Director of Public Prosecutions v Irwin

[2014] VCC 145

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 14-00101

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLIE IRWIN

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	14 February 2014
CASE MAY BE CITED AS:	DPP v Irwin
MEDIUM NEUTRAL CITATION:	[2014] VCC 145

REASONS FOR SENTENCE
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Sentence:

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

HIS HONOUR:

1You, Kylie Irwin, have pleaded guilty before me to one count of armed robbery.  The circumstances of this crime have been fully outlined this morning to me by Mr Moore who appears to prosecute this matter.

2On Thursday 7 November 2013 the victim in this matter, Lee Clark, commenced work at the Shepparton Caltex Woolworths service station in High Street, Shepparton.  At approximately 5.30 am on 8 November 2013 he returned inside the store area of the service station after completing tasks around the bowser area of the service station.

3Moments later you followed in behind him as he entered the store.  He then went to the toilet and you used the opportunity as he re-entered the area near the cash registers to grab the door and open it and enter the staff area behind the counter.  Whilst entering it you were holding a blood filled syringe in your right hand.  You said to the victim that you wanted the money or "You are getting AIDS."

"Open the till and get the money, hurry up or I'll stick you."

4Clearly the victim was in fear of you and compliant with your demands, opened the till and gave you money.  You then made a demand for cigarettes and he then complied with that demand.  You then left the store although you returned shortly thereafter in order to attempt to remove any fingerprints from the area that you might have left.  You then left the store again.

5Shortly thereafter the police you walking in Archer Street Shepparton, approximately a kilometre from the service station.  They found the cigarettes and cash and the blood filled syringe on you.  They then arrested you and they then interviewed you during which you made full admissions.

6During that interview you stated that you were forced to commit the offence by a male known to you and I have made enquiries of Ms Hollingworth, who appears for you this morning, as to that matter, and her instructions are that that is a matter that is no longer pursued by you and is not to be taken into account with respect to this matter.

7There is no Victim Impact Statement in the matter, although I have no doubt that the victim would have suffered considerably as a result of your actions.

8As was pointed out by Ms Hollingworth who appears on your behalf, in both written submissions which have been received this morning and which I have found most helpful in the circumstances, but also supplemented by oral submissions, you have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.

9The community has by your plea been spared the time and cost of a trial, witnesses have been spared the ordeal of giving evidence upon your trial and I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

10Further, I take into account in your favour that you have intimated early your intention to plead guilty to these charges and I also take into account you were quickly apprehended and readily admitted your part in the crime.

11In the circumstances I accept that in your case your plea does indicate true remorse for your actions.  

12Ms Hollingworth has also described your personal history as indeed has Ms Matthews in her report which I have marked as Exhibit A in the matter. You are 38 years of age, having grown up in Queensland with two older brothers and sisters.  Unhappily you attended 12 different primary schools which exemplifies the kind of upbringing you suffered and the fact that you were removed from your family at 12 due to the alleged sexual abuse by your father and you became a ward of the state, although ultimately you ended up living on the streets.

13You finished school part way through Year 8, you were introduced to heroin at the tender age of 11 and that is of course when your criminal justice history commences and I will refer to that in a moment.

14You were raped in care at 13 and that resulted in a pregnancy and termination but after that you met your first long term partner, although that relationship was marked by alcoholism and violence.  You have three daughters, aged 16, 15 and 13, and there has been difficulties with respect to the custody between you and your partner with respect to their care and custody over a period of time.  You recommenced your drug use and itinerant lifestyle and consequently care was awarded to the father of the children.

15You ultimately met your second partner in Queensland and moved to Victoria to hopefully commence again with your life and there was a significant history of some stability.  You were working full time, you were drug free and you had stable accommodation and two daughters, although then unhappily once again the relationship began to fail and you recommenced your drug use and offending and again the custody of your children became a great burden and problem to you and ultimately was granted to your partner.

16You have a background which only can be described as deeply problematic from a whole range of perspectives, and I am sure it occurs to you at this stage of your life, being now 38, that this is probably your last chance to collect yourself and to lead a positive life.

17You have previously been able to meet that challenge when you came to Victoria and of course the hope is that when you are released from gaol with the assistance of parole personnel you can do that again.

18You do have a number of prior convictions and these have been admitted by you.  Most of which of course occurred in Queensland and I note that your offending began in 1994 and went through to 2010.  And whilst most of those matters are drug related, they can be effectively described as street matters, although there was one of burglary I understand in which you tried to get photographs of your children. The longest period of custody you have been sentenced to was ten months.

19Clearly some of those prior convictions have some passing relevance to my task of sentencing you today, although as I say they are not significant matters say for their connection with your drug problem and being the inevitable result of it.

20A report as I say was tendered by consent and that report from Ms Matthews points out, apart from the personal matters which are reflected in the submissions of Ms Hollingworth, it is clear that you were deeply disturbed when you were being interviewed by Ms Matthews.  I note that your weight has gone from 42 to 60 kilos whilst in custody and your medication is there set out.

21Your developed mental history is also set out and it was Ms Matthews diagnosis and opinion that you report symptoms consistent with a diagnosis of post-traumatic stress disorder associated with a rape occurring sometime in the last third of 2013.

22Also of course, your highly abusive childhood is acknowledged to have multiple impacts including multiple re-victimisations, physical health problems including gynaecological and other abdominal injuries such as urethral and bladder neck injury, mental health problems, suicidal behaviour, eating disorders, alcohol and substance use problems, aggression, violence and criminal behaviour, high risk sexual behaviour and homelessness, all matters to which she has referred in her helpful report.

23I am on balance satisfied the chances of your rehabilitation are reasonably good and I make that comment particularly in light of the materials which comprise Exhibit C which is a bundle of documents handed to me this morning by Ms Hollingworth which exemplified the fact that you have utilised the time you have spent in custody, which is now three months, to attend a number of courses, and it is also clear that you have enrolled in a number of courses, all of which are designed to facilitate your rehabilitation and also to provide you a basis on which when released you can re-enter society with some positive outlook and hopefully utilise the time to deal with your clearly very severe drug and alcohol addictions.

24You are to be commended for the fact that you have made such positive steps whilst in custody with respect to those matters and also of course to doing something to rekindle the relationships with your children.

25Of course as well as those matters personal to you to which I have referred including the question of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this and helpfully I have been provided with the case of R v Rackley [2007] VSCA.  A decision of the Court of Appeal on 20 August 2007, and particularly at paragraph 24 which refers to this type of offending and the clear need for the imposition of sentences which are sufficiently substantial to act as both general and specific deterrence, and of course these things have been emphasised in the various decisions to which I have been referred.

26Clearly specific deterrence remains of some significance given your long term drug addiction and the fact that your offending almost inevitably occurs in circumstances of heightened drug use.

27I also must consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending which I find to be very much dependent on whether or not you successfully comply with the parole, which as I say will be lengthy in your circumstances.

28If you continue on your current trajectory then I have every reason to expect that you will be as determined to succeed in your parole as you have been so far whilst you have been in custody in dealing with your range of difficulties.

29Application has been made for an intimate forensic sample to be taken from you and you have consented to this through your counsel.  I am satisfied that it is in the interests of justice, having regard to your prior convictions and the seriousness of the offending, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you.  That sample may be taken by a doctor or nurse or other authorised person.  A saliva sample is taken by wiping the swab inside your mouth and although you have consented if you change your mind I must inform you that the police may use reasonable force to enable that procedure to take place.  And I will sign that order when it is produced to me.

30I also make the order sought by Mr Moore with respect to the forfeiture of the syringe and I will also sign that order.

31This is without doubt a serious offence and in all the circumstances I have no alternative to the imposition of a custodial sentence and you are convicted and sentenced as follows.

32On Count 1, three years' imprisonment.  That results in an effective sentence of three years and I direct that you serve a minimum term of 13 months before becoming eligible for parole.

33As prescribed by s.8 of the Sentencing Act I declare the period of time you have already spent in custody is 98 days and I direct that such be noted in the records of the court.

34But for your pleas of guilty the sentence I would have imposed is a head sentence of four years and a non-parole period of two and a half years.  And as I say that is a much more lengthy than normal parole period but I think it is appropriate in your circumstances to recognise what you have achieved thus far whilst in prison to affect your rehabilitation and to provide you with the opportunity of a lengthy parole period in order that once you are back in society you have the supports that you have lacked to date in order to assist you in re-entering society.

35As I say, hopefully with the supports that will mean you can remain drug free and be restored in relationships with your children.  All right yes thank you be seated Miss Irwin.

36OFFENDER:  Thank you Your Honour.

37HIS HONOUR:  Anything further?

38MS HOLLINGWORTH:  No Your Honour.

39MR MOORE:  No.

40HIS HONOUR:  Thank you.

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