Director of Public Prosecutions v Eru

[2016] VCC 1558

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01166

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAASHA ERU

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 October 2016
CASE MAY BE CITED AS:	DPP v Eru
MEDIUM NEUTRAL CITATION:	[2016] VCC 1558

EX TEMPORE REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Burnside
For the Accused	Mr M. Kozlowski

HIS HONOUR:

1Taasha Ngahuia Eru, you have pleaded guilty to one charge of theft and one charge of armed robbery.  The charge of theft carries with it a maximum penalty of 10 years imprisonment and armed robbery 25 years imprisonment.  In addition you have pleaded guilty to one summary offence of committing an indictable offence whilst on bail which carries with it a maximum penalty of 3 months imprisonment and/or a fine.

2The circumstances surrounding this offending are set out in the summary of prosecution opening which I rely on heavily for my purposes in these sentencing remarks.

3On 22 December 2015, between 1.30 pm and 2.45, a vehicle, being a blue Hyundai sedan was parked outside 16 Cummins Street in Brunswick West.  The victim, Paigan Brady had left her car keys on the stool outside the front of the property and went inside.  She returned shortly thereafter to find that they keys and her vehicle had been stolen.

4Five days later, on 27 December at approximately 5.30 am, you and the co-accused Najat Elhaj arrived at the victim's home address of Unit 5 17 Glen Ebor Avenue, Blackburn in the stolen vehicle after the vehicle had broken down.  Your victim, Elizabeth Raphael, who lived at that address, knew you or knew of you and the co-accused by first name having met you both on previous occasions.

5The two of you requested her to take you both to a local service station to buy oil for the vehicle which had broken down around the corner from her home.  All three of you got into the victim's vehicle, a Hyundai Excel. She drove you to the 7/11 convenience store located on the corner of Springvale and Burnt Street in Nunawading.  Your arrival was captured on CCTV footage.

6There was no oil sold there so you left the store and went to the Coles Express service station located at the intersection of Springvale Road and Maroondah Highway in Nunawading.  Your attendance there was also captured on CCTV footage.  There, you purchased oil from that service station.  You all again got into the victim's vehicle and drove to where your vehicle, the stolen vehicle, had broken down, outside 17 Parkside Street in Blackburn.

7Despite the owner of the car, Elizabeth Raphael telling you not to, you filled the car with oil but observed that it was all draining out the bottom and an altercation occurred between the three of you.  You wanted Ms Raphael to drive you back to Carlton but she refused.  Your co-accused has taken Ms Raphael's car keys from her hand, passed them to you but the victim accessed her vehicle and locked the door.

8You gained access to the passenger side of the vehicle using the keys and whilst holding a screwdriver, threatened Ms Raphael, stating to her, "Get out of the car or I'll stab you in the neck."  You were holding a screwdriver very close to her neck and your co-accused was encouraging you saying, "Stab her, stab her."

9Your co-accused then put her hands in the driver's side window that was partially opened and pulled on it, causing it to smash.  Your co-accused then opened the driver's side door and started trying to drag Ms Raphael out of the car whilst you were in the passenger seat trying to kick her out.

10Ms Raphael has fallen to the ground which was covered in broken glass and sustained multiple cuts to her legs.  During the scuffle she also sustained an injury to her leg from the screwdriver that you were holding.  You then, with your co-accused entered her vehicle and drove off.

11Those are the circumstances concerning the theft of the motor vehicle on
22 December and the armed robbery five days later on 27 December 2015.

12You were later arrested on 2 January 2016 and interviewed at the Moonee Ponds Police Station where you made full admissions to the incident but stated that you did not have a screwdriver during the course of the robbery.

13It is accepted that the injuries suffered by her arose from the acts of your co-accused, not you.

14In her victim impact statement, your victim Elizabeth Raphael wrote among other things:

"I really thought I was going to die.  It was terrifying, I literally thought I wasn’t going to get out of it.  I have never been so terrified.  I was screaming for help, crying out and it felt like forever until someone came to help me.  I feel that if someone hadn't come at that time, I would have been stabbed and left to die in the gutter.  I was in absolute shock, I didn't think I was getting out alive."

15As to the consequences, she wrote:

"I feel more vulnerable in public and don't use public transport anymore in case I run into the offender.  Even in general I feel more vulnerable."

16Later on she writes:

"When I'm at home I'm scared someone will come, but when I'm not at home I want to get back there in case someone is there.  I feel unsafe in my own home.  I am very scared at night, I am worried that someone will come into my home while I’m sleeping.  I’m more cautious in many ways and feel less trusting of people, and I now analyse every situation more."

17Still later she writes:

"I have started to pick at my skin due to the anxiety which has added to my scarring.  It was a physical release for all stress and worry I have in my head.  I was already on anti-depressants but this incident made my depression so much worse.  There was days I couldn't get out of bed."

18She concludes by writing:    

"I used to do volunteer work but have since stopped as I didn't have my car anymore to get there and I couldn't get public transport.  When I was there I was more suspecting of the people that were there.  I was doing this as a stepping stone to get a job, but I feel like I've gone backwards now.  Even though I know I'm capable, I don't feel adequate.  I was trying to change my life for the better but now I feel further back than I was with such little motivation and confidence."

19It is plain from that victim impact statement that the consequences to your victim have been and will continue to haunt her in her everyday life.  You were prepared to hold a screwdriver close to her and threaten her with it.  It is fortunate you in the end did not use that screwdriver to inflict any injury on her.

20She was simply trying to help you out of the situation but unsatisfied with that, you made demands that she was not prepared to comply with as was her right.  You then took her own car.

21This was a callous act by you and your co-accused.  She sought safety in her own car but was in the end pushed or dragged out of her own car where she was seeking safety.  Little wonder she is now suffering from all the matters she has referred to; feeling less secure even in her own home and less secure still outside of her home.

22You come before me having been dealt with in previous court appearances at the Magistrates' Court on no less than four occasions.  During those four occasions, you were dealt with for no less than 31 charges including some 12 shop steals, two unlawful assaults, one resist a police and a number of offences of failing to appear on bail and four offences relating to breach of bail.

23Whilst I said that this was relatively low offending during the course of the previous plea on 18 August 2016, and that fact was not argued by Ms Burnside, nonetheless offending such as this is serious as it illustrated by the fact that you have committed an armed robbery which carries with it the second highest maximum penalty that Parliament prescribes, 25 years.

24In addition, you have been dealt with by way of community correction orders on previous occasions and on no less than two occasions you have been dealt with for failing to comply with community based orders.

25I have the benefit of Mr Kozlowski's submissions which set out your background, as does the Forensicare report of psychologist David Wilshire dated 12 October 2016 which report I will exhibit as Exhibit TE1.

26You are now 34 years of age and a mother of five children.  You were born in Wellington, New Zealand.  Both your parents are deceased; your mother in 2008 and your father in 2015.  You have ten siblings.  Your parents separated when you were but four years of age.  You were very close to your mother and you struggled to cope with her death.  Your background is extensively set out in the psychological report which I will not repeat in full.  You experienced sexual abuse when younger by a cousin once and also once by your mother's brother when you were aged 12 or 13 years of age.

27You came with your mother to Australia at age 13.  Mr Wilshire writes:         

"When asked how she spent her time after arriving in Australia, she responded by saying 'bludging', and that she’d started using drugs, alcohol and inhalants and generally getting into mischief."

28You went to school to Grade 8 level but ceased when you came to Australia.  You said to Mr Wilshire that you rebelled and "didn't want to be here", that you felt that you did not "fit in".  You commenced using cannabis, benzodiazepines and heroin at the age of 11 and methamphetamine at the age of 15.

29Two of your children, aged 16 and 15 have resided with your second husband, Casey Davis, with whom you have three children, who had care of them until his recent incarceration.  As a result all of your children are in state care.

30As to your psychiatric and psychological issues, Mr Wilshire writes:     

"Overall, other than her experience of anxiety and depressive symptomology, there was no evidence that Ms Eru suffers from any serious mental illness."

31As to the risk factors he states:

"Taken together, Ms Eru’s score on the LS/RNR places her in the high range of risk and need. On the positive side, it appears she does not have a problem with alcohol use, has some support from her sisters and apparently has some non-criminal friends. She also gave the impression that she wanted to try and turn her life around in a more positive direction.”

32He concludes in the two final paragraphs of his report with the following:

"Formal risk assessment on the LS/RNR (Level of Service/Risk, Need, “Responsivity) indicated that she falls in the high range of risk and need in terms of reoffending. Significant areas of risk/need include her past criminal history, limited education/employment, and her drug problem. Other issues identified include anger management deficits, anxiety and depressive symptomatology, and possible unresolved grief and trauma.

“In summary, she would likely benefit from psychological counselling to address the issues that confront her as well as drug rehabilitation to develop some appropriate coping strategies and indeed begin to make some ‘positive input into my community’. In her own words, ‘actions speak louder than words” and one would hope that she can, with assistance, make the necessary changes to her life. In particular, she said she would like ‘to go out and be a better mum and start looking after the kids’."

33Surely that last motivation will prove to be a powerful one.

34You have a responsibility as a mother to no less than five children.  You cannot in any way assist them by offending and finding yourself in gaol.

35The choices for you of course are stark.  Continue on your previous lifestyle, bludging, to use your own words, offending, taking drugs.  Or make a change.  The choice is yours.  I am going to give you an opportunity to give effect to what you said to Mr Wilshire, "Actions speak louder than words."

36Offending such as this must be denounced.  General deterrence, deterring others, is the most significant factor in sentencing you and also to a degree, ensuring you do not reoffend, by deterring you from reoffending.

37Just punishment must also be taken into account.  To your credit you immediately confessed to your involvement in these matters albeit denied that you had the screwdriver in your hand.

38You have pleaded guilty at the first available opportunity and I am satisfied that you have some insight into your offending and some remorse for what you have done.  By pleading guilty you have also saved the expense of a contested committal hearing and a trial.

39Taking all these matters into account, subject to you consenting to entering into a community corrections order for a period of two years with conditions that you perform 200 hours of community work, that you receive treatment for rehabilitation in relation to drugs, mental health and programs aimed to reduce your offending and that you be under the supervision of community corrections for a period of two years, I intend to release you on such community corrections order combined with a period of imprisonment of six months, which because you have now served pre-sentence of 195 days, entitles you to be released shortly.

40There are, as I understand it, other matters before the Magistrates' Court on 3 November.  Doubtless the sentencing Magistrate will take into account that you have served in excess of the six months that I have imposed in circumstances where I must declare the whole of the 195 days.  Of course the Magistrate has the discretion to take that additional period into account pursuant to the reasons or reasoning of the Court of Appeal in R v Ranzella as well as matters relating to totality of sentencing, but that is a matter for that judicial officer.

41Are you prepared to enter into that community corrections order?

42OFFENDER:  Yes, Your Honour.

43HIS HONOUR:  You understand as I said to you yesterday, if you breach it by not performing the work, by not engaging in the treatment and rehabilitation and all the assessments that are required to achieve that, you will be brought back before me and the high probability will be that you go back to gaol for a period much longer than the period that you have already served.  Do you understand?

44OFFENDER:  Yes, Your Honour.

45HIS HONOUR:  All right.  There is also a period of disqualification that I think I must impose in relation to the theft of the motor vehicle.

46MS BURNSIDE:  Yes, Your Honour.

47HIS HONOUR:  I will, in the circumstances cancel her licence and disqualify her for a period of 12 months.

48MR KOZLOWSKI:  As Your Honour pleases.

49HIS HONOUR:  The sentence I intend to impose is an aggregate sentence covering both charges on the indictment and the summary offence.

50MS BURNSIDE:  Yes, Your Honour.

51HIS HONOUR:  Yes.

52MS BURNSIDE:  Also the forensic - if you could just announce the forensic sample ‑ ‑ ‑

53HIS HONOUR:  I think I already have.

54MS BURNSIDE:  Sorry.  Of course provision of s.6AAA,
Your Honour, in the event that she has now pleaded ‑ ‑ ‑

55HIS HONOUR:  Yes.  But for the pleas of guilty I would have imposed a sentence of 3 years with a minimum of 2 years.

56MS BURNSIDE:  If Your Honour pleases.

57HIS HONOUR:  There is something else there.  Yes, does that cover it?  I have got a funny feeling - is there a disposal order in relation to the ‑ ‑ ‑

58MS BURNSIDE:  No, there is no disposal or forfeiture orders here, Your Honour.

59HIS HONOUR:  That is what I was thinking.  Any corrections to any of the factual matters?

60MS BURNSIDE:  No, Your Honour.

61HIS HONOUR:  Or omissions?

62MS BURNSIDE:  My instructing solicitor asked whether or not she had been convicted but I thought that was implicit.

63HIS HONOUR:  Yes.

64MS BURNSIDE:  Yes.

65HIS HONOUR:  It will be with conviction.

66MR KOZLOWSKI:  On the issue ‑ ‑ ‑

67HIS HONOUR:  It has to be because I have imposed a period of imprisonment.

68MS BURNSIDE:  Yes.

69MR KOZLOWSKI:  The only issue, Your Honour, that I can see, is when is she meant to be reporting to Corrections?  The pre-sentence report suggests the 20th which is in two days' time.  That is not going to happen because she is in custody at least until 3 November.

70HIS HONOUR:  Yes, upon release.

71MR KOZLOWSKI:  Thank you, Your Honour.

72HIS HONOUR:  How long is it normally?  Within two days of release from custody.

73MR KOZLOWSKI:  Thank you, Your Honour.

74HIS HONOUR:  I think, is it - what is the most likely place?  Carlton?

75MR KOZLOWSKI:  Yes.

76HIS HONOUR:  Yes, all right.  I will ask that a copy of the transcript of my reasons for sentence be prepared with as much dispatch as it can be for use at the - if needs be - at the Magistrates' Court.  What the Magistrate makes of it is entirely a matter for him or her.

77There is power to allocate up to a certain number of powers the - to treatment and assessment which is what I have been doing, only recently because I only discovered I had the power recently.

78MS BURNSIDE:  Yes, Your Honour.

79HIS HONOUR: Now that is under the Sentencing Act. I just cannot remember what - I just wonder what the section is.

80MS BURNSIDE:  No figure has been specified in the report, Your Honour.

81HIS HONOUR:  No, it is a matter for me.

82MS BURNSIDE:  Yes, Your Honour.

83HIS HONOUR:  Anyone found where the section is?

84MS BURNSIDE:  No, I have not, Your Honour.

85HIS HONOUR:  Here it is.  Section 48CA(2), "The Court may determine that some or all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purpose of the unpaid community work condition."  So I will make an order that 50 of the hours of unpaid community work made under s.48CA(2) of treatment and rehabilitation be counted as performance of the unpaid community work.

86MS BURNSIDE:  Yes, Your Honour.

87HIS HONOUR:  Yes, if you get Ms Eru to sign the orders.  Thank you,
Ms Burnside.  Thank you, Mr Kozlowski.

88MR KOZLOWSKI:  As Your Honour pleases.

89MS BURNSIDE:  Thank you, Your Honour.

90HIS HONOUR:  Thank you for your assistance.

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