Director of Public Prosecutions v Malone

[2018] VCC 183

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

AT GEELONG
CRIMINAL JURISDICTION

CR-17-02023

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICOLE MALONE

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Geelong
DATE OF HEARING:	15 February 2018
DATE OF SENTENCE:	20 February 2018
CASE MAY BE CITED AS:	DPP v Malone
MEDIUM NEUTRAL CITATION:	[2018] VCC 183

REASONS FOR SENTENCE
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Subject:        Criminal law – sentencing – robbery – early plea of guilty.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Maguire	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms M. Casey	Victoria Legal Aid

Pages 1 - 11

 

 

HER HONOUR: 

1Nicole Malone, you have pleaded guilty before me to one charge of robbery, contrary to s.75 of the Crimes Act 1958. The seriousness of the offence of robbery is reflected in the maximum penalty that is prescribed and that is 15 years' imprisonment.

2You are now 32 and you were aged 31 at the time of the offending.  You currently live with your sister, Jessica, and her four-year-old son. 

3I will now sentence you on the basis of the opening that set out the facts relied upon by the prosecution and that was read into the transcript by the prosecutor, Mr Maguire.

4Briefly, the circumstance of the offence is that on 2 July 2017 you went to the BP service station, Grovedale, at about 7.42 am.  You approached the counter and told the store attendant, Damien Waack, that you had a weapon in your pocket, that you did not want to use it and that he should put money in the bag that you then placed on the counter.  He immediately complied with the request and as you left the store, taking with you a bag of money, you said to him, "Sorry about this." 

5Mr Waack has been affected as a consequence of your actions and you heard the prosecutor read from his victim impact statement this morning.  But in essence, he says that he was very fearful at the time and that persisted, that feeling of being in fear persisted throughout the rest of the day. He felt physically sick and a sense of panic took over him. He, for days after, did not feel comfortable entering his place of work.  Ultimately, he took some personal leave with consequential loss of income.  He has being seen by a counsellor twice and he has symptoms of post-traumatic stress, such as ruminating about what could have happened, loss of appetite, restlessness, not being able to sleep, crying at odd times, being overcome with sadness and frustration.

6He confined himself to his home for a few days and he suffered what was described as a feeling of paranoia or hypervigilance.  When he ultimately returned to work, he felt very disconnected from his team because he was reluctant to talk about his feelings. 

7On the morning, police were notified of the robbery immediately. You were apprehended soon after, hiding behind a dumpster that was located near the BP service station.  The police located the toy gun that you had in your possession at the time of your arrest. 

8You made admissions in the formally recorded record of interview.  I noted you were very repentant in respect of your actions on that day and apologised profusely for your behaviour. 

9Ms Casey made a comprehensive plea on your behalf.  She acknowledged that the offending was serious but submitted that it was at the lower end of the scale for this serious offence: I agree with that assessment. 

10She referred to the context of the offending and your personal history and background.  You are the third child of three children, your parents separated when you were a very young infant.  You do not have an ongoing relationship with your father, whom you first met when you were aged 18. 

11Your mother raised you and she is now deceased.  Tragically, she committed suicide by way of overdose of medication when you were only 20.  She had a history of bipolar mood disorder and manic depression.

12I have had regard to the contents of the report of Mr Cummins, forensic psychologist, dated
13 December 2017.  I have taken into account his report insofar as he sets out in full detail your history context and background. 

13There is no reliance on the Verdins principles but I have taken into account, in the general sense, what he has described.  He considers that you developed an adjustment disorder in the form of persistent complex bereavement disorder following your mother's death, which he considers is now resolved.  He also considered that you had an adjustment disorder with mixed anxiety and depression currently, which requires ongoing treatment. 

14In terms of your background, you were born in Melbourne but lived, as a small child, in Bendigo.  There, you attended school until Grade 5 and then your family came to live in Geelong.  You successfully completed Year 12 at Oberon High School.  You then had a gap year followed by full-time employment in various roles. 

15You have had intimate relationships in the past that have ended badly.  When you were aged between 29 to 31, you were in a defacto relationship that was described as being highly dysfunctional and drug focussed.  That relationship ended in June 2017. You are currently single.

16You have been diagnosed with depression in the past for which you received treatment by way of antidepressant medication.  Currently, you have been placed on a mental health care plan and you are being seen by a psychologist. 

17The offending occurred in the context of your abuse of the drug, ice, heroin and alcohol, loss of employment and difficulties coping with the breakdown of your relationship. 

18You were staying that morning on a couch at a friend's place and when you woke, you decided to commit the robbery.  You took a toy gun from your friend's place, as well as the bag, and then walked to the nearby service station where you committed the offence. 

19You now accept that what you did was a stupid and desperate act that has had adverse outcomes for the store attendant, Mr Waack.  When you read his victim impact statement, you broke down and cried because of what you had done.  You now openly apologise for your behaviour and a written apology was received by the court. 

20I accept that your offending was situational rather than a well-planned robbery.  It was very opportunistic offending and you were not disguised.  Your eventual apprehension was inevitable.  I accept that you are now genuinely remorseful for your actions and sincerely regret your involvement. 

21You were in custody for one day and then released on 3 July 2017 on strict bail conditions and a requirement of bail was that you participate in the Court Integrated Services Program (CISP).

22A report from Emma Kennedy from the Court Integrated Services Program dated 15 September 2017 sets out your progress.  Under that program, the following issues were identified, problems with illicit drugs, mental illness and/or mental disorder.  Overall, it can be said that you engaged very well with the program.  You were open and willing to address your issues and you were genuinely motivated to make positive lifestyle changes. 

23Her report details your long-standing polysubstance abuse issues and as a consequence, arrangements were made for you to participate in drug and alcohol assessment with ACSO COATS, which you did, and you were deemed eligible for a complex episode of drug and alcohol treatment.  You were sent to Emma Williams at the Stepping Up program for counselling and you were supported by Mr Adam Maloney, case manager.  Overall, you engaged well and you were genuinely motivated.  You were referred to Ms Stavroula Serdich, psychologist, in respect to your mental health issues and also to enable you to be supported to work through past trauma and to assist you with developing new strategies to cope with anxiety and stress.

24The ACSO COATS report that was received from Sally Edwards, dated
27 July 2017, sets out your complex history of alcohol and drug abuse commencing when you were around the age of 16.  You have been a long-term user of many amphetamine type stimulants and heroin became an issue in 2017. 

25You had some treatment at a residential withdrawal unit in Geelong four years earlier, at which time you stopped using cannabis and alcohol for six months.  You were prescribed methadone in 2017 as a replacement therapy for heroin use but you were topping up with heroin as well.  It was noted that there was a history of self-harm and a severe level of psychological distress. 

26You were considered to be a high risk of reoffending when substance affected but also highly motivated to complete complex counselling and residential withdrawal.

27You were admitted to Windana Drug & Alcohol Recovery services and you completed a drug withdrawal program on 13 September 2017. 

28Jade Sasha, a case worker at Windana, in his letter of 12 September 2017, confirms that you participated well in all aspects of the program, including one to one counselling, psychoeducational groups, house duties, daily exercise, supervised urines and complementary therapies.  You were also the house coordinator, a role which entailed some responsibility and ensured the smooth running of the household.  All in all, you were considered to be a person who successfully completed the program.  You demonstrated a conviction to improve your life and you remained engaged in the recovery process. 

29Ms Emma Williams, who is your case manager at the Stepping Up consortium, in her letter of 14 February 2018, confirms the details of your active engagement with that service since 1 August 2017.  She noted that you were referred there for ongoing counselling and care. She noted that you engaged well, you had completed a detox with Windana and you had since remained abstinent from alcohol, heroin, ice and cannabis. 

30You voluntarily referred yourself to the Time for Change Program with Stepping Up, which is an intensive non-residential day rehabilitation program for those recovering from substance abuse.  That was a six week program with a two week aftercare period.  You completed and graduated from the program on
24 November 2017 and you are currently in the fifth week of your second group.

31You and your sister, Jessica, have been referred to family therapy service with Barwon Child Youth and Family services and you are engaging with a psychologist fortnightly to further support you in creating a healthy lifestyle.

32Ms Williams confirmed that you have been nominated for supported housing within the organisation, which would offer you 12 months of stable accommodation.

33Her assessment is that you have always been respectful, open, honest and goal focussed throughout your treatment.  You have maintained abstinence from all drugs concerned and improved your self-efficacy, self-esteem, awareness around the risks involved with drug taking behaviours and working towards positive mental health. 

34Your long-term goal is to be engaged back in the workforce, increased self-esteem and reduce your methadone to nil.  She states in her opinion that you a strong-minded woman who has made active changes in her lifestyle and habits to better yourself over time.  Your confidence and self-worth have increased, which has aided you in your recovery. 

35She believes with ongoing engagement, continuing psychological counselling and case management, that you will have knowledge and skills to fulfil your goals and to have a greater quality of life.

36That is the general background and details of your progress following your release on the CISP bail program. 

37I must say that it is not often that courts see such an exemplary response to the opportunity that is offered through that program and your behaviour highlights why it is important that those programs be supported. 

38In mitigation, I accept that your plea of guilty was entered at the earliest opportunity, at committal mention on 6 October 2017.  You are entitled to have that fact taken into account and I do so.  By your plea, you have spared the witness, in particular, Mr Waack, the ordeal of a trial and you have saved the cost of the trial.  You thereby facilitated the course of justice and your sentence will be discounted accordingly.  I accept that this evidence of genuine remorse and also an expression of willingness on your part to accept responsibility for your wrongdoing. 

39It is important to note that you do not have any past criminal history and you are entitled to have your good character taken into account.  Upon your arrest, you were cooperative with police and made full and frank admissions with respect to your offending. 

40I am satisfied, having regard to the significant and remarkable progress that you have made in the period between the time of your offence and the present date, that you do have excellent prospects for rehabilitation.  You have demonstrated your ability to address the underlying offending behaviours that contributed to your offending. 

41The offending was committed in the context of a chaotic and dysfunctional lifestyle.  I am satisfied that you have now taken significant steps in your reformation.  You have been abstinent from drugs and alcohol since the date of the commission of the offence and this is of real significance, having regard to the history and background that is reflected in the material that is before the court.

42You have a positive therapeutic relationship with your psychologist, Stavroula Serdich, and your Stepping Up case manager, Emma Williams, and that is to be encouraged to be supported, ongoing.

43I am satisfied that you are now well on your way to reformation and currently, your situation is stable.  You express a desire to realise your full potential.  You are currently best placed to consider what your future can be like as a drug-free person.  You do have all the necessary attributes to make a positive contribution to the community in the future. 

44You are considering undertaking further studies in the area of drug and alcohol counselling or psychology to help others, and I urge you to continue to take that course. 

45From reading Mr Cummins report of 13 December 2017, it is evident that there are some underlying psychological problems and there have been in the occasions in the past where you have needed active medical management of your psychological conditions.  He states that you are settled and that it is most appropriate that you be given the opportunity to continue receiving ongoing psychological counselling. 

46The only risk ongoing that he identifies for you is that if you were to return to abusing alcohol or illicit drugs, then your mental health would decline.

47Given your post-offence conduct, I consider that there is real optimism for your future.

48In sentencing you, I have had regard to the principles set out in s.5 of the Sentencing Act 1991. The court must impose punishment that is just in all the circumstances. Robberies of this nature are, unfortunately, particularly prevalent in our community and there is a need for courts to emphasise both general and specific deterrence.

49Because of the demonstrated remorse in your case, I consider that that does indicate realistic prospects of rehabilitation and also reduces the need for specific deterrence in respect to this offending.

50On behalf of the community, I must denounce your conduct and impose just punishment and establish conditions within which your rehabilitation must be facilitated.

51You have been assessed as being suitable for a Community Correction Order.  You have had the conditions of such order that are proposed to be put in force explained to you and also the consequences of a contravention and you have agreed that you understand the conditions and also what would happen in the event of a contravention and that you do consent to entering into such an order. 

52In all the circumstances, given your significant reformation whilst on supervised bail, I consider that the most appropriate sentencing disposition for you in respect to this offence is a Community Correction Order.

53Ms Casey, on your behalf, submitted having regard to the particular features of your offending, the court should consider such an order without the conviction being recorded. The court, in exercising its discretion whether or not to record a conviction must have regard to the factors set out in s.8(1) of the Sentencing Act 1991. I must have regard to all the circumstances of the case, including the nature of the offending, your character and past history and the impact of the recording of the conviction on your economic, social well-being or your employment prospects.

54As I noted earlier, you are now aged 32, you have no prior criminal history, you are entitled to have the benefit of your good character taken into account.  The offending was serious.  However, I have noted the particular features of the offending and your immediate apology and the fact that you were fully cooperative and made full admissions when interviewed by police.

55This is further underscored by your written apology to the victim.  That apology shows you are aware of the serious nature of your crime and its impact upon Mr Waack.  You have insight into how your actions have impacted upon him and I accept that you are genuinely remorseful. 

56Ultimately, I have made a finding that this offending is totally out of character and it is explicable by reason of the particular circumstances that you found yourself in at the time. 

57Given your current circumstances, it is unlikely that you will reoffend in this nature in the future.  I have had regard to the significant steps that you have taken towards your own rehabilitation through your progress whilst on CISP bail, that is the commitment to detoxification at the Windana drug withdrawal program and the participation in the Time for Change programs with the Stepping Up consortium. 

58I accept that you have achieved abstinence from alcohol and drugs and that you are committed to remaining drug free.  All of those circumstances combine such that you are now in the best position to maintain your sobriety and work towards fulfilling your full potential, undertaking further education that will ultimately provide you with other job opportunities and further stability.

59To continue your rehabilitation in the community with all your therapeutic supports offers the best protection for the community and reduces the likelihood of you reoffending.  The impact of the recording of a conviction would be very detrimental to your social well-being or your employment prospects, so in all those circumstances, I will not be recording a conviction. 

60I propose to impose a Community Correction Order without conviction with respect to the one charge of armed robbery.  I do so because of your strong rehabilitation prospects and the long-term detrimental economic and social consequences that would flow from a conviction being recorded. 

61I have already announced the terms of the Community Correction Order.  The operational period is 12 months.  You must perform 100 hours of unpaid community work over a period of 12 months, you must be under the supervision of a Community Corrections Officer for a period of 12 months, you must undergo assessment and treatment (including testing) for drug abuse or dependency, and you must undergo mental health assessment and treatment, as directed by the Regional Manager.  Any hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the community work conditions.

62I have explained to you the mandatory conditions and the special conditions.  You have indicated your willingness to consent to such an order.  Those orders will be made and finally, I make the disposal order sought.

63MR MAGUIRE:  As Your Honour pleases.

64HER HONOUR:  I have signed that order.  Ms Casey, would you mind just going through it again with Ms Malone and get her to sign it?

65MS CASEY:  Yes, Your Honour.

66HER HONOUR:  That is good.  We will get that copied.  What I was going to propose too is that the apology be made available to the Crown and I ask that that be forwarded to Mr Waack if you consider that is appropriate?  I think it is.

67MR MAGUIRE:  As Your Honour pleases.

68MR CASEY:  Yes, Your Honour.

69HER HONOUR:  All right, so that completes the matter.  We can adjourn the court.  I thank you, Ms Casey for your very fulsome submissions.  It is always a pleasure getting your submissions.

70MS CASEY:  As Your Honour pleases.

71HER HONOUR:  It is a pity that other people at the Bar are not as good.  All right, we can adjourn.

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