Director of Public Prosecutions v Austin

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT SHEPPARTON
CRIMINAL JURISDICTION
CR 18-01784

DIRECTOR OF PUBLIC PROSECUTIONS

GRAEME JOCK AUSTIN
(ALSO KNOWN AS RHIANNAN AUSTIN)

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Shepparton
DATE OF HEARING:	22 October 2018
DATE OF SENTENCE:	8 November 2018
CASE MAY BE CITED AS:	DPP v Austin
MEDIUM NEUTRAL CITATION:	[2018] VCC 1849

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Theft – Aggravated burglary – Obtain property by deception – Obtain financial advantage by deception – Burglary – Attempt to commit an indictable offence – Carjacking – Handling stolen goods – Guilty plea
Legislation Cited: Crimes Act 1958 (Vic), Summary Offences Act 1966 (Vic), Road Safety Act 1986 (Vic), Bail Act 1977 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: The Queen v Steelie Morgan [2010] VSCA 14, The Queen v Mangelen (2009) 23 VR 692
Sentence: Total effective sentence of 4 years imprisonment with a non-parole period of 2 years and 3 months
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Roper	OPP
For the Accused	Ms J Prior	Law and Advocacy Centre for Women

HIS HONOUR:

Introduction

Rhiannon Austin, you have pleaded guilty to the following charges:
· Twenty five charges of theft contrary to s 74(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment;
· Four charges of aggravated burglary contrary to s 77 of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment;
· Ten charges of obtaining property by deception contrary to s 81(1) of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment;
· Two charges of obtaining financial advantage by deception contrary to s 82(2) of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment;
· Three charges of burglary contrary to s 76 of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment;
· One charge of attempt to commit an indictable offence contrary to s 321M of the Crimes Act 1958 which carries a maximum penalty of 5 years imprisonment;
· One charge of carjacking contrary to s 79 of the Crimes Act 1958 which carries a maximum penalty of 15 years imprisonment; and
· One charge of handling stolen goods contrary to s 88 of the Crimes Act 1958 which carries a maximum penalty of 15 years imprisonment.
You have also pleaded guilty to seven related summary charges:
· Charges 15 and 54 - unlawful assault contrary to s 23 of the Summary Offences Act 1966, which carries a maximum penalty of 3 months imprisonment or 15 penalty units;
· Charge 26 - unlawful assault by kicking contrary to s 23 of the Summary Offences Act 1966, which carries a maximum penalty of 2 years imprisonment;
· Charge 30 - failing to stop vehicle on police request contrary to s 64A of the Road Safety Act 1986 which carries a maximum penalty of 6 months imprisonment or 60 penalty units;
· Charge 31 - failing to stop a vehicle after an accident contrary to s 61(1)(a) of the Road Safety Act 1986 which carries a maximum penalty of 14 days imprisonment or 5 penalty units;
· Charge 51 - committing an offence whilst on bail contrary to s 30B of the Bail Act 1977 which carries a maximum penalty of 3 months imprisonment or 30 penalty units; and
· Charge 52 - contravening bail conditions contrary to s 30A(1) of the Bail Act 1977 which carries a maximum penalty of 3 months imprisonment or 30 penalty units.
You have also admitted your prior criminal record.

Circumstances of the offending

A detailed Summary of Prosecution Opening was exhibited and read on the plea, and will be attached to these sentencing reasons. As there were 47 charges on the indictment I will not endeavour to summarise the charges in any detail in these sentencing remarks.
But for charge 1, the indictment represents a litany of offending that occurred in January and February 2018. Charge 1 being a charge of theft, occurred in October 2017 and was essentially a shop theft. The remaining charges on the indictment are largely dishonesty matters where you stole or obtained money or financial advantage in order to fuel an ongoing drug addiction.
The indictment contains some very serious charges. There are four charges of aggravated burglary (charges 2, 41, 43 and 45) where a person was present when you entered premises in order to steal. The indictment also contains one charge of carjacking (charge 32) where you, together with two co-offenders got into the victim's car and threatened him before driving off.

Objective seriousness of the offending

As noted above, you have pleaded guilty to four charges of aggravated burglary. Aggravated burglary is by its nature a serious charge as it carries a maximum penalty of 25 years imprisonment. In each instance the charge is particularised on the basis that you entered in order to steal and knew or were reckless to the fact that a person was present.
In relation to charge 2 you entered premises in the evening while residents of that home were asleep. Once in the house you stole a wallet containing cards and cash. The owner of that house was in her bedroom asleep with her two young children. Upon leaving that property one of your co-offenders stole the victim's car.
In relation to charge 41 you entered the victim's house in the evening while the victim and her husband were asleep. Once inside the house you stole personal items including a laptop computer and cash.
In relation to charge 43 you entered a home late in the evening however the owner was awake and watching television. Having heard the sound of someone at the rear of the house the victim observed you in his kitchen area. He escorted you from the house and observed that you had his watch in your left hand which had been in one of the bedrooms of the house.
In relation to charge 45 you entered a house at approximately 10 am in the morning when the owner and his elderly father were present. The owner runs a medical massage therapy business from his home. You entered the house and took car keys and a wallet. Having left the premises you drove away in the victim's car.
In each instance you were reckless as to who may be in the house once you decided to enter. While I accept what you said during the plea, that is, that you did not intend to hurt anyone in relation to the aggravated burglary offences, the fact is that these crimes can be very traumatic for the victims involved. People are entitled to feel secure and safe in the privacy of their own homes. You invaded that privacy and stole from them.
The charge of carjacking is also a serious charge as represented by the maximum penalty of 15 years imprisonment. In this instance you approached a person who was simply sitting at the traffic lights and demanded that he get out of his car once you had got in with two co-offenders. He pleaded with you but you threatened him, ultimately driving away with his car with you in the driver's seat. Later the same day when you were requested by police to stop the car, you ignored that request and drove away grazing the front of a police car. There can be no doubt that the victim in this instance would have been shocked and frightened when you and two co-offenders entered his car.
In relation to the three burglary charges, they are all instances where you entered private areas of stores and stole personal items belonging to staff. While these charges may not be considered as high end burglaries, they were brazen crimes which, together with the associated dishonesty charges, still amount to serious offending that inevitably caused stress and inconvenience to the owners of the property.
The remaining theft charges that are not related to the burglaries and aggravated burglaries are largely low level shop theft type of offending. Nonetheless this is persistent offending with no regard to the persons who suffered the loss. The deception charges are also of a similar nature.
As noted above, the indictment charges and the related summary charges represent a succession of offending over a short period of time and when viewed in totality can only be assessed as serious offending.

Victim impact statements

Four victim impact statements were tendered on the plea from David Moysey, Colin Moysey, Gregory Dunstan and Margi Fimmel.
David Moysey and his elderly father Colin Moysey were the victims of the aggravated burglary and theft represented by charges 45 and 46. David Moysey speaks of the anxiety and fear he now experiences and how he feels unsafe in his own home. He has trouble sleeping and often gets up in order to check the locks. Colin Moysey says that he felt violated and angry that someone felt they had the right to do this to him. He too feels unsafe in his own home.
Margi Fimmel was the victim of the aggravated burglary and theft represented by charges 41 and 42. She states that after the invasion in her home she became fearful and her sleep has been adversely affected. She has moved to a new address where there is 24-hour security, however she remains vigilant by continuing to check that the doors and windows are locked. She also notes the very real inconvenience, expense and stress that is caused by having to replace items that were stolen.
Gregory Dunstan was the victim of the aggravated burglary and theft represented by charges 43 and 44. He notes that although he recovered the property that was stolen, he states that ‘to confront a person who has illegally entered your home and who is considerably larger than you is daunting. Together with not knowing whether they are armed and/or violent puts you in a very stressful condition’. He also does not feel safe in his own home and his other family members now also feel insecure.

Personal circumstances

You are now 26 years of age. You were born in Melbourne and raised on the Cumeroogunga Aboriginal Mission which is in New South Wales near the border at Echuca. You have five brothers and two sisters some which have different fathers. Your parents were never together from your memory and you report no meaningful contact with your father. Your mother has struggled with substance abuse, particularly heroin addiction, for as long as you can recall and as such, when you were younger you often had to take on the role of caring for your siblings. You did have a close relationship with one of your half-brothers who is a similar age to you but this relationship has deteriorated because he now suffers drug induced psychosis.
You were raised by your maternal grandmother and although you had a good relationship with her she too had difficulties with alcohol and would often forget about you when she had been drinking. You lived amongst a large number of children on the aboriginal mission, many of whom were cousins. It was in this context that you fell victim to repeated acts of sexual abuse by older men in the community. This abuse commenced when you were about the age of 10 and continued for a few years on a regular basis. You also reported that you were raped at the age of 13 while in Shepparton.
At the age of 15 you left the community and came to Melbourne however you were essentially homeless. You met a tribal woman who became a substitute grandmother for you and gave you support. Since this time however you have rarely spent time back with your community.
You attended Moama Public School, Echuca Secondary College and Northland Secondary College where you completed years 7 to 9. You stated to your psychologist that you would often get into fights at school and received detentions and suspensions. Following school you attended TAFE where you completed courses in aboriginal art, hairdressing and hospitality.
You worked on the streets as a sex worker from the ages of 17 to 19. In this environment you were assaulted many times particularly when male customers discovered that you were transgender.
You have had a difficult battle with drugs commencing about the age of 10 when you began smoking cannabis with your cousins. Upon realising that the heavy use of marijuana was affecting you significantly, you completed a community residential drug withdrawal program at about the age of 18 and have not used cannabis since.
From the ages of 8 to 10 you were involved in inhalation of petrol fumes while at the same time you were drinking alcohol. From ages 15 to 19 you were drinking two casks of alcohol a day. At about the age of 20 you were introduced to methamphetamines by one of your aunts, initially smoking the drug and then moving to injecting it after some months. Ultimately your drug use led to you committing property offences in order to support your habit. You also intermittently used benzodiazepines. You have suffered two heroin overdoses. On one of those occasions you were taken to the Austin Hospital.
Your relationship history has been marred by domestic violence and drug use. However you are currently in a relationship with a man who is aged 37 whom you met in custody. He is currently in custody serving a sentence at another prison.
You have an extensive criminal history that began in 2010 which is largely dishonesty offending related to your drug use. You have had many dispositions including community based dispositions and periods in custody.
Two current psychological reports were tendered from Warren Simmons, psychologist and Gina Cidoni, consultant psychologist. A historical report was also tendered, prepared by Warren Simmons. I have read those reports and taken the contents into account.
Ms Cidoni employed psychological testing and as a result found that you had a borderline intellectual capacity. Your full-scale IQ was 73. Ms Cidoni states that at that level you are compromised in judgement and decision-making skills. She also found as a result of the testing that your personality function is disturbed and distressed where findings showed evidence of significant psychological and personality disturbance.
Mr Simmons is of the opinion that you meet the criteria for substance use disorder while noting the substance indicated on each occasion has varied from alcohol, methamphetamines and heroin. He is also of the view that there is evidence of post-traumatic stress disorder related to your past sexual abuse as a child and as an adult.
Unsurprisingly both Ms Cidoni and Mr Simmons recognise that you would benefit from drug and alcohol counselling and treatment, preferably residential. Mr Simmons is also of the view that you would benefit from counselling to address your past sexual abuse.
A letter was tendered from the Law and Advocacy Centre for Women prepared by Raphaella Lawrie a case manager with that service. She provides a further detailed history of your difficult background. Ms Lawrie concisely explains your status in your community as follows:
Ms Austin is a 26-year-old proud Yorta Yorta Sistergirl. The term Sistergirl identifies Aboriginal and Torres Strait Islander people who were assigned male at birth and have a distinct cultural identity and often take on female roles in the community. The term Sistergirl differs from the term transgender as the term also includes broader definitions of gender including spirituality and cultural identity
She notes in her letter the significant difficulties you have suffered as a result of the discrimination you have been subjected to because of identification as transgender. She also points out the difficulties this has caused in relation to engaging with drug and alcohol services.
Ms Lawrie documents your ongoing challenges and discrimination whilst in custody. You have suffered physical and sexual abuse including rape whilst in custody and as such you have been moved from Port Phillip Prison to Hopkins Correctional Centre for your safety. Unfortunately this has meant that you are further away from your family.
A letter was tendered from Jesuit Social Services prepared by Tekla Kirby, a project worker with that service. Ms Kirby states that you had voluntarily engaged in the Reconnect Program since September 2016, however the support has been broken up by periods of incarceration. She notes that despite this you have demonstrated insight into the issues impacting your life as well as the impact that your offending has had on the community and your family. She notes that six weeks prior to your release in relation to these offences you will be referred to the program again and be eligible to receive support from that service for a further six months.

Sentencing considerations

Mr Roper who appeared on behalf of the Director of Public Prosecutions highlighted the matters that the court must take into account in this instance including the principles of general deterrence, specific deterrence, protection of the community, together with consideration of the maximum penalties that are imposed in relation to these offences. Mr Roper however acknowledged that you do face hardship in custody. As to your prospects of rehabilitation, Mr Roper submitted that given your history, your prospects of rehabilitation are guarded. He submitted that a head sentence with a parole period is the only appropriate penalty.
Ms Prior who appeared on your behalf, in her written submissions sensibly accepted that the court must in this instance take into account principles of specific and general deterrence, denunciation, rehabilitation and protection of the community. However, Ms Prior also submitted that the court should give paramount consideration to your rehabilitation particularly given your background of Aboriginality, trauma, family and sexual violence, gender identity and addiction.
When consideration is given to the well prepared material that was submitted on your behalf, it is abundantly clear that you have suffered severe disadvantage and trauma throughout your life. That disadvantage and discrimination has continued during your various terms of imprisonment.
In addition to the reports and letters that I referred to above that are specific to you, Ms Prior also provided a number of articles in relation to the difficulties transgender prisoners face in Australia. I have read these articles and taken into account the fact that you face additional burdens in custody and in the criminal justice system generally as a result of your identification as transgender.
Ms Prior submitted that there are prospects of rehabilitation despite your difficult history. She submits and I accept, that many of the difficult issues in your past including your drug addiction, have not been adequately addressed. That said, you have been given numerous opportunities to engage in rehabilitation programs that have been interrupted by further offending. Nonetheless, Ms Prior submits that there are indicators that suggest you have reasonable prospects of rehabilitation such as your early plea of guilty which is indicative of remorse and the fact that you have engaged with services in the past such as Jesuit Social Services.
As to your plea of guilty I accept that it is an early plea and given the amount of charges on the indictment has had a significant benefit in that it has saved the court time and expense and most particularly has saved the victims having to give evidence and relive the events.
Having seen you and spoken with you in the ‘sentencing conversation’ as part of the Koori Court process, I accept that you have demonstrated genuine remorse for your actions. However as you stated at the sentencing conversation, in your view your offences are not aimed at hurting anyone but effectively are for the purposes of obtaining funds to feed your drug addiction. While that may be true, property offences and particularly the offences that involve confrontation with victims are very traumatic for those victims and have ongoing psychological impact as is evidenced by the victim impact statements. Thus while I accept that you are genuinely remorseful for your actions, your insight is clouded by the fact that you do not have an appreciation of the effect your crimes have had on the victims involved.

As noted in the various reports and letters, you would benefit from a residential rehabilitation program. In fact that was what was anticipated when you were released from custody at the end of 2017. However on arrival at Odyssey House it was determined that you required a period of detoxification prior to admission. As such you were placed at your mother's house for three nights and unfortunately relapsed into drug use and the bulk of the offences on this indictment were then committed.
In all the circumstances in my view your prospects of rehabilitation cannot be viewed as positive unless and until you cease using drugs and once clean are able to address some of the core issues that have led you to your drug use. That said, in my view despite your many hurdles, you do have some appreciation of the need to rid yourself of the addiction that drives your offending behaviour. You are also at 26, still a relatively young person.
As noted above, I take into account the fact that you will face additional hardship in prison taking into account the impact of your aboriginality together with the protective concerns as a transgender woman. As noted in one of the articles provided, your protective status has impacts that traverse both gender and race identity. I acknowledge also that you have since being in custody, reported both physical and sexual abuse which has resulted in your transfer to Ararat Prison. That of course has ongoing impact in relation to proximity to family and legal representation.
I acknowledge your participation in the Koori Court process. The Court of Appeal has recognised that the ‘sentencing conversation’ in the Koori Court is designed to ‘further the reformation of an Aboriginal offender.’[1] Participation in the process is not easy. It is confronting to sit face to face with the respected elders of your community and your participation in the process is a factor that is relevant to sentencing which I have taken into account.
[1]The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
Finally I take into account the principle of totality in light of the fact that there are 47 charges on the indictment together with summary offences. The principle requires the court to consider the total criminality involved in all of the offences for which you are to be sentenced. This requires an evaluation of the overall criminality involved in all of the offences so as to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences which I impose.[2]
[2]The Queen v Mangelen (2009) 23 VR 692 at [28]-[29].

Sentence

Ms Austin please stand.
Rhiannon Austin, on charges 2, 41, 43 and 45, the charges of aggravated burglary, you are convicted and sentenced to 2 years imprisonment on each charge.
On charge 32, carjacking, you are convicted and sentenced to 18 months imprisonment.
On charges 19, 23 and 35, burglary, you are convicted and sentenced to
12 months imprisonment on each charge.
On charges 1, 3, 7, 8, 9, 13, 14, 15, 16, 17, 18, 20, 24, 25, 26, 27, 28, 33, 34, 36, 37, 40, 42, 44 and 46, the charges of theft, you are convicted and sentenced to 6 months imprisonment on each charge.
On charges 4, 6, 10, 11, 12, 21, 22, 30, 38 and 39, obtaining property by deception, you are convicted and sentenced to 6 months imprisonment on each charge.
On charges 5 and 29, obtaining financial advantage by deception, you are convicted and sentenced to 6 months imprisonment on each charge.
On charge 47, handling stolen goods, you are convicted and sentenced to 6 months imprisonment.
On charge 31, attempt to commit an indictable offence, you are convicted and sentenced to 3 months imprisonment.
In relation to summary charges 15, 51, 52, 54, 26 and 30, you are convicted and sentenced to 1 month imprisonment on each charge.
In relation to summary charge 31, you will be convicted and discharged.
I direct that 6 months of the sentence on charges 41, 43 and 45, 3 months of the sentence on charge 32 and 1 month of the sentence on charges 19, 23 and 25 be cumulative on each other and on charge 2 (the base sentence). That makes for a total effective sentence of 4 years imprisonment.
The sentences on the remaining charges on the indictment and the sentences on the summary charges are to be served concurrently on the other sentences I have imposed. I direct that you serve 2 years and 3 months imprisonment before becoming eligible for parole.
In relation to summary charge 30, the charge pursuant to s 64 of the Roads Safety Act 1986 any driver’s licence you hold will be cancelled and you will be disqualified from obtaining a licence for a period of 6 months.
In relation to the charges of theft of a motor vehicle (charges 3, 28 and 46) pursuant to s 89(4) of the Sentencing Act 1991 any driver’s licence you hold will be cancelled and you will be disqualified from obtaining a licence for a period of 12 months.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 262 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months imprisonment.

[2018] VCC 1849

8 November 2018