Director of Public Prosecutions v McDowell

[2016] VCC 1388

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01094

DIRECTOR OF PUBLIC PROSECUTIONS

v

CASSANDRA ALICE MCDOWELL

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 September 2016
CASE MAY BE CITED AS:	DPP v McDowell
MEDIUM NEUTRAL CITATION:	[2016] VCC 1388

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions
For the Accused	Ms S. McCrickard

HER HONOUR: 

1Cassandra Alice McDowell, you have plead guilty before me to one charge of robbery, one charge of false imprisonment, one charge of armed robbery and two charges of assaulting a police officer.  You are also facing two summary charges of committing an indictable offence whilst on bail.  In addition I am dealing with you for breach of a community correction order.

2The facts underlying your offending are as follows:  On 5 February 2016 you attended outside premises at 40 Stockman Way at Longwarry, where a victim, Paige Moroni, was seated in her motorcar.  This was registered to her mother and had been purchased by Paige in March 2015.  You approached the car and began to bang on the driver's door with your fist before opening the door saying to Paige Moroni, "Get out.  Get the fuck out or I'll hurt you".

3Ms Moroni got out of the car immediately, leaving the keys in the ignition, she was crying and shaking.  You told her, "Don’t tell anyone.  If you tell the police I will come back and find you", and then said, "If you don't tell anyone I will return your car later".  You then got into the car and drove off easterly, along Stockman Way, Longwarry into Proctor Range.  At the time of the offending you were on bail awaiting a hearing for a number of other indictable offences, including possessing methamphetamine and other drugs.  Those actions underlie Charge 1 on the indictment, robbery.

4On 18 February 2016 at about 9 am you went to the Woolworths car park in Traralgon where Melinda Farmer was seated in her car.  You went to the vehicle, got in through the passenger side and closed the door.  You wore a pair of clear plastic knuckle dusters on your left hand.  This had four spiked blades above the knuckles.  You told Melinda Farmer to, "Give me your stuff", and took her handbag from the floor of the front passenger seat and went through it.  You then told Ms Farmer to drive up Kay Street and while she did that you showed her the blades on your knuckle dusters and said, "I don't want to hurt you but these would".  Ms Walker, understandably, was terrified.

5You told Ms Farmer to drive you around Morwell, continued to go through her bag and asked her how much money she had in the car and in her bank accounts.  You told her to pull over near the rose gardens and park the car.  You asked Ms Farmer for the code to her Samsung phone and the PIN to her bank account, which Ms Farmer gave you.  You used the codes and
Ms Farmer's phone to transfer money from all her accounts into one account and told her you were doing this.  You also asked Ms Farmer why she did not have any bank cards, she saying she lost them and you replying, "I don't like people who lie to me.  If you're lying to me on this card I'm going to hurt you".

6You then got Ms Farmer to drive you to the Commonwealth Bank in Morwell, parking in a side street, and took the car keys and got her to accompany you to the bank and withdraw money.  You told her to withdraw $1100.  The two of you went into the bank where Ms Farmer went to a teller saying she wanted to withdraw $1100 and showing her, her licence.  You stood beside her and the teller handed the money to Ms Farmer.

7The two of you left the bank and returned to the car.  You then told Ms Farmer to drive to the KFC in Traralgon and on arrival there told her to park the car close to the highway.  You then used Ms Farmer's mobile phone to go to Facebook where you tried to call people. The two of you were in the car for about ten minutes when you said you would wait outside Target for a lift.  You told Ms Farmer to go to the police station and report that more money had been stolen than you had taken.  You took Ms Farmer's white Samsung mobile phone, a watch, a Coles card, a Victorian drivers licence, a Healthcare card, a Medicare card, cigarettes and $1100 cash.  Ms Farmer reported the matter to police after you had gone.  Those actions underlie Charge 2 on the indictment, unlawful imprisonment; and Charge 3, armed robbery.

8On that same day police attended premises at 187 Kay Street, Traralgon when you were found hiding in the garage.  You were told by Sergeant Donovan-Webb that you were under arrest and she grabbed you on your forearms.  You lunged at Sergeant Webb, trying to headbutt him and swung your arms as you were resisting arrest.  With the help of another member Sergeant Webb was able to place one handcuff on your arm.  You again tried to headbutt Sergeant Webb but he was able to avoid this action.  You were restrained and searched, police finding cash and the knuckle duster on you.  You continued to struggle during the search and spat on Constable Craig Batman's left leg.  Those actions underlie charges 4 and 5 on the indictment, assaulting a police officer in the execution of his duty.  At this time, insofar as the armed robberies and the assault police are concerned, you were on bail, again, for the same charges relating to possession of drugs.

9On 17 March 2015 the Sunshine Magistrates' Court convicted you of dangerous driving whilst pursued by police, learner drive vehicle without experienced driver, driving without P plates, and imposed a 15 month community corrections order.  This order was to commence on 28 October with conditions.  You failed to report on two occasions in relation to this order, which absences were deemed unacceptable.  You were also charged with further offending during the operational period of that community corrections order, being the offending before this court in addition  to charges of possessing methylamphetamine, possess cannabis, possess drug of dependence, and possessing a prohibited weapon.

10Those matters have also been uplifted in order to be dealt with by this court.  In relation to those offences the facts scenario are as follows;.  On 19 January 2016 you were the front passenger in a car seen by police travelling on Maroondah Highway in Lilydale and subsequently intercepted.  It was being driven by your boyfriend, Harley Holland.  Police conducted a search of the car, found: a ziplock bag containing a small quantity of cannabis; an orange pill bottle with a solid crystal of methamphetamine; approximately a gram in weight; two small plastic ziplocks containing small quantities of methylamphetamine; a brown coloured Viagra tablet; assorted drug paraphernalia including scales; and five car keys for assorted makes of vehicle.  You made admissions to having used cannabis and methamphetamine shortly before you were arrested.

11I now turn to your personal circumstances.  You are now 24 years of age.  You have an extremely troubled history.  You apparently had a fairly good childhood until your parents divorced when you were ten.  You are the middle of three children.  There was apparently a significant history of domestic violence and violence towards your mother and sister.  Your brother stayed with your father after your parents separated.  You and your sister went to live with your mother.

12It appears there was an amount of dysfunction in the family after your parents separated and you left home at the age of 14 and went to live in a boarding house from the age of 15 to 18 years.  You had the support of a boyfriend who was ten years older than you and had very little contact with your parents during that time.

13You left school in Year 8 to work in the hospitality industry and gained your Certificate III in hospitality and over the years have worked in numerous cafes and bistros.  You last worked at the Dandenong RSL in 2014.  You also had a job managing a juice store and a Doughnut King store but were dismissed and charged after stealing funds from these jobs.  You have been in custody since being arrested in relation to the matters contained in the indictment.

14You have a long and troubling history for one of your age, particularly of drug use.  You have been using drugs since your early teens.  In particular, the drug, which is a real problem for you, is methamphetamine, although at one point you decided to try heroin, however, returned to ice use.  Your life has been chaotic on and off.  You have at one stage been diagnosed as having bipolar disorder, although - and I made this comment during the plea, that your continued very heavy use of methamphetamine would undoubtedly lead to the sort of mood disorder that could well mimic something like a bipolar disorder.

15At the time of the summary offending and, indeed, at the time that you were placed on the community corrections order, which you have now breached, you were effectively homeless, had no accommodation and had a falling out with your family, planned to live at a boarding house but promptly returned to drug use.  All your money went on that and you were unable to pay rent and it is quite clear, and I accept, that the offending, particularly the offending contained in the indictment was carried out in order to obtain funds for drugs.

16Unfortunately more and more it seems to be the case that our gaols are being used as detoxification centres, but you seem to have settled down in the seven months that you have been in custody.  You are working, you have detoxed, you wrote me an extremely impressive letter about your experiences in gaol and acknowledging the stability that it has given you.  You are living in a high incentive open unit.  You are still on a waiting list for the remand program for drug and alcohol and you are working in the visitors centre.

17So it certainly seems that gaol has, unfortunately, it has got to that point, gaol has been good for you.  You have not had the capacity to deal or make use of the structures that have previously been set up for you in the community and gaol has done the trick, if I can put it that way.  That does not mean that you remaining in gaol for any great period of time is necessarily desirable.  There is no doubt that your offending has escalated and escalated in a worrying fashion.  You have previously been placed on a number of community correction orders.  You have prior convictions for violence, for dishonesty and, interestingly, some of your previous history has involved you getting into cars and taking off - cars belonging to other people and taking off and offending.  This all seems to have occurred in a maelstrom of your uncontrolled drug use.

18There is no doubt, as I have said, that your offending is escalating.  When it comes to sentencing you, a court must have particular regard to sentencing for the purposes of specific deterrence that is sentencing in a way that has an effect on you, and to sentencing with regard to general deterrence, that is, sending a message out into the community that offending like this will not be tolerated.

19I also have to worry about, and have concern for, protection of the community generally.  As I said to you during the plea, Ms McDowell, every time you come back before a court you make it harder and harder for any sentencing judge to do anything other than deal with you other than by way of a sentence of imprisonment to be immediately served.  My concern is that whilst gaol and the confines of it, and structure of it, are presently having a positive effect on your life, that can tip over into something which then becomes harmful.

20The prosecution have submitted to me that your offending is just simply too serious and that I should deal with you simply by a term involving a maximum and minimum term.  I have anxiously considered a correct way to deal with you and I must say, unsurprisingly, you have been found unsuitable for a placement on a further community corrections order because of your complete failure to abide in any meaningful sense with any community corrections order that has ever been imposed on you.

21However, you are still only 24.  Your relationship with your mother seems to have resolved.  Your mother works at a residential drug rehabilitation facility.  I expressed some concerns about you attending at a facility where your mother is employed but she is on the desk there so that may be a possibility for you in the future.  Certainly I do not want you in gaol for such a long period of time that any good gaol does then starts to ebb away, which can often be the case.  It is a fine balancing exercise.

22Fortunately, I have, in my view, sufficient gaol time, if you like, to play around with so that I can sentence you to a term of imprisonment and combine it with a community corrections order, and after, as I have said, anxious consideration, I have decided to do this.  However, you need to understand that the community corrections order that I impose will be long, it will be onerous and you and I will be seeing a lot of each other.  There will be fairly frequent judicial monitoring, all right.

23Can I also say that if you do not take advantage of this community corrections order it is the last time a court will ever ever consider one in relation to you, and that you could confidently expect that the only way you will be dealt with is gaol from thereafter.  So really it is make or break time, Ms McDowell, and I am sure Ms McCrickard will tell you that when it is all over but it is a bit of a stretch me doing this at all.  Basically I am doing it because of your age. You are entitled to a discount because you have plead guilty.  You have made progress in gaol.

24You have caused a lot of damage. Unsurprisingly, you have left your victims with a very shaken sense of their security in the community.  I received only one victim impact statement.  Can I say, it is a classic victim impact statement in that anybody who has been the subject of the sort of violence you perpetrated finds life a great deal more difficult.  It involves a loss of confidence in going out, a loss of confidence in one’s own community, a great deal of anxiety and this can go on for some years, and this you have inflicted on two other human beings.  You may have had a very difficult time yourself, Ms McDowell, but you have made sure that two other human beings who did nothing to you are going to have their own psychological difficulties as a result of, really, what was standover bullying and very nasty behaviour.

25However, in all the circumstances I have decided to deal with you in the way submitted by Ms McCrickard.  The Forensicare report noted that whilst you have a long history of poly-substance abuse and considerable anxiety, the psychiatric conclusion was that, "On cross-sectional examination there was insufficient evidence for the diagnosis of bipolar affective disorder.  Ms McDowell has a history of affective instability.  In particular, depressive episodes that are related to her personality profile and her substance abuse issues". If you are going to use ice all the time you are going to be on the top of the world one day and down at the bottom, in the dregs, the next, and you are going to feel as if you are mad, and can I tell you, if you keep using ice you are going to be mad because it will do damage to your brain, it will do damage to the neurons and you will have seen plenty of people shambling around Dame Phyllis Frost who have been very heavy amphetamine based users.  Am I right?  Yes.  That will be you one day, all right, and it is usually your early 30s that it hits if you have been doing it the way you have.  So you need to understand it is crunch time.

26In all the circumstances therefore I sentence you as follows.  Could you stand up, please?  On Charge 1 you are sentenced to 12 months' imprisonment; on Charge 2 you are sentenced to nine months' imprisonment; on Charge 3 you are sentenced to 15 months' imprisonment; on Charge 4 you are sentenced to two months' imprisonment; on Charge 5 you are sentenced to two months' imprisonment; In relation to the summary offences, committing indictable offence on bail, you are charged one month in relation to each of those; in relation to the charge of contravention of a CCO you are sentenced to one month's imprisonment; in relation to the summary offences I am sentencing you to - I am sorry, could I ask, Madam Instructor, I can give an aggregate sentence, can I?  They are summary offences that have been uplifted.  Does that give me the Magistrates' Court powers to do that?  It would be very nice if I could.

27COUNSEL:  I will have to look into that, Your Honour.

28HER HONOUR:  All right.  Look, what I will do is I will - yes, I can because it was all out of the one incident, was it not, when she is found in the car.  Yes.  A total of two months.  The base sentence will be a sentence imposed on Charge 3, armed robbery, 15 months.  Six months of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 2 and three weeks of the sentence imposed in relation to the summary offences be served cumulatively to the charge imposed for Charge 3 and all other charges, and that should give a total effective sentence of 24 months and - sorry, 23 months and three weeks. 

29You are then to be released on a community corrections order for a period of three years.  I need to outline to you the core conditions.  You should know them off by heart if you were even listening, Ms McDowell, because it is about the fifth time you have had one of these, all right.  However, you must report to the Office of Corrections within two days of being placed on this order.  That is within two working days of getting out of gaol.  Whilst on the order you must not commit another offence punishable by imprisonment.  That does not mean you have to be gaoled for it.  If you knock off a box of matches from Woolworths, theoretically you could be gaoled.  That will be a breach, and you will be brought back in front of me and I will deal with these charges again.

30Whilst on the order you may not leave Victoria without the permission of the Office of Corrections.  You may not attend on the Office of Corrections whilst under the influence of drugs or alcohol.  You must inform the Office of Corrections of any change of address or employment within 48 hours of that change.  You must report to, and receive visits from, the Community Corrections office and you must obey all lawful directions of the Community Corrections office.  I am also going to order that you undertake 200 hours of unpaid community work.  You are to be assessed and treated for mental health difficulties and you are to be assessed and treated for drug use.  Are you prepared to enter this order?  Have a seat, thank you.  Did that add up to 23 months and three weeks?

31MS McCRICKARD:  I think it did, Your Honour.  I got a bit confused between - I think Your Honour said - - -

32HER HONOUR:  It is 15 months plus six months.

33MS McCRICKARD:  Yes.

34HER HONOUR:  Plus two months, which is on Charge 2.

35MS McCRICKARD:  Yes.

36HER HONOUR:  And three weeks of the aggregate sentence imposed in relation to the unrelated summary offences.  I have got a few orders that I have to sign here.  All right, Ms McDowell - judicial monitoring.  We will work out the date a bit later.  You have got to come and see me.  The first year of it I am going to see you every three months and I will be getting a report from Corrections how you are going, all right?  So if there is any problems and I find you have, you know, gone back to ice, all right, you know, to use parlance, bring your toothbrush.  You will be going back inside, all right.  So it is not going to be particularly easy but, as I said, this is your way out of a life that just sounds like it has been chaotic and desperately unhappy.  All right, you can - - -

37ACCUSED:  I do not understand how long I have got.

38HER HONOUR:  All right.  You have got 23 months and three weeks, that is just short of two years, and then you are going to be released on a community corrections order for three years, all right.

39MS McCRICKARD:  Is Your Honour making an order regarding pre-sentence detention?

40HER HONOUR:  Yes, I am.  It is how many days again?

41MS McCRICKARD:  Two hundred and fourteen.

42HER HONOUR:  I declare that 200 and - sorry?

43MS McCRICKARD:  Two hundred and fourteen.

44HER HONOUR:  Two hundred and fourteen days of the sentence has already been served by way of pre-sentence detention.  So you have probably got about 15 months to go and then you will be out and then we will start on the order.  Thank you.

45MS McCRICKARD:  As the court pleases.

46HER HONOUR:  All right, so disposal orders.  I think I am ready to sign those.  You can have those.  All right, then, yes, so would someone please work out the date?

47MS McCRICKARD:  Yes.

48HER HONOUR:  Her release date.  We all did law because we could not do maths.  All right.  Was there anything else that I - was there something else I needed - some other orders that you needed, Madam Prosecutor?  I know there were.

49COUNSEL:  No, Your Honour.  At the last hearing the compensation and restitution and disposal orders were made.

50HER HONOUR:  All right, thank you very much.  Pursuant to s.6AAA I declare that had you not plead guilty I would have sentenced you to an effective term of three and a half years and - hang on.  I would have sentenced you to an effective term of four years' imprisonment and ordered that you serve two years and nine months, all right.  Are you all right?  Ms McDowell, are you all right?  No.

51MS McCRICKARD:  Your Honour, might I briefly - - -

52HER HONOUR:  When was she arrested?  What date was she taken into custody?

53MS McCRICKARD:  She was taken into custody on 18 February 2016.

54HER HONOUR:  All right, so 18 February, 19 February.

55MS McCRICKARD:  Sorry, Your Honour, I have not even got a calendar.

56HER HONOUR:  So the release date will be 11 February 2018.  Three months from that will be 11 May 2018 will be the first judicial monitoring.  Yes.  I will just get you to sign this, Ms McDowell, thank you.  Yes, thank you.  All right, that is it.  Thank you, Ms McDowell.  You can be taken downstairs.  Counsel are excused, thank you very much.

57MS McCRICKARD:  Thank you, Your Honour.

58HER HONOUR:  Thank you for your assistance.

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