Director of Public Prosecutions v Abel and Higgins

[2014] VCC 1036

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00175

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL ABEL
MARNIE HIGGINS

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2014 and 19 June 2014
DATE OF SENTENCE:	24 June 2014
CASE MAY BE CITED AS:	DPP v Abel & Higgins
MEDIUM NEUTRAL CITATION:	[2014] VCC 1036

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N Goodfellow	O.P.P.
For Offender Abel	Ms S Lindner	Ann Valos Criminal Law
For Offender Higgins	Mr D Langton	Revill and Papa Lawyers

HIS HONOUR: 

1Michael Jeffrey Abel and Marnie Ann Higgins you have each pleaded guilty to one charge of robbery, contrary to s.75 of the Crimes Act 1958.  The maximum penalty for that offence is 15 years' imprisonment.

2Marnie Ann Higgins you have also pleaded guilty to one charge of possession of a drug of dependence contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981.  In the circumstances of this case the maximum penalty for that offence is a fine of five penalty units.

3You were committed to stand trial in this court on 1 February 2013 following a plea of not guilty to charges that included a charge of armed robbery.  On 3 June 2014 the court was informed that you would plead guilty to one charge of robbery and Higgins to the possession of cannabis charge.  Your plea has spared the community the expense of a trial and I accept that it is evidence of your remorse.  Accordingly I have taken your pleas of guilty in to account in your favour, in mitigation of sentence.

4Michael Abel you have admitted an extensive criminal history for a range of offences including offences of violence, dishonesty and drug use.  You have served a number of terms of imprisonment in New South Wales and Queensland.

5Marnie Higgins, you have also admitted a criminal history for offences of dishonesty and violence.  Whilst you have not served a term of imprisonment to date, dispositions of courts intended to facilitate your rehabilitation have so far been unsuccessful.

6The prosecution opening was read to the court and your offending may be summarised as follows: 

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On 4 November 2012, at approximately 6.30 am, you both attended at the home of a neighbour of Ms Higgins,

Mr Damian Grues.  Upon your attendance an argument occurred between Ms Higgins and Mr Grues which was, in all probability, related to drug use or drug supply.  You, Abel, placed Grues in fear of violence and you, Higgins, stole his mobile phone and wallet.  The incident was reported to police who searched your residence and located in Higgins' vehicle a small quantity of cannabis.

8Whatever the background to your offending, Mr Grues was entitled to the security provided by his own home and the threat of violence to him and the theft of his belongings was without justification.  You both must be punished for what you have done and the sentence I impose must be calculated to deter you and others from offending in this way.

9Michael Abel, you were born on 9 April 1972 and are now aged 42.  As I have said you have an extensive criminal history but I accept that it is closely related to a longstanding history of mental illness and drug addiction.  I have received in evidence a body of medical reports detailing a diagnosis of schizophrenia in your case and admission to hospital for treatment for that condition.  It would appear that you were not suffering from any symptoms of your illness when you offended on this occasion, but I accept that imprisonment would place your mental health at risk and may lead to a re-emergence of your symptoms.

10You are currently psychiatrically stable and in receipt of appropriate medication.  You are in a relationship with Ms Higgins and have a young child with her.  You also have two teenage children who reside with their mother in New South Wales.  She is currently in treatment for pancreatic cancer and you are doing what you can to assist with the children.  I accept that you are endeavouring to rehabilitate yourself and live in a stable, law abiding, manner and that requiring you to serve a term of imprisonment would jeopardise that.

11Marnie Ann Higgins you were born on 25 May 1976 and you are now aged 38.  You have three children, two of them are aged 18 and 16 and are from your first marriage.  Your husband was a truck driver who introduced you to amphetamine.  Prior to this you were living in a law abiding and healthy manner.  You divorced in 2001 but by that time you had developed an addiction to illegal drugs of dependence.  Regrettably this illness continues and in my opinion you require ongoing treatment and support.

12Your third child was born on 19 October 2013 and you are engaged in her full time care.  Your drug addiction is currently treated with methadone.  I accept that your prospects for rehabilitation are good and will be assisted by you receiving ongoing treatment and support.  Accordingly I had you assessed for a Community Corrections Order and you have been assessed as suitable for such a disposition.

13In the result the sentence of the court is as follows. 

14Michael Abel, in relation to the charge of robbery you are convicted and sentenced to be imprisoned for 15 months.  I order that the entirety of that sentence be suspended for a period of two years. 

15I declare, if it be necessary to do so, that you have served three days' imprisonment by way of pre-sentence detention, not including today.

16Marnie Ann Higgins, in relation to the charge of robbery you are convicted and sentenced to a Community Corrections Order for a period of two years on the usual core conditions.  I further order that you perform 60 hours of unpaid community work during the period of the order and I further order that you undertake drug treatment and assessment as directed, and I further order that you undertake treatment and rehabilitation programs as directed, including an ongoing change program.  Do you agree to entering such an order?

17OFFENDER HIGGINS:  Yes sir.

18HIS HONOUR:  In relation to the charge of possession of a drug of dependence you are convicted and fined the sum of $300.  I order a stay of one month in relation to the payment of the fine.  I have made the s.464ZF orders sought by the prosecution.  In each case you two are required to attend at the Melton Police Station for the purpose of providing a forensic sample to the police and I advise you that the police are permitted to use reasonable force in order to obtain that sample, if necessary.  Could you come forward and sign the CCO please, Ms Higgins?  Yes.  My associate will make a copy of that order and it will be provided to you, Ms Higgins.  Are there any further orders required?

19MS STEVENSON:  Was Your Honour minded to make a declaration under 6AAA?

20HIS HONOUR:  Why would I do that?

21MS STEVENSON:  For a plea of guilty by the accused.

22HIS HONOUR: Yes, I only have to do that if it's an order made under Division 2 of Part 3 of the Sentencing Act and a suspended sentence is not an order under that section and nor is a CCO.

23MS STEVENSON:  May apologies Your Honour.

24HIS HONOUR:  We'll adjourn now until 10.30.

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