Director of Public Prosecutions v Maher

[2015] VCC 412

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01935

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEANNE MAHER

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 March 2015
CASE MAY BE CITED AS:	DPP v Maher
MEDIUM NEUTRAL CITATION:	[2015] VCC 412

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr G.Thomas
For the Director of Public Prosecutions	Ms J. Cavka

HER HONOUR:

1Leanne Kora Maher; you have pleaded guilty before me to one charge of aggravated burglary, one charge of common assault, one charge of theft and one charge of handling stolen goods.  You have also admitted prior convictions.

2The facts underlining your offending are as follows.  The charges cover two events of offending by you.  The first victim in this matter was a man named Jesse Vaitkis.  The offences occurred on 6 January 2014.  The victim was living in McCracken Street, Kensington, and he went to bed at about 6.30 am on Monday 6 January 2014.  Soon after, you and an unknown co-offender entered that apartment through an unlocked door.  Those actions underlie Charge 1 on the indictment; aggravated burglary.  That is, entering premises with an intention to steal while a person is present, and you being aware of that fact.

3The two of you took a sheet from the couch and used it to gather together a number of items which were to be taken from the apartment.  Mr Vaitkis was awoken by a noise in his bedroom and he saw a person who was holding a hammer in his hand rummaging through his belongings.  That person also had taken a pair of scissors from the kitchen bench.  He said to that offender, "What are you doing in my room?" and that person told him to "shut up" and took his phone, which was on the bed.

4

He asked the victim his name.  The victim responded "Jesse", and the person said, "No, what's your real name?"  The second offender entered Mr Vaitkis' room and also started going through his belongings.  The first offender told

Mr Vaitkis to get his wallet, and as he reached under his pillow to retrieve it that offender punched him with a closed fist to the left side of his mouth causing pain, swelling, and a cut to his lip.  These actions underlie Charge 2 on the indictment; common law assault.

5The situation would appear to be that the first offender was the unknown co-accused in this matter, and the second offender was you.  You have been charged with common law assault because of the actions of the first offender.  It is not alleged that you, in fact, delivered the punch, but you are charged on an acting in concert basis.

6The second offender, who it appears was you, shone a bright torch at the victim, and the first offender left the bedroom whilst you watched the victim.  The first offender then came back into the room and said, "Maybe you're not the guy," and had a discussion with you about whether the victim was "the guy".

7

The first offender told Mr Vaitkis to escort the two of you out of the apartment, and as you all walked out together you picked up the blue sheet filled with the victim's property whilst the first offender was still holding the hammer. 

Mr Vaitkis asked for his wallet back but the first offender took the cards out of the wallet before giving it to him.  The two of you then ran from the address and the police were called.

8The following items were stolen from Mr Vaitkis; they being a mobile phone, a wallet, a PlayStation and games, an Xbox and Xbox games, Nintendo 3DS, a Canon 60D camera, two bottles of whiskey, a laptop, scissors, hammer, a VISA card and keys.  Police attended and fingerprinted the apartment soon after and fingerprints were obtained from an art book in the lounge room which were later identified as yours.  Mr Vaitkis said he was very scared that he would be hit by the hammer and killed during the incident.

9In a victim impact statement tendered on the plea Mr Vaitkis said that as a result of this offending he became very fearful for his own safety, very insecure in his own home and became hyper vigilant.  And whilst that condition has improved, he still has difficulties with feeling safe in his life, which is a very common reaction to people who have undergone the sort of traumatic incident that he underwent on that night.  The value of the goods stolen from Mr Vaitkis was about $950 and none of those items have been recovered.

10The second event covered by this offending essentially arose on 28 January 2014, when police located a white Lexus sedan at a car park at Strath Creek Falls, near Seymour.  That car had been stolen around 24 or 25 January from an address in North Melbourne.  There was no one in or near the car, and at about 1 am the police canine unit located you and a co-offender, Simon Breen, at the Strath Creek Falls lookout, about a hundred metres from the car park.  You scaled the safety barrier and began descending down a rocky cliff face towards the falls, but then agreed to return to the lookout with police.  You had injured your ankle and were distressed.

11You and Mr Breen were arrested and administered a caution; Breen telling police that the two of you had become lost on your way to Sydney.  A key to the stolen vehicle was located in the possession of both of you and you were taken to the Seymour Police Station.  Stolen property was located in your possession on your arrest and this underlies Charge 4 on the indictment; handling stolen goods.  They were the car, an Apple iPhone, an acoustic guitar, a Mitre 10 sports pack, some running shoes, sunglasses, a Lumix camera, and assorted cards including a Medicare card, RACV membership card and driver's licence in the name of one Joel Scantlebry, and a Medicare card, BCU Eftpos card, a civic compliance card, health care card and myki card belonging to one Vyrn Sidrab-Boyes.  You made no comment responses to the allegations in the record of interview.

12You were arrested and remanded in custody on 29 January 2014, but were granted bail on 18 February.  You then failed to appear at a committal mention at the Melbourne Magistrates' Court on 28 April 2014 and a warrant of apprehension was issued and executed on 13 September 2014, when you were remanded in custody.  These charges were shortly resolved in October of 2014, when you entered a plea of guilty at a committal mention.  You have remained in custody ever since.

13The maximum penalty for aggravated burglary is 25 years' imprisonment.  For common assault the maximum penalty is five years' imprisonment, for theft the maximum penalty of imprisonment is ten years', and for handling stolen goods the maximum penalty is 15 years' imprisonment.

14Your co-offender, Simon Breen, was convicted and sentenced in relation to a number of offences, including handling stolen goods, and was placed on an 18 month community corrections order with conditions including community work and treatment and rehabilitation.  He was dealt with in the Magistrates' Court at Broadmeadows.  Application for some re-jurisdiction in relation to your matters, Ms Maher, was refused by a magistrate on 23 October 2014.

15I now turn to your personal circumstances.  You are now 35 years old and were 34 at the time of this offending.  You were born in Wollongong and were raised by both your parents until your mother left when you were about six.  You did not see her again until you were 11, when she saw you on your birthday and gave you a wristwatch.  You lived with your father, older sister and two younger brothers in Wollongong and Swan Hill, but moved around a lot.  Your mother moved to Footscray and she apparently has a history of psychiatric admissions.

16You lived with your father until you completed Year 11 and worked for 12 months as a dental assistant.  It appears you had a reasonably happy childhood, although you missed the presence of your mother in your life very much.

17When you were about 17 you underwent the first of a number of very traumatic life events when your older sister was murdered in 1997.  This caused immense distress and you, having been close to your sister, turned to drug use and drinking in order to deal with the traumatic aftermath of your sister's murder.  Two years later your younger brother was killed in a stabbing incident at a party.  Several years after that a cousin to whom you were close was also murdered.

18This is an extraordinarily traumatic series of events.  That a person as young as you should have undergone the violent deaths of three young persons close to you - two siblings and a cousin - is almost unimaginable trauma, and unsurprisingly you continued with drug use and a chaotic style of living for some years.

19When you were in your early 20s you met the father of your son, Scott, who is now 12.  You managed to look after your son for some time, but as a result of your very heavy drug use, engaged in offending.  You do have a fairly significant prior criminal history, however this is fairly useful in that it does show that whilst you have been in a lot of trouble, you have also managed to go through periods of rehabilitation; largely brought about by yourself.  So whilst there has been, for many years, periods of intense offending, there have also been many years of drug and crime free existence by you, and this is very important in determining my decision about what the appropriate way to deal with you is.

20Your prior criminal history goes back to about 1998, which is a year after your sister was killed.  You were dealt with on numerous occasions for minor offences, common assault, shoplifting, driving offences, and a large number of assaults and thefts almost on a constant basis from 1998, 2000, 2001, 2002 and 2003, your last offending really occurring in 2004 in Wollongong, where you were imprisoned for 12 months for burglary.

21Turning to the Victorian prior criminal history because you then, over those years, re-connected with your mother after your son was born and lived with her in Footscray.  You went through a period of time where, as I have said, you were able to remain crime free.  You were dealt with in Victoria in 2005 on charges of theft and failing to answer bail, and then in 2006 for, essentially, driving related charges which were, however, serious; they involving theft of a motor vehicle, failing to answer bail, driving in a manner dangerous and reckless conduct endangering life, and in those years received a total effective sentence of two years with a minimum term of 12 months.  Your counsel informed me that that offending in fact occurred in 2004 and 2005.

22After you were released from gaol you formed another relationship and had two children; a son and a daughter, and thereafter you weaned yourself off drugs, devoted yourself to the care of your children and did not appear again before a court until 2013.  I should add that there was also a burglary and a theft for which you were dealt with in 2006, but again that was old offending, and, effectively, although you were also in gaol your offending ceased from about 2004 until 2013.  This, your counsel informed me, was as a result of your determination to care for your son, and then when you came out of gaol, for the two young children that you then had, and given the extraordinary trauma that you went through in your late teens and early 20s, was a most creditable effort by you.

23Your life was not without difficulty, however because the father of your two youngest children was a very abusive man and would not accept the end of your relationship, in those years - although you stayed out of trouble - you were constantly on the move trying to get away from this abusive partner.

24There have been some fallouts as a result of you constantly being on the move.  You put your name down for public housing at the age of 16, but because you have constantly moved and not been able to, as a result, consistently provide the Department of Housing with your address, you have never in fact advanced up the list, and so have never been the recipient of public housing, and this has been extremely difficult.

25Remarkably, given the fact that you are undergoing this trauma that you were constantly on the move with two small children trying to escape this abusive man, you had been able to care for your children so successfully that they have had little or no contact with the Department of Human Services.  It appears that whenever you have been in a position where you felt you could not care for your children you made sure that they were looked after either by your mother or your father.  Eventually you obtained private rental in Coburg, but were unable to afford that rental, so you sent your children up to live with your father in Wollongong in New South Wales. You remained living in Melbourne with your mother trying to sort out the accommodation situation.

26This brings us to late 2013, when you were again the recipient of an extraordinarily traumatic event when you were raped by your cousin.  Again, this is where the prior criminal history bears out the personal history that was told to me in court.  You dealt with that appalling incident - which you did not feel you could inform anyone in your family about because of the relationship that you had with your rapist - by turning to drinking.  You did not have the children in your care at the time because you had sent them up to Wollongong with your father whilst he looked for somewhere else for them to live before you could take them back.

27Undoubtedly the dramatic reaction that you had had to the violent deaths of your siblings and your cousin arose again, together with the trauma of being raped and the feeling that there was no one that you could tell because of your relationship to that person, and during the Koori Court hearing around the table you spoke very frankly and very courageously about your descent after that time into alcohol abuse, and then drug use.

28This drug use appears primarily to have occurred because of your co-accused, Simon Breen.  It is understood that he is probably the co-accused in the aggravated burglary involving Mr Vaitkis.  You have not felt in a position to give police information to that effect, but the prosecutor did state during the round table conference at the hearing that it was suspected he was, if you like, offender number one.

29You became involved with Mr Breen because in the midst of your despair following the rape you went to Ozanam House hoping to track down the father of your son, Scott.  Whilst there you came across Mr Breen, who you said presented as a supportive, strong male figure.  He never sought to form a sexual relationship with you and you felt safe with him.

30Unfortunately it would appear he was an entrenched drug user, and you soon became involved in a terrible cycle of methylamphetamine, or ice use, punctuated by use of Xanax when you were unable to obtain the drug ice, or when you needed to escape the sleeplessness that accompanies constant ice use.

31You informed those of us around the table that for most of this offending you were in a blur and have little recollection of it.  On the plea I was informed by the prosecution of outstanding charges still to be dealt with in the Magistrates' Court; all of them committed in company with Mr Breen between November 2013 up to about February 2014, essentially involving burglaries and thefts.

32After you were arrested at Strath Creek Falls you parted ways with Mr Breen.  You might have failed to answer bail, but I am satisfied that between about February 2014 and October 2014, when you were finally apprehended on a warrant, you managed to get yourself, again, off drugs, and there is no further offending.  I am satisfied therefore that at the time you were taken into custody in October 2014 you had taken the steps you needed to get yourself off drugs and get your life back on track.

33In the meantime, very sensibly you had attended upon CASA; the Centre Against Sexual Assault.  Whilst in gaol, although you have been on remand you have undertaken what courses you can, and I accept that because you are on remand the courses available to you are limited.  You have undergone what drug courses you can.  You also undertook a domestic violence course, where you were unfortunately attacked and assaulted by another resident.

34Your time in custody has been particularly difficult because of the agony you have felt over being separated from your children.  During the round table conference you talked of the great agony you have felt at not being around for your daughter, who has started school, and not being able to walk her to school, as you wished your mother always had.

35I was extremely impressed with the way you presented at the round table conference.  You presented as a young woman who is full of grief and who has endured more trauma than most people could expect to in their life, but a young woman who has managed, with very little support, to overcome her personal trauma to ensure that she could do the very best she could for her children.  As I said, it is quite remarkable that your children have been so well cared for, that they have not come to the attention of the Department, and that you had the courage if you felt you had not been able to care for them properly yourself to make sure that they were placed in the care of someone who could.

36You are particularly concerned at the moment because of what you say is your guilt towards your parents at being in your current situation, where you are unable to care for your children in a hands on way.  Your mother has recently undergone a triple bypass operation and your father has recently discovered that his brother has cancer and wants to spend what time he can with him before he passes away.

37Your plan is to return to live with your mother on your release from gaol and take care of your younger children.  You said that your older boy is very well entrenched in school in Wollongong.  He is playing football up there and you do not want to interrupt his situation.  He is now in his teen years, when friends and immediate surroundings are particularly important, and you recognise that is where he needs to be at present.

38The amount of grief and yet courage that you displayed during the round table conference was felt both by myself, and the elders who were present, to be quite remarkable.  You impressed me, as I have said, as a young woman who is a very strong and effective mother, and who is able to put aside her own very considerable trauma and grief in order to properly care for your children.  Fortunately the situation with the father of your youngest two children appears to be resolved and he is no longer intruding into your life.

39Whilst in gaol you have kept in contact with CASA, which is extremely important, as you need to do whatever you can to recover from the terrible aftermath of having been raped by your cousin.

40It is my view that you have good prospects of rehabilitation.  I say that because of the years of crime free living you were able to achieve after the birth of your children.  I am satisfied that you engaged in this spree of offending, if you like, directly because of the sexual assault upon you and the unfortunate subsequent connection with Mr Breen, who seemed to offer some sort of safety and comfort for you in the aftermath of that terrible event.

41You have now split from Mr Breen and you have had no contact with him since your arrest in February of 2014.  You managed to overcome the drug and alcohol use you had engaged in in those months, and to take positive steps, such as connecting with CASA.

42You have been placed on parole a number of times and the record shows that you have been breached parole on a number of occasions, and that has not necessarily been because of further offending, but because of a failure to remain engaged with the parole service, essentially, it would seem, because of the need to keep on the move from your abusive former partner.

43Again, it would seem that your failure to appear at court in April of 2014 was brought about by your need to attend to your drug and alcohol problems, and to assume care of your children, which took precedence over whatever court obligations that you have.  Obviously this is not something I necessarily approve of, but given your personal situation at the time it is understandable, and does not represent, if you like, a contempt for judicial process.  It is accepted that once you were placed in custody these matters swiftly resolved, and that your plea was entered at an early stage.  You have expressed remorse for your offending.

44In saying all this, it must be recognised that the victim of the aggravated burglary, assaults and theft, in particular, suffered a great deal himself.  Aggravated burglary is a very serious crime involving, as it does, home invasion, and resulting, as it does - and as it clearly has with Mr Vaitkis - in very terrible ongoing emotional distress; particularly he having not only been intruded upon criminally in his own home, but physically assaulted.  It would appear that he was not the target intended by your co-accused, nevertheless the burglary and theft continued to be perpetrated upon him, and his victim impact statement makes for distressing reading.

45He states:

"I don't think I'll ever forget this incident and I think about it daily.  Personal effects of mine could not be recovered, including old photos that I will never get back."

46Ordinarily a person who has offended as you have, Ms Maher - particularly a person with a long prior criminal history that you have - could only expect a very lengthy term of imprisonment.  Your case, however, is remarkable and different.  I accept that there were compelling reasons for you engaging in the offending that you did.  In saying that I am by no means justifying your offending, but the personal trauma that has surrounded your offending history and your capacity to pull yourself out of the mire of grief and offending that has accompanied your life is quite remarkable, and as I have said I am satisfied you were able to do this after your arrest at Strath Creek Falls.

47It seems to me that this is one of those cases where the capacity of a court to combine a gaol sentence with a community corrections order is very much justified, both in attending to the punitive aspects of the sentencing exercise and the rehabilitative aspects, that if exercised upon the right person, ensure the best means of long term protection to the community from a person's continued offending.

48I had you assessed for a community corrections order.  You were described as polite and co-operative throughout the interview and were found suitable for this order.  In my view it is appropriate that I deal with you by way of a combination of gaol and a community corrections order.

49Because of the very extreme personal circumstances and your own demonstrated capacity to pull yourself back into responsible, contributing behaviour, I am going to sentence you to a term of imprisonment which is far less than would ordinarily be imposed upon someone who has engaged in this type of offending, and with your criminal history.

50On the charges of aggravated burglary, common assault and theft, I will sentence you to 12 months' imprisonment.

51On the charge of handling stolen goods I am also going to sentence you to nine months' imprisonment, which will be served concurrently.

52That gives a total effective sentence of 12 months.  I am going to order that you then be released on a community-based order for a period of two and a half years.  How many days is it now?  It is 220 days, not including today.

53I direct that 221 days of this sentence have already been served by way of pre-sentence detention.  That means you have got just under five months to go, Leanne.  All right, is that clear?

54OFFENDER:  Yeah.

55HER HONOUR:  You are then going to be released on a community-based order, as I have said, for two and a half years.  Now, I need to explain to you what the fundamental conditions of a community corrections order are, all right?  Because I can only place you on that order if you agree to it.

56The fundamental conditions are that, firstly, while you are on the order you must not commit any offence punishable by imprisonment inside or outside Victoria.  So the tiniest shoplift and you will be brought back on a breach and I will re-sentence you on these charges.

57Secondly, you must report to the Community Corrections office within two working days of the order coming into effect.  You will be told about that when you are released from prison, all right?

58The third condition is that whilst you are on the order you may not leave Victoria without the permission of the Community Corrections officer, and that might worry you a bit because your kids are in Wollongong, but you can get permission, it is just that you cannot go interstate without getting permission first, all right?

59Whilst you are on the order you must report to and receive visits from the Community Corrections office, you must report any change of address or employment to the Community Corrections office within 48 hours of the change, and whilst on the order you must obey all lawful directions of the Community Corrections office.

60I am also going to order that you be assessed and treated for mental health difficulties, and I am going to order that you be assessed and treated for drug and alcohol difficulties, all right?  Do you understand all that?

61OFFENDER:  Yes.

62HER HONOUR:  The final thing I am going to order is judicial monitoring.  That is that you are to come back to court and see me every six months while you are on the order.  That is both so I can keep an eye on you, but also to ensure that you are travelling okay, and we can discuss how you are coping with things and if there are any changes that need to be made.  The first judicial monitoring will be on 31 March next year.  So you will be out of gaol in about September, I think it is.  All right?

63OFFENDER:  Yeah.

64HER HONOUR:  Can you hang on that long do you think?

65OFFENDER:  Yeah.

66HER HONOUR:  All right.  Are you prepared to enter the order?

67OFFENDER:  Yes.

68HER HONOUR:  Thank you.  Have a seat, Ms Maher.

69MR THOMAS:  Can I just raise one matter, Your Honour ‑ ‑ ‑ 

70HER HONOUR:  Yes.

71MR THOMAS:  ‑ ‑ ‑ that's come up in the course of the sentence?  And it's concerning those prior convictions, just before that order's signed.  And it's a result, I think, of the New South Wales priors as well.

72HER HONOUR:  Yes.

73MR THOMAS:  It would appear there were - she returned to gaol in 2008 in New South Wales.

74HER HONOUR:  Yes.

75MR THOMAS:  It appears that my instructions were - as I put to Your Honour it appears at least one of those matters come from 2007.

76HER HONOUR:  Yes.

77MR THOMAS:  And I think the Victorian matter came when she came down, so that would've been in 2005 or so.  Just so Your Honour's aware that in terms of that period of non-offending it goes back to ‑ ‑ ‑ 

78HER HONOUR:  There was one offence?

79MR THOMAS:  It goes back to - I think in 2007 would be the last substantive offence.

80HER HONOUR:  Between 2007 and 2013?

81MR THOMAS:  Seven, yes.

82HER HONOUR:  I'm sorry, I should've noted that.

83MR THOMAS:  I'm not sure if anything turns on that in terms of Your Honour's considerations but - and of course she does return to gaol, and we took Your Honour through those periods of time.

84HER HONOUR:  That's right.  You're right, there is the 2008, and that involved drug use and break and entering, and that offending occurred in 2007.

85MR THOMAS:  So that the record shows 2007, and that's what Your Honour has to take into account, I think?

86HER HONOUR:  Yes.

87MR THOMAS:  Strictly speaking.

88HER HONOUR:  I do, thank you for that.

89MR THOMAS:  Thank you, Your Honour.

90HER HONOUR:  Yes, so I made a mistake there, there was offending in 2007.

91MS CAVKA:  Yes, Your Honour, there's quite a few offences, including an aggravated burglary.  If Your Honour looks at the criminal record for New South Wales it's the first three entries.  They are all 2007 offences.

92HER HONOUR:  Yes.  So there was a two year sentence with a one year - in fact, that's where I've made the mistake, and I'll reflect the record.  It would appear that it was after that time, because in fact her children are only four and five.

93MR THOMAS:  Yes.

94HER HONOUR:  It was when she was finally released in relation to these matters that Ms Maher's two children were born, and that is the start of an extended period of time where she stayed out of trouble.

95MS CAVKA:  From 2007.

96HER HONOUR:  Yes, between 2007 and 2013.

97MR THOMAS:  Thank you, Your Honour.

98HER HONOUR:  Yes, pursuant to s.6AAA I declare that had you not pleaded guilty, Ms Maher, I would have sentenced you to a total effective sentence of three years and ordered that you serve a minimum term of two years.  Now, I am just simply saying that if you had not pleaded guilty that is the sentence that I would have imposed.

99A forensic sample has been sought and I think in the circumstances that should be ordered.  I need to tell you, Ms Maher, police are going to take a swab from your mouth to obtain a forensic sample, and that if you do not allow them to do that they are entitled to use reasonable force in order to obtain it, all right?

100Thank you, I will get Ms Maher to sign it first.  I am not going to order a - was compensation sought?  I do not intend to order it, there is just no prospect of it ever being able to be fulfilled.

101MS CAVKA:  Yes, Your Honour.

102HER HONOUR:  Yes, thank you.  Ms Maher, I wish you all the very best.  Hopefully now that you will be out of remand there will be some good programs that you can become involved in at Dame Phyllis Frost, and I will see you in March next year and hopefully things will be going well.

103OFFENDER:  Thank you.

104HER HONOUR:  Thank you very much for your participation you really put in during the conference, and that was extremely helpful to the court.  Yes, thank you.

105MR THOMAS:  Your Honour pleases.

106HER HONOUR:  Very well, I'll just stay on the bench, I think, and we'll see what's happened with Mr Dunn.  Thank you, counsel are excused, and I thank counsel for their assistance in this matter.

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