Director of Public Prosecutions v Moloney
[2013] VCC 2194
•17 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01204
CR-13-00438
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRIE ANNA MOLONEY |
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JUDGE: | HER HONOUR JUDGE COTTERELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2013, 16 September 2013 | |
DATE OF SENTENCE: | 17 September 2013 | |
CASE MAY BE CITED AS: | DPP v. MOLONEY | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2194 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Bosso | Office of Public Prosecutions |
| For the Prisoner | Mr A. Paull | James Dowsley & Associates |
HER HONOUR:
1 Brie Anna Moloney, you have pleaded guilty before me to one charge of attempted armed robbery. The maximum penalty for that offence is 20 years' imprisonment.
2 The facts of your offending were opened by the prosecution and the summary of the prosecution is annexed to these sentencing remarks.
3 In brief, on 4 December 2012, the complainant in this matter, Naveen Bhardwaj, a taxi driver, attended an address in Blackburn to collect you and your then partner, Shannon Morris, to take you to Noble Park. You got into the back seat behind the driver and Ms Morris got into the passenger seat.
4 The complainant said he needed you to pay $50 up-front, given the hour, and you refused. There was some discussion. The complainant stopped the car on the side of Whitehorse Road. He looked in the rear-vision mirror and saw you holding a small knife in your left hand. You threatened that you would attack him if he asked for any more money up-front. You continued to verbally and racially abuse him. However, he was given a $50 note by one of you. He was not sure whom.
5 You attempted to open the compartment between the front seats where Mr Bhardwaj kept his wallet, although you did not persist in that behaviour and I am not aware whether you knew he kept his wallet there or not.
6 You then told the complainant to stop the vehicle. You demanded the $50 that you had given him and all the money that he had on him. The complainant turned on the interior light and you leant forward between the sheets, showing him the knife you had in your left hand and you had scissors in your right hand. Photographs tendered clearly show the knife and your aggressive expression.
7 Ms Morris attempted to push you back. You returned the knife and scissors to your pocket and eventually the complainant, Mr Bhardwaj, drove you to your original destination. Mr Bhardwaj gave $10 back to Ms Morris and the two of you exited the taxi. You were arrested soon after that. You denied the offending and you denied having any weapons on you.
8 Having been bailed for this offence on 4 December 2012, you were subsequently remanded on 12 February 2013 for aggravated burglary and other matters and were sentenced to total imprisonment of one year and six months with a non‑parole period of eight months. With pre-sentence detention, you are eligible for parole on 12 October 2013.
9 The offending before me today also breaches a community corrections order. That order was imposed on 12 October 2012 and was to continue for a period of two years to give you a chance to re-integrate into the community. You were showing very promising signs of rehabilitation at that point and were going back to live with your family.
10 The offences to which you pleaded guilty to were one charge of false imprisonment, one charge of attempted armed robbery and one charge of robbery.
11 At that time, your personal circumstances were that you were 22. You had been a heroin addict, using on a daily basis from the age of 17 and before that, had been addicted to methylamphetamine. You have a history of overdosing and attempted suicide and a dysfunctional life, due to our use of drugs and your family situation. Those details are set out in my sentencing remarks.
12 You had an older sister who died when you were three years old to whom you were extremely close, and at the age of six, you were sexually assaulted by a close trusted family friend which resulted in you undergoing counselling which you said worsened the trauma that you had suffered. You were also exposed throughout your childhood to your father's violence and heroin addiction and you left your family home as a result of that background.
13 You were at the time diagnosed by Dr Aaron Cunningham, whose report was tendered on the plea, as suffering post‑traumatic stress disorder and substance use disorder. A report of the psychologist, Carla Lechner, tendered on the plea for today's matters confirms that diagnosis and emphasises the influence that your drug use has had on your judgment, reasoning and capacity to inhibit your impulses, and I accept that.
14 During the time you were living away from home from the age of 13, you spent time in foster homes and institutions and you also lived at times with your father's family, during which time you were involved in heroin use with him.
15 When you were sentenced to a term of imprisonment, you were remanded, and you elected to go into prison and to withdraw from your use of heroin by going cold turkey. At the time I sentenced you for the previous offences, you had remained drug free for several months.
16 As a result of those factors and taking into account all the matters I am required to take into account pursuant to s.5 of the Sentencing Act, and I also take into account your youth, I imposed a sentence which was directed at assisting you in your rehabilitation which it appeared you had already undertaken. I therefore imposed a term of imprisonment of three months, in order to have you released on a community corrections order for which I had you assessed. That of course was breached as a result of this current offending. Having found the breach proved, I will re-sentence you for the offences for which you received the order, taking into account that you had actually served three months' imprisonment in relation to that offending.
17 Again, on this current plea, I heard from your mother, who has not lost faith in you. I also received reference letters once again from your brother and sister and from a family friend, all attesting to the change in you since you have been incarcerated and your expressed desire to rehabilitate yourself, return to the family home again, as you had indicated on the last occasion on which I had sentenced you; also you have been studying, as I understand it, and you intend to enter, as soon as you are free to do so, a residential rehabilitation program to assist you in overcoming your drug problems.
18 I have considered the need for general deterrence and in particular the need for specific deterrence, that is, that you yourself be deterred from returning to drug use and offending again by arming yourself and attempting to rob members of the public of their property. I also take into account your plea of guilty for which you are entitled to a discount, your youth which I referred to before which requires that I give priority to your rehabilitation so that you may be returned eventually to the community as a functioning member, and further, taking into account your current position, in that you are serving the non‑parole period in relation to the sentence which postdated the original sentence which I imposed and to which I have referred, that means I am required to fix a new minimum period before you will be eligible for parole. It is clear and in fact conceded that the only appropriate sentence in this matter is a term of imprisonment.
19 In determining the length of the sentence, I also take into account the principle of totality, to ensure that the total sentence is a just and proper measure of the total criminality involved.
20 I am also required to denounce your conduct on behalf of the community and I do so. You have so far declined to take the opportunity to change your life and have continued to inflict violence on members of the community and this of course will not be tolerated.
21 However, I want to say to you that rehabilitation and changing one's life is clearly very difficult and there are frequently relapses and failures along the way. You are coming out of a very difficult situation and you will have a difficult battle, but you will have another opportunity after you have completed your sentence that I am to impose today when, as I understand it, you intend to go into a residential drug program, and that may be what is required for you to turn your life around. I urge you to keep up your good intentions and to make that attempt when you are released.
22 I am going to ask you to stand, please. In relation to the breach of the community corrections order, as I indicated, I find the breach proved. The order is cancelled and I am re-sentencing you in relation to those offences. I sentence you to an aggregate term of five months' imprisonment, to be served cumulatively on the other sentences imposed today.
23 On Charge 1, the attempted armed robbery you are convicted and sentenced to two years' imprisonment. That is a total effective sentence of two years and five months. I further order that five months of that sentence that I have just imposed be served cumulatively on the sentence you are currently serving, and pursuant to s.18, I set a new single non‑parole period of 11 months. I order that you serve that period of 11 months before being eligible for parole.
24 So those are the matters. I have not done a s.6AAA.
25 MR BOSSO: I think Your Honour is required to make a declaration.
26 HER HONOUR: All right. I will declare that pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to a total effective sentence of three years with a single non‑parole period of 18 months.
27 MR BOSSO: There is just one other matter, Your Honour, that I would seek to raise.
28 HER HONOUR: Yes. Have a seat, sorry, Ms Moloney.
29 MR BOSSO: In relation to the actual breach offence itself, which is under s.83AD of the Sentencing Act, has Your Honour - Your Honour imposed an aggregate period of imprisonment of five months for the re-sentencing and I'm assuming that's in relation to the actual breach offence itself, not the re‑sentence?
30 HER HONOUR: No.
31 MR BOSSO: I think Your Honour is required then to pronounce a sentence in relation to the offence of breach community corrections order.
32 HER HONOUR: I wasn't going to impose a penalty.
33 MR BOSSO: I'm not suggesting that there has to be an amendment to the overall sentence but I think Your Honour is required to impose an actual sentence under the Sentencing Act.
34 HER HONOUR: All right. I'm sorry, I thought we'd clarified that and I didn't realise that I had to impose one.
35 In relation to the breach of the community corrections order which I found proved, and I have now re‑sentenced you in relation to the actual offences, the penalty for that breach will be one month imprisonment which will be served concurrently with all other sentences.
36 MR BOSSO: As Your Honour pleases.
37 HER HONOUR: So that won't make any difference to your release date. Thank you.
38 MR BOSSO: Thank you, Your Honour.
39 HER HONOUR: Is there any difficulty?
40 MR PAULL: Your Honour, my understanding was that it could be like any other offence; it's open to the court to find it proven and not proceed to any sentence. But if Your Honour wishes to impose a one-month penalty and it not affect the outcome or the ultimate release date, it really makes no difference either way.
41 MR BOSSO: Your Honour can certainly do that, but my issue was that there needs to be I think a disposition that's recognised within the Sentencing Act for that particular offence.
42 HER HONOUR: Yes. I would have to say "I dismiss it" or ‑ ‑ ‑
43 MR PAULL: Yes, that's my understanding, proven, and then some disposition. The full range if open to Your Honour.
44 HER HONOUR: I could have dismissed it but I think it's probably appropriate in all the circumstances of this matter that I impose that one month and that it be served concurrently.
45 MR PAULL: As Your Honour pleases.
46 HER HONOUR: I think that's appropriate. I'm sorry I didn't address that before. I think that completes the matter.
47 Ms Moloney, I think I spoke to you last time: I hope that you are able to maintain the expressed desire to undertake proper rehabilitation because it is going to be difficult. As I say, everybody has failures along the way and you are no different from anyone else. I wish you well in the future. Thank you.
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