Director of Public Prosecutions v Fenton

[2022] VCC 2309

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

KOORI COURT DIVISION

Revised
Not Restricted
Suitable for Publication

CR-22-00065

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

DAISY FENTON

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2022, 12 December 2022
DATE OF SENTENCE:	15 December 2022
CASE MAY BE CITED AS:	DPP v Fenton
MEDIUM NEUTRAL CITATION:	[2022] VCC 2309

REASONS FOR SENTENCE

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Subject:  Criminal Law Sentence

Catchwords:  Koori Court jurisdiction – Aggravated carjacking – Prohibited person possess firearm – Application of Bugmy – Category 1 offence – Substantial and compelling reasons that are exceptional and rare found.

Legislation Cited:     Sentencing Act 1991

Cases Cited:Bowen v The Queen [2021] VSCA 355; DPP v Brooks [2008] VSCA 253; Buckley v The Queen [2022] VSCA 138; Bugmy v The Queen (2013) 249 CLR 571; R v McKee [2003] VSCA 16; R v Verdins [2007] VSCA 62

Sentence:Total effective sentence of three years and nine months’ imprisonment with a non-parole period of two years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo	Office of Public Prosecutions
For the Accused	Mr M. Habib	Kurnai Legal Practice

HIS HONOUR:

1Daisy Fenton, you have pleaded guilty to one charge of aggravated carjacking and one charge of being a prohibited person in possession of a firearm.

2The maximum penalties for these offences are 25 years' imprisonment and 10 years' imprisonment respectively.

3You have also pleaded guilty to the relevant summary offences of driving whilst disqualified, the maximum being two years' imprisonment or 20 penalty units, unlawful assault, the maximum three months' imprisonment or 15 penalty units and committing an indictable offence whilst on bail which has a maximum of three months' imprisonment.

4You have admitted relevant prior convictions.

Circumstances of Offending

5The circumstances of your offending are clearly and succinctly set out in the summary of prosecution opening which forms part of these reasons for sentence.  I do not propose to summarise your offending in the same detail.

6You were 26 years of age at the time of the offending on
25 May 2021 and you were living in Preston at that time.  You and an associate were in Ascot Vale when you both approached and entered Nicholas Manti's Subaru vehicle.  Mr Manti was sitting in the driver's seat at the time.

7You got in the front passenger seat and your associate got in the back.  You directed Mr Manti to drive you to Moonee Ponds.  He refused at first but acquiesced due to your threatening behaviour.

8Once in Moonee Ponds he asked you both to leave his car.  Again you engaged in behaviour which implied that threats of violence towards Mr Manti would follow if he did not comply.  He then complied with your directions.

9After he parked the car at your direction you produced a silver sawn-off bolt-action rifle.  You demanded the car keys and Mr Manti complied.  You made him stay in the vehicle and assist you whilst you drove to Reservoir.  You said at one point, 'Listen, I don't want to shoot anyone else today'.

10After stopping briefly at a food store on Pascoe Vale Road to buy alcohol purchased with money taken from your victim you continued on to Reservoir.  At one point you said to Manti that if he told police you would kill him and his family.  Mr Manti made his escape whilst you were out of the vehicle on some sort of errand in Preston.

11At the time of driving you were disqualified from driving a vehicle.

12In relation to the summary charge 15, assault with a weapon, a couple of days later on 27 May you parked the car you were driving near a person who was seated behind his vehicle.  You opened your car door and attempted to engage this person in conversation.  When your victim did not engage you showed him the gun you had in your waistband.  You said, 'Do you want to see how quick I can wield?'.  You asked him for $50.  He said he had no money.  You said you were going to have to start robbing people.  You got back into your car and told your victim to run.  He fled the scene and you drove off.

13You were arrested at your Murray Road, Preston address on the same day.  During a search of the premises a .22 calibre sawn-off bolt-action rifle was located, being Charge 2.

Objective Gravity of Offending

14The offence of aggravated carjacking carries a maximum penalty of 25 years' imprisonment. It is a category 1 offence. This reflects the objective seriousness of the charge, as does the operation of s 5(2G) which mandates the imposition of a custodial order for this offence.

15Section 10AD of the Sentencing Act imposes a mandatory non-parole period of not less than three years' imprisonment unless the court finds a special reason applies pursuant to s 10A of the Act.

16Serious aspects of your commission of this offence include:

·Approaching the victim whilst he was seated in his car; 

·Entering the car and demanding that he drive you to Moonee Ponds placing him in fear by your actions; 

·Demanding the keys from your victim whilst he was under threat;

·Production of the firearm.

17The ordeal took up to an hour.  It would have been an extremely frightening and traumatic experience for your victim.

18The summary offence of unlawful assault is also a serious example of the offence given the reference to and the use of the firearm.  A serious aspect of Charge 2 is your possession of a modified firearm with identifying features altered.

Personal Circumstances

19Turning to your personal circumstances.  You are a 28-year-old proud Gunaikurnai and Bidhawal women through both sides of your family currently on remand at Dame Phyllis Frost Centre.  Your childhood and teenage years were marked by significant traumatic events, disadvantage, neglect and dysfunction.  Details of your childhood and upbringing are set out in the defence submissions, Exhibit 1, and the reports of psychologist, Megan Rodgers, dated 27 July 2020 which is Exhibit 2 and 30 August 2022 which is Exhibit 3.

20I will not produce the detail that is expressed in concise but full terms in Exhibit 1 and the reports.  It is suffice to note that I accept the following.

21You are one of nine children to your mother growing up in Moe.  During your childhood you and your sister Sarah suffered poverty, neglect, starvation and physical abuse at the hands of your mother.  You and your sister Sarah were subject to persistent sexual abuse from your uncle from the age of seven.  You were taken into Child Protection Services from a young age, along with Sarah.  Physical and sexual abuse continued.

22From around the age of seven you began using inhalants such as petrol fumes.  You would inhale petrol until you passed out.  You also used other illicit substances from this young age.  Your substance use escalated into your teenage years.  Methamphetamine use has been a major problem for you throughout your life and is linked to much of your offending.

23The relationship between early childhood trauma, illicit substance use and your history of offending is clear in your case.  The relationship embraces other criminogenic factors.  Limited academic outcomes, homelessness, negative peers, dysfunctional relationships.

24Your offending history commences when you were 16.  You left school at 16.  You have significant challenges in relation to literacy.  You meet the diagnostic criteria for PTSD and severe methamphetamine disorder.

25I accept that during the offending period you were exhibiting extreme paranoia linked to drug use and PTSD.  I accept that both of these factors are rooted in your early development.  You were also in the midst of complex grief reactions.

26Turning to the report of Ms Rodgers.  I accept the findings of Ms Rodgers across the two reports tendered, Exhibits 2 and 3.  Exhibit 2 is not referrable to the offending before me.  Exhibit 2 relates to the offending for which you were sentenced in early 2021.  Exhibit 2 raises issues relating to the passing of your sister and its affect upon you.  Ms Rodgers writes at paragraph 20:

The last time Ms Fenton had seen Sarah had been in prison and she had not had the opportunity to catch up with her after being released.  She was absolutely devastated at the loss of her sister, her closest confidante, the person she had experienced so much with, commencing with their shared abuse at the hands of their mother.

27In relation to cognitive function Ms Rodgers' July 2020 findings appear at paragraphs 32 and 33 of that report:

Ms Fenton presents with cognitive deficits and a history of abuse, in particular multiple serious blows to the head, as well as a significant history of substance abuse from a young age. 

…

Ms Fenton's current psychiatric problems are the direct result of her history of abuse, both physical and sexual, as well as her cognitive difficulties.  Ms Fenton reported symptoms consistent with Post-Traumatic Stress Disorder (PTSD) particularly in relation to the child sexual abuse perpetrated by her uncle including flashbacks and nightmares as well as ongoing hypervigilance and avoidance of men, although it is impossible to distinguish which of these symptoms relates exclusively to the childhood abuse and that which might be related to later abuse she received from intimate partners.

28At paragraph 37 Ms Rodgers writes:

The most troubling symptoms for Ms Fenton emotionally, socially and legally appear to be her anger, and while Ms Fenton may be justified in her anger towards her abusers, the level of problems it has caused in her life warrants further investigation…  symptoms of anger and aggression are reported as the most common and problematic neurobehavioral consequences of ABI [acquired brain injury].

29In relation to the offending behaviour under consideration in 2020 Ms Rodgers writes at paragraphs 41 and 42:

Ms Fenton did not attempt to minimise her current offending nor did she deny that she had committed these offences.  She described this period in her life following her sister Sarah's passing as extremely painful and destressing, and a time of high family discord.  Ms Fenton sought relief from substance abuse, as she had done so many times throughout her life. 

…

Although ultimately destructive, Ms Fenton perceived substance use as the only way she could cope with her grief and loss after the passing of her sister.  She does not recall much of the offending however accepts that it is her responsibility.

30Exhibit 3 is Ms Rodgers' report dated 30 August 2022 which deals with the matters for which you are now being sentenced.  The ongoing impact of your sister's passing is touched upon at paragraph 17: 

Ms Fenton has had little contact with her family since Sarah’s suicide in 2019, reporting that family and friends all enquire as to how she is coping and she does not want to face such questioning. Sara’s suicide was extremely difficult and Ms Fenton has not yet found a way to manage her grief, however she intends to play a significant role in the life of Sarah’s young daughter Angel.

31I accept Ms Rodgers’ finding at paragraph 29:

Ms Fenton meets the diagnostic criteria for F43.10 Post-Traumatic Stress Disorder (PTSD) which goes some way to explaining her behavioural responses at the time of the offending.

32In relation to the offending before me Ms Rodgers writes at 33:

Whilst she does attempt to excuse or justify her offending behaviour,
Ms Fenton describes this time of her life as chaotic with no stabilising influence, no support and heavy substance abuse.  At the time of the offending Ms Fenton was experiencing paranoid delusions, believing that everyone was “out to get” her, wanting to hurt her.

33Ms Rodgers assessed you as continuing to experience a significant amount of trauma related stress.  At 40 she writes:

This distress, in conjunction with her cognitive difficulties and life experiences likely contributed greatly to Ms Fenton's limited problem-solving capacity and suggests that she would benefit from considerable support in the community to function productively.

34And at 43 - 44:

The correlation between involvement in crime, experience of abuse or neglect and a history of being placed in care is established in research. 

…

Trauma associated with childhood sexual abuse has been found to have complex interrelationships and the impacts are difficult to isolate.

35And at 45:

Ms Fenton was exposed to substance use from a young age and commenced inhalant use as young as 7 years old.  Her substance use increased over the years and has been consistent since she was aged 16.  The factor of disadvantage has been associated with poor developmental outcomes and an increased likelihood of the child becoming a substance user and being involved in the criminal justice system.

36Ms Rodgers expands upon the effects of what she considers to be your likely acquired brain injury at paragraph 46.  There are difficulties with consequential thinking, control of emotions and behaviour.  Related problems including impulsive behaviour, anger and aggression.  Increased substance use, poor self-monitoring, lack of inhibition and memory loss.

37In conclusion Ms Rodgers writes at paragraphs 50 and 51:

As established above, at the time of the offences Ms Fenton had not long been released from prison, was living on the streets and had limited supports, she was avoiding the trauma associated with the suicide of her sister as well as experiencing perceptual disturbance associated with psychosis. 

…

The psychiatric conditions in conjunction with unstable living circumstances contributed substantially to the commission of the offences.  While Ms Fenton accepts responsibility for her actions, she describes the paranoia that she was experiencing at the time of the offences as largely shaping her behaviour in her belief that she needed to urgently escape the environment she was in.

Other Factors in Mitigation

Bugmy

38Your counsel raised a number of matters in mitigation which I accept for the most part.  I concur with the prosecution that whilst Bugmy v The Queen (“Bugmy”)[1] factors and the principles relied upon from DPP v Brooks (“Brooks”)[2] and R v McKee (“McKee”)[3] have application, in your case I cannot conclude that Verdins[4] principles apply to mitigate subjective responsibility in the same way.

[1]Bugmy v The Queen (“Bugmy”) 249 CLR 571

[2]DPP v Brooks [2008] VSCA 253

[3]R v McKee [2003] VSCA 16

[4]R v Verdins [2007] VSCA 62

39My reason for so concluding is not based upon a view that there is no nexus between PTSD and the offending before me but that the effect of intoxication upon your conduct is relevant but difficult to quantify.

40Nevertheless, the effects of early childhood trauma, including PTSD and the related issue of early childhood substance abuse and its connection to the substance use issues operating at the time of the offending, are relevant to my assessment of subjective culpability in a powerful way in your case.

Plea of guilty

41I have taken into account your pleas of guilty and the significance of those pleas during the pandemic and the state of trial lists in this court.  I have also taken into account the hardship in custody you have experienced during the increased restrictions at the time of the pandemic.  I have taken into account, both in a general and related way, the significant constellation of Bugmy factors.  I say constellation because it includes all of those related issues which relate to limited education outcomes, acquired brain injury, homelessness, drug use.  All the consequences and effect of matters stemming out of early childhood trauma and disadvantage.

Participation in Koori Court

42I have also taken into account your participation in the Koori Court sentencing conversation.  You participated fully in the conversation and you spoke about things in your life which are extremely difficult for anyone to talk about.  It was very clear to everyone in that conversation that they are particularly difficult things for you to talk about.  I have had to touch on and go over some of those matters during these sentencing remarks and I am sure that has also been traumatic for you.

43You engaged well in the conversation with Aunty Yvonne Luke and I was able to observe your responses, not only verbal but physical and emotional.  The sentencing conversation provides a strong vantage point for the court to assess your responses to challenges from Elders.  It provides a vantage point to assess your insight and remorse and to assess whether these expressions and responses are genuine and how deeply they are held.  Genuine participation in the sentencing conversation has mitigatory effect.

44You spoke about the issues in your life, particularly the positive issues you draw from your niece and what you want to be to her in the future.  These are difficult things to talk about given the context.  You also spoke about your mother and your late sister.  Again these are all very difficult things for you to talk about.

45You also spoke about the victim.  You were asked about the victim and you showed considerable insight and I commented upon that during the sentencing conversation.  So I have taken into account in a positive and significant way your participation in the Koori Court sentencing conversation.  Indeed I was invited to do so in the excellent further submissions on sentence filed by Mr Raimondo on behalf of the prosecution.

ss 5(2G) and 10A of the Sentencing Act 1991

46Yours is a case that the mandatory sentencing provisions apply. That is, the provisions set out in s10AD.[5] Those mandatory provisions mandate a minimum non‑parole period of three years for the offence of aggravated carjacking unless you fall within one of the exceptions set out. Mr Habib in excellent plea on you your behalf relied upon sub-sections s10A and also (e). Subsection (c) was ambitious as I have accepted there is a nexus between your PTSD and your offending but it is a nexus which I assess as being more properly under the heading of Bugmy factors and Brooks and McKee factors rather than mental impairment having a significant substantial contribution as expressed in that section.

[5]Sentencing Act 1991 (Vic)

47The other section that was relied upon, s10A sub-section (e), carries with it the test of substantial and compelling circumstances that are exceptional and rare that justify not imposing the mandatory minimum.

48I am required to make an evaluative judgement in relation to whether that is made out.  When making the evaluative judgement as to whether such circumstances exist I must regard general deterrence and denunciation of your conduct as having greater importance that the other purposes set out in s 5(1) and I must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence.

49I am also required to have regard to parliament's intention as expressed in s 10A(3)(ae) of the Act, that a custodial order should ordinarily be imposed for a category 1 offence.

50The combined legislative effect of the various provisions has been clearly articulated by the Court of Appeal.  The court observed that in adding the words 'exceptional and rare' parliament intended to make the test almost impossible to satisfy.  That is a reference to the case of Buckley v The Queen[6] rephrasing an extract from Bowen v The Queen.[7] 

[6]Buckley v The Queen [2022] VSCA 138, at [44]

[7]Bowen v The Queen ]2021] VSCA 355, at [11]

51The court has also stated that in nearly every case to which the mandatory sentencing provisions apply the offender should go to gaol.  There has not been that question in your case of a gaol term being appropriate.  The issue in your case is the application of the non-parole period.  It has been described as a very high hurdle that will not often be surmounted.

52Despite these pronouncements clearly it is not a test that is insurmountable or impossible to satisfy by its very definition and I do not take the judicial statements that it is a test that is almost impossible to satisfy as qualifying the words of the statute.  The words are clear. 

53In your case there are a number of matters which I will not go over again.  They are set out clearly in the written submissions, Exhibit 1, filed by Mr Habib and were expanded upon in oral argument by him with some effect.

54There are a number of matters in your case which stand out.  The question is, can they be described as substantial and compelling, exceptional and rare.  That is the evaluative judgement that Mr Habib invites me to make in the affirmative. 

55When I say matters that stand out, the exposure to substance abuse at the age of seven, continuing from that age, has an exceptional character to it.  The question is, is it substantial and compelling, exceptional and rare?

56The sad constellation of events surrounding your sister's passing in the context of your close relationship with her forged in adversity and shared trauma as it was, certainly has something of the exceptional about.  There is an exceptional character about it but again, the test goes further.

57Mr Raimondo, as I have touched upon, raised a sound point during argument, that whether Bugmy principles in itself, once relied upon and accepted, can also satisfy the test of substantial and compelling, exceptional and rare.

58I have concluded that the answer depends upon what the circumstances underpinning the Bugmy mitigation are and in this case I have drawn out
two aspects of a constellation of factors which could amount to that character of exceptional.

59Added to that and this is where I come back to the very helpful submission made by Mr Raimondo on behalf of the prosecution, highlighting the matter in mitigation of the participation in the Koori Court sentencing conversation as being a matter than I am able to take into account when making this evaluative judgement in relation to s 5.

60I do not take it to be said that Mr Raimondo was saying that that was exceptional in itself but in a given case such as yours whether the subject matter, including the matters to which I have referred, as approaching the exceptional nature. 

61Those matters are aired during the conversation.  You speak openly and honestly about them.  Then that participation in combination with the other matters relied upon, the Bugmy mitigation, the Brooks and McKee application and the personal matters to which I have referred which approach an exceptional character in combination with the participation in the sentencing conversation.  I am satisfied that that combination amounts to a special reason that substantial and compelling, exceptional and rare justifies not imposing the mandatory non-parole period.

62I have taken into account all the matters in mitigation but also paid careful regard to the important factors of general deterrence, denunciation and protection of the community. 

63I have had regard to your antecedence, including and in particular the matters referred to in the prosecution's submission on sentence involving the 2017 Latrobe Valley County Court appearance for which you were sentenced to
two years' imprisonment for armed robbery.

64These are matters which limit the degree of leniency that is available to you in your case but I must balance them against what I have found to be quite powerful matters in mitigation inadequately placed under the banner of Bugmy and McKee and Brooks.  I say inadequately because it is the sum of factors, in your case, in your life that have contributed to drug use problems and stability problems.  Mental health, cognitive functioning, housing, a whole range of issues that stemmed from not one factor or one category but stemmed from a sum of events and circumstances.  Some personal to you.  Some to do with environment and other factors.

65As I have said before in cases where I am assessing subjective responsibility in light of Bugmy factors, the effect of the whole of those factors is greater than the sum of its parts and it does not much help to break it down, break the mitigation down to its constituent parts.  I have endeavoured to do that as best as I am able.

Sentence

66I am going to sentence you as follows, Ms Fenton.

67In relation to Charge 1 on the indictment, aggravated carjacking, you are sentenced to three years and three months' imprisonment.

68In relation to a prohibited person possessing a firearm, you are sentenced to 18 months' imprisonment.

69In relation to the summary offences, drive whilst disqualified, one month imprisonment. 

70Commit indictable offence on bail, one month imprisonment. 

71Unlawful assault, one month imprisonment.

72Bearing in mind presumptions I will state clearly that all sentences to be served concurrently save for the following order for cumulation.

73Six months of the sentence imposed on Charge 2 on the indictment is to be served cumulatively upon the sentence imposed on Charge 1 on the indictment.

74That makes a total effective sentence of three years and nine months' imprisonment.

75I set a non-parole period of two years and three months.

76I declare pursuant to s 18 of the Sentencing Act, is it 567 days, Mr Raimondo?

77MR RAIMONDO:  Yes, Your Honour.

78HIS HONOUR:  I declare that you have served 567 days as
pre-sentence detention in relation to this matter.

79I make an order against your licence in relation to the charge of aggravated carjacking.  Licences are cancelled, suspended for 18 months from today's date.

80I make the order for forfeiture in relation to the firearm.

81Pursuant to s 6AAA were it not for your pleas of guilty I would have sentenced you to a total effective sentence of five years' imprisonment with a non‑parole period of three years.

82Are there any orders I have overlooked or other matters?

83MR RAIMONDO:  No, Your Honour.

84HIS HONOUR:  Ms Theocharous?

85MS THEOCHAROUS:  No, Your Honour.

86HIS HONOUR:  Thank you.  All right, Ms Fenton.  You will be, on my reckoning, eligible for parole in seven months or so and then you have got a lengthy period of parole.  So I urge you to remember what was said during the conversation and what you have said about your niece and what you want to do in the future and keep those things in mind when you are on parole.  You have got some time now to get ready for the notion of parole.  Yes, we'll adjourn the court.

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