Director of Public Prosecutions v Horn
[2022] VCC 1877
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-01656
CR-20-01657
CR-20-01658
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK HORN TASHMA SIGG JULIE O'NEILL |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July 2022, 14 October 2022, 28 October 2022 | |
DATE OF SENTENCE: | 28 October 2022 | |
CASE MAY BE CITED AS: | DPP v Horn & Ors | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1877 | |
REASONS FOR SENTENCE
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Subject:Armed Robbery --- Robbery --- Deception
Catchwords: Armed Robbery --- Robbery --- Victim aged 68 --- Breach of trust --- Victim Impact --- Evolving and spontaneous offending --- Offender Horn produced and used box cutter --- Limited knowledge of Sigg and O’Neill --- Parity --- Bugmy v R --- R v Verdins --- Various mental health diagnoses and Acquired Brain Injury (Horn) --- Exceptions pursuant to s.5(2H) Sentencing Act 1991 not made out --- Lengthy Delay --- Rehabilitation --- Remand during Covid-19 Pandemic --- Early pleas of Guilty for Sigg and O’Neill --- Pleas of all offenders finally entered during Covid-19 Pandemic
Legislation Cited: s.5(2H) Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] HCA 37 --- R v Verdins [2007] VSCA 62 --- Marrah v The Queen [2014] VSCA 119 --- Worboyes v The Queen [2021] VSCA 169 --- DPP v Drake [2019] VSCA 293 --- Jawarhiri v The Queen [2021] VSCA 287 --- DPP v Hermann [2021] VSCA 160 --- Eser v The Queen [2021] VSCA 287
Sentence: Horn – 911 days imprisonment
Sigg – 22 days imprisonment plus 18 Month Community Correction Order
O’Neill – 42 days imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dickens | OPP |
| For Accused Horn For Accused Sigg For Accused O'Neill | Mr L. Gwynn Mr B. Lindner Mr A. Waters | Haines & Polites Law and Advocacy Centre for Women Greg Thomas Barristers & Solicitors |
HER HONOUR:
1
On 27 July 2022, you, Mr Horn, pleaded guilty to one charge of armed robbery and one charge of possess a drug of dependence. Ms Sigg, you pleaded guilty to
one charge of robbery, one charge of obtain property by deception and one summary charge of committing an indictable offence whilst on bail. You,
Ms O'Neill, pleaded guilty to one charge of armed robbery.
2Mr Horn, you are now 43 years old, Ms Sigg, you are 35 years old and, Ms O'Neill, you are currently 50 years old.
3The victim of your offending was 63 year old Mr Russell Black. At the time of the offending, he was living at the Ibis Hotel in Melbourne. He had been living there for approximately four weeks.
4Mr Black knew you, Ms Sigg, for approximately eight years. You were formerly his neighbour. He considered you to be his friend. At times, he would let you stay at his premises or have a shower and at times he would help you with money.
5
Mr Horn, you were also living in the Ibis Hotel. Mr Black did not know you or you,
Ms O'Neill.
6
You, Ms Sigg, are the connector – known to you, Mr Horn, and you, Ms O'Neill,
however, Mr Horn and Ms O'Neill did not know each other.
Summary of Offending
7On Tuesday 28 April 2020 at approximately 10 am, Mr Black received a phone call from you, Ms Sigg. You told him that you were going to return his laptop you had borrowed from him.
8You arrived at around 10 pm and spoke to Mr Black, used his phone and then had a shower. Mr Black did not consider this to be unusual, as you had done this previously and he understood that you lived on the street. You did not have the laptop with you but said that you would go and get it and come back later. You left at around 11.30 pm.
9
Mr Black went to bed but was woken at about 5 am the next morning, Wednesday
29 April 2020, by knocking at the door by you, Ms Sigg, and a woman who he did not know. That was you, Ms O'Neill.
10Once inside, Mr Black asked you, Ms Sigg, where his laptop was and you told him that you wanted him to pay for it and asked for $150. He refused, saying that he had already given you $50 and that it was his.
11You, Ms Sigg, told Ms O'Neill to go and get the laptop from downstairs. Ms O'Neill, you left the apartment and spoke to Mr Horn, who was loitering in the hallway. You, Mr Horn, had been in the hallway when Mr Black initially opened his door. However, you stayed out of sight.
12
Thereafter, there was a lot of back and forth, with you, Ms O'Neill, re-entering the apartment briefly before all three of you had a conversation in the hallway.
Ms Sigg, you went back inside and Mr Black sat on a chair facing you and with his back to the door. You, Ms O'Neill, and Mr Horn left, returning about half an hour later.
13
Mr Black allowed you, Ms O'Neill, back into the apartment and he again sat down in the chair. There was a further demand by you, Ms Sigg. Mr Black refused and stated that he would not hand over the money until his laptop was returned. You,
Ms Sigg, again told Ms O'Neill to go downstairs. She left the room.
14
You, Ms O'Neill, returned approximately five minutes later at about 6 am. You knocked on the door. Mr Black let you in and returned to his seat with his back to the door. You, Mr Horn, waited in the hallway. You, Ms O'Neill, then asked
Mr Black for money. Mr Black turned to face you and told you that it has nothing to do with you and not to ask for money from him.
15
Mr Black then recollects that he was almost immediately hit from behind whilst still seated on the chair in his room. He tried to get up but was pinned to the ground by you, Ms O'Neill, and you, Mr Horn. Mr Black had not previously known that you,
Mr Horn, were in the room.
16Mr Black recalls being hit to the head three or four times and you, Mr Horn, saying, 'You better hand over the money 'cause I have a knife and you're going to get stabbed'. Mr Black said, 'No', and was stabbed and slashed in the upper right arm. He did not see who stabbed him. However, DNA analysis of a box cutter knife subsequently found in your apartment, Mr Horn, showed your DNA to be present on the handle. At your plea, it was not disputed by your counsel that you were responsible for stabbing Mr Black.
17
Whilst Mr Black was being held down after he had been stabbed, you, Mr Horn and/or you, Ms O'Neill, went through his pockets, being instructed by you, Ms Sigg, to look in the left pocket. One or both of you took a Bendigo Bank debit card, a Senior’s card, Victoria driver's licence, myki, Medicare card and $75 in cash from
Mr Black's pocket. Those events constitute the offence of armed robbery in the case of Mr Horn and Ms O'Neill, and robbery in the case of Ms Sigg.
18At 6.03 am, all three of you then left the apartment and went to the lifts. Mr Black can also been seen on CCTV outside his apartment. He is clearly bleeding and injured. He went to reception, where hotel staff called an ambulance and police.
19Whilst waiting for the police, Mr Black called his bank. He was told that $900 had just been withdrawn from the account.
20
About five minutes after leaving Mr Black's apartment, you, Ms Sigg, entered the
7-Eleven store at 463 Elizabeth Street, Melbourne, about 250 metres from the
Ibis Hotel. You withdrew money from the ATM.
21You then used the cash to purchase several items including Coke and cigarettes. You returned to the ATM and made a further cash withdrawal before exiting the store at 6.12 am.
22
Bank account transaction history was obtained in relation to Mr Black's
Bendigo Bank account and the records show two transactions of $900 and $50 respectively from the 7-Eleven. Those matters found Charge 2 of obtaining property by deception in relation to you, Ms Sigg.
23It is accepted that neither Mr Horn nor Ms O'Neill took part in that offence or received any financial benefit of this offending.
24Mr Black was transported via ambulance to the Royal Melbourne Hospital where he was found to have sustained swelling, bruising and an abrasion to the left side of his head, lacerations to the right upper arm, swelling and tenderness to his left hand, a fracture to the third finger in his left hand, and a superficial penetrating wound to the right lower side of his chest.
Arrest
25At approximately 11.20 am on 30 April 2020, a search warrant was executed at your address in Richmond, Ms O'Neill. You, Mr Horn, were located asleep in the main bedroom of the premises. Both of you were arrested. A number of items were seized from the premises including clothing that had blood on it, a quantity of methamphetamine and butanediol, and a quantity of cash. A box cutter knife with blood on it was found in your left pants pocket, Mr Horn.
26The drugs and cash located were found in a bum bag being worn by you, Mr Horn, and a brown satchel belonging to you as observed in your possession on the CCTV footage from the Ibis Hotel. That founds Charge 2 against you, possession of drug of dependence.
27Both of you, Ms O'Neill and Mr Horn, were transported to North Melbourne police station. Ms O'Neill was interviewed. However, Mr Horn was not, as he was deemed unfit on account of his drug-affected state.
28You, Ms Sigg, were arrested on 30 April 2020 and subsequently interviewed. At the time of the offending, you, Ms Sigg, were on bail in relation to another incident. That is Summary Charge 1, committing an indictable offence whilst on bail.
Sentencing Principles
29This is serious offending involving theft from and injury to an innocent victim in his own home. There can be no excuse for this offending. None of you were entitled to his belongings or to act in a way which was violent or threatening to him.
30In relation to the offence of armed robbery, the maximum penalty is 25 years' imprisonment; robbery, the maximum is 15 years' imprisonment; obtain property by deception, 10 years' imprisonment.
31The sentences I impose must deter others from acting in this violent way to extract goods or money to which they are not entitled. It must express the community and the court's denunciation of this type of behaviour, and it must be aimed at community protection. Specific deterrence also has a role to play for each of you.
Category 2 Offence and Section 5(2H) of the Sentencing Act 1991
32
In relation to armed robbery, the seriousness of the offending is also demonstrated by the fact that parliament has also declared that offence to be a category 2 offence to which s5(2H) of the Sentencing Act 1991 applies. That section compels me to impose a sentence of imprisonment, not in combination with a
community correction order, unless special circumstances exist.
33In relation to you, Mr Horn, it was not argued that circumstances exist which would enliven any exception to that provision. However, in relation to you, Ms O'Neill, several sub-sections were relied on to enliven my discretion, and to found an argument that the short time you have already spent in custody in combination with a CCO is appropriate. I will return to those arguments.
Objective Gravity
34
In assessing the objective gravity of offending here, I take into account the following matters. This was largely unsophisticated offending with limited if any planning. While I can conclude that there was an intention to obtain money from
Mr Black, I cannot conclude at what point it was determined to be done unlawfully. I cannot draw conclusions about what discussions were occurring at various times in the passageway. The situation seemed to evolve over time as Mr Black rightly refused to pay money for his own laptop. It seems that led to a level of frustration which culminated in the ultimate demands, and on the part of you, Mr Horn, the production and use of a weapon. In that sense, it was spontaneous.
35The offence of armed robbery is a serious one given there was actual use of a weapon as distinct from the threatened use. Fortunately, the injuries to Mr Black were superficial and not more serious.
36The prosecution case against you, Ms O'Neill, though armed robbery, is that you assisted in the commission of the offence while aware of the probability of possession of a weapon by Mr Horn. The prosecution case is that you only became aware of the fact Mr Horn had a box cutter when he told Mr Black he had a knife and almost immediately inflicted injury to Mr Black; that is, your state of knowledge was fleeting and at a time when the offence was already on foot. That fact lessens your culpability for the ‘armed' robbery.
37In relation to Ms Sigg, the prosecution case, reflected in your plea, is that you were completely unaware of any weapon, hence you have pleaded guilty to robbery simpliciter.
38
The aggravating features of the offending overall are that this offence occurred in
Mr Black's hotel room which was his residence at the time. It was a place where he was entitled to feel safe. Fortunately, it was reasonably brief.
39In relation to you, Ms Sigg, you were the one who identified Mr Black as a potential source of money. In that sense, you were the instigator of these events. Your offending represents a gross breach of his trust and his friendship. You at one stage describe him as a father figure. The materials demonstrate that he has been nothing but generous to you, helping you in times of need with accommodation, the use of his facilities and with money. That is an aggravating feature of your offending.
40In addition, even after you became aware that he had been injured, you nonetheless took his money. It is highly doubtful that he will ever see the $950 you stole. It is clear it was used by you for drugs.
41Conversely, Mr Horn, your willing and active violence against a person you did not even know is most concerning.
42You were all easily identified from CCTV footage at the Ibis Hotel and then you, Ms Sigg, at the ATM at 7-Eleven.
43In relation to you, Ms Sigg, you were on bail at the time of this offending which is further aggravating.
Victim Impact Statement
44Mr Black provided a victim impact statement wherein he stated:
Since the crime I have trouble sleeping, walking at night alone, my trust in people vastly changed, and have been suffering anxiety and panic attacks.
For the future I will still suffer panic and anxiety, disrupted sleep and eating habits, and my trust in people will suffer, I grew up with an open door and have had the same all my life. Now, I panic if I haven't locked the door and feel sad that's the case.
45Mr Black goes on to describe the physical impact of the crime:
I had a knife wound to my rib cage from behind, going between my lung and stomach. I had two large gashes to my right upper arm requiring 27 stitches, and a broken bone in my hand.
I have worked my whole life in the entertainment industry as a sound engineer, since the crime the idea of working with large crowds of people has been a worry.
46And lastly he says: 'I don't feel safe at all alone at night walking the streets and don't like people coming up behind me.' I take those matters into account.
Pleas of Guilty
47I take into account that you have each pleaded guilty to this offending. A guilty plea has saved Mr Black any additional trauma through the criminal justice process, although he was cross-examined at a committal in November 2020. It saves him reliving this event again and in front of a jury.
48A guilty plea also has a utilitarian benefit in that the community has been saved the time and expense of a criminal trial.
49In addition, you have each entered your pleas of guilty during the period of the COVID-19 pandemic when there have been considerable delays in the criminal justice system. In those circumstances, the higher courts have indicated that a plea of guilty must be given significant weight.[1] I take those matters into account.
[1] Worboyes v The Queen [2021] VSCA 169
50
In relation to you, Ms Sigg, I take into account the fact that you offered to plead guilty to the offences of obtain property by deception and either theft or robbery in
September 2020. In those circumstances, the prosecution accept this is a plea offered at the first reasonable opportunity.
51
In your case, I do accept it is a reflection of remorse for your offending against
Mr Black. During your record of interview, you were tearful and upset regarding what had happened to him, in particular, the fact he had been injured by your
co-offender and by your own part in the offending. I was told you offered him an apology when you ran into him, although that may have been somewhat
self-serving. Nonetheless, I take into account your expressions of regret and remorse.
52In relation to you, Ms O'Neill, your plea offer was made originally on 5 May 2021, some months after the committal. It was rejected despite being an offer to plead guilty to armed robbery. In those circumstances, I conclude that yours is also a relatively early plea of guilty. I take that into account.
Delay
53There has been significant delay in this matter. The incident to which these charges relate occurred over two and a half years ago.
54Although this matter was not previously listed for trial prior to its ultimate resolution in July 2022, it was delayed due to COVID-19. As the prosecutor, Ms Dickens, fairly outlined, it was, ‘put to the bottom of the pile'.
55Delay is relevant to sentencing in two ways – one, in that it hangs over an offender like a sword of Damocles and creates anxiety and uncertainty about what the future holds; and two, where the time has been put to good use by efforts at rehabilitation.
56Both Mr Gwynn and Mr Waters argued on behalf of Mr Horn and Ms O'Neill respectively that this period of delay has been put to good use by both of you in terms of your rehabilitation. I will return to those matters.
Parity
57I am mindful of the issues of parity when dealing with co-offenders. Parity is an aspect of equal justice. There should be no unjustifiable difference in sentences imposed upon similar offenders for similar offending.
58The key words are, 'unjustifiable difference.' That is because parity takes into account considerations of the offending and your roles in that offending, but it must also take into account your personal circumstances which include age, relevant prior criminal history, your personal circumstances at the time and since. In that sense, equal justice may result in different outcomes, as it will here.
59I take into account the different charges to which you have each pleaded. I take into account the roles played in this offending and the variations in your relationships with each other and the victim. I take into account your different past histories and current personal circumstances which I will now outline.
Tashma Sigg
Personal Circumstances
60I have been assisted by written and oral submissions made on your behalf,
Ms Sigg, by Mr Lindner, and by the contents of a psychological report of
Ms Lesley Denmeade dated 18 July 2022.
61You were born in Bacchus Marsh but grew up largely in South Australia. You are the second of your mother's seven children. You never knew your biological father, who separated from your mother after she refused an abortion.
62Your mother was 19 when she gave birth to you. She was a drug addict and was ultimately unable to care for you. You lived on and off with your grandparents until you were 10, and then were in foster care for periods between 11 and 14, though you often ran away to be with your mother.
63Your mother was in various abusive relationships, and you in turn were abused by her partners. One abused you physically and forcibly kept you home from school. Another was physically, emotionally and sexually abusive towards you, your sister and your mother. You were witness to serious violence perpetrated against your mother during that relationship. After one particular incident, you ran away from home and couch surfed or lived on the streets.
64In that context, you started using drugs. At the extremely young age of 11, you used speed, by 12 cannabis, and by 16 or 17, you commenced using methamphetamine. At times, your mother would source ‘better quality' ice and you and she would use it together.
65You were bullied at school on account of obvious poverty where you were not able to afford basic school supplies and did not have any lunch to eat. You attended multiple schools and in the context of your unstable home life and your experience of bullying, you started skipping school and getting into fights. You eventually stopped attending at all. Your formal education only lasted until part way through
Year 8.
66You yourself have five children, the first of whom you gave birth to at 15 to James. You had three children with him. He became abusive to you after developing an alcohol addiction. You moved to Queensland to get away from him. However, he followed and you reconciled for a time.
67After being together in Queensland, James had difficulty finding work and you both began using ice. You found employment as a sex worker to address your difficult financial situation. James left the relationship after discovering the nature of your employment and took your three children with him. They remain in the custody of his parents and you no longer have contact with them.
68You began to use heroin and your drug use increased as a means of coping with the loss of your children and the relationship, and the emotional toll of undertaking sex work. You state that you became depressed and began spending time with, 'the wrong people'.
69You then met another man, Jay, and moved to Melbourne together. You had a good relationship. However, he was in and out of jail and a heavy drug user, and you stole cars together.
70You had a fourth son to another man whilst Jay was in custody but that relationship became abusive and highly tumultuous.
71On Jay's release from custody, you soon became pregnant with your fifth child. Your relationship with him also eventually ended. He died of an overdose more recently.
72Your two youngest children were taken by child protective services in 2016 and you have not had contact with them since. They now live with your brother and his partner. You have some hope of contact with some of your children in the future though, as you have recently been told you will be allowed supervised visits. You intend to pursue that contact on your release from custody.
73Drug use has dogged you through your life, although you managed to stay clean for a five year period during your 20s before relapsing after the death of your mother. You and she continued to have sporadic contact before she passed away in 2016 after an asthma attack which led to a heart attack.
74More recently, you have also used GHB and GBL from late 2019 to early 2020, but you were the victim of a traumatic event after using those substances and have not turned to them again.
75You have made various attempts to engage with methadone programs throughout your adult life but you have never engaged in any treatment or counselling. You are currently on a methadone program and intend to utilise your time in custody to cease drug use.
Bugmy v R
76Although it was not relied on by your counsel, in my view, the circumstances of your formative years enliven the principles enunciated by the High Court in the case of Bugmy v R[2]. The foundation for that is in the report of Ms Denmeade as follows:
Ms Sigg has experienced an extensive history of trauma beginning in early childhood from the prenatal rejection of her father, inconsistency, instability and abandonment experiences of her mother, ongoing financial struggle and associated extensive childhood bullying, physical, emotional and sexual abuse perpetrated by her mother's partners on her and that were witnessed by her, and into adulthood experiences of highly abusive relationships, the loss of custody of her children, her mother's death …, and the impacts of drug use … Ms Sigg appears to have experienced long-term trauma, anxiety, and depressive symptoms throughout her life, as well as those of borderline personality disorder…
[She goes on] Ms Sigg's early life traumatic experiences and growing up in an entirely unsafe and unstable environment, appear to have held significant impacts on her development. In experiencing a lack of security and safety,
Ms Sigg's focus became survival, coping and detachment, which appear to have led her to pervasive and long-standing drug use and criminal activity. Failure of those around her in childhood to recognise and meet her basic needs, and help her to develop emotional regulation skills, seem to have contributed to Ms Sigg's paradoxical desire to both seek the safety and comfort of romantic relationships and build a family, but with partners who are often evidently unable to provide security or stability, thus repeating the dynamics of her childhood experience. In attempting to seek safety in the familiarity of chaos and significant others who are involved in criminal activity and drug use, the behaviours are also exacerbated and perpetuated in
Ms Sigg.
[2] Bugmy v The Queen [2013] HCA 37
77As stated by the Court of Appeal in Marrah v The Queen:[3]
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender's formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences.
[3] Marrah v The Queen [2014] VSCA 119
78The consequence of a finding that Bugmy is applicable is that your subjective culpability cannot be equated with a person who committed the same offences but had the advantage of a normal, stable and regular home environment.[4] That is a reflection of the principle of equal justice; though like must be treated as like, where there are differences, they should be recognised. [5]
[4] DPP v Drake [2019] VSCA 293 quoted in Jawarhiri v The Queen [2021] VSCA 287
[5] DPP v Hermann [2021] VSCA 160
79That finding of significant deprivation is a matter which does not diminish with time and which must be given full weight in sentencing.[6]
[6] Eser v The Queen [2021] VSCA 287
Mental Health
80Unsurprisingly, you have what Ms Denmeade describes as a long history of pervasive mental health difficulties including depressive episodes, intense emotional lability, high levels of anxiety, trauma-related symptoms, a history of
self-harming and suicidal behaviours and attempts and ongoing substance use issues.
81Referring to your ‘severe' presentation, she suggests a diagnosis of complex
post-traumatic stress disorder (CPTSD) and that on testing you, a diagnosis of borderline personality disorder is also indicated. In addition, she says you are experiencing severe to extremely severe anxiety and stress symptoms. In relation to the complex PTSD, she says those symptoms are related to childhood physical, emotional and sexual abuse and your abusive relationships.
82In relation to your indicated borderline personality disorder, you self-report history of intense and unstable relationships and difficulty managing your emotions. You report experiencing inappropriate and intense anger, often followed by feelings of deep sadness and depression.
83You have never been engaged in mental health treatment despite some court orders obliging the same but you report that you are currently attempting to link in with the Western CASA, Centre Against Sexual Assault.
84Given your extensive drug use at the time of the offending before me, sensibly, it was not argued that those diagnoses enliven the principles of Verdins. Nonetheless, I take them into account in a general sense. They are no doubt relevant to your experience of imprisonment.
Experiences in Custody
85Your experience of incarceration has been difficult. You were violently sexually assaulted by five female inmates during your first period of imprisonment in an incident which led to the facility being locked down.
86You are now housed in a protective unit away from the general population. However, that does mean you experience a high degree of social isolation in custody with less access to programs and activities.
87In the protective unit, you are also often in close proximity with persons charged with sexual abuse of children which, owing to your own history, is an anxious experience for you.
Prior Criminal Record
88I have taken into account your criminal record. I accept it appears to be motivated by longstanding drug addiction. There are relevant prior matters for dishonesty including a number of deceptions and burglary which resulted in a 150 day sentence in October 2018 with time already served.
89I was informed by your counsel that on 5 September 2022 in the Magistrates Court, you were sentenced to 14 months' imprisonment with a non-parole period of eight months for offences of aggravated burglary, deception and committing an indictable offence on bail. The non-parole period expired last week. Your sentence will end on 20 March 2023.
90I take that matter into account in terms of totality.
Prospects of Rehabilitation
91Despite your difficulties in custody, it is my impression that you are using your time well. I have received letters from Ms Emma Docherty, Arrest Referral Program
Co-ordinator of Star Health; Ms Natasha Dewhurst, Women Inside and
Out Program Worker with Flat Out Incident; and Ms Kirsty Moss,
Housing Outreach Officer with Women's Housing.
92Each of those persons confirm that you have reached out and sought to engage with their various programs and services, both out of custody and once back in custody. You obviously understand that you will need help on your release from custody. To that end, you have completed a comprehensive alcohol and drug assessment which can facilitate a referral to residential rehabilitation on your release. You have been assisted to complete a Victorian Housing Register application and are now on the homeless priority waitlist. You will be given short term accommodation on release by Women's Housing Limited. You have engaged in family violence programs. You have discussed the possibility of accessing the suboxone injection in the community. You are on a waitlist to receive trauma counselling and via Star Health, can continue to access programs and support in the community. The Arrest Referral Program endeavours to link clients to services for those purposes.
93You have expressed to those professionals, some of whom have been working with you since November 2020, that you wish to break the pattern of your past behaviours and that you are extremely motivated to initiate positive change in your life and hopefully in the lives of your children.
94You have also engaged in some training courses both in and out of custody, including a beauty therapy course, traffic control and obtaining your white card. You hope those matters will help you gain stable employment and improve your financial situation.
95You also have support from Scott, who is a long-time friend. You have always kept in touch and you state that you feel he is someone you can rely on. You and he have discussed you living with him with him following your release from custody. You report that that is a stable long-term option.
96You have also recently discovered, as I have referred to, that you have been allowed some supervised visitation with your younger children and you intend to pursue that contact upon your release.
97While your prospects of rehabilitation are guarded, it is a real positive in my view that you have been able to seek help and engage with those services. You know that your success will likely depend on your ability to withstand drug use, but more importantly, to engage in counselling and treatment that will help you deal with your past traumas and understand the triggers that are likely to cause instability in your life.
Sentencing Submissions
98In all the circumstances, your counsel submitted that I should impose a sentence which does not add to the one you are undergoing and to then see you released to a community correction order.
99The prosecution, while not taking issue with those submissions, did not concede that the 22 days you have already served is ‘necessarily sufficient'.
100I had you assessed for a community correction order. Perhaps unsurprisingly, you were assessed as unsuitable given, at the time of that assessment in August, you were in breach of orders and had the Magistrates Court matter outstanding. I have taken that into account, though I am not bound by that assessment.
Mark Horn
Personal Circumstances
101I was provided with helpful written and oral submissions by Mr Gwynn on your behalf. I also received a report from Dr Matt Treeby, clinical neuropsychologist and clinical psychologist. I agree with Mr Gwynn that that report was thorough and balanced. It has been helpful to me.
102You and your younger sister were raised in Gippsland by your parents. Your childhood was a difficult one, marred by alcohol misuse and violence perpetrated by your father. That was directed towards you, your sister and your mother, of whom you became protective.
103You begged your mother to leave the relationship. However, your parents remain together. Your sister also still lives in the family home. You have a very close relationship to your mother and your sister on account of that shared experience and protective feelings towards one another. Your mother and sister were present at the plea hearing.
104It seems that you and your father have rekindled some relationship, as he too would have been present but for ill health.
105Your behaviour became problematic throughout your high school years. You struggled socially and were a victim of bullying at your new school in Year 8 and began truanting and skipping class to smoke cannabis. You were repeatedly suspended and ultimately expelled three weeks into Year 11 for possessing cannabis at school.
106You have held a wide variety of jobs since the time of your late adolescence, primarily in the construction industry as a rigger and crane driver for several different companies and projects, including spending two years on the
Burnley Tunnel and later at Marvel Stadium and working for Grocon full time and Multiplex, both for periods of years. More recently, you worked as a dog groomer in a business with your former partner.
107In 2009, you sustained a brain injury in an assault and since then your occupational functioning has been poor.
108You last worked in 2017 for a brief period with a labour hire company. At the time of your offending, you were receiving JobSeeker payments. However, you do maintain your skills in rigging and crane operation and you are hopeful of employment on your release.
109You were previously married in your late twenties. You then re-partnered with a woman named Leah with whom you bought a house. You and she separated in 2018 and you have a daughter who remains in Leah's care. You are currently single.
Medical and Psychiatric History
110Your medical records indicate that you have a history of mental health difficulties with two psychiatric admissions.
111You were admitted to hospital in December 2007 with suicidal ideation following a two year period of depression, for which you had received medication. You had made a suicide attempt 12 months earlier.
112At the time of your offending, you were not accessing any mental health support.
113When you were 31 in 2009, you were struck to the side of the head with a chair. That is the assault I have referred to. You lost consciousness and were transported to Frankston Hospital via ambulance. A CT scan showed a skull fracture with depression.[7] You were transferred to the Alfred Hospital and underwent a washout of the open wound of the left frontotemporal region and elevation of the depressed skull fracture. You remained an inpatient of the neurosurgical unit. Further CT scan revealed ‘underlying extra-axial haematoma with subjacent small subcortical/cortical haemorrhagic contusions and minor surrounding oedema.’ Medical injuries indicate that you sustained a focal traumatic brain injury.
[7] CT scan revealed ‘a rounded focal depressed skull fracture of the left frontal bone 2.5cm in diameter. There was ‘trivial focal pneumocephalus seen’ along with ‘3 or 4 small focal cerebral cortical contusions subjacent to the depressed fracture.’
114At a 6 week review in February 2010, you were noted to have post-traumatic neuropsychological issues. You report functioning poorly since that time. However, there was no further assessment nor rehabilitation.
Mental Health
115According to Dr Treeby, you have a permanent acquired brain injury due to that head trauma. It is noted that frontal lobe damage of the nature you sustained is likely to compromise judgement, insight, impulse control, social behaviour, and the ability to manage and control emotions.
116You reported to him that your substance abuse escalated since that time. You attribute the breakdown of your relationship, your increase in substance use and your loss of a sense of life direction to this injury. You state that you have experienced marked problems with self-control and behavioural impulsivity.
117You further report that you struggle with attention, concentration, and emotional regulation. You describe your mood as depressed and have ongoing issues with anxiety, insomnia and night terrors.
118Your stress and anxiety symptoms were found to be elevated to an extremely severe degree when assessed using the Depression Anxiety and Stress Scales, and your depressive symptoms were classified as severe.
119You also meet the full DSM-5 PTSD diagnostic criteria in the opinion of Dr Treeby attributable to that 2009 alleged assault.
120Further, whilst your intellectual function is estimated to fall in the average range, your overall level of intellectual function is now worse than 92 per cent of your similar-aged peers, likely exacerbated by heavy substance use and your brain injury.
Substance Use
121You do have a lengthy history of substance use, starting with alcohol in your 20s. However, you made successful attempts to moderate your drinking through your 30s and attended Alcoholics Anonymous meetings. You have not consumed alcohol since 2020.
122You have also been successful in ceasing smoking and only occasionally cannabis, both of which have been daily habits in the past.
123You developed a methamphetamine dependence at age 22 which significantly worsened following your brain injury. You were reportedly smoking methamphetamine heavily at the time of your offending before me.
124You also developed an opioid dependency following your injury which transitioned to usage of intravenous heroin, on which you overdosed twice. You have been on and off opioid substitution therapy for the past 12 years.
125You also used benzodiazepines for a period following your brain injury and more recently GHB, MDMA, cocaine and ketamine.
126Between 2007 and 2010, you engaged with various drug and alcohol treatment programs, including a stint at Odyssey House residential treatment program in 2008, OpStep in 2009 and PenDAP at various times between 2007 to 2010. You have regularly attended AA and NA and still have a sponsor.
Prior Criminal Record
127It must be noted that your criminal record shows that your cognitive impairment, substance misuse and mental health factors cannot account entirely for your offending. Your first appearance was in 1997 for offences of recklessly or intentionally causing injury. There is a gap to the next appearance in 2003 for possession of money being proceeds of crime.
128Since that time, you have appeared on numerous occasions for offences of dishonesty, possession of weapons, assaults, drug offences including trafficking, and contravening court orders, including family violence orders, CCO, bail, and suspended sentences.
129Although it must be read with care due to the repetition occasioned by breach proceedings, your prior criminal history is concerning. In particular, the fact that after serving a sentence of 407 days imposed in late 2019 (with 200 days all ready served), you exited custody in early 2020, only months before this offending.
130In light of that history, there is a need for specific deterrence and
community protection.
131You have expressed, however, regret for your role in this incident, and have shown insight into the link between your offending and your substance abuse and poor decision-making.
132Nevertheless, your history of violence, substance use problems, antisocial personality traits, and issues with stress, impulsivity and emotional regulation places you in the moderate-to-high risk category for longer-term re-offending according to Dr Treeby.
Prospects of Rehabilitation
133In light of that history, your prospects of rehabilitation are guarded. The turning point, it is argued, has been your lengthy period of remand for this offending during the period of the COVID-19 pandemic. When I asked Mr Gwynn why this time coming out of custody would be different, he advised that this remand has indeed been ‘hard time'.
134Mr Gwynn submitted that not only have you spent a very lengthy time on remand for this offending; it has been extremely difficult due to the COVID-19 pandemic. The timing of your remand on 30 April 2020 coincided with the start of the pandemic and as such, you have endured that remand entirely under the regimes and strictures adopted by the prison authorities to cope with that situation. I accept that represents possibly the most difficult time for prisoners in Victoria in the modern era. The prison setting became a more onerous one with increased lockdowns, limitations on in person visits and disruptions to education and rehabilitation programs. Higher courts have stated that the difficulties of time in custody during the COVID-19 pandemic must be reflected in palpable discounts in sentencing.[11] I take those matters into account.
135Although you have served periods of imprisonment in the past, you describe this most recent experience as being a very difficult one for you. It has motivated you to change.
136You have stated your intention to distance yourself from antisocial peers on your release to the community. You recognise the need to recover from your substance abuse issues as a means of minimising your risk of re-offending.
137According to Dr Treeby, you would be eligible for services under the NDIS given your acquired brain injury and you may benefit from engaging with organisations with specific programs to assist offenders with cognitive impairments. His report is appreciated by your and your family and will provide a springboard for that application. That represents the possibility of a new raft of supports to you.
138Your counsel submits that in all the circumstances, in particular, taking into account your period of remand during pandemic, your plea of guilty, the long delay to resolution of this matter, your efforts in custody as demonstrated by a number of certificates and urine screens and the possibility of available supports, both from your family and the prospect of an NDIS package, the sentence I impose should reflect the period already served. The prosecution position is that a term of imprisonment is warranted. They make no submission that it must include a
non-parole period.
139In my view, this is one of those scenarios brought about by COVID-19 where a person has spent such a considerable time on remand, that even if I was considering a non-parole period, the appropriate length of such a term would likely equate to the period of remand already served. The result of imposing a parole sentence is that you would likely serve the entire head sentence or a significant portion of it. Although there are cases where that would not be unjust, in the circumstances of this case and your personal circumstances, my view is that it would be inappropriate. I accept in particular given your age, a period on parole is not necessary. In short, your rehabilitation is up to you. I accept counsel's submission ultimately that the period of remand equates to the appropriate sentence for this offending.
Julie O'Neill
Personal Circumstances
140
I have been assisted by submissions, both written and oral, from your counsel,
Mr Waters. I have also received two reports from psychologist, Ms Gina Cidoni.
141You were born a twin in Melbourne and raised in Northcote by your parents. You describe them in mostly positive terms but say they were over-protective of you. They are in their 70s and you remain in touch with them. They are a support to you and no doubt vice versa.
142Your twin, who lives with your parents, now has thyroid cancer.
143
You attended school up until Year 10 at Exhibition High School. After leaving, your first job was at a bakery and then you worked at a newsagency. You also worked as a pick-packer at a décor factory. You have also volunteered with the
Salvation Army and Fair Share.
144For reasons that are not entirely clear to me, you started using cannabis and amphetamines from age 14. You used benzodiazepines including Serapax and Valium at age 17 and then heroin at 18.
145In 1992, you stabbed your twin brother during a psychotic episode. You were intoxicated at the time and called an ambulance following that incident.
146
When you were 22, you moved out of home with your boyfriend, Michael. Your parents disapproved of that relationship. You and he had a daughter who is now
29 years old and has a child of her own. When you became pregnant, you stopped using drugs.
147Michael died when he was aged 25 after his brother inadvertently suffocated him while they were drug-affected. Following that sad event, you returned to your parents. At that time, you relapsed to drug use. In relation to your history of drug use, Ms Cidoni concluded that you have used drugs as a, 'coping mechanism to cope with emotional distress stemming from [your] negative life experiences'.
148After a period, you moved into public housing in Collingwood where you remained for two years.
149When you were 23, you were stabbed three time in your right side and spent nine days in hospital.
150You then formed a relationship with a man, Neville, and were together for nine years. He had two sons from a previous relationship and you helped raise those boys. You suffered a miscarriage while with Neville.
151In a letter you have written to the court, you describe Neville as the love of your life. In 2009, he died following an aneurism. You were present when this happened. You recall that he had a seizure and was taken to hospital. You say in your letter that one of the hardest decisions you have had to make was turning off his life support.
152Following Neville's death, you moved to another flat in Collingwood. While living there in 2011, you were seriously victimised by a neighbour. On 11 October 2011, you and he had an altercation where he punched you in the head several times. You called police but they did not attend.
153
Later in the day, the neighbour approached you again, squirted you with petrol and set you alight. A friend came to your assistance and police attended. You were taken by ambulance to the Alfred Hospital where you were treated for serious burns to your buttocks and lower back and minor burns to your breasts, arms, head and neck. Twice you underwent surgery and had skin grafts. You were monitored as an outpatient by your general practitioner. The perpetrator of that attack was ultimately sentenced to five years' imprisonment with a non-parole period of
three years.
154
Following that incident, you suffered severe anxiety and as a result of that incident, you meet the diagnostic criteria for post-traumatic stress disorder (PTSD).
Ms Cidoni prepared a psychological report for the Victims of Crime Assistance Tribunal in 2015. She notes that, even though that event had occurred four years prior to her assessment in 2015, you had never returned to Collingwood.
155You remained severely depressed after that series of events and at times had psychiatric or psychological treatment.
156You were moved from the public housing in Collingwood to Richmond. You have lived alone there for about 10 years with your two dogs. You do not enjoy that area though, describing it as ‘very bad'. You are hoping to move to a new environment and to have a two-bedroom place to accommodate your daughter and/or granddaughter.
157
Your granddaughter sees a speech pathologist and likely has autism. She is
four and a half. You play a support role to your daughter in dealing with your granddaughter's conditions.
158You now receive the Disability Support Pension.
Prior Criminal Record
159You have a prior criminal history which largely relates to your drug use. That history commenced in the 1990s with matters involving drug trafficking, prostitution, burglaries, assaults, possessing cannabis and drunken behaviours. In 1992, there was the stabbing of your brother.
160You appeared a number of times in the early 2000s for drug-related offending including shop thefts, burglary and assaults. Your history must also be read with care given repetition due to a number of breaches of court orders.
161
What is most noticeable about it is that your offending has dramatically decreased over more recent years, particularly after the assault on you in 2011. There are considerable gaps in your offending history. In 2009, you were fined for shop theft. In 2010, you undertook a 6 month CBO for an assault. In 2012, you were dealt with for shop theft and your last appearance prior to this incident in 2020 was
three years earlier on 23 August 2017 for an assault where you received an adjourned undertaking.
Remand and CISP Bail
162
You were initially remanded on this offending, spending 42 days in custody before being granted CISP bail. Your engagement with CISP was described in the final report as ‘genuine and sincere'. You completed that bail without any incident, attending all supervision appointments, alcohol and drug assessment and
four sessions of counselling and maintained your abstinence from drugs during your CISP engagement.
163Mr Waters relies on this compliance with CISP as evidence of ‘achieved rehabilitation' and submits that any sentence I impose should be directed towards preserving the progress you have achieved.
Mental Health
164According to Ms Cidoni, on testing, you meet the full criteria for PTSD, major depressive disorder, generalised anxiety disorder and substance use disorder.
165Ms Cidoni opined that:
The nature and severity of [your] symptoms are moderate to high, affecting [your] mental capacity, [your] thoughts, and [your] behaviours.
[Your] trauma exposure has caused heightened physiological and psychological stress reactivity, undermining [your] ability to respond functionally to stressors. The resulting impairment contributes to [your] behaviours.
166She went on to say that the four conditions listed:
…collectively result in situations of disordered thinking where [your] ability to exercise appropriate judgement, make calm and rational choices, think clearly, and control [your] behaviour are impaired. [According to Ms Cidoni] This reduces [your] moral culpability with respect to Verdins.[8]
[8] I note in my view it is not appropriate for a Psychologist or Psychiatrist providing a report as an expert witness to make reference to R v Verdins. That is a legal submission to be made by Counsel on the basis of psychological/psychiatric material and opinions contained in such a report.
167In regard to the impact imprisonment may have on you, Ms Cidoni stated that you are:
…a reduced woman who could exhibit many different symptoms in response to this environment including intense emotional reactions, inappropriate rage, dramatic mood swings, intensely painful feelings of anxiety, distress, and sadness, and impulsive behaviours that can lead to dramatic conflict with others. This will most likely worsen [your] illness and outcomes
[emphasis added].
168In addition to psychological testing, Ms Cidoni assessed your cognitive function. She concluded on testing that your IQ is 77, being in the borderline range. She opines that at that level, your skills such as reasoning, planning, solving problems, thinking abstractly, comprehending complex ideas and learning from experience, are compromised.
Category 2 Offence
169The most difficult feature of the sentencing task before me relates to s5(2H) of the
Sentencing Act 1991 as it applies to you, Ms O'Neill. That section mandates a term of imprisonment for the offence of armed robbery unless particular exceptions apply.
170Your counsel, Mr Waters, argued that a number of exceptions apply in your case. First, he relies on the reports of Ms Cidoni as establishing that you have impaired mental functioning at the time of the commission of the offence, and that that condition substantially and materially reduces your culpability.
171Second, he submits that your impaired mental functioning ‘would' result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment than an offender without that condition.
172Third, he relies on your mental impairment in combination with a range of other factors to submit that the cumulative effect is such that sub-s(e) applies to enable me to impose a term of imprisonment in combination with a CCO.
173Ultimately, I have concluded there are problems with all three of those arguments.
174First, I should say, I accept you have a mental impairment. You have significant diagnoses of PTSD, major depressive disorder and those conditions must be viewed through the prism of your lower cognitive functioning.
175However, on rigorous scrutiny, the reports from Ms Cidoni have not been of assistance to me in understanding whether and how those conditions affected you at the time of the offending. The comments she has made, and which I have extracted above, are general and broad descriptions of behaviours which could arise. She does not say your behaviours suffered from those features at the time of the offending.
176Further, s.5(2HA) specifically prohibits me from taking into account mental impairment if it is caused substantially by self-induced intoxication. Ms Cidoni does not refer to how your mental impairment was affected by the interplay of your admitted illicit drug use at the same time or whether that was a substantial contributor to your behaviours.
177Obviously, a second effort to elicit information from Ms Cidoni was made, resulting in the addendum report. Even with the additional report, I could not conclude on the basis of Ms Cidoni's reports that your mental impairment had a causal link to your offending such as to enliven R v Verdins[9] limbs 1 to 4, let alone what seems to be the higher test in s5(2H)(c)(i).
[9] R v Verdins [2007] VSCA 62
178I do accept at its highest, on balance, that your mental impairment would make imprisonment more burdensome and may exacerbate your poor mental health, such as to enliven limbs 5 and 6 of Verdins. However, I could not say that is a substantially and materially greater burden than for other prisoners such as to enliven s5(2H)(c)(ii).
179Taking those findings at their highest – that is, Verdins limbs 5 and 6 apply – I have considered those matters in combination with the matters listed by counsel as founding s5(2H)(e). Those are: the circumstances of the offending and your very limited role and state of knowledge of the weapon; the fact you derived no benefit from the offence; your personal circumstances, including your experiences of significant trauma; your low cognitive functioning; the fact you live alone; the fact you are now a grandmother; the fact you spent 42 days in custody at the time of the COVID-19 pandemic; the significant delay in this case despite a plea offer in
May 2021; your positive performance on CISP bail and steps towards rehabilitation; and the fact your repeated plea in 2022 came during the COVID-19 pandemic.
180The test under sub-s(e) is designed to be difficult. I cannot and do not ignore that. The combination of circumstances must be substantial and compelling and exceptional and rare. Taken in conjunction with the prohibitions in s2(HC), they are almost unattainable. I do not accept that they are enlivened here.
181That leaves me in a position where the only appropriate disposition is a term of imprisonment. Ms O'Neill, you have served 42 days. The question then becomes whether I must return you to incarceration after having been on bail for some
two and a half years.
182In coming to the conclusion I have, I have taken into account those matters raised by Mr Waters which I have listed above in consideration of subsection (e)[10]. The most crucial to my mind are as follows.
[10] In paragraph 179
183In my assessment of your culpability, your fleeting involvement in the offending is a crucial part of my consideration. CCTV footage showed that from the time of entry by Mr Horn to the time you all exited Mr Black's apartment was a period of one and a half to two minutes. Your knowledge of the probability of Mr Horn having a weapon arose within the confines of that one and a half to two minute window. That is the basis of your plea to this category 2 offence. In other words, the meeting of minds here was instantaneous and fleeting. A category 2 offence of armed robbery is enlivened here because the offence is committed in company and the victim was injured.
184Next, you offered to plead guilty at an early stage but it is clear your matter and the matter of Ms Sigg was entangled with and affected by the prosecution of
Mr Horn. The delay therefore was not of your doing. It has been
significant – some two years and nearly seven months since the offending. In the context of your pre-existing mental health conditions, I accept that has been particularly stressful to you. You have well understood the potential consequences.
185You have affected rehabilitation since then, first on CISP bail and then apparently of your own volition.
186You play a role for your daughter, your granddaughter and your parents. You have not reoffended.
187Your past history means you will always be a high risk of relapse and of
re-offending. However, I assess your prospects of rehabilitation as being good, in particular, given there has been very limited re-offending in over a decade.
188Next, the time you did serve on remand of 42 days coincided with the beginning of the pandemic. I refer to the comments I have made regarding the circumstances of imprisonment and the way higher courts have treated that circumstance. You must receive a palpable discount in those circumstances.
189Ultimately, I have concluded that I should not interrupt your progress by sending you back to custody. The irony of this legislative straitjacket is obvious. Rather than impose a regime on you which would involve a punishment aspect but may also have provided some supervision and support, I am releasing you to your own devices.
190However, in my view, that is the appropriate sentence in your case. In that regard, I am heartened by two factors. First, the fact it has been suggested to you that your mental health diagnoses may mean you are eligible for an NDIS package which would provide you with a raft of supports. In my view you should be encouraged and assisted to make that application. Second the fact of your age. You are now 50 and, in my view, your future, including decisions around any ongoing drug use or engagement with counselling or other services, is well and truly in your hands.
Current Sentencing Practices
191Finally, I am required to take into account current sentencing practices. I have given consideration to the Judicial College of Victoria case summaries and to a number of cases. As always, there are similarities and differences. Ultimately, I am required to impose a just sentence in all the circumstances and that is what I have endeavoured to do. I do note that both major offences here of armed robbery and robbery cover a wide spectrum of offending circumstances and result in sentences which cover the full spectrum of available dispositions.
192The sentences I propose to impose, therefore, are as follows.
Mark Horn
193Mr Horn, on Charge 1 of armed robbery, you are convicted and sentenced to
911 days' imprisonment.
194I declare you have served 911 days on remand and that that period should be reckoned as having been served under this sentence.
195On Charge 2 of possession of a drug of dependence, you are convicted and sentenced to two months' imprisonment. That sentence is concurrent.
Tashma Sigg
196Ms Sigg, I propose to impose an aggregate sentence on all three charges,
Charge 1 of robbery, Charge 2 of obtaining property by deception and
Summary Charge 4 of commit an indictable offence on bail. That is because they are all closely connected and part of the one series of offending. On all
three charges, you are convicted and sentenced to 22 days' imprisonment plus an
18 month community correction order, which is to commence upon your release from custody from the sentence you are presently undergoing. I make no order for cumulation with your current sentence.
197The conditions of that order are supervision; testing and treatment for drug use; testing and treatment mental health. That is an order aimed at your ongoing rehabilitation and hence, I am not imposing any unpaid community work. The punishment aspect is already achieved by your time in custody and in part, I take into account totality in that regard.
198I declare that you have all ready served 22 days on remand and that that period should be reckoned as a period under this sentence.
Julie O'Neill
199Ms O'Neill, on Charge 1 of armed robbery, you are convicted and sentenced to
42 days' imprisonment.
200I declare that you have already served 42 days in custody and that that period of time on remand be reckoned as having been served under this sentence.
s.6AAA
Mark Horn
201Mr Horn, pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty, the sentence I would have imposed would have been one of four years and
two months' imprisonment with a non-parole period of two years and six months' imprisonment.
Tashma Sigg
202Ms Sigg, pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty, the sentence I would have imposed would have been two years and two months' imprisonment with a non-parole period of 15 months' imprisonment.
Julie O'Neill
203Ms O'Neill, pursuant to s 6AAA of the Sentencing Act 1991, but for your plea of guilty, the sentence I would have imposed would have been one of two years and
six months' imprisonment with a non-parole period of 18 months' imprisonment.
Disposal Orders
204I propose to make the ancillary orders for disposal as sought by the prosecution against Mr Horn and Ms O'Neill, noting they were not opposed. Are there any matters to raise, counsel?
205MS DICKENS: No, Your Honour.
206MR GWYNN: No, thank you, Your Honour.
207MR WATERS: Thank you, Your Honour.
208HER HONOUR: In fact, sorry, there is one matter that should be raised. Ms Sigg, I cannot impose a community correction order without consent to that order. Ordinarily, that would happen in person in court by you signing the order but given the circumstances of having you appear from custody, I can take your verbal agreement that you will undertake that order. Do you agree to undertake that order that I have outlined upon your release from custody?
209OFFENDER SIGG: Yes, I do. Yes.
210HER HONOUR: And do you understand that any breach of that order, whether it is by re-offending or by not doing what Corrections tell you to do, that you would be brought back before me with the prospect of being re-sentenced on the offending that is now before me today? Do you understand that?
211OFFENDER SIGG: Yes.
212HER HONOUR: What I will do is I will have the copy of that order provided to
Mr Lindner and your solicitors. I will not have it forwarded to the prison given sensitivities around information being forwarded to the prison but your solicitors will no doubt be in touch with you to outline that order - - -
213OFFENDER SIGG: Yep.
214HER HONOUR: - - - so that upon your release, you know exactly what you are required to do - - -
215OFFENDER SIGG: Yep.
216HER HONOUR: - - - and I am hopeful that Corrections Victoria will make contact with you before that time so that things are in place as soon as you are released and there is no gap in time for those services to kick in, all right?
217OFFENDER SIGG: Yes, thank you.
218HER HONOUR: Thanks very much.
219MR GWYNN: Your Honour, I think Mr Horn had put up his hand.
220HER HONOUR: Yes.
221MR GWYNN: So I do not know if he just wants to speak to me afterwards or - - -
222HER HONOUR: Mr Horn, if it is simply that you would like to talk to Mr Gwynn and make sure you are clear on things, I am happy to leave you on the link when I leave the court.
223OFFENDER HORN: Yes, Your Honour. I am not sure what is going on so thank you.
224HER HONOUR: No problem.
225OFFENDER HORN: Thank you.
226MR GWYNN: Thank you, Your Honour.
227HER HONOUR: Thanks very much. Thanks to all counsel for your assistance. I will now adjourn.
228MR WATERS: Thank you, Your Honour.
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