Director of Public Prosecutions v Evans
[2021] VCC 1635
•21 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WODONGA
CRIMINAL JURISDICTION
CR 21-01161
CR 21-01357
CR 21-01162
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE EVANS RACHEL LOUISE CHARUBIN |
| TORI ROSE McGUIRE |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Shepparton |
DATE OF HEARING: | 23 September 2021 & 7 October 2021 (Evans) 7 October 2021 (McGuire & Charubin) |
DATE OF SENTENCE: | 21 October 2021 |
CASE MAY BE CITED AS: | DPP v Evans & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1635 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea – Co-accused – Reckless conduct endangering life – Possession of drug of dependence – Firearm – Vigilantism – Deprived upbringing – Psychiatric Reports – Mental health – Amelioration of sentence – Remorse – Good prospects of rehabilitation
Legislation Cited: Firearms Act 1996 (Vic)
Cases Cited: DPP v Worboyes [2021] VSCA 169 - Bugmy v The Queen (2013) 249 CLR 571 - R v Verdins [2007] VSCA 102 - Kelly v The Queen [2020] VSCA 171, Cooper v The Queen [2020] VSCA 288, DPP v O’Kelly [2017] VCC 240, DPP v Van Abel [2017] VCC 1601, DPP v Smith [2017] VCC 1789, DPP v Saffron [2018] VCC 472, DPP v Vankerkoerle [2018] VCC 680, DPP v Le [2018] VCC 1299, DPP v Tsiavis [2018] VCC 1396, DPP v Templar [2019] VCC 1925, DPP v Lea [2021] VCC 412 - R v Roach [2005] VSCA 162
Sentence: Mr Evans – Aggregate 30 months imprisonment, 16 months non-parole period Ms Charubin – Aggregate 30 months Community Corrections Order
Ms McGuire - Aggregate 30 months Community Corrections Order, total of $550 in fines
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Farrell | Office of Public Prosecutions |
For Accused Evans | Ms M. Sargent | Gallant Law |
| For Accused Charubin | Mr L. Slater | Slater & King Lawyers |
| For Accused McGuire | Mr T. Fitzpatrick | Clancy Solicitors |
HIS HONOUR:
Introduction
1Jamie Evans you have pleaded guilty to 3 counts of reckless conduct endangering life. You have also pleaded guilty to one charge of committing an indictable offence whilst on bail.
2Tori Rose McGuire you have also pleaded guilty to 3 counts of reckless conduct endangering life.
3Rachel Louise Charubin you have pleaded guilty to 3 counts of reckless conduct endangering life.
4In addition, you Tori McGuire have pleaded guilty to 2 counts of possession of a drug dependence namely MDMA, and cannabis.
5The circumstances of the offending were set out in the two prosecution openings which were read in open court on the plea of you Mr Evans and subsequently on the plea of you, Ms McGuire and Ms Charubin. I incorporate them by reference.[1]
6In brief outline the offending occurred on 19 and 20 September 2020 in Wodonga. The three of you are jointly charged with reckless conduct endangering the lives of the occupants of three houses in Wodonga by you
Mr Evans firing a .22 calibre firearm at each of the three houses. The three of you were in a motor vehicle owned by Ms McGuire, with you Ms Charubin in the front passenger seat and you Mr Evans in the rear passenger seat.7Charge one relates to the property at 27 Wornes Drive. The property was occupied by a Ms Colson but she was not present at the time. At around
9 pm on 19 September, a bullet was fired through a lounge room window. The occupant returned later that night and located the bullet hole and the police recovered the projectile. The charge here as that your conduct may have placed persons in danger of death.[1] Exhibit A on the Plea of Evans & Exhibit A on the Plea of Charubin & McGuire.
8Following that incident you all returned to Ms Charubin’s home in Wodonga. At around 1 am on Sunday 20 September the three of you again left the house in Ms McGuire’s car, travelled to McDonalds and then drove to Gilbert Street in Wodonga. Ms McGuire you stopped the car at the driveway of unit 2/4 Gilbert Street and you Mr Evans fired the gun from the vehicle towards the unit but missed the property. One of the occupants heard something hit his fence that night. No bullets were found. There was some footage of the incident from a neighbouring address. The three of you then returned to Ms Charubin’s house.
9At approximately 4:45 am the three of you again left the house and drove to Georgina Street and stopped outside number 9. You Mr Evans got out of the car and walked towards the front bedroom window of the property at
number 7 and fired a bullet through the front bedroom window. It went across the room and ricocheted off a door frame of the walk-in robe at rib height. The occupants Ms Bruno and Mr Spittal were present in the bedroom. In relation to charges two and three the allegation is that the three of you recklessly engaged in conduct that placed the occupants at risk of death.10You Mr Evans were later identified from the CCTV footage taken near the Gilbert Street property. Your car Ms McGuire was identified by police on Monday 21 September. You gave a statement to the police stating that you had loaned your vehicle to another person Mr Paige the previous night. You told the police that a Mr Cameron was terrorising everyone. On 24 September all three of you were arrested by the police. When you were arrested Ms McGuire you were found in possession of a small quantity of cannabis and a small quantity of MDMA which gives rise to the two possession charges. You
Mr Evans were arrested on your way into New South Wales where you are living at the time.11The police conducted three records of interview. In your record of interview
Mr Evans you admitted that you were present in the vehicle with the other two accused that night. You claimed that Ms Charubin had been threatened by a Mr Cameron and that he had been releasing gunshots, including at the properties that you had in fact fired at. You claimed that you had let off two firecrackers as a deterrent. You denied being at the three properties the subject of the charges. You also denied being in possession of a firearm. You said that you had let off two firecrackers so that he might back off.12I am satisfied that in her record of interview Ms Charubin told the truth, which was that the shots were meant to be warning shots to Mr Cameron who had come to her house. She was scared of Mr Cameron and you Mr Evans had come around to her property to make her feel a bit safer. Ms McGuire was there as well. It was then discussed that the three of you would find Mr Cameron and let a couple of warning shots go just to let him know that he was not ruling the roost here. Subsequently, Ms Charubin went with the two of you as you Mr Evans fired the three shots that are the subject of the charges.
13You Ms Charubin made a statement to the police affirming that the contents of your record of interview were true and correct.
14When you were first interviewed you Ms McGuire told the police a false story that you had lent your car to someone else on the night in question.
15Subsequently you participated in a further record of interview where you said you were scared of Mr Cameron as you had been told that he and another person were going to take you hostage, and one of his associates had been at your accommodation and was captured on a CCTV camera there. You admitted that you had driven around to the addresses and that Mr Evans had fired towards the properties. You were in shock in relation to attending the property the subject of charge 2 as you knew one of the occupants. You denied actually seeing the firearm. You made a full statement to the police as to your involvement.
16Mr Evans you were remanded in custody, extradited from New South Wales and have remained in custody since your arrest. Your matter was the subject of two committal mentions and it resolved on 23 June this year when pleas of guilty were entered.
17The matters involving you Ms Charubin and Ms McGuire were also the subject of two committal mentions and pleas were entered on 2 June this year.
18No Victim Impact Statements have been filed
Seriousness of the Offending
19Each of your counsel did not dispute the seriousness of the offending here. To attend at residential properties and then discharge a firearm wherein in two cases the bullets entered the houses is inherently dangerous. Also relevant is the motivation for the offending. As submitted by the prosecutor, there is an element of vigilantism here. While I accept from the records of interview of
Ms Charubin and Ms McGuire that the two of you both feared Mr Cameron, this provides no basis for the conduct you all agreed to engage in. Whether there was any basis for your fear of Mr Cameron the Court is not in a position to determine. In your statement, Ms McGuire, you make hearsay references to
Mr Cameron and his reputation in relation to stealing drugs from other people. The three of you chose to take the matter into your own hands. You,
Ms Charubin, indicated in your record of interview you did not want to show that you feared Mr Cameron. The charges against you are of reckless endangerment. Recklessness has a range of culpability. The culpability of a particular offender charged with reckless conduct increases as the degree to which the offender has adverted to the actual consequences of his or her conduct increases.20Here you Mr Evans referred to some form of warning to Mr Cameron. You
Ms Charubin stated that they were meant to be warning shots and you only became aware that the shots had struck the houses the following morning. You Ms McGuire stated that you thought that Mr Evans could help the two of you try to scare away Mr Cameron if you found him. You Ms McGuire realised that the shot in charge one was likely to be towards the house. You admit that you knew that Mr Evans had fired a gun at someone’s house.21From the statements of you Ms Charubin and Ms McGuire it is clear that you agreed with Mr Evans that he should fire warning shots at locations where
Mr Cameron was likely to be present.22On the plea the circumstances under which you Mr Evans procured the firearm did not emerge. It was common ground however that you were the person who fired the gun. Thus your culpability is greater than that of your two co-offenders notwithstanding that there was a joint agreement as to the location where you sought to warn Mr Cameron. Thus you had a choice as to whether to fire through a window, into a doorjamb, or even under an eave. Bullets were fired through windows in relation to charges 1 and 3 and they provide a basis for an inference that your culpability for reckless conduct is greater than that of your two co-offenders as you must have been aware as to the consequences of you discharging the firearm towards the windows in the properties involved in charges 1 and 3.
23On this basis I find that notwithstanding there is a joint criminal enterprise here to engage in reckless conduct endangering life, I am satisfied that you Mr Evans bear a higher degree of culpability as you were in a greater position to advert to the actual consequences of your conduct in discharging the firearm when your two female co-offenders remained in the vehicle.
24I turn now to consider matters personal to each of the three of you.
Prior convictions
25Mr Evans, for a 30 year old you have a relatively limited criminal history. When you were aged 18 and 19 you were before the Magistrates’ Court on traffic charges and no conviction was entered. On 16 January 2018 on charges of criminal damage and unlawful assault both matters were adjourned without conviction for a year upon payment of $500 to the CFA.
26Your most serious appearance before the Victorian courts was on 20 January 2019 when you were aged 27 before the Wodonga Magistrates’ Court on charges of intentionally causing injury, committing indictable offence on bail, two charges of failing to answer bail, and recklessly causing injury you were convicted and placed on a 24-month Community Corrections Order including drug treatment. You were also placed on a similar order for refusing to provide a sample of oral fluid, possessing methamphetamine and possessing cannabis.
27In addition, on charges of possessing housebreaking implements, two charges of possessing a controlled weapon, one charge of possessing an unregistered category-e handgun, one charge of possessing ammunition and one charge of possessing a prohibited weapon you were placed on a two-year Community Corrections Order.
28Thus, on 20 January 2019 you faced the Court for firearms charges. Ten months later on 11 December 2019 you were before the Albury Local Court on charges of possessing ammunition, possessing an unauthorised firearm, and you were sentenced to a 7-month intensive Corrections Order. You had been in custody at that point for 3½ months. Further, on what appeared to be domestic violence related charges you were placed on a 12-month Community Corrections Order for contravening an intervention order, destroying or damaging property, and stalking intending to engender fear.
29The firearms offences in New South Wales in December 2019 made you a prohibited person under the Victorian Firearms Act at the time you committed the offences that I am dealing with.
30Your offending in September 2020 thus breached the New South Wales Community Corrections Order although apparently no breach proceedings are outstanding.
31Your offending in September 2020 also technically breached the Victorian Community Corrections Order that you had been placed on back in January 2019 however this order had been the subject of breach proceedings issued earlier due to non-compliance. Your non-compliance was on the basis that after the Order was imposed you went into custody in New South Wales and thus were not in a position to comply with the terms of the Order. These breach proceedings remain before the Magistrates’ Court.
32Your limited criminal history, Mr Evans, is relevant in sentencing here as you had not responded to the sentencing dispositions imposed upon you in February 2019 in Victoria and in December 2019 in the Albury Local Court.
Subjective Matters
33Mr Evans, your personal circumstances are set out in your plea submission and in the two psychological reports tendered on your behalf (and I incorporate them by reference).[2]
[2] Exhibits 1, 2 & 4 on the Plea of Evans.
34You were brought up in the Wodonga area as one of five children. An older sister died when she was aged 4 and you were aged 2. Your mother was in an abusive relationship and your father was violent to her and had a history of drug abuse. You were placed with welfare from time to time due to violence perpetrated on your mother. Your parents eventually separated when you were aged 14. Notwithstanding this, your father still stalked the family. Eventually your father ceased involvement with your mother and your life when you were 16. You were forced to take a protective role in the family, keeping your mother and younger siblings safe. Your mother fell into drug use when she became involved in another abusive relationship. Notwithstanding your dysfunctional upbringing you left school at year 10 and then joined the workforce and had consistent employment until 2019. You moved out of home in 2017 and at some stage around that time you joined a bikie club where you were introduced to drugs, violence and trauma. You then sought to leave the club.
35Your counsel relied on two reports from two psychologists, both of whom had diagnosed you as suffering from PTSD as result of your history of trauma. It is the opinion of Ms Jackson that your substance abuse problems are a means of problem avoidance and they have impacted on your ability to make rational and informed choices.[3]
[3] Exhibit 2 on the Plea of Evans.
36Ms Fleming diagnoses you as having PTSD and a stimulant use disorder. At paragraph 71 of her Report Ms Fleming says: “Mr Evans is a 30-year-old male with a complex psychiatric profile predisposed by a history of childhood trauma, instability, disrupted attachments, interrupted education and continued exposure to violence as an adult. His functioning within society has been impacted by these early life experiences and contributed to his criminal and antisocial lifestyle, and maladaptive response to life stressors (i.e. polysubstance use as a coping strategy, suicide attempts when overwhelmed). He has been exposed to significant violence at home and then within his social network as part of a motorcycle club. Violence has become a form of communication and suppressed opportunities to develop healthier interaction styles”.[4] She goes on to say that your functioning in society has been impacted by these early life experiences. She indicates that you require addressing of your underlying mental health issues and your chronic maladjustment rather than self-medicating through the use of drugs. She is of the view that you require at least 12 months of regular psychotherapy sessions. So, it is clear that you require, in a sense, treatment for both your mental health and for your drug addiction issues.
[4] Exhibit 4 on the Plea at [71].
Prospects of Rehabilitation
37Your relatively limited criminal history Mr Evans is such that when you are able to address your mental health issues and drug addiction problems you have reasonably good prospects. It is obvious that you have fallen into drug use and criminal activity in your mid to late 20s.
38You have not previously been sentenced to a term of imprisonment. The period on remand has been the longest period that you have been in custody. It is also the longest period that you have been drug free since your early 20s.
39I had you assessed for a Community Corrections Order. The Report of the community corrections officer indicates that you in fact did respond to the CCO that was imposed on you by the Wodonga Magistrates’ Court in February 2019 and completed nearly a third of the community work ordered. You also attended appointments and engaged with your supervision. You did indicate to your case manager in August 2019 that you had returned to drug use following a break-up of your relationship. It seems that soon after that you ended up in custody in New South Wales.
40You have a history of employment after completing year 10 at school. When you became involved with a motorcycle club you fell into the use of methamphetamine and criminal company.
41On the report of Ms Jackson, you require significant mental health support to treat long-standing depression and PTSD. You also need support for drug and alcohol issues.
42Ms Fleming is of a similar opinion and suggests you require intensive psychotherapy and alcohol and drug dependency support.
43You presently have the support of your partner with whom you have a five-year-old child. You have been living in Albury. You have only been able to interact with the child and your partner by way of Zoom conversations for the past
12 months since you have been on remand. You also have the promise of work with your partner’s father upon your release. All these matters lead me to the conclusion that you have reasonably good prospects of rehabilitation.Sentencing Submissions
44It was the prosecution submission in relation to you Mr Evans, and indeed the other two co-offenders, that the seriousness of the offending here called for the imposition of sentences of imprisonment on each of you with the setting of a non-parole period. Ms Farrell submitted that there was no basis to differentiate as to a non-custodial order for one or more of you.
45Your counsel Mr Evans submitted that a combination sentence ought to be imposed that reflects the fact that you have been in custody for some 13 months and that you never had the opportunity to have your mental health and drug addiction issues addressed under a community-based order.
46The learned prosecutor emphasised the importance of general deterrence in these types of cases. The use of a firearm for non-legitimate purposes must be utterly condemned. Its use in a “pushback” enterprise as here is also to be condemned.
47Turning to whether each of you should bear equal moral culpability for the offending, as contended by the prosecutor, I am unable to agree. Although this was a joint criminal enterprise, you Mr Evans must bear a greater moral culpability on a number of bases. First, you were the person who procured and were in possession of the firearm. Your two female co-accused were not in that position and given their prior records were not part of the criminal milieu, although they may also have been drug users. Further, you are the person who fired the firearm and you were a prohibited person under the Firearms Act. It was you who chose to fire through the two windows in relation to counts one and three. You could have chosen, as I have indicated, some other less dangerous target for your stupid act.
48In my view, leaving aside the different criminal records, these matters alone provide a basis for different sentencing dispositions between you and your two co-offenders. Further matters that lead to this conclusion are that you
Mr Evans at the time had two prior convictions, one in New South Wales and one in Victoria for possession of illegal firearms. Further you were on bail in Victoria at the time of these offences for the breach proceedings for your Community Corrections Order. You were also still on a New South Wales Community Corrections Order that had been imposed earlier at the time. Also relevant is that, unlike your two co-accused, you Mr Evans did not make a full and frank record of interview as to your involvement in the offending. Your two co-accused made full and frank admissions and statements to the police. In my view, this is evidence of significant remorse and insight on both their parts. Whilst you have evidenced some remorse it is not as full as that of your two co-accused.Other Sentencing Submissions
49In relation to you Mr Evans, your counsel emphasised your early plea of guilty which I take into account in your favour. The matter did not proceed to a contested committal and you are entitled to full benefit of that.
50Your counsel also relied on the principles of Bugmy.[5]
[5]Bugmy v The Queen (2013) 249 CLR 571.
51It is clear from the report of Ms Fleming that you still bear the scars of a dysfunctional childhood and in particular continuing untreated PTSD. In sentencing you I do take this into account in your favour. Your childhood and background is unrepresentative of the community and right-minded people would accept that some leniency be accorded on that basis.
52Your counsel also submitted that all limbs of Verdins are relevant due to your dysfunctional background and the impact of your mental health disorders on your ability to make calm and rational choices.[6] Having considered the two reports I regard it as appropriate to make some reduction in moral culpability.
[6]R v Verdins [2007] VSCA 102.
53Further, contrary to the submission of the learned prosecutor, I am satisfied that imprisonment is more burdensome for you due to your mental health condition and continuation of imprisonment in circumstances where you remain untreated will cause a deterioration in your condition. You require psychotherapy which I am satisfied would not be available appropriately in the prison system.
54A further matter that I take into account in your favour is that your period on remand has been onerous due to the COVID restrictions. You have had the entire period of remand in the MRC and further, you have not been able to have any in-person visits due to both COVID and to the location at the MRC when your family live in Albury. You thus have not seen your five-year-old child and your partner in person for the entire period. Your family and in particular the support of your current partner and your five-year-old child is difficult given the geography of where they live.
55Notwithstanding the COVID conditions while you have been on remand, you have taken advantage of programs that are available. I note that you engaged in six AOD program sessions that I have seen a certificate for and also a clear drug screen.
56It is clear from the report of Ms Fleming that you require intensive psychotherapy that is unlikely to be available and you continue to require continuing AOD support.
57Your counsel submitted that all sentencing purposes could be achieved through a combination sentence. Ms Farrell disputed this and submitted that the seriousness of the offending here was such that a head sentence and a non-parole period are called for.
Purpose of Sentencing
58The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and the protection of the community. In sentencing the three of you I must have regard to a range of factors such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victims if any. I am also required to balance the interests of the community in denouncing criminal conduct and the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
59In relation to you Mr Evans I have anxiously considered the submission of your counsel that the appropriate sentence is a combination sentence, but I have reached the conclusion that the seriousness of the offending here calls for a head sentence and a non-parole period.
60I have considered the comparable cases provided by the learned prosecutor.[7] The cases do not provide any precedent but I must take into account current sentencing practices. Each case involving this offence, even with the use of a firearm, can occur in a wide range of circumstances. Further, the sentences that I was referred to were imposed before the Court of Appeal emphasised the importance of a plea of guilty in the COVID environment and your period on remand is a significant differentiating matter when considering the comparable cases referred to by Ms Farrell. The comparable cases referred to by Ms Farrell however indicate that that considerations of general deterrence play a significant role in sentencing for this offence.
[7] See Kelly v The Queen [2020] VSCA 171, Cooper v The Queen [2020] VSCA 288, DPP v O’Kelly [2017] VCC 240, DPP v Van Abel [2017] VCC 1601, DPP v Smith [2017] VCC 1789, DPP v Saffron [2018] VCC 472, DPP v Vankerkoerle [2018] VCC 680, DPP v Le [2018] VCC 1299, DPP v Tsiavis [2018] VCC 1396, DPP v Templar [2019] VCC 1925, DPP v Lea [2021] VCC 412.
61Denunciation is also relevant. There are too many illegal weapons in the community and those minded to be in possession of them and to use them must expect heavy penalties. This applies even more so when the individuals have previously been sanctioned for a firearms offence. These matters override in the sentencing synthesis the powerful subjective considerations raised by your counsel.
62I have indicated that I regard your prospects of rehabilitation as reasonably good provided you are given the appropriate supports in the community. This is notwithstanding that you were assessed as moderate to high risk of recidivism by Ms Fleming.
63I see you as very much at a fork in the road in your life. You had a very significant period of imprisonment under conditions of COVID, with uncertainty and limited programs and where your mental health needs are not being addressed.
64The community would be best served by a significant period when with appropriate support you are to serve the balance of any sentence in the community and thus I propose a longer than usual period of parole eligibility.
65For you Mr Evans, the three offences here constitute a course of conduct by you over a narrow time-period and in those circumstances I regard it as appropriate to impose an aggregate sentence to reflect the overall criminality.
Sentence – Mr Evans
66Could you please stand. The sentence of the court is as follows:
67On the three charges of reckless conduct endangering life you are sentenced to an aggregate sentence of 30 months imprisonment.
68On the charge of committing an indictable offence whilst on bail you are sentenced to 7 days imprisonment.
69The sentences are concurrent.
70I direct that you serve 16 months imprisonment before being eligible for parole.
71I declare 392 days of presentence detention and order that be entered into the records of the Court.
72I declare that had you not pleaded guilty I would have imposed a total effective sentence of four years and two months imprisonment as an aggregate sentence with a non-parole period of two years and nine months.
73You can take a seat now Mr Evans and listen as I sentence Ms Charubin and Ms McGuire.
Ms Charubin & Ms McGuire
74In relation to each of you, I propose to impose a Community Corrections Order on both of you, should you consent, and I will now explain why I have determined to undertake that course of action and why you Mr Evans should not have an unjustified grievance as a result of any disparity in any sentences between you and your two co-offenders.
Prior convictions - Ms Charubin
75You are aged 44 and have admitted two appearances before the Wodonga Magistrates’ Court. In 2016 on a charge of persistent contravention of a family violence order you were fined $500 without conviction. On 9 June 2015 on a charge of making a threat to kill you were fined $500 without conviction. On the plea it was put by your counsel that both of these matters arose out of disputes with your former husband as to the parenting of your child. From the reports of the Department of Families, Fairness and Housing it is clear that you have been involved in an abusive relationship over many years and you have been seeking assistance as a consequence of it.
76I regard your prior convictions as having little relevance to the disposition here.
Prior convictions - Ms McGuire
77You are aged 30. You were before the Wodonga Magistrates’ Court on 8 September 2011 when you were just under age 20 and there was a without conviction disposition for an offence of recklessly causing injury and failing to answer bail. On 8 November 2011 when you would have been 20 on a charge of shop stealing you were convicted and fined $100. On 2 May 2017 on charges of burglary and theft the matters were adjourned for 12 months without conviction. Given the general lack of entry of convictions and the nature of the dispositions, I regard your prior record as having little relevance to the proceeding here.
Respective roles in the offending
78I have already discussed the reasons why I regard Mr Evans as carrying a higher culpability for the offending than the two of you. I need not repeat those comments. While each of you had a motive to push back or scare Mr Cameron, or as you said in the record of interview Ms Charubin, to let him know that he did not scare you, you entered an agreement with Mr Evans to fire at the three houses.
79Upon apprehension the response of each of you can be contrasted with that of Mr Evans. An important point made on the plea by your counsel Ms Charubin is that you made a full statement and fully cooperated with the police. As submitted I accept that this is an important contribution to the course of justice, evidences remorse, and did assist the authorities. Offenders who undertake such action should be rewarded in the sentencing disposition.
80You did make a statement. In the statement you offered to give evidence. As events unfolded you were not required to do so as Mr Evans entered a plea soon after the two of you had entered a plea.
81While you Ms McGuire made a false statement originally, you soon recanted and made full admissions to the police. You are also entitled to the benefit of that cooperation and I accept the submissions that they do provide evidence of your remorse.
Personal Circumstances - Ms Charubin.
82You are now aged 44 and are of Aboriginal descent. You were brought up in the Wodonga area, the oldest of a family of five. When you were young your parents separated. Your father had a history of drug use and you have had very limited contact with him. You completed year 11 at school and then joined the workforce in the hospitality area. In 2005 you gave birth to your son Kayleb Rakic. You were in an abusive relationship with his father and this has contributed to your drug use. There was a history of family violence between you and Mr Rakic. The Department of Families, Fairness and Housing (“DFFH”) records indicate that there have been child protection reports about your son since 2014 which is when he would have been aged about 10. In around 2015 his father took your son to Melbourne but this did not work out and he was placed in a series of foster homes with very difficult behaviour evidenced, he then proceeded to abscond. In the period since this offending with the assistance of the DFFH he has now been returned to your care. As a condition of this you have been under a requirement of the DHHF that you participate in assessment and treatment for alcohol and drug dependence and not be affected when the child is present. You have been engaging with the Salvation Army as part of a restorative justice intervention in relation to your son. You have also been involved with Gateway Health since February 2019 in a program focused on women who have experienced family violence.
83A central thrust of the plea was that a sentence of imprisonment would have an impact on your continuing custody of Kayleb and this impact on him would amount to exceptional circumstances such that a sentence of imprisonment should not be imposed. While I accept that a sentence of imprisonment would impact on Kayleb, I accept the prosecution submission that the impact on him does not amount to exceptional circumstances as they have been considered in a number of authorities.
84The impact of any sentence of imprisonment on your son however is a relevant consideration in the sentencing synthesis.
85Your involvement with him is a protective factor in preventing a relapse into criminality by you and in support of the community in having him brought up in a family environment. Further the active involvement of the DFFH provides some supervision of you whilst he is in your custody.
86I am satisfied that you are remorseful for your conduct. Further you have insight into your conduct and are taking action to address your use of drugs as evidenced by seeing the Gateway Health people. You have an incentive to continue a law-abiding life given the custody of your son.
87Given this is the most serious matter you been involved in and your response I would regard your prospects of rehabilitation as good.
88You have been found suitable for a Community Corrections Order. The clinical mental health assessment indicates that you would be assisted by ongoing mental health and continue with psychotropic medication. With appropriate assistance this could be provided by a Community Corrections Order and you would then be in a position to return as a law-abiding member of the community. So for all those reasons and having considered the submissions of your counsel I have determined to impose a Community Corrections Order on you with mental health and alcohol and drug dependency conditions.
Personal Circumstances - Ms McGuire
89You are related to Ms Charubin. After initially making a false statement about the offences as I have indicated you later gave a comprehensive account which was essentially consistent with that given by your co-accused.
90You are now aged 30 and the middle of three children. You grew up in the Wodonga area with your parents until your parents separated when you were aged 14.
91You completed year nine at the Wodonga high school then years nine and ten at Wodonga TAFE and commenced a beautician course at Wodonga TAFE. You did not complete this course and another course that you commenced. You then commenced working in the hospitality industry and you are now back undertaking a nail technician course. You have a significant employment history until the birth of your child.
92You worked mainly in the hospitality industry and you worked in that area until you fell pregnant with your only child, Ariah, born in June 2016 and she is now five years old. You and the child’s father co-parented successfully for the first three years and then sought to re-establish your relationship although you were living apart. You suffered a miscarriage in 2019 and the relationship ended and you continued to seek to co-parent. You suffered depression as a result and were homeless. You were emotionally vulnerable when you were the subject of threats by Mr Cameron. Your counsel sought to have the threats as a basis to reduce your moral culpability.[8] I do accept that they do provide some basis to reduction in your moral culpability given you as a single woman were facing threats by two males involved in the drug scene. The threats themselves do not however provide any basis to justify your conduct in the joint arrangement between you and your other co-offenders.
[8]R v Roach [2005] VSCA 162.
93A further central matter in the plea is that as a result of this offending your child has been placed with his father and you have lost visiting rights. You have not had any contact with your daughter for 12 months. You are seeking to obtain visitation rights in the Federal Circuit Court. You were also evicted from your accommodation following the publicity associated with this offending and became homeless for a short period and you are now in stable accommodation in Yarrawonga.
94Your counsel put that your loss of access to your child as a result of the offending is extra judicial punishment that ought to be taken into account. I do take it into account and give it some weight.
95A further matter in mitigation is that you are remorseful for your conduct. You actually apologised to the occupant of the house the subject of charge number 2. You have undertaken and are undertaking a mental health plan. You have also been engaged with ACSO and have completed 14 sessions with that organisation. So in the period since the offending you have suffered the burden of homelessness, loss of accommodation and then the punishment of not getting access to your child and I take all those matters into account.
Overall assessment
96In relation to you Ms Charubin and you Ms McGuire as I have already indicated in relation to Mr Evans, the Court of Appeal has indicated that in the COVID environment persons who plead guilty should be granted a perceptible amelioration of sentence.[9]
[9]DPP v Worboyes [2021] VSCA 169.
97In the case of the two of you the sentencing purposes of general deterrence, denunciation and specific deterrence are all engaged. Rehabilitation however is very important in both your cases given your lack of significant prior offending. And it is also in the community interest that both of you continue, in the case of
Ms Charubin, with your 16-year-old son, and you Ms McGuire, with your five-year-old daughter, in a parental role with your respective children.98Imprisonment should always be regarded as a sanction of last resort particularly where mature individuals without significant criminal records are before the Court for serious offending for the first time. Courts are always striving to craft dispositions that serve the interests of sentencing without invocation of society’s ultimate sanction of incarceration. Having considered all the respective submissions I have determined that a Community Corrections Orders be imposed on each of you, should you consent. I should indicate that should you commit serious offending over the duration of the Community Corrections Orders then absent very special circumstances it is highly likely that you will be sentenced to terms of imprisonment like your co-offender Mr Evans.
99The conduct of the two of you in participating with Mr Evans in this enterprise is to be utterly condemned. People in the community are not entitled to take the law into their own hands. The police are there to be accessed when threats are made even in those involved in the drug milieu. The matters that have been put forward by your counsel respectively to differentiate you from Mr Evans including the threats made to the two of you, your different prior convictions, the role of Mr Evans in the offending, the background of each of you, and your prospects of rehabilitation are such that having assessed both the objective circumstances of the offending, and your individual circumstances I am satisfied that Mr Evans should not have an unjustified sense of grievance as I deal with both of you by way of a Community Corrections Order.
100You Ms McGuire also face two charges of possession of drugs being cannabis and MDMA. The amounts involved were small amounts and I propose to impose monetary penalties for those two offences.
101In sentencing you both I have taken into account all the submissions made on your behalf and have not acceded to the prosecution submissions as to the disposition.
102I have prepared a Community Corrections Order which will be forwarded to you and to counsel for perusal should you consent. Could you both stand?
Sentence
103The sentence of the Court on you Ms Charubin is an aggregate sentence of
a 30-month Community Corrections Order with conditions that you undertake supervision, mental health and drug and alcohol treatment as directed.104The sentence on you Ms McGuire is a similar sentence of a 30-month Community Corrections Order as an aggregate sentence.
105The terms of the order on you are similar to those on Ms Charubin.
106In addition I further order that both of you as a condition of the Community Corrections Order undertake 200 hours of community work over the two and half year period and that 100 hours of that work be credited for the programs that you undertake. I declare that had each of you not pleaded guilty I would have imposed an aggregate sentence of 2½ years imprisonment with a non-parole period of one year and eight months.
107In relation to you Ms McGuire on the charge of possession of cannabis you are convicted and fined $250. On the charge of possession of MDMA you are convicted and fined $300.
108I am going to now have the two Community Corrections Orders sent to all counsel and I am going to ask that counsel explain - if the Order looks in order I'd ask Ms Farrell to communicate to the respective counsel and I'd ask the counsel to explain them to their clients. The Community Corrections Order also requires that within two business days both you Ms McGuire and Ms Charubin contact the Wodonga Community Corrections Office by phone in order to make arrangements to be engaged with the office. You will be under supervision for a period of 30 months and the various other conditions of a Community Corrections Order includes that you tell them if you change your address and you comply with conditions and testing and they send you off for alcohol treatment and mental health treatment.
109I also require that for the first four months of each of the Orders, it's a period of intensive compliance, and during that period if you don't already have a mental health plan each of you are to get a mental health plan and to commence that mental health plan. So that will addresses the mental health considerations that apply to both of you and the Office of Corrections can direct you to other programs that might be required.
110Are there any other matters that I haven't addressed, Ms Farrell?
111The two of you - I think Mr Slater indicated that you - sorry, maybe it was Mr Fitzpatrick said that you Ms McGuire have got a mental health plan but that's to be confirmed with the Office of Corrections. If you don't have one you're to get another one and same to Ms Charubin. And that's to be done within the first four months, get yourself a mental health plan, get yourself engaged with a psychologist and get into some therapy.
112MS FARRELL: The orders are otherwise consistent with what Your Honour stated. There is also, Your Honour, a disposal and forfeiture order that I understand has been filed in relation to the drugs that were confiscated.
113HIS HONOUR: All right, well I'll make those orders in chambers when we find them. Anything else from your point of view, Mr Fitzpatrick?
114MR FITZPATRICK: No, Your Honour, I've looked at the Orders and they appear to - no, no issues with those.
115HIS HONOUR: We're running a bit short of time with the Wodonga Court. I'd ask you to maybe telephone your client and explain to them in detail to her and they'll be sent to Wodonga. She's to sign them and then I'll counter-sign them when I get them back. Same with your Mr Slater, you're to explain in terms of the order to them, the detailed standard terms.
116MR SLATER: Yes.
117HIS HONOUR: And the two business days so by Monday they're to contact the Office of Corrections and get engaged.
118MR SLATER: Thank you, Your Honour.
119HIS HONOUR: Yes, and both Ms Charubin and Ms McGuire are to go to the Registrar's office or the registry, the counter downstairs within the Wodonga complex, not to leave the complex. They go down there and the hard copy of the Community Corrections Orders will be there for them to sign. They're not to leave the building until they sign those Orders. All right?
120MR SLATER: Thank you.
121MR FITZPATRICK: As Your Honour pleases.
122HIS HONOUR: All right, I want to thank all counsel involved in this matter,
Ms Farrell and Mr Slater and Mr Fitzpatrick. And we'll end the link to the prison. End the link to Wodonga and I'll just stand down temporarily.- - -
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