Director of Public Prosecutions v Martin

[2015] VCC 468

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00139

DIRECTOR OF PUBLIC PROSECUTIONS

v

REBECCA MARTIN

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2015
DATE OF SENTENCE:	17 April 2015
CASE MAY BE CITED AS:	DPP v Martin
MEDIUM NEUTRAL CITATION:	[2015] VCC 468

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodfellow	DPP
For the Offender	Ms B. McCann	Victoria Legal Aid

HIS HONOUR: 

1Ms Martin you can stay seated.  Ms Martin, you have been found guilty on 25 February 2015 of one charge of attempted armed robbery on 3 December 2011. 

2You were remanded in custody until today. I ordered a report from Forensicare Health Service pursuant to s.8A of the Sentencing Act 1991.

3The circumstances of the offence are that you approached a male Bunnings employee in the car park at the Bunnings premises in Princes Highway Dandenong.  You produced a knife and made a demand for money.  You then simply walked off towards Princes Highway.  The male shop assistant, together with another male colleague, followed you by just walking behind you at a distance right up to your bedroom door.  One of them called the police and you were then arrested at your place of residence, a care facility a short distance south of Bunnings on the Princes Highway. 

4The two Bunnings employees just waited outside your apartment door for the police to arrive.  The male employee, apart from jumping to one side when you produced the knife, gave no evidence at trial of being in any real fear of major injury or violence at your hands other than the production of the knife. 

5You are very short in stature and the male complainant was not entrapped in any way in the large open air car park where the evidence established that there were a lot of people.  The evidence was also that Bunnings was busy at the time due to the Christmas rush with lots of people in the store and car park environs. 

6I consider your offence to be at the very lower level of an attempted armed robbery.  The Crown, very responsibly, agreed with that assessment.  While it is a serious crime you are guilty of attempting, given the presentation of a knife, no injuries physical or mental were suffered.  You were alone.  Other Bunnings employees were in the car park and in the vicinity of where you committed your crime.  Several of them gave evidence.  There was, in my view, minimal danger to anyone in your offending.  Not surprisingly, the Bunnings employee declined the offer to provide a victim‑impact statement. 

7You have admitted the contents of a criminal record which discloses a number of appearances before the criminal courts.  Summarising these, they mainly involve thefts from shops as well as assaults and one possession of a drug of dependence.  Otherwise the record speaks for itself. 

8You are 32 years of age and your offending commenced in about 2002 and your last appearance before the courts was in 2011 prior to this trial. 

9Your personal circumstances involve a very unfortunate background.  You have suffered significant physical and sexual abuse as a child.  Substance abuse has also impacted on your life.  You have suffered from mental illness.  Some mental problems have been organic and some contributed to by substance abuse in recent times.  You have been on a methadone program for drug problems.  You have two children that the Department of Human Services have apparently taken from you and have had to care for. 

10You were in custody for some 69 days until a successful bail application prior to this trial.  After the verdict you expressly said in court that you did not wish to apply for bail while you awaited plea and sentence.  Accordingly, you have been in custody I am informed now for a total of 120 days by way of pre‑sentence detention. 

11I declare 120 days pre‑sentence detention pursuant to s.18 of the Sentencing Act 1991.

12A number reports regarding your mental health were tendered.  A general practitioner Dr Korman reported in 2008 you suffer from schizophrenia and substance abuse.  You also suffered from a head injury when a suicide attempt saw you jump in front of a moving train in 2001.  Cognitive defects were noticed. 

13In 2010 Brierley Robinson, occupational therapist, detailed in a report your schizophrenia and substance abuse.  It was also reported your need for in‑patient admission in 2010 with treatment from the Peninsula Health acute team. 

14Doctor James Le Bas, psychiatrist, reported in 2011 that from as far back as 1999 treatment for psychosis following the birth of your daughter was required.  Multiple admissions to mental health facilities followed in the context of numerous serious suicide attempts, physical and sexual assaults.  Long‑term schizophrenic illness was diagnosed.  Deficiencies in your insight were also noted. 

15On 16 December 2013, Adiel Bonett, a mental health social worker, reported she had seen you as part of your mental health treatment at the Dame Phyllis Frost Centre.  It was noted the State Trustees manage your disability support pension and attend to matters such as payment of your rent.  The assessment was at that stage to consider ongoing in‑patient treatment at the Alfred psychiatrist unit. 

16Following the verdict I ordered a report from Forensicare.  In response a Dr Michael Daffern reported on 13 April and again on 16 April 2015. 

17He said it was not possible for him to formally assess your intellectual functioning due to the presence of symptoms of psychosis.  Nevertheless, he said you appeared to be of below intellectual ability.  In addition, he recorded your history of substance abuse, including opiate dependence.  You also had limited insight.  He reported also you suffer from schizophrenia that has proven difficult to treat.  You experience acute psychotic symptoms episodically.  Given the limited information he had he could not really comment one way or the other on the direct or indirect relationship between your mental illness and your offending.  Together with the other material before the court, however, I am satisfied that there was a link.  I am assisted also by the circumstances of the offending which include you walking home, being easily followed right up to the front door of your bedroom after committing a crime of this gravity. 

18Dr Daffern pointed out there were particular stressors for you in prison, but on the other hand, prison offered certain stability and treatment opportunity. 

19By way of mitigation it is relevant to comment on your mental health.  The principles of R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 (“Verdins”) are activated. Having read the reports I have referred to I accept that they show you suffer a mental impairment, and did so at the time of this offence. The evidence satisfies me that the nature, extent and effect of that mental impairment experienced by you at the time of the offence are relevant to sentencing. I find it impaired your ability to exercise appropriate judgment and to make rational choices. The mental impairment contributed to the commission of the offence.

20It is relevant to the moral culpability of your offending.  Your mental capacity also impacts on the weight to be given to general deterrence as it makes you a less appropriate example for the community in the context of the principle of general deterrence.  Furthermore, a prison sentence is likely to weigh more heavily on you than on a person in normal health.  Prison is also likely to have an adverse effect on your mental health.  Difficulties in prison are referred to by Dr Daffern. 

21Clearly your condition and the other circumstances of your offending tend towards leniency. 

22I have been assisted by the written submissions of defence counsel as to sentence as well as the Crown's sensible concession that no further custodial sentence is required by the purposes of sentencing. 

23I have also been assisted by the letter of Stella Louca from the Marmak Unit at the Dame Phyllis Frost Centre.

24As well as the matters personal to you to which I have referred I must take into account other relevant sentencing considerations. 

25General deterrence must still be given a certain amount of weight as well as specific deterrence.  The community cannot and will not tolerate offending that compromises a citizen's right to feel safe walking through a shopping centre car park.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must protect the community from any repetition of this type of offending and seek to deter you from further offending. 

26A prison sentence is appropriate. In all the circumstances a community corrections order is not an appropriate disposition in my opinion. In the circumstances I impose a term of imprisonment of 120 days. I declare 120 days of pre‑sentence detention pursuant to s.18 of the Sentencing Act 1991. I make the order by consent pursuant to s.464ZF of the Crimes Act and I will explain that to you now.

27Ms Martin, if you just would not mind standing up for a minute.  I am ordering that you provide a sample of your saliva at a police station and I would ask your counsel to further explain this to you if there is anything that you do not understand about it.  What this requires you to do is to attend at the Dandenong police station, or another appropriate police station if the police agree to that.  I am told the informant may well be involved in that is that so, Mr Prosecutor? 

28MR GOODFELLOW:  Yes, Your Honour.

29HIS HONOUR:  It may not be Dandenong, but it has got to be a police station where a policeman will be empowered by me to take a portion of your saliva from your mouth, do you follow that? 

30OFFENDER:  Yes.

31HIS HONOUR:  You must not resist that because the policeman has got the power to use force to do it, but if you do not resist it and do not argue about that with him there will not be any force required.  Do you follow what I am saying to you? 

32OFFENDER:  Yes.

33HIS HONOUR:  But it is a requirement that you do that, and you have got to do that within a period of four weeks commencing 28 days from today, so I will get your counsel to further explain that by way of dates and so forth, but the important thing is that you have agreed to it, you let the police officer do it, and then that will be the end of it.  Is that clear? 

34OFFENDER:  Yes.

35HIS HONOUR:  All right.  You can take a seat.

36Is there any further order then required from me?  What about this question of you say we do not count today, this 120 days, is that the appropriate disposition for her to be released now? 

37MR GOODFELLOW:  It is.

38HIS HONOUR:  You both agree with that? 

39MS McCANN:  Yes.

40MR GOODFELLOW:  I do.

41HIS HONOUR:  All right.  All right, Ms Martin, you are free to go.

42OFFENDER:  Thank you.

43HIS HONOUR:  Just listen to what your counsel says by way of any further explanation or queries that you have got about that forensic sample and you have got to get to this housing place today.  Is someone going to assist her with that in terms of where she has got to go and how she is going to get there? 

44MS McCANN:  Yes.

45HIS HONOUR:  Because that will enable accommodation arrangements to be made.

46OFFENDER:  Okay.

47HIS HONOUR:  You might have to be taken by the prison officer now for some paperwork, but do not be alarmed about that.  I am releasing you today, do you understand? 

48OFFENDER:  Thank you.

49HIS HONOUR:  So there will be a bit of paperwork and so forth, will there not, Mr Prison officer, to deal with? 

50PRISON OFFICER:  Yes, Your Honour.

51HIS HONOUR:  So do not be alarmed about that and that will be in sufficient time for her to get to this place at 3 o'clock, will it not? 

52MS McCANN:  Yes.

53HIS HONOUR:  So can your instructor just perhaps keep a check on that, that there is no hold‑up unnecessarily there and she can get to Collingwood? 

54MS McCANN:  In relation to that I might just be assisted if I could talk to Ms Martin at the back of the court, as opposed to getting in their way downstairs? 

55HIS HONOUR:  Yes, do that now.  If I sign the orders now, Mr Prison officer, that will enable things to be expedited? 

56PRISON OFFICER:  It would certainly help expedite it more quickly, Your Honour.

57HIS HONOUR:  She has to get to this place to get somewhere to live, do you follow? 

58PRISON OFFICER:  After we have that we just get a clearance and let her go.

59HIS HONOUR:  If you wait, I will sign the orders and you can physically take them, if that will hurry things up? 

60PRISONER OFFICER:  Yes, sir.

61HIS HONOUR:  Just take a seat, Ms Martin, and I will just get some paper work done and it will hurry things up a bit downstairs. 

62PRISON OFFICER:  Thank you, Your Honour.

63HIS HONOUR:  There is nothing else required? 

64MS McCANN:  No, there isn't.

65HIS HONOUR:  I thank counsel for their helpful submissions and the sensible approach by the Crown.

66MR GOODFELLOW:  If Your Honour pleases.

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