Director of Public Prosecutions v Caldwell

[2022] VCC 2004

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

GENERAL LIST

Case No. CR-17-01180

Indictment G12972083

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIRSTY CALDWELL

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JUDGE:	HIS HONOUR JUDGE TRAPNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2022
DATE OF SENTENCE:	18 November 2022
CASE MAY BE CITED AS:	DPP v Caldwell
MEDIUM NEUTRAL CITATION:	[2022] VCC 2004

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Contravention of community correction order – Contravention by non-compliance and further offending – Community correction order expired – Earlier sentence set aside – Resentenced on original charge of armed robbery – High moral culpability – Extent to which offender complied with order taken into account – Prospects of rehabilitation highly problematic – Totality in respect of sentences served on unrelated charges during currency of community correction order –  Early plea of guilty – COVID-19 discount – Prior criminal history

Legislation Cited:      Sentencing Act 1991 – Road Safety Act 1986

Cases Cited:Luu v The Queen [2018] VSCA 92 – Worboyes v The Queen (2021) 96 MVR 344

Sentence:                  Armed robbery: six months’ imprisonment – Contravene community correction order: convicted and fined $500.00

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Davison	Ms A Hogan, Solicitor for the Office of Public Prosecutions
For the Accused	Mr B R Keating	Slink & Keating

HIS HONOUR:

1On 28 June 2019, I sentenced you on one charge of armed robbery to imprisonment for 56 days, which was time served, together with a community correction order (‘CCO’) for a period of three years with a number of terms and conditions, including that you perform 500 hours of unpaid community work during those three years. I note 397.3 hours of unpaid community work are yet to be completed by you and that the CCO expired on 27 June 2022.

2Pursuant to s 83AD(1) of the Sentencing Act1991, it is now alleged you have contravened the CCO without reasonable cause as follows:

(a)   You failed to perform unpaid community work as required on 13 occasions as listed in the schedule to the charge and summons (‘the schedule’).

(b)   You failed to undergo treatment and rehabilitation as required on seven occasions as detailed in the schedule.

(c)   You failed to be supervised, monitored and managed as directed on eight occasions as detailed in the schedule.

(d) You failed to attend four urine drug screens since 20 December 2019. However, you have on various occasions undergone oral fluid tests, pursuant to s 55(e) of the Road Safety Act1986, and have tested positive for methylamphetamines on no less than eight separate occasions between 17 November 2020 and 30 October 2021. All of those occasions resulted in charges being found proven and all offences fell within the operational period of the CCO. Accordingly, you breached the residual condition I imposed on you to abstain from the consumption of any illicit drugs not prescribed to you by a registered medical practitioner during the period of the order, that is, for three years from 28 June 2019, on eight known occasions.

(e)   It is further alleged, you have been convicted of further offences during the operational period of the order. These are listed in the schedule and comprise a hearing at the Dandenong Magistrates’ Court on 13 December 2021, where you were convicted of possess methylamphetamine, possess drug of dependence (not named), possess controlled weapon without excuse and commit indictable offence whilst on bail. You were convicted and fined $1,500 and your driver licence was cancelled, and you were disqualified for a period of 30 months. At the Latrobe Magistrates’ Court on 30 March 2022, you were convicted of drive whilst authorisation suspended and fined $500. Again, at the Dandenong Magistrates’ Court on 18 August 2022, you were convicted  of possess GHB, unlicensed driving, drive while authorisation suspended, burglary, theft, three charges of commit indictable offence whilst on bail, fail to stop motor vehicle on request, two charges of contravene a conduct condition of bail, dangerous driving whilst pursued by police, fail to stop vehicle on police direction, drive whilst disqualified, drive at a speed dangerous, theft from shop and possess controlled weapon without excuse. For all of those charges, you were sentenced to 148 days’ imprisonment, which was time served, and you were also convicted and fined $300. Additionally, while not alleged in the schedule, you have been convicted of a number of road traffic offences, including eight charges of fail oral fluid test within three hours of driving, as I noted earlier.

3You admit these contraventions of the CCO. Accordingly, I find the charge under s 83AD(1) of the Sentencing Act proven.

4In light of the circumstances of your offending conduct and your personal circumstances, in particular your financial circumstances, on that charge you are convicted and fined $500. That fine is referred to the Director, Fines Victoria for collection and management.

5Having found the contravention proven, pursuant to s 83AS of the Sentencing Act I must make one of the orders detailed in sub-section (1) of that section. In light of all the relevant circumstances, I accept the recommendation of the community corrections report dated 1 July 2022 that the CCO should be cancelled and you should be resentenced on the original charges. I note that in that report you are considered unsuitable for a further community-based disposition. I also note that, as mentioned earlier, since that report was written, the CCO has expired.

6Accordingly, I must now set aside the sentence of imprisonment I imposed on you on 28 June 2019 and resentence you for the armed robbery.

7The circumstances of your offending conduct are set out in my reasons for sentence of 28 June 2019 ([2019] VCC 1226) at paragraphs [3] to [48].

8I have had regard to the impact of your crime on the victim, Jason Pellissier, which I set out in my reasons for sentence at paragraphs [49] to [51].

9As I observed when sentencing you in June 2019, armed robbery is a very serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the Victorian community views this offence. Your counsel at the plea hearing conceded this is ‘an inherently serious offence’.

10I also observed in my reasons for sentence, that in my opinion this is a serious example of the offence of armed robbery. It was pre-planned and you effectively set up an ambush of your friend for the purposes of him being robbed. Once it became apparent that a knife was being used by the principal perpetrator, Shane Allen, you continued to remain involved in the offending and took an active part in it, including at one stage possessing the knife, which you returned to Allen, and at another stage rendering the victim’s vehicle inoperative, so he could not escape.

11I observed in my reasons for sentence that you sought to profit from your crime by placing the victim’s music system, which was stolen at the time, for sale on Gumtree.

12I also observed in my reasons for sentence that this was a protracted armed robbery over a lengthy period of time in which the victim was completely within yours and Allen’s power. Moreover, the victim was a friend of yours and a guest in your home at the time the offence was committed and, therefore, your offending constituted a gross breach of the trust you owed to him.

13On that earlier occasion I assessed your moral culpability as being high and there is nothing that has occurred since to change my view.

14In my reasons for sentence, I further observed that whilst you were not to be sentenced on the basis that you, yourself, used the knife against the victim, nonetheless you knew that it was present and available for Allen to use and, therefore, there was always the likelihood that the armed robbery could have escalated into actual physical violence by the use of a knife. On that occasion, I found that it is concerning that you continued with the offending with this knowledge.

15I have had regard to your personal circumstances as I outlined them in my reasons for sentence at paragraphs [58] to [80] and your circumstances since you were sentenced by me, particularly the birth of your daughter, Mia, who is in the care of your mother and currently subject to a protection application in the Children’s’ Court. You have supervised contact with Mia each Monday and Tuesday between 9.00 am and 11.00 am.

16I have also had regard to your prior criminal history at the time you fell to be sentenced for this offence, which I set out at paragraphs [81] to [93] of my reasons for sentence.

17Moreover, I have had regard to the mitigating circumstances relied upon by your counsel on the earlier occasion to the extent they remain relevant as set out in my earlier reasons for sentence at paragraphs [94] to [97]. I have had regard also to the additional materials which have been provided to me since I originally imposed sentence on you for this offence. Those materials comprise:

(1)     ‘Contravention of Community Correction Order by Conditions and Further Offences’ report by Naomi Bremner, Supervisor, Court Case Management, Morwell Community Correctional Services, dated 1 July 2022.

(2)     Submissions in relation to contravention hearing prepared by Lauren Mohammed, a solicitor with the Office of Public Prosecutions, dated 6 July 2022 and the chronology attached thereto.

(3)     Written submissions prepared by Bernard Reg Keating, your solicitor, headed ‘Submissions on Behalf of the Accused’ and dated 13 July 2022.

(4)     ‘Submissions on Behalf of the Accused’ prepared by Mr Keating dated 17 November 2022.

(5)     Confidential psychological assessment of Dr Aaron Cunningham, psychologist, dated 26 March 2019.

18I have also had regard to the oral submissions made on your behalf today and those made on behalf of the prosecution.

19Importantly, it is relevant that since I sentenced you in June 2019, you have spent 148 days in custody in relation to unrelated offending. I take this time into account in applying the totality principle in your case and as part of your personal circumstances.

20In light of your conduct since I sentenced you in June 2019, and the large number of offences you have committed since then in breach of my order, I now consider your prospects of rehabilitation to be highly problematic. Clearly, significant weight needs to be given to specific deterrence in sentencing you for this offence.

21Applying the sentencing principles which I set out in paragraphs [98] to [105] of my reasons for sentence, allowing for the additional discount you are entitled to because you have now effectively entered a plea of guilty during the currency of the COVID-19 pandemic,[1] and taking into account the extent to which you have complied with the CCO, as I am required to do under s 83AS(2) of the Sentencing Act, I am of the view that an additional period of imprisonment is required to be served by you in respect of this offence. In coming to this conclusion, I have had regard to all the matters I referred to earlier.

[1]     See Worboyes v The Queen (2021) 96 MVR 344, 356–7 [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA).

Stand up, Ms Caldwell:

On the charge of armed robbery, the sentence I imposed on you on 28 June 2019 is set aside and you are resentenced on that charge to be convicted and sentenced to be imprisoned for a period of 6 months.

I declare that pre‑sentence detention in your case is 56 days, not including this day, and I direct that that declaration be entered in the records of the court.

In accordance with s 6AAA of the Sentencing Act, I confirm the declaration I previously made that, but for your plea of guilty, I would have sentenced you to 3 years’ imprisonment with a minimum non‑parole period of 2 years.

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