Director of Public Prosecutions v Groves

[2024] VCC 2075

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01106

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHLOE GROVES

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JUDGE:	Her Honour Judge Hawkins
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2024
DATE OF SENTENCE:	28 November 2024
CASE MAY BE CITED AS:	DPP v GROVES
MEDIUM NEUTRAL CITATION:	[2024] VCC 2075

REASONS FOR SENTENCE DELIVERED ON 28 NOVEMBER 2024
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Subject:CRIMINAL LAW - SENTENCE

Legislation Cited:      Crimes Act1958 s 74, s 75A, s 77, s 321M; Sentencing Act1991 s 5

Cases Cited:R v Mills [1998] 4 VR 235; Azzopardi v R [2011] 35 VR 43; R v Verdins [2007] VSCA 102; Luu v The Queen [2018] VSCA 92;

Sentence: Total effective sentence of 287 days imprisonment and Community Corrections Order for a period of 12 months. Previous Community Corrections Order (CR- 22-00945) confirmed, and breach of non-compliance proven, with no further order to be made. Pursuant to s 18 of the Sentencing Act1991, the period of 287 days of pre-sentence detention is reckoned as time served. S6AAA: 2 years and 6 months imprisonment, with a non-parole period of 1 year and 9 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr John Goetz	Office of Public Prosecutions
For the Accused	Ms Jennifer Clark	Greg Thomas Barrister & Solicitors

HER HONOUR:

1On 28 November 2024 I sentenced Chloe Groves and indicated that I would provide my written reasons for that sentence by email, prior to the end of the year. These are my reasons for sentence.

2Chloe Groves, following your plea of guilty, you were sentenced by his Honour Judge Brookes, on 16 August 2022, for the following charges on Indictment N10222757:

·        5 charges of theft, which each carry a maximum penalty of 10 years imprisonment;[1] and

·        1 charge of armed robbery, which carries a maximum penalty of 25 years imprisonment.[2]

[1]        Crimes Act 1958 s 74.

[2]Crimes Act 1958 s 75A.

3His Honour sentenced you to a term of imprisonment of 60 days for the theft offences, and a Community Corrections Order of 2 years’ duration for the charge of armed robbery.

4You were brought back before His Honour on 11 December 2023 for contravening the Community Corrections Order (the ‘contravention matter’).

5You pleaded guilty to other offences on Indictment P10447431 on 18 October 2023, (‘the fresh offending’). Those charges are:

·1 charge of attempt to commit an indictable offence, being theft, which carries a maximum penalty of 10 years imprisonment;[3]

·1 charge of Aggravated Burglary, which carries a maximum penalty of 25 years imprisonment; [4]

·1 charge of assault, which carries a maximum penalty of 5 years imprisonment;[5] and

·2 charges of theft, which each carry a maximum penalty of 10 years imprisonment.[6]

[3]Crimes Act 1958 s 321M and s 74.

[4]        Crimes Act 1958 s 77.

[5]         Contrary to Common Law.

[6]Crimes Act 1958 s 74.

6His Honour deferred sentencing you on both matters, and bailed you to participate in the CISP (Court Integrated Support Program) on 11 December 2023.  

7His Honour retired from the bench shortly after deferring your sentence. I commenced monitoring your progress on CISP on 12 February 2024, and will now proceed to sentence you in relation to the contravention and the fresh offending.

Circumstances of original, or index offending in the contravention matter - N10222757

8The CCO had the following conditions:

·        100 hours of unpaid community work;

·        Supervision;

·        Treatment and rehabilitation for drug and alcohol abuse or dependency;

·        Mental health assessment and treatment; and

·        Participation in programs and courses to address offending behaviour

9You breached the CCO by way of non-compliance and further offending. In relation to the non-compliance, you breached the treatment and rehabilitation condition on two occasions, and the supervision condition on two occasions.

10The index offending was committed between 13 January and 1 February 2022 and was very serious. You were 18 years old at the time. Armed robbery, in particular, is an inherently serious offence.

11On the night of the armed robbery, you and the victim, who you had met on Snapchat, returned to an apartment together. Without the victim’s knowledge, you opened the apartment complex gates for your co-offender and an unknown male and led them into the apartment.

12Your co-offender demanded that the victim hand over either his car or ‘all the money he had’. He was armed with an imitation firearm which he pointed at the victim’s head. Your co-offender demanded both the victim’s phone and the password to his bank account, stating that if he did not hand over the passcode he would shoot the victim.

13When the victim refused to transfer money to your co-offender’s account, he threatened the victim with an approximately 30cm long knife, that he held to the victim’s throat. You also threatened the victim by picking up an empty glass bottle and stating you would hit him on the head with it, if the victim did not transfer you $500 using PayID.  

14Your co- offender drove the victim home after he had transferred you the money, with you in the back passenger seat.  

15Five counts of theft on the indictment involved you and your co- offender stealing from people who were selling items on Facebook Marketplace. These items included expensive cars and a handbag.

16No victim impact statements were tendered in respect of this offending. The objective gravity is mid-range and your moral culpability tempered by various mitigatory circumstances.

17At the time of this offending, you had no prior convictions in an adult jurisdiction.

Circumstances of the fresh offending - P10447431

18In the early hours of Wednesday 8 February 2023, you and an unknown male offender entered the victim’s residential driveway and gained access to his black BMW. You stole the coins and paperwork located inside the vehicle.

19You then acted as lookout while your co-accused gained access to a second BMW vehicle. Your co-accused again stole coins and paperwork.

20Shortly after 4am, you and a male co-offender were observed walking down the driveway of a residential home in Canterbury. You carried a round handled chisel. You took several letters from the letterbox, whilst your male co-offender attempted to open the gate to the premises.

21Unable to open the gate, you both jumped the fence into the victim’s residence. Your co-offender unsuccessfully attempted to gain entry via the front door whilst you remained as a lookout. You both then walked around the outside perimeter of the house trying door handles and windows as an alternative means of entry.

22You both returned to the front security door, which you tried to open. Your co- offender tried to cut open a small hole near the door handle whilst you again kept a lookout. You unsuccessfully attempted to then open the house’s main front door through this hole before you and your co- offender returned to the driveway and located a BMW belonging to the victim.

23You then tried to open the power box to the house whilst your male co-offender said: ‘Chloe no’ and ‘Chloe come here’.

24Your co-accused then used an implement to break the driver’s side window of the victim’s vehicle. The car alarm activated and both you and your co-offender left the premises, but then returned a short time later, rummaged through the vehicle and located a garage remote.

25You took the remote from your co-offender and tried to use it multiple times before then trying to open the garage door by physical force. The car alarm sounded again, and you and your co-offender again left the premises before re-attending again a short time later.

26Your co- offender attempted to cover the flashing lights on the rear of the victim’s vehicle with sticky tape and what appears to be cloth.

27This time you cut the electricity from the power box for the house.

28Shortly after 5:00 am, you and your co-offender kicked in the front door to the victim’s home. You entered, and went into the victim’s room where she and her 3 ½ year old son were asleep.

29You approached within a metre of the victim, brandishing a 20cm long chisel in your left hand, yelling ‘give me the keys, give me the fucking car key’. At the time the victim was of the belief that what you had in your hand was a knife, and out of fear of being hurt, she could not comply with the demand.

30During the commotion, the victim’s husband, who was sleeping in another room, woke up and began yelling. He chased both you and your co-offender out of the house. You both jumped the fence and left on foot in an unknown direction.

31The victim provided a victim impact statement to the Court. She describes the terror of being woken from sleep by you. She describes that your “invasion has shattered my sense of security, disrupted my ability to find solace in the sanctuary of my own home and leaving me in a perpetual state of fear and anxiety for safety.” In addition to the need for ongoing medical and psychological treatment, your actions also caused extensive damage which took a long period to repair, and caused the victim significant financial impact.

32At the time of this offending, in addition to the sentence for the index offending referred to above, you had received an adjourned undertaking to continue with your mental health treatment, from the Magistrates’ Court, Assessment and Referral Court.

Personal Circumstances

33You are currently aged 21.  At the time of the index offending you were 18 and at the time of the fresh offending you were 19 years of age.

34You are the eldest of two children, and your parents separated when you were 5 years old. You lived with your mother but had regular contact with your father before his untimely death when you were 10.  You then moved with your mother and brother to Mount Martha.

35After an incident with your mother’s new partner in 2019, you were subject to a temporary accommodation order and spent some time in residential care in Traralgon, Berwick and Highett.

36Whilst your mother tried to get you to engage with counsellors, you were unreceptive at that time. Despite these difficulties, you continue to enjoy  a close and loving relationship with your mother.

37Since being released from custody, you have reached a point in your life where you are ready to actively and positively engage in rehabilitation, have returned to formal education and have obtained employment. You have also obtained your driver’s license.

Pre sentence mental health challenges

38Prior to the period leading up to your plea hearing before His Honour, you faced many mental health challenges, and battled significant issues with addiction.

39For example, Forensic Psychiatrist, Dr Pandurangi[7] observed that your personality was characterised by a lack of sense of self which manifested in poor self-esteem, sensitivity to criticism, poor boundaries, and being easily influenced by others. He further observed that you presented with a range of personality disturbances including emotional dysregulation, impulsive behaviours and engaging in potentially self- damaging or aggressive behaviours. He concluded that you would be most likely diagnosable with a Moderate Personality Disorder with prominent negative affectivity traits and a borderline pattern, and opined that there is no evidence of you suffering from a psychotic illness. He concluded that the transient psychotic experiences you reported were in the context of methamphetamine use or during periods of ‘crisis’.

[7]Report of Dr Prashant Pandurangi dated 11 July 2022.

40He opined that due to the severity of your personality disorder, your experience in prison would be more onerous than that of those who do not suffer from such a condition.

41Dr Nicholas Owens, forensic psychiatrist, opined[8] that your most likely mental health diagnoses were autism spectrum disorder, ADHD, BPD, and drug use disorder consistent with using large quantities of drugs of various classes.

[8]Report of Dr Nicholas Owens dated 3 October 2023.

42Dr Owens agreed with Dr Pandurangi that there is no evidence of you suffering a chronic psychotic disorder such as schizophrenia.

43Neuropsychologist, Dr Vanessa Peterson, also diagnosed you with both Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder[9].

[9]Report of Dr Vanessa Peterson dated 21 February 2023.

44Neuropsychologist, Laura Scott[10], agreed with these prior diagnoses and the fact that custody would be more onerous on you than on other offenders without your diagnoses.

[10]Report of Laura Scott, dated 25 September 2023.

Efforts at rehabilitation, progress on CISP

45You have completed two inpatient admissions to the Langmore Centre during the period of deferral[11]. Under the care of Psychiatrist, Dr Al Wahab you commenced on new medication and participated in a group-based program as part of your rehabilitation. You engaged positively with all treatment and remain compliant with your revised medication regime.

[11]2-24 April 2024 and 11-19 June 2024.

46Anthony Aliotta, from Windana[12], reports that you graduated from ‘Reset Life’, a free, abstinence- based, alcohol and drug treatment program.

[12]Letter from Anthony Alliota, Primary Therapist, ResetLife Windana dated 19 November 2024.

47Drug screens covering the period of 22 May to 25 October 2024 confirm the absence of nonprescription drugs in your urine.

48Treating psychologist, Mr Ari Patrikis reports[13] your regular attendance for counselling throughout 2024. He observes that you show growing insight into your psychological presentation, behaviour and mood state.

[13]Report of Mr Ari Patrikis, dated 11 November 2024.

49Mr Brendan Leihy has been your disability support worker for the past 9 months. Mr Leihy reports[14] that he has witnessed firsthand the positive steps you have taken in rebuilding your life. He observes the exceptional commitment you have shown, since being released from custody to your personal growth and rehabilitation. In particular, Mr Leihy notes that you are committed to establishing stable routines, improving your social relationships, and fostering a sense of personal responsibility.

[14]Letter from Brendan Leihy dated 17 November 2024.

Further sentencing considerations

50In the plea for the index offending before His Honour Judge Brookes, the prosecution noted[15] that you were charged with serious offences whilst you were on bail, and subject to a Youth Supervision Order. The offending involved a level of planning, and occurred in the company of another male offender for several of the charges.

[15] Outline of Plea Submissions on Sentence dated 26 July 2022.

51The prosecution accepted that yours was an early plea of significant utilitarian benefit entered during the Covid- 19 pandemic.[16] Given your youth at the time of the offending, they further accepted that the principles of youth in Mills[17] and Azzopardi[18] are applicable and given the nexus between your operative mental health and the time of your offending, they conceded that limbs 1,5 and 6 of Verdins[19] have application. The prosecution expressed concern that at that time, your lack of insight due to your mental illness deleteriously affected your prospects of rehabilitation, but ultimately accepted that a sentence combining imprisonment with a community corrections order, would adequately reflect the objective gravity of your offending and relevant sentencing purposes.

[16]  Worboyes v The Queen [2021] VSCA 169.

[17]R v Mills [1998] 4 VR 235.

[18]Azzopardi v The Queen (2011) 35 VR 43.

[19]R v Verdins [2007] VSCA 102.

52In the subsequent submissions on sentence for the fresh offending[20] the prosecution submitted that your offending was objectively at the upper end of seriousness for a confrontational aggravated burglary, given that you entered a residence, armed with a chisel in the early hours of the morning, and confronted the victim whilst a child was present. Your acts in cutting the electricity prior to entry, and the threatening nature of your actions elevates the seriousness of your offending. Your actions were not impulsive, your intent was to steal, and you acted in company. You were subject to a CCO at the time. I accept that yours is a serious example of this type of offending and your moral culpability was high.

[20]Outline of prosecution submissions on sentence dated 18 October 2023.

53His Honour was appraised of the causal nexus between manifestations of your diagnosed autism spectrum disorder and your offending conduct[21]. He was apparently satisfied of the proper evidentiary foundation for all limbs of Verdins to be enlivened.

[21] Neuropsychological report of Laura Scott dated 25 September 2023.

54However, the prosecution did submit that the significance of acute methylamphetamine and GHB intoxication played a role in your conduct[22] and ought operate to moderate the extent to which penalty might be reduced.

[22] As outlined in the report of Forensic Psychiatrist, Dr Nicholas Owens dated 3 October 2023.

55Ultimately, they submitted that given your relevant criminal history and the serious nature of your offending, specific and general deterrence ought not be eliminated entirely as relevant factors in sentencing you. Prior to deferral of sentence, the prosecution submitted that a term of imprisonment with a non-parole period was the appropriate disposition.

56During the period of deferral you have completed a comprehensive AOD assessment, have maintained abstinence[23] and completed a relapse prevention plan. You have graduated from a “Reset Life” plan[24] and pharmacotherapy treatment.

[23] See EZ-Dup Drug Screen results: 22/5/24, 5/6/24,24/6/24,1/7, 8/7,17/7/24,22/7/24,5/08/24,12/08/24, 18/09/24,9/10/24, 16/10/24, 25/10/24.

[24] Support letter of Lisa Steenholdt, Primary Therapist Reset Life, Taskforce dated July 2024 and 4 September 2024; and support Letter of Anthony Aliotta, Primary Therapist Resetlife, Windana dated 19 November 2024.

57You have been compliant with your mental health medication regime, and have maintained consistent mental health, including two inpatient stays at the Langmore Centre during the period of deferral. You are being monitored by Consultant Psychiatrist Dr Farazdak Al Wahab at St John of God Health Care[25]. You have attended regular fortnightly appointments with Mr Ari Patrikis from Positive Psychology[26].

[25] Report of Dr Farazdak Al Wahab, Consultant Psychiatrist, St John of God Langmore Centre dated 13 November 2024.

[26] Report of Ari Patrikis, Senior Consulting Psychologist of Positive Psychology dated 11 November 2024.

58You are now entitled to ongoing support via the NDIS. This will further enhance your opportunities for treatment. You are enrolled in a certificate IV in community services and have obtained your driver’s licence. You have employment as a NDIS support services marketing and social media manager. Your disability support worker, who happens to be a recently retired sergeant of Victoria Police, attests to your dedication to overcoming substance abuse and your involvement in criminality.[27]

[27]Support letter from Brendan Leihy dated 17 November 2024.

59You entered early pleas of guilty to all offending and have shown genuine remorse for the impact that your offending has had on your victims. You fall to be sentenced as a young offender.

60No further offending was alleged against you whilst sentencing was deferred for 12 months. You complied with all conditions of bail, including regular engagement with the CISP program. You have sought out and willingly engaged with all therapeutic programs offered to you. Your progress has been outstanding.

61Your CISP report dated 9 September 2024 praised your achievements:

“Overall Ms Groves has continued to demonstrate her commitment and capacity to maintain and build on positive changes in her life. Aside from CISP, her support network, both social and professional, are largely well established in the community and not reliant on CISP to continue. This is a significant achievement for Ms Groves as it places her in a great position for continued success, once CISP is finalized toward the end of 2024.”

62You live with your mother, and she is fully committed to supporting you through your rehabilitation. Due to the excellent progress, you have made during the period of deferral, your prospects of rehabilitation are very good.

63Given your pleas of guilty, youth, the impact of your mental health upon your moral culpability, and your excellent progress during this period of deferral of sentence, the prosecution ultimately conceded that a combination sentence of not more that time served in custody was within range in all of the circumstances.

64In resentencing you I have regard to the period of imprisonment to which you were sentenced for the index offending, in accordance with the principles in the case of Luu v The Queen[28] .

[28][2018] VSCA 92 at [20]-[24].

65In summary, in sentencing you I must have regard to a range of matters, such as the seriousness of your offending, your culpability for it and your personal circumstances. I must take into account current sentencing practices for the offences to which you have pleaded guilty.

66I must balance the interests of the community in denouncing criminal conduct and deterring you and others from engaging in similar offending, with the interests the community clearly has in seeking to ensure as far as is possible, that you are rehabilitated and are reintegrated into society[29]. I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be no more than is necessary to satisfy those various objectives of sentencing.

[29]Sentencing Act1991 s 5.

Sentence

67I pronounced sentence on 28 November 2024 to comply with the provisions of s.83A of the Sentencing Act 1991, and enable you to attend for a pre planned surgical procedure. The effect of that was that you have already commenced the CCO. I repeat the sentence I imposed on that day for completeness.

68In relation to case No. CR 22-00945, which is the matter where you are alleged to have breached the community corrections order, you have admitted that breach and I found that charge proven.  I confirmed that community corrections order and imposed no further penalty in respect of the breach.

69In relation to case No: CR-22-00945, the further offending comprised by the charges of aggravated burglary, common law assault and attempt to commit indictable offence, I recorded a conviction and imposed an aggregate term of imprisonment of 287 days.  I reckoned as served 287 days, so you have served that sentence.

70In respect of the two charges of theft in that case, I convicted you and imposed a Community Corrections Order for 12 months which commenced on 28 November 2024 . 

71The conditions of this order are:

(a)   You were required to attend at Rosebud Community Corrections Service within 2 clear working days of this order commencing;

(b)   You will be under the supervision of a Community Corrections Officer for                 12 months, which means that you are required to be supervised, monitored and managed as directed;

(c)   You must undergo assessment and treatment (including testing) for:

·drug abuse dependency as directed;

·mental health as directed; and

·Programs to reduce your risk of re-offending.

(d)   You must not commit an offence punishable by imprisonment during this order.

(e)   You must not leave Victoria without permission of Community Corrections.

(f)    You must let your Community Corrections Officer know within 2 clear days of changing address or a job.

(g)   You must comply with any lawful direction given by a Community Corrections Officer that is necessary to ensure you comply with the order.

(h)   If you contravene this order by either committing further offences, or by failing to comply with the conditions then you can be brought back before this Court, fined and resentenced. That might mean you go to jail for these offences.

72You indicated your oral consent to this order in Court.

73Pursuant to s 18 of the Sentencing Act 1991, the period of 287 days of pre-sentence detention was declared as having already been served in respect of this sentence.

74Pursuant to section 6AAA of the Sentencing Act 1991, had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of two and a half years imprisonment with a non-parole period of  one year and nine months.

75I made the order sought for forfeiture and disposal by consent.