Director of Public Prosecutions v Holland

[2023] VCC 314

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00451

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRONWYN ROSLYN HOLLAND

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2023
DATE OF SENTENCE:	2 March 2023
CASE MAY BE CITED AS:	DPP v HOLLAND
MEDIUM NEUTRAL CITATION:	[2023] VCC 314

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Armed robbery - Criminal history – Institutionalised – Drug addiction

Legislation Cited: s 75A Crimes Act 1958 (Vic) – s 6AAA Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen [2013] HCA 37 - R v Lacey [2007] VSCA 196 - Worboyes [2021] VSCA 169

Sentence:3 years and 6 months imprisonment, non-parole period of 2 years and 6 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Kerlin	Office of Public Prosecutions
For the Offender	Mr S. Kelly

HIS HONOUR: 

1In this matter, Ms Holland is before the Court pleading guilty to one charge on the indictment, numbered M12212780, a charge of armed robbery.  She comes before the Court with a lengthy history, a lengthy history that was particularly described when she was before this Court on a similar charge but in more grave circumstances in 2017.  Unfortunately, when you look at the 29 pages of priors, she has been offending for many years.

2Ms Holland has a long history, unfortunately, of substance abuse, she has a long history of real personal trauma, in particular prior to her adulthood when she was living at home with her father and her mother was then still alive, before she had to care for her mother.  That traumatic childhood and her experiences of growing up and childhood deprivation do not diminish, of course, and I accept the principles set out in Bugmy v The Queen [2013] HCA 37 that this Court must always take that into account.

3The problem as faced by Judge Lawson in the earlier sentence is the same that I face.  We have a person with this history that I have just briefly detailed coming before the Court having committed a serious offence.  As the learned prosecutor indicated, we have an offence which has a maximum penalty of 25 years.  The first matter in which we start the sentencing process and which this Court must be cognitive of is the maximum penalty imposed by Parliament and the type of offence.  It has been repeatedly emphasised the importance of general deterrence to denounce this type of crime, and I accept the submissions of the Crown in that regard – as I have already said, the maximum penalty is one of 25 years.

4As to the nature and gravity of the offences, this is impacted, as rightly accepted by the learned prosecutor, by the fact that insofar as culpability is concerned, one must accept that there are mitigatory factors from the ongoing addiction.  It is quite clear that she was committing this offence for the purpose of buying drugs and I have no difficulty pursuant to R v Lacey [2007] VSCA 196, as referred to by the prosecutor, in coming to the conclusion that the link here is obvious.

5The gravity of the offence must therefore be moderated by that consideration.  The objective gravity certainly is much less than Judge Lawson was dealing with, and indeed though the operator in this bottle shop no doubt, as he said in his statement, suffered anxiety, he was not injured and there is no victim impact statement before the Court.  Anyone who is subject to armed robbery in those circumstances no doubt suffers from human anxiety as a result.  One must take those matters into account and indeed, given the history, specific deterrence, as put by the learned prosecutor, is a matter of importance.

6We then come back to the personal factors that I have referred to and those factors in particular were referred to by Mr Kelly, and I note the submissions in Exhibit 1.  It was appropriate that in the circumstances given the addiction there was no reliance on Verdins, but clearly Bugmy has strong application.

7Mr Kelly submits that there are good prospects of rehabilitation.  I do not think I can accept that submission.  That was the hope expressed by Judge Lawson but we now know that that hope was not fulfilled.  I accept, however, that this is offending at the lower end of the scale for this type of offending.  There is no doubt that there must be a disposition which includes a period of imprisonment.  It was suggested that perhaps I could set a straight term but the Act does not allow that, nor it seems to me is it appropriate.

8In taking into account her background one also has to take into account her condition.  Her condition has been essentially impacted by her lifestyle, her upbringing, and of course her long-standing and chronic drug addiction.  I refer to Exhibit 2 which is the Carla Lechner report dated 19 October 2022.  It is noted that on that assessment being made on 5 and 28 of September 2022 Ms Holland was showing symptoms of stimulant use disorder in early remission and notably while she is in gaol.  The diagnosis managed by a replacement program, there are some features of post-traumatic stress disorder and borderline personality disorder.  As Ms Holland has just said to the Court, she finds it hard to cope being alone, is fearful of abandonment and struggles with emotional and behavioural regulation.

9I accept what she said to Ms Lechner that she wanted to steal the alcohol for the purpose of drugs and I accept the circumstances where she used the laser.  I accept what she said, that she is genuinely remorseful, and I accept her comments that but for her partner telling her to take the laser, it was not her intent.  However, she did use it and must bear the consequences.

10I note the comments from Ms Lechner which concern the Court, and that is that Ms Holland is at risk of being institutionalised as she functions well in custody.  As she said to Ms Lechner, 'I'm comfortable here, I'm home, but not in the community'.  There is unfortunately only one way, a person with that history needs to be assisted and one would hope that as part of the parole there is some assistance program.  Clearly, and I do not know how people in the position of Ms Holland are able to do it and are able to find some form of drug assistance, because she does need some considerable assistance to overcome her problems.

11I would ask that the Corrections Department be given these sentencing remarks.  It seems to be a total failure of our obligation to persons in the position of Ms Holland that a Judge of this Court in 2017 can note as follows.  At [50] of Judge Lawson's sentence she said, 'It is noted that you have never undergone any formal detoxification or any residential rehabilitation for drug and alcohol use'.  It seems to me that when she is released there is an obligation on Corrections to ensure that some steps are taken to assist this woman, otherwise she is just on a merry-go-round and she will be institutionalised.  I would ask that when the matter of parole is being considered my remarks are put before the relevant Board.  There must be public funding for people in her position to get the assistance they need to break the cycle.

12I note the formal diagnosis made of Ms Holland by Ms Lechner at the bottom of p3.  I note the polysubstance abuse which I have spoken of and the need for treatment considerations.  It is noted that she is likely to benefit from both alcohol and other drug counselling, psychotherapy, and Ms Lechner strongly advises that prior to her release from custody a comprehensive treatment plan is developed, including suitable accommodation.  Again, I would ask that the Board takes cognisance of those comments.  I note [5] of the summary of opinions of Carla Lechner, who says the consequences of her offending are a matter for the Court to determine.   It seems to me it is a matter for the community to determine. 

13From a purely psychological perspective, Ms Holland would benefit from involvement with treatment services as outlined above.  She currently presents as at risk of becoming institutionalised; however, remaining in prison is not a long-term solution.  Ms Holland requires intensive support upon her release, with a well-developed management plan to minimise the risk of her involvement in the cycle of recidivism.

14It is quite clear to me that she cannot develop that plan herself and that is the responsibility, it seems to me, of the Parole Board or whichever authority is responsible for the release of Ms Holland back into the community.  It is a responsibility of those authorities to ensure steps are taken not only to protect Ms Holland, but to protect the community when she comes back into the community.

15As I said, they are the personal factors and they have to be balanced against principles of general deterrence, specific deterrence and an appropriate sentence being passed on a person with a significant history.  It is also necessary for me to note the significance of her plea of guilty which I accept is an early plea.  She is entitled to a discount in regard to that matter.  She is further entitled because of Worboyes and the manner in which people are still serving their sentences to further credit for the plea at this time and the assistance to the Justice Department.

16I take into account all of the matters put to me by both counsel.  Doing as best I can in very difficult circumstances - you can remain seated, Ms Holland - for this one charge of armed robbery you will be convicted and sentenced to a period of imprisonment of three and a half years.  I order that the period that you must serve prior to being eligible for parole is one of two and a half years.  I further declare that the 496 days that you have served be deemed service of this sentence, and such declaration be noted in the records of this Court.

17Pursuant to 6AAA, as the prosecutor has noted, I need to make a declaration.  Parliament requires me, Ms Holland, to indicate to you the benefit of your plea.  Can I indicate that had you not pleaded guilty, the sentence that I would have passed on to you would have been a sentence of five years with a minimum of four years to serve, so the benefit of your plea is that you get a sentence of three and a half years with two and a half years before you can be eligible for parole, as against what you otherwise would have got.

18Can I ask you when you talk to the appropriate authorities about your release that you make sure that they have got a copy of my remarks?

19OFFENDER:  Yes, Your Honour.

20HIS HONOUR:  No doubt your lawyers will also supply you with a copy as well.

21OFFENDER:  Yes, Your Honour.  Thank you very much, Your Honour.

22HIS HONOUR:  All right.  Good luck.

23OFFENDER:  Thank you.

24HIS HONOUR:  You have to stop this because you are a young woman with your life ahead and if you keep going like this you do not have a life, as you know.

25OFFENDER:  Yes, Your Honour.

26HIS HONOUR:  Somehow you are still alive.  That is probably amazing in itself.

27OFFENDER:  It very much is, Your Honour.

28HIS HONOUR:  All right, good luck.

29OFFENDER:  Thank you very much.  You have a wonderful day.

30HIS HONOUR:  Have I missed anything, Mr Prosecutor?

31MR KERLIN:  No matters, Your Honour.

32HIS HONOUR:  Yes, thank you.  Can I thank both counsel for their assistance.

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