Director of Public Prosecutions v Borg

[2018] VCC 229

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02044

DIRECTOR OF PUBLIC PROSECUTIONS

v

SARAH BORG

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 March 2018
CASE MAY BE CITED AS:	DPP v Borg
MEDIUM NEUTRAL CITATION:	[2018] VCC 229

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr W, May
For the Accused	Ms T. Schultz

Pages 1 - 6

 

 

HER HONOUR: 

1Sarah Borg, you have pleaded guilty on indictment to one charge of armed robbery.  This offence was committed on the second day of April 2014. 

2Armed robbery is an offence which carries a maximum of 25 years imprisonment.  This maximum reflects the seriousness with which parliament regard this offence. 

3The circumstances of your offending are set out in a document entitled "Summary of Prosecution Opening upon Plea" dated 6 February of 2018.  This document is marked as Exhibit P1 and is an agreed document. It will be annexed to these reasons. 

4In short compass, at about 8.52 am on 2 April 2014 you ran into a milk bar located at 96 Carlisle Street, St Kilda carrying a broken beer bottle.  You jumped on to a counter and pressed buttons on the cash register in an effort to open the register.  Your victim, Ms Min Liu, had been resting on a couch in a nearby room and was alerted to your entry by the bell.  She threw her pyjamas at you.  Ms Liu then grabbed a broom and started hitting you.  You jabbed the broken beer bottle in her direction as you continued to try and access the cash register.  When you tried to pick up the cash register the door popped open and you were able to grab cash and run from the milk bar.

5Police attended shortly thereafter and in the course of their examination seized the broken glass bottle from the top of the cabinet.  They also seized CCTV footage of the incident.  I have seen that CCTV footage and it is marked as exhibit P2.

6Whilst a somewhat inept and unsophisticated armed robbery, it was also a very determined one and according to your record of interview one committed where you were aware that the same store had been previously robbed.  You thought it would be "easy to get away with." 

7This is a serious offence.  It was carried out on a vulnerable victim being a lone shopkeeper, or a soft target, in the context of you being aware of precisely that vulnerability.

8No issue is taken with the description of this offending as being in the low to mid-range for an offence of its type.  I do accept that your offending was relatively spontaneous. 

9I note that your motivation appears to be to assist a friend who was withdrawing from heroin to get access to funds to support her use.  You were also a heroin user at that time, essentially homeless and earning some income through street prostitution.  This does not excuse your offending but provides some context and motivation for what did occur.

10There is no victim impact statement but I accept for your victim that there would be some form of ongoing ramification as she was attacked by you in her working environment.  This is an environment in which she is entitled to feel safe.

11You were later forensically linked to the armed robbery through fingerprints, as I understand it, on the broken beer bottle and you were subsequently arrested and interviewed on or about 15 of September of 2016.

12In that interview you made full admissions.  I accept that these admissions were of some assistance to the prosecution case over and above the forensic link through your fingerprints on the broken beer bottle together with the CCTV footage. It is in your favour that you co-operated in this way. 

13It was also committed at a time when you were on an adjourned undertaking to be of good behaviour, you having promised the Magistrates' court only the day prior that you would be of good behaviour, amongst other conditions.  This is an aggravating aspect to your offending. 

14I note that as well as making full admissions to your offending it would appear that you are remorseful for it.  You have pleaded guilty to the offences alleged in circumstances where you have spared the court time and expense and the witnesses the trauma of having to give evidence.  I accept that it is a plea at an early opportunity in all the circumstances of this case and as I have said, that it is a plea borne of your remorse.

15I have taken into account matters raised on your behalf by your counsel and his written submissions, marked at D1 as well as oral submissions made before me.

16In short compass, these include

17You are now 34 years of age and have two younger brothers. 

-Unfortunately, you have no real relationship with your mother and that has been the case for quite some time.  I am told that your parents separated when you were around 14 years of age at which time your brothers went to live with your father and you effectively commenced life on the streets.

-In your late teens you commenced heroin use and it has very much been part of your life ever since and you still have ongoing dependency issues.  In the past, you have been a sex worker to support your use. 

-You met your former partner when you were only 18 years of age and you were together for some 10 years.  There were twin boys born of that union now aged approximately 14 years. You also have a 12 year old daughter with your former partner.  A gap in your criminal history coincides with the birth of your children.

-I am told that your children live with their father and that there is no involvement by the Department of Health and Human Services.  I am also told that you relinquished the care of your children to their father when your boys were aged approximately 10 years as you continued to struggle with your heroin use and you wish to prevent them from exposure to that problem.

-I am also told that you are currently in a committed relationship but have continued to struggle with issues of both homelessness and drug addiction.  You do have continued and ongoing support from Ms Sally Boothby of Star Health.  I have seen a letter authored by her dated 2 March of 2018 which is exhibited at D3. I do take the contents of her letter into account.

18There is clearly a delay in having this matter dealt with noting that the offence itself occurred in April 2014 and you were not interviewed until the 15th of September 2016 and come before the court in March of 2018 for your plea hearing.  It is not uncommon for delay to play a role in the sentencing mix. 

19There are two ways in which delay will usually be relevant:  First, it is relevant to the extent to which an offender has achieved rehabilitation during the delay which affects the relevance of specific deterrence. 

20Second, delay is relevant to the extent that it constitutes a form of punishment in itself given the anxiety and uncertainty of having the prospect of a sentence hanging over someone's head and the impact that such an offender will ordinarily experience.

21In your case, I can be satisfied as to the second consideration from your point of interview in September of 2016 until your plea hearing.  Prior to this matter occurring, you had a history of some 12 court appearances.  This related to offences of dishonesty, drug possession and breaches of court orders.  You also have a prior matter for attempted armed robbery for which you received a sentence of some two years imprisonment

22I am also told that subsequently to this matter occurring you have appeared before the Magistrates' Court in relation to further offences of dishonesty, failing to answer bail and drug possession.  Indeed, you were sentenced to seven days imprisonment on 28 February 2018.

23You are not to be punished again in relation to your prior history nor your subsequent history but each is relevant to assessing your prospects for rehabilitation, the need to protect the community from you and to assess issues of both general and specific deterrence. 

24The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. 

25In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.

26I am also required to balance the interest of community in denouncing criminal conduct with the interests of the community in seeking to ensure as far as possible that offenders are rehabilitated and reintegrated into society.  I do express my denunciation of your behaviour.

27It is unfortunate that your prospects of rehabilitation remain somewhat guarded.  You have continued to struggle with issues of homelessness and drug addiction to which I have already referred.  This does raise concern with the court. 

28In my view there is still a need to give weight to aspects of both specific deterrence and the need to protect the community.  In so saying, your level of co-operation, plea of guilty, remorse and the community support that you do have means that weight should still attach to you having prospects for rehabilitation.

29As discussed with your counsel, in my view there is only one realistic sentence which can be imposed in relation to all relevant sentencing considerations and that is one of imprisonment.

30I now turn to sentence. 

31In relation to the single charge of armed robbery you are convicted and sentenced to 30 months' imprisonment.  I fix a non-parole period of 18 months' imprisonment and reckon 30 days - sorry three days - as already served. 

32Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges.  If not for your pleas of guilty I would have sentenced you to a total effective sentence of three years and six months' imprisonment with a minimum of two years and four months before being eligible for parole.

33MR MAY:  As Your Honour pleases.

34MS SCHULTZ:  No, Your Honour.

35HER HONOUR:  All right, thank you.  I will stand down until 10.30.  You can remove the prisoner.

36(OFFENDER REMOVED)

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