Director of Public Prosecutions v Pieper
[2023] VCC 2053
•3 November 2023
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01759
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATALIE PIEPER |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 26 June 2023 | |
DATE OF SENTENCE: | 3 November 2023 | |
CASE MAY BE CITED AS: | DPP v Pieper | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2053 | |
REASONS FOR SENTENCE
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Subject:CRIMNAL LAW - Sentencing
Catchwords: plea of guilty – armed robbery – theft – Bugmy principle – youth – mental health –PTSD - Verdins principles – good prospects of rehabilitation – protective factors - special reasons – non-custodial disposition – Worboyes principles
LegislationCited: s. 10A Sentencing Act
Cases Cited:R v Tran (2002) 4 VR 457 - Azzopardi v The Queen [2011] VSCA 372 – Newton v The Queen [2021] VSCA - Dabaja, Hussein v The King [2023] VSCA 209 - Peers v The Queen [2021] VSCA 264 - DPP v Herrmann [2019] VSC 694 - Andrew Apineru v The Queen [2018] VSCA 206
Sentence: Convicted and sentenced to a Community Corrections Order for a period of 26 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Peter Pickering | Gabrielle Hersch |
| For the Accused | Katherine Rolfe | Amanda Meagher |
HER HONOUR:
1Natalie Pieper, you have pleaded guilty to one charge of armed robbery and one charge of theft.
Summary of offending
2The circumstances of your offending are outlined in the agreed summary of prosecution opening dated 7 October 2022 and marked as Exhibit A on the plea.
3I sentence you on the basis of the opening and the following represents only a brief summary.
4At the time of the offending, you were 18 years old.
5In the early morning on 10 of January 2022 your co-accused, Mr Tyson Smith-Anderson, drove his Ford Falcon sedan to the Woolworths Caltex Service Station located on Bridge Street East, Benalla.
6CCTV from the front of the console operator's building shows him driving, co-accused, Ms Chloe Burnside, sitting in the front passenger seat, and you and another female, who the police allege to be Ms Nicole Bevan sitting in the back seat of the vehicle.
7Mr Smith-Anderson retrieved a shotgun from the front seat and got out of the vehicle. You also got out.
8You and Mr Smith-Anderson then walked toward the Service Station building. Mr Smith-Anderson was carrying a black ‘Nike’ backpack and the shot gun. You were carrying a black bag.
9Ms Suzanne White was working alone at the time of the incident and observed Mr Smith-Anderson walking toward the store door with the firearm. Ms White pressed the duress alarm under the counter and on her lanyard.
10On entering the store Mr Smith-Anderson placed the bag he was carrying on the counter, held the firearm with two hands and told Ms White, ‘Give me cigarettes’. Ms White then started taking packets of cigarettes out of the cigarette cabinet and placing them on the counter. Mr Smith-Anderson and you started putting the cigarette packets into the bags you were both carrying. As Ms White was doing this she activated the alarm on her lanyard again.
11You then told Ms White, ‘Get the money out of the register’ and Ms White took the $10.00 and $5.00 notes out of the register and put them on the counter.
12Ms White then took the $1.00 and $2.00 coins out of the register and Mr Smith-Anderson took them while still holding the shot gun.
13Ms White heard a third voice yell, ‘We gotta go, let's go’, at which time you and your co-accused ran out of the Service Station and got into the vehicle which quickly drove away. Ms White wrote the number plate and colour of the vehicle down; called security and her manager and locked the door.
14During the armed robbery, $950.00 worth of cigarettes and cash was stolen.
15The vehicle then drove to another service station on Bridge Street, East Benalla, capturing the attention of the store owner, who wrote down the numberplate, as the occupants were acting suspiciously. Shortly after, the police observed Ms Burnside exit the front passenger side of the vehicle at the BP service station, Hume Freeway Glenrowan. Upon seeing police she re-entered the vehicle and the car drove off.
16At approximately 7.25AM, Mr Smith-Anderson was captured on CCTV driving into the APCO Service Station located at Roy Street, Wangaratta and parking next to a fuel bowser.
17At this time, Ms Burnside and Ms Bevan exited the vehicle. Ms Bevan put $55.23 worth of fuel into the vehicle. Mr Smith-Anderson then drove the vehicle away without paying for the fuel, parking behind the APCO Service Station while waiting for Ms Burnside to return. As Ms Burnside returned to the vehicle, police arrived on the scene, causing you and your co-offenders to flee.
18Police began pursuing Mr Smith-Anderson’s vehicle however ultimately called off the pursuit, having lost sight of it.
19You were arrested on the 24 February 2022 at your mother's address in Wodonga. At the time of your arrest, police seized your mobile phone. An analysis of your mobile phone revealed messages as outlined in the prosecution opening, including:
(a) At 11.40AM, several hours after the armed robbery, you sent a text message to Mr Smith-Anderson stating, ‘Do you wanna do something tonight as this morning wasn't interesting enough apparently’;
20Following your arrest, you were conveyed back to the Wodonga Police Station for interview. During your interview with police, you made full admissions, as outlined at pages five and six of the prosecution opening.
Victim impact
21Suzanne White provided a victim impact statement. She commences her statement on a reflective note, stating - ‘I am a lot better now than I was when this first happened … but it still effects my life in some way – each day.’[1] She outlines how your offending has affected her sense of safety and security; how it has impacted her sleep, ability to work, her health and her relationship with others, especially her partner. It has caused her to be more dependent on others for day-to-day things. She has experienced, and continues to experience, anxiety attacks and she has received some assistance from her counsellor with strategies to manage the effects of this crime. Your offending has also impacted on her simple enjoyment of life. She states: ‘before this happened, I would go visit friends, go out for coffee, for a meal etc but now I don’t. Before this happened, I enjoyed browsing the shops by myself, now I only go to a shop for a specific purpose and don’t spend any extra time looking around.’[2]
[1] Exhibit B: Victim Impact Statement of Suzanne White, dated 5 July 2022
[2] Exhibit B: Victim Impact Statement of Suzanne White, dated 5 July 2022
22In sentencing you I take into account the impact of your offending on your victim, Ms White.
Gravity of the offending
23Clearly, your offending was serious and there is no dispute between the parties about this. Its seriousness is underscored by the prescribed maximum sentence.
24Your Counsel, Ms Rolfe, quite properly, acknowledged, as relevant to an assessment of the objective gravity of your offending, that this occurred within the context of Ms White’s employment and that she was a ‘soft target.’ The use of a firearm is a matter of particular gravity. It clearly caused significant fear in Ms White. Your offending was also committed in company with your co-accused. These features cause this offending to fall within a category 2 offence and accordingly the court must impose a custodial sentence unless a relevant exception applies.
25I note that while it cannot be said that your offending was unplanned or spontaneous, I accept in all the circumstances that it was relatively unsophisticated.
26By your plea of guilty you accept your knowledge of the firearm and your complicity in its use. In my assessment, I take into account that you were not armed yourself and I regard this as a point of distinction in your role and that of your co-accused.
27Given the nature of your offending, punishment, denunciation, deterrence and community protection are paramount sentencing considerations.
28On your behalf it was submitted that in the lead up to your offending you had experienced a significant traumatic event. In December 2021 you were abducted by your father’s ex-partner. You were taken to two houses over the course of a day and assaulted and robbed. Following this incident you attended hospital in Albury with bruising. It is your understanding that your father’s ex-partner has pleaded guilty to these charges in NSW. It was within this context that you returned to using, and increased your use of methamphetamine. Psychologist Laura Fleming notes that you began to experience hypervigilance, nightmares, fear and low mood.[3] In the direct lead up to your offending you had not slept for at least 48 hours and had been smoking methamphetamine for several days.
[3] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [49]
29You were arrested on 24 February 2022 and remanded in custody. You were granted bail on 2 March 2022. There are 7 days pre-sentence detention available.
Plea of guilty
30You have pleaded guilty at an early opportunity, which entitles you to a substantial discount. By your plea of guilty you have indicated a willingness to facilitate the course of justice. You have also spared your victim, Ms White, from having to give evidence in Court. Your plea has considerable utilitarian value and will attract a heightened amelioration of sentence in accordance with the Worboyes principles. I also accept that your plea represents an acceptance of responsibility on your part and is indicative of remorse. I accept that you were immediately cooperative with police and made admissions to your offending and your involvement. Ms Fleming notes that there is no evidence, in your case, of a ‘criminal belief system’ and while there is a context to your offending you accept that your behaviour was entirely unacceptable.[4]
[4] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [93]
Personal circumstances
31Your personal circumstances were canvassed in the psychological report of Ms Fleming of 26 September 2023 and were also outlined by your Counsel, Ms Rolfe.
32In brief summary, you were raised in Wodonga with your parents and older brother.
33During your childhood, you were exposed to family violence and your parents separated when you were six years of age. There was instability in your circumstances, as suggested by your attendance at three different primary schools and your movements between living with your mother, father and at times friends. Throughout your childhood and adolescence there were numerous child safety notifications made to Child Protection. These variously related to your mothers declining mental health, diagnosis with schizophrenia and admission to inpatient units, your brother’s aggressive behaviour, your neglect and your further exposure to abuse and trauma. Your Counsel’s written submissions of 21 June 2023, at paragraph 22, specifically refers to this abuse.[5] Further, growing up you were exposed to the substance misuse of your father. He introduced you to methamphetamine. As Ms Fleming notes, from the records ‘it is clear [that you have] experienced a highly prejudicial childhood.’[6]
[5] Exhibit 1: Submissions of Defence Counsel, dated 21 June 2023 [22]
[6] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [22]
34You commenced Year 7 but ultimately left having experienced significant bullying. You later attempted to continue your schooling twice, enrolling in TAFE but felt like you couldn’t cope. You have only a limited work history, working casually as a stable hand and in delivery driving, but would like to obtain permanent employment.
35At around the age of 11 you started using cannabis, would run away from home and spend days with friends. As I have already noted, not long after you were later introduced to methylamphetamine within a family context.
36You have had multiple visits to Emergency Departments due to unintentional and intentional overdoses. Alarmingly, your first deliberate overdose occurred when you were still in primary school.
37At the age of 14 you began dating an 18-year-old and a year later you became pregnant with your daughter, giving birth to her when you were 16. During your pregnancy you were able to remain abstinent. Child Protection also became involved in your pregnancy as a result of the age difference and to ensure that the father was not involved. Following the birth of you daughter, you relapsed into substance use and began using cocaine and heroin for periods.
38Your daughter is now 4 years of age and currently resides with your maternal grandmother. There is currently no active involvement from child protection, and your grandmother currently offers your daughter stability. You visit her regularly and your ultimate goal is to have her return into your care.
Bugmy principles
39I accept that your childhood and adolescence has been marred and significantly affected by your exposure to domestic violence, abuse, neglect and parental mental illness and substance use. As Ms Fleming states in her report, ‘Chronic Family Violence (FV), a form of complex trauma, would have compromised [your] development, leading to heightened physiological and psychological stress reactivity, thereby undermining [your] capacity to respond functionally to stressors later in life. There was clear evidence in collateral of the impact of this on [your] mental health with references to mental health distress, lack of trust as well as early-onset substance use and suicide attempts.’[7] These experiences, along with the lack of positive role modelling in your life and your early disengagement from education have further limited your ‘prosocial structures, negatively impacted [your] life trajectory and undermined [your] emotional, cognitive and behavioural development.’[8]
[7] R Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [86]
[8] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [87]
40In your case valuable and powerful insights are also provided by the earlier protection reports that were tendered on your behalf. The December 2017 report notes that, as at that time, there had been 20 previous reports to Child Protection relating to you. The report chronicles past notifications and paints a very clear picture of the significant instability, abuse, trauma, and harm you were exposed to.[9]
[9] Exhibit 3: DHHS Protection Report and DHHS Disposition Report of Natalie Pieper, both dated 7 February 2018
41I accept that these matters are relevant to an assessment of your moral culpability. In general, I accept that is likely you are less culpable than an offender whose formative years have not been marred or impacted in this way.[10]
[10] Newton v The Queen [2021] VSCA [36]
Youth
42You are now 20 years of age and, as already noted, you were 18 at the time of your offending.
43The principles relevant to young offenders are well established. Courts have long recognised that young offenders ‘may lack the degree of insight, judgment and self-control that is possessed by an adult.’[11] As Ms Fleming points out in her report, ‘there is a significant difference in the maturity of young adults in their late adolescence and early adulthood compared to adult offenders. This is due to their neurological development continuing beyond this age, and psychological limitations such as impaired understanding of consequences, increased impulsiveness, disproportionate emotional arousal and deficiencies in decision-making abilities.’[12]
[11] Azzopardi v The Queen [2011] VSCA 372 (18 November 2011) [34].
[12] Sentencing Advisory Council, author. (2019). Rethinking Sentencing for Young Adult Offenders Retrieved April 27, 2023, from ‘the rehabilitation of young offenders is one of the great objectives of the criminal law’[13] and there is a real public interest in promoting this. Also, courts have recognised that incarceration of a young person may expose them to corrupting influences and ultimately have a detrimental effect, which have adverse flow-on consequences for the community. These principles also need to be considered against the seriousness of the offending and the importance of deterrence, denunciation and community protection.[14] In all the circumstances, I consider your youth to be an important sentencing consideration.
[13] R v Tran (2002) 4 VR 457, 462.
[14] Azzopardi v The Queen [2011] VSCA 372 (18 November 2011) [36]
Mental health
45You report a history of mental health treatment and some sporadic contact with services in the past. As already noted, there is a family history of mental illness. You are currently prescribed an antidepressant and benzodiazepine however your GP has advised that you need to a psychiatrist to continue this.
46On the assessment of Ms Fleming, you present with the following diagnosis: post-traumatic stress disorder (PTSD), stimulant use disorder, severe, in early remission and cannabis use disorder, moderate, in early remission. She opines that your current experiences of depression and anxiety, both within the severe range[15], are symptoms of your PTSD rather than separate diagnoses at this stage.[16] In respect of your PTSD, you also present with the following -
… intrusion symptoms, negative alternations to mood and cognitions, marked alterations in arousal and reactivity and use of avoidance strategies.[17]
[15] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [62]
[16] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [75]
[17] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [74]
47Ms Fleming states that your PTSD has been present since childhood.[18] She explains that PTSD symptoms can fluctuate in intensity and frequency. They are ‘particularly prone to exacerbation under situations of extreme stress or in comorbidity with other mental health issues or substance use’.[19]
[18] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [94]
[19] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [89]
Legislative provisions
48As I’ve already noted, the armed robbery is a category 2 offence. On your behalf it was submitted that pursuant to s 10A there are ‘special reasons’ justifying a departure from the legislative restrictions that apply. Specifically, it was submitted that ss 10A(2)(c)(i) and (ii) of the Act are enlivened. In the alternative, it was submitted that a combination of factors support the application of s 10A(2)(e). In respect of the latter, the prosecution accept that the matters relied upon on your behalf are sufficient to constitute substantial and compelling reasons that are exceptional and rare.
49Commencing with the non-contentious issue, on an evaluative assessment of the circumstances in your case, I accept that the requirements of s 10A(2)(e) are met in your case. My satisfaction, in brief, is based on the following combined circumstances, many of which have already been canvassed. Your youth; your PTSD dating back to childhood, and its symptomology; your experience of being kidnapped and assaulted in the preceding month which led to heightened distress and increased substance use at the time of your offending; your disadvantaged and impoverished childhood and your experience of multiple traumas throughout your life. I also accept that you are somebody who would be vulnerable in custody. All these circumstances combine in a most compelling way and I regard them as exceptional and rare.
50In coming to this conclusion I have had regard to the consideration of this provision by the higher Courts and also the factors as set out in s 10A(2A) and (2B).
51Given this finding, I intend only to briefly deal with the contentious sections, that is s 10A(2)(c)(i) and s 10A(2)(c)(ii). On your behalf it was submitted that while substance abuse was clearly a factor in relation to the offending (given you were substance effected at the time), intoxication was not a substantial cause of the impaired mental functioning and that your impaired mental functioning was causally linked to your offending and capable of invoking this provision.
52The prosecution submits that the evidence and circumstances do not support the submission of a clear causal nexus, given the impact of drug use on your offending. The prosecution accept that you may not have been thinking clearly or making calm and rational decisions.
53On the unchallenged evidence, I accept that your PTSD is entrenched and longstanding and that the symptoms fluctuate. I accept on the evidence that your experiences in the weeks leading up to your offending exacerbated your PTSD symptoms. Ms Fleming opines that this ‘heightened distress and seeking substances to numb [your] experiences.’[20] You reported to her that preceding the offending you were experiencing hypervigilance, nightmares, fear and low mood and feeling unsafe around many family and friends and were seeking comfort in the company of your co-accused. Ms Fleming states ‘‘the contribution of her mood disturbance is considered relevant to her general functioning and the offending conduct. Whilst depression does not directly cause an individual to offend, it is important to note that affective states can alter cognition and behaviour, thus impairing impulse control and decision-making, the ability to rationalise and consider alternative responses.[21] Your self-medication with methamphetamine during this period heightened your risk of engaging in impulsive and reckless behaviour, further impairing insight, decision-making and judgment, as well as worsening underlying mental health issues.[22] She concludes that ‘it is clear’ that you were experiencing impaired mental functioning during the commission of the offence. And further it is likely that you would have exerted more control over your behaviour had you not been struggling with the exacerbation of your PTSD symptomatology.[23]
[20] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [88]
[21] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [90]
[22] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [92]
[23] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [98]
54I accept that your illness is such that your impaired mental functioning existed independent of any intoxication.[24] Also, I am satisfied on the balance of probabilities that while intoxication is likely to have contributed to your poor decision making, your PTSD symptoms were causal in relation to the offending and substantially and materially reduce your culpability.
[24] Dabaja, Hussein v The King [2023] VSCA 209
55In respect of s 10A(2)(c)(i) your Counsel submits that the ongoing symptoms of your PTSD are of such degree, persistence and nature that they would result in you being subject to substantially and materially greater than the ordinary burden of imprisonment (as compared to an individual who does not experience such symptoms).
56In her report Ms Fleming opines that ‘imprisonment would likely weigh more heavily [on you] than a person without [your] conditions. [You are] unlikely to receive the specific treatment [you] require at an intensity or frequency to assist in symptom reduction for [your] PTSD.’[25] She considers that your mental health is unlikely to be adequately treated and that your mental health distress will continue until you are engaged in appropriate treatment. She also notes that you reported significant distress when in custody during your remand period. You reported low mood, nightmares and reexperiencing your past kidnapping and assault due to your exposure to others in custody with dysregulated behaviours. In all the circumstances she considers that imprisonment is likely to be more onerous for you than an individual without your conditions.[26] I appreciate that the hurdle set by subsection 10A(2)(i) is higher than that which attracts the principles in Verdins.[27]
[25] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [99]
[26] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [101]
[27] Peers v The Queen [2021] VSCA 264
57On a careful consideration of the evidence before me, and in light of your longstanding and complex medical conditions, I do accept, on balance, that because of your mental health you will be subject to a substantially and materially greater burden than a person who does not share your conditions.
Verdins principles
58For the reasons I have just canvassed, I accept that the Verdins principles have application in your case. In other words, I accept that prison will weigh more heavily on you then on a person in normal health and that there is a serious risk of imprisonment having a significant adverse effect on your health.
59I also accept pursuant to these principles that your moral culpability is reduced and that specific and general deterrence are moderated, though certainly they remain relevant.
Prospects of rehabilitation
60On Ms Fleming’s assessment you present currently as a low-moderate risk of recidivism and a number of areas, as identified in her report, need to be targeted to reduce potential future recidivism.[28] Her recommendations include specialised counselling, individual therapy and drug treatment.
[28] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [80]
61You are apparently now motivated to become substance free, telling Ms Fleming that your use has ‘caused so much damage and so much mess in my life.’[29] It seems clear that your prospects of rehabilitation depend on you maintaining your resolve to live a drug free life and obtain treatment and support.
[29] Exhibit 4: Report of Psychologist Laura Fleming, dated 26 September 2023 [41]
62Protective factors include your daughter, your recent attempts to change your substance use, and lack of continued or subsequent offending. The prosecution submitted that there may have been some issues with your compliance on bail, in terms of signing in during the earlier period, and on one more occasion more recently, as was discussed today. Your Counsel submits that there has been substantial and certainly recent compliance with bail conditions and importantly no allegations of re-offending while on bail.
63Currently you live with your mother in Wodonga and while your relationship has improved it is obviously complex and there have been some challenges. You have no contact with your father. Your brother resides with your maternal grandmother and you report your relationship has improved over time. You are in receipt of social security payments and are motivated to find some work.
64Following your offending you were placed on the Court Integrated Services Program from March 2022 until 27 September 2022, which I have also taken into account. The reports generally indicate an engagement on your behalf and a motivation to make changes in your life and to be a positive role model for your daughter.
65In my assessment of your prospects I also take into account your youth and that you have no prior criminal history. I accept your Counsel’s submission that your lack of prior history, when viewed against your complex and deprived background, suggests you are resilient and that you do have the capacity to make long-term positive change.
Sentencing principles
66The basic purpose for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation, denunciation and protection of the community. I have already referred to the moderation of some of these objectives.
67I note that there is some overlap between the Bugmy and Verdins principles given that the genesis of your PTSD appears to have been your deprived childhood. Ultimately I have distilled all of the relevant information to arrive at my overall finding as to what the just and appropriate sentence is in your case.[30]
[30] DPP v Herrmann [2019] VSC 694
68I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991 (Vic), where relevant to your case. I have had regard to the current sentencing practices for armed robbery. I have also had regard to the principles of proportionality, parsimony and totality.
69Further I have also considered the principle of parity. The ideal of equal justice requires identical outcomes in case that are relevantly identical, but different outcomes in cases that are different in relevant respects[31]. Your co-accused was sentenced on 1 September 2022 to a total effective period of 2 years in a youth justice centre. He was dealt with for a variety of charges, including the armed robbery. On this charge he was sentenced to 24 months. I consider that there are important differences in your role, as already canvassed. Also, while I understand that he too was young with no prior criminal history, I consider that there are unique and compelling circumstances in your case that justify and explain a difference in outcome.
[31] Andrew Apineru v The Queen [2018] VSCA 206, [32]
70In many respects, Ms Pieper, yours is a difficult sentencing exercise. There are compelling mitigating factors in your case but I must also reflect that your offending was serious and its impact on your victim long-lasting.
71Your counsel submits that a community corrections order alone is capable of meeting all of the relevant sentencing objectives. The prosecution submit that a combination sentence, that is one requiring you to serve additional time, is required or alternatively suggested a youth justice centre order. I had you assessed for a CCO and you were assessed as suitable. The MHARS report also recommended a mental health condition to be included, along with a review of your current anti-depressant and other medications by a private psychiatrist.
72Synthesising, that is considering all relevant matters, I consider that a CCO is capable of satisfying the requirements of just punishment. I have taken into account that you have served 7 days on remand and that this was your first experience of custody. Having regard to all the circumstances of your case and the principle of parsimony, I do not propose to sentence you to a term of imprisonment. I consider that a CCO is capable of both punishing and rehabilitating you simultaneously. It is intrinsically punitive and will operate punitively for every day of its duration. I also consider that it will optimise and consolidate your rehabilitate prospects and in turn, better protect the community.
Sentence
73Ms Pieper, should there be a problem or any difficulty of non-compliance, there will be ample capacity for the terms of any such order to be re-visited, including in breach proceedings, which would carry with it the prospect of re-sentencing.
74So, I have now arrived at the sentence that I am going to impose.
75On Charges 1 and 2 you are convicted, and you are sentenced to a CCO of 26 months, in other words, 2 years and 2 months, with the following conditions –
· Supervision
· Treatment and rehabilitation for drug use
· Treatment and rehabilitation for mental health
· Treatment and rehabilitation for program to reduce reoffending
· I am imposing a work condition of 180 hours, and I will offset 120 hours against treatment.
76I am also proposing, counsel – I don't think it is raised in the reports so I will just pause here to offer any opportunity if either of you wish to make a submission about it – I am proposing, on further reflection from when I had the report ordered, to at least initially commence with a judicial monitoring. I would like Ms Pieper before me, I am proposing to do that. Do either of you wish to be heard?
77MR PICKERING: No, Your Honour.
78MS ROLFE: No, Your Honour.
79HER HONOUR: Ms Pieper, I am going to also require that you attend before me for a monitoring of your community corrections order, okay? That is not necessarily to indicate or to direct that I would do it for the duration of the order, it is a fairly substantial order, but I certainly am proposing to have that condition, which will be that you need to attend for judicial monitoring as directed. We will set down the first date and then I will be updated on those occasions as to how you are going and subject to that I will be guided by those reports, and it may be that it does not need to continue for the whole duration of your order. But I am going to set that as a condition. Do you understand? It just allows this court to provide further oversight to this order.
80I will set a period of – it will be in the new year – I am proposing at this stage eight weeks. What does that bring us to? Not the first sitting week.
81VOICE (from body of court): The 29th of January.
82HER HONOUR: The 29th of January. So that date for judicial monitoring, that first date Ms Pieper is 29 January at 9.30. And it can occur by way of a link. You will be connected with Corrections and it might be that you attend in their office, you can work that out with them, but you are required to attend court.
83Are we going to have that order sent to Ms Pieper now? I think it might be the case that I should go through the conditions of that order then given she is not present in court. Or is somebody going to attend in that room now to have her sign it or will it be…?
84VOICE: (Indistinct words).
85HER HONOUR: I am sorry, I was just enquiring as to how that is to work and I believe that Ms Pieper will have to go to registry but perhaps enquiries can be made for her because she will need to sign this document.
86HER HONOUR: Having said that though, I need to ensure – before I do that – s6AAA declaration. But for Ms Pieper’s plea of guilty, I would have sentenced her to a term of some ten months' imprisonment with a lengthy community corrections order. Or I should indicate here, subject to an assessment report, I may have considered a Youth Justice order.
87Mr Pickering, were there any other ancillary orders sought here?
88MR PICKERING: I'm just looking at-
89HER HONOUR: I just can't recall.
90MR PICKERING: I'm looking at the original, which I wasn't involved in, but the original plea opening refers to ancillary orders of two compensation orders, one to Caltex and one to A-P-C-O which is in Wangaratta. They have already been filed, Your Honour, but I don't believe, from the information I have, they've been made as yet.
91HER HONOUR: Let me just bring them up and see. Just give me one moment. And, Ms Rolfe, you can see whether they've – I don't recall, it might have been – I can check my note that it was indicated they were unopposed, but you can perhaps let me know.
92MS ROLFE: Yes.
93HER HONOUR: Is that correct?
94MS ROLFE: There's no opposition, Your Honour, I just – I've only got a very brief memo from previous counsel so I can't say whether there was anything ordered on the last occasion.
95HER HONOUR: I'll just bring them up and have a look.
96MR PICKERING: So that Ms Pieper can hear it, there is an application for an order for $950 in favour of Caltex Benalla and a separate one for $55.23 to APCO Wangaratta.
97HER HONOUR: Yes, so the theft and the armed robbery obviously.
98MR PICKERING: Yes.
99HER HONOUR: And I presume also the same order would have been made for the co-accused and they're both liable once the order is made.
100MR PICKERING: Joint and severally, yes.
101HER HONOUR: So, Ms Rolfe, is that unopposed?
102MS ROLFE: Yes, it is, Your Honour.
103HER HONOUR: Yes, I've got both of them here. Thank you. Look, I propose to make both compensation orders which are unopposed in the terms sought.
104The last matter that - Ms Pieper, I presume you can still hear me. I am just going to go through the conditions of the community corrections order with you because you need to understand what those conditions are and indicate or confirm that you consent to the order being made.
105So first of all, in terms of the conditions of a community corrections order, there are a number of core conditions that attach, they attach to each order. The order commences today and it runs for a period, as I have indicated, of 26 months.
106You must not commit during the period of the order an offence punishable by imprisonment. You must comply with any obligation or requirement set by Corrections. You must report to and receive visits from Corrections. Is that just the Corrections in - which Corrections is it? The Wodonga Corrections? Do you know where the Wodonga Corrections is? Yes? You're going to have to report there within the next two working days and they will set up your appointments thereafter.
107So you must report to and receive visits from Corrections during the period of the order. You must notify Corrections of any change of address or employment within two clear working days after the change. You must not leave Victoria except with the permission of Corrections and you must comply with any directions of Corrections that are necessary to ensure your compliance with the order.
108In addition, I have set further terms to the order as I have outlined and they are that you are subject to their supervision – so there will be supervision appointments, treatment and rehabilitation for drug use, treatment and rehabilitation for your mental health, treatment and rehabilitation for programs which will reduce re-offending. In respect of that they recommended at least 18 months to allow for those programs to occur. And also the work of 180 hours, though I have offset 120 hours. So if you engage in treatment you are able to claim some of those hours against your work.
109Now, do you understand those conditions?
110OFFENDER: I do.
111HER HONOUR: Will you comply with those conditions?
112OFFENDER: Yes.
113HER HONOUR: Also, as I have indicated, you can breach an order by either, one, not complying with the conditions, so not following these conditions, or number two, committing an offence punishable by imprisonment during its duration. If you are breached, you can come back before me and I will deal with you for a breach and I can also re-sentence you on the original charges. Do you understand the consequences of breaching?
114OFFENDER: Yes.
115HER HONOUR: So understanding the conditions and the consequences of breaching, do you consent to the order being made?
116OFFENDER: Yes.
117HER HONOUR: Thank you. Counsel, given it's a remote hearing in that respect, that ought to be sufficient for there to be consent to the order, but it will be provided to her.
118MS ROLFE: Yes, Your Honour.
119HER HONOUR: We will leave the link on for a moment. Is there anything else required of me by either counsel?
120MR PICKERING: No, Your Honour.
121MS ROLFE: Nothing to raise, Your Honour.
122HER HONOUR: And Ms Rolfe, you can speak to your client for a moment. She needs to stay at the court just so registry can have the order. It might be that they – I think what we've done is sufficient, but they might need her to sign it.
123MS ROLFE: Yes.
124HER HONOUR: I thank counsel for their assistance. Ms Pieper, I will see you then on the judicial monitoring, 29 January, and I expect to be told on that date that you are engaging, complying, and I will be updated about the progress on your order, okay? Thank you, counsel. And I again thank Ms White for her attendance today.
125MS ROLFE: As Your Honour pleases.
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