Director of Public Prosecutions v Lo Bosco

[2020] VCC 1386

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01788

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARMELA LO BOSCO

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2020
DATE OF SENTENCE:	3 September 2020
CASE MAY BE CITED AS:	DPP v Lo Bosco
MEDIUM NEUTRAL CITATION:	[2020] VCC 1386

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr E. Dober	Office of Public Prosecutions
For the Accused	Mr J. Lowy	Slades and Parsons Solicitors

HIS HONOUR:

1Carmela Lo Bosco, you pleaded guilty to two counts of armed robbery which took place on 2 and 9 June 2019 in Hadfield and Pascoe Vale respectively.  At the time you were aiding two other co-accused's in these offences.

2The circumstances of the offending is contained in a prosecution opening, which was exhibited, and I shall summarise these events briefly for the purposes of this sentence by these agreed facts.

3You were aged 48 at the time of the offences, you are now 49.  You lived in West Essendon and your co-offenders, one Aird[1] and another Kalamatas, lived in Moonee Ponds and North Coburg respectively.

[1] A pseudonym has been applied to this co-accused in line with DPP v Aird (a pseudonym) & Anor [2020] VCC 687

4On the evening of 2 June, you were contacted by the co-accused, who requested you to meet them.  At the time you were in some kind of relationship with Kalamatas.  You drove your car to Tullamarine and collected them.  You were asked by them if you had anything that could be used as a weapon and you told them to look in the boot of the car.  There they found a baseball bat which belonged to your son.  You were then directed to drive to Hadfield.  When you got there, they told you to drive to the Westend Cellars and they left the vehicle.  Aird had the bat while Kalamatas acted as a lookout.  Aird stole money and alcohol in a robbery on the store.  They left on foot and came back to the car, where you had been told to wait.  You were then told to drive them to Richmond.

5About $1,000 was stolen in cash and other goods.  CCTV images captured the armed robbery.

6About a week later, after having attempted to call you a number of times, Kalamatas requested you to again pick them up.  You did so, and you were directed to near a Bottlemart in Pascoe Vale.  When you got there Aird and Kalamatas had their faces covered.  Aird was armed with a large knife.  Again, Kalamatas acted as a lookout for the armed robbery which followed, initially, then entered the store to assist Aird.  Cash, cigarettes and goods were taken to the value of about $800.

7After leaving the store both men got in your car and you drove away.  They directed you towards Broadmeadows.

8The prosecution case against you, and which implicitly - and by your plea, you accept – is that during the course of both journeys to the eventual destinations you had sufficient understanding that these two men were going to these places to commit armed robberies, and that you drove them to the vicinity of the stores, waited for them and then drove them away.

9Insight into your state of mind – and for that matter, on your say-so – the demeanour of the men can be gleaned from your interview with police conducted on 14 June 2019, and from their respective backgrounds and histories.  I will refer to this in a moment.

10Armed robbery is a very serious offence which carries a maximum penalty of 25 years' imprisonment.  That is a relevant and significant yardstick to consider in the synthesis of factors relevant to your sentence.  Such offences have an impact not just on the immediate victims of the event, who are most often terrorised, fearful and traumatised, but also the community is very concerned and disturbed by such events.  The community looks to the court to deter and punish justly those who behave in this way.

11Your co-accused was sentenced by Her Honour Judge Riddell in this court on 22 May 2020.  Both men were in their early 50s and have relevant prior criminal history.  Her Honour noted that these were prevalent offences on soft targets and were mid-range examples of armed robbery.

12Kalamatas had a difficult history, had an acquired brain injury, lived a fairly transient lifestyle compounded by substance abuse, compromised social/emotional maturity with which he behaves like an early adolescent.  He has a significant criminal history of violence, drug offences, dishonesty offences.  He was on bail when the second offence was committed.  There was, however, no suggestion Aird had overborne Kalamatas, though he was borderline to low-average range intellectually and gullible to exploitation.

13Mr Aird has spent a considerable amount of his life in gaol from his youth, which was very troubled.  He had been released from 13 years' imprisonment about a month before these events.  That sentence had been imposed for a spate of armed robberies committed on similar soft targets in possession of a firearm.  Before that he had committed and been imprisoned for other armed robberies.  He was sentenced to five years and four months with a non-parole period of four years and two months and Kalamatas was sentenced to three years and eight months with a non-parole period of two years and two months.

14This matter first came before me as a sentence indication hearing. At that hearing I had an opportunity to consider the material when I dealt with the indication pursuant to s.207 of the Criminal Procedure Act 2009, and concluded that I was prepared to give the indication that the court would not be likely to impose upon you a sentence of immediate imprisonment.

15Armed robbery in company is a Category 2 offence under s.3(1) of the Sentencing Act and I need to set out some of the provisions.

16Pursuant to s.5(2H) the court must make an order for imprisonment for Category 2 offences unless one of the criteria under s.5(2H), sub-ss.(a) to (e), applies.  At that hearing the defence submitted that you fell within exceptions (c) or (e), and that the court's sentencing powers are large, rather than constrained by the provisions, as I have mentioned.  I agree with that proposition.

17I should indicate that sub-s(c)(i) provides an exception where the offender proves, on the balance of probability, that at the time of committing the offence she had impaired mental functioning causally linked to the commission of the offence and which substantially or materially reduced her culpability, and (e), provided another exception where there existed substantial and compelling circumstances that are exceptional rare, and that justify not making an order under Division 2 of Part 3.

18I should note two further provisions.  Section 5(2HA) - that is that s.5(2H)(c)(i) does not apply where the impaired mental functioning was caused substantially by self-induced intoxication and that mental impairment as defined in s.322(T), sub-ss.5 and 6 of the Crimes Act 1958, or impaired mental functioning is defined as under s.10A of the Act as meaning, (a), a mental illness within the meaning of the Mental Health Act 2014, or (b), an intellectual disability within the meaning of the Disability Act 2006, or (c), an acquired brain injury, or (d), an autism spectrum disorder, or (e), a neurological impairment including but not limited to dementia.

19The victims in these matters are aware that they could have made a victim impact statement but decided not to do so.  Nevertheless, I can reasonably infer from the circumstances of the offending by the two men that they would have experienced considerable fear, anxiety and trauma as a result of their conduct.

20You were bailed after your arrest and interview and the matter proceeded after committal case conference by way of a straight hand-up brief with a plea of not guilty on 4 September 2019.

21In October 2019 the final directions hearing was adjourned to provide the prosecution some further material, and the prosecution consented to an indication hearing in August of this year.

22Whilst the plea was not given at the earliest stage the prosecution accepted that it carried a clear utilitarian value, and I agree with that proposition.  It has avoided a criminal trial, its costs and inconvenience to witnesses.  I accept that it is accompanied by some remorse.  This feeling is often difficult to assess.  I

perceive your reservations to be derived from your view of your role and state of mind at the time, nevertheless the plea will reduce your sentence.  It has added value obviously at a time current, because of the pandemic, which has impacted on the criminal justice system and on correctional systems.

23In the interview conducted by police you said to them that the two men had told you to come out with them because they had something in store for you.  When you collected them on the first occasion, they appeared to you to be highly intoxicated on drugs.  They were scaring you, patronizing you, and questioned as well as directed you.  You said you knew they were 'sort of doing some sort of hold-up of some sort'.  They put petrol in your car.  You had only known Aird for a month.  You said you were shaking, petrified and started 'zoning-out' and felt 'numb' because of your head injuries.  You said they gave you $175 but they then took $100 back.  You felt manipulated.  They screamed at you and after the robberies you felt that they could hurt you.  They were angry.  They left you with a packet of cigarettes.  You felt vulnerable and that you had been sucked into it because they were unpredictable.

24I take into account your personal circumstances with which to view and assess those answers given to police in the framework of your plea.  You are 49 years old, although I accept that armed robbery when committed especially in company, is a very serious offence and that a driver is an important role in the facilitating movement into an escape from such a robbery, in my view your role was limited and conditioned by your lack of knowledge before the men got into your car on both occasions.

25Although you provided to them an enabling role with some general knowledge of what they were intending to do, other consideration existed to reduce the role weight and your moral culpability.  These men were experienced criminals, their demand and presence would have been intimidating and manipulative to their own ends and would brook no dissent.  You were not a participant in the premeditation or the planning, and although you say your tried to question or dissuade them, these feeble efforts were never going to succeed.

26The weapon used in the first robbery was your son's, and not put in the car for the purpose the crime.  Your role and extent of complicity is a proper basis for distinguishing your criminality from that of Aird and Kalamatas to a very considerable extent.  To this is added the personal circumstances which lead me to decide that it is likely that you would be able to discharge, and in fact did discharge the onus which lies upon you, to prove on the balance of probabilities that under both relevant applicable limbs of 2H I should deal with you as having established exception to the otherwise inevitable sentence of imprisonment.

27Despite the fact that you most likely did not fully comprehend the police caution, you cooperated with police, made full admissions, provided fingerprints and offered and explanation as to your state of mind.  This confirms the level of remorse I have explained before which I accept exists here.  Your plea also has a particular added value at this time of pandemic which I have stated before, and I take these matters into account.

28You present with a complex mental history, you grew up in Brunswick, your father was an alcoholic and physically abusive towards your mother who died in 1984.  The following year you were placed in foster care together with your brother, you so remained until age 18, from that time you lived in women refuges from time to time, in your car, and with your ex-husband.  However, at age 25 you returned to live with your father, you have remained there with him mostly, he is aged 86.

29You completed year 11 at school, thereafter you have had employment in food factories and outlets, cleaning factory work, and as a receptionist, however you are now on a disability pension.

30Between the ages of 20 to 23 you were in a relationship with a man who was physically and sexually abusive.  When you were 28 you married, and you have had three sons born to that relationship.  In 2011 you separated from your husband, he had issues including with violence, gambling, however he retained the custody of the children.  You were granted supervised visits although your boys would regularly stay with you during the week.

31After your marriage collapsed, you met a man who introduced you to heroin use, he too was violent towards you.  Later you were briefly also involved with
Mr Kalamatas.  Up until this heroin use, later in your life, you had regularly used cannabis.  You have been on a suboxone program which successfully managed your heroin addiction, however at the time of the offending you had relapsed.

32From your early 30s you have also used meth amphetamine regularly together with Valium use.  I note that currently apart from the opioid addiction therapy suboxone, you were prescribed anti-anxiety Valium and anti-psychotic Zyprexa. 

33A report from Inner West Area Mental Health Services, for the period April 2004 to October 2006, diagnosed you to have borderline personality disorder, and a history of drug induced psychosis and schizophrenia.  You were at that time referred to the Sunshine Adult Acute Psychiatric Unit Mid-West Area Mental Health Service to stabilise your condition which was facilitated by Xanax and Sodium Valproate.

34In December 2010 you presented to the Royal Melbourne Hospital emergency unit, you were shackled and treated with intravenous Midazolam.  Thereafter in the same period you were admitted to the Sunshine Acute Psychiatric Unit, and the discharged on paliperidone depo injections under a community treatment order which had been put in place because of poor compliance with medication.

35The borderline personality disorder diagnosis was confirmed together with an obsessive-compulsive disorder in May 2011.  On that occasion your psychosis was drug induced, a number of reports were received by the court and exhibited.  A report dated 2019 from Dr Thompson a psychologist attested to you attending inside psychology over the past few months for the purposes of seeking psychological support regarding your drug addiction.

36The doctor writes that you have a long history of traumatic experiences and relationships that have been damaging and dangerous.  She writes that your level of resilience is very low, as is your intellectual insight.  She opines that you are easily led in the detrimental risky and abusive relationships.  She states that at a point soon after confirmation of the criminal activity of your co-accused, you thought to yourself how stupid you had been for believing that they were genuinely asking you out rather than essentially being used by them.

37This vulnerability has led you to being sexually abused as well in the past.  You have been set back in a recurring fashion by these occurrences and by your seeming inability to commit to receiving the help you need.  You have also been a client of Zest Care and a support worker there, Ella Grossling, wrote to the court about you. 

38You have seen her twice a week and her letter is dated 1 August 2020.  She has assisted you to find accommodation for you and your son.  He described you as welcoming, kind, and determined to live a happy peaceful life with your children and is very remorseful and distressed by the offending.     She describes you as vulnerable but determined, and in real need of support and describes her involvement as being a positive pathway to change.

39Another brief letter from psychologists Aruce McCartey at Cathartic Consulting dated 3 August, attests to your referral by the NDIS support coordinator
Ms Nanev to the psychologists to develop self-sufficiency, independence and build capacity.

40The first sessions were in early July of this year.  You attended a number of sessions with Ms McCartey and with Kelly Maltman, another psychologist for psycho-metric testing.  You engaged well and expressed positive attitude towards treatment for emotional management skills until the expiry of your current NDIS plan in March of next year 2021.

41Two other important reports were received and tendered.  The first an assessment by Gina Cydonia, a consultant psychologist, dated October 2019.  This is a very comprehensive report which deals with your history both medical and family in detail, as well as to provide a psychological assessment.

42Ms Cydonia's opinion is that you are a very reduced woman with borderline cognitive function with a full scale of IQ of 71.  At this level, there are it is said major challenges in thinking and reasoning, resulting also in social and vocational disadvantages.  There is a lower ability to reason, problem solve and plan.  You remain impressionable.

43She recommended a neuro-psychological assessment in relation to an acquired brain injury.  Ms Cydonia noted indications of personality and psychologist disturbance with mild psychosis contained by current constrained by current medication, borderline tracks, symptoms of depression and post-traumatic stress disorder affected by substance intoxication at the time of the offending.

44She outlined your negative and low self-esteem and hopelessness.  Your conditions are chronic and long-standing.  Your presentation makes you vulnerable and probably easily led.  Certainly, incarceration would have a destructive effect upon you in view of your fragility and could cause further deterioration.

45The second report is a neuro-psychological assessment conducted by Ms Lofthouse a clinical psychologist.  Ms Lofthouse writes of your background and history, both personal and medical.  She notes your priors to which I will come in a moment.  You described to her a motor vehicle accident in which you sustained a laceration to the right temple which required suturing.  You outlined your drug use to her, and she conducted a number of psychometric tests to ascertain if you have suffered any intellectual decline, such as that related to an acquired brain injury.

46She found that your full-scale IQ was in the low average range of 70, within the borderline range.  Other indexes were tested including verbal comprehension for sexual reasoning, literacy, information processing, memory, executive function, emotional function.  Ms Lofthouse gave a history of your contact with psychiatric services by reference to prior psychiatric reports and discharged summaries as well as the Thompson and Cydonia reports that I have mentioned above.  She concluded that you demonstrated a significant level of executive dysfunction and will struggle to make decisions in a reasoned and informed manner.

47The test results suggested a mild to moderate level of intellectual impairments likely to be related to some extent to brain injury as a result of your drug use, but also related to long standing deficits.  It is possible you suffered a mild traumatic brain injury although not significant to fully account for these deficits to which your depression, anxiety and stress responses have contributed.  These deficits were more than likely present at the time of your offending.  These psychological symptoms are chronic, and, in her view, your intellectual impairment and drug use would have played a significant part in the offending.  These factors would render reclusion more difficult.

48I have considered these letters and reports and take them into account, in my view they provide at the very least under paragraph E, substantial and compelling circumstances that are exceptional and rare, and or, under C1,evidence of impaired mental functioning causally linked to the commission of the offence, sufficiently of itself and not substantially caused by self-induced intoxication, that is in my view your intellectual deficits standing along would suffice for purposes of C1.

49You have priors in 2009 and 2013, and two matters related to family violence order and intervention order breach.  Both were dealt without conviction.  A parenting order was ordered in one case and visits to a doctor made a condition to an undertaking in the other. 

50In 2014 you were convicted of careless driving and failing to stop after an accident, placed on a community corrections order for four months, with usual treatment orders and to undertake a road trauma awareness program and to attend your GP as directed.  You successfully completed that order.

51Two other priors involved thefts for which you were fined in 2015, and another theft in 2016, adjourned without conviction.  In my view although with some caution, your prospects of rehabilitation predicated on dealing with your psychological needs and abstinence from drug use are reasonable.

52You currently appear motivated and your risk of offending although probably high can be mitigated. You have supports in place that I have already mentioned.  You are currently caring for your 86-year-old father and adult sons.  Incarceration and particularly during this period would in my view significantly undo a lot of the efforts undertaken to assist your reformation.

53The pandemic has significantly affected the way in which imprisonment is experienced currently and in the future.  In this context the ability for a community corrections order to provide for all aspects of sentencing requirement and principles is met according to the guidelines in Boulton's case.

54I had you assessed for a community corrections order.  The correctional assessment outcome report finds you suitable for a community corrections order and I intend to make you subject to such an order for two years.  Although I understand that community work has not been recommended, essentially because that condition has been currently suspended in response to the pandemic crisis.  The length of the order will hopefully afford an opportunity for this element which I consider the punitive element of the order.  You will be subject to such an order with conditions.

55On the charges of armed robbery, you are convicted to a community corrections order for 24 months, you will be supervised, and you will obey the lawful directions of correctional authorities.  This will mean attendance upon supervision as directed whether by audio-visual connection, telephone or in person.  You will be subject to an assessment, treatment and rehabilitation for drugs and for mental health.  This order is essentially designed to assist you and coordinate ongoing psychological and therapeutic programs that you are currently undertaking.  Whether through the NDIS or under the overview of Corrections.  You will perform 100 hours of community work and 40 hours will be credited to that amount from treatment conditions.  These conditions were explained to you and I understand you consented to them and you consent to them presently.

56I should make clear that during the course of the order, you must abide by the directions that you are given by Corrections, and be available for supervision and for treatment, you will be of good behaviour.

57If during the lifetime of the order you commit an offence, you fail to attend or you go back to use illicit drugs, you will be in contravention of the order and I have power to punish such a breach and can also re-sentence you for the two armed robberies at which point I may have no option but to consider sending you to prison.  Do you understand?

58OFFENDER:  Yes, I do, Your Honour. 

59HIS HONOUR:  But for your plea I would have sentenced you to nine months' imprisonment together a community corrections order for two years.  I have ancillary orders for disposal and forfeiture which I have signed.

60Are there any other ancillary orders, Mr Dober?

61MR DOBER:  No, Your Honour. 

62HIS HONOUR:  Mr Lowy, perhaps if you coordinate this with my associate?

63MR LOWY:  I will do so, Your Honour.

64HIS HONOUR:  He will ‑ ‑ ‑

65MR LOWY:  (Indistinct words) sorry.

66HIS HONOUR:  That's all right. He will be able to electronically send you the paperwork for Ms Lo Bosco to sign.

67MR LOWY:  Yes, Your Honour.

68HIS HONOUR:  And perhaps once that is done you can just perhaps go through that material with her in terms of where she is to report and when and where.  And have that material back to him as soon as you can manage it.

69MR LOWY:  As soon as I can, Your Honour.

70HIS HONOUR:  All right.  Thank you both, gentlemen. 

71COUNSEL:  As the court pleases. 

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