Director of Public Prosecutions v Blythman

[2019] VCC 1684

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02206

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLIE BLYTHMAN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2019
DATE OF SENTENCE:	16 October 2019
CASE MAY BE CITED AS:	DPP v Blythman
MEDIUM NEUTRAL CITATION:	[2019] VCC 1684

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Robbery - Co-offenders – Complicit with plan to rob a single victim – Acted as lure – Relevant criminal history – History drug and alcohol abuse

Sentence:Convicted and sentenced to 103 days imprisonment in combination with Community Corrections order of 2 years duration with 100 hours unpaid community work, 75 hours of which can be accounted for by drug and mental health treatment conditions; programs to address re-offending and judicial monitoring reviews – s.6AAA Sentencing Act 1991 declaration – Ancillary order - compensation

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. A Malik	Office of Public Prosecutions
For the Accused	Mr A. Marshall	JDA Law

HER HONOUR:

1Kylie Anne Blythman, you have pleaded guilty to one charge of robbery, which has a maximum penalty of 15 years' imprisonment.  The maximum penalty reflects the seriousness with which Parliament regards the offence and is one of the matters I must take into account in sentencing you.  You were 20 years old at the time of the offending.  The victim was a stranger to you. 

2On 18 September 2017, the victim responded to an advertisement on the internet for used lingerie.  He contacted the mobile number listed in the advertisement and spoke to you briefly.  You and the victim continued to message each other via text.  The victim agreed to purchase two pairs of your underwear for $100.  You then sent the victim a photograph of yourself and arranged to meet with the victim at a location near his home. 

3You sent the victim a text message, advising him to have the money ready, as you would have to leave straight away.  At about 7.08 pm on
18 September 2017, the victim met with you near his home in Clayton at the entrance to the train station.  The victim had wanted to purchase the underwear that you were wearing and had wanted you to come back to his home in order to remove it. 

4The victim changed his mind about purchasing the underwear, as his housemates had arrived home.  Whilst you and the victim were talking, two males slowly walked past.  You looked at the males but denied knowing them when questioned by the victim.  The victim and you discussed meeting the next day.  After discussing meeting the next day, you left and walked away.

5As the victim walked back towards his home, the same two males approached him.  Both men had their faces covered and one was carrying a metal baseball bat.  The male carrying the baseball bat demanded money from the victim.  The victim replied he did not have any.  The male then struck the victim with the bat, hitting him in the right knee, which caused him to drop to the ground.

6The male with the bat then demanded the victim hand over his wallet.  The victim handed his wallet over and was then struck on the left leg.  As the victim lay on the ground, he was also struck to the right arm before the two males left.  The victim then contacted police.  His wallet contained $200 cash and multiple credit cards, as well as other personal means of identification.  I was told that the two male offenders had not been identified by police. 

7On 20 September 2017, your brother, Dylan, was driving when he was intercepted by police.  The victim's personal items were found in the car.  The prosecution puts its case against you on the basis that you were complicit in the robbery of the victim but is unable to prove that you had any knowledge that a weapon would be used in order to carry out the robbery.  Therefore, you were complicit in a plan to rob, which necessitates the use of force or a threat of force.

8You were arrested on 16 July 2018 and made 'no comment' answers in a record of interview.  You were remanded on the date of arrest until 26 October 2018, when you were granted bail at the end of a contested committal hearing.  Therefore, you have served 103 days pre-sentence detention. 

9Ms Blythman, your offending is serious and deserves a punishment which is just in all of the circumstances.  Your conduct must be firmly denounced.  You took part in a plan to rob the victim, playing your part as the lure.  You knew that you had two accomplices who could assist in executing the offence, and therefore you were dealing with a sole victim in numbers. 

10There was a level of pre-planning in relation to this offending, which is relevant to the seriousness of it.  However, I sentence you on the basis that it is not alleged that you were aware that your accomplices had a weapon or, indeed, would use it. 

11For the purposes of sentencing you, your criminal history comprises two court appearances.  The first of these was on 8 May 2017 in relation to theft of a motor vehicle.  You were convicted and received a 12-month community corrections order.  There was a requirement for drug treatment and supervision for a period of 12 months.

12On 7 August 2017, you were dealt with for a number of driving offences, and as well as shoplifting, and possessing GHB, methylamphetamine, failing an oral fluid test within three hours of driving, possessing a controlled weapon without excuse, and possessing cartridge ammunition without a licence or permit.  You were convicted and fined an aggregate of $1000.

13There are a number of subsequent matters, albeit that most of these were committed before the offending for which I now sentence you. On
19 December 2018, you were convicted and placed on a 12-month community corrections order for one charge of burglary, three charges of committing an indictable offence while on bail, failing to answer bail, theft of a motor vehicle, and possessing GHB. 

14You were also dealt with for contravening the community corrections order imposed on 8 May 2017, and the community corrections order imposed in relation to the original charge was confirmed. 

15On 26 March 2019, you were convicted and placed on a community corrections order for 18 months in relation to theft of a motor vehicle, handling/receiving stolen goods, failing to answer bail, possessing a controlled weapon without excuse, and two charges of carrying a dangerous article in a public place.  The community corrections order imposed on that occasion required you to undertake 70 hours of unpaid community work.

16You have only one court appearance in relation to offences committed after the offence, which I now sentence you.  This related to an unlawful assault against your mother.  I was told that your mother wished to withdraw her complaint subsequently, without any success.  You were dealt with for this matter and placed on an adjourned undertaking in respect of this offending. 

17You were 20 when you committed the offence for which I now sentence you, and you are now 22.  As I have said, you spent 103 days in gaol before being bailed for this matter, and gaol was a salutary experience for you.  I will allow for a fairly substantial discount in the sentence you would otherwise receive because of the stage at which you pleaded guilty to the offence before me.

18You ran a contested committal hearing, which is your right, but that meant that the informant and the victim was subjected to cross-examination.  You entered pleas of guilty - you entered a plea of guilty at the first directions hearing stage in this court, which meant that you saved the witnesses the time and trouble of giving evidence at a trial, and you saved the community the time and expense of running a trial. 

19Had you entered pleas of guilty at an earlier stage, the discount you would have received would have been more substantial.  It seems to me that remorse and insight into the seriousness of your offending may well be works in progress, which I hope you do work on. 

20I was told by your counsel that you had been progressing well on the other community correction orders, to which you are subject, and I received some documentation from Community Corrections which supports this.  I understand that you are regularly seeing a drug counsellor and have completed a number of sessions per week, which is to your credit. 

21However, the community corrections order which has drug rehabilitation attached to it is due to expire this December.  So, Mr Marshall, on your behalf, urged me to consider placing you on a further community corrections order with treatment and rehabilitation conditions attached.  He submitted that I ought impose a jail term on the basis of the time that you have already served. 

22I take into account a report prepared by Ms Carla Ferrari, psychologist, who saw you on 1 October this year.  After interviewing you on one occasion,
Ms Ferrari was of the view that you suffer from anxiety and depression, as well as post-traumatic stress symptoms, having been exposed to family violence and an unstable, abusive and, to quote her, 'emotionally invalidating upbringing'. 

23You were exposed to family violence, parental drug use and criminal behaviour, and you and your brother, Dylan, were left to your own devices during your adolescence.  You were placed in foster care when your parents separated, but you absconded from this, as you believed that you would be subjected to abuse, as had been the situation with your parents.  You developed substance abuse issues in this context and no doubt as a form of self-medication.  

24You went on to form a relationship which was abusive.  Following the breakdown of this relationship, you had another which was unduly stressful and problematic.  You struggled with alcohol abuse in the past, as you used to binge drink, but you went on to abuse drugs, such as speed, methamphetamine and, subsequently, GHB.

25Your drug use quickly escalated to the point where, for a number of years, you had been using on a daily basis.  This was the situation at the time that you committed the offence now before me.  I understand that you were homeless at this time. 

26Your account to Ms Ferrari as to the circumstances leading to the commission of the offence are somewhat at odds with the factual basis for the plea, which is concerning, especially as you saw her quite recently.  However, the accounts are not directly at odds.  The fact remains that you have pleaded guilty to robbery and I sentence you on the basis set out in the plea opening.

27Your parents also struggled with mental health issues, and you believe that your father may have suffered from bipolar affective disorder, for which he was medicated.  According to Ms Ferrari's report, your father committed suicide when you were only 14.  However, you memories of him are of a violent and sadistic man.  Your brothers have also suffered from mental health issues, which have resulted in the hospitalisation at times.  I understand that some of your brothers have been or are in gaol at present.

28I was told that you are presently living at a house in Burwood East, which was, as I understand it, your grandparent's home.  Sadly, your grandfather died recently, which had a harsh impact on you.  The house where you and your mother living are living is to be sold in order for the proceeds to be divided amongst the beneficiaries of your grandfather's estate.  This means that you are currently looking for alternative accommodation.  When things settle down for you, you wish to obtain full-time employment in a factory or similar. 

29In terms of your education, you completed Year 10 at school and Year 11 at TAFE.  This is a real credit to you, as you were able to achieve this despite being without your parent's full support.  However, I see from Ms Ferrari's report that you had a stable home environment from ages 16 to 19, as you were living with a boyfriend and his family at this time.

30You tried to complete a training certificate in logistics and warehousing but unfortunately, your drug use interfered with this.  You then worked in factory for a time but again, your drug use put an end to this. 

31Ms Blythman, although your criminal history and subsequent matters are of concern, as is the offending before me, I must say one would have expected an even lengthier history than yours.  This means that you are capable of doing well in life, but the problem is that you appear to be surrounded by people who are not positive influence upon you, and you have also had struggles with drug addiction, not to mention mental health issues. 

32It seems that you have started to turn things around, which is a really good thing, but the challenge for you, which I am sure you understand, will be to stay away from negative influences and to resist the temptation to engage in further drug abuse or offending.  If you do not, you face the very real chance of spending ever increasing periods in gaol; do you understand?  You are nodding, yes.

33OFFENDER:  Yes, Your Honour.

34HER HONOUR:  In all the circumstances, I find that your prospects of rehabilitation are guarded.  I place fairly moderate weight on specific deterrence and protection of the community.  Strong weight must attach to general deterrence in a bid to deter others from offending as you have.  You have already spent a fairly substantial period in gaol, which has served as a salutary lesson on you.  You are still young, and I must do what I can to maximise your rehabilitation. 

35The prosecution submitted that a gaol term in combination with a community corrections order was appropriate in your case, which coincided with
Mr Marshall's submissions.  In my view, it would be a backwards step in your rehabilitation and therefore, in protecting the community, to put you back in gaol.  But if you fail to comply with the community corrections order in any way, then this may well be my only option. 

36You are convicted of the offence.  First of all, I make an ancillary order which is sought by the prosecution, and that is that you pay to the victim in this matter the sum of $200.  Further, I direct that the victim's current address is not to be disclosed either to you or any co-offender.

37You are sentenced to 103 days imprisonment, and I declare that you have already served 103 days by way of pre-sentence detention.  A term of imprisonment is to be served in combination with a community corrections order, the terms of conditions of which I will explain because I cannot place you on a community corrections order unless you agree to it. 

38The community corrections order would run for a period of two years.  The conditions of the order would be as follows, firstly, the mandatory terms that apply to all community corrections orders, which are you must not commit another offence for which you could be imprisoned during the time that the order is in force.  You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011.

39You must report to and receive visits from the Secretary to the Department of Justice, or his or her delegate.  You must report to the Box Hill Community Corrections Centre before 4 pm, within two clear working days of today, so that is by Friday of this week.  You must let a community corrections officer know within two clear working days of you changing your address or job.  You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or is or her delegate.   You must obey all lawful instructions from, and directions of the Secretary to the Department of Justice or his or her delegate. 

40The conditions that will apply in addition to the mandatory terms are you must undergo 100 hours of unpaid community work within the next two years.  Up to 75 hours of this condition may be satisfied by the equivalent number of hours successfully completed in respect of any of the treatment and rehabilitation conditions. 

41You be under the supervision of a community corrections officer for a period of two years.  You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager.  You must undergo mental health assessment and treatment, including, but not limited to, mental health, psychological, neuropsychological and psychiatric treatment, if necessary, in a hospital or residential facility, as directed by the regional manager.

42Further, you must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the regional manager.  Also, you are to attend this court from time to time - it does not have to be this particular one, you just read on the list which one it is for the day - but you are to attend court from time to time to be monitored by me. 

43Your first appointment will be on Tuesday, 17 December at 9.30 am.  Ahead of each monitoring appointment, I will have community corrections provide a report as to how you are going on the order.  You are not to be represented at the appointments, as they are an opportunity for me to just have a chat with you as to how you are going on the order.  Community corrections many also attend, often they are beamed in via video-link. 

44Now, having heard what I propose under the community corrections order, which I should explain will run concurrently, run together with the ones you are already subject to, and it will not be, sort of, that you are too loaded up, I will make sure that does not happen.  But having heard what I propose, do you consent to the order that I propose?

45OFFENDER:  Yes, Your Honour.

46HER HONOUR:  All right.  I must tell you that if you do not comply with all the requirements of the order, then you will face breach proceedings before me.  You will then be sentenced in relation to the breach, and you will be re-sentenced in relation to the charge, in which case you may well be sentenced to a period of imprisonment.  I will regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order; do you understand this?

47OFFENDER:  Yes, Your Honour.

48HER HONOUR:  Do you still consent to the order?

49OFFENDER:  Yes, Your Honour.

50HER HONOUR:  Therefore, in relation to the charge, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just explained, in combination with the gaol term that you have already served.  If not for your plea of guilty, I would have sentenced you to a total effective sentence of three years', six months' imprisonment, with a non-parole period of two years, five months.  Take a seat for a moment, and I will ask
Mr Marshall to help you with the signing of the community corrections order. 

51MR MARSHALL:  Thank you, Your Honour.

52HER HONOUR:  I will just sign the order.  Thank you.  All right, I have signed that order.  All the best, Ms Blythman.  I will see you early December, I hope to hear good news, all right?  All right.  Yes, thank you, we will now adjourn.

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