Director of Public Prosecutions v Munro
[2017] VCC 1340
•11 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01954
Indictment No. G10202355
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BETHANY MUNRO |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 September 2017 | |
CASE MAY BE CITED AS: | DPP v Munro | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1340 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Thomas | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J. Desmond |
HER HONOUR:
1 Bethany Munro, you have pleaded guilty to one charge of armed robbery (Charge 1); one charge of possession of an unregistered Category E handgun (Charge 2); two charges of possession of a drug of dependence (Charges 3 and 4); one charge of knowingly possess explosive substances for unlawful object (Charge 5); and one charge of damaging property (Charge 6). You have also pleaded guilty to uplifted Summary Charge 4 of possession of cartridge ammunition and uplifted Summary Charge 7 of possessing a prohibited weapon.
2
The maximum penalty for armed robbery is 25 years’ imprisonment. The maximum penalty for possession of an unregistered Category E firearm is 14 years’ imprisonment. The maximum penalty for possession of a drug of dependence, being methylamphetamine, is five years’ imprisonment. The maximum penalty for possession of a drug of dependence, being cannabis in
a small quantity, is five penalty units. The maximum penalty for possession of explosive fireworks is five years’ imprisonment. The maximum penalty for damaging property is ten years’ imprisonment. The maximum penalty for possession of cartridge ammunition is 40 penalty units. The maximum penalty for possessing a prohibited weapon is two years’ imprisonment.
3
The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea which was tendered as Exhibit A. The circumstances, in brief, are as follows. On Friday, 15 January 2016 at about 10 pm, you went to
a property in Reservoir. The occupier of that premises and his friend were watching television in a large open garage at the rear of the address. You walked around into the garage. You knew the two men and had previously bought drugs from them.
4 You left the garage and then returned with your then partner, Semih Erkaya, who was holding a sawn-off shotgun. Mr Erkaya approached the two men and pointed the firearm directly at them. You said you had recently had your daughter taken from you and this was nothing personal. Mr Erkaya told the men to sit down and not to move and both men sat down. You said you wanted any cannabis and money and demanded they hand over their wallets. Mr Erkaya said he wanted money.
5 One of the men handed over cannabis and about $800 cash from his wallet, by placing the items inside a black sports bag which you were holding open. A few minutes later, you left the garage and walked towards the front of the address. Mr Erkaya remained in the garage and then left a short time later. One of the men followed Mr Erkaya out and saw you in the driver’s seat of a vehicle. Mr Erkaya got into the vehicle and you drove away.
6 You were arrested on 20 January 2016 and a search warrant was executed at the premises at which you were living with Mr Erkaya. Police located the following items:
(1)A sawn-off double barrel shotgun – Charge 2, possess unregistered handgun;
(2)Three shotgun cartridges – Summary Charge 4, possession cartridge ammunition;
(3)Two zip-lock bags containing methylamphetamine – Charge 3, possession of methylamphetamine;
(4)A box of cannabis and a bag containing cannabis to a total quantity of
25.5 grams – Charge 4, possession of cannabis;
(5)A pair of gold coloured knuckle dusters – Summary Charge 7, possess prohibited weapon;
(6)Three large fireworks taped together which were shown to be part of
a larger fireworks “cake” containing gunpowder and found to have a net explosive quality of 0.016 kilograms – Charge 5, possess explosive substances.
7 You were interviewed by police on 20 January 2016. You told police that you knew the two men and had been buying drugs from them for some time. You said you were the owner of items located by the police. You were placed into an interview room whilst awaiting transport. You caused damage to the wall while you were awaiting transport – Charge 6, criminal damage.
8 You were on bail at the time of this offending.
9 You pleaded guilty at a further directions hearing.
10 The prosecutor made application for the disposal of certain items. The making of that order was not opposed.
11 You spent 30 days in custody prior to being granted bail.
12 In sentencing you, I have taken into account your personal circumstances, which were outlined by your counsel in oral and written submissions and were also set out in the psychological report of Mr Ian Mackinnon, dated 14 August 2017 (Exhibit 3M).
13 You are now 28 years old. When you were young, your parents were leading a very chaotic and unstable existence, in part due to your father's drug problems. You were effectively raised by your grandmother until she died when you were ten or 11. You had been sexually abused at some stage by your step-father. After your grandmother died, you went to live with your father and step-mother and their family. You were exposed to substance abuse, neglect and lack of hygiene. You left home at 14 or 15 when you fell pregnant. You have had limited contact with your biological mother, although she has had care of your youngest child for periods of time. You have some limited contact with your father and step-mother and you have a supportive relationship with your step-brothers.
14 When you were 16, your first child, who is now 12, was born. He lives with his grandmother. When you were 17 or 18, you gave birth to a second child who was a daughter. That child is in the custody of her father. When you were 23, you gave birth to your third child and second daughter. Your youngest child was in the custody of your mother, pursuant to court orders, until she was returned to your care in late-2016. You are expecting your fourth child in December this year.
15 You have had a lengthy and serious problem with drug and alcohol abuse. That commenced at the age of 13 with alcohol and cannabis. Your father supplied you with Valium and Xanax during your teenage years. Your usage of drugs then moved to using cocaine, heroin and ice.
16 Whilst on bail, you successfully completed a Court Integrated Services Program. You have also complied with the Department of Health and Human Services (“DHHS”) requirements in respect to your youngest daughter and have reconciled with your youngest child and have reconciled with her father. You and he and your daughter are now living in accommodation arranged through a housing service.
17 You have admitted a limited prior criminal history. In 2008, you were fined $50 without conviction on a charge of using indecent language in a public place. In 2009, you were placed without conviction on an adjourned undertaking in respect to offences of assault police, resist police and drunk in a public place. Those offences are not relevant to your current offending.
18 It is clear from Mr Mackinnon’s report that you had an extremely unstable childhood, with multiple changes in your place of residence and schooling. In your late teens, you moved back with your father and have moved backwards and forwards between your parents on several occasions. Your personal relationships and circumstances have tended to be unstable and volatile. Your father has had difficulties with opioid dependency over many years. You have managed to complete a Year 12 program at the Preston Reservoir Adult Community Education.
19 You told Mr Mackinnon that you had not used any illicit substances since before you were awarded custody of your daughter in November 2016. You have been required to provide urine samples for DHHS and the return of your daughter to your care confirms that the Department was satisfied that you were no longer using illicit drugs.
20 It is Mr Mackinnon’s opinion that at the time he saw you, you were suffering from symptoms that met the clinical criteria for post-traumatic stress disorder in remission. He did not consider you to be suffering from any major psychological disorder. It is his opinion that you have overcome a poly-substance dependence disorder. It is Mr Mackinnon’s opinion that you are “seriously committed to establishing a lifestyle free of substance abuse and anti-social activity.” He says,
“Ms Munro's offending appears to have been, essentially, driven by her emotional distress and associated substance abuse. With a sustained period of personal safety and stability, Ms Munro is likely to entrench
a law-abiding lifestyle and become a competent parent.”
21 Mr Mackinnon says that you expressed remorse to him for your offending, especially in relation to the holding of a gun to a person by Mr Erkaya and the effect on the person that that might have had. It is Mr Mackinnon’s opinion that you were suffering from post-traumatic stress disorder and poly-substance abuse disorder, at the time of the offending. Mr Mackinnon says that you appear to have made significant rehabilitative progress since 2016, with the assistance of your partner and professional therapeutic interventions and community assistance. He says that your willing engagement with treating and welfare workers has enhanced your rehabilitative prospects and reduced the likelihood of significant re-offending.
22
It is Mr Mackinnon’s opinion that if a term of imprisonment were imposed upon you, you would be likely to experience
a severe deterioration in your mental health, with a resurgence of high levels of anxiety, depression, hopelessness and self-loathing.
23 In your letter to the court, Exhibit 4M, you describe the treatments in which you have engaged and your compliance with your bail and curfew conditions. You say that you have ceased contact and communication with “toxic people” from your life. You say your main focus is remaining off drugs, building a future and rebuilding your relationship with your children.
24
A reference which was tendered as Exhibit 5M was written by a lady who is
a youth residential care worker and who has known you for 15 years. You have, on occasion, minded that lady’s child. She says you have talked to her of the wrong choices you have made and the remorse that you have. Her principal concern is your five year old daughter and the potential effect on her if you are incarcerated. She says,
“In the last 18 months, I have been overwhelmed with the level of maturity Bethany has shown and the effort she has put into getting where she is today.”
25 A letter from Ms Kathy Bell, child protection practitioner from the Department of Health and Human Services, dated 3 August 2017 (Exhibit 6), says that since your daughter has been placed back in your care, you have obtained stable housing, have engaged well with the Department and are working towards addressing Child Protection’s protective concerns. It is the view of the author of that letter, that your daughter would need to be placed in care if you were imprisoned, as her father is unable to care for her at this stage. You have instructed counsel that your view is that if you were sentenced to imprisonment, your daughter could stay with your mother. Your daughter was previously in foster care and then, as I have said, in the care of your mother when you resumed care of her in late-2016.
26
A letter from Launch Housing, dated 24 July 2017 (Exhibit 2M), says that you have demonstrated a high level of commitment in “changing the trajectory” of your life. The author says that you have achieved this through setting and completing goals and hard work and determination. Your ability to maintain
a stable tenancy is regarded as significant, given your history of homelessness and transience. The author says that a tenant in your situation can retain the property if sentenced to a term of imprisonment up to three months, but you would be required to relinquish your tenancy if the imprisonment exceeded three months. In addition, your long term priority housing application would be cancelled.
27
The various reports tendered from the Court Integrated Services Program (Exhibit 1M), describe your positive progress and engagement in treatment and rehabilitation. Those reports also refer to a diagnosis of bipolar disorder and obsessive compulsive disorder, for which in 2016, you were prescribed Zyprexa by your general practitioner. I note that you told the author of the report from Launch Housing that you ceased taking anti-depressant medication when you found out you were pregnant and that you have had no further mental health symptoms. You attribute this to the 12 counselling session you had with
a psychologist and the strategies developed, as well as having been able to resume the care of your daughter. I am satisfied on the basis of that material and Mr Mackinnon’s report that you no longer suffer from any significant mental health disorders.
28 Your counsel, in sentencing submissions, conceded that your offending was serious, particularly in relation to the armed robbery, but submitted that despite that, an appropriate sentence would be a community correction order.
29 Your counsel initially submitted that your post-traumatic stress disorder at the time of the offending, might lead to the application of Verdins principles. Ultimately that submission was not pressed and I am of the view that the contents of Mr Mackinnon’s report do not give rise to the application of Verdins principles, except in that imprisonment would cause detriment to your mental health, given your vulnerability to anxiety and depression. That would make imprisonment more difficult for you, as would your anxiety about your daughter.
30 Your counsel relied in mitigation on:
(a)Your guilty plea;
(b)Your remorse;
(c)Your limited prior history;
(d)The offending being out of character;
(e)The efforts that you have made in the last 18 months to rehabilitate yourself; and
(f)Your excellent prospects of rehabilitation.
31 The prosecutor submitted that a community correction order would be an appropriate sentencing disposition and that whether further imprisonment would be required, would be a matter for the court.
32
Bethany Munro, it is clear that you have taken part in serious offending. To demand money and drugs from a person who is having a firearm held to them is very serious offending. The maximum penalty of 25 years' imprisonment demonstrates the seriousness with which Parliament, on behalf of the community, takes the offence of armed robbery. You have been charged with other serious offences involving guns, drugs and explosives. While you did not hold the gun yourself during the armed robbery, you clearly facilitated the armed robbery and were intending to benefit from it. You are in a different situation in many respects from Mr Erkaya, but there are still parity issues to consider. Were it not for the efforts that you have made towards your own rehabilitation in the time since this offending, I would have no hesitation in imposing
a significant gaol sentence with a non-parole period.
33 The material provided supports the conclusion that you have worked extremely hard to try and turn your life around and provide some stability for your daughter. You hope that you will be able to build your relationship with your other children. In view of your very disrupted background and lengthy history of drug abuse, commencing at a young age, that is a considerable achievement. I accept that you are not generally a violent person and that you do not have anti-social characteristics.
34 To be able to remain drug-free and to regain care of your child demonstrates consistent effort and hard work towards rehabilitating yourself. Your rehabilitation is clearly in the interests of the community, as well as in your interests and the interests of your family. The ability to secure and retain stable housing is an enormously significant factor, in terms of your rehabilitation and ability to ensure stability for yourself and your children. It appears that your partner is supportive and that you and he are endeavouring to support each other.
35 I have also taken into account in mitigation of sentence, the admissions that you made to the police and your plea of guilty. You plea of guilty was not made at the earliest stage, but it has saved the cost and inconvenience and trauma of a trial. I accept that your plea of guilty is an expression of remorse.
36 You have no relevant prior criminal history. You have very good prospects of rehabilitation.
37 You have spent 30 days in custody related to this offending. That period of imprisonment appears to have had a salutary effect on you. I consider that, in view of your progress to date, you ought be given a further opportunity to continue with your rehabilitation in the community.
38
I accept that in reaching that conclusion, greater weight is being given to your rehabilitation, compared to the other sentencing considerations of denunciation, just punishment and general deterrence. That is an unusual conclusion in the face of such serious offending and your age, but I am of the view that the circumstances in your case are unusual. The potential difficulty for you is that those sentencing objectives to which I have referred must, however, be reflected in the sentence to be imposed. If you are to remain out of custody, there must be a significant punishment component to the community corrections order imposed, in addition to the punishment inherent in
a community correction order, to reflect those sentencing considerations. Parity also remains a sentencing consideration, despite your circumstances being very different from those of Mr Erkaya.
39 I note Mr Mackinnon’s view, that you would have difficulty with community work but it is my view that community work hours must be imposed in order to provide you with an opportunity to put something back into the community and to increase the punishment component of the community correction order. It is also necessary for the community correction order to be of reasonably lengthy duration, in order to reflect the sentencing considerations to which I have referred.
40 Could you stand please.
41 You have been assessed as suitable for a community correction order. The core conditions have been explained to you and I have given you the opportunity to go through the conditions which I propose with your counsel.
42 The sentence I intend to impose is a sentence in respect of a number of offences of 30 days’ imprisonment, to be followed by a community correction order for 42 months. Some fines, in addition, will be imposed on other charges.
43 The special conditions of the order will be that you perform 300 hours of community work; undergo treatment and rehabilitation for drugs; undergo treatment and rehabilitation in respect to mental health issues; and be under the supervision of a Community Corrections officer. Any hours successfully completed in respect to treatment and rehabilitation, will be deducted from the community work hours imposed.
44 Do you consent to that order being made?
45 OFFENDER: Yes, I do.
46 HER HONOUR: Bethany Munro, you are convicted on each charge.
47 On Charge 1, armed robbery.
48 Charge 2, possession of an unregistered Category E handgun.
49 Charge 3, possession of a drug of dependence.
50 Charge 5, knowingly possess explosive substances for unlawful object.
51 Charge 6,damaging property.
52 Summary Charge 7, possessing a prohibited weapon
53 You are sentenced to an aggregate term of imprisonment of 30 days, to be followed by a community correction order for 42 months, in the terms that I have outlined.
54 The total effective sentence is 30 days' imprisonment.
55 I declare that you have served 30 days of this sentence by way of pre-sentence detention, to be deducted administratively.
56 But for your plea of guilty, I would have sentenced you to a term of imprisonment of 30 months, with a non-parole period of 20 months.
57 On Charge 4, possession of a drug of dependence, you are convicted and fined $350.
58 On Summary Charge 4, possession of cartridge ammunition, you are convicted and fined $400.
59 There will be a stay of one month on the fines.
60 I have made the orders for forfeiture and disposal that was sought.
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