Director of Public Prosecutions v Schembri
[2023] VCC 868
•14 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01708
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIEN SCHEMBRI |
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JUDGE: | JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2023 | |
DATE OF SENTENCE: | 14 April 2023 | |
CASE MAY BE CITED AS: | DPP v Schembri | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 868 | |
REASONS FOR SENTENCE
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Subject: Criminal law - Sentence
Catchwords: Guilty plea - persistent contravention of a family violence intervention order – kidnapping - intentionally causing injury – theft – dangerous driving – multiple breaches of family violence intervention order – protracted offending over the course of several hours – serious offending – deprived upbringing – significant mental illness – relevant criminal history – category 2 offence – s5(2H)(e) exception established
Legislation Cited: Family Violence Protection Act 2008; Crimes Act 1958; Road Safety Act 1986; Sentencing Act 1991.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 37; R v Mills [1988] 4 VR 235; R v Wiley [2009] VSCA 17; R v Verdins (2007) 16 VR 269; DPP v O’Neil [2015] VSCA 325; Michael Byast v The Queen [2021] VSCA 344; DPP v Lombardo [2022] VSCA 204
Sentence: Total effective sentence of 20 months’ imprisonment followed by an 18 month community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Office of Public Prosecutions Victoria |
| For the Accused | Ms H. Anderson | David Barese & Associates. |
HER HONOUR:
1 Damien Schembri, on 3 February 2023 you pleaded guilty on indictment to the following offences:
a) one charge of persistent contravention of a family violence intervention order, contrary to s 125A of the Family Violence Protection Act 2008, thee maximum penalty for which is five years imprisonment;
b) one charge of kidnapping contrary to common law, the maximum penalty for which is 25 years imprisonment;[1]
[1] Pursuant to s320 Crimes Act 19
c) one charge of intentionally causing injury contrary to s 18 of the Crimes Act 1958, the maximum penalty for which is 10 years imprisonment; and
d) one charge of theft of a motor vehicle contrary to s 74(1) of the Crimes Act 1958, the maximum penalty for which is 10 years’ imprisonment.
2 You have also pleaded guilty to a related summary charge of dangerous driving contrary to s 64 of the Road Safety Act 1986, the maximum penalty for which is two years imprisonment.
3 These charges arise from the events of 29 December 2021 and involve your intimate partner at that time, Ms Andrea Morrison[2].
[2] A pseudonym.
4 You were born in June 1999 and were 22 years old at the time of the offending. Ms Morrison was 21 years old at the time. You and Ms Morrison had been in an intimate relationship for approximately 12 months.
5 However, by December 2021, the relationship had deteriorated to such an extent that on 24 December 2021 an interim family violence intervention order was made for the protection of Ms Morrison and prohibited any contact between the two of you. You had been served with that order.
Summary of Offending
6 The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea dated 16 January 2023 which is the agreed basis upon which you are to be sentenced.
7 On 29 December 2021 Ms Morrison was working at Flemington Racecourse. You had arranged to collect her from work. During the day Ms Morrison sent you a message via Snapchat asking you not to pick her up. However, you responded by insisting that you would come to collect her. Ms Morrison eventually agreed to this but told you that she did not want to go anywhere with you. She also said she did not want to stay at your house, go out to eat, or see any of your friends. Your conduct in communicating with Ms Morrison forms part of charge 1 – persistent contravention of a family violence intervention order.
8 Ms Morrison finished work at 4.30 pm, at which time you arrived to collect her. Your conduct in doing so was in breach of the family violence intervention order and also forms part of charge 1. It is not disputed that Ms Morrison willingly entered your car at that time.
9 However, a few minutes into the drive, you started to yell at Ms Morrison about “her attitude” and for changing her mind about your relationship. She asked you to pull over and let her out of the car, saying she no longer wanted to be in the car with you. You refused to do so, saying, “No I’m not pulling over stop asking.” You then locked the doors of the vehicle. It was at this point that you detained Ms Morrison in the car against her will.
10 You proceeded to drive from Flemington Racecourse to your house in Melton West. During the drive the victim repeatedly tried to unlock the door and get out of the car but you prevented her from doing so by locking the doors again.
11 Your conduct in detaining the victim against her will gives rise to charge 2 – kidnapping.
12 Whilst in the car, you physically attacked the victim by grabbing her ponytail and shaking her head, throwing a can of drink over her and spitting on her. On two occasions you placed her in a chokehold and punched her in the head. This conduct forms part of charge 3 – intentionally causing injury.
13 When the victim tried to punch the window open to escape from you, you responded by grabbed her thigh and arm, and then dug your fingers into her arm causing bruising. This conduct also forms part of charge 3. The victim tried to use her phone to call for help but you took it off her and attempted to break it. As she tried to retrieve her phone you bent her finger back so she would let go of the phone.
14 As you were driving on the Western Freeway you told the victim you were going to kill the two of you by crashing the car. You told her that, “if [you] couldn’t have her then nobody would” and said that you would kill her. You then swerved into the path of other cars causing them to take evasive action. You also sped up as if to hit other cars before braking at the last moment. Your manner of driving is the subject of the related summary charge 15 – dangerous driving.
15 After driving for approximately one hour you pulled into the driveway of your house in Melton West at 5.37pm in partial view of CCTV cameras. As Ms Morrison tried to get out of the car you grabbed hold of her and pulled her over the centre console. The victim kicked and screamed and tried to open the passenger door. You eventually let her go but grabbed her phone and went inside.
16 Ms Morrison followed you inside the house to try to retrieve her phone. When she did, you pinned her down on the bed with your knees and took the phone off her again. Ms Morrison bit you on the thigh so you would let go of her. You then punched Ms Morrison to the forehead and jaw. This act is also the subject of charge 3 – intentionally cause injury.
17 You then ran into the kitchen where you picked up a glass and threatened to smash it over Ms Morrison’s head, before smashing it over your own forehead.
18 Following this a scuffle ensued with Ms Morrison trying to take her phone to call 000 and you using force to prevent her from doing so. At one point the two of you moved outside and entered the garage where you were still wrestling over the victim’s phone. A neighbour witnessed this and Ms Morrison called out to her to call the police. You grabbed the victim and she ended up on the ground causing a scratch to her back. This act as also the subject of charge 3.
19 The two of you returned inside the house. You then kicked the victim to the right side of her face. The force of this action caused the victim to vomit and her vision to blur temporarily. This is the last act that forms part of charge 3 – intentionally causing injury
20 Following this Ms Morrison took refuge in a cupboard. Concerned that the police were on their way you tried to hide her by throwing clothes over the top of her and left the house.
21 The victim sought assistance from a neighbour and the police soon arrived. The victim was taken to hospital and was assessed as having sustained a hematoma (or bleeding) to the right side of her head, bruising to her eye and right arm, a bleeding lip, two swollen fingers and a scratch to her back.
22 Charged 1 – being a charge of persistent contravention of a family violence intervention order – consists of five distinct incidents. After the order was served on you on 24 December 2021 you met with the victim on 27 December 2021 and allowed her to stay at your house in Melton in contravention of the order.
23 A further two incidents arise from the events of 29 December 2021. These include your conduct in communicating with the victim via Snapchat and attempting to call her. Further, having collected her from work, you contravened the order by depriving the victim of her liberty in the car, threatening to kill her, causing her to fear for her safety through your dangerous driving and intentionally causing her injury by assaulting her in the car and at your house in Melton that day.
24 Then, in breach of the order, you communicated with the victim via Instagram by texting her words to the effect, “I did you so wrong, I’m sorry, I never deserved you.” You sent that on 30 December 2021.
25 The final contravention arises from your conduct on 1 January 2022 where you asked another person to contact the victim via Instagram on your behalf. You did so in the knowledge that the victim had blocked you on all social media. You wanted this person to entice the victim to contact you by saying you had been hospitalised after having “died for three minutes.”
Arrest and Procedural History
26 You were arrested at a friend’s house in Footscray West on 3 January 2022 where police observed a stolen car parked outside the house. Subsequent enquiries confirmed that the car had been stolen from a nature strip in Melton South on 30 December 2021. Charge 4 – theft of a motor vehicle, is based on your use of this stolen vehicle.
27 You were conveyed to Sunshine Police Station but were assessed as unfit for interview by a forensic medical officer. You were remanded in custody on that date.
Offence Gravity
28 The objective seriousness of the offence of kidnapping is reflected in the maximum penalty of 25 years imprisonment prescribed by Parliament.
29 In assessing the objective gravity of your offending it is relevant that it occurred in the context of an intimate relationship where the victim was entitled to be safe with you. Moreover, although you are not to be punished twice for the same conduct, the serious nature of your offending in kidnapping and repeatedly assaulting the victim is exemplified by the fact you did so despite the protection the victim had sought under the interim family violence intervention order.
30 Whilst your offending was neither planned nor sophisticated, it was nonetheless an entirely inappropriate response motivated by a belief that the victim had been unfaithful to you, that involved controlling and excessively forceful and violent behaviour towards her. Nor did you desist, despite the victim’s repeated attempts to get out of the car and to call for help. The manner of your driving exposing the victim and other road users to danger was both erratic and frightening.
31 You have pleaded guilty to one charge of intentionally causing injury as a rolled-up charge reflecting five separate incidents. Although the charge carries the one maximum penalty, in sentencing you for this offence I must have regard to the totality of your offending conduct. This was not an isolated act. Your conduct in repeatedly assaulting the victim including by spitting at her, holding her in a chokehold and by kicking her to the face, causing her to vomit and to suffer a momentary blurring of vision is particularly egregious behaviour. Fortunately, the injuries sustained by the victim were not more serious.
32 The interim family violence intervention order was put in place to protect the victim from such conduct. It is not a matter that goes to moderate the seriousness of your offending that the victim was also in contact with you. I do, however, accept that on some of the occasions where you contacted the victim you are neither threatening nor otherwise engaged in abusive or derogatory behaviour.
33 The most serious of the incidents giving rise to the charge of persistent contravention of an intervention order are those that are also the subject of the charges arising from the events on 29 December 2021. Ms Morrison was entitled to the protection afforded by the intervention order. Your conduct was a blatant violation of that order. However, I am mindful that the two offences arise from the same events on this day.
34 That this was a frightening ordeal for the victim is reflected in her detailed victim impact statement. Your offending has had an enduring impact on many facets of her life and has left her with mental trauma. Although the physical injuries have healed, the victim says the toll to her mental health has left her with crippling anxiety impacting on her ability to leave the house to work and to spend time with families and friends. She says she feels like “a shell of a person.” She continues to fear for her safety, even in her home, where she is entitled to feel safe.
35 The offending occurred in the context of your declining mental health, exacerbated by drug use. You report having little, if any, recall of the offending although you accept the account given by the victim. Your counsel concedes this was serious offending. However, your moral culpability for your offending is also informed by your personal history and long-standing mental illness to which I now turn.
Personal Circumstances
36 Yours was a difficult childhood, marred by your experiences of physical and sexual abuse. Much of your personal history and background is detailed in the psychiatric report of Dr Remi Glowinski dated 21 August 2021 that was tendered on your plea.[3]
[3] Exhibit 1 – Report of Dr Remi Glowinski, dated 21 August 2021,
37 You were born and raised in suburban Melbourne as one of three siblings with an older brother and a younger sister. Your father worked as a panel beater and your mother was a sex worker.
38 Your parents separated when you were 5 years old. You report that your mother was violent and abusive towards you, including an instance where she arranged for a male to assault you. Your mother engaged in sex work during your childhood. Following child protection involvement you lived with your grandparents from the age of 8.
39 You report being sexually abused by your older brother from the age of 5 until you turned 15. You told Dr Glowinski that you “were never sure it was abuse” until you were older at which point you lashed out at your brother and the sexual abuse ceased. You also report experiences where your mother’s clients would attempt to touch you, and of being kidnapped and held hostage at the age of 16.
40 Mental health issues were present from a young age and you report being hospitalised when you were only 8 years old, after self-harming. You were assessed and diagnosed with an oppositional defiant disorder as a child. Suicidal tendencies and self-harming behaviours increased into your teenage years including cutting yourself for a period of three years from Grade 6. The self-harming ceased when you began abusing substances at the age of 14.
41 Your education was disrupted by multiple school placements. You attended four separate primary schools and four secondary schools, completing Year 10. You were suspended twice from school for fighting but were never expelled. You returned to live with your mother at the age of 14 but you were told to leave and return to live with your grandparents. You enjoyed aspects of school, however, you struggled to fit in socially and experienced bullying. After leaving school, you completed an apprenticeship in spray painting, and after qualifying worked for three different employers. However, you struggled to maintain this work and when your mental health deteriorated you ceased all work. More recently, you have performed work as a spray painter.
42 You began using cannabis as a form of self-medication from the age of 14 using 3-7 grams a day. You told Dr Glowinski you believed cannabis helped you to cease self-harming stating you “felt helpless without it.” You now realise abusing cannabis did not help your mental health.
43 From your mid-to-late teens you have also abused a variety of substances including MDMA, speed, cocaine, ketamine and hallucinogens. You report that you have prostituted yourself to support your drug habit. You told Dr Glowinski that you overdosed on heroin and became addicted to the drug ‘ice’ about six months before being remanded on these matters.
44 You told Dr Glowinski that the past two years had been difficult having lost two friends to suicide. You have also made a number of suicide attempts yourself, including by drug overdose and by stabbing.
45 Medical records from the Royal Melbourne Hospital dated 23 November 2020 refer to you attending your general practitioner in December 2019 after being interrupted by your sister during one suicide attempt. The medical records state you were then assessed by Orygen Youth Health as presenting with a range of mental health issues, including:[4]
“… longstanding suicidal behaviours, lability in emotions, intense anger, unstable and intense relationships, transient dissociation, and frantic efforts to avoid abandonment. He also presented with several years of auditory hallucinations (negative comments and commands to harm self or hit others), multiple voices originating inside own head but at times confused that someone has spoken to him out loud. Also reported seeing visual hallucinations of silhouettes or auras. Some paranoid ideas around previous contact with the Italian mafia that black cars may be following him, but usually able to reality test this. Also presenting with 3 year history of daily cannabis use 2-4g daily including use when first waking up, and occasional use of hallucinogens. Impression of BPD, FEP (auditory and visual hallucinations), THC dependence, and strong externalising pattern (alter ego Butch doing things that Damien doesn’t remember).”
[4] Exhibit 2 – Royal Melbourne Hospital Documentation, p1.
46 In the lead up to this offending, your mood had progressively worsened, leading to your admission to the Mercy Hospital, Werribee on 20 December 2021. Records from the Mercy Hospital reveal that you presented at the emergency department that afternoon after threatening to cut your throat with a glass bottle following the breakdown of your relationship. The records state you presented with “severe symptoms of depression” with a pre-existing mental health disorder including auditory hallucinations involving an alter ego named ‘Butch’.[5]
[5]Exhibit 4 – Medical records of the Mercy Hospital, Werribee
47 You have a prior criminal history with two previous court appearances for offences that involve violence and persistent contraventions of family violence intervention orders.
48 On 12 June 2020 you were sentenced to 6 months’ imprisonment in combination with an 18-month community correction order for offences that included three charges of reckless conduct endangering serious injury, persistent contravention of a family violence intervention order, common law assault, property damage offences and an attempt to harass a witness. These charges relate to various incidents of offending between 15 August 2019 and 6 March 2020 when you were 20 years old. You had been in a relationship with the victim of that offending, an earlier partner, from December 2018 until 1 February 2020. The other victims were your mother, sister and cousin.
49 On 31 August 2021 you were sentenced to 30 days imprisonment for further offending, including contravening a family violence intervention order, unlawful assault and criminal damage. This offending contravened the earlier community correction order, which was varied on that date to operate for a period of 24 months. It is an aggravating feature of the offending for which I am sentencing you that it occurred when you were subjected to the varied CCO for offending of a similar character.
50 Since being remanded in custody, you have commenced the suboxone program and have engaged with a therapist. You have remained abstinent from illicit substances and are reported to have been of good behaviour. You have also taken the opportunity available to you on remand to engage in the Salvation Army Positive Lifestyle program which you completed on 2 May 2022.
Matters Relevant in Mitigation
51 On your behalf a number of significant matters were raised in mitigation of your sentence.
52 First and foremost, you pleaded guilty to these offences at an early opportunity following a committal case conference in the Magistrate’s Court. No witnesses were required for cross-examination and the community has been saved the time and resources associated with a criminal trial. Significantly in a case such as this, your early plea saved the victim the trauma associated with reliving these events by giving evidence in court. Your plea has significant utilitarian value and facilitates the course of justice. The utility of your plea is heightened at a time where there continue to be delays in the criminal justice system due to the COVID 19 pandemic.[6]
[6]Worboyes v The Queen [2021] VSCA 169
53 By your guilty plea you acknowledge responsibility for your offending. A plea is itself an indication of your remorse. Moreover, I accept the defence submission that in circumstances where you have little recall of your offending, but entered a plea based on your unequivocal acceptance of the victim’s account, your early guilty plea is demonstrative of remorse.
54 Following the plea hearing you were assessed by Community Corrections. In the assessor’s opinion, you presented as genuinely remorseful for your conduct and demonstrated insight into the impact of your offending on the victim, stating you did not want to cause her any further mental anguish. You acknowledge that the relationship is at an end.
55 You are entitled to, and will, receive a significant sentencing discount having regard to your early guilty plea and associated remorse.
56 As your counsel highlighted, you were the victim of significant physical and sexual abuse, coupled with instability caused by abandonment and neglect, in your formative years.
57 As the High Court explained in the case of Bugmy v The Queen,[7] the moral culpability of a young adult who has been exposed to childhood disadvantage and trauma cannot be acquainted with an offender whose formative years have not been marred by such disadvantage. Dr Glowinski in his report also draws a nexus between your childhood experiences and your severe personality disorder, stating:[8]
“Mr Schembri described appalling childhood circumstances with family violence, repeated sexual abuse, abandonment and neglect. These circumstances are of a type which could be expected to lead to considerable psychological vulnerability. It is not surprising that there were childhood manifestations of externalising and self-harming behaviours. There have been long standing difficulties with self-worth, self-soothing, emotional ability, inappropriate externalisation of anger and unstable relationships. This history is strongly suggestive of a severe personality disorder with borderline elements.”
[7] [2013] HCA 37 (‘Bugmy’)
[8] Exhibit 1, p9 [69].
58 Consistent with the principles enunciated in Bugmy I consider your dysfunctional childhood, with evidence linking these experiences to your severe personality disorder, operates to reduce your moral culpability for this offending and consequently, the weight to be given to general deterrence, just punishment, and denunciation. The application of these principles to your case was conceded by the prosecution.
59 In cases such as this, the sentencing principles of general deterrence, denunciation and just punishment will ordinarily be strong considerations. Others must be deterred from serious offending of this nature, driven by jealousy and anger towards their intimate partners. However, the law recognises that these considerations are also moderated by youth. You were 22 years of age at the time of this offending and are now 23. You have much of your life to live.
60 The rehabilitation of youthful offenders is also a measure of significance and is to be promoted and supported by the sentence. In referring to the principles enunciated in Mills,[9] in the case of the R v Wiley,[10] the Court of Appeal stated:
‘Mills constantly reminds sentencing courts and this court on appeal that there is great public benefit in the rehabilitation of an offender and in maximising the prospect of that offender will carry on a law abiding life in the future.’[11]
[9]R v Mills [1988] 4 VR 235 (‘Mills’)
[10] [2009] VSCA 17.
[11] Ibid at [20]
61 I accept that as a youthful offender, a sentence that promotes your rehabilitation is important. But so too is the need for the sentence I impose to protect the community, particularly having regard to the nature of your offending and your prior relevant criminal history.
62 I have also taken your long-standing mental health issues into account in my sentence. In his report, Dr Glowinski concludes you present with ‘symptoms strongly suggestive of a severe personality disorder with borderline elements.’ He assesses your depressive symptoms and suicidal behaviours as a “corollary of a primary personality disorder” rather than a separately diagnosed depressive condition. Dr Glowinski also refers to your history of amphetamine, cannabis, and hallucinogen abuse, and diagnoses you with a poly substance abuse/dependence disorder.
63 In his report, Dr Glowinski refers to your description of an alter ego “Butch”, who you said occasionally ‘takes over,’ and that you continually hear him. In Dr Glowinski’s opinion, your regular use of illicit substances that themselves have ‘dissociative properties’ cast doubt on these experiences being connected to a major psychotic illness such as schizophrenia. Rather, Dr Glowinski concludes that the symptoms are consistent with the occasional ‘dissociative experiences often seen in severe borderline personality disorder’ that are ‘amplified, by substance abuse’.[12]
[12]Exhibit 1 – Dr Glowinkski’s report, page 9 at [73]
64 For these reasons, Dr Glowinski states that whilst you ‘might have had dissociative and psychotic symptoms at the time of the alleged offending’, your substantial substance use precludes a defence of mental impairment.
65 On your behalf Ms Anderson submitted that the extent of your impaired mental health at the time of the offending, whilst not amounting to a defence of mental impairment, still enlivens Verdins[13] considerations in reducing your moral culpability for the offending.
[13]R v Verdins (2007) 16 VR 269 (‘Verdins’)
66 Based on Dr Glowinski opinion, I’m satisfied that your long-standing mental health issues, now assessed as a personality disorder with borderline elements, has led to impaired mental processes. However, whether there should be any moderation of general and specific deterrence, and if so its degree, depends not only on the nature and the severity of any impairment of mental functioning, but also its connection to the offending.
67 For principles one to four in Verdins to have application to the sentencing task, there must be some ‘realistic connection’ between the impairment and the offending or for it to have ‘caused or contributed’ to the offending.[14] An accused must establish that the mental impairment affected their ability to appreciate the wrongfulness of their conduct or otherwise to have impaired their ability to make calm or rational choices or to think clearly at the time of the offence.[15] The authorities make it clear that any consideration of the principles in Verdins must be undertaken with rigor.[16]
[14]DPP v O’Neil [2015] VSCA 325 at 26, [74]
[15]Ibid at 26, [75]
[16] Ibid at 26, [78]
68 I accept that your personality disorder is associated with depressive symptoms, suicidal ideation, difficulty managing your emotions and anger and ‘dissociative experiences’. However, as indicated in the report of Dr Glowinski, it is difficult to ascertain the degree to which your impaired mental disorder played a role in your offending where your ongoing abuse of substances also contribute to these attributes.
69 I do not consider there is a sufficient basis to conclude limbs 1-4 of Verdins are enlivened to reduce your moral culpability. Your poor mental health remains relevant to sentence, but the mitigating effect of the impairment of your mental functioning is limited by the fact you were persistently using illicit substances at the time of your offending.[17]
[17]Michael Byast v The Queen [2021] VSCA 344
70 Managing your mental health, including by abstaining from illicit drug use will be critical to your prospects of rehabilitation.
71 At present, particularly having regard to your prior criminal history, I am guarded as to your future prospects. Prior to this offending you had twice been afforded an opportunity to complete a community correction order for similar behaviours but had re-offended. The sentence I impose must specifically deter you from future offending and address the risk you pose to the community, particularly future intimate partners.
72 Much will depend on your willingness to engage in long-term drug treatment to maintain abstinence from all illicit substances. There are however, positive indications for your future. Your grandfather is supportive of you and willing to have you live with him upon your eventual release. He demonstrated his support by attending every plea hearing.
73 Following your plea the hearing was adjourned for an extended assessment of your suitability for a further community correction order. You were ultimately found suitable for a community correction order notwithstanding your previous contraventions. In the assessment of Community Corrections your time on remand has motivated you to engage in treatment.
74 Finally, I accept that your time in custody has been difficult for a number of reasons, including your youth, your underlying mental illness, and the impact of COVID-19 on custodial conditions. Whilst Dr Glowinski has assessed that your psychiatric condition has stabilised in custody, where you remain abstinent, he remains concerned about the impact of a lengthy prison term on the long term management of your condition.
Other Sentencing Considerations
75 The offence of kidnapping is a category 2 offence pursuant to s3(1) of the Sentencing Act 1991 and therefore, pursuant to s5(2H) of the Act, the court must impose a sentence of imprisonment other than a combination sentence of imprisonment and a community correction order unless special reason exist under s5(2H)(a)-(e) of the Act. It was submitted by your counsel and fairly conceded by the prosecution that special reasons exist here.
76 There is no basis upon which I can conclude that your psychiatric condition, whilst longstanding, was causally linked to the offending or substantially or materially increases the risk or burden of imprisonment to enliven the exceptions in s(5)(2H)(c). However, I am satisfied that there are substantial and compelling reasons that are exceptional and rare that justify imposing a combination sentence under s5(2H)(e).
77 Under this sentencing scheme, I must have no regard to an early guilty plea and must afford less weight to your personal circumstances than the nature and gravity of your offending. Here, however, I accept that other powerful mitigating features operate, in combination, to create substantial and compelling reasons that are both exceptional and rare. These include the impact of your traumatic and dysfunctional childhood combined with your diagnosed dissociative personality disorder with borderline elements, described by Dr Glowinski as ‘severe’ and which he assesses as linked to your traumatic childhood. These factors, coupled with your youth, significantly moderate the sentence to be imposed. This constellation of factors could not be characterised as ‘run of the mill’.[18]
[18]DPP v Lombardo [2022] VSCA 204 at [63]
78 I have also had regard to the cases to which I was referred by both the prosecution and the defence including the sentencing statistics provided by the prosecution for the offence of intentionally causing injury where 74.1% of offenders received a sentence of imprisonment or a combination sentence.
79 I am also mindful that you are not to be doubly punished for offending arising from the one course of conduct, particularly having regard to the overlap between the charges of kidnapping and intentionally causing injury on the one hand, and the charge of persistent contravention of a family violence intervention order on the other. I have had regard to the sentencing principle of totality in determining the amount of accumulation to be to impose to reflect the distinct criminality of this conduct.
80 Both the prosecution and defence counsel submitted a sentence of imprisonment combined with a community correction order would properly reflect the competing sentencing considerations to which I have referred. On your behalf it was submitted that the term of imprisonment should reflect time served to date, followed by a therapeutically-focused community correction order.
81 In my view, such a sentence would not adequately reflect the gravity of your offending viewed in light of your prior criminal history for like offending and the need to specifically deter you from future offending. It must be made clear to you the importance of compliance with family violence intervention orders. However, I otherwise accept the joint position of the parties that a combination sentence is appropriate to meet the sentencing considerations of general and specific deterrence and community protection coupled with the need to foster and promote your future rehabilitation while supervised in the community.
82 Balancing the matters to which I have referred, whilst having regard to the maximum penalty for each offence, I now sentenced you as follows:
83 Onn charge 1 – persistent contravention of a family violence intervention order, you are convicted and sentenced to 8 months’ imprisonment.
84 On charge 2 – kidnapping, you are convicted and sentenced to 14 months’ imprisonment. This is the base sentence.
85 On charge 3, intentionally causing injury, you are convicted and sentenced to 13 months’ imprisonment.
86 On charge 4, theft of a motor vehicle, by use, you are convicted and sentenced to 4 months’ imprisonment.
87 On summary charge 14, dangerous driving, you are convicted and sentenced to 6 months’ imprisonment.
88 I make the following orders for cumulation. I order that 1 month of the sentence imposed on charge 1, 4 months of the sentence imposed on charge 3, and 1 month of the sentence imposed on summary charge 14 be served cumulatively upon the sentence imposed on charge 2 and upon one another. I make no order for accumulation in respect of charge 4. This gives a total effective sentence of 20 months’ imprisonment.
89 Pursuant to s18 of the Sentencing Act 1991 I declare that 466 days be reckoned as already served under the sentence I have imposed.
90 Following the imprisonment component of your sentence, upon release, on charges 1, 2 and 3 you are placed on a community correction order for a period of 18 months. You have consented to such an order being made. The focus of this order is to enhance and promote your prospects of rehabilitation. In addition to the standard conditions that apply to all community correction orders, you will be subject to treatment and rehabilitation conditions in relation to drug use and your mental health.
91 In imposing these conditions, I note Dr Glowinski’s recommendation that your substance abuse should be the priority for treatment. In his opinion, your youth provides a positive foundation to conclude that if your substance abuse can be managed you will better manage the symptoms of your mental illness. Dr Glowinski further recommends that you be referred for psychiatric care for monitoring and treatment.
92 I further direct that you engage in offence specific programs as directed. You will also be subject to supervision.
93 I intend at least initially to judicially monitor your compliance with the community correction order and direct that you appear before me on a date to be fixed following your release.
94 I have imposed a community correction order of this duration so that while supervised in the community, you are subjected to mandated treatment for your longstanding mental health and drug abuse issues to best promote your prospects of rehabilitation and the community protection that will follow. Much will depend on your willingness to take up the opportunity being afforded to you and the support that will be made available.
95 You should be aware that the order can be breached if you do not comply with the conditions of the order or if you commit any offence punishable by imprisonment while it is in place. If you do you can be charged with breaching the order. You would then return before me and I would have to resentence you on the charges in addition to sentencing you for breaching the order.
96 Pursuant to s89(4) of the Sentencing Act 1991 and s28(1)(b) of the Road Safety Act 1986, I cancel your licence and you are disqualified for driving for a period of 12 months from effect from today’s date.
97 Pursuant to s6AAA of the Sentencing Act1991, I indicate that had you not pleaded guilty the sentence I would otherwise have imposed is a sentence of 3 years’ imprisonment with a non-parole period of 2 years.
98 Finally, I make the forfeiture and disposal orders sought by the prosecution, noting they are not opposed.
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