Director of Public Prosecutions v Brown
[2021] VCC 1522
•23 September 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-20-00447
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAILYN BROWN |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August and 15 September 2020 | |
DATE OF SENTENCE: | 23 September 2020 | |
CASE MAY BE CITED AS: | DPP v Brown | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1522 | |
REASONS FOR SENTENCE
Subject: CRIMINAL LAW – Sentence – Theft – Course of conduct charge – Accused stole approximately $120,000 from her employer over a four year period – Early plea – Remorse – Verdin's principles engaged – Impact of the COVID-19 pandemic on incarceration.
Catchwords: Theft from employer.
Legislation Cited: Crimes Act 1958, s 74(1); Sentencing Act 1991, ss 6AAA and 18(4)
Cases Cited: Melnikas v The Queen [2016] VSCA 112; R v Verdins [2006] VSCA; (2007) 16 VR 269.
Sentence: Combination sentence: 6 months' imprisonment followed on release by a 2-year community correction order with 100 hours of unpaid community work, supervision and treatment conditions.
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P Pickering | Office of Public Prosecutions |
| For the Accused | Mr B. Johnstone | Balmer and Associates |
HIS HONOUR:
Introduction
1 Kailyn Brown, you have pleaded guilty to an indictment containing one charge of theft. [1] This is a course of conduct charge. The maximum penalty for theft is 10 years' imprisonment.
[1] Indictment K13058486.1.
2 The circumstances of the offending are described in the detailed prosecution opening and were acknowledged by your counsel as agreed facts for sentencing purposes.[2] Over the slightly more than four-year period between 1 July 2015 and 29 August 2019, when you were aged between 29 and 33,[3] you stole numerous sums of cash from your employer totalling $120,043.90. Your offending only came to light fortuitously when your employer's accountant detected anomalies while examining some of the business records to assist a potential sale of the business.
[2] The opening is dated 20 July 2020 (Exhibit A).
[3] Ms Brown was born on 21 March 1986.
3 As the criminal record filed with this court demonstrates, Ms Brown has a relevant albeit somewhat aged and limited criminal history dating to when she was 19 years of age. On 4 December 2006, she was convicted and fined $500 for seven 'rolled-up' charges of theft.[4] That offending commenced in late January 2006 and involved 31 occasions on which she stole cash from her then employer while working at a suburban chicken shop. The total amount stolen was $1,670.[5] Ms Brown was arrested and interviewed on 31 March 2006. She admitted and explained her offending to police, saying that she had been in a 'bad situation' and was 'trying to pay off debts'.
Circumstances of the offending
[4] The charges were heard at the Ringwood Magistrates' Court.
[5] A compensation order in that amount was made against Ms Brown at the hearing.
4 I will now return to say something further about your current offending, Ms Brown, including the context in which it occurred.
5 In about 2013, you commenced to work for the victim, Linda Watts, at her Box Hill dental practice. Initially, you worked as a dental nurse on a casual basis, but then, in May 2015, you became a full-time receptionist and practice manager. From that time, your role included receiving payments from customers, banking and bank reconciliation and general administration. You were required to deposit cash and cheques in person at the bank and then file the deposit slip and any related documents with the software practice management programme, Dental for Windows. That programme allows for payments by patients together with the HiCAPS private health insurance. Most payments were made using credit cards and only a small percentage were made using cash or cheques.
6 In September 2019, an accountant engaged by your employer experienced difficulties while attempting to prepare the 2019 financial statements for the business; he discovered gaps in the information, including payment of Workcover and superannuation. On being told about this on 11 September, Ms Watts checked the cash book. The anomalies she uncovered made her suspect that not all of the cash payments being made by customers were being banked. Her attempts to contact you the following day to discuss the banking situation proved unsuccessful; you did not return any of her calls or text messages and you never returned to work.
7 On 16 September 2019, when Ms Watts' husband compared the previous two years of bank statements and deposits with the practice management program, he discovered major discrepancies between patient payments and the bank deposits. On the following day, he reported the matter to police. He then widened the scope of his investigation of the business accounts, going as far back as 1 June 2015.
8 The police investigation revealed that a total of $191,779.60 was paid by cash or cheque by patients of the practice in the period between 1 July 2015 and 29 August 2019. All of that money had been entrusted to Ms Brown to bank as part of her normal duties. Only $71,735.70 of that total was in fact banked by her, leaving a shortfall of $120,043.90. Just under half of that money was paid into her personal bank account. The balance could not be accounted for. None of the stolen money has been recovered to date.
Arrest and Interview
9 I note that on being requested to do so, Ms Brown attended the Box Hill police station on 25 November 2019 to be interviewed about this matter. She was then arrested and formally interviewed. She confirmed the fact, nature and period of her employment at the victim's business. Although she essentially exercised her legal right to give 'no comment' answers to any specific allegations, at one point in the interview, she said '$120,000 is a hell of a lot of money' and that she didn't see ‘how that was possible'.[6] Later in the interview, she professed to have decided to quit her job at around the same time that Ms Watts must have been trying to contact her about the banking discrepancies. When questioned about that apparent coincidence and how she would have known something was wrong, Ms Brown said, ''Cause I had an inkling, what can I say … I'm telling you I never took that much amount of money, there's no way … I'm not commenting on anything else'.
Charged and Bailed
[6] ROI, Q/A's 184-186.
10 Following the interview, Ms Brown was charged and then released on bail. She has remained on bail ever since and so there is no period of pre-sentence detention to be declared in this matter.
Early Plea
11 Ms Brown entered a plea of guilty to this charge at the earliest reasonable opportunity, namely at the committal mention hearing on 16 March 2020.
Victim impact
12 In her victim impact statement made on 21 August 2020,[7] Ms Watts describes the adverse impact that this offending has had on her in simple but powerful terms. She was shocked that someone who was so trusted could betray that trust in such a deceitful manner. She was psychologically and emotionally impacted and felt depressed and stressed for many months. She is still finding it very hard to deal with and is no longer a trusting person by nature.
Personal circumstances
[7] Exhibit B.
13 I now turn to your personal circumstances, Ms Brown.
14 You are now aged 34 years and are single with no children.
15 You are the youngest of five children in your family. Your father passed away when you were five years old. Your mother did not cope well initially but ultimately repartnered when you were about 13 years old. You have described your childhood as a fractured and unhappy one.
16 You have only limited contact with your family and last saw your mother in February of this year. You have not told your mother or any of your four sisters about your current difficulties with the law.
17 You have developed an extensive employment history since leaving secondary school mid-way through Year 10.
18 From 2003 to 2006, you worked as a shop assistant at Lenard's Poultry.
19 From 2004 to 2007, you also worked as a cleaner, on a casual basis, with a business named Aero Property Services.
20 From 2009 to 2011, you worked on a full time basis as a dental assistant, first at Unity Dental in Burwood and then at Shoppingtown Dental at Westfield, Doncaster.
21 From 2012 to 2019, you worked at Box Hill Dental, first as a dental assistant and for the last four years as the office manager.
22 It was in the first and last of those jobs, respectively, that your prior and current offending occurred. They are the only two jobs that you have undertaken to date in which you were entrusted with access to your employers money.
23 You have had a number of relationships to date.
24 The first of those commenced when you were 15. In the context of tensions with your mother's new partner, you went to live with your boyfriend and his family. That did not last long, however, due to a deteriorating relationship between your boyfriend and his father. It was an unstable time; you and he experienced a short period of homelessness and you left school. Later, you and your boyfriend moved into a family friend's house and then obtained rental premises. However, you experienced domestic violence at the hands of your boyfriend, whom you were working to support. It was in this context that you committed the prior offences of theft at age 19. You ended the relationship at age 23 when your boyfriend started to use drugs. Tragically, he died a few years later from a heroin overdose.
25 You returned to live with your mother for a year or so before embarking on what you have described as a 'good' relationship with Aaron Collins, a man whom you had met through mutual friends. It lasted for four years and ended when you were aged 28. The separation was difficult, however, and resulted in you taking out an intervention order against him on 23 December 2014, at the behest of the police, in circumstances where was alleged to have head-butted you to the face.
26 You met your most recent partner, Dane Burley, when you were 31 years old. He was unaware of your current offending until being contacted by police on the day of your arrest. As a result, he ended the relationship, although the two of you remain on amicable terms and have continued sharing a two-bedroom unit in Frankston.
27 Since this offending occurred, you have been unemployed and in receipt of Centrelink benefits. You appear to be somewhat socially isolated as your relationship with your family remains a strained and troubled one involving minimal contact. You do not have many friends. You have seen your friend Krissy on occasion but rarely leave home. You told the CCO assessing officer that you are supported by two close friends who are a positive influence. You still do not have a current driver's licence.
28 As for your future, you hope to obtain full-time employment again and to one day have a family and lead a more normal life.
29 The proceeds of your offending appear to have been directed substantially to funding your gambling activities. You have instructed your counsel that your first experience of gambling was at the pokies, when you were aged 18. Initially, you did not enjoy it. However, you believe that gambling became an escape and problematic for you after separating from your former partner, Mr Collins, when you were about 28. The amounts you gambled were initially small but increased over time. You estimate that you spent most of your wages on that doomed pursuit of happiness. You obtained a platinum card at Crown Casino and drank heavily during your gambling sessions. You also engaged in other forms of gambling online. According to your instructions, you have not gambled since being charged for this matter and have reduced but not ceased your alcohol consumption despite not having received any treatment or professional counselling for either of those problems.
30 You were assessed by the psychologist, Sandra Cokorillo, via a video conference that was conducted on 14 August 2020. I have read and had regard to her report, which is dated 24 August.[8]
[8] Exhibit 2.
31 You presented with a history of depression and anxiety symptoms which Ms Cokorillo inferred were initially developed in response to early and enduring maternal rejection following the loss of your father at a young age. In her opinion, the abusive relationship in which you were enmeshed led to the development of PTSD. In the context of your severely compromised mental health, low self-esteem and low coping resources, you developed addictive behaviours as a way of coping and escaping your traumatic stress.
32 In the history that you provided the psychologist, you said that you had begun drinking heavily during the abusive relationship as a way of coping. You have continued to binge drink, although that was only occurring on weekends at the time of the current offending. As for the gambling, you told Ms Cokorillo that it 'got out of control' in your most recent relationship as your partner also enjoyed gambling. You described feeling insecure and inadequate in that relationship and so turned to gambling as it was your 'only happiness'. Those gambling sessions always occurred in the context of heavy drinking.
33 As noted by the psychologist, the association between alcohol misuse and pathological gambling in PTSD has been established in the professional literature and is attributed to coping with stress and hyperarousal symptoms in up to a third of gamblers suffering from PTSD.
34 In her view, it is likely that your feelings of insecurity, inadequacy, and inferiority were heightened in your most recent relationship which probably resulted in an exacerbation of your depressive and PTSD symptomology, which in turn led to a recurrence of your gambling disorder as a way of coping. However, your acute intoxication with alcohol further contributed to you engaging in impulsive and reckless behaviour, and impairing insight, decision making and judgement. In short, it increased the risk of pathological gambling.
35 Ms Cokorillo adjudged your level of risk to be moderate-high on the basis of your past and current offending, history of alcohol abuse and more recently binge drinking, lack of supports, and emotional and personal factors including impulsivity, risk taking and poor self-regulation.
36 Fortunately, some of those risk factors are amenable to treatment and their effect can be minimised with such treatment to reduce your risk of reoffending. The psychologist considered you to be remorseful and open to engaging in interventions to support your recovery and rehabilitation.
37 In conclusion, the author of the report notes that, over the course of the offending, your ability to exercise appropriate judgement, make rational choices, think clearly and appreciate the wrongfulness of your actions was severely compromised by an exacerbation of your chronically poor and untreated mental health. In her opinion, you would likely have been able to exert more control over your behaviour and been better able to rationalise and weigh up consequences to your behaviour had you not been struggling with an escalation in your gambling disorder, which appears to have developed as a form of coping and escapism against chronic PTSD and major depressive disorder.
38 In her view, your mental health issues would likely be further exacerbated by any period of imprisonment unless you receive proper support. For example, you would benefit from engaging with a psychologist who also specialises in addictions to provide psychoeducation and specialised intervention to improve your insight into triggers, risk periods, alternative strategies and a relapse prevention plan. However, as the author also notes, it is unlikely that you will receive the treatment specific to your mental health issues while in custody. Any such custodial sentence, if imposed, should in her view incorporate a period of support and supervision after release to support your transition between the prison and the community and link in with relevant support services and treatment. Without such support, your level of risk will remain unchanged.
Matters in mitigation
39 Ms Brown, the matters in mitigation your counsel was able to rely on, included the following.
40 You entered an early plea of guilty to this charge, which has saved the community from the time and cost associated with a trial and spared the witnesses, in particular Ms Watts and her husband, from having to give evidence. By pleading as and when you did, you have facilitated the course of justice, taken personal responsibility for your actions and demonstrated some remorse. The utilitarian reason assumes even more significance in the current COVID-19 environment when the court is unable to progress any jury trials and therefore faces increasing listing pressures and a significant and increasing backlog of trials.
41 I accept that you are remorseful in light of that plea and the observations made by the psychologist, Ms Cokorillo, and to a lesser extent by the CCO assessing officer, Mr Dhillon.
42 In all of those circumstances, I am of the view that you are entitled to a significant discount in your sentence, the extent of which will be made clear later in these sentencing reasons.
43 You have a consistent work history.
44 You have a very limited and somewhat aged criminal history for someone who has faced the difficulties in life that you have to date, albeit that history still assumes some significance in this sentencing exercise.
45 When all relevant factors are considered, you should be considered to have favourable prospects for rehabilitation.
46 Mr Johnstone highlighted the psychologist's evidence relating to the nexus between your mental health and the offending and submitted that your moral culpability should be viewed as being somewhat reduced and there should be some moderation in the weight accorded to such other sentencing factors as general deterrence and denunciation.
47 Those same considerations, together with the interlinked issues of problematic gambling and alcohol abuse, should, he argued, inform the court's decision as to sentence and in particular the need to avoid or reduce any need for imprisonment and instead opt for a disposition focussed on therapeutic treatment and counselling which targets the causal factors for this offending.
48 Reliance was also placed, and understandably so, on the increased burden that any imprisonment would pose for you on account of your inexperience with the justice system, your compromised mental health, and the likelihood of an exacerbation of your conditions.
49 The current COVID-19 pandemic is another relevant consideration given the impact that it is continuing to have on the Corrections system. The potential relevance of the COVID-19 pandemic to established sentencing principles has already been considered in a number of cases.[9] As is to be expected, the jurisprudence in this area has been developing over time in line with the progress and impact of the virus, our increasing but still limited knowledge about it and the nature and extent of the restrictive measures that the Victorian Government has had to put in place from time to time to try and deal with it.
[9] See for example, Brown (aka Davis) v The Queen [2020] VSCA 60, [48] (Priest and Weinberg JJA) (23 March 2020); Nguyen v The Queen [2020] VSCA 76, [59] (Niall JA) (1 April 2020); El Nasher v DPP [2020] VSCA 144, [39] (Priest, T Forrest and Weinberg JJA) (27 May 2020); Astbury v The Queen (No 2) [2020] VSCA 158, [33] (Kaye, Niall and Weinberg JJA) (18 June 2020); DPP v Bourke [2020] VSC 130, [32] (Dixon J) (16 March 2020); DPP v Madex [2020] VSC 145, [27], [51]-[52] (Incerti J) (26 March 2020); DPP v Williams & Godfrey [2020] VSCA 483 (Lasry J) (7 August 2020).
50 Having regard to those cases, the rather unpredictable nature of the virus, and the roadmap which the Victorian Government has recently announced in relation to the easing of restrictions, I consider it appropriate to have regard to the following matters when determining the appropriate sentence in your case. The service of any custodial sentence will be a more onerous experience for you in the current COVID-19 environment than it would have been before the pandemic because of the following:
· On your initial reception into custody, you will be placed in quarantine isolation for a period of 14 days;
· Thereafter, and for the foreseeable future, you will be subjected to lockdown conditions, which may vary by degrees over time;
· You will not have the opportunity for contact (face to face) visits with family or friends, again for the foreseeable future;
· Courses and rehabilitation programs will be unavailable or if offered, will be more limited in scope; and
· You will likely suffer a degree of stress and concern about what you may perceive as being the increased chances of contracting the virus whilst in custody.
Comparative cases
51 Mr Johnstone sought to rely on a number of other cases which he described as comparative. He listed and summarised six decisions made by other judges of this court where the quantum of moneys stolen was, broadly speaking, similar to the amount stolen by Ms Brown.[10] In each of those cases, a stand-alone community correction order was imposed. However, each of those offenders were, unlike Ms Brown, able to rely on the fact that they had no criminal history and therefore fell to be sentenced as a first-time offender.
[10] DPP v Kane [2017] VCC 1741; DPP v Deo [2018] VCC 57; DPP v Bezuidenhout [2016] VCC 1070; DPP v Kiriakopoulos [2017] VCC 1297; DPP v Venn [2017] VCC 1043; DPP v Chapman [2016] VCC 231.
52 Such an exercise is of only limited utility. Each case is attended by its own set of circumstances concerning the offending and the offender. No two cases are ever truly alike and on all fours. In any event, a sentence in another case is not to be considered as a precedent to be followed unless distinguished. In part, that is because the law invests sentencing judges with a sentencing discretion. All relevant considerations must be considered, balanced and weighed as part of the sentencing synthesis that must be undertaken. In almost all cases, there will be a range of sentences available rather than a single correct sentence.
53 In this context, it is worth noting what the Court of Appeal said in Melnikas v The Queen.[11]
[11] [2016] VSCA 112.
Ordinarily, where a CCO is a possible sentencing disposition, the sentencing range reasonably open will be between a term of imprisonment at one end of the range to a CCO without a term of imprisonment at the other end. Often, as this Court has said many times before, reasonable minds will differ about which of these dispositions is appropriate or what length of the term of imprisonment or the duration of the CCO should be.
The fact that a CCO is now a sentencing option does not alter the latitude of the sentencing discretion. Specifically, because a judge might refuse to impose a CCO in a particular set of circumstances where another judge would do so, does not mean that the sentence falls outside the permissible range of sentencing options. Similarly, because a judge thinks that all of the sentencing purposes can be achieved by a term of imprisonment of two years together with a CCO of some length where another judge in the same circumstances might fix a much shorter term of imprisonment and a shorter CCO does not mean that the sentence is outside the range.[12]
Sentencing submissions
[12] Ibid at 15 [62]-[63] ( Redlich, Santamaria and Beach JJA).
54 Ms Brown, your counsel submitted that the appropriate penalty in this case was a suitably lengthy and conditioned stand-alone community correction order. Such a disposition would, he argued, be capable of satisfying both the punitive and therapeutic requirements of any sentence and would achieve the necessary balance between all of the relevant and, in some respects, competing sentencing considerations. In making that submission, he asked the court to bear in mind that you are a vulnerable person who has not previously received a term of imprisonment and whose mental health will most likely decline if one were imposed.
55 The prosecution took issue with your counsel's sentencing submission. They submitted that, given the nature and seriousness of your offending and relevant prior criminal history, and notwithstanding the mitigatory matters present in your case, a sentence involving some period of immediate imprisonment was warranted and justified. However, they acknowledged that a combination sentence would be within the range of sentencing options available to the court.
Gravity of the offending
56 In determining what the appropriate sentence should be in this case, I must also have regard to the objective gravity of the offending and consider, balance and weigh the relevant sentencing principles.
57 This offending was undoubtedly serious. It involved many individual instances of dishonesty over a protracted period of time. Given the length of time involved, it cannot be described as spontaneous; indeed, it involved planning and persistence and must have afforded Ms Brown repeated occasions to reflect on what she was doing. Despite that, she continued to offend knowing that what she was doing was morally and legally wrong. On her own account, she even considered resigning at one stage because of her concern about what she was doing. But still she continued. In my view, this offending would have lasted for an even longer period were it not for the fortuitous examination of the victim's business records in September 2019. The moneys stolen belonged to Ms Brown's employer. That fact highlights the seriousness of Ms Brown's offending as it involves a significant breach of trust on her part. In light of that betrayal of the victim's trust and the relatively significant amount stolen, it is hardly surprising that the offending has had such an adverse effect on the victim and her business.
58 On the other hand, it must also be recognised and acknowledged that the means used to carry out the offending were unsophisticated and always likely to be revealed if and when any forensic analysis was undertaken of the records of the business. And, in light of the opinions expressed by the psychologist, I am prepared to accept that Ms Brown's offending behaviour was enmeshed in a complicated and multi-faceted series of personal problems that she was experiencing and that it is appropriate to view her moral culpability for this offending as being somewhat lessened and to moderate, to some degree, the significance of deterrence and denunciation in this sentencing exercise
Sentencing principles
59 There are, of course, a number of relevant sentencing principles to which this court must have regard.
60 While there is a need to moderate the weight to be given to general deterrence and denunciation in the circumstances of this case, those factors are nonetheless of some importance. Offending such as this is unfortunately prevalent and needs to be discouraged and condemned. The sentence to be imposed here must play some role in deterring others in the community who are tempted to commit similar offences from giving in to such temptations. The risk-reward equation must be such as to give any would-be offenders cause to pause and reflect. On behalf of the community, this court must make clear that conduct such as this is unacceptable.
61 This offending was troubling indeed and involved repeated acts of dishonesty and some planning. There remains, in my view, a need to effect some measure of personal deterrence on Ms Brown, particularly given her relevant criminal history. She must clearly understand that the consequences for her behaving in this or any similar manner in the future will be very serious.
62 This court must impose a just punishment for this offending. What is just, however, must be informed by both the circumstances of the offending and of the offender.
63 Finally, this court must have regard to Ms Brown's age and prospects of rehabilitation, which I consider to be somewhat guarded but reasonable. Much will obviously depend on her receiving the necessary professional assistance she so clearly needs in relation to her mental health, alcohol and gambling issues. If she does, and participates fully, then those prospects will clearly be enhanced and her risk of recidivism reduced.
Analysis
64 I have listened carefully to the submissions made by each of the parties in this case and given the question of penalty very careful consideration. The offending in which Ms Brown chose to engage on this occasion was troubling and quite serious. In my view, the circumstances of this case when viewed together are such that there is simply no scope to consider imposing a stand-alone community correction order. To do so would, in my view, represent an inadequate punishment for the crime committed and would fail to accord the necessary weight to a number of relevant sentencing factors, including deterrence, both general and specific, and denunciation.
65 Whilst my initial inclination was to consider imposing a wholly immediate sentence in the form of a head sentence and non-parole period, I have ultimately been persuaded to take a different and more lenient course which I now consider strikes the right balance in all of the circumstances of this case.
66 The appropriate sentence in my view is a combination sentence comprising a relatively short term of imprisonment to be followed on release by a relatively lengthy community correction order that will place some emphasis on therapeutic intervention but still retain the necessary punitive element through, but not limited to, the performance of unpaid community work. It is in both Ms Brown's and the community's best interests that any imprisonment component be kept to the minimum, and by incorporating a punitive element into the CCO, the court is able to impose a less punitive custodial sentence than otherwise would have been the case.
67 Once again, it is worth noting what was said in Melnikas v The Queen.[13]
In imposing a combination sentence of a term of imprisonment and a CCO, a sentencing judge is usually imposing a total sentence that will deal with all of the matters required to be taken into account when sentencing an offender. In imposing a combination sentence, no sentencing principle requires a court to dissect the relevant sentencing considerations and then assign them to either the term of imprisonment or the concomitant CCO.[14]
[13] [2016] VSCA 112.
[14] Ibid at [60] ( Redlich, Santamaria and Beach JJA).
68 I note that Ms Brown was assessed by a community corrections officer on 31 August and found suitable for a community correction order. She indicated to that officer that she consented to being placed on a community correction order. The assessing officer took a relevant history from Ms Brown which confirmed her lengthy history of binge drinking and her recourse to gambling as a form of escapism. On her own account, in the context of heavy drinking and once she became addicted to gambling, her current offending 'spiralled out of control'.
Sentence
69 After having carefully considered, balanced and weighed the various sentencing considerations raised by this case, I have decided to sentence Ms Brown to a combination sentence as follows.
70 In respect to the charge of theft, Ms Brown will be convicted and sentenced to a term of six months' imprisonment in combination with a community correction order in the following terms, providing she consents to being placed on such an order.
71 The order will be with conviction and for a period of two years. As well as the mandatory core conditions attached to every community correction order, it will have the following additional conditions for the duration of the order.
72 She will be required to perform 100 hours of unpaid community work;
73 She will be required to be under the supervision of a community corrections officer;
74 She will have to undergo assessment, treatment and rehabilitation in relation to alcohol abuse or dependency, as directed;
75 She will have to undergo any mental health assessment and treatment, as directed; and
76 She will have to participate in courses and/or programs that address factors relating to her offending behaviour as directed, including a gambling program.
77 Counsel, my associate will now provide the parties with a copy of the proposed community correction order for checking.
78 Mr Pickering, does the wording of the proposed order give effect to my stated intentions?
79 MR PICKERING: Yes, Your Honour. I can't see any issue with it.
80 HIS HONOUR: Mr Johnstone?
81 MR JOHNSTONE: Yes, Your Honour. No issues. Might I approach Ms Brown?
82 HIS HONOUR: Just a moment. Mr Johnstone, your client will now be asked to sign the order, but, before she does so, can you take the opportunity to ensure that she fully understands all of the conditions of the proposed order and consents to it and that she also understands the potential consequences for her if she were to breach it.
83 MR JOHNSTONE: Yes, Your Honour.
84 HIS HONOUR: You may now approach the dock for that purpose. Thank you.
(Order explained and signed)
85 MR JOHNSTONE: If your Honour pleases.
86 HIS HONOUR: Thank you, Mr Johnstone.
87 Ms Brown, would you stand up, please. Having had the conditions of the proposed community correction order explained to you, are you prepared to be placed on such an order and to be bound by all of its conditions?
88 OFFENDER: Yes, Your Honour.
89 HIS HONOUR: Ms Brown, is that your signature on that order?
90 OFFENDER: Yes, Your Honour.
91 HIS HONOUR: Very well. Let me just explain one thing at this stage, Ms Brown. I am not suggesting that this will occur, but you need to understand it. If you were to breach this community correction order in any way, including by the commission of any other offence while on the order, you could be charged with and sentenced for the additional offence of contravening the community correction order, an offence which carries a maximum penalty of three months' imprisonment. You could also be sentenced afresh for the current offence of theft. In such circumstances, you would face the very real prospect of being sent back to gaol. Do you understand that?
92 OFFENDER: Yes, your Honour.
93 HIS HONOUR: Very well. I have now signed that order and it is now in effect. You may be seated now, Ms Brown.
Pre-sentence detention
94 I confirm that there is no period of pre-sentence detention to be declared in this matter.
Section 6AAA declaration
95 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had Ms Brown pleaded not guilty to this charge she would have been sentenced to a total effective sentence of 18 months' imprisonment with a non-parole period of 12 months.
Custody management issues
96 Mr Johnstone, by way of custody management issues, I am inclined to have noted on the relevant documentation that accompanies your client into custody the following: that Ms Brown may present as a vulnerable prisoner because she has been diagnosed with the conditions of post-traumatic stress disorder and major depressive disorder and this is her first sentence of imprisonment. Is there anything you want to say about that issue?
97 MR JOHNSTONE: Your Honour, Ms Brown has with her her medication and her scripts. I wonder whether or not it could be noted or requested that she be seen by a nurse.
98 HIS HONOUR: Very well. I will add that Ms Brown is currently taking prescribed medication for her conditions and should be seen and assessed by a suitably qualified - how would you describe that?
99 MR JOHNSTONE: Forensic nurse, physician, medical practitioner.
100 HIS HONOUR: Medical practitioner as soon as possible after she is received into custody.
101 MR JOHNSTONE: As Your Honour pleases.
Other Matters
102 HIS HONOUR: Are there any other matters that either counsel wish to raise at this stage in respect of either the sentence or sentencing reasons?
103 MR PICKERING: No, your Honour.
104 MR JOHNSTONE: No, your Honour
105 HIS HONOUR Thank you counsel. Mr Johnstone, will you or your instructing solicitor be attending on Ms Brown in the court cells at the end of this hearing?
106 MR JOHNSTON: I was proposing to, Your Honour. It may be - - -
107 HIS HONOUR: The reason I ask that is to just check whether you wish to approach and speak to your client briefly while she is still in the dock or not.
108 MR JOHNSTONE: If I may, Your Honour.
109 HIS HONOUR: All right. I will need to remain on the Bench while that occurs.
110 MR JOHNSTONE: As Your Honour pleases.
111 HIS HONOUR: Thank you.
112 MR JOHNSTONE: As Your Honour pleases. I'm grateful for that opportunity.
113 HIS HONOUR: Very well, adjourn - sorry, Ms Brown may now be taken into custody, thank you. Adjourn the court sine die at this stage, thank you, Mr Tipstaff.
- - -
0
13
0