Director of Public Prosecutions v Hadzig

[2018] VCC 1326

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01903

DIRECTOR OF PUBLIC PROSECUTIONS

v

TANIA HADZIG

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Geelong and Melbourne
DATE OF HEARING:	8 February 2018 and 20 August 2018
DATE OF SENTENCE:	20 August 2018
CASE MAY BE CITED AS:	DPP v Hadzig
MEDIUM NEUTRAL CITATION:	[2018] VCC 1326

REASONS FOR SENTENCE
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Subject:  Criminal law – Sentencing

Catchwords:  Armed robbery and make threat to kill – early plea of guilty – applicability of Verdins principles – mental illness – previous good behaviour – non-custodial disposition imposed

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Maguire (Plea)	John Cain, Solicitor of Public Prosecutions
For the Accused	Ms G. Connelly (Plea)	Victoria Legal Aid

HER HONOUR:

1Tania Hadzig, you have pleaded guilty before me to one charge of armed robbery and one charge of make threat to kill.  They are both very serious charges, and that is reflected in the maximum penalty that has been prescribed by Parliament, and that is, 25 years' imprisonment for armed robbery and ten years' imprisonment for make threat to kill. 

2I will now proceed to sentence you on the basis of the summary of prosecution that was read by Mr Maguire at the time of the original plea hearing in Geelong on 8 February 2018.

3I note that you were 28 at the time of the offending and you are currently 29.

4Dealing firstly with Charge 1. The circumstances of the armed robbery are that on 30 June 2017, at about 9.20 pm, you entered the Lord Nelson Hotel bottle shop in Bellarine Street, Geelong.  Because your conduct at the bottle shop was considered to be suspicious, you were being observed by two employees, including the victim, Jack Visintin (a 21-year-old).

5Mr Visintin decided to approach you, and as he did so he could see that you were holding a bottle of wine in your hand, and there was another one down your top.  He asked you whether he could have that bottle of alcohol back.  You then produced a box cutter knife, extended the blade and gestured towards him, stating you did not have the bottle of vodka.

6He said he felt frightened when he saw the knife and stepped back out of the way.  You then left without paying for the alcohol.  The incident was caught on CCTV footage. You were seen by two witnesses getting into a vehicle and driving away (Charge 1 – Armed Robbery).

7The circumstances of Charge 2 occurred on the following day.  On 1 July 2017, you were seated on a concrete archway located at the corner of Railway Terrace and Mercer Street in Johnstone Park, Geelong.  A 20-year-old female was walking along Railway Terrace about 5.30 pm.  Her name was Ms Makayla Caccamo. 

8She said that you had a box cutter knife in your hand, and as she walked past, you held up the knife in front of her face and said to her "you're going to die tonight sweetie".  She began to walk faster, and thereafter she said you held the knife in her direction and stared towards her and said words "I'm going to kill you".  That constitutes Charge 2.

9Ms Caccamo was anxious and ran across the pedestrian crossing and went straight to the Geelong Police Station, where she reported what had occurred.  Shortly thereafter two police attended on you at Johnstone Park.  They negotiated with you for you to drop the box cutter, which you did within minutes of their request.  You were then arrested and interviewed.

10You made full admissions during the interview concerning about the incident at the bottle shop, stating that you had only had enough money for the cheap wine but wanted something stronger. You also told police that you could not remember much about what occurred in Johnstone Park.

11You were remanded on 2 July 2017 and released on CISP bail on 6 July 2017.

12Of some significance is the fact that you have no prior criminal history.  It is accepted that you indicated your intention to plead guilty to all charges at the earliest possible stage at committal mention on 15 December 2017. 

13Ms Connelly has represented you throughout the proceedings, and she has given detailed background information and made submissions on your behalf. 

14I note you were born in Stawell and raised by your parents in that region.  You have four other siblings.  You have frequent contact with your younger sister Georgie, who lives in Horsham and who has provided you with support on the two occasions that you have been before the court.

15You do not have much by way of assistance from your other family members.  Your parents separated when you were about four, and you remained living with your mother, visiting your father on a fortnightly basis over the weekends.  Both parents have subsequently re-partnered.  You had a difficult relationship with your mother, characterised by both physical and verbal abuse, and it was not a nurturing family environment. 

16You were successful in completing your education at Dimboola Memorial Secondary College, and you also completed a Bachelor of Education at Latrobe University.  You subsequently obtained employment as a teacher at Dimboola High School for one year, Charlton Secondary College for two years and St Arnaud Secondary College for two-plus years.

17You were suspended from teaching in March 2016 because of some issues concerning abuse of alcohol and your associated inability to undertake teaching duties.  You have a history of binge drinking alcohol from about age 17.  Your drinking became more problematic whilst living and working in Charlton, and became even worse after your suspension from teaching.

18Around the time of the offending, you were also abusing heroin, which was isolated to June of 2017.  You have also had a long-term problem with abuse of prescription drugs.

19In mid-2017 you went to live in the Geelong area, staying with your sister Georgie initially.  You enrolled, but did not complete a Diploma of Community Service Work at the Gordon TAFE.  Sadly, some of the subject material in that course triggered personal issues.

20In the past you have been the victim of sexual abuse and you did not cope well when your personal issues were triggered.  Whilst acknowledging that you have suffered in the past as a consequence of your sexual abuse, you have not been able to have counselling, because you are not currently in a healthy position to undertake that counselling.

21The context to this offending was that your mental health conditions had come to the fore.  You had had a number of admissions into the Geelong Hospital for mental health problems.  You had left your sister's accommodation and moved to student accommodation and then private share houses, but that situation had broken down and you were homeless.  You made attempts on your life around about that time as well, and there were some admissions to hospital related to that.

22The context to the offending was that you had experienced difficulties managing your alcoholism, coupled with your abuse of prescription drugs and escalating mental health issues.  There has been a diagnosis of borderline personality disorder and an additional diagnosis of major depressive disorder, alcohol and benzodiazepam use disorder.

23Your mental health problems have been evolving since you were about in your mid-20s, and are ongoing.  You have suffered a deterioration in your mental health over the years, with increased risk of self-harm, mood fluctuations, inability to cope, anxiety, helplessness, maladaptive coping mechanisms, and those issues are still ongoing.

24You are now living in the Ballarat region, and having treatment through Ballarat Community Health, and seeing a psychiatrist, Dr Singh, on a two-monthly basis.  You are under prescribed medication for your condition, but compliance is an issue.

25I have had regard to the context of your offending, and accept that your mental health issues were to a large extent the trigger in respect to your offending.  I note that since your release on strict CISP bail conditions since 6 July 2017, you have not reoffended, and face no current charges.

26I have had regard to the report of Ms Melanie Lishman, who is the AOD care and recovery coordinator at Ballarat Community Health, and in her letter of 15 August 2018, she confirms that you completed the eight-week community rehabilitation program known as "Making a Change" day rehabilitation program. That program has a focus on relapse prevention, life skills and engaging with the community.

27She said that you had 100 per cent attendance and good engagement with the program.  You are currently working with her, and she provides you with post-rehabilitation support.  She considers that you have properly engaged with her, and you are still working, developing and implementing effective coping strategies. 

28She reports that you have reported abstinence from all alcohol and illicit substance abuse since the time of engaging in the MAC program, and that appears to her to be consistent with your presentation.

29She states that you have advised her that you are determined to maintain abstinence and work towards your goals by maintaining engagement with support services and continuing education around relapse prevention. She will continue to work with you into the future.

30Unfortunately, your housing situation broke down, in terms that your brother was unable to continue to offer you housing at his home, such that you are now in shared women's transitional housing provided by Berry Street in Ballarat. That is currently available for you, but long-term arrangements will have to be made for you to obtain alternative accommodation.

31You are said to have engaged well in respect to that program, and you are abiding by all the house rules and you get along well with the other tenants.  Ms Lewis, the case manager from Berry Street, continues to provide you with support whilst you are in the program, and will support you finding stable ongoing accommodation.

32You have ongoing supports through Ballarat Community Health in terms of your current psychiatric conditions. 

33The court sought and obtained a Pre-Sentence Report as to your suitability for a Community Correction Order.  That report came back noting that you had been assessed as high risk, and that the service had found you unsuitable to undertake a Community Correction Order at this time.  Unfortunately, the writer of that report was not provided with the letters that have been furnished with the court from Ms Lishman, and also from the Berry Street worker, which in my view provide a positive indication of your prospects for the future.

34Having regard to your conduct since the time of the commission of the offences and also the adherence to the CISP bail conditions, I do consider that this is a case where it is appropriate to impose a Community Correction Order so as to enable you to be continued to be supported within the community, to enable you to maintain your therapeutic relationships.

35Overall, I have had regard to the powerful mitigating factors that have been highlighted, namely your early plea of guilty entered at the earliest stage.  There was real utility in your plea.  You spared the State in the inconvenience and expense of a trial, and also the possibility of the witnesses having to come to court to give evidence.  Therefore you have facilitated justice and your sentence will be discounted accordingly.

36I acknowledge that the plea is a recognition of genuine remorse on your behalf, and you do now acknowledge that what you did was wrong.  Your offending is reflective of your fragility and your mental health issues, which are now being appropriately addressed in the community.

37Overall, given the mental health conditions that were relevant at the time of the offending, I have moderated the need for both general and specific deterrence, and I consider your moral culpability as somewhat reduced.  Your mental health is also relevant in terms of the type of sentencing disposition to be imposed.

38As I have earlier indicated, I propose to convict you in respect to both charges, and you will be placed on a Community Correction Order for one-year's duration, commencing from today's date, with the conditions that you must be under the supervision of a Community Corrections officer at the Ballarat Community Correctional Services for that year, and undergo assessment and treatment, including testing for drug abuse or dependency as directed, noting that that relates particularly to the abuse of prescription drugs.

39You must also undergo any mental health assessment and treatment that is recommended, and there will be judicial monitoring, the first occasion for which will be that you have to come back to court on 20 November 2018 at 10 am, so that I can get a progress report and ensure that you are being properly supported in the community.

40I have had regard to the other material that has been filed on your behalf, including Mr Jeffrey Cummins' report dated 24 November 2017, which details in full your history of mental health declining progressively from about 2014 onwards, and your general history of trauma-related abuse, and your condition generally, and I do not propose to reiterate what is set out there, other than to say that I have had regard to that information.

41I have also had regard to his expressed opinion that, given your mental health, that you would be at risk if you were to be put in gaol and have to undergo time in custody, because that would be more onerous for you than others who do not have your documented and very recent mental health history.

42He recommends ongoing mental health treatment. The order that has been crafted is specifically formulated to ensure that you are getting proper therapeutic support within the community, and so that you can maintain the relationships that you have developed, particularly with Ms Lishman.

43Following deferral of sentence in February of this year, you did complete the “Making a Change” course, and you appropriately engaged with that course, so that augers well in terms of your prospects of rehabilitation.  Overall, I am optimistically guarded that with appropriate supports you will be able to complete the order, remain offence-free, and therefore provide a better future for yourself.

44By ensuring that you have proper therapeutic supports in the community, that will also enhance the prospect of community protection as well.

45So notwithstanding the very serious nature of the offending, I do consider that a Community Correction Order with the conditions that I have crafted is the most appropriate sentencing disposition. I have had regard to the guideline judgment of Boulton v The Queen, and the fact that even in serious cases sometimes, appropriately-crafted Community Correction Orders can enable all the purposes of punishment to be served simultaneously in preference to prison, which is skewed towards retribution and deterrence.

46The formal court orders are, in respect to the two charges, the armed robbery and make threat to kill, you will be convicted and placed on a one-year Community Correction Order with the conditions of supervision, the condition that you undergo programs for treatment in respect to drugs, including testing directed at abuse of prescription drugs, and also undergo programs and treatment in respect to mental health if deemed necessary.  There will be judicial monitoring, the first occasion of which will be on Tuesday 20 November 2018 at 10 am.

47Given the strict compliance with the CISP bail conditions over an extended period, your presentence detention of six days and your diagnosis of borderline personality disorder and congoing mental health fragility, I do not consider that a community work component is required.

48Finally, pursuant to s.6AAA, but for your plea of guilty I would have convicted and sentenced you to a three-year Community Correction Order on the same conditions.

49Application has been made pursuant to s.464ZF for a forensic sample order, I understand.  Is that consented to?

50MS CONNELLY:  Yes Your Honour.

51HER HONOUR:  All right, in view of the seriousness of the charges, that will be made.  Have we got those orders?  I do not appear to have them.  Have you got the orders, Mr Maguire, in respect to the taking of the forensic sample?

52MR MAGUIRE:  Your Honour, I just ‑ ‑ ‑

53HER HONOUR:  If not I can ask that your instructor provide those to my associate.

54MR MAGUIRE:  Your Honour, I do have a copy.

55HER HONOUR:  You do, all right.  I will give my associate the Community Correction Order.  And if you can give me that, I will sign those.  All I need to do is to tell Ms Hadzig that I have made that order. 

56What that means, Ms Hadzig, is that you have to go into the police station and they will give you a little cotton bud to place in your mouth, and you just scrape it on the side of your mouth, and provided you do that, that complies with the order.

57But I do have to tell you that they can use reasonable force to take the sample if you do not cooperate, but hopefully that will be avoided if you cooperate.  And I am making that order because of the seriousness of the charges, and the fact that it is by consent, and I consider the order is in the public interest.

58That is all I need to say.  My associate will approach you now with Ms Connelly and get you to formally sign the order, which will give effect to what I have just said.  Is that one for non-custody, because it does not say "the Ballarat Police Station".

59MR MAGUIRE:  Yes Your Honour, perhaps if I could just withdraw that, and my instructor will fill in another document.

60HER HONOUR:  That is all right, if you could ask your instructor Ms Fernando just to send one through to my associate and I will sign it today.

61MR MAGUIRE:  Thank you Your Honour.

62HER HONOUR:  So usually - it is 28 days, is it not, that they have to go to the police station?

63MR MAGUIRE:  Yes Your Honour.

64HER HONOUR:  Yes, so you will have 28 days to go to the Ballarat Police Station to give the forensic sample.  Is there anything else Ms Connelly?

65MS CONNELLY:  No Your Honour.

66HER HONOUR:  No.  I have not declared the PSD, but I have noted it in my sentencing remarks, so that if that is an issue in future, that can be addressed, all right?

67MR MAGUIRE:  If Your Honour pleases.

68HER HONOUR:  Good, thank you.  Ms Hadzig can be released from the dock.  We will give her a copy of the Community Correction Order that has been signed this morning before she departs, all right?  I will just stand down and let you know when we are ready.

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