Director of Public Prosecutions v Calder

[2022] VCC 2123

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01334

DIRECTOR OF PUBLIC PROSECUTIONS

v

KERRY LEANNE CALDER

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2022 and 16 November 2022 respectively
DATE OF SENTENCE:	30 November 2022
CASE MAY BE CITED AS:	DPP v Calder
MEDIUM NEUTRAL CITATION:	[2022] VCC 2123

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Theft – Armed robbery – Common law assault (3) – Relevant criminal history – History of polysubstance abuse – Extremely deprived background – Extensive history of trauma and institutionalisation – Background of complex trauma - Expert opinion - Borderline Personality Disorder -  Generalised Anxiety Disorder - Major Depressive Disorder - Post-traumatic Stress Disorder 

Cases Cited:            Bugmy v The Queen 249 CLR 571; R v Verdins (2007) 16 VR 269

Sentence:Convicted and sentenced to 392 days’ imprisonment in combination with a Community Corrections Order of 2 years duration with conditions of supervision, drug, alcohol and mental health assessment and treatment – Ancillary order – Disposal – Declaration pursuant to s.6AAA Sentencing Act 1991 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Foot	Solicitor for Public Prosecution
For the Accused	Mr I. Polak	Women’s Law and Advocacy Centre

HER HONOUR:

1Kerry Leanne Calder, you have pleaded guilty to one charge of theft, one charge of armed robbery and three charges of common law assault.

2Armed robbery has a maximum penalty of 25 years' imprisonment, theft has a maximum penalty of 10 years' imprisonment and common law assault has a maximum penalty of 5 years' imprisonment. 

3I must factor in the maximum penalties as these reflect the seriousness with which Parliament regards the offences.

4I sentence you on the basis of the summary of prosecution opening which was read aloud by the Prosecutor at the plea hearing.

5I was told that the complainants in this matter are Hilary Talukder, Elaine Richardson, Sergeant Andrew Lee and Sergeant John Harley.

6You and Ms Talukder had known each other through a mutual associate for about a year before this offending.

7On Friday, 20 November 2020, Ms Talukder was working at a butcher shop in Elsternwick.

8At about 4:00pm you entered the shop and Ms Talukder immediately recognised you.  Apparently, you would sometimes obtain small loans from the butcher shop which Ms Talukder believed were always repaid.

9On this occasion you walked around to the area behind the counter where Ms Talukder was sitting.  You took her mobile phone which was on the bench nearby.  This gives rise to Charge 1, Theft.

10You then pointed a syringe at Ms Talukder stating, 'Open the till and give me the money.'  Ms Talukder felt threatened.  She stood up and walked to the till and opened it.

11You removed money from the till, being about $100 in notes consisting of a $50 note and the remainder being $5 and $10 notes.  This conduct gives rise to Charge 2, armed robbery.

12You then left the shop, walking along Glenhuntly Road.  Ms Talukder followed you and begged you to return her phone and also yelled for help.  You told Ms Talukder to go back to the shop. 

13A witness, Ms Richardson, came to Ms Talukder's aid, observing you dropping money on the footpath.  She began to pick up the money when you punched her to the left side of her ribs.  This gives rise to Charge 3, common law assault.

14Ms Richardson then dropped the money she had picked up and told you to back off.  You continued walking east along Glenhuntly Road and another person came to Ms Richardson's aid, using her phone to take a photo of you as you walked away.  Yet another witness, Mr Larter, began following you and saw you entering a nearby apartment complex in Glenhuntly Road.

15Police members First Constable Georgia McLean and Constable Apryll Robertson were driving past the address a short time later when they were flagged down by two male witnesses who pointed to the apartment complex that you had entered.  After conducting a search of the area, the police officers were flagged down once more and told that you had entered Unit 4 at the apartment building.  More police officers arrived, and members approached the front door of Unit 4, attempting to engage with you and to exit the unit.  You would not cooperate and told one of the police officers that you went to the butcher shop and took money as the result of a civil matter where you were owed money.

16As a result of your unwillingness to engage with the police, the Critical Incident Response Team ('CIRT') was called.  After about one hour of unsuccessful negotiations, Sergeant Lee, Sergeant Harley and Senior Constable Holmes forced entry into the premises.  You then threw two knives, one at Sergeant Lee giving rise to Charge 4 and the other at Sergeant Harley giving rise to Charge 5.  The police officers managed to subdue you and took you into custody.  You were treated by attending Ambulance Victoria paramedics and taken to the Alfred Hospital.

17Whilst you were in hospital, police obtained a search warrant for the unit you had been in and found two knives which were believed to be the weapons thrown at Sergeants Lee and Harley. They also found some clothing and work boots believed to have been worn by you at the time that you committed the offences.

18Ms Talukder's mobile phone was not recovered.

19After being discharged from hospital you were taken to Moorabbin Police Station.  You were verbally aggressive and uncooperative with police and custody officers, refusing to hand over property which was concealed in your clothing.  A full search was conducted of you which resulted in cash consisting of the notes stolen from the butcher shop.

20You refused to take part in a record of interview and were remanded in custody.

21Ms Calder, as I am sure you now appreciate, your offending is serious and is deserving of a punishment which is just in all of the circumstances and your conduct must be appropriately denounced.  You behaved in a most concerning and threatening fashion toward a person who you had been friendly with and at a location where you had received the benefit of loans of money from time to time.  On this occasion you had no apparent concern for anyone with whom you interacted including Ms Talukder who was the victim of Charges 1 and 2.  Also, the assault upon Ms Richardson was dreadful, as was your behaviour towards the police officers.  There are no victim impact statements, but it takes no imagination to know that each of the victims would have been frightened and negatively impacted by your actions toward them, especially Ms Talukder and Ms Richardson.

22You have a criminal history which commences in 1986 and comprises offences for dishonesty including for robbery, intentionally causing serious injury and murder.  On appeal in respect of your sentence for murder, you were sentenced to a total effective sentence of 22 years with a non‑parole period of 17 years.  This saw you spending a substantial period of your life, and in fact your youth in gaol, which no doubt had a profound effect upon you in many ways.  After your release, you committed fairly minor offences with your last court appearance before the current offending being in 2019.  You committed the offences for which I now sentence you about 14 months after this.

23In sentencing you, I take into account in a general way the psychological and neuropsychological material provided, namely the report of Ms Cidoni dated 20 September 2021, the Court Integrated Services Program Forensicare report dated 3 March 2022 and the report of Ms Ngo, specialist support coordinator, Complex Psychology, dated 10 June 2022.

24As recorded by Ms Cidoni, you have the following diagnoses:

Borderline Personality Disorder, Generalised Anxiety Disorder, Major Depressive Disorder and Post-traumatic Stress Disorder.

25Ms Cidoni said in her report that:

“The complex interplay of her complex symptomatology comes from chronic traumatic exposure and early instability that would have compromised her development, leading to heightened physiological and psychological stress reactivity.  The experiences impact on the basic processes of child development including attachment, emotional regulation, and executive functions.”

26She went on to say:

“Invalidating and traumatic early environments have been implicated in development of BPD, which manifest as marked deficits in emotional regulation resulting in intense episodes of anger, depression, and anxiety.

Abandonment schema, also a core feature of BPD, also contribute to sudden, angry outbursts, interpersonal confrontations and disinhibited, and reckless behaviours.

Her symptoms can fluctuate in intensity and frequency and are particularly prone to exacerbation in situations of high stress. Dissociative states and major depressive episodes are common as is the potential to respond to situations disproportionately when threat system reactivated.

These features collectively impact upon Ms Calder's daily life and coping skills and reflect extreme reactivity to interpersonal stresses.

It was inferred that the relationship breakdown and eviction after 13 years was the major stress she was facing in 2020, where her ability to exercise appropriate judgement and to make calm and rational choices (to think clearly), was impaired.”

27When I asked Mr Polak whether he relied on Verdins considerations in respect of your moral culpability and other relevant sentencing considerations, he was unable to point to any specific material which addressed this.  The passage to which I just referred does appear to address this and although he made fairly limited submissions in this regard and in fact in every regard, on reflection, I am prepared to allow that you were labouring under an impairment of mental function at the time of the offending by virtue of your compromised mental health which led to an inability on your part to exercise appropriate judgment and make calm and rational choices.  Mr Polak told me that you did not recall the offending itself which he said might be attributable to you having taken prescribed medication at that time which affected you in a particular way.  Again, there was nothing before me, in particular, which pointed to this.  However, I do accept that your moral culpability is reduced to some extent by virtue of the operation of your impaired mental function and I make a moderate reduction in respect of your moral culpability and other relevant sentencing factors because of this.  Also, even though you have been in gaol in the past, I do accept that your mental health issues have made in respect of your remand period, and would make, if you were to be sentenced to further imprisonment, would make your time in custody harder than for anyone without these, and I factor in you have already spent a substantial period of time in gaol whilst suffering such impairment of mental function.

28In sentencing you, I allow for a fairly substantial discount in the sentence you would otherwise receive because of your preparedness to plead guilty to the charges, albeit that this was at a fairly late stage, and you conducted a contested committal hearing.  I note that at the contested committal hearing, one of the witnesses who was cross-examined was Ms Talukder which is rather unfortunate.  You are not to be punished for running a contested committal hearing as this was your right.  However, the discount in sentence you received will not be as substantial as it might otherwise be because you took this step.  You pleaded guilty at a stage when the matter was listed for trial in this court, and you had the matter listed for a sentence indication hearing.  After some discussion you decided to enter pleas of guilty to the offences on the trial indictment.  In pleading guilty before trial, you saved the witnesses the time and trouble of giving evidence at trial and you saved the community the time and expense of a trial.  Further, you contributed to a reduction in the backlog of trials that this court has to deal with due to the COVID‑19 pandemic, which entitles you to a further and palpable reduction in the sentence that you would otherwise receive.

29In sentencing you, I also factor in the neuropsychological report prepared by Ms Schokman dated 27 July 2022 where she was of the opinion that any cognitive deficits suffered by you were not consistent with a brain injury but were more likely to be suggestive of your background of complex trauma and ongoing mood symptomology.

30In sentencing you I take into account your background.

31You were born in Melbourne and raised in Hampton Park until you were five years old.  You then moved to Ballarat.  You have no recollection of your biological parents and you learned that you had one biological brother at some stage.  You and your brother were raised by adoptive parents along with their own three children.  Your adoptive father was a truck driver.  You reported to Ms Cidoni that you had limited recall of your adoptive mother.  However, there was some material which indicated that you had a severe dislike toward her which promoted your removal from this placement.  You were placed into group care in Travencore by Child Protection.  You also spent time in Allambie Reception Centre and Winlaton.  You reported prolific sexual and physical abuse in these places where you were a victim on numerous occasions.

32In Ms Cidoni's report, she details the facts in relation to the murder convictions that were imposed upon you in the context of you and your co‑offender’s belief that the victims were police informers.  Ms Cidoni remarked that your sentence for your involvement was the longest sentence for a female in Victoria who was convicted of murder at the time, and you were required to serve 17 years at various prisons including Pentridge.  I understand you were 23 years old when you committed this offence.

33You were released from custody in 2008 and provided with a unit in Elsternwick by a women’s housing organisation.  You lived there with your intimate partner.  Unfortunately, the relationship broke down in early 2021 with your former partner moving to other accommodation.  You maintain a friendship.

34You told Ms Cidoni that following the murder of Jill Meagher, serious violent offenders were returned to custody, and you served a further three months in 2013.  You were then re-paroled and served another nine months in 2014 for the same reason.  I understand that following an altercation with a neighbour at the Elsternwick property where you were living, you were forced to leave, and your offending for which I now sentence you occurred on that day with you losing all of your possessions.

35In terms of your education and employment history, you attended primary school to around Grade 3 but managed to complete Year 10 English whilst in prison, which is a credit to you.  You taught yourself to read when you were 28.  You have a very limited employment history.  You worked at the butcher shop where you committed the offences doing odd jobs for about a year and also did odd jobs for a bookstore and party shop in the same area.  Whilst in Tarrengower Prison you completed an animal husbandry course and worked in the kitchen there.

36In addition to the dreadful treatment you encountered whilst you were a child, you also reported that you were raped whilst in prison.

37In all of the relevant circumstances, I accept that the principles set out in Bugmy apply in your case which leads me to further reduce your moral culpability and the weight which would otherwise attach to other relevant sentencing factors.

38You reported to Ms Cidoni that at the time of the offending for which I now sentence you, you made a suicide attempt by taking several different prescription tablets.  You told Ms Cidoni that you sometimes drank on a Friday night but not heavily.  You had used cannabis for several years.  You tried ice once in 2008 after your release from gaol but you did not like it and did not touch it again.

39I note from a CISP report dated 13 December last year that you reported a history of polysubstance abuse which commenced when you were very young.  You abused cannabis, heroin and benzodiazepines.  You reported smoking five cones of cannabis a day and that you would purchase about 3.5 grams of heroin when you received your disability pension; this would usually last about two weeks. You were on a prescribed regime of benzodiazepines but admitted abusing the prescription if you could not access other substances.  However, it appears that you have turned this situation around and you have reported continued abstinence from illicit drug use for an extensive period.  You are on the methadone program which helps with this, and you have regularly attended AOD counselling with CISP senior AOD counsellor, Ms Mladenovic.  I have read her most recent report and she speaks very highly of your impressive efforts and congratulates you on your completion of AOD counselling.

40Since being released on bail for the offending before me, which was nearly
12 months ago, that is, your release, you have been on CISP bail and demonstrated good solid progress, actively engaging with the supports provided.  Also, you now have support from NDIS which has helped you and you have responded positively to that.  You are entitled to feel proud of your progress whilst on bail.  From the outset you expressed a wish to make significant lifestyle changes to create a new pro-social lifestyle and over the succeeding 11 months you have been able to achieve this.  Over that period, you have faced a number of challenges.  However, according to the most recent CISP report, you had always shown resilience and perseverance to achieve your goals.  You will continue to be well supported by your existing care team and would receive ongoing funding from the NDIS.  It was recommended that you continue on pharmacotherapy as prescribed, engage with your healthcare providers and attend counselling with Ms Kyriakides.  Further, there are no subsequent offences alleged against you during this period, which is a matter that I have factored in your favour as well.

41I have also received letters from Ms Jacquie Phiddian, Project Manager, Women's Support Pathways Project, Law and Advocacy Centre for Women, and from Virginia Moebus-Nelson, Social Work Team Leader from that same organisation.  Both of these people speak very highly of you and in most positive terms about your proactive engagement with the case management program and other community supports.

42As noted by Ms Moebus‑Nelson, you are a 53 year old Aboriginal woman who despite an extensive history of trauma, exposure to the criminal justice system, institutionalisation and some significant physical health issues, have enjoyed an extensive period of stability in the community prior to the most recent offending, and again during your bail period.  You have made significant progress in respect of your accessing appropriate treatment for your physical and mental health needs, as well as in respect of living independently and connecting to your local community.  Ms Moebus‑Nelson said that you have been determined and proactive in working towards achieving your goals and making good use of support available to you.  She said that you were to be commended for the challenges you had overcome as you had settled back into the community this year and she was confident of your willingness to engage with supports, to seek out what you needed to continue on the path to recovery and continue personal progress you had made.

43I understand that you have taken on the role of assisting the coach for an Australia Rules Football team this year, which saw you engaging in a number of activities in support of the team and enabled a connection with your community.  You are a valued member of the team and the club.

44In assessing your prospects of rehabilitation, I have factored in, as I must, your criminal history, the offending on the occasion for which I sentence you, your mental health issues, extremely deprived background but on the other hand I also factor in your lack of criminal offending since being released on bail for the matters before me as well as your most impressive progress over the last
11 months and before the offending for which I sentence you.  I must also factor in the assessment of risk made by Ms Cidoni as being medium to high, but I also factor in that this assessment was made at Dame Phyllis Frost Centre on 20 September 2021 and you have made a good deal of progress since then.  In the end, I assess your prospects of rehabilitation as being guardedly good and allowing for Bugmy and Verdins considerations, I place less than moderate weight on specific deterrence, general deterrence, punishment and denunciation.  I place moderate weight on protection of the community.

45You served 392 days in custody for the matters for which I now sentence you and in circumstances where various restrictions would have been in place from time to time due to the COVID-19 pandemic, again making time in custody harsher for you than would otherwise be the case, and if I were to sentence you to a further period, I would have to factor this in as well.

46Your counsel submitted that it would be appropriate to impose an adjourned undertaking with conditions that you continue to engage with the supports you have in place.  The prosecution submitted that a Community Correction Order in combination with a gaol term was appropriate.  Even allowing for the matters that I have in mitigation, I am afraid your offending is too serious in all the circumstances to warrant an adjourned undertaking as I told your counsel at the plea hearing.  However, I had you assessed for a Community Correction Order in circumstances where you indicated you would be willing to undertake such an order.

47I have now received the report indicating your suitability for a Community Correction Order.  I am most cognisant of the fact that you have had difficulties with Corrections, including Community Corrections in the past, and this might be a challenge for you.  But I think you are older and wiser and much better able to cope with things than ever before.  It is to be hoped that an officer is assigned to you, who you can develop a rapport with.  You are in a good position, as I say, to observe the conditions of a Community Correction Order.  It is appropriate in all the circumstances of your case to impose this in combination with the gaol term, but a gaol term reflecting the period you have already served.

48Therefore, you are convicted of the offences.

49I make a disposal order in the terms set out by the Crown which is not opposed by you.

50You are sentenced to an aggregate term of imprisonment of 392 days.  I declare that you have already served that term. This sentence is to be served in combination with a CCO.  I can only place you on a CCO with your consent so can you please listen carefully to the order that I propose:

51The CCO would run for a period of two years.

52The conditions of the CCO would be:

53Firstly, the mandatory terms that apply to all Community Correction Orders are:

54You must not commit another offence for which you could be imprisoned during the time that the order is in force;

55You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

56You must report to, and receive visits from, the Secretary to the DOJ (or his or her delegate);

57You must report to the Broadmeadows Community Corrections Centre before 4pm within two clear working days of today.  If I were you, I would give them a call and see if this reporting can happen over the phone or if you have to go in to see them;

58You must let a Community Corrections officer know within two clear working days if you are changing your address or job;

59You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department Of Justice (or his/her delegate);

60You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).

61Now they are the standard conditions that apply to every Community Corrections order.  The conditions that apply in addition to the mandatory terms listed are:

Supervision

62You must be under the supervision of a Community Corrections Officer for a period of 2 years.

Treatment and Rehabilitation

63You must undergo assessment and treatment including testing for drug and alcohol abuse or dependency as directed by the Regional Manager.

64You must undergo mental health assessment and treatment including if necessary (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment, if necessary, in a hospital or residential facility, as directed by the Regional Manager.

65In respect of these two conditions about mental health and drug and alcohol, I note that you already have done a great deal in respect of dealing with drug addiction and your mental health, and I require Community Corrections to read the CISP materials closely and ensure as best they can that you can continue on with what you have already been doing to address these issues.  It is always open to you to apply for variation of the Community Correction Order if things are going well, and you think that it would be best if it was not so lengthy or onerous.  All right.

66Now, having heard what I propose, do you agree to undergo the order?

67OFFENDER:  Yes, Your Honour.

68HER HONOUR:  Now, I am just going to tell you, like I tell everyone else, all right.  That if you do not comply with the order then you will face breach proceedings before me.  You will be sentenced in relation to the breach, and you will be re-sentenced in relation to the charge in which case you may well be sentenced to a period of imprisonment or further imprisonment.  I regard a breach of the CCO as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

69Now, having heard what can happen, if you breach the order, do you still consent to the making of the order?

70OFFENDER:  Yes, Your Honour.

71HER HONOUR:  All right.  Therefore, in relation to the charges, you are convicted and sentenced to a Community Corrections Order in the terms and conditions that I have just set out in combination with the gaol term that you have previously served.

72I am going to ask the instructing solicitor to go now and ask you to sign the Community Corrections Order that I have just announced.

73OFFENDER:  Yes, Your Honour.

74HER HONOUR:  Thank you.  You can take a seat, Ms Calder.

75I should indicate pursuant to s6AA, if not for your pleas of guilty, I would have sentenced to four and a half years' imprisonment with a non-parole period of three years.  Is there anything to raise by the parties?

76MS FOOT:  No, Your Honour.

77MR POLAK:  No, Your Honour.

78HER HONOUR:  All right.  Yes, all the best, Ms Calder.  I hope never to see you again.  I think you will do well, all right.

79OFFENDER:  Thank you, Your Honour.

80HER HONOUR:  And if the CISP people can have a word with Broadmeadows and just make sure that that transition, if you can, is as smooth as possible.  Telephone contact is the best way to go about it.  Those sorts of things, can you let them know.  All right.  Thank you very much and thank you for your involvement as well.  Yes, we will now adjourn.

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