Director of Public Prosecutions v Mann & Dunbar
[2024] VCC 1885
•22 November 2024
Mr
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos: CR-24-00865 &
CR-24-00453
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| UPINDER MANN |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 September & 6 November 2024 | |
DATE OF SENTENCE: | 22 November 2024 | |
CASE MAY BE CITED AS: | DPP v Mann & Dunbar | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1885 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Guilty pleas – Aggravated carjacking (Mann) – Carjacking, possession of a drug of dependence, namely cannabis, and possessing cartridge ammunition without a licence or permit (Dunbar) – prior criminal history – Bugmy principles - diagnosis of Borderline Personality Disorder and provisional diagnosis of complex PTSD (Mann) – complex PTSD, anxiety, depression and abuse of illicit and prescription drugs (Dunbar) - Dunbar not aware that co-offender Mann was in possession of a knife at the time of the offending – prominent sentencing considerations of general deterrence, denunciation and just punishment
Legislation Cited: Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Firearms Act 1996; Sentencing Act 1991
Cases Cited:Bugmy v. The Queen (2013) 249 CLR 571; R. v. Verdins (2007) 16 VR 269; Yat v. The King [2024] VSCA 93; DPP v. O’Neill [2015] VSCA 325; Farmer v. The Queen [2020] VSCA 140; DPP v. Hudgson [2016] VSCA 254; Fariah v. The Queen [2021] VSCA 213; Mammoliti v. The Queen [2020] VSCA 52; Russo v. The Queen [2021] VSCA 244; Tewaka v. The King [2022] VSCA 275
Sentence: Upinder Mann – sentenced to 4 years imprisonment with a non-parole period of 3 years
Damien Dunbar – sentenced to 2 years, 4 months' imprisonment with a non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown | Office of Public Prosecutions |
| Victoria | ||
| For Upinder Mann For Damien Dunbar | Mr M. Cookson Ms B. Kelly | Slater Law Victoria Legal Aid |
HER HONOUR:
1Upinder Mann, you have pleaded guilty to a charge of aggravated carjacking contrary to s 79A of the Crimes Act 1958 ('the Act'), the maximum penalty for which is 25 years' imprisonment.
2Damien Dunbar, you have pleaded guilty to one charge of carjacking contrary to s 79(1) of the Act, the maximum penalty for which is 15 years' imprisonment and one charge of possessing a drug of dependence, namely cannabis, contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, the relevant maximum penalty for which is 5 penalty units.[1]
[1]Drugs, Poisons & Controlled Substances Act 1981, s 73(1)(a).
3Mr Dunbar, you have also pleaded guilty to a summary charge of possessing cartridge ammunition without a licence or permit contrary to s 124(1) of the Firearms Act 1996, the maximum penalty for which is 40 penalty units.
4You have both admitted a prior criminal history.
Circumstances of offending
5The circumstances giving rise to these offences are as follows.
6Ms Li Ean Mah lives in Carnegie and is the owner of a Toyota RAV4.
7
On Monday 26 June 2023, at around 5.10 pm, Ms Mah returned home and reversed into her driveway, parking her Toyota RAV4 in front of her closed garage. The two of you were walking down her street at that time. Neither of you knew
Ms Mah or had met her before this date.
8Ms Mah parked and got out of her car when, together, you approached the victim in her driveway. Ms Mah backed away towards the garage, but was cornered by the two of you.
9
You, Mr Mann, demanded that Ms Mah hand over her car keys, in response to which she began screaming. You then produced a knife and pointed it towards
Ms Mah. You continued to demand that she hand over her car keys, in addition to her phone and purse.
10It is accepted by the prosecution that you, Mr Dunbar were not aware Mr Mann had produced a knife. Ignorant of this fact, you told Ms Mah, 'We don't want to hurt you, we just want your car'.
11You, Mr Mann, then snatched the keys from Ms Mah’s hand, causing the car key to break off from the key-ring holding her house keys. You then demanded that Ms Mah hand over her mobile phone. She hesitated to do so, but you repeated the demand. Ms Mah then handed you her mobile phone, as you were still holding the knife pointed at her.
12
A woman unconnected to these events was walking past the house and heard the victim screaming. She asked Ms Mah if her car was being stolen. In response,
Ms Mah nodded but was too frightened to speak. At this point you, Mr Dunbar told Ms Mah to tell the woman that you were her boyfriend. Ms Mah was still too scared to speak. Mr Mann, you then told the woman to 'fuck off' and said you were there to purchase a car, but she refused to leave and remained at the scene.
13
Ms Mah asked you to return her house keys. You, Mr Mann, then threw the house keys at the victim before getting into the driver's seat of her car. Mr Dunbar, you got into the rear driver's side of the car. When you were unable to start the car
Mr Mann, you demanded that Ms Mah do so. Ms Mah told you she would start the car if you returned her phone. You then gave Ms Mah her phone back, and she started the car and you drove away. These are the events giving rise to Charge 1 - aggravated carjacking (for you, Mr Mann) and Charge 1 - carjacking (in respect of you, Mr Dunbar, noting this charge is brought on a complicity basis).
Ms Mah then called the police.
14When the police arrived shortly after, Ms Mah's husband informed them that the stolen vehicle could be tracked using the 'My Toyota' app on his mobile phone. Using this app, the police were able to track the movements of the stolen car. At 6.05 pm, the car was shown to be stationary at the Bayview Hotel in Queens Road, Melbourne before being driven to the city. CCTV footage from the Bayview Hotel depicts you both in the car. CCTV footage from Collins Street, Melbourne depicts another male get into the driver's seat of the car, while you, Mr Mann, move to the back seat.
15At about 6.28 pm you, Mr Dunbar went into an IGA store on Collins Street. The police then approached the car and arrested the other male. Mr Dunbar, you walked away from the scene and avoided police detection.
16Mr Mann, you were arrested by police and found in possession of the knife, which was located in the pocket of your jumper. You refused to be interviewed.
17Mr Dunbar, you were arrested by police on 24 July 2023 when they attended at an address in Cobram to execute unrelated search warrants. Coincidentally, you were present at that address.
18You produced a clear resealable zip-lock bag containing a small amount of cannabis. This is the subject of Charge 2 – Possess a drug of dependence. The police conducted a pat-down search of you and located a shotgun ammunition cartridge in the pocket of your jacket, which is the subject of summary Charge 7 – possessing a cartridge ammunition without licence or permit.
19In accordance with your rights, you mainly provided no comment in response to questions asked by police when they interviewed you regarding the carjacking. However, you did tell police that you had been picked up by Mr Mann in a burgundy or maroon four wheel drive from an address on Glen Huntly Road before driving towards the Melbourne CBD, stating you did not know the 'car was hot'. You denied stealing anything, saying 'I am not about stealing cars off fuck'n ladies'.
20Mr Mann, you were 25 years old at the time of this offending, while you, Mr Dunbar were 33.
Nature and gravity of offending
21That the offence of aggravated carjacking is a serious one is unambiguously reflected in the maximum penalty of 25 years' imprisonment. Aggravated carjacking is a Category 1 offence, which means the court must impose a sentence of imprisonment unless certain exemptions apply. In addition, a non-parole period of no less than three years must be imposed unless the Court finds that a special reason exists under s10A of the Sentencing Act 1991. These legislative provisions reflect the seriousness with which Parliament, on behalf of the community, views the crime of aggravated carjacking.
22Mr Dunbar, you are to be sentenced for the less serious offence of carjacking which carries a maximum penalty of 15 years' imprisonment. This offence applies to you as it is accepted by the prosecution that you were not aware Mr Mann was in possession of a knife at the time of the offending.
23The offending you both engaged in on 26 June 2023 had a number of aggravating features. The fact that the two of you were in company when you confronted the victim to demand the keys to her car, can only have heightened her fear. The offending occurred in the late afternoon in the driveway of the victim's home, where she was entitled to be safe from such menacing conduct. Neither of you were deterred by the fact a bystander approached the two of you and questioned what you were up to. Notwithstanding her continued presence, you proceeded to steal the victim's car. This was brazen offending.
24Mr Mann, you are to be sentenced for committing this offence while brandishing a knife which you pointed at the victim while demanding the keys for her car. You plainly had no regard to the fact that the presence of the knife must have made this a terrifying experience for Ms Mah. Although no specific threats were uttered, the situation created by you was threatening. Your aggressive conduct also included snatching the car keys from the victim, and telling the female bystander to 'fuck off' before stealing the victim's car.
25
Mr Dunbar, your role in the offending was not as significant as that played by
Mr Mann, however, you actively engaged in the offending. You approached the victim with Mr Mann. After the victim began screaming, you told her 'we don't want to hurt you, we just want your car'. You encouraged the victim to tell the passerby that you were her boyfriend in order to encourage the bystander to leave.
26You were not however, aware that Mr Mann had a knife. I accept the submission made on your behalf that, as far as you were concerned, the extent of Mr Mann's conduct involved initiating the demands for the victim's car keys, snatching the keys from the victim and demanding that she start the car before driving away. Your moral culpability is significantly less than that of Mr Mann.
27
For both of you, the offending was fast-paced and confrontational. I accept that beyond Mr Mann being in possession of the knife, this was neither planned nor sophisticated offending. I agree with the prosecution submission that this is a
mid-range example of the offence of aggravated carjacking and carjacking respectively. Other aggravating features sometime associated with these offences, such as physically dragging the driver from the car or otherwise harming the victim, are not present. Fortunately, in this case, the victim was not physically assaulted, beyond having the keys snatched from her hands. Nonetheless, for Ms Mah this must have been a very frightening ordeal, as is borne out by her victim impact statement.
28In that statement, Ms Mah states that she was in shock after the incident, which she says left her feeling targeted and unsafe in her home. Ms Mah states that she required 'months of therapy' to help with the trauma she experienced, despite which she still feels unsafe when she is home alone; constantly on high alert and fearful. Ms Mah concludes her victim impact statement by saying your offending has made her reluctant to leave the house alone, which has negatively impacted on her relationships and social life.
29You can both be in no doubt that your offending has had a profound impact on many aspects of Ms Mah's life. Mr Mann, you bear a particularly high level of moral culpability for your offending. However, your respective levels of moral culpability are also informed by your personal circumstances, to which I now turn.
Personal circumstances
Upinder Mann
30Mr Mann, you were born in New Zealand in October 1997 to Sikh parents. You remain a New Zealand citizen.
31Your father, Baldev Singh has been married three times, each one an arranged marriage. You have an older stepsister who lives in New Zealand but you only met her as an adult.
32Your father's second wife was your mother. You have an older sister, Sukhpreet Mann, who is 28 years old and works as a chartered accountant. Your older sister remains supportive of you.
33Tragically, your younger brother was 10 months’ old when your 29-year-old mother threw him from a bridge before jumping to her death in a murder-suicide in 2000. You were three years old at the time.
34At your plea hearing, Mr Cookson tendered media reports of the coronial findings in 2000.[2] Unfortunately, your legal representatives had been unable to obtain a copy of the Coroner's report or statements contained on the coronial file. The media reported that in December 2000, the Coroner made the 'unusual' decision to grant permission for the media to have access to the depositions from the inquest, rather than closing the file. The reports indicate that your mother suffered significant physical abuse in her arranged marriage to your father.
[2]Exhibit 6
35The reports refer to a statement made by your maternal grandmother, who had come to New Zealand a year after her daughter married. She states she had been in the family home for 10 days before she first saw your father beating your mother. The report states that she witnessed your father throw your mother into walls, pull her hair, and punch and slap her with such force that your mother suffered a perforated eardrum, requiring surgery. The report states this injury was confirmed by medical records.
36On another occasion, the reports state that your father 'dragged her inside from the front porch of the house, punching and slapping her with such force that they slammed into the door and broke it'. The report of your grandmother's statement indicates that when she asked your father why he was beating his wife, your father threatened to kill her and your mother if it was reported to the police or to 'any of his Punjab friends'. Your father denied any physical violence when questioned by the media regarding these allegations.
37
Your father remarried shortly after your mother's death and you were raised by your father and stepmother, who you refer to as your mother. You have a
half-brother who is now 18 years old and is studying business at university.
38You report being subjected to physical and emotional abuse from your father as you grew up but have not been able to discuss this in any detail. You state this abuse occurred at times your father was intoxicated.
39
You moved between New Zealand and India on a regular basis when you were younger. You were sent to India by your father when you were approximately
12 or 13 to spend time at a wrestling academy. While there, you report being sexually abused by an older male, but never reported the matter to police or told your parents.
40You attended primary and secondary school in New Zealand. However, due to behavioural issues, your secondary schooling was severely disrupted. You report attending 10 secondary schools, being repeatedly expelled for anger-fuelled acts of violence. You did not complete Year 12. At that time, you left the family home to find employment as a plumber in Christchurch. Your father and stepmother relocated to live in Australia. After six months of attempting to live independently, you followed the family to Australia and resumed living with them. Your family had purchased a supermarket here, and you worked with them for a period.
41You began abusing cannabis and alcohol at the age of 15.
42In around 2019, you moved to Cobram where your uncle lived to find seasonal work. You have worked sporadically, as a farm labourer, as a cleaner in K-Mart and undertaking occasional work at a Coles supermarket. However, during your time in Cobram, your substance abuse escalated significantly, including the use of methylamphetamine, Valium, Lyrica and GHB. You began associating with negative peer groups. At the height of your addiction, you report using up to 1.7 grams of methylamphetamine and GHB on a daily basis, in addition to consuming a bottle of spirits, predominantly tequila and bourbon. You had also developed a gambling addiction.
43You have a relatively recent but relevant criminal history in the Magistrates' Court commencing in 2019, when you were aged 22.
44On 29 October 2019, you were sentenced to an aggregate of six months' imprisonment combined with a community correction order for offences including theft, theft from a shop, obtaining property by deception, assaulting an emergency worker on duty, recklessly causing injury to an emergency worker and bail offences. On appeal to the County Court on 12 November 2021, the appeal was allowed, and you were sentenced to an aggregate of six months' imprisonment and a fine of $330.
45It is in the context of this matter that you undertook a period of rehabilitation at the Odyssey House Victoria Circuit Breaker Program, which you report having completed although you soon relapsed into drug use.
46On 9 September 2021, you were sentenced by the Seymour Magistrates' Court to a combination of 59 days' imprisonment and a 12-month community correction order for offences including carjacking (with the use of force to steal a vehicle), unlawful assault, recklessly causing injury, contravening a family violence intervention order, criminal damage, acting in a manner prejudicial to the management of a goal and bail offences.
47The carjacking offence arose in circumstances where you became involved in a dispute with a taxi driver about the fare for a trip from Seymour to Cobram. You struck the driver who then fled from the vehicle. You then climbed into the front of the vehicle but were removed by other drivers.
48On 19 April 2022, you were sentenced to eight months' imprisonment for the offences of affray, intentionally causing injury, making a threat to kill and robbery. These offences contravened the community correction order imposed in September 2021.
49On 21 November 2022, you were sentenced to an aggregate of 10 months' imprisonment for offences that included unlawful assault, making a threat to kill and two counts of resisting an emergency worker on duty. On the same date you were sentenced to two months' imprisonment, to be served concurrently, for the offences of theft from a motor vehicle and obtaining property by deception.
50You were assessed for the purposes of your plea by psychologist, Mr Jeffrey Cummins on 19 September 2024. During this assessment you told Mr Cummins that your history of offending was 'all substance related' however, you did acknowledge difficulty managing your anger.
51As to this offending, you report that in the weeks prior, you had been assaulted by someone carrying a machete, and wanted to travel to the area you believed the person lived in, so together with Mr Dunbar, you made the impulsive decision to steal a car to travel there. You state you were intoxicated due to alcohol and a mix of prescription drugs at the time.
52Mr Cummins diagnosed you with a Borderline Personality Disorder characterised by unstable interpersonal relationships and impulsivity, beginning in early adulthood. He provisionally diagnosed you with complex PTSD and of being at risk of developing an Antisocial Personality Disorder stemming from an undiagnosed Oppositional Defiance Disorder during your adolescence. Mr Cummins considered that you present as emotionally immature, although he assessed you to be of average intelligence.
Damien Dunbar
53You were born in December 1989 and were raised in Northern Victoria. You are the oldest of four children, with two younger brothers and a younger sister.
54
Much of your personal history is detailed in a report provided by psychologist, Alison Mynard dated 22 June 2024[3] and in a supplementary report dated
4 November 2024[4].
[3]Exhibit 1 – Psychological report of Alison Mynard dated 22 June 2024.
[4]Exhibit 3 – Psychological report of Alison Mynard dated 4 November 2024.
55Your father was very strict, and you experienced physical violence at his hands as you grew up. You have subsequently learnt that your father was sexually abused as a child when he lived in a boy's home. You told Ms Mynard that your father 'took his anger out' on you, frequently 'belting or smacking you' when you were a child. You told Ms Mynard that you always felt like the 'black sheep' of the family, and that you could never understand what you had done wrong to warrant being struck, until it was too late. You report that your mother was unable to do much to protect you.
56You attended Cobram Primary School, but did not do well academically. You repeated Grade 5 before commencing Year 6. You were then expelled from school in Year 7 for dealing in drugs.
57You commenced using cannabis regularly at the age of 14. You also began dealing in this drug for money. By mid-adolescence, you were also drinking one to two bottles of spirits on a daily basis. You report being hospitalised with alcohol poisoning on numerous occasions.
58At the age of 14, you commenced a relationship with a 23-year-old woman and left home to live with her. You remained together for close to a decade. You never returned to any formal education. You told Ms Mynard that your parents and authorities attempted to intervene to end the relationship, but that you were intent on rebelling against them at that time. You report that your partner began using methylamphetamine and that she supplied you with this drug. You also began using heroin together. You acknowledge that, as a result of this relationship, you had to 'grow up before [your] time'.
59
In 2010 and 2011, you had two daughters together. However, when you were
18 years old you discovered that your partner had been unfaithful to you. You then struggled with issues of trust, and your drug abuse escalated. You left the relationship when you were 22 years old. Your daughters, now 14 and 12, live with their mother in New South Wales. You have contact with them on school holidays and on long weekends at their maternal grandmother's home in New South Wales when you are not in custody.
60At the age of 23 you lost all your teeth as a result of years of substance abuse. You now wear dentures that were fitted when you were last in the community, which has given you more confidence.
61In your 20s, you worked as a farm hand and concreter on occasions but inconsistently due to your substance abuse issues and time spent in custody.
62In addition to problems with ice and heroin, you report having abused oxycontin over the years, in addition to other depressants, such as Xanax. You also overdosed on GHB once, following a period in custody, requiring hospitalisations.
63You have a reasonably lengthy criminal history dating back to 2012, when you were 22 years old. Since that time, you have been sentenced to four terms of imprisonment, the longest being for a period of six months. Most of your prior criminal history is largely consistent with your drug abuse issues.
64However, you have limited priors for violent offending. You were sentenced in April 2012 for recklessly causing injury for which you were convicted and fined $750. On 9 February 2021, you were sentenced for making a threat to inflict serious injury, in addition to other drug and dishonesty related offences, for which you were sentenced to 103 days' imprisonment combined with an 18-month CCO. You have no other prior convictions for acts of violence.
65You have a poor history of compliance with community correction orders. You received your first CCO on 25 May 2016 for driving offences, theft and damaging property. On 28 October 2019, you were found to have contravened a CCO made on 24 May 2019 and were sentenced to a term of four months' imprisonment for the contravention, to be served concurrently with a term of four months' imprisonment for drug-related offending, combined with an 18-month CCO.
66You were sentenced to one day of imprisonment for a shop theft and committing an indictable offence whilst on bail on 29 May 2020.
67Then, as stated, on 9 February 2021, you were sentenced to 103 days' imprisonment combined with an 18-month CCO for offences that included trafficking in a drug of dependence and threatening to inflict serious injury. A contravention of that CCO was proved on 3 September 2021, and you were sentenced to four months' imprisonment for the contravention. On that date, you were sentenced to an aggregate of 6 months' imprisonment for offences including burglary and being a prohibited person in possession of an imitation firearm, with two months of the sentence imposed on the contravention to be served cumulatively, giving a total effective sentence of eight months' imprisonment.
68You told Ms Mynard that you relapsed into drug use immediately upon your release in May 2022, abusing ice, heroin and Xanax. At the time of your arrest you were homeless and couch surfing. You had been evicted from the rental address in Cobram. Your parents would only allow you to return to their home if you were drug free.
69Ms Mynard diagnosed you with a Persistent Depressive Disorder and Generalised Anxiety Disorder. She was also of the opinion that you display 'numerous traits' of a Borderline Personality Disorder, however she states this should be re-assessed once you are abstinent from illicit substances.
70As to your offending, you told Ms Mynard that you had consumed half a bottle of tequila with Mr Mann, who you state instigated the idea of stealing a car to confront the person he told you had assaulted him with a machete. Ms Mynard reports that in the days or day prior, you had been using cannabis, heroin and methamphetamines.[5]
[5]Supplementary report at [31]
71Ms Mynard assessed you as having a low average to borderline intelligence, given your lack of schooling. She states that your judgment at the time of the offending was impacted by the combination of your alcohol intoxication and mental health issues which 'cloud [your] thinking' and 'impair [your] ability to make sound, reasoned and thoughtful' decisions.
72In her initial report, Ms Mynard expressed the opinion that you met the diagnostic criteria for schizophrenia, which she stated was exacerbated by your use of illicit drugs. She expressed the opinion that, in addition to clinical depression and anxiety, you suffered from a 'psychosis' at the time of the offending, which contributed to your impaired decision making at the time.
73
After I sought further clarification regarding these diagnoses, your plea was adjourned for Ms Mynard to provide a supplementary report. Having further assessed you on 26 October 2024, in her report dated 4 November 2024,
Ms Mynard clarified that it remains 'unclear' whether you have any long-term psychotic disorder, such as schizophrenia, without the use of substances.
Ms Mynard also clarified that the reference in her earlier report to 'psychosis' was a reference to your symptoms of a drug-induced psychosis at the time of this offending.
74Ms Mynard restated that further assessment is required to confirm any diagnosis of a Borderline Personality Disorder.
75On further assessment, Ms Mynard concluded that you also suffer from a complex PTSD, stating that your symptoms of generalised Anxiety and Persistent Depressive Disorder are consistent with 'the hyper-arousal and negative affect symptoms of Complex PTSD'.
Matters in mitigation
76I turn now to the matters raised in mitigation.
Upinder Mann
77
First and foremost, you pleaded guilty to the offence and in doing so, acknowledge responsibility for your offending. You indicated an intention to plead guilty to aggravated carjacking at the conclusion of a contested committal hearing on
29 May 2024, where the victim was subject to cross-examination. Although yours was not a plea entered at the earliest opportunity, there is still utility in your guilty plea in saving the court and the community the time and resources associated with a trial.
78Beyond the remorse inherent in your plea, in a reference provided by your sister, Sukhpreet Mann, she states that although you struggle to express yourself, during her prison visits you have indicated you are 'sorry and regret what [you] have done'. I accept that you have expressed a degree of remorse for your offending, however, I consider you still lack insight into the serious nature of this offending or its impact on the victim. I note that you were unable to discuss the impact of the offending on the victim when asked about this by Mr Cummins.
79Your childhood was one marked by the tragic deaths of your mother and brother and exposure to family violence. In adolescence, you experienced violence at the hands of your father, an unstable connection to your family and an instance of sexual abuse when you were sent to India in your early teens. Your schooling was severely disrupted by your behaviours.
80
I accept the submission made by your counsel that the circumstances of the death of your mother and brother, brought about in the context of extreme family violence, can only have altered the trajectory of your young life, with enduring consequences. However, due to your inability to discuss this matter with
Mr Cummins, who states you spoke about your history in 'relatively superficial terms' and 'did not wish to talk about' the circumstances of your mother's death, unsurprisingly Mr Cummins was unable to reach any conclusion regarding the impact of this event on your psychological development.
81During your assessment with Mr Cummins you did disclose, in a limited way, the fact you were subject to physical and emotional abuse from your father, at times he was intoxicated. The reports to which I have referred also satisfy me you were likely to have been exposed to family violence in your very earliest formative years. In her reference, your sister confirms that you had 'quite a tough childhood' where, in your early childhood and teenage years, you would be 'sent away from home' and often 'craves and misses the nurturing motherly love'.
82At the time you were sent to India by your father, at the age of 12-13, you report being sexually abused by an older male. You were able to provide Mr Cummins with some details of this abuse, stating you woke to find the older male trying to assault you, and that although you never told anyone about the sexual assault, you acknowledged that it still affects you.
83Mr Cummins is of the opinion that you have an insecure attachment to your father and stepmother, and that your level of insight into the impact of your dysfunctional upbringing is very limited. Mr Cummins concludes there is a 'very probable' nexus between your offending and your dysfunctional upbringing and the various traumatic events in your life, but did not expand upon that conclusion further.
84The prosecution accepts, and I find, that both the general and specific limbs of the principles enunciated in Bugmy[6] apply in moderation of your sentence. Your moral culpability could not be equated with an offender whose formative years have not been impacted by the trauma and dysfunction you experienced in your early childhood and adolescence.
[6]Bugmy v. The Queen (2013) 249 CLR 571
85Your counsel placed no reliance on the authority of Verdins[7] in further moderation of your moral culpability and conceded there is no evidence upon which I could make such a finding. In his report, Mr Cummins' states that you met the 'requisite indicia to be diagnosed with a Borderline Personality Disorder', 'most probably an Antisocial Personality Disorder and a provisional diagnosis of Complex PTSD'. However, Mr Cummins provides no detail of any formal psychological testing undertaken to support these conclusions and does not draw any nexus between his ultimate diagnosis of a Borderline Personality Disorder and your offending conduct.
[7]R. v. Verdins (2007) 16 VR 269
86I accept that your diagnosis of Borderline Personality Disorder and Mr Cummins' provisional diagnosis of a Complex PTSD has the ability to impact on your experience of custody. Mr Cummins' noted that you 'declined to divulge any information regarding your current mental health' but assessed that you appeared and sounded 'moderately depressed', enlivening limb 5 of Verdins. However, I can only give this factor limited weight, given the absence of any detail in the psychological report of the impact of your current mental health on your experience of custody.
87There are other factors that will make your experience of custody particularly onerous.
88Firstly, you are a New Zealand citizen and, upon being sentenced, you face the realistic prospect of being deported at the conclusion of your sentence. You have lived in Australia since your late teens. Your father and stepmother live here, as does your older sister, who is your strongest source of support. In a letter provided by your father and stepmother dated 10 September 2024, your father states the family is concerned about your risk of deportation, stating that you are likely to struggle without the family support available to you in Melbourne. I accept that the prospect of deportation and the uncertainty that causes, will be a source of anxiety for you while in custody and have taken the additional burden this imposes on you into account.
89Secondly, after your remand, you were transferred to Barwon Prison where you were placed 'in isolation' for a period of eight months following an assault on a prison officer, being a form of solitary confinement. Even though this resulted from your own misbehaviour, I have regard to this period of isolated confinement broadly in affording some further mitigation of your sentence[8].
[8]Yat v. The King [2024] VSCA 93
Damien Dunbar
90Mr Dunbar, I turn now to the matters that operate in mitigation of your sentence.
91You pleaded guilty to these charges prior to the first committal mention and as such, you guilty plea was entered at the earliest reasonable opportunity. By your plea, you acknowledge responsibility for the offending and importantly, avoided the need for the victim to give evidence and relive these events in respect of your charges. There is significant utility in an early guilty plea which saves the court and the community the cost and resources associated with a trial.
92In addition to the remorse inherent in your plea, in a letter you have written to the court you reflect upon the impact your offending had on the victim, stating that you 'stole a car from a lady who was alone after a day at work just trying to go home', and that you 'wish I could go back and change what I did that day'. I accept that you have gained insight into the impact of your offending conduct which you describe as the 'biggest mistake I’ve made in my life'.
93
I accept that your childhood exposure to physical violence, leading to an
age-inappropriate sexual relationship from the age of 14, through which you were introduced to heroin and methylamphetamine, enlivens the general principles enunciated in Bugmy. Your formative years were marked by physical violence in the home, behavioural problems that interrupted your schooling at an early age, and an inappropriate and dysfunctional relationship that began in your early teens, which was the genesis of your long-term drug abuse issues.
94The law recognises that early childhood dysfunction can be enduring and operates broadly to reduce an offender's moral, as opposed to their legal, responsibility for the offending conduct[9]. The prosecution accepts, and I find, that the circumstances of your formative years operate in reducing your moral culpability and therefore operate in mitigation of your sentence for this offending.
[9]Bugmy op. cit. at [44]
95I am further satisfied that your impaired mental functioning contributed to your offending, in that it reduced your capacity to make rational decisions. In her supplementary report, Ms Mynard states as follows:[10]
'At the time of the offending, Mr Dunbar's depression and anxiety symptoms (that overlap with Complex-PTSD symptoms) had resulted in heightened stress, and with reduced capacity to make clear and reasoned decisions. His complex-PTSD symptoms have led to reduced capacity for thoughtful and considered decision making abilities, with a range of symptoms including intrusive thoughts, negative affect, hypervigilance, and fluctuation of intense emotional states.'
[10]Supplementary report of Alison Mynard dated 4 November 2024, at [29]
96Ms Mynard's report provides support for the proposition that your mental impairment, however characterised, impacted on your ability to make calm and rational choices and to think clearly. The principles that apply to limbs 1-4 of Verdins operate where there is some 'realistic connection' with the offending, or where it may be causally linked to the offending.[11] I am satisfied that your impaired mental functioning at the time of the offending operates to reduce your moral culpability for the offending and correspondingly, to reduce the role played by general deterrence, to a degree.
[11]DPP v O’Neill [2015] VSCA 325, at [74]
97However, I am unable to attach significant weight to this consideration due to your level of intoxication at the time of the offending.
98Ms Mynard also considered this issue in her supplementary report, in which she concluded that your intoxication at the time 'led to his impulsive and erratic behaviour with little or no thought of the consequences', and that your drug-induced psychosis also contributed to your impaired judgment.[12] Intoxication at the time of offending is not a mitigating factor.
[12]Supplementary report of Alison Mynard dated 4 November 2024, at [31]
99On the evidence before me, it is not possible to ascertain with any precision the degree to which your underlying mental impairments contributed to your offending, as distinct from your level of intoxication on the day. Treatment for both is clearly warranted.
100I accept that your experience of custody will also be made more difficult because of your underlying mental health disorders. In addition, I have regard to the fact that whilst in custody, you have elected to have no contact with your daughters, who you describe as the motivation to turn your life around, and no ability to assist in the care of your mother, to whom you remain close, and who is unwell with emphysema. These factors add to the burden of your time in custody.
Other sentencing considerations
101It is accepted that for offending of this nature, general deterrence, denunciation and just punishment must take prominence in the sentencing consideration. Others must be deterred from similar offending by the sentence I impose. Conduct that involves confronting and threatening others in broad daylight in order to steal a car erodes the community's sense of safety and must be clearly denounced by the Court. Those inclined to use a weapon to give effect to their threats, must be clearly deterred.
102Specific deterrence also has a role to play in sentencing you both, given your prior criminal histories. In your case Mr Mann, this is a more significant sentencing consideration given your previous convictions for acts of violence.
103As to your prospects of rehabilitation, in my view they can only be approached with caution. For both of you, much will depend on your ability to remain drug free into the future. I agree with Mr Cummins' recommendation that for you, Mr Mann, engaging in anger management programs will be critical for your future prospects.
104Despite my concerns, I do not conclude that neither of you have any prospect of rehabilitation. You are both still relatively young. You have both taken advantage of opportunities afforded to you to engage in programs in custody, aimed at your rehabilitation. For you, Mr Mann, you have the ongoing support of your sister. In the letter of support from your father and stepmother they also confirm their support for you, having remained in contact with you via video in prison on a fortnightly basis, stating:
'We all miss his company and will support in every possible way to help Upinder stay away from the use of drugs and prevent him from getting into trouble again.'
105Mr Dunbar, you are motivated to reconnect with your daughters and to support your mother. I also note that in your case Mr Dunbar, you have limited prior convictions for acts of violence, and having regard to past sentences, this experience of custody is likely to be a salutary one.
106Mr Mann, s10AD of the Sentencing Act 1991 provides that I must impose a term of imprisonment when sentencing an offender for the offence of aggravated carjacking. In addition, I must fix, under s 11, a non-parole period of not less than three years unless I find under s 10A, that 'a special reason exists'.
107Section10A(2) relevantly provides that for the purposes of s 10AD, 'a court may make a finding that special reason exists, if:
'…
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.'
108In applying s 10A(2)(e), I am required to:
(a) regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purpose set out in s 5(1); and
(b) give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence.[13]
[13]Sentencing Act 1991 s 10A(2B)
109Further, I am not to have regard to previous good character, an early guilty plea, prospects of rehabilitation or parity with other sentences.
110Finally, I must have regard to:
'The Parliament's intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than 3 years should ordinarily be fixed for an offence covered by s 10AD'.[14]
[14]Ibid, s 10A(3)(ae)
111In the case of Farmer v The Queen[15], a case involving the application of identically worded s 5(2H) of the Sentencing Act 1991, the Court of Appeal held that circumstances must generally be 'atypical' to satisfy the requirements of the section. Referring to paragraph (e), the court described it as a 'residual category of limited scope' that sets a very high hurdle that will not often be surmounted'. The court accepted that in some cases, 'the operation of s 5(2H) will be harsh'.
[15][2020] VSCA 140
112In DPP v Hudgson[16], the Court of Appeal held that 'compelling' in this context means 'wholly outside what might be described as run of the mill factors, typically present in offending of the kind in this case'.
[16][2016] VSCA 254 at [112]
113In Fariah v The Queen[17], the Court of Appeal considered that the appellant's 'appalling childhood experiences' in combination with his youth, lack of priors, the fact his plea was entered during the pandemic and risk of deportation combined to constitute substantial and compelling circumstances that are exceptional and rare.
[17][2021] VSCA 213
114In that case, the offender was 21 years old at the time he committed an armed robbery and had no prior criminal history. He was born in Somalia and both his parents were killed when he was an infant. The uncle who raised him was also killed when Fariah was nine. Psychological material revealed that he lived in constant fear of his own death, violence was a pervasive aspect of his life and he witnessed many of his friends being killed in front of him, leading him to suffer from complex trauma.
115On your behalf Mr Mann, it was submitted that the matters relied upon in mitigation of your sentence, notably the application of Bugmy principles, your risk of deportation and Mr Cummins' diagnosis of a Borderline Personality Disorder and provisional diagnosis of a complex PTSD, combine to create substantial and compelling circumstances that are exceptional and rare.
116In contrast, the prosecution submitted that whilst the matters raised on your behalf enliven the principles in Bugmy, the hurdle posed by s 10A had not been met. The prosecution highlighted the serious nature of your offending, and the legislative requirement to give less weight to the personal circumstances of an offender than to other matters, such as the nature and gravity of the offence.
117I have found that the circumstances confronting you in your formative years enliven the principles in Bugmy and reduce your moral culpability for your offending and I have given full weight to that factor in mitigation of your sentence. However, even giving full weight to those principles, combined with the matters that operate in mitigation of your sentence, I am not satisfied that a special reason exists to justify a departure from the minimum non-parole period.
118The factual circumstances in the case of Fariah are significantly different to yours. You are at the outer limits of age for a youthful offender, and more particularly you have a significant prior criminal history, including for offences of violence. In Fariah's case, the sentencing judge described the armed robbery as 'miles from the most serious case'. In contrast, I have assessed your offending as a mid-range example of an inherently serious offence.
119I am not satisfied that the cumulative effect of the matters raised on your behalf in mitigation of your sentence justify a departure from the minimum non-parole period or constitute substantial and compelling circumstances that are exceptional and rare, whilst having regard to the nature and gravity of this offence.
120Finally, I have regard to current sentencing practices for the offences of aggravated carjacking and carjacking.
121In the case of Sabbatucci v the Queen[18], the Court of Appeal upheld a sentence of five years' imprisonment for an aggravated carjacking where the offender had approached the 68-year-old victim as he was getting out of his car, demanding the keys while brandishing a knife at the victim. Upon seeing the knife, the victim quickly complied with the demand and handed over his keys.
[18][2021] VSCA 340
122In that case, the Court of Appeal upheld the sentencing judge's conclusion that even in combination, the offender's childhood deprivation, early drug addiction, the murder of his mother and COVID restrictions in prison did not amount to a special reason. The Court of Appeal observed that the offender's use of a knife to create fear was the key indicator of the seriousness of this offence, and heightened the objective gravity of the offence, even while acknowledging it is a qualifying circumstance for the offence of aggravated burglary. These observations have equal application to your case, Mr Mann.
123Mammoliti v The Queen[19]
was a case of aggravated carjacking in which the
84-year-old victim was dragged out of his car onto the road. The victim suffered injuries as a result. The offending occurred when the offender was subject to a community correction order and at the age of 39, had an extensive criminal record. A sentence of six years’ imprisonment was left undisturbed on appeal, although it was characterised as 'stern'.
[19][2020] VSCA 52
124I have also had regard to the authorities to which the prosecution referred me in relation to the offence of carjacking.
125In the case of Russo[20], the offender was sentenced to three years' imprisonment. However, as Ms Kelly highlighted in written submissions on your behalf, that was a more serious instance of carjacking, where the offenders were disguised at night and physically assaulted the victim to obtain the keys. In that case, the principles in Verdins and Bugmy had no role to play. Nor did they in the case of Tewaka[21], where the offender was sentenced to three years, eight months' imprisonment for a carjacking involving a physical assault of two 'relatively elderly and defenceless' victims, although not in company. In that case, the offender had a more significant criminal history than yours, Mr Dunbar.
[20]Russo v. The Queen [2021] VSCA 244
[21]Tewaka v. The King [2022] VSCA 275
126As always, whilst current sentencing practices may provide some guidance, each case must ultimately be determined on its own facts and circumstances.
Sentence
127Balancing the matters to which I have referred, while having regard to the maximum penalties for the respective offences, I sentence you as follows:
Indictment P11376059
128Mr Mann, on Charge 1 – aggravated carjacking, you are convicted and sentenced to four years' imprisonment. I fix a period of three years before you are eligible for parole.
129Pursuant to s 18 of the Sentencing Act 1991 I declare 515 days of pre-sentence detention as already served under the sentence I have imposed.
130I indicate, pursuant to s 6AAA of the Sentencing Act 1991, that had you not pleaded guilty, the sentence I would have otherwise imposed is a sentence of five years, six months' imprisonment with a non-parole period of four years.
131I make the disposal order sought by the prosecution in relation to the knife, noting that it is not opposed.
Indictment C2316360
132Mr Dunbar, on Charge 1 – carjacking, you are convicted and sentenced to two years, four months' imprisonment. I fix a non-parole period of one year, six months imprisonment.
133Pursuant to s 18 of the Sentencing Act 1991 I declare 487 days of pre-sentence detention as already served under the sentence I have imposed.
134On Charge 2 – possession of a drug of dependence, namely cannabis, you are convicted and fined $300.
135On summary Charge 7 – possession of cartridge ammunition without a licence or permit, you are convicted and fined $300.
136Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, the sentence I would otherwise have imposed for the offence of carjacking is a sentence of three years, six months' imprisonment with a non-parole period of two years, six months.
137I make the disposal order sought by the prosecution in relation to the cannabis and ammunition cartridge, noting that it is not opposed.
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