of the car and escape. As this occurred, you produced the loaded home-made firearm (Part of Charge 2 – Prohibited Person Use Firearm). You lifted your arm and pointed it directly at both police officers through the open driver’s side window of the stolen car.  It is this action, pointing the firearm at the two police officers, that constitutes Charges 3 and 4 – Common Law Assault.

14DLSC Normoyle, who was positioned in the driver’s seat of the police vehicle, immediately unholstered his firearm and discharged a total of 6 shots through the windscreen of the police vehicle, impacting you at least four times to your upper body.

15You then got out of the stolen vehicle through the driver’s side window of the stolen car and started to run away. As you did so, DSC Shirra grabbed hold of you, but you were able to break free and ran towards the front yard of 13 Warrawee Avenue. As you did this you reached for a bum bag that you had over your shoulder. You were then taken to the ground by the police officers and arrested. You struggled with the police stating, “there is something in my bag that is going to blow up”.

16Once you had been handcuffed and secured, DLSC Normoyle and DSC Shirra administered first aid for gunshot wounds until further police units arrived, followed by Ambulance Victoria. You were treated at the scene by paramedics before being airlifted to the Alfred Hospital in a serious condition for further treatment. At The Alfred Hospital you underwent a number of medical procedures and surgeries for gunshot wounds.

17During a crime scene investigation, a loaded homemade firearm containing a .22 magnum calibre cartridge was located on the front passenger seat within the stolen vehicle. Inside the bag that you had been carrying, police found various items including some ammunition and other items that are not the subject of any charge.

18On 22 February 2023 you were subsequently charged without interview and remanded in custody, whilst still in hospital. You remained at the Alfred Hospital until 6 March 2023.  You have been in custody since your arrest.

Victim Impact

19Mr Bulmer has not made a victim impact statement; however, it is not disputed that this offending has affected him emotionally. The agreed summary of the offending states that his family describes him as having ‘lost faith in the system’ he ‘doesn’t’ feel supported’, he was left with no car and no phone. I am satisfied beyond reasonable doubt that Mr Bulmer would have found your offending extremely distressing and frightening and that this is likely to have an ongoing effect upon him.

20It is agreed that DSC Normoyle has also felt the impact of your offending. He reports that since the incident he has had poor and interrupted sleep, he feels his short-term memory has been impaired; he has a heightened level of tension; he describes experiencing hypervigilance and overreacting to unexpected noises or movements.  

21DSC Shirra has provided the Court with a victim impact statement that eloquently describes the impact your offending has had upon her. I have read her victim impact statement carefully. She makes it clear that as a police officer she understands that she is likely to encounter antisocial behaviour, but she states being threatened at gunpoint by an offender was ‘beyond anything else’ she has experienced in thirteen years of policing and that the experience has caused her a ‘significant amount of ongoing anxiety and stress’. She says that when you pointed the gun at her, her immediate thought was of other police members who have died in the course of their duty. She genuinely thought as she heard the first gunshots that she was going to die.

22She describes hoping to have many years of policing ahead of her but finds it difficult to stop thinking about this incident. It keeps her awake at night. She has a partner who is a police officer, and this incident has heightened her awareness of the dangers a police officer can be exposed to ‘at any time’.  She states that now when she is at home and her partner is at work she experiences dread at the thought of colleagues unexpectedly knocking on her door to tell her something has happened to him.

23She concludes her statement by stating that your ‘actions on this day are the embodiment of why so many policing families live with this fear and constant apprehension for the safety of their loved ones in the workplace.

Personal Circumstances and Factors in Mitigation

24I turn now to your personal circumstances which are outlined in the Psychological Reports of Mr David Ball dated 3 June 2016[2] and 7 June 2024[3] and your Counsel’s Outline of Submissions.[4]

[2] Exhibit 2.

[3] Exhibit 3.

[4] Exhibit 1.

25You are currently 38 years old, and you were born and raised in Geelong. Your parents separated when you were 3 years old, and you told Mr Ball you were then raised by your father who was an alcoholic and violent. The psychological report makes no reference to your mother playing an active role in your upbringing.

26You told Mr Ball that your father would take you ‘to his friends while he would drink and [you] used to be locked out of home and left on the doorstep in winter till 11 or 12 at night’.[5]

[5] Exhibit 3, p.4.

27You told Mr Ball that when you were 12 years old, ‘I was kicked out on the street and put in DHS sometime later’. Since this time, you have lived largely in institutions. You have been sentenced on numerous occasions to periods of custody that I will refer to in more detail later in these reasons.

28The highest level of secondary education that you achieved was Year 7. You have been assessed as intellectually disabled with a full-scale intelligence quotient of 57.  You reported to Mr Ball that you found it difficult to learn at school and you attributed this to symptoms of “bad ADHD”. You told Mr Ball that your father gave you ADHD medication “on and off” during your childhood.[6]

[6] Ibid.

29You also told Mr Ball that you have had inconsistent employment throughout your life. When you have been employed, it has been in low skilled labouring positions. You explained to Mr Ball that your inconsistent employment is largely due to having been in and out of custody or detention since you were 14 years old.

30You have had two significant relationships in your life. You have a daughter from one of these relationships who is 16 years old. You told Mr Ball that your daughter is now in DFFH care due to her mother being incarcerated. You also had a relationship for a few years with a woman who had three children. You had work at this time as a concreter and described this period as perhaps the happiest time in your life. Unfortunately, this relationship ended because this partner viewed you as a risk to her and her family. You have 3 siblings and retain a relatively close relationship with your older sister.

31It is clear that substance and alcohol abuse have been an issue for you for many years. You began using alcohol at approximately 12 years of age, then commenced using cannabis around the age of 13 or 14. You have reported consistent use of methylamphetamine and alprazolam (Xanax) since you turned 21 or 22 years old. You told Mr Ball your offending is in part due to “drugs and hanging around the wrong people all my life”[7] and that unstable housing has been a significant problem.

[7] Ibid, p.5.

32In relation to the current offending, you told Mr Ball that you had a vague recollection of the incident and that you were “coming down off ice (methylamphetamine) bad”. You were unsure how much you had used but you said that you had probably also consumed a 1mg tablet of clonazepam. You stated that at the time you were suffering bad anxiety, and you took the car because “you needed to get out of the area”.[8] Your counsel told me during the plea that you had not made the gun but had bought it because you were suffering a degree of paranoia.  

[8] Ibid, p.5.

33Mr Ball concluded that you satisfied the diagnostic criteria for alcohol, opioid, stimulant and benzodiazepine use disorder.

34In relation to your mental health, you have self-reported suffering from depression, anxiety and general paranoia. You have also reported a history of psychosis and seizures related to drug use. Mr Ball stated that you satisfied the diagnostic criteria for antisocial personality disorder, as well as persistent depressive disorder with anxious distress – early childhood onset – related to your dysfunctional family background and time in DHS residential care. Despite these diagnoses, Mr Ball stated that he could find no clear nexus between your mental health conditions, personality disorder, and the offending.

35Your counsel, Mr Pearson submitted the following matters should be considered in determining an appropriate sentence.  

36In relation to charge 1, it was conceded that provisions in the Sentencing Act 1991 (Vic) (‘Sentencing Act’) required the imposition of a term of imprisonment with a non- parole period of at least 3 years unless a ‘special reason’, as defined by that Act exists. It was not submitted there was a special reason in the circumstances of this case.   

37Your counsel submitted you always intended to plead guilty to at least the charges of aggravated carjacking and being a prohibited person in possession of a firearm. Your concern was in relation to the factual allegation of pointing the gun at the police officers. It was submitted that the police action in shooting you was ‘a massive escalation of what which was in fact happening’. It is submitted that in applying the principle of totality to charges 3 and 4, that is the common assault charges based upon you pointing the gun at police should result in a sentence to be served concurrently with charges 1 and 2.

38Your counsel emphasised that the offending was a continuing episode and that the court had to be careful not to doubly punish you for aspects of the offending that overlapped. In particular the assault upon the two police officers involved the same action of you pointing the gun at both of them at practically the same time. It was submitted that your use of the firearm overlaps with the possession of the firearm as a prohibited person and therefore there should be substantial concurrency in the separate sentences to be imposed in respect of these charges.

39Tendered on your behalf were medical records that demonstrated that you were very seriously injured as a result of being shot by the police and you were fortunate that your injuries were not fatal. You were in hospital for approximately 17 days and became permanently disfigured as a result of the injuries. It was submitted that sustaining such serious injuries has been a significant extra curial punishment, that should be taken into account in moderation of your sentence.

40Your deprived background was relied upon in engaging the general application of the principles described in the High Court case of Bugmy[9]. That is, that your most unfortunate background is relevant in assessing your level of moral culpability for this offending.

[9]Bugmy v R (2013) 302 ALR 192.

41Your counsel points out that you are ‘institutionalised and dependent upon the prison regime’, however, your psychological assessment still states that because of your mental health considerations, your experience of imprisonment is more onerous than it would be for people who do not suffer such conditions. That is that limb 5 of the often-cited case of Verdins[10] was applicable. It was not suggested that limb 1 of Verdins was engaged.

[10] R v Verdins [2007] VSCA 62.

42Your counsel emphasised in the plea and his written submissions the fact that your criminal history is consistent with a person who had become institutionalised. He stated:  

There is clearly hopelessness in the presentation of the Applicant. He accepts that he will spend more time in custody. He is once again hopeful that, upon his eventual release, he can find accommodation, a job – probably in concreting – and refrain from drug abuse and further offending. These are simple goals that have thus far proven to be elusive.[11]

[11] Exhibit 1.

43Since I granted your application for a sentence indication your counsel has filed more material with the court, namely, prison remand records that detail your periods of imprisonment. Your counsel has calculated from these records that since you were 18 and 9 months old you have been in custody serving sentences from most of your life. He calculates you have been in custody since that age except for a period totalling 3 years and 3 months. The thrust of his submission was that given your unfortunate history, I should reduce the length of the sentence that was pronounced when I granted your application for a sentence indication. In relation to this more recent material, it was submitted that your onerous conditions of imprisonment already served should be taken into account.

Conclusion

44Mr Abbott, these offences are very serious. I accept your counsel’s submission that your background has been profoundly deprived, and because of that I am not going to sentence you as if you were a person who had grown up with all the normal privileges of a stable and loving family. I have no doubt that your dysfunctional family background and the lack of support you received when you were growing up, contributed to your illicit drug use, homelessness, and criminality.

45I accept that (although not specifically referred to by your counsel) that your intellectual disability should to some extent lead to a moderation in the weight to be attached to general deterrence.  This disability to some extent makes you a less-than-ideal vehicle for the implementation of principles of general deterrence. The moderation is however modest given your continued use of illicit substances and your prior convictions for serious offending clearly relating to your past drug use. It is also of course the case that your offending involves an appreciation of how threatening it is to point a gun at someone with the purpose of stealing their motor vehicle.

46It is a sad fact that it appears you committed these offences for no more reason than wanting to leave the area where you were residing.

47I accept that your mental health conditions, and disability are likely to make your period of imprisonment more difficult than if you did not have those conditions and I will take that into account in moderation of your sentence. I am also of the view that your pleas of guilty are indicative of a level of remorse.

48However, you must understand that there are important principles of sentencing that mean you must receive a lengthy period of imprisonment for these crimes. I have not, so far in these reasons, said much about your prior criminal history. The law states that where you have served your sentence for past offending you must not be punished again for those crimes. But that history of offending is relevant to me assessing your prospects of rehabilitation, that is, the prospect that you will not commit serious crimes in the future. Unfortunately, I can only assess your prospects of rehabilitation as bleak.

49You have over the years been sentenced for repeated offending, no doubt related to your ongoing drug use. You have prior convictions for numerous offences, including robbery, recklessly causing serious injury, assault, burglary theft, motor traffic offences, arson, possessing controlled weapons and other offences. It is significant that in August 2016 you were sentenced in respect of a number of serious offences including armed robbery, being a prohibited person in possession of a firearm, intentionally causing injury, burglary and theft. I have read the sentencing reasons of Judge Hampel who on that occasion sentenced you to a total effective sentence of 6 years imprisonment with a non- parole period of 3 years and 9 months.

50The information before me indicates that you completed serving that sentence in December 2021, but you reoffended and were sentenced in the Magistrates’ Court in October 2022 in respect of charges involving unlawful assault, theft, aggravated burglary, and resisting an emergency worker on duty. You received a sentence of 100 days gaol and an 18-month community corrections order. You committed the offences for which I am sentencing you about 4 months later while you were serving that community corrections order.  

51While I take into account your deprived background, I must also have regard to the important purpose of sentencing in your case, namely, protection of the community. Denunciation, as well as general and specific deterrence are also important considerations.

52The prosecution referred me to one case said to have some comparable features. I have taken account of current sentencing practices, bearing in mind that such cases are not precedents, and each case must be considered according to its own circumstances.

53I reject your counsel’s submission that the actions of police Officer Normoyle were ‘a massive escalation’ of the situation. Police officers must be able to defend themselves. Even though you were shot a number of times you were still able to get out of the vehicle and resist arrest. I have no doubt that Officer Normoyle was when he shot you intent on doing no more than preventing you from shooting himself and Officer Shirra.  The offences of common assault, in this case constituted by pointing a loaded firearm at two police officers at close range, is a serious example of this offence. There are two separate victims, both of whom have been understandably traumatised by your actions. I accept it is the one action that has constituted charges 4 and 5 and there is a proper basis for a large degree of concurrency between the sentences imposed on those charges; however, there still must be some degree of cumulation to reflect the fact that two victims have suffered the consequences of your offending.

54I accept your counsel’s submission that I must have regard to the fact that you were shot numerous times to the upper body and that this constitutes some punishment for your offending. While the injuries you received directly resulted from your criminal behaviour, and to that extent were brought about by your own actions, the fact remains that being shot was a punishment that you have suffered.[12]  The prosecution do not take issue with this being a consideration; while making the point that this in no way suggests that Officer Normoyle’s actions were not justified.

[12] See Barci & Asling (1994) 76 A Crim R 103, 111.

55I have carefully considered application of the principle of totality. While I accept that there is an overlap in the offending with your possession of the firearm, there is an aspect of the offending that is specifically related to your status of being a prohibited person as defined by the Firearms Act. I am of the view that this has to be recognised by a degree of cumulation relating to that offence.

56Mr Abbott, I accept your counsel’s description of you as being institutionalised and I must balance various sentencing considerations, so that the sentence I impose upon you is not crushing. I have tried to balance the various sentencing considerations by imposing a sentence that is no more harsh than necessary in order that the sentence be just and appropriate in all the circumstances. I should state that when I granted your application for a sentence application, I was aware that the indication was the upper most limit of the sentence that I could later impose. Having considered the matter more carefully I have reached a conclusion that the sentence I impose should be reduced but only slightly.

57In balancing the various sentencing considerations as best I can, and having regard to all relevant matters, and submissions, I have determined that you should be sentenced as follows:

58In respect of charge 1, aggravated carjacking you are convicted and sentenced to 5 years and 9 months’ imprisonment; this is the base sentence.

59In respect of charge 2 being a prohibited person did use a firearm you are convicted and sentenced to 2 years imprisonment.

60In respect of charge 3 common assault of officer Normoyle you are convicted and sentenced to 2 years imprisonment.

61In respect of charge 4 common assault of officer Shirra you are convicted and sentenced to 2 years’ imprisonment.

62In respect of the summary offence of driving disqualified you are convicted and sentenced to 2 months’ imprisonment to be served concurrently with all other sentences imposed this day.

63I declare that 14 months of the sentence imposed on charge 2 is to be served cumulatively upon charge 1 and all other sentences imposed this day.

64I declare that 7 months of the sentence imposed on charge 3, and 7 months of the sentence imposed on charge 4, are to be served cumulatively on charge 1 and on all other sentences imposed this day.

65That makes a total effective sentence of 8 years and one months’ imprisonment. I declare that you must serve a minimum period before being eligible for parole of 6 years and 1 months’ imprisonment.

66Pursuant to s 18(4) of the Sentencing Act I declare that the period of 455 days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.

67Pursuant to s 6AAA of the Sentencing Act I indicate that had you not pleaded guilty to these offences I would have sentenced you to a total effective sentence of 10 years and 6 months’ imprisonment with a non-parole period to be served of 8 years.

68I grant the applications for forfeiture and disposal in the terms of those applications that have been filed with the court.