Director of Public Prosecutions v Chafer-Smith

[2018] VCC 269

IN THE COUNTY COURT OF VICTORIA      Revised
  Not Restricted
    Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02346

DIRECTOR OF PUBLIC PROSECUTIONS

v

FELICITY CHAFER-SMITH

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2018 (Latrobe Valley)
DATE OF SENTENCE:	9 March 2018
CASE MAY BE CITED AS:	DPP v CHAFER-SMITH
MEDIUM NEUTRAL CITATION:	[2018] VCC 269

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Liaskos	OPP
For the Accused	Mr M. Brennan	VALS

HIS HONOUR: 

1Felicity Chafer-Smith, you have pleaded to two charges of armed robbery, one charge of attempted armed robbery and one charge of possession of a drug of dependence. 

2The maximum penalties for these offences are:  armed robbery, 25 years' imprisonment; attempted armed robbery, 20 years' imprisonment; and possession of a drug of dependence, a non-traffickable quantity, 30 penalty units or one year's imprisonment, or both.

3You have also pleaded guilty to the following uplifted summary offences:  committing an indictable offence whilst on bail, two counts; drive whilst disqualified; contravene a conduct condition of bail; and dealing with property suspected of being the proceeds of crime. 

4The maximum penalty for the bail offences is 30 penalty units or three months' imprisonment.  Drive whilst disqualified has a maximum penalty of 30 penalty units, or four months' imprisonment for a first offence and two years' imprisonment for a subsequent offence.  The remaining charge has a maximum penalty of two years' imprisonment.

5The facts relevant to your offending can be summarised briefly.  On 26 October 2016, you appeared at the Frankston Magistrates' Court for a variety of offences, you were released on a community corrections order for 18 months.  In addition, your driver's licence was cancelled and you were disqualified from driving, for a period of nine months. 

6On 2 May 2017, you were bailed in respect to unrelated alleged offending.  A condition of bail was that you not associate with Clinton Phillips. That bail was extended at the Frankston Magistrates' Court on 30 June 2017.

7On 19 August 2017, you entered the Subway store at 147 Main Street, Croydon.  You had your face covered, you approached the counter and demanded money from the attendant.  You produced a large kitchen knife, and held it parallel to your hip.  The attendant placed $500 into your bag, you left the store.  You were on bail at that time. 

8On 21 August 2017, you sent a text message to your employer, telling her that you were ill and unable to attend work. At 12.50 on the same day, you were in Traralgon driving a stolen vehicle with false number plates.  You were a disqualified driver.  Clinton Phillips was in the front passenger seat.  You parked the vehicle out the front of Regal Jewellers and exited the vehicle with Phillips.  You had a scarf and sunglasses covering your face and you were wearing gloves.  You carried a bag with two crowbars.  Phillips had also covered his face.  You approached the attendant and produced a crowbar which you gave to Phillips.  You removed the second crowbar and said, "Okay lady, give us the till."  The attendant refused to comply with your demand, you again made the demand and the attendant again refused.  She called to her husband who came from the rear of the shop.  You and Phillips left the premises. 

9You then drove to the Shell service station in Morwell.  Phillips walked into the service station and demanded money.  He produced a bag and held it up to the attendant.  She could see a large carving knife in the bottom of the bag.  She gave Phillips $695.  Phillips left the store and got into the vehicle and you drove him away.  At about 2 pm on the same day, you were seen playing the pokies at a venue in Moe.  You were arrested at 2.40 pm and taken to the Moe Police Station for interview.  You were found to be in possession of a small quantity of amphetamine and $71 in $1 coins.  You made a no-comment interview and you have been held on remand since that date. 

10This is serious offending.  The offences were committed whilst you were on bail and on a Community Corrections Order.  The first armed robbery was planned, you chose a soft target, you wore a disguise and you had armed yourself with a knife.  You got away with $500. 

11Two days later, you attempted to commit another armed robbery.  Again, you chose a soft target.  You drove to Regal Jewellers and in doing so, committed the offence of drive whilst disqualified.  This time, you were in the company of another person, namely Clinton Phillips.  He was a person you were prohibited from associating with.  Both you and Phillips entered the store with your faces covered and produced crowbars to reinforce your demands.  Bravely, the shop attendant refused to be intimidated.  I concede that you at least showed the good sense to leave the store without any other threats or violence. 

12You then drove to a service station where Phillips committed an armed robbery.  You acted as his getaway driver.  Later that day, you and Phillips were seen playing the pokies at a venue in Moe and no doubt, you were using the money obtained from the armed robbery. 

13With this offending, general deterrence is a paramount sentencing consideration. 

14You have extensive prior convictions.  You first appeared in the Mildura Children's Court as a 14 year-old.  The offending becomes persistent from 2014, or thereabouts.  The offending relates predominantly to driving, drug and dishonesty offences.  You carry a number of convictions for drive whilst disqualified.  There are also prior convictions for engaging in reckless conduct. 

15You have received a Youth Supervision Order in the Children's Court and a number of Community Corrections Orders in the Magistrates' Court.  You found it difficult to comply with these orders.  You have also received sentences of imprisonment.  Your history means that specific deterrence and protection of the community are relevant sentencing considerations. 

16I now move to matters relating to your background.  You are an Aboriginal woman, connected through your mother to the Ngarrindjeri people in South Australia.  Your father, who is not an Aboriginal man, was violent and abusive towards your mother and as result of his behaviour, your mother left him and took you to live with her mother in Renmark.  You were three years old at the time.  This was the beginning of a period of great instability in your life, with your mother moving addresses on multiple occasions. 

17In a report provided by Mr Ian Mackinnon, a forensic and consultant psychologist, your lifestyle is described as itinerant, with your mother having a history of involvement with abusive and violent male partners.  As a consequence of moving house frequently, you had an incredibly unsettled education.  You attended 12 different primary schools and three different secondary schools.  You left school during Year 9.  You told Mr Mackinnon that you were prone to disruptive and challenging behaviours, that you were easily distracted and that you struggled to concentrate on academic tasks.

18You commenced to use cannabis and alcohol when you were 12 years old.  By the age of 13, you were using ecstasy and shortly thereafter, amphetamine and ice.  Drug abuse has been a significant problem for you for many years.  You have also had a history of relationships with violent and abusive older men.  They started when you were very young.  Mr Mackinnon states in his report that the first such relationship commenced when you were 13 years old.  Your partner at that time was 19.  In 2016, you were in a relationship with a 34 year-old-man who was described as a drug dealer, and he was violent towards you.  During 2017, you became involved with Mr Phillips and although he was not violent towards you, he was a drug user and he was 17 years older than you. 

19Given this background, it is not surprising to read Mr Mackinnon's opinion that you suffer from post-traumatic stress disorder that has its origins in your disturbed and chaotic childhood.  Whilst he notes that your Post-Traumatic Stress Disorder appears to have ameliorated somewhat, he recognises the importance of future psychological treatment to address this issue. 

20I have no doubt that you come from a background of significant depravation and disadvantage. Your itinerant lifestyle as a child and teenager, your unsettled schooling, your early introduction to drugs and your involvement from a young age with older and violent men, confirm the harsh circumstances of your life.  Your disadvantaged background moderates the weight to be given to general deterrence. 

21There are, I accept, a number of matters in mitigation.  You have entered an early plea of guilty.  It is an acceptance of responsibility, it has saved the victims from the trauma of giving evidence and also saved the community the cost and expense associated with a criminal trial.  You will be given credit for all these matters. 

22You were 21 years old at the time of the offences.  You are now 22 years old.  You are still a young woman.  As a general principle, a court places great weight on the principle of rehabilitation when dealing with an offender of your age.  However, the serious nature of these offences, together with your past history, diminishes to some extent, the focus on your rehabilitation, requiring me to give appropriate weight to the other sentencing principles, such as deterrence, just punishment, denunciation and community protection. 

23You found it very difficult over the past four years to stop your drug use and to stop your offending.  You have had the opportunity of support within the community on a youth supervision order and on a number of Community Corrections Orders.  Drug relapse and further offending has followed the orders.  The current offending is a concerning escalation on your previous criminal behaviour.  These facts explain why I have reservations about your prospects for rehabilitation. 

24I do accept that as a young woman, you are capable of reformation.  It does appear that after your release from prison in September 2016, and being placed on a Community Corrections Order in October 2016, you did quite well for a number of months.  Ms Turner, a care and recovery worker from Ngwala Willumbong, initially supported you. 

25In March 2017, she referred you to Ms Walters, a drug and alcohol counsellor from SECADA.  Ms Walters attended court and spoke on your behalf.  She also provided a written reference.  In that reference, she noted your positive engagement with her.  You attended 19 sessions and presented with good insight into the origins and triggers for your substance use.  You were generally honest about lapses.  She noted your commitment to abstinence and changing your lifestyle.  She noted that you coped with setbacks concerning accommodation and the loss of a valued relationship with a previous corrections worker.  You had also managed to obtain employment.  These were all positive developments.  Unfortunately, they were undermined when you relapsed and commenced to again use the drug ice. 

26It is a matter in your favour that you have used your time in custody constructively.  You have completed a number of courses and been employed in the visit centre café.  You also have good support from your mother, her circumstances are stable and she is willing to support you when you are released from prison.  You have also made contact with Bunjilwarra, which is a 12 bed residential rehabilitation and healing service for Aboriginal young people aged between 16 and 25.  Your willingness to consider participating in such a program upon your release indicates a maturity that may augur well for your rehabilitation.

27In determining the appropriate sentence, I do take account of the fact that you are still a young woman and that this will be your first lengthy period imprisonment.  I must also ensure that I comply with the principle of totality. 

28Finally, you consented to having the charges heard in the Koori Court.  In doing so, you agreed to participate in a process that involves appearing before elders from the Koori community.  The process is described as a sentencing conversation.  It was obvious to me, from the way you participated in the process that you were sorry for what you had done.  You do have insight into the problems in your life that you need to address and you have expressed a willingness to try and use appropriate supports to help you change your life.  I give you credit for participating in the Koori Court process. The Court of Appeal has recognised that the sentencing conversation in the Koori Court is designed to further the reformation of an Aboriginal offender.  Participation in the process is not easy.  Indeed, it is challenging and your active participation in the process is a factor that mitigates punishment.    

29You will be sentenced to the following periods of imprisonment on the charges on the indictment:  Charge 1, two years and six months; Charge 2, two years; Charge 3, two years; Charge 4, one month.  I impose the following sentences of imprisonment on the summary offences:  Commit an offence on bail, one month on each charge; drive whilst disqualified, two months; breach of conduct condition of bail, one month; and deal with property suspected of being the proceeds of crime, one month. 

30I order six months of the sentence on Charge 2 and six months of the sentence on Charge 3, be served cumulatively upon each other, and cumulatively upon the sentence imposed on Charge 1.  This makes a total effective sentence of three years and six months.  I fix a minimum term of two years before you will be eligible for release on parole. 

31I make a declaration that you have served 200 days presentence detention.  If you had pleaded not guilty and been found guilty after a trial, I would have sentenced you to a total effective term of imprisonment of five years, with a minimum term of three years and six months before you would be eligible for release on parole. 

32I order you to pay compensation the Subway store in the amount of $500, and to the Shell service station in the amount of $347.50.  I also make the disposal and forfeiture orders, requested by the prosecution.  Is there anything else?

33COUNSEL:  No, Your Honour.

34HIS HONOUR:  No.  All right, you can remove Ms Chafer-Smith, thank you.

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