Director of Public Prosecutions v Oats
[2019] VCC 504
•11 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02325
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KERRYANN OATS |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2019 | |
DATE OF SENTENCE: | 11 April 2019 | |
CASE MAY BE CITED AS: | DPP v Oats | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 504 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Theft – Armed Robbery – Possess Firearm – Possess Drug of Dependence – Unlawful Assault with a Weapon – Commit Indictable Offence Whilst on Bail
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: Imprisonment for a period of two years and nine months with a non-parole period of two years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of the Public Prosecutions | Mr P Teo (Plea) Ms H Devanny (Sentence) | Office of Public Prosecutions |
| For the Accused | Ms S Lacy | Stary Norton Halphen |
HER HONOUR:
1 Kerryann Oats, you have pleaded guilty to two charges of theft, one charge of armed robbery, one charge of being a prohibited person possessing a firearm, and one charge of possessing a drug of dependence. You have consented to the uplifting of two summary charges: one charge of unlawful assault with a weapon (namely, a bottle or glass) and one charge of committing an indictable offence (that of armed robbery) while on bail. You have pleaded guilty to those charges.
2 The circumstances of your offending are set out in a Summary of Prosecution Opening and I sentence you on the basis of the facts outlined in that document. I summarise those facts briefly.
3 At the time of offending, your were 30 years old and had been staying with your cousin, Julia Marshall (‘Marshall’), and her partner, Ashley Meloury (‘Meloury’).
4 On 6 July 2018, Marshall was driving you from Wangaratta to Benalla in Meloury’s car. You arrived at an address in Benalla at around 11.30 am and Marshall waited for you in the car for about an hour while you were inside the unit at that address. Marshall then entered the unit and told you she wanted to go home. She asked to use your phone to call her children. You gave her the phone in exchange for the keys to the car she had been driving. She went outside and waited by the car. At around 12.30 pm, you returned outside. You became angry and pushed Marshall, causing her to fall. She got up and asked for her keys. You struck her in the face with a purple glass containing a drink. The glass broke and caused cuts and bruising to her eye. This conduct is the subject of summary Charge 3, unlawful assault with a weapon. You and a friend then got into the car and drove away. This is the subject of Charge 1, theft.
5 On 3 August 2018, you drove to a Caltex service station in Wandong with a friend, and took a set of jumper leads from the store there, putting them under your jumper as you left the store without paying. A store attendant followed you and asked you to return the goods but you denied having them, and drove away. This conduct is the subject of Charge 2, theft.
6 Later the same day, you entered an auto store in Hoppers Crossing and approached the register with goods to the value of $404.65 (including a screwdriver set, wheel brace, Melways, sunglasses, impact wrench and a drink). You told the worker that you left your credit card in the car. You left and returned and asked for the items, and the worker told you that you had to pay for them first. You put $4.55 in coins on the counter. While this was happening, another worker, Jennifer Mearles (‘Mearles’), loaded the items into a trolley in anticipation of your paying for them. You took your coins back, approached Mearles, reached into your top and removed an item shaped like a torch, which is referred to in the material as a taser[1], but to which I will refer to as a “so called taser”, and brandished it at Mearles, and activated it so that a blue light appeared and it made a clicking noise. Mearles backed away from the trolley with her hands up. You took the trolley, left the store, loaded the goods into your car and drove away. This conduct is the subject of Charge 3, armed robbery. The armed robbery was committed while you were on bail in relation to driving and drug offences, and this is the subject of summary Charge 12, commit indictable offence whilst on bail.
[1]When tested at the time of the execution of the search warrant, the item, referred to by police as a ‘taser’, was operational in the sense that it emitted a light and made a “zapping” sound. However, it has not been tested to ascertain its electrical charge capabilities, if any.
7 You were arrested on 7 August 2018 at the home of a friend. A search warrant was executed and a number of items were located. One of these, a loaded Arrow Air rifle, was in the room you were sleeping in. This is the subject of Charge 4, prohibited person possessing firearm. You were taken to the police station and when searched there were found to be carrying snap lock bags containing a total of 1.7 grams of methylamphetamine. This is the subject of Charge 5, possess drug of dependence. You were not interviewed in relation to the offending because of your demeanour.
8 You pleaded guilty on 13 November 2018 at the further committal mention. Not including today. There are 247 days of pre-sentence detention.
Criminal history
9 Your criminal history in Victoria and in New South Wales comprises many driving offences, alcohol related charges, two acts of violence in 2018 and 2006, property damage, dishonesty, weapons and drug possession offences, and breach of a Community Correction Order. The current offending occurred in breach of a Community Correction Order imposed on 5 March 2018 in relation to dishonesty, driving, weapons and drug possession offences.
Personal circumstances
10 Your personal circumstances are set out in the psychological report of Peter Hanley, dated 1 April 2019[2], and in the submissions made by your counsel. They may be summarised as follows.
[2]Exhibit A.
11 You are one of three children to your parents. Your mother’s two children from her first marriage also lived with you in regional Victoria and New South Wales. One of them, Robert, sexually abused you when you were five or six years old. He was sent to live with his father and you had some counselling. Your father was a painter and your mother a homemaker. Your parents separated, quite acrimoniously, when you were 11 or 12 years old, and your mother made it difficult for you to see your father. You stayed with your mother, who had a drug and alcohol problem and allowed the home to be a party home for teenagers. From your early teens you associated with older peers, used alcohol and marijuana, and got into fights and shoplifting. You attended about five different schools before leaving school in Year 10.
12 You left home at the age of 14 or 15 to live with friends, and drank heavily. On one occasion, after passing out from drinking you woke to find that you were being sexually assaulted. You experienced periods of homelessness but eventually obtained your own accommodation through Centrelink. You were largely abstinent from drugs and alcohol between the ages of 17 and 19, during which time you managed to complete Year 12 at the Centre for Continuing Education in Wangaratta. However, you have not held paid employment apart from occasional casual work.
13 Your relationship with your former partner, Will Gardner, began when you were 19 years old, and lasted ten years. You have four children with him, aged between four and ten years. Unfortunately, he is an alcoholic and he subjected you to almost daily constant physical and occasional sexual violence. He has been imprisoned at least twice due to this violence, and there are current orders in place against him. Over the years, when you moved away, he managed to locate you and resumed the abuse. You remained in the relationship because you feared losing custody of the children if you disclosed your domestic situation. As a result of the abuse inflicted upon you, you drank alcohol daily and abused Oxycodone in order to cope with your anxiety and depression. You had taken an overdose of benzodiazepines at least twice, and abused methamphetamine when you were unable to obtain pain medication. In 2015 your children were taken from your care by the Department of Human Services. Mr Gardner was then imprisoned for domestic violence against you. Your relationship with him ended then. When your children were taken away your despair and drug use escalated and you often stole to pay for your drug use. Your children are together in foster care in Wangaratta and you are engaged with the department in reunification planning.
14 You told Mr Hanley and your counsel that the conduct, the subject of the unlawful assault, occurred in the context of having driven around for hours with Marshall at her request, looking for drugs. Once in Benalla you were afraid she would drive off and leave you there and took her car keys. Marshall objected to this, yelled at you and came at you and you lashed out at her. Although once you took the car, the friends you called advised you to return it, you knew that the police had been informed and you felt it was too late to return the vehicle.
15 Mr Hanley opined[3] that your experience of instability and violence has shaped your interpersonal and behavioural adjustment in significant ways. You learned to survive by defending yourself aggressively. You view the world as a dangerous place, where survival requires vigilance, suspicion of intent, and quick reactions to threat. Your childhood experiences have contributed to fears of being alone, resulting in frantic efforts to avoid abandonment and the willingness to endure even abusive relationships to maintain connection. He considered that your paranoid ideation consists of prominent cognitive distortions. He diagnosed you as suffering from a Borderline Personality Disorder (BPD), requiring specialist treatment.
[3]Relevantly at paragraph 38 of his report.
16 Mr Hanley noted your history of chronic polysubstance abuse since early adolescence and diagnosed you as suffering from a Substance Abuse Disorder, severe in magnitude, which is in early remission whilst you are in custody but which also requires treatment with a focus on relapse prevention.
17 He also considered that you have experienced severe episodes of trauma in the past, and experience nightmares and distressing dreams as a result. These symptoms have caused you significant distress and have played a role in perpetuating your drug use and limiting your functioning as a parent. This trauma-related symptomatology meets the criteria for post-traumatic stress disorder (PTSD), which also requires specialised treatment.
18 Mr Hanley opined that your chronic symptoms of post-traumatic stress disorder and borderline personality disorder, together with your substance abuse, would have impacted your judgment and decision-making at the time of offending to a mild to moderate degree.
19 Mr Hanley noted that you have made efforts to engage in the treatment opportunities available to you. Although you have made these efforts you have not yet received a level of treatment needed to address your complex psychological problems. He noted that your post-traumatic stress disorder symptoms are causing you considerable distress, and that you cope poorly with isolation. You told him that you have lashed out verbally and physically at other inmates in the context of perceived threats. He considered that you require the specialist trauma service provided by WestCASA at Dame Phyllis Frost. He considered that your mental health is likely to deteriorate in prison, particularly without specialist mental health treatment for your post-traumatic stress disorder symptoms.
20 Mr Hanley considered that you are currently at a moderate to high risk of recidivism, given your history of violence and antisocial behaviour, past relationship problems, prolonged unemployment, substance abuse problems, the presence of a major mental disorder (post-traumatic stress disorder) and of a personality disorder, a history of trauma, significant parenting problems, a history of self-harm, problems with stress and coping, limited personal support and past failures to comply with Community Based Order and Community Correction Order requirements.
Submissions
21 I turn to the submissions made on the plea. You were supported in court by your father, two friends and a neighbour. Your father gave evidence confirming the sexual abuse you suffered as a child, and that your mother made it difficult for him to see you after they separated. He confirmed the chaotic life you led as a teenager due to the partying encouraged by your mother. He confirmed that you sought refuge with him a number of times after being physically abused by your husband. He said that you stayed with him for six months after breaking up with your husband in early 2016, and were having psychological treatment, and seeing a domestic violence counsellor as well as an indigenous counsellor at that time. He said that you moved into your own accommodation and were making good progress but went to pieces after hearing a court report which you felt did not acknowledge the efforts you had made and which you felt would prevent you from getting your children back. He did not see you for about 12 months but you returned to see him six weeks before being arrested, and he told you to hand yourself in. Since you have been in gaol he has been seeing you monthly, due to the distance, and speaks to you regularly. Since coming off all drugs you have become rational and very remorseful for what you have done, and are determined to do everything possible to get your children back. You have told him you understand that you need to change associates and your lifestyle to make this happen. He says that he will support you in this regard and that you can live with him when released.
22 The circumstances of your prior violent offending in 2006 when you were 18, were that you jumped in to defend your younger sister who was being attacked, and caused minor injury to her attacker. The violent offending in 2018 occurred in the context of your being drug affected and distressed at the prospect of not being reunited with your children. The victim was staying with you and was stealing from you. You confronted her and had an altercation which resulted in your pushing her over, again causing limited injury.
23 Your counsel submitted that a number of features place the objective gravity of your offending at the lower end of the range of armed robberies: it was spontaneous and unsophisticated; the weapon used was not a real taser, but only a torch-like item which could light up and make a noise, which you purchased over the internet for $20 and was not capable of causing injury; the value of items stolen was modest; there was no concealment; you acted alone; and the period during which the victim was under threat was very short.
24 In relation to the theft of the car and the unlawful assault on Marshall, your counsel noted that you had permission to be in the car. Your instructions were that you had been driving around for about ten hours at Marshall’s insistence to look for drugs to share; that you argued outside the car; that you felt threatened by Marshall and struck her with the glass. It was also noted that she required no medical treatment. It was conceded that you did not have permission to drive off and leave her behind, but that you feared that she was going to drive off and leave you there. It was noted that you did text Meloury to arrange to return the car, but this did not eventuate because you learned the car had been reported as stolen. It was submitted that in the light of Mr Hanley’s report, your moral culpability for the assault was somewhat diminished by the impact of your post-traumatic stress disorder and borderline personality disorder on your behaviour at that time.
25 It was submitted that the thefts of petrol were spontaneous and reflected your erratic behaviour at the time. It was submitted that the drugs found in your possession were for personal use, and that you were injecting the drug in small portions to avoid overdosing. It was submitted that the firearm found in the room you were staying in was not yours.
26 It was submitted that you contacted police on 6 August 2018 to make arrangements to hand yourself in, but that this was overtaken by events when the search warrant was executed.
27 Although your counsel did not rely on Verdins[4] principles per se, she relied on the report of Mr Hanley to demonstrate that you were in personal crisis at the time of offending. In relation to the assault, Mr Hanley considered that your judgment was affected by your mental illness and personality disorder and by your abuse of drugs. It was submitted that you had no prior history of armed robbery and no history of using weapons to steal, and that this offence was out of character for you.
[4]R v Verdins (2007) 16 VR 269.
28 Your counsel noted that while in prison you have been receiving medication for anxiety and depression, and been receiving counselling from WestCASA. However, she indicated that you are experiencing distressing post-traumatic stress disorder symptoms and are currently not receiving treatment for those nor any treatment for your borderline personality disorder. For this reason you are less able than other inmates to navigate the hostility of fellow inmates. You have been involved in four disputes with other women and have been put in isolation on occasions.
29 This is your first time in custody and your counsel tendered a large bundle of certificates attesting to the courses you have attended, which I have read. These include certificates in reading, literacy, numeracy, cleaning, general education, construction, kitchen operations, managing emotions, managing loss, domestic violence program, Alcoholics Anonymous, Ice Effects, and three self-reflection Atlas modules.
30 Your counsel also tendered a letter[5] you wrote to the Court explaining that your offending occurred in the context of our being severely drug affected. You expressed deep remorse for your offending, and apologised to any persons directly affected by your behaviour. You said that you have been working hard during your time in prison to attend programs to deal with your drug and alcohol and psychological issues and are determined to continue your rehabilitation once released.
[5]Exhibit E.
31 Your counsel relied on your background of hardship, the context of the offending outlined above, your plea of guilty at the earliest opportunity; your expressions of remorse, the work you have been doing in prison to address your significant mental health, behavioural and drug and alcohol issues; and your determination to succeed in your rehabilitation in order to be reunited with your children. She conceded that the gravity of offending calls for an immediate sentence of imprisonment, but sought to minimise its length.
32 Counsel for the prosecution submitted that there was no evidence that Marshall was being aggressive at the time of the assault. It was submitted that even if the so-called taser was not capable of emitting an electrical charge, it was wielded as a weapon. It was noted that upon your arrest you gave a false name and said that the so-called taser was not yours and that this conduct was not consistent with your being cooperative. The prosecution accepted the opinion of Mr Hanley that your condition was likely to deteriorate in custody, although counsel stated that there was no material that your condition had deteriorated in prison in the seven months to date. In relation to disposition, the prosecution submitted that your offending warranted the imposition of a term of imprisonment with a non-parole period.
Sentencing Reasons
33 The basic purposes for which a court may impose a sentence are: denunciation; just punishment; general and specific deterrence; and protection of the community. In sentencing you I must have regard to a range of matters, including: the seriousness of your offending; your culpability for it; and your personal circumstances. I am required to balance the interests of the community in denouncing and punishing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated into society. In sentencing you, I have had regard to current sentencing practice.
34 I turn first to the gravity of the offending. I consider that the offending, the subject of charges 2, 4 and 5, lie at the least serious end of the sentencing spectrum. The theft of the car and the assault with a weapon is more serious offending, but I take into account that it was spontaneous, partly mediated by your impaired judgment flowing from your post-traumatic stress disorder and your borderline personality disorder, although exacerbated by your drug abuse at the time, and did not occasion particular injury to the victim. The armed robbery you committed is the most serious of your offending, as it carries a maximum penalty of 25 years' imprisonment and is aggravated by the fact that it was committed whilst you were on bail.[6] I accept that it was spontaneous, committed alone in the context of your psychological difficulties and during a period of significant drug abuse, and that the brandishing and activation of the so-called Taser was very short, and that no injury was caused to the victim. However, it was committed in daylight against a worker going about their daily business and must have been a terrifying experience, albeit short-lived.
[6]Bail having been granted on 18 April 2018.
35 I accept the matters put in mitigation on your behalf. Your early plea of guilty shows that you have taken responsibility for your offending and has saved the court the time and expense of a jury trial. You have expressed sincere remorse to Mr Hanley when he assessed you, and to the Court in your recent letter. You have had a very challenging life, and it is to your credit that you were able to complete your secondary education in the face of such domestic instability. It is encouraging for your prospects of rehabilitation that you are no longer involved in an abusive domestic relationship with your former partner, that you have used your time in prison very effectively to undertake as many relevant courses as possible, and that you are highly motivated to regain custody of your children. I acknowledge that you have the support of your father, some friends and a neighbour in those future endeavours.
36 I also acknowledge that this is your first time in custody. It is clear from the altercations that you have already had with inmates that you are likely to find prison very challenging due to your borderline personality disorder and your post-traumatic stress disorder, and I accept Mr Hanley’s assessment that your mental health is likely to deteriorate while you are in prison.
37 In all the circumstances, I propose to sentence you as follows. Would you please stand.
38
On Charge 1, theft, you are sentenced to one month's imprisonment. On summary Charge 3, assault with a weapon, you are sentenced to five months’ imprisonment. On Charge 2, theft, you are sentenced to one month's imprisonment. On Charge 3, armed robbery, you are sentenced to two years and 6 months’ imprisonment. This is the base sentence. On summary
Charge 12, commit indictable offence while on bail, you are sentenced to three months’ imprisonment. On Charge 4, prohibited person possess firearm, you are sentenced to one month's imprisonment. On Charge 5, possess methylamphetamine, you are sentenced to one month's imprisonment. I direct that three months of the sentence on summary Charge 3 be served cumulatively upon the sentence imposed on Charge 3. The total effective sentence is one of two years and nine months’ imprisonment. I impose a non-parole period of two years.
39 I declare that you have served, up to, but not including today, 247 days of pre-sentence detention and order that such declaration be entered into the court’s records and that this period be deducted administratively from the term of imprisonment imposed today.
40 I indicate, pursuant to s 6AAA of the Sentencing Act, that but for your plea of guilty I would have sentenced you to a term of imprisonment of three years and eight months with a non-parole period of two years and nine months.
41 The prosecution has also sought an order pursuant to s 464ZF of the Crimes Act in relation to the taking of a forensic sample, and you do not oppose that order being made. I will make the order because you do not oppose it and because having regard to the nature of the offending it is in the interests of justice for the order to be made.
42 In making this order, I need to inform you, Ms Oats, that I am signing this order that requires you to undertake a forensic procedure for the taking of a scraping from the mouth and/or a blood sample until a sample of sufficient standard is obtained for placement on the database. I advise you that if at the time the request the sample is made you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police, then the sample to be taken will be a blood sample, and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand?
43 ACCUSED: Yes.
44 HER HONOUR: The Prosecution has also sought a forfeiture order in relation to a number of items seized from you, and two disposal orders and your counsel you have consented to the making of those orders which I will make today. Are there any other matters I need to address?
45 COUNSEL: No, Your Honour.
46 HER HONOUR: No, all right. We will make those orders in chambers.
47 MS LACY: Thank you.
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