Director of Public Prosecutions v Bills

[2019] VCC 98

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02162

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARMYN BILLS

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 February 2019
CASE MAY BE CITED AS:	DPP v Bills
MEDIUM NEUTRAL CITATION:	[2019] VCC 98

REASONS FOR SENTENCE
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Subject:  Assist offender
Catchwords:  
Legislation Cited: s.5 and s. 8 Sentencing Act 1991

Cases Cited:DPP v Anastasiadis [2018] VCC 1397 ; DPP v McIntosh [2017] VCC 1599

Sentence:Without conviction, Community Corrections Order for 16 months with 100 hours of community work

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. R. Khan (Plea) Mr E. Dober (Sentence)
For the Accused	Mr S. Tovey

HER HONOUR:  

1Carmyn Bills, you have pleaded guilty on indictment to one charge of assist offender, which relates to the assistance you provided to your then partner, Taylar Rough, after he had committed two armed robberies.  Your offending occurred between the dates of 17 May 2018 and 30 May 2018, a period of some 13 days.

2The offence of assist offender carries a maximum penalty of five years' imprisonment, reflective of the seriousness with which Parliament regards this offence. 

3The circumstances of your offending are set out in a document entitled, "Agreed Summary of Prosecution Opening" dated 21 December 2018.  Whilst there was some argument about the particulars of the charge against you, it is otherwise an agreed document and, the acts attributed to you in it, are accepted to have occurred.

4In short compass, your then partner of some eight years, Taylar Rough committed two serious armed robberies with 17 year old Jake Giorgio.  The first armed robbery was at a McDonald's restaurant on 26 November 2017 and the second was at a Premix King Bottle Shop on 23 December 2017.  Mr Rough was sentenced by me on 25 January 2019 in relation to those two armed robberies and on one charge of theft, to a total effective sentence of four years and six months' imprisonment, with a minimum of two years and ten months before being eligible for parole.

5The circumstances of his offending have been clearly set out in the same Crown opening document, dated 21 December 2018 and in my sentencing remarks, as they relate to Mr Rough.  Subsequent to the armed robberies having been committed, a listening device was placed by police into the home that you shared with Mr Rough at an address in Newport.  On 17 May 2018, police attended at that address and made enquiries of you, as to the whereabouts of your Toyota Corolla on the night of the armed robberies.  You told police, in the presence of Mr Rough, that you were the primary driver of the vehicle at the relevant time.

6Police left your premises and the conversation which then took place between you and Mr Rough was recorded by the listening device.  In that conversation, you stated to Mr Rough that you each needed to make sure there was no evidence at the property, that Mr Rough should delete everything on his phone and that he should put a bag of shoes and clothing in the car of a person called Thomas Betts-McGrath.  That same night, Mr Betts-McGrath attended at your premises and Mr Rough told him that the police had attended earlier that day.

7You and Mr Rough asked Mr Betts-McGrath if you could place some items in his vehicle.  Mr Betts-McGrath then agreed that he and Mr Rough's younger brother, River, would take the bag and dispose of it.  Mr River Rough arrived shortly thereafter and you discussed the police attending earlier, what had been told to the police and the need to dispose of the bag containing shoes and clothing.  Mr Betts-McGrath and Mr River Rough did dispose of the items as requested.  These items were subsequently recovered by police. 

8On 19 May 2018, the listening device recorded you and Taylar Rough discussing that, as you were in Queensland at the time of the Premix King armed robbery, that you should tell police that there was only one set of keys to the Toyota Corolla and that they were with you in Queensland at the relevant time.  I have had access to the transcripts of all of these recordings.  You were arrested on 30 May 2018 and told police, as per your discussion with Mr Rough, that there was only one key to the Toyota Corolla.  In fact, there were two sets of keys.

9Through your plea, you admitted all the elements of the charge of assist offender.  One of those elements require the Crown to prove that you performed a positive act, after the completion of the principal offence, that principal offence being the armed robberies.  Prompted by a question from me as to the particulars of the assistance you provided, there was argument about which of your actions, with the relevant knowledge of the armed robberies having been committed by Mr Rough, were a positive act. 

10The Crown then particularised the charge against you of assist offender in the following way:

1.That you told police that you were the primary driver of the car and that you were so in November and December of 2017, at the time of the armed robberies committed by Mr Rough;

2.That you told police there was only one set of keys to the Toyota Corolla;

3.That you told police that you had no knowledge of the armed robberies;

4.That you advised Mr Rough to dispose of certain items and destroy evidence on his phone, as per paragraphs 31 and 33 of the Crown opening; and

5.That you were involved in the plan to destroy evidence, specifically items dumped from Warmies Boat Ramp, Williamstown by Mr River Rough and Mr Betts-McGrath.

11The Crown puts that particulars 1, 3 and 4 assisted both armed robberies, whereas items 2 and 5 assisted the Premix King armed robbery.  I note that the Toyota Corolla was only used in the armed robbery of Premix King.  Your counsel concedes the assistance you provided relates to both armed robberies but have taken issue with items 1 and 3 on the basis that they are not positive acts.  I have received written submissions from both parties on this issue, which were not orally expanded upon.  I have had recourse to these submissions.

12The term, "positive acts", is not defined and there is little authority providing any strict definition.  It is a term which covers a diverse range of acts.  It is not a requirement that any such act actually assisted the principal offender. 

13Having considered the submissions provided carefully, and where I am asked to decide, I am satisfied that item 1 is a positive act, in that you told police that you were the primary driver of the car and were so in November and December of 2017, the time of the armed robberies committed by Mr Rough. I view this in combination with the evidence that you gave to police through your record of interview with them, that there was only one key to the Toyota Corolla.  This information was clearly designed to distract police from the view that Mr Rough had been driving the vehicle at the time of the armed robbery of Premix King, in that, if there was only one key, it limited his opportunity to use that vehicle.  I am not satisfied that the mere fact you told police that you had no knowledge of the armed robberies, is a positive act.  As such, I will be viewing and assessing the objective gravity of your offending, in relation to items 1, 2, 4 and 5.  This finding is unlikely to affect my ultimate conclusion as to the appropriate penalty. 

14It is submitted on your behalf, that with such a wide range of behaviours encompassing a charge of assist offender, that yours is towards the lower end of such type of offending.  The Crown submit that your offending was protracted, given it occurred between dates and was ongoing in nature, when you were well aware of Mr Rough's offending and a capable decision maker.  I effectively accept both propositions. 

15It is not suggested that you were acting under any particular pressure from Mr Rough.  Rather, it was put that as you moved from Queensland, where you had lived, worked and grown up, and where your family resided, to Victoria with Mr Rough, that you were socially and emotionally bonded to him which influenced your decision making at the time.  It is apparent that your involvement was directly related to your relationship with Mr Rough, a relationship which you had been in since your teenage years.  I accept this submission.

16In terms of the admitted role which you played, it would appear to be what I describe as ‘advisory.’  You were not making directions or commands.  Mr Rough essentially made his own decisions after including you in discussions.  The decision to lie to police about Mr Rough's likely access to the car, I view as slightly more serious.  At the time you did so, police were aware that there were in fact two keys to the Corolla.  This of course, was not known to you.

17I accept that there are far more serious examples of the offence of assist offender.  I accept the submission that overall your offending is towards the lower end for an offence of its type.  I have taken into account submissions of both parties and the cases to which I have been referred.

18In terms of your personal history, which I am also obliged to take into account, you are presently aged 26 years and grew up in Queensland.  I am told your parents separated when you were relatively young and you have no real relationship with your father.  Your mother, Ms Catherine Lumsden, was effectively a single mother and has been your principal support throughout your life, indeed continues to be so.  You have an extremely close relationship with your mother, who continues to reside in Queensland. 

19You describe your childhood as a happy one.  Your mother re-partnered when you were around 18 years of age and you have a good relationship with your step-father.  You obtained a Year 12 education.  On completing that education you moved from the Gold Coast to Brisbane, where you worked as a legal secretary for approximately two years.  In 2011 you met your co-accused, Taylar Rough and you commenced a de facto relationship from 2012.  At that time, you worked for Axis Debt Management for a period of some three years.  At that point, your working life was in trusted professional industries. 

20In 2015 you moved with Mr Rough to Melbourne, so that he could be closer to his family.  You obtained employment almost immediately at a café in Williamstown and have maintained that employment for some three to four years.  You subsequently enrolled in a nursing course at Health Skills Australia, earning a Diploma in Nursing in November 2017.  You enrolled to complete a Bachelor of Nursing at La Trobe University which was due to commence in mid- 2018.  You deferred your course until these proceedings could be completed.

21At the time of your offending you were working full-time as a waitress and residing with Mr Rough, who at that point in time was not working.  He was using drugs during this period, as he has effectively for much of his life.  In the context of the move to Melbourne in your relationship with Mr Rough, you also came to use cannabis and methyl amphetamine.  As I have already referred, at the time of your offending your loyalty to Mr Rough was such that you took the actions which you did.  Your loyalty was misplaced.  At that point, he had been your partner for many years and your only social support in Victoria. 

22Whilst the offending occurred over some 13 days in the context of your life overall, as a hard-working and law-abiding citizen, it does not interrupt the view that I have formed that you present with excellent prospects of rehabilitation for reasons which I will shortly outline.  The fact that there has been no further offending or drug use since, supports that position.  You have no prior criminal history.

23During the course of your plea I heard evidence from your mother, Catherine Lumsden.  Not surprisingly, she indicated that your involvement in criminal activity and drug use, was a significant blow for the family and she was shocked and confused when she first heard.  She does otherwise describe you as honest, respectful, compassionate and as having a big heart.  She also describes discussing your offending with you, and that you were very remorseful and embarrassed.  You also regret your use of drugs. 

24You have discussed at length your future with your mother.  She is keen for you to return to Queensland, where she hopes you get your work in the health industry.  All of your family live within a radius of two hours of your mother's address.  You continue to have her support, as well as that of other family members.  Both your mother and aunt travelled from Queensland to attend your plea hearing. 

25Tendered on your behalf were a series of references.  These included a letter from your employer, whom you have told of your predicament.  He remains supportive and comments that, "You have been a great asset to the business and have a professional and respectful manner with staff and customers and is liked by everyone.”  You have maintained this employment. 

26References have also been provided from school friend, Shae Coghlan, your grandmother, mother and aunt.  You are variously described as being selfless, loyal, empathetic and honest.  Some of these traits may have manifested in your decision to offend.  The referees are clear about your remorse and that you are otherwise of good character.  They are not challenged and I accept their contents.

27In terms of your future, you intend to pursue your qualifications in nursing and to return to reside with your family in Queensland.  Ultimately, this can only be in yours and the community's interest, as you have significant supports in Queensland.  In addition to this, your mother is able to assist you to find employment in your preferred field of nursing.  Your decision to relinquish your relationship with Mr Rough can only further support your future prospects.  At present you reside with his mother, in Victoria.

28Late last year you commenced counselling with Ms Laura Hvala, a psychotherapist whom you have seen for approximately four sessions.  I have had recourse to a report from Ms Hvala dated 9 January 2019.  It was you that approached her to seek support and counselling psychotherapy to assist you to deal with these proceedings.  Ms Hvala reports you have responded well to counselling sessions to date and that you wish to continue working with her.  This of course, should be encouraged.

29You have entered a plea of guilty at an early opportunity.  This has saved the court time and expense and witnesses having to attend, for the purposes of cross-examination.  Having heard evidence from your mother, considered the references tendered and your efforts to seek assistance, I am satisfied that your plea is also borne of remorse.  All of these matters must be reflected in sentence, in your favour. 

30The basis purposes for which a court may impose sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. 

31In sentencing you, I am obliged to have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.  I am also required to balance the interests of the community in denouncing criminal conduct with the clear interest the community has in seeking to ensure, as far as possible, that offenders are rehabilitated and are re-integrated into society.

32I have also taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act, where relevant to your case. 

33Your counsel submits that in all the circumstances of your case, I should not record a conviction.  The Crown have referred me to two decisions, that of DPP v Anastasiadis [2018] VCC 1397 and DPP v McIntosh [2017] VCC 1599 as cases where it could be said that the offence was towards the lower end.

34They have done so as part of their submission that your offending was not at the lower end, and the only way to properly reflect the seriousness of your offending and to represent the principles of general deterrence and denunciation, is to record a conviction.  I have read each of these decisions, which are of some assistance, but understandably represent different circumstances to your case in terms of the assistance provided and personal circumstances.  Neither leads me to alter my conclusion that your offending was towards the lower end for an offence of its type.

35I accept the principles of general deterrence and denunciation have a role to play.  It is important that others who might be inclined to assist offenders, regardless for their reason for doing so, are aware that there are consequences which must follow.  I accept that your involvement in the court processes in your case, has played some role as both a sanction and a deterrence, as has your abiding by bail conditions.  In the context of your case overall, I see little need, if any, to give weight to either specific deterrence or the need to protect the community from you.

36Section 8 of the Sentencing Act sets out the criteria to be considered in whether to record or not to record a conviction.  I am required to have regard to the nature of the offence, your character and past history and the impact of recording a conviction on your economic or social well-being or on your employment prospects.  Some of these matters have already been outlined in the remarks I have made thus far.  I accept that the charge to which you have pleaded guilty is serious, even if towards the lower end for an offence of its type.  It was committed, as I have said, in the context of a long-standing relationship. 

37Up until May of 2018 your history was blameless and you have held positions of responsibility in your working life.  You have continued in this vein.  You are well supported by family and as I have already referred, there has been no re- offending.  You now aim to work as a nurse.  In that context, I accept from material filed that your future as a nurse is one where those charged with considering any registration, will have to take into account whether or not a conviction was recorded for the charge before me. 

38I had you assessed as to your suitability for a community corrections order.  The assessment outcome report dated 25 January 2019 indicates that you present with a low risk of re-offending.  It is only recommended that should such an order be imposed, that you complete community work.  No treatment recommendations are made and you are assessed as being suitable for a community corrections order. 

39Your counsel has contended that as well as not recording conviction, I should place you on an adjourned undertaking. This requires me to consider the provisions of s.70 of the Sentencing Act 1991, which deals with the purposes of orders under Part 3BA, Division 1 of that Act. Once again, this requires a degree of a balancing act.

40Overall in consideration of those provisions, I am not satisfied in all the circumstances that your offending could be described as trivial, technical or of a minor nature, or that there are extenuating or exceptional circumstances that justify the court showing mercy to an offender.  Nor am I satisfied that it is inappropriate to inflict any punishment other than nominal punishment.  I do not propose to place you on an adjourned undertaking.  I am however, satisfied on balance that it is appropriate in all the circumstances of your case, to consider a non-conviction disposition.  I am not of the view that you require supervision in the community.  You are well supported and have shown that you are capable of seeking your own assistance. 

41In terms of sentence, and I do ask you to stand at this point, Ms Bills;

42I place you on a community corrections order for a period of 16 months.  As indicated that order is without conviction.  During that time, you are to complete 100 hours of community work.  The duration of this order and the requirement to complete community work, is capable of representing general deterrence and denunciation.  I do understand that these orders can be transferred to Queensland.  That is a matter for you to discuss with the Office of Corrections.  I do not understand that the community work component can be transferred.  I will leave that ball in your court.

43In addition to the condition that I have imposed, which is effectively community work only, you should be aware that there are standard conditions.  These first and foremost, is that you must not commit any other offence during that 16 month period, which could be punished by imprisonment.  You must also report within two working days as of today, to the nearest Community Corrections Office, in your case I understand that is Bendigo.  You are also required to advise your supervising Corrections Office of any change of address of where you are living or working and you must do so within two clear working days.

44It is a term of all community corrections orders you must submit to visits as directed and you must obey all of the instructions and directions of a community corrections order.  You are not able to leave Victoria without their permission. 

45You should be under no illusion that this outcome presents you with an opportunity to return to the positive life that you did once have, should you choose to take up that opportunity.  This order can be breached if you do not comply with the terms of the conditions, or reoffend during its operation.  Should you do so, you will be required to appear before me for a contravention hearing, which may require me to resentence you for the original charge and to consider a charge of contravening a community corrections order.  Of course, I can only place you on such an order if you are prepared to sign documents to that effect.  Are you prepared to do so?

46ACCUSED:  Yes, Your Honour.

47HER HONOUR:  All right.  Thank you.  Yes, Mr Tovey.  You can be seated, Ms Bills.

48MR TOVEY:  Your Honour, if I could - when the documentation is ready - assist my client?

49HER HONOUR:  Of course.  I would invite you to do so.

50MR TOVEY:  Ms Bills has signed that community corrections order, Your Honour.

51HER HONOUR:  Thank you very much.  In the nicest possible way, Ms Bills, I hope I never see you again.  Mr Tovey, thank you for your assistance.  You are not in the same description.  I hope I do see you again.  And Mr Dober, thank you very much for your assistance.  The parties are otherwise excused.  Although you are here for the next matter, are you not?

52MR DOBER:  Yes, Your Honour, but there are two matters that I would bring Your Honour's attention to.

53HER HONOUR:  Yes.

54MR DOBER:  There is just a 6AAA and a disposal order. 

55HER HONOUR:  Yes.

56MR DOBER:  But you - sorry - it is a CCO, so just the disposal order.

57HER HONOUR:  A 6AAA is required if a CCO is in excess of two years.  I do not understand it is required if it is under two years.  Please correct me, if I am wrong.  If the paperwork has been filed for the disposal order ‑ ‑ ‑

58MR DOBER:  Yes, it was E-lodged before the plea, Your Honour.

59HER HONOUR:  Have you got that document with you?  I though disposal order was not ‑ ‑ ‑

60MR DOBER:  I have got multiple copies for Your Honour as well.

61HER HONOUR:  Thank you.

62MR DOBER:  This is the same disposal order for Mr Rough.

63HER HONOUR:  So why do I need to make it twice?

64MR DOBER:  Because the exhibits relate to both accused.  And we cannot be entirely clear, there are no findings about who owns the particular material.

65HER HONOUR:  All right.  So, have you ‑ ‑ ‑

66MR TOVEY:  There is no issue with it, Your Honour.

67HER HONOUR:  All right.  Well, I will sign that now if you have got a ‑ ‑ ‑

68MR DOBER:  I have got three.

69HER HONOUR:  Thanks very much.  You will just need to enter - I suppose I can do it myself - the judge and the dates.

70MR DOBER:  Yes.

71HER HONOUR:  Sorry.  I will just hand that back down.  It should be done in advance.  You can step out of the dock, as far as I am concerned, Ms Bills.

72MR DOBER:  Your Honour, it has just occurred to me, there is no conviction.  So, I am going to put this on ice for the time being.  We will just our position.  We may need to come back to you, but ‑ ‑ ‑

73HER HONOUR:  All right.

74MR DOBER:  ‑ ‑ ‑ I do not think it is appropriate at this time to pursue the application.

75HER HONOUR:  Yes, all right.  Well spotted.  Thanks very much.  All right.  Well parties are otherwise excused.

76MR TOVEY:  As Your Honour pleases.

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