Director of Public Prosecutions v Kolosche

[2017] VCC 1326

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

 Suitable for Publication

AT WARRNAMBOOL

CRIMINAL JURISDICTION

CR-17-00499

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMANTHA LEE KOLOSCHE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	7 September 2017
CASE MAY BE CITED AS:	DPP v Kolosche
MEDIUM NEUTRAL CITATION:	[2017] VCC 1326

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Bolton
For the Accused	Ms J. Warren

Pages 1 - 7

 

 

HER HONOUR: 

1Samantha Lee Kolosche, you have pleaded guilty before me to one charge of assisting an offender and two charges of handling stolen goods.

2In very brief terms, the facts underlying your offending that you had two associates, Lachlan Mitchell and Kiearhn Carter, who had committed a number of serious offences in Warrnambool.  Between 24 and 25 August 2016, they stole a station wagon and then committed an armed robbery on a man called Hudson Bell, who was living in a converted bus at the Warrnambool Showgrounds.  Following this, they were then involved in police pursuits in a stolen vehicle.

3Between 26 and 28 August, you were in regular contact with Mitchell.  There were about 100 phone calls made between you.  You were using a phone in a false name. 

4Between 25 and 26 August, you met with Mitchell and Carter at a location in Portland, where they dumped the stolen car and were then driven away by you.  That evening, you went to a hotel in Portland and went to book a room for Mitchell and Carter.

5You left them there and left, but the offending that you have pleaded guilty to lies in you providing transport for Mitchell and Carter after they dumped the stolen car, then booked a hotel room for them and provided further transport from the hotel after you were apparently seen by the receptionist, she saw you taking the luggage in and then you decided to leave.

6You were arrested on 27 August which time a key to the car which had been stolen by Mitchell and Carter was found in your possession, together with a stolen blue folder containing British coins and a stolen antique gold coin. 
Your possession of those items underlies Charges 2 and 3 on the indictment.

7I now turn to your personal circumstances.  You are 30 years of age and you have a serious criminal history, stretching back to 2000.  In brief terms, you had a very difficult childhood.  You have never known your biological father.  You have lived with your mother who had her own drug difficulties. 
She eventually moved to a rural property outside Warrnambool in order to overcome those difficulties but which you found difficult and isolating and you left home at about age 12.

8Thereafter, until you were about 20, you lived an itinerant lifestyle, unsurprisingly involving introduction to drug use which in fact began with you being picked up when hitchhiking and introduced to amphetamine which you injected.  Thereafter, your drug use escalated, in particular, in the three years leading up to this offending, you were constantly using methamphetamines. 

9Your offending history is almost continuous from 2004, which is the first matter that appears on your criminal history sheet.  Along the way, you have been dealt with innumerable times for driving and dishonesty offences.  There has been some drug use as well.  You have been placed time after time on rehabilitative dispositions, community based orders, community corrections orders and suspended sentences, all of which you have breached by further offending.

10You have three children.  The first child, aged nine, has lived with her biological father since she was a baby.  When she was only a few months old, you formed an association which lasted for seven years with a very violent partner, by whom you had two further children who now reside with your mother.  Between about 2011 and 2014, you were able to obtained Ministry of Housing accommodation.  You are able to deal fairly successfully with your drug use and things reached a stable stage in your life.

11Your counsel informed me that over the years, you have tried on several occasions to give away drug use, to have some extent to have been successful but then have relapsed into drug use.  Your latest relapse came about after you decided to leave your accommodation due to concerns you had with a person being found on your premises.  You sent your children to live with your mother whilst you found further accommodation and at that time, reengaged in drug use and matters went from bad to worse.

12On the plea today, your counsel also asked this court to deal with an appeal against a sentence imposed by the Warrnambool Magistrates' Court on
15 March of this year.  It was a consolidation involving a large number of offences between 4 August and 30 December.  During that period of time, you were remanded in custody, were released on 29 November and immediately proceeded to reoffend.  That bout of offending resulted in a total effective sentence of 21 months with a minimum term of 15 months ordered.

13Of particular concern is the fact, Ms Kolosche, that you have so often offended dangerously whilst driving a car, and indeed one of the incidents of particular concern which was the subject of the Magistrates' Court hearing was an occasion when you were being pursued by police, accelerated to speeds of up to 170 kilometres per hour and drove on the wrong side of double lines in order to overtake a car.  Fortunately, there was no other motorist on the road in the lane that you were driving in but it is quite clear in my mind that had there been such a vehicle, a fatality if not your own then someone else's must have occurred.  You have, over the years, been involved in a large number of chases involving police and consequent very dangerous driving behaviour.  You have been unsuccessful in that appeal.

14The grounds upon which you sought to revisit the Magistrates' Court's sentence were based largely on your progress whilst being held in the Dame Phyllis Frost Centre.  You appeared to have done extremely well.  You began attending a drug and alcohol course but found that the course itself set off cravings to use drugs and so you dropped out of that, not because you did not want to give away drugs but because you felt you would do better managing this on your own.  You seem to have proceeded fairly quickly in this time that you have been in custody to particularly trusted work.  You are now the manager of the prison café, which is the River Café, which involves placement in a facility very close to the exit gates of the gaol and you are required to handle money.

15I am certainly impressed by the gains you have made and certainly it is my view that your prospects for rehabilitation are brighter than they had been for many years.  However, those prospects of rehabilitation still remain guarded because they have been achieved only in a very strong structure, which you have been able to take advantage of.  Again, that is very much to your credit, but your capacity to continue this in the community remains unknown.  Certainly it was my comment during the plea hearing that you present as an intelligent woman who has got a future in terms of future education and employment, which many persons who come before the court with a history that you have, the lack of education that you have, do not possess.

16However, having refused the appeal, I was then left to consider the charges on the indictment.  It was urged upon me by your counsel that I should deal with you by way of a sentence to be served wholly concurrently.  In addition to the matters urged upon me, your counsel pointed out that whilst in custody, a tumour has been discovered in the front left hand side of your brain.  It is being dealt with although it has not yet been determined whether that tumour is malignant.  One of the great difficulties for you is that, for understandable administrative reasons, those being taken to hospitals off custody for the sort of X-rays and treatment that you require are not informed in advance of when that will occur.  So quite apart from the worry that you obviously have about that tumour and the suffering you have undergone in relation to its side effects, which I understand are frequent headaches and nausea, you are not given much information and I do accept that this makes service of a term of imprisonment more difficult for you than for the normal prisoner.

17It was also submitted by your counsel that ultimately, the charges to which you have pleaded were made in offer to the Crown shortly after your arrest in relation to them.  They were not accepted at that stage, but the plea which has ultimately been accepted reflects the charges offered on your behalf at an early stage.  I also received a very well written letter from you which I accept as being genuine and which expresses remorse for this and your other offending and I do accept that you are remorseful for your offending and that you have gained insight into the way in which you have conducted yourself.

18It was submitted that these charges in their final form could in fact have been dealt with in the Magistrates' Court at the time that the consolidation, which was the subject of the appeal, was dealt with and that therefore questions of totality arise.  I certainly agree that Charges 2 and 3 on the indictment are charges where you inadvertently came into possession of items stolen by Mitchell and Carter as a result of your assistance of them.  I make the passing comment that that is unfortunately often to be expected if you are keeping that sort of company and engaging in that sort of activity.  You had apparently known Mr Carter for some years.  I am not surprised having dealt with Mr Carter.  He seems to have been a fairly prominent figure in the drug scene in Warrnambool and you are certainly a longstanding member of that club, if I can put it that way.

19However, it is my view that in relation to the charge of assisting and offender, there should be some cumulation.  It is my view that had this matter been heard in the Magistrates' Court, that may well have been the view of the learned magistrate.  Assisting an offender is a charge which is mostly dealt with, as your counsel pointed out, in matters involving murder, but it can occur in other arenas.  Given the seriousness and breadth of the offending by Mitchell and Carter, which involved also particularly Mr Mitchell's case, the toting around of a loaded sawn off shotgun was so serious that unsurprisingly, police did decide to charge you with this serious offence.

20Assisting an offender is a serious offence in that it is where you are in fact assisting people who are behaving dangerously and in saying this, I accept that you had no real knowledge of what they had been doing. It is nevertheless a stumbling block to the proper duties of police in protecting the community.  Certainly, it is my view that your offending behaviour was extremely dangerous to the community as a whole and that this was part of that dangerous behaviour, if you like.

21Whilst you may not have had absolute knowledge of what Mr Mitchell was up to, on your instructions when he contacted you, you realised that he was in a heightened agitated and drug fuelled state and you nevertheless sought to assist him to evade apprehension by police.

22I therefore sentence you as follows.  On Charge 1 on the indictment, you are sentenced to three months' imprisonment.  On Charges 2 and 3 on the indictment, you are sentenced to one month each.  The sentences on Charges 2 and 3 will be served concurrently.  I order that the one month of the sentence imposed on Charge 1 be served cumulatively to any sentences you are currently undergoing.  I order that the new head sentence be a head sentence of 22 months and that you serve a minimum term of 16 months.

23Now I need to say this to you, Ms Kolosche, and I am sure your counsel will explain this to you.  Parole is an extremely serious exercise these days. 
You have to apply for it.  Given the way you are conducting yourself, it would seem probable that you would be granted parole.  If you are so released, you will still owe the parole board six months.  If you breach parole either by further offending or by failure to abide by the conditions of parole, that is another charge in itself.  If you receive any sentence for it, it is to be served, (it is mandatory now, it has to happen), on top of whatever outstanding amount you owe the parole board.  You need to bear that in mind when and if you are placed on parole.

24In sentencing you, I also take into account, as I have said, remorse on your part, your improved prospects of rehabilitation brought about by your own hard work in gaol and the fact that on leaving prison, you still maintain the support of your mother who continues to care for your children. 

25Pursuant so s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of six months and ordered that four months of that be served cumulatively to the sentence you are currently undergoing.

26Is there anything else that I need to attend to?

27MS BOLTON:  As Your Honour pleases.

28MS WARREN:  No, Your Honour.

29HER HONOUR:  Thank you.  I thank counsel for your assistance.  Yes, thank you.  Counsel are excused and Ms Kolosche can be taken back to the cells.

(Prisoner removed.)

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