Director of Public Prosecutions v Egglestone
[2021] VCC 2124
•17 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01110
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TARA EGGLESTON |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 December 2021 | |
DATE OF SENTENCE: | 17 December 2021 | |
CASE MAY BE CITED AS: | DPP v Egglestone | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2124 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords: Plea of guilty – Koori Court jurisdiction – one charge conspiracy to commit burglary – one charge intentionally cause injury – delay- rehabilitation- circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958 (Vic) ; Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen [2013] HCA 37, R v Verdins & Ors [2007] VSCA 102
Sentence: 295 days imprisonment with a 2 year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
| For the Accused | Ms O. Thompson | Law and Advocacy Centre for Women |
HER HONOUR:
Introduction
1I want to start again by acknowledging the traditional custodians of the land on which this court is located, the Wurundjeri Woi-Wurrung people of the Kulin Nations and pay my respects to their Elders past, present and emerging and I extend that respect to any other Elder or Aboriginal persons on other country who are observing or participating in today’s hearing.
Plea of guilty and maximum penalty
2Tara Eggleston, you can stay seated for now. You have pleaded guilty to conspiracy to commit burglary and to causing injury intentionally. The maximum penalty for each charge is 10 years’ imprisonment.
Circumstances of the offending
3The Prosecution Opening, dated 6 December 2021 sets out the circumstances of your offending. It was tendered on the Plea and became Exhibit A.[1] It is attached to and forms part of these reasons. I will summarise some of the facts giving rise to your offending here.
[1] An abbreviated version was given in oral form at the hearing and became Exhibit C.
4In September of 2018 you arrived at the belief that Nicholas Gold, an associate of yours, had entered your property and damaged your boyfriend’s car. You later sent text messages to Mr Gold’s girlfriend Emily Phillips. You said you had cameras that proved Mr Gold entered your property; you threatened to sue him.
5Around the same time someone created a Facebook page in your name. You became aware of it on 7 September 2018. You, your friends and relatives received invitations to view the page. Whoever created the page, posted semi-naked photographs of you on it; they could be seen by anyone who accessed it.
6You were upset; you reported the matter to the police that day. As part of your complaint, you stated your former boyfriend Mason Lambert was the only person you had sent the photographs to.
7Throughout a subsequent day you communicated with Mr Brent Reker on Facebook, in phone calls and text messages. When Mr Reker asked for confirmation of the name you told him the name was “Nicholas Gold.”
8For reasons not here relevant, Mr Reker was being monitored by police as part of an ongoing investigation into the criminal activities of the Finks outlaw motorcycle gang. This investigation picked up your communication to Mr Reker. Police became concerned as the result of listening to your discussions with him. They began listening more closely. Among other things, the police became aware of you messaging Mr Reker about a range of property: cars, motorbikes and the like and their location at Mr Gold’s house.
9Further conversations, recorded on a clandestine listening device, recorded Mr Reker and other members of the Fink’s motorcycle gang. Mr Reker was recorded giving instructions about Mr Gold and the property at the address and told the men your name.
10The members then drove to 4 Fulham Close with the intention of stealing the property described by you. Mr Reker was observed telling you that some Finks were on their way to the house and asked you to drive by and see if Mr Gold was there. He told you, you owed him ‘lunch and a cappuccino.'
11The men sent to the job found police officers stationed at the address and abandoned the plan.
12This conduct gives rise to charge one on the indictment conspiracy to commit burglary.
13You continued to communicate with Mr Reker between the 6th and 8th of September 2018 and this was captured via telephone intercept.
14On the morning of the 8th of September Mr Reker said to you:
“Oh, he’s getting sorted, yeah” and “…he's gunna get publicly humiliated. The cunt will never walk again. He'll be in a wheelchair. He'll be dead. Alright?”.
15You told Reker the names Nick and Mason and indicated that you believed that they were responsible for the Facebook page.
16Over the course of 9 September 2018 Reker travelled to Nicholas Gold’s house and was joined there by three other Finks members.
17The four men then entered the house, uninvited. One of the men was holding a metal bar.
18Mr Nicholas Gold, Mr Paul Gold (his father) and Ms Emily Phillips (his partner) were all inside the house.
19Once inside Mr Williams told Paul Gold to get out of the bedroom. One of the males then yelled “where’s Nick? and “Get on the floor, don’t move.” Mr Reker approached Mr Nicholas Gold who was still in bed and asked “where is Mason?” (a reference to Mason Lambert who you thought had shared the photographs of you). Nicholas responded that he did not know, Mr Reker then punched him in the face.
20Mr Reker then asked Mr Nicholas Gold who had created the Facebook page. His associate told Ms Phillips to shut up and that if she screamed he would kill her.
21The Finks member described by the victims as ‘the Kiwi’ then approached Nicholas Gold and hit him in the face with the metal bar. He later developed a large amount of swelling and bruising from this injury. Mr Nicholas Gold was asked where Mason, Dan, Jack and Tyson were and he repeatedly replied that he didn’t know. Mr Martinow then punched Mr Nicholas Gold in the face.
22At about midday that day Mr Reker called you and said “I’ve got Nick, what you want me to do? I’ve got Nick, which one is the worst out of Nick, Mason and Dan?
23After this conversation he said to the household, “We will be back and we'll take what you owe us and take your bikes too”. After a brief discussion amongst the four men, the offender described as ‘the Kiwi’ got onto the bed and kicked Nicholas to the face.
24Mr Reker then threatened Mr Nicholas Gold, “If you go to the Police we will kill your misses and your kids too”.
25They got into their car and left the property.
26These events give rise to charge two.
27Over the course of the next couple of days you had various conversations with Mr Reker about the offending. Mr Reker was upset with you, as you had organised for the Finks members involved apparently to reward them and in Mr Reker’s view, there was not enough ‘gear’ supplied. Mr Reker contacted you again to communicate how upset he was.
28On 11 September 2018 Mr Nicholas Gold and Ms Phillips reported the matter to police. Mr Reker became aware that police knew about the offending and called you to tell you to keep quiet.
29On that day Nicholas Gold went to Dandenong hospital and was treated for a range of injuries including:
(a) purple bruising to the left eyelid;
(b) a subconjunctival haemorrhage to the outer left of his eye;
(c) a swollen cheek; and
(d) abrasions to the left eyebrow and temple regions and other injuries.
30On 11 October 2018 search warrants were executed at your home. You were present for these searches and a range of items was seized. You were arrested. You took part in a record of interview in which you denied the offending.
Personal circumstances
31You are a 32 year old Yorta Yorta woman. You are the daughter of an Aboriginal father and an Anglo-Australian mother.
32Your father is a member of the Stolen Generations.
33You were exposed to family violence from a young age, you were abused by your biological father after leaving your mother’s house at about 11 years of age. Your father abused alcohol and drugs.
34Your earliest years were characterised by violence and instability. You doubted both your safety and security in the world. You grew up in poverty and did not always have the basic necessities. By the time you were ten, you were in a position of conflict between your mother and her new partner. He told your mother to choose between you. Subsequently, you went to live with your father.
35That arrangement lasted until you were taken into state care at the age of 12.
36You were sexually abused in State Care and the perpetrator of this crime was later convicted.
37You were enrolled at Cranbourne West Primary School from Prep until part way through grade 5. But you were not a regular attendee at school; your home life did not support this.
38You experienced severe learning problems during this time. You were diagnosed with ADHD and Oppositional Defiant Disorder. You were often teased and ostracised by your peers on account of your poverty.
39Unsurprisingly you struggled at school with concentration and behaviour, having to repeat grade 3 and having to leave part way through grade 5.
40You moved primary schools, did a brief period of secondary education and formally ended your education at age 14.
41You started using drugs. Cannabis at 14. Alcohol at 15. Amphetamines from your early teens. You report using amphetamines, MDMA and GHB socially. You started methyl-amphetamine in your mid-20s. The use of this drug you now say had a profoundly negative impact upon your mental state and general adjustment.
42In summary, your childhood could be characterised as deprived, traumatic and abusive. You were born into a family that was traumatised by the policy of the forced removal of Aboriginal children from their families. The terror and violence of those acts of removal were visited on you by the one injured by them. I will return to the legal significance of this later in these reasons.
43You now have two children, Cruz and Nahkayah, born of two relationships. Cruz is now 12 and Nahkayah is 8 .
44You have been subjected to family violence by male partners in different contexts.
Impact on victims
45I am obliged to take into account the impact of your offending on your victims. Those victims did not exercise the right to file impact statements on this plea. However, it is abundantly clear to me that this was a truly terrifying event for them, and particularly for Mr Gold who sustained injuries and received multiple blows from a group of men inside his house. It must have been terrifying.
Prior criminal history
46You have admitted a prior criminal history; you have served periods of imprisonment before and been subject to corrections orders, one of which was contravened (the other was community work for fine default). I have taken your prior criminal history into account in writing this sentence.
Nature and gravity of the offending
47I am obliged to assess the nature and gravity of the offending, as well as the degree of your responsibility and culpability for what you did.
48You felt aggrieved by what you saw as a gross invasion of your privacy. While this could be understood in the circumstances, it in no way justifies or excuses your behaviour; this is vigilantism. It is unacceptable to go about attempting to exact justice according to you against people who you think have harmed you.
49Although there is only one victim of Charge 2 there were two other people present and it happened in their home.
50Both events appear to be the result of significant thought and planning by you. You are the instigator or architect of both events. Your moral culpability is high. Although you were not physically present at either event, you are responsible for what took place there. And what took place on the day of the injury charges was a seriously nasty attack, involving the use of a weapon.
Parity considerations
51I note that two of your co-accused were sentenced in relation to these incidents and the status of the resolution of their cases is summarised in the Prosecution Opening at [5] and [6] of the ancillary matters. The prosecutor submitted that parity does have a role to play in the circumstances of this case. I note that Mr Martinow, pleaded guilty to aggravated burglary and intentionally causing injury in relation to the second incident and was sentenced to a total effective sentence of three years and eight months with a non-parole period of two years.
52Mr Williams entered pleas of guilty to conspiracy to commit burglary, and aggravated burglary and intentionally causing injury in relation to the second incident. He was sentenced to a total effective sentence of five years imprisonment with a non-parole period of three years.
53Mr Reker, I note, passed away while on remand.
54I have looked at the sentencing remarks in the other two cases. There are a range of significant differences from your case in particular, the difference in antecedents, the charges pleaded to, and the very significant matters in mitigation that you have brought in your case. In the end, I conclude that justice requires disparity between you and your co-accused; this is particularly in relation to the rehabilitation material.
Other sentencing principles
55Both offences that you committed carry a maximum of 10 years imprisonment as penalties. This indicates the seriousness with which Parliament regards this kind of offending. I regard the role for general deterrence in this sentence as significant and the same goes for denunciation. I regard the roles for community protection and specific deterrence as minimal for the reasons that I will set out in a moment. I regard the community to be best protected by the continued support of your rehabilitation.
Current sentencing practices
56I have had regard to sentences for similar offending and none of the cases I looked at are particularly like yours. None of them have your circumstances but I take them into account in a general way.
Matters in mitigation
Plea of guilty
57You entered a plea of guilty which at any time attracts a significant discount on your sentence. But at this time, when the administration of justice in Victoria is so burdened by the backlog of cases in the context of the COVID-19 pandemic authority now makes it clear that an additional and palpable benefit must be conveyed to you in the form of the reduction of your sentence.
Delay
58Your offending took place over three years ago. There are no subsequent offences. There is additional punishment for you in having these matters hanging over your head for three years. Further, you used that period of delay to advance your rehabilitation. I will return to that question in a moment. But both these aspects of delay will be taken into account on your sentence.
Psychological material
59On your plea, a psychological report prepared by Mr Patrick Newton and dated 7 December 2018 was tendered. It is extremely helpful in two ways, first because it summarises your history and articulates the particular and profound effects this history has had on you. Second, because it was prepared while you were still in custody and preparing at that stage for an application for bail and it therefore helps me understand the enormous distance you have travelled since the day you sat and spoke to Mr Newton and the day you sat at the table in front of the Elders and me for the sentencing conversation.
60I have taken Mr Newton’s report into account in its entirety. I was much assisted by it. In it, you are described as a woman in the grip of severe psychological problems. At paragraph [37] he writes:
…not only did Ms Eggleston feel deeply distressed and overwhelmed by the violence experienced, but she was also left feeling sullied and worthless on account of the denigration she experienced and sexual assault. These events dominated the formative years of her personality and resulted in profound problems with the development of her identity as well as assisting deficits in her social skills and ability to manage challenging interpersonal situations. They were rendered more difficult by her own severe mental health issues including ADHD, ODD, conduct disorder and signs of psychotic thought disturbance.
61There were many other parts of Mr Newton’s report which developed these themes.
62No particular ‘Verdins’ submissions were advanced. However, the matters in Mr Newton’s report clearly engage the principles in the case of Bugmy v R.
63I therefore take into account that the profound dysfunction, disadvantage and abuse experienced by you, during your formative years, are relevant to the evaluation of your moral culpability for this offending. None of those experiences were of your making but all played a very important role in shaping your response to the world. Your culpability must be different then to that of the person who committed a similar offence and did not suffer the terrible things imposed on you by your environment in your childhood years. This is an important matter in the mitigation of your sentence.
64Often however the application of the Bugmy principal in mitigation will also be balanced by the competing need for the protection of the community.
65So at this point it is appropriate that I deal with the rehabilitation that you have achieved, and why I consider the role the community protection in this case is so deeply attached to your rehabilitation.
66I will start this by first setting out a brief chronology of your time on bail. Bail was granted to you on 18 January 2019, some 100 days after you were first arrested.
67One month later, on 15 February 2019, you were remanded after the Director of Public Prosecutions appealed against the grant of bail made in the Magistrates’ Court.
68Five months after that, on 15 July 2019 you were again granted bail, this time by his Honour Judge Taft, another judge of this court. That bail required you to participate in the Odyssey House residential rehabilitation program. That bail was subsequently revoked on 7 August 2019 by another judge of this court. It seems that whatever was provided at Odyssey House was not the key for you at that time.
69However, bail was granted again by her Honour Judge Gwynn of this court to participate in the Winja Ulupna residential rehabilitation program.
70A further application to revoke your bail was made on 27 February 2020; that application was refused, and your bail was varied to include a special condition that you attend the Uniting Care Regeneration day-hab centre every day from 9.30AM to 3 PM.
71Bail was varied again on 9 July 2020, to allow you to do various other things including to stay at your sister’s house and variation to a curfew condition to allow you to attend at hospital for a period where your daughter was under medical care.
72I pause here to note, there is a Japanese art of crockery repair known as Kintsugi or ‘golden joinery’. The process involves mending the areas, for example in a broken vase or teapot, with a special lacquer that is mixed with powdered gold or silver. The cracks, generally golden, are shiny and intended to be visible after the repair. The philosophy behind this process is that the breakage and repair form part of the history of an object, making it more beautiful and stronger, rather than a repair being something to disguise.
73When I consider the history of your bail, and the determination that you have displayed after each failure, it reminds me of that philosophy of repair. Your history has made you stronger.
74A letter authored by Mariah Andrews, of the Winja Ulupna Women’s Recovery Centre dated 30 January 2020, and the subsequent letter from Bea Edwards dated 29 June 2020, record that you completed a 16-week residential program by 9 January 2020, but stayed on additional several months ultimately finishing in April 2020. You continued attending day-hab.
75The next repair was that you got custody of your children back. On your plea, an enormous amount of positive material attesting to your rehabilitation was provided. It is astonishing, the array of positive material attesting to your persistence, resilience, and determination.
76Perhaps the loveliest document of them all though was a simple court document, a certified extract from the Children’s Court family division. The extract, dated 29 April 2020, records that a protection application for emergency care of your children dated 26 October 2018 is dismissed, and that the protection application is ‘struck out and withdrawn.’ These words that appear quite simple are in fact the best indication of the kind of work that you put in as well as the best indication of its rewards.
77Of course, there are other indications of your success. You’ve moved to your own home in Bendigo where your children now go to school. You have full-time employment as a supervisor in a project for identifying Aboriginal cultural heritage sites in the context of a bushfire recovery project. Dozens of letters attesting to your progress after your release from custody, too many to mention here, but all recorded in the exhibit list on your plea.
78One more indication of your enormous progress is the calibre of the people who you gathered around you to participate in the Koori Court sentencing conversation, many of whom had travelled quite a long way to be with you on the day and I note are here again.
The Sentencing Conversation.
79Turning now to the Koori Court sentencing conversation. Uncle David Farrell and Auntie Pam Pedersen were the Elders who led this conversation. I observed how they talked to you and how the community of people you gathered around you talked about you. Your mother Raylene, your stepfather Peter, your employers Troy and Andrew Walker, Madeline Rogers from Bendigo and District Aboriginal Co-op, and a family services worker, Sivan Barak. Also, Mark Little, an Aboriginal Justice worker who drove you here and offers his ongoing support.
80I also listened to you. You spoke courageously. You described yourself as still recovering. You spoke about the shame you had for what you did and how you were living and how you thought, mistakenly as it turned out, that you had to face those problems alone and when you couldn’t do so you failed and you felt worse.
81You said that on the day of your arrest you’d dropped off Cruz to go on school camp. You were arrested that day. And so, he feels he doesn’t want to go on school camps anymore because he’s worried he might lose you again. I mention this because it indicates how prepared you were during the Sentencing Conversation to speak of your lowest and most private griefs.
82You spoke with great gratitude and appreciation of the people who had, since you commenced this work to repair your life, supported and loved you and encouraged you and who brought you back to the culture and family and country that sustains you. Your employers, Troy and Andrew Walker, spoke highly of your competence in a supervisor’s role and they clearly have confidence in you.
83Madeline Rogers spoke about you resetting everything, home, school and work all at once, and of your ‘headstrong’ approach to that enormous task. Peter Ellis spoke of your ‘unbelievable’ progress and his pride at your having stable work.
84It seems insufficient to say your rehabilitation has been remarkable. You’re smart enough to know that it is still continuing and that you still need good people around you and that it’s not necessarily all plain sailing from here. There will be times when it is hard again. There is still work to be done. Perhaps there always will be. You have your children now all under your roof, and you have a place in the world where you are needed and safe and loved. Like the vase or teapot repaired in the Japanese-style you are stronger, and more valuable for all the cracks that you, with the help of your community, have repaired.
85At the hearing, the Elders predicted that you might one day have a leadership role in your community or in the Koori Court and I can see why they might say that.
86The prosecution also acknowledged the very significant matters in mitigation in your case and conceded that imprisonment in combination with a Community Corrections Order was within the legally acceptable range.
87I take your courageous participation in the Sentencing Conversation into account in arriving at your sentence. It would’ve been much easier for you to sit silently through your plea and it would certainly have been easier not to face the Elders, Aunty Pam and Uncle David, as they told you what they thought of your offending.
Disposition
88Ms Egglestone, I invite you to stand up.
89On Charge 1: conspiracy to commit burglary, you are convicted and sentenced to a period of imprisonment of 295 days and a Community Corrections Order of 24 months.
90On Charge 2: intentionally causing injury, you are convicted and sentenced to a period of imprisonment of 295 days and a Community Corrections Order of 24 months.
91The sentence on Charge 2 is to be served wholly concurrently with the sentence on Charge 1, resulting in a total effective sentence of 295 days and a Community Corrections Order of 24 months.
92I declare pursuant to s18 of the Sentencing Act that you have already served 295 days as part of this sentence.
93I also declare that pursuant to s6AAA of the Sentencing Act that had you been found guilty after trial rather than pleaded guilty I would have imposed a period of imprisonment of four years with a non-parole period of three years.
Community Corrections Order
1I am now going to read you the conditions of the Community Corrections Order, it will be for a duration of 24 months.
2You will be first subject to the standard conditions of a CCO. That means that you must not commit any other offences that are punishable by imprisonment during the 24-month period. If you do, you will be brought back to court before me, and I would have to resentence you on the original charges.
3You must report to the Bendigo Community Corrections Service within two working days of today by telephone. I am aware that the manager of BDAC will liaise with your Corrections contact so that whatever is offered to you is in the form of culturally appropriate programs.
4You are required to advise your supervisor in the Corrections office of any change of address where you are living or working and you must do so within two clear working days.
5It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer. You are not able to leave the State of Victoria without their prior permission and that is for the whole 24 months.
Special conditions
6You will be required to complete programs to further address your drug use and alcohol use.
7You must report for supervision with your case manager as directed.
8You must submit to assessment and treatment for alcohol and drug dependence.
9You are required to submit to mental health assessment and treatment.
10I do not attach a community work condition. I have considered doing so, but regard the circumstances are best served by your continuing to work in your paid employment, which is quite enough while caring for two children as
well.11I also require you to participate, occasionally, in judicial monitoring. That means you have to come back to court to tell me how you are going and I will set down a date for 6 months' time for that to happen.
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