Director of Public Prosecutions v Patel

[2016] VCC 416

IN THE COUNTY COURT OF VICTORIA Revised
 Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-02061

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARLEE ELIZABETH PATEL

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 April 2016
CASE MAY BE CITED AS:	DPP v Patel
MEDIUM NEUTRAL CITATION:	[2016] VCC 416

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Batten
For the Offender	Ms Poulter

HIS HONOUR: 

1Marlee Elizabeth Patel, you have pleaded guilty to an indictment charging you with an offence of armed robbery, on 10 June 2015.

2You have admitted a number of prior court appearances and criminal convictions.

3The prosecution has tendered and relied upon a summary of prosecution opening, which is Exhibit A on the plea hearing and I incorporate that document into these reasons for sentence in its entirety.

4The summary describes an armed robbery which occurred in the early hours of the morning of 10 June 2015, at a bakery at The Basin at Mountain Highway.  You, along with Mr Green, participated in that armed robbery which can only be described as a serious case of armed robbery, involving the use of a firearm and the putting in fear of a number of employees of the bakery.  You participated in that event. You did have opportunities to desist from participating, although I take into account the concessions made by the prosecution as to the circumstances in which you became involved in the offending conduct, fearing it seems repercussions from Mr Green, both in terms of physical harm to yourself, but also prospective physical harm to your children.

5Mr Green is facing a number of other armed robbery charges and is a person who has a capacity for violence which supports the propositions that you made in your admissions to police and indeed in the witness statement that you made on 14 September 2015.

6Offences of armed robbery are to be regarded as very serious offences indeed.  They carry a maximum term of imprisonment of 25 years.  Where a firearm is involved they are particularly serious.  Where persons go in disguise they go as persons who not only seek to protect themselves from identification but also to menace those that are the victims of their robbery.  It is axiomatic that offences of that kind leave a lasting psychological effect upon victims, particularly those that are directly threatened with violence.

7The prosecution also relied upon a victim impact statement from one of the victims, that is Exhibit B.  It was not read to the court, but it indicates the lasting psychological effects to that particular individual and it may reasonably be inferred that not dissimilar effects will have been felt by others who were present during the course of that armed robbery.

8Turning to matters personal to you, your counsel provided me with an outline of submissions, which is Exhibit 1; a report dated 6 April 2016 from Gina Cidoni, psychologist, which is Exhibit 2; a letter from Substance Use Recovery, dated 8 April 2016, along with a witness statement which I have already referred to which you made to the police on 14 September 2015; and a bundle of documents which include a letter from the Royal Children's Hospital, dated 5 April 2016; a letter from psychologist, Lawrence Hayden, dated 6 April 2016; a letter from the Department of Health and Human Services, dated 31 March 2016; together with a number of laboratory reports showing that by and large your urine samples were clean, subject to what I am is told is prescribed Benzodiazepam use during the period from October of last year through to March of this year.

9You have pleaded guilty.  You admitted the offences to police.  You have co-operated with the police.  You have provided a statement and you have gone into the witness box and undertaken on oath to give evidence in accordance with that statement at the pending committal proceedings against Mr Green and any other subsequent proceedings.  You have undertaken to give truthful evidence in accordance with that statement.  All of those matters are very much in your favour.

10I am also told that you are ashamed, that you have visions of the eyes of your victims from time to time, which is said to be a reflection of the degree of your remorse.  You claim essentially to have been under a form of duress during the course of your offending conduct and that you were in fear for yourself and your children.

11It seems to me, in the circumstances, the prosecution having determined to put you forward as a witness of truth and accepting, I think realistically as they must, that your witness statement is to be regarded as a truthful account of your involvement in these offences, that I can take a very different view about your moral culpability than would otherwise appear to have been the case from the bare facts of your participation in this serious offence.

12As the prosecution rightly point out, offences of armed robbery, particularly offences of a serious kind such as this, would ordinarily attract a very substantial term of imprisonment, particularly in one who has a bad prior criminal history, as you do, although I note that your offences are largely offences of dishonesty rather than offences involving armed robbery or offences of violence.

13Although ordinarily justice would demand a very substantial term of imprisonment, the nature of your involvement in the offence reduces your moral culpability to a level where it is appropriate for me to, and was appropriate for me to have considered a community corrections order, whether that be with or without a term of imprisonment.  Ordinarily I would have regarded this offending as being outside the range of offending which would have permitted use of a community corrections order as any part of an appropriate sentencing order of this case.

14Another important factor I think that I need to take into account, is that you have in recent years done a good deal to sort yourself out.  Certainly since you were arrested for this matter you have, it appears, tried very hard to set about your rehabilitation.  You have tried very hard to present yourself as a responsible parent, somebody who the Department of Human Services can rely upon as a prospective full time parent for your younger child at least, your youngest child.  That may well be part of the reason, but also perhaps realisation that you are facing or were facing the prospect of a substantial term of imprisonment has focused your mind on your own rehabilitation.  The efforts you have made towards rehabilitating yourself need, I think, to be recognised in determining an appropriate sentence in your case.

15You have, according to the reports, symptoms of post-traumatic stress disorder.  You have a low level of intellectual capacity and you have had a very substantial drug problem over many years.

16The criminal record that you have seems to me to be entirely consistent with somebody who has been dogged by the misuse of drugs and it is much to your credit I think that you now have tried to address that issue.  You have prospective responsibilities ahead of you towards your child.  I think it is very much in the interests of the community that you be rehabilitated.

17The fact that you have not been in any or any substantial trouble with criminal offending for a number of years also I think leads me to conclude that promoting your rehabilitation is something that is worthwhile in terms of long term community protection and that it is very much in the interests of justice that rehabilitation in your case be given an appropriate degree of weight.

18The question I have to ask myself is whether all of these factors combine to, first of all, reduce your moral culpability to a level which would encompass such an order and, secondly, whether it is appropriate in all the circumstances to impose a community corrections order without imposing a term of imprisonment in conjunction with that order.

19I have had you assessed.  The assessment, which does not surprise me, is that you are high risk of re-offending. You have breached orders in the past, there is I think a real risk that you will breach this order. But nevertheless I think if you have a chance of beating your drug habit and leading a law-abiding life then probably the factors that are present at the moment give you and the community its best chance.  I think that I would be entirely justified in imposing a term of imprisonment along with a community corrections order and indeed it may be that my decision not to do so would be regarded by many as being unduly lenient.  However, I think it is properly to be recognised that a community corrections order does have a considerable punitive element to it and I intend to ensure that you have a punitive element attached to this order.

20What I intend to do is to put you on a community corrections order for a period of three years.  You would be required to complete a total of 300 hours of unpaid community work.  I would be prepared to offset 150 of those hours against satisfactorily completed hours of rehabilitation, that is for drug treatment, mental health issues and programs to reduce your risk of re-offending.  You would be under the supervision of the Department of Corrections for the whole of that three year period. 

21You would realise that if you failed to comply with the terms of that order, not only does that constitute an offence punishable by up to three months' imprisonment, but you will be brought back to this court and resentenced on these matters.  It is inevitable, is it not, that if you were to be in breach of the order, you would have to face a term of imprisonment.  Unless you had a very good excuse indeed, that is the fate that waits for you if you do breach the order.  Of course you could breach the order by committing a further offence punishable by imprisonment during that three year period.  If you did that, you would be up for punishment for that offence or those offences as well as being in breach of the order and the consequences that I have just read out to you, or just alerted you to.

22It is not going to be all that easy.  It may seem a better option than going to gaol, but it will be difficult for you to complete that order.  It will interfere with your life.  There will be many times when you will be tempted not to turn up to appointments, but if you do that then you are placing yourself in jeopardy of a term of imprisonment.

23Are you willing to comply with the terms of the order in the terms that I have set out?

24OFFENDER:  Yes, Your Honour.

25HIS HONOUR:  You are?  All right.  I am ready to pass sentence upon you now then. 

26On the offence of armed robbery to which you have pleaded guilty, I convict you and sentence you to a community corrections order for a period of three years in the terms that I have just read out.  I will be asking you to sign that in a few moments.

27Had it not been for your plea of guilty to these offences, I would have sentenced you to a term of imprisonment of four years with a non-parole period of three years.  It goes without saying that had it not been for your undertaking to give evidence in accordance with the statement to which I have referred you would undoubtedly be serving a term of imprisonment today.

28I also make the orders for forfeiture and disposal of property in the terms of the draft orders for which I have been provided and I will sign those in just a moment.

29MR BATTEN:  Your Honour, it is a disposal order and a compensation order.

30HIS HONOUR:  A compensation order, sorry.  Compensation and disposal order, yes, in terms of the drafts for which I have been provided.

31Ms Poulter would you accompany my associate to your client to ensure that she understands what she is being asked to sign?

32MS POULTER:  Yes, sir.

33(Community corrections order signed and acknowledged.)

34(Compensation order signed and acknowledged.)

35(Disposal order signed and acknowledged.)

36HIS HONOUR:  Thank you.  All right, I have signed that order, it is now in place.  Your first obligation is to report to the Ringwood Community Correctional Services within two clear working days of today, so make sure you comply with that and get off to a good start, all right.  All right, thank you, you can leave the dock.

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