Director of Public Prosecutions v Abela, Skye
[2013] VCC 165
•21 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02164
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SKYE ABELA |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 December 2012 & 15 February 2013 | |
DATE OF SENTENCE: | 21 February 2013 | |
CASE MAY BE CITED AS: | DPP v Abela, Skye | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 165 | |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Armed robbery
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 18 months' imprisonment, 9 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Mr M Fisher Mr B Nankin | Office of Public Prosecutions |
| For the Accused | Mr B Newton | Randles Cooper & Co. |
HIS HONOUR:
1 Ms Abela, you have pleaded guilty to two charges of armed robbery. Armed robbery carries a maximum penalty of 25 years' imprisonment.
2 You are presently 29 years of age, having been born on 14 May 1983, and you were that age when this offending occurred, just over five months ago.
3 You have a prior conviction for attempted armed robbery, about which I will go into more detail later.
4 The victims of this matter are two pharmacists, Ms Ford and Mr Nguyen.
5 About 11.55 am on the morning of Sunday 9 September 2012 you went to the Ford Pharmacy at 275 Auburn Road, Hawthorn. Ms Ford was working as the pharmacist that day. She was alone and there were no customers in the pharmacy.
6 You were wearing a black cap and black sunglasses. Ms Ford recognised you as someone she had previously been introduced to at the pharmacy earlier in 2012 by a man who was a regular methadone customer of the pharmacy.
7 Ms Ford stood to greet you after you had entered the pharmacy. You walked into the dispensary area of the pharmacy and approached her. You produced a kitchen knife that had a 10-centimetre blade that was serrated on one side. You gave her a plastic bag and said, "I want Xanax, 2 milligram." Ms Ford placed two boxes of Xanax in the bag and you then said, "I want all the Xanax."
8 Ms Ford complied with your demand and started to put boxes of Xanax in the bag. As she was doing so, a box of Xanax fell to the floor and you said, "Pick it up, quickly, quickly, in the bag." You then said to her, "I don't want to harm you but I know your kids." You then left the pharmacy.
9 By the time you left the pharmacy, Ms Ford had placed eight to ten boxes of Xanax into the plastic bag. Each box contained 50 Xanax tablets, meaning you stole between 400 and 500 tablets, and the tablets varied in strength from .25 milligrams to 2 milligrams. The cost to the pharmacy of the stolen Xanax is $60.
10 This incident was captured on CCTV footage.
11 On the evening of 9 September 2012, police attended at 5 McCubbin Street, Footscray, in relation to an unrelated matter involving you and your partner. You were searched by the police. As a result of the search, 204 Xanax tablets of varying strengths were found.
12 When asked about the tablets, you said, "I'm prescribed them by my doctor. They're all mine, but you can check with him if you like." When asked about the different strengths, you said, "Because my doctor is gradually changing my dosage down so I can get off it. You were released from police custody later that night.
13 On 10 September 2012, the police spoke to a man who provided a statement identifying you as the person he had previously introduced to the Ford Pharmacy. As a result of this information and the descriptions of you provided to the police, various checks were conducted and you were ultimately identified.
14 At about 5 pm on Monday 10 September 2012, you went to the Paisley Clinic Pharmacy at 85 Paisley Street, Footscray. Mr Nguyen was working as the pharmacist. After entering the clinic, you spoke to him about some medicine for a runny nose. He told you that he had something to unblock the nose and you asked to see it.
15 When Mr Nguyen took you to the medicine at the side of the pharmacy, you produced a knife and said, "Give me all the Serepax and Valium you've got." As soon as he saw the knife, he ran behind the dispensary. You followed him. He pushed the panic button. You then said, "Show me the Serepax and Valium." Mr Nguyen pointed to the Serepax on the shelf and said, "Take it."
16 You took a number of boxes of Serepax and Valium from the shelf and put them in the pockets of your jacket. You then left the pharmacy and ran away.
17 You stole five packets of Serepax, valued at $15.60 each (total value $78) and eight packets of Valium valued at $13.95 each (total value $111.60)
18 On 17 September 2012 you were arrested in High Street, Preston, and taken to the Boroondara Police Station where you were interviewed. You denied the allegations but said that you are a heavy user of prescription medication, particularly Xanax. You also stated that you take up to 15 Xanax tablets a day as well as 3 Valium tablets a day. You stated that you were also taking medication for a bipolar condition.
19 I now turn to your personal circumstances.
20 As noted earlier, you are now 29 years old and you were that age at the time of this offending.
21 You grew up with your parents and two younger brothers. Your early life was mixed, being amicable and happy for the most part but with periods of verbal and physical abuse at times from your mother when you were aged seven to around 17.
22 You have accepted that you could be disruptive at school and were suspended on three occasions. Nevertheless, you completed Year 12 quite well and thereafter completed Certificate 3 in Patient Health and began working at the Austin Hospital when you were 18. You have remained employed casually in in-patient services since then, working three to four days per week. Prior to the current offending you had been on long service leave for 16 - 17 weeks and your leave had just expired.
23 You commenced your first significant relationship at 16 and moved in with your then boyfriend at 17. You were in that partnership for eight years and have two daughters, now aged eight and five. Following separation from your partner the children remained in your care for some months until you experienced a manic episode and were admitted to hospital for psychiatric care. Following this you suffered severe depression with suicidal ideation and felt you could no longer provide adequate care. Your partner has since been the sole carer of the children and there have been continuing Family Court proceedings on the issue of custody arrangements.
24 At the latter part of your relationship with the children's father, you summoned the courage to acknowledge your homosexuality and you have had several close relationships with female partners and hope to continue with your present partner upon your eventual release from prison.
25 Since the age of 11 or 12 you have developed a disturbing history of poly-substance abuse and this issue very much underlies the current offending.
26 You began using cannabis regularly from age 12, drinking alcohol at 13, began using speed at 14 with increasing weekly use before moving to heroin. At 18 you were using heroin daily. You attempted detoxification, your use became irregular until you undertook a methadone program at about 20. You spent five years on methadone, changing then to Suboxone. At 25 you began using ice and this use has been fairly consistent to 2012.
27
You were prescribed Xanax and Valium following an incident of rape which occurred some years ago and you have become quite dependent on these medications, requiring heavy dosages to experience the same effect. At the time of offending you report consuming 10 to 15 Xanax tablets per day and this being your pattern of use for the preceding year, together with regular use of ice.
28 You have been hospitalised for your mental state on various occasions, twice at Shepparton for a manic attack and depression three years ago, at Epping following an attempted suicide approximately 18 months ago, and at Broadmeadows for attempted suicide around nine months ago. Within that period, you were the victim of the rape attack.
29 The medical reports tendered are in conflict as to the precise nature of your mental illness. The psychologist Pamela Matthews considers that a diagnosis of bipolar disorder together with personality disorder and post-traumatic stress disorder is appropriate to your condition, whilst the psychiatrist Dr Jager disputes this diagnosis and provides the alternative diagnosis of borderline personality disorder. Moreover, Dr Jager considers that any psychiatric medication would have little effect and that dialetic behaviour therapy is the treatment of choice with a sole therapist.
30 Two general practitioners have included diagnoses of both bipolar and borderline personality disorder as well as post-traumatic stress disorder and substance use disorder.
31 Whatever the precise diagnosis may be, I accept that you have a combination of factors, either underlying or coexisting with your polysubstance abuse, that has resulted in you having significant mental health problems. I also accept that your mental state is fragile and, together with your substance use, had a destabilising effect and impacted on your ability to make rational decisions and contributed to your offending.
32 The offending, however, is very serious. Armed robbery is a cause of great terror and the production of a weapon has the potential to have dangerous consequences, albeit originally unintended. These acts against soft targets for the purposes of obtaining drugs or money to buy drugs are to be strenuously discouraged. The principles of general as well as specific deterrence are paramount. Furthermore, you have offended in a similar manner before. You have an earlier appearance in this court in 2009 when you received a wholly suspended sentence of 12 months' imprisonment for attempted armed robbery. You completed that sentence without breach.
33 In the instance of the victim who provided a victim impact statement, you gave the implication that her children might come to harm. The incident has affected her personal and professional life, resulting in her becoming hyper-vigilant and anxious.
34 In mitigation, I accept that you pleaded guilty and at an early stage, being committal mention. You have expressed genuine remorse, including letters of apology to your victims, and have also reflected and apologised to your family. You have had a long-term substance abuse addiction coexisting with mental health problems which have compromised your well-intended attempts at rehabilitation.
35 You were able to manage employment for many years and have had the added anxieties of being estranged from your children and dealing with Family Court confrontations. You have made a rational and commendable reconciliation with your mother and you have her continuing support.
36 It is also apparent from the materials tendered before me that you have shown courage and commendable maturity in accepting the reality of your position following arrest - you did not seek bail, but instead accepted the greater supervision you could receive in custody and applied yourself to rehabilitation. I accept that you have been sincere in your attempts to change your life.
37 For all these reasons, I have moderated what otherwise would have been a much longer sentence reflecting these very serious crimes. In several months' time you will be eligible for parole and if granted you will be well advised to utilise every opportunity you will have under that supervision to build on the changes you have already made.
38 I make only one further comment. You are and will remain psychologically vulnerable and it is apparent from the medical reports that there is professional conflict as to the base probable cause of your inner conflict. You will need to continue with close and regular professional support immediately following your release.
39 Ms Abela, would you please now stand?
40 On each of Charges 1 and 2 of armed robbery, you are convicted and sentenced to 12 months' imprisonment.
41 Charge 1 is the base sentence. I direct that six months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
42 The total effective sentence is 18 months' imprisonment.
43 I direct that you serve a minimum period of nine months' imprisonment before being eligible for parole.
44 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 157 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
45 Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is two and a half years' imprisonment with a minimum period of one and a half years to be served before eligibility for parole.
46 At the plea hearing, the Crown sought an order for the taking of a forensic sample of a scraping from the mouth and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, your prior conviction is such as to warrant the making of the order, the order is by consent and the making of the order is in the public interest.
47 I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Ms Abela?
48 OFFENDER: Yes.
49 HIS HONOUR: Thank you, you may be seated. Any other matters from counsel?
50 MR NANKIN: No, Your Honour.
51 MR NEWTON: No, Your Honour.
52 HIS HONOUR: Thank you.
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