Director of Public Prosecutions v Newman

[2024] VCC 1787

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

CR 24-00753

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMBER NEWMAN

---

JUDGE:	HIS HONOUR JUDGE ROZEN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2024
DATE OF SENTENCE:	25 September 2024
CASE MAY BE CITED AS:	DPP v Newman
MEDIUM NEUTRAL CITATION:	[2024] VCC 1787

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW

Catchwords: Sentencing – Plea of Guilty – Sentence Indication Hearing – Aggravated Burglary-low-to-mid-range – Theft-medium-range – Drug-Trafficking-low-range - Verdins – Bugmy – Rehabilitation Prospects-moderate – Principle of Parity – s 6AAA Declaration.

Legislation Cited:  Crimes Act 1958 (Vic); Drugs Poisons and Controlled Substances Act 1981 (Vic); Road Safety Act 1989 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Boulton v R [2014] VSCA 342; R v Verdins [2007] VSCA 102.

Sentence:Community Corrections Order for 12 months’ - s 6AAA – 12 months’ imprisonment with a non-parole period of 7 months’.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Mr R. Jakobson	Sarah Pratt & Associates

HIS HONOUR: 

1Amber Newman, you pleaded guilty to four indictable offences on the
6 September 2024:

a)One charge of burglary, which carries a maximum sentence of 10 years' imprisonment;[1]

b)One charge of theft, which carries a maximum sentence of 10 years' imprisonment;[2]

c)One charge of trafficking in a drug of dependence, which I note is a rolled up charge, that carries a maximum sentence of 15 years' imprisonment;[3] and

d)One charge of possessing methamphetamine, which carries in these circumstances a maximum penalty of one year.[4]

[1]Crimes Act 1958 (Vic) s76(1).

[2] Ibid s 74(1).

[3]Drugs Poisons and Controlled Substances Act 1981 (Vic) s 71AC(1)

[4] Ibid s 73(1).

2You have also pleaded guilty to one related summary offence, which you have agreed to be heard and dealt with by this court, which is driving whilst disqualified, which carries a maximum sentence of two years.[5]

[5]Road Safety Act 1989 (Vic) s 30(1).

3You pleaded guilty after receiving a Sentence Indication from the Court on the
26 August 2024. The indication being that the court would impose a community correction order in relation to your offending on an aggregate basis.

4The factual circumstances of your offending are set out in the 'Summary of Prosecution Opening for Plea' dated 6 September 2024.[6]

[6] Exhibit P1.

Circumstances of Offending

5At the time of the offending you were 27 years old and resided in Altona Meadows.

6On 11 December 2023, at 4:00 pm you drove a black 2011 Mercedes Sedan in Hannan Street, Williamstown with Joshua De Cello in the passenger seat. At the time you were a disqualified driver (Summary Charge 4).

7At 5:00 pm, Mr De Cello entered the property and turned off the power, you and Mr De Cello waited to see if the owners were home. As no one exited the house, you assumed that it was empty and entered the property with the intention of stealing. You stole a number of expensive items including two watches and a number of handbags (Charge 1 – Burglary).

8Mr De Cello drove away in the victim’s Black 2023 Porsche 911, registered number plate ending in M. You drove away in your Mercedes in convoy.

9In total, you and Mr De Cello stole:

a)Two gold Rolex watches, valued at $52,850 and $53,800;

b)Three Chanel handbags, valued at $2780, $4400 and $7270;

c)One silver Bulgari ring, valued at $4700; and  

d)One black and silver Hermes bracelet, valued at $935 (Charge 2 – Theft).

10You were arrested on 27 December 2023, a search warrant was executed by police and they found the following:

a)1 gram methylamphetamine (Charge 3 – Possess drug of dependence); and

b)22 grams cocaine and 1.178kg of cannabis (Charge 4 – Traffick drugs of dependence – this is a rolled up charge).

Objective Gravity

11It is necessary to make an assessment of the objective gravity of your offending. 

12In relation to Charge 1, this burglary was quite brazen, happening in broad daylight and involved some degree of planning. You were in company, which is always an aggravating matter in relation to a burglary, but I note that you were unarmed and there no one was harmed when the burglary was committed. In the circumstances, I would assess the objective gravity of the burglary as being a low-medium range example.

13In relation to Charge 2, the value of the items stolen is a very important consideration in assessing the gravity of a theft. Here, the total value was a little over $126,000, which is not a trivial amount.  I would assess the theft as a medium range example.

14In relation to Charge 3, drug trafficking, this is a very serious offence. There is very little evidence before the court which would indicate what type of involvement you had in relation to the trafficking of the drugs. Compared to many drug trafficking cases in this court, the quantities involved were quite small. I would therefore consider the drug trafficking offending to be a low range example.

15In relation to Charge 4, possessing a drug dependence, given the quantity of drugs involved, this is a low-level example of a drug possession charge.

Personal Circumstances

16You are 27 years of age, having been 26 at the time of the offending.

17You were born in Queensland and your childhood was, to say the least, quite chaotic.  Your family moved between Queensland and New Zealand, and you grew up with an older half-brother. Your parents separated when you were nine years of age. 

18Your mother had multiple partners that were abusive towards her, and you were a witness to these incidents. You were evicted from the family home at the age of 12 and lived with your 24-year-old boyfriend for a period of 18 months. That relationship was plagued with substance and physical abuse. 

19Following the end of that relationship, you returned to New Zealand to live with your father. Within a year, he also evicted you and you returned to Melbourne by yourself to live with your best friend. 

20At the age of 15 your best friend died in a tragic car accident, which was the catalyst for a lot of your subsequent issues. The elder brother of your best friend was involved in sex work and he forced you into this industry at the very young age of 16. Your other relationships seem to centre around substance use and family violence.

21You have been in your current relationship for three and a half years. Initially you were co-dependant on substances, however, your partner has been sober for almost two years. Your relationship ended in late 2023, around the time of this offending, when you met and had a brief relationship with the co-accused, Mr De Cello. However, you and your partner have reconnected and are working together to move toward a brighter future.

22You had stable housing, however, after experiencing a deterioration in your mental health over two years ago, your mother moved to Victoria to support you. You currently live with your mother in Altona Meadows and your relationship has improved. Your relationship with your father is quite positive, however, you have not seen him for the past four to five years.

23In terms of your education, you had difficulties and attended three different schools due to moving homes but completed Year 10. You had difficulty forming positive bonds due to moving schools frequently and you often felt like an outcast in the school environment. You were also often suspended throughout your education due to engaging in antisocial behaviours such as smoking on the school grounds.

24You commenced a diploma of nursing in 2020, however you developed a psychosis which impacted on your ability to complete that course.  You are hopeful that you can engage in this course at the conclusion of the matters that are before the court.

25As noted, you commenced sex work at the age of 16 and you have relied on this industry for income.  You would like to develop skills that would allow you to obtain meaningful income.

Substance Abuse

26You commenced substance abuse from the age of nine, at the time of the separation of your parents. You would self-medicate to mask the pain that you were dealing with throughout this period.

27At the age of 12, you commenced cannabis and methamphetamine use and by 14 you were using methamphetamine daily. You consider that your cannabis use contributed to your psychosis symptoms in 2022.  During that period, your life went into complete chaos, and you were homeless and you were sexually abused due to your high degree of intoxication. You have been battling substance abuse for most of your life and at the time of this current offending, you were consuming GHB and 1 gram of methamphetamine daily.

28When you used substances heavily, you would often have visual and auditory hallucinations. You have been reliant on substances to cope with your grief and to regulate feelings. You are, according to your counsel's submissions, hoping to receive treatment for your mental health. 

29You want to be able to live a normal life and be substance free. You are hopeful that you can obtain meaningful employment, whether that be to continue your nursing diploma or otherwise.  You hope that once the matters before the court are finalised, you can become clean of illicit substances and that you will be able to start a family.

Character References

30The court has received three character references from people who are supportive of you.

31Firstly, a character reference from Jacek Zamoisk dated 22 August 2024, he has known you for over 10 years.[7] You worked for Mr Zamoisk as a receptionist and have remained good friends. Mr Zamoisk speaks of your feelings of shame and remorsefulness in relation to your offending, and the challenges that you have faced in your life. Ultimately, he describes you as an honest, empathetic and trustworthy person, believes that you have learnt your lesson, will not re-offend, and that you are prepared to take accountability.

[7] Exhibit D2.

32A character reference from Perry Hannah to the court indicates that he has known you for nine years and believes that you were misled by what he describes as 'members of society who prey on the vulnerable'.[8]  He speaks of what he considers to be the impact of trauma on your life and an inability to know right from wrong. He notes that your attendance at Narcotics Anonymous meetings and ongoing psychiatric help, will be beneficial to you in the long run, to help you fulfil your dream of finishing nursing.

[8] Exhibit D3.

33Finally, the court has a reference from Bridgette De Paoli, who has known you for 11 years, having met when you two completed a beauty course.[9]  She refers to the challenges in your life, the extreme loss and heartache that you have suffered, and Ms De Paoli strongly believes that the behaviours you have exhibited are not an accurate representation of the person that she knows you to be. 

[9] Exhibit D4.

34I have taken into account those character references noting that you are fortunate to have people who are prepared to write to the court in support of you.  It is not something that we always receive in cases such as these.

Mental Health

35Your legal representatives arranged for you to be examined by a psychologist, Ms Daniella Kocic.[10] Ms Kocic reports that she assessed you on 19 June 2024 and also spoke to Ms Bovenkerk, who has provided treatment to you earlier this year whilst you have been on bail.

[10] Psychological Report of Ms Newman written by Ms Kocic dated 8 July 2024 (Exhibit D1).

36Ms Kocic states that your clinical presentation and history is consistent with a diagnosis of amphetamine induced psychotic disorder.[11]  She also states that you endorsed symptoms consistent with Post Traumatic Stress Disorder and your presentation encompasses additional symptoms which could provide the basis for a conclusion that you have complex PTSD.[12]

[11] Ibid 11-2 [122].

[12] Ibid 11 [119]-[120].

37Turning to the impact of your history of both trauma, drug abuse and your mental illness challenges, Ms Kocic expresses the following opinion:[13]

Taking into consideration Ms Newman's history, the circumstances leading up to the alleged offence, and her functioning at the time of the alleged offence, a number of factors likely contributed to her offending behaviour.  It appears that her trauma had impacted her mental health functioning within society and predisposed her to have a higher susceptibility and lower threshold for psychological distress and emotional dysregulation, leading to her mental health comorbidities, her association with antisocial peers and subsequent alcohol another drug use at an early age, likely normalised her to model this behaviour and the absence of effective coping strategies or problem solving skills has impacted on her ability to adequately address her mental health vulnerabilities.

[13] Ibid 12 [126].

38Ms Kocic goes on to express the opinion that:[14]

At the time of the alleged offending, Ms Newman's capacity to engage in rational decision making and appreciate the wrongfulness and consequences of her conduct was impaired.  Her acute intoxication from methylamphetamine and GHB likely contributed to increased disinhibition, poor judgment and higher levels of impulsivity.

[14] Ibid 12-3 [127].

39Ms Kocic notes the view that ‘a sentence of imprisonment would likely weigh more heavily on [you] than a person without [your] conditions’.[15] Further, ‘a custodial sentence is likely to be a negative experience for [you], that [you] are considered to be at risk of exploitation by other offenders in custody, and [your] naivety to the prison environment in general, places you at a much higher risk than others.’[16]

[15] Ibid 13 [131].

[16] Ibid 13 [134].

Prospects of Rehabilitation

40It is always difficult to make an assessment of an offender's prospects of rehabilitation. I note that Ms Kocic assesses you as a low-medium risk of further offending,[17] but Corrections Victoria assess you as a high risk of further offending.[18]

[17] Ibid 10 [111].

[18] Community Correction Order Assessment Outcome Report dated 10 September 2024, 2 (Exhibit P2).

41In your case, as is so often the case, your prospects of future rehabilitation depend largely on your attitude and your preparedness to take up the opportunities that will be presented to you in the Community Correction Order that I will impose today. The order is designed principally to promote your rehabilitation and as I say, the extent to which it is successful in doing that, will in large, depend on you. 

42Ms Kocic's assessment of your risk was based on the following positive attributes, ‘the absence of an anti-social peer group, stable accommodation, and the absence of the criminal attitude or orientation'.[19]

[19] Exhibit D1, 10 [111].

43However, Ms Kocic identifies the following which contribute to your increased risk rating:

‘[your] psychosocial instability, including [your] long-standing history of unemployment, and indifferent attitudes towards intervention to address [your] substance use and mental health’.[20]

[20] Ibid.

44Ms Kocic states that ‘without intervention, or if you relapse into substance use, your risk profile would immediately increase’.[21] Ms Kocic further notes:

‘Protectively you have stabile psychosocial circumstances, residing with your mother, however, it is noted that family support and accommodation stability is not necessarily a deterrent for your reoffending or engaging in antisocial behaviour due to you residing with your mother at the time of this alleged offending.’[22]

[21] Ibid 10 [112].

[22] Ibid 10 [114].

Matters in Mitigation

45Firstly, I accept your guilty pleas to the offences were made at an early stage. 

46A guilty plea is always a significant matter. It represents an acceptance of responsibility for offending and it demonstrates your remorse for your offending. Particularly in light of the character references that I have already referred to and what you said to Corrections Victoria, which I will come to in a moment. 

47A plea of guilty saves the court and the prosecuting authorities the time and expense of a trial.  In other words, it saves scarce public resources.  Probably more importantly, witnesses are spared the inconvenience and stress of giving evidence, sometimes referred to as the utilitarian benefit of a plea of guilty, and they are all matters to your credit.

48Secondly, I accept that your moral culpability for your offending is reduced by reason of your traumatic childhood and enlivens the Bugmy principle in law. 

49In Bugmy, the High Court explained that when an offender has been raised in the community surrounded by alcohol abuse and violence, these circumstances may mitigate their sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[23]

[23]Bugmy v The Queen (2013) 249 CLR 571.

50I note in relation to the evidence before the court that Ms Kocic refers to the impact of your childhood trauma on your ability to make rational decisions.[24]

[24] Exhibit D1, 11 [118].

51Thirdly, you have a diagnosis of Amphetamine Induced Psychotic Disorder. [25] The law requires a sentencing court to take into account the effect of a mental illness on an offender in various ways. It can reduce moral culpability, but can also require the sentencer to take into account the protection of the community as a significant sentencing consideration.

[25] Ibid 11-2 [122].

52Yours is a case that presents a challenge to a sentencing court because it is clear that at the time of your offending, your inability to make rational decisions resulted from a combination of your mental illness, but also your drug taking, and it is very difficult in those circumstances to separate the two.

53Whilst the first limb of Verdins is not enlivened due to the role played by your drug use, I do take into account that under limb 5 of Verdins your experience of the custodial environment would likely be more burdensome than would be the case if you were of normal mental health.[26]

[26]R v Verdins [2007] VSCA 102.

54I note also that you never previously have been to gaol and importantly, the statutory principle known as parsimony is important in your case, which states:

a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender. [27]

[27]Sentencing Act 1991 (Vic) s 5(5).

55Further, in the case of Boulton, the Court of Appeal explained that the sentencing option of a Community Correction Order is unique under the law in Victoria, in that it combines both a punitive component, by restricting the liberty in a number of ways of an offender, with a rehabilitation component that enables the court to impose conditions that promote rehabilitation.[28] 

[28]Boulton v R [2014] VSCA 342.

56In your case, as I indicated at the Sentence Indication Hearing, given your past, your very limited criminal history, and your relative youth, the promotion of your rehabilitation is a very important consideration when imposing your sentence under the law.

57Where there are more than one accused involved in offending, it is necessary to consider the principle of parity, which is the comparison on the sentence imposed on the co-accused. 

58As indicated, Mr De Cello, your co-accused, pleaded guilty before me on 24 July 2024. His plea has been adjourned to the 1 November 2024, so that the court can receive a report from Forensicare about his psychological health, where he will be sentenced after that date.  He has been remanded in custody, unlike you who has been released on bail.  His personal circumstances are very different to yours, in particular his extensive criminal history is an important consideration that must be taken into account in his sentencing, which does not apply for you. 

59Prosecution counsel, Mr Pickering, conceded that Mr De Cello’s offending is also more serious, both in relation to the additional charge of stealing a very expensive motor car, and a very different involvement in drug trafficking. In those circumstances, parity plays only a very small role in my sentencing considerations here.

60At the Sentence Indication Hearing your counsel, Mr Jakobson, submitted that a Community Correction Order is an appropriate disposition and Mr Pickering, on behalf of the prosecution, accepted that such an order would be within range.

Orders

61Having regard to the maximum penalties for the offences and my assessment of the objective gravity of your offending, together with your personal circumstances as listed, and the other matters of mitigation that I have spoken about, I consider that an appropriate sentence in this case is a community correction order of 18 months duration. 

62I cannot impose a community correction order without your agreement for me to do so and I am not going to ask you to indicate whether you agree to such an order, without explaining to you what the conditions are, both the general conditions and the conditions that I am proposing to order.

63The general conditions are as follows:

a)You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;

b)You must comply with any obligation or requirement prescribed by the regulations;

c)You must report to and receive visits from the Secretary or their delegate during the period of the order;

d)You must report to the Community Corrections Centre specified within the order within two clear working days after the order comes into force;

e)You must notify the Secretary of any change of address or employment within two clear working days after the change;

f)You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary; and

g)You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.

64In addition, the special conditions that I will impose in the order that I have in mind is that:

a)     You must perform 150 hours of unpaid community work.

b)You must participate in treatment and rehabilitation programs as directed for mental health, drugs and alcohol abuse and programs to reduce offending. 

c)I indicate that up to 60 hours of time spent in treatment and rehabilitation programs will count against the unpaid community work hours. In other words, if you are to participate in a full 60 hours of treatment, you will only be required to perform 90 hours of unpaid community work. 

d)You will be under supervision for the duration of the order.

65If you breach any condition of the order, you can be brought back to court and sentenced to up to three months in gaol for breaching the order, and you may be resentenced on the original offending.

66Finally, if you are having difficulty complying with the order you can apply to the court for a variation of a condition.

67Ms Newman, do you understand the conditions of the order that I am proposing? Do you agree to the court imposing that order on you?

68I will also make the Disposal Order that is sought by the Prosecution, noting that it is not opposed.

69The court has a discretion to make a further order disqualifying you from obtaining a driver's license.  In the circumstances of this case I do not propose to make such an order for three reasons:

a)That the driving offence is very much peripheral in the context of your offending before the court;

b)As submitted on your behalf by Mr Jakobson and conceded by Mr Pickering, imposing such an order on you preventing you from being able to drive could be counterproductive in terms of your rehabilitation and your ability to comply with the order that the court is imposing; and

c)Relatedly, you have indicated a willingness to pursue employment opportunities and potentially resume your nursing studies, and not having a driver's license would also impinge on your ability to do that, which is related to your rehabilitation.  So in the circumstances of this case I decline to make any further order in relation to your license.

70Finally, pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I indicate that but for your pleas of guilty, I would have sentenced you to 12 months in custody with a non-parole period of seven months.