Director of Public Prosecutions v Norman
[2024] VCC 332
•22 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00657
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NORMAN, Sharalee |
---
JUDGE: | Her Honour Judge Blair | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2024 | |
DATE OF SENTENCE: | 22 March 2024 | |
CASE MAY BE CITED AS: | DPP v Norman | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 332 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – SENTENCE
Catchwords: Aggravated burglary – criminal damage – Bugmy – Verdins – plea of guilty – family hardship consideration – youth – rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins [2007] VSCA 102; Boulton v The Queen [2014] VSCA 342; Worboyes v The Queen [2021] VSCA 169; DPP v Meyers (2014) 44 VR 486; R v Hermann [2021] VSCA 160; Bugmy v The Queen [2013] HCA 37; R v Mills [1998] 4 VR 235; Markovic v The Queen [2010] VSCA 105.
Sentence: Community Correction Order for a period of 15 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. MacDougall for Plea Ms C. Eckersley for Sentence | Office of Public Prosecutions |
| For the Accused | Mr W. Barker | Emma Turnbull Lawyers |
HER HONOUR:
1Sharalee Norman, on 21 February 2024 at Ballarat County Court, you pleaded guilty on Indictment N11802533 to one rolled up charge of criminal damage, and one charge of aggravated burglary.
2You admitted numerous prior convictions from four prior court appearances, one of which was in the Children’s Court.
3After hearing a plea on your behalf and a concession by the prosecution that a Community Correction Order was in range, I requested a pre-sentence report from Corrections as to your suitability for such an order. I have received a report from Corrections and you have been assessed as a suitable candidate.
Circumstances of offending
4The agreed factual basis of your offending was contained in the Summary of Prosecution Opening for Plea this document was tendered as exhibit A. What follows is a summary; late in the morning on 28 July 2022, Cynthia Rowe was at home alone. You and Dylan Rule, your co-offender knocked loudly and repeatedly on her front door. When no one answered, both of you smashed a large orange pot plant. You then left.
5Ms Rowe called her friend Luana Rose who attended the premises.
6Later that day in the mid-afternoon, you and your co-offender returned to the property. Both Ms Rowe and Ms Rose were home at the time. You and Mr Rule banged on the front door and yelled ‘come outside’. Ms Rowe opened the door and observed you, Ms Norman, to be holding a metal tyre iron. Ms Rowe attempted to close the door and hold it shut however you were able to force the door open and both you and Mr Rule pushed your way inside – Charge 1 – Aggravated burglary – Intent to assault
7Ms Rowe ran upstairs and locked herself in the bathroom. You and Mr Rule made your way upstairs. You were still armed with the metal tyre iron.
8You both stood outside the bathroom door. Ms Norman, you yelled ‘you better have a big fucking knife cunt’. You then kicked a nearby bedroom door causing a large hole. You and Mr Rule then walked back downstairs and into the lounge room where you caused damage to a television belonging to Megan Cowton – Charge 2 – Criminal damage – rolled up to include damage caused to the pot plant, bedroom door and television
9As Mr Rule walked out the front door, he stole a parcel containing various cleaning products belonging to Ms Cowton. You, Mr Rule, and Ms Rose all left the house together. CCTV depicts Ms Rose passing a black handbag belonging to Ms Rowe to Mr Rule as she exited the premises. Police have not yet located Ms Rose; accordingly, she has not been charged. You are not charged with either theft and will not be punished for this additional offending.
10Later the same day around 8pm the police attended Mr Rule’s home. He was arrested, interview and bailed. During his record of interview, he made admissions to attending the property with you; being aware of a pre-existing dispute between you and Ms Rowe regarding your then boyfriend; and removing a parcel from the premises before the two of you left. He denied that either of you used weapons during the incident.
11On 19 August 2022, you were interviewed and then released on bail. During your record of interview, you admitted to attending the property and breaking a door.
Victim impact statement
12Megan Cowton, who was a resident, but not home during your offending, provided a victim impact statement to the Court. This statement was read aloud by the prosecutor Ms MacDougall. Ms Cowton detailed the emotional impact of your offending on her. She described how she no longer feels safe in her own home, and has had to change her life to increase security in her home.
13Ms Cowton wrote a part specifically addressed to you and Mr Rule. She said that your past trauma does not justify your actions. Importantly, I noted in court that you were nodding to this and have accepted the wrongfulness of your actions, which I will discuss in more detail shortly.
14I have taken into account the admissible parts of Ms Cowton’s statement, and have done so specifically in regards to the sentence I will impose.
Nature and gravity of the offending
15In sentencing you I must make an assessment of the objective gravity of your offending. Aggravated burglary, in particular, is an inherently serious offence, and that is clear from the maximum penalty of 25 years imprisonment. Further, in determining the seriousness of your offending, I have had regard to the case of DPP v Meyers,[1] in which the Court of Appeal set out considerations which will ordinarily be relevant to an assessment of the gravity of offending for a charge of aggravated burglary. I have given consideration to these factors.
[1] (2014) 44 VR 486.
16Your counsel Mr Barker, in his thorough and helpful plea, conceded that your offending was plainly serious. However, he also submitted that despite your anger and your threats to assault you did not actually assault any person. Further, he submitted the incident was short in duration and occurred during daylight hours. Being female and pregnant you were not someone of whom the victim was particularly scared. In your record of interview you told police that you were not in a lucid state and that your anger towards one of the occupants of the house was driven by the fact that she had slept with your boyfriend.
17I accept the submissions of your counsel. However, I also note that your offending took place in the victim’s home and you were armed with a tyre lever at the time. The CCTV footage shown in court on the day of your plea depicted an incident that would have been frightening for the people in the house.
Personal circumstances
18You were 23 at the time of the offending and you are now 25. As aptly described by your counsel, you have had a chaotic, and incredibly traumatic upbringing.
19You were born in Ballarat to Jacinta and Matthew, however they separated when you were just 1 year old. Your mother re-partnered with Shaun Pring. You did not know that Mr Pring was not your biological father until Matthew passed away in a drink driving accident, and your mother informed you of the truth.
20Mr Pring lived with your family until you were about 16 years old, during which time he would frequently bring drug dealers and users into the home. He also sold drugs from the family home.
21You were emotionally, and physically abused by Mr Pring. You also suffered terrible abuse from some of the people Mr Pring would bring into your home to either buy drugs or partake in drug use.[2] Your stepfather knew of this abuse and allowed it to continue so that he could keep fuelling his own drug addiction.
[2] I have not described the abuse in full given the prohibition contained in s.4 of the Judicial Proceedings Reports Act.
22You believe Child Protection have over 50 reports of incidents from your childhood, which included attending school without food, socks, or clothing, as your mother could not provide these for you.
23You were introduced to drugs, namely amphetamines, by Mr Pring when you were aged only 14 years. As noted by your counsel, this is not unheard of in this Court. However, your drug use started by Mr Pring injecting you with amphetamines. This has turned out to be particularly devastating for you and has left you with a lasting and diabolical addiction. You used drugs with him regularly, until you thought he was purposefully injecting you to cause pain. After this, you started using drugs with your mother instead.
24Also at age 14, you gave birth to your first of three children. Clearly this was very difficult for you as is exemplified by the fact that your child was in childcare at the same school you attended. You were in school until age 15 and have not completed any further education. Mr Barker submitted that this is understandable given the difficulties you faced in becoming a mother at such a young age.
25You have never had a job, your obligations as a mother, without support, have made it incredibly difficult and unlikely you could find work.
26As a result of the neglect and turmoil in your family home you were placed into foster care around age 14 or 15. You estimate you have lived in a total of 15-20 locations, which included foster homes, group homes and respite. Eventually you returned to live with your mother for periods of time.
27You have had several significant relationships. Most of these have been characterised by violence and abuse. You have three children from three different fathers, two of whom are currently in custody. The other father is somewhat stable and has shared care of your oldest child.
28You have full custody of your younger two children, and split custody in an informal arrangement with your other child. You are residing in stable accommodation and you are supported by both your partner and your partner’s parents.
29A number of powerful mitigatory factors were raised on your behalf.
Bugmy and Verdins
30Your counsel submitted in the circumstances of your case and in light of the assessment and evidence of Dr Fiona Best the principles enunciated in the cases of Bugmy and Verdins were enlivened.[3]
[3] Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 102.
31The prosecution conceded that Bugmy was relevant in the sentencing process in light of your deprived upbringing.[4] Further, in respect of Verdins the prosecution conceded that it had application in a limited way.[5]
[4] Bugmy v The Queen [2013] HCA 37.
[5] R v Verdins [2007] VSCA 102.
32In making an assessment of your moral culpability or degree of blameworthiness to be attached to you for your offending conduct it is necessary to closely examine your personal circumstances and background as an exploration of factors which may explain the offending conduct. To the extent that the offending conduct is due to factors beyond your control the harshness of the moral judgement is likely to be moderated.[6]
[6] R v Hermann [2021] VSCA 160.
33As submitted by your counsel an examination of your personal history reveals that your upbringing was chaotic and marred by physical, emotional and other abuse. Your parents separated when you were an infant and you were the victim of and witness to family violence throughout your childhood. Child protection services were involved with you and your family throughout this time. Ultimately, you were placed in out of home care in a variety of foster care situations. Notwithstanding your relocation from the family home the abuse continued.
34In support of his argument in this regard your counsel referred to the report of Dr Best specifically where she states;
“At the time of the alleged offending, Ms Norman’s mental functioning was impaired because of her underlying personality difficulties, her trauma symptoms, and her impulsivity and hyperactivity such that her judgement, rational thinking, and ability to make calm and reasoned decisions were impaired at the time of the alleged offending.”
35In my view, both limbs of Bugmy have application in your case. That is the more general expression that;[7]
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the 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.
[7] Bugmy v The Queen [2013] HCA 37 [40].
36And the more specific expression that;[8]
An offenders childhood exposure to extreme violence and alcohol abuse may explain the offenders recourse to violence when frustrated such that the offenders moral culpability of the inability to control that impulse may be substantially reduced. However the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[8] Ibid [44].
37In the circumstances of your case I consider that your moral culpability ought be reduced in light of your childhood experience of abuse and deprivation and the lasting impact this has had upon you. Further, understanding what has occurred throughout these years has put your prior history in context.
38Further, in light of the opinion of Dr Best that;
“[Your] impaired mental functioning because of [your] mental health difficulties, means that a custodial sentence may weigh much more heavily on [you] than on an individual without those difficulties and has the potential to have an adverse effect on [your] mental health.”
39I consider that the limbs 5 and 6 from Verdins are enlivened in your case.[9] Additionally, I have taken into account in a general way, your compromised mental health when considering an appropriate sentence.
[9] R v Verdins [2007] VSCA 102.
Plea of guilty
40Your plea of guilty was entered at committal mention which was in effect at the earliest opportunity. I consider this to be a very early plea. Further, no witnesses were required to give evidence and the court system was spared the substantial expense and resources of contested proceedings. In these circumstances, your plea has significant utilitarian value and I find you have facilitated the course of justice. I intend to allow an appropriate discount for your plea of guilty.
41Additionally, although the court's case backlog caused by the pandemic has now eased, at the time your matter resolved in August 2023, it still had some residual impact. I consider as a result of the resolution of your matters at that time, a degree of additional benefit towards facilitating justice is warranted and I intend to allow an additional discount for your plea of guilty in light of this fact.[10]
[10] Worboyes v The Queen [2021] VSCA 169.
42Further, your plea of guilty together with admissions in your record of interview are demonstrative of your remorse and acceptance of responsibility for your offending. In effect you told the police that you were remorseful for what you had done. The CCTV footage was played to you during your interview and it was clear that you found it distressing to watch, as you did when it was played in court at your plea hearing. During your interview you also recognised the seriousness of your actions, you acknowledged that your offending occurred in the victim’s home and that you would have to deal with the consequences of what you had done.
43Your remorse was also evidenced through comments you made to Dr Best that you recognised the disgusting nature of your offending and were both embarrassed and ashamed that you behaved in this manner. In addition, I note that in the presentence report completed with Corrections, you said that you felt “absolutely terrible for causing more trauma to someone that did not need the trauma in their life”. As touched upon earlier, there was also evidence of your remorse in your reaction to the victim impact statement that was read aloud in court. Your counsel submitted that this reaction was consistent with the manner in which you have acted throughout the proceedings.
44I accept that your remorse is genuine.
Youth
45Another mitigatory factor relied upon by your counsel is your relatively young age. You were 23 years old at the time you offended and you are now 25 years old. While you cannot to be sentenced as a young offender as defined by the Sentencing Act,[11] I accept that you are still a youthful offender and fall to be sentenced accordingly. Your counsel referred to the line of authority on this point since the case of R v Mills,[12] which states that rehabilitation is usually a far more important sentencing principle than general deterrence in cases involving young and youthful offenders.
[11] Sentencing Act 1991 (Vic) s 3.
[12] [1998] 4 VR 235 [241].
46Mr Barker appropriately made the concessions that you are at the top end of youthful, and have some prior criminal history. Consequently, the weight to be given to the principles that apply to young offenders will necessarily be reduced but they are not eliminated. I agree with his submission.
Rehabilitation
47Related to your youth are issues of rehabilitation. Your counsel submitted that your prospects in this regard are positive. Mr Barker referred to your own insight and remorse, that you have had no contact with the victims since the offending, there has been no substantive re-offending, you have stable accommodation and you now have the full time care of two of your children and the part time care of your third child.
48Importantly, Mr Barker was able to point to demonstrated rehabilitation in the form of your counselling with Clear Thinking Mental Health Group. You have shown yourself to be willing to change. You have already seen a positive impact from the counselling you’ve engaged in thus far, and you are dealing with the issues that have contributed to your offending.
49At the time you offended you had lost custody of your children and you were not in a good place. You have worked with Child Protection Services since then and you have been able to regain custody and contact with your children and you have been abstinent from drug use. Your children are a great motivation for you to remain drug free and to continue the work on your reform.
50In my view, any sentence I impose should look to foster and continue this rehabilitation. This is not only for your benefit and the benefit of your children but ultimately the community will also benefit if you can maintain your process of reformation.
Exceptional family hardship
51Finally, your counsel relied on the exceptional family hardship that would result were you to be incarcerated. He submitted that there was no alternative care for the two children currently in your care, as their fathers were both incarcerated. Mr Barker also submitted that Child Protection have already been involved with your children and the younger two were both previously placed in foster care.
52No evidence was called in respect of the potential placement of your children or other alternatives. On the state of the evidence before me I accept that hardship would result as a consequence of your separation from your children, but I do not consider that this rises to the level of exceptional circumstances required for the exercise of mercy. However, as the Court of Appeal made clear in the case of Markovic the effect on an offender of such hardship can cause any term of imprisonment to be more burdensome.[13] I accept that in your case such a burden would occur, particularly in light of the experiences of abuse and neglect that you endured in state care.
[13] Markovic v The Queen [2010] VSCA 105.
Sentencing principles
53The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
54In your case as a result of my finding that your moral culpability is reduced, the application of general deterrence must be moderated. Further, given your youth at the time of your offending, rehabilitation ought be given some prominence. In your case, I regard protection of the community is best achieved by continuing and building upon the supports and interventions to address any ongoing issues you have, this is what will likely reduce the risk of future offending. I consider that to remove you from the community would be a retrograde step that would not be in anyone's interests. Further, I consider specific deterrence should be given weight, but that this should be somewhat reduced in light of your acceptance of responsibility for your offending and your genuine remorse.
55I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[14] where relevant in your case. In particular, I have had regard to the sentencing landscape for the offending before me, particularly the offence of aggravated burglary. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.
[14] Sentencing Act 1991 (Vic) s 5.
56The principles of proportionality and parsimony are also important considerations here. They require me to make sure the punishment imposed fits the crime committed and that I do no more than is necessary to punish you for your offending. I have taken these principles into account in fixing the sentence I will now impose.
57In my view the appropriate sentence in your case is the imposition of a Community Correction Order. In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen.[15]
[15] Boulton v The Queen [2014] VSCA 342.
58Ms Norman, in relation to each of the charges, being charge 1 – criminal damage and charge 2 – aggravated burglary, you are convicted and I order that you perform a Community Correction Order for a period of 15 months.
59The conditions of this Community Correction Order include that you must
(a) Attend for supervision;
(b) Submit for assessment and treatment for drug abuse;
(c) Submit for assessment and treatment for mental health issues;
(d) I am also going to order a condition for judicial monitoring, so I want you to come back and see me in 6 months' time. I have done this because I am interested to see how you are going and also to see that you have maintained the rehabilitation you have commenced.
60The judicial monitoring can be done via Webex and if necessary you can appear at a Corrections office with your corrections officer present. The date I propose for that is 23 September 2024 at 10.00am.
61In addition to the conditions that I have imposed, there are standard conditions you must comply with. First and foremost, you must not commit an offence punishable by imprisonment over the next 15 months. If you do, you will breach the order. You must comply with the conditions I have imposed and the standard conditions of a CCO. If you do not comply you will breach the order. If you breach the order, you will be brought back before me, and I will likely have to resentence you. That could involve sending you to gaol.
62You need to report within two working days to your nearest Corrections office and that will be Ballarat Community Correctional Services and you must report there by 2pm on Tuesday 26 March 2024.
63You are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Community Corrections and you cannot leave the State of Victoria without prior permission.
64I can only place you on a Community Correction Order if you agree – so firstly, do you understand what is involved?
65OFFENDER: Yes.
66HER HONOUR: Yes, all right and do you agree to doing the order?
67OFFENDER: Yes,
68Pursuant to s. 6AAA of the Sentencing Act if you had pleaded not guilty and been found guilty the sentence I would have imposed is a term of 9 months imprisonment and a Community Corrections Order in similar terms to that I have imposed today.[16]
[16] Sentencing Act 1991 (Vic) s 6AAA.
0
6
0