Director of Public Prosecutions v Little and Robertson

[2017] VCC 174

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01623

DIRECTOR OF PUBLIC PROSECUTIONS

v

KRIRSTEN LITTLE
DYLAN ROBERTSON

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2017
DATE OF SENTENCE:	28 February 2017
CASE MAY BE CITED AS:	DPP v Little & Robertson
MEDIUM NEUTRAL CITATION:	[2017] VCC 174

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 K. Hamill	Office of Public Prosecutions
For Accused Little	Mr C. Mylonas	Brown Mccomish Solicitors
For Accused Robertson	Mr T. Bell	Galbally Rolfe

Pages 1 - 16

 

 

HIS HONOUR: 

1Krirsten Little and Dylan Robertson, you commenced a relationship in November 2015 or thereabouts.  It was one immersed in drug taking and homelessness. 

2You, Dylan Robertson, had been released from prison only in October of 2015.  That was your second time in prison in recent times.  The first term of imprisonment was for an offence that saw you sentenced by a Supreme Court judge.  I have today received the reasons for the sentence.  It is relevant to the p that I have before me and I will return to that matter shortly. 

3You, Krirsten Little, had in February of 2015 lost the care of your children by reason of the Department of Health and Human Services obtaining orders from the Children's Court.  You were thereafter at a particularly low end.  You had offended for the first time and been sentenced twice by the Magistrates' Court to community corrections orders.  Again, I will return to those matters shortly. 

4The point to understand in relation to both of you is that at the end of 2015 or as it came to an end, you both were in dire straits, living in a friend's car in a driveway and you were using drugs in a reckless fashion. 

5On Boxing Day 2015 at about 6.50 to 7 am, you both broke into the house of a fellow drug user.  Frighteningly, you both wore balaclavas, and you, Ms Little, were carrying a pole as a weapon.  The victim, a woman, was confronted in her bedroom and immediately was in great fear.  She told you to take what you wanted.  She was yelled at and told to say seated.  Eventually, electrical goods, personal items and a small amount of cash was taken.  A cable tie was used in an attempt to further restrain the victim. 

6As it turned out, earlier on the morning of 26 December, you, Ms Little, had gone to the house of your brother and his partner.  You were chased away by your brother.  You were prevented by a family violence intervention order from being at his premises.  You have pleaded guilty to a breach of this intervention order. 

7You, Ms Little, were arrested on 28 December.  Shortly after your arrest, you escaped and got 20 metres or so away before being recaptured by the police.  You pleaded guilty to escaping from custody.  At the police station, you caused damage to a clock and have plead guilty to criminal damage. 

8You, Dylan Robertson, were also arrested on or about 28 December 2015.  You have both been on remand since your arrest, that is since late 2015 and most of that time was before these matters came before the County Court. 

9You both pleaded guilty once the charges crystallised after a committal.  Of importance is the sad fact that the victim passed away some time after the committal.  Neither of you sought to test the prosecution case in the circumstances that the victim was - to use the words of the Evidence Act - "unavailable". 

10This aspect adds weight to your pleas of guilty.  Both of you will be sentenced to a substantially lesser punishment than would have been the case had you gone to trial and been found guilty. 

11The aggravated burglary, false imprisonment and theft charges that you have pleaded guilty to amount to serious offending.  Most particularly, breaking into the victim's home, confronting her in the early hours of the morning.  The fact that you were disguised and you, Ms Little, was wielding a weapon adds to my assessment of the gravity of your crimes.

12Our Court of Appeal in very recent times in DPP v Bowden has made clear that offending in this way must be firmly punished.  Further, the court said that its earlier like indications in Hogarth v The Queen and DPP v Meyers have not always been properly adhered to.  Accordingly, the message is clear.  Aggravated burglary with its maximum penalty of 25 years will ordinarily see the imposition of significant terms of imprisonment. 

13In your case, Dylan Robertson, your prior criminal history and in particular your prior conviction for assisting an offender in circumstances where the victim died makes it plain that imprisonment is the only option available to me in respect of punishment of you for the three offences you have pleaded guilty to.  Your counsel made no argument to the contrary.  In his measured written and oral plea, your counsel sought a sentence that would allow for a significant time of potential parole. 

14The argument put forward on your behalf emphasises aspects of your personal history.  What is of note is that you continue to enjoy the full support of your parents.  This is of added importance because you have in the past worked with your father as a boilermaker and may be able to get some work with the engineering firm that he has worked for over many years on your release.  There is no certainty, but some prospect of stable employment is a factor in your favour.  This is particularly so as you have shown a good work ethic over many years. 

15Your problem and decline to someone serving terms of imprisonment too regularly is as a result of your addiction to drugs.  The use of drugs arose in the context of a failed relationship and the struggles that you had to maintain contact with your children.  You took on parental responsibilities initially while very young.  Your partner in your first significant relationship was troubled and ultimately, the Department of Human Services became involved. 

16I am told you have rekindled a positive relationship with your son, now in his early 20s.  You have a strong relationship with your 15-year-old daughter who lives with your parents.  You want to settle down on your release from prison, remain drug-free and provide for your children.

17In 2012, you declined into heavy use of ice when parenting and relationships were at their most problematic and it saw you mixing with other drug users.  The feud that quickly erupted between these drug users over an alleged debt escalated to the point of break-ins or drug run-throughs, violence and threats, and finally a confrontation that resulted in the death of a friend of yours.  Both sides of the feud were known to you. 

18You were remanded in custody, charged with murder.  You pleaded guilty to assisting an offender and were sentenced to 18 months with a minimum non-parole period of 12 months.  Ultimately, your release on parole saw you have but two months of support on parole.  You quickly fell into drug use and returned to prison in 2015, being released as mentioned in October of 2015.

19In your case, the sentencing considerations of deterrence involves deterrence to you.  You must learn that sentences will be ever more firm because of your past history.  Also, protection of the community is an important consideration.  That said, your prospects for reform are not forlorn. 

20I agree with your counsel that your overall prospects are guarded but the support of your parents gives you a chance.  Your mother is someone who has worked with those down on their luck and those who need to wake up to themselves.  It should be plain to you at 36 years old, Mr Robertson, that you need to wake up to yourself. 

21It is important, it seems to me, while it is entirely matter for you, that you do not let your parents down again. 

22You, Ms Little, are now just 25 years old.  Analysis of your personal circumstances reveal that you had an unfortunate trauma inflicted upon you when you were very young.  The experienced forensic psychiatrist,
Dr Cunningham, considered all your circumstances and concluded you have an ongoing post-traumatic stress disorder and borderline personality disorder which traced back to your childhood trauma.  I am of the view that this diagnosis is accurate. 

23As the High Court has said, difficult personal circumstances are always a matter that needs to be considered in sentencing. 

24You took to alcohol in your teens.  You became a mother far too early.  You then had a long relationship which became abusive and violent.  You had two children in that relationship.  Thus, when it ended, you were homeless with two young children.  Your drug use did not abate. 

25In fact, when the Department of Housing found you a place, you found yourself in a drug-using neighbourhood.  All of this saw an increase in your drug use.  The Department of Human Services gained orders for the removal of your children.  You reacted badly and became reckless with drug use and self-harm. 

26In this context, you were twice before the magistrate.  That is in August 2015 you received a community corrections order of 18 months' duration which included unpaid work and treatment and program requirements.  This was for driving offences, drug use and bail offences. 

27Barely one month later, that is on 23 September 2015, you were again before the magistrate and were given again a community corrections order, this time of 12 months' duration for dishonesty, drug use offences and bail offences. 

28At this point, the earlier community corrections order was breached but on the resentencing, the magistrate confirmed the 18-month community corrections order.  Those community corrections orders thereafter, that is from September 2015, were not taken up at all and this offending breaches those orders.

29At first blush, it seemed that considering the imposition of a community corrections order for this offending would be unduly merciful.  However, much has happened while you have been on remand that prompted your counsel to argue that a community corrections order in addition to your time in prison would be in the community's interest.  Your counsel relied on a letter that you wrote dated 22 November 2016 about your experience in prison.  It set out your insight into your pre-existing problems and how to avoid reoffending into the future.  

30Your view is your time in prison has in fact been a positive event, allowing you to detoxify from drugs and engage with a clear head in important, dedicated rehabilitation services that are available at the Dame Phyllis Frost Centre for those who want to take them up.  You have taken these opportunities and done all you can in prison to ensure that you are capable of reintegrating into society without risks of reoffending or falling into drug use in the future. 

31You are keen to be in the community as soon as possible and see if you can rekindle the relationship or a relationship with your children.  Your mother and auntie are supportive of you.  You can live with your auntie.  Your daughter lives with your mother so you must work with the Department of Health and Human Services in terms of seeing and engaging with your daughter and in that sense, with your mother. 

32However, on the whole, these aspects of your life look brighter than was the case in 2015.  You insightfully acknowledged the need to remain engaged with a range of services to assist in drug and mental health problems, all directed at ensuring that you do not reoffend. 

33While it is clear you must be punished for your crimes, the question is whether all sentencing considerations are met by a sentence of imprisonment that now permits your release into the community on a community corrections order.  Your counsel urged that course.  The prosecution contended that more imprisonment than the time thus served was required. 

34I had you assessed by the community corrections staff.  The report indicates that you are at high risk of reoffending, but notwithstanding your previous failed community corrections orders in 2015, you are seen as suitable for a further community corrections order.  In your case, your previous history up to 2015 - years of you not appearing before adult courts for any offending - and this taken together with how and why you so dramatically deteriorated in the latter part of 2015 leads me to the view that your rehabilitation as a young person is important and the outlook is far from grim.

35In light of what you say of your experience in prison, in my view, your prospects of reform are probably quite good. 

36Experienced judges sitting on appellate courts have from time to time when dealing with younger offenders and those without lengthy prior criminal histories have raised the concept that sometimes a moment has to be seized and an offender tested in the community.  This is a course that can be taken up rather than incarcerating a person for longer, perhaps risking the positive motivation to reform will thereafter be dashed. 

37I think in your case, Ms Little, it is just and appropriate to seize the moment and have you released into the care of your aunt and mother to commence a lengthy and onerous community corrections order. 

38As the Court of Appeal said in Boulton v The Queen and indeed in earlier cases, a community corrections order is no soft option.  It establishes conditions that seek to achieve what, in my view, the community hopes for of the sentencing process.  That is, punishment and at the same time rehabilitation that sees an offender better able to avoid further reoffending. 

39I am of the view given the different criminal histories between you, Ms Little, and you, Mr Robertson, that parity and indeed disparity is properly adhered to by Mr Robertson receiving a sentence with potential for parole and you,
Ms Little, receiving a term of imprisonment with a community corrections order. 

40In respect of both of you, I have taken into account all the material relied upon by your counsel, the psychological reports and other testimonials and assessments provided to me. 

41In respect of you, Ms Little, the summary offences that you have pleaded guilty to will see you punished by a global community corrections order that I intend to place you on.

42You, Mr Robertson, face three charges on the indictment and the sentences that I impose upon you are as follows: 

43For committing the criminal of aggravated burglary, you are sentenced to two years and six months' imprisonment. 

44For committing the crime of false imprisonment, you are sentenced to two months' imprisonment. 

45For committing the crime of theft, you are sentenced to two months' imprisonment. 

46So there is no room for doubt, the last two sentences that I imposed run concurrently with the two years and six months that I impose on the aggravated burglary.  Thus, the total sentence for the three crimes is two years and six months and I fix a minimum non-parole period of 17 months. 

47Had you pleaded not guilty to the offences and been found guilty of them, I would have imposed a sentence of four years' imprisonment with a minimum non-parole period of two years and nine months. 

48You have served 428 days on remand.  Those day are attributable to these offences.  Thus, that amount of having been reckoned, I declare that the time of 428 days is part of the sentence that I have just imposed.  I will ensure this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already served 428 days or 14 months of the sentence that I have just imposed.  Potential for parole opens for you in about three months.

49You, Ms Little, for committing the crime of aggravated burglary are sentenced to 428 days of imprisonment together with a two-year community corrections order. 

50For committing the crime of false imprisonment, you are sentenced to two months' imprisonment.

51For committing the crime of theft, you are sentenced to two months' imprisonment. 

52For the removal of any doubt, the last two sentences are two months each and those two offences are concurrent with the sentence of 428 days that I imposed on Charge 1. 

53In respect of the offences of escape and criminal damage and the summary offence of committing an offence while disguised and the summary offence of breaching an intervention order and dealing with property suspected of being the proceeds of crime and resisting an emergency worker on duty, they are all punished by the community corrections order that I impose in respect to the aggravated burglary.  Thus, there is one community corrections order for the aggravated burglary and the other charges. 

54Before moving to the details of the community corrections order, I indicate that had you pleaded not guilty to the offences and been found guilty of them, I would have imposed a sentence of four years with a minimum non-parole period of two years and six months. 

55You have served 428 days on remand.  This amount of time having been reckoned, I make the declaration that 428 days is part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already served 428 days of the sentence being 428 days that I have just imposed.  And thus, on my calculations you would be eligible for release. 

56That is of course a matter for the prison authorities to calculate and they will do that in due course.  It is not a matter of walking from this court as I understand it.  It will be a matter of the prison authorities doing the calculations upon receipt of my signed order. 

57Now, in respect of the community corrections order, you are required to do some unpaid work.  That is 150 hours of community work together with programs in relation to drug addiction, alcohol abuse, mental health difficulties and other programs to reduce your risk of reoffending. 

58You will be under the supervision of the community corrections order and on the recommendation provided by the Office of Corrections, I propose to include something that I rarely do and that is to impose also judicial monitoring. 

59The first return of the matter - that is coming back to see me to see how it is going - will be 5 June 2017.  Further details will be provided as to the time and place.  It is likely that it will be in the County Court before me, wherever I am sitting.  It may well be that I am in Geelong at that time and you can just be beamed in from wherever you are at.  If it is Warrnambool or wherever, do you follow all that?  It is just 5 June at 9.30 in the morning you have got to be available.  .

60It is a matter for the parole board that it may be at approximately that time or thereabouts that Ms Little is released and just need to know that things are not heading in the wrong direction. 

61So a document will be produced shortly, Ms Little.  It will set out all the conditions of the community corrections order and if you consent to it, it will be signed, I will explain various things about that to you.  There may be something that the prosecutor needs to help me with.

62MS HAMIILL:  Yes, Your Honour.  Just in relation to the offences for which the CCO was imposed.

63HIS HONOUR:  Yes.

64MS HAMIILL:  Your Honour had read a number of offences including assaulting or resisting police. 

65HIS HONOUR:  Yes.

66MS HAMIILL:  The only summary offence that Ms Little is pleading to is the contravention of the family intervention order.

67HIS HONOUR:  That is all?

68MS HAMIILL:  Yes.

69HIS HONOUR:  I do not know where that came from then.  I just read them off the document and got confused in my ‑ ‑ ‑ 

70MS HAMIILL:  Yes.  And so it is my understanding Your Honour that the CCO having been imposed in respect of all the offences ‑ ‑ ‑ 

71HIS HONOUR:  Yes.

72MS HAMIILL:  ‑ ‑ ‑ will name aggravated burglary, false imprison, theft, escape from legal custody, criminal damage and contravene family violence intervention order.

73HIS HONOUR:  Correct.  All that business that I raised about property, proceeds of crime and the other matters that I have referred to - I have overreached.  They are withdrawn and I do not need to adjust anything because it is the same aggregate community corrections order.  I would not have imposed any different for the proceeds of crime, resisting an emergency worker and committing an offence while disguised. 

74MS HAMIILL:  Yes, Your Honour.

75HIS HONOUR:  Is that clear enough?

76MS HAMIILL:  Yes.

77HIS HONOUR:  Mr Mylonas?

78MR MYLONAS:  Thank you.  Yes, Your Honour.  I have nothing to say.

79HIS HONOUR:  You do not.

80MS HAMIILL:  There are also a number of ancillary orders but they can be dealt with I assume after the CCO is signed, Your Honour.

81HIS HONOUR:  Yes.  That is so.  So Mr Mylonas, that slip as it were does not concern you as to the extent, gravity or otherwise of anything.

82MR MYLONAS:  No, Your Honour.  The sentence imposed was clear. 

83HIS HONOUR:  Thank you very much.  What are the orders?

84MS HAMIILL:  In relation to Ms Little, there is an application for the taking of a forensic sample which I understand is not opposed.

85HIS HONOUR:  Yes.  Sure.

86MS HAMIILL:  In respect of both accused, there are forfeiture and disposal orders.  The disposal relates to the bar - I think it is called a ‑ ‑ ‑ 

87HIS HONOUR:  Pile or whatever it is.  Yes.

88MS HAMIILL:  It has a specific - breaker bar, Your Honour, I am told.

89HIS HONOUR:  Thank you.

90MS HAMIILL:  And the forfeiture order relates to various items that were seized in the course of the investigation.

91HIS HONOUR:  All right.  The prosecution is seeking forfeiture orders relating to various property.  Signed, they will be forfeited. 

92In respect of you, Ms Little, there is an application that you provide a forensic sample.  Considering that application is what the prosecution seek, I order that you undergo a forensic sample procedure.  That is a scraping from your mouth.  And I intend to make that order.  The reasons that I do so are the seriousness of your offending, your prior matters and the granting of the order is in the public interest.  So you have to understand this. 

93Once you are released, there is a window that opens up for you to get down to the police station where you are required to undergo that procedure.  The window opens up four weeks from today.  There is a reason for that, about appeals and whatever. 

94So, once the four weeks have passed - 28 days or four weeks have passed from now, so we are into the beginning of April, then you have got another four weeks within which you must get this forensic sample process done. 

95Now, once you go there, the authorities are authorised to use reasonable force if you do not cooperate with the scraping from your mouth.  The way through it is to do, as I understand, you do not stand in the way of it.  So just cooperate with them.

96MR MYLONAS:  Your Honour, can I just clarify that the CCO will nominate a particular date and venue by which she has to report to?

97HIS HONOUR:  Yes.  I have covered all that.  I will read it all out in due course.  Have you a (indistinct) 464 application?

98MS HAMIILL:  I do.  Yes, Your Honour.

99HIS HONOUR:  Thank you.  All right.  This will be the community corrections order that I place you on.  It is two years, so there is a bit in it and that commences upon the completion of your term of imprisonment which will be calculated but likely, in my estimate, to be immediate.

100Now, these are the conditions required of everyone in a community corrections order.  You should know that.  The first of it is you must not commit another offence for which you can be imprisoned during the time that the order is in force.  Well, that is the big one.  Do not fall back into drug use, drug possession, other offending because you will breach this order and that see you back before me and the mercy shown to you will not be repeated. 

101So you must comply with any obligation or requirement under the Sentencing Regulations.  I will need a photograph of you so that they know who you are.  Just cooperate with that.  You must receive visits and report to the Office of Corrections.  You must report to the community corrections office at Warrnambool and that has got to happen within two clear working days of the order starting and the order starts once you are released from prison.  Two clear working days. 

102I would say either through tomorrow or the next day, you have got to get down there and sort it out.  You must let the community corrections officer know in two clear working day if you change your address or if you get a job.  You must not leave Victoria without getting permission to do so from the Office of Corrections and you must obey all their lawful instructions and directions. 

103All right.  They are the conditions that apply to everyone.  This just applies to you.  The special conditions for you are that you have got to do 150 hours of unpaid community work.  That is not optional.  You have just got to turn up and do it.  You know, make the arrangements with - if you have children or work or other things, not too hard to organise to do all that. 

104So you have got to turn up on time and stay until it is finished.  You may come across people - this happens and keep it well to the fore - who may be not as dedicated to putting dugs out of their life as you are.  You cannot listen to them.  Make changes if need be with the Office of Corrections, just stick to your program. 

105You have got to be under the supervision of the community corrections people.  That means if they want to see you to see how things are going, just turn up.  You must undergo assessment and treatment for drug abuse and dependency.  You have said in your letter that that is what you wanted to do, well, make sure you are good to your word. 

106The same for alcohol abuse.  I am not so sure that that is a major matter at the moment but it was at different times and the Office of Corrections say that that is needed.  You must undergo any mental health assessments and treatment that they require of you.  Get some help for things that have hovered around for too long and resulted in self-harm and so on.  You cannot do that on your own.

107You must participate in programs that they think will help you in reducing the risk of reoffending.  And you have got to come back on 5 June 2017 at 9.30.  It says here Melbourne County Court, but it is the County Court - if you want to come by video link from wherever you are, that is fine because I might be in Geelong.  So, the Office of Corrections will know all that.  They will prepare a report about it and tell me that everything is going according to plan or not. 

108As I say if you do not stick to this order, then the mercy as I have described it will not be repeated.  All right?  Sign that and then the prison authorities will do the calculations.  Follow?  Do you want to take that down to her, Mr Mylonas, to get her to sign that please.

109MR MYLONAS:  Thank you, Your Honour. 

110HIS HONOUR:  Is there anything else required?

111COUNSEL:  No, Your Honour.  

112HIS HONOUR:  Right.  Mr Mylonas, I note that - my assessment or memory is that Ms Little's aunt or mother is here.  I think aunt?

113MR MYLONAS:  Aunt.  Susan Wheeler.

114HIS HONOUR:  I cannot - it will be a matter for the prison authorities about all that - whether she is released from here or released from the Dame Phyllis Frost.  I cannot deal with all that.  So you will explain that all to her.

115MR MYLONAS:  Yes, Your Honour.

116HIS HONOUR:  But it would be as important as anything that if she leaves the prison system that she goes immediately with someone who is going to look after her.

117MR MYLONAS:  Yes, that is - yes.

118HIS HONOUR:  Rather than get a lift from someone who she does not know or a train home to Warrnambool. 

119MR MYLONAS:  No.  Ms Wheeler is here in court and ‑ ‑ ‑ 

120HIS HONOUR:  Right.  Thank you.

121MR MYLONAS:  Thank you, Your Honour.

122HIS HONOUR:  There is nothing further.  All right.  Both prisoners are required to leave the court before I do for reasons that I explained at a different time.  Thank you. 

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