Director of Public Prosecutions v Caldwell
[2019] VCC 1226
•28 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01180
Indictment No G12972083
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIRSTY CALDWELL |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2019 | |
DATE OF SENTENCE: | 28 June 2019 | |
CASE MAY BE CITED AS: | DPP v Caldwell | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1226 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited: Verdins
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Clancy Mr P J Pickering | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr G Davis | Slink and Keating Solicitors |
HIS HONOUR:
1 Kirsty Rose Caldwell, you have pleaded guilty to one charge of armed robbery. The maximum penalty for this offence is 25 years’ imprisonment.
2 On the plea hearing, the Crown relied upon a summary of prosecution opening upon plea dated 13 March 2019.[1] I was told by your counsel that this could be treated as a statement of agreed facts.
[1] Exhibit P1.
The facts
3 At the time of committing this offence, you were aged 20 years and lived at an address in Pakenham. Your co-accused, Shane Allen, was 30 years of age and lived in Longwarry. Another co-accused, Brianna Rosse, was 20 years old and residing in Hampton Park with her parents.
4 The victim of this offence is Jason Pellissier, who was 33 years old at the time of the offending.
Background to offending
5 The victim had briefly been in a relationship with Rosse at a time when her former partner, Shane Allen, was in prison. The victim met you while he was seeing Rosse. It appears that you and Rosse are cousins.
6 When Allen was released from custody, the victim’s relationship with Rosse ended.
7 At the time of the offence, the victim did not know Allen personally but knew of him as having been Rosse’s domestic partner in the past.
Circumstances of the offence
8 In the afternoon and evening of 24 October 2016, you, Allen and Rosse were driving around the Cardinia area. The three of you discussed Rosse’s previous relationship with the victim and discussed the fact that ‘issues’ had arisen between the victim and Rosse including the fact that Rosse believed the victim had thrown her mobile telephone out of a window causing it to break. It was also discussed that the victim owed Rosse’s parents money for rent which he had not paid despite demands having been made for payment.
9 Apparently, Allen and Rosse wanted to obtain the victim’s telephone so that Allen could see the messages that had been sent between the victim and Rosse during his time in custody. Rosse also wanted the phone so she could delete a number of messages she had sent from it. During the course of these discussions, you, Allen and Rosse formulated a plan to rob the victim of his money and his mobile phone.
10 The plan that was hatched was for you to pretend that you had fallen out with Rosse and to lure the victim over to your house in Pakenham that evening.
11 At around 6.36pm, you sent a text message to the victim which commenced an exchange in which the two of you discussed the victim’s previous relationship with Rosse and Rosse’s relationship with Allen. You sent the victim a text message stating:
Hey, have you seen or heard from bree? I’ve been trying to contact her for over a week now and I’m getting worried.
12 At 6.48pm, the victim sent a text message to you which said:
She wants to be with a jailbird junkie that’s up to her.
Apparently this was a reference to Allen.
13 Between approximately 8.30pm to 12.00am, you and the victim continued to message one another. You then invited the victim to come over to your house to watch movies.
14 After these plans had been hatched, you were dropped off at your home in Pakenham, while Allen and Rosse went to Rosse’s home in Hampton Park. The plan was that you would text Allen when the victim was on his way over to your house. At 1.57am on 25 October 2016, you sent a message to the victim telling him that you were going to go to Costello’s Cardinia Hotel to play the pokies before the victim came over to your house.
15 At approximately 2.05am, you entered Costello’s Cardinia Hotel and played the pokies on several machines before leaving those premises at about 2.16am. You returned home.
16 Some time after you returned home, the victim arrived at your house. He had driven to your premises in his car.
17 At this point, I interpolate that it is quite clear from these facts that you were party to an ambush which was set up in order to steal property from the victim. This is an aggravating circumstance in relation to the seriousness of your offending conduct.
18 The victim brought Rosse’s mobile phone with him and placed it on the coffee table and asked you if she would return to it to Rosse. You and the victim then started watching a movie together.
19 At 3.12am, Allen sent a text message to you saying:
Wat u wanna do I can come now if u want?
You replied:
Yeah.
20 Allen then called you at 4.26am. shortly after this call, Allen knocked on the door and you let him into the premises. Allen entered the lounge room, approached the victim and put a large hunting knife to his throat. Allen said:
So you've got a problem with jailbirds.
Allen stood over the victim and said:
So I hear you've been saying shit about me.
and
You're going to pay for what you've been saying.
21 While the knife blade was pressed against the victim’s throat, Allen asked him whether he would like a ‘smiley’. The victim understood the word ‘smiley’ to be vernacular for cutting his face at the corners of the lips on each side to cause a serious and permanent injury. Allen then told the victim that this could go one of two ways, either the victim gave him everything he had, or ‘things won’t be pretty’. Allen then sat on the couch adjacent to the victim. He placed the knife up his sleeve so that only the blade of the knife was visible.
22 You were present throughout these events. You did not take part in them directly. However, you did nothing to calm the situation down or ask Allen to desist from what was on any view a very serious example of armed robbery of a person who had been invited into your home as your guest. You are not to be punished for this part of the continuing offence.
23 I accept that you did not know prior to Allen’s arrival that he was going to bring a knife to the premises and use it as part of the pre-planned robbery, nor were you aware when you entered into the agreement with Allen and Rosse to rob the victim that a weapon would probably be used.
24 Accordingly, the Crown puts its case against you on the basis that you were not complicit in Allen’s initial threats and demand made with the knife against the victim’s throat. You are not to be punished for this part of the continuing offence.
25 However, once Allen sat back on the couch and continued with his demands of the victim, you were by that stage aware that Allen was armed for the purpose of committing the pre-arranged robbery of the victim and you then implicitly entered into an agreement, at that stage of the proceedings, for the knife to be used to rob the victim.
Commencement of charge 1, armed robbery
26 When Allen was seated on the couch, the victim told him that he only had $10 in cash on him, to which Allen responded that he knows that the victim gets paid on Mondays. The victim told Allen that he did not have more money because he had to pay child support, bills and two car loans. During this exchange, the victim handed Allen his mobile phone. Allen then said:
You're going to take me to the bank or else.
27 When Allen demanded that the victim take him to the bank, he had the knife blade protruding from his sleeve. This would have been visible to the victim. During this exchange with the victim, you began text messaging Rosse and the following exchange of texts occurred. You sent a text message to Rosse which said:
I got your phone haha.
to which Rosse replied:
Yay and my gear where is shane.
You then sent a text message to Rosse and said:
Haha yep Hes here and Jason is shitting himself.
28 You and Rosse continued to text message each other. At 4.47am, Rosse sent you a message that said:
Can you get his smokes to need them for work haha.
29 The text exchange also reveals that you were asking Rosse to come in and join the pair of you in order to help show that the victim was lying. At around 4.39am, you sent a text message to Allen which said:
feel free to hit him.
30 This demonstrates that you were very much involved in the assaultive component of the armed robbery being perpetrated on the victim by Allen.
31 Following this exchange of text messages, you, Allen and the victim left your house and got into the victim’s car. The victim was in the driver’s seat, Allen was in the front passenger seat and you were in the back seat.
32 You gave the victim directions to drive around the Pakenham area looking for an ATM. You drove around that area for approximately 20 minutes before arriving at a Westpac ATM in Pakenham.
33 Once you all left the house, the victim did not see the knife again. However, he knew Allen had the knife with him and it was available for use if needs be. The knife was present in the vehicle for the entire trip to the ATM and at some point in time was in your possession in your handbag. Later it was in Allen’s possession.
34 During the drive to the Westpac ATM, you called Rosse four times between 5.07am and 5.09am.
35 At about 5.18am, the victim parked his car in the street outside the post office in Pakenham and got out of the vehicle in company with Allen. You remained in the car, where the knife also remained.
36 Allen and the victim went to the ATM where the victim inserted his bank card and checked his account balance. Allen then lent over to the ATM and withdrew $260 from the victim’s account and took the money which had been dispensed from the ATM.
37 Allen and the victim then returned to the victim’s car, whereupon you gave the knife to Allen. During the drive back to your premises, Allen and you discussed whether you should steal the vehicle from the victim.
38 During this ordeal, the victim was visibly upset and crying and he was very scared throughout the whole episode.
39 Upon returning to your premises, you removed the spark plug from the victim’s vehicle so that he could not drive away. Once again, this demonstrates how intimately involved you were in this whole incident. Allen and you then removed a Yamaha home theatre system from the boot of the victim’s car and a ‘Monster’ power board from the foot well of the vehicle. You took these items inside your premises.
40 Allen told the victim to come inside the premises. The victim complied because he was scared of what would happen to him if he did not. Once inside the premises, Allen and you both threatened the victim in an effort to prevent him from reporting the matter to police. This again indicates your intimate involvement in the whole night’s proceedings and is also a further aggravating circumstance in relation to the objective seriousness of this crime.
41 Not having done enough to this poor man, when you were inside your premises you and Allen decided that you wanted some cigarettes from him. You then all went outside to the victim’s vehicle, whereupon Allen took a packet of cigarettes from the centre console. Once again, this demonstrates that the victim was completely at your mercy throughout this incident and putty in your hands.
42 At this point in proceedings, Allen and you gave the vehicle’s spark plug back to him so that he could go to work. The victim asked for his mobile telephone back. However, both you and Allen ignored his requests and simply went inside your premises.
43 At this time, the appropriation of all of the items was complete. Accordingly, this is a continuing offence from the time you became involved in the armed robbery in the lounge room of your home. Allen remained in possession of the knife for the purposes of this robbery throughout the proceedings, other than during the period that you had possession of the knife. These facts and circumstances give rise to charge 1, armed robbery.
44 At approximately 6.00am, the victim left your address and drove to a friend’s house. He checked the ‘find my phone’ service which revealed that his phone was still switched on and showing up as being in the vicinity of your premises in Pakenham.
45 Later that day, the victim reported the offence to police. On 27 October 2016, you and Allen were arrested by police at your home in Pakenham. During a search of your premises, police located the victim’s Yamaha home theatre system in the lounge room and your phone, which you had used to contact the victim, was found in your bedroom. The cover of the mobile phone stolen from the victim was found in a motor vehicle belonging to Allen, which was parked outside your premises.
46 You and Allen were transported to the Pakenham Police Station. Rosse was arrested later that day.
47 You participated in a record of interview during which you initially denied all allegations in relation to this offence apart from acknowledging that the victim had been at your home at the relevant time. Later in the interview, you did make significant relevant admissions including that you had placed an advertisement on Gumtree with a view to selling the victim’s sound system. You also admitted that you had the knife with you in your handbag when you were all in the victim’s car and that you gave the knife to Allen when he returned with the victim from the Westpac ATM.
48 It is fair to say that your description of events somewhat minimises your role in them. However, I do accept that you said to police that after the offending you told Allen that you felt ‘pretty shit’ and ‘really bad’ and you told police that you were both pretty upset with what you had done. I accept that this indicates some initial remorse on your part for having involved yourself in what on any view was a serious example of armed robbery.
Victim impact
49 A victim impact statement from the victim, Jason Pellissier, was tendered on the plea.[2] In it he states that since the incident every day he feels very scared and suffers from extremely bad anxiety on a daily basis. He ruminates every day about having the knife held to his throat at which stage he says he thought he would never see his children again. I accept that you are not to be sentenced in relation to this effect on the victim as it is outside the Crown’s allegations in relation to your involvement in the crime.
[2] Exhibit P2.
50 Nonetheless, there is no doubt that this was an extremely terrifying incident for the victim and that he has suffered significantly as a result. He has had difficulty obtaining employment and is now dependent on Centrelink owing to his anxiety, which limits his capacity to apply for jobs and attend employment interviews. As a result of your deprivations of him, the victim has been struggling financially ever since the offending.
51 It is clear that the effect of this offending on the victim is significant and ongoing.
Offence seriousness
52 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 conceded that this is ‘an inherently serious offence’.
53 In my opinion, this is a serious example of the offence of armed robbery. It was pre-planned and, as I said earlier, effectively you 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, Allen, you continued to remain involved in the offending and took an active part in it, including at one stage possessing the knife and at another stage rendering the victim’s vehicle inoperative.
54 Moreover, you also sought to profit from your crime by placing the victim’s music system for sale on Gumtree.
55 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, he was a friend of yours and a guest in your home and you committed this crime in gross breach of the trust you owed your friend and guest.
56 I assess your moral culpability as being high.
57 Whilst you are 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 this armed robbery could have escalated into actual physical violence by use of a knife. I find that it is concerning that you continued with the offending with this knowledge. Moreover, the initial use of the knife by Allen against the victim’s throat, whilst not part of the sentencing facts in your case, would have compounded in the victim’s mind the threatening nature of the incident overall. Knowing Allen had performed this act on the victim, you agreed to participate in the armed robbery.
Personal circumstances
58 As I earlier observed, you are aged 23 years old and were aged 20 at the time of committing this offence. You are a youthful offender.
59 You have been in custody at the Dame Phyllis Frost Centre since your bail was revoked on 20 November 2018. However, during this period you have also served a sentence of imprisonment imposed in the Magistrates’ Court. I will deal with the implications of this later.
60 You lived most of your life in Beaconsfield with your parents, Trevor and Lisa. You have a brother, Jonathon aged 24, and a sister, Danielle who is aged twenty-nine.
61 You attended Kilberry Valley Primary School and Hillcrest Christian College. However, your schooling was not a positive experience for you. You were diagnosed with a language comprehension disorder whilst you were in primary school.
62 You left Hillcrest after Year 7 and attended Berwick Secondary College. Your attendance was poor and you left school towards the end of Year 9. Whilst you were not performing well academically, you were interested in sports and played basketball, football and MMA. Apparently you got along well with your team mates, although you were the subject of some bullying at school.
63 So far as employment is concerned, you worked at Big W for three years and you also worked as a caterer at a VFL football club. You also volunteered to work in your mother’s office, your mother being an estimator. You have a desire to work in traffic control in the community upon your release from custody.
64 You commenced using illicit drugs in your teenage years. I was told your current period on remand has been the longest period of abstinence from drugs for quite some time. You report to your legal advisers that you are feeling well and have gained weight in prison.
65 In your late teens, you admitted to your mother that you had a problem with drugs. Your drug addiction became a difficult matter for your family to deal with and eventually you were asked to leave your parents’ home. Your parents have since moved from Beaconsfield to Glen Maggie in Gippsland. They assisted you with the costs of renting the unit in Pakenham where this offending occurred.
66 You retain the support of your parents who have indicated that they will provide accommodation and support to you upon your release from prison. You have some prospects for employment upon your release.
67 I was provided with a psychological report from Dr Aaron Cunningham, psychologist, dated 26 March 2019.[3] Dr Cunningham, in dealing with your background, notes that you described your parents as ‘beautiful parents’ but that your brother was a ‘psycho’ who was an alcoholic and a drug addict. Dr Cunningham says that you were afraid of your brother and suffered ongoing physical abuse at his hands.
[3] Exhibit A2.
68 Dr Cunningham adds that upon leaving your parents’ home you couch surfed for three to four years before finding your rental accommodation in Pakenham. He says that your drug abuse escalated at the Pakenham premises, owing to increased association with drug abusing peers.
69 So far as your drug and alcohol abuse is concerned, Dr Cunningham reports that you abused methylamphetamine from the age of 14 or 15. The drug was offered to you by friends. You used two points per week. You used the drug because it made you feel good and helped you to suppress your emotions from being bullied. It also assisted you to relax and gain social connections. You indicated to Dr Cunningham a desire to attend Narcotics Anonymous in the community in order to help you abstain from drug abuse.
70 So far as intimate relationships are concerned, you were in a relationship for four to five years with a man called Darcy, who was against your use of drugs. Your relationship with Darcy ended because of this. At the time of his report in March 2019, you were in a relationship with Robert who is aged 37 and has three children. Apparently Robert is abstinent from drugs.
71 You suffer from a degenerative disc disease in your lower back. However, it was not submitted that this in any way would affect the manner in which you would serve a sentence of imprisonment.
72 So far as your mental health is concerned, Dr Cunningham administered the WAIS-IV in order to assess you level of cognitive functioning. Dr Cunningham concluded from his testing that your profile is indicative of a verbal learning disorder. He opined that this condition was consistent with your learning problems, history of bullying and it would make you susceptible to negative influences.
73 In your interview with Dr Cunningham, you reported difficulty sleeping and suffering nightmares of everyone you know committing suicide and you being left alone. You had feelings of worthlessness and depression. You also feel that you are better understood by men and are anxious concerning being bullied by women.
74 Dr Cunningham concluded that there was no indication of psychosis or thought disorder, that you were not suicidal and whilst you had had some medication for depression in the past, you are not currently medicated.
75 In his summary and opinion, Dr Cunningham said of the results of his mental state indicated ‘symptoms of depression consistent with her background of chronic bullying and social isolation’.
76 However, importantly, Dr Cunningham made no diagnosis of depression or any other mental illness. Nonetheless, he did opine that you present as ‘psychologically and emotionally immature relative to her age peers’ and you are ‘susceptible to negative influence and manipulation’.
77 Your counsel accepted on the plea that no Verdins principles are engaged in your case.
78 Dr Cunningham noted that your drug abuse and association with drug abusing peers were the main contributors to your offending behaviour. Dr Cunningham noted a number of ‘protective factors’ were present in your case which may reduce your risk of reoffending and improve your prospects for rehabilitation. He noted that you have a supportive and stable family and a supportive partner who all visit you whilst you are in custody. He also said that you are motivated to engage in employment and drug and alcohol rehabilitation. He concluded that you would benefit from a disposition that facilitated your rehabilitation. He said that your risk of reoffending is dependent on your ability to abstain from drug abuse and a need for you to cease associating with drug abusing peers.
79 Dr Cunningham said that you indicated to him that you were remorseful for your offending conduct because you had known the victim well and got along with him. You understood the wrongfulness of your offending and you wanted to put it behind you and get on with your life by becoming a useful and law abiding citizen. You told Dr Cunningham that you were sick of being in gaol and were hopeful of returning to the community and regaining some stability.
80 On the plea hearing I also received a letter from Odyssey House dated 27 March 2019[4] which indicates that you have been deemed suitable for admission to Odyssey House Victoria’s therapeutic community residential rehabilitation program. However, by reason of the present matter, you were unable to take up that opportunity.
[4] Exhibit A3.
Prior criminal history
81 You have a relevant prior criminal history. On 19 September 2016, you were convicted at the Dandenong Magistrates’ Court of a large number of offences which included two charges of theft from a shop, theft, fraudulently altering an identifying number, possess controlled weapon without excuse, assault police officer, and dishonestly receive stolen goods. You were placed on a 12 month community correction order, which contained conditions relating to supervision, medical assessment, mental health assessment and other offending behaviour programs.
82 You also have a number of subsequent criminal offences. On 27 July 2017, you were brought up before the Dandenong Magistrates’ Court for breach of the community correction order which had been imposed in September 2016. The breaching offences seem to mostly involve driving offences. However, there are two charges of theft, one of unlawful assault, one of commit an indictable offence whilst on bail, another charge of fraudulently use a number plate on a motor vehicle and charges of possess controlled weapon without excuse and deal with property suspected of being the proceeds of crime.
83 In respect of the breaching offences and the breach, you were placed on another community correction order for 12 months with similar conditions but adding a condition that you undergo treatment, assessment and rehabilitation for drug abuse or dependency as directed.
84 On 6 February 2018, you appeared before the Latrobe Valley Magistrates’ Court charged with one charge of burglary, one charge of commit indictable offence whilst on bail, one charge of contravene a conduct condition of bail, one charge of going equipped to steal and one charge of possessing cannabis. You were convicted and sentenced to an aggregate 49 days’ imprisonment; pre‑sentence detention of 23 days was declared. You were also sentenced to serve a community correction order for 12 months with similar conditions to those that had previously been imposed on you in September 2016 and July 2017. That community correction order was varied to include a curfew condition.
85 It appears that you contravened that community correction order which was found proven on 21 May 2018 at the Sale Magistrates’ Court, however it appears no further order was made.
86 On 9 October 2018, you were before the Latrobe Valley Magistrates’ Court charged with one charge of use methylamphetamine and three charges of contravene a conduct condition of bail. You were with conviction fined an aggregate of $500 on that occasion.
87 Then on 30 October 2018, you were before the Latrobe Valley Magistrates’ Court on two further charges of contravene a conduct condition of bail and a charge of use methylamphetamine and sentenced to an aggregate of 2 days’ imprisonment, which was time served.
88 Finally, on 18 January 2019, at the Sale Magistrates’ Court you were brought up for contravening the community correction order which had been imposed on 6 February 2018 and varied on 23 April 2018. You were re-sentenced in respect of those offences to an aggregate sentence of 180 days’ imprisonment. A charge of possessing cannabis was dismissed under s76 of the Sentencing Act 1991. Time held in custody of 108 days was declared as pre-sentence detention.
89 Whilst your prior criminal history is not particularly significant, it is nonetheless concerning that you have a large number of subsequent offences, including breaches of a number of community correction orders which have been imposed upon you in the past.
90 While subsequent convictions and findings of guilt cannot be taken into account in the same way as prior convictions can be, they bear upon my assessment of your character and shed light on your risk of recidivism. This is relevant to the weight I give to specific deterrence and protection of the community in sentencing you for the present offence. Subsequent offending is also relevant to my assessment of your prospects of rehabilitation.[5]
[5] See R v Rumpf [1988] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310–311 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v The Queen [2016] VSCA 21 [75], [77]– [78] (Santamaria JA).
91 You were arrested and charged with the present offence on 27 October 2016 and remanded in custody until you were bailed on 31 October 2016. Accordingly there are 5 days’ pre‑sentence detention referrable to this period. You were again remanded in respect of this matter on 9 February 2017 and granted bail on 27 February 2017. Accordingly there are an additional 19 days’ pre‑sentence detention referrable to that period.
92 Your bail was again revoked in relation to this offending on 20 November 2018. As I noted earlier, you were then sentenced on 18 January 2019 to imprisonment for 180 days and at that time 108 days was declared as pre‑sentence detention in respect of that sentence.
93 Accordingly, the time between your remand in custody in relation to the present offence on 20 November 2018 and you being sentenced on 18 January 2019, having been declared as part of the pre‑sentence detention declared on that day, it cannot now be declared by me as pre‑sentence detention in this matter.[6] Moreover, the time that you spent from the date of sentence on 19 January 2019 until the expiration of that sentence on 1 April 2019 is also not declarable as pre‑sentence detention in this case.[7] This is a period of 72 days. However, it has relevance to the application of the totality principle in your case.
[6] Sentencing Act 1991 s 18(2)(d).
[7] See R v Broad [1999] 3 VR 31 (Brooking, Tadgell and Chernov JJA). Cf Younger v The Queen [2017] VSCA 199 [68]–[70] (Redlich and McLeish JJA and Croucher AJA).
Mitigating circumstances
94 You pleaded guilty to the charge of armed robbery on the first day that your trial was listed before me on 18 February 2019. Whilst this is a late plea, the prosecution fairly conceded that at no stage during the proceedings did you seek to cross-examine any prosecution witnesses. You also indicated in your defence response that you were prepared to plead guilty to the alternative offences of theft and false imprisonment in relation to the incident giving rise to the present charge. This was understandably rejected by the Crown. Nonetheless, it does demonstrate that you were willing accept some responsibility for your offending conduct.
95 Your plea of guilty has a utilitarian benefit and also indicates a willingness on your part to facilitate the administration of justice and an acceptance by you of responsibility for your criminal conduct. I am also, in your case, prepared to accept that there are some indications of remorse regarding your involvement in this incident. Moreover, after initial reluctance, you did cooperate with the police investigation and make admissions and express some remorse for your behaviour. You told police that you told Mr Allen that you felt ‘pretty shit’ and ‘really bad’ and that you were upset regarding what you had done to the victim. You also told Dr Cunningham that you were remorseful because you got along well with the victim and that you understood the wrongfulness of your offending and that you wanted to do better in life in the future.
96 I also accept that there has been some delay in this matter, which is no fault of yours. It has been hanging over your head and also by reason of that delay you have taken some positive steps towards your rehabilitation.
97 So far as your prospects of rehabilitation are concerned, in light of your prior criminal history and subsequent offending and the circumstances of this offence, I can only adopt a cautious approach. However, I assess your prospects of rehabilitation as being reasonably good provided you remain drug-free upon your release from custody.
Sentencing principles
98 I have had regard to current sentencing practices in relation to armed robbery, in particular in light of the decision of the High Court of Australia in DPP v Dalgliesh (a pseudonym).[8] I was provided by your counsel with a case which was said to be comparable, being Ghannoum v The Queen.[9] I have had regard to this decision.
[8](2017) 262 CLR 428
[9][2019] VSCA 25.
99 It is difficult to gauge more than a very general yardstick from so-called comparable cases, given the wide range of offending conduct which can constitute the offence of armed robbery and the myriad of personal circumstances pertaining to individual offenders.
100 I am of the view that the offending conduct comprising charge 1 on the indictment is a relatively serious example of the offence. To the extent that I have been able to gain assistance from comparable cases, I have sought to do so in your case.
101 Parity has some role to play in sentencing you. Your co‑offender, Brianna Rosse, was sentenced on a charge of robbery by her Honour Judge Brimer on 5 June 2019. She was sentenced to a community correction order of 6 months’ duration with treatment and rehabilitation conditions. However, I note that Ms Rosse was not present during the commission of this offence, but was charged on the basis of her complicity in a robbery and not an armed robbery. Clearly, she played a much lesser role than you did. There were also personal circumstances present in her case which do not pertain to you. Nonetheless, to the extent that that sentence is relevant, I have taken it into account.
102 So far as Shane Allen is concerned, he appeared before me on 6 May 2019 at which time I fixed his matter for trial commencing on 1 June 2020.
103 The basic purposes for which a Court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offence, your culpability for it, the effect of your crime on your victim and your personal circumstances.
104 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.
105 Given the serious nature of the offence of armed robbery, general deterrence, denunciation and just punishment must be accorded significant weight in sentencing you. I must also give some weight to specific deterrence and protection of the community, given the nature of your offending conduct, your prior criminal history and your subsequent offending. As I said earlier, I assess your prospects of rehabilitation as being reasonably good, provided you remain drug-free upon your release from custody.
106 I have decided that in your case it is appropriate to structure a sentence which will maximise your prospects of rehabilitation, while giving what I regard to be appropriate weight to general deterrence, denunciation and just punishment.
107 I have had you assessed for suitability for a community correction order and I have received an extended pre-sentence report dated 12 June 2019.[10] The community corrections officer conducted a risk assessment which focussed on your risk and needs profile. Under that assessment it was noted that you have a job, arranged by your father, waiting for you upon your release from custody in an earthmoving business. It is anticipated that you will be involved in traffic management duties consistent with the training that you have undergone whilst you have been in custody. You would be employed for a minimum of five days per week and could work six days if you wanted to. You told the community corrections officer that you had gained your ‘white card’, which is a nationally recognised work safety qualification, and also a road traffic management qualification whilst you have been in custody.
[10]Exhibit C1
108 It was also noted in the risk assessment that you have a strong and supportive family relationship with your parents with whom you will live upon your release from custody. Your mother visits you at the Dame Phyllis Frost Centre regularly and your father visits when he can. You also receive fortnightly visits from a friend, whom you have known for 11 years.
109 It is hoped that upon your release from custody you will sever ties with your previous criminal associates and regain support from your law abiding friends.
110 So far as insight into your offending conduct is concerned, you told the community corrections officer that you ‘felt real shit bad for the person it happened to, and I'm very remorseful’.
111 I accept that you now have gained insight into your prior criminal behaviour and the effect it has on innocent members of this community, in particular the present victim.
112 To summarise, you were found suitable for a community correction order and a number of recommendations were made regarding the conditions of such an order, which I understand you have consented to me making.
113 In light of all of the considerations I have referred to, I am of the view that the purposes for which this sentence is imposed can be appropriately achieved by imposing a sentence of imprisonment equivalent to the time you have already served in custody in relation to this offence, together with a lengthy community correction order with a number of terms and conditions attached.
Stand up, Ms Caldwell.
On the charge of armed robbery (charge 1), you will be convicted and sentenced to imprisonment for 56 days together with a community correction order for a period of 3 years from today with the following terms and conditions:
(1)You are to report to Morwell Community Corrections Services at 25 Ann Street, Morwell by 4.00pm on next Tuesday 2 July, being two clear working days from your release from custody.
(2)Pursuant to s 48C of the Sentencing Act 1991 (‘the Act’) you are to perform 500 hours of unpaid community work during those 3 years.
(3)I order pursuant to s 48CA of the Act, all hours satisfactorily undertaken by you in treatment and rehabilitation are to be counted as hours of unpaid community work.
(4)Pursuant to s 48D(3)(a), you are to undergo assessment and treatment (including testing) for drug abuse and dependency.
(5)Pursuant to s 48D(3)(e), you are to undergo any mental health assessment and treatment, that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility.
(6)Pursuant to s 48D(3)(f), you are to undergo programs that address factors related to your offending behaviour.
(7)Pursuant to s 48E, you are to be under supervision for the period of 3 years.
(8)Pursuant to s 48K(1), there will be a judicial monitoring condition. You must appear before me in Melbourne for a review of your compliance with this order on Thursday, 26 September 2019 at 10.00am.
(9)Pursuant to s 48, I will impose a residual condition that you must 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 3 years from today.
I declare that pre‑sentence detention in your case is 56 days not including this day and I direct that that declaration be entered into the records of the Court.
In accordance with s 6AAA of the Act, I declare 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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