Director of Public Prosecutions v Shannon
[2024] VCC 1322
•27 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-23-00852
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAICE JAMES SHANNON |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April 2024 | |
DATE OF SENTENCE: | 27 August 2024 | |
CASE MAY BE CITED AS: | DPP v Shannon | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1322 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: Aggravated carjacking – theft – commit indictable offence whilst on bail – possess controlled weapon without lawful excuse – drive in a manner dangerous – unlicensed driving – youthful offender – Verdins – substance abuse.
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic).
Cases Cited: Azzopardi v The Queen [2011] VSCA 372; Farmer v The Queen
[2020] VSCA 140; R v Verdins [2007] VSCA 102.
Sentence: Total effective sentence of three years and six months’ imprisonment. Non-parole period for three years. Licence cancelled and disqualified for a period of 24 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Paganis | Office of Public Prosecutions |
| For the Accused | Ms E. Strugnell | McNally & Gleeson Lawyers |
HER HONOUR:
1Raice Shannon, you have pleaded guilty on an indictment to one charge of aggravated carjacking, and two charges of theft.
2You have also agreed to this Court hearing, and have pleaded guilty, to the summary charges of committing an indictable offence whilst on bail (rolled up charge), possessing a controlled weapon without lawful excuse, driving in a manner dangerous, and unlicensed driving.
3The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.
Circumstances of the offending
Charge 1 – Aggravated carjacking
Related Summary Offence Charge 4 – Possess Controlled Weapon Without Excuse
4On Sunday 14 November 2021 at around 5:40PM, the victim in this matter, Ms. Samira Abukhar drove to Chemist Warehouse on Hampshire Road in Sunshine, to collect some medication and do some other shopping. Ms. Abukhar parked her vehicle, a 2012 silver Nissan Tiida , in the car park behind the Chemist Warehouse.
5Ms. Abukhar returned to her vehicle a short time later and sat in the front passenger seat to take her medication and rest. As she was sitting there, she observed you, whom she described as a very young man, wearing a black hooded jumper and a blue surgical mask, open the driver’s side door of her vehicle, then get into the driver’s seat.
6Once sitting inside the vehicle, you then produced a yellow-handled knife and demanded Ms. Abukhar leave her vehicle. Ms. Abukhar took her purse and said: “Please don’t hurt me. I need my house keys.” You then removed the car keys and threw the rest of her keys back towards her. You then quickly sped off in the stolen vehicle.
7In a state of shock, Ms. Abukhar then walked to the Sunshine Police Station and immediately reported the incident and later identified you from a photo board.
Charge 2 – Theft
8Later that day, at 6:20PM, as captured on CCTV, you drove Ms. Abukhar’s stolen vehicle to the Shell Coles Express in Sunshine, where you filled the vehicle with $60.05 worth of petrol, then drove away without paying for it.
Charge 3 – Theft
9You then drove Ms. Abukhar’s stolen vehicle to the United Service Station in Seaholme, where you entered the store, removed two four-packs of Red Bull energy drinks valued at $25.90, then left without attempting to pay for the items.
Related Summary Offence Charge 16 – Unlicensed driving
Related Summary Offence Charge 2 - Commit an Indictable Offence Whilst on Bail (Rolled up)
10At the time of the offending, you did not hold a valid driver’s licence and were on bail for unrelated offences. After leaving the United Service Station, you continued driving Ms. Abukhar’s stolen vehicle, which was captured by a Road Safety Vehicle at 6:44PM, travelling at various speeds, as outlined in the prosecution opening.
Related Summary Offence Charge 9 – Dangerous Driving
11At approximately 8:14PM, you drove through the intersection of Princes Highway and Gladstone Road in Dandenong against the red light. The red-light camera detected the vehicle travelling at 113 kilometres per hour in an 80 kilometres per hour zone. The combination of driving at a high speed and entering an intersection against a red light, was dangerous to the public.
Police Investigation
12The following day, on 15 November 2021, the stolen vehicle was located and recovered by police, with damage. Some days later you told a friend over the phone – and as reported to police - that you “got [your] hands on a hotty”, got rid of the car in exchange for drugs and later said that you had robbed someone at knifepoint.
Arrest and Interview
13On Thursday 28 July 2022, Police attended at 37 Queen Street in Moe and arrested you and transported you to the Moe Police Station for interview. Your answers in the ROI are extracted in the prosecution opening and while you say that you remember driving Ms Abukhar’s vehicle you claimed to not remember how you’d acquired it and said that you couldn’t remember much because you had been smoking ice and drinking a lot. When confronted with the allegation of the carjacking you said, “it’s a high chance that’s something I would have done at the time … while under the influence.”
Victim impact
14I take into account the impact of your offending on Ms Abukhar. In her statement she outlines how your offending has changed her; she is more fearful and scared and less independent and confident. She now works from home and no longer travels to places she used to or participates in activities that bought her joy and meaning. She states, ‘I even struggle to go to appointments to get trauma support as I put it off and off … I always put things off now and find it hard to face things, this is something new to me now that has started after the crime.’ Further, she states, ‘I will never in my life forget having a knife held to me and it has changed everything.’ I take into account the impact of your offending on your victim.
Gravity of offending
15The charge of aggravating carjacking is plainly serious, as indicated by the maximum penalty of 25 years imprisonment. It is also a ‘Category 1’ offence which means that pursuant to s.10AD of the Sentencing Act a term of imprisonment, with a non-parole period of not less than three years is required, unless the Court finds that a ‘special reason’ exists.
16As for the gravity of the offending, I take into account that you were on bail at the time. Your offending was brazen, committed at a shopping area at approximately 5:40PM. Your victim was seated in the sanctuary of her own car, when you opportunistically and in an entirely unprovoked manner, entered her vehicle, threatened her by brandishing a knife, forced her to leave her car and then drove off in it. Your Counsel accepts that the offending is serious but that it can be contrasted with some more serious examples, such as where a weapon is repeatedly brandished or an actual threat is uttered. She also refers to the admissions you made as to your conduct and also in particular, your youth at the time.
Plea of guilty
17Although your plea of guilty to the aggravated carjacking was not an early one the prosecution accept that from the outset you were willing to plead guilty to charges representing the conduct which forms the basis of the charge. You indicated from the outset an intention to plead guilty to charges 2 and 3. I accept that your plea of guilty entitles you to an important sentencing discount and that it has significant utilitarian benefit. I also accept that it indicates your willingness to facilitate the course of justice and accept responsibility for your offending and is an expression of remorse.
Personal circumstances
18Your personal circumstance were outlined by your Counsel and are canvassed in the reports of Carla Lechner. In brief summary, your parents separated when you were young and you have two siblings. You report a relatively good relationship with your parents. You grew up in Keysborough. You found school challenging and you report being diagnosed with Attention Deficit Hyperactivity Disorder but that your parents rejected any assistance, believing instead you were just being troublesome. You felt alone and you were also bullied because of your different ethnic appearance. You report always being picked on. Growing up you lived a week on and a week off with your alternate parent, which had its challenges given the different locations and the different households. You first ran away from home at the age of 16-17, stating, ‘I just wanted to rebel and try things, first I started smoking weed, and it evolved to ice, alcohol and heroin.’ Ms Lechner observes, ‘substance abuse provided him with a means of connecting with peers but also led him into offending and a deeper sense of alienation’ (p3).
19As noted, you started smoking cannabis and then began using ice and smoking heroin. Further, in the 18 months prior to being arrested you were using a combination of GHB daily, Valium, Lyrica and dexamphetamine when you could access them.
20Your work history is limited. In 2021, prior to your offending, you worked in a factory for about 8-9 months but then report relapsing into drug use and criminal offending.
21You also report that in 2022 you were mugged and physically assaulted and that in a separate incident you were randomly shot at in the city. Further, you report being the victim of a sexual assault at a train station, leading to the development of symptoms of PTSD. Your use of heroin escalated as you tried to block these memories out.
22You have a prior criminal history though it is confined to one Children’s Court appearance in 2018 for a consolidation of mainly dishonesty offences and you were placed on a without conviction probation order.
Mental health considerations
23In her first report, Ms Lechner considered that you presented with symptoms of Stimulant, Opioid, Cannabis and Alcohol use disorder – in remission in a controlled environment, Major Depressive Disorder and Post-Traumatic Stress Disorder. In respect of the PTSD, on testing you evidenced all symptoms and she considered these symptoms were of more recent onset, referrable to your experience of recent assaults. In her supplementary report, Ms Lechner confirms that the diagnosis of PTSD is based on your self-report of traumatic experiences in which you genuinely feared for your safety and the symptoms that subsequently developed, such as nightmares, emotional dysregulation and hypervigilance. She refers again to your experience of a sexual assault when you were 18-19 years of age and indicates that you find it difficult and distressing to speak about and that you have only told her and the doctor so you could get a certificate ‘about the drug screens.’
24She also notes in this first report that you report a diagnosis of Attention Deficit Hyperactivity Disorder in your childhood, with some ongoing issues relating to concentration and impulse inhibition, although these could also be related to your drug use (p1-2). You endorsed 11 of the 18 items in the clinical range for an Adult ADHD which was indicative of a possible formal diagnosis but she recommended further resting after a lengthy period of abstinence from drug use. In her supplementary report, Ms Lechner confirms that you evidence a range of symptoms consistent with such a diagnosis however to assist with such a diagnosis, further contemporaneous documents would be required.
25Although not formally assessed in this regard, you impressed as being of ‘average/low average’ intelligence with a capacity to engage in reflective thinking when not substance affected.
26You reported to Ms Lechner that you were finding prison very stressful on account of your ongoing anxiety about being assaulted, which is causing ‘some aggravation of [your] post-trauma symptoms.’ You told her that you had been refused visits ‘because [you] failed to produce a urine sample with two prison officers behind me’, this causing you immense anxiety in light of your history of assaults. You informed medical staff of your circumstances, but your visits, at that stage, had not been reinstated. At the time of your first assessment you were reporting symptoms of ‘severe’ psychological distress, ‘moderate’ depression and the ongoing presence of unresolved PTSD. She considers that your time in custody appears to have contributed to an aggravation of your post-trauma symptoms in particular, as you feel ‘constantly hypervigilant in the inherently violent and threatening environment of prison’ (report of 3 April 2024, p7).
27In her supplementary report, she further states (p4):
‘In practical terms in the prison, Mr Shannon stated that his symptoms of PTSD have significantly impacted on his access to visits whilst in prison. His exposure to sexual abuse has rendered him immensely sensitive to the presence of other males, particularly if he is in a vulnerable position. He states that whilst in Marngoneet Prison he refused to provide a urine sample as he did not wish to urinate in the presence of another male. He lost three months of visits. He then ‘failed to produce’ on a second occasion and lost a further six months of visits. He was ultimately provided with a medical certificate to assist him in giving a urine sample without exposing himself. He then transferred to Ravenhall Prison and because the medical exemption did not follow him, another ‘fail to produce’ led to a 12 month loss of visitation rights, hence he has had no ‘in-person’ visits for two years. This has had an extremely detrimental impact on his mood. Mr Shannon also reports that on account of the aggressive and threatening nature of the prison environment, he is constantly on edge and hypervigilant to potential further assaults.’
28In her further supplementary report Ms Lechner noted an improvement in your morale, which you attributed to your increased contact with your family (p2, report 19 July 2024). You reported that your father was due to visit in person in early July, this being the first contact visit that you had had in the past two years. You are talking with your parents ‘every two-three days.’
29On further testing, you achieved a score indicative of ‘likely to be severely psychologically distressed’ and falling within the ‘extreme’ range of depression.
Youth
30You were just over 21 years of age at the time of your offending and you are now 23 years old. In sentencing you, I take into account your youth and the well-established principles concerning young offenders, balancing against the objective seriousness of your offending[1]. As a young person, your rehabilitation is a paramount consideration that must be promoted.
[1] Azzopardi v The Queen [2011] VSCA 372.
Prospects of rehabilitation
31In all the circumstances, given your youth, limited prior history and your lengthy experience on remand and its salutary impact, I accept that you have reasonable prospects of rehabilitation. You are making efforts in custody and retain ongoing family supports.
32You are hopeful of obtaining employment on release and of seeking therapeutic help. You do not want to return to Moe, as you do not want to mix with former friends or associates.
33You are focused on your rehabilitation in custody. You are working as a billet in the gymnasium, report no involvement in incidents, and are not using or accessing illicit drugs[2] . You have also completed a range of therapeutic courses that you have found helpful.
[2] See urinalysis results.
34You expressed to Ms Lechner remorse for your offending, acknowledging that it was ‘horrible behaviour’ and you that that ‘being in custody is the most clear-minded I’ve been in my life.’
35Ms Lechner considers that your offending is inextricably linked with your substance abuse problem. She recommends that you would benefit from trauma debriefing and specific intervention for PTSD. She further recommends you receive assistance in developing more adaptive stress and mood management strategies.
Sentencing regime
36As already noted, the principal charge is a Category 1 offence, mandating a specified term of imprisonment, unless a relevant exception applies. At the first plea hearing, your Counsel relied upon s.10(2D)(c)(i). She submitted that, on the balance of probabilities, at the time of the offending, you had impaired mental functioning that was causally linked to the commission of the offence and substantially and materially reduced your culpability. In this regard, your counsel relied upon your mental health diagnosis of ADHD preceding your substance use and that it was left untreated and that your substance use could be seen as an attempt at self-medication. Further, your diagnosis of PTSD and major depressive disorder were all significant and operative at the time of the offending and remain significant considerations affecting you in custody. The prosecution submitted the exception was not proven, as you were significantly intoxicated at the time of your offending and moreover, the report of Ms Lechner did not confirm a diagnosis of ADHD. Your Counsel sought additional time to clarify Ms Lechner’s diagnosis.
37Having had that opportunity, and on the basis of the further material, your Counsel, quite properly, no longer maintained this submission. Instead, she relied upon s.10(2D)(c)(ii) of the Act, namely that, on balance, you have impaired mental functioning that has resulted in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or that in the alternative there are substantial and compelling circumstances that are exceptional and rare.
38In respect of s.10(2D)(c.)(ii) I accept that PTSD and major depressive disorder are capable of constituting ‘impaired mental functioning’ as defined. I accept that you have the conditions diagnosed by Ms Lechner. I accept that it has impacted your ability to undertake supervised urine screens, which in turn has attracted sanctions. However, I do not accept that this impaired mental functioning would result in you being subject to ‘substantially and materially greater than the ordinary burden or risk of imprisonment.’
39First, as I understand it, this issue has now resolved and in person visits have, or are to, commence. Second, even if the test were not future orientated, while I accept that your time in custody has been more onerous, I do not accept, on the evidence before me and on balance that the consequences qualitatively reach the heights of a ‘substantially and materially greater than the ordinary burden or risk of imprisonment.’
40In relation to ‘substantial and compelling circumstances that are exceptional and rare’ and justify departing from the imposition of the mandatory term, I am guided by the legislative regime and the decisions of the higher courts. In making the assessment as to substantial and compelling circumstances, the Act imposes a number of further conditions (s10(2B)). First, general deterrence and denunciation of the offenders conduct must be regarded as more important than other sentencing purposes; less weight is to be given to the offenders personal circumstances than to the nature and gravity of the offence; regard must not be had to certain matters including the offenders previous good character (other than an absence of convictions), an early plea of guilty and prospects of rehabilitation; and the court must have regard to parliaments intention that in sentencing for such matters, only an order for a custodial sentence ‘should ordinarily be imposed’.
41In combination, I do accept that your circumstances are substantial and compelling. You are young. You have a limited prior criminal history. You have been in custody now for a very significant period of time. Your time in custody has been more onerous, due, in part to your PTSD and refusal to undertake supervised urines and also due to Covid lockdowns. You present with certain mental health conditions and vulnerabilities, as canvassed in the report of Ms Lechner. Given the nature of the custodial environment and your conditions, you are hypervigilant and on edge, and I accept that imprisonment weighs more heavily on you than it would on a person in ‘normal health’ (Verdins, limb 5)[3]. You have expressed remorse for your offending and you have progressed your rehabilitation.
[3] R v Verdins [2007] VSCA 102.
42The second step in the evaluative assessment is to consider whether your circumstances are ‘exceptional and rare.’ This refers to circumstances ‘that are wholly outside the ordinary factors typical of the relevant offence. It is a very high hurdle that will not often be surmounted, and on my assessment, it is not reached in your case. This section guards against the risk of injustice in a particular case ‘but the stringency of [it] cannot be avoided’[4]. The introduction of the ‘exceptional and rare’ requirement made explicit this Court’s approach to the existing ‘substantial and compelling circumstances’ requirement – namely, that the circumstances must not only be powerful, but also ‘wholly outside’ the ‘run of the mill’ factors seen in offending of the relevant kind.
[4] Farmer v The Queen [2020] VSCA 140.
43While I am not satisfied that a relevant exception applies, I do take into account all of these matters in my instinctive synthesis and in fixing the just and appropriate sentence in your case. By those matters I include the contents of Ms Lechner’s report; clearly your youth, the hardship and additional hardship in custody, the delay as well involved in your matter and the fact that this has been hanging over your head, and no doubt you have been in an uncertain state for a lengthy period of time.
Sentencing purposes
44The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. The category regime influences and impacts the assessment of these purposes.
45In sentencing you others need to be deterred from this type of confrontational and violent offending. The community must be protected from such serious offending, and your conduct does need to be clearly denounced.
46As was explained by the Court of Appeal in Mammoliti v The Queen, the mandatory minimum non-parole period operates as a legislative yardstick, that sits alongside established sentencing principles, and is not intended to depart from the instinctive synthesis approach to sentencing[5].
[5] [2020] VSCA 52.
47I take into account all these matters. In respect of charge 1, while the mandatory minimum non-parole period must be reflected in the head sentence, I consider that given your youth and the significant mitigating factors in your case, that the head sentence should be kept to a minimum. There are several charges before the Court and I also take into account the principles of proportionality, parsimony and totality.
48In respect of that, given the overlap of some charges and the temporal connection, and also upon assessing your overall criminality, this has very much influenced my decision as to orders of concurrency and cumulation, and I will be making plain that the terms I have imposed are not to be served cumulatively but rather concurrently.
Sentence
49Synthesising all relevant factors you are convicted and sentenced as follows:
50On the charge of aggravated carjacking you are convicted and sentenced to a period of three years and six months’ imprisonment.
51Charge 2, theft, you are convicted and sentenced to seven days’ imprisonment. –
52Charge 3, theft, you are convicted and sentenced to seven days’ imprisonment. –
Summary offences
53In respect of the summary charges, dealing with the first rolled up charge, Charge 2 of commit offence on bail, you are convicted and sentenced to seven days imprisonment.
54On Charge 4, the possess controlled weapon without excuse, convicted and sentenced to one month imprisonment.
55On Charge 6, that is the unlicenced drive charge. Counsel, I have taken the fact that he is unlicensed into account broadly, can I indicate, applying the principle of parsimony I do not consider it warrants a term of imprisonment. I am finding it proven and dismissed.
56MS PAGANIS: As Your Honour pleases.
57HER HONOUR: And that is the reasoning.
58On Charge 9, which is the dangerous driving, seven days imprisonment.
59Given the overlap of some charges and the temporal connection, and also upon assessing your overall criminality, I consider it is appropriate to make no orders for cumulation and to direct that all sentences be served concurrently.
60I set a non-parole period of three years.
61Pursuant to s.18 I declare you have served a period of 761 days.
62A s.6AAA indication is somewhat difficult because of the mandatory regime, but doing the best I can I indicate that but for your plea of guilty I would have imposed a sentence of four years and six months with a non-parole period of three years and four months.
63Pursuant to the mandatory provisions I will cancel your licence, disqualify you from driving for a period of 24 months. I am certainly not going to exceed that time. It is a serious offence that you have pleaded guilty to, Mr Shannon, there is no doubt about that, but you have been in custody now for over two years and there is no ability to backdate this order. It is for those reasons that I am not going to go beyond the required minimum. Do you understand? You are disqualified from driving and once you are released there will be a bit of time left on the disqualification, be mindful of that, you do not want to be breaching parole or committing an offence because you are driving disqualified.
64The upshot of my sentence, Mr Shannon, is I have sentenced you to effectively, given my findings, what is the minimum term available, three and a half years. You have to serve your three years, take away the time you have done, you can perhaps start getting ready for parole or do courses that might be required so that you can be released. It is not a matter for the Court, it is a matter for the Parole Board. Do you understand?
65OFFENDER: Yes, thank you, Your Honour.
66HER HONOUR: Counsel, thank you for your assistance.
67MS STRUGNELL: As Your Honour pleases.
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