Director of Public Prosecutions v Nicholls

[2023] VCC 1619

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-01673

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAUREN NICHOLLS

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2023
DATE OF SENTENCE:	8 September 2023
CASE MAY BE CITED AS:	DPP v Nicholls
MEDIUM NEUTRAL CITATION:	[2023] VCC 1619

REASONS FOR SENTENCE

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Subject:Criminal Law – sentence – guilty plea

Catchwords:              Sentencing – false imprisonment – possessing methylamphetamine – commit an indictable offence whilst on bail – offender aged 25 – relatively minor but not insubstantial role – serious history of drug use – limited criminal history – on bail without incident for an extended period – reasonable prospects of rehabilitation – time spent in custody made more difficult due to COVID – significant utilitarian value of plea in the aftermath of COVID

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Brown (aka Davis) v The Queen [2020] VSCA 60.

Sentence:Total effective sentence: 5 months imprisonment with an 8 months’ community correction order; 5 months reckoned as already served; 6AAA: 10 months imprisonment with a community correction order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	G. Hayward	Office of Public Prosecutions
For the Accused	T. Smurthwaite	McNally & Gleeson

HIS HONOUR:

1Lauren Nicholls, you have pleaded guilty to false imprisonment, possessing methylamphetamine and committing an indictable offence while on bail, all occurring on 20 June and 6 July 2021.

Summary of offending

2The basis for your plea is set out in the summary of prosecution opening dated 21 August 2023.

3In summary, during June 2021, acquaintances of yours were involved in an attempt to buy $2,000 worth of methamphetamine.  A dispute arose between them about one of them, Mr Mavroudis-Rigbye, having stolen the money rather than using it to buy the drugs.

4Consequently, on 20 June 2021, Mr Rigbye was being detained by others, led by Tod Angwin, in the garden shed at the back of his home in Raquel Close, Carrum Downs.

5On that day, your first involvement in helping to detain him was when you arrived on a scooter with a friend, Peter Criggie, at the home at about 2.15 am on 20 June 2021. You entered the shed where Mr Rigbye was being held. Over the next hour or so, you came and went from the shed and at about 4.30 am, you left the shed carrying what appears to be an imitation handgun. You and Criggie left the house at about 5.30 am.

6Later that day, you returned to the house and left again late in the afternoon. At about 9.20 pm that night, Angwin sent you a message that he had 'got him again in the nuts' a reference to Mr Rigbye being injured by a firearm being shot into his groin. You were obviously aware of that type of assault being part of the imprisonment. Soon after, you exchanged messages with Criggie about Mr Rigbye getting away, at which point you express dismay. (Charge 1, false imprisonment).

7It was not alleged that you were complicit in causing any injury to Mr Rigbye.

8A couple of weeks later on 6 July 2021, you were home when police attended and they arrested you. They interviewed you and you answered their questions. You did not admit the details of your conduct that I have just set out. Rather, you minimised what happened. You denied going into the shed – a clear lie. However, after a break in your interview, you admitted more, including being there when Mr Rigbye was shot. You then gave a reasonably accurate account.

9While police were at your home that day, they found in your handbag a small quantity of methamphetamine.  It is not alleged that you possessed it for any purpose related to trafficking (Charge 2, possessing a drug).

10At the time of these offences, you were on bail for an unrelated matter (summary Charge 4, offending whilst on bail).

11There is no victim impact statement from Mr Rigbye.  Nevertheless, I have had regard to the obvious fear and anxiety he would have experienced arising from your conduct in the context of what others were doing while detaining him in the circumstances I have described.

Procedural history

12After your arrest and interview, you were remanded in custody.

13You were ultimately released on bail on 30 May 2022. During that time on remand, you served a sentence of 30 days for an unrelated matter. This means that you have about 298 days – or approximately 10 months of pre‑sentence detention in this case.

14This was your first time in custody, and I accept it would have been an eye‑opener for you.

15You pleaded guilty in this Court after a case assessment hearing earlier this year and a sentence indication on 4 September. Whilst there has not been a trial date set down, your plea has not been an early one. This affects my assessment of your remorse. In any case, your plea has assisted in reducing the backlog of trials in this Court due to the pandemic and I will give weight to that.

16Your plea does show that you accept responsibility for your offending and that you are willing to facilitate the course of justice.  It benefits the community by avoiding the cost and inconvenience of a trial, including the need for witnesses like Mr Rigbye to give evidence again.  I will impose a more lenient sentence on you because of this.

17Police seek a disposal order of the drug they seized from you, which you do not oppose, and I will grant it.

Personal circumstances

18You were born and raised in and around Melbourne and while your home life in your early years was not always a happy one, you did complete Year 12. You have a daughter now who is in her early teens. Whilst parenting as much as you were able to over the years, you have taken various courses to help get work and I accept that you are motivated to make a good life for yourself.

19You have reported to authorities, and to your counsel, childhood trauma and you have been in relationships that were violent. Your assessing psychologist in 2020 suggested you lived with symptoms of Post-Traumatic Stress Disorder.

20At the time of this offending, perhaps due to that disorder in part, you had fallen far, and you were using ice.  You have a somewhat serious history with drugs. In 2018-19 you were treated in the Frankston hospital psychiatric ward for consequences of using cannabis and methylamphetamine. You know how serious it can get.

21Since then, in custody on this matter, you have received a number of different certificates that shows you have used your time there to good effect and you have sought help for the challenges you face both on the social front and for your drug use. I will make an order requiring your ongoing involvement in drug treatment, and this will support your efforts, I hope, in maintaining a drug-free lifestyle.

22Your criminal history is limited, and I do not propose to sentence you with any great focus on specifically deterring you from further offending or protecting the community by way of imprisonment.

23The psychologist Mr Cummins in his 2020 report (Exhibit 2) said that you were then in your life at low risk of re-offending. However, you did re-offend about a year after that assessment. Corrections now assess you as being at high risk.

24I accept that there are protective factors in your life and that you have reasonable prospects of rehabilitation. You wrote in a letter to the Court which I have read (Exhibit 3) that you will not be defined by your past. I think this is a good way to approach your future. You have done your time and the other orders I make today are aimed at supporting you to consolidate the future that you have started to build.

25I also acknowledge that your time in custody fell in the middle of the COVID pandemic.  Prison life then was full of restrictions, including on contact visits, so I find it was more difficult for you than it should have been and I attach greater weight to the time you have served in those circumstances.

Sentencing issues

26The maximum penalties for your charges are –

(a)false imprisonment – 10 years' imprisonment;

(b)possessing a small quantity of methamphetamine – 1 year; and

(c)committing an indictable offence on bail – 3 months.

27It must be said, detaining someone in a garden shed with a group of people standing over them, at least one of whom has a firearm, is cruel and literally uncivilised.  You were present when he was shot and you handled one of the firearms, perhaps an imitation. All this is the conduct of people who have forgotten something fundamental about our community – and that is that people, even those who wrong us, deserve to be treated with dignity. 

28The maximum penalties I have just outlined are just one indicator of how far beneath the minimum standard of conduct – a standard required of us all – that you and the others fell on that night.  It was shameful.

29Your role on the night, although it was serious was not as high as Mr Angwin. I do find that it was higher than Ms Russell or Ms Snowden as far as Charge 1 goes, false imprisonment.  This puts your part in the offending into perspective.  You played a relatively minor but a not insubstantial role in the events.

30In order to deter others from engaging in similar conduct and to punish you appropriately, I will impose a term for imprisonment as well as making another order for your ongoing supervision.

31I have had regard to your time in custody in 2021 being during COVID pandemic and the burdens it placed on you.[1]

[1]Brown (aka Davis) v The Queen [2020] VSCA 60, [48].

32Your counsel, partly based on that, submitted that a combination sentence of imprisonment and a correction order in the community would be appropriate.  The prosecutor agreed and having considered all of the case, I agree.

33To that end, I requested an assessment from Community Corrections (Exhibit A), which says that you are suitable for such an order, which is not surprising.

34I will reduce the time on that CCO in light of two things: the fact that you have spent in custody beyond what I will impose in sentencing you today; and because you have been on bail without incident for an extended period of time now.  You are to be congratulated for those things.   

35I sentence you as follows:

(a)On Charge 1, false imprisonment – 5 months imprisonment and combined with a CCO;

(b)On Charge 2, possessing a drug – convicted and discharged;

(c)On the summary charge, offending on bail – convicted and discharged.

36The CCO is with conviction, and it will last for only 8 months.  The conditions over and above the mandatory ones are that you be:

(a)supervised;

(b)assessed and treated for drug abuse;

(c)assessed and treated for your mental health;

37The total effective sentence is 5 months' imprisonment with a CCO with conviction for 8 months.

38I declare that you have served the 5 months, so you do not go back into prison, and I direct that it be reckoned as a period already served.

39In accordance with s6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed 10 months and a CCO.

Ancillary orders

40As to the methamphetamine seized, I am satisfied it relates to Charge 2, and I make the disposal order as sought, unopposed as it is.

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