Director of Public Prosecutions v Craig

[2020] VCC 456

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00774
CR 19-00775

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYSON CRAIG
STACEY ROBINSON

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF SENTENCE:	21 April 2020
CASE MAY BE CITED AS:	DPP v Craig & Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 456

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW; Armed Robbery; Intentionally Cause Injury

Catchwords:          Armed Robbery; Intentionally Cause Injury; Injuries and impact to victim; Youthful offenders; Parity

Legislation Cited: s.323 Crimes Act 1958; s.5(2H) Sentencing Act 1991

Sentence: Craig – 3 years 5 months imprisonment; Non Parole period of 2 years 4 months; Robinson – 12 months imprisonment; 10 months imprisonment plus 18 month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Champion	Mr A Stewart, Office of Public Prosecutions
For Accused Craig	Mr D. Gray	Mr G Clancy, Kerry R Clancy Solicitors
For Accused Robinson	Mr M. Sturges	Mr L Slater, Slater & King Lawyers

HER HONOUR:

1Tyson Craig, you have pleaded guilty to one charge of Armed Robbery and one charge of Intentionally Cause Injury.  You were 22 years old at the time of the offending.

2Stacey Robinson, you have pleaded guilty to the same charges of armed robbery and intentionally cause injury as well as charges of possess drug of dependence and theft.  You were 24 years old. 

3Your co-accused, Elena Bennett[1], was aged 15 at the time of the offences.  Ms Robinson and Ms Bennett are close friends referring to each other as sisters.

[1] A pseudonym

4The victim, Jake Mills, was essentially a stranger to you both.  Ms Bennett and Mr Mills had met on Tinder in late October, early November 2018.  He was 20.

5On 3 November 2018, you, Ms Robinson, were taken to Bunnings Wangaratta by an associate, Alan Blackberry.  You went inside and stole a Dremel set and a gas lighter or similar concealing them in your bag.  That is Charge 1 of Theft.

6Ms Robinson, you told Mr Blackberry that day that you were trying to organise a lift from Wangaratta back to Albury.

7On Saturday 3 November 2018, Ms Bennett and the victim exchanged messages wherein Bennett told him she needed help to collect property from a unit in Irving Street, Wangaratta.  Ms Robinson, you were staying at that unit with Mr Blackberry.

8The victim attended there some time after 7 pm.  Mr Blackberry, Ms Bennett and Ms Robinson were present.  Ms Robinson, you and Ms Bennett loaded belongings into the victim's ute.  It is apparent that you and Ms Bennett planned to have the victim drive you to Albury, however, you soon realised that there was no room for you to travel back to Albury because the victim was driving a ute and not a car.

9At about 10 past nine, Ms Robinson, you sent a text message to your friend, Tyson Craig.  You two knew each other through school and family.  At about 9.15 pm, you two spoke on the phone and, Ms Robinson, you asked Mr Craig to come and get the victim's keys.  You were heard to say something along the lines of, 'Can you come around here please and see me for a sec?'. 

10Meanwhile, the victim who was waiting in his ute messaged Ms Bennett to say he was tired, and he wanted to go.  At about 9.30 pm to 9.45 pm, he took his keys out of the ignition of his ute and started to get out.  At that point, you, Mr Craig, were running towards the driver side door of the ute.  You had clothing over your face to disguise yourself.

11As the victim was getting out of the ute, he felt a blow to the back of his head.  As he was standing up, he was hit another four or five times to the back of his head.  He saw you, Mr Craig, hitting him.  He yelled out, 'Stop'.  He was in a lot of pain.  He saw you had a pole with white marking, similar to a baseball bat.

12After the victim was out of the ute, you again swung the pole.  The victim put his hand up to try and protect himself and was hit on the hand.  He was bleeding.  He was yelling and screaming.  He says he was terrified and in fear of his life.  He had never experienced anything like this before.

13At some point, Mr Blackberry yelled out, 'Oi, enough'.  The victim began to back away from you, Mr Craig, and go towards the unit.  You followed him, repeatedly yelling, 'Give me the keys'.

14As the victim reached the front door, you began hitting him again.  He managed to get inside the unit.  He tried to shut the front door, but you pushed the door open and raised the pole in a way which was threatening.  The victim threw his keys onto the front yard.  You, Mr Craig, still had the pole raised.  You told the victim to go back.  You took a step towards him before turning and running outside.  The victim was terrified.  He stayed in the hallway.

15Ms Robinson, you grabbed the keys to the ute, and you drove away with Ms Bennett.  You collected Mr Craig in a nearby street.

16Those are the facts forming Charge 2, Armed Robbery, as well as the facts underlining Charge 3 of Intentionally Causing Injury.

17The victim's wallet containing bank cards and his driver's licence were in the ute.  The victim called 000 and his mother.  He was dizzy and injured.  Police and ambulance attended soon after.  The victim was observed to be bleeding from the back of his head and there was a pool of blood in the driveway.  The front door of the unit was damaged.

18The victim was taken to Wangaratta Hospital and was examined.  He sustained lacerations to his forehead requiring seven stitches and to the back of his head requiring 12 stitches.  He had bruising, tenderness and swelling to the right side of his head, a bruise to the left hand with a laceration to his middle finger, welt marks and bruising to his back and grazes to his arms.  There was blood in his ear, and he lost hearing in his right ear for a prolonged period of months although his hearing is now fully returned.  Photographs were tendered on the plea.

19On 6 November 2018, the victim was examined by a surgeon.  He was found to have had significant symptoms of ongoing concussion, an inflamed eardrum, fluid in his right middle ear and hearing loss.  He was unable to work for a period of weeks.

20Over the following months, he consulted a specialist regarding his impaired hearing.  That hearing loss condition endured until approximately May 2019.  Those also form the facts underlining Charge 3.

21On Monday, 5 November 2018, you, Ms Robinson, set Mr Mills' ute alight in Wodonga.  On 8 November 2018, police attended at the Best Western hotel in Wodonga and you, Ms Robinson, were arrested.  Police found a resealable plastic bag containing methylamphetamine in your handbag.  That is Charge 4.

22A record of interview was conducted with you, Ms Robinson.  Although you were originally less than truthful, you eventually made full admissions.  You made full admissions to the theft from Bunnings and eventually to the events relating to Mr Mills.  You admitted asking Mr Craig to come and help you get the keys from the victim.  When asked how you expected he would do that, you stated you thought ‘maybe there would be a push and shove and a bit of raised voice’.  You described the events unfolding quickly and it is clear you were upset when discussing the injuries sustained by the victim.

23On 9 November 2018, Mr Craig, you were arrested and taken to the Wangaratta police station.  A record of interview was conducted.  However, it was suspended several times due to you being distressed and upset.  On medical advice, the interview was suspended and completed the following day.

24You have both been remanded since your arrests. 

25It is necessary to understand how the charges are framed as against you, Ms Robinson. The prosecution submitted that you are complicit on the basis of s.323(1)(a) and (d) of the Crimes Act 1958. You admitted recruiting Mr Craig to assist you in obtaining the keys to the victim's ute. Those admissions permit me to make a finding that you were complicit pursuant to sub-s.(a) to robbery simpliciter; however, upon Mr Craig's arrival and use of the weapon, both parties agree that pursuant to sub-s.(d), you became complicit in the armed robbery. That is, upon being aware of the use of the weapon, you did not withdraw, desist or discourage Mr Craig. You then obtained the spoils of the armed robbery, namely the ute which you used for the purpose of getting back to Wodonga.

26On slightly different footing, you are complicit pursuant to sub-ss.(a) and (d) in relation to the offence of causing injury to Mr Mills.  Although I accept that you did not have any prior knowledge that Mr Craig would use a weapon, you admitted knowing a physical assault may occur and an awareness of the probability that Mr Mills may be injured intentionally by your co-offender.  I accept your comments in the record of interview to the effect that you did not want the events to unfold as they did.  Once aware of the weapon, you did not withdraw or intervene or discourage your co-offender.

27I am not dealing with you for the burning of the ute and I am not aware whether you will be dealt with in New South Wales for that offence.  It is relevant to my sentence in that it is part of the narrative.  It shows a lack of remorse even though you must have been aware at that stage that the victim had suffered injury as a result of the serious assault on him and you were aware that his belongings were in the vehicle.  It does not, however, aggravate the offending for which I will sentence you. That offending is distinct and was already complete prior to those additional events.

28Mr Craig, you escalated this incident in an extreme way.  You had never met the victim.  He had no relationship or issue with you nor you with him.  He, in fact, had no issue with your co-offender.  Yet, you came armed, disguised and ready for confrontation.  Immediately on arriving, you attacked him to the head, from behind, with a pole, when he was vulnerable and unaware of your presence.  You hit him repeatedly to the head from behind.  It was a coward's attack.  You are very lucky that his injuries are not more serious or were life-threatening.  Your behaviour was completely unprovoked.

29Not content with your original attack on him, you then pursued him to the unit while he attempted to flee, again striking him and raising the pole in a very threatening way.  He was bleeding heavily, and you must have been aware he was already injured.  That is bullish behaviour which is completely reprehensible.

30Your behaviour in particular demands denunciation.  That is, my sentence should reflect the community's disgust at this type of offending.  It must send a message to both of you that violence of this type to innocent victims is completely unacceptable.

31For both of you on charges such as these, general deterrence, just punishment and community protection are factors which weigh heavily in the sentencing process.  Parliament has set high maximum penalties for offending of this type; for armed robbery, 25 years' imprisonment; for causing injury intentionally, 10 years' imprisonment.  These are reasonably serious examples of this type of offending though of course there is a sliding scale and placing any one offence along that scale is a matter of assessment.

32The injury here places that offence at a higher level.  Similarly, I accept the use of a disguise and a weapon by you, Mr Craig, to steal an item of value makes this a serious offence.

33Further, Parliament has seen fit to deem that the Armed Robbery here is a Category 2 offence as a result of two factors; (1), the victim suffered an injury as a direct result of that offence; and, (2), the offence was committed in company. Pursuant to s.5(2H) of the Sentencing Act, in sentencing an offender for a Category 2 offence, I must make a custodial order unless satisfied of special circumstances as set out in that section.  No such circumstances apply to either of you.

34The impact on the victim has been significant.  This was a man who not only had no dispute with either of you but was in fact helping your friend, Ms Bennett.  He suffered not only the immediate and lasting physical injury but the financial loss and inconvenience of losing his vehicle.  He lost cricket gear and other personal items which were in his vehicle.

35He has installed security because of the impact on his sense of safety.  He is terrified to go out at night, terrified of being alone, cannot cope with people approaching him from behind, he is anxious in crowds and suffers panic attacks.  Those symptoms have led to him isolating himself and losing friendships and connection with people.  He feared repercussions.  Your violence towards him means he has understandably lost his willingness to help others.

36Those effects were ongoing at the time he wrote his victim impact statement in January 2020.  Victims can and do suffer consequences of these acts for a long period of time.

37The victim was cross-examined at the committal, however, the matter resolved in November 2019.  In relation to Ms Robinson, it resolved on some terms which had been offered prior to the committal hearing, namely with regard to the armed robbery.

38In relation to both of you, there was a delay in resolution while clarification was obtained regarding the victim's hearing loss.  Although contained in a report dated May 2019, that did not reach the OPP until September 2019.  It was relayed to the defence in October 2019 and once that information was received, pleas of guilty were entered in a very short space of time to the charge of intentionally cause injury.

39You both receive the benefit of having pleaded guilty and admitted your responsibility to this offending.  You have saved the time and expense of a trial which would have included a number of witnesses.  In particular, though, you have saved the victim being further cross-examined and reliving those traumatic events.  That fact weighs heavily in your favour.  I accept that in both of your cases, your plea of guilty is a reflection of some genuine remorse for your offending against this man.

40Turning to your personal circumstances.

41Mr Craig, your parents separated prior to or shortly after your birth and you first met your father when you were seven.  Your father was in and out of gaol.  You have essentially had nothing to do with him throughout your life.  Your mother is single and aged 43.  She has suffered her own mental health issues and bipolar mood disorder and depression for which she has been medicated.  You and your mother are very close, and she and your grandmother are very supportive of you.

42Your primary schooling was undertaken in Queensland after which you moved with your mother to Wangaratta.  You completed primary schooling at Wangaratta West Primary School and then you attended Wangaratta High School for two years.  You then attended Borinya special school where you remained until passing the equivalent of Year 11.  You were diagnosed with a learning difficulty and told you had dyslexia.

43Since leaving school, you had some limited roof tiling work and you did approximately eight weeks work experience with a shed building company.  You suffered some bullying at work.  You had hoped to obtain an apprenticeship but that did not come through.  Your work history is somewhat limited.

44You were a daily smoker of cannabis between the ages of 14 and 15 until just prior to these offences.  You commenced smoking methamphetamine at 16 and were regularly using it by 18.  Your drug use escalated dramatically in mid-2018 when your girlfriend of two years, Mikaela, hanged herself and died in your arms.

45You and Mikaela had moved away from Wangaratta to Pakenham to get away from the drug scene you were familiar with.  You had been drug-free for some months, however, Mikaela's mother, a truck driver, was apparently smoking methamphetamine.  She offered it to you both and you began to use again.

46Mikaela's death occurred at an address in Pakenham.  She apparently killed herself after her mother forced her to abort your baby.  Mikaela had told you she had miscarried.  Her mother then blamed you and refused to let you or your mother attend Mikaela's funeral.  You left Pakenham to return to live with your mother.

47Those events occurred approximately four months prior to this offending.  They were referred to during your record of interview.

48Approximately two weeks before this offending, you went to check on a friend, Chelsea.  Chelsea was Mikaela's best friend and had become a friend of yours.  She was around 21 years of age.  She was apparently suffering
post-natal depression and none of your friends had seen her for a period.  When you attended at her residence, you found her.  She had hanged herself in her bedroom some hours earlier.

49You told psychologist Jeff Cummins when he assessed you that seeing Chelsea like that ‘set you off again’.  Your drug use escalated dramatically.  You did not receive and have not received any grief counselling in relation to those significant events, the deaths of your partner, Mikaela, and your friend, Chelsea.  Your mother in her letter confirmed this history.

50At the time of this offending, you were under the influence of methamphetamine and possibly Valium and cannabis.  I pause to note that self-induced intoxication is no excuse for offending behaviour.

51According to Mr Cummins, you were during this period a psychologically vulnerable person, reflecting a combination of your drug use and the fact that you were, and according to Mr Cummins you still are, experiencing symptoms of a Persistent Complex Bereavement Disorder which, he says, is an example of an Other Specified Trauma and Sressor-related Disorder under the DSM-5.  He opines that in fact you may have been suffering from symptoms of depression and anxiety over a number of years preceding this offending though primarily related to your drug using lifestyle, and then added to by those traumatic events I have just outlined.

52That state persists with Mr Cummins describing you as still in a state of significant grief concerning your former partner and your friend.  He says you are mildly to moderately anxious as well as being moderately depressed.

53This is your first time in adult custody.  However, you have had a history of offending and have been given a number of opportunities to rehabilitate prior to this offending.  Your criminal history is relevant and concerning, though it must be read carefully as there is some repetition and there are periods of significant gaps.  For example, there is no appearance in relation to any offending between June 2013 and May 2015 nor between October 2015 and September 2017.

54In 2011, you were first dealt with in the Children's Court for recklessly causing serious injury, recklessly causing injury, intentionally causing injury, affray, burglary, theft, criminal damage and possessing a controlled weapon.  You were placed on a 12-month youth supervision order.

55In 2015 in the Children's Court again, you were dealt with for very similar offending of causing injury, affray, assault in company, behaving in a riotous manner and breaching bail.  You were again placed on a 12-month youth supervision order.  You breached that order within months.  However, it was confirmed.

56In 2017 in the Magistrates' Court, you were placed on a community correction order with therapeutic conditions in relation to offending of affray, threat to inflict serious injury and possessing a dangerous article.  You contravened that order within nine months by another assault, further weapons-related offending and drug possession charges.

57On 31 May 2018, that order was varied to provide you with the opportunity to comply and to undergo drug treatment, rehabilitation and offence-specific intervention.  These offences, however, were committed in November 2018.  You clearly did not comply with that order.  The fact you were on a CCO, varied itself after a breach, is an aggravating feature of your personal circumstances surrounding this offending.

58Your past criminal behaviour, Mr Craig, and breaches, are relevant to my considerations of specific deterrence, community protection and your prospects of rehabilitation.  I note Mr Cummins assesses you as a moderate risk of reoffending. 

59Perhaps this period in custody is having the desired deterrent effect on you.  I have received a bundle of documentation attesting to your efforts during this lengthy remand period.  Your mother and grandmother both write that they have seen a huge change in you, Mr Craig, since your time in custody.  Your grandmother says you have been working very hard to improve yourself and you have shared your plans to do something with your life once you are out.  Your mother says she believes you want a better life and that you are willing to put in the hard work to achieve it.

60There is action behind those sentiments you are expressing.  You have consistently now and for many months been able to provide clean urine screens between January 2019 and March of this year.  That bodes well for you going forward. 

61You have completed a number of courses in custody and I have received a large number of certificates.  They relate both to lifestyle issues, drug use as well as vocational courses. Most particularly, you have completed a number of TAFE subjects regarding cleaning.  You are working as a cleaning billet and you have now formed the goal of establishing your own cleaning business when you are released from custody.  That is a real positive and you will be supported in that goal by your mother and grandmother.

62Importantly, you have now stated that you feel embarrassed, regretful, remorseful and apologetic regarding this offending.  You have acknowledged the fact that you have pleaded guilty to serious offending and therefore deserve to spend more time in custody.  You apologised regarding this offending and you have indicated a willingness to engage in anger management programs.

63According to Mr Cummins, it is imperative that you participate in a comprehensive anger management program such as the VIP, Violence Intervention Program.  He says you will require assistance in order to become free of illicit drugs.  You have stated that you would undertake a residential drug rehabilitation program if given the opportunity.  That will be a matter for you on your release as Mr Cummins identifies the key risk factor for you is a return to illicit drug use.  I am sure you understand that.

64I accept your expressions of remorse are genuine.  I am pleased to read that although you stated your co-offender brought you into this situation, it is no excuse for your behaviour during this incident.

65Your young age, now 23, 22 at the time of offending, does enliven considerations of sentencing for youthful offenders.  The case law recognises the importance of rehabilitation as an important focus of a sentence for a youthful offender.  Those considerations must be tempered to some extent by both the serious nature of your offending and by your criminal track record and opportunities given in the past and breached, however, they are not ameliorated entirely.

66Turning to you Ms Robinson; you are now 25 years old.  You were born in Wangaratta.  Your parents are happily married and very supportive of you.  Your father works for Don Smallgoods and your mother in Big W.  Your relationship with your one older brother is currently suffering as a result of your drug use.

67Your early childhood was in a happy, loving family.  You attended Appin Park Primary in Wangaratta.  You were a good student, but you suffered significant bullying due to some size and weight issues.  Those problems continued for you as you entered secondary school to a point where you were unwilling or unable to continue attending.  You would spend lunchtime at your grandmother's who lived near the school as a way of avoiding your peers.  You started truanting all together before leaving Wangaratta High School in Year 10.

68When you left school, you began to work with your father at the smallgoods business.  You worked sporadically with him until mid-2016.  You completed a Responsible Service of Alcohol certificate, a White Card and Certificate II in Tourism at the Flight Centre Academy in 2012.  You also worked at Glenrowan McDonald's from 2012 to 14, however, you lost that job as a result of stealing from your employer bringing about your one prior court appearance in 2014.  That theft was to fund your drug addiction.

69You began using drugs in 2011, no doubt as a way of trying to gain acceptance with peers.  Your 17-year old friend had obtained ice from a boyfriend who was a truck driver.  She offered it to you.  It began as a weekend undertaking and eventually led to you missing work, stealing from your employer and eventually losing a lot of contact with your family.

70Your use of ice escalated when your grandmother died from stomach cancer in 2012 after a 12-month period of palliative care.  You and she had been very close.

71Your life took another downward turn when you met Michael Lambert through Facebook and began a relationship with him.  He was five years older than you and a drug user.  Your parents write of the great difficulty you were in during that time.  Mr Lambert convinced you to move to a remote town and to disassociate from your family.  That relationship was marred by mutual drug use and particularly by his violence and abuse of you.  You were together from mid-2015 to mid-2017 when you finally were able to escape, and police took out an intervention order on your behalf.

72I have read the police records in relation to incidents of violence within that relationship.  They culminated in an episode where, amongst other things, your partner grabbed you by the throat, pushed you to the ground and held you until you could not breathe.  He then held a butcher's knife to you.  You were later grabbed by the head and kneed to the mouth.  When your friend arrived to help you leave, your belongings were thrown out of the house.  You sustained injuries which were photographed by police.

73Mr Lambert repeatedly breached the intervention order and was charged with persistently contravening it.  He was also charged with threats towards your father.  He was ultimately sentenced to 12 months' imprisonment as a result of his treatment of you.

74That was a very difficult experience for you to go through at a young age.  You did not, however, receive any professional counselling or psychological support in the community as a result of those events.  I note the police records indicate your parents' frequent attendance at court hearings in support of you.

75You sought accommodation in Wodonga to distance yourself from Mr Lambert and to try to move away from old associates and their drug use; however, your ice use continued.

76You have been in continuous custody since the time of your arrest on 8 November 2018.  Your criminal history is limited to the one prior appearance for theft which I have described from your employer of $978.  You were convicted and fined and ordered to pay compensation.

77You have never been subject to any court-ordered rehabilitation.  You have never been in custody until now.

78Can you hear, Ms Robinson?

79OFFENDER ROBINSON: Yeah, but my screen is saying it's going to end in three minutes.

80HER HONOUR:  All right.  Well, I will keep - all right.

81Apparently, the link in relation to Mr Craig is about to drop out.  So I am just going to jump to the sentence in relation to you, Mr Craig, because it cannot be extended and I will trust Mr Gray will pass on the additional remarks that I will make about it.

82Mr Craig, in relation to you, on Charge 2 of armed robbery, you are convicted and sentenced to three years and two months' imprisonment.

83On Charge 3 of intentionally cause injury, you are convicted and sentenced to three years' imprisonment.  Three months of that sentence will be cumulative on the sentence of armed robbery.

84That is a total effective sentence of three years and five months' imprisonment.

85The non-parole period that I set, that is before you are eligible for parole, is two years and four months' imprisonment.

86I declare that you have already served in relation to this sentence 529 days' imprisonment.

87But for your plea of guilty, in other words if you had not pleaded guilty, the sentence I would have imposed would have been a sentence of five years' imprisonment with a non-parole period of three years and seven months.

88So, Mr Craig, just to explain that to you, on my reckoning, that means you will serve approximately 10 more months before you become eligible for parole.  If parole is granted at the first opportunity, you will be on parole for 13 months.

89I will reiterate and endorse the recommendations of Mr Cummins, namely that it is imperative that you do the VIP, that is the Violence Program, if not in custody, or at least partly in custody and then on parole, then if that is not possible, then on parole and I make those comments obviously for the purpose of Corrections Victoria's consideration.

90So I will just go back ‑ ‑ ‑

91MR GRAY:  Your Honour, when ‑ ‑ ‑

92HER HONOUR:  Yes, Mr Gray.

93MR GRAY:  Sorry to interrupt but when Your Honour was actually delivering the actual ‑ ‑ ‑

94HER HONOUR:  We will communicate with Mr Gray over email.  I am not sure with - we have lost Ms Robinson as well.

95We are just seeing if we can get either of those links back.  We were told that in relation to Ms Robinson, the link was able to be extended.  My associate is just going to fiddle with the laptop.

96ASSOCIATE:  Can you hear us now through this laptop?

97Can you hear and see us okay?

98HER HONOUR:  All right.  Thank you.  Mr Gray, are you still there?

99MR GRAY:  Yes, I am, Your Honour.

100HER HONOUR:  All right.  All right.  Well, I am going to need to get Ms Robinson back.

101VOICE (from body of the court):  (Indistinct words) us now.

102HER HONOUR:  Hello?  No, that is someone else.

103I am going to need to get her back because she is going to have to have the correction order explained to her and she is going to have to give her verbal consent before paperwork is then sent to the prison for her to sign.

104MR GRAY:  In the interim, Your Honour, could I just check the ‑ ‑ ‑

105HER HONOUR:  Yes.

106MR GRAY:  ‑ ‑ ‑ actual sentence figures.

107HER HONOUR:  Yes.

108MR GRAY:  As I have written them down, in the armed robbery you said it was three years and two months.

109HER HONOUR:  Correct.

110MR GRAY:  And for the intentionally cause injury three years with three months cumulative.

111HER HONOUR:  Correct.  So total effective sentence of three years and five months ‑ ‑ ‑

112MR GRAY:  Yes.

113HER HONOUR:  ‑ ‑ ‑ and a non-parole period of two years and four months.

114MR GRAY:  Yes.  Thank you, Your Honour.

115HER HONOUR:  Pre-sentence detention 529 days.

116MR GRAY:  Yes.  Thank you.  That is what I wrote.

117HER HONOUR:  Thank you.

118I am happy to read the rest of the sentencing remarks - no, in fact, I am not.  I look at those and there are matters which I want Ms Robinson to hear from me.

119So given I need to have her back for the purpose of the CCO, I might just leave the Bench and we will see where things are at if everyone is happy to wait.

120Thank you very much.  Mr Gray, it is a matter for you whether you want to remain online or whether you want to leave.  I will excuse you at this point if you do want to leave.  I just confirm the disposal orders, my notes, as I said, were that they were to be made by consent.

121MR GRAY:  Yes, Your Honour.

122HER HONOUR:  Yes.  All right.  Thank you.

123MR GRAY:  I will remain if that is - I will remain.

124HER HONOUR:  All right.  No problem.  All right.  I will just leave the Bench temporarily while the technical issues are sorted out hopefully.  Thank you.

125(Short adjournment.)

126HER HONOUR:  All right.  So we have Ms Robinson on a link through the court and the prison video link.  You can see and hear me, Ms Robinson?

127OFFENDER ROBINSON:  Yes, Your Honour.

128HER HONOUR:  All right.  Thank you very much.  And I can see Ms Champion and Mr Sturges.  You can both see and hear me?

129MR STURGES:  Yes.  Thank you, Your Honour.

130HER HONOUR:  Are the parties happy to proceed this way?  Apparently, we can go back to WebEx but ‑ ‑ ‑

131OFFENDER ROBINSON:  Is that the phone call that's coming through at the moment?

132HER HONOUR:  It might be.

133OFFENDER ROBINSON:  Do you want me to just press 'Answer'?  Ah it's gone away now.

134HER HONOUR:  All right.  All right.  As long as you can see and hear, Ms Robinson, ‑ ‑ ‑

135OFFENDER ROBINSON:  Yep.

136HER HONOUR:  ‑ ‑ ‑ and the barristers can see and hear, then I think we are all right to keep going.

137Ms Robinson, I will just go back a little way.

138So you have been in continuous custody since the time of your arrest on 8 November 2018.  Your criminal history is limited to the one prior appearance for theft of $978 from your employer.  You were convicted and fined in relation to that offence and ordered to pay compensation.

139You have not been subject to any court-ordered rehabilitation and you have not been in custody until this period of remand.

140You have now served in total some 530 days of imprisonment which is a significant period for your first incarceration.

141I must and do take into account the concept of totality in your case given that you have served in that period a sentence of nine months' imprisonment for drug trafficking and possession of a firearm.  That offending occurred before this but was dealt with afterwards.  There is no opportunity now for you to receive any concurrency between that sentence and the one that I impose. 

142That sentence was confirmed on appeal to this Court in September 2019 and 270 days pre-sentence detention were reckoned in relation to that sentence.  Therefore, of the 530 days, you have spent in custody only 237 days are available by way of pre-sentence detention for the offending that I am dealing with.

143You have used your time in custody well and I have received a bundle of information as to your determined efforts towards rehabilitation.  In particular, you have completed the Intensive Residential Drug Program offered by Caraniche at Dame Phyllis Frost.  That program is voluntary and only eight prisoners are accepted at any time.  You were on a waitlist for eight months before being accepted to that program.

144According to the letter from Senior Psychologist Sandra Kahan, it is the most intensive of its kind offered in the prison running from four to six months as a residential program.  It involves intense group work each week including community group work, counselling group work, focus groups and a structured group. Topics explored include personal issues underlying drug use, communication, relationship skills, relapse prevention and vocational skills.  In addition, those who participate engage in one-on-one counselling.

145Ms Kahan writes that ‘participants accepted to the program must be highly motivated to address their behaviours and possess insight and capacity to engage in intensive therapy on a daily basis.’  Participants are required to be drug-free and as such drug screens are conducted twice-weekly.  She says you have complied with all program requirements and you are now in fact in your third cycle of that program by your own choosing.  You have been thus engaged since 8 July 2019.

146In custody, you have seen a psychologist for anxiety, and you have been prescribed Lexapro and now Avanza. 

147You also self-reported in custody to WestCASA to obtain counselling regarding your past relationship.  You self-referred in January 2019 and reached the top of the waitlist in July 2019. I received a letter dated September 2019 from Counsellor Narelle Fowler of the Specialist Trauma Service of WestCASA though I understand you participated through until December 2019.  Ms Fowler confirmed you met with her frequently through July and August addressing your past trauma in relationship and you have been provided with psychoeducation regarding abusive relationships and self-care.  You are described by her as ‘extremely invested in the counselling process and demonstrating a commitment to your values and self-development through reflective practice’.  She states that has been a confronting experience for you and you have demonstrated your commitment to post-traumatic growth.

148You have also undertaken a number of courses through Box Hill TAFE including traffic control, digital media and technology, kitchen operation, horticulture and workplace safety as well as physical health and weight programs.

149You have written a letter of apology to your victim and his family and to others affected by your offending.  You say in that letter you were in a dark place at that point in your life.  You say,

'Since being incarcerated, I now have an understanding of the tools and strategies available by partaking in the intensive residential drug treatment unit ran by Caraniche and partaking in trauma counselling through WestCASA from July 2019 to December 2019.'

150You say,

'I have chosen to make my time in custody as beneficial as possible as I know I need to make changes to become the best version of myself I can be.  It has been a long road but I know that I have made substantial progress and I will continue to use what I have learned throughout my life to make better choices.  Being incarcerated has been a massive wake-up call.'

151As with your co-offender, your efforts in custody have been impressive; in particular, your voluntary commitment to partake in the intensive program as well as to seek counselling help.  Those matters bode well for your rehabilitation.  My sentence will reflect those efforts and put in place a structure to assist in your ongoing rehabilitation in the community.

152Your prospects of rehabilitation are also reliant on your ability to withstand drug use on your release.  If you can do that, given your determined efforts, your prospects must be good.  You too are a youthful offender and rehabilitation in your case, given your very limited prior criminal history, does loom large in the sentencing synthesis in my view.

153I am mindful of the issues of parity when dealing with co-offenders.  Parity in the sentencing of co-offenders is an aspect of equal justice.  Like cases should be treated alike.  There should be no unjustifiable difference in the sentences imposed upon similar offenders to similar offending.

154The key words there are 'unjustifiable difference'.  That is because parity takes into account considerations of the offending and your roles in joint offending, but it must also take into account your personal circumstances which include your age, your relevant prior criminal histories, your personal circumstances at the time and since.  In that sense, equal justice may result in different outcomes as it will here.

155The main factors which lead to that difference in this case are these; first, the roles played in the offending and the nature of the complicity which I have outlined regarding Ms Robinson.  In particular, the significant escalation of events once Mr Craig arrived and his role in those two offences and the fact Ms Robinson was not armed and did not inflict injury.

156Secondly, the very different prior criminal histories which I have outlined, including the fact Mr Craig was on a CCO at the time of the offending.  The nature of the theft I have outlined in relation to Ms Robinson's one prior court appearance means, in effect, I am dealing with an offender with no relevant prior record.  As I have said, she has not been subject to any court-ordered rehabilitation.

157Third, I must take into account totality in relation to Ms Robinson and its relationship here to s.5(2H) of the Sentencing Act 1991 and to the length of any prison term available for Charge 2.

158In other respects, your personal circumstances have similarities.  You have both had your sorrows, you have both had ongoing support from your families and you will both live with a parent or parents on release.  You both have goals for employment and you both made good efforts in custody.

159Ms Robinson is 25 years of age and Mr Craig 23.  The prosecution concedes they are both youthful offenders. 

160I accept that the current situation regarding imprisonment in the setting of the COVID-19 pandemic is a more stressful and uncertain one.  In particular, the courses in custody are limited or suspended.  I have seen the Dame Phyllis Frost bulletin dated 27 March 2020 to that effect and I expect that situation applies across the prison system.  I expect that may affect parole in the case of Mr Craig.

161There also exists a visitors ban and the potential for lockdown if the virus enters the prison.  All of those matters mean prison currently carries an additional burden.  I take those matters into account and also the somewhat fragile
pre-existing mental health states I have described of both of these young people.

162I requested a CCO assessment in relation to Ms Robinson.  I have received that assessment report which is favourable.

163In relation to sentence, Ms Robinson, I propose to sentence you as follows.

164On Charge 1, which is the Theft from Bunnings, you are convicted and fined $200.

165On Charge 2 of Armed Robbery, you are convicted and sentence to 12 months' imprisonment.

166On Charge 3 of Intentionally Causing Injury, you are convicted and sentenced to 10 months' imprisonment plus an 18-month community correction order.  I will go through the conditions of that order in a moment.

167On Charge 4 of Possession Of Drug Of Dependence, you are convicted and fined $100.

168But for your pleas of guilty, the total effective sentence I would have imposed would have been one of three years and 10 months' imprisonment with a
non-parole period of two years and nine months' imprisonment.

169I declare in relation to this sentence that you have served 260 days' imprisonment.

170The conditions of the community correction order will be as follows; in addition to the core conditions which I will go through in a moment, they will be; that you will be under supervision; that you undertake drug assessment and treatment as directed by Corrections; that you undertake mental health assessment and treatment as directed by Corrections; and that you undertake any
offence-specific programs as directed by Corrections and also that you undertake any vocational or educational programs as directed by Corrections.

171Ms Robinson, do you consent to undertake the community correction order that I have just outlined?

172OFFENDER ROBINSON:  Yes, Your Honour.

173HER HONOUR:  I need to go through - because normally you would be given paperwork right now in the courtroom to sign.  That will be sent to the prison for you to sign as soon as we leave court.

174OFFENDER ROBINSON:  Yes.

175HER HONOUR:  All right.  But I need to go through it and again get your consent.

176So the mandatory terms that apply to a correction order are these; you must not commit another offence for which you could be imprisoned during the time the order is in force; you must comply with any obligation or requirement ‑ ‑ ‑

177OFFENDER ROBINSON:  Your Honour, can I ask?  Is that 10-month accumulative to the 12 or concurrent?

178HER HONOUR:  No, it is not.

179So the effect of your sentence will be that you will serve approximately another three months.

180OFFENDER ROBINSON:  Yep.

181HER HONOUR:  You will then be released to the community correction order which will run for 18 months.

182OFFENDER ROBINSON:  Okay.

183HER HONOUR:  And you will notice I have not imposed any unpaid community work on that order.

184OFFENDER ROBINSON:  Thank you, Your Honour.

185HER HONOUR:  That is because you have served imprisonment and that addresses the punishment aspect that is required because of your offending.

186The CCO I am imposing is designed to enhance your prospects of rehabilitation.  So it is in effect the therapeutic aspect.

187OFFENDER ROBINSON:  Okay.  Thank you.

188HER HONOUR:  You must comply with that, otherwise you will be back here, and I will be resentencing you for the offence of causing injury intentionally.

189OFFENDER ROBINSON:  Yes.  Yep.

190HER HONOUR:  So those conditions; you must report to and receive visits from Corrections.

191OFFENDER ROBINSON:  M'hmm.

192HER HONOUR:  You must report to the community corrections centre within two days of the order starting.  So that will be upon your release.  You must advise Corrections within two days of any change of address or change of employment.  You must not leave Victoria without getting permission from Corrections and you must obey all lawful instructions from Corrections Victoria.

193Those are the core conditions and then in addition to those conditions, I am imposing, as I have said, supervision, so that is you must be under the supervision of a community correction officer for the period of the order and you must undergo assessment and treatment including testing for drug use or dependency as they direct.  Similarly, you must undergo any mental health assessment and treatment as directed and that can include psychological treatment.  You must participate in any programs that address factors relating to your offending as directed and you must also participate in any programs related to educational, vocational programs that Corrections direct you to do.

194So do you consent to the order now that you have heard the core conditions as well as those other conditions I have imposed?

195OFFENDER ROBINSON:  Yes, I do.

196HER HONOUR:  All right.  Thank you very much.  And I propose to make the disposal order, as I have said, by consent in relation to both offenders.

197Any issues to raise, counsel?

198MR STURGES:  Your Honour, (indistinct words).  The 10 months received as a sentence in combination with community corrections order for the intentionally cause injury charge, is that sentence to run concurrent with the 12 month of armed robbery.

199HER HONOUR:  It does.  Yes.

200MR STURGES:  Thank you, Your Honour.

201HER HONOUR:  So, if you like, the total effective in relation to Ms Robinson is 12 months plus the 18-month correction order.

202MR STURGES:  Thank you, Your Honour.

203HER HONOUR:  Plus, the fine and I will grant a stay in relation to the fine.  In fact, I will not grant a stay.  I think there is the automatic stay of one month and Ms Robinson should have some conversations about how she can deal with those matters.

204MR STURGES:  I will give her some advice in relation to that.

205HER HONOUR:  Thank you very much.  And I understand the Corrections centre which will at least initially be on the order will be the Wangaratta Corrections.

206MR STURGES:  That is correct.

207HER HONOUR:  Yes.  All right.

208All right.  So thank you very much, counsel, for your assistance in this matter and unless there is any other issues to raise, that concludes the matter.

209MR STURGES:  Thank you, Your Honour.

210MS CHAMPION:  As Your Honour pleases.  Thank you.

211HER HONOUR:  All right.  Thank you very much.

212MR GRAY:  Thank you, Your Honour.

213HER HONOUR:  So, Mr Gray, just pass on to Mr Craig that I hope he can participate in what he can in order to achieve parole and I will be making those comments about the recommendation of Mr Cummins that he undertake that Violence Intervention Program.

214MR GRAY:  Yes, Your Honour.

215HER HONOUR:  Thank you very much.

216MR GRAY:  Thank you.

217HER HONOUR:  And, Ms Robinson, as I said, on release you will enter the correction order.

218OFFENDER ROBINSON:  Yep.

219HER HONOUR:  So you are going to have to carry all that determination you have had in custody to the outside world because temptation will be everywhere when you are released.

220OFFENDER ROBINSON:  Yep.

221HER HONOUR:  And you are going to have to draw on what you have learned to resist it and to get on with things.  So I do not want to see you back here because if you come back with a breach, the likely outcome will be imprisonment.

222OFFENDER ROBINSON:  Yep.

223HER HONOUR:  All right.  Thank you very much.

224OFFENDER ROBINSON:  Thanks.

225HER HONOUR:  Thank you, counsel.

226MR STURGES:  As Your Honour pleases.

227MS CHAMPION:  Thank you, Your Honour.

228HER HONOUR:  Thank you.

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