Director of Public Prosecutions v Bethell

[2013] VCC 1963

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00768

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHELLE BETHELL

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2013
DATE OF SENTENCE:	5 December 2013
CASE MAY BE CITED AS:	DPP v  Bethell
MEDIUM NEUTRAL CITATION:	[2013] VCC 1963

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P O'Halloran
For the Accused	Mr J Gullaci

HIS HONOUR: 

1You have pleaded guilty to an offence of armed robbery which took place on the 31 August 2010.  The maximum term of imprisonment for armed robbery is imprisonment for 25 years so it is a very serious offence.  You have also admitted past court appearances and convictions.

2The prosecution has tendered and relied upon a document entitled "Prosecution opening upon plea", which is Exhibit "A" on the plea hearing.  It was read this morning.  I do not propose to read it again.   Suffice to say that it indicates that you carried out a pre-meditated armed robbery using a syringe which was designed to give the impression that it contained blood to threaten the pharmacist at The Pines Forest Pharmacy in Mahogany Avenue, Frankston North.

3It would have been a frightening experience for the pharmacist or any other member of staff who was present and witnessed what took place.  It was successful in that you were able sufficiently to terrorise the pharmacist into handing over a quantity of drugs.  By "terrorise" I mean that you pointed the syringe at the victim and said, "I'll have everything.", with a view to frightening the victim into conceding to your demands because the victim would have feared that she would have been stabbed by the syringe containing what the victim was intended to believe was blood.   It is in that sense that I use the expression "terrorised".

4It was pre-meditated although, as your counsel rightly points out it was an amateurish offence.  Nevertheless, it's a serious offence and persons in the position of the pharmacist and other staff members in similar venues are entitled to a measure of protection from the courts in the way in which the court approach sentencing in cases like this.

5Turning to matters personal to you your counsel helpfully provided me with a brief outline of submissions.   I propose to mark that Exhibit 3.  I am not going to go through that in detail.  It typically is a well-drawn document from Mr Gullaci, who has given thought to the important matters that should be put on your behalf in the plea.  In particular he notes that you have pleaded guilty and that you were originally charged on the 29 January of 2013, the offence having occurred as I have indicated in August of 2010.

6The plea was entered at the committal mention and is to be treated as an early plea.  There was no contest at the committal and you are entitled to the utilitarian benefit of your plea of guilty.  That means saving the court and the State the inconvenience and cost of the trial and the victims the inconvenience and the trauma of having to come to court and give evidence about matters that they would prefer to forget.

7You admitted the offence to the police upon your arrest and that too is to your credit.  It is consistent, I think, with a degree of remorse and indeed, I note that you confessed your participation in this offence in December of 2011 to a former friend of yours.

8It is true that you have prior convictions but none of those are for offences of violence or robbery or armed robbery and this offence, clearly, is a very significantly more serious offence than any others that you have committed in the past.

9It seems to me that there is some evidence of remorse and I am prepared to accept, as your counsel submits, that you do have a measure of remorse for your offending conduct.

10Very significantly though, there has been a delay of significant proportions - three years and three or four months since the offence was committed.   The matter has been hanging over your head for that time and would have been nagging at you in the back of your mind and, to a certain extent, that is punishment. 

11It seems that you have not committed any other offences since.  That too has been a benefit in the sense that it has demonstrated that you are capable of holding yourself together and leading an honest life.   That you have been able to do that in the intervening period is to your credit and you are able to pray in aid that period of rehabilitation which you have undertaken on your own behalf.

12There are no other matters outstanding, as I understand it.   Therefore it seems to me that your prospects of rehabilitation are reasonably good.  I say reasonably good because I have also been provided by your counsel with Exhibit 1, which consist of reports from respectively Mr Warren Simmonds dated the 7 June of 2013 and Ms Monteith, dated the 18 September 2013, together with a letter from Dr Hayne of the Aspendale Clinic as to your physical condition.

13The two psychological reports, together, paint a picture of a person who has a number of mental impairments, intellectual deficiencies - no doubt, significantly, exacerbated if not caused by a long history of substance abuse going back to when you were 12 years of age.

14You are now 50 years of age and that long history of substance abuse will have taken its toll upon you as to your physical and your mental health and, indeed, your intellectual capacity.  All of those are factors which will have borne upon your ability to exercise good judgment in deciding "yeah or nay" whether to participate in this offence.

15You have also suffered some very significant physical injuries as a result of various traumas to your head over the years and 12 years ago to your hip and back as a result of a fall which - the after-effects of which, I think, may be said to have blighted your life very significantly since that time.   It is in that context, it seems that you were seeking out further pain-killing medication, in particular, when you went to the pharmacy on that particular day.

16That does not excuse your conduct but it does give a context to your conduct and distinguishes you from a person who goes out purely for financial gain and carries out a robbery on a soft target.

17The net effect of these reports, I think is that they do engage the Verdins principles - which require me to reduce the moral culpability which I attribute to your offending conduct, the extent to which general deterrence is to be taken into account in assessing an appropriate punishment and, indeed, the extent to which the court denounces your conduct.

18It impacts on your ability to cope with a term of imprisonment which otherwise would have been called for in a case of armed robbery upon a soft target such as the victim in this particular case.

19And I think it is likely that serving a term of imprisonment would significantly exacerbate your mental and psychological impairments and for those reasons, it seems to me, that one has to look for an alternative, if at all possible, to a term of imprisonment.

20The prosecution have very fairly conceded that a community correction order is within the available range of sentences that I can consider in these circumstances and it was for that reason and also because of the various matters that your counsel has put on your behalf that I sought a suitability report for such an order.

21The report, I think, I can fairly describe as being somewhat guarded in recommending the order.  You have in the past, successfully completed one community based order and you have breached another.  The precise way in which you breached is not entirely clear but nevertheless you did not complete that order in 2006 satisfactorily it seems.

22So, although, there are reservations expressed in the report which arise in no small measure from your various health issues the report does recommend you as being suitable for an order. 

23Obviously, as your counsel pointed out and as I alerted the Corrections Officer to in my request for assessment, your health issues could well impact on your ability to carry out unpaid community work.  I did consider whether I should make an order without such a requirement but it seems to me that this being such a serious offence and one where I still have a duty to take into account general deterrence and denunciation and, also, I think specific deterrence, that is deterring you from resorting to tactics of that kind, if you find yourself in a situation where you are tempted to take a short cut in terms of relieving your desire for further pain medication.

24I am satisfied that you are capable of completing community work, as recommended by the community corrections officer, subject to medical clearance being obtained where it is thought necessary for that to occur.

25The order that I have in mind and the order which you have indicated a willingness to consent to also has conditions which would require you to submit to assessment and treatment in relation to drug and alcohol rehabilitation, it would require you to submit to supervision and it would require you to submit to medical assessment and mental assessment and treatment as directed.

26The Community Corrections order that I have in mind in imposing will have a number of mandatory conditions attached to it.  Firstly, you must not commit another offence for which you could be imprisoned during the period of the order and I am intending to impose an order for a period of two years.

27If you do you will not only be subject to punishment for that offence but you would also be subject to the risk of up to three months' imprisonment for the breach of the Community Correction order and you would be the subject to the risk of being sent to prison for this offence because the court would have power to re-sentence you.

28You must comply with any obligation or requirement under the sentencing regulations which will be explained to you. 

29You must report to and receive visits from the Secretary of the Department of Corrections or his or her delegate. 

30You must report to the Community Corrections Centre at Frankston within two clear working days, which will mean by 4.00 p.m. on Monday the 9 December of this year.

31You must let a Community Corrections Officer know within two clear working days of you changing your address or your job.  I know you do not have a job at the present time but nevertheless you must keep them posted as to any changes in your circumstances in that regard.

32You must not leave Victoria, without first getting permission to do so from the Secretary of the Department of Corrections or his or her delegate.  You must obey all lawful instructions from and directions of the Secretary or his or her delegate.

33Then, in addition, you must perform 100 hours of unpaid community work during the period of two years, during which the order will run, as directed, by the Regional Manager.  If you fail to comply with that order the Secretary of the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work.

34You must be under the supervision of the Community Corrections officer for a period of one year.  You must undergo assessment and treatment, including testing for drug abuse and dependency as directed by the Regional Manager.  You must undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the Regional Manager.  You must undergo medical assessment and treatment, including but not limited to general or specialised medical treatment or treatment in a hospital or residential facility as directed by the Regional Manager.  You must undergo mental health assessment and treatment, including but not limited to, mental health, psychological and neuro-psychological and psychiatric in a hospital or residential facility as directed by the regional manager.

35Now, in short, there is a fair bit that you are going to have to think about in complying with this order.  I accept that it will not necessarily be easy.  I also suspect that you would prefer it to a term of imprisonment which is really the only other realistic alternative for a sentencing court for offences of this nature.

36It will be very much in your hands as to whether you avoid, ultimately, a term of imprisonment for this offence.  It will not happen if you comply with the terms of this order.  If you do not then you run the risks that I have already indicated to you.

37Now, I cannot impose that order unless you do consent.  Do you consent to be placed on the order that I have just outlined to you?

38OFFENDER:  Yes.

39HIS HONOUR:  Yes.  All right.  Well, I will make the order in those terms which will run from today's date and will expire on the 4 December of 2015. 

40It will be necessary for you to review and sign the order and in just a moment I will give your counsel an opportunity of approaching you and ensuring you understand what you are signing.  I am also asked to make an order for you to provide a forensic sample by a scraping from your mouth or a blood sample.  That will require you to undergo a procedure which will, in the first instance, be a request for you to provide a scraping from the inside of your mouth and you must report to the officer in charge of the Frankston Police Station, 15 Fletcher Road, Frankston for that purpose.  And the order which I have signed does set out the timeframe which you should go about that.  I suggest that you do it sooner rather than later.

41I must tell you though that when you are requested by the authorised member of the police force to provide a scraping from the inside of your mouth, if you do so all well and good.  If you fail to do so, or refuse to do so the officer will be authorised to take a blood sample from you and may use reasonable force to obtain that sample.  I am quite sure you will not put them to that trouble.

42I make that order and I have signed the copies in triplicate and I provide that.  I now ask you, Mr Gullaci, to accompany Mr Travers to ensure that your client understand what she is signing.

43MR GULLACI:  Yes, Your Honour.

44HIS HONOUR:  Yes, thank you.  But for your plea of guilty to this matter, I would have sentenced you to a term of imprisonment of two years with a non-parole period of 15 months.

45MR GULLACI:  If Your Honour pleases.

46HIS HONOUR:  Yes, well I have countersigned the order and that order is now in effect.

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