R v Bonney
[2022] VSC 264
•25 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0139
| THE QUEEN | Crown |
| v | |
| BIANCA BONNEY | Accused |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 April 2022 |
DATE OF SENTENCE: | 25 May 2022 |
CASE MAY BE CITED AS: | R v Bonney |
MEDIUM NEUTRAL CITATION: | [2022] VSC 264 |
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CRIMINAL LAW – Sentence – Causing serious injury intentionally – Offender used multiple weapons in assault on friend – Upper range example of offence – Significant relevant criminal antecedents – Sentenced as serious violent offender – Poor prospects of rehabilitation –Schizophrenia – Verdins principles 1, 3, 4 and 5 engaged – Bugmy principles engaged – Delay – Plea of guilty at first reasonable opportunity – Totality – Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 – Nash v R (2013) 40 VR 134; [2013] VSCA 172 – R v Verdins (2007) 16 VR 269; [2007] VSCA 102 – Worboyes v R [2021] VSCA 169 – Crimes Act 1958 (Vic) ss 15, 16 – Sentencing Act 1991 (Vic), Part 2A & Schedule 1, Clause 2(c)(iab)(i), s 6D.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Dickie | Office of Public Prosecutions |
| For the Accused | Ms M O’Brien with Ms A Sharpley | Slades & Parsons |
HIS HONOUR:
Bianca Bonney, you pleaded guilty to causing serious injury intentionally to Gabriel Meza-Rosas on 8 February 2020.
Serious injury means, relevantly, an injury (including the cumulative effect of more than one injury) that endangers life or is substantial and protracted.[1]
[1]Crimes Act 1958 (Vic), s 15.
The maximum penalty for the offence of causing serious injury intentionally is 20 years’ imprisonment.[2]
[2]Crimes Act 1958 (Vic), s 16.
CIRCUMSTANCES OF OFFENDING
As regards the circumstances of your offending, you and the victim first met approximately two years prior to the offending. You became friends.
On or around 2 February 2020 you told the victim you were homeless and he said you could stay with him. You stayed the first night in his room at a rooming house and then moved into room 10 after the victim vouched for you and paid the first few days boarding fee.[3]
[3]Summary of Prosecution Opening, 6 February 2022, [3].
On 8 February 2020 you invited the victim to drink some beer with you in the rooming house courtyard, which he did. You then invited him to go to your room, which he did. The agreed Summary of Prosecution Opening outlines what occurred next:
[5] [You and the victim] went into room 10. Once …inside, [you] locked the door. [You] then approached the victim and kicked him, and said “you are a fucking dog. I am going to kill you.” [You] then produced a knife which was concealed in [your] pants. The knife was a kitchen type knife, estimated by the [the victim] to be about 15 cm long. [You] screamed and said “you’re now going to die, you rat. I am going to hell for this.” The [victim] pleaded for his life, reminding [you] that [the two of you] were friends, and that he had a daughter.
[6] [You] punched the victim in the face and said “you are not going to see your daughter. You are going to die now.” [You] then put [your] hands into the victim’s pockets and said “give me your money.” [You] pointed the knife at his face. The [victim] took his wallet out and handed [you] $200 in cash. [You] said “you think that’s enough money? You are going to die now.”
[7] [You] then picked up a bottle of perfume and a lighter. [You] approached [the victim] and sprayed the perfume towards his face while igniting the perfume spray with the lighter. The victim could feel burning on his face. The victim held out a hand to fend off the flames, and [you] stabbed that hand with a needle from a syringe.
[8] [You] then dropped the syringe. Holding the knife in [your] right hand [you] stabbed [the victim] twice in the left side of his face. He picked up a chair to protect himself and moved towards the door. He put the chair down in order to unlock the door. [You] moved towards the victim and said “you’re going to die now.” [You] stabbed him twice in the torso.”
The victim then left the room and, with the rooming house manager, ran up the street. You followed them, still holding the knife. Emergency services were called by a person the victim met on the street and an ambulance arrived shortly after to transport the victim to the Royal Melbourne Hospital.[4]
[4]Summary of Prosecution Opening dated 6 February 2022 [10], [11].
You were located nearby by police a short time later, still holding the knife. You complied with police directions to drop the knife and you were handcuffed. You were saying things like “he didn’t like my music”, “I should have done worse” and “I hope he fucking dies. Die motherfucker die. Fucking dog. I don’t fuck around man. God, I hope he dies and I’m sorry.”[5] You also told police that you had slashed yourself. Police ascertained that you had injuries to your hands so you were taken to Sunshine Hospital for treatment.[6]
[5]Summary of Prosecution Opening dated 6 February 2022 [12], [13].
[6]Summary of Prosecution Opening dated 6 February 2022 [14].
The Summary of Prosecution Opening says the following about the victim’s injuries:
[16] [The victim] was found on arrival at Royal Melbourne hospital to be in hypovolemic shock, which is a life-threatening condition secondary to significant blood loss. He required a massive blood transfusion, and then surgery to repair his wounds. He was found to have suffered four stab wounds – to his left face, left ear, right shoulder, and left anterior chest. The most significant of those injuries was the one to the left side of his face. This wound severed an artery which was a major contributor to the blood loss. This wound also resulted in major damage to the left frontal branch of the facial nerve, causing facial palsy (paralysis). He also suffered from an acute stress reaction.
[17] [The victim] was discharged from hospital on 13 February, but returned on 14 February for surgery to repair his facial nerve. The effects of the facial palsy remain ongoing.[7]
[18] The prosecution alleges that the injuries to [the victim] were both life-threatening, and substantial and protracted.
[7]Summary of Prosecution Opening dated 6 February 2022 [16], [17].
You were initially charged with offences which included attempted murder.
On 15 December 2021, you pleaded guilty to the charge of causing serious injury intentionally; all other charges were withdrawn. The Summary of Prosecution Opening, which, as I have mentioned, is an agreed summary, includes footnote 5 which reads as follows:
Ms Bonney made multiple statements to the victim during the incident that she intended to kill him. These statements are included in this opening because they were made, and it would be artificial to omit them. Further, the statements had a significant impact on the victim. However, it is not alleged that Ms Bonney actually intended to kill the victim.
Objective seriousness of offending[8]
[8]In Nash v R (2013) 40 VR 134; [2013] VSCA 172, Maxwell P said this at [10]:
“…the following matters are routinely taken into account by sentencing judges in assessing the gravity of particular instances of ICSI [ie intentionally causing serious injury]:the offender’s proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?; the seriousness of the injury actually caused (both the immediate and the long-term consequences for the victim);how vulnerable the victim was; whether a weapon was used; how long the attack on the victim lasted; and whether the offender acted alone or in company.”
I am satisfied beyond reasonable doubt that it was your intention to cause really serious injury. I infer that from the fact that you stabbed the victim four times with a knife, including stabbing him in the left anterior chest and in the face.
You attacked the victim with a number of weapons — a syringe, an improvised flamethrower and a knife.
The victim naturally feared for his life. You repeatedly uttered death threats as you attacked him. You are not to be sentenced for the offence of threatening to kill — with which you are not charged — but the terrifying nature of the victim’s ordeal to which your threats contributed is a circumstance of aggravation.
Whilst I am unable to say how long the attack lasted, it is fair to say it was a sustained attack, which only ended because the victim managed to escape from your room and ran off. Even then, you pursued him.
I find that, as alleged by the prosecution, the injuries you inflicted were both life threatening and substantial and protracted. There is no victim impact statement, but such a traumatic and life-threatening attack is likely to have long-lasting psychological effects on the victim, even if he makes a complete physical recovery. Unsurprisingly, the victim said this in his police statement:
I don’t know how I am going to recover from this.[9]
[9]Statement of Gabriel Meza-Rosas, 9 February 2020, [51].
In my view, it was appropriately conceded by your lead counsel that yours is an upper range example of the offence of causing serious injury intentionally.[10]
[10]Transcript of Proceedings, DPP v Bianca Bonney (Supreme Court of Victoria, Beale J, 8 April 2022), 10–11.
CIRCUMSTANCES OF OFFENDER
I turn now to your personal history and circumstances. You were 32 years old at the time of the offence and are now aged 34.
Deprived childhood and adolescence
Your early history is a tale of great deprivation. It was well summarised by your counsel in written submissions, consistently with the information in a number of psychiatric reports to which I will refer later when discussing your mental health issues:
Ms Bonney grew up in the Northern suburbs of Melbourne (Broadmeadows and Preston). She reports a childhood tarnished by abuse, deprivation and financial hardship. Her mother … suffered from alcoholism and depression which required occasional hospitalisation. In addition to this Ms Bonney reports that her mother was physically violent towards her, had multiple partners and was often drug affected in her presence. Ms Bonney was taken into DHS care around the age of two years and was raised for significant periods by foster families. She did not meet her father until she was in her teens. She has no relationship with him. Ms Bonney has an older half-sister and a younger half-sister on her maternal side. She has 3 paternal half siblings with whom she has no relationship. She attended multiple schools in the Northern Suburbs and left at around year 8. She ran away aged 14 years and commenced negative peer association and chroming. Her teenage years were spent living in long term DHS residential care. She commenced a relationship with [BA] aged 16 and was introduced to heroin. She gave birth to their son ... in 2004. She suffered from significant Post Natal Depression and Psychosis following his birth which resulted in her first hospitalisation for mental health issues. The relationship with [BA] was volatile, drug fuelled and abusive. In 2007, Ms Bonney gave birth to a still born daughter and also suffered a miscarriage, the blame for which she attributes to an incident where she was jumped upon by BA. In 2008, Ms Bonney was the victim of a knife attack at Reservoir Train station in which she was seriously injured and required hospitalisation for 10 days. The relationship with [BA] ended in 2010 when they were both incarcerated for the ICSI which appears on her prior convictions dated 27 October 2011. BA was Ms Bonney’s co-accused in the ICSI matter before the County Court on 27 October 2011.Throughout her life Ms Bonney has suffered from substance abuse issues which have included chroming, alcohol, cannabis, heroin and methylamphetamines. Ms Bonney has no formal work history and reports that she has never worked. Throughout her adult life she has had had ten separate periods of incarceration.
Dr Owens, who prepared three psychiatric reports about you, aptly summarised your developmental years this way:
[128] Ms Bonney’s developmental trajectory was characterised by significant and profound trauma from an early age, including protracted physical and emotional abuse as well as neglect, a family history of psychiatric illness and substance use, sexual abuse in early childhood, multiple periods of foster care and youth residential care, and early onset of substance use problems, leading to disruption to her education.[11]
[11]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020.
It is conceded by the prosecution that your deprived personal history engages the sentencing principles referred to in Bugmy v R,[12] where the plurality said this:
[43]… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest … that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. (footnotes omitted)
[12]Bugmy v R (2013) 249 CLR 571; [2013] HCA 37.
Substance abuse
Before turning to your mental health issues, I will say a little more about your history of substance abuse as reported by you. It commenced with cannabis use at age 12. Since then you report that you have used 1mg per day, when not in hospital or custody.[13] You ‘chromed’ — that is, inhaled spray-paint fumes — daily from ages 14 to 19.[14] From the ages of 15 to 25 you used 0.1g of heroin intravenously each day but have been treated with methadone for 10 years and Suboxone for one year.[15] You started methylamphetamine (ice) use at age 25 or 26, using 0.1g per day either intravenously or by smoking it and used amphetamine (speed) for a few months at age 15.[16] You have also reported being a regular alcohol drinker for the past couple of years, drinking a sixpack of beer per day and often starting drinking in the morning.[17]
[13]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [27].
[14]Your counsel noted that there is a suggestion from Dr Owens that there may be neurological damage as a result of your years of chroming — see Transcript of Proceedings, DPP v Bianca Bonney (Supreme Court of Victoria, Beale J, 8 April 2022) 12 and Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [127].
[15]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [28].
[16]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [29].
[17]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [26].
Mental health
Turning now to your mental health issues, your lawyers filed four psychiatric reports: one from Dr Leon Turnbull and three from Dr Nicholas Owens. The Prosecution filed one psychiatric report from Dr Anthony Cidoni.
The reports addressed whether you had a defence of mental impairment and/or whether the various sentencing principles in relation to offenders with impaired mental functioning were engaged. Those principles are summarised in [32] of Verdins v R as follows:
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
Dr Leon Turnbull
Turning now to the various reports, Dr Turnbull assessed you in March 2020.
He noted that you have an established diagnosis of schizophrenia, with which he found no reason to disagree.[18] He also noted that you report a diagnosis of antisocial personality disorder which he found no reason to remove.[19] He stated that drugs and alcohol are a problem for you.[20]
[18]Psychiatric Report of Dr Leon Turnbull dated 23 March 2020, 4.
[19]Psychiatric Report of Dr Leon Turnbull dated 23 March 2020, 4–5.
[20]Psychiatric Report of Dr Leon Turnbull dated 23 March 2020, 5.
Dr Turnbull concluded that you were actively psychotic at the time of the offending and your actions were motivated by your delusions and hallucinations regarding the victim threatening you. He opined that the intensity of those beliefs was such that you were not able to reason sensibly about your actions and as such, he considered that a mental impairment defence was available to you.[21]
[21]Psychiatric Report of Dr Leon Turnbull dated 23 March 2020, 5.
With regard to the applicability of Verdins principles, Dr Turnbull opined that your time in custody is more onerous as you believe that you are at risk in prison and people are out to get you. He opined that these are likely delusional beliefs but it is hard to know for sure.[22]
[22]Psychiatric Report of Dr Leon Turnbull dated 23 March 2020, 5.
Dr Nicholas Owens
Dr Owens prepared three reports dated 12 October 2020, 15 October 2020 and 6 March 2022.
In his first report, Dr Owens opined that on the balance of probabilities it is more likely than not that you were unable to determine the wrongfulness of your actions at the time of this offending, due to a mental impairment.[23]
[23]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [139].
He revised that opinion some days later in his second report, stating that after further consideration he was not persuaded that you were unable to reason as to the wrongfulness of your actions.[24]
[24]Psychiatric Report of Dr Nicholas Owens dated 15 October 2020 [10].
In summary, Dr Owens provided the following information about your psychiatric history:
·You have diagnoses of treatment-resistant schizophrenia,[25] PTSD, substance use disorder (currently in remission in a protected environment) and borderline and antisocial personality disorders;[26]
[25]First diagnosed in 2014, per records from the Austin Hospital — see Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [79]; Psychiatric Report of Dr Nicholas Owens dated 6 March 2022 [47].
[26]Psychiatric Report of Dr Nicholas Owens dated 6 March 2022 [53].
·You inhaled toxic vapours (chroming) for several years as an adolescent, which may have caused some degree of lasting neuropsychological impairment, particularly impaired organisational and planning skills as well as difficulties controlling and inhibiting emotional reactions. He saw no evidence of formal neuropsychological testing;[27]
[27]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [127].
·You reported that you were diagnosed with PTSD at age 17. You also reported that at age 17 you gave birth to your son, after which you were admitted to hospital for the treatment of postnatal depression and recurring treatments for psychosis (characterised by hearing voices and paranoid ideas);[28]
·You reported a history of treatment with long-acting antipsychotic injectable medication (LAIM) and being subject to community treatment orders (CTOs);[29]
·Your schizophrenia is complicated by repeated episodes of non-engagement with services, non-adherence to treatment and your substance use disorder;[30]
·In late 2019 and January 2020 you were admitted to the Northern and Austin Hospitals. In late January 2020, following your discharge from hospital, you were non-compliant with your CTO and did not receive your antipsychotic medication on time. Your CTO was varied to an inpatient treatment order due to your non-compliance, but you were unable to be located to facilitate your re-admission to hospital before the offending occurred.[31] You used cannabis and ice daily during this period;[32]
·With regard to the offending, you reported to Dr Owens that in the months leading up to the offending you believed your son (then 16) had been kidnapped, coming to believe that the victim had kidnapped your son.[33] You later told him you thought the victim had been interfering with your son and stalking you for about a year before the offence. You reported that the victim had become verbally abusive and you thought that he was staring at you. On the day of the offending you report having consumed two or three stubbies of beer before the victim entered your room and the two of you had an argument. You report that you repeatedly told him to get out of the room and then you wrestled, before you stabbed him. You stated that you were not taking any prescribed medication for mental illness at the time of the offending;[34]
·Since entering custody in February 2020, you spent several months receiving treatment in Thomas Embling Hospital. While in custody at Dame Phyllis Frost Centre you have stayed in the Marrmak Unit, which is the prison’s psychiatric unit;[35]
·While in custody you have been treated with the LAIM paliperidone Trinza 525mg every three months, the antidepressants mirtazapine[36] and venlafaxine,[37] the antipsychotic olanzapine,[38] melatonin and the beta blocker propranolol.[39] Dr Owens describes your current medication regime as being “quite stable”;[40]
·In both 2020 and 2022 you reported you were sleeping well in custody and had a good appetite;[41] and
·In the year before the offending and during your time in prison you have reported experiencing anxiety, auditory hallucinations, paranoia, panic attacks, suicidal thoughts and thought broadcast (that is, thinking that other people could hear your thoughts as if they were spoken out loud).[42]
[28]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [21], [22]; Psychiatric Report of Dr Nicholas Owens dated 6 March 2022 [21].
[29]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [21].
[30]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [126], [127].
[31]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [129].
[32]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [79]–[85], [134].
[33]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [16]–[20].
[34]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [44]–[47], [51].
[35]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [8].
[36]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [9].
[37]Psychiatric Report of Dr Nicholas Owens dated 6 March 2022 [50].
[38]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [23]; Psychiatric Report of Dr Nicholas Owens dated 6 March 2022 [50].
[39]Psychiatric Report of Dr Nicholas Owens dated 6 March 2022 [50].
[40]Psychiatric Report of Dr Nicholas Owens dated 6 March 2022 [50].
[41]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [14]; Psychiatric Report of Dr Nicholas Owens dated 6 March 2022 [15].
[42]Psychiatric Report of Dr Nicholas Owens dated 12 October 2020 [10]–[15]; Psychiatric Report of Dr Nicholas Owens dated 6 March 2022 [17]–[20], [22].
In relation to the applicability of Verdins, Dr Owens said this in his most recent report:
[58] … Ms Bonney was likely experiencing a relapse of schizophrenia at the time that the offending occurred, caused by a combination of non-compliance with antipsychotic treatment – and non-engagement with mental health services – and use of various substances including cannabis and methamphetamine. She has described a range of psychotic experiences occurring at this time, predominantly persecutory delusions. At the time of the offending, untreated symptomatic acute schizophrenia, with persecutory delusions, was likely to have impaired her capacity to exercise appropriate judgment and to think clearly, as well as impaired her appreciation of the wrongfulness of her conduct.
[59] Additionally, Ms Bonney had consumed alcohol in the hours preceding the offending and this was likely to have disinhibited her and further impaired her judgment.
[60] Finally, Ms Bonney’s personality disorder with traits of both borderline and antisocial type (impulsivity, anger management difficulties, affect dysregulation, interpersonal sensitivity and proneness to aggression) was likely to have contributed to her behaviour, given that there is evidence that she was previously involved in some form of dispute with the victim.
[61] It is likely that these three distinct aspects of her diagnostic formulation were active concurrently at the material time, and contributed to poor judgment and difficulty making calm or rational choices….
[62] Compared to a person not affected by mental illness, Ms Bonney would in my view experience imprisonment as more onerous. Even when compliant with treatment, she has experienced fluctuations in her condition, and has been mostly managed in the mental health wing of the prison, as well as periods of time at secure hospital. Ms Bonney’s coping mechanisms are poorly developed and prison is a highly stressful environment, apt to result in periodic episodes of decompensation of mental state. To some extent it appears that she and her treating team have found a stable medication regimen and psychological treatment approach that has benefited her such that such episodes can be managed without the need for transfer to hospital.
[63] The question of whether a significant term of imprisonment would have a detrimental effect on her mental health is less straightforward in my view. Owing to the nature of her personality disorder, in which containment, routine and boundary-setting are important therapeutic aspects, a therapeutic prison environment (with intensive psychiatric and psychological support in place) can have some benefits. Additionally the absence of drugs and alcohol and the presence of consistent antipsychotic treatment enables longer periods of relative stability of her psychotic illness. On the other hand, there is a risk of institutionalisation and inability to engage in some of the psychosocial rehabilitation activities necessary to manage a psychotic illness effectively and stably in the community, which would only be available to her after her release, e.g. residential supported independent living services, secure extended care services, community care units or mobile support teams.[43]
[43]Psychiatric Report of Dr Nicholas Owens dated 6 March 2022.
Dr Anthony Cidoni
The Crown obtained a report from Dr Anthony Cidoni in July 2021, seeking an opinion as to whether a defence of mental impairment was open to you in this matter. He opined that despite your mental state at the time of your offending, you were able to know what you were doing and were aware of the wrongfulness of your actions. Accordingly he opined that you would not be able to establish a mental impairment defence.[44]
[44]Psychiatric Report of Dr Anthony Cidoni dated 20 July 2021 [99]–[101].
Dr Cidoni agreed with the diagnoses of Drs Owen and Turnbull, being schizophrenia and antisocial personality disorder. He also made the diagnosis of borderline personality disorder.[45]
[45]Psychiatric Report of Dr Anthony Cidoni dated 20 July 2021 [94].
Dr Cidoni restated much of the psychiatric history given by Dr Owens, but in addition he noted that between July 2004 and January 2020 you were admitted to psychiatric hospitals for treatment 10 times, for periods ranging from one day to six weeks.[46]
[46]Psychiatric Report of Dr Anthony Cidoni dated 20 July 2021 [27].
Having regard to the expert psychiatric evidence, I am satisfied that, by reason of your mental impairment, your moral culpability is substantially reduced (Verdins 1), that specific and general deterrence should be sensibly moderated (Verdins 3 and 4) and that prison will be harder for you than for other prisoners not afflicted by mental impairment (Verdins 5). However, I am not satisfied on the balance of probabilities that there is a serious risk of imprisonment causing a significant deterioration in your mental health, a matter which was ultimately but appropriately conceded by your counsel in oral submissions.[47]
[47]Transcript of Proceedings, DPP v Bianca Bonney (Supreme Court of Victoria, Beale J, 8 April 2022), 14, 26.
Furthermore, whilst your impaired mental functioning reduces the weight to be given to specific and general deterrence, in my view it elevates the need to protect the community from you.
Antecedents
So do your antecedents, which are concerning.
You have multiple convictions from 12 appearances in adult courts between 2005 and 2019. Those prior convictions include:
·causing serious injury intentionally;
·affray;
·assault by kicking (x2);
·assault with a weapon;
·assault emergency worker on duty (x2);
·assault police (x2);
·unlawful assault (x3);
·threat to kill;
·possess controlled weapon without excuse (x2).
For the prior offence of causing serious injury intentionally, which was dealt with by the County Court in 2011, you were sentenced to three years’ imprisonment (with a non-parole period of 15 months).[48] Because of this prior conviction,[49] the Sentencing Act1991 requires me to make protection of the community from you “the principal purpose” for which my sentence is imposed,[50] but I note that the prosecution do not seek a sentence disproportionate to the gravity of your offence.
[48]I was informed that your then partner BA was the perpetrator and you were the accessory who passed him a knife: see Dr Owens’ first report at [43].
[49]Sentencing Act 1991 (Vic), Part 2A & Schedule 1, Clause 2(c)(iab)(i).
[50]Sentencing Act 1991 (Vic), s 6D.
I also note that you have a subsequent conviction. On 20 October 2020 you were sentenced by a County Court judge to 378 days’ imprisonment after pleading guilty to a robbery committed on 23 July 2018 in which you and a co-offender snatched the victim’s backpack. A declaration of 378 days’ pre-sentence detention was made by the sentencing judge. I take that matter into account pursuant to the principle of totality.
Prospects of rehabilitation
Having regard to your antecedents, your mental health history and your drug abuse history, I must confess I am pessimistic about your prospects of rehabilitation — a view with which your counsel did not cavil[51] — but I hope you prove me wrong in that regard.
[51]Transcript of Proceedings, DPP v Bianca Bonney (Supreme Court of Victoria, Beale J, 8 April 2022), 27.
Summary of mitigating circumstances
Let me now summarise what I consider to be mitigating circumstances in your case.
There has been considerable delay in the finalisation of your case and for much of that time you had a charge of attempted murder hanging over your head.
You pleaded guilty at the first reasonable opportunity.
Because that plea was entered in a time of pandemic, when there are major backlogs in the criminal justice system, it has greater utilitarian value than normal, as recognised by the Court of Appeal in Worboyes v R.[52]
[52]Worboyes v R [2021] VSCA 169.
I find you to be remorseful.
You had an extremely deprived childhood and adolescence which engages the sentencing principles articulated in Bugmy v R.
Your mental health issues engage principles 1, 3, 4 and 5 of Verdins.
I find that prison conditions have been, and are likely to be, harsher for you than normal because of COVID-19 prison restrictions.
Comparable cases
Finally, I have had regard to a number of cases where the offender was sentenced for causing serious injury intentionally.[53] They were of limited assistance. The prosecution acknowledged that that could not identify sentencing cases that were “directly comparable”.
[53]Frecker v R [2021] VSCA 331; Jawahiri v R; Eser v R [2021] VSCA 287; DPP v Kemp [2015] VSCA 108; Lukudu v R [2019] VSCA 248; Nachar v R [2021] VSCA 242; Nash v R (2013) 40 VR 132; [2013] VSCA 172.
Sentence
I sentence you to 7 years’ imprisonment.
I set a non-parole period of 5 years.
But for your plea of guilty, I would have sentenced you to 10 years’ imprisonment with a non-parole period of 7 years.
I declare pre-sentence detention of 642 days, not including today. This comprises the period between 8 February 2020 and 25 May 2022 less 195 days of PSD declared on 20 October 2020.
Ancillary orders
I direct that there be entered in the record the fact that you were sentenced today as a serious violent offender.
I make the disposal and forfeiture orders sought by the prosecution.
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