Director of Public Prosecutions v Calgaret
[2021] VCC 1236
•27 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01696
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SUZZANE CALGARET |
---
JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | MELBOURNE | |
DATES OF PLEA HEARINGS: | 17 May 2021 & 24 August 2021 | |
DATE OF SENTENCE: | 27 August 2021 | |
CASE MAY BE CITED AS: | DPP v Calgaret | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1236 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Armed Robbery; Common Law Assault
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v R (2013) 249 CLR 571; Worboyes v R [2021] VSCA 169; Director of Public Prosecutions (DPP) v Heyfron [2019] VSCA 130; Fariah v R [2021] VSCA 213; R v Verdins & Ors (2007) 16 VR 269
Sentence: 18 months’ imprisonment on armed robbery; 18-month Community Correction Order on common law assault.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Malobabic | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms A. Zomer | Law and Advocacy Centre for Women (LACW) |
HIS HONOUR:
Introduction
1Suzzane Calgaret, you have pleaded guilty to one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment, and one charge of common law assault, which carries a maximum penalty of 5 years’ imprisonment.
2You have also admitted your criminal record.
Circumstances of the Offending
3The circumstances of your offending were set out in the Amended Summary of Prosecution Opening for Plea dated 10 May 2021, Exhibit 1, which was read out at your plea hearing on 17 May 2021. That document contains the factual basis for the offending for which you will now be sentenced.
4Your offending can be briefly summarised.
5On Saturday, 2 February 2019, one of your co‑offenders, your brother-in‑law Narzzouli Togo, went to the FoodWorks supermarket in Doveton where he committed a shop theft. He was arrested at the supermarket and taken to the Dandenong Police Station for questioning, and subsequently was dealt with before the weekend court of the Magistrates’ Court at Melbourne in relation to that offence.
6The following day, Sunday, 3 February 2019, Mr Togo reattended at the Doveton supermarket along with you and your sister, Heather, the partner of Mr Togo. There were two female attendants working at the time in the liquor area: Romain Bartholomeusz, who was new at her job, and Mandeep Kaur. Other customers were in the store at the time.
7Mr Togo stood in the doorway and made demands for cigarettes that he claimed he was promised the day before. You and your sister, Heather, then entered the supermarket. Your sister, Heather, was carrying a metal pole, and you were carrying a stove lighter. You and your sister approached the counter, threatening the victims and demanding cigarettes. Ms Bartholomeusz tried to calm you both down. She moved away from the counter and called police. Threats were made to Ms Kaur in relation to the demand for cigarettes, with your sister, Heather threatening to use the metal pole, saying to Ms Kaur something like “I’m going to get you” or “I’m going to kill you.”
8You spat at Ms Kaur, who then pushed the duress button. Your sister, Heather, then reached over the counter and stole an unknown quantity of cigarettes and other items including phone cards from a display stand. All three of you then left the supermarket. The stolen cigarettes were shared amongst you.
9The incident was recorded on CCTV cameras, and you and your co‑offenders were identified by police. You were subsequently arrested in Doveton on 15 May 2019. In your police interview conducted on that day, you told police that you and the others did not have anything planned or premeditated, but in the last second Mr Togo yelled out to your sister, and all of a sudden you just stormed into the supermarket and your sister was yelling abuse. You told police that you had each been using ice and had not slept in nearly two weeks. You claimed that you were just backing your sister up. You did not remember taking a stove lighter with you into the store, but you admitted spitting at the store attendant.
10Whilst no Victim Impact Statements have been filed in this matter from the two female employees, their sentiments expressed to police in their respective statements, where they referred to being in shock, scared, and in fear of their lives, clearly indicate their level of fear and anxiety during your offending. These two women were simply engaging in their work. They had a right to feel safe when doing so.
Gravity of the Offending and Your Role
11Armed robbery is a serious offence, as reflected in the maximum term of imprisonment available, 25 years. It is also a prevalent offence, and is often committed in places such as supermarkets, convenience stores and service stations, which are often referred to as soft targets, with unsuspecting and vulnerable victims simply going about their work. Subject to considerations which are personal to you, the sentencing principles of just punishment, denunciation, general deterrence and community protection are significant factors in this case.
12By virtue of s5(2H) of the Sentencing Act 1991, armed robbery in company is described as a category 2 offence, meaning that a term of imprisonment (other than a term of imprisonment combined with a Community Correction Order) must be imposed on that charge, unless an offender falls within one of the limited exceptions.
13Clearly, you committed the armed robbery in company with your two co‑offenders, both aggravating the gravity of this crime, and meaning that the starting position for you is a term of imprisonment. Other than the fact that you and your sister were armed with fairly rudimentary weapons, and your male co‑offender, Mr Togo, had committed an offence at the same supermarket the day before, it appears that there was no real pre-planning on the part of the three of you, and the offending took place over a relatively short period of time. However, as the CCTV stills, Exhibit 2 at your plea hearing, show, you clearly played a prominent role in the commission of the armed robbery, as you were the first to enter the supermarket and point the item you were holding at the store attendants. The CCTV stills reveal a menacing demeanour on your part.
14Furthermore, your conduct in spitting at one of the store attendants during the commission of the armed robbery, the common law assault, represents deplorable and degrading behaviour on your part, which was gratuitous, in that it was completely unnecessary for the completion of the armed robbery offence. This conduct represents separate or distinct criminality on your part, warranting a distinct penalty.
15In terms of your role overall in this incident, I have concluded that there is minimal distinction between your role and that of your sister, Heather. You were both integral to the commission of the armed robbery. You both also engaged in separate criminality, with your sister, Heather, threatening to seriously injure one of the shop attendants, and you assaulting that shop attendant by spitting at her. In relation to the armed robbery offence, you were both armed with offensive weapons, albeit your sister’s weapon could be considered more dangerous or threatening than yours. Your sister, in contrast to you, physically removed the items that were stolen in the course of the armed robbery, however in my view your presence and menacing demeanour very much facilitated the commission of the armed robbery.
16It is certainly not difficult to contemplate more serious examples of both the armed robbery and the common law assault offences to which you have pleaded guilty. Notwithstanding that the armed robbery was committed in company, there was no actual physical violence involved, and the weapons used were fairly rudimentary and not reflective, in my view, of any sophisticated planning on the part of you or your co‑offenders. Nevertheless, for the reasons I have just outlined, I regard both the crime of armed robbery and the crime of common law assault in the circumstances of your case as concerning examples of these offences.
Personal Circumstances
17You are currently 32 years of age. You identify as a proud Yamaji and Wongi woman, with both of your parents having Aboriginal heritage. Your father was a member of the Stolen Generation and your mother was apparently adopted by a non-Aboriginal family. I accept in your case that any consideration of your background must occur through the lens of inter-generational trauma. You are not close with your mother and you have no contact with your father who currently resides in a care facility in Western Australia, having suffered two strokes. You have a younger sister, Heather, one of your co‑accused in this matter, and you have numerous half-siblings on both sides, as a result of your parents’ subsequent relationships following their separation when you were just five years old.
18When your parents’ marriage broke down, both you and your sister, Heather, were essentially abducted by your father and taken to Adelaide where he had begun a relationship with another woman. You were subsequently found by police and returned to your mother who subsequently raised you. Understandably, it seems you have suffered post-traumatic symptoms following this event. Sadly, addiction and violence have been present in your life from a very young age. You have reported that your sister, several half-siblings and your mother, have experienced substance use problems. During the period when your mother raised you, you were apparently exposed to alcohol abuse, fighting and sexual abuse which you witnessed. You have reported that due to your mother’s significant absences from the home and intoxication, you were often not fed. Furthermore, you were often, it seems, the victim of early aggression from your mother, often being locked in the house and physically disciplined. You were also largely responsible during these periods for the care of your younger siblings.
19You have reported commencing alcohol consumption at the age of six, sourcing the alcohol apparently from your mother. DHHS records dating from 1998 document Departmental concerns with regard to your mother’s neglect of you and your siblings, in the context of your mother’s alcohol misuse and dependency. By the age of 15, DHHS records document concerns with regards to your reported inappropriate behaviour with your stepfather, including inappropriate physical contact and exposure to domestic violence.
20Amidst all of this trauma and chaos, it is perhaps unsurprising that you have a limited education. You attended various schools within the Dandenong North area through to the end of Year 9. You have reported suffering significant harassment and bullying at school, generally of a racial nature. Following your partial completion of a TAFE course in Dandenong, you have not since engaged in any other formal education or employment in the community.
21In your mid teenage years, you ran away to Western Australia for a year, staying with your paternal family. You have reported that it is during this period that you commenced consuming cannabis. After approximately one year, you then returned to Victoria.
22You have reported three past intimate relationships that have resulted in the birth of your daughters aged 15, eight and two. You have reported that all three partners were physically abusive. The first relationship occurred in your late teenage years, and you have reported to psychologist, Warren Simmons,[1] that this relationship was marred with emotional, physical and sexual abuse by your partner.
[1] Psychological Report of Dr Warren Simmons dated 28 January 2021, Exhibit D.
23In 2005 you reported to police that you had been the victim of sexual assault by your boyfriend, and you sought protection through an intervention order and attended counselling through the South East Centre Against Sexual Assault. Notwithstanding prosecution submissions that a failure on your part to pursue this or other reports through to formal legal proceedings should in any way dilute the veracity of your claims, I am satisfied that you have been the victim of physical and sexual violence in your life. This relationship resulted in the birth of your first daughter, Laquita, born in 2006, with the father leaving the relationship not long after Laquita’s birth.
24Your second daughter, Laylarne, was born in 2013 in the context of another relationship. You have reported that this relationship ended in the midst of a decline in your mental health around this time, and the father of the child ultimately left this relationship. Your most recent relationship commenced in 2016, apparently with a man who suffers from paranoid schizophrenia. You have reported that you were the victim of family violence in the context of this relationship, with intervention orders being sought. This relationship ultimately led to the birth of your youngest child, Lamiya, born in May 2019. You were pregnant with Lamiya during the course of the offending for which you now fall to be sentenced.
25Your two oldest children are currently under a Care by Secretary Order which will remain in place until 2022. Your youngest child, Lamiya, is subject to a Family Reunification Order which is currently in place. All children are currently residing together with family.
26
Your two oldest children were removed from your care in 2014. Whilst by this time your criminal history had commenced, dating back to 2009, I accept that the removal of your children roughly corresponds with an escalation in your criminal history following a break of some five years. You have prior convictions for matters of violence including recklessly cause injury, assault police and resist police, family violence, criminal damage and bail related offences. On multiple occasions, you have received Community Correction Orders, which have been breached. In May 2018 you received a 13-day sentence of imprisonment combined with a
12-month Community Correction Order in relation to offences which included family violence, and bail offences. The offending for which you now fall to be sentenced occurred within the operational period of this Community Correction Order.
27Unsurprisingly, you have a problematic substance use history. As I have stated, you began drinking alcohol from the age of five or six, and you have reported difficulties with alcohol throughout your adolescence and adulthood. You reported to forensic psychiatrist, Dr Maria Triglia,[2] that at your peak use, you would drink three to four slabs of beer or a box of wine or two bottles of spirits, several days in a row. You commenced smoking cannabis, as I have stated, in your mid teenage years and this has continued into your adolescence and adulthood. You reported first using methamphetamines approximately six years ago, a period roughly coinciding with the removal of your children from your care.
[2]Forensicare Report of Dr Maria Triglia dated 11 August 2021 at [28].
28You reported to Dr Triglia that the current offending occurred in the context of a lengthy period of social and housing instability and very heavy substance use. You reported to psychologist ,Carla Lechner,[3] that at the time of the offending you were pregnant and using ice and had been arguing with your then partner.
[3]Psychological Report of Carla Lechner dated 13 August 2021, Exhibit J.
29You were remanded in custody on this matter on 14 November 2019. You were subsequently bailed on 5 May 2020, with 120 of these 173 days attributable to a sentence imposed on 2 April 2020 for summary matters, leaving 53 of the 173 days attributable to the current offending, by way of pre‑sentence detention. You were subsequently remanded in custody again on 28 August 2020, in relation to outstanding charges of an indictable nature. You have remained in custody since this time.
30Your bail in relation to the current matters was revoked on 3 December 2020. However, pursuant to s18(4) of the Sentencing Act 1991, in my view it is appropriate to take into account by way of pre‑sentence detention the period from 28 August 2020 up to but not including today. Clearly, the period between 28 August 2020 and 3 December 2020, which I will include in a pre‑sentence detention declaration, should not be counted should you be subsequently found guilty of the outstanding indictable matters. By agreement between the parties, therefore, a period of 417 days can be declared as pre‑sentence detention in this matter.
31Whilst I have little doubt that this significant period of time in custody has been difficult for you, to your credit you have engaged in a number of activities, programs and therapies, the details of which I will shortly outline. Also, whilst in custody, you have been psychiatrically assessed by Dr Maria Triglia from Forensicare[4] and clinical psychologist, Carla Lechner.[5] In addition to providing a detailed history to Dr Triglia, you explained your role in the commission of the current offence.
[4]Forensicare Report of Dr Maria Triglia dated 11 August 2021.
[5]Psychological Report of Carla Lechner.
32You referred to being in an abusive relationship whilst pregnant with your third child, encountering housing instability, couch surfing with your co‑offenders and for approximately two weeks prior to the offence you had almost no sleep as a consequence of methamphetamine use. On a review of the relevant mental health database, Dr Triglia noted a prior admission on your part to Maroondah Hospital in 2011 in a drug and alcohol context, and a 10-day admission to the Maroondah Hospital in 2019 where your discharge diagnosis was adjustment disorder, mental and behavioural disorder due to cannabis and methamphetamine and a personality disorder.
33Dr Triglia noted that you had previously been prescribed antidepressants but had stopped taking this medication several months ago and were not currently medicated. Dr Triglia examined you on 19 July 2021, having reviewed various background documents. She found you not to be delusional, not to be having any current suicidal ideation, nor any depressive cognitions. According to Dr Triglia, it is not clear whether you have met the criteria for major depression in the past, but treatment with antidepressant medication appears to have had some benefit in improving your mood. According to Dr Triglia:
“Her presentation at interview did not suggest she is currently experiencing a depressive episode.”[6]
[6]Forensicare Report of Dr Maria Triglia at [49].
34According to Dr Triglia, whilst you have reported hearing voices, these were attributed to your personality structure, and:
“Their features do not suggest they are due to a psychotic disorder.”[7]
[7]Forensicare Report of Dr Maria Triglia at [50].
35With regards to the offending, Dr Triglia opined that this occurred in the context of a lengthy period of social and housing instability and very heavy substance use. It is likely that you were disinhibited and intoxicated, and distressed by your circumstances, and in the view of Dr Triglia:
“I do not have information to suggest that she was suffering from a mental illness at the time that contributed to the offences.”[8]
[8]Forensicare Report of Dr Maria Triglia at [53].
36Carla Lechner likewise took a detailed history from you and reviewed various documents before examining you on 12 July 2021. According to Ms Lechner, you were:
“Exposed to Complex Developmental Trauma in her formative years, this giving rise to symptoms of PTSD, Complex PTSD, Major Depression and now Borderline Personality Disorder.”[9]
[9]Psychological Report of Carla Lechner at page 6.
37According to Ms Lechner:
“Her exposure to Complex Developmental Trauma undermined her vocational, social and emotional development.”[10]
[10]Psychological Report of Carla Lechner at page 6.
38You are apparently reporting currently a severe level of psychological distress in addition to the presence of symptoms of PTSD and Complex PTSD.
Sentencing Factors and Principles
39The Sentencing Act 1991 requires me to have regard to various factors when formulating an appropriate sentence. I have already referred to the maximum penalties for your offending, the nature and gravity of your offending and your role in it, and the impact of your offending on your victims. I have also referred to your previous character.
40I turn now to a consideration of your culpability and degree of responsibility for the offending. As conceded by your counsel, your Post-traumatic Stress Disorder, Complex Post-traumatic Stress Disorder, Borderline Personality Disorder and depressive symptomology do not warrant a reduction in your moral culpability for the offending in accordance with principle 1 of the well-known decision of Verdins,[11] dealing with the impact of impaired mental functioning on sentencing.
[11] R v Verdins & Ors (2007) 16 VR 269.
41However, as conceded by the prosecution, your moral culpability for the offending is reduced in accordance with the principles articulated in the High Court decision of Bugmy.[12] Pursuant to the Bugmy principles, an offender’s background of deprivation is relevant because her moral culpability for the particular offence is likely to be less than the culpability of an offender whose formative years have not been marred in that way. A history of deprivation may also impact on the relevance of any prior criminal history. As stated in Bugmy:
“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender's deprived background in every sentencing decision.”[13]
[12]Bugmy v R (2013) 249 CLR 571.
[13]Bugmy v R (2013) 249 CLR 571 at [44].
42I accept in your case that you have experienced what can only be described as profound deprivation and disadvantage from a very young age, amidst a backdrop of intergenerational trauma as a result of your Aboriginal heritage. You have been exposed in your formative years to alcohol misuse, drug abuse, parental abandonment and neglect, social instability, and physical and sexual abuse.
43Amidst this deprivation, I have no doubt that your psychological and personality development has been adversely impacted, as has your sense of your own identity. It is in this context, in my view, that your own difficulties with regards to antisocial behaviour and drug use in particular have occurred. There must be a reduction in your moral culpability for these reasons, and to some degree a reduction in the need for any sentence to reflect the sentencing purpose of general deterrence.
44I turn now to a consideration of your mental health and personality issues, and the impact on sentencing. I am satisfied having considered all of the psychological and psychiatric material to which I have referred, that your Complex Post-traumatic Stress Disorder, Post-traumatic Stress Disorder, Borderline Personality Disorder and depressive symptomology are relevant in a general sense in gaining an understanding of the context within which you committed these offences.
45Furthermore, as conceded by the prosecution, a mitigatory allowance is warranted due to your impaired mental functioning, in accordance with Verdins’ principles 5 and 6. According to psychiatrist Dr Maria Triglia:
“With regard to custody, prisoners with significant personality difficulties can find being in custody difficult and they are more vulnerable to developing mood and other mental disorders. Ms Calgaret would be vulnerable to developing mood problems, particularly with a lengthy sentence.”[14]
[14]Forensicare Report of Dr Maria Triglia at [58].
46According to psychologist, Carla Lechner:
“Ongoing imprisonment is likely to lead to a further deterioration in her mental health and aggravation of her symptoms of PTSD in an environment that is, by nature, conflictual and aggressive. Furthermore, she is not able to access the intensity of treatment that she requires.”[15]
[15]Psychological Report of Carla Lechner, page 7.
47In these circumstances, I am satisfied that your impaired mental functioning could mean that a given sentence would weigh more heavily on you than it would on a person in normal health, and there is a serious risk of imprisonment having a significant adverse effect on your mental health, such that mitigation in punishment is warranted.
48Finally, with regard to your impaired mental functioning, your counsel submitted in relation to the armed robbery offence, pursuant to s5(2H)(c)(ii) of the Sentencing Act 1991, that the legislative prohibition on imposing a Community Correction Order (either on its own or in combination with a sentence of imprisonment) was displaced on the basis that you have impaired mental functioning “that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.”
49I am satisfied that the ailments and conditions described by the experts constitute impaired mental functioning. I am also satisfied that these conditions increase the burden of imprisonment in your case. However, having given the matter careful consideration, I am not satisfied that your impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
50There is an absence in my view of an evidentiary foundation for making such a finding, having carefully considered the Lechner and Triglia reports. Furthermore, it is clear from the documentary material tendered on your behalf that you have been accessing psychological treatment through the Marrmak Unit at the Dame Phyllis Frost Correctional Centre which has been advantageous to you.
51I am also satisfied that notwithstanding the difficulties to which I have described, you have made positive progress generally whilst in custody, which is a matter standing to your credit. The hurdle contained in s5(2H)(c)(ii) of the Sentencing Act 1991 is a high one. I am not satisfied to the requisite standard in the circumstances of your case that this hurdle has been overcome.
52I turn now to the issue of your plea of guilty. Your matter resolved to a plea of guilty on 3 December 2020, prior to the committal hearing which was listed to commence that day. The matter had been adjourned from 2 December 2020 due to a video link issue, and witnesses had attended at the Police Station on that day, prepared to give evidence. In these circumstances, I accept that your plea of guilty removed the need for any witnesses to give evidence in any contested proceedings, though clearly they had undertaken steps in preparation to do so.
53Nevertheless, given that your plea of guilty preceded the commencement of the committal, I accept that your plea of guilty should be considered as having been entered relatively early in the proceedings. Through your plea of guilty, you have accepted responsibility for your wrongdoing and you have facilitated the administration of justice. Your plea of guilty has saved the community the cost of a trial and, as I have said, witnesses from giving evidence.
54Your plea of guilty, therefore, has a significant utilitarian benefit. Significantly, you entered your plea during the COVID‑19 pandemic. Given the current unprecedented challenges to the administration of criminal justice in this State due to the scourge of COVID‑19, and the consequential delays to criminal trials in this State, your plea of guilty has a significantly enhanced utilitarian benefit having regard to the significant backlog of cases currently before the courts. As the Court of Appeal has recently emphasised, the courts must encourage those who are guilty to so plead, and such encouragement must come from an “actual and palpable” amelioration of sentence.[16]
[16]Worboyes v R [2021] VSCA 169 at [35].
55I am also satisfied that a further sentencing discount is warranted on the basis of your genuine remorse. I accept in the circumstances of this case that your plea of guilty is reflective of your remorse. Furthermore, I accept that the sentiments expressed in your recently written letter to the Court, tendered at your plea hearing and marked Exhibit N, are reflective of your heartfelt regret and remorse for your offending behaviour.
56According to psychologist, Carla Lechner, in her report dated 13 August 2021, you expressed regret for your actions and empathy for your victims. You expressed similar sentiments to psychiatrist, Dr Maria Triglia, outlined in her report dated
11 August 2021. Furthermore, on 17 May 2021 you participated in a sentencing conversation, in the presence of two Aboriginal Elders, as part of the Koori Court plea hearing procedure.57As is often the case, that sentencing conversation was substantial, direct and at times confronting for you. I formed the view that you were conscientiously participating and taking responsibility for your actions. I must say that I was very impressed with your participation in the sentencing conversation. You impressed me as being extremely thoughtful, articulate and most importantly remorseful.
58You were able to explain in a detailed way why it is that you feel so embarrassed and ashamed to be in front of the Elders, and you were able to understand and appreciate the impact of your offending on your victims. It is clear to me that you are a thoughtful woman, and it seems you have impressed those who have had contact with you in the context of these proceedings in a similar way. Part of the sentencing conversation to which I have referred involves a shaming aspect, which in my view you genuinely embraced.
59As acknowledged in recent authority,[17] meaningful engagement in the Koori Court sentencing conversation may operate as a mitigating circumstance. You faced the shaming that is an integral part of those proceedings and you were prepared to be accountable for your offending. Participation in the process of a Koori Court is more burdensome than appearing at a traditional plea hearing, and participation therefore may of itself be rehabilitative. The degree to which you have on multiple occasions expressed your remorse is in my view uncommon and stands as a significant mitigatory aspect in the sentencing exercise in your case.
[17]Director of Public Prosecutions (DPP) v Heyfron [2019] VSCA 130 at [66] - [69].
60I am also satisfied that the circumstances encountered by you in custody warrant a further mitigatory allowance. Much of your time in custody has occurred amidst the COVID‑19 pandemic and its unprecedented effects on the administration of criminal justice in this State. As is now well-known, the custodial setting has been significantly impacted by the pandemic. To varying degrees given the unpredictable nature of the pandemic, there have been significant restrictions in the custodial setting with regards to prison visits, access to employment, access to programs, services and therapies.
61Quarantining and isolation have become features of the custodial setting. All prisoners and their families have had to live with the ongoing stress and anxiety associated with the risks associated with COVID‑19 in the custodial environment, with its compromised demographic, particularly with regards to Aboriginal prisoners. In your case, I accept that being in custody during the pandemic has resulted in highly stressful conditions, with the need for additional measures to address health and safety that have led to you facing significant periods of isolation and hardship, usually reserved as a means of punishing offenders.
62Upon your remand in custody on 28 August 2020, you were subject to a 14-day quarantine period. Whilst your ability to have contact with your children has been restricted due to the Children’s Court orders that I have earlier described, I have little doubt that your knowledge of restrictions on contact with the outside world brought on by the COVID‑19 pandemic has added to your anxieties. This of course is in the context of your chronic history of exposure to trauma, abandonment and neglect, with the attendant mental health challenges faced by you.
63Whilst you have managed to complete a number of courses and programs in custody, and obtain work in the area of horticulture, I accept as you state in your letter that due to the pandemic, regular programs have been limited in custody. Importantly, access by you to important therapeutic interventions has been limited, as evidenced by way of example from the letter of Julie Kruss from WestCASA dated 18 August 2021, Exhibit O, where Ms Kruss makes clear that after being allocated to you for counselling in April 2020, due to COVID‑19 restrictions, some of those important counselling sessions have had to be by phone or video rather than in person.
64Significantly, according to psychologist Dr Ryan Veal from the Marrmak Unit at the Dame Phyllis Frost Centre,[18] you were first assessed by the Marrmak Unit psychology service on 9 December 2020 for anxiety and depressive symptoms on the background of trauma and long-term substance misuse. You were then waitlisted for treatment with the next available clinician, however, you were not seen again until May 2021 due to an extensive waitlist. I am satisfied in all the circumstances that your time in custody has been more arduous due to the impacts of COVID‑19, warranting a further mitigatory allowance.
[18]Letter from Dr Ryan Veal dated 20 August 2021, Exhibit P.
65Notwithstanding these difficulties, it is clear from the wealth of material tendered on your behalf that you have made the best of your time in custody. You have undertaken a number of custodial courses as evidenced by the bundle of custodial certificates tendered on your behalf, Exhibit H. You have engaged in numerous group sessions with the Living Free from Violence Program delivered by Drummond Street Services, working on issues related to your experiences of harm, your actions and choices, your relationships, and the need for healthy de‑escalation and coping strategies.
66You have been described as an asset to the group work experience and have indicated a desire to continue with individual sessions following the completion of the group.[19] You are a participant of the Restart Program delivered by the Australian Community Support Organisation (“ACSO”), a program delivered over 13 weeks which provides assertive outreach support to help establish community supports and linkages following an offender’s release from custody.
[19]Letter of Amy Stoneham of Drummond Street Services dated 14 July 2021, Exhibit L.
67In the context of your lengthy history of homelessness, you have self-referred to the Women’s Justice Diversion Program (”WJDP”) at Women’s Housing Ltd, a program aiming to divert women away from the custodial settings into housing and support services in the community. Upon your release from prison, this program can assist with housing brokerage, supports and referrals and provide emergency accommodation at the Kimberley Gardens Hotel in East St Kilda.
68The program will further assist you in seeking long term housing options.[20] You have also self-referred to the Balit Baggarrook Koori Women’s Diversion Program, in relation to obtaining culturally specific supports and referrals upon your return to the community. Significantly, you have been obtaining counselling from WestCASA in relation to your significant history of trauma and abuse.[21] I accept that your undertaking of these various programs and activities highlights your motivation for change and lays a strong foundation for your ongoing rehabilitation in the community.
[20]Letter of Karen Bouhadana of Women’s Housing dated 25 August 2021, Exhibit M.
[21]Letter of Julie Kruss of WestCASA dated 18 August 2021.
69Unsurprisingly, you have described your ambition in becoming an active and positive role model in your children’s lives as being your primary source of motivation to maintain abstinence and positively engage in rehabilitation. Of course, it must be remembered that you committed your offences whilst subject to a Community Correction Order, and this to some degree, in combination with the very nature of your offending and your criminal history dilutes your rehabilitative prospects.
70However, in light of your early plea, your significant remorse, your positive participation in the Koori Court sentencing conversation, and your positive progress in custody in difficult circumstances, I am satisfied that your rehabilitative prospects are at least reasonable, and may indeed be favourable if you are able to navigate your way through your reintegration into the community with appropriate supports and specialist interventions.
71I turn now to the issue of parity. Parity in the punishment of co‑offenders is a fundamental consideration in sentencing. The principal of parity of sentence is based upon notions of equal justice. All other things being equal, a disparate or lighter sentence on a co‑offender may lead to a justifiable sense of grievance on the part of the offender first dealt with, that he or she has been unfairly sentenced.
72One of your co‑offenders, Mr Togo, received a sentence of 3 years’ imprisonment with a non‑parole period of 18 months on 18 September 2019 in relation to one charge of armed robbery. On 4 May 2020, in relation to one charge of armed robbery and one charge of threat to cause serious injury, I sentenced your sister, Heather, to a total effective sentence of 2 years and 4 months’ imprisonment with a non‑parole period of 14 months.
73Having considered the parity principle in this case, I am satisfied that your position can be distinguished from that of Mr Togo, a man with more substantial prior convictions, including significantly a prior finding of guilt for armed robbery. Further, I note in the relevant sentencing remarks there was no allowance made for the Verdins principles and no specific reference to the Bugmy principles, both of which have application in your case.
74Following a careful analysis of the situation with regards to your sister, Heather, I have come to the view that there are grounds for a degree of disparity. Your criminal history is slightly less than that of your sister. The impact of impaired mental functioning in the sentencing synthesis is more pronounced in your case. The presence of remorse is more pronounced in your case. The impacts of COVID‑19 in the custodial setting upon you are clearer in my view. Further, your progress in custody has been more positive and ultimately my assessment as to your prospects of rehabilitation is more positive. This is perhaps highlighted by the fact that you were found by Community Correctional Services (“Corrections”) to be suitable for a further Community Correction Order, in contrast to your sister.
75Finally, in formulating an appropriate sentence in your case, I have had regard to current sentencing practices for the offences for which you now fall to be sentenced.
Sentencing Submissions
76I have already referred to your counsel’s submission that the requirement in relation to the armed robbery offence for a sentence of imprisonment (excluding in combination with a Community Correction Order) was not triggered by virtue of your impaired mental functioning and its impact on you, pursuant to s5(2H)(c)(ii) of the Sentencing Act 1991.
77Your counsel submitted that there was a secondary basis upon which the requirement under the Sentencing Act1991 to impose a sentence of imprisonment, other than a combination sentence, including a Community Correction Order for the armed robbery could be avoided. Pursuant to s5(2H)(e) of the Sentencing Act 1991, your counsel submitted that there are “substantial and compelling circumstances that are exceptional and rare, and that justify not” imposing a sentence of imprisonment excluding a combination sentence, pursuant to that provision.
78In essence, your counsel submitted that a combination of factors amounted to substantial and compelling circumstances that are exceptional and rare. These factors include your significant background of trauma and disadvantage, your psychological fragilities, the impact of COVID‑19, your difficulties in custody, and the positive matters noted in the Corrections assessment report with regards to your suitability for a Community Correction Order.
79As I made clear in the plea hearing, this “substantial and compelling” threshold is a high hurdle to overcome. In making my assessment, I have had regard to s5(2HC) of the Sentencing Act 1991, which requires me to regard general deterrence and denunciation as having greater importance than the other sentencing purposes and requires me to give less weight to the personal circumstances of an offender than to other matters such as the nature and gravity of the offence.
80Further, I have had regard to s5(2I) of the Sentencing Act 1991, which requires me to have regard to Parliament’s intention that a sentence of imprisonment excluding a combination sentence involving imprisonment and a Community Correction Order should ordinarily be made and I must have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
81Having considered this second limb, I am not persuaded that the substantial and compelling limb has been satisfied in your case. For the sake of completeness, I have considered the impact of COVID‑19 in the context of the substantial and compelling limb, and have considered the recent decision of Fariah v R.[22] Accordingly, in relation to the armed robbery offence, it having been committed in company, a sentence of imprisonment other than a sentence of imprisonment imposed in addition to making a Community Correction Order must be imposed.
[22][2021] VSCA 213.
82As conceded by the prosecution, the restrictions imposed by s5(2H) of the Sentencing Act 1991 apply only to Charge 1 on the indictment, armed robbery. Whilst the prosecution submitted in all the circumstances that a sentence of imprisonment with a non‑parole period was the appropriate sentence in your case, the prosecution in this matter accepted that there would be no legislative or legal impediment to the imposition of a Community Correction Order on Charge 2 on the indictment, common law assault.
Conclusion
83As I have indicated in the course of my remarks, you have been assessed as suitable for a further Community Correction Order in a detailed extended pre-sentence assessment report dated 14 July 2021 from the Department of Justice and Community Safety. That report is favourable not only with regards to the Conclusion, but also with regards to your motivation for your rehabilitation. Various conditions are recommended by Corrections with regards to any Community Correction Order.
84Suzzane Calgaret, you engaged in serious and concerning offending in company with others on 3 February 2019. Bearing in mind the matters to which I have already referred, any sentence I impose must reflect the important sentencing principles of general deterrence and specific deterrence. Through the sentence imposed, I must on behalf of the community denounce your serious criminality and protect the community from such future offending. Importantly, I must also facilitate your rehabilitation as appropriate. I have determined that a sentence of imprisonment is required with regards to the armed robbery offence. In my view, the time spent on remand by you to date does not adequately reflect the sentencing principle of just punishment with regards to the armed robbery. Upon your release from prison, you will be subject to a Community Correction Order with regards to the common law assault charge.
Sentence to be Imposed
85Ms Calgaret, in relation to charges on the indictment you are sentenced as follows. On Charge 1, armed robbery, you are convicted and sentenced to 18 months’ imprisonment. Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 417 days’ pre‑sentence detention has been served and I order that this period be administratively deducted from the sentence of imprisonment.
86On Charge 2, common law assault, you are convicted and ordered to undergo and complete a Community Correction Order. The duration of this order will be 18 months. It will commence on your release from prison in just over 4 months’ time. In addition to the core conditions, you will be required to comply with the following conditions.
87You must be under the supervision or a Community Correctional Officer for a period of 18 months.
88You must undergo assessment and treatment, including testing for drug use or dependency as directed by the Regional Manager.
89You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Regional Manager.
90You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
91You must participate in programs or courses that address factors relating to the offending as directed by the Regional Manager.
92
You must reappear at Court for a review of your compliance with the order as directed by the Court. You must attend for review on 2 March 2022 at
9.30 am before me at this Court.
93There is one other condition that I am minded to impose, Ms Calgaret, but before I announce it I just want to check with counsel as to this particular condition. I will start with you, Ms Zomer, the condition I am minded to impose is that recommended by Corrections. It is a non-association condition. Do you wish to be heard in relation to a condition which prohibits your client from having contact with or associate with Heather Calgaret and Narzzouli Togo for the period of 18 months?
94MS ZOMER: Your Honour, the only submission that I would seek to make is that a disassociation clause in relation to Heather would impact Ms Calgaret in relation to working on their relationship in the community and reunifying that relationship as family members.
95
HIS HONOUR: There is judicial monitoring on this order and of course I have powers under the Act, as I recall at the judicial monitoring hearings, to vary a Community Correction Order. I'm minded to keep the condition at least until
2 March. By that stage your client hopefully will have settled back into the community. If there are issues related to that submissions can be made on that occasion or a subsequent occasion.
96It seems to me, and I recall your client made something of this, that she ceased contact with Heather and essentially didn't want anything to do with her, at least for the time being. I'm minded to impose this condition, Ms Zomer, and we can deal with it at a later stage.
97MS ZOMER: Yes, Your Honour.
98HIS HONOUR: Ms Malobabic, you do not wish to be heard on that condition, do you?
99MS MALOBABIC: No, Your Honour.
100HIS HONOUR: I will impose that condition, which is that you must not contact or associate with co-accused, Heather Calgaret, and Narzzouli Togo for a period of 18 months.
101Before I turn to some other matters, pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but had been found guilty of these offences, I would have imposed a total effective sentence of 4 years’ imprisonment with a non‑parole period of 3 years.
102HIS HONOUR: I'm going to leave Ms Zomer to explain some of the details of all of this, but you will note from what I have said it is my calculation 18 months less 417 days leaves you just over four months. I am aware of allowances being made through emergency management days through Sentence Management which may impact on the period of time remaining before you can be released, but I will leave you with Ms Zomer at a later stage to talk about that.
103In relation to this sentence, it is my intention that you serve the sentence of imprisonment and then be released onto an 18-month CCO. You have been found suitable for an order even though you are in breach of an order or were in breach of the order at the time of the offending, so I probably do not need to tell you how important it is that you follow to the letter the conditions that have been imposed.
104From a formality perspective I cannot impose a CCO unless you agree to the CCO and you cannot agree to the CCO unless you understand what is involved in it and what happens if you breach it, so you will know I am sure that there are mandatory terms attaching to any CCO. They include things like a requirement not to commit another offence punishable by jail during the period of the CCO, complying with any obligations or requirements, report to and receive visits from Corrections, report to Corrections within two clear working days of the order starting.
105Notifying Corrections within two working days of changing your address or job, not leaving Victoria without first getting permission and obeying all lawful instructions. Again, those additional conditions that I have imposed are supervision, a bunch of conditions relating to treatment and rehabilitation, so drug testing and treatment for drug abuse, the same for alcohol abuse, a mental health condition and an offender behaviour program condition.
106
In addition, there is a non-association condition with regards to Heather and
Mr Togo and what is called a judicial monitoring condition. What that means is that I am going to monitor your progress upon your release and you will appear before me and I will get reports from Corrections as to how you are going, and if there are problems I will find out fairly quickly.
107If you breach this order without reasonable excuse, which can include not complying with any of these conditions such as committing another offence or not notifying Corrections of a change of address or not turning up to appointments and complying with testing and the like, you can be brought back before me or this Court on a breach hearing.
108The penalties for breach include terms of imprisonment and can include resentencing. Do you understand what is involved in terms of the CCO?
109OFFENDER: Yes, I do.
110HIS HONOUR: Knowing that do you agree to comply with the order?
111OFENDER: Yes, I do.
112HIS HONOUR: Ms Zomer, are you content that your client understands what is involved and you do not need to speak with her privately?
113MS ZOMER: Yes, Your Honour, I am content.
114
HIS HONOUR: The order will be sent through to the prison fairly quickly for signing, Ms Calgaret, and then afterwards I will sign the order and you will receive a copy of the signed order, as will counsel, for your records. Any issues,
Ms Zomer, arising out of the sentencing, any ambiguities?
115MS ZOMER: No, Your Honour, no issues.
116HIS HONOUR: Thanks. Ms Malobabic, anything I have missed or anything you want to say?
117MS MALOBABIC: Your Honour, I am just as Your Honour is sentencing taking s38 of the Sentencing Act 1991 in relation to the commencement of the Community Correction Order that unless s44(3) applies a Community Correction Order must commence from the date specified by the Court that is not less than three months after the making of the Order, when one looks at s44(3) my reading, Your Honour, of it, and it might not be correct, I have not considered this, whether this section applies for the combination of a sentence only, or a sentence for a straight Community Correction Order in relation to Charge 2.
118HIS HONOUR: I got the second part of the submission, so it is s44(3). What was the first section?
119MS MALOBABIC: Your Honour, s38(2) of the Sentencing Act 1991.
120HIS HONOUR: Let me have a read. Yes, I do not read 44(3) to require me to impose a term of imprisonment and a CCO on the same offence. Of course, I could do that, but it would be somewhat artificial bearing in mind the matters I have referred to, so thank you for bringing that to my attention. I think it is not problematic. Ms Zomer, do you wish to be heard on that?
121MS ZOMER: No, Your Honour, I agree. I have just reviewed the provisions that my learned friend referenced.
122HIS HONOUR: Thank you. Ms Calgaret, this is the last time I will address you today. This has been a difficult sentencing exercise for a range of reasons. I sincerely hope that upon your release from prison, and it is not terribly far away, hopefully in that interim period arrangements can be put in place, detailed comprehensive arrangements, to ensure that you have got stable housing and supports for your release in the community.
123I sincerely hope you make a good start on this CCO. You are running out of options if you keep getting in trouble, so to speak. The options get more and more limited. You have many, many reasons to motivate you to rehabilitate. I can think of three very obvious ones, so I really hope, Ms Calgaret, that you make a good start on this Order and that the progress report I receive for the first Judicial Monitoring is a positive report. Do you understand?
124OFFENDER: Yes, Sir.
125HIS HONOUR: Thanks. Adjourn the Court.
- - -
0
5
0