Director of Public Prosecutions v Djabmara & Turner

[2023] VCC 826

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

AT geelong

CRIMINAL DIVISION

Case No. CR-21-01502 & CR-21-01514

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZELLANACH DJABMARA &
SHANNON TURNER

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Geelong (Trial); Melbourne (Plea and Sentence)
DATE OF HEARING:	3 November 2022 – 17 November 2022 (Trial) 26 April 2023 (Zellanach  Djabmara Plea) 4 May 2023 (Shannon Turner Plea)
DATE OF SENTENCE:	19 May 2023
CASE MAY BE CITED AS:	DPP v Djabmara & Turner
MEDIUM NEUTRAL CITATION:	[2023] VCC 826

REASONS FOR SENTENCE
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Subject:  Criminal Law

Catchwords:  Guilty Verdict – Home invasion – Intentionally causing injury – Mandatory sentencing – Mental health – Impaired mental functioning – Aboriginal – History of complex trauma –Childhood deprivation and trauma – Rehabilitation

Legislation Cited:  Sentencing Act 1991 (Vic)

Cases Cited:Buckley v The Queen [2022] VSCA 138; Bugmy v The Queen [2013] HCA 37; 249 CLR 571; DPP v Drake [2019] VSCA 293; DPP v Herrmann [2021] VSCA 160; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 301; [1997] HCA 26; R v Verdins & Ors [2007] VSCA 102.

Sentence:  Turner: community correction order for a period of two years. 

Djabmara: community correction order for a period of two years. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N Batten Ms S Fetherstonhaugh (For Sentence)	Office of Public Prosecutions
For the Accused Shannon Turner Zellanach Djabmara	Ms S Wendlandt Ms H Anderson	Slades & Parsons Bowler & Co

HER HONOUR:

1       

On 17 November 2022, a jury found each of you, Zellanach Djabmara and

Shannon Turner, guilty of one charge of home invasion and one charge of intentionally causing injury to Cory Denney-Allen on 14 July 2020.

2       By its verdicts, the jury was satisfied beyond reasonable doubt you were two of three men who had confronted and assaulted Mr Denney-Allen at the door of his home, and who then, pushing the door that he was trying to close further open, after he fell inside in the course of the assault, followed him in and punched and kicked him, before leaving.

3       On Mr Denney-Allen’s account, which the jury must have accepted, he was at home at Ararat, at around lunchtime on 14 July 2020.  He lived in one of a small number of units built around a central courtyard.  He heard some noise, shouting, and banging, coming from outside his front door and from the direction of the units opposite his and then a knock at his door.  He opened his door to see three men, all unknown to him, outside.  One, who by the jury’s verdict was you, Zellanach Djabmara, was standing at the front door.  One, who by the jury’s verdict was you, Shannon Turner, was pacing in the garden bed out the front of the unit, a little way behind Zellanach Djabmara.  The third person was sitting in a chair outside the unit opposite, facing towards, and looking at Mr Denney-Allen.  You, Zellanach Djabmara asked Mr Denney-Allen where the Aboriginal man who lived at Unit 2 was.  This was the unit that the third man was sitting in front of.  Mr Denney-Allen denied knowledge of any Aboriginal man living in Unit 2, and gave the name and description of the only person he knew to live there, who he described as ‘white’.  He said that you, Zellanach Djabmara challenged his denial, and the two of you,  Zellanach Djabmara and Shannon Turner then became verbally abusive and threatening.

4       

The man who, on the jury verdicts was you, Zellanach Djabmara, then grabbed

Mr Denney-Allen's shirt at the chest, and held it.  He in turn, grabbed your jacket at the chest.  The two of you were standing chest to chest, holding each other’s clothing, in the doorway of the unit.  The man who on the jury’s verdict was you, Shannon Turner, was by then standing behind Zellanach Djabmara, and over his shoulder, punched Mr Denney-Allen to the face, connecting with his left eye socket. He, and the two of you then traded blows, before another punch from you Shannon Turner to Mr Denney-Allen's nose caused him to fall backwards, landing on his back on the ground, inside his unit.

5       

From that position, he tried to kick the door closed, but the two of you pushed your way in, and the two on one fight continued.  Mr Denney-Allen and you,

Zellanach Djabmara, were fighting face to face and you, Shannon Turner, were punching him from behind.  The third man then came in and put

Mr Denney-Allen in a headlock, or a chokehold, and pulled him away from

Zellanach Djabmara.  Mr Denney-Allen and that third man fell backwards onto the floor, the third man underneath, Mr Denney-Allen on his back on top of him, still in the chokehold.  Mr Denney-Allen said he was struggling to breathe, he was seeing stars and was afraid he would pass out.  As he tried to free himself from the chokehold, the other two men, on the jury verdicts, the two of you, joined in again.  You, Zellanach Djabmara, leaning over him and punching Mr Denney-Allen to the face and you, Shannon Turner, off to the side, kicking his torso.

6       As sudden and unexplained as the start of the attack was, so was the end.  Whether Mr Denney-Allen broke free of the chokehold, or the third man let go of his own volition is not clear, but the chokehold was released.  The third man got himself out from under Mr Denney-Allen, and ran out of the unit.  The second man, on the jury verdict, you, Shannon Turner, stopped kicking Mr Denney-Allen and followed that third man out.  The first assailant (on the verdicts, you, Zellanach Djabmara), then followed the other two out, pausing at the door to tell Mr Denney-Allen that the reason you were looking for the Aboriginal man who lived in the opposite unit, was because he had assaulted your daughter.

7       Mr Denney-Allen was left shocked, dazed and in comprehending.  His nose was bleeding, his face, particularly his eye socket and his nose, and his torso, were reddened and sore from the blows.  He called Triple 0 and his mother.  She took him to the police station, where he made a formal complaint, and a formal investigation began.  Circumstantial evidence, including a palm print matching yours, Shannon Turner, found on the rear window of the unit, which the first assailant had asserted was occupied by the man who had assaulted his daughter, CCTV footage placing each of you near the scene at relevant times, and descriptions of the first two assailants given by Mr Denney-Allen which matched, in some material respects, your appearances as seen on the CCTV footage were the main pieces of circumstantial evidence that led the police to identify the two of you as suspects, to arrest you and charge you six weeks later in August 2020.

8       

The defence at trial, for both of you, was identity.  That is, that you were not the two assailants who first assaulted Mr Denney-Allen outside his home, then continued the attack inside the house.  Although identification was the central issue at trial for each of you, the prosecution case did not rest on visual identification of you by Mr Denney-Allen as the assailants.  Indeed, the composite images that he complied shortly after the attack, contained similarities and differences to each of you.  And when, many months later, Mr Denney-Allen was shown photo boards containing your images, along with eleven other images of men of similar appearance to each of you, he failed to identify either of you. In fact, he selected a person other than you,

Shannon Turner, from the photo board containing your photo.  This was however, as was clear on the way the case was run, a circumstantial case, where the evidence was capable, if accepted, of identifying you as the first and second assailants. It came from a number of different sources.  The jury by its verdicts must be taken to have been satisfied that the combination of circumstances accepted by it, identified you as the first and second assailants respectively, beyond reasonable doubt, notwithstanding those flaws in the eyewitness identification by Mr Denney-Allen himself.

9       This was therefore on the jury verdicts, a random, nasty, cowardly, three on one attack on a young man, in his own home.  From his perspective, it came from nowhere, over something and someone he knew nothing about, and had nothing to do with.  At its most favourable characterisation for you, the mistake at the heart of the trial was not your identity as the assailants, but your belief, unsupported by any evidence that was presented to the court, that:

-    A man had assaulted your daughter, Zellanach Djabmara;

-    He lived in the unit opposite Mr Denney-Allen's;

-    Mr Denney-Allen knew that he lived there, and 

-    Mr Denney-Allen was deliberately shielding him from both of you.

10     

At one level, this is a low level assault, and a low level home invasion.  Without devaluing what happened, the injuries that were sustained by

Mr Denney-Allen were painful, but transient.  The entry into the house was not planned, and it occurred in the course of an assault that had already started outside, and spilt into the unit as part of a continuing assault.  

11     On the other hand, it was an unprovoked, cowardly, three on one attack on a stranger, based at best, on a mistaken belief he knew something that you wanted to know and was refusing to reveal.  Even if your belief was correct, the attack was completely unjustified, as well as unprovoked and cowardly.  Although home invasion carries a significantly higher maximum sentence, 25 years imprisonment, as opposed to 10 years imprisonment for intentionally cause injury, in my view the intentionally cause injury offence is the more serious one here.  The entry into the unit and the continuation of the attack which had started outside, was part of a continuous course of conduct, rather than a premeditated, decision to break into an unsuspecting person’s home, take them by surprise, and assault them.  The attack continued into the house simply because it started at the doorway, and the victim in effect fell back from the doorway into the unit, as a result of one of the blows he received.  In that sense, it was fortuitous rather than the product of a premeditated decision to break into the home in order to attack.

12     The gravamen of the offending or the objective culpability in my view, springs from the unprovoked attack and the erroneous beliefs that seem to have motivated it, not the happenstance, unauthorised entry into the unit in the course of the attack.

13     When determining what is just punishment then in the circumstances, it is clear that considering the objective gravity of the offending, and in particular, the assault, that denunciation and deterrence must be given weight.  Each of you has prior convictions, including for violence.  Specific deterrence as well as general deterrence must also therefore play a role.

14 Home invasion is a Category 2 offence. The effect of that is to require a court to impose a term of imprisonment, (other than as part of a combination sentence), unless any of the exceptions set out in s5(2H) (a) – (e) Sentencing Act[1] apply. In your cases, you have both sought to rely on the exceptions in s5(2H) (c)(ii) and s5(2H)(e). That is:

[1]Sentencing Act 1991, s 5(2H).

-       That you have impaired mental functioning which would result in your being subject to substantially and materially greater than the ordinary burden or risks of imprisonment or;

-       That there are substantial and compelling circumstances that are exceptional and rare, that justify not imposing a term of imprisonment, (that is, at all or in combination with a community correction order).

15     In Buckley v The Queen[2], the Court of Appeal, speaking of mandatory sentences generally said this:

[2] [2022] VSCA 138 [1]-[6].

Over the past decade, the Victorian Parliament has introduced mandatory sentencing provisions for a range of offences.  In a case to which one of these provisions applies, the sentencing court is effectively compelled — by law — to impose a custodial sentence and to fix a minimum term of imprisonment.  The court is prohibited from making a non-custodial order, even as part of a combination sentence with a term of imprisonment.  The obligation to imprison applies where the offender is aged 18 or over, and it therefore applied to the present applicant, who was barely 18 at the time of the offence.

Each of the mandatory sentencing provisions includes what purports to be an exception to the obligation to imprison.  That exception applies if the sentencing court is satisfied that ‘a special reason exists which would justify’ a different disposition.  A judge can only find that a ‘special reason’ exists if he or she is satisfied (relevantly) that there are ‘substantial and compelling circumstances which are exceptional and rare’ and which would justify a different disposition.

As this court said recently, ‘that requirement is — no doubt quite deliberately — almost impossible to satisfy’.  Assuming that there is a difference between ‘exceptional’ and ‘rare’, the inclusion of both words exposes the legislature’s clear intention that, in nearly every case to which the mandatory sentencing provisions apply, the offender should go to gaol.

In deciding whether this near-impossible test is satisfied, the court is expressly prohibited from taking into account the offender’s previous good character, prospects of rehabilitation and (if relevant) early plea of guilty, and must disregard ‘parity with other sentences.’ In any other case, those considerations would be of critical importance to the determination of a sentence which punishes the offender ‘to an extent and in a manner which is just in all of the circumstances’, as referred to in s5(1) of the Sentencing Act.

Mandatory minimum sentences are wrong in principle.  They require judges to be instruments of injustice: to inflict more severe punishment than a proper application of sentencing principle could justify, to imprison when imprisonment is not warranted and may well be harmful, and to treat as identical, offenders whose circumstances and culpability may be very different.  Mandating imprisonment in this way must be seen to reflect the ascendancy of a punitive sentiment and a disregard of the demonstrated benefits of non-custodial orders and — in cases like the present — the vital importance of rehabilitating young offenders.

In our view, mandatory sentencing reveals a profound misunderstanding of where the community’s best interests lie, especially in the sentencing of young offenders.  As has been pointed out repeatedly, sending young people to adult gaol is almost inevitably counterproductive.  It also reveals a wholly unjustified mistrust of those on whom the sentencing discretion is conferred.  Sentencing courts are much better equipped, and much better placed, than legislators to determine what type and length of sentence will satisfy the sentencing objectives in a particular case.

16     There were two significant differences in Buckley’s case compared to yours. First, the offence for which he came to be sentenced, aggravated carjacking is a Category 1 offence. That falls under a different part of the mandatory sentencing scheme as applies here. The Category 1 offence scheme compels the imposition of a custodial sentence, and fixes a mandatory minimum term of imprisonment which must be imposed unless the court finds 'special reason’ exists. The definition of 'special reason' is in the same terms as s5(2H)(e) to which I have already referred.

17     The general observations of the court as to the reasons why mandatory sentences are wrong in principle, are however, as apposite to the Category 2 scheme, which compels the imposition of a custodial sentence, but does not fix a mandatory minimum term, unless an offender falls within one of the defined exceptions, as they are to the Category 1 scheme.  

18     Second, Mr Buckley was a youthful offender, 'barely 18' as the court observed, when he committed the Category 1 offence for which he came to be sentenced.

19     You two cannot call youth in aid to argue that encouraging rehabilitation should carry greater weight than it may for a more mature offender.  However, you are first nations Australians, indigenous men whose lived experience of childhood trauma has been compounded by the impact of the intergenerational trauma experienced by far too many first nations Australians.

20     In its powerful judgment in Bugmy,[3] the High Court recognised that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years [were] not marred in that way’[4].

[3]Bugmy v The Queen [2013] HCA 37; 249 CLR 571.

[4] Ibid, 40.

21     In DPP v Herrmann[5] at [46], our Court of Appeal referring to Bugmy said:

It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender’s formative years.

[5][2021] VSCA 160.

22     In DPP v Drake[6] at [32] and again in Hermann, at [45], the court explained the rationale for that reasoning as based on the fundamental underpinning principle of equal justice.  In Drake the court put it in these terms:

In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability.  As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses.  As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence, but had had the advantage of a normal, stable and regular home environment during his or her childhood years.

[6] [2019] VSCA 293.

23     In Hermann, the court articulated the principle underpinning the reasoning in Bugmy by reference to the principle of equal justice, citing the observations of Dawson and Gaudron JJ in Postiglione v R, [7]  where they said:

Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.

[7] [1997] HCA 26; (1997) 189 CLR 295, 301; [1997] HCA 26.

24     In her evidence to the Yoorrook Justice Commission, the Attorney-General, the Honourable Jaclyn Symes, acknowledged the impact of colonisation and dispossession on Aboriginal peoples, in particular, that the reality of colonisation involved the establishment of laws and policies with the specific intent of excluding and oppressing Aboriginal peoples and their laws, customs, cultures and traditions. [8]

[8] Written Statement of Attorney-General, the Honourable Jaclyn Symes, Yoorrook Justice Commission, 5 May 2023.

25     She also said:

I acknowledge the fact that the justice system has both recently and historically been a site of exclusion and oppression, whether through laws that were specifically targeted at Aboriginal peoples, laws that were unequally applied to them, or through the refusal to enact specific laws for the advancement of Aboriginal peoples or engage Aboriginal peoples in the design of laws that affect them.  I acknowledge that this has resulted in entrenched systemic and structural racism within the justice system and broader institutions of government.  I acknowledge also that the impact and structures of colonisation are far-reaching and intergenerational and are continuing to affect Aboriginal peoples' interactions with the criminal justice system.[9]

[9] Ibid, 7.

26     It is clear, therefore, that the impact of childhood deprivation and disadvantage, overlaid on the intergenerational trauma experienced by so many first nations Australians as a result of the continued impact of colonisation and dispossession, is relevant to the assessment of moral culpability, and generally would operate to reduce the weight which would ordinarily be given to denunciation and deterrence and increase the weight to be given to encouraging rehabilitation, and in determining what is, in all of the circumstances just punishment, when sentencing an offender, compared to one who has not suffered such compounding disadvantages.

27     So although the criticisms of mandatory sentencing in Buckley's case were made in the context of a youthful offender being sentenced for a Category 1 offence, and not indigenous offenders who had experienced childhood disadvantage and deprivation, when being sentenced for a Category 2 offence, they are in my view, as apposite to your circumstances as they were to Mr Buckley's.  And, importantly, there is,  because this is a Category 2 offence, a second exception open to you to be called in aid in seeking to avoid the arbitrary harshness of mandatory imprisonment and that is, the impaired mental functioning exception.

28     What then was relied on generally, and in support of the submissions that you both fell within the impaired mental functioning, resulting in a substantially and materially greater than the ordinary burden or risk of imprisonment exception, or the special reason, that is the substantial and compelling circumstances that are exceptional and rare exception.

29     

You are brothers.  You, Zellanach Djabmara, are three years older than

Shannon Turner.  On the pleas, I was presented with an abundance of materials setting out your backgrounds and personal histories.  There are some significant differences in the histories provided by each of you, and the history provided by your mother, Doreen Wright, who gave evidence on the plea, being called by you, Shannon Turner and who is again, present at the sentencing today.

30     

According to Ms Wright, you are full brothers and she is your biological mother.  Her husband, your father, died unexpectedly of a heart attack when he was not yet 30 and when you, Zellanach Djabmara, were five, and you,

Shannon Turner, were two. Ms Wright said that she is the biological mother of four sons and the social mother of a fifth, having brought up the son of her younger sister as her own.  In addition, Ms Wright said she had fostered many children who had been in and out of the house and treated as children of the family.  She gave evidence that she moved from Shepparton, where she had lived with her husband and where you two were born, to Melbourne after your father’s death. She then re-partnered with a man called Pino, a man of Italian heritage.  She described him as a good man and described family life with him as good and free from violence and substance abuse.  That relationship came to an end when you were still it would appear about late primary school or mid to late primary school.  She then returned to Shepparton with the two of you, and soon formed another relationship with a man by the name of

David Archibald or Archie.  She said that he abused drugs and alcohol and became increasingly and persistently violent towards her and towards the two of you.  She said that both of you and her other children were constantly exposed to his violence, the impact of his substance abuse, and her own cannabis use.

31     In giving evidence, she spoke powerfully and sadly of her sense of guilt and her failed responsibility to spare you from what you were exposed to.  She herself is a victim of intergenerational trauma, being one of the stolen generation. 

32     In the account given by you, Zellanach Djabmara to the psychologist, Gina Cidoni, who assessed you for the purposes of this plea, you describe yourself as coming from and having connection with the Buluc Bara Clan, Djab Wurrung, Ngutuwul Balug.  They are all, as I understand it, groups from Western Victoria, in and around what I would call the Warrnambool area or the Budj Bim  area.  That is a separate area from the Shepparton area where you were born and where your mother and father were.  There is a long history that you give in an affidavit that was filed as part of the materials, about the displacement of your forebears from the west of Victoria and the way they ended up in Shepparton.

33     

You refer to Shannon Turner as a maternal half-brother.  You reported to

Ms Cidoni and to others who have assessed you, that you have three maternal half-brothers, including Mr Turner, and two paternal half-brothers.  Ms Cidoni described your childhood as a result of what you told her, as troubled and characterised by instability.  That would appear on the other materials before me to be an understatement.

34     In the accounts given by you, Shannon Turner, also to Ms Cidoni, who assessed you on two occasions, once in late 2021 contained in a report dated January 2022 for a number of then pending court appearances and then again, just days before your multiply adjourned plea was finally heard earlier this month, you described yourself as a Yorta Yorta man.  That is, identifying as I understand it in connection with the Shepparton area.  Consistently with your mother’s evidence, and the account given by your brother to Ms Cidoni, you said you were born in Shepparton, and you lived there until your father died when you were two. You and your brother report that the family relocated to Melbourne after your father died. You lived in Melbourne for some time after your mother formed a new relationship with a man called Pino.

35     

There was little detail about that time in your life in Ms Cidoni's first report, and little about your life back in Shepparton after that.  But in Ms Cidoni's most recent report, she recounted what I would describe as a lurid account of your life when you were living in Melbourne and whilst your mother was with Pino.  

Ms Cidoni reports that you told her that Pino had underworld connections and that you were exposed and subjected to extreme violence, including being held down and having your legs broken, and being forced to watch your mother being raped.  You reported that that last incident was, much to your distress, recreated in the television series 'Underbelly'.

36     

Those details of life in Melbourne with Pino sit at odds with your earlier account, with your mother’s evidence and your brother’s account as recounted in

Ms Cidoni’s report in relation to him.  In oral submissions, your counsel

Ms Wendlandt told me that you had instructed her, that for you, ‘mother’ was a cultural term that you had used to refer to a number of women who had at different times, assumed a maternal caring role for you and that the mother who you described who lived with Pino, and whose rape was recreated in Underbelly was not Doreen Wright, but another woman called Rachel Connors.  I note too, that in the report for your suitability for a community correction order, you made a reference to expressing a desire to trace your biological mother.

37     It is significant to note that Doreen Wright was called to give evidence on your behalf by your own counsel.  No doubt, on your instructions or with your consent on the plea.  Ms Wendlandt referred to Ms Wright as your mother, without any qualification about biological or social. Ms Wright gave very powerful evidence supportive of you, not only as your mother,  your biological mother.but expressing the grief and guilt that I have already touched on for what she saw as her failure in exposing you and your siblings to Archie’s violence, to his substance abuse and to her commencing and embarking on a significant period of cannabis use or abuse herself.  She spoke eloquently of your history and your brothers history of substance abuse from a very early age, the behavioural problems that each of you showed and of your (Shannon Turner's) early departure from home because of the difficult circumstances that you were exposed to.

38     She also spoke of the impact of ice which, it appears, has long been a problem substance for you.  In particular, the effect of ice on your behaviour and its impact on your inability at times, to distinguish between the real and the imagined. There was no evidence before me that Doreen Wright had read or was even aware of those parts of your history which you recounted to Ms Cidoni, to which I have just referred and which sit at odds with her evidence.  In cross-examination on the plea, Ms Wright said that you had been continuously in her care throughout your childhood, that Pino had no underworld connections of which she was aware, that she had no knowledge of Rachel Connors, or of any relationship between Pino and Ms Connors, or of any mothering provided to you by Ms Connors or of your legs being broken in the circumstances described by you.

39     Although I was given no information about it on the plea, the references in the community correction order assessment reports indicate that there is some tension, if not estrangement, between you and your brother. I note too the reference to you, Shannon Turner, wanting to trace your biological mother, seems to me that there are some deep and painful issues of family dynamics which have not been fully revealed and which are yet to be addressed.  I am not expressing any criticism of you, or of anyone in this courtroom for that.

40     What it does, in my view bears out the overwhelming weight of evidence presented on behalf of both of you, that your childhoods were blighted by the impact of intergenerational trauma, and your own traumatic experiences.  It is well established that traumatic experiences, and a long-established history of substance abuse, particularly of ice, can distort memories.  I do not consider, Shannon Turner, that the differences in account that you have given are due to deliberate lies, or any attempt to paint a more pitiful picture of your past, in order to gain sentencing advantage.

41     However, those differences do leave me in a position where I consider those parts of the account of your childhood given by you to Ms Cidoni in her most recent assessment, which are not consistent with your mother’s evidence, or the account given by Zellanach Djabmara to Ms Cidoni are unreliable.  It is unfortunate that through no fault of Ms Cidoni or your legal advisors, the late occurrence of your most recent assessment by Ms Cidoni, because of your failures to make the previous appointments that had been made for you at the last minute, the powerful efforts of your lawyers to persuade Legal Aid to yet again, give you an opportunity to be assessed and my adjourning the plea for that purpose, mean that Ms Cidoni just was not in a position and your lawyers were not in a position to seek to understand and see if those differences could be reconciled.  So again, I draw no adverse finding in respect of you as a result of that, but it does leave me in a bit of vacuum in respect of some matters.

42     

Given the consistency between Ms Wright’s evidence, and the histories recounted in Ms Cidoni’s earlier report in relation to you Mr Turner and

Ms Cidoni's report in relation to you Zellanach Djabmara, I am prepared to treat the history in the earlier Cidoni report in respect of you, Mr Turner, as reliable.  Whilst it appears that you are now remembering some traumatic events in your life differently to the way you have previously recalled them, and differently to the way others in your family recall them, I am comfortably persuaded, even if I do not know the exact detail of the trauma, that you have been exposed to significant trauma in your childhood, and it has had a lasting impact on you.

43     I have referred in general terms to trauma.  I have been given some very specific information in the materials and there was some very specific information in the oral evidence.  Given its nature, I do not consider it is appropriate to detail it in these reasons for sentence because they will be published, but I want to make it clear, that I have read it, understood it, heard it and taken it into account.  It follows that I am satisfied in relation to both of you, that you are brothers, that you were brought up together as brothers by Doreen Wright as your mother.  That you remained as a family unit with her after your father died when you were both very young boys.  I am satisfied that you remained in the care of your mother thereafter, and that on her return to Shepparton, you were about primary school age, towards the end of primary school, and from that time on you were exposed to Archie’s extreme violence towards your mother and yourselves.  You were exposed to his significant polysubstance abuse and to your mother’s cannabis use.

44     I am satisfied on the materials before me that you were also abused in the other ways detailed in the reports and by your mother.  That is also detailed in your case, Zellanach Djabmara, in Dr Thomas' report.  I accept the opinions expressed in those reports that you have both been and continue to be, profoundly affected by the abuse and the traumatic experiences that you have long recounted.  I accept that each of you began abusing substances as adolescents and that your substance abuse is directly related to your history of trauma.  I accept that each of you became involved in the criminal justice system from an early age, have continued to be involved over time with the criminal justice system and in circumstances that bear a strong correlation to that history of trauma and abuse.

45     It follows that the principles in Bugmy and in Verdins[10] (in particular, limbs 2 – 6 inclusive), have application in both of your cases.

[10]R v Verdins & Ors [2007] VSCA 102.

46     Turning then specifically to you, Zellanach Djabmara.  You are now 37 years of age.  You have what I call a significant criminal history, including on my count, eight charges of assault related offences, and one of aggravated burglary.  Significantly, all of those offences were committed between 2005 and 2012.  You have only been sentenced once since then, in 2019, and that was for relatively minor and unrelated offences, drive whilst disqualified and fail to answer bail.  During the period of what I would characterise therefore as youthful offending, as the Corrections assessment reveals, you received six community-based dispositions, and breached them all. Given the gap between these offences for which I must sentence you today and your previous relevant convictions, specific deterrence plays a lesser role than it would if they were more recent.  For the same reasons, youth and the time that has elapsed since, your Community Correction Order breaches are also less significant than if they had been more recent.  You have never been sentenced to a term of imprisonment, although you have spent time on remand.

47     Of more significance to me is your long history of substance abuse, your well documented long history of poor mental health, and your history of engagement with mental health and rehabilitation services.  You have a long‑documented history of suicidality from the age of 10 and involvement since then with the mental health system.  What you reported to Ms Cidoni is consistent with what you reported to Dr Thomas, and what was also recounted in the MHARS assessment conducted as part of the Community Correction Order assessment.  It is also consistent with the reports provided to me from St Vincent's hospital and the evidence of Ms Fitzgerald from Fitzroy Legal Service, charting the decline in your mental health since 2021.

48     Ms Cidoni expressed her conclusions in the following terms:

Zellanach Djabmara is a 36 year old male, presenting with intact cognitive function, although formal testing was not possible due to the test setting.  Caution was exercised in terms of over interpretation of culturally bound differences.  The clinical evaluation indicated that he has the following clinical diagnoses, in line with DSM-5, borderline personality disorder, complex post-traumatic stress disorder, major depressive disorder and cannabis use disorder.  His mental illness and personality disorder causes difficulties, modulating control over behaviour, impaired impulse control, persistent worry, difficulty relaxing, feeling on edge and managing his emotions.  At the core of his problems is a conflict of how to fundamentally orient himself to social and situational challenges that range from simple interactions to major life decisions.

Routinely expecting the worse possible outcomes, yet hoping for feeling of belongingness and capability, he frets and becomes guarded against further anticipated insult and giving in, exposing himself to what he has convinced himself will be inevitable humiliation and misery.  PTSD and BPD emerge from multiple negative exposures from childhood.  These are linked to maladaptive coping and chronic daily problems.  Effects include withholding emotion from others and not letting others see when he is afraid, sad or angry.  High vulnerability to stress and inappropriate reactions to situations.  There are difficulties identifying, expressing and managing emotions and stress reactions are internalised.  He feels constantly overwhelmed, detached, distant and out of touch with reality.  His sense of self-worth and value, shame, guilt, self-esteem and self-image are low, along with feelings of powerlessness to change his circumstances.  Being exposed to chronic stress results in difficulties, thinking a problem through calmly and considering multiple alternatives, where negative expectations interfere with positive problem solving. 

These factors combined all relate to Mr Djabmara's situation.  Significant adversity in his formative years compromised his capacity to function adaptively and responsibly.  This adversity amounted to social disadvantage of the kind described in Bugmy v R.  His chronic mental illness suggest that Verdins principles also apply where his moral culpability is reduced.  Lack of self-control in terms of the offending is linked to his particular personality traits, indicating a lack of autonomous thinking and a depressed mood.  PTSD emerged from his childhood family violence exposure and other adversities.  His young age and maturity level is linked to low impulse control, where his ability to regulate and manage his emotional states and impulses was low.  His ability to see beyond himself, to consider others perspectives and long term consequences is reduced.

These factors combined influences his judgment of situations and decisions on how to act.  PTSD from violence exposure began in childhood.  Such exposure to physical and sexual violence results in high emotionality and lasting physical aftershocks.  Symptoms include emotions and thoughts that are very strong, frequent and unpleasant.  And this increases the likelihood that he will rely on unhealthy coping strategies, such as deliberate self-harm or substance misuse.  Although these behaviours may reduce distress in the moment, they have long term negative consequences.  These symptoms combined with high stress and feeling triggered were thought to lead to uncomfortable and intense emotions, that promote negative thoughts and drug use that placed him at the offending.

He requires culturally sensitive trauma informed therapy, which is recommended along with techniques like dialectable behaviour therapy, eye movement, desensitation and reprocessing theory EMDR'.  Continuation of drug rehabilitation, supported coaching is important to help him manage his lapses and build coping responses.  Considering the effect of imprisonment, his profound mental illness generates intensely painful feelings of anxiety, distress, dysregulation and sadness.  Prison would intensify these symptoms and his resources to cope are low which places him at high risk of self-harm.

49     Dr Thomas, who also provided a report.  She is the senior practitioner, social and emotional wellbeing with the Yoorrook Justice Commission, First Peoples' Health and Wellbeing. She came into contact with you when you were engaging with the Yoorrook Justice Commission by way of making a truth telling submission, detailing your personal story.  Her concerns about what you disclosed and your demeanour, led to a referral for support and she continues to provide you with support herself.  She concluded:

In summary, based on his submission to the Yoorrook Justice Commission, self-report and previous psychological assessment, Zellanach Djabmara presents with a significant history of complex trauma and associated mental health difficulties.  His mental health is currently adversely impacted by distress associated with his upcoming plea hearing, due to the triggering of an acute post-traumatic stress response.  It is my opinion that if Mr Djabmara is sentenced to a term of imprisonment, his PTSD symptoms will be further activated, compromising his capacity to adjust to the custodial setting.  His high level of distress and limited coping resources in this context, place him at very high risk of suicide attempts.  The custodial system has previously failed to keep Mr Djabmara safe and has in fact caused further trauma.  For these reasons, I do not view a custodial sentence as conducive to rehabilitation, but more likely to precipitate severe deterioration in Mr Djabmara's mental health and increase in his risk of suicide.  In this case, he will require close monitoring and immediate mental health support.

Consistent with previous recommendations, for example, the psychological assessment report of Ms Cidoni, Zellanach Djabmara would benefit from holistic trauma informed and culturally safe wellbeing and mental health support.  For instance, further engagement with Dardi Munwurro and Gara Cunwoo.

50     The MHARS report contains similar recommendations based on the independent assessment and the reference to the other materials.

51     In addition to this powerful evidence and the MHARS report which I received later, Ms Anderson relied on the following matters in submitting that you fell within the substantially, and materially greater impact of imprisonment by reason of impaired mental functioning exception. 

The serious assault you suffered as detailed in Dr Thomas’ report when you were remanded in custody in 2019, and its direct correlation to your acute, and high suicide risk if imprisoned;

Your direct familial connection with Veronica Nelson and the distress caused by the protracted coronial proceedings, which exposed the arbitrary injustice of bail laws which have impacted so disproportionately on Aboriginal people, and the shameful neglect following her remand which resulted in her painfilled and inexcusable death in custody.

52     These same matters were relied on by Ms Anderson for the substantial and compelling reasons which are an exceptional and rare exception.  In addition, for that exception, Ms Anderson relied upon your age, you are now 37, the absence of recent relevant prior conviction, your voluntary engagement not by court compulsion with a successful completion of the Galliamble sixteen week residential rehabilitation program, the support you receive from your family and your deep engagement in your cultural history and connection with country. That is evidenced amongst other things by your choice to now use the name of Zellanach Djabmara, by your passionate involvement in the sacred site protest, the Djab Wurrung Embassy and Supreme Court litigation relating to the adequacy of the consultation process in respect of the Western Highway Road widening works near Ararat. That in turn provides a contextual background for how you came to be in Ararat at the time of the offending. Then finally to the delay between July 2020 and now to the matter being finalised.  That delay, was in part, caused by Covid delaying the matter coming up for trial and by the significant delays caused by mainly personal distress within your broader family that had led to the vacating of the original plea date before Christmas last year and subsequent adjournments through this year until we come today, towards the middle of May, finally for sentencing.  Ms Anderson also relied upon the impact of Covid on imprisonment, the harshness of the restrictions and added harshness of added restrictions by reason of Covid protective measures taken in custody.

53     I accept all of these matters and I accept they are relevant to sentencing generally and to this exception. 

54     Turning then to you, Shannon Turner.  You are now 34.  You too have a significant criminal history.  Yours does not have a break towards the end of your youthfulness.  Yours runs pretty much continuously, from 2007 through to 2019.

55     You have been dealt with over that time for a similar number of offences of violence.  In addition, you have been dealt with for dishonesty, what might be called street offences and you too, for some driving offences.  In addition to non-custodial dispositions, you have been sentenced to terms of imprisonment and suspended sentences.  The community corrections assessment that I commissioned noted that you have been sentenced to three CCOs, one of which was varied and two of which were cancelled for breaches.  Earlier, you were sentenced to two community-based orders, both of which were cancelled. Two parole orders, both of which were cancelled and in 2019, you were dealt with for a CCO breach that resulted in confirmation of that CCO.

56     From matters that arose after these offences, you are currently subject to two CCOs and I have already referred to the progress reports that show that at times, your compliance has been what I might call spotty, although it has improved in recent times.  Like your brother, you too have a long history of substance abuse, poor mental health and engagement with rehabilitation programs. You are, as I have already noted at present, an unreliable historian. However, there is objective or clinical support for the matters that are detailed in Ms Cidoni's first report and subject to the qualifications I have already outlined in her second report.  Whilst your recounting of the history of the traumatic events may be unreliable, she has diagnosed, using proper objective measures, your post-traumatic stress disorder and confirmed previous diagnoses. That is something that I accept.

57     Relevantly, Ms Cidoni concluded in the January 2022 report that you met the diagnostic criteria for substance use disorder and generalised anxiety disorder.  It is clear that you were not at that stage prepared to disclose much of your background and childhood to her.  But in that 2022 report, she expressed the following opinions which I accept. 

'Generalised anxiety disorder is a severe condition, marked by excessive and ongoing worry, unrealistic view of his problems, restlessness, feeling on edge, trouble concentrating, feeling fatigued and irritability, having trouble sleeping.  He lives in a constant state of worry, which takes a toll on many aspects of his life, as well as his personal relationships'.

58     Paragraphs 82 to 83:

'Although he has used drugs profusely, these underlying conditions create disturbing thoughts, re-experiencing effects, severe mental and physical distress with major deviations in the way he thinks and feels.  He experiences difficulties in regulating emotional responses and recognising the full impact of his behaviour on others. 

His turning to substances was/is a way to self-medicate, as an outlet to escape reality, to ease the symptoms of fear and discomfort and produce a sense of wellbeing.  The negative impact is that substance abuse tends to heighten anxiety.

paragraphs 85 to 88:Risk can be negated with treatment and in his case, this is required to address his ongoing substance problems, as well as the underlying generalised anxiety disorder symptoms that cause the functional impairments and maladaptive coping styles.

He indicated that he was deriving benefit from his participation in the Men's Behaviour Change Program.  Individual psychotherapy is also recommended to stop and change these destructive cycles, abusing alcohol and drugs to combat his uncomfortable emotional states.  That is an important task of early recovery.  To break this cycle, it is essential for him to learn strategies to self-regulate his anxiety symptoms, as well as learn alternative coping strategies.

Specialised AOD interventions should be aimed towards abstinence, at improving insight into triggers, risk periods, alternative strategies and a relapse prevention plan. 

Considering the effect of a prison term, his anxiety would most likely increase in response, as would intense emotional reactions and over reactivity.  There will be long term effects like potentially losing his housing, delays in receiving appropriate treatment'.

59     You have in fact, since Ms Cidoni wrote that report, engaged in some of the treatment that she recommended, including successfully completing residential rehabilitation at The Cottage near Shepparton.  You have continued your engagement with Dardi Munwurro in the period leading up to your trial and you have engaged in drug and alcohol treatment under the community correction orders that have been imposed in that intervening period.

60     You have now been more forthcoming to Ms Cidoni and to others about your childhood abuse and therefore, despite the unreliability of some of the history that you recounted, much of what Ms Cidoni says in her second report is in my view objectively validated and relevant.  In particular, In terms of your cognitive capacity, at paragraph 74 of her 3 May 2023 report she said. That your cognitive profile suggests that you face challenges in various aspects of daily life.  She expanded on that in these terms:

'Mr Turner's verbal reasoning abilities are in a borderline range, indicating difficulties with understanding and using language effectively.  This can affect his communication skills and comprehension of complex instructions or concepts.

His non-verbal reasoning abilities are also in the borderline range, indicating challenges with visual spatial skills, visual perception and organisation.  This effects his ability to navigate physical spaces, interpret visual information and solve problems through visual reasoning.  His working memory falls in the low average range, suggesting difficulty sustaining attention, concentrating and exerting mental control.  This can impact his ability to stay focused on tasks, follow multi step instructions and manage information in real time.

Additionally, his processing speed is in the low average range, indicating slower processing and response to visual information compared to peers.  This may lead to slower performance to tasks, requiring rapid processing and decision making.

Mr Turner's performance on the RBANS, a neuropsychological screening test, indicates possible cognitive impairments that could be attributed to a combination of his life events, drug abuse and traumatic experiences.  The very low scores on the RBANS subtests, underscore significant difficulties in areas such as memory, visual spatial skills, language and attention.  These challenges have a profound impact on his ability to learn and retain new information, navigate his surroundings, communicate effectively and sustain attention during tasks that demand focused mental effort.  It is evident that his cognitive functioning is significantly impaired and addressing these difficulties will be crucial in helping him overcome these obstacles, and to prove his overall cognitive abilities.

Mr Turner's daily life is impacted by his symptoms, which align with the diagnostic criteria for PTSD, as per DSM-5.  He experiences intrusive memories, that manifest as distressing flashbacks and nightmares.  These intrusive thoughts and images of post-traumatic events disrupt his daily activities and can cause him significant distress.

To cope with the distress caused by the trauma, Mr Turner employs avoidance behaviours and emotional numbing as coping mechanisms.  He actively avoids anything that reminds him of the traumatic event, such as specific locations, people or activities.  This avoidance and emotional numbing can result in a sense of detachment, or emotional numbness, making it difficult for him to fully engage in relationships and activities that used to bring him joy.

He experiences significant changes in his thoughts and emotions.  He harbours negative beliefs about himself, others and the world in general, which detrimentally effect his self-esteem and overall perspective on life.  Additionally, his perception of the traumatic event becomes distorted, leading to misconstrued beliefs about its meaning and the impact it has had on his life.

On a day-to-day basis, he exhibits signs of emotional dysregulation.  He experiences irritability and anger which can affect his interactions with others and strain his relationships.  Difficulties with concentration and focus impede his performance at work or in other tasks, requiring cognitive engagement.He remains hypervigilant, constantly scanning his environment for potential threats, which contributes to heightened anxiety and exhaustion.  He experiences an exaggerated startle response, reacting strongly to sudden or unexpected stimuli.  These symptoms collectively have a profound impact on his overall wellbeing and functioning.  They disrupt his relationships, occupational performance, daily routines and overall quality of life.  Further, his negative childhood experiences are thought to have diminished his moral culpability and ability to make informed and responsible choices, given he faced significant adversity, trauma and disadvantage.

Adverse childhood experiences, such as exposure to criminal family members, drug use and a challenging environment, have shaped his development and decision making abilities and have had a profound impact on his moral development, decision making capabilities as per Bugmy v The Queen'. 

61     That part clearly has to be qualified by what I have said about the unreliable historian finding. 

'Factors like limited positive role models, a lack of supported environments and the normalisation of criminal behaviour, have hindered his ability to make choices that align with societal norms'.

62     Ms Cidoni was asked to give an update on your mental state since her earlier report and noted that you had instructed that you had reduced your medications.  She said in response to that:

Mr Turner had a high symptom presentation when he attended the assessment.  This suggests that his mental state has not improved, despite his self-report that he feels that his current mental health has improved.  He indicated that he had decreased his dose of Quetiapine, the antipsychotic from 200 milligrams to 25 milligrams, with the hope of eventually weaning himself off it entirely.

Quetiapine is a typical antipsychotic that is primarily used to treat schizophrenia, bipolar disorder and major depressive disorder.  It can also be used to treat anxiety disorders and PTSD.  It works by blocking certain neurotransmitters such as dopamine and serotonin in the brain.  These neurotransmitters are thought to be involved in regulating mood perception behaviour. 

The reduction in his medication may have contributed to the increased manifestation of symptoms.  It is strongly advised that he seeks consultation with the psychiatrist for a comprehensive re-evaluation, as they are the most qualified professionals to address these concerns and provide expert guidance in adjusting his medication.The impacts of imprisonment on Mr Turner are likely to be more significant and substantial due to his cognitive memory and PTSD issues. His difficulties with working memory and processing speed may hinder his ability to understand and comply with rules and regulations, follow instructions, and effectively communicate with jail staff and other inmates. This can potentially lead to misunderstandings, conflicts, and increased frustration for both Mr Turner and those around him.

Moreover, his PTSD symptoms can be exacerbated in the jail setting, where the confined environment and potential triggers may increase his anxiety, hypervigilance, and emotional dysregulation.

Overall, these circumstances represent great challenges faced by him, making it more difficult for him to navigate the gaol environment, interact with others and cope with the emotional toll of incarceration.

Furthermore, reintegrating into society often involves re-establishing relationships and readapting to various social settings.  These tasks may be significantly more challenging for Mr Turner, due to his history, as well as the potential triggers and emotional distress he may experience, making it difficult to build and maintain healthy relationships or sustain stable employment.  In his case, cycles of disadvantage will continue and create significant challenges as he faces ongoing barriers that make it difficult to break free from the cycle and improve his medication.

As indicated, the psychiatrist is best placed to re-evaluate his medication type and dose.  He would also benefit from a neuropsychological assessment, to best assess cognitive strengths and weaknesses and whether he has an acquired brain injury.  He should continue attending counselling and seeking support.  His high symptom presentation suggests he requires trauma focused therapy to address the symptoms of PTSD and provide him with tools to process and cope with his past traumatic experience.  As with your brother, she recommends for you too, evidence-based therapy such as cognitive processing therapy, CPT, or eye movement desensitisation and reprocessing, EMDR as beneficial'.

63     The MHARS report indicates that you have a mild mental health problem or difficulty.  That, in my view, understates the full import of what Ms Cidoni has reported and which I accept.  Of concern, and relevant to my assessment to your impaired mental functioning for the purposes of the exception, is the concern about the assessment of your cognitive capacity.   In addition to those matters, in considering the mental health or mental functioning exception, I also take into account the evidence which I have already referred to in detailing the matters relevant to your brother's submissions, in relation to the death of Victoria Nelson, a familial connection for you.

64     As for your brother, so for you, when considering whether the substantial and compelling reasons which are exceptional and rare exception is made out, delay, your successful engagement in residential rehabilitation at The Cottage, and continued engagement with the Gunjitmara Aboriginal Cooperative with your caseworker and with AOD counselling, your stable supported housing in Warrnambool and the impact of further restrictions on imprisonment by reason of Covid are also all matters properly to take into account.

65     The prosecution submitted that neither of the exceptions were made out for either of you, having regard to the onus on you of establishing the substantially and materially greater impact of imprisonment due to impaired mental functioning and the very high bar posed by the substantial, compelling, exceptional and rare exception.

66     In assessing the impaired mental functioning exception, the materials I have already referred to must be viewed in the context of the Attorney-General's acknowledgement in her evidence to the Yoorrook Justice Commission, of the disproportionate impact of imprisonment on indigenous prisoners, the acknowledged systemic racism, which has and continues to lead to such differential outcomes, between indigenous and non-indigenous prisoners, and the direct personal application here for you, by reason of the direct connection with the appalling circumstances of the death of Veronica Nelson.

67     In her statement of evidence to the Yoorrook Commission, the Attorney-General said the following things which I consider are relevant to my assessment.  Referring to the unacceptability of Aboriginal over representation in custody,   she referred to one of the stories that had been shared with the Commission in December, that of Aunti Vicky and she then said at paragraph 51:

Auntie Vicky's story shared with the Commission in December last year, along with what we have heard from the families of Ms Veronica Nelson and
Ms Tanya Day regarding their tragic and wholly preventable experiences of the justice system, are completely indefensible.  These experiences have profound and long-lasting impacts, not only on the individual, but also their families who have vicariously experienced the immediate and intergenerational trauma through the horrific experiences their loved ones have had to endure.

68     And in the case of you, Zellanach Djabmara, there is direct evidence of that, to which I have already referred.  The Attorney-General also said, relevant to that assessment, at paragraphs 44 to 45 of her evidence:

When examining the profile of those who come into contact with the justice system, it is also notable that there is a high representation of people who have an acquired brain injury, who experience mental illness and who experience socioeconomic disadvantage.  This broadly reflects the inequities that exist within the community and demonstrates the breadth of systemic injustices within the criminal justice system. 

In saying that, I acknowledge that Aboriginal peoples face unique and pervasive inequities that go over and beyond those experienced by other vulnerable cohorts and indeed, the broader community.  This includes structural racism that is a product of the devastating effects of colonisation.  Regrettably, our current structures, laws and policies can serve to compound those inequities.

69     I am satisfied that in each of your cases, each of you has, as a result of the matters to which I have referred, discharged your onus of establishing that you come within the exception in s 5(2H)(c)(ii).

70     Turning then to the special reason or the substantial and compelling circumstances which are exceptional and rare.  It is not necessary for me to decide whether you also fall within that special reasons exception because I found you fall within the impaired mental functioning exception.

71     As noted by the Court of Appeal in Buckley,[11]  itis almost impossible to meet the special reason test.  It is arguable in my view, that the acknowledgements of the Attorney-General in her statement to the Yoorrook Justice Commission, that imprisonment casts a burden on indigenous prisoners which is so disproportionate compared to non-indigenous offenders. By reason of the history of dispossession and forced removal of children, that it is capable of establishing substantial and compelling circumstances that are exceptional and rare.

[11]Buckley v The Queen [2022] VSCA 138

72     They may not be rare for Aboriginal offenders, appalling so, but they are exceptional and rare compared to the experiences and circumstances of the community as a whole.  And in saying that, I refer again specifically to matters adverted to by the Attorney-General in her evidence to the Yoorrook Commission, in particular these, at paragraph 9:

It is important to begin with the recognition that most Aboriginal people never have and never will become involved in the criminal justice system as victims and/or offenders.  However, it is important to recognise that the historical legacy of colonisation is still felt today, with systemic racism, unconscious bias in the application of the law and the criminalisation of social and economic disadvantage, all contributing to the over representation of Aboriginal people in the criminal justice system.  For the minority of Aboriginal people who do become involved in the criminal justice system, their experience is not only adversely affect the individuals involved, but significantly impact their families and the communities to which they belong.

73     At paragraphs 25 to 26, she then said:

The number and rates of Aboriginal people involved in the criminal justice system in Victoria, although lower than in most other Australian jurisdictions, are unacceptably high, particularly where compared with the non-Aboriginal population.  Growth in imprisonment is also disproportionately high for Aboriginal people, especially Aboriginal women, who have experienced a 115 per cent increase in the rate of imprisonment between 2000 and 2020 and often enter prison on remand.  It is an unacceptable reality that the number of Aboriginal people charged by police, held on remand, sentenced to custodial settings are not released on parole has steadily increased.  Time on remand and in custody can adversely impact an individual's risk of reoffending, leading to compounding disadvantage and poorer justice, social and economic outcomes.  Statistically, more than half of Aboriginal people remanded in custody have returned within two years and the majority of those in prison, have had prior episodes of imprisonment.

74     At paragraphs 31 to 32, she said:

Aboriginal people are also more likely to experience ongoing involvement with the justice system.  As described and acknowledged in the WOVG submission, the over representation of Aboriginal people in the criminal justice system is a consequence of systemic racism arising from colonialism, over policing, the imposition of oppressive and discriminatory laws and at times, courts interpreting and applying laws in a discriminatory way.  This was exposed through the Royal Commission into Aboriginal deaths in custody and shamefully today, we still have in place laws and systems that disproportionately and negatively impact Aboriginal people and their communities.  Key factors attributable to the significant growth and the rate of Aboriginal people on remand or prison in Victoria, particularly over the past five years, notwithstanding the Aboriginal justice agreement, closing the gap initiatives and the recommendations of the Royal Commission into Aboriginal deaths in custody are largely due to policies and legislation in Victoria.  These policies and laws, including in the areas of bail and sentencing, were designed to enhance community safety, but have had a significantly disproportionate impact on Aboriginal peoples involvement in the criminal justice system.

75     And then at paragraph 34, she said:

There are also many other factors driving arising over representation that sit outside of the justice system, in addition to the systemic racism in the criminal justice system, which I recognise is a driver of over representation.  Other contributing factors include inequality in educational opportunities, economic exclusion, lack of access to housing, child protection involvement, intergenerational trauma, mental health and substance misuse issues.  I have a responsibility to seek to address systemic injustices in the criminal justice system broadly, while also addressing the unique and specific factors that Aboriginal peoples face, and the ways in which these injustices intersect.  This is a complex task, requiring the assessment of often competing considerations.

76     And the final paragraph to which I wish to refer is paragraph 39, where the Attorney-General said:

I note that the recent final report of the culture review of the adult custodial correctional system, found that many Aboriginal people continue to experience the harmful effects of racism and discrimination custodial environments, which impact their safety, access to healthcare, mental health support and programs to support their rehabilitation and transition into the community.  This review is a key step towards identifying and importantly, addressing the problems of systemic racism.

77     As I have said, I consider it arguable, in fact I consider it open to find, and if I had to I would find that these matters adverted to by the Attorney-General in her statement to the Yoorrook Justice Commission, make out the substantial and compelling circumstances which are exceptional and rare for you.  However, that is an argument that can wait for another day.

78      I am freed then of the mandatory sentencing shackle and must therefore determine what is the appropriate sentence. As I have already observed, in the circumstances I consider the intentionally causing injury charge to be the more morally culpable, because of nature of the attack.  That is, you were the aggressors, it was a three on one attack, entirely of your making.  The victim was unknown to you, posed no threat to you, and had done nothing to encourage or precipitate the attack.  He was a random victim of a mindless act of violence, unfortunate enough to be in range when you were thwarted, it would appear, of your intended quarry.

79     The only evidence at trial of what motivated the attack adds to, rather than diminishes its seriousness, in my view. That you went looking for a man that you, Zellanach Djabmara, believed had sexually assaulted your daughter is no mitigator.  Given the evidence of your conduct from the time you arrived at the units, until you left, it is at least likely all three of you went there to confront or assault him and when you did not find your intended quarry, you knocked on the door of the Mr Denney-Allen's unit, trying to find him.  There is no evidence you had any basis believing there was an association between your original target and Mr Denney-Allen.  On the evidence at trial, both of you were worked up, threatening and aggressive from the outset.  And you took that out on an innocent man.

80     This may have been spontaneous, in the sense Mr Denney-Allen was unknown to you and you only came across him because he answered his door, but you had clearly gone to the units for the express purpose of finding, and at least confronting the other man.  In that sense, your presence at the units was as a result of a conscious choice to attend and confront somebody and your demeanour was aggressive and hostile.

81     Having said that, I accept the assault was relatively short lived, that the attack comprised punches to the head and face, a chokehold and kicks to the body. That is bad enough.  But no weapons, other than fists, arms and feet were produced or used.  The injuries that were sustained by Mr Denney-Allen indicate that although it was a horrible, unprovoked attack, were relatively minor.  That is not to diminish the effect on him or the pain and distressed he suffered or of the physical injuries.  He suffered a blood nose, grazes, bruises, swelling and tenderness to his face and torso. Fortunately for him and for you, all of those have healed.  He is left with no permanent or residual physical harm.

82     Disgraceful, inexplicable and inexcusable as your conduct was, considering the range of conduct which can be captured in a charge of intentionally cause injury and even having regard to your previous convictions for assault type offences.  I accept that in terms of objective seriousness, this does fall towards the lower end of the scale of offences of intentionally cause injury.

83     I have already observed in relation to the home invasion that it is not your typical confrontational home invasion.  That usually involves two or more offenders breaking into, or forcing their way into someone’s home, intending to assault them, whether to abduct them as revenge or as a warning for more serious consequences if they do not comply with demands for drugs, money or other goods. This was not that type of case.  This was, in effect, a continuation of a fight, initiated by you and which started outside. That Mr Denney-Allen fell into his doorway, and not into the garden bed, was a matter of happenstance.  In that sense, it is properly to be characterised as spontaneous and opportunistic, rather than planned, or premeditated.  For these reasons, in terms of objective seriousness, it too falls at the lower end of the scale for offences of this type.

84     When sentencing co-offenders, parity considerations are important.  There are differences in your roles, and differences in your personal circumstances, including the duration of your criminal histories and the nature of your mental health and functioning deficits.  Some operate in favour of one of you, some in favour of the other.  Ultimately, I do not consider any of the differences in role or in personal circumstances are such as to compel the imposition of different sentences upon you. Clearly denunciation and deterrence, both general and specific must carry weight, but that weight must be tempered, not only by the level of objective seriousness, but by your personal circumstances which I have in such detail, already outlined.

85     It is clear that imprisonment is a sentence of last resort, and cannot be imposed if other sentencing options not involving a loss of liberty, can properly meet the needs of deterrence, general and specific, denunciation, just punishment and protection of the community, which reflect the weight to be given to impaired mental functioning, and the encouragement of rehabilitation.  I have reached a comfortable level of satisfaction that in each of your cases, a community correction order is open.  You have each been assessed and although classified as at high risk of reoffending, found to be suitable for release on a community correction order.  And each of you has indicated you are prepared to submit to and comply with an order. 

86     On the issue of the high-risk assessment, it is worth pointing out that that does not mean a person should not be placed on a community correction order.  There is a very strong argument to say the higher the risk, the more a community correction order is warranted to assist and encourage a person to desist from  continuing to offend and to keep them out of prison where is likely to increase their risk of offending rather than decrease it.  A community correction order can be much better directed to assist offenders to address the underlying reasons for offending, and so, reduce their risk of reoffending.  That is particularly so in your cases, having regard to the recommendations of Ms Cidoni, in respect of the sort of treatment that each of you needs and the fact that each of you is currently engaged in treatment with a continuing therapeutic relationship which is culturally appropriate and important to maintain.

87     The sentence must of course also carry a punitive, as well as a rehabilitative component.  The very fact of a conviction, and a becoming subject to the restrictions and conditions of a community correction order, is of itself punitive.  I do intend to impose additional conditions, which have a combination of a punitive and rehabilitative focus. So whilst some of the conditions might at one level, be seen as and described as rehabilitative, they are also in a sense punitive because they impose a compulsion on you to engage in treatment as directed, to submit to supervision and to have restrictions placed on your freedom of movement. In that you must get permission before you can leave the state, you must notify if you change jobs or change address, and other matters like that.  They are significant punitive elements of a community correction order.  So, the conditions that I have fixed balance those needs.

88     I am going to in accordance with the recommendations of Corrections in the reports, impose conditions of supervision and of unpaid community work.  For you,  Zellanach Djabmara, mental health treatment, as well as other program conditions are to be imposed.  For you, Shannon Turner, drug, alcohol and mental health treatment conditions are to be imposed.  For you, Zellanach Djabmara, the rehabilitative condition is confined to mental health in accordance with the recommendations.  I am also going to direct the hours that you spend successfully engaging in treatment be counted towards the unpaid community work hours. 

89     It sounds on the face of it a relatively low number of community work hours, but I am conscious of the fact that you, Shannon Turner, already owe a significant number of hours to Corrections and that you, Zellanach Djabmara, are suffering significant mental health problems that may in themselves make it difficult for you to engage.  I do not want to set either of you up to fail, but I want to make sure that you feel a balance between just punishment and encouragement of your rehabilitation.  So the hours are deliberately tailored to meet those needs and to encourage you to continue to engage in the rehabilitative programs that you are currently undertaking and that will be made available to you.

90     I am now going to formally pass sentence on you and I will ask each of you please to stand.

91      Zellanach Djabmara and Shannon Turner, on the charges of which the jury found you guilty, you are both convicted of each charge and you are each sentenced to be placed on a community correction order for a period of two years.  The core conditions that apply to community correction orders are the same for both of you.  They are, that you must not commit another offence for which you could be imprisoned during the time that the order is in force. That is just about any offence, including as you both should know, a number of driving offences.  You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations.  That means you must not be impaired by drugs or alcohol when you attend for any of your visits to, or programs with Corrections and you must submit to drug or alcohol testing if directed to do so.

92     You must report to and receive visits from the Secretary or delegate.  You must report to the Community Corrections Centre specified in the order within two clear working days of the order starting.  Today being Friday, that means by Tuesday of next week.  Now for you, Zellanach Djabmara, you must attend at Reservoir Community Correctional Services, ground floor, 909 High Street Reservoir.  For you, Shannon Turner, you must attend at Warrnambool Community Correctional Services at 769 Raglan Parade, Warrnambool.  You must let a community corrections officer know within two clear working days if you change your address or change your job.  That may be particularly relevant to you, Zellanach Djabmara, if as a result of the lifting of your bail conditions, you no longer live with your mother, but take up independent accommodation.  You must not leave Victoria without first getting permission to do so from the Secretary or delegate. For you, Mr Turner, as you are relatively close to the border with South Australia, you must remember that that means you cannot cross the border as people from your area quite often do.  And you must obey all lawful instructions from and directions of the Secretary or delegate.

93 In addition to these core conditions, the following conditions specific to each of you are imposed. First of all for you, Zellanach Djabmara, you must perform 100 hours of unpaid community work over the two year period of the order. I order that all hours of treatment and rehabilitation satisfactorily undertaken, are to be counted as hours of unpaid community work, for the purposes of this unpaid community work condition. And I warn you that if you fail to comply with this unpaid community work condition, that the Secretary to the Department of Justice or their delegate, may give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act.  You must be under the supervision of a community corrections officer for the period of two years.  And you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric treatment or treatment in a hospital or a residential facility, as directed by the regional manager. 

94 For you, Shannon Turner, you too must perform 100 hours of unpaid community work over the period of two years. I order that all hours of treatment and rehabilitation satisfactorily undertaken by you, are to be counted as hours of unpaid community work, for the purposes of this unpaid community work condition. And for you too, if you fail to comply with this unpaid community work condition, the Secretary to the Department of Justice or their delegate, may give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act.  You too must be under the supervision of a community corrections officer for a period of two years. 

95     The treatment conditions for you are these, you must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager.  You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager and you must undergo any mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric treatment or treatment in a hospital or a residential facility as directed by the regional manager. 

96     You too must participate in programs and or courses that address the factors relating to the offending as directed by the regional manager and you must participate in programs and or courses that are consistent with achieving the purpose of treatment and rehabilitation. That may include employment, educational, cultural and personal development programs as directed by the regional manager.

97      For each of you, it is my understanding and intention that Corrections will work with those services with whom you are already engaged and that the direction to participate in the treatment programs will be done in consultation with those who are already providing services and assistance to you.  So there will be a minimisation of any unnecessary overlap and that they will be culturally sensitive and appropriate.  Now do each of you understand the conditions of these orders?

98     OFFENDER DJABMARA:  Yes.

99     OFFENDER TURNER:  Yes, Your Honour.

100    HER HONOUR:  And  Zellanach Djabmara, do you consent to the order?

101    OFFENDER DJABMARA:  Yes

102    HER HONOUR:  Shannon Turner, do you consent to the order?

103    OFFENDER TURNER:  Yes, Your Honour.

104    HER HONOUR:  Thank you.  I am going to ask then that these orders be brought up to you.  Ms Anderson and Mr Campigli, can you please accompany my associate, make sure that your clients understand the orders and sign them signifying their consent.  All right, I note that each of you have signed the order and I have now countersigned it.  A copy of that will be made and provided to you and once that has been provided to you, you will be free to go.  It has been a long morning and I suspect a difficult and somewhat emotional one for both of you.  Thank you for your patience, your courteous and your obvious attention to everything I had to say.

105    OFFENDER DJABMARA:  Thank you.

106    HER HONOUR:  I do hope that you do not come back before another judge of this court on a breach.  For you Mr Turner, if you are struggling with the existing number of hours you have got and the additional hours, Corrections will speak to you about the capacity that they have and you have, to apply to a court for variation of the hours.  It is important that if you are struggling - you are doing all your programs, but you are struggling to meet the hours because of the additional ones, that you consider your position and try and act in advance to manage how to deal with it rather than wait to be threatened with breach proceedings or think that it is too hard.  So I hope I will hear good reports of you. 

107    OFFENDER TURNER:  Yep.

108    HER HONOUR:  I wish you well.

109    OFFENDER TURNER:  Thank you.

110    HER HONOUR:  Can I thank all counsel, prosecution and defence. Not only considerable assistance they have provided throughout the matter, but the patience and courtesy with which the whole trial was conducted.  It was manifest throughout what was obviously a difficult and intense time as times and I was very grateful for the high level of attention and professionalism shown by everybody.  Thank you.  We will adjourn.

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