Director of Public Prosecutions v Cornish

[2019] VCC 1194

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00817

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARLEY CORNISH

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2019
DATE OF SENTENCE:	1 August 2019
CASE MAY BE CITED AS:	DPP v Cornish
MEDIUM NEUTRAL CITATION:	[2019] VCC 1194

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Locke	OPP
For the Accused	Mrs A Marshall Ms J. Swiney	Chris McLennan Lawyers

HIS HONOUR: 

1Harley Cornish, on 4 June 2019 at the County Court of Melbourne, you pleaded guilty to one charge of aggravated carjacking on the Indictment No.K1022010.  That charge has a maximum penalty of 25 year's imprisonment. 

CIRCUMSTANCES OF YOUR OFFENDING

2The circumstances of your offending.  The prosecutor tendered an amended summary of prosecution opening upon plea, which was dated 3 June 2019.  It was Exhibit 1 on the plea. 

3At the time of the offence, 24 January 2019, you were an 18 year old.  You were born on 19 July 2000. 

4The victim of your crime, Dr Frank Esposito, a general practitioner, who had parked his car in the car park of the Austin Hospital in Heidelberg, preparing to visit his elderly mother, who was patient at the hospital.  Dr Esposito parked his car, a black 2013 Mercedes Benz sedan, ZTC 014, in the underground car park at the Austin Hospital. 

5Dr Esposito then noticed two males and a female, that is, you, your co-accused, Mr Souza[1] and Ms Currie,[2] standing in front of and to the right of his car. 

[1] A pseudonym.

[2] A pseudonym.

Dr Esposito got out of his car and locked it.  He then walked past the group of you on his way to the hospital entrance.  You then said to Dr Esposito, “Give me your keys”.  Dr Esposito thought you were joking, smiled at you and kept walking.  Mr Souza then approached Dr Esposito, lifted his fist in a fighting stance and said, “Give us the key”. 

6You then kicked Dr Esposito in the back.  Dr Esposito tried to keep walking. 
Mr Souza tried to wrestle the car keys from Dr Esposito's grip.  In the process, Dr Esposito lost his balance and fell to the ground.  The keyring broke and he was left with just the keyring itself.  Mr Souza had the key to the car.  Souza, yourself and Currie then all got into Dr Esposito's car and drove off with Mr Souza being the driver. 

7As a result of the fall, Dr Esposito suffered a fracture to his left wrist and a grazing to his elbow and his leg.  These injuries are the basis for the charge of aggravated carjacking. 

8At approximately 8 pm on 24 January 2019, police Constable Izard and a Sergeant Pignatelli were patrolling in the Thomastown area, looking for
Dr Esposito's car.  They observed the car at Coles Express at the intersection of Dalton Road and Spencer Street.  You were refuelling the car.  Izard and Pignatelli confirmed that the registration number of the car was ZTC 041. 

9They then drove to the front of the car and attempted to arrest you. You were still in the process of refuelling the car.  The car's occupants were Souza and Currie.  Souza has then suddenly reversed the car.  You attempted to get back in the car, but were unable to and ran off down Dalton Road.  Sergeant Pignatelli gave you chase.  Sergeant Pignatelli advised other police units of where you were and that he was involved in a foot chase after you.  You were arrested a short time later by uniformed police officers. 

10You, Souza and Currie can be seen on the CCTV from the hospital underground car park, however, the actual offending is off camera.  Dr Esposito described you as skinny in his statement.  He described your co-accused, Souza, as more solidly built, chubby.  From the description of the offending set out in Dr Esposito's statement, which was part of the depositions in this case and the prosecution summary, Mr Souza was the principle offender and you were following his instructions.  Nevertheless, you were in this offending together and you will be sentenced according to law.

11After your arrest, you were interviewed at 10 pm on 24 January 2019.  You answered questions that were put to you and offered an explanation for your offending as follows: 

Q: “All right, so tell me, from when you had gone into the underground car park, what's happened?” 

A: “That's when Brodie started raising his voice and saying and he said, ‘That's me dad, get him’, so I kicked him and then that's when Brodie snatched the keys out of his hand.” 

Q: 'M'mm.' 

A: “And then he said, ‘Jump in the back seat’ and then I jumped in the back and we drove off.” 

12You have then described Dr Esposito as looking elderly.  You admitted that
Dr Esposito tumbled when you have kicked him and that Souza then said, “Run”, so you ran to the car.  When asked why you ran away from the police, you said, “I don't know, I should've just stayed there, 'cause I thought the cops were gonna like tackle me and I didn't even do nothing.”

13After initially denying that you had demanded the key from Dr Esposito, you admitted being the first person to ask for them.  You told police in your interview that when you asked for the keys, it was as a joke.  That was Question 270 and the answer. 

14Dr Esposito, in his statement, described the initial encounter as follows:  “I got out of my car and locked it.  I walked off to my right and my pathway crossed with the two males and the female.  The skinny male with the dark hair said, "Give me your key", or words to that effect.  I thought he was joking, so I smiled and kept walking past them.  The three of them weren't really walking, they were just standing there.  The chubbier male with the fair hair then came closer to me, raised his fists in a fighting stance and said, "Give us the key."'

15You have been in custody on remand for this offence for 189 day, not including today. 

THE VICTIM IMPACT STATEMENT

16Dr Esposito filed a victim impact statement dated 27 May 2019.  This was Exhibit 2 on the plea.  He set out how he was shocked, frustrated and angry that this had happened to him.  He was frustrated because the incident was completely unprovoked and the injury to his left wrist impacted upon his work as a general practitioner and his generally social interactions.  His left wrist was in a plaster case for six weeks.  He is righthanded.  After the plaster case was removed, he experienced restricted movement in his wrist and thumb for a further six to eight weeks.  He still suffers from some restriction to the movement of his left wrist.

17Your offending has impacted on your victim in a financial way.  Because all his keys were taken, he was required to change all of the locks on his properties and those places he had the keys to.  His car was written off and he had to pay the excess of $700 on his own insurance policy in order to make a claim.  He lost time at work due to his injuries.  Ultimately Dr Esposito now is hypervigilant in car parks and when around young people.  He feels insecure and vulnerable in public places.  These issues are the ongoing issues for him due to your offending.

YOUR PERSONAL CIRCUMSTANCES

18At the time of the offence, you were 18 years old.  Whilst in custody, you have recently turned 19 years old, I think about 13 days ago.  You have grown up in the Wallan area.  When you were two years old, your biological father died from a heroin overdose.  At the age of nine, your mother told you about your biological father's death.  Initially you did not accept what you had been told by your mother.  Your mother had re-partnered when you were very young.  You had grown up calling your step-father 'Dad'.  You thought of your step-father as your own father.  At the age of 16, a blood test initiated by you confirmed what your mother had previously told you. 

19It is around this time that you started to experience symptoms of anxiety and depression.  You struggled with what Mr Ian McKinnon, consultant psychologist, described as 'identity confusion'.  It was about this time that you began to get into trouble with the law.  You have three Children's Court appearances, on
5 December 2017, 4 April 2018 and 8 May 2018.  On each occasion, without conviction, you were placed on good behaviour bonds.  The charges included dishonesty offences, violent offending and criminal damage charges.  You were on a good behaviour bond for theft of a bicycle at the time that this offence occurred.

20You were educated at the Whittlesea primary school and completed your Year 10 at Whittlesea secondary college.  You commenced a pre-apprenticeship for bricklaying at the Broadmeadows campus of Kangan TAFE.  You have completed Certificate III whilst working as a brickie's labourer.  Your step-father is a bricklayer and you have enjoyed a supportive relationship from him.  You anticipate working with your step-father on release from prison in the bricklaying industry, and friends of his who are bricklayers.

21You have been assessed by Ian McKinnon, consultant psychologist, for the purposes of this proceeding.  He prepared a report dated 23 May 2019.  It was Exhibit A on the plea.  Mr McKinnon diagnosed you as suffering from mixed anxiety and depressive disorder.  Mr McKinnon assessed your functional intelligence to fall within the normal adult range.  He reported that you are very sorry for your victim, that is, Dr Esposito, and expressed genuine remorse to
Mr McKinnon. 

22I ordered a Forensicare report on the first day of your plea, which was 4 June 2019.  Dr Chris Drake, consultant psychologist, prepared a report dated 16 July 2019.  That was Exhibit 3 on the plea.  Dr Drake thought you were below average intelligence, but you were not formally assessed.  The opinion was that your judgment of social situations and the appropriateness of your behaviour was impaired.  Dr Drake noted your mother's assessment that you had the mentality of a 15 to 16 year old.  To quote her, “You just wanted to muck around and have fun, with no care for the consequences of your actions.” 

23Dr Drake assessed your risk of violent offending in the future is likely to be low.  Dr Drake's opinion was that you appear to belong to a group with an elevated risk of general recidivism, rather than violence in particular.  Dr Drake concluded that you require a high level of intervention directed to rehabilitation, which is usually delivered to adolescents, rather than adults.  Dr Drake stated as follows:

“In my view, Mr Cornish's poor sense of self and emotional immaturity could make it harder for him to cope in adult prison.  I suspect he is likely to be seen as vulnerable by other prisoners and taken advantage of.”

24On 4 June your mother gave evidence.  I assessed her to be a no-nonsense, practical woman, who still supported you.  She had been visiting you whilst you were in custody.  She told the court that you had been bashed whilst you were in custody.  You had either had your wrist broken or it was badly injured on the day of that plea.  You had told her that you had done the wrong thing and you just had to do your time.  She was quoting you.  She said you had been moved to a section of the prison with, as she described them, older Koori prisoners, where you were safer. 

25I accept you have been assaulted in prison and Dr Drake's assessment that you are vulnerable to other prisoners and will be preyed upon by them.  This factor will make any time you serve in custody very burdensome for you. 

Sentencing considerations

26You have pleaded guilty to a charge of aggravated carjacking, pursuant to s.79A of the Crimes Act 1958. Aggravated carjacking is punishable by a maximum penalty of 25 years' imprisonment. Aggravated carjacking is a Category 1 offence for the purposes of the Sentencing Act.  Section 5(2)(g) of the Act requires a mandatory term of imprisonment to be imposed,

“The court cannot impose imprisonment in combination with a Corrections order.”

27Further, s.10A(d) of the Act requires the imposition of a term of imprisonment of not less than three years,

“Unless the court finds that under s.10A that a special reason exists. The court must also fix a non-parole period in accordance with s.11 of the Act.  Should the court find that a special reason exists, to not impose a mandatory minimum term of imprisonment, s.5(2)(G) still applies.  That is, the term of imprisonment imposed cannot be combined with a Corrections order.”

28Further, aggravated carjacking is a Category A serious youth offence, pursuant to s.32(2)(C) of the Act,

“A court may only order youth detention when sentencing a young offender for a Category A serious youth offence, if the court is satisfied that exceptional circumstances exist.”

29That is not the case in your case. 

30Section 89(4) of the case provides that,

“Where a person is convicted of stealing a car, their licence must be suspended or cancelled and disqualified from obtaining a further licence for a period of at least three months.”

31This charge has its own set of particular sentencing considerations, to which
I have just referred. 

32Section 10A(d) and s.10A(3)(a)(e) of the Sentencing Act dictates that a minimum non-parole period of not less than three years' imprisonment applies in your case, as you were over 18 years old at the time of your offence. The Parliament set out a regime in s.10A of the Sentencing Act for an offender such as yourself to escape the operation of s.10A(d). In short, if you can prove a special reason exists on the balance of probabilities that there are substantial and compelling circumstances that are exceptional and rare and that justified in doing so. That is out of s.10A(2)(e).

33A court must take into account the following matters when determining whether there are substantial and compelling circumstances.  They are as follows:

(a) General deterrence and denunciation of your conduct have greater importance than other sentencing purposes set out in s.5(1) of the Sentencing Act;

(b) Give less weight to your personal circumstances than matters such as the      nature and gravity of your offence;

(c) A court must not have regard to the following matters: 

(1)  Your previous good character.  As I have noted, you have had three   Children's Court appearances but no convictions as a result of any of them;

(2)  Your early plea of guilty;

(3)  Your prospects of rehabilitation; and

(4)  Parity with other sentences.  In this case you had two co-accused, none of whom are going to be subject to your sentencing regime.

34Your counsel conceded that there are no substantial and compelling circumstances that amount to a special reason in your case and as such, you are subjected to the minimum non-parole provisions of the offence of aggravated carjacking.  On the evidence before this court, that was an appropriate concession to make on your behalf.

35The law of sentencing, as set out in respect of the mandatory minimum
non-parole period is a change to the sentencing considerations that have developed over decades in this jurisdiction that are based on individualised justice in sentencing.  Those principle still have application in assessing your overall sentence for this offence. 

36The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of the factors such as the seriousness of your offending, your culpability for it and your personal circumstances. 

37I am also now required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you, as on offender, are rehabilitated and reintegrated into society.

38I am also required to take into account current sentencing practices in fixing your sentence, that is, your total sentence.  That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time.  And I have considered the statistics in the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases are different from your case, as indeed they are from one another.

39Taking into account the law states that a mandatory minimum term of imprisonment of three years is to be imposed.  A consideration of a community corrections order disposition is removed from the possible sentences, either on its own, or in combination with a term of imprisonment.  As I said, that is s.5(2)(2G).

40You have pleaded guilty to this charge.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters. 

41Your plea vindicates the public confidence in the legal process set up to protect the community and your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your behalf.  To quote your mother, who quoted you, 'I've done the wrong thing basically and I've got to do my time.'

42I accept you are remorseful and have some empathy for your victim in this case.  Dr Esposito was not required to give evidence in a trial or committal because you have entered an early plea of guilty.

43Your offence is a serious offence.  The random taking of another person's car in circumstances of this case, clearly make this a serious offence.  In your particular case, some features that usually accompany this offending are absent.  They are as follows:

(a) From your perspective, this was a spontaneous offence, after having been    asked to kick your victim by Souza, your co-accused;

(b) There was no weapons involved in this offending;

(c) The injury caused to Dr Esposito is best described as a reckless                    consequence of the offending;

(d) Whilst you are jointly liable for the offending with Souza, and for that       matter, Currie, the injury to Dr Esposito appears to have occurred after   Souza forcibly wrestled the keys from his hand and he fell to the ground;    and

(e) You were clearly under the direction and influence of your co-offender,            Souza, who was younger than you are in chronological age, but was the       main aggressor in this offending. 

44None of these factors lessen the impact of your offending on the victim.  The above factors are relevant to a proper assessment of your moral culpability for the offending itself. 

45On the matter of parity in sentencing, your co-accused have a different sentencing regime.  Under the Sentencing Act, you are defined as a young offender because you were under the age of 21 at the time of the offence. 
I have already addressed the specific sentencing provisions that apply because you were over 18 at the time of this offence. 

46Both your co-offenders were under 18 years old at the time of the offence and their offending has been prosecuted in the Children's Court jurisdiction.  In the case of Currie, she has been placed on a supervision order, without conviction for the offending that related to her and other consolidated offending, which was not related to this case.  In the case of Souza, he has successfully applied for summary jurisdiction for his case to be dealt with in the Children's Court and it will be done so in August of 2019.  He does not face any penalty of imprisonment as a result of that. 

47In respect of the mandatory minimum non-parole period legislation, parity of sentence is specifically excluded from that aspect of the sentence.  Parity of sentencing is about equal justice, so that co-offenders are treated alike and that there is no justifiable sense of grievance between offenders as to the disposition handed down by the courts.

48In your case, parity of sentence principles have application only to ameliorating the head sentence to be imposed on you. 

49You are a young offender.  This is your first time in custody.  You have been bashed whilst you have been on remand.  Dr Drake assesses you to be vulnerable to other prisoners.  I accept that.  Your time in adult prison has been and will continue to be a particularly harsh and dangerous environment for you. 

50Under s.471 of the Children, Youth and Families Act 2005, the Adult Parole Board has the power to give consideration where it is appropriate for a person under the age of 21 to be transferred to a youth justice centre, as long as certain conditions are met. The power to transfer a prisoner under the age of 21 rests with the Adult Parole Board, not the County Court. Given the circumstances personal to you and your role in this offending, I make that recommendation to the Adult Parole Board.

51It is difficult to assess your prospects of rehabilitation.  You had minor Children's Court offending prior to this offence.  You had, as I have said before, been given three good behaviour bonds.  Nevertheless, that offending involved both violence and dishonesty.  This offence was a combination of violence and dishonesty. 

52You are now going to spend considerable time in custody with other criminals much older and stronger than you are.  You are young and impressionable.  You are at risk of developing criminal links that have been absent from your life up until recently.  You have to choose whether you honour what you have said to your mother, that is, 'I've done the wrong thing and I just have to do my time.'  When your sentence is completed, you need to go home, get back into bricklaying and live a law-abiding life.  That will be a big challenge for you.

53Pursuant to the provisions of the Sentencing Act, I am bound to fix a minimum mandatory non-parole period of three years' imprisonment.  When a non-parole period is fixed, a period of at least six months' imprisonment greater than the non-parole period is to be made as a term of the sentence.

54Would you stand please.

55On Charge 1, you are convicted and sentenced to three and a half years' imprisonment. 

56Your total effective sentence is three and a half years.

57I fix a non-parole period of three years' imprisonment.

58I declare that you have served 189 days pre-sentence detention.

59Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to five years' imprisonment, with a three year non-parole period.  No difference in the non-parole period.

60I will sign the disposal order and forfeiture order.

61In respect of the Charge No.1, all licences are cancelled and you are disqualified from obtaining a licence for nine months. 

62Is there anything further? 

63COUNSEL:  As Your Honour pleases.

64HIS HONOUR:  Thanks.  Mr Cornish, you are in for a tough time.  You have just got to hang tough for a long time.  When you get out, you go home to Mum.

65OFFENDER:  Yes.

66HIS HONOUR:  Straighten up.  Stay away from the crims you meet in there.

67OFFENDER:  Yes. 

68HIS HONOUR:  Good luck.  Thanks.

69Thanks, counsel, for your assistance.  Thanks very much, Ms Locke.

70MS LOCKE:  As Your Honour pleases. 

71HIS HONOUR:  Thanks.  You are to go - get going. 

72MS SWINEY:  Thank you, Your Honour.

73HIS HONOUR:  You are excused, sorry.

74MS LOCKE:  Thank you, Your Honour.

75HIS HONOUR:  Ms Holmes, I am just going to stand down.  I have just got these submissions.  Yes.  Thank you.      

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