Director of Public Prosecutions v Parker (a pseudonym)

[2024] VCC 1802

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEELAN PARKER (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2024, 6 November 2024
DATE OF SENTENCE:	11 November 2024
CASE MAY BE CITED AS:	DPP v Parker (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1802

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:             Sentence – theft – attempted theft – armed robbery – aggravated       
  burglary – contravention of order intending to cause harm or fear of
    guilty plea –  rehabilitation – Drug and Alcohol Treatment Court    
Legislation Cited:     Sentencing Act 1991 (Vic) ss 6AAA and 18(4)
Sentence:                 Drug and Alcohol Treatment Order, custodial part of 39 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Tamburro	Office of Public Prosecutions
For the Accused	Ms A. Sharpley	Robinson Gill

HIS HONOUR:

1Keelan Parker,[1] you have pleaded guilty to:

(i)16 charges of theft (charges 1 -3, 5-14, 15, 17 and 19) for each of which the maximum penalty is 10 years imprisonment;

(ii)2 charges of attempted theft (charges 4 and 16) for each of which the maximum penalty is 5 years imprisonment;

(iii)1 charge of armed robbery (charge 18) for which the maximum penalty is 25 years imprisonment.

(iv)1 charge of aggravated burglary (charge 20) for which the maximum penalty is 25 years imprisonment.

(v)1 charge of contravening a family violence intervention order intending to cause harm or fear for safety (charge 21), for which the maximum penalty is 5 years imprisonment.

[1] A pseudonym.

2Tendered as Exhibit 1 on the Determination Hearing was a Summary of the Prosecution Opening which set out the agreed facts of your offending. In brief, the circumstances of your offending were as follows:

3Charges 1 – 19 concern 19 attendances at supermarkets in suburban Melbourne over a four week period between 25 April 2023 and 28 May 2023. Save for charge 17 (theft of five electric toothbrushes) and charge 19 (theft of batteries), they all concern the thefts and in charge 18, the robbery, of cigarettes. The total value of cigarettes taken by you was AUD 9189.34

4Your modus was the same on each occasion. You would approach the service counter and request cigarettes and when cigarette cartons were handed to you, you would take them and leave the store without paying. Over the course of your offending, your presentation became more agitated, and your response to any challenge became more aggressive. In charge 15 you swung punches at the in-store security officer who was trying to apprehend you. The offending escalated to the armed robbery in Charge 18 where you had brought with you a hammer with which you threatened a security officer and that you had with you when you moved behind the counter demanding the key from the staff member, Ms Vella, who had recognised you from an earlier incident.

5Charge 20 and 21 concern family violence offending committed against your former wife, Ms Fox,[2] and in the presence of your children. In April 2023 a full no contact Family Violence Intervention Order was put in place with you as the respondent, and Ms Fox and the two children as the Affected Family Members. On 25 April 2023 you were bailed for contravening this order. You failed to surrender to that bail and on 8 May 2023 a bench warrant was issued. When arrested on 15 May 2023 on that warrant you were, completely inexplicably, bailed by police to attend Sunshine Magistrates Court in November 2023.

[2] A pseudonym.

6On 1 June 2023, at around 7 pm, Ms Fox returned home to find you waiting on the nature strip. You asked to enter her home to visit your daughter, and she refused. You nonetheless followed her inside. After seeing your daughter, you were asked to leave but again refused. You stayed in the house for over an hour playing with your daughter. Ms Fox noticed you becoming agitated and became concerned for her safety. She took her daughter into her bedroom and locked the door behind her. She texted her son who was in his room not to come out. You asked her to take you to the station. For 10 minutes you attempted to break the door down, punching the door, while Ms Fox attempted to hold the door shut. You managed to create a gap between the wall and the door and pushed a knife through. Eventually the latch broke and Ms Fox was the only thing holding the door closed. You stated ‘fuck you, give me the car keys’. You demanded her phone, which she gave to you, after managing to text her son to call the police. You then left the property. Police, having been called,  arrested you in a nearby street in possession of two knives, one of which was a large meat cleaver.

7You were deemed unfit for interview, charged and remanded.

8The matter was committed to the County Court with a plea of not guilty. It resolved on the 13 May 2024 and on the 17 June 2024 was adjourned into the County Court Drug and Alcohol Treatment Court for a Determination Hearing which eventually concluded on the 6 November 20204. This was not an early plea.

9On the 25 June 2024, I bailed you to Odyssey House – a bed having become available. You remained there for three months.

10Exhibit 3 on the Determination was a Case Management assessment report from Lauren Rimmer dated 4 October 2024. Exhibit 4 was a further Case Management  assessment report from Erika Beard Family Violence Social Support Worker, dated 14 October 2024. Exhibit 5 was a Clinical Advisor assessment report from Ms Krishna Jones dated 30 September 2024. I also received a psychological report from Ms Rebecca Fakhri (Exhibit7PV) dated 2 August 2024; two personal references (Exhibit 9 and 10 PV), an individual treatment plan and your criminal record. Taken together these documents set out your personal narrative and your mental health, forensic and substance use history and, where appropriate, made recommendations for treatment.

Personal Circumstances

11You were born in New Zealand in January 1984 the youngest in a sibship of 3, and are now 40 years of age, 39 at the time of this offending. Your parents were migrants, part of the Vietnamese diaspora after the civil war in which your father served. When 6 months old your family moved to Australia and you were raised firstly in public housing in Footscray, and then from aged 8 in your family’s home in Sunshine. 

12You report a childhood of significant adversity. Both your parents abused heroin. Your father was a violent alcoholic and a perpetrator of family violence, of which you were both a witness and a victim. Both your parents have passed: your mother when you were 18 from bronchopneumonia, your father when you were 25 from sclerosis of the liver. Your sister fatally overdosed on heroin at the age of 25. You describe a difficult relationship with your brother who has had no engagement with either the criminal justice system nor substance abuse. Since your father’s passing you have had various homes around Melbourne, rented, purchased and then lost due to business misfortune. At the time of this offending you were essentially homeless.

13You completed year 12, achieving “average grades” in your VCE. You worked for the family business, printing and clothing manufacturing, whilst at school and then full time until the business went bankrupt in 2006. Between 2009 and 2020 you worked for your brother’s laundry business, and after more than 10 years you became a part owner of the company. This stability was short-lived as an employee stole $100,000 worth of inventory, a major contract was lost, relations with your brother soured, and your drug use escalated to a point where, in 2022, your brother asked you to leave the business. You lost your home, your role, became unemployed and homeless, and your substance use took over your life.

14As to your substance use, you first used alcohol when aged 14, quickly becoming a daily drinker and drinking to blackout. You started smoking cannabis at age 15 and using recreational party drugs from the age of 16. You began using methamphetamine at the time of your father’s passing, when a “friend” offered you some to “calm you down”. You immediately became a daily user, using around a gram a day right up until your arrest. You report staying up for days on end. You have used cocaine to excess and illicit benzodiazepines. You first tried heroin in your early 30s and that immediately became a problematic drug for you, peaking at 2 grams a day, at the time of your arrest.

15You have had two significant relationships both of which broke down as a result of your substance use.  Firstly with Vanessa,[3] from the age of 18 – 28, and then with Ms Fox, your wife, whom you met in 2012 in Vietnam, and who is the victim of the family violence offending (charges 16 and 17). You separated in around 2021.You and Ms Fox have a daughter, aged 10 and have shared parenting of Ms Fox’s son from a previous relationship.  Since leaving residential rehabilitation you have apparently re-established an amicable relationship with Ms Fox enabling you to co-parent both of the children.

[3] A pseudonym.

16Significantly, your prior criminal matters did not commence until 2017 comprising low level offending: vehicle registration offences, possession of DOD and a controlled weapon, one charge of unlawful assault and one charge of theft.  I note that you have only received financial and licence penalties. Until your arrest on these matters you had not spent a day in custody. Your criminal record I find is relevant only in that it demonstrates that your long-established work record has enabled you to function in the community, notwithstanding your chronic active substance use, and speaks well for your prospects for rehabilitation.

17You recall no past formal mental health diagnoses, but records show at least one admission to psychiatric care following a drug induced psychotic episode. You report that any manifest psychosis is always in the context of heavy drug use and consequent lack of sleep (as in charges 20 and 21). Ms Fahkri (Exhibit 7PV) indicated the following diagnoses: PTSD; adjustment disorder; a major depressive disorder; and substance-induced psychosis. You also admit periods of extreme anxiety.

18Ms Jones (Exhibit 5) noted recovery capital consisting in your fear of relapsing into psychosis, growing insight into the relationship between your substance use and offending, your strong work history; your willingness to accept treatment and your resolve to sustain abstinence. Your mental health would be an ongoing challenge if left untreated. Your anxiety has been a barrier to successful completion of residential AOD treatment.  I do however note that you managed to remain at Odyssey House for a period of some three months before being exited for not bringing another resident’s illicit drug use to the attention of the community. You have also attended other episodes of residential and day treatment. You have always relapsed when back in the community, although in 2016 you managed a period of eight months of abstinence after an earlier residential treatment.

19Ms Jones was of the opinion that you would have satisfied diagnostic criteria for stimulant use disorder at the time of the offending, severe in nature and currently in sustained remission with the assistance of pharmacotherapy. She was also satisfied that the treatment and supervision component of a DATO would be an appropriate intervention to address your substance use disorder, and that there were no significant concerns regarding your capacity to participate in such an order.

20Of the index offending you reported to Ms Rimmer (Exhibit 3) experiencing psychosis on a daily basis. Your head wasn’t right. You exchanged the stolen cigarettes for methamphetamine. Of charges 20 and 21 you stated that you did not know at the time how important an FVIO was, and that you could not remember the specifics of the offending as your memory was poor due to being heavily substance affected at the time. Your minimisation of the gravity of the Family Violence offending was of concern. Ms Rimmer noted your personal history, modest criminal history, your motivation and the potential of intergenerational trauma in her finding of your suitability for a DATO, which was expressly subject to Ms Beard’s assessment

21Ms Beard’s report (Exhibit 4) noted your difficulty in being self-reflective and in identifying future risks. You ascribed all of the behaviour to your methamphetamine use and not relevant to your current circumstances as you were now abstinent and were happily co-parenting with Ms Fox with whom you were on excellent terms. (He) even went so far as saying that if he did start using drugs again, he would not have concerns that his behaviour may deteriorate. Whilst finding you suitable for a DATO she noted: robust risk assessments and management plans are going to be dependent on his understanding of both the positive and negative emotions he experiences and how to safely manage them.

22The particular purposes of a DATO are[4]:

(i)to facilitate the rehabilitation of the participant (offender) by providing a judicially-supervised, therapeutically-oriented, integrated drug and alcohol treatment and supervision regime;

(ii)to take account of the offender participant’s drug or alcohol dependency;

(iii)to reduce the level of criminal activity associated with drug or alcohol dependency;

(iv)to reduce the participant’s health risks associated with drug or alcohol dependency.

[4] S18X(1) Sentencing Act

23Ms Sharpley counsel on your behalf submitted that such a disposition was an appropriate disposition having regard to both to your circumstances and the circumstances of this offending.

24Mr Tamburro on behalf of the Director urged caution. Having regard to the gravity of the offending there were live issues as to the court’s sentencing powers. Further the nature of the offending in charges 20 and 21 raised issues as to the appropriateness of an order and management of risk.

Objective gravity

25Family Violence offending will always be regarded as serious offending by the courts and general deterrence will always have a paramount role to play. FVIO’s are part of a process designed to protect women from perpetrators of Family Violence. They are purposive court orders and must be obeyed. That message must be understood and a clear lesson must be learned: men who breach FVIO’s will go to prison. Whilst on bail for breaching the existing FVIO you made a choice to turn up at your former wife’s home in deliberate and flagrant breach of the order. You were also substance affected and you fully knew the impact of methamphetamine use upon your mental well-being and the risk of a psychotic episode. Despite your wife’s pleas to leave her property you refused. Your reason was that you wanted to see your daughter. Quite how you reconcile such paternal concern with your actions in seeking to break down the door of her mother’s room armed with a knife, in which you full well knew that she was hiding from you is difficult to comprehend. Your daughter must have been terrified of you, her father. I find little evidence of remorse over and above your plea of guilty. Whilst I am told that you are currently reconciled with Ms Fox and your children, you demonstrate no insight into your behaviour nor any understanding of the drivers of your Family Violence offending.  This offending is aggravated by being committed by you whilst on bail for similar contraventions of the FVIO.

26Over four weeks you used local supermarkets as an income stream; stealing cigarettes worth in excess of $9,000 to be converted into drugs. This offending was persistent, planned and determined. It culminated in a the robbery of a local supermarket (charge 18). Your offending was driven by your own needs, regardless of its impact upon shop workers and the community at large, whose sense of well-being is undermined by such offending. You knew full well what you were doing and I find you knew full well that what you were doing was wrong. You had ample opportunity to cease your conduct but did not. Substance dependence may be the context for the offending but it cannot excuse it. Your moral culpability for this offending is high.

General principles

27Mr Parker in sentencing you I must have regard to a range of different factors. I must give effect to the principal of general deterrence that is, to deter others from behaving as you did, and to specific deterrence, that is to deter you from ever repeating such offending. I must consider the need to protect the community. I must express the community’s denunciation of your conduct.  I must take into account the effect of your crimes upon the community and Ms Fox. I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty. I must ensure as far as possible that you are rehabilitated and reintegrated into society.  In short, I must try to balance your personal circumstances with the circumstances of your offending. I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.

28These sentencing purposes as identified in S 5(1) Sentencing Act are all still enlivened in your case. Clearly general and specific deterrence, denunciation, just punishment and protection of the community from your continued offending all loom large in the sentencing process. However if the court is considering making a DATO then your rehabilitation and the protection of the community, achieved through your rehabilitation, have greater importance than those other sentencing purposes.[5]

[5] S 18X(2) Sentencing Act

Findings

29On all the material in front of me I am satisfied on the balance of probabilities that:

(i)you have a poly-substance dependency

(ii)that your dependency contributed to the commission of the offending in front of me

(iii)that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years and

(iv)that you are not charged with offending nor are you subject to any order that would make you ineligible for a DATO. 

(v)that it is appropriate in all the circumstances to make such an order

30As to the issue of appropriateness, legitimate concerns were raised as to the court’s capacity to manage your risk. I heard evidence from Ms Fox as to the current relationship between you, and as to how and whether she would respond should you lapse into drug use, or should she feel concerned for her safety or that of her children. She was not an entirely persuasive witness. However, I am on balance satisfied that she would be able to assert her interests, manage any safety concerns and that, combined with strict order conditions, the risks of further Family Violence offending could be sufficiently managed. 

Reasons

31In so finding I have regard to:

·        Your plea of guilty, which although not an early plea, brings with it the utilitarian benefit of saving the community the time and expense of a trial and further, indicates a willingness to facilitate the course of justice.

·        Your trauma history and unaddressed issues of grief, loss and potentially unrecognised inter-generational trauma.

·        Your established work history notwithstanding your long-term substance use, and your lack of significant prior convictions.

·        The past periods of abstinence that you have achieved and the time that you have spent at residential rehabilitation.

·        The renewed family connection and family support that you now enjoy and the availability of your own accommodation in the community

·        The capacity to tailor an order and to respond quickly should you relapse.

Sentence

32On Charges 17 and 19: you are convicted and sentenced to an aggregate fine $1,000 fine, referred to Fines Victoria

33Charges 1- 16, 18, 20 and 21: you are convicted and placed upon a Drug and Alcohol Treatment Order (DATO).

34A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.

35The core conditions, which are that:

(a)   you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;

(b)   you must attend Drug Court when required by the Court to do so; 

(c)   you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed; 

(d)   you must report to and accept visits from members of the Drug Court;

(e)   you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;

(f)    you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;

(g)   you are not to leave Victoria without the permission of the Drug Court; and

(h)   you are to obey all lawful instructions from the Drug Court Team. 

36The core conditions will operate for 24 months, or until further order.

37The program conditions, which are that you must: 

(a)   Comply with the Individual Treatment Plan dated 8 November 2024 and signed by you on 11 November 2024 submit for drug and alcohol testing AS DIRECTED;

(b)   submit to detoxification or other treatment specified in the order AS DIRECTED;

(c)   attend vocational, educational and employment programs AS DIRECTED;

(d)   submit to medical, psychiatric and psychological treatments AS DIRECTED;

(e)   reside at [omitted] for until further order;

(f)    comply with a curfew that you remain at [omitted] between the hours of 9:00 PM and 6:00 AM;

(g)   must not use a drug of dependence without lawful authorisation;

(h)   abstain from alcohol;

(i)    must only have one mobile phone, and inform the Drug and Alcohol Treatment Court if you change your phone or phone number and reasons for the change;

(j)    must only access the internet through one device, which is nominated within 7 days, and inform the Drug and Alcohol Treatment Court if you change devices and reasons for the change;

(k)   must allow a designated Drug and Alcohol Treatment Court officer to view upon request at any time your internet search history and applications

(l)    must not delete internet search history or any applications without express prior permission of the Drug and Alcohol Treatment Court Team;

(m)     Not to have contact by any means with [omitted], when having taken without lawful authorisation, any drug of dependence, or when having consumed alcohol.

38These program conditions will operate for two years, or until further order. 

39The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment of 39 months. That is made up as follows:

·        Charges 1 - 16: aggregate sentence of 11 months

·        Charge 18: 15 months

·        Charge 20: 2 years 4 months

·        Charge 21: 10 months

40I Order 2 months of aggregate sentence on charges 1 – 16; 5 months of sentence on charge 18; and 4 months of sentence on charge 21, run cumulative to each other and cumulative to the sentence on charge 20.

41This Makes a Total Effective Sentence of 3 years and 3 months

42Pursuant to s 6AAA of the Sentencing Act, had you not pleaded guilty you would have been sentenced to a total effective sentence of 4 years and 4 months, with a non-parole period of 3 years and 2 months.

43Pursuant to s 18(4) of the Sentencing Act 1991, I declare that Keelan Parker has served 392 days of pre-sentence detention.

44Now, you are also at this point waiving all rights of confidentiality of communications between the Drug Court on the one hand and on the other hand, all treatment providers, all Government agencies, authorities and Departments.  Do you understand that, Mr Parker?

45OFFENDER:  Yes

46Do you consent to being placed on a drug and alcohol treatment order?

47OFFENDER:  Yes I do, Your Honour.