Director of Public Prosecutions v Zammit

[2021] VCC 1748

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00190

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE ZAMMIT

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2021
DATE OF SENTENCE:	9 November 2021
CASE MAY BE CITED AS:	DPP v Zammit
MEDIUM NEUTRAL CITATION:	[2021] VCC 1748

REASONS FOR SENTENCE
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Subject:CRIMINAL

Catchwords:              Plea of guilty – one charge of carjacking- related summary charges of committing indictable offence whilst on bail and dealing with property suspected of being the proceeds of crime -  elderly victim - substance use disorder – circumstances of covid-19 pandemic

Legislation Cited:      Crimes Act 1958 (Vic) ; Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v Queen [2013] HCA 37; DPP v Drake [2019] VCC 841; Leishman v The Queen [2019] VSCA 270; Marrah v The Queen [2014] VSCA 119; R v Verdins and Ors [2007] VSCA 102; Russo v The Queen [2021] VSCA 244; Worboyes v R [2021] VSCA 169

Sentence:                  Total effective sentence of 3 years and 1month imprisonment with a minimum non-parole period of 1 year and 11 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Raimondo	Office of Public Prosecutions
For the Accused	Mr A. Malik	Galbally & O’Bryan

HER HONOUR:

Introduction

Plea of guilty and maximum penalty

1Shane Zammit, you have pleaded guilty to one charge of carjacking, the maximum penalty for which is 15 years’ imprisonment.  You have also pleaded guilty to two summary offences: one charge of possessing property suspected of being proceeds of crime, the maximum penalty for which is two years’ imprisonment and one charge of committing an indictable offence while on bail, an offence which carries a maximum penalty of three months’ imprisonment.  I also note that carjacking is a ‘Category 2’ offence, I will return to that later in these reasons.

Circumstances of the offending

2The circumstances of your offending are set out in the prosecution opening dated 28 September 2021, which became Exhibit A on the plea.  It is attached to and forms part of these reasons.  I will refer to just some parts of it here.

3In the afternoon of 18 December 2019, Ms Anne Reidy was sitting in her car in Elsternwick.  She had pulled over to drink a soft drink she had bought at the nearby McDonald’s drive through.

4While she sat in her car, Ms Reidy watched a woman walk along the footpath and get into the front passenger seat of a dark BMW parked in front of her.  

5Shortly after this, Ms Reidy observed you, Mr Zammit, get out of the BMW and walk on the footpath beside her car.  She saw you return to the BMW and sit in the rear passenger seat.

6A few minutes later, you got out of the BMW carrying an orange and white shopping bag.  You approached Ms Reidy’s car.  The BMW in front of Ms Reidy then drove away.

7You opened the front passenger door of Ms Reidy’s car and said, ‘Where are the keys?’.  Ms Reidy assumed you were armed; she got out of the car with her handbag which had the car keys attached to it.

8After Ms Reidy got out of her car, you got in the driver’s seat and drove off along the Nepean Highway.  

9Ms Reidy called her husband and the emergency services.  Police arrived and took Ms Reidy’s statement.  The car you had driven off in had several of her belongings still inside, including her purse, cash, credit cards and identification.

10The next day, Ms Reidy’s car, by then damaged, was recovered by police outside a house in Tiverton Drive, Mulgrave.  This address is a short distance from your father and grandmother’s home in Noble Park North.

11The following day, 20 December 2019, you were found in Carrum Downs.  You were injured and severely sunburnt; you were taken to hospital for treatment.

12The following day, 21 December 2019, police went to the hospital and spoke to you about the carjacking.  You were arrested and taken to Dandenong police station.

13That same day, police executed search warrants at the home of your father and grandmother, where you live part-time.  In your bedroom, they found clothing matching the description given by Ms Reidy, and personal items she had lost.  Police also found identification documents, laptops, iPhones and iPads – these items constitute Summary Charge 7:  possession of property suspected of being the proceeds of crime.

14The same day, police conducted an interview with you; you exercised your right to silence, but for denying that the images on CCTV footage from McDonald’s were not of you.  You were charged and remanded.

15You had previously been granted bail from the Magistrates’ Court on 21 January 2020, on the condition that you reside at the ‘Wellness Centre’ at 12 Horne Street, Elsternwick; this address is a few hundred metres from the scene of the carjacking.  That bail was for a range of drug trafficking and related offences. This gives rise to Summary Charge 6: committing an indictable offence while on bail.

Nature and gravity of the offending

16I will now address the nature and gravity of your offending.

17Carjacking is a relatively new offence, containing the same elements as robbery, but with the additional requirement that the category of property stolen is a car or boat.

18You acted alone; you did not use a disguise.  It was daytime.  Ms Reidy was a woman aged in her 70s and certainly what you did, put her in considerable fear, however, she was not, thankfully, physically assaulted.

19According to Ms Reidy, in a statement adopted by your counsel at the plea hearing, you said to her during the carjacking: 'I don’t want to steal anything, take your things, where are the keys?' or words to that effect.  From this, I accept that you intended to, to some degree, convey to Ms Reidy your limited purpose of wanting to steal only her car, and, in doing so, reduce the difficulty of the experience for her.  However, it has to be said that this was a truly unpleasant and frightening thing to do.  Not only was she quite terrified at the time, but the ongoing consequences, from inconvenience to anxiety are considerable.  I will return to the effect on Ms Reidy when I consider her victim impact statement.

20In arriving at my assessment of the gravity of your offending, I heard submissions from both the prosecutor and your counsel directed at quantifying the level of contemplation you engaged in, before opening Ms Reidy’s car door.  The prosecutor argued that you getting out of the BMW, walking on the footpath and getting back into that car, constituted reconnaissance, and that having seen an elderly woman alone in a car with its engine running, you then deliberately decided to take advantage of those circumstances.  Your barrister, however, submitted that you had been dropped at that location by a friend because you had intended to go back to the rehabilitation service where you were staying.  You got out of the car to go into that address, changed your mind, went back to the BMW and there, made the decision that you had to drive a car to your mother’s house.  It was at that point, according to your barrister, that you made the very spontaneous decision to open the door to Mrs Reidy’s car.  The former version, advanced by the prosecution, is said to be aggravating as it means you knew the qualities of your victim, and this was a slightly more planned version of the offence.

21On the material available to me, and conscious of the burden and standard of proof in the circumstances, I am not satisfied that there was a period of reconnaissance and decision-making taking place when you exited the BMW for the first time.

22Nevertheless, your offending was opportunistic, despite being relatively unplanned.  In your addled state, you had become fixated on driving to your family’s home and in that state, you pursued your goal, regardless of the cost to others, imposing a very unpleasant experience on Ms Reidy in the process.  I view the offending some way along, but not past the centre, on the spectrum of similar offending.  

Personal circumstances

23You were born in July 1983, you are now 38 years old, you were 36 at the time of offending.

24You were born in Dandenong, the eldest of two from your parents’ union.

25Your parents heavily abused alcohol and were violent to one another.  You were four years old when they separated.

26You stayed living with your mother, she re-partnered around a year later and you have a stepsister, Janice, from that relationship.

27You describe daily verbal arguments between your mother and stepfather.  This was coupled with physical assaults perpetrated by your stepfather on your mother, yourself, and your brother.

28You recall this abuse to be distressing, you hid in your room, you said this happened until you were around 10 years old.

29You completed school up to Year 9, but you were frequently absent from school. You started using illicit substances.  

30At age 14, you went to live with your father, but you describe this time as one lacking in supervision and guidance. 

31Your work history has been sporadic, you have had large periods of unemployment and incarceration.

32You got your first job at around 18, you worked as a sales representative for a tool company.  You stayed in this role for about 12 months.  In 2009, you worked for Telstra as a printer technician and again in 2012, handing billing enquiries, on both of these occasions you were made redundant. 

33You have had one significant relationship, with Melissa, with whom you have a daughter, Daphne.  Daphne was born while you were in custody and you have not yet met her, though for a period, you are able to have contact with her via zoom calls.  You understand Daphne has now been placed with her maternal grandmother in Queensland since about mid-September of this year.

34You have had a deeply problematic relationship with drugs over a long period of time.  You began using cannabis at age 14 and began constant use very soon after.  You started using heroin at age 15, in your mid-twenties, you started using methamphetamine and later GHB.

35Substances have been a constant in your life since you were a very young person, you have had periods of abstinence, mostly during incarceration. 

36You have previously engaged with drug rehabilitation on two occasions, - in 2019 through the Maroondah Addiction Recovery Program (MARP) and at the 'Well Being Planet' in 2020.  You are currently receiving injections of Suboxone in prison and have been abstinent from all other drugs while in custody.

37At the time of this offending, you had recently relapsed heavily into drug use using heroin, methamphetamine and GHB on a daily basis.  You were effectively homeless.  You had recently left what was supposed to be a rehabilitation community, but which was later revealed to be a chaotic and dysfunctional place. 

Prior criminal history

38You have an extensive and relevant criminal history; it commences in 2001, with five charges of armed robbery and two charges of attempted armed robbery, for which you were sentenced to custody in a youth training centre.  Your court appearances continue from there with some regularity.  This is the third time you will be sentenced in the County Court.

Impact on victims

39I have regard in forming this sentence, on the impact on your victim.  Ms Reidy filed a victim impact statement and I have taken the relevant portions of it into account.  At the time of the offence, she was 75 years old and enjoyed good health, hearing and eyesight.  She had recently retired.  Happily, she had never before witnessed or been subject to any kind of criminal offending.  Immediately after the incident, she experienced shock, disbelief and anxiety.  She feels nervous and upset when she recalls the incident, and her sleep has been disturbed. She thinks her concentration has been scrambled by what happened.  The loss of her purse and identification documents caused considerable inconvenience.  As did the loss of the car, which was not replaced for some time, and it was the only car the family had to rely on.  She feels her confidence has been damaged.  You have imposed all that on her; and I take all that into account.

Chronology of resolution

40

You were arrested and charged on 21 December 2019.  I note that witnesses, including Ms Reidy, were cross-examined at the committal proceedings.  However, it is important to note that you made an offer to plead guilty to carjacking, (the only charge on the ultimate plea indictment) well over a year ago, before the committal,  on 27 July 2020.  That offer was rejected by the prosecution and a committal was conducted in February 2021; your plea offer was renewed on 4 May 2021.  A case conference was conducted on 14 July 2021 and the case finally resolved on

11 August 2021.  I note that the matter came before me at a case conference and this involved ventilation of the question of whether the prosecution could establish you were in possession of a firearm at the time of the carjacking.  This was ultimately not pursued, and your case resolved in the terms I have described, and to the plea you offered in July 2020.  I note that the cross-examination that was undertaken at committal was very confined and focused only on the issue in dispute, that being whether the prosecution could prove the presence of the firearm.

Matters in mitigation

Plea of guilty

41You have, in effect, pleaded guilty at the earliest opportunity and this indicates your acceptance of responsibility and to that extent, it is evidence of your remorse.

42Moreover, it is now well-established that entering a plea of guilty at this time, must attract a special and palpable discount in the context of the enormous backlog of trials that has accrued during the pandemic.  I make very it clear that were it not for these circumstances, your sentence would be significantly higher.[1]

[1] Worboyesv R [2021] VSCA 169.

Application of Bugmy principles

43Turning now to the application of the principles in the case of Bugmy. [2]  It appears that you spent your early years in ‘states of deep distress, selecting between terror at your stepfather’s depredations and anger toward him.’.[3] On the plea, your counsel submitted, the prosecution did not dispute and I find, that your sentence can be somewhat reduced by the application of the principles in Bugmy and the other case of Marrah.[4]  That is, adopting what the court said in DPP v Drake:[5]

'… The profound dysfunction, disadvantage and abuse experienced by [you] during your formative years, were relevant to an appropriate valuation of your moral culpability.  As recognised by the High Court in Bugmy, these experiences, none of which were of [your] making, all played a significant role in shaping [your] personality and your responses.  As a consequence, [your] subjective culpability for the offending in which [you] engaged, could not be equated with that of the person who committed the same offence, but who had the advantage of a normal stable and regular home environment during his or her childhood years…'

[2] Bugmy v Queen [2013] HCA 37.

[3] See Report of Patrick Newton at [15].

[4] Marrah v The Queen [2014] VSCA 119.

[5] DPP v Drake [2019] VSCA 293 at [32] per Maxwell, Priest, Kaye T Forrest and Emerton JJA.

44I accept these principles have an applicability in your case.  In the opinion of  Patrick Newton, your abuse of illicit drugs developed out of an unstable and abusive background.

45That said, Mr Newton went on to say that:

'…it  is clear that the primary factors maintaining his drug use, has been physical addiction, compounded by personality vulnerabilities (such as risk-taking and stimulus seeking) and its integration into his social networks.  Certainly, any efforts to manage emotional issues have played, at most, a subsidiary role in motivating his drug using behaviour'.

46The corollary of mitigation based on disadvantage is of course potential for the increased role for community protection; I will attempt to reconcile that tension in the sentence that I will impose.

Psychological material

47

In terms of psychological material, I have already referred to Mr Patrick Newton’s report.  Ultimately, the report is relied upon as context for you and your personal circumstances.  No Verdins[6] principles were pleaded in mitigation.  Even so,

Mr Newton’s report was an uncommonly useful report in your case.  Mr Newton noted that you do not meet the criteria for any mood disorder, anxiety related disorder or adjustment disorder at this time.  He notes that your use of drugs has been compulsive, intense and severely detrimental to your adjustment.  He diagnosed a ‘severe substance use disorder’ with regard to heroin, methamphetamine and GHB, and holds the opinion that you meet the diagnostic criteria for a personality disorder, with mixed narcissistic and antisocial features. Your drug addiction is in remission, currently in a controlled environment.  It is clear from Mr Newton’s report, that in his opinion your substance abuse has had severe consequences across almost every area of your life.  Moreover, Mr Newton notes that like any drug addicted prisoner, your risk for relapse will be particularly intense at the time of your eventual release into the community and I bear this in mind in structuring your sentence.

[6] R v Verdins and Ors [2007] VSCA 102.

Prospects of rehabilitation

48I am obliged to have regard to your prospects for rehabilitation.  The prosecution submitted that these should be seen as guarded.

49You have achieved freedom from your addiction while in custody, but that has not been tested yet.  You are now feeling motivated to repair your life, so that you can be a good parent for your daughter Daphne.  There is still a difficult road ahead for you, but at least you appear to recognise that there is now a very young person who needs a father and who needs a father who is not a slave to his addiction. While I am reserved about your potential success, I do not regard the situation as hopeless.  You seem to have made some progress in custody.

50You maintain the support and affection of family members, some of whom who wrote loyal and affectionate letters tendered on the plea.  You still have much to live for and achieve and it is too early in my opinion, to abandon efforts to see you return to the community safely.

Current sentencing practices

51I have had regard to current sentencing practices in arriving at the sentence.  I was referred to some cases during your plea including; Russo v The Queen[7] and Leishman v The Queen.[8] These cases were not proffered as sentencing precedents, but as cases that more generally adumbrate the range of sentences falling in this category of offending.  I am assisted by them in a general way and I sentence you in this landscape.

[7] Russo v The Queen 2021 VSCA 244, see [42] and following.

[8] Leishman v The Queen [2019] VSCA 270.

Covid-19 pandemic circumstances

52As I deliver this sentence, Victoria is emerging from a long period of lengthy lockdowns imposed in relation to the Covid-19 pandemic.  There is now some optimism based on widespread vaccination, but the anxieties and uncertainty of this time persist.  It is clear that for some time, prisoners in Victoria have suffered the anxiety of not knowing if or when the virus will enter the prison system.  Access to visits and programs has been significantly curtailed.  You have had severely limited personal visits.  You have served, and you will be serving your sentence in that more severe and uncertain climate and I take that into account in mitigation of your sentence.

Sentencing principles

53I must apply the proper sentencing principles in your case.  I must impose a sentence that will, it is hoped, deter others from behaving in a similar way.  You must be punished for what you did and through me and this sentence, this behaviour is denounced.  Given your history, there is also a role for specific deterrence, that is, to deter you from behaving in similar ways in the future.  I will have regard to the protection of the community, which I regard to be best served by your being subject to appropriate rehabilitative schemes under the supervision of the Parole Board.

54The charge of carjacking as I have already said, carries a maximum penalty of 15 years’ imprisonment, but Parliament has also mandated that a term of imprisonment must be imposed unless the offender can demonstrate that ‘special reasons’ exist.  No ‘special reasons’ were argued in your case; it was agreed by all parties that the only available disposition in this case is a term of imprisonment comprising of a head sentence and a non-parole period.

55It was submitted that I should bear in mind the 60-day sentence you have served during your most recent remand, according to the principle of totality.  It is perhaps of minor weight, but I do bear it in mind.

Delay

56Regarding delay in your case, in all, 22 months have passed since the offending and this delay, and the procedural delay on account of the pandemic, is a relevant matter to take into account in mitigation.  You attempted to resolve the case early. You have been living in a state of uncertainty throughout this time, with the resolution of your case hanging over your head.  You have, it would seem, used some of this delay well and directed it towards your rehabilitation and I refer in particular, to the courses in parenting and relationships you have completed during your custody.

Disposition

57Turning now to the disposition .  On Charge 1: carjacking, you are convicted and sentenced to three years’ and one month imprisonment.

58On the related summary offence of committing an indictable offence while on bail, you are convicted and sentenced to one month’ imprisonment

59On Charge 3: possessing property suspected to be the proceeds of crime, you are convicted and sentenced to one month’ imprisonment

60I direct that the sentences on the Summary Charges 7 and 3, are to be served concurrently with the sentence on Charge 1 on the indictment.

61This results in a total effective sentence of three years and one month imprisonment, I direct that you serve a minimum non-parole period of one year and 11 months before becoming eligible for parole.

Presentence detention

62In terms of pre-sentence detention, you were arrested on 21 December 2019 and remanded in custody before this sentence.  In the meantime, you were sentenced to 60 days’ imprisonment for other matters in the Magistrates’ Court.  This results in the pre-sentence detention available on this sentence being 630 days and I declare those days to be already served and should be deducted administratively.

63I make the orders for disposal as proposed for the property found at your home.

64Pursuant to s89 of the Sentencing Act which requires me to make an order against your licence, if you are the holder of a driver's licence, I cancel that licence and disqualify you from obtaining a further one for a period of 12 months.  

65I indicate that pursuant to s6AAA of the Sentencing Act, had you not pleaded guilty, but been found guilty by a jury, I would have imposed a sentence of four years’ imprisonment, with minimum non-parole period of two years’ and six months. 

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