Director of Public Prosecutions v Murray
[2020] VCC 969
•30 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
CR-19-01365
Indictment No.C1812289
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TANYA MURRAY |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 6 May 2020 | |
DATE OF SENTENCE: | 30 June 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Murray | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 969 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of aggravated burglary – one charge of common law assault – one charge of criminal damage – one charge of escape custody from Corrections officer – pleas of guilty
Legislation Cited: Crimes Act 1958, s77, s197(1) and s479(C)(1)(a)
Cases Cited:Phillips v R [2012] VSCA 140; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; R v Madex [2020] VSC 145; R v Kelso [2020] NSWDC 157; Hogarth v R (2012) 37 VR 658; Director of Public Prosecutions (DPP) v Meyers (2014) 44 VR 486; R v Brown(aka Davis) [2020] VSCA 60; Sazimanoska v R [2020] VSCA 66; Nguyen v R [2020] VSCA 76.
Sentence: Total effective sentence of 9 months imprisonment followed by a Community Correction Order for 12 months with various conditions; 6AAA declaration – 3 years imprisonment with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Duckett | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms K. Ljubicic | James Dowsley & Associates |
HIS HONOUR:
1 Tanya Murray, on 6 May 2020, you pleaded guilty to the following offences:
Charge 1 –
That you, at Jeparit in Victoria on 8 October 2018, entered as a trespasser, a building situated at 51 Broadway with intent to assault and at the time of entering, a person who was then present in the building, and you knew that a person was so present and was reckless as to whether or not a person was then so present.
The offence of aggravated burglary is contrary to s.77 of the Crimes Act 1958 and carries a maximum penalty of 25 years.
Charge 2 –
That you, at Jeparit in Victoria on 8 December 2018, assaulted Kathleen Probesting, and such offence is contrary to the common law and carries a maximum penalty of five years' imprisonment.
Charge 3 –
That you, at Jeparit in Victoria on 8 October 2018, intentionally and without lawful excuse damaged a wooden door belonging to Arthur Foley ('Foley').
The offence of criminal damage is contrary to s.197(1) of the Crimes Act 1958 and carries a maximum penalty of 10 years' imprisonment.
Charge 4 –
That you, at Jeparit in Victoria on 8 October 2018, did escape from a police officer while being held in custody.
The offence of prisoner – escape custody from a Corrections officer is contrary to s.479(C)(1)(a) of the Crimes Act 1958 and carries a maximum penalty of five years' imprisonment.
The circumstances of the offending
2 During the plea hearing on 6 May 2020, counsel for the prosecution tendered a document headed “Amended Summary of Prosecution Opening on Plea” (Exhibit 1). I was informed by your counsel that you agree with the contents of that document. In particular, I note the following and I will do this by dot point:
·You are 35 years old, having been born on 30 August 1984. You were 34 years old at the time of the subject offending.
·At the time of the offending, you lived with a boarder called Joshua Soderman ('Soderman') at 9 Edith Street, Jeparit.
·The first complainant is Michael David O'Connor ('O'Connor') and the other complainant is Kathleen Janette Mary Probesting ('Probesting') who are partners, and lived at 51 Broadway, Jeparit, which is about a three-minute walk from your residence in Edith Street.
·O'Connor had known you for about six years prior to the offending and suffers from an acquired brain injury following a serious assault in 2010.
·Probesting was born on 27 October 1960 and at the time of the offending was 57 years old. She had previously met you very briefly on two occasions when you came to the house to speak to O'Connor. In particular, she has suffered from chronic pain from rheumatoid arthritis for many years and at times uses cannabis to help her manage the pain. She only keeps enough for her personal use and does not traffic that drug.
·Over the previous month prior to the offending, you had given your dog to O'Connor to look after as you were unable to keep it contained in your property.
·On the afternoon of Friday, 5 October 2018, you contacted O'Connor and asked if you could buy some of Probesting's cannabis. Probesting told O'Connor that she would not sell you cannabis, but would give you some as long as it was replaced. When that message was passed onto you, you agreed to replace the cannabis the following day. Later that afternoon, you attended O'Connor's house and was shown through the house and given about 6 grams of cannabis that Probesting had supplied O'Connor. Between 6 and 7 October 2018, you sent O'Connor a few text messages asking for your dog to be returned and O'Connor returned the dog on Sunday, 7 October 2018.
·On Monday, 8 October 2018, O'Connor and Probesting were in their lounge room watching television and at approximately 9.30 pm Probesting went to bed.
·You telephoned O'Connor, asking him “where he was” and telling him you 'needed his help'. O'Connor recognised your voice and hung up the phone. You rang him again three times in quick succession, but he hung up on each occasion, before turning his phone off.
·Approximately 10 minutes later, O'Connor heard banging on the window of the front bedroom, where Probesting was in bed. Probesting heard a voice yelling 'Mick, get your ass out here' and she recognised that it was you. Probesting also heard a male voice outside, but the voice was not loud enough for her to make out what was being said.
·The banging continued, causing the windows to break and causing Probesting to come out of the bedroom and meet O'Connor in the hallway, where she told him, 'They are inside.'
·Probesting then heard the noise of bashing on the front door, a cracking sound and you yelling something. O'Connor grabbed a hockey stick that was in the lounge room and took Probesting into the kitchen.
·You came into the kitchen and Probesting told you to get out, after which you pushed her back into the wall yelling, 'Where is he, where is he?' Probesting was shaking with fright. This is Charge 1, the aggravated burglary and part of Charge 2, the common law assault. When you attacked Probesting and pushed her into the wall, Probesting tripped as a result of her legs going under her, and she fell against the wall. You were standing over Probesting screaming, 'You don't know what he's like, you've got to get rid of him. He raped me, and he will rape you too.' At that time, you were holding a pair of green-handled scissors you had picked up from the kitchen table. Probesting was terrified and cowering on the floor, believing you were going to stab her.
·Soderman appeared in the kitchen doorway and 'went at' O'Connor, who raised the hockey stick to ward him off. There was an exchange of angry words between O'Connor and Soderman.
·Soderman then said to you, 'Come on, we are going now' and you and Soderman started walking back towards the dining area and Probesting believed you were going to leave.
·You did not leave but went to the knife block in the kitchen and grabbed two knives, one with a 15-inch blade and the other with a 12-inch blade, and moved towards Probesting with a knife in each hand (part of Charge 2 – common law assault). Probesting yelled at O'Connor “Ring the cops!' as she tried to keep distance between herself and you.
·Soderman then went to take the knives from you, telling you, 'That's it, leave it, leave it, we're going, we're going.'
·When O'Connor realised you and Soderman were leaving the house, he ran to the house of a neighbour, Foley, and asked him to call 000. Foley did not want to phone the police himself, so he rang O'Connor's father, as he lives across the road from the police station.
·When you noticed O'Connor had left the kitchen, you enquired of Soderman, 'Where's Mick?' On being told that he had left and that you and Soderman were going, you told Soderman, 'No, you can go. I'm staying. I'm going to get that little prick.' Soderman then left the premises of Probesting.
·You turned to Probesting, telling her that you were taking the knives as your DNA was on them and that you would wash them and bring them back, and also commented, 'I know where that little prick's going, he's gone next door '
·Foley was concerned about Probesting's safety and after putting clothes on he went out to the veranda to see you standing in the driveway holding knives in your left hand. You were raving and yelling at Foley, and Soderman was with you, trying to defuse the situation.
·Foley knew you, as you both reside in the Jeparit area. He noticed that you were focused on Soderman, and took the opportunity to go into the house and shut the door, intending to exit from the back door and go to the back fence to get away from you.
·Foley was heading towards his back door when he heard a loud bang and saw the front door swing open, where you were standing and holding the knives up, saying words similar to 'You can't stop me'.
·You did not enter Foley's house. He was able to call the police and leave a message for the operator. Then, believing you had left, he went back through the house and left via the front door, shutting it behind him. As he got to the footpath, he heard you yelling and that you could see him.
·Sometime later, O'Connor's parents arrived and went back into the house with him and you were out in the street, where you screamed abuse at O'Connor's parents for several minutes before walking off down Broadway, crying.
·When police arrived at 51 Broadway, Jeparit, O'Connor had turned his phone back and saw three messages: 'Come outside, cunt', 'Come on' and 'Pussy' had been sent by you to his phone. When police were still there, O'Connor received a further message saying, 'Not over my darling xozoozoz.'
·Foley was terrified and he continued heading towards the townhall, where his partner lived. He stayed in that area until returning to his house with his partner at about 11 pm, when he discovered that the front door and flyscreen door had been damaged (Charge 3 – criminal damage).
·At approximately 10.30 pm, police arrived at your address and arrested you. At that time, you were emotional and told police that someone you did not know had hit you in the head with 'one of those tyre things' and that your injuries had nothing to do with O'Connor.
·Police took you to the hospital to have your injuries checked and Leading Senior Constable Myers ('Myers') made it clear you were still in his custody, but that you would be going to the hospital for treatment before going on to the police station. On arrival at the hospital you tried to escape, leaving the ambulance and walking towards the ambulance bay emergency door. You stopped, became agitated and stated, 'I'm going' while beginning to run towards the hospital driveway, ignoring Myers' request to 'Get back here right now'. You were apprehended about travelling more than 40 metres (Charge 4 – escape from police).
3 On 10 October 2018, police conducted a Record of Interview with you. In particular, I note the following answers:
– you asserted that you 'had an argument with Michael [O'Connor] over marijuana' (Answer 9)
– that you 'didn't go to the hospital because [you] ran away' (Answer 29)
– that you had 'bought a quarter of marijuana from Michael O'CONNOR and he wanted $70 for it that night, but [you were] not able to get it' (Answers 35 to 42, 46, 59 and 61)
– that you said, 'That the previous evening you had been assaulted by a strange man' (Answers 80 to 89)
– that you did not go to the home of O'Connor and Probesting (Answers 98, 101, 127, 168)
– that the only time you had seen Probesting was when she gave you a quarter of marijuana that morning (Answers 112 to 113, 168 and 175)
– that you had been invited to their house to 'get a quarter' and that they had let you into the house (Answers 115 to 118)
– that police had not told you that you were under arrest and you were in an ambulance and going to hospital to have your face checked, and was not handcuffed (Answers 181 to 199); and finally
– that 'they're just trying to fuck your life up and your kids and that ain't going to happen' (Answer 312).
Your criminal record
4 Your criminal record, dated 4 May 2020, was admitted (Exhibit 2). I note the following:
(a)on 30 July 2003, at the Ballarat Magistrates' Court, you were found guilty of wilfully damaging property and without conviction fined $250, with some statutory costs and a compensation order;
(b)on 7 June 2006, at the Ballarat Magistrates' Court, you were found guilty of assaulting police and recklessly causing injury and without conviction the matters were adjourned to 6 June 2007, on the condition that you be referred to a neurologist within one month and that you were to act on his or her recommendations and you were to obtain drug and alcohol counselling and to abstain from alcohol;
(c)on 6 June 2007, the charges of assault police and recklessly causing injury were dismissed as there had been compliance with the undertaking made on 7 June 2006;
(d)on 17 February 2009, at the Ballarat Magistrates' Court, you were found guilty of unlawful assault, using abusive words in a public place and resisting police. Without conviction, you were fined an aggregate sum of $350, with some statutory costs;
(e)on 17 October 2018, at the Horsham Magistrates' Court, you were found guilty of threatening to inflict serious injury and without conviction the matter was adjourned to 16 April 2019 on the basis that you underwent an accredited behaviour change or anger management program;
(f)on 10 July 2019, at the Horsham Magistrates' Court, it was found proven that you contravened the release and adjournment order made on 17 October 2018, and of threat to inflict serious injury. The original order was varied, and without conviction adjourned to 9 July 2020, and you were ordered to pay $500 to the court fund.
Also on 10 July 2019, at Horsham Magistrates' Court, you were found to have contravened a family violence intervention order and without conviction that matter was adjourned to 9 July 2020, on the condition that you engage with your treating professionals as directed;
(g)on 16 October 2019, at Horsham Magistrates' Court, it was proven you had contravened your release on adjournment order, dated 10 September 2019, and it was ordered that the original Order be confirmed without conviction and the matter adjourned to 9 July 2020;
(h)on 22 October 2019 at the Horsham Magistrates' Court, you were convicted of threatening to damage property, reckless conduct endangering serious injury, unlawful assault, committing an indictable offence whilst on bail and acting prejudicially to the safety of a person. You were convicted and sentenced to a Community Correction Order for 15 months, commencing on 22 October 2019, with conditions of supervision, treatment and rehabilitation for drug abuse and/or dependency, mental health assessment and treatment as directed, and judicial monitoring.
Also on that day, you were convicted of possessing cannabis and discharged without any further order.
5 The summary of the criminal record relates in part to two matters after the subject offending on 8 October 2018. In particular, I was informed by your counsel that:
(a)on 24 and 25 January 2019, you offended by making telephone calls to your ex-partner, in breach of an intervention order, where threats were made. You were sentenced to an adjourned undertaking without conviction (that is at Horsham Magistrates' Court on 10 July 2019);
(b)on 17 September 2019, you were involved in violence in the context of an argument with your ex-partner. That offending resulted in a sentence of a Community Correction Order made at the Horsham Magistrates' Court on 22 October 2019 for a period of 15 months which is still current. During the course of the plea, I was informed by your counsel that you were on remand for 46 days prior to the disposition of the matter. Such pre-sentence detention was not declared and did not form part of the sentence. Your counsel referred to it as effectively 'dead time'.
It is unclear whether it is 46 days, as I note in the report from Mr Cummins, he obtains a history that following the incident on 17 September 2019, you spent 42 days on remand. Again, this may not be quite right, bearing in mind that the offending occurred on 17 September 2019 and you were released from custody on 22 October 2019 with the sentence of a Community Correction Order for fifteen months. It may be that the 'dead time' amounts to 35 days.
There is no pre-sentence detention in relation to the subject offending.
Victim Impact Statements
6 A Victim Impact Statement from Mr Anthony Foley, declared on 20 October 2019, was admitted into evidence. Such statement had annexed a short medical report from Dr Mohamed Mahmoud, dated 8 October 2019 (see generally Exhibit 3).
7 In his statement, Mr Foley described that since the night of your offending he has suffered emotionally and still finds himself in need of medications to help with anxiety. In particular, he describes that both his personal and general relationships have suffered because of his emotional condition, causing him wanting to withdraw from society in general. He describes himself, prior to the attack, as proactive and positive, which has now been replaced by anger, negativity, anxiety and withdrawal.
In his report, Dr Mahmoud notes that Mr Foley had an 'altercation with one of his neighbours' and that since then he has become 'anxious about that incident and become more stressed'. Dr Mahmoud also noted that he was treated with anxiolytic medications and still needed support. Finally, he noted he had seen Mr Foley 'a couple of times' concerning his anxiety and stress.
Your education, employment and general background
8 Your counsel made reference to the following documents which, through oversight, were not tendered. I will have the following documents marked:
(a) a document headed 'Outline of Submissions on Plea' will be Exhibit 'A';
(b)a report of the consulting and clinical forensic psychologist, Mr Jeffrey Cummins, dated 7 November 2019 (Exhibit 'B');
(c)a report from the neuropsychologist, Mr Martin Jackson, dated 14 February 2020 (I will have that marked as Exhibit 'C').
9 Partly based on submissions made by your counsel and partly based on the various documents, I note the following, and again I will do this by dot points:
·You are now 35 years of age, having been born in Adelaide on 30 August 1984.
·You lived with your parents and your only sibling, a sister who is approximately five years younger. Your family relocated from Adelaide to Melbourne when you were aged six, and from the ages of five to 17 your family resided in Ballarat.
·You were exposed to family violence from a young age, as your father was an alcoholic and both you and your sister regularly witnessed physical violence being perpetrated against your mother. Your father died of an alcoholic overdose in 2002, when you were about 17.
·Following your father's death, you, your mother and sister relocated to Skipton, where you lived for about nine years, until your mother lost her property in the Skipton floods.
·When aged 19 and living in Skipton, you gave birth to your first child, Sebastian, who, when he was about 15 months old, his father relocated with him to Queensland following a relationship breakdown with you.
·At the age of 26 you moved to Jeparit, where you commenced a relationship with Mr Sam Wilson, who was working as a shearer. From that relationship you have a daughter, Summer Rae, who was born in 2011. Your relationship with Mr Wilson broke down in 2015, and he no longer has any contact with Summer.
·In about 2015, you commenced a relationship with a man, who worked as a welder, and that relationship produced a son, who is now approximately four years old. Your relationship with that man was volatile, frequently involving alcohol and cannabis use.
·You remained in rental accommodation in Edith Street, Jeparit for the past years and up until June 2018 also had your two younger children with you.
·As a result of having a dispute with your then partner, an Intervention Order was issued, and on 24 July 2018 the Department of Health and Human Services removed your children from your care. Your partner moved to Horsham and cared for both children on a full-time basis.
·The Intervention Order expired on 12 July 2019, and since then you have had access to your children. In particular, following a mediation process with your ex-partner, you and he have shared care of your children. Your oldest child, Sebastian, is now 15 years old and resides in Queensland, and you have regular contact with him.
·In December 2019, you commenced a new relationship with Mr Chris Durury - I apologise for that pronunciation, D-u-r-u-r-y - and at the time of the plea was approximately 19 weeks pregnant.
·You commenced smoking cannabis when you were 14 years old and you continued to use cannabis on an 'on again/off again' basis until you were remanded in custody for the first time in September 2019. You have been largely abstinent from cannabis use since then, but have experienced periods of relapse, and are working towards long-term abstinence.
·You began drinking alcohol in your early twenties and your alcohol intake increased significantly when residing with your ex-partner. You believe that your alcohol intake typically increases with periods of instability and stress. You have not consumed alcohol since discovering falling pregnant in January 2020.
·You struggled with schooling, attending Sebastian High School in Ballarat to Year 7, where you changed schools because of severe bullying. You then attended Ballarat High School, however left after commencing Year 9 because of challenges of keeping up with studies as a result of learning difficulties.
·You were assessed as having a mental disability by Centrelink when you were aged 15 and have been receiving a Disability Support Pension payment since you left school and you have never had any paid employment.
The evidence of Mr Jeffrey Cummins
10 The clinical and forensic psychologist, Mr Jeffrey Cummins, assessed you at his rooms on 25 October 2019 and at that time he obtained a detailed history from you.
11 In particular, Mr Cummins had available to him your Ballarat Services file, which contained a Mental Health Triage review on 16 May 2019 (which recommended an Intake Assessment) and the Intake Assessment interview conducted at Jeparit Hospital in 21 May 2019, at which time it was noted that you had previous triages in July 2018 and December 2018.
12 In the Mental Health Intake Assessment undertaken on 21 May 2019, it is recorded that:
· You were remorseful regarding your subject offending.
· You had mental health assessments in 2000, 2001, 2004 and 2005 with Ballarat Health Services, at which time 'diagnoses included lifestyle issues, acute stress reaction, unspecified mental health/behavioural adjustment disorder'.
· Your then medications were noted to be Seroquel and Eleva.
· You then reported longstanding alcohol use, and a previous triage history noted your mother described you as 'an alcoholic'. At that time, you reported smoking up to fifteen bongs of cannabis a day but denied any other substance use.
· You have struggled with your schooling and left school at Year 9 and had no employment. You lost a baby at 32 weeks' gestation at age 19 and reported another miscarriage.
· A provisional diagnosis was that of Unspecified Mental Disorder with the additional diagnoses of Alcohol Use Disorder and Cannabis Use Disorder.
13 You were then reviewed at the Horsham Community Health Centre in conjunction with your mental health clinician, Ms Megan Ali, on 30 May 2019. A progress note at that time referred to a review of your medical records and your history which suggested you suffered from a learning disability, alcohol and cannabis use, behaviour problems involving anger, irritability and physical violence which had been a persistent problem throughout your life. Furthermore, it was noted you had marital discord with multiple partners and the separation of your children in 2018, who lived at that time with your ex‑partner.
14 At a further review on 14 June 2019, you informed the interviewer that at secondary school you had an IQ test and received a score of 64 – indicative of a mild intellectual disability – and on 14 June 2019, agreed to undergo further cognitive assessment. On 19 July 2019, you were reviewed and assessed as being a low risk profile, with the risk factors being alcohol use and your difficulty regulating your mood, particularly anger.
15 On 18 September 2019, there is also a progress note which indicated on that evening, you attempted to hang yourself in the police cells. At that time, you indicated that the Intervention Order was lifted in July 2019 and you attempted to reconcile your relationship with the father of the two youngest children and that several days earlier an argument developed after you were rejected by your former partner, which culminated in the offending in September 2019.
16 Under the heading “Opinion and Conclusions”, Mr Cummins stated, in part:
“…She stated she offended at a time [that is the subject offending] when she was intoxicated on alcohol and feeling angry, frightened and threatened because her drug dealer was hassling her for payment of an $80 drug debt which she incurred the day prior to her offending.
'At interview she willingly acknowledged she has a long term anger management problem which, she stated, dated back to her being bullied at primary school and secondary school and was then exacerbated as a result of her being raped at age 16 and repeatedly sexually fondled by a male school teacher at around age 15. She left school at age 15 in Year 9. By that that time she had been diagnosed as having a learning difficulty. She has never had any paid employment. She reported being in receipt of a DSP [disability service pension] from age 15 or 16. She stated her mother, who lives in Beaufort, now receives a full carer's pension in relation to her.
'At interview she described herself as an alcoholic, although stated she has not been drinking alcohol or smoking cannabis since she was last released from custody after having served 42 days on remand. She was released from custody on remand (but not in relation to the present charges). She was released from custody on 22/10/2019. She stated that when she was dependent on alcohol she would often lose count of how much alcohol she consumed.
'She stated when she committed the offending on 8/10/2019 she was – "quite pissed - I'd been drinking neat bourbon shots".
'She stated she believed Mr O'Connor (the primary victim of her offending) was known to the police in Jeparit to be a drug dealer and is someone who sometimes threatened people for payment of drug debts. Nevertheless, at interview she acknowledged there was no excuse for her offending behaviour.
'At interview she confirmed she would willingly undertake a neuropsychological assessment. She also stated she requires alcohol counselling. At interview she stated she has now decided to cease smoking cannabis on a long term basis. I assessed her risk of committing a further offence of violence as being Moderate and, in general terms, she agreed with that assessment.
…
'She reported being very concerned about the likelihood of being incarcerated in relation to the present charges. She also expressed concern about not currently being permitted to have contact with her two youngest children. She stated she was particularly concerned about being incarcerated because she did not cope well with her recent remand at DPFC prison and because she is proud of the fact she is now off alcohol and cannabis and hoping she will be able to resume contact with her two young children if she remains in the community. In this regard, she is currently on a CCO, which is a treatment only CCO. She therefore stated she hoped that when she attends the County Court sitting in Horsham she will be sentenced to a further CCO.
'I would expect Ms Murray's mental health would deteriorate if she was now incarcerated, specifically because she hopes she would be able to resume having contact with her two young children in the near future. In my opinion, there may have been some genuine nexus between her offending behaviour and her history of being bullied and sexually abused - which is most probably the trigger to her development of what has become a chronic anger management problem. Significantly, I did not assess her as being diagnosed with an Intermittent Explosive Disorder or with an Antisocial Personality Disorder.
'She is currently medicated on Sertraline (that is Zoloft) and Seroquel. She stated her primary mental health care was now being received from Beaufort Medical Centre, although she also acknowledged she still has a mental health clinician in Horsham. She spoke positively regarding her mental health clinician, Ms Megan Ali.
'In my opinion, Ms Murray also requires mental health treatment in addition to simply receiving mood stabilising medication. In my opinion, she presented as a traumatised person and she is suffering from an Adjustment Disorder with Mixed Disturbance of Emotions (including symptoms of anxiety, depression, frustration and rejection) and Conduct (DSM-5 Code 309.4).”
The evidence of the consultant clinical neuropsychologist
17 The clinical neuropsychologist, Mr Martin Jackson, assessed you on 24 January 2020. At that time, he also obtained a detailed history and thereafter performed a number of psychological tests.
18 Ultimately, Mr Jackson assessed you to suffer from a mild intellectual disability. You are assessed to have a full scale IQ of 64 which caused Mr Jackson to form a diagnosis of “intellectual disability” within the meaning of the Disability Act 2006. Furthermore, he considered that you have a Borderline Personality Disorder but no evidence of acquired brain injury.
Matters relied on by your counsel in mitigation of sentence
19 Your counsel submitted that although the substantive offences before the court are objectively serious, it is to be noted that:
(a) the offending was 'spontaneous' with little pre-planning;
(b) the offending took place over a relatively short period of time;
(c) the offending was not committed in the context of family violence;
(d)You did not benefit financially or otherwise as a result of the offending behaviour. Furthermore, although conceding not a matter of mitigation but rather one of context, you were using cannabis and alcohol heavily on a daily basis at the time of the subject offending.
20 In particular, your counsel submitted that the following matters are relevant in mitigation of any sentence:
(a) your plea of guilty and remorse
Your counsel noted that this matter resolved to a plea to the charges on the day of the committal following negotiations between the parties. It is submitted on your behalf that your plea has the effect of facilitating the course of justice and demonstrates an acceptance of responsibility for your conduct. Furthermore, such a plea of guilty has utilitarian value in that it saves the time and cost of a trial and for witnesses to be called and having to give evidence.
Further, it was submitted that the plea is accompanied by remorse, demonstrated by:
– an early plea being entered
– your efforts to address your difficulties with substance misuse and compliance with the mental health counselling and treatment
–your acknowledgement of the seriousness of the offending to the forensic psychologist, Mr Cummins, who also notes that the Intake Assessment Notes from Ballarat Health Service which record your expressions of remorse in respect to the offending;
(b) prospects of rehabilitation
It was submitted on your behalf that your prospects for rehabilitation are 'reasonable'. In this respect, reference was made to the opinion of Mr Cummins, who assessed your risk of committing further violent offences as 'moderate' (although it was submitted that such an assessment depends on your responsiveness to treatment).
You are currently engaging well with a Community Correction Order that was imposed by the Magistrates' Court on 22 October 2019. As part of that order, you are currently undergoing treatment for mental health issues, which involve regular sessions with counsellor, Kim Douglas (located in Geelong) via video link. You also enjoy the further support of your mother and sister, as well as your new partner, Mr Chris Durury. You were also prescribed antidepressant medication to manage your mental health issues and you have been compliant with medication.
You currently have access to your two younger children and help with maintaining access. This incentive motivates you to continue to engage with treatment that has been made available to you. Furthermore, you are currently approximately - at the time of the plea this is - 19 weeks pregnant and the forthcoming birth of your child acts as a further incentive for you to work seriously towards rehabilitation;
(c) increased burden of imprisonment
It is submitted that a term of imprisonment will weigh heavily on you in the following ways:
(i)according to Mr Cummins, he would expect that your mental health will deteriorate if you are incarcerated, specifically because of the interruption it will cause to your ability to access your children;
(ii)restricted visits in custody due to the COVID-19 outbreak will impact further on your ability to access your children and benefit from the support of your family and partner. This would cause additional stress and burden to you;
(iii)the risk of contracting COVID-19 in custody is a cause of anxiety for you and this would make imprisonment more burdensome for you. This is especially significant for you given you are currently approximately 19 weeks pregnant and as such, understood to be at a higher risk for COVID-19.
21 In this way, it was ultimately submitted that any term of imprisonment would enliven principles 5 and 6 of the well-known case of R v Verdins & Ors (2007) 16 VR 269, wherein, because of your mental health problems, any incarceration would be more burdensome for you than for any other prisoner and furthermore, any incarceration would, according to Mr Cummins, cause your mental health to deteriorate.
22 Ultimately, your counsel submitted that a community correction order would be an appropriate disposition capable of giving sufficient effect to all relevant sentencing purposes. In particular, she submitted that the process which has commenced since your sentencing to a Community Correction Order in October last year is showing progress, in that you now have access to your two younger children (and since the advent of COVID-19 you have had full‑time care of those children) and there has been some resolution of your ongoing dispute with your former partner.
Response of the Prosecution
23 Counsel for the Prosecution made various submissions, and in particular submitted that, given the nature of Charges 1 and 2 on the Indictment, there should be only limited cumulation in relation to these offences. Furthermore, she accepted that you are currently complying with a Community Correction Order – that is, since the making of such Order in October 2019. Ultimately, counsel for the Prosecution informed the court that she had instructions that a combined sentence – that is to say, a period of imprisonment followed by a community correction order – would be within range, given the nature of the offending.
Community Correction Order
24 The Court ordered that you be assessed as to your suitability for a community correction order. Such assessment was undertaken on 20 May 2020 and a report produced on the same day, authored by Community Corrections officer, Mr Paul Sguerzi. And I apologise for the pronunciation. In that report, he notes the following, again by dot point:
· You were assessed as being at 'high risk of reoffending' according to the Level of Service Risk Assessment Tool.
· You were further assessed as suitable for a community correction order and the following conditions were recommended:
§ Treatment and rehabilitation in relation to drugs and alcohol and mental health, together with supervision;
· Mr Sguerzi obtained information from your present case manager at Horsham CCS, which indicates you are complying with your Order and engaging in your treatment conditions.
· You informed Mr Sguerzi that you are willing to do a further community correction order, that you have stable accommodation and you are supported by your partner and your family.
25 When discussing your offending, you told Mr Sguerzi that you were using illicit drugs and intoxicated to deal with mental health stressors and relationship issues. Your relationship with your ex-partner had ended and at that time, you were separated from your children. You stated these factors impacted on your judgment and lack of consequential thinking, and you regret the impact your actions had on the victims.
26 Furthermore, you told Mr Sguerzi that since the advent of your current Community Correction Order, you have been given a chance to reflect on your life, and realise that should you continue to make poor life choices, you will spend most of your life in and out of jail. He also stated that you are currently using medication to deal with your mental health, and that the medication has helped to clear your mind and that you have benefited from treatment and support by Corrections. You made clear that another motivation for you to remain offence free is to ensure that your children remain in your life.
Conclusion
27 The offence of aggravated burglary is a serious offence, as is made clear by the maximum penalty of 25 years. The circumstances surrounding such offence can vary dramatically and impact on the appropriate sentence. Similarly, the common law offence of assault can be serious offending depending on the circumstances of the assault.
28 In Hogarth v The Queen (2012) 37 VR 658, the Victorian Court of Appeal concluded that the sentences generally imposed for so called 'confrontational' aggravated burglary were too low, and that sentencing practices needed to change to reflect the objective gravity of this type of offending.
29 In the later Court of Appeal decision of Director of Public Prosecutions (DPP) v Meyers (2014) 44 VR 486, the Court of Appeal stated at paragraphs 47 to 49:
'Determining the sentence to be imposed for any particular offence of aggravated burglary will in large depend on a careful assessment of the (relative) seriousness of the offence. There was argument on the appeal about how the gravity of this particular instance of aggravated burglary should be assessed.
In our view, the following considerations will ordinarily be relevant to such an assessment:
·the offender's intent at the point of entry (whether to steal or commit an assault or cause damage);
·the mode of entry (for example, by forcing a door or breaking a window);
·whether the offender was carrying a weapon;
·whether the offender was alone or in company;
·the time of day at which the burglary took place;
·what the offender knew or believed about who would be inside and/or
·about where the person(s) would be; and
·whether the offender was someone of whom the victim was particularly frightened.
The particular purpose which the offender has in mind at the point of entry is a significant feature going to the gravity of the offence. Of course, the intent on entry is conceptually distinct from what occurs after entry, but the offender's conduct once inside the premises will usually enable inferences to be drawn about the intent on entry.
(Footnote omitted.)
30 I also refer to the more recent Court of Appeal decision of Collier v The Queen [2018] VSCA 47, where the Court of Appeal stated at paragraphs 38 to 40:
“In Hogarth v The Queen, the Court concluded that the sentences generally imposed for 'confrontational aggravated burglary' were too low, that sentencing practices needed to change to reflect the objective gravity of this kind of offending.
In Director of Public Prosecutions v Meyers, this Court explained:
…the task of applying Hogarth does not require the classification of offences into categories. Put simply, Hogarth established that current sentencing practices for serious forms of aggravated burglary needed to change", as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.
As these and other statements in Meyers make clear, each case will depend on its own facts and the seriousness of the offending must be viewed in the context of those facts. Classification or labels are of marginal significance and may distract from the instinctive synthesis of the sentencing task.”
31 In this matter, you, together with a boarder at your residence, Joshua Soderman, left your premises and walked a very short walk to the premises of the victims, O'Connor and Probesting. Initially, O'Connor heard banging on the window in the front room, and Probesting, who was in bed, heard a voice yelling, 'Mick, get your ass out here.' Probesting recognised your voice.
32 The banging continued, causing the windows to break, and causing Probesting to come out of her bedroom and meet O'Connor in the hallway. Noise was heard of you bashing on the front door, a cracking sound and yelling something, causing O'Connor to grab a hockey stick which was in the loungeroom and took Probesting into the kitchen. You came into the kitchen and Probesting told you to get out, after which you pushed her back into the wall, yelling 'Where is he, where is he?' Probesting was shaking with fright and as a result of you pushing her, tripped her, causing her to fall against a wall. At this time, you were standing over Probesting, screaming, 'You don't know what he's like, you've got to get rid of him. He raped me and he'll rape you too.'
33 At that time, you were holding a pair of green-handled scissors you had picked up from the kitchen bench, causing Probesting to be even more terrified, cowering on the floor, believing you were going to stab her.
34 Soderman appeared in the kitchen doorway and 'went at' O'Connor, who raised the hockey stick to ward him off and there was an exchange of angry words between O'Connor and Soderman. Soderman then said to you, 'Come on, we are going now.' Soderman started walking back towards the dining area. Probesting believed you were going to leave.
35 You did not leave and went to the knife block in the kitchen and grabbed two knives, one with a 15-inch blade and the other with a 12-inch blade, and moved towards Probesting with a knife in each hand. Probesting yelled to O'Connor 'Ring the cops' and she tried to keep distance between herself and you. Soderman then went to take the knife from you, saying, 'That's it, leave it, leave it, we're going, we're going.'
36 When O'Connor realised you and Soderman were leaving the house, he ran to the house of the neighbour, Foley, and asked him to call the police. Ultimately, Foley rang O'Connor's father, who lives across the road from the police station. When you noticed O'Connor had left the kitchen, you enquired of Soderman, 'Where's Mick?' On being told that he had left and you and Soderman were going, you told Soderman: 'No, you can go. I'm staying. I'm going to get that little prick.' Soderman then left the premises of Probesting.
37 Pausing there, it is not clear what your grievance with O'Connor was on that night. In the days preceding the aggravated burglary, there had been communication between you and him involving:
(a)on the afternoon of Friday, 5 October 2018, you enquired of O'Connor if you could buy some of Probesting's cannabis. Probesting told him that she would not sell you cannabis but would give you some as long as it was replaced. When that message was passed onto you, you agreed to replace the cannabis the following day. Later that day you attended O'Connor's house and was shown through the house and given about 6 grams of cannabis that Probesting had supplied O'Connor;
(b)between Saturday 6 and Sunday 7 October 2018, you sent O'Connor a few text messages asking for your dog to be returned and O'Connor returned the dog on Sunday, 7 October 2018.
38 The matter is also made more complex, as during your Record of Interview with police on 10 October 2018 you asserted you had an argument with O'Connor over 'marijuana'. It is accepted that you did try to ring O'Connor earlier on that Monday, 8 October 2018, and that you needed his help. Apparently O'Connor recognised your voice and hung up the phone, causing you to ring him again three times in quick succession, but he hung up on each occasion.
39 You also told police, at your interview, that you had been attacked by an unknown person on Sunday, 7 October 2018.
40 On the face of it, there does not seem to be any particular precipitating event, other than O'Connor refusing to take your phone calls earlier in the night of the aggravated burglary. However, I do accept that you were intoxicated with alcohol and had been taking illicit drugs during the day of the aggravated burglary.
41 The circumstances of the aggravated burglary were particularly frightening given your aggression, smashing windows and bashing down doors. During the course of such burglary you assaulted Probesting by pushing her and then standing over her with a pair of green-handled scissors you had picked up from the kitchen bench and later, after picking up two knives, one with a 15‑inch blade and the other with a 12-inch blade, moving towards Probesting with a knife in each hand. The prosecution rely on these two events as the common law assault, the subject of Charge 2 on the Indictment.
42 It must be remembered that at the time of this offending Probesting was 57 years old and you 34 years old, and she was suffering from chronic rheumatoid arthritis. Although you did not strike Probesting with the scissors or the knives, I have no doubt she had the apprehension in all the circumstances that you were intending to use such weapons.
43 In relation to Charge 3 on the Indictment – that is, the criminal damage suffered by the neighbour Andrew Foley, such offence, although having a maximum penalty of 10 years' imprisonment, is less serious than the offences to which I have already referred. The criminal damage suffered by Foley was that his front door and flyscreen door had been damaged (Charge 3 – criminal damage). In his Victim Impact Statement, Foley states that he suffered emotionally as a result of your aggressive behaviour on the night and continues to need medications to help with him anxiety and withdrawal. Furthermore, Charge 4 on the Indictment, involving a prisoner escaping custody from a Corrections Officer – in the circumstances of this matter, it is not as serious as the first charges on the Indictment.
44 There is no issue that at approximately 10.30 pm on 8 December 2018, police arrived at your address and arrested you. At the time you were emotional and told someone that you did not know who had hit you in the head with 'one of those tyre things' and your injuries had nothing to do with O'Connor.
45 Police took you to hospital to have your injuries checked and Leading Senior Constable Meyers made it clear you were still in custody, but you would be going to the hospital for treatment before going to the police station.
46 On arrival at the hospital you tried to escape, leaving the ambulance and walking towards the ambulance bay emergency door. You stopped, became agitated and stated 'I'm going' while beginning to run towards the hospital's driveway, ignoring Myers' request to 'Get back here right now'. You were apprehended after travelling more than 40 metres.
47 In the circumstances of this matter, I consider such 'escape' is very much on the lower end of seriousness for that offence.
48 As I have already recorded, it must be borne in mind that the subject offending –the charges on Indictment No.C1812289 – all predate subsequent offending on 24 and 25 January 2019, and more particularly the offending which occurred on 17 September 2019.
49 In particular, the offending relevant to 17 September 2019, which involved violence in the context of an argument with an ex-partner, resulted in the sentence of a Community Correction Order made on 22 December 2019 for a period of 15 months, which is still current. Such order included special conditions of supervision, treatment and rehabilitation, including assessment and treatment of drug and alcohol abuse, mental health assessment and offending behaviour programs. Furthermore, there is judicial monitoring over the period of the Order.
50 There is no issue that you have been compliant with such order, as evidenced by written communication by your supervisor, Ms Sharon Richardson, and furthermore, the author of the report from Corrections as to the suitability of a Community Correction Order now. Mr Paul Sguerzi, also confirmed that you have been complying with the Order and engaging in your treatment conditions. It is in that context that your counsel urges the Court to sentence you to a further Community Correction Order, rather than impose any term of imprisonment.
51 Against that, counsel for the prosecution, as I say, on instructions from the Director, submitted that an appropriate sentence would be a mixed sentence, that is to say, a period of imprisonment followed by a Community Correction Order. Of course, the matter is made more complex by you being pregnant, and indeed the apparent stability you are enjoying in your home life, having the care and custody of your two younger children, initially on a sharing basis with your ex-partner, but of more recent times full-time, due to the COVID-19 virus.
52 I refer to one of the decisions to which your counsel referred the court to – Bradshaw v The Queen [2017] VSCA 273. That matter involved an appeal by the offender in respect to the sentence of two years' and six months' detention in a youth detention centre in respect of one charge of aggravated burglary and one charge of common assault. The appellant, who was 18 years at the time of offending, was a member of the 'South West Bloods'. The incident involved the appellant and two other members of that group attending a unit, where it was situated a member of the South West Bloods, aged 16, who was trying to leave the group and had been hiding at the unit. The appellant's face was covered and he was holding a large knife as he was approaching the unit, and one of his co-offenders had armed himself with an axe and had brought a Pit Bull cross terrier on a lead.
53 On entering the unit, the appellant confronted a woman inside the unit with a knife, demanding to know where the defecting member was situated. One of the people in that unit swung a baseball bat around, causing the appellant to yell at him and stab him (such behaviour constituting the charge of common assault). During the incident, a number of people, including the person they had come to confront, barricaded themselves in a bedroom beyond the reach of the appellant and his co-offender. The appellant and his co-offender followed them and banged on the door, with the co-offender striking the door with an axe. Threats were yelled to the terrified people inside and after 000 had been called and one of those inside the unit had a panic attack. The appellant and his co-offender left the unit.
54 In part, the appeal involved whether he sentencing judge was in error, and having found that the objective gravity of the aggravated burglary prevented him from considering a Community Correction Order in circumstances where the offender was youthful and had demonstrated excellent rehabilitation by the time of this sentence. The Court of Appeal considered that the sentencing judge was in error and in particular stated at paragraphs [49] to [51], that:
“Parsimony requires sentencing judges to give proper consideration to non-custodial options. As this Court stated in Boulton, a CCO provides a flexible mechanism for imposing a sentence that is both punitive and rehabilitative, which can be fashioned to address the particular circumstances of the offender and the causes of the offending to minimise the risk of reoffending by promoting the offender's rehabilitation. As the order of seriousness of offending conduct increases, so the likelihood that such a disposition will be appropriate diminishes, but it may remain an option that is open, even in cases of very serious offending. The error which his Honour made, with respect, was to view the gravity of the offending to be of such an order that the sentencing judge could only include an order that involved confinement of the appellant.
There were factors present that could have led the judge to conclude that the purposes of sentencing could be met without an order of confinement. It is rare to encounter an offender with such strong prospects for rehabilitation. The judge, who recognised this, characterised them in his sentencing reasons as 'excellent'. Further, as a youthful offender, promotion of rehabilitation became a primary purpose of sentencing. It follows that in cases where rehabilitation is of paramount importance consideration of a CCO will take on greater significance.
It is evident, however, that his Honour treated offending of this gravity as precluding the possibility that a CCO could be imposed for this category of the offence of aggravated burglary. His Honour also dismissed the possibility that the principles discussed in Boulton, that a CCO could be appropriately punitive whilst balancing the broader purposes of sentencing, in the extent of the appellant's circumstances.”
(Footnotes omitted)
55 In the circumstances of this matter, I consider the objective seriousness of Charges 1 and 2 to be quite high. From all accounts, you were loud, aggressive, frightening and intimidating. Being drunk or affected by illicit substances gives a context for such offending but is not a mitigatory factor. Again, as I have already recorded, there does not appear to be any clear reason why you precipitated such activity on that night.
56 I have come to the conclusion, in general terms, that the appropriate considerations in formulating a sentence involve general deterrence, just punishment and protection of the community as relevant sentencing considerations. Furthermore, because of your previous offending prior to the subject offending, I consider that specific deterrence also has a role to play.
57 In mitigation of your offending, I take account of the following:
(a)I consider that your pleas of guilty were reasonably early. I do accept that your pleas of guilty have the effect of saving the court the time and cost of a trial, as is made clear by Phillips v The Queen [2012] VSCA 140 at paragraph 36. Furthermore, and in particular, your pleas of guilty have obviated the need for any complainant to be called to give evidence in a trial and relive the events of that night.
It is always a question for the sentencing judge whether remorse or a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (see again Phillips v The Queen at paragraph 96). I do accept that your pleas of guilty do demonstrate to some extent your willingness to facilitate the course of justice and acceptance of responsibility;
(b)I also accept that your plea is some evidence of remorse and further you have demonstrated some degrees of remorse by your efforts to address your difficulties with substance misuse and compliance with mental health counselling and pursuant to your present Community Correction Order. Further, your acknowledgement of the seriousness of the offending to the forensic psychologist, Mr Cummins, who noted your expressions of remorse in respect of the offending in the Ballarat Health Service notes: 'In the context of the intake assessment [you] referred to [your] offending of September 2018, stating [you were] remorseful regarding [your] offending.'
(c)I also accept the evidence of Mr Cummins enlivens principles 5 and 6 of the well-known case of Verdins (op. cit.), wherein, because of your mental health problems incarceration would be more burdensome to you than any other prisoner and furthermore, your incarceration would, according to Mr Cummins, cause your mental health to deteriorate – particularly so when you have reached an accommodation with your ex-partner as to the care and custody of two of your children;
(d)I note that submissions were made by your counsel in respect to the impact of the COVID-19 Pandemic. I do accept that the COVID-19 Pandemic has relevance to your sentence if you are incarcerated.
To date, the Court of Appeal has been hesitant to express a general statement of principle in relation to sentencing practice. I refer to R v Brown(aka Davis) [2020] VSCA 60, a decision of Priest and Weinberg JJA on 23 March 2020; Sazimanoska v The Queen [2020] VSCA 66, again, a decision of Priest and Weinberg JJA, reported on 26 March 2020 and Nguyen v The Queen [2020] VSCA 76, a decision of Niall and Croucher JJA, dated 1 April 2020.
As noted by the Court of Appeal, it is difficult to make a statement of principle as information continues to evolve and it cannot be deemed how precisely Corrections will react to that changing situation. Of course, one must not speculate, and in general terms I do take account of the following:
(i)if you were incarcerated, such custody would be more onerous given the COVID-19 virus and the need to maintain social distancing which, of course, is far more difficult in a prison;
(ii)you will be understandably anxious about your time in custody, particularly so given your pregnancy;
(iii)there is the prospect of extended lockdowns during the course of any incarceration as a result of the virus.
58 In all the circumstances, I consider the hardship that you will experience as a result of COVID-19, if imprisoned, is a factor to be taken into account in mitigation of your sentence.
59 Your counsel submitted your prospects of rehabilitation were 'reasonable. In support of that submission, reference was made to the following:
(a)you are currently engaging well with your Community Correction Order which was imposed by the Magistrates' Court on 22 October 2019. As part of that order, you are currently engaging for mental health issues, which involve regular sessions with counsellor, Kim Douglas, via video link;
(b)you also enjoy the further support of your mother and sister, as well as your new partner, Mr Chris Durury;
(c)you are also prescribed anti-depressant medication to manage your mental health issues; you have been compliant with medication and shown improvement;
(d)you currently have access to your two younger children and help with maintaining access. This motivates you to continue to engage with treatment that has been made available to you. Further, given your pregnancy, the forthcoming birth of your child acts as a further incentive for you to work seriously towards rehabilitation.
60 Of course, it is to be noted that Mr Cummins assessed your risk of committing further violent offences as 'moderate' (although he did go on to say that such an assessment depends upon your responsiveness to treatment) and the Corrections Officer, when you were assessed for a present Community Correction Order, was of the view that you were a “high risk of reoffending”, based on the Level of Service Risk Assessment Tool.
61 As I have stated earlier in these reasons, I consider that you have been complying with your recent Community Correction Order and there has been a degree of stability in your life – no doubt brought about by having access to your two younger children, resolving your difficulties with your former partner and the prospect of a further child. However, of course, it is early days yet, given this order only commenced in October 2019 and must be seen in the context of significant offending prior to that, and I would assess your rehabilitation prospects as 'guarded'.
62 Although accepting that a Community Correction Order could be ordered in relation to your serious offending, I consider that a more appropriate sentence is one of initial imprisonment, followed by a Community Correction Order. I intend to convict you of all offences and sentence you to an aggregate period of imprisonment in relation to Charges 1 and 2 and thereafter a Community Correction Order. In relation to Charges 3 and 4, I intend to fine you.
63 Please be upstanding:
(a)in relation to Charges 1 and 2 on Indictment No.C1812289, you are convicted and sentenced to an aggregate sentence of nine months' imprisonment;
(b)in relation to Charge 3 on the Indictment, you are convicted and sentenced to a fine of $500;
(c)in relation to Charge 4 on the Indictment, you are convicted and sentenced to a fine of $200;
(d)furthermore, in respect to Charges 1 and 2, you are further sentenced to a Community Correction Order for a period of 12 months. After completion of your period of imprisonment, you must attend the Horsham Community Correctional Services situated at the State Offices, 2nd floor, 21 McLachlan Street, Horsham, within two days. In addition to the mandatory terms, there will be the following terms:
(i)pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary for the Department of Justice and Regulation for the duration of the Community Correction Order;
(ii)pursuant to s.48(3)(a) of the Sentencing Act 1991, you are to undergo any assessment and treatment (including testing for drug abuse or dependency);
(iii)pursuant to s.48D(3)(b) of the Sentencing Act 1991, you are to undergo any assessment and treatment (including testing for alcohol abuse or dependency);
(iv)pursuant to s.48D(3)(e) of the Sentencing Act 1991, you are to undergo any mental health assessment and treatment, which may include psychological and neuropsychological or psychiatric treatment in a hospital or residential facility;
(v)pursuant to s.48D(3)(f) of the Sentencing Act 1991, you are to undertake any program which addresses factors relating to your offending behaviour including but not limited to anger management courses and problem-solving strategies.
64 Pursuant to s.6AAA of the Sentencing Act, I declare that save for your pleas of guilty I would have convicted you and sentenced you to a period of three years' imprisonment, with a non-parole period of two years.
65 And finally, I grant leave to the prosecution to seek a forensic sample order.
66 COUNSEL: As Your Honour pleases.
67 HIS HONOUR: Ms Murray, this must be very upsetting to you. I can understand that. What I just want to say to you is this, please do not think I have not taken account of all the good things you seem to be doing. I have. Since October last year, I think you have made a real and significant effort to get your life back into order. The thing which (indistinct) against you was the nature and extent of this very serious offending. And also, it is relatively early times yet. But look, you are going to be imprisoned -it should go - you have got the baby to look forward to and it will not be long after the baby's birth that you will probably be out again and hopefully join up with your partner and your two other children. Because this event which you are being sentenced for pre-dated the more serious offences which occurred afterwards. But I want you to think that the court has not in no way recognised your efforts. It has. But the court has to balance up a number of factors in coming to a view to an appropriate sentence. So I know this will be of little comfort to you but I think it is worthwhile telling you that. Yes, anything counsel want to raise?
68 MS LJUBICIC: Just a custody management issue. I am not sure whether or not Your Honour would like to get those orders signed first. But - - -
69 HIS HONOUR: Sorry, yes.
70 MS LJUBICIC: Your Honour has a copy of this document. There was a short letter from Lister House Clinic that was tendered.
71 HIS HONOUR: The one that was sent to me recently.
72 MS LJUBICIC: Yes. So it just indicates that she is pregnant and that there was some complications with the pregnancy by way of a low lying placenta and that she needs a new imaging at 32 weeks and that if there are certain symptoms that show, that she needs to get urgent medical attention. So perhaps if that letter can be attached to her file by way of - - -
73 HIS HONOUR: Look, I must admit I was (indistinct words) I assumed either one of you were going to jump in if you want to make any further submissions. I was led to believe that after that letter had been received which I was well aware of - - -
74 MS LJUBICIC: Yes.
75 HIS HONOUR: - - - I think enquiries were made and I think both parties indicated that no further submissions were to be made.
76 MS LJUBICIC: No, no further submissions were to be made. We just needed to make some enquiries in the event that it was appropriate to make further submissions. The only comment that I make now is perhaps this letter should be attached for the purpose of - - -
77 HIS HONOUR: Yes. Custody officer. Yes, that will be done.
78 MS LJUBICIC: As the court pleases.
79 HIS HONOUR: Anything else?
80 MS LJUBICIC: No, Your Honour.
81 HIS HONOUR: Yes. With her (indistinct) just disappear shortly. I think your client has to sign some documents.
82 MS LJUBICIC: The court pleases.
83 HIS HONOUR: Yes, thank you. Thank you both for your help with this matter. A difficult matter for all concerned. I appreciate that. Yes, thank you.
84 MS DUCKETT: The court pleases.
85 HIS HONOUR: We will adjourn temporarily.
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