Director of Public Prosecutions v Paraia
[2024] VCC 247
•20 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
KOORI COURT DIVISION
CR-23-01154
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KERSHIANNA PARAIA |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2023, 7 December 2023, 21 December 2023, 20 February 2024 | |
DATE OF SENTENCE: | 20 February 2024 | |
CASE MAY BE CITED AS: | DPP v Paraia | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 247 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Theft of a motor vehicle – Aggravated burglary – Common assault – Plea of guilty – Koori Court Jurisdiction – Application of Bugmy principles – Aboriginal Community Justice Report
Cases Cited:Hogarth v The Queen (2012) 37 VR 658; Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] 16 VR 269
Sentence: Total effective sentence of 47 days’ imprisonment in combination with a 2-year CCO.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Van Dyk | Ms H. Psomoulis |
| For the Accused | Mr J. Riordan | Mr J. Patterson |
| (For Plea) | ||
| Mr J. Patterson | ||
| (For Sentence) |
HIS HONOUR:
1Siren Paraia, you are a 26-year-old Torres Strait Islander woman. You have pleaded guilty before me to charges of theft of motor vehicle, aggravated burglary and common law assault.
2The maximum penalty for theft of a motor vehicle is 10 years' imprisonment. The maximum penalty for aggravated burglary is 25 years' imprisonment. The maximum penalty for common law assault is five years' imprisonment.
Circumstances of offending
3You have admitted prior convictions and your criminal record.
4The circumstances of your offending are set out in two documents, most thoroughly in the summary of prosecution opening for plea but also in the prosecution sentencing submissions, Exhibit A and Exhibit B. Both of these exhibits form part of these reasons for sentence. I do not propose to summarise the circumstances of your offending in the same detail as it is set out in those documents.
5In brief, on 10 January 2023 you were served with a family violence intervention order that included the following conditions:
·Not to commit family violence against Cheyenne Johnson.
·Not to damage or threaten to damage his property.
6There were other conditions, but they are the relevant ones for this sentence.
7Towards the end of March last year you ended your relationship with Cheyenne, following a verbal argument.
8Cheyenne spent a week contacting you in an attempt to get back with you, but you repeatedly told him that he would not be getting another chance.
9After a week of attempts, Cheyenne called you to tell you that he had decided he no longer wanted to get back together with you and blocked you from reaching him on various accounts.
10You then regretted ending the relationship and repeatedly attempted to contact Cheyenne, using a different phone number or going through mutual friends. As soon as Cheyenne heard your voice, though, he would hang up and block the number. You attempted to reach Cheyenne through his family members then, who also declined your calls.
11On 11 April 2023 you were provided a hotel room in the Bendigo area by a support service so you could rest and sleep in a quiet environment before commencing a drug rehabilitation course the following day.
12On 12 April the course was cancelled at the last minute by the provider and you were placed in a taxi to return to your home address in Kangaroo Flat.
13I am told you were particularly vulnerable after the rehabilitation course was cancelled, when you received a notification that Cheyenne changed his passwords for an account he had previously given you access to. This angered you as it reinforced that the relationship was over.
14You had boarded a train from Bendigo station to Southern Cross, originally planning to see Cheyenne; however, you fell asleep on the train and woke up in a calmer mood.
15You decided you would meet with another man instead and distract yourself that evening. You had matched with the victim Prashant Upreti on a dating app, and went to Cranbourne after exchanging messages. Mr Upreti drove to Dandenong train station to pick you up.
16You had consumed alcohol with Mr Upreti; however, despite your plan to move on from Cheyenne, you describe feeling repeatedly triggered during this time with Mr Upreti and to use your words, 'broke' when Mr Upreti 'poured alcohol down your throat and tried to kiss you', which you did not want.
17At approximately 8.05 pm Mr Upreti drove you to a petrol station in Moorabbin. Mr Upreti parked and exited his car to buy food and drink inside the service station, leaving you in the passenger seat of the vehicle.
18He saw you sitting in the driver's seat. He ran towards the vehicle but was unable to stop you from driving away. That is the theft of motor vehicle charge.
19You spent the next 90 minutes or so talking yourself in and out of going to Cheyenne's house before arriving there.
20You parked and approached the front door of the property, screaming, 'Two years, two years', in reference to the relationship between you and Cheyenne.
21At Approximately 9.45 pm Cheyenne's mother Narieman went to the front of the house to investigate a noise that she heard and observed you standing at the bottom of the stairs that led to her front decking.
22You were extremely angry and shouted, demanding to speak to Cheyenne. Narieman stated that her son was not home and to leave the property and that she was calling the police.
23You responded you did not care and retrieved a wooden handled hammer from the car. Narieman locked the security screen door and asked you what you were doing; you responded, 'We've been together for two years'.
24Narieman was extremely fearful and called Triple 0. Whilst on the phone to Triple 0, you climbed the steps to the front door, stating, 'I do not care about the police or going to gaol'.
25You smashed a glass window to the right of the front door. You then struck multiple windows at the front of the property with the hammer.
26You left the hammer in front of the master bedroom window and commenced smashing the windows using your fists, causing lacerations to your hands. You then moved to the lounge room and broke it with your fists, hitting it multiple times.
27Cheynne's 14-year-old sister was close to the lounge window as it smashed. She was terrified and ran to her mother Narieman.
28You returned to the window at the right-hand side at the front door and knocked out all remaining glass, climbing through the window and entering the property.
29You picked up a coffee table and threw it.
30Narieman was very frightened, as you came straight towards her, picking up a plastic chair and throwing it to the side. You were very heightened screaming that, 'This is all I get after two years'.
31You picked up a large glass bowl containing food from the table. You raised it above your head and threw it at a glass display cabinet, causing it to break and shatter. You pulled multiple drawers out of the kitchen and threw them at Narieman.
32Narieman moved towards you to try and calm you. She states that everything was a bit blurry at this stage, but she believed at this point you picked up a stove lighter and struck her in the shoulder with it before grabbing her by the hair, causing her to fall to the ground. That is the common law assault charge.
33You stood over her and verbally abused her. She got to her feet and you picked up a glass teapot and smashed it against the cupboard.
34Narieman tried to calm you, knowing that the police were on their way.
35You and her spoke about your relationship with Cheyenne. You told Narieman you had not slept in four days and would not remember any of this tomorrow. You said you had looked up the penalty for doing this and that you were ready to go to prison.
36Police then arrived through the front door and asked, 'Where is she?', to which you responded, 'I'm right here'.
37You were compliant when arrested and you said to Narieman as you walked away, 'Now you get to call me crazy'.
38You volunteered to police that the car you had driven there was stolen and that you were on a Community Corrections Order. You then listed the offences you would be charged with, stating, 'Twenty-five-plus years, I already know. I don't really give a fuck, I don't have to worry about nothing for the next 25 years'.
39Your hands were wounded and bleeding form smashing the windows and you had burns on your wrists and neck. You appeared to be very emotional to the police, mumbling, 'I just want him to fucking love me'.
40The hammer that was used to break the window was located broken on the porch and seized by police. You were later interviewed and made admissions.
Objective seriousness of offending
41The maximum penalty of 25 years' imprisonment for aggravated burglary reflects the objective gravity of the offence.
42It was a terrifying and destructive ordeal you put the occupants of your former partner's home through.
43The offending was premeditated. You stated in the record of interview that you had driven around trying not to go to Cheyenne's house, talking yourself in and out of it; however, upon realising that you would get arrested for the car theft anyway, you 'thought [you] might as well,' to use your words.
44You had told the victim that you had looked up the penalty for the offences prior to committing them and was ready to go to prison.
45The offending occurred in the context of family violence. It is also what is referred to as a confrontational aggravated burglary and the Court of Appeal's words in cases such as Hogarth v The Queen[1] and others to which I have been referred to are apposite.
[1] Hogarth vThe Queen (2012) 37 VR 658
46While I accept premeditation and that this was not a spontaneous action, I do accept the emotional turmoil you were experiencing and your dysregulation and inability to process your distress has its roots in early childhood trauma, neglect and disadvantage that qualifies as extreme.
47Your offending was unsophisticated, you anticipated apprehension and you yielded to police when they arrived.
Victim impact statement
48Victim impact statements prepared by Narieman Johnson, Cheyenne Johnson and his younger sister were received as Exhibits A, B and C.
49It is not at all surprising that significant impact has flowed from your conduct.
50Ms Narieman Johnson has stated that after what she was subjected to she now requires medication to assist her to sleep, along with counselling due to the fear caused by your actions.
51Her daughter has been similarly traumatised by your actions.
52Cheyenne Johnson is fearful and paranoid due to your actions. He is experiencing depression and is receiving counselling and taking medication to assist sleep.
53I take these impacts into account.
Personal circumstances
54Turning to your personal circumstances, you are a 26-year-old proud Torres Strait Islander woman. You were born to parents Teokotai Paraia and Kelly Deans.
55You have three half-siblings born on your mother's side and one half-sibling, I was told, on your father's side.
56Your father is of Torres Strait Islander descent through his mother's line.
57Your father passed when you were five years of age, although you were not aware of his passing until many years later. Instead, you were led to believe that he was not interested in you. This was far from the truth and was one thread in a fabric of trauma and devastation that was present during your childhood and formative years, flowing largely via your mother and her associates.
58At paragraph 15 of the Aboriginal Community Justice Report that was tendered and exhibited in this case, more detail in relation to that matter is provided.
59Your childhood consisted of neglect, physical and sexual violence and exposure to drugs and alcohol. I will not go into fine detail about all of your experiences in your formative years. The circumstances of your life and impacts are set out diligently and thoroughly in the Aboriginal Community Justice Report filed in your case.
60Some aspects I will note:
·You frequently witnessed your mother injecting heroin when you were a child.
·You were exposed in the home to drug and alcohol abuse, and violence, via your mother’s associates and partners.
·You experienced child sexual abuse within the home on a regular basis.
·On one occasion you were hospitalised after your mother injected you with heroin. Upon your return to the home your mother assaulted you.
·You commenced substance abuse at age 11.
61I refer again to paragraphs 10 to 24 of the Aboriginal Community Justice Report for more comprehensive summary of those experiences.
62After being placed into State care you were in constant transition between foster homes and residential care. Residential care had several negative impacts. You were introduced to regular drug use and child prostitution whilst in residential care. You were also subject to sexual abuse. These activities persisted in your life throughout your teenage years and into your 20s.
63The early exposure to violence and experience of sexual violence and mistreatment in your childhood has shaped your neurocognitive pathways and processes. Ms Lechner in her report noted your maladaptive coping mechanisms, vulnerability to drug use and complex PTSD symptoms to be consequences of childhood experiences.
64You attended a multiple array of schools, you experienced bullying and racism during your schooling.
65You left school at the age of 16 after becoming pregnant and completing Year 10. You experienced homelessness, post-natal depression, poverty and drug use in those early months as a new parent.
66This stage of your life is summarised at paragraphs 37 to 41 of the Aboriginal Community Justice Report.
67Sadly your daughter was removed from your care and placed into the care of your partner's family and that loss exacerbated your mental health; it deteriorated and further homelessness and drug use followed.
Carla Lechner report
68Alongside the Aboriginal Community Justice Report, I also received a very helpful psychological report from Ms Carla Lechner. Ms Lechner stated amongst other things a diagnosis of complex post-traumatic stress disorder, borderline personality disorder and stimulant and cannabis use disorder. These conditions in relation to the stimulant and cannabis use disorder are in early and partial remission.
69Ms Lechner noted that your offending before me occurred in the context of chronic mental health and substance abuse.
70Also complex PTSD creates emotional and behavioural dysregulation.
71Borderline personality disorder creates a pattern of unstable and intense interpersonal relationships; inappropriate, intense anger or anger-management problems; frantic efforts to avoid real or imagined abandonment.
72All of these illnesses were in existence at the time of the offending.
73According to Ms Lechner, the causal link to the instant offending arises the following way. This is a passage from Ms Lechner's report:
'In respect of these offences, Ms Paraia's behaviour appears to have been triggered by a sense of rejection, coupled with a fear of abandonment and being alone, feelings that she finds especially difficult to tolerate. She responded in an angry manner, wanting to seek revenge for the hurt that she was feeling. In this heightened state of emotional arousal, fuelled by drug use, she engaged in this offending without caring about the consequences. Her expressions of empathy are limited to the young witness with whom she can identify. Fuller expressions of empathy are unlikely given that she has a very egocentric view of the context of her offending.'
74I accept the findings of Ms Lechner and in particular the role that complex PTSD and borderline personality disorder have in relation to your functioning and your reaction and in relation to behavioural dysregulation, also noting that in Ms Lechner's view, a view that I accept and share, those conditions have their roots in the horrific childhood experiences you were subjected to.
Aboriginal Community Justice Report
75I mentioned the Aboriginal Community Justice Report. You were accepted into that pilot program and the prosecution, the defence and the court received a comprehensive holistic report in relation to you and your circumstances: your strengths, your vulnerabilities and what might assist you moving forward. Aboriginal Community Justice Reports provide a much more detailed and in-depth array of information about a participant's circumstances that much better informs the Court and informs the Court in a holistic way. It was certainly the case in relation to the Aboriginal Community Justice Report filed in this matter.
76I have referred to some passages from the report. In summary it confirms you were raised in an unsafe and dangerous environment.
77You were a victim of abuse continually through your formative years. The disadvantage and trauma experienced by you as a child was profound and has had lasting impacts.
78The report also provides a basis for me accepting your remorse for your actions, as I do accept them, as did the sentencing conversation and your participation in that. I accept that you have been appropriately remorseful.
Factors in Mitigation
Participation in Koori Court
79Your participation in the Koori Court sentencing conversation, which is not an easy process and certainly was not an easy process for you - is far more confronting and challenging than a general list plea, the conventional way of doing things. It forces you to sit at the table and discuss the matter with your Elder, which in this case was Auntie Yvonne Luke, take accountability for your offending and speak for yourself. I take your participation into account in your favour. You participated fully. Your case worker Ebony Bennet from BDAC also participated in the conversation in a positive and impactful way. Ms Bennet is also present here today with you to support you through this process.
80You spoke with Auntie Yvonne Luke about what you want to do with your life in the future. You spoke about your daughter and your goals in respect of time with her and in particular your goal in relation to opening a beauty salon where the focus would be upon making all people feel welcome and comfortable and free from judgment. That was a very positive aspect of the conversation you engaged in and is a very positive aspect of your goals for the future, what you are working towards.
Prospects of rehabilitation
81You are only 26 years of age and you have a limited criminal history. It does contain relevant matters for my consideration, but I do take some comfort from the fact that it is not extensive.
82I also note, again coming back to the Aboriginal Community Justice Report and the sections that relate to your attitude and the proposed conditions that might assist you moving forward, I have taken particular account as to that. It is very noteworthy in your case that your response to the charges has been a positive one in the sense that once you experienced those 47 days of custody, which was your first experience of custody, you looked towards ways in which you could rehabilitate particularly in relation to drug and alcohol issues and you explored residential rehabilitation. I will sum up some of those aspects now.
83After your first experience of custody, it is worthy to note that prior to the offending you had self-referred to alcohol and drug rehabilitation. That shows that you have got the ability to be proactive and are willing to engage in treatment and have a desire to reform.
84As the summary and my opening remarks in this matter indicate, your emotions got the better of you and, unfortunately for you, you did not take up that opportunity.
85Following your release from 47 days in custody, you have engaged with Link-Up Victoria to help connect you with your Torres Strait Islander family culture. You were detoxing in preparation for alcohol residential rehabilitation with Winja Ulupna Women's Recovery centre in St Kilda for a period of time. You also commenced your diploma in Beauty Therapy. All these things show that you have made significant efforts towards rehabilitating.
86You have engaged in therapeutic daycare with Bendigo & District Aboriginal Cooperative, or at least you are about to. I can see Ms Bennet nodding. I think it is scheduled for April and that is something I will come back to in a moment.
87Importantly since you were released there has been no further offending.
88I was provided on the plea and in the subsequent hearings with letters from BDAC authored by Ms Bennet, one from 18 December last year, which goes into detail in relation to your engagement and what is proposed moving forward. There has been further outlines of submissions from Mr Riordan on 18 February this year, which summed up some of the difficulties in getting you into further residential rehabilitation, summing up the reasons for the move towards day rehab. And we had some discussion on the last occasion as to whether it was better for me to wait to see how day rehab goes, with it being you would start in April. That was in the context of me deferring sentence for an extended period last year in your case to see how you go on the path to rehabilitation.
89So the positives of course have been that there has been no reoffending, that you have pursued the beauty salon. Some of the other aspects that we were hoping to see evidence of have not eventuated for one reason or another. I did accept on a previous occasion your reason for leaving Winja Ulupna, and that was to do with the experiences you were having there and it was not a positive environment for you. I accepted that. But moving forward, this Court does expect to see your engagement with the day rehabilitation program under the auspices of BDAC or wherever you are directed to from there.
90It is a matter in your favour and a matter of mitigation that during that period of deferral you have taken the steps that you have, that those 47 days in custody was your first experience of custody and you do seem to have responded appropriately to it.
Other matters in mitigation
91Other matters in mitigation which have been implicit in my reasons but I have not actually specified relate to the application of Bugmyv The Queen (“Bugmy”)[2] That is not a matter that is in dispute. The prosecution has made very helpful and considered concessions in relation to that. And as I noted at the time and do so again in these reasons, the combined effect of the Aboriginal Community Justice Report and the Ms Lechner report leaves the Court in a very clear position that Bugmy applies with full effect in your case.
[2] Bugmy v The Queen [2013] HCA 37.
92These are matters in which general deterrence and community denunciation are important sentencing considerations and I have borne that in mind throughout my consideration of your case. They are moderated to a degree. Your moral culpability in my view is reduced due to Bugmy factors and some application of R v Verdins, which I am prepared to accept.[3] There is a connection between your psychological functioning, drug misuse, the impacts of childhood trauma and the way you behaved on this occasion: the emotional dysregulation and the impulsivity. They are matters that you are going to have to work on, continue to work on, in order to avoid further encounters with the criminal law and the risk of further periods of incarceration.
[3] R v Verdins [2007] 16 VR 269
93Doing the best I can, weighing up all of those competing factors and giving appropriate weight to each of them, including your prospects of rehabilitation, which in my view has some promise providing you can continue to engage with regular therapeutic supports, I have determined that the period of imprisonment you have already served in combination with a community corrections order is the appropriate sentencing outcome.
94I received an extended pre‑sentence report in your case for assessment for a community corrections order and it was very helpful and covered not only the positive aspects of your attitude but also some negative aspects that gave rise to some concerns that you have had difficulties in the past keeping appointments and sticking to what your obligations are and participating in programs which may not necessarily suit you or you might not feel good about. I am going to give you a Community Corrections Order and I have engaged in that preamble to emphasise upon you that it is an order of the Court.
95That being the case, the conditions and requirements of that order are non-negotiable. There are conditions you have to keep or you will be in contravention of the Community Corrections Order.
Sentence
96So in relation to the offences on Indictment P10777798, that is aggravated burglary, theft of a motor car and common assault, you are sentenced to a combination, an aggregate sentence and it is a combination sentence, of 47 days' imprisonment in combination with a two-year Community Corrections Order.
97The conditions of that Community Corrections Order will be you are to be subject to supervision, that you perform 100 hours of unpaid community work, that you are subject to drug and alcohol assessment and treatment as directed, you are subject to mental health assessment and treatment as directed, and that you also attend for judicial monitoring, which I will make it three months from today's date and we will review it from then.
98What that means is, judicial monitoring means you will appear before me again at a9.30 am session the same way you are appearing now, if that suits you, just to let me know how you are going on the Order and we will discuss any issues. Corrections will also attend those hearings and I can have discussion with Corrections about what has been provided and how you are complying with the order.
99So the next thing I have to ask, Siren, is do you consent to the Community Corrections Order? Do you agree to do it? You do? Sorry, I'm looking down now; I should be looking over here. I've got a screen. So you consent to the Order? Yes. All right.
100Well, further to your consent, I also make the point that, you know, this is you agreeing to do the order. So when people come back and they have not done the order, I am a lot harder to get along with than I am at the moment probably. If you do not do the order, if you breach conditions of the order, we call it 'contravene' sometimes, if you do not keep your appointments and you do not do the work then Corrections gets to a point where they will breach you and bring you back here and you can be resentenced. If you commit further offences you will breach the order and you come back here and you can be resentenced by me.
101I make the $77.95 - was it? Yes, $77.95 compensation order.
102Were it not for your pleas of guilty in this matter I would have sentenced you to three years' imprisonment with a non-parole period of 18 months.
103Now what is going to happen, Siren, is that order gets prepared. We will pick a date for the judicial monitoring. It gets prepared and I sign it and then it will be emailed to you for your signature. There are requirement that will be explained to you about having to report to Corrections within two days from today.
104One of the things about the judicial monitoring is I will want to hear what is happening with the therapeutic day rehab. There is Corrections; I can see Ebony nodding there, which is good to know because it might be worthwhile Ebony having some interaction with Corrections. I mean Corrections will receive relevant material from the court file if they request it and they have also done the extended pre‑sentence report, so they do know about all the things that Siren is wanting to get engaged in. But I am just anxious that we do not get to a point where I come back here for judicial monitoring and Corrections have not yet organised any rehab.
105Because one of the reasons I have sentenced today rather than simply adjourning it again to see how you are going on bail is because I formed the view I could put you on a corrections order and you would still do the day rehab in April and I would see you again on a judicial monitoring and find out how you are going. So that is my intention.
106I will stand down now and then I will sign it and then we can probably adjourn the court after that.
107Yes, there is a forfeiture and disposal order. I will make that as well.
108MS VAN DYK: Sorry, Your Honour.
109HIS HONOUR: Yes, I'll make those, Ms Van Dyk.
110MS VAN DYK: Thank you.
111HIS HONOUR: All right. I'll just stand down briefly.
(Short adjournment.)
112HIS HONOUR: All right. Well, I've signed that order now and a copy will be provided to your representatives, Ms Paraia. Also it will be sent to you and Corrections will have a copy too, so you might be able to sign it when you go into Corrections.
113All I'll say just as a final parting word until I see you in three months' time is, you know, just make sure you keep doing what is asked of you and you keep trying very hard and you keep engaging with your supports. It's good to see Ebony there as well supporting you.
114So thank you, Ms Van Dyk. Thank you, Mr Patterson. It is Mr Patterson, isn't it?
115MR PATTERSON: It is, Your Honour.
116HIS HONOUR: Thanks for your assistance. We'll adjourn the court.
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