Director of Public Prosecutions v Flack

[2018] VCC 642

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR 18-00113

DIRECTOR OF PUBLIC PROSECUTIONS

v

SARAH FLACK

---

JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wangaratta
DATE OF HEARING:
DATE OF SENTENCE:	20 March 2018
CASE MAY BE CITED AS:	DPP v Flack
MEDIUM NEUTRAL CITATION:	[2018] VCC 642

REASONS FOR SENTENCE
---

Subject:
Catchwords: armed robbery
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Ms Habenbeer

HER HONOUR:

1Sarah Flack, you have pleaded guilty before me to one charge of armed robbery.  That charge relates to your offending on 15 October 2017, so some six months or so ago.  At that time you were 26 years old and you were living with your uncle in Wangaratta.

2At about 3 o'clock on that day you entered the Woolworths store at Wangaratta and targeted a 17 year old employee who was working at a cash register at the store.  You watched him for some time and when you were satisfied that he was by himself you stood very close behind him and pushed something sharp into his back.

3It is agreed on this plea that what you used on that occasion was a knife which you had obtained from your uncle's house.  You then demanded that he give you all the money in the till.  Terrified, the young man gave you the contents of the till which was approximately $450.

4You took the money, left the store and decamped.  Some two days later on
17 October 2017 you telephoned the Wangaratta police station and admitted that it was you who had committed this armed robbery.  You were arrested by the police and you later showed them the location in which you had  disposed of the knife.

5You told the police where you had obtained the knife from and you admitted having threatened the young man with the knife.  So in vernacular terms you “turned yourself in”. You admitted everything in respect of this offence and expressed some remorse in relation to the young man.

6You told the police that you had used the money which you had stolen to purchase drugs.  Significantly when you spoke to the police in your record of interview you agreed that the victim looked very scared and very young. You said that you would never forget the look on his face when you threatened him.  When the police asked you what would have happened if he had not given you the money you told the police that you would probably have stabbed him.

7I have received a victim impact statement from this young man.  He has suffered a great deal as a result of your offending on that day.  He is constantly anxious and uneasy, particularly when he works nightshifts.  He is still a secondary student.  He is unable to take extra shifts to pay for his school fees and other domestic requirements because of his concern about your action.

8His motivation to finish his final school year has now left him and this may have an impact upon him for the rest of his life.  He feels unsafe outside his home. Seeing any knives triggers memories of your attack and he suffers now from stress and anxiety which was absent from his life to that date.  He says also in his victim impact statement that he has somewhat isolated himself and is subject to extreme fatigue and depression.

9Ms Flack, this matter was listed for committal mention on 18 January of this year and on that occasion you pleaded guilty to the charge.  It is accepted that that plea of guilty was a very early plea and you need to have that taken into account in sentencing you today.  That is because it shows remorse when combined with your actions in giving yourself up to the police two days after the offending. It also means that the young man does not have relive these experiences by giving evidence in a trial and it saves the community the cost of a trial.

10You have been on remand since you were arrested on 17 October 2017 and you have not made any application for bail.  In your counsel's submissions she referred to you being in the protection unit of Dame Phyllis Frost centre because of an assault which was committed on you when you arrived in custody, and that of course might lead to the impression that you are finding it difficult in gaol being in a protection unit.

11I will come back to what you have been doing in gaol and the courses that you have done in a moment.  I will just say for the time being that it appears that you have started to effect your rehabilitation in gaol and that your time in gaol is now quite stable.

12Ms Flack, the maximum penalty for this offence is 25 years gaol.  In so far as this offence was concerned I note that there was very little planning involved.  It appears to be an almost a spur of the moment offence, although not quite,  because you did take the knife from your home and go to the supermarket with the intention of carrying out the offence.

13There was some suggestion in the material that you committed the offence in order for yourself to be able to go back to gaol from which you had only several weeks before been released in relation to other offences.  I have spoken to your counsel in submissions today about that and I accept her explanation that in fact what you did that day was a cry for help, an attempt to obtain some treatment for significant problems which you were facing in your life at the time.

14I take into account also that you admitted your guilt to the police in a situation where there appears to have been no other identification of you.  I take that into account as significantly mitigatory in the circumstances.

15Ms Flack, you have several prior convictions of a serious nature spanning around about seven years.  You have been before the Wangaratta Magistrates' Court on charges of arson.  At that time you were directed to obtain treatment for alcohol and drug addiction and submit to medical or psychological treatment.

16You were before the Magistrates' Court again five years later on charges of criminal damage and threatening to inflict serious injury.  Your last offence prior to this offending was a charge of reckless conduct endangering serious injury for which you received a term of imprisonment followed by a community corrections order.

17As I have said, it appears that you had only just been released from the imprisonment portion of that sentence when you committed this offending for which I am to sentence you today.  In doing that you also breached the terms of the community corrections order and I understand you will need to return to the Magistrates' Court to be dealt with for that breach.

18Ms Flack, I heard something about your personal circumstances.  You are now 27.  Your father was an alcoholic and your mother was physically and verbally abusive to you, perhaps in part because she suffered from a mental illness herself.

19Your parents separated when you were very young and you have had a very unstable early life.  After the breakdown of the relationship with your father during which you lived with your father for a short period of time you ultimately left home to live in various youth refuges and I am told that you stayed in three different youth refuges up to the time that you were 17.

20You have had relationships with three different men and have had three children, each with a different father.  As I understand it the Department of Human Services has been involved with at least one of those children and none of those children have ever been cared for by you for any significant period of time.

21Your children are now aged nine, seven and five.  In this recent time when you have been in prison you have started to consider how you could improve your relationship with the children on their release and that is a matter which is causing you ongoing concern.

22You presently have no family support. You are not in a relationship.  As I understand it your family have disowned you because of your past offending and all the relationships which you have had so far in your life have been dysfunctional.

23You have, despite that, achieved an education standard up to Year 12 but it appears to me that you have had no real employment in the time since you left school.  One of the significant factors in your history has been your continual abuse of drugs, particularly cannabis, methylamphetamine and heroin.

24You commenced using drugs to assist you to cope with the depression arising out of your family circumstances and you have also abused alcohol for this same reason.  I am told by your counsel that your abuse of drugs and alcohol has marred all of your intimate relationships.

25You were assessed in prison in February of this year by Dr Aaron Cunningham who is a forensic psychologist.  He administered psychometric assessments on you and as a result of his administering of those various tests he diagnosed you as have borderline personality disorder which he described as a condition that is very difficult to treat.

26He also made a diagnosis of some other medical conditions and they are generalised anxiety disorder, persistent depressive disorder, post-traumatic stress disorder, schizophrenic spectrum and major depression.  He took the view that the borderline personality disorder and these other disorders arose from your early history and from your lack of emotional attachment with your parents.

27He also expressed the view that you abused drugs to cope with that emotional pain.  I do not have any earlier medical assessments of you and I am treating you as having been assessed for these mental conditions for the first time by Dr Cunningham in February of this year.

28That appears to be consistent with everything else that I have heard on the plea today.  Dr Cunningham described you as presently doing very well in prison because of the routine and structure that a prison offers, and he expressed the view that because of your condition you are unable to enforce a routine or structure on yourself in the community.

29He described you also as having disassociation, paranoia and quasi-psychotic symptoms when under stress and says that this severely impairs your functioning when you are in the community.  Overall his opinion was that your risk of re-offending in the future is closely linked to your so far untreated mental health symptoms and drug abuse as I have described them.

30He assesses that you will need at least several years of mental health intervention to repair what he describes as your “sense of self”.  He also indicated that you demonstrated some remorse because of your concern that you made the victim fear for his life.

31But he notes your remorse to be limited because you continue to believe that your actions had a good result for you because you are now back in prison and receiving treatment as you wished to occur.  He describes your limited ability to feel remorse.  He says that is a reflection of your personality disorder and that you present with a relatively immature level of emotional and moral reasoning.

32I have raised with your counsel the issue of whether this offence was committed in order for you to be able to go back into prison and engage in treatment and I have already dealt with that issue in these sentencing remarks.  It is most regrettable, Ms Flack, that you chose such an offence for this purpose.

33To commit an armed robbery is a very serious matter.  As I have said, it carries a maximum penalty of 25 years' imprisonment.  Further, you committed this offence against a young man, still at school, who was defenceless against you.  Armed robbery is relatively simple to carry out in the public arena such as you chose and very hard to guard against.

34In committing this offence you have harmed your victim a great deal even though you gained very little financially.  It was I agree a brazen and terrifying experience as the prosecutor described it.  The knife actually made contact with your victim's skin although there is no suggestion that his skin was broken during that contact.

35It is however a significant and serious offence and I have a significant duty to protect the public by deterring others who may be minded to commit like offences, particularly in public places as you did on this day.

36I also have a duty to consider the question of specific deterrence which means the prospect of you re-offending in the future.  At the moment it appears from the report of Dr Cunningham that it is quite likely that you will re-offend unless you are able to regulate your emotional state.

37You appear to have had no treatment at all for the various medical conditions which he describes, and as I have said Dr Cunningham takes the view that it will be several years before any treatment program undertaken by you will be likely to have any effect.

38Nevertheless, there are some signs that you have accepted your responsibility to obtain treatment and have decided to come to terms with the issues that I have described so far.  I am told by your counsel that you acknowledge that this is serious offending.  I am also told by your counsel that you plan to avoid Wangaratta in the future as you associate this city with drug abuse and anti-social influences.

39You also hope to obtain employment and have already made inquiries in relation to being provided with support to do so on your release from custody.  Your counsel submitted that your level of remorse which Dr Cunningham describes as limited is likely to change with treatment and time.

40You have told your counsel that since you were assessed by Dr Cunningham you have reflected further on the impact of your offending on the victim and you still have a vivid memory of his scared face.  I am also told that you have done a significant amount of courses whilst in prison including courses which will equip you for obtaining employment outside prison.

41It is even more significant that you have had drug screening in prison and I accept that that drug screening has been clear.  All of those matters lead me to conclude that your remorse is genuine and that the limited remorse which was described by Dr Cunningham was a result of your limited insight at the time of the offending and has been something that you have worked on significantly whilst you have been in prison.

42I agree with your counsel that you require extensive rehabilitative treatment.  I agree with the submission that you appear to be presently still young and immature.  You have had no stable family to support you in the past and you have had no rehabilitation at all as far as I know.

43Your counsel made a specific submission to me in relation to a case called Verdins.  The submission was that both general and specific deterrence, which I have outlined, need to be modified because of your mental condition.  This submission was made in reliance on Dr Cunningham's report and was made with the effect that if it was accepted then your moral culpability for having committed this offence was reduced and therefore should be taken into account in sentencing you today.

44As Dr Cunningham put it his view was that you were suffering from borderline personality disorder at the time of committing the offence and that you were in fact reacting to what you saw as being a situation of abandonment by your uncle.

45In those circumstances the reaction which was clearly inappropriate was heightened by your symptoms of borderline personality disorder.  In other words, you panicked because of what you saw as a rejection by your uncle and this was combined with the fact that you had not been out of prison very long and had not been receiving treatment for your symptoms.

46The prosecutor has challenged that submission that has been made and has submitted to me that borderline personality disorder is not to be regarded as a mental impairment or mental condition for the purposes of the first limb of Verdins.

47I take the view that Dr Cunningham's report does show that you were to some extent mentally impaired at the time of committing this offence in the sense that your instability and your impulsiveness which was a feature of the condition led you to act recklessly in committing this offence without proper consideration of the consequences of your behaviour and so impaired your judgment at the time of the offending.

48In that sense I will moderate the sentence otherwise to be imposed on you.  However, there is no reason why those aspects of your condition, the impulsivity and the panic which you suffered should have led to the grave result that it did.

49You have committed a very serious offence, and offence which appears to have also been committed not just out of that condition but for other reasons.  You agreed with the police that you had committed the offence to obtain drugs.

50There is also some indication that you hoped that in committing the offence you would obtain treatment by being sent to gaol.  So I take the view that the circumstances of commission of this offence were various, there were many factors which you were taking into account in committing the offence and it is not as simple as to say that you suffered from a particular mental impairment and that drove you on its own to commit these offences.

51I do not agree that any particular hardship has been demonstrated in a Verdins' sense in respect of you undergoing a sentence of imprisonment.  In fact, although your initial experience in prison was that of being assaulted, you appear now to have settled down and be coping well in prison.

52Dr Cunningham has indicated that your mental state has not deteriorated in the significant time you have already spent in custody and that is a period of
154 days.  You have used your time in custody well and there is no reason to think that you will do otherwise in the remaining time in prison for which I am to sentence you today.

53I have been told that you have a condition of pericarditis for which you have received some emergency treatment last night and for which you have received ongoing treatment at the prison.  You are happy, I am told by your counsel, with the treatment that you are getting in prison for that condition.

54You also suffer from psoriasis and depression and you are getting appropriate medical treatment for those conditions in prison.  In fact rather than you suffering from particular hardship other than would apply to the rest of the prison population, it appears that the time that you have spent in custody is the most stable time you have ever experienced. That is a description that you, yourself, have given to your counsel. 

55Your counsel submitted to me that I should impose a term of imprisonment on you today followed by a community corrections order with mental health treatment conditions.

56She submitted that that would provide the best chance of you accessing treatment for the matters which I have referred to so far and also for giving you social supports so that you can be reinstated in the community.  If I was to do so the maximum prison sentence which I could impose would be 12 months.

57I am not persuaded, Ms Flack, that I should take that course.  In my view to impose a community corrections order on you after serving only 12 months' imprisonment would be to set you up to fail.  I do not believe that the evidence that I have heard suggests that you would be able to comply with such an order whilst in the community.

58Dr Cunningham's report does not suggest this and in fact does point up to the problems that you will have once you are returned to the community unless you have extremely strong support and unless you have engaged in significant treatment for your mental health conditions.

59You have told your counsel that you are apprehensive about returning to the community, but you are willing to do so and to engage in treatment options.  In my view there is no realistic prospect at the moment of you being able to comply with the onerous conditions of the community corrections order and the most appropriate sentencing disposition today is to sentence you to a period of imprisonment with a non-parole period.

60The prosecutor has submitted to me that it should be a shorter than usual non-parole period and I agree.  What I will do is to sentence you to a period of imprisonment and then when you are released on parole the parole authorities will be able to put into place rigorous supports around employment, accommodation, participation in programs which are required by reason of your mental health condition and overall be able to monitor and supervise your reintegration into the community.

61So, Ms Flack, could you stand up please?  Sarah Flack, on the charge of armed robbery you are convicted and sentenced to be imprisoned for four years.  I will order that there be a non-parole period of two years which will, depending upon the decision of the Parole Board at the time this comes into effect, give you two years of supervision on parole in the community.

62I will further order a forensic sample order to be taken.  I need to indicate to you the reason that I am doing that is because the circumstances of your offending are very serious and it is in the public interest that an order be made. I note also that you consent to providing a forensic sample.  I am required to tell you, Ms Flack, that if you do not consent to the sample being taken the police are entitled to use reasonable force to enable it to be taken.

63I will make a disposal order and a compensation order.  I will declare that you have spent 154 days in custody for this offence and no other and I will declare that had you not pleaded guilty to this offence I would have sentenced you to a sentence of imprisonment of six years with a non-parole period of four years.

64Are there any other matters?

65MR MOORE:  No, Your Honour.

66MS HABENBEER:  No, Your Honour.

67HER HONOUR:  Thank you.  Remove the prisoner.

‑ ‑ ‑