Director of Public Prosecutions v Bright&Ors
[2015] VCC 1927
•17 December 2015 (18 December 2015 – Leigh)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-14-01164
CR-14-01161
CR-14-01162
CR-14-01163
CR 14-01159
CR-14-01160
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN BRIGHT LAINI DIAMANTE JARED MOSTERT JULIAN FLOYD[1] CANDICE LEIGH (sentence delivered 18 December 2015) ALEXANDRA WARDEN |
[1] The name of this accused has been anonymised and substituted throughout the sentence in accordance with existing Suppression Order made 7 September 2015 under s 17 of the Open Courts Act 2013 (Vic) prohibiting publication of identity.
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7, 8, 9 and 17 December 2015 |
| DATE OF SENTENCE: | 17 December 2015 (18 December 2015 – Leigh) |
| CASE MAY BE CITED AS: | DPP v Bright&Ors |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1927 |
REASONS FOR SENTENCE
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Subject: Sentencing; false imprisonment; theft; intentionally cause injury
Catchwords: Pleas of guilty; 6 offenders in same course of offending but not all offences; varying degrees of involvement in offending; collective drug use; individual circumstances and rehabilitative prospects; circumstances arising out of collection of drug debt; young and youthful offenders
Legislation Cited: Sentencing Act 1991 ss 6AAA, 18
Cases Cited:R v Renzella [1997] 2 VR 88; R v Verdins; R v Buckley; R v Vo [2007]
VSCA 102; Boulton v The Queen; Clements v The Queen; Fitzgerald v
The Queen [2014] VSCA 342
Sentence:Warden: 12 month CCO with rehabilitative conditions; summary charges: 1 month imprisonment (aggregate) declared reckoned served
Diamante: Aggregate CCO of 18 months with 150 hours of community work and rehabilitative conditions
Mostert: CCO of 12 months with 80 hours unpaid community work and rehabilitative conditions
Floyd: TES 9 months imprisonment.
Bright: TES 1 year 2 months imprisonment followed by CCO for 12 months with rehabilitative conditions
Sentence of Leigh delivered 18 December 2015 ([2015] VCC 1939)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten | OPP |
| For Accused Bright | Mr C. Terry (7 December 2015) Mr P. Tomlinson (8, 9, 17 December 2015) | Haines and Polites Lawyers |
| For Accused Diamante | Mrs E. Ruddle (on plea and 17 December 2015 am) Ms S. Keogh-Barnes (on 17 December 2015 pm) | Turnbull Lawyers |
| For Accused Floyd | Mr A. Halphen (7,8 December 2015) Ms N. Giorgianni (on 9 December and 17 December am) Ms A. Nguyen (on 17 December pm) | Melasecca Kelly Zayler Lawyers |
| For Accused Leigh For Accused Mostert For Accused Warden | Ms N. Kaddeche (7,8,9 December 2015 Mr P. Tomlinson (17 December 2015) Mr C. Mandy (7,8 December 2015) Mr D. McNally (9 December 2015) Ms K. Phair (17 December 2015) Mr G. Barnes (7,8 December 2015) Ms A. Hancock (on mention and sentence) | Haines and Polites Lawyers Michael Gleeson and Associates Slades and Parsons |
HER HONOUR:
1Lachlan Bright, Laini Diamante, Jared Mostert, Julian Floyd, Candice Leigh and Alexandra Warden, you have each pleaded guilty to a charge of false imprisonment of Mr Darren Lee.
2Lachlan Bright, you have also pleaded guilty to two charges of theft and one charge of intentionally causing injury to Mr Lee.
3Laini Diamante, you have also pleaded guilty to one charge each of theft and intentionally causing injury to Mr Lee.
4Julian Floyd, you have also pleaded guilty to one charge each of theft and intentionally causing injury to Mr Lee.
5Candice Leigh, you have also pleaded guilty to one charge each of theft and intentionally causing injury to Mr Lee.
6Alexandra Warden, you have agreed to have transferred to this court and pleaded guilty to three summary charges, namely driving whilst unlicensed, committing an indictable offence whilst on bail, and possessing a controlled weapon.
7The maximum penalty for false imprisonment is 10[2] years' imprisonment, and for each charge of theft and intentionally causing injury, it is ten years' imprisonment. I shall deal with the maximum penalties for Ms Warden's summary charges when I deal with her circumstances specifically.
[2]Corrected from 15 on revision – refer paragraphs 108-115 for discussion
8Those of you with prior criminal histories have admitted them, and I will deal with the details of those when I turn to your individual circumstances.
9These charges arise from events on 19 January 2014, in which you were all involved but to differing extents, such that you did not all commit all of the offences that occurred that day. Again, I shall turn to the differences and your individual roles when I turn to your individual circumstances.
10The events lasted over a period of approximately seven hours, and are set out in more detail than I shall repeat in the Crown summary of opening. Some detail is necessary to explain your differing roles and to assess your relative blameworthiness on each charge.
11You did not all know each other before that day, but each knew at least one other, and you all had some connection with Ms Leigh and the unit where she lived. You were all users of illicit drugs, in particular methamphetamine, which you call “Ice”. You had on various occasions attended Ms Leigh's place to use ice. Some of you had also stayed there when homeless or what some call "couch-surfing".
12The victim of these offences, Darren Lee, was also a user of ice and had attended Ms Leigh's unit in relation to obtaining drugs. He was also without a fixed home at the time. He apparently owed $700 for drugs to Ms Ashleigh Collins who was living at Ms Leigh's unit at the time, and was known to most, if not all of you.
13About 7.30 am on Sunday 19 January 2014, Mr Lee, together with his girlfriend Rebecca Stewart, drove to the Monash Hotel in Clayton which apparently had gaming machines and a closing time of 8 am on Sundays.
14When he entered the hotel, he saw that Ms Collins was present, and knowing he owed her money, approached her to discuss it. Mr Bright and Mr Mostert joined the discussions, apparently to support Ms Collins.
15Near closing time, Mr Floyd arrived at the hotel and spoke with Ms Collins and Mr Bright. Mr Lee did not have the money and there was no ready solution apparent to anyone, so the discussion was stepped up by Mr Bright with some aggression. The discussion got more heated.
16Mr Lee gave his car keys to his girlfriend who was worried about the situation and went outside and sat in his car. As it was approaching closing time, the staff at the hotel moved everyone outside to the carpark, where the discussion again became heated and Mr Bright and Mr Floyd walked around Mr Lee's car preventing him from getting into it. Ms Stewart was inside it and scared so she locked the doors.
17Ms Diamante then arrived in another car at the carpark. She immediately joined in the harassing of Mr Lee. She approached him and demanded the keys and then chased him around the carpark. He was trying to get away from her as he did not want to hit her.
18Ms Diamante then approached his car and demanded that Ms Stewart open the window. With Mr Bright making gestures as if to smash it, Ms Stewart lowered the window a little. Ms Diamante forced it down further, reached in and removed the car keys. She opened the door and demanded that Ms Stewart get out, which she did, and Ms Diamante got into the driver's seat.
19The group present then told Mr Lee to get into the car which he did, with Mr Mostert and Mr Bright in the back seat. Ms Stewart insisted on coming too as she was worried for Mr Lee. Ms Diamante drove that car to the Noble Park address where Candice Leigh lived.
20This was the start of the acts constituting false imprisonment of Darren Lee, which commenced at the carpark and continued throughout the five or more hours he was kept at Ms Leigh's home and then for another half hour or so when he was driven to Officeworks in the afternoon. This is charge 1 against all of you.
21The prosecution case of theft of Darren Lee's car, which is included in Charge 3, is that Ms Diamante, with agreement and assistance from Mr Bright and Mr Floyd, stole his car from him in the hotel carpark. It had been bought for
him by his father about four years earlier, at a cost of $24,000. At the time, it contained all of his personal belongings because he was without a fixed home.
22In that car, on the way to Noble Park, Mr Bright struck Darren Lee with an open hand to the head. This must have been from the back seat as Mr Lee was the front seat passenger.
23Also while in the car, Mr Bright took Ms Stewart's mobile phone from her, although that was returned to her later in the day. He also took her handbag and its contents including a portable Wi-Fi modem and $150 in cash. This constitutes Charge 2 of theft which is only against Mr Bright. Cards and identification in the bag were later returned to her.
24On reaching the unit in Noble Park, Mr Mostert stayed in the car with Ms Stewart while the others went inside. After about 15 minutes, Ms Diamante came out to the car and told Ms Stewart to come inside, and Mr Mostert went too. By then, as he entered the house, Mr Mostert and Ms Stewart both noticed swelling visible on Mr Lee's face.
25Ms Collins travelled back to that unit in another car with Mr Floyd and another man, but she left soon after everyone else arrived, and as far as I am aware she has not faced any charges arising out of these events.
26Ms Leigh, when the others arrived at her home with Mr Lee and Ms Stewart, seems to have taken over managing the debt recovery operation. She began by demanding that Mr Lee pay $900 instead of 700, saying that the debt had risen by interest. Demands for him to come up with payment continued during the course of the next five or so hours. He was hit in the face quite soon after arrival. As I have said, that was noticeable when Mr Mostert and Ms Stewart entered after about 15 minutes.
27While Ms Leigh led the verbal demands, Mr Bright and MR FLOYD physically assaulted and threatened Mr Lee. The description of Mr Mostert’s role is that he "just sat around", and he did not physically strike or intimidate or encourage violence against Mr Lee. Mr Mostert did escort Mr Lee to the toilet at any early stage, when Mr Lee still had his mobile phone.
28At some stage, Mr Lee's watch, mobile phone, and a gold necklace were taken from him by one or more of Mr Bright, MR Floyd, Ms Diamante and Ms Leigh, and aided and abetted by the others amongst those four. This conduct is included in Charge 3 against those who were also part of the theft of Mr Lee’s car, and separately in Charge 4 against Ms Leigh.
29Between 8.30 am and 2 pm that day, Mr Lee was held in the lounge room, and for about a half hour in the garage at Ms Leigh's unit. I am satisfied beyond reasonable doubt that he was moved to the garage to intimidate and further frighten him, and Ms Stewart was taken there to watch what was occurring to him, to put even more pressure on him.
30Mr Bright over that period struck Mr Lee multiple times, hitting him in the face and kicking him. While in the garage, Mr Bright heated a screwdriver with a jet lighter and ran it up and down Mr Lee's right forearm, causing a linear burn of about five centimetres in length. At another stage, Mr Bright also heated a glass ice pipe and held it to Mr Lee's left forearm, scalding him, and also put a lit jet torch against his right index finger, causing a burn there. Mr Bright also threw a tape measure at him, striking him in the forehead causing cuts and bleeding.
31During the same period, Mr Floyd also struck Mr Lee. Some of this occurred in the garage, but what occurred there is described as not having been full force punches from Mr Floyd, but he was present during Mr Bright's assaults on Mr Lee. However, back in the lounge and not long before Ms Warden arrived, which was estimated to be about 2 o'clock, Mr Floyd delivered a sudden and hard punch to Mr Lee's nose, causing it to bleed profusely.
32Ms Stewart gave Mr Lee some paper towels to stop the bleeding. She described him as shaking, exhausted, and that "he could barely move". She began crying. Mr Floyd then slapped Mr Lee twice in the head, and said it was for putting Ms Stewart in this situation.
33Ms Leigh, you did act to try to prevent further physical harm to Mr Lee at one stage by telling Mr Floyd to get Mr Bright off Mr Lee. That was apparently said because you did not want neighbours to hear Mr Lee's cries. You discussed with Mr Lee the possibility of his getting money from Centrelink, or taking out a loan, which presumably meant by pawning his belongings.
34Mr Lee and Ms Stewart were required over the course of the period they were kept there to make various phone calls to Cash Converters and JB Hi-Fi, seeking a loan to Mr Lee, but without success. As a result of the assaults on him by Mr Bright and Mr Floyd, Mr Lee's face was noticeably injured, which some or all of you recognised was a problem if you were to take him out where he might be seen at any of the places where he might be able to obtain the cash.
35Those present, except for Darren Lee, were apparently smoking ice from an ice pipe at various times during the day. Rebecca Stewart is said to have had two drags from the pipe when in the garage watching what was being done to Mr Lee.
36Mr Lee suffered injuries as a result of the assaults on him that day. The specific injuries are set out, but generally can be summarised as including abrasions on his forehead and face, two black eyes, swollen bridge of his nose, two abrasions to the back of his right forearm from the screwdriver burns, a burn-type injury to the back of his right index finger, bruises on his left upper arm and forearm, and two abrasions to his right ankle. These were assessed from hospital records by forensic physician, Dr Schreiber, as of mild to moderate severity. These injuries are the basis of Charge 5, of intentionally causing injury, being a charge against Mr Bright and Mr Floyd for their actual physical assaults on Mr Lee, and against Ms Diamante and Ms Leigh for aiding and abetting this offence or parts of it.
37Ms Warden arrived at the unit many hours after Mr Lee had been taken there, probably about 2 o'clock. She was staying there, as she had no other home at the time. Ms Warden initially saw that Mr Lee was bleeding from his nose, and fetched a towel for him to stop the blood, and he apparently continued to hold that towel to his face until later released.
38Ms Warden learnt that Mr Lee owed money, and that the others had been trying to get it from him. By remaining there after learning that, and then participating in a plan to have him sign a transfer of his car as security for repaying the amount the next day, Ms Warden became party to the false imprisonment of him, although not to the assaults or thefts.
39Ms Warden and Ms Leigh then discussed how to resolve the situation to get Mr Lee to pay the alleged debt. Various plans were apparently discussed, but then Ms Warden worked out that she could download a form for the transfer of the car onto her mobile phone.
40Mr Lee and Ms Stewart were directed into a car - not Mr Lee's car which by then had been driven away by Mr Bright. Ms Warden then drove them to Officeworks in Glen Waverley, in order to have a form printed for him to sign. Mr Floyd accompanied Ms Warden and the others, and there was apparently someone else asleep in the car throughout. Mr Floyd stood by the car where Mr Lee and Ms Stewart remained while Ms Warden went inside. When she returned with the transfer form, she directed Mr Lee to sign it, which he reluctantly did. She told him that it would be ripped up if he paid $900 by midnight the following day.
41At about 2.30 pm, Ms Warden and Mr Floyd drove Mr Lee and Ms Stewart to near Ms Stewart's home and dropped them off there. At that point, Ms Warden threatened Mr Lee that if he went to police or talked, there
was a bullet with his name on it. This threat is not the subject of a separate charge.
42Mr Lee stayed at Ms Stewart's overnight. Next morning, they both went to Glen Waverley police station and spoke to a police constable, telling him in general terms what had happened. The police officer saw bruises on Mr Lee's face and the cut on his forehead, but Mr Lee refused to make a statement about the events at that time.
43The purpose of reporting the events to police seems to have been solely to get a report to enable them to claim an emergency Centrelink benefit. That afternoon, Mr Lee went to Brandon Park Medical Centre and was seen by a doctor there, who was told about the assault and the theft of the car and personal possessions, and about the signing of transfer papers. The doctor observed burns to Mr Lee's arms, lacerations to his forehead, what appeared to be a laceration to the right index finger, and bruising and swelling to the nose and face. An X-ray was taken of his nose, which was normal. The doctor later noted that the burns were small and superficial and had not broken or blistered the skin when they were examined on that day.
44Later that day, that is 20 January, Mr Lee and Ms Stewart went to Centrelink and successfully applied for special payments. At about 9 pm they went back to Ms Leigh's unit in Noble Park, taking two friends with them. Mr Lee gave $900 in cash to Ms Leigh and there were several other people present, including Ms Diamante and Ms Warden.
45However, the car was not returned to Mr Lee nor any of his possessions it contained. Within two days he went to VicRoads to try to stop the transfer of his car being registered but apparently the transfer had been used quickly and registered. The car was eventually recovered but none of Mr Lee's possessions remained in it.
46I must assess the objective seriousness of this offending and will subsequently turn to assess the subjective seriousness of the role of each of you in it.
47These overall events were a crude if disorganised exercise of group force to try to extract money from a person who owed none to any of you. The fact that the alleged debt to Ms Cooper was for drugs would at law have made it unenforceable in any event, although Mr Lee seems to have accepted that he was obliged to pay it.
48Each of you as individuals lent your support to an attempt to enforce payment of a presumed debt owed to someone you knew, but whose call on your assistance remains totally unexplained to me. I must not speculate about that. I regard each of you, although to different degrees, as having been party to a disgraceful episode of group intimidation and force, with violence aggravating the circumstances although not all of you were party to that violence.
49Mr Lee was held against his will from about 8 am until approximately 2.30 pm. During that time all of his possessions were stolen from him. Further, he was subjected to being hit and kicked, and to the frightening experience of being taken into a garage, implying escalation in intimidation, and where he was not only beaten further by Mr Bright and to a lesser extent Mr Floyd, but also subjected to Mr Bright's actions of heating a screwdriver and burning him with it. The other heated items were used on him subsequently and I am not clear whether that was still in the garage or back in the lounge of the house.
50Sitting in court on the first day of the plea hearing last week, you all, or all except for Mr Mostert who was not present, heard me debate with Mr Bright's barrister why he would say that this action should not be characterised as torture. He told me that if Mr Bright had wanted to torture Mr Lee he could have caused him more serious injuries. Just because the prosecution agreed not to use that description in its summary does not make the behaviour by Mr Bright any less intimidating or terrifying or serious than to call it “torture” as I did. Even though the injuries caused were not serious, it was in my view serious and troubling behaviour. The violence of hitting, punching and kicking him, and even more so the use of these heated implements on him, took the offence of falsely imprisoning him to a considerably more serious level from an objective view than simply keeping him at a location where oral demands for money were being made.
51Although this part of the intimidatory tactics seem to have been Mr Bright's own idea to step up the pressure on Mr Lee, the others who were present are responsible for not bringing that type of action to a stop, and for not bringing the whole detention of Mr Lee to an end.
52The overall conduct was certainly disorganised, and I accept totally unplanned. It seems to have developed spontaneously after Mr Lee unexpectedly arrived at the hotel and approached Ms Collins to discuss the debt he owed. That disorganisation and spontaneity does not decrease its seriousness but there is not the aggravating factor of it being pre-planned.
53The seriousness includes that none of you was prepared to show the strength of character to call on everyone to bring it to an end quickly, and more so when it was clear that Mr Lee had no cash on him, and you had already stolen all of his goods, nor when the violence towards him escalated. Further, if any one of you had walked away, even if not able to persuade the others to cease their involvement, that would have lessened the numbers by which Mr Lee was outnumbered and diminished the overall intimidation of group force applied.
54I am concerned that apart from Ms Warden fetching a towel for Mr Lee's bleeding face, none of you seems to have considered the trauma you were inflicting on Mr Lee or the impact on him and for that matter also on Ms Stewart. In contrast, each of you comes to this court seeking leniency in your sentence in reliance on aspects of your backgrounds or your drug addictions which you attribute to troubled or traumatic experiences in your past. Mr Lee's lifestyle and problems appear to have been relatively similar to most of yours at that time, although I do not know the details of his actual background.
55There is no victim impact statement from Mr Lee, but I have read his and Ms Stewart’s statements to police (Ms Stewart’s as to what happened to Mr Lee). Mr Lee's position was far from admirable, but what you between you inflicted on him was likely to leave him even more traumatised and troubled than his lifestyle reflected at the time he entered the Monash Hotel. That the overall result was that you extracted $900 of taxpayers' money, through him, in order to pay an associate of yours for drugs, means that your offending was also indirectly against the taxpaying public.
56Even if there had been money legitimately owed, it does not fall to individuals to use force or violence to extract payment and such conduct requires the community's denunciation. The message must be sent not only to each of you but to others tempted to engage in this type of force that it will attract stern punishment. That means that both specific and general deterrence are important sentencing purposes in this case.
57While dealing with matters that apply to all of you, I have taken into account that you have each pleaded guilty to the charges against you. The prosecution submits that from its point of view the pleas should be seen as all entered late, being shortly before or even on the day that a three week trial was fixed to begin. That was on 30 August this year and the earliest of you to agree to plead guilty was Mr Bright some 11 days before that, with Mr Mostert and Ms Warden as late as that morning.
58Mr Lee and Ms Stewart had been cross-examined at a committal hearing that extended over four days in July 2014, so none of you can claim the benefit of an early plea reflecting immediate remorse, nor of wholly sparing witnesses having to give evidence and relive the events in question. However, there was still utilitarian value in sparing the time and cost and witnesses of a disputed trial and you will all receive some leniency for that. Your pleas of guilty also indicate that even as late as they occurred you have all accepted responsibility for your respective roles. Unqualified remorse is more difficult to infer given the lateness of the pleas, but I shall explain where there are signs of it in some of you.
59I shall tell you after I have imposed each of your sentences what the sentence would have been if you had not pleaded guilty but been found guilty of the same charges after a trial.
60I shall turn now to each of your circumstances individually to assess your roles in the offending, and your personal backgrounds and circumstances. Ms Warden, do you need a break?
61ACCUSED WARDEN: No, I'm all right.
62HER HONOUR: All right. I will turn first to Ms Warden because I intend to excuse her from further attendance after I have explained her situation and announced her sentence.
63Alexandra Warden, you are now aged 25 and were 23 at the time of these offences.
64Your role in this offending lasted a much shorter time, and it had some other distinct differences from that of the others in the group. You arrived at Ms Leigh's unit at around 2 pm on the day in question, by which stage Mr Lee had already been detained there for more than five hours, and had been assaulted and his possessions stolen. You had no prior knowledge of or involvement with the events that had preceded your arrival.
65I am told that when you arrived, you could see that Mr Lee had blood on his face, and I have already mentioned that you obtained a towel for him for that. Up to that point, your conduct was impeccable, and indeed you were the first person to actively try to help Mr Lee in that situation. However, you did not walk away. You did not try to persuade everyone to abandon the behaviour they had undertaken. Instead, on learning the purpose they had with him, you agreed to participate in trying to achieve the payment of the money sought.
66Whether or not in combination with Ms Leigh, you worked out how to download a vehicle transfer form onto your mobile phone, and in order to have it printed out, you chose to actively participate by driving Mr Lee to Officeworks so that the form could be printed and he could sign it. In fact, you drove a car, not yours and not his, from the unit, and you did not have a driver's licence. That is the basis of the summary charge against you of unlicensed driving. Also in the car were Ms Stewart and Mr Floyd, and someone else, apparently asleep throughout.
67You entered the Officeworks store, leaving Mr Lee and Ms Stewart in the car with Mr Floyd. When you returned with the printed form, you required Mr Lee to sign although he did not wish to do so, and made that clear. You persuaded him, telling him that it would be torn up and his car returned to him if he paid the $900 by the end of the next day. There is nothing to suggest that that was not your belief at the time.
68You then drove him and Ms Stewart, with Mr Floyd in the car, to her home. On leaving them, you made a threat to Mr Lee that if he reported the matter to police, the expression used was - that there was a bullet with his name on it.
69I accept that you had no involvement at all in the original detaining of Mr Lee, nor his being kept at the unit for many hours. I accept that you had no involvement at all in any of the violence towards him or the causing of injury to him, and indeed you fetched a towel to stop the bleeding to his face. You were not party to stealing his mobile phone or wallet or gold chain. Overall, it could be said that you achieved the release of Mr Lee more quickly and effectively than anyone else in the group had managed to do over the course of many hours. However, you did take a significant, if practical and relatively brief, role in holding Mr Lee against his will to enforce payment from him of the amount of money sought by others. I assess your culpability as higher than that of Mr Mostert, and in part comparable, although for different reasons, with that of Ms Diamante, but I do assess your culpability as lower than hers, because yours was much briefer and involved no adoption of the violence towards or injuring of Mr Lee.
70I must also take into account the three summary charges to which you have pleaded guilty. One is unlicensed driving, as I have said, because you drove the car with Mr Lee in it to Officeworks to get the transfer form. The maximum penalty for that offence is 25 penalty units or three months' imprisonment.
71The charge of possession of a controlled weapon is based on three knives being found in your handbag when you were searched on your arrest on 31 January 2014. Two were of a box-cutter style and these are controlled weapons. I am told that you generally carry such knives with you. Indeed, you have some subsequent offences for doing the same. The maximum penalty for this charge is 120 penalty units or one year imprisonment.
72The other summary charge is for committing an indictable offence while on bail. You had apparently been bailed at the Moorabbin Magistrates' Court on 10 January 2014, to return to that court on 18 February. Although it is not clear in relation to what charge or charges that occurred, the fact that you committed the offence of false imprisonment whilst on bail is itself a summary offence. The maximum penalty for it is 30 penalty units or three months' imprisonment.
73While none of these offences is as serious as the charge of false imprisonment, they do reflect a disregard by you for various regulatory laws, two of which, namely unlicensed driving and carrying controlled weapons, are primarily for safety of the public. The carrying of the knives is also not insignificant, as you apparently were in the habit of carrying them, presumably potentially to be used, although there is no indication you ever did use them on this or any other occasion.
74These offences seem to me to reflect that you were living on the fringe, and involved in behaviour that was risk taking at the time. As for committing an indictable offence while on bail, you must have been aware that you were on bail, and you should have been especially careful to avoid becoming involved with any other offending.
75You have some prior criminal history, which is relevant to my sentencing of you. That commenced in April 2010, with charges of possessing drugs, and the charges were adjourned without conviction on condition you complete rehabilitation as directed by YSAS, and not associate with co-offenders.
76In September 2011, you were dealt with for some offences of dishonesty and placed on a community-based order with some community work, but largely rehabilitative conditions. You apparently completed the community work and attended most of your other appointments, but faced breach proceedings following further offending and the missing of some appointments. Given your substantial compliance, the community-based order was confirmed.
77Finally, a year prior to this offending, you were dealt with for several offences ranging from unlawful assault and resisting police to driving while suspended and shop-thefts. For that, you received an aggregate sentence of three months' imprisonment, but it was wholly suspended.
78That prior offending does you no credit, nor do subsequent matters, but it does not reflect sustained, entrenched offending. Rather, it reflects intermittent offences consistent with someone addicted to and abusing drugs, and living on the fringe, as I am told you were.
79Like most of your co-offenders here, you were arrested by police at the end of January, and interviewed in relation to the offences against Mr Lee. In a
second interview, you admitted going to the house at Noble Park and finding an injured man there and his girlfriend. You admitted some participation, including driving Mr Lee and Ms Stewart to Officeworks so that Mr Lee could sign a vehicle transfer form, and then dropping them back at Ms Stewart's home. You agreed you were identified on CCTV footage from Officeworks that day. You also admitted being present when Mr Lee returned the following night and paid the money. You were remanded in custody and spent 52 days there until grant of bail.
80I turn to your personal background and what brought to you to that position on that day, and also what has happened since.
81Unlike what I have heard about the backgrounds of each of the others in the dock here with you, you come from what I am told was a very stable home environment, with both parents part of the family, together with two younger brothers. I am told that you are the only member of your family to have had involvement with drugs or criminal activity. You still have the support of your family, and your mother has been sitting in court during the hearing to support you. I am told that your parents have made preparations for you and your expected baby to live with them.
82You attended Mentone Secondary College, but left three weeks before completing Year 11, at age 17. The following year you enrolled at VCAL, completing a hospitality certificate. At 19 years of age you enrolled in Certificate IV in alcohol and drug studies, completing all of the modules except for the placement component, and you then completed one year of a Diploma of Community Services.
83Notwithstanding completing these courses, you had commenced using drugs in your mid-teens, as a result of involvement in a negative peer group, and I am told you dabbled in “party” drug use, such as ecstasy and amphetamines, from age 16. Then, however, you met your first boyfriend, who was a user of amphetamines, and you began drug use by injecting with him. You became an intravenous ice user with him, and have told Ms Barnacle, a psychologist who has been treating you this year, that at age 18, you used heroin to come down from ice and at the urging of your boyfriend, injected it. You apparently became addicted to heroin within weeks of trying it.
84At age 20, although you completed the Diploma of Community Services, you were distracted by your out of control heroin addiction, and spent the year in and out of detox programs. You apparently described that year as involving positive relationships with teachers and finding the course enjoyable and stimulating. In 2011 you deferred from that course and went into youth residential rehabilitation, where you stayed for five months while on a methadone program, gradually reducing your dose. You refrained from using illicit drugs during this period, and your relationship with that boyfriend ended. However, you met another man whilst in rehabilitation and together with him, left it and became addicted to heroin again. You experienced a drug-induced psychosis during that time.
85During 2012, you and your boyfriend lived together between various homes, including your respective parents' homes. At that stage and when aged 22, you and your then partner were staying, at one stage, at a friend's home, when an incident occurred related to illicit drugs, which you were suspected of taking. You have told Ms Barnacle that this involved your being physically and sexually assaulted and detained for an extended period, and that the incident was reported to police, but no charges were laid. You describe your heroin use as escalating after that incident.
86The following year, that is during 2013, you went into detox and on an overseas holiday for three weeks, achieving abstinence during those brief periods, but you were using ice at the time of this offending, and staying with Ms Leigh, that is at the end of 2013 and January 2014.
87Last year, that is 2014, and following this offending, you sought further treatment for your drug addiction. I infer that your parents have supported and probably paid for at least some of that, including residential rehabilitation.
88From reports that have been tendered, I gather that on 12 December last year, you requested admission to long-term rehabilitation and attended a four month program at The Basin, of which you completed all but two weeks, leaving on 16 March this year. Whilst an inpatient there, you had organised a transfer to MARP and its 12 week program. MARP stands for Maroondah Addictions Recovery Program. This is a 12 week residential rehabilitation program. You commenced it on 24 April this year. You were one of the younger clients there at the time, but are said to have quickly developed strong connections with all of the others. You presented as honest with your drug and alcohol counsellor, and committed to your recovery and participated well in all groups. You are said to have been challenged regularly by the other clients there, but persevered and continued to work on your recovery.
89You are due to give birth to a baby this week. You must have already been pregnant when you started the MARP residential program. There are details about your health from the pregnancy, which I shall not repeat in these reasons, but it seems that through a very challenging and upsetting time, you remained abstinent from all drugs and continued to focus on the program. You worked hard to increase your physical and emotional health and your pregnancy has been a motivator for you to complete the program. On completion, you were referred for further support and encouraged to maintain contact with your counsellor there. It is reported to me that you have made a number of calls to your counsellor and discussed any negative feelings and have also talked about the impending birth.
90I have also read a report from TaskForce, a not for profit organisation providing counselling, information, education and support for persons affected by alcohol and substance use. You started drug and alcohol counselling there at the end of July 2015, and the Outreach clinician saw you on a fortnightly basis, up to 27 October. That was on five occasions, during which you engaged well. The main focus was around your pregnancy and also further discussion about your amphetamine use. Harm minimisation and relapse prevention strategies were discussed, as well as potential triggers around your drug use and the role of associating with negative peers. It was decided that you would continue to see your psychologist, Ms Barnacle, for ongoing support around recovery, once you were no longer mandated to seek drug and alcohol counselling.
91I have also read a report from Ms Barnacle, who has seen you regularly since referral from your doctor in February this year. Ms Barnacle outlines your background and your progress through rehabilitation programs this year. You are said by her to be in the action phase of overcoming your addiction issues, according to the “stages-of-change” model. She also considers that she has seen you mature over the last year, and particularly as your pregnancy has progressed, and that you appear to have learnt a great deal during your rehabilitation program at MARP.
92She describes you as remorseful in regard to your involvement in the charges before the court and you are said to no longer mix with your co-offenders and to have developed a new social network. She says you now express yourself to be shocked at the social network which had become your norm, and at your involvement in the offence that brings you to court. Having been a victim of violent crime yourself, you now express regret towards the victim who suffered during this incident.
93The report of Ms Barnacle is positive, insofar as she is of the view that you are motived and engaged in the counselling process with her and willing to continue in it with her in a voluntary capacity. She feels you have learnt strategies and techniques to ensure that you remain abstinent from drugs. It is her view and it seems reflected in the history I have heard of your studies, that you are highly intelligent, with insight and determination, and Ms Barnacle considers your prognosis is very positive. She recommends ongoing therapy and motivational interviewing and would be pleased to continue to consult with you.
94Given the length of your history of drug abuse and some failed rehabilitation attempts in the past, your rehabilitation this time cannot be guaranteed to succeed. However, I am satisfied that there are very positive signs, including sustained engagement with rehabilitation services over the course of most of this year, sustained engagement with Ms Barnacle since February, the restoration of relationship with your parents, and hopefully the satisfaction, joy and sense of responsibility which might come with the birth of your baby.
95Hopefully this can keep you motivated to sustain your attempts at remaining abstinent from drugs for the future, for your own sake and also that of your expected baby. I am told that the father of the child has no ongoing role in your life, but that your parents very much do have, and you will be living with them from hereon. That is obviously very significant, in terms of the early period of caring for the baby, but also for the ongoing stability and continuation of your rehabilitation, not just in the short term but the future. For the future, I also take into account that you have shown yourself through studies, well able to complete courses and with the intelligence and application to apply yourself to finding an occupation or career in the future.
96You served 52 days in custody after your arrest and that should have been a salutary experience for you. In my view, goes a long way to delivering specific deterrence, that is, to deter you from further offending, although because of your overall history, that cannot be said with complete confidence.
97I have decided that your sentence for your involvement in the false imprisonment of Mr Lee will be a Community Corrections Order, and I noted that nothing more severe than that was pressed by the prosecution. That order is not merely because of the circumstances of your pregnancy. Indeed it is not because of that, although the imminent birth of your baby is why I have decided not to impose any unpaid community work.
98I am satisfied that all sentencing principles can be met by such an order, having regard to the more limited duration of your involvement, and your not being involved when violence occurred, although you did actively participate at the end, and despite your prior criminal history that there has been sustained and strong engagement by you over the last year with rehabilitation programmes. Ultimately it is not only your own - your family's and the baby's best interests - but also the community's best interests which will be best served if your rehabilitation and in particular, addressing your drug addiction and mental health issues, can be maintained and not interrupted by any further time in prison.
99I note that a Community Corrections Order was imposed on you in October 2014, although breached by you by some offences of dishonesty. Overall, you have been assessed as suitable for a further order, having given substantial compliance in the past. Although you are about to give birth, that can be managed under the conditions of a community corrections order.
100I intend to deal with the summary charges by ascribing some of the time you have served on remand to those.
101I am about to go to the details of your actual sentence because I will then excuse you. There is just one matter I meant to raise before I commenced sentencing. Mr Batten, I do not know if you can assist with this. The requirement in a community corrections order of reporting within two clear working days, can I defer that? Are you aware or can I defer the commencement date of the CCO?
102MR BATTEN: Your Honour, as I recall can defer the commencement for three months I believe.
103HER HONOUR: Of a CCO. Yes, I think that is the way to go then.
104MR BATTEN: I think that can be done.
105HER HONOUR: All right.
106MR BATTEN: Can I raise one other formal legal matter,
Your Honour?
107HER HONOUR: Yes.
108MR BATTEN: I think Your Honour announced at the start that the maximum term of imprisonment for false imprisonment was 15 years.
109HER HONOUR: Yes.
110MR BATTEN: Our understanding is it is ten years, Your Honour.
111HER HONOUR: I am sorry, I had it noted as 15. I am not sure how I came by that.
112MR BATTEN: We have checked that as we have heard Your Honour's reasons and it is provided for under s.320 of the Crimes Act, Your Honour and my instructor has online access to the current version of the Act and it is level 5 imprisonment, ten years.
113HER HONOUR: I apologise. That is what is in your summary. I do not know where I got the 15 from. Maybe I saw level 5 and combined them.
114MR BATTEN: Yes.
115HER HONOUR: All right, I do not think that makes any difference to the sentence in relation to Ms Warden and I will review all other sentences in light of that. Thank you.
116MR BATTEN: Thank you.
117HER HONOUR: All right. Alexandra Warden, would you stand now please. Alexandra Warden, on the charge of false imprisonment, you are convicted and to be placed on a Community Corrections Order to last for 12 months, with conditions of supervision, assessment and treatment as directed for drug abuse, assessment and treatment for mental health conditions, and you are to attend as directed any programmes to reduce the risk of your reoffending.
118In addition to those conditions, all usual terms of a Community Corrections Order apply. I am going to defer commencement of the order for one month having regard to the imminent birth, to make even the attending to report on the first occasion practicable. I will defer commencement of the Order to Monday 18 January 2016, because exactly a month would fall on a weekend.
119The usual terms of a community corrections order have probably been explained to you, but I will repeat them here briefly again. You must, within two working days of the commencement of that order and that will mean by 4 pm on Tuesday on 19 January, report to the nearest community corrections office to where you are living. The address will be on the order or the name of the community corrections office will be.
120During the 12 months of that order, you are to report to the community corrections officers any change in address of where you are living or if you are working. You are to obey all lawful instructions and directions of community corrections officers, and to accept visits from them if they require that. You are not to leave the state of Victoria during those 12 months without prior permission of community corrections officers. Fundamentally and importantly, you must not commit any other offences whilst on that order.
121Now if you breach that order by failing to comply with the conditions or by further offending, you can expect to be brought back before me for contravention of the order. You have had contravention proceedings in the past, so you know about that. If you are brought back before me on a contravention, the contravention itself is counted as a separate offence, but it will be up to me, depending on the circumstances of the contravention and your general circumstances at the time to decide whether to confirm the order, vary it, which could include extending its duration or the conditions, or to cancel it and resentence you on that charge. Now do you understand the conditions and terms of that community corrections order?
122ACCUSED WARDEN: Yes.
123HER HONOUR: Do you agree to comply with it?
124ACCUSED WARDEN: Yes.
125HER HONOUR: All right. On the summary charges of unlicensed driving, possessing controlled weapons and committing an indictable offence whilst on bail, I impose an aggregate sentence of one month imprisonment. I declare 31 days of pre-sentence detention in respect of those offences as reckoned served. So the net effect is that some of the time you were on remand expends that sentence.
126I was asked to make certain ancillary orders. One was for a forensic sample. If there is not one already taken, I will make that order that a forensic sample be taken from you. That is in order to have your DNA placed on the state's database. The reason is the nature of the offending – false imprisonment. It will be limited to a scraping from the mouth, the swab on the inside of the cheek, which is not intrusive and does not hurt unless you resist. I warn you as I must, that if you resist the taking of that swab, police can use reasonable force to have it taken.
127The timing of that will be on the order. It may be - I think you do not go for the first 14 days and then there is a 28 day period left in which you must go t a police station to have the sample taken. That should take it until after the birth. If there is a difficulty with you actually attending a police station in that time, if you make contact with the police about that, I am sure they will be - if the reasons, a newborn baby and any complications from that, there should be some accommodation made.
128I also make the order that was generally sought against all involved for the disposal of items used? Yes, disposal order for items seized from being used in relation to the charge of false imprisonment.
129I state for the purposes of s.6AAA of the Sentencing Act, that if you had not pleaded guilty but been found guilty of the charge of false imprisonment after a trial, and all other circumstances had been the same, I would have imposed with conviction a community corrections order of 18 months with the same therapeutic conditions but additionally 75 hours of unpaid community work.
130You can take a seat or stand however you are more comfortable. We have to pause here to have the order produced because Ms Warden needs to be able to sign the order and I sign it before she can leave. I will then call a break for everyone before going on to the next person. Can we have the order produced?
131Is the address 19 Hall Street? All right. I will have that shown first to your counsel and the prosecutor and if they have checked it, taken to you and then you are to read it and sign it. All right. I will ask my Associate to bring that to you, check it Ms Warden and if you agree, sign it.
132I have signed the Community Corrections Order, copies will be made so one can be taken with Ms Warden and one obviously for the prosecution also. Now the forensic sample order, I think it normally includes a list of police stations, do we have a version with that? Has someone got a list?
133MS HANCOCK: Your Honour if it assists at all, the closest police station I am told is Cheltenham Police Station.
134HER HONOUR: All right. The address is in the order, and to Cheltenham Police Station, I normally see them with the list attached. All right. I will call a break, it will realistically be ten minutes by the time everyone comes in and out of the court. Ms Warden, you are now excused from further attendance in this matter.
135MS HANCOCK: Your Honour given Ms Warden's excused, may I also seek leave to be excused?
136HER HONOUR: Yes.
137MS HANCOCK: Thank you, Your Honour.
138MR BATTEN: Your Honour I just wonder given that Your Honour has sentenced Ms Warden to a term of imprisonment and fixed a period of presentence detention, I'm not sure whether she'd be able to leave immediately leave from the dock. I may stand corrected about that Your Honour but ‑ ‑ ‑
139HER HONOUR: Yes, I have been put under a particularly difficult situation today which should not have come about. Because I know of some medical information that I do not want to have to announce in open court, I would not have required Ms Warden to attend today. I would have deferred her sentencing until next year, and I do not want her taken into custody and I mean that seriously. Well can she be released? Is it only paperwork downstairs and she can wait in a room up here so that that can be brought to her?
140MR BATTEN: Your Honour I don't know, I just raised it and from experience if the ‑ ‑ ‑
141HER HONOUR: All right. I will have to check with the - I will have to have my - all right, do any of the custodial officers here know?
142VOICE (from body of the court): She is not in custody.
143HER HONOUR: She is not in custody at the moment, no, I have just imposed ‑ ‑ ‑
144VOICE: It's only from people that are in custody that have to go back down.
145HER HONOUR: They have to go downstairs?
146VOICE: Yes.
147HER HONOUR: All right. Thank you. The orders can be sent through but I do not want her taken downstairs and I do not want to have to go through the reasons I do not. All right. You are free to leave now, I will be asking for - yes, you can leave the dock. All right. I will stand the matter down for ten minutes, those in custody are to be removed first from the court then, please.
148MS PHAIR: Your Honour there is the continual question of my client's bail. I seek that be extended.
149HER HONOUR: I will not be reaching him before lunchtime. I have to work in the other matters that I have been told about, other people who come earlier in the queue.
150MS PHAIR: Yes, Your Honour.
151HER HONOUR: He is not to leave the building during this break and nor is Ms Diamante. It is a short break and while they are free to leave the court room but not the building.
152MS PHAIR: As Your Honour pleases.
153HER HONOUR: All right. We will stand the court down for ten minutes.
(Short adjournment.)
154HER HONOUR: All right. I shall resume and go on to Mr Bright. My reasons for sentence of him, and then I will call a lunchbreak because I could not finish two more before lunch.
155I move now onto you, Mr Bright. You can remain seated. Lachlan Bright, you are youngest member of this group before me. You were aged only 18 at the time of these events and are still only 20.
156I turn first to your role in the offending. I accept that you were not in control or the leader in committing these offences, and that you did not plan them in advance, nor it seems did anyone involved as the meeting with Mr Lee was entirely accidental. However, overall I regard your actions as the most serious of all of the six offenders here.
157You were present and actively involved from the start, being part of a heated discussion at the hotel and then, together with Mr Floyd, preventing Mr Lee from entering his car to drive away. Having been one of those who directed him to get into the car driven by Ms Diamante, you hit him in the car.
158Once at Ms Leigh’s unit, you were the one to assault Mr Lee the most over the course of the hours there, from hitting him in the face, to taking him to the garage and hitting and kicking him there. Moreover, you were the one to escalate these assaults, by use of heated implements to burn him. I shall not repeat the details, but I find those actions very concerning.
159Punching and kicking a person and hitting him in the face was dangerous and cruel. It is entirely unacceptable to use violence against someone to extract money from that person, whether or not the money is actually owed, and whether to the person committing the assault or anyone else. To take such actions against a man who was hopelessly outnumbered was also cowardly. The further measures you took were disturbingly cruel. Just because these types of measures may occur in television shows and in films, does not make them part of real life - and certainly not an acceptable part of real life.
160I am told by your counsel that you were acting at the direction of others, or that I should infer that you were because you were the youngest present. But it seems to me that although Mr Floyd was prepared to engage in some force, and Ms Leigh approved of force being used against Mr Lee, they did realise that some moderation was needed, which you apparently were not displaying. That prompted Ms Leigh to tell Mr Floyd to get you off Mr Lee. There is nothing to indicate to me that you were invited to or told to use those implements on Mr Lee by anyone else.
161It is the duration and extent of your violent participation which in my view was the most serious feature of your role, and requires the sentence on the charge of intentionally causing injury to reflect that. There were repeated intentional acts, which although none of them, even in combination, caused serious injury, were repeated, deliberate acts to injure Mr Lee. There was certainly overlap between your role in the false imprisonment and the intentional injuring of Mr Lee, but I have allowed some cumulation to reflect that your manner of intentionally injuring him went beyond what was otherwise part of the false imprisonment.
162There is one sign in this material of hope that you might have appreciated how outrageous your behaviour had become. That is that you apparently decided to remove yourself from the scene while Mr Lee was still detained at the unit. You told police subsequently that you thought you would have done worse to him had you stayed. The fact that you drove away in Mr Lee's car, shows a callous disregard for someone living in not dissimilar circumstances to yours at the time, except that he happens to have had a car bought for him some years earlier. However, I accept that you brought your involvement in the assaulting and detention of him to an end before he had been released - that is before the false detention had ceased. Further, you do not appear to have been present the next night when he paid the money but was still denied return of his car or other belongings.
163I turn now to your personal circumstances. From what I have been told, you had a disrupted upbringing which deprived you of long term stable family relationships and clearly did not instil in you much sense of purpose in life.
164I am told that your parents separated when you were only about two years old, and while the next few years provided some stability as you lived first with your mother and her parents and then with her new husband, with whom you got on for about four years, your mother continued to have her own problems and that marriage, like several subsequent relationships, ended. Your mother's own problems led her at times into violent relationships and also into shared houses, where you would have little stability.
165You lived with your father and his new family for about a year at age eight, and for a shorter, subsequent, period when they moved to Western Australia, but you did not get on well with his new wife and returned to your mother in Melbourne.
166Despite having half siblings with each of your parents, those relationships have apparently never developed for you.
167Such a history of residential moves inevitably led to changes in schools and disruptions in your environment and friendships. I am told that by the end of primary school, you are said to have shown behavioural problems. You wanted to attend a secondary school where you had friends, and you commenced at one such school, but it required long hours of travel. By the end of your first year there you were expelled for misbehaviour in class. You started Year 8 at another school, while living in a shared house with your mother's friends. You remained there even after she moved out for another relationship. You are said to have experienced stability by staying in the shared house, and to have gained good results at school over that year. You apparently enjoyed your studies, but struggled to comply with school rules and you were expelled from that school halfway through Year 9.
168You were apparently refused enrolment for Year 10 at other schools because of the two previous expulsions, so effectively you left school without completing Year 9. That is a pity because otherwise you apparently showed sufficient academic ability to have been able to go further with formal studies.
169By that stage, you must have started using drugs, but not so heavily as to interfere with your ability to study or work. You started an apprenticeship as an auto mechanic and tyre fitter, but are said to have been denied by your employer the time to attend the formal studies at TAFE, and also to have been underpaid because of being employed fulltime but on an apprentice’s pay. You stayed in that employment for approximately 18 months, but resigned eventually due to being unable to do a real apprenticeship combined with the low pay.
170You moved in with your mother again, but her circumstances were still unstable and led to your living with her in a house where others used drugs. I am told that you became a much heavier user of drugs at that stage, and became addicted. She was in another problematic and violent relationship and moved to a woman's refuge after a particularly bad experience of abuse, but at your age you were not allowed to stay there.
171I am told that then, at about age 16, you moved to a cousin's house in Bayswater where you lived for six months, during which time you abstained from using methamphetamine by shutting yourself away from the world and rarely leaving the house. You then moved to live with an auntie and her partner, and he offered you work as a builder's labourer which resulted in your undertaking work at very good pay. Unfortunately the extra money and spare time, because it was casual although sustained work, led to you relapsing into methamphetamine use. You also entered a relationship but she had her own psychological problems and I am told that that instability in your life, together with your drug use, caused you to lose your job after nine months.
172On losing that job, you could not afford to keep your accommodation, and for the next few months you were without stable accommodation and drifted between your mother's home and friends and associates. You met and started a relationship with Laini Diamante whilst living in one of those places and you also met Candice Leigh.
173Immediately before the offending with which I am dealing, you were using Ice heavily, not working and relying on drug associations for temporary accommodation.
174A disrupted and at times, deprived, background is not of itself mitigatory, but it does provide context for why you took the path you did and in particular, why you started or intensified abusing drugs. While the taking of drugs is usually to be regarded as voluntary, I accept that at the age you started, and with your childhood and teenage experiences, they contributed to you taking that course. Also while you must have been misbehaving to be expelled from two high schools, I accept that in your case lack of stable accommodation, let alone lack of family structure and support, contributed to your not getting the opportunity to complete further education. It is not of course too late for you to undertake further study, whether of a vocational type or more general.
175I regard as of some mitigation that your descent into heavy drug use and as a consequence loss of employment and homelessness by the age of 17, was at least partly attributable to your not having experienced satisfactory childhood supports and stability, and that was not your fault.
176You have a prior criminal record, and also some subsequent matters, and none of these reflect well on you. The record I have commences with a Children's Court appearance on 7 October 2013, for intentionally damaging property and failing to answer bail, for which a 12 month good behaviour bond was imposed. There were subsequent appearances the following month at Melbourne Magistrates' Court for burglaries and thefts and relevantly, on 14 November 2013, you were placed on a Community Corrections Order to last for 12 months with conditions for treatment and rehabilitation, including for drug use and mental health assessment and any other treatment and rehabilitation as directed. That was barely two months before you became involved in the offending against Mr Lee.
177Community corrections reports show that you incurred 17 absences within two months and completed only five hours of the 50 hours of unpaid community work which had been imposed. That reflects that you made minimal effort towards compliance with the order and did not take advantage of the treatment conditions. It also reflects that you were not sufficiently deterred by that sentence to keep away from trouble.
178It is an aggravating factor in the present offences that you committed them whilst on a CCO which should have made you more careful to avoid offending.
179When arrested for these charges, you did make a number of admissions to police about your involvement, but denied using implements to injure Mr Lee.
180You were then remanded in custody and although only aged 18, you were in adult custody for approximately five months until granted bail in late June 2014. I am told that you worked during that period in the metal factory and completed certificates related to welding. That experience, however, did not stop you from resuming the drug use or the same lifestyle as when these offences occurred.
181Days after being granted bail, you appeared at Melbourne Magistrates' Court on charges from 2013 offences, and you were again placed on a Community Corrections Order to last for nine months with both work and treatment and rehabilitative conditions. Again, you showed very poor compliance, specifically 15 absences within five months resulting in minimal progress being made and the order being returned to court. The contravention was found proved and the order ultimately approved in April of this year. However by then, other matters had taken their course.
182I take into account that you were only 18 years old at the time of the first Community Corrections Order and just 19 when the second was ordered, and that your lifestyle during both of those periods was clearly heavily affected by drug abuse, lack of employment, lack of accommodation, and also lack of family structural support. However, having just spent five months in adult prison conditions, the fact that you did not seem to attempt better compliance with the second CCO justifies the recent pre-sentence report I had requested that assesses you as unsuitable for a further CCO because of that poor compliance.
183It is clear that attempts to assist you with rehabilitation were not grasped at all by you. Further, although I am told the time spent in custody since then has made a difference to your appreciation of why you should comply if given another opportunity, I am somewhat sceptical that that is likely to be so, given that you had spent five months in prison between the first and second CCO and immediately before the second one was imposed.
184I am not bound by the pre-sentence report recommendation but I do not ignore it. The reasons given for assessing you as unsuitable are cogent, as well as your being assessed as at high risk of reoffending. Nevertheless, if I consider it appropriate to order a CCO to follow the term of imprisonment you have served to achieve sentencing purposes in the least punitive form that meets those requirements, I would make such an order.
185The history took another turn even after the second Community Corrections Order was imposed. Your bail was revoked on 17 February of this year. You faced court for further offences in March which had obviously occurred before February, for which a sentence of seven days imprisonment was imposed and on a finding of breach the CCO of November 2013 was confirmed. As I have said, subsequently the breached CCO of June 2014 has been confirmed.
186You have been in custody now since 17 February, 2015, that being ten months, of which seven days was spent in serving the sentence imposed in March, but the rest on remand for these offences.
187Moreover, as you were at MRC at the time of the disruptions at the end of June, you experienced the very much more restrictive conditions of total lockdown which were only eased marginally over the next two months and then with gradual increments in September. I read that you were involved in an incident on 6 September resulting in your being moved to a management regime which meant only one hour out of your cell each day. Then on 16 September, you were moved to Port Phillip Prison, under a management regime.
188Even though the period of ten days in the management unit in MRC may have been brought on by your own actions, I have taken into account that even at that time, and in particular the rest of the five months since the end of June, you have spent your time in custody in much more onerous conditions than the equivalent time in normal prison conditions, and I have regarded the last five to five and a half months of your pre-sentence detention as the equivalent of considerably longer than that under mainstream conditions, and reduced the time I shall impose accordingly.
189It is possible that these conditions have finally made sufficient impression on you as a deterrent, that is, to deter you from future offending. For the sake of your future, it is to be hoped so.
190I take into account that you have pleaded guilty to these charges. I mentioned that generally in relation to everyone in advance. I take into account that yours was the first plea indicated although it cannot be said to have been early, and came more than a year after a committal hearing at which the victim of the offending and Ms Stewart had to attend and be cross-examined.
191I am prepared to also infer from your pleas of guilty, an acknowledgement of your offending and some remorse for it, although there is nothing else to reflect your remorse.
192With your problematic background and history of offending before and since these events, it is clear that specific deterrence must play an important role in your sentence. I have significant hesitation about your prospects of rehabilitation, but as you are only aged 20 and are to be regarded as a young offender, I still consider that your rehabilitation should be a very prominent factor in your sentence.
193I cannot help but note that if this matter had resolved much earlier, such as at about the time of the committal hearing last year, I would have had you assessed as to your suitability for detention in a Youth Justice Centre, instead of adult prison. With that would have gone the opportunity for supervision under the youth parole system, which is not only much more flexible than the adult system, but pays considerable attention to the rehabilitation of young offenders. However, as you have now spent some 14 months in adult prison, and the last five-and-a-half months under heavily restricted conditions there, that opportunity has effectively been lost.
194Given your age, taken with your disrupted background and its leading you into drug addiction in your teens, as I have already said, I am satisfied that your rehabilitation is still worth pursuing, and should still play a prominent role in your sentence. Although unemployed and drifting by the time of this offending, you have some employment history, and apparently showed real application by persevering with an unsatisfactory start to an apprenticeship for about 18 months. If you can stay away from drug use on your release from prison, and can find employment, you will have the foundation for building a stable and better future for yourself.
195For these reasons, I am going to impose a sentence which recognises that the time you have spent in prison so far is sufficient, and in effect you will be released today with a CCO to immediately follow.
196That CCO will give you the opportunity to be assisted and supervised through rehabilitative programs on your release. As I have already said, I do not overlook the reasons why you were assessed as unsuitable, and I have real reservations about your commitment to address your drug abuse or possible mental health problems, but it is up to you to take advantage this time around of the opportunities offered under the Community Corrections Order.
197I will not impose further penalty by way of unpaid community work on that, given the time you have spent in prison.
198If you adopt the same approach that you have on the two previous CCOs, you will inevitably contravene the one I am imposing and be brought back before me. It will be up to you to show an entirely new attitude, Mr Bright, and it is to be hoped that at 20 years of age you have learned over the last two years the severe consequences of not taking control of your own life and addressing your underlying problems.
199I will not announce your actual sentence at the moment. As I said initially, I would only do that with Ms Warden, because I wanted to release her quickly for the rest of the day.
200Given the time, I will now adjourn for a lunchbreak. I have to, over the lunchbreak, read the further materials about Ms Leigh that were submitted. Yes?
201MS GIORGIANNI: Sorry, Your Honour. Before Your Honour adjourns, I am unfortunately required elsewhere after lunch, but I will have someone else to replace me to continue taking sentence if that's all right with Your Honour.
202HER HONOUR: Yes, as long as there is someone here for your client and familiar with his case.
203MS GIORGIANNI: There is. The actual instructing solicitor who has carriage of this matter will be present in court.
204HER HONOUR: All right. I did foreshadow when it was set for today that, even starting at 10 am, and even if there were relatively short further plea submissions, the sentencing was likely to take the best part of the day.
205MS GIORGIANNI: Certainly, Your Honour. I apologise, we've just had some - yes, it's been a bit ‑ ‑ ‑
206HER HONOUR: As long as you have squared that with your client.
207MS GIORGIANNI: He is more familiar with the practitioner that will be appearing, but I will canvas those issues with him.
208HER HONOUR: All right.
209MS RUDDLE: While we're on that particular topic, Your Honour, as I foreshadowed last week, I'm not available this afternoon.
210HER HONOUR: Yes, Ms Ruddle, you did foreshadow that, but you are going to have an instructor present.
211MS RUDDLE: Yes, Your Honour.
212HER HONOUR: It is unfortunate that you will not still be here when I reach your client's sentence, but that was on the cards unfortunately. And I brought Ms Warden forward. Otherwise your client would have been reached before lunchtime. All right, yes.
213MS RUDDLE: Thank you, Your Honour.
214HER HONOUR: You are released also. But I do require someone present for each of the remaining offenders, and being present for the rest of the day.
215MS RUDDLE: Yes, Your Honour.
216HER HONOUR: I do not know whether I will complete the matter today. It depends a bit on how much I can get through over lunchtime in reading the extra materials, and reworking them through the proposed sentencing remarks, and considering whether I need to adjust the actual sentences in light of what has emerged, including that I apparently had misunderstood the maximum penalty.
217It is also not appropriate for others to be talking during the course of the court hearing. I realise there are a lot of people present. It has been a long morning and will be a long afternoon. I will adjourn now until 2.15.
218ACCUSED MOSTERT: Can I speak to my barrister for a second?
219HER HONOUR: Yes, I will have those in custody removed from the courtroom first, please.
220ACCUSED MOSTERT: Can I speak to my barrister?
221MS RUDDLE: Your Honour, my client's bail, and may she leave the court building?
222HER HONOUR: Those on bail can leave the court building, but must be back in advance of 2.15PM. No, I am going to say that Mr Mostert must be back at two. I will not be on the Bench then, but your record, Mr Mostert is of being late any time you have actually attended, so you must be back by two. Adjourn until 2.15. You may of course talk to your barrister during the lunch break.
223LUNCHEON ADJOURNMENT
224UPON RESUMING AT 2.27 PM:
225HER HONOUR: All right, I will proceed with what I have got to say about Ms Diamante and then I will, before going on to Mr Mostert, I will just hear from you, Ms Phair on what instructions you have had in the meantime.
226MS PHAIR: Yes, Your Honour.
227MS KEOGH-BARNES: If Your Honour pleases, I now appear for Ms Diamante.
228HER HONOUR: Sorry I have got to work out who. Ms Keogh-Barnes, yes, thank you.
229MS NGUYEN: If Your Honour pleases, I now appear for Mr Floyd.
230HER HONOUR: Yes, Ms Nguyen.
231Laini Diamante, you are now aged 23 and were 21 at the time of these offences. I am told that at the time of this offending, you were living, on what is called an ad hoc basis, at Candice Leigh's place, and had been for some months on and off before that.
232You had met and had a short relationship with Mr Bright over the preceding months, but that had ended by the date of these offences.
233I am told that on 19 January 2014, you were requested by Mr Bright to collect him from the Monash Hotel, although I do not know whether that was before or after Mr Lee had arrived there. I am told that you were heavily affected by methylamphetamine at the time, in that you had been awake overnight due to the effects of that drug. That did not stop you from undertaking driving.
234As to your role and blameworthiness in the offending against Mr Lee, it is conceded on your behalf that you took an active role in the first stages, but your counsel submits that your role from thereon was as an aider and abettor.
235You apparently claim very little clear recollection of the overall incident, and describe it as “a bit of a mob mentality”, and that you went along with the crowd.
236Your counsel submits that your involvement, and in particular your acquiescence over the course of events at the unit, including the violence towards Mr Lee, should be seen in the context that the people at this unit were effectively your family at the time, as you had had little support from actual family since the time of your mother's death, and you were residing amongst them and went along with what they were doing.
501MR BATTEN: Yes, Your Honour.
502HER HONOUR: All right, I will sign that in due course. I have said I will make that order. If the CCO can be shown to counsel and if appropriate, I will have Mr Mostert sign it and then I will proceed with MR FLOYD’s sentence. All right, I will ask - has Mr Batten checked the CCO?
503MR BATTEN: Yes, I did, Your Honour.
504HER HONOUR: Yes, all right. I will ask my associate to take it to you, Mr Mostert, to sign. Have a read of it and sign it to indicate your agreement to comply. All right, that community corrections order has been signed and copied.
505Just before I formally sentence Mr Floyd, is there any agreement on his pre-sentence detention?
506MS GIORGIANNI: My conclusion is 108 days in relation to this matter.
507HER HONOUR: That is up to but not including today?
508MS GIORGIANNI: Yes, Your Honour.
509MR BATTEN: I accept that, Your Honour.
510HER HONOUR: I added ten days to the 98 I was told as of last - I think your calculation was up to but not including last Monday.
511MR BATTEN: Yes. Yes.
512HER HONOUR: And I added ten days.
513MR BATTEN: Yes.
514HER HONOUR: So it's Monday, Tuesday, Wednesday, Thursday, Friday, Saturday, Sunday, Monday, Tuesday, Wednesday, that is ten days, not including today, which is Thursday.
515MR BATTEN: Yes. All right, Mr Floyd.
516MR FLOYD, on Charge 1 of false imprisonment, you are sentenced to nine months' imprisonment. On Charge 3, theft of Mr Lee's car, phone and other items, you are sentenced to three months' imprisonment.
517On Charge 5 of intentionally causing injury to Mr Lee, you are sentenced to eight months' imprisonment.
518In all of the circumstances, I have decided not to direct any cumulation, so those sentences will be served concurrently and that makes the total effective sentence nine months.
519I declare 108 days of pre-sentence detention, up to but not including today as reckoned served, and direct that that be recorded in court records.
520I also make an order for a forensic sample to be taken from you. Again, it is limited to a scraping from the inside of the mouth and it won't be intrusive or hurt, unless you resist, but I must warn you that authorised officers can use reasonable force to take it if you do resist. The reason I make it is the seriousness of the nature of the circumstances of the offending.
521I also make a disposal order in respect of you. That is for the goods that were seized at the time.
522I state that but for the plea of guilty, if you had been found guilty of these charges after a trial, I would have imposed a total effective sentence of 15 months' imprisonment, with a non-parole period of nine months'.
523You can take a seat. I think - I have to sign off on the forensic sample form.
524ACCUSED FLOYD: Thank you, Your Honour.
525HER HONOUR: And I will otherwise sign that order promptly.
526MR TOMLINSON: Your Honour, just in relation to Ms Leigh's sentence tomorrow.
527HER HONOUR: Yes.
528MR TOMLINSON: Would Your Honour grant me leave to appear unrobed?
529HER HONOUR: Yes. It will not matter ‑ ‑ ‑
530MR TOMLINSON: Thank you, Your Honour.
531HER HONOUR: Well, it is the formal sentence, but I am not fussed if people robe or do not robe. I will be robed and Mr Batten will be robed. I have not checked that you are available at that time tomorrow, Mr Batten, but I am assuming if you are not, that someone from the Crown will be.
532MR BATTEN: Yes, Your Honour, I've got a matter - a sentencing matter in front of Judge Ryan at ten, but I would expect that would be finished ‑ ‑ ‑
533HER HONOUR: I have got another sentence at 10.30.
534MR BATTEN: Yes.
535HER HONOUR: That is why I have made it 11.30.
536MR BATTEN: Yes.
537HER HONOUR: Because it's the signing of all the paperwork that - first of all it takes a while for me to explain my reasons, but then there is always ‑ ‑ ‑
538MR BATTEN: Yes.
539HER HONOUR: ‑ ‑ ‑ time afterwards for the paper warfare. It will not be as much as there is in this case, but if you are held up, can you either let us know or have someone else attend?
540MR BATTEN: I will, Your Honour, yes.
541HER HONOUR: Your instructor might like to email through to my associate an updated calculation of pre-sentence detention for Ms Leigh.
542MR BATTEN: Yes.
543HER HONOUR: I think I have done a calculation, but I am not sure if I am right. What I have basically done is add ten days to whatever the figure was last Monday.
544MR TOMLINSON: Yes, Your Honour.
545MR BATTEN: We had a figure that we would propose for today of 143 days, but we'll verify that, Your Honour. In any event, it's at least ‑ ‑ ‑
546HER HONOUR: Yes, it's probably what I already had.
547MR BATTEN: It is at least 144 by the time we get to tomorrow, but ‑ ‑ ‑
548MS KADDECHE: Yes, that was my calculation.
549HER HONOUR: Yes, that's the other issue, that there's got to be ‑ ‑ ‑
550MR BATTEN: Do you agree with that?
551MS KADDECHE: So 143, not including tomorrow, is what I understand it - 144 including tomorrow, is that right?
552MR BATTEN: If Your Honour was sentencing today, ‑ ‑ ‑
553MS KADDECHE: Or tomorrow.
554MR BATTEN: ‑ ‑ ‑ we were going to indicate the figure was 143 days, not including today.
555HER HONOUR: Well that would mean it will become 144 by tomorrow.
556MR BATTEN: It will become 144 tomorrow, that that was our view, Your Honour.
557MS KADDECHE: That is correct, Your Honour.
558HER HONOUR: All right, I think I have signed all the orders bar one. All right, I will be adjourning the hearing which is now only in respect of Ms Leigh until 11.30 tomorrow morning. Mr Floyd is to be returned to custody. I have signed the order for him. I am just working through. Mr Bright, I think, goes back downstairs to be processed and Ms Diamante and Mr Mostert can leave. They have been sentenced. Something to raise, yes?
559MS PHAIR: Just one issue matter, Your Honour. In Your Honour's reasons for the ‑ ‑ ‑
560HER HONOUR: 464ZF?
561MS PHAIR: ‑ ‑ ‑ 464ZF application, you stated it was for the circumstances of the offending.
562HER HONOUR: Yes.
563MS PHAIR: However it's just not marked on the actual order itself.
564HER HONOUR: I tick the box very often and I must have missed one copy. Is it on the other copies, the Crown's and the ‑ ‑ ‑
565MS HANCOCK: It is on my copy.
566HER HONOUR: I have not signed this one at all, now I come to look at it. Is this the right one? That is because this was handed back for the corrected address. I haven't signed any copies of this yet. The right police station.
567MS PHAIR: Yes, Dandenong ‑ ‑ ‑
568HER HONOUR: I had not seen it at all. It was not signed at all by me. All right, Ms Phair, heaven forbid there would be one 464ZF order for the day that I have not signed.
569MS PHAIR: Just a matter for completeness, Your Honour, did Your Honour want to initial the handwritten amendments on the disposal order?
570HER HONOUR: I did. The disposal order, no, that is only the date.
571MS PHAIR: Certainly, Your Honour.
572HER HONOUR: It is only changes to the content that I initial, that is the limiting it to the saliva sample and the police station to report to.
573MS PHAIR: I just raised it for completeness, Your Honour.
574HER HONOUR: No, the dates are always having to be changed, so I don't finish all those, or I could be here until midnight. I am not making light of initialling them, but the date is not - it is part of the heading of the order. It is not the substantive order that I am signing off on. All right.
575I will have Mr Floyd taken from the court please. And Mr Bright, but he will be released.
576All right, can we adjourn until 10.30 tomorrow morning.
‑ ‑ ‑
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 14-01159
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CANDICE TUI-AROHA LEIGH |
----
| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7, 8 December 2015 (plea) 9 December 2015 (mention) |
| DATE OF SENTENCE: | 18 December 2015 |
| CASE MAY BE CITED AS: | DPP v Leigh |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1939 |
REASONS FOR SENTENCE
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Subject: Sentencing; false imprisonment; theft; intentionally cause injury
Catchwords: Pleas of guilty; 6 offenders in same course of offending; varying degrees of involvement in offending; collective drug use; individual circumstances and rehabilitative prospects; circumstances arising out of collection of drug debt; immigration consequences of sentences; New Zealand citizen
Legislation Cited: Sentencing Act 1991 s 6AAA
Cases Cited:R v Renzella [1997] 2 VR 88; R v Verdins; R v Buckley, R v Vo [2007] VSCA 102; Boulton v The Queen, Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342
Sentence:TES: 5 months imprisonment followed by 8 month CCO with rehabilitative conditions
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N Batten | OPP |
| For the Offender | Ms N Kaddeche Mr P. Tomlinson (on sentence) | Haines and Polites |
HER HONOUR:
1Candice Tui- Aroha Leigh, you are now aged 25, and were 23 at the time of this offending.
2In assessing your role in the offending and the seriousness of the criminality, I take into account first, in your favour, that you did not know that Mr Lee and Ms Stewart were going to be brought back to your house. Mr Lee had already been forced to come there against his will, but you had no part in that. There was clearly no preplanning of bringing him back to your house and the idea seems to have arisen spontaneously and chaotically, and the group all arrived at your house, bringing Mr Lee with them, with Mr Stewart refusing to leave him.
3Further, I accept that, from the time they arrived, you did nothing to encourage violence being used on Mr Lee. However, the unit of which you were a tenant was, apparently, a venue for all of the others to visit, at least for the use of, if not also acquisition, of drugs and in particular methylamphetamines. Also, from time-to-time, most of them had stayed there when without other accommodation. Some were staying at your unit at the time.
4I am satisfied, beyond reasonable doubt, that you had some control over access to this unit and those who came there. Your role with Ms Collins is totally unexplained, except for the fact that she was said to be a person living there at the time. I am satisfied beyond reasonable doubt that, from the time that Mr Lee was brought there by Ms Diamante, Mr Bright and Mr Mostert, followed by Mr Floyd[3] and, for a brief period, Ms Collins before she left, control of the debt collection operation was with you.
[3] The name of this accused has been anonymised and substituted throughout the sentence in accordance with existing Suppression Order made under s 17 of the Open Courts Act 2013 (Vic) prohibiting publication of identity.
5You certainly immediately increased the amount demanded for repayment and no one questioned your right to do that. You verbally engaged in making demands of Mr Lee, suggesting ways he might acquire the cash to make the payment. When no ready solution evolved, you at least condoned the removal of Mr Lee to the garage. This, I infer, was intended by all to increase the intimidation on him, and once Mr Bright, assisted by Mr Floyd, started physically assaulting Mr Lee, you did not intervene to stop it until you thought that Mr Lee's cries might attract attention from the neighbours.
6
You were present for the use of heated implements being pressed onto
Mr Lee, which I have described as “torture”. You did not prevent those from occurring and are not only complicit in the offence of intentionally causing physical injury, that offence consisting both of the use of those implements on him and also the punching and kicking of him, but you did not prevent those. The escalation of the type of treatment of Mr Lee during the course of the false imprisonment makes the general circumstances of the false imprisonment more serious, as I explained yesterday.
7
I take into account that you did exercise some judgement in asking
Mr Floyd to stop Mr Bright's physical assaults on Mr Lee, and that you were part discussions after Ms Warden's arrival, of a means of resolving the situation by securing the payment by way of a transfer of the vehicle. You were, however, the person to whom the money was paid the next day, but made no apparent effort to honour the promise to Mr Lee that his car, and its contents, would be returned and the transfer forms signed by him destroyed.
8When I asked, during the course of the plea hearing, what had occurred with the car, I was told it was a former boyfriend of yours who was also sleeping at your place, who drove it away and gave it to someone else. For the transfer to be registered by three days later, you must have given the signed form to whoever arranged that transaction, whether it was your former boyfriend or someone else, because the form had been returned to you by Ms Warden on 19 January, with Mr Lee's signature.
9While I note that you are not charged with theft of Mr Lee's car, because of the categorisation by the prosecution of the timing of the theft being before anyone arrived at your house, I take into account that you had an ongoing role in the aftermath of the false imprisonment and theft of Mr Lee's personal items, which reflects that you were not a fringe participant in the overall offending.
10
I categorise your role, overall, as one of having some control once the offending was brought to you, although you had no role in instigating it. I assess your role, overall, as less serious than that of Mr Bright because of the extent and duration of his active aggression in these events and his violence, and different from, but generally comparably blameworthy to that of
Mr Floyd. It is the fact that you maintained an element of control of the situation once it had reached your unit, and continued it for many more hours, that I have taken into account in reaching that conclusion.
11I turn now to your personal history. You were born in Sydney to parents of New Zealand origin. One side of your family is of Maori descent.
12I am told that during your childhood your family moved back and forward between Australia and New Zealand, and your schooling was interrupted as a consequence, with you undertaking primary school in New Zealand and then, at age 12, moving to Melbourne. You attended secondary school in Melbourne and completed half of Year 11. After leaving school you started, but did not complete a Diploma in Beauty Therapy. You completed some short courses in hair and beauty. You have certificates in some beauty therapy processes. You have also undertaken some courses while on remand in prison.
13It is said that the turning point came in your life - and that is a turn downwards - in 2012, when you moved out with a boyfriend and this is when your drug problem commenced.
14Your parents separated and I am told that you have had limited contact with your father, although I am not sure from what stage. Your mother apparently moved back to New Zealand in 2013. I am told that you are close to your mother and apparently, later that year, you went back to New Zealand to be with her, and to remove yourself from the influences causing your drug problems.
15However, you returned to Melbourne and to the same habits and, as at January 2014, you were living at that unit in Noble Park, which you apparently made available to a large number of people who were also drug users looking for places to use drugs, in particular “Ice”, and allowing them to stay if they had no immediate accommodation.
16You had no prior criminal history at that time, although when I say that, it is in the context that you had, apparently, been abusing illegal drugs for a year or more before these offences. I am told that before 2012 you also had an alcohol problem. Nevertheless, you come before the court with no prior criminal history.
17… Sorry I am - I think I am reading from what is not my last version of how I meant to frame this topic, and I am going to ask my associate to reprint it off- I'm sorry about this. I was in court for longer than I expected this morning, and I did not reprint it off and I think I had rephrased some parts.
18I do apologise for that. I am coming back to what I had said that you have no prior criminal history - and must be treated as having no such history in coming before the court for these charges.
19There were, however, various offences which have come before the courts subsequently. These had been committed in 2012 and 2013, and came before the Melbourne Magistrates' Court in april 2014. There was a number of charges; some driving-related, including exceeding the prescribed alcohol concentration, as well as possession of a controlled weapon and ammunition, and of drugs, and charges also included aggravated burglary and thefts and failing to answer bail. In April 2014 you were placed on a Community Corrections Order for 18 months, with conditions for unpaid community work and also for treatment and rehabilitation. You seem to have made little effort to comply with that Order, failing to initially report within two working days, completing only nine hours of unpaid community work, and incurring fourteen absences within four months.
20A contravention hearing was held on 3 March of this year, and resulted in you being given a further opportunity to complete that Community Corrections Order. That was immediately following 108 days you had served in custody for some other offences. On this second chance of a CCO, you failed to attend 12 supervision appointments within four months, missed five drug treatment appointments over a period of two months and completed no unpaid community work. In these circumstances it is hardly surprising that you have been assessed as unsuitable for a further Community Corrections Order due to your poor efforts on the last two occasions. You have also been assessed as being at high risk of reoffending, according to the Risk Assessment Tool used by community corrections services.
21You attempted to explain your non-compliance to the community corrections officer who assessed you for this report with excuses, which the author of the report shows were palpably incorrect because of their timing. The only part that is probably correct is when you ultimately attributed your non-compliance mainly to drug use during that time.
22You have expressed willingness to comply if granted another opportunity on a Community Corrections Order, but there are grounds to be sceptical about your real intentions in that regard. Those previous Community Corrections Orders were imposed after you had served three months in custody following your arrest and remand on the matters with which I am dealing. You were placed on the first Community Corrections Order virtually at the time you were released on bail, and yet that imprisonment did not have enough of a salutary effect on you to prevent you resuming drug use and feeling little obligation to comply with the order. On the second occasion, you had just served 108 days in prison on other offences and, again, that did not motivate you to comply.
23Your history of offending over the last three years reflects the type of drug-affected lifestyle you were living. With this record, it is clear that specific deterrence must be an important factor in your sentence, that is, to deter you from future offending by showing that offences such as those in which you engaged will attract serious punishment.
24You are, however, still relatively young. I am told that you do not have any family support in Melbourne. I am told that although one sister still lives here, she does not approve of your drug use and you have not sought contact from her while you have been in prison as you are said to be ashamed of your behaviour and feel guilty for letting your family down.
25As you are still a New Zealand citizen, although born in Australia, your visa status in Australia is in jeopardy if you receive a sentence of 12 months or more imprisonment. I note that you have already received a sentence earlier this year of 108 days and it would seem that any sentence exceeding eight-and-a-half months might place you in that position. A return to New Zealand would not necessarily be detrimental to you, insofar as that is where your parents both live, as well, I am told, as further extended family. You are, in particular, close to your mother, but I do take into account that you have spent most of your adult life in Australia.
26I am told that your mother came to Melbourne to assist you while you were on a Community Corrections Order in 2014 but that after she left you relapsed into Ice use. That is not entirely consistent with the report from Community Corrections, that you failed to attend numerous appointments within the first four months of that CCO. However, I accept that when you were with your mother there was more chance of you controlling your drug use and staying out of trouble.
27You apparently do have some friends in Melbourne who have, at least, been supplying some money for you to pay for phone calls to New Zealand. I am told that you have a new boyfriend, and another friend with whom to live on your release from prison. I am told that you would like to complete a Beauty Therapy Diploma here and work in that field. Whether in that field or not, you seem to be intelligent enough and capable enough to hold down employment if you tried, so there are prospects for your rehabilitation if you genuinely resolve to cease the drug abuse and want to build a responsible life for yourself.
28While in custody you have completed some courses, including one on offending behaviour, and also one of workplace safety, and I think it was the White Card Day. I have now seen the certificates for these. I have also been provided with one clear urine screen result sheet from October this year to reflect that you were abstaining from drugs in prison.
29I am told that you do recognise that Ice addiction was your downfall, and that that only really commenced in 2012. It seems to have commenced when your mother was still living in Australia, but you had moved out to live with your boyfriend at the time. That is not such a long and engrained addiction to this drug as many others who come before this court and, indeed, that of most of the others with whom you have been sitting in the dock for these offences.
30You have never engaged in concentrated rehabilitation for your drug abuse and, in particular, have not been in residential rehabilitation. I was told this as if that might be a prospect for you. It does not appear that you have ever investigated or sought out any such program. I very much doubt that is the type of rehabilitation for drug abuse that would be arranged or coordinated through a Community Corrections Order, although if you arranged such a program, I expect Community Corrections would approve it.
31You are entitled to some leniency for pleading guilty to these charges, even just days before the trial was due to start. I explained about this yesterday, but say again as it applies to you, that there is still some utilitarian value in your plea. It did save the time and cost of a trial and the need for Mr Lee and Stewart to attend to give evidence and relive those events, although there had been a committal hearing over several days last year when they had to give evidence. I accept your pleas of guilty as acceptance of responsibility by you for your offending. I find it harder to infer that it reflects much remorse, not only because of the lateness of the plea, but from your manner in court.
32I raised with your counsel that you appeared to find humorous, part of the arraignment procedure, and that you were smiling frequently during the Crown Opening describing the circumstances of the offences. The first matter may have been because of the pronunciation of your middle name. I watched your manner, however, through the course of the days of hearing as you have sat in the dock. I am sceptical about there being genuine remorse in you, that is, genuine regret for what you did to Mr Lee. There may well be regret for the situation in which you find yourself.
33Following your arrest, you were remanded and not granted bail until late-April 2014. You spent 93 days in custody between those dates but, as I have said, after being granted bail failed to comply with a Community Corrections Order. You spent a further 108 days in custody, not towards these matters, and were released in March of this year, again, to have the opportunity of compliance with a Community Corrections Order which, once again, you breached. I gather that latter matter is still to come before a court in February next year.
34On 25 September this year, you were arrested and remanded for two other matters. I am not aware of their details. One is scheduled to come before the Moorabbin Magistrates' Court on 15 January 2016 which charge, I am told, will be contested. You are also on remand for other charges, as I have just said, to be heard, I think, together with a CCO contravention, on 16 February.
35You did not apply to have this bail, that is, the bail on the current matters, revoked until 27 October this year, so the amount of time that you have been remanded for these matters, adding to that before you were first granted bail, totals 144 days up to, but not including, today. I do take into account that you have spent some other time in prison although, as I have also said, it does not seem to have had the salutatory effect of bringing you to realise the value of complying with a CCO or failing to commit further offending, although I am not prejudging whatever the matters are that are coming on next week.
36I am urged to find that the 144 days up to date are sufficient time for you to have spent in prison and to sentence you to that period, which would be time served, to be followed by a Community Corrections Order.
37In my view, the sentencing requirements of specific and general deterrence and denunciation of this type of offending would not be sufficiently met were I to impose only the time you have already served, given your level of participation and blameworthiness in this offending. You are still relatively young, however, and prospects for rehabilitation, although I regard them as guarded given your history since these offences, should still be given some significance. I have said how sceptical I am about whether you have really reached a stage of committing yourself to rehabilitative programs and, in particular, to addressing your drug addiction. I note that the reasons for you being assessed as unsuitable for a further CCO were your non-compliance on the two previous occasions. Those reasons are cogent, given your history over those periods.
38I have considered the similarities in level of culpability between your role and that of Mr Floyd and, although he has a more serious and longer prior criminal history than your subsequent one, he has some call for mitigation for the anxiety and depression he has been diagnosed as suffering, which is likely to make his time in custody harder. I have considered imposing a total effective sentence that is a straight period of imprisonment only a little shorter than that for Mr Floyd.
39Ultimately, given your age and relatively recent descent into drug-related criminality, I have decided that you should be sentenced in a manner which will allow you to undergo supervised treatment and rehabilitation if you really wish for that opportunity. I remain sceptical about your real commitment to this but, notwithstanding your very poor compliance on the last two occasions, I am going to impose sentences that involve imprisonment to be followed by a CCO. It will be up to you whether you are actually committed to trying harder this time to stay off the drugs and away from the influences that involved you in the lifestyle which led to your offending.
40Would you stand up now please.
41Candice Leigh, on Charge 1 of false imprisonment, you are convicted and sentenced to five months' imprisonment to be followed by a CCO to last for eight months. I will tell you the conditions of that shortly.
42On Charge 4 of theft of Mr Lee's personal items, but not his car, you are convicted and sentenced to one month imprisonment.
43On Charge 5 of intentionally causing him injury, you are convicted and sentenced to four months' imprisonment.
44I shall not direct cumulation, so the total effective sentence is five months' imprisonment to be followed by a CCO for eight months.
45The conditions of that CCO are: first, that you are to be under supervision throughout the order of community corrections officers. You are to attend assessment and treatment, as directed, for drug abuse with testing, which I recommend be at least fortnightly for the first three months. You are to attend for assessment and treatment, as directed, for alcohol abuse. That was raised as one of the preconditions and recommended, although it had not been involved in the actual offending. You are also to attend, as directed, for programs to reduce offending behaviour, and I impose a penalty component of 40 hours of unpaid community work. That is much moderated, having regard to the fact of the time in prison you have served.
46I declare the 144 days of presentence detention as reckoned served, and I direct that to be recorded in court records. On my calculations you would be released next week. I think it - is it six or seven days? Today will count also, so that's - is there something wrong with that calculation?
47MR THOMLINSON: Nothing wrong with the calculation, Your Honour. She won't be released, though, because of those issues.
48HER HONOUR: No, of course not. She's still remanded on the ‑ ‑ ‑
49MR THOMLINSON: Yes.
50HER HONOUR: This sentence would expire next week. Thank you for correcting that, I had forgotten about those. The CCO will commence when you are released from prison. It gets delayed until then, even if it is not on this sentence.
51I state that, but for the pleas of guilty, I would have imposed a term of imprisonment of 12 months, with a non-parole period of six months.
52I will make the forensic sample order that was sought in respect of you, that is to enable your DNA to be placed on the State's database. I make it because of the seriousness of the circumstances of the offending. I limit that to a scraping from the inside of the mouth. Although it is called a scraping, it is just a swab rubbed against the inside of the cheek and, provided you do not resist, it will not be painful or intrusive. I am obliged to tell you though, that if you resist it being taken, authorised officers can use reasonable force to take it.
53There was also a Disposal Order sought against you, as everybody else, which I think I pre-signed last night. Take a seat while I check the details. Are the calculations correct?
54MR THOMLINSON: Yes Your Honour.
55HER HONOUR: Mr Batten? You're looking as if there is a query? Have I got ‑ ‑ ‑
56MR BATTEN: No, there's no query Your Honour.
57HER HONOUR: All right. In that case the orders will be produced. What address will she be likely to be living at? I think it was Rowville.
58MR THOMLINSON: It is. I've got the exact address Your Honour. It's Unit 2/137 Waradgery - it's W-a-r-a-d-g-e-r-y - Drive in Rowville. Just for Your Honour's associate, the postcode is 3178.
59HER HONOUR: The CCO's being shown to both counsel to check.
60MR THOMLINSON: Yes that's all good Your Honour.
61HER HONOUR: Yes. I've just realised, I've been doing so many of these yesterday and today, I can't recall if I've explained the usual terms and asked if your client agrees to comply. I think I mightn't have on this?
62MR THOMLINSON: You haven't done that Your Honour.
63HER HONOUR: No, all right, I must do that. I've been doing it so often in the last two days that I'm sorry - it's almost on a tape recorder, but it doesn't detract from the fact that I should make sure everybody is aware of these.
64Ms Leigh, I have told you the conditions of the Community Corrections Order, which are the supervision, attending for the assessment and treatment for drug abuse and undergo testing at least twice a week for the first three months, assessment and treatment for alcohol abuse, programs to reduce reoffending and the 40 hours of unpaid community work. In addition, all usual terms of a Community Corrections Order apply. I know you have heard them before, but they are: first, to report within two working days of your release from prison to the nearest Community Corrections office, which is Dandenong from the Rowville address. You must submit to any visits imposed or required by community corrections officers. You must obey all lawful instructions and directions from them. You must report to them any change in address of where you are living or where you are working within two clear working days of that occurring throughout the eight months of the Order. You must not leave the state of Victoria without prior permission from community corrections officers and, most importantly, you must commit no further offences during that time.
65And, if I have not made it clear enough to you and all your co-offenders, the use of illegal drugs is an offence which, if you were found and charged with that, would amount to a breach of the Community Corrections Order.
66Now, if you breach that Community Corrections Order it is, nowadays, called a contravention, you can expect to be brought back in front of me, that's whether it is for further offending or for non-compliance with the terms and conditions. If you were brought back for a contravention, that is, itself, a separate offence for which you could be separately punished. But my powers in relation to the charges here are that on the charge on which that is imposed which is, together with imprisonment, on the charge of false imprisonment of Mr Lee, I would have the power to confirm the order, to vary it by extending it or changing or increasing its terms, or to cancel the order and resentence you for the balance of what I think is an appropriate sentence on that charge. That would depend on the circumstances of the contravention and your personal circumstances at the time, but I think you have been before a court on contravention proceedings in the past, and may shortly to go before another one. So, I want to emphasise to you that - it is up to you - but if you do not comply with the order you can expect to be back in front of me with any of those consequences. Do you understand those terms and conditions?
67OFFENDER: I do Your Honour.
68HER HONOUR: Do you agree to comply?
69OFFENDER: Yes Your Honour.
70HER HONOUR: All right, well in that case I will have it brought to you for signing.
71(Community-based order signed and acknowledged.)
72HER HONOUR: I've signed that also. We will be given a copy and I think that deals with matters now.
73MR BATTEN: Does Your Honour's associate have the Forensic Sample Order and the Disposal Orders. We don't have them yet, Your Honour.
74HER HONOUR: All right. She has been busy typing the order. I have signed them already.
75MR BATTEN: Thank you Your Honour.
76HER HONOUR: Yes, you will each be given a copy.
77MR BATTEN: Thank you.
78HER HONOUR: That's the Forensic Sample Order and the Disposal Order. After yesterday afternoon of signing, I don't know how many copies of how many of those orders I signed, so I signed them in advance for this morning. You will see your client ‑ ‑ ‑
79MR THOMLINSON: Yes Your Honour.
80HER HONOUR: ‑ ‑ ‑ shortly, will you?
81MR THOMLINSON: Yes Your Honour.
82HER HONOUR: Can we have Ms Leigh taken from the court, thank you.
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