Director of Public Prosecutions v Bonny

[2020] VCC 1698

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00761

DIRECTOR OF PUBLIC PROSECUTIONS

v

BIANCA BONNY

---

JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June, 18 September, 20 October 2020
DATE OF SENTENCE:	20 October 2020
CASE MAY BE CITED AS:	DPP v Bonny
MEDIUM NEUTRAL CITATION:	[2020] VCC

REASONS FOR SENTENCE
---

Subject:         Criminal law – Sentencing – Robbery, possess a drug of dependence, and related summary charge of committing indictable offences whilst on bail – Early plea of guilty –sentence of imprisonment imposed

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	Ms A Hogan, solicitor for the Director of Public Prosecutions
For the Accused	Ms M O’Brien with Ms A Sharpley Patrick W Dwyer Barristers & Solicitors	Patrick W Dwyer Barristers & Solicitors

HER HONOUR:

1Bianca Bonny, you have pleaded guilty to two charges on the indictment, one charge or robbery and one charge of possess drug of dependence, Cannabis L, and a related summary charge of commit indictable offence whilst on bail.

2The offences are serious and that is reflected in the maximum penalties that are prescribed and they are 15 years' imprisonment in respect to robbery,
30 penalty units or three months' imprisonment in respect to commit an indictable offence whilst on bail, and because the possession charge relates to a quantity of cannabis that is not more than a small quantity and not committed for any purpose related to trafficking, not more than five penalty units.

3You have admitted your criminal record and there are nine previous court appearances that span the period from 22 February 2005 until 20 April 2017.  There are a number of prior convictions recorded in respect to dishonesty, various offences of violence against a person as well as other serious criminal offences.

4In the past you have been the subject of a variety of dispositions including terms of imprisonment. 

5You have a history of mental illness and chronic substance abuse.  You were first in contact with Mental Health Services at age 15 when you were referred to the Austin Child and Adolescent Mental Health Service (CAMHS) in the context of self-harming behaviour and chroming, heroin use and suicidal ideation.

6A further referral to CAMHS occurred when you were 17.  You presented with psychotic symptoms including paranoid thoughts and you continued to be involved with CAMHS and Orygen Youth until you were 25. 

7You have been diagnosed with paranoid schizophrenia and substance use disorder and over the years there have been intermittent psychiatric admissions and treatment.

8In addition to your diagnosis of schizophrenia recently you have been diagnosed with anti-social personality disorder and probable borderline personality disorder. 

9Your mental history coupled with your chronic substance abuse history largely explains the past pattern of offending.  However, it in no way excuses your behaviour as you do know right from wrong.

10On 26 May 2020 I sentenced the co-accused in these matters, Mr Jose Henriquez, in respect to one charge of robbery and a related summary charge of commit indictable offence whilst on bail arising out of the same facts and circumstances and he was sentenced to the equivalent of time served which was in his case 342 days to be followed by a Community Correction Order of
12 months which was therapeutic in nature, it was with supervision and treatment in respect to drugs, mental health and other offence behaviour programs as deemed appropriate. 

11Unfortunately, your matter could not proceed at that time because you were unwell, and you were receiving inpatient treatment at Thomas Embling Hospital.

12You were charged and remanded in custody for these matters on 30 July 2018 and whilst on remand your psychiatric state has deteriorated such that at times you have been transferred to Thomas Embling for inpatient mental health treatment.  Your condition has improved following a lengthy period of anti-psychotic treatment.

13Your plea hearing eventually proceeded on 16 June 2020 and was adjourned to enable a pre-sentence report to be obtained as to your suitability to perform a Community Correction Order.  At that time consideration was being given to a combination sentence.

14However, circumstances have now changed such that I do not consider that such a disposition is available. 

15I now will proceed to sentence you on the basis of the summary of prosecution opening that was read at the plea hearing.

16As stated earlier the offending was committed in the company of Jose Henriquez.  At the time you were in a relationship with him but that has since ceased.  The victim, Darren Borg Jamieson, who I will refer to as Borg, was known to you but he was not known to Henriquez.

17In brief the robbery occurred on 23 July 2018 at or near the Greater Discount Chemist store, Sunshine.  You and Henriquez had been at the chemist to collect some methadone.  Borg had also collected his methadone and as he was leaving the chemist you began to yell abuse out to him.

18Borg was seen by a witness later running along the road being chased by both yourself and Henriquez.  At that stage you were both on bicycles.  Borg tried to enter a shop but was physically prevented from doing so by Henriquez.  You were shouting at him, 'Where's the gear?'

19Henriquez then grabbed Borg and dragged him towards a nearby bench seat and pulled off his backpack.  Borg all the while was saying he did not have any gear.  You then both checked his pockets and whilst doing so he was complaining he could not breathe and was asking for help.  Eventually you both rode off on your bikes taking Borg's backpack.  You refused his request to return his bag as it contained some important personal items. Those facts constitute Charge 1, the robbery charge. 

20Borg was shaken and went home and the following day he reported the incident at the Sunshine police station. 

21At the time you committed the robbery you were the subject of bail conditions for other offending; therefore, you have been charged with the summary offence of committing and indictable offence whilst on bail.

22On 30 July 2018 you were arrested by police whilst you were at home in Albion.  The police searched your premises and found Borg's backpack and they also found a zip lock bag containing Cannabis L which is the basis for Charge 2, possess drug of dependence.

23You were interviewed but answered 'no comment' to the allegations in the formal record of interview. 

24No victim impact statement has been filed but having regard to the circumstances of the robbery common sense dictates that Borg would have been quite shaken by the way in which he was attacked by you both and your actions must be condemned.

25This was an unprovoked attack and Mr Borg was entitled to be free to leave the chemist and go about his business without any harassment and also the theft of his backpack would have caused him upset.  An aggravating feature is that you committed the robbery in company.

26In sentencing you I must emphasise general and specific deterrence as well as the protection of the community.  General deterrence is significant as others must be deterred from engaging in unprovoked violence committed in company in public places.  Having regard to your particular criminal history and relevant prior criminal convictions for crimes of violence against the person specific deterrence is an important factor.

27Your role was the same as your co-offender so you will be treated equally.  There was very little difference in terms of your respective antecedents and other mitigating factors. 

28Given the broad spectrum of offending that is represented in the crime of robbery I have assessed this as being at the lower end of the scale of seriousness of this type of offence.

29In formulating the sentence, I have taken into account all the matters highlighted by Ms O'Brien on your behalf.  I noted that as early as 9 October 2018 and again in April 2019, you indicated your willingness to plead to these charges, but prosecution rejected the offer.  Another offer to settle was made on 15 April 2020 at which time the offer was finally accepted.

30You will be sentenced on the basis you entered a plea of guilty to the appropriate charges at the earliest opportunity and the prosecution accepts that the plea of guilty was entered at the earliest opportunity.  The plea has real utilitarian value.  You have spared Mr Borg the further trauma of having to come to court to give evidence or be cross-examined. You have spared the state the unnecessary expense and inconvenience of a trial and you have facilitated justice so your sentence will be discounted accordingly. 

31I accept the plea is some evidence of remorse and also it does reflect a willingness on your part to accept responsibility for the offending.

32The chronology of the matter was that you were remanded in custody on
30 July 2018 for this set of offences and since then you have undergone two separate sentences in respect to unrelated offending. Those sentences were imposed by Magistrates' Courts. on 23 January 2019 you were sentenced to four months' imprisonment being an aggregate sentence and that sentence expired on 13 April 2019.  On 17 April 2019 you were released on bail for this offending. You were then remanded in custody on
5 September 2019 in respect to other matters.  At the Magistrates' Court on 31 October 2019 you were sentenced to three months' imprisonment being an aggregate term.

33That term expired on 5 December 2019 and you were released from custody.  You were then remanded on separate unrelated offending on 8 February 2020 for charges including intentionally cause injury, unlawful assault and attempted murder and armed robbery.

34On 8 April 2020 your bail was revoked for this offending. 

35I have had regard to the effect of the delay in these proceedings being finalised.  I accept that had the prosecution accepted your offer earlier in time then your matter could have been processed earlier in the Magistrates' Court and in all likelihood there would have been a degree of concurrency with the terms of imprisonment that you have already served.

36I have had also regard to the principle of totality. 

37I have had regard to your personal history and background.  Yours is a tragic history and you are a person who has suffered multiple and complex problems throughout your life.  You were taken into care at age two and subject to Department of Health and Human Services orders throughout your childhood and early teen years.

38Your parents separated when you were very young and essentially you were raised without any responsible adult being involved with your life.  You have only recently reconnected with your mother, Dawn, who currently cares for your 16-year-old son, Jacob.

39You have never had a relationship with your father.  There are siblings with whom you do not have any relationship and you are a very socially isolated person. 

40You left school early, part way through Year 7.  You have no formal or other qualifications.

41You did attempt VCAL at Northland Secondary College but did not complete the course and you do not have any work history. 

42You have lived precariously, mixing with drug users and you have had a long term and chronic history of illicit drug use commencing in your early teen years.

43There is also a history of violent problematic intimate relationships that have been characterised by physical and emotional abuse. 

44You have had a long-term relationship with your general practitioner, Dr Neil Cameron, and he has been involved with your care since 2004. He is aware of your history of complex familial and personal relationships and he confirms your chronic drug dependence problem as well as your major psychiatric illnesses.

45He confirms the diagnosis of paranoid schizophrenia, depression, anxiety and post-traumatic stress disorder.  He noted that you are dependent on benzodiazepines in the setting of severe mental illness, intermittent drug use and non-compliance with anti-psychotic medications.

46I have had regard to the psychiatric reports filed by defence from Dr Leon Turnbull dated 23 March 2020 and the two reports from Dr Nicholas Owens dated 12 and 15 October 2020, all of which detail your extensive psychiatric history as well as treatment since being at Dame Phyllis Frost and also the Thomas Embling Hospital. I do not propose to go into any details other than to state I have read all that material.

47I accept that your history of profound childhood depravation must be given full weight in formulating the appropriate sentence notwithstanding further serious offending and I have applied the Bugmy principles.[1]

[1]Bugmy v R [2013] HCA 37

48I accept that there was a context to the offending in that you were non-compliant with your anti-psychotic medication and you were using drugs.

49Whilst providing a context and explanation for your offending behavior in no way does it excuse the offending because you are a person who really does understand the difference between right and wrong.

50Ms O'Brien did not seek to place any reliance on the Verdins principles.[2]  However, I have had regard to your complex psychiatric history in a general sense.  Your chronic mental health does impact upon the suitability for the sort of sentence that you could be offered. In all the circumstances, I consider that there is no other alternative other than the imposition of a term of imprisonment to be immediately served as being just punishment.

[2]The Queen v Verdins (2007) 16 VR 269

51I accepted the fact that the COVID-19 pandemic will impact upon you doing the custodial sentence. The restrictions have made life more difficult for anyone who is in prison currently.  All personal visits and programs have ceased and prisoners spend less time out of their cells and their movement is very restricted and it is accepted the pandemic is causing additional stress and concern for prisoners and their families.

52I also consider that imprisonment is more burdensome for you than for a person who does not suffer from your psychiatric history and I have taken that into account and there is a likelihood that imprisonment may also make it more difficult for you and may make your condition worse which has been evidenced really by the pattern that has been shown throughout the period since your matter was first listed for plea hearing.

53Overall, I am somewhat guarded about your prospects of rehabilitation.  They are largely governed by your ability to maintain good mental health as well as abstinence from drugs and also a more stable life whenever you are in the community.

54Initially consideration was given to a combination sentence and an extended pre-sentence outcome report was obtained but Ms Melissa Mason. In her report of 17 June 2020 she did not recommend such having regard to your past history with Community Corrections Services.

55You are considered to be a person at high risk of reoffending but ultimately given your particular personal circumstances currently, I do not consider that a combination sentence is warranted. 

56The formal court orders are in respect to Charge 1, robbery, you will be convicted and sentenced to 378 days' imprisonment being equivalent to the time served to date.

57Charge 2, possess drug of dependence, you will be convicted and discharged and on the summary charge of commit indictable offence whilst on bail you will be convicted and sentenced to one month imprisonment.

58I make the following s.6AAA declaration that but for your plea of guilty I would have imposed a term of imprisonment of two and a half years to serve
18 months. 

59Finally, I make the disposal order sought. I declare that you have served 378 days pre-sentence detention and I direct that that be entered into the records of the court.

60I further note that notwithstanding your role with Mr Henriquez was equal and the mitigating factors and antecedents are similar I consider that there is a justification for disparity of sentence having regard to your precarious mental health, your fragility and also the other sentences that you were required to complete during the time you have spent in custody. So that is why I have made an order that you serve time served only.

61Thank you, that concludes my sentencing remarks and unless there is anything further, we can finish. 

62Ms O'Brien, do you want the link left open so you can have a chat with your client?

63MS O'BRIEN:  Yes, please, I would be most grateful for that, Your Honour.

64HER HONOUR:  What I will do is I will finish off and leave the Bench and I will ask that only my tipstaff stay and he will get everyone out the meeting other than yourself and your client so that you can have a discussion with her.  Thank you.  Thank you both for your assistance.

65MS O'BRIEN:  Thank you, Your Honour.

66MR PLUMMER:  Thank you, Your Honour.

‑ ‑ ‑