Director of Public Prosecutions v Calgaret
[2020] VCC 673
•4 May 2020
a
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01947
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HEATHER CALGARET |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2020, | |
DATE OF SENTENCE: | 4 May 2020 | |
CASE MAY BE CITED AS: | DPP v Calgaret | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 673 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v R (2013) HCA 37; R v Verdins [2007] 16 VR 269; DPP v Heyfron [2019] VSCA 130; Brown v The Queen (2020) VSCA 60; Re Broes (2020) VSC 128
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Malobabic | Office of Public Prosecutions |
| For the Accused | Mr H Lewis | Michael Gleeson & Associates |
HIS HONOUR:
Introduction
1 Heather Calgaret, you have pleaded guilty to one charge of armed robbery contrary to s75A of the Crimes Act 1958 (Vic) (henceforth “Crimes Act”), which carries a maximum penalty of 25 years’ imprisonment, and one charge of make threat to inflict serious injury contrary to s21 of the Crimes Act, which carries a maximum penalty of five years’ imprisonment.
2 You have also admitted your criminal record.
Circumstances of the offence
3 On 2 February 2019, one of your co-offenders, your partner Mr Narzzouli Togo, went to the FoodWorks Supermarket in Doveton. There, he committed the offences of shop theft and possession of a controlled weapon without excuse. He was arrested at this location.
4 The following day, Sunday, 3 February 2019, Mr Togo reattended the FoodWorks Supermarket in Doveton, along with your sister Suzanne Calgaret, and yourself. There were two female attendants working there at the time, Romaine Bartholomeusz, who was new at her job, and Mandeep Kaur. Both were working in the liquor area of the store. Other customers were in the store. Mr Togo went to the doorway and made demands for cigarettes, claiming that he had been promised them the day before. Whilst this was happening, you and your sister Suzanne entered the store. Suzanne was carrying a stove lighter and you were carrying a metal pole. You and your sister approached the counter and threatened the two employees who were then working at the counter. The two of you also demanded cigarettes.
5 One of the store attendants, Romaine Bartholomeusz, tried to calm you and your sister down, before she moved away from the counter and called the police. You and your sister then continued to threaten the other employee, Ms Kaur, and demanded cigarettes. You threatened to use the pole, saying something like “I’m going to get you” or “I’m going to kill you”. This conduct forms the basis of Charge 2 on the indictment, threat to inflict serious injury.
6 At this time, your sister, Suzanne, spat at Ms Kaur, who then pushed the duress button.
7
You then reached over the counter and stole an unknown quantity of cigarettes and other items, including phone cards from a display stand.
Your conduct in this regard forms the basis of Charge 1 on the indictment, armed robbery.
8
Your partner, Mr Togo, remained in the doorway of the FoodWorks Supermarket whilst this was happening, watching what was going on.
The three of you then left the supermarket together. The stolen cigarettes were shared amongst you and your co-offenders.
9 Whilst no Victim Impact Statements were provided in relation to this matter, in her statement to police, Ms Bartholomeusz indicated that it was all a shock and it was extremely scary. Likewise, Ms Kaur told police in a subsequent statement that she was in fear for her life because she thought something was going to happen to her.
10 This incident was recorded on CCTV cameras, and you and your co-offenders were identified by police. You were subsequently arrested on 30 July 2019, your co-offenders having been previously arrested, interviewed, and both had referred to your involvement in this incident. You were interviewed by police the following day, where you admitted to using a metal pole to commit the armed robbery, and admitted to making threats against the store attendant but denied threatening to kill her. You indicated that you stole the cigarettes in order to use them in a mix for smoking cannabis, and you told police that you were very high on ‘Ice’ at the time.
Impact on your victims and the gravity of your offending
11 Whilst no Victim Impact Statements have been filed in this matter from the two female employees, their sentiments expressed to police in their police statements 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.
12 Armed 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”. Subject to considerations which are personal to you, the sentencing principles of just punishment, denunciation and deterrence are significant factors in this case.
13 By virtue of s5(2H) of the Sentencing Act1991 (Vic) (henceforth “Sentencing Act”), armed robbery in company is described as a category 2 offence, meaning that a term of imprisonment must be imposed unless an offender falls within one of the limited exceptions.
14
Clearly, you committed the armed robbery in company with your two
co-offenders, meaning that the starting position for you is a term of imprisonment. 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 show (part of Exhibit D), you clearly played a prominent role in the commission of the armed robbery, pointing the pole that you were holding in the direction of the store attendant when the demands were made. Those still photographs reveal a menacing demeanour on your part, with you leaning towards the items that were subsequently taken, in the vicinity of the female store attendant.
15
Furthermore, in contrast to your co-offender, Mr Togo, you have also pleaded guilty to the charge of threatening to inflict serious injury, when you threatened to use the pole on Mr Kaur, saying (at the very least) “I’m going to get you”.
In the context of that comment being uttered by you whilst in possession of a pole, in company with others committing an armed robbery, I regard this conduct as both serious and concerning.
16 It is certainly not difficult to contemplate a more serious example of armed robbery than the offence for which you have pleaded guilty. Notwithstanding that the armed robbery was committed in company, there was no actual physical violence involved, the weapons used were fairly rudimentary and not reflective 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 threatening to cause serious injury and armed robbery as concerning examples of these offences in your case.
Personal background
17 You are currently 29 years of age, having been born in Dandenong in 1991. Much of your personal history was set out in the psychological report of Mr Jeffrey Cummins dated 12 February 2020, Exhibit 2 on the plea. Your family consists of your mother and father, who separated acrimoniously when you were aged seven, your sister, Suzanne, who is currently in custody in relation to this offending, and four half-siblings aged between 18 and 33.
18 Your father, aged in his mid-fifties, lives in Western Australia, and is an Aboriginal man of Ngungar heritage. He has apparently suffered multiple strokes in the past and is unable to walk, living in a nursing home. Prior to your arrest, you had been in communication with him.
19 Your mother is aged 51 and is now single and lives in Dandenong. She is also Aboriginal, part of the Yamatji community from Western Australia. You have described your mother as having a history of alcohol abuse and of intravenous methamphetamine use. You have described a difficult and complex relationship with your mother, the details of which are set out in the report of Mr Cummins[1]. During your upbringing, your mother would yell and scream at you regularly, and would be physically violent to others in the house. According to Mr Cummins, you have only ever been ambivalently and insecurely attached to your mother.
[1]Jeffrey Cummins, Psychological Report, dated 12 February 2020
20
You attended Wooranna Park Primary School in Dandenong North and then Lyndale Secondary College in Dandenong North until midway through Year 10, when you left school due to then being pregnant with your first child.
You gave birth to your son at the age of 16, in the context of a physically abusive relationship with your then partner. That relationship ended when you were 19, in the context of police involvement and an intervention order taken out against him.
21 Save for the undertaking of some Koori art studies at Mildura TAFE, you have never been involved in any educational or vocational pursuits, nor have you ever been in any paid employment.
22 You have reported a history of drug and alcohol use commencing as a teenager. You have had difficulties with many substances, including cannabis, methamphetamines (introduced by your mother), and heroin. You apparently commenced using cannabis at the age of 16 and have used this substance regularly since that time. You commenced using heroin at the age of approximately 21, and after a period of some four years you switched to methylamphetamine. You have reported that you stopped using methylamphetamine approximately three years ago whilst you were pregnant but relapsed after the birth of one of your children, and the child being taken into the Department of Health and Human Services care. You have reported recommencing your use of methylamphetamine around this period, and that you were using it on a daily basis, together with weekly use of cocaine, at the time of the offending. You were also acquiring other pills in the community such as Seroquel, Valium and others when available, at the time of the offending.
23 Sadly, you reported that your friends are mostly drug users, and that you have had few friends or acquaintances who were not involved in this lifestyle.
24 For approximately the past five years, you have been in a relationship with your co-offender, Mr Togo. I note that this time period corresponds roughly with the commencement of your criminal history. Over the past five years, you have amassed numerous prior convictions for matters including dishonesty, violence - for which you have five prior court appearances - and drugs. You have, Ms Calgaret, on multiple occasions, received Community Correction Orders, which you have breached. Your longest sentence of imprisonment prior to this matter is 53 days' imposed at the Dandenong Magistrates’ Court on 9 July 2018.
25 You have described to Mr Cummins being very attached to Mr Togo, a Torres Strait Islander, who has a history of abusing alcohol, methamphetamine and cannabis. Together you have three children, Marley (aged two), Ryder (aged one) and Markeeta (born on 29 October 2019, whilst you were in custody). Each of the children have been removed from your care, your youngest only a few days after you gave birth, in what I imagine to be most traumatic circumstances for you.
26 You have reported to Mr Cummins having previously suffered an emotional breakdown when Marley was taken from your care, resulting in you spending a brief period in a psychiatric unit at Berwick Hospital. You have reported some suicidal thoughts following the removal of Markeeta from your care.
27 Your upbringing and personal background is certainly a sad one, which is marked by exposure to violence, alcohol abuse, and drug abuse. According to Mr Cummins, you were subjected to a significant dysfunctional upbringing, characterised by maternal deprivation and verbal abuse. You have limited education, which ended when you were pregnant at the age of 16. You have never engaged in paid employment. You have a problematic drug abuse history. For the past five years, you have been in a relationship with another man, who it seems has his own significant difficulties, including polysubstance abuse.
28
Roughly corresponding with the commencement of your relationship with
Mr Togo, you have a relatively concerning criminal history for matters including violence. You have previously been the recipient of therapeutic intervention by way of dispositions, and you have breached such orders.
In the lead-up to your offending, it seems you were, with Mr Togo, essentially homeless, and in the grip of serious drug addiction and its attendant issues. Some of the criminality for which you received a three month sentence of imprisonment at Dandenong Magistrates Court on 9 September 2019[2], which is relevant to the pre-sentence detention calculation for this matter, occurred in the company of the same co-offenders, in the weeks leading up to the current offending.
[2] Informants Notman and Johnson
29 The offending dealt with on 9 September 2019 involved your co-offenders and you engaging in threatening behaviour whilst in possession of, on occasions, a metal pole and a curtain rod.
Sentencing Factors
30 I turn now to sentencing factors. Pursuant to s5 of the Sentencing Act, I am required to take into consideration a number of factors when formulating an appropriate sentence in your case. Some of these factors I have already dealt with; maximum penalties, gravity of your offending and the effects on your victims. I also must have regard to the purposes for which a sentence may be imposed, as set out in s5(1) of the Sentencing Act; denunciation of your conduct, just punishment, general and specific deterrence, facilitating rehabilitation, and community protection.
31 I have also taken into account your level of culpability for your offending. Pursuant to the High Court authority of Bugmy[3], an offender’s moral culpability may be lessened due to a deprived background, particularly in the formative years. The effects of such profound deprivation do not diminish over time, even in the face of repeated offending.
[3]Bugmy v R (2013) HCA 37
32 I accept that your deprived background and the circumstances to which I have described in your formative years have impacted adversely upon your development, and in accordance with the Bugmy[4] principles, your moral culpability for your offending is therefore somewhat reduced. I also accept that to some extent your deprived background lessens the degree to which general deterrence applies as a sentencing purpose in this case.
[4]Ibid
33 I turn now to the impact of your mental health issues upon sentencing.
Your Counsel submitted that according to Mr Cummins, you suffered from an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct.
In addition, it was argued you suffer from severe depression, being away from your partner, and having had your children removed from your care. It was argued that this had several impacts on sentencing – you have ‘impaired mental functioning’, it was argued, that would result in you being subject to substantially and materially greater than the ordinary burden/risks of imprisonment, per s.5(2H)(c)(ii) of Sentencing Act, such that a term of imprisonment excluding a community correction order component was not required for the armed robbery offence, a Category 2 offence pursuant to the Sentencing Act, as it was committed in company. It was also argued that a term of imprisonment would weigh more heavily on you than it would on a person in normal health, otherwise known as Verdins[5] principle five, and it was argued that there is a serious risk of imprisonment having a significant adverse effect on your mental health, Verdins[6] principle six.
[5]R v Verdins [2007] 16 VR 269
[6]R v Verdins [2007] 16 VR 269
34 According to Mr Cummins, at paragraph 36 of his main report[7], at interview on 10 February 2020 you were not obviously agitated or anxious but presented as being moderately depressed, ruminating daily about missing your baby daughter and your two sons. You spoke of feeling overwhelmed in custody, particularly following the birth of your daughter Markeeta and her subsequent removal from your care. According to Mr Cummins, you suffer from a Trauma and Stressor Related Disorder in the form of an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct, likely triggered as a result of your dysfunctional upbringing, subsequently exacerbated by the removal of your children. In the opinion of Mr Cummins, this condition, which fell within the definition of a mental illness pursuant ultimately to the Sentencing Act,
requires urgent mental health treatment.
[7]Jeffrey Cummins, Psychological Report, dated 12 February 2020
35 The Prosecution submitted that the precondition to avoid mandatory imprisonment for the armed robbery offence by virtue of your impaired mental functioning, was not made out. The second reading speech[8] of the then Attorney General regarding this provision makes it clear that hurdle is a high one, and it was argued that this hurdle had not been met here.
[8]Sentencing (Community Correction Order) and Other Acts Amendment Act 2016, No.65 (Vic), dated 13 October 2016
36 Having considered the matter and the latest submissions from both prosecution and defence, I am not satisfied that because of your mental illness, imprisonment will pose a substantially and materially greater burden or risk than would ordinarily be the case. I accept that your condition no doubt is making your time in custody more onerous. However, in my view, the high hurdle posed by s5(2H)(c)(ii) of the Sentencing Act has not been reached on the evidence before me. Your Counsel also submitted in the alternative that another exception to mandatory imprisonment (excluding a community correction order component) applied, by virtue of substantial and compelling circumstances that are exceptional and rare (s.5(2H)(e) of the Sentencing Act). The matters relied upon by your Counsel in support of this argument largely mirrored those relied upon for the primary argument; namely, your mental health issues and associated difficulties in custody, given your isolation from your children, coupled with your prospects of rehabilitation. As the second reading speech to which I have already referred makes clear in relation to this limb, this is a high threshold, and less weight must be given to an offender’s personal circumstances, and the principal purposes must be general deterrence and denunciation. Having considered this argument, I am not persuaded that this ‘substantial and compelling’ limb is established here.
37 For the reasons I have outlined, however, I am satisfied on the evidence before me, in particular the opinion of Mr Cummins contained in paragraph 42 of his report, that a mitigatory allowance should be made for your Adjustment Disorder, on the basis that this condition will make a term of imprisonment more onerous for you than it would a person in otherwise good health, that is, pursuant to Verdins[9] principle five. Whilst there is some level of uncertainty, on the basis that Mr Cummins opines that your mental health condition requires urgent attention, and that in the opinion of Mr Cummins it is improbable you will be provided with appropriate mental health treatment whilst incarcerated, I am prepared to make a further, modest mitigatory allowance on the basis that imprisonment will likely have a significant adverse effect on your condition (Verdins[10] principle six).
[9]R v Verdins [2007] 16 VR 269
[10]Ibid
38 I have also taken into account your plea of guilty, which was entered at the earliest opportunity. Through your plea of guilty, you have saved the community the cost and time associated with a trial. You have also spared your victims the trauma of enduring a protracted court process and possible cross-examination. I am satisfied that your plea of guilty reflects an acceptance of wrongdoing, and a willingness to facilitate the course of justice.
39 Furthermore, by virtue of your sentiments expressed to Mr Cummins when he assessed you, together with your participation in the Koori Court sentencing conversation, I am satisfied that your plea of guilty reflects a degree of remorse on your part. Whilst with Mr Cummins, you appeared to engage in a degree of deflection of responsibility to your co-offenders, you freely acknowledged that you carried the pole during the offending in order to threaten your victims, and you acknowledged that they would have felt threatened by your actions. Furthermore, on 24 February 2020 you participated in a Sentencing Conversation, in the presence of two Aboriginal elders, as part of the Koori Court plea hearing procedure. The Sentencing Conversation was substantial, direct, and at times confronting for you.
I formed the view that you were conscientiously participating, showing genuine emotion at the impact of your offending on others, and took responsibility for your actions. Part of the Conversation involves a ‘shaming’ aspect, which in my view you genuinely embraced. It was clear to me that you were fully and emotionally invested in the sentencing conversation.
As acknowledged in the decision of DPP v Heyfron [2019] VSCA 130[11], 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.
[11]DPP v Heyfron [2019] VSCA 130, paragraphs [66] – [69]
40
I have already dealt with the impact of your time in custody on your mental health. I turn now to a more general assessment of your time in custody, and its impact on sentencing. A number of certificates were tendered at your plea hearing (Exhibit 1), documenting your participation in various courses whilst in custody. They include First Aid, Traffic Management, Information Technology, Kitchen Operations, and General Education. Significantly given your family make up, they also include various units of a Parenting Education course.
I am satisfied in that regard that you have used your time in custody productively, which is a favourable matter in terms of your prospects of rehabilitation.
41
I have no doubt however that your time in custody has been onerous for you, particularly given your absence from your children. You informed
Mr Cummins that in custody, you pine for your children all the time. Clearly you endured a most difficult experience in giving birth to your youngest child Markeeta in custody last year. Having already endured the removal of your previous children into care, I was informed that Markeeta was removed only a few days after her birth. In addition to the emotional effects of this, Markeeta’s birth by caesarean section resulted in you sustaining a stomach hernia, for which you now receive only Panadol by way of pain relief. I had the opportunity to directly observe your demeanour during the Koori Court Sentencing Conversation, and I am satisfied that this aspect of absence from family in particular has, and continues to, weigh very heavily on you. This in my view makes any sentence of imprisonment particularly onerous for you.
42 I am also satisfied that the consequences of the COVID-19 pandemic have also exacerbated your time in custody, and likely will continue to make any sentence of imprisonment particularly onerous for you. There have been numerous decisions of the Victorian Supreme Court and the Court of Appeal, where the existing and potential impacts of COVID-19 on the prison population have been considered[12]. Whilst these decisions have acknowledged the uncertainty of the impacts on prisoners, and the need to avoid speculation, it is clear that it is appropriate to consider this unprecedented global crisis when sentencing. Since the World Health Organisation declared COVID-19 a global pandemic on 11 March 2020, the impacts on all aspects of society have been far reaching, and quickly evolving. Those in custody have not been spared. Since 21 March, all personal and family visits have been cancelled indefinitely. Contact legal visits have been suspended. Prisoner work is limited, meaning that there is limited opportunity to make money for highly valued telephone calls to family. There remains at present uncertainty (in terms of cost, access, and transport arrangements within prisons) regarding access to audio-visual facilities for prisoners to communicate with loved ones. Whilst there are currently no known cases of COVID-19 in the prison system, it is fair to say that prisons generally are epicentres for infectious diseases, given the background prevalence of infection, the higher levels of risk factors amongst prisoners for infection, and the unavoidable close contact that is inherent in a prison environment. Many prisoners already suffer from poor health outcomes due to a multitude of factors. As has been observed by Lasry J in Re Broes (2020) VSC 128, once there is a positive test within the prison, there will have to be a significant lockdown for a number of reasons. The transmission rate between prisoners will potentially be significant, resulting in numbers of prisoners becoming very ill, depending on their age and underlying conditions. Whilst the situation is evolving and to some degree speculative, it is accepted that the situation is causing additional stress and anxiety for both prisoners and their families. I accept that in your case, this issue is particularly relevant. I accept that there has been a general reduction in prisoner movements and the practical viability of programs and services has been impacted, resulting, I believe, in a reduction in face-to-face services which will likely have an impact on the nature, if not existence, of any appropriate mental health treatment, which I note you so urgently need. I also accept that there is, in your case, significant anxiety caused by the lockdown in the group environment that is inherent in the prison system, and the prevention of any visits with your children. I accept, given your particular mental illness, that all of this adds up to a most onerous scenario which you are currently experiencing. A mitigatory allowance is warranted, therefore, regarding any sentence to be imposed.
[12]For example, Brown v The Queen (2020) VSCA 60
43 Your Counsel relied upon your rehabilitative prospects as a mitigatory factor in sentencing. It was submitted that at age 29 you are still relatively young, and although your criminal history includes community correction order breaches, you do not have a lengthy criminal history, and it was submitted that your time in custody has been a catalyst for change. I regard your participation in the Koori Court Sentencing Conversation as reflective of a positive indicator in terms of your rehabilitative prospects. Your participation was voluntary, and supports a finding that you are willing to face up to your aberrant behaviour. However, as highlighted by the Prosecution, your offending before me occurred in the context of other offending, for which you received a three month sentence of imprisonment in September last year. In particular, some five months after the armed robbery, just a few days prior to your arrest, you committed a robbery in company with your sister Suzanne. Furthermore, there are aspects of the Extended Pre-Sentence Report, which I ordered in relation to an assessment as to your suitability for a community correction order, which are troubling in terms of your rehabilitative prospects. Of concern, you informed the assessing officer that whilst in custody, you have been acquiring prescription medication (for which you do not have a prescription) from other prisoners and had not yet been caught. You also presented, in the opinion of the assessing officer, with a number of ‘responsivity concerns’, namely, plans to live with your mother post-release (a woman with multiple issues as outlined in these Reasons for Sentence), and long term plans to live with your co-offender Mr Togo, with few pro-social supports indicated. In light of your breach history, the matters to which I have just referred, and a view that you may be unable to prioritise your community correction order obligations, you were found unsuitable for a further community correction order by the assessing officer. The Prosecution in this case submitted that in all the circumstances, your prospects of rehabilitation were somewhat guarded. In all the circumstances, sadly, I agree with the Prosecution.
44 One of your co-offenders, Mr Togo, has been sentenced for his role in this offending. Having pleaded guilty to a single charge of armed robbery, and proceeding in the Koori Court, he was sentenced by her Honour Judge Hampel on 18 September 2019 to three years imprisonment, with a non-parole period of 18 months.
45 Parity in the punishment of co-offenders is a fundamental consideration in sentencing. The principle 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.
The Prosecution in this case urged me to sentence you in accordance with this parity principle, bearing in mind the sentence imposed on Mr Togo, noting in supplementary written submissions on 1 May 2020 that it is open to the court to find differences in personal circumstances of yourself and your co-offender, Mr Togo. In written submissions, your Counsel conceded that parity would be a relevant consideration in sentencing, but in oral submissions,
he sought to distinguish your position from that of Mr Togo. It was argued that
Mr Togo had more substantial prior convictions, including a prior finding of guilt for armed robbery, that in the sentencing remarks for Mr Togo there was no allowance made for the Verdins[13] principles, and there was no specific reference to the Bugmy[14] principles, and that you had stronger mitigatory matters, for example, a more direct exposure to hardship in custody by virtue of separation from your children.
[13]R v Verdins [2007] 16 VR 269
[14]Bugmy v R (2013) HCA 37
46 Having considered the application of the parity principle in your case, it is difficult, in my view to make a favourable allowance of any significant magnitude on the basis of disparity. Whilst the mitigatory aspects raised by your Counsel may have some merit, in particular your more limited criminal history, and the application of the Verdins[15] and Bugmy[16] principles, you faced an additional charge to Mr Togo – threat to inflict serious injury. Moreover, I agree with Her Honour Judge Hampel’s assessment of the various roles in the commission of the armed robbery[17]; that Mr Togo was unarmed, and stood lookout, and assisted you and your sister Suzanne, who were armed, and approached the attendants and made threatening demands. In these circumstances, your role was at least as significant as Mr Togo, and in combination with the threat charge, in my view somewhat more significant overall. For the reasons I have outlined, acknowledging that there are some powerful mitigatory factors that do not appear to have been present in the case of Mr Togo, while there is a basis for some disparity here, there is in my view no significant disparity between your position and that of Mr Togo that would warrant a significantly lesser sentence in your case. Certainly not enough to warrant the combination sentence sought on your behalf.
[15]R v Verdins [2007] 16 VR 269
[16]Bugmy v R (2013) HCA 37
[17] Exhibit D, paragraphs 16 and 17
47
As I earlier stated, I am bound to sentence you only in relation to the sentencing purposes set out in s5 of the Sentencing Act. In my view, general deterrence is of particular importance in your case. Members of the public must know that behaviour such as yours will result in terms of imprisonment. Due to your criminal history, any sentence I impose must also seek to deter you from engaging in such behaviour again. Further, any sentence I impose must seek to appropriately protect the community from your behaviour.
Any sentence I impose must appropriately reflect denunciation of your behaviour, and in all the circumstances reflect a just punishment.
Any sentence must also, to the degree possible, facilitate your rehabilitation.
48
Your Counsel submitted that in all the circumstances, a combined sentence of imprisonment with a community correction order was an appropriate sentence in your case. The Prosecution submitted that there were no special reasons justifying such a disposition, and that in all the circumstances,
a sentence of imprisonment with a non-parole period was warranted.
You have been found unsuitable for a community corrections order, according to the Pre-Sentence Report provided in this case. In any event,
I have determined that in all the circumstances, particularly given the gravity of the offending and the need to impose a penalty that deters not only you but others from engaging in such conduct, the need to denounce your conduct, and the need to impose a penalty that is just in all the circumstances, together with your unsuitability for a community correction order, according to Corrections, that the only appropriate penalty is a term of imprisonment with a parole eligibility component. Whilst in my view there is a need for a degree of cumulation between the two charges to reflect the separate criminality,
the totality principle appropriately restrains the degree of cumulation. Given the particular circumstances of your case, and in particular given your hardship in custody due to the reasons I have outlined, and notwithstanding some concerns arising out of the pre-sentence report regarding your recent behaviour in prison, I will impose a sentence that facilitates your rehabilitation through a structured transition to the community, and allows for a substantial period of supervision once you are back in the community, should you be granted parole. For these reasons, I am imposing a more substantial than usual parole eligibility component in the sentence I am about to impose. There will be a considerable gap between the head sentence and the non-parole period. Whilst ultimately it is not a matter for me, I recommend that whilst in custody, you be given access to culturally appropriate programs that will best assist your reintegration into the community, and that preparing for a supported return to the community on parole be considered an important part of planning for your release.
49 I make it clear that in sentencing you to a term of imprisonment with a non-parole period, I am not making a prediction in relation to parole. I am simply sentencing you on the basis that a term of imprisonment with a parole eligibility component is, in my view, the most effective means of achieving the sentencing purposes I have earlier described.
50 Ms Calgaret, I am now up to the point in my sentencing remarks where I will impose the sentencing on you for the two charges to which you have pleaded guilty.
Sentence
51 On Charge 1 of armed robbery, you are convicted and sentenced to two years and three months' imprisonment. On Charge 2 of threat to cause serious injury, you are convicted and sentenced to six months' imprisonment. I direct that one month of this sentence be served cumulatively upon the sentence imposed on Charge 1, making a total effective sentence of two years and four months. I direct that you serve a period of 14 months before becoming eligible for parole. I declare a period of 188 days has already been served on this sentence, and I direct that it be deducted from the period to be served.
52 Pursuant to s. 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a total effective sentence of four years imprisonment, with a non-parole period of three years.
53 Ms Calgaret, what that means, if it is not clear, is that the total effective sentence that am imposing in relation to this matter is two years and four months. You will become eligible for parole in 14 months, less 188 days, 188 days is a bit over six months, so you can do the maths there, or with the assistance of Mr Lewis. No doubt he will inform you of how that sentence is structured. Do you understand that?
54 OFFENDER: Yep.
55
HIS HONOUR: Thank you. Are there any issues, Ms Malobabic or
Mr Lewis, with the sentence?
56 COUNSEL: No, Your Honour. As the court pleases.
57 HIS HONOUR: Thank you very much. All right. Thank you, Ms Calgaret. I wish you all the best in terms of your progress for the remainder of your sentence and your ultimate transition back into the community, where hopefully you will be reunited with your children. Thank you very much.
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