Director of Public Prosecutions v Chambers (a pseudonym)
[2022] VCC 1204
•14 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEAH CHAMBERS (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 14 June 2022 |
CASE MAY BE CITED AS: | DPP v Chambers (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1204 |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. Harrison | |
For the Accused | Mr S. Parker |
HER HONOUR:
1Leah Chambers[1], you have pleaded guilty before me to one charge of aggravated burglary, one charge of theft, one charge of intentionally damaging property and one charge of common law assault. You have also pleaded guilty to a charge of breaching a community corrections order, which was imposed on 20 March 2021, for three charges of failing an oral fluid test within three hours of driving; charges of possessing methylamphetamine, possessing a prescription drug of dependence and possessing oxycodone, and using a false document to the prejudice of another, as well as attempting to commit an indictable offence using a false document. Two more charges of using a false document to prejudice another, failing to comply with a direction to assist police, and dealing with property suspected of being the proceeds of crime.
[1] A pseudonym.
2I will begin with the description of the matters for which you were placed on the community corrections order. On 12 April and 8 May 2021 and on 10 October 2020, you were apprehended by police whilst driving, and on each occasion failed an oral fluid test, later testing revealing an amount of methamphetamine in your system. The remaining charges relate to an incident whereby on 21 December 2019 you created false documents in support of a tenancy application, whereby you provided a detailed employment history then lessening of employment due to COVID, all of which were aimed at obtaining the tenancy that you sought.
3A resultant execution of a warrant by police on your premises on 14 October 2020 revealed the possession by you of three Victorian licences in other people's names, a collection of laptops and mobile phones, and a white substance, which ultimately proved to be both methylamphetamine, oxycodone and a prescription drug. The charges of making a false document to the prejudice of another and obtaining property by deception also arose from that search.
4You contravened that order on 2 September 2021 - that is, within a month of being placed on that community corrections order - by the matters to which you have pleaded guilty on the indictment in front of me. I will now turn to the summary of that offending.
5The victim in this matter is one Jackie Aguilar[2], who, at the time of offending, was living with her mother in Endeavour Hills. The two of you had known each other for about nine years, had previously been close friends but had a falling out a number of years before this offending.
[2] A pseudonym.
6On 1 September 2021, at about 11 pm, Ms Aguilar was asleep in her bedroom when she was awoken by knocking at the front door and, when she looked out the window, recognised you, you yelling at her, 'Open the door, you dog'. Aguilar went back to her bedroom and called Triple 0. Whilst on the phone, she heard glass shattering, locked her bedroom door and hid her mobile phone in a wooden box in her wardrobe. She then heard banging on the door before you kicked it in, yelling at her, 'Where is your phone? Give it to me, you dog'.
7You continued to assault Ms Aguilar, demanding the phone and spraying her head, chest and arms with blue spray paint. You then went through Ms Aguilar’s bedroom, taking a backpack, which contained her house keys, and a green purse with identification and bank cards, as well as her video projector and Foxtel GO box, putting them in a Kmart laundry bag you were carrying with you.
8Ms Aguilar pushed past you and ran out the front door while you yelled at your co‑offenders to 'help her', and she saw another woman wearing a hoodie and black leggings standing outside. You followed Ms Aguilar outside and again began assaulting her by pulling her hair. Ms Aguilar’s mother arrived home shortly afterwards and saw a woman she recognised as you pulling her daughter's hair and hearing her daughter screaming. She opened her car window, yelled at you to stop, and you and your co‑offender then ran off.
9Police attended, saw spray paint on Ms Aguilar and on the CCTV camera which was seen at the front security camera, which was on the front of the house. A search of the house found that Ms Aguilar front window had been smashed by you to get entry into the property, and her bedroom ransacked. Police located a spray can nozzle with what appeared to be the remnants of blue paint from the doorway of Ms Aguilar’s bedroom, which was later analysed, with the likelihood of your DNA contributing to the sample found being reckoned at 100 billion times more likely if you were a contributor than if not.
10On 2 September 2021, police attended a unit in Clayton South, to arrest you. When you presented at the door, they noticed you had traces of blue paint on your right hand, and that a particular car was parked in the vicinity of the property. You were taken to the Springvale police station for interview.
11A search warrant was executed at your house later that afternoon, police noticing that the car they had seen was no longer there and instead was occupied by a white Holden dual‑cab utility, with two occupants. Police approached those people; they identified themselves and disclosed that they were in possession of a number of your personal items, which were photographed and seized, those items including your mobile phone and the keys to the Renault. Inside your car, which was located a few streets away, police located a can of blue White Knight brand spray in the boot.
12In the record of interview, police noticed you were hiding your hands under the desk and scrubbing at your fingers. You said you were at home at the time of the offending, that you had not seen her for ages, that she was obsessed with you, that she was upset that you did not receive gaol for your most recent offending; that the only explanation for Ms Aguilar and her mother nominating you was they were both compulsive liars and that the paint on your hands was from arts and crafts. You denied all allegations put to you and were remanded in custody.
13Your phone was later analysed and incriminating messages from the night of the offending, including you asking an associate to 'clean up my house, please. Put everything in a bag and put it back a few houses down with the rubbish', after being told that the police were being sent to your home.
14At the time of this offending, you were within the operational period of an 18‑month community corrections order that was imposed at the Frankston Magistrates' Court on 20 August 2021. This matter resolved at committal case conference on 17 December 2021 and you were placed on bail on 7 February 2021.
15The maximum penalty for aggravated burglary is 25 years' imprisonment or 3,000 penalty units. The maximum penalty for theft is 10 years' imprisonment or 1,200 penalty units. The maximum penalty for intentionally damaging property is 10 years' imprisonment or 1,200 penalty units. And the maximum penalty for common law assault is five years' imprisonment or 600 penalty units.
16In relation to the charge of breaching a community‑based order, the maximum penalty is three months' imprisonment. And the maximum penalties for obtaining property by deception is, I think, 10 years' imprisonment. The maximum penalty for creating a false document to the - anyway, look, if you could give those to me - just write - you look them up while I am going ‑ ‑ ‑
17MR HARRISON: I will, Your Honour. I will send them to Your Honour's clerk.
18HER HONOUR: Pardon?
19MR HARRISON: I will send them to Your Honour's associates.
20HER HONOUR: Yes, that would be helpful. And I will just include them. I now ‑ ‑ ‑
21MR HARRISON: I should also note, sorry, Your Honour, just for clarity, it is use false documents, not make.
22MR PARKER: Yes, I was going to address the same.
23HER HONOUR: Use false documents. All right. Thank you. All right, then. That is fine.
24MR PARKER: And, Your Honour, perhaps, while we have this break, I might formally enter a plea for that matter, just so that it is on the record.
25HER HONOUR: Yes. Okay. No problem.
26MR PARKER: Just because of the moving around of administrative ‑ ‑ ‑
27HER HONOUR: Yes. I know. All right. The community corrections matters were uplifted specifically so they could be dealt with by this Court, in combination with the indictable matters listed on the indictment. This is because you have made application to be placed on a Drug and Alcohol Treatment Order with the County Court Drug Court.
28I will turn now to your personal circumstances.
29You are now thirty-four years of age. You grew up with your mother and father and older sister, and had what would be described as an uneventful childhood, until your father died of cancer when you were 12.
30Your sister, who is 9 years older than with you, has three children and no prior convictions. You had a difficult relationship with your mother. There seems to have been something of a personality clash.
31You attended various Catholic high schools in your area, and left school part way through year 12. You were, apparently, a fairly good student. You compiled a reasonable work history, but ran into trouble when you were 18 and obtained a job managing a brothel.
32At that time, you began using what has been your drug of trouble, if you like, ice, from a recreational to a daily basis, particularly because of the long hours you were working.
33Ordinarily, I am satisfied that without having been introduced to this drug, you would not have gone on to compile the criminal record that you have. I understand, and I have read the 2016 psychological report prepared in relation to a previous court case by Dr Ian MacKinnon – that the problems in your life were not such that I would imagine, they would lead you straight down the drug road.
34You had good parents, even though you and your mother had your disagreements. Obviously, the loss of your father at the age of 12 was extremely distressing.
35But, you were attending a good school, you were well looked after physically, you enjoyed and continue to enjoy the support of your mother and your sister, and have over a long period of time.
36In any event, it seems clear that your drug habit simply got worse, and along with that, you began offending, both in support of your habit and because of it.
37Your offending history goes back to 2007. You have been dealt with for shoplifting, trafficking GHB, possessing a drug of dependence, trafficking ice, dealing with properties expected of being the proceeds the crime, handling stolen goods, possessing counterfeit money.
38There was a break between the first offending in 2007, which was a shoplifting, and probably reflective of the fairly minor – of, of the more stable life you were living at the time. But, from 2016 you were dealt with for the serious drug matters I have outlined and placed on a community corrections order.
39You have appeared in court virtually every, every time since. In 2017, you were again placed on a community corrections order for trafficking methylamphetamine, possessing GHB, and dealing with properties expected of being the proceeds of crime.
40In October of that year, you were dealt with the contravening your community corrections order and the court simply confirmed the order. Then, in April of 2018, you were again dealt with the contravening the community corrections order again, and placed on another community corrections order.
41On 27 April 2018, you were also dealt with for driving whilst disqualified, failing an oral fluid test within three hours of driving, exceeding the speed limit, these offences also breaching your community corrections order, along with possessing methylamphetamine, obtaining financial advantage by deception, of just seven charges.
42You were again placed, as far as I can see, again, you were given another opportunity to undertake a community corrections order. On 21 January 2019, you were dealt with on two charges of negligently dealing with the proceeds of crime, possessing a drug of dependence, trafficking methylamphetamine, possessing a prohibited weapon without exemption, and were sentenced to two years imprisonment.
43And then, on 14 of May 2019, you went before the County Court in order to appeal the two year sentence you received, which was successful, and you were sentenced to a total aggregate sentence of 9 months and placed on a further community corrections order. You were then placed, as I have said, on another community corrections order in August 2021, which you promptly breached.
44Now, what you need to understand is this, Ms Chambers. You have reached the end of the line, insofar as opportunities of non-custodial dispositions are concerned.
45Your offending has escalated. Not only did you offend one month after being given yet another community corrections order, you offended in a way which, for the first time, brought you before the County Court because of the seriousness of that offending.
46Application has been made, as I have said, to place you on the Drug and Alcohol Treatment Order. It is clear from the material I have read, you have attempted along the way to do something about your drug habit.
47There is an old report from Karen Esch dated January 2019, where it was stated that you were involved in the intensive residential drug program within the prison. And it is known as the most intensive of its kind. You seem to have done well on that.
48You then attended for a psychological psychiatric assessment, because you were concerned about your own mental state, and why you could not give up drugs.
49And you have said to various practitioners along the way, that you have no trouble dealing with drugs or, in, in terms of not using them whilst you are in a structure such as jail. But, once you are out, that is where the trouble sets in.
50You were released on bail to Dreambuilders, a drug rehabilitation facility, but you left it because of the strong religious bent of that organisation, which did not accord with you.
51You then attended on Star Health Drug Service, which is well known to this court, attempted once again to give up drugs, again failed. Ultimately your bail was revoked. You were placed back in custody and, whilst in custody, and it is quite clear by now you know your way around Dame Phyllis Frost Centre very well, and have got yourself into programs there.
52You have been assessed by the DATO case manager, and the DATO clinical advisor, Mr Howe, who is satisfied that your offending is drug related and the matter of the offending by the breach of the community corrections order, was also referred to him, and to the case manager, and it was acknowledged that this offending exemplified your long term polysubstance abuse.
53You are a bit fond of Xanax and other prescription drugs as well, and dabble in GHB, and it is also noted that this highlights the need for intensive therapeutic intervention.
54The problem for the case manager was not that you did not appear to require this assistance, but because you did not meet the legislative requirements of living in a gazetted area, and you had the outstanding community corrections order matter, which prevented your immediate placement on the DATO. These, however, have now been resolved.
55You are also residing with a pro-social woman, who lives in the gazetted area. She has written a letter to the court and gave evidence before the court of the fact that you resided with her after leaving Dreambuilders, she is prepared to have you again.
56She is, by occupation, a kindergarten teacher. She noted that, whilst attending day-hab, you were attending Narcotics Anonymous, engaging with your psychologist and with your GP, and assisting her in difficulties that she had.
57She is prepared to have you back again. She is well aware of the charges that you face before this court, and indeed, in a letter dated 7 May 2022, said she had known of them for quite some time. She described you as being like family.
58The formal objections based on the legislative prohibitions surrounding your previous situation have now been lifted, and I am in a position where I can place you on a drug and alcohol treatment order.
59Before doing so, I need to sentence you. That sentence must be no longer than four years, and I am satisfied that the ultimate sentence that I can place you on will be less than four years.
60So, in relation to Charge 1, I sentence you to 12 months' imprisonment. In relation to Charge 2, I sentence you to 12 months' imprisonment. I sentence you to four months imprisonment in relation to Charge 3, and I sentence you to six months' imprisonment in relation to Charge 4. There was no victim impact statement, is that right? I note that no victim impact statement was tendered.
61In relation to the charges for which you were given the opportunity in August of last year, I sentence you as follows. First, in relation to the charge of breaching your community corrections order, you are sentenced to one month imprisonment.
62On each of the charges relating to return – driving whilst – failing, failing an oral fluid test within three hours of driving, you are sentenced to four months' imprisonment on each charge. In relation to charges – the remaining charges.
63MR PARKER: My apologies, Your Honour, those are fine only events, there is 120 penalty minutes.
64HER HONOUR: Are you sure? I am sorry, the only reason I did that is because .05.
65MR PARKER: Indeed. I sent the maximum penalties through to Your Honour's clerk, it is 120 penalty units for subsequent offences.
66HER HONOUR: Hundred and twenty penalty units. All right. That – see, this is what happens when you do not do Magistrates' Court work anymore. You become completely ignorant about the Road Safety Act.
67On each of those charges, you are fined $200. I will give you five months to pay that. In relation to the remaining charges, I am sentencing you to six months' imprisonment on an aggregate basis, because it is from the Magistrates' Court.
68The base sentence will be the sentence imposed on Charge 1 on the indictment, that is 12 months.
69I order that five months of the sentence imposed on Charge 2, one month of the sentence imposed on Charge 3, three months of the sentence imposed on Charge 4, and three months of the aggregate sentence arising from the community corrections order, be served cumulatively to the sentence imposed on Charge 1 and all other sentences.
70That gives a total effective sentence of 24 months.
71Ms Chambers if you had sought to appeal that last sentence that you got from the Magistrates' Court in front of me, and I uphold virtually all appeals, I think, for the Magistrates' Court, I would have warned you that I would have upped it. Because, driving around with ice in your system is really dangerous, and overall, the offending that you have managed to compile in the last few years is just appalling.
72As I said, I appreciate you have had your difficulties, but compared to some of the people that I have to deal with, and you would have met them in jail – you know, the ones who are sexually assaulted from about age seven, and whose parents introduced him to drugs when they were 12. And who beat them and threw them out of home and deserted them, and did all those sorts of things.
73No-one is saying this has been easy street, but by comparison, you are in an extremely fortunate position. And the trouble with drugs, and you will be hearing a lot about this while you are on the order, is it turns a person's focus firmly on themselves. All they can think about is how they feel physically, and everybody else's feelings are of no interest whatsoever.
74It is all, 'But I need, I need, I need, I should have what I want. I want it now, and it is everybody else's fault.' You can see that you sound like a four-year-old when you are like that.
75And one of the things that happens to people who are substance dependant for year after year after year, is they remain in a sort of emotionally infantile state, for a very long time.
76You will have a large number of responsibilities whilst you are on this order. The order consists of two parts. There are the core conditions, and that lasts for the whole – in fact, both of them last for two years.
77The core conditions relate to the fundamentals, and you will be well familiar with them, because they are like the community corrections order, for which, in my view, you have had far too many chances.
78So, part A, of the treatment and supervision order includes that you are not to commit any events punishable by imprisonment, and I make it clear – that does not mean you commit an offence for which you are jailed. It means you commit an offence for which you could be jailed. Well, you know, that is where there is a maximum penalty of jail. Example – knocking off a box of matches from Woolworths will breach this.
79You are to attend the Drug Court when required by the court.
80You are to report to Melbourne Drug Court House after the order is imposed. That is, you go from here to there. You are to report to and accept visits from the members of the Drug Court.
81You are to undergo treatment. You are to give notice of any change of address. You are not to leave Victoria without permission of the Drug Court team. You are to obey all lawful instructions of the Drug Court team. All right?
82Now, they are not that different to the core conditions of the community corrections order, are they. And I can assure you that if you muck around with them, Ms Chambers, you better hope, you know, that you are going back to the part of Dame Phyllis Frost you like best. All right?
83You have to submit for drug and alcohol testing as directed.
84You must submit to detox or other treatments specified in the order as directed. So, people say go off and do day rehab, you have to. You must attend vocational education and employment programs as directed, and if you have any brains at all, you will do that, and you will have a go at finishing off your Year 12.
85You must submit to medical, psychiatric, psychological treatment as directed. You must comply with a curfew. In this case, you have to be home between the hours of nine and six. That is actually going to help you. You will not be out and about meeting up with any of your old mates. And that curfew remains until further notice, and until you will settle on the order.
86You are not allowed to use a drug of dependence without lawful authorisation. You are not allowed to drink. You are to reside at [street address omitted] in Murrumbeena at the present time, and you must not do or, or not do anything else that the Drug Court considers necessary or appropriate concerning your drug and alcohol dependency, and the personal factors that the Drug Court considers contributed to your offending.
87Because your sentence is two years, that is how long those conditions will go. Part B of the order is what is called the custodial part of the drug and alcohol treatment order. That is two years.
88That is the term of imprisonment I would have imposed, but for the DATO. And I do not think I would have given you very much parole. You know what, and I think we can impose up to two – is it 18 months or two years? I may have even done the straight sentence, but I am not going to bother about that at this stage, because it is not appropriate that I do.
89So, is there PSD?
90MR PARKER: There is, Your Honour.
91HER HONOUR: What is it?
92MR PARKER: Two hundred and twelve days, not including today.
93HER HONOUR: I declare there are 212 of the sentence already have been served by way of pre- sentence detention. That does not come off the custodial. That does not come of the treatment part. You have to do that for two years, unless you breach the order.
94I understand that you agree to the making of this order, and that you agree with the treatment and supervision part of it. All right?
95OFFENDER: Yes. I'm actually looking – I'm, I'm honestly looking forward to the support.
96HER HONOUR: I know, look, I know you are. But, just remember, you know enough about yourself to know that you do well when people tell you what to do.
97Now, there is lots of work and lots of appointments to keep on a DATO. You have also got a lot of your own time. All right? So, it is going to be a mixture of structure and you exercising your own control. And it is probably a really good thing for you to learn how to practice.
98The court sees this all the time. People who are in jail, like for ages, go like rockets, reports everywhere of how wonderful they are, and they promptly collapse as soon as they get out.
99You cannot live in the community unless you can exercise control over your habit. How old are you again? Thirty ‑ ‑ ‑
100OFFENDER: Thirty-four.
101HER HONOUR: Thirty-four. Okay, enough. Can I say this, if people are using after much – perhaps more so men – but, the experience of this court is, if you are still deciding to use after about 35, you are looking at a lifetime of in and out of jail. All right?
102OFFENDER: And it's not what I want. I wanna ‑ ‑ ‑
103HER HONOUR: No-one wants it.
104OFFENDER: Yes. I wanna ‑ ‑ ‑
105HER HONOUR: But, do not fall into the mistake of thinking that giving up drugs will give you a white picket fence and a clear blue sky. All that will happen is, you will have the normal problems that everybody has. You just will not respond to them by using drugs, and then getting mixed up in the great drama of being charged, being on the run, dodging police, going to court, going to jail. All right?
106In any event, I am prepared to place you on the order. I declare that pursuant to s6(AAA), had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of two years and three months. All right? That is all right. Good. We have prepared the documentation?
107Well, good luck. I hope everything goes really well. All the best, Ms Chambers. You'll be dealing with Judge Higham in the Drug Court, and I wish you well.
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