Director of Public Prosecutions v Perry-Connolly

[2021] VCC 1122

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-02072

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIAH PERRY-CONNOLLY

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JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2021
DATE OF SENTENCE:	30 July 2021
CASE MAY BE CITED AS:	DPP v Perry-Connolly
MEDIUM NEUTRAL CITATION:	[2021] VCC 1122

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — carjacking — commit indictable offence whilst on bail — plea of guilty — category 2 offence — Sentencing Act 1991 (Vic) s 5(2H) — no prior criminal history — parity — victim impact statement — bail — COVID-19 — remorse — child sexual abuse — family violence — intimate partner abuse — abusive relationship — substance abuse disorder — drug addiction — post-traumatic stress disorder — PTSD — depression — moral culpability — general deterrence — specific deterrence — community protection — denunciation — Court Integrated Services Program — community correction order — CCO — time served

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571

Sentence:                  Total effective sentence of 203 days

Section 6AAA declaration: total effective sentence of three years with a non-parole period of one year and six months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Buckland	Mr A Brennan
For the Accused	Ms S Poulter	Ms C Blakeney

HER HONOUR:

1Ms Perry-Connolly, you pleaded guilty to one charge of carjacking, for which the maximum penalty is a term of imprisonment of 15 years. Carjacking is a category 2 offence under the Sentencing Act 1991 (Vic), and under that Act, the Court must impose a sentence of imprisonment other than a combined sentence unless one of the circumstances set out under the Act exists. It was not submitted on your behalf that an exception to the mandatory application of s 5(2H) of the Sentencing Act 1991 (Vic) is engaged in sentencing you. You have also pleaded guilty to the summary charge of committing an indictable offence while on bail, for which the maximum penalty is three months’ imprisonment.

2You are presently 29 years old, having been born in July 1992. You were 26 years old when you committed the offences for which you now fall to be sentenced, and at that time you were a person with no prior criminal history. You have been before the courts subsequently, and I will discuss your subsequent offending more fully later in these reasons.

3Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’, which sets out fully the facts and circumstances of your offending. In brief, the circumstances of your offending were as follows. At the time of these offences, which occurred on 7 April 2019, you were on two separate undertakings of bail. You were with your then-boyfriend and co-offender, Jai Bright. The victim of this matter is Chilanka Gamalathge. At the time of the offence, he was working part-time as a cleaner.

4Mr Gamalathge had finished his shift at the Modern Medical Centre at Caroline Springs and he left the premises to go to his car, which was parked nearby in a public car park. He approached his vehicle and used a remote-control key to unlock the boot of the car. He placed a bag which contained cleaning products in the boot.

5You and Mr Bright had followed him to the car. Mr Gamalathge had seen you and Mr Bright sitting on the ground nearby. Mr Gamalathge heard a male voice saying ‘hey mate, give me your keys’. He turned and saw you and Mr Bright walking towards him. Mr Bright was very close and you were standing close behind him.

6Initially the victim, Mr Gamalathge, thought he was joking. When the victim did not give the keys to Mr Bright, Mr Bright shouted, ‘give me your keys’. Mr Gamalathge moved and tried to get to the driver’s door of the vehicle to get into the car. However, Mr Bright pushed him back towards the boot and also punched him in the chest, and then pulled a knife out that had been concealed. Mr Gamalathge described this knife as a military or commando-style knife.

7Mr Bright waved the knife immediately in front of Mr Gamalathge’s body and Mr Gamalathge pulled away to avoid it. Mr Bright yelled, ‘give me the keys or I will kill you’. Terrified, Mr Gamalathge threw the keys to him. Once in possession of Mr Gamalathge’s keys, Mr Bright used the remote to unlock the car. You were standing very close behind Mr Bright throughout this incident and not speaking.

8When the car was unlocked by Mr Bright, you went to the front seat passenger door. As you entered the car, you yelled abuse towards Mr Gamalathge. Mr Bright did not do anything further and then entered the car. He then drove the vehicle away at speed. Mr Gamalathge ran to a nearby food restaurant area and he told one of the people he saw, Sarah Alexander, that his car had been taken at knifepoint. She assisted him to call 000.

9Police established that the stolen vehicle was fitted with a GPS tracking device which could be accessed remotely by telephone. As a result, police were able to establish that the vehicle had been driven from Caroline Springs to the Melton area. At 9:05pm, you and Mr Bright attended at the Caltex service station situated at the intersection of the Melton Highway and Federation Drive, Melton. Police approached the service station and saw the stolen vehicle attempting to leave by the Federation Drive exit. Upon police attempting to intercept the vehicle, it fled and a pursuit ensued, and the vehicle was tracked via police helicopter.

10Mr Bright dumped the vehicle in Ken Jordan Road, Cairnlea. You and Mr Bright ran north and entered the side gate of a property at 56 Nobel Banks Drive, Cairnlea. Police attended a short time later. You and Mr Bright were located by police attempting to hide underneath furniture in the corner of the yard. You were arrested and conveyed to the Sunshine police station.

11You were interviewed by the police at the Sunshine police station and denied any involvement or knowledge of the aggravated carjacking. You said that during the pursuit, you ran because it was an ‘automatic reaction’ when you heard the sirens. You said, ‘you panic’ and ‘there wasn’t even any thought in it at all’.

12By way of your plea of guilty, you acknowledge that you assisted or encouraged the commission of the carjacking of the victim’s vehicle on 7 April 2019 in that, with the co-offender Jai Bright, you stole the victim’s vehicle and, in the course of that theft, you knew that Jai Bright intended to put the victim in fear of force. The co-offender, Mr Bright, was in possession of a knife, but the prosecution has accepted that you had no knowledge that a knife would be used.

13Mr Bright pleaded guilty to a charge of aggravated carjacking and a charge of dangerous driving while pursued by police, and to summary charges of unlicenced driving, committing an indictable offence on bail, and being in breach of a condition of bail. He was sentenced on 9 September 2020 in this Court by her Honour Judge Lawson. He was sentenced to a total effective sentence of four years and six months, with a non-parole period of three years. On the charge of aggravated carjacking, he was sentenced to a sentence of three years and six months. Bright having pleaded to the more serious offence of aggravated carjacking, and having played a greater role in the offending, and having a prior criminal history, issues of parity do not arise in sentencing you. The prosecution has accepted that this was so.

14The victim has made a victim impact statement. In his statement, Mr Gamalathge says that after the incident, he was in fear. He says he was studying as well as working at the time, and he needed the assistance of a student counsellor to help him deal with the stress. He says he needed to take time off from his studies and return home to Sri Lanka, which he did. He has not been able to return to Australia because of the Australian border closure necessitated by the COVID-19 pandemic.

15I turn now to consider the objective seriousness of your offending and your moral culpability. Your offending was serious. Although it is accepted you did not realise Mr Bright was armed with a knife, you joined with him and assisted and encouraged him to steal the victim’s car in circumstances where you must have fully appreciated that you were putting the victim in considerable fear. You were on bail at the time, and this aggravates your offending. The prosecution accepts that your offending may be described as ‘passive’, in that you simply went along with what your boyfriend was doing. Given this, I regard your moral culpability as falling somewhere in the lower range.

16You pleaded guilty to the charge on the indictment and the related summary charge on 17 June 2021. There have, prior to your plea, been ongoing attempts to resolve this matter. This is not a plea at the earliest opportunity, but it is nevertheless a significant matter in sentencing you and carries significant mitigatory force, particularly in the current difficult conditions affecting the administration of criminal justice caused by the COVID-19 pandemic. Your plea has utilitarian value, and I accept it is indicative of some remorse on your part.

17I turn now to consider your personal circumstances. In doing so, I rely in the main on the report of Gina Cidoni, consultant psychologist, with whom you met and spoke at the Dame Phyllis Frost Centre on 3 December 2019. You were born and grew up in Bacchus Marsh. Your parents separated when you were a baby, and your father was largely absent during your childhood and youth. Your mother suffered from severe mental illness, schizophrenia, and was unwell and delusional during your childhood. Her illness caused her to assault you on occasions, and her behaviour was profoundly distressing to you. She was unable to care for you properly, and you were regularly removed from her care and placed into foster homes. You were sexually abused in foster care on more than one occasion. You told Ms Cidoni that you are considering seeking redress from the National Redress Scheme set up in response to the Royal Commission into Institutional Responses to Child Sexual Abuse.

18You began using drugs recreationally from an early age, smoking cannabis daily by the age of 14. You started using methamphetamine at 17. You told Ms Cidoni that you were a heavy user until the age of 19, when you stopped, but you relapsed and began using again at the age of 25. You told Ms Cidoni that the drug helped you cope with the trauma you were experiencing as a consequence of an abusive relationship. You told Ms Cidoni you were using daily up to the time of your arrest. You were also using GHB.

19In terms of your education, you managed to complete your secondary schooling in Brisbane, where you lived for a period. You have also completed a Diploma in Business Administration and a Certificate IV in Hospitality. You have been employed in both retail and hospitality.

20You have been in a succession of violent and abusive relationships with men since you were 20. Ms Cidoni concluded in her report that you presented as a reduced person: ‘She has suffered considerable negative input in childhood that no doubt affected her formation. She has battled drug addiction and multiple forms of abuse’. Ms Cidoni gave the opinion that you had a diagnosis of substance abuse disorder in remission with underlying post-traumatic stress disorder and comorbid depression. Ms Poulter, who appeared on your behalf, did not submit that Verdins principles were engaged in sentencing you,[1] but did submit that your moral culpability needed to be assessed, taking into consideration your psychological profile.

[1] R v Verdins (2007) 16 VR 269 (‘Verdins’).

21It was not disputed that the severe disadvantage that you endured during your childhood and formative years engages Bugmy principles and, in accordance with those principles, I will moderate your moral culpability.[2] Your moral culpability cannot be equated with that of a person who grew up in a stable and loving home. Your upbringing is clearly related to you lacking a sense of proper social norms and your lack of understanding of the need to be law-abiding, and it is related to your poor education and your diminished prospects as a consequence. It is also, in my view, connected to your choice of abusive and unsuitable male partners.

[2] Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).

22You have some subsequent matters outstanding in the Magistrates’ Court. You were found in a hotel room with a boyfriend who was in possession of significant quantities of drugs and firearms. You are due to plead guilty to the charges of possession of drugs and ammunition. You are currently on the Court Integrated Services Program (‘CISP’), and your most recent progress report indicates that you are doing well. Ms Poulter informed me that it is anticipated that you will be sentenced to a community correction order (‘CCO’) for this offending.

23General deterrence, specific deterrence, community protection, and denunciation are all engaged in sentencing you. Carjacking is a prevalent form of offending. It is serious offending, which puts its victims — typically members of the community simply going about their day-to-day business — in great and often lasting fear. Ms Poulter submitted that, taking into consideration your background and psychological issues, your lack of prior offending, your low-level role in the offending, and your efforts at rehabilitation, time served — which is 203 days — would give proper expression to all the various sentencing principles, although Ms Poulter acknowledged that the offending was serious.

24The prosecution submitted that a term of imprisonment was both mandated for the offence of carjacking, pursuant to s 5(2H) of the Sentencing Act 1991 (Vic), and justified, given the seriousness of the offending. But Mr Buckland, who appeared on behalf of the prosecution, accepted that time served would be sufficient on the offence of carjacking.

25The only real dispute on the plea was what sentence should be imposed on the summary offence. Mr Buckland submitted that a CCO should be imposed on this offence, to be served in combination with the term of imprisonment imposed on the carjacking charge. Ms Poulter submitted that the imposition of a CCO on the summary offence would be excessive punishment, submitting correctly, in accordance with the authorities, that a CCO is punitive as well as rehabilitative in nature. Mr Buckland at the plea acknowledged that this was the case, and there was some force in the submission.

26Although I am of the view that you would benefit from a CCO, as I regard your prospects of rehabilitation as guarded and am of the view that you would benefit from more sustained and structured rehabilitative interventions, as it seems to me as though you do not presently have enough services available to you, nevertheless I accept the submission of Ms Poulter and will not be sentencing you to a CCO on the summary charge. I add, in coming to this conclusion, I do not take into account that you may receive a CCO in the Magistrates’ Court for your subsequent offending. That would be speculative on my part.

27I am now going to sentence you, Ms Perry-Connolly. On charge 1, you are convicted and sentenced to 203 days’ imprisonment. On the summary charge, you are convicted and sentenced to seven days’ imprisonment. The sentence on the summary charge is to be served concurrently. That makes a total effective sentence of 203 days.

28Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of three years with a non-parole period of one year and six months.

29Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 203 days of the sentence I have passed upon you, and I direct that this be entered into the records of the Court.

30I make the disposal order sought by the prosecution in the terms that we discussed, and I disqualify you from holding a driver’s licence, effective from today for a period of three months.

31Ms Perry-Connolly, you understand the effect of the sentence that I have passed is that you don’t have to serve any more time in custody. I’m sure that’s a relief to you, and that’s understandably so. But Ms Perry-Connolly, you’re going to be 30 next year. You have got to take control of your life. If you keep associating with deadbeat males with whom you commit more criminal offences, you don’t need a crystal ball. The future is more gaol for you.

32This has to be a turning point for you. You’re 30 next year. You’ve got to take control. You have to. You’ve got matters pending. As Ms Poulter informed me, it’s hoped that you’ll get a CCO on that. I don’t know. You’re relieved no doubt that you’re not going to gaol today, but you’ve got a serious criminal record now. You have a criminal conviction for carjacking. If you appear before a judge or a magistrate again, Ms Poulter or someone in her position isn’t going to be able to submit, ‘this is a young woman with no prior convictions’. Because you’ll be a woman who’ll be around 30 with a serious criminal record.

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