Director of Public Prosecutions v Nash
[2014] VCC 182
•21 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
CR-13-02095
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTY NASH |
---
JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 21 February 2014 | |
CASE MAY BE CITED AS: | DPP v Nash | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 182 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T Lynch | Mr C. Hyland Solicitor for Public Prosecutions |
| For the Accused | Ms K McFarlane |
HIS HONOUR:
1 Kristy Nash, you have pleaded guilty to one charge of damaging property and one charge of armed robbery. Those crimes carry maximum penalties of 10 years and 25 years respectively.
2 You are 31 years of age and you pleaded guilty at the earliest reasonable opportunity. I accept that that plea of guilty is accompanied by appropriate remorse and you must also get the utilitarian benefit of it.
3 Of real significance in this sentencing process are that at the age 31, despite having a history of drug dependence, you have no prior convictions.
4 You also have given an undertaking to give evidence against three co‑accused, who I will be referring to shortly. That undertaking I direct be entered into the records of the court. That undertaking has made a very significant difference in the sentence which is to be imposed upon you and whilst no particular matter dominates the sentencing process, the odds are very high you would have gone to gaol had you got given it.
5 Next, pursuant to s.464 of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.
6 That order having been made, I must advise you that should you refuse to provide such a sample, the police may use reasonable force to take it from you and that order is made and handed down.
7 The situation is that I have had you assessed for a Community Corrections order and you have been deemed to be successful and that is the disposition which I intend to impose.
8 The offending to which you have pleaded guilty arose on 28 April 2013.
9 At approximately 11 o'clock in the morning, you were in company with one Slater, one Jackson and one Kellett in a red Mazda sedan. It was not your car. They are the three co‑accused against whom you are to give evidence if called upon.
10 You attended with them at your home address where the two complainants in the matter, a Mr Pain and a Ms O'Reilly, were attempting to leave your premises in Ms O'Reilly's vehicle. There had been some connection between the group of people over the preceding 24 hours sore so. You apparently had only met the co‑accused on that day.
11 You were under the belief that the two had assisted your ex partner in recovering property which was said to be jointly owned by him and you. You were angry and told Jackson to pull up behind O'Reilly's vehicle and block them in. As soon as that had happened you exited the vehicle and went to the driver's side and started to verbally abuse O'Reilly. You demanded she get out of the car. She wouldn't get out of the car so you went to the red Mazda and produced a small blue crowbar from inside the front passenger foot well. Obviously that weapon was not yours. You then attended at the vehicle and tapped on the window again and demanded that O'Reilly exit the vehicle. You went to the passenger side where Pain was sitting and tapped on his window with the crowbar. You were screaming abuse and waving the crowbar at him in a threatening manner, though I notice the Crown opening says as far as contact was concerned, you just tapped the window.
12 You made more demands.
13 In your record of interview, you described what had gone on at that vehicle. You said that you asked O'Reilly, "Where's all my shit?", and it had been thrown on the lawn at your mum's place. You were then told by Mr Pain, according to your record of interview, that he indeed had taken your property and that your ex partner had threatened him with a gun and that is why he handed it all over. You said that, "Painy said that they'd seen him on the way out and Ben pulled him over and put a gun to Painy and Painy had no choice but to give him all my shit".
14 So I do not know what all the circumstances of all this were but it is understandable that you were pretty unhappy in the situation in which you found yourself.
15 The threats continued and you were then given a knife by one of the co‑accused, again, it was not your knife, and you stabbed both the left‑hand side tyres of the vehicle which caused them to deflate, that is the damage to property.
16 You continued to make demands and eventually Pain handed you O'Reilly's phone.
17 You then managed to open the front passenger side door and physical violence took place between you and Pain and then you and O'Reilly. It is important to note that there is no suggestion of any weapon being used in terms of that physical violence.
18 Your co‑accused then opened all the doors of the vehicle and, it is hard to say exactly who, but the vehicle was emptied of its entire contents which was placed inside the Mazda. You then went to O'Reilly's boot area and removed an Alpine 12 inch subwoofer and in a wooden box and placed it in your vehicle. That gives rise to Count 2 of the armed robbery which is a somewhat elongated one. But in any event, as I understand it, the property was all recovered in any event.
19 You then left the residence in your own vehicle. The three co‑accused left in theirs. The complainants then left in O'Reilly's vehicle but with no rear tyres, did not get very far.
20 When interviewed by police, you made full and extensive admissions and were cooperative with them.
21 As I have said, you pleaded guilty at the earliest reasonable opportunity and all those matters go very much in your favour.
22 Not surprisingly, there are no victim impact statements that have been provided. Whether Mr Pain made a statement to police that Mr Williams had threatened him with a gun I have no idea. But any event, that is where we sit.
23 Armed robbery is a serious crime. It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.
24 I then look to matters put on your behalf.
25 Firstly, as I have indicated, the most important factor, I think, is the undertaking to give evidence against the co‑accused.
26 Attended on your behalf were a report from Mr David Bruce, a forensic psychologist, a report from Ms Vandervelt at Anglicare and a further report from Ms Young at Quantum Support Services.
27 Your circumstances can be described fairly simply.
28 You are 31 years of age, as I indicated. You have no prior convictions. You left school at a reasonably early age and have been gainfully employed since then. You are totally illiterate, as I understand it, which has posed significant problems for you. You have three children who are presently in the care of a neighbour and there is DHS involvement. You are making every endeavour, to get recover those children into your own custody. You have had a long history of drug dependence which you are presently in the process of recovering from. The continuing abstinence appears to be somewhat problematic in many respects but you are displaying a determination to achieve that.
29 You have accommodation. You have the desire at least of getting the custody of your three children back and you appear to be heavily motivated towards rehabilitation.
30 The references on your behalf indicate that you are expressing a desire to rehabilitate and learning just how to do that in terms of family routine and the like.
31 Even though armed robbery is a serious offence, it seems to me these are circumstances whereby the community and yourself and your children would all benefit far more by a community‑based disposition than by any form of custody. The situation here, I think, is that custody would severely jeopardise any chances of rehabilitation.
32 The prospects of your rehabilitation are entirely in your hands as well as the assistance that can be given to you by reason of the disposition that will be given. The risk of you re‑offending would appear to be totally dependant upon that rehabilitation, though at the present time, the risk is clearly a low one according to the Office of Corrections.
33 The offending was situational. I understand how it came about. You must not take it that this disposition in any way ameliorates the seriousness of what you did. If you are to breach this Community Corrections order by offending in a nature such as this, I can indicate to you that you will be going to gaol and it will be for a very significant period of time.
34 I have had you assessed. You are acceptable. Counsel have addressed me on the circumstances of that acceptance and accordingly, if you agree, there is, based on a Community Corrections order, the conditions of which will be three years, there will be 300 hours of community work to be served over that three years. There will be a condition for treatment and drug rehabilitation and supervision. I make it clear in this order that I desire that there be educational programs designed towards to relieving you of your illiteracy and you have expressed a desire towards achieving that.
35 Because it is a significant number of hours, because it is a serious offence, I direct that all hours done within programs can be counted towards the unpaid community work. That means that if you do not want to be tidying up the Traralgon cemetery, you can be learning to read and write. I think that is a very advisable thing for you to do.
36 But I make it clear, three years is a long time. If you mess it up, you will go in.
37 SHORT ADJOURNMENT
38 That order is made.
‑ ‑ ‑
0
0
0