Director of Public Prosecutions v Colbert
[2015] VCC 2206
•18 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01641
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RENEE COLBERT |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2014 | |
DATE OF SENTENCE: | 18 December 2014 | |
CASE MAY BE CITED AS: | DPP v Colbert | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2206 | |
REASONS FOR SENTENCE
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Subject: SENTENCE
Catchwords: Criminal law – sentence – intentionally causing serious injury – armed robbery – false imprisonment – attempt to obtain property by deception - theft
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Coombes (Plea) Ms S Lenthall (Sentence) | Solicitor for Office Public Prosecutions |
| For the Accused | Mr V Peters | Revill & Papa Lawyers |
HIS HONOUR:
1 Renee Colbert, you have been convicted of:
·One count of causing serious injury intentionally contrary to s.16 of the Crimes Act (Charge 1 on the indictment);
·One count of armed robbery contrary to s.75A(1) of the Crimes Act (Charge 3);
·One count of false imprisonment contrary to the common law (Charge 4);
·One count of attempting to obtain property by deception contrary to s.321M and s.81(1) of the Crimes Act (Charge 6).
·In addition, during the course of the trial, you pleaded guilty to one count of theft contrary to s.74(1) of the Crimes Act (Charge 5).
2 Briefly, the circumstances of your offending were as follows.
3 Early in the morning of 2 February 2013, one James Numalik arrived at the premises in which you were then living in Beevers Street, Footscray. He had attended in order to obtain sexual services from you, as he had done on previous occasions.
4 On entering the premises, there were three other men present. He was reluctant to stay but you encouraged him to do so and escorted him upstairs to a spare bedroom. One of the other men at the premises was a Caucasian male who was referred to in evidence as “Adrian”. His full name is not known. You made requests of Mr Numalik to provide you with money. He declined. Shortly after, you and “Adrian” entered the room in which Mr Numalik was situated, you carrying an iron bar and Adrian carrying a kitchen knife. Mr Numalik was struck on the head on several occasions with the bar. Your evidence was that he was struck by Adrian who had somehow obtained possession of the bar from you. Mr Numalik’s evidence was that you had wielded the iron bar against him. Either way, you were a party to a brutal attack upon him.
5 Mr Numalik managed to escape the room and run downstairs towards the front door. The two other males downstairs blocked his exit at your request. You and Adrian again made demands of money from Mr Numalik. You obtained some $300 in cash from his wallet together with his ATM card. You demanded the PIN number from him and he gave it to you. You demanded his car keys and he gave them to you.
6 You and Adrian drove Mr Numalik’s car to an ATM in Footscray. Adrian was unsuccessful in obtaining money from Mr Numalik’s bank account. It appears that the wrong PIN number was used and the card was retained within the ATM.
7 Shortly afterwards, you and Adrian conducted a search of the car. You searched the boot. In it you found a bag containing a substantial sum of money in a number of envelopes. These were pay packets for Mr Numalik’s employees which he was required to pay to them and had intended do so the following day. Your evidence was that whilst you found that cash, Adrian took it from you and gave you none. Whilst I accept that that is so for the purpose of sentencing, I do not consider it reduces your culpability in the theft of that money.
8 When you and Adrian had left the Beevers Street premises in Mr Numalik’s car, you had instructed the two men remaining at those premises not to allow Mr Numalik to leave the house until your return. Pursuant to those instructions he was held against his will at the premises for some time, and in an injured state. In due course, he was able to escape those premises where upon he contacted police and was later taken to hospital where he was treated in respect of his head injuries.
9 When interviewed by police, you denied your involvement in these offences. You pleaded not guilty to each of the offences in this Court. Only towards the latter stages of the trial, when it was clear on your own evidence that you had been involved in the theft of the money from the boot of Mr Numalik’s car, did you plead guilty to Charge 5. You maintained your plea of not guilty to the remaining charges.
10 You are aged thirty-six. You were born and raised in Melbourne and underwent a difficult childhood. Your parents had never been together after your birth and you were raised at least initially by your mother. You have described her as leading a chaotic lifestyle because of an interaction of her bipolar disorder and excessive use of drugs and alcohol. Your upbringing by her was, I accept, disturbed and unstable for several years until your father and his new partner commenced court action to obtain custody of you. Your stepmother was, initially, a more stable influence on you.
11 At some stage, the relationship between your father and your stepmother broke down and your father left the home. It appears that the relationship between you and your stepmother from that time was not a good one. You returned to live with your father for a short period but later returned to the care of your natural mother. From that time, there was a further period of destabilisation.
12 You left home when you were about 14. You were then in Year 10 at school. Later, you attempted to return to school in Year 11 but, whilst attempting to sustain yourself with part time employment, found the work overwhelming. Over the years, you have attempted to work on occasions but you do not appear to have any solid work skills.
13 You were introduced to cannabis prior to the age of fourteen. Heavy use of alcohol began at the age of sixteen. You were introduced to amphetamines and heroin at age seventeen.
14 By the age of nineteen, you were also using methylamphetamine (ice) and heroin. You were spending up to $600 per day on that habit.
15 You engaged in street prostitution, presumably to fund the habit until an incident occurred when you were assaulted and raped. Thereafter you conducted a small prostitution practice from the premises in which you lived in Footscray.
16 You have 3 children, one of age 17 and two much younger children born in about 2007 and 2008 respectively. You have been in a relationship with Evan, the father of the 2 younger children. That relationship had apparently a relatively stable one and enabled you to cease heroin use with the aid of Methadone and counselling. That situation deteriorated when Evan began a relationship with another person. This led to an increase in anxiety on your part and it would appear that you relapsed into drug use at that time. Soon after, it appears that Evan took over the care of your children.
17 You took up working as a prostitute again and one of your clients following that return was James Numalik who had visited you on a number of occasions in the months leading up to your offending.
18 Since that offending in February 2013, you and Evan have, it seems resumed your relationship and have lived together with your two younger children. It was put on your behalf that you have, since that time, been free of heroin with the assistance of Methadone. You have spent most of the time between the date of your offending and the date of the commencement of your trial on bail.
19 You have a number of relevant prior convictions.
·In March 1998 and again in May 1999, you were convicted of theft from a shop;
·In March 1999 you were convicted of larceny;
·In August 1999 you were convicted of theft from a motor vehicle, theft and unlawful possession of goods.
·In December 1999 you were convicted of theft from a motor vehicle;
·In February 2000 you were convicted of recklessly causing injury;
·In May 2002 you were convicted of two counts of armed robbery. I was advised by your counsel that these related to two armed robberies at a milk bar.
·In May 2002 you were convicted of burglary and theft.
·In January 2008 you were convicted of burglary and theft.
·In December 2009 you were convicted of theft from a shop.
·In July 2011 you were convicted of theft.
20 Since your conviction you have been examined by a clinical and forensic psychologist, Mr Michael Crewdson. His report, dated 5 December 2014, was tendered on your behalf. I note the comments contained in that report and, in particular:
(i) He considers you to be under-educated but not unintelligent.
(ii)Your life skills have been poor, compounded by an interaction between your occupation as a prostitute, a dysfunctional developmental background, grossly abusive past personal relationships, trauma and heavy heroin dependence.
(iii) There are no indications of any psychotic disorder.
(iv)You were currently suffering from an adjustment disorder but your response was not grossly abnormal.
(v)You were understandably anxious and depressed..
(vi)There was no indication of any psychological impairment of capacity.
(vii) You had a vulnerable personality with some antisocial traits.
(viii)There were a number of factors which “might” suggest that at the time of your offending, you were in no state to make an effective and rational judgment. You “may” have been in a traumatised emotional state and “may” have been considerably affected by a combination of Alprazolam (Xanax) and heroin. He said in relation to those might's and mays that further evidence would need to be established before he reached that conclusion.
(ix)It would seem that your partner’s involvement with another woman had been a precipitant factor leading to your return to your former life of drugs and prostitution.
21 Mr Crewdson considered that it was difficult to assess the risk of you reoffending. On the basis of one published guide, he assessed your risk of reoffending to be moderately high, suggesting there was a 35 per cent chance of reoffending within seven years. However, on the basis of his own overall experience, he thought the risk factor was likely to be considerably less.
22 I have formed the view that the risk of you reoffending depends largely on your ability to stay free of illicit drugs. Your current domestic situation appears to be relatively stable, and you have stayed free of heroin for some time. However, you have a vulnerable personality and it is difficult to be confident about your ability to stay free of heroin in the event that your domestic situation was to deteriorate for one reason or another.
23 Your counsel has submitted to me that there are a number of matters which I should take into account by way of mitigation of penalty.
(i)He submits that you have shown remorse and that you are ashamed and regretful in respect of your offending. I accept that you have, since your trial, shown such remorse but I do not accept that you demonstrated any remorse prior to or during your trial (with the exception of your belated plea of guilty to Charge 5). I take into account that the belated plea was made at a time when you had made a full admission in your evidence as to your involvement in the theft concerned. In those circumstances, I consider that your belated plea of guilty counts for little in a sentencing context.
(ii)The offences committed against Mr Numalik did not involve planning or premeditation. I accept this. I accept that you found yourself in a position where you needed to lay your hands on cash and Mr Numalik’s presence at the premises was seen by you as an opportunity to obtain such cash. He refused to provide any financial assistance at that time. It would seem that you and “Adrian” made an opportunistic decision to take from him whatever cash you could. At the time that you took money from his wallet, took his credit card and took his car keys, you were unaware of the money in the boot of his vehicle. I accept that none of these offences were premeditated crimes.
(iii)You were, in all likelihood, under the influence of heroin and as Mr Crewdson states, your ability to make an effective and rational judgment may have been effected. Generally speaking, where a person’s judgment is affected by alcohol or drugs, that is not a matter to be taken into account in mitigation of sentence.
(iv)“Adrian” had put you under considerable pressure to reimburse him in respect of moneys allegedly stolen from his wallet earlier whilst he was at your home. I note that the jury rejected your defence that you were acting under duress at the time of each of the contested offences. Nevertheless, I accept that you were under some pressure from Adrian to come up with money to replace the amount stolen from him earlier. Whilst it does not constitute an excuse for your conduct, it does explain your motivation for your offending behaviour.
(v)It is submitted that your role was one of a minor player. I do not accept this. I consider that the roles played by “Adrian” and yourself were similar. You both approached Mr Numalik armed. I do not accept your account that you did not use the iron bar. I accept Mr Numalik’s evidence on that point that you wielded the iron bar and struck him a number of times on his head with it. It may well be that in the period that followed, at the bottom of the stairs, Adrian used the iron bar similarly.
(vi)Shortly prior to your offending, it is submitted that your relationship with Evan had encountered significant problems and this had led to you spiralling into heroin use and prostitution again in order to fund that habit. I accept that this was likely to be the case and that for some time prior to those problems being encountered, you were free of heroin and engaged in a reasonably stable home life with your two younger children.
(vii)You come from a disadvantaged background, and I accept that. Your upbringing was, on any view, a difficult one. I take your disadvantaged background generally into account in sentencing you.
(viii)It was submitted that your current relationship is, in all the circumstances, likely to prevail. I certainly hope this will be the case, although the relationship could not yet be described as a long term one in my understanding of that term. I accept that the family unit has been relatively stable for approximately one and a half years before going into custody shortly before the commencement of your trial as a consequence of your failing to appear in Court on the scheduled day of the trial. Nevertheless, it is an encouraging sign that you have been in a stable relationship for some time and it gives me some cause to think that there are prospects for your rehabilitation. In further support of that prospect, it was submitted that your daily requirement for Methadone has decreased in the time during which you have been in detention. I accept that to be the case.
(ix)I accept your counsel’s submission that, whilst in prison you have not been idle and you have done a number of different courses including a cooking course, a food handling/hospitality course, an insight into offending behaviour course and a course involving introduction to computers. This is to your credit.
(x)Your counsel submits that you currently have Hepatitis C and that proposed treatment may not be realistically available in gaol. There was no information provided concerning your current symptoms or details of current treatment. There was no medical evidence put before me concerning that illness or of treatment required and no evidence to suggest that treatment for it would not be available if you were incarcerated.
(xi)Your counsel submitted to me that in the period following your offending, whilst living a relatively stable existence with your partner and children, you and your partner took a number of needy children into your household. Whilst these children were not formally “foster children”, it was submitted that it demonstrated that you are a person of relatively good character and of some substance. I accept that this is some evidence that, whilst you are heroin-free, you are capable of living a responsible lifestyle and making a contribution to the community.
24 I have come to the conclusion that this was serious offending. The attack on Mr Numalik was, in my opinion, relatively vicious and cowardly. He would have had no suspicion that he was about to be attacked at the time that you and Adrian entered the room in which he was waiting. He was alone. You were in company. Both you and Adrian were armed. He was not. The injuries caused to him were significant, involving full thickness lacerations to the skull. You are indeed fortunate that the injuries suffered by him were not more serious.
25 With regard to your prior convictions, I note that the most recent relevant offences apparently occurred at some time in early 2011 and that the most serious of these offences, the two counts of armed robbery, occurred some 12 and a half years ago. In respect of those two offences, you were sentenced to imprisonment for three and a half years with a non-parole period of 12 months. It is likely that those offences and all or most of the other offences involving dishonesty, were committed because you needed money to support your illicit drug habit.
26 I have taken into account each of the matters required to be considered by the Court by reason of s.5 of the Sentencing Act 1991. In your case, I consider that the most important of these is to manifest the Court’s denunciation of your conduct, specific deterrence (that is, a penalty to deter you from behaving in this manner again) and general deterrence (that is, a sentence to deter others in the community from behaving in this manner).
27 Taking all of the circumstances into account, I have come to the conclusion that your offending does require an immediate period of incarceration. I have had regard to the principles of totality and proportionality and the need to avoid a crushing sentence, particularly noting that your prospects of rehabilitation are, in large part, dependent on your resuming family life with your partner and children.
28 I have received a report from Community Correctional Services dated 15 December 2014 indicating that you are assessed as being suitable for a Community Correction Order. I intend to sentence you to a term of imprisonment and, on completion of that term, to a Community Correction Order. It is important, in my opinion , that, on your release from prison, you receive as much assistance and supervision as possible especially with regard to your issues relating to use of illicit drugs. However I would not proceed down the path of a period of imprisonment followed by a community corrections order unless you consented to such order.
29 Renee Colbert, I intend to sentence you to a term of imprisonment of 12 months. At the completion of that term you will commence a community corrections order extending for a further period of 24 months. Such a community corrections order will be subject to the usual conditions set out in s45(1) of the Sentencing Act – namely:
(a)that you must not commit, whether in or outside Victoria, during the period of the order an offence punishable by imprisonment;
(b)that you comply with any obligations or requirements provided by regulations;
(c)that you must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order;
(d)that you must report to the Community Corrections Centre specified in the order within two clear working days after this order coming into effect;
(e)that you must notify the Secretary of any change of address or employment within two clear workings days after that change;
(f)that you must not leave Victoria except with the permission of the Secretary; and
(g)that you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with this order.
30 In addition, there will be specific conditions that:
(i)you be supervised, monitored, and managed as directed by the Secretary to the Department of Justice (“the Secretary”).
(ii)you must undergo such treatment as is directed by the Secretary with regard to:
(a)assessment and treatment (including testing) for drug use, abuse or dependency;
(b)any assessment and treatment (including testing) at a residential facility for withdrawal from or rehabilitation for drug use or dependency;
(c)any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric treatment or treatment in a hospital or residential facility; and
(d)any program that addresses factors related to your offending behaviour.
On that basis, I must ask you, because I am not permitted to make this order unless you agree to it, at least a community corrections order part of it. Do you consent to such a community corrections order?
OFFENDER: Yes.
HIS HONOUR: If so, as an aggregate Order in respect of each of these offences, you are sentenced to a term of imprisonment of 12 months. Further, I sentence you to a Community Correction Order to commence at the completion of that term of imprisonment. The operational period of that community corrections order shall be 24 months, commencing on the date of your release from prison. The terms and conditions of the community corrections order will be as I have previously advised.
31 Pursuant to s.6AAA of the Sentencing Act, I declare that were it not for your plea of guilty in relation to Charge 5, I would have imposed an aggregate sentence in respect of these offences of 15 months' imprisonment prior to the commencement of the community corrections order in the same terms as previously referred to.
32 Pursuant to s.18 of the Sentencing Act, I declare that your pre-sentence period of detention in respect of these offences has been 65 days, not including today and I direct that it be reckoned as a period of imprisonment or detention already served under the sentence I have imposed.
33 Now, there were from memory other ancillary orders sought.
34 The disposal order removed a number of items which I discussed at the pleas hearing. Mr Peters, I take it you have seen both of these draft orders?
35 MR PETERS: Yes, I have, Your Honour, yes.
36 HIS HONOUR: Yes, do you want to say anything about them?
37 MR PETERS: No, Your Honour.
38 HIS HONOUR: Thank you. I will make the orders in the terms sought.
39 And in relation to the community corrections order, I will have Ms Colbert sign it before I sign it.
40 Anything else Ms Lenthall or Mr Peters?
41 MS LENTHALL: No, Your Honour.
42 MR PETERS: No, Your Honour.
43 HIS HONOUR: Yes, thank you. Ms Colbert can be taken downstairs.
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