Director of Public Prosecutions v McCumber

[2019] VCC 2176

IN THE COUNTY COURT OF VICTORIA Revised
Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01807

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMANTHA MCCUMBER

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2019, 30 October 2019, 21 November 2019, 17 December 2019
DATE OF SENTENCE:	17 December 2019
CASE MAY BE CITED AS:	DPP v McCumber
MEDIUM NEUTRAL CITATION:	[2019] VCC 2176

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Plea of guilty; offender aged 22 with history of intellectual disability, personality and mental health disorders and difficult childhood; prior offending of similar nature; attendance at hospital for mental health assessment shortly before offending; breaching CCO; attempted armed robbery and assaults.

Sentence:                 TES 8 months and 5 days imprisonment; PSD: 231 days.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Burt (on plea) Ms S. Renwick (on further plea) Ms D. Caruso (on further plea and sentence)	Solicitor for the Director of Public Prosecutions
For the Accused	Mr G. Thomas	Greg Thomas Solicitor & Barrister

HER HONOUR: 

1Samantha McCumber, I am now going to sentence you.  I am going to try to explain in a way to help you understand.  I am sentencing you for offences you committed on the evening of 14 March of this year in and near Little Malop Street, Geelong.  Because you were on a CCO at the time, this offending breached the CCO, and so I am also going to make orders about that. 

2You have pleaded guilty to two charges of attempted armed robbery, one of attempted theft and five summary charges of unlawful assault.  That was assaults on five different people.  These charges all arise from what you did over less than half an hour on the evening of 14 March 2019.

3First, at about 6.50 pm, you entered the Geelong Cellar Door.  You were asked to leave because you were not wearing any shoes, but you became aggressive with words, then walked behind the counter where the till was and picked up a large kitchen knife.  You held it up in front of you and demanded from the owner that he open the till and give you some money.  Before that could occur, an employee disarmed you from behind and you were again asked to leave.  Another employee then offered to escort you out, but you pushed her with an open palm and told her not to touch you.  You then did leave.  No one had been injured and you had not taken anything, but you had committed an attempted armed robbery, that is Charge 1, and also assaulted an employee. 

4You then went into Pete's Pistol Bar a couple of doors down.  You emptied your bag onto the counter and were asked by the owner to pick up your belongings and leave.  You then reached over and tried to take the tip jar, which was sitting on the front counter.  The owner grabbed your hand and told you to let go, which you did, and you then left the premises.  This was an attempted theft and that is Charge 2.

5Next, you entered a restaurant in the same street called Shiraaz Innovative Indian Restaurant.  In the past the owner had given you free food, and when you entered this night you asked for some food, but this time she said she would not be giving you any.  You then pulled out a black permanent marker and drew with it on the wooden counter.  The owner asked you to leave and then you showed her that you were holding a butter knife.  You pointed the knife at her and demanded she give you all the cash in the cash register.  This was an attempted armed robbery and that is Charge 3.

6Two customers were having dinner at the restaurant and saw this incident.  One got up and walked over to help the owner, and you thrust the butter knife towards his chest a couple of times.  You then approached the other diner and said, 'What are you looking at?',  and you ran the knife across her right forearm.  You then left the restaurant.  No one had been physically injured, but you had assaulted the two customers and of course left the marker lines on the counter. 

7Finally, you continued to another premises called There There Cocktail Bar.  Shortly after entering, two staff members asked you to leave as you had no shoes on.  You produced the butter knife again, pointed it at them and said, 'You and you, dead'.  You then turned around and left the bar.  That is the basis of two further summary charges of unlawful assault. 

8Police found you shortly afterwards walking towards Johnson Park.  You put your hands up and threw your belongings on the ground and the butter knife was located on the ground about 10 metres away.  You made full admissions at the scene, and told police that you wanted to go to gaol.  You were arrested.  Next morning, police attempted to conduct a record of interview with you, but you refused to be interviewed.

9You stayed in custody, in gaol, until I granted you bail about seven weeks ago now, so you spent more than seven months in gaol.  Unfortunately you are now back in gaol, in custody for other offences. 

10Ms McCumber, you have been before me in court at least a dozen times over the last three years.  There were two previous occasions for armed robbery, requiring more than one hearing every time, because your circumstances are much more complicated than for many other people.  Mr Thomas has represented you on every occasion.  You breached orders I imposed, and that also brought you back in front of me.  In between you have served other sentences in custody, once nearly six months in YJC, and another time in adult prison. 

11As I have told you before, armed robbery is a very serious offence.  Attempted armed robbery is also very serious.  It also involves threatening people with a weapon, trying to make them give you money.  In the past and again with these incidents on 14 March of this year, what you did was quite simple, not really planned, and certainly not sophisticated.  I accept that these were spontaneous actions by you, and it seems that they have partly been a cry for help and attention by you, and possibly also to get yourself back into custody, which most unfortunately you have come to see as a temporary safe place for you.

12However, when you use weapons to threaten people, you shock and frighten them.  When you push, and say aggressive things to people, that is assault.  In the first place, Geelong Cellar Door, you picked up a large, sharp knife and held it as a threat to the owner to give you money.  Obviously that was not planned, but you did not stop to think of the consequences.  You did not stop to think that you would be committing an armed robbery, and you did not stop to think about the effect on the man at whom you pointed the knife, or on other employees or customers who might have seen this.

13In the Indian restaurant, Shiraaz, you tried to rob a restaurant owner who in the past had been kind enough to provide you with free food.  The threat posed by a butter knife may not have been great, but this person did not deserve to be threatened by you or to have the damage done to the counter.  The two customers certainly did not deserve your aggression or to be threatened.  The attempted theft at Pistol Pete's was also not sophisticated, nor were the assaults of two more staff at the last premises, the There There Bar.  But none of the victims deserved to be confronted or frightened by you.

14When you steal from people or threaten them, that hurts them in many ways, even if they do not suffer a physical injury.  As I told you on the last occasion, you must learn to control your own behaviour so that you do not cause harm to other people, even by frightening them by holding out a knife and demanding money.  I realise that it is harder for you to control your emotions and actions than for people who have higher reasoning ability and do not have the history of abuse and difficulties that you have, but with your criminal record of similar types of offences growing, I must also think about protecting the public from the risk that you will continue to act in similar ways in the future.

15You have pleaded guilty to these charges and will receive the benefit of a lower sentence for saving the cost of trials and saving the witnesses from having to come to court to give evidence. 

16There are also other reasons why your sentence will not be nearly as high as it would have been if your circumstances were different.  The maximum penalties, and you heard the prosecutor say what they were today, indicate what Parliament thinks and the community thinks is the objective seriousness of offences of this type, but your circumstances do make those considerations very different. 

17You have long-established intellectual and psychological conditions, that mean that you are likely to have more limited understanding of the seriousness and consequences of your offending than for people without these conditions.  You have behavioural difficulties which also undermine and reduce your ability to think of how serious these matters are. As I have already said, you have also in the past tried to get into custody, where you feel more secure. 

18Also there is clear evidence that at the time of this offending, on 14 March, your thoughts and feelings were quite disturbed and unstable.  Less than an hour and a half before this offending started, police had come to your home to check on your welfare.  It seems that you, yourself, had made the call to them, as you have learnt to do that when having mental health issues or feeling that you cannot control your behaviour and feeling possibly suicidal.

19Two police officers found you at home with a blade in your hand and minor cuts to your wrist area.  Paramedics were called and took you to Geelong Hospital for a mental health assessment.  From the hospital records it seems that you had three superficial - that is not deep - cuts on your left forearm.  You said to them that you had been feeling suicidal, and you claimed that was due to having heard that day of your brother's death, although it seems that that was a story. You were to be kept at the hospital and to be watched, that is under observation, but you were saying abusive things to staff while on the ambulance trolley, and after psychiatric triage personnel attended, you were discharged.  That left you at your own risk and without treatment and also unfortunately in these circumstances there had been no opportunity for notification to your mental health support, through Jigsaw. So you left the hospital on your own and no doubt in a disturbed state.

20From this information, and taking into account your long history, I accept that when you entered the first of the premises, the Geelong Cellar Door, only some 10 minutes after discharge from Geelong Hospital, you are likely to have still been quite disturbed in your thinking, and that your behaviour and aggression was connected with your unstable mental and/or emotional state at the time.  I also note that when police found you shortly after the fourth incident, you said you wanted to go to gaol.  Unfortunately, as I already mentioned, you see gaol as a haven, a safe place, at least in the short term for when you find your thoughts and conduct out of control and are aware that you might do some harm, to yourself or to others.

21Owing to your long-documented intellectual and mental health and personality conditions, and the clear evidence that you had been in an unstable and stressed state shortly before this offending, and unfortunately were alone after discharge from hospital without the network of supports around you that had been in place, I have assessed your personal fault - that is what lawyers call personal moral culpability - as much, much lower than the objective circumstances would otherwise show.  Also it means that this case is not a good example to use to try to show others not to do the same as you did. 

22The need to try convince you not to repeat it is also reduced a little in these circumstances, but you must learn, because the more you do of these types of crimes the more members of the public are put at risk. 

23Therefore, there must be imprisonment imposed, but not nearly as long as it would have been if not for your circumstances. 

24In past cases, and on each of the hearings for these charges, I have received evidence through reports and orally of the extensive arrangements made for your ongoing support and care.  I am not going to name all the people and all the agencies, but Ms Young has been here yet again today, and on each of those occasions, and given evidence on each occasion.  I am satisfied that there are many people involved through different agencies in making plans for your living arrangements and your activities, for your treatment, your accommodation and access to support services when needed. 

25A lot of people have shown that it is not just their work, but they really care enough about trying to make arrangements the best possible for you.  Sometimes you do not treat them well, and yet they have mainly continued to support you again and again, including maintaining contact with you while you have been in gaol, and there is a team in place to keep supporting you now and when you are next released from gaol.

26When I released you on bail about seven weeks ago, although the accommodation arrangement had become more complicated due to damage to your home in  your absence, there were arrangements to assist you to live as stably and safely as possible with appropriate medical and mental health supports and activities.  Unfortunately those very quickly unravelled.  You let people into your life and your home that you apparently then could not control, and that caused problems for you – yourself, and for the workers who were there to support you. For their safety, they cannot come into your home while other people are there and in particular it was known that some of the people there had a history that might well have posed some risk. 

27There had also been an incident, as I heard again today, with Ms Bianchi, one of your workers, while she was driving you.  I will say no more about that because apparently there is a charge to go before the Magistrates' Court.  Now you are in custody for that and two further incidents that I am told are scheduled to be heard in the Magistrates' Court on 21 January 2020, which, although it sounds a long way away, is barely a month away. 

28You served over seven months in gaol for the offences of 14 March.  Your lawyer, Mr Thomas, submits that that should be sufficient on those matters in all of the circumstances of this case. 

29The CCO that I had previously extended after you breached it previously would end on 5 January 2020.  While you are in custody it has no role to play, and anyway for a long time now Community Corrections do not seem to have had any separate or further input than confirming that the other arrangements and services are in place for you.

30You did, however, breach the CCO and that had been imposed for an armed robbery in a café in Ballarat.  You served more than six months' imprisonment.  I imposed a term of imprisonment to be followed by a CCO, but there was some further time in custody for that.  In all of the circumstances I consider that sufficient on that charge, and while I will be cancelling the CCO I will not be resentencing you on that armed robbery charge – the armed robbery charge from the Ballarat café.

31I have today heard evidence again from Ms Young, the practice leader of ERMHA Barwon, who supervises your case and has had a role in your case for more than three years.  She confirms that funding remains in place for a team for 16 hours a day to support you, and that although NDIS funding issues had prevented ongoing contact over your seven months in custody until October this year, it now has been permitted to allow ongoing access to you even in custody.  However, I am told that you have been refusing to receive that access over the last couple of weeks.

32The team nevertheless will be available to support and assist you for so long as you remain in custody, if you will accept that contact, and as soon as your next release from custody occurs.  Your accommodation is at present ready for you, having again been repaired and cleaned. It can only be hoped, given the history, that it stays so, but I accept that arrangements are in place to do the best possible to have that remain.  I am also aware that for the longer term or medium future, you remain on a waiting list to be transferred to other accommodation, and, unless the offer comes while you are in custody, you should be progressing on that list.

33Samantha McCumber, with the orders I am going to make today they bring to an end the matters in front of me, and it may be the last time you are in front of me.  I do wish you well, and I hope that you can accept the support services around you, and learn to stop yourself before you get into more trouble, whether it is with your workers or whether it is with members of the public.  I think after all I have learnt about you, that I understand that sometimes you become so desperate and upset that you just do not think what you are doing, and it is a cry for help what you do. But, you have to, for your own good for the future, learn to try to control yourself, and, as I say, as much with your workers as with strangers.

34Will you stand up now, please.

35Samantha McCumber, I sentence you as follows. 

36On Charges 1, 2 and 3 on the indictment, I sentence you to an aggregate of seven months' imprisonment.  On the five summary charges of unlawful assault, I sentence you to an aggregate of two months' imprisonment. 

37I direct that one month of that, that is the two-month sentence, be served cumulatively on the sentences imposed on the indictment.  That makes a total sentence on all of those charges of eight months' imprisonment.  I declare 231 days reckoned served, so that leaves I think a little under two weeks.

38On the charge of breaching the CCO, I find the charge proven.  The CCO was due to expire on 5 January 2020, and you will be in gaol during that time on other charges that are pending. So I have decided to cancel the CCO, and not to resentence you for the armed robbery for which it was originally imposed. As I have said, you served more than six months in gaol previously.  However, you breached the CCO by not attending some of the appointments, by some further offending that happened before the matter came on before me, and again breached it by these March offences.

39I sentence you on the charge of breaching the CCO to five days' imprisonment and I direct that that be served cumulatively on the other sentences I have imposed today.  That brings the total imprisonment ordered today to eight months and five days.  As I say, 231 days of that is declared reckoned served, so the sentence I impose will expire in mid-January before your Magistrates' Court date.

40I state, as I am bound to do under s.6AAA of the Sentencing Act, what your sentence would have been if you had not pleaded guilty to these charges.  I am talking about the three charges on the indictment and the five unlawful assaults.  It is complicated in your case because there are a whole lot of other reasons that have really determined the sentence, and would have been relevant to the sentence – your personal circumstances – even if you had not pleaded guilty.  But if you had not pleaded guilty and forced a trial and made the witnesses come to court, I would have imposed for the charges on the indictment an aggregate term of 10 months' imprisonment, for the summary charges an aggregate of three months' imprisonment; with a total effective sentence of 12 months' imprisonment.

41I also was asked way back to make a disposal order, which was for some clothes and items at the time.  If that is in order, I am prepared to sign that order.  Can you print it off for me?

42OFFENDER:  What does that mean?

43HER HONOUR:  Sorry, what ‑ ‑ ‑

44OFFENDER:  What you just said, what does it mean?

45HER HONOUR:  What disposal order means?  It means that I am authorising that some - can I have a list?  Sorry.  Thank you.  The items are this:  one white T-shirt, black pants, those are what you must have been wearing at the time, a black Sharpie permanent marker, and it is clear that is what was used on the counter in the restaurant, one patient bag and one knife.  I am assuming the knife is the butter knife. Is there a problem there?

46MS CARUSO:  No.  I'm instructed, Your Honour, that if Ms McCumber wants her T-shirt and pants back they can be struck off.

47HER HONOUR:  She can have that, all right.

48MS CARUSO:  If she wants them back.

49HER HONOUR:  All right.  Mr Thomas might like to check with you if want those clothes back.

50MR THOMAS:  If I can, thank you, Your Honour.  Thank you, Your Honour.  Ms McCumber doesn't seek to have those returned, Your Honour.

51HER HONOUR:  She doesn't want them back?  Well, I'll leave them on the order then.

52MR THOMAS:  Thank you, Your Honour.

53HER HONOUR:  Disposal means that they're going to be - they're held for a period of time in case you appeal the order and then they're destroyed.

54You can take a seat now, Ms McCumber, while the orders are prepared.  As I say, on my calculation the sentence will expire before the Magistrates' Court hearing.  I am aware because she'll be serving a sentence from today of not a full month even.

55MR THOMAS:  I think it's 14 or 15 days, Your Honour, extra.

56HER HONOUR:  I understand that that will not count as pre-sentence detention for her Magistrates Court matters, and I did not say it specifically because I was trying to keep it in language Ms McCumber could follow, but that is part of the totality issue.  I realise that it deducts a little from her pre-sentence detention for the other matters, some of which may not proceed or she may defend, but in the context of further offending.

57MR THOMAS:  Yes.

58HER HONOUR:  All right.  Let me just check that this is the - this is for the contravention. 

59OFFENDER:  Are you ready?  Is it ready yet?

60HER HONOUR:  Almost ready.  We're almost ready.  In fact I probably don't need you here anymore because there's nothing for you to sign.  Ms McCumber, as I say, I wish you good luck.

61OFFENDER:  Thank you.

62HER HONOUR:  But hopefully you'll learn and hopefully not need Mr Thomas to have to come to court for you after January again.

63OFFENDER:  I'll be out in January.  See you.

64HER HONOUR:  Sorry, I've just got to get the orders done.  I don't think there's anything - there's nothing for her to sign, yes.  Can I also say, Mr Thomas, I really think you have put in an enormous effort over all these occasions for Ms McCumber and I can well see that, and I think you really deserve congratulations for that.

65MR THOMAS:  I thank Your Honour.  I was going to say a similar thing to Your Honour.  It's been a three-year journey and ‑ ‑ ‑

66HER HONOUR:  Yes.  My part in it may be over, I suspect yours isn't.

67MR THOMAS:  No, it looks like that, but ‑ ‑ ‑

68HER HONOUR:  Nor for those who are supporting her day by day by day. Unfortunately the legal system just doesn't have a way of better dealing with someone with Ms McCumber's circumstances.  I would like to be more hopeful than I think I am for her future, but hopefully bit by bit she learns things.  She certainly learns about the process.

69MR THOMAS:  I think is there discussion of an ARC list for the County Court?  She would be a good candidate for something of that nature if it was ever to happen.  But anyway ‑ ‑ ‑

70HER HONOUR:  Down the track I think.

71MR THOMAS:  Down the track.

72HER HONOUR:  These things I - Ms Caruso, you're new to Ms McCumber's case, but I think you said you've got 50 pages of background or something.

73MS CARUSO:  No, 500.

74HER HONOUR:  Five hundred, is it?

75MS CARUSO:  Yes, and I ‑ ‑ ‑

76HER HONOUR:  I can't tell you how ‑ ‑ ‑

77MS CARUSO:  Yes.

78HER HONOUR:  But I have over the various - over the period, I haven't destroyed the matter. The papers keep accumulating because I've had that ongoing memory that needs refreshing.  Thank you.  If I stay here and sign these, you can get a copy to take away, which is probably easiest at this time of year.  All right, I've signed those orders now and copies can be given.  Thank you again to everyone concerned for going above and beyond in relation to Ms McCumber.

79MR THOMAS:  Thank you, Your Honour.

80HER HONOUR:  I just hope it can even its way out in the future.  It's quarter to two.  Can we adjourn till tomorrow morning, 10.30.  Thanks.

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