Director of Public Prosecutions v Fifita (a pseudonym)

[2022] VCC 952

IN THE COUNTY COURT OF VICTORIA Revised
Unrestricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

JENNIFER FIFITA (A PSEUDONYM)

---

JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2022
DATE OF SENTENCE:	11 April 2022
CASE MAY BE CITED AS:	DPP v Fifita (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 952

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – Armed Robbery – Committing and Indictable Offence whilst on bail – plea of guilty

Legislation Cited:                Sentencing Act 1991 (Vic)

Sentence:   Drug and Alcohol Treatment Order of 2 years and 2 months 

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Roper	Office of Public Prosecutions
For the Accused	Ms N. Newbound	Victorian Legal Aid

HIS HONOUR:

1Jennifer Fifita[1], you have pleaded guilty to one charge of Armed Robbery (Charge 1), for which the maximum penalty is a term of imprisonment of 25 years.  You have also pleaded guilty to a charge of committing an indictable offence whilst on bail (Summary Charge 2), for which the maximum penalty is a term of imprisonment of three months. 

2Exhibit 1 on the Determination Hearing was a Summary of Prosecution Opening, where the agreed facts of your offending were set out.  In brief, the circumstances of your offending are as follows:

3On 6 June 2021 at approximately 1 pm, you attended the Altona North IGA and went to the soft drink aisle, where you selected two 1-litre bottles of Coca-Cola and placed them into your duffle bag.  You then picked up a further 1-litre bottle of Coca-Cola and walked towards the checkout counter, on which you placed the single bottle of Coca-Cola that you were carrying.  You then browsed the spirit section and selected two 1-litre bottles of Grant's scotch whiskey.  You handed one bottle to your victim, Danica Pantellis[2], the manager of the IGA, who was standing behind the checkout counter next to the store exit.

4You proceeded to walk towards the store exit but then turned back around, returned the bottle of Grant's you were still holding and picked up two 1-litre bottles of Black Douglas whiskey.  You then began to walk out of the store. 

5

Ms Pantellis stepped into your path, removing one of the bottles of Black Douglas from your hand.  You pulled a syringe out of your jacket pocket.  The syringe contained a red liquid that Ms Pantellis believed to be blood.  You pulled the orange safety cap off the syringe with your teeth, thus showing the

[1]A pseudonym.

[2]A pseudonym.

5 centimetre long needle.    

6

While holding the syringe in a threatening manner, you threatened to stab

Ms Pantellis.  Fearing for her safety, Ms Pantellis moved back behind the counter and told you to leave the store.  Instead of leaving you walked back over to the liquor section and selected one 700 millilitre and one 1-litre bottle of Grant's.  Ms Pantellis called out to another staff member to contact Triple 0. 

7

You walked out of the store with the following stolen items, valued at a total of

$175.98: 

·        two 1-litre bottles of Coca-Cola;

·        one 1-litre bottle of Grant's scotch whiskey;

·        one 700 millilitre bottle of Grant's scotch whiskey; and

·        one 1-litre bottle of Black Douglas whiskey. 

8At approximately 1:45 pm, police arrived at the Altona North IGA and the following day viewed CCTV footage from the store from which you were identified.   

9On 9 June 2021, you were arrested at your parents' home in Hoppers Crossing and transported to your home address in Altona North where a search warrant was executed.  An empty 700 millilitre bottle of Grant's scotch whiskey and a syringe with an orange cap, containing a small amount of what appeared to be blood, were located during the search.  At the time of the offending, you were on bail for an unrelated matter (summary Charge 2). 

10In a Victim Impact Statement (Exhibit 2) Ms Pantellis spoke of how she now feels anxious every time a customer walks into the store.  She is in constant fear of being attacked again and replays the incident constantly in her mind.  There can be no doubt that your acts have had a traumatic and lasting impact upon your victim.

11

The matter resolved at the first committal mention in September 2021.  On

4 October 2021 it was adjourned to this Court for a Determination Hearing, which eventually concluded on 28 March 2022.  That delay was occasioned by a request for a neuropsychological report to address uncertainties around cognitive deficits and any consequential barriers to your being placed on a Drug and Alcohol Treatment Order (DATO).  Yours was plainly a plea of guilty at the earliest opportunity.     

12Exhibit 3 on the Determination Hearing was a Clinical Advisor Report by Mr Harry Howe, dated 29 October 2021.  Exhibit 4 was a Case Management Assessment Report by Ms Chloe Reese, dated 29 October 2021.  Exhibit 5-RK was a psychological report from Dr Harriett Dowling, dated 28 March 2022.  Together these reports outlined your personal history, your upbringing, your family dynamic, your substance abuse and your forensic history.

13I turn now to your personal circumstances. 

14You were born in August 1998 and you are now 33 years of age. You were aged 32 at the time of this offending.  You are of Māori heritage and were raised in the western suburbs of Melbourne in a family consisting of your parents, three siblings and adopted cousins.  Both your parents abused alcohol and other substances and you were exposed to family violence perpetrated by both your mother and your father.  At times you were cared for by your grandmother.

15Your parents separated when you were 12 years old, at which time your mother was diagnosed with cancer, a disease from which she sadly passed away in 2021.  One of your female cousins tragically was killed by her partner and another died early from ill health.  You report suffering from epilepsy since infancy and delayed developmental milestones. 

16At school you struggled with literacy and you report a diagnosis of a learning disability.  It seems that your  behaviour changed at around the age of 12 when you began using substances, starting with chroming, and also experiencing various mental health symptoms. 

17When you were aged 16 you began an intimate relationship with a man named Joshua[3] and you have two children, a daughter aged 14 and a son aged 13, from that relationship.  However, the relationship with Joshua was marred by mutual drug use and family violence.  Your children have been mostly raised by your parents and presently live with your father.

[3]A pseudonym.

18

Of note, you have secure Office of Public Housing accommodation in

Altona North, which is where you were living at the time of this offending and which remains available to you. 

19

You commenced drinking alcohol at the age of 12 and started smoking cannabis and chroming at the age of 14.  By 15 you were using stimulants including speed and ecstasy and you first used heroin, which use quickly became problematic.  You identify heroin as your primary drug of concern for most of your adult life.  More recently, you first used methamphetamine at the

age of 27, initially as a means of reducing your heroin usage. Your methamphetamine use however quickly became more problematic and you report daily usage over the past five years.     

20At the time of this offending you were injecting or smoking 1.7 grams of heroin and 1.7 grams of methamphetamine daily, in addition to intermittent use of GHB.  You have had minimal engagement in the past with AOD treatment, accessing pharmacotherapy treatment in the community through a General Practitioner. 

21

Since 2003 you have been in front of the court for offences of dishonesty, robbery, assault and causing injury both intentionally and recklessly.  You have been dealt with by terms of imprisonment, both suspended and immediate.  In 2011 you were sentenced to a term of imprisonment of

two years and were drug-free for a period of one year.  You breached your parole due to non-compliance with conditions.  Between 2013 and 2021 you remained offence-free and achieved further intermittent periods of abstinence. 

22Now whilst of course you do not fall to be sentenced again for matters that have already been dealt with by the courts, your prior criminal history does impact my assessment of the need for a specific deterrence, your prospects of rehabilitation, the need for community protection, your moral culpability for this offending and more broadly, upon the appropriateness of placing you upon a DATO.

23Mr Howe (Exhibit 3) stated that you would likely have satisfied the diagnostic criteria for a substance use disorder at the time of this offending, which disorder was severe in nature and a moderate-to-severe alcohol use disorder.  Both heroin and methamphetamine were articulated as drugs of concern and he noted that you now see both as equally problematic. 

24Mr Howe hypothesised that the pre-disposing factors for your substance use included a significant familial history of psychiatric illness and substance abuse.  He stated:

“it is likely that Ms Fifita’s mental health remains a significant factor in her continued substance use.  She reports ongoing experiences of depression and auditory hallucinations despite being engaged with regular treatment in a controlled environment.”

25Mr Howe recognised your public housing lease as a protective factor, but recommended further assessment to determine your current ability and suitable treatment options.

26You advised Ms Reese (Exhibit 4) that in the lead-up to the index offence you had not been compliant with your prescribed anti-psychotic medication and had been awake for approximately three days as a result of high volume drug use.  You described your offending as shocking and displayed genuine empathy for your victim.  You “didn't know how to control your anger.” 

27Ms Reese noted that:

“Ms Fifita’s exposure to violence from adolescence may have pre-disposed her, in part, to an increased threshold of tolerated violent behaviours.” 

28

In view of multiple self-reported past diagnoses, including an

acquired brain injury and Post-Traumatic Stress Disorder, a

neuropsychological report was obtained to shed some light on your

cognitive functioning, any acquired deficits and also to help identify appropriate treatment intervention.

29Dr Downing, in Exhibit 5-RK, reports that:

“[your] background is significant for childhood epilepsy, adverse childhood events, possible learning difficulties, various mental health conditions and a long history of polysubstance abuse and possible head injuries.”

30Dr Downing's assessment was that:

“Where she showed some attentional fluctuations or challenges with aspects of executive function, these were inconsistent and were not indicative of any marked impairment.  Significantly, there was no evidence of a primary memory disorder or disorder of control.  There was nothing to indicate an acquired brain injury from either her head injury or substance use history.  There was also no evidence of any significant impact on cognition from acute mental health systems.”

31Dr Downing further confirmed your medication regime.  The testing conducted by Dr Downing estimated low average to borderline intellectual skills. 

32The offence to which you have pleaded guilty is a serious offence.  This is made plain by the maximum penalty of 25 years’ imprisonment imposed by Parliament.

33Danica Pantellis was at work.  In her role as the manager of the Altona North IGA, she sought to stop you walking from the store with goods for which you had not made payment.  For her pains, she was threatened by you with a syringe which she believed was full of blood.  It was a callous act on your part and fully played into negative stereotypes of those who may use drugs. 

34

Whilst the offending may not have been pre-meditated in any meaningful sense, the fact that you had a syringe on your person tends against your actions as being a purely spontaneous response to some perceived sleight.  It was a frightening experience for Ms Pantellis as was made clear from the

victim impact statement provided to this court. 

35Such offending is easy to commit and impacts upon not only the immediate victims, who by their role and exposure are vulnerable, but upon the community at large because such offending engenders a sense of alarm amongst the community.  It engenders a sense of ‘we are not safe’ and it undermines the community’s sense of well-being. 

36People must be entitled to go about their everyday business without fear of being robbed or assaulted in such a manner.  The courts will do everything that they can to ensure the safety of vulnerable workers.  Those who come before the courts should know that they will be punished.

37The particular purposes of a DATO are:

(a)   firstly, to facilitate the rehabilitation of the participant offender by providing a judicially supervised, therapeutically oriented and integrated treatment and supervision regime;

(b)   secondly, to take account of the offender participant's drug or alcohol dependency;

(c)   thirdly, to reduce the level of criminal activity associated with drug or alcohol dependency; and

(d)   fourthly, and finally, to reduce the participant's health risks associated with drug or alcohol dependency. 

38Using both heroin and methamphetamine in the amount of 1.7 grams daily, as you were, is not indicative of good health outcomes in the long or even the medium term. 

39Ms Newbound on your behalf urged me to follow the recommendations of the clinician and case manager and place you upon a DATO.  She submitted this was an appropriate disposition, having regard to your circumstances and to the circumstances of your offending.  Mr Roper, most fairly, on behalf of the Director conceded that a DATO was an appropriate disposition in your case.

40Ms Fifita, in sentencing you I must have regard to a range of different factors.  I must give effect to the principle of general deterrence; that is, I must deter others from behaving as you did, and to specific deterrence, which means deterring you from ever repeating such offending.  I have to consider the need to protect the community.  I must express the community's denunciation of your conduct, that is to say, we will not tolerate it.  I must take into account the effect of your crime upon your victim.  I must have regard to the current sentencing practices and the maximum penalties for the offences to which you have pleaded guilty.  I must also ensure, as far as possible, that you are rehabilitated and reintegrated into society.

41In short, I must try and balance your personal circumstances with the circumstances of your offending and I must also pass no greater sentence than is necessary in all the circumstances of the case, as I find them to be. 

42These sentencing purposes are all to be found in s 5(1) of the Sentencing Act 1991 and they are all to be considered in your case. However, another part of that Act says that if a court is considering making a DATO, then your rehabilitation and the protection of the community that is to be achieved through your rehabilitation would have greater importance than all of those other sentencing purposes.

43On the material in front of me, I am satisfied on the balance of probabilities:

(a)   that you are dependent upon heroin and methamphetamine;

(b)   that your dependency contributed to the commission on the offending in front of me today;

(c)   that otherwise it will be appropriate to impose an immediate sentence of imprisonment of no more than four years; and

(d)   that you are not charged with offending, nor are you subject to any order, that would make you ineligible for a DATO. 

44Having regard to all of the above matters, I am satisfied that in all the circumstances of your case, it is appropriate to place you on a DATO.

45It is clear from the materials in front of me that you were impacted in ways, unknown to you, by your early childhood exposure to family violence and substance abuse. 

46

The traumas you experienced may very well have contributed to your

low level of cognitive functioning and to your developmental delays.  Your parents were frequently absent and you were cared for by others.  You acted out and at the tender age of 12 began your life-long abuse of substances. 

47

The refuge you sought in an intimate relationship was no refuge at all.  Your relationship with Joshua was punctuated by co-dependant drug use and further family violence.  Having witnessed others resort to violence as

problem-solving from an early age, you have, it seems, struggled to find any appropriate boundaries for your own emotions, including your anger.  Emotions should not be an overwhelming existential challenge.  We should recognise them for what they are and never act on them until we are clear as to what is the appropriate response.

48You have insight into the impacts of your offending, its consequences for others and its relationship to your anger, which you candidly admit you struggle to control.  As Ms Reese noted, you require ongoing support to consolidate and to build upon these learnings.  You are also aware of the consequences of being non-compliant with your medication.

49Your guilty plea brings with it the practical benefit of saving the community the time and the costs of a trial.  It also has particular value in the time of the COVID pandemic when the backlog of cases has grown.  Judges in a higher Court have said that in the time of this pandemic, pleas of guilty must be given significant recognition. 

50I accept that you are remorseful, as is shown by the letter you have written to the Court (Exhibit 6RK).  I accept that you have the support of family and that your father will continue to help in the parenting of your children.  You also have a secure address which is of great value to you.  The tenancy is in your name and having secure, stable accommodation is an important step on the road to recovery. 

51You have in the past managed periods of abstinence.  It seems to me from what I have been told by Ms Newbound and the documents provided that your time on remand has been well-spent.  If memory serves me right, you have learnt skills in the bakery. 

52You see your current lifestyle, as you said to Ms Reese, as a revolving door of custody, release and then return to custody.  You told Ms Reese that you want something other and I am prepared to provide you that opportunity. 

53

On Charge 1 and Summary Charge 2, you are convicted and placed upon a

Drug and Alcohol Treatment Order.

54A Drug and Alcohol Treatment Order has two parts:

55Part A: the Treatment and Supervision part and that part itself subdivides into two parts:

56Firstly, the core conditions: 

(a)   that you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;

(b)   you must attend Drug Court when the Court requires you to do so;

(c)   you must report to Melbourne Drug Court House or another specified place within two working days after the Order is imposed;

(d)   you must report to and accept visits from members of the Drug Court team;

(e)   you must undergo treatment for alcohol and drug dependency, as specified in the Order, by the Drug Court; 

(f)    you must give notice of any change of address at least two clear working days before the change to a specified Drug Court officer;

(g)   you are not to leave Victoria without the permission of the Drug Court; and

(h)   you are to obey all lawful instructions given to you by the Drug Court team. 

57The core conditions will remain in force for 26 months or until further order.

58Secondly, the following Program Conditions:

(a)   that you must submit for drug and alcohol testing as directed;

(b)   that you submit to detox or other treatment specified in the order as directed;

(c)   that you attend vocational, educational or employment programs as directed;

(d)   that you submit to medical, psychiatric or psychological treatment as directed;

(e)   that you are not to associate with Joshua;

(f)    that you are to reside at your home in Altona North until further order;

(g)   

that you comply with a curfew and remain at

your residence at Altona North, between the hours of 9:00 pm and 6:00 am, until further order;

(h)   that you do not use a drug of dependence without lawful authorisation; 

(i)    that you are to abstain from alcohol;

(j)    that you do or not do anything else that the Drug Court considers necessary or appropriate, concerning, firstly, your drug and alcohol dependency and, secondly, the personal factors that the Drug Court considers contributed to your criminal behaviour. 

59Those program conditions will operate for two years or until further order. 

60

You also will be signing that you acknowledge that you are waiving all rights to confidentiality between the Drug Court and those who work for the

Drug Court on the one hand, and on the other hand, all treatment providers.  So, all doctors, medical providers and other government agencies, authorities and departments. 

61Part B:

The DATO also has a custodial part and that is a term of imprisonment of

two years and two months.  The custodial part is the term of imprisonment that I would have imposed if I had not placed you upon DATO.  That is made up of two years and two months on Charge 1 and one month on Summary Charge 2. There is no order for cumulation.

62I note that you have served 306 days of Pre-Sentence Detention. I am making no declaration in relation to that.

63

In relation to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, you would have been sentenced to a

total effective sentence of three years and two months’ imprisonment with a non-parole period of two years and two months.

------------------