Director of Public Prosecutions v Piper

[2018] VCC 2097

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00594
CR-18-00595

DIRECTOR OF PUBLIC PROSECUTIONS

v

LANCE PIPER
BARBARA PIPER

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 December 2018
CASE MAY BE CITED AS:	DPP v Piper & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 2097

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	Miss S. MacDougall
For Accused Lance Piper	Mr S. Norton
For Accused Barbara Piper	Ms J. Prior

HER HONOUR:

1Lance Piper and Barbara Piper, you have pleaded guilty to offences that occurred on 28 September 2017 where the victim is Kevin Kelly, being offences of threatening to inflict serious injury, intentionally causing injury and theft of a BMW motor vehicle, a wallet, keys, a phone and cannabis.

2Barbara Piper, you have pleaded guilty to obtaining $650 by deception on that day.  The victim again is Kevin Kelly.

3Lance Piper, you have also pleaded guilty to offences of possessing methylamphetamine and unlicensed driving both occurring on 29 September 2017.

4William Piper, your co-offender, has been dealt with in the Children's Court.

5Mr Kelly was previously in a de facto relationship with you, Barbara Piper.  On Thursday, 28 September 2017, Mr Kelly was woken between 9 and 10 pm by both of you, in the company of William Piper, as he slept on the sofa in the lounge room of the address where he was residing.

6You, Lance Piper, were armed with machete and commented to Mr Kelly that you could have “chopped him up” while he slept.  The three of you then yelled abuse towards Mr Kelly.  William Piper then punched Mr Kelly to the right side of his head using knuckle dusters.  You, Lance Piper, screamed at Mr Kelly and then hit him before William Piper again struck Mr Kelly using the knuckle dusters.  The knuckle dusters caused lacerations to Mr Kelly's head and he started to bleed.

7At the same time, you, Barbara Piper, wrote notes for Mr Kelly to sign over to you the ownership of his cars and property.  You, Lance Piper, were armed with a machete at this time.  William Piper threatened to stab Mr Kelly and you, Lance Piper, made the same threat.  William Piper then used the knuckle dusters again to hit Mr Kelly on the chin and to the head causing further laceration and bleeding.

8Mr Kelly felt forced into signing the notes by you, Barbara Piper.  At that time, you, Lance Piper, remained standing nearby and holding the machete in a raised position.  William Piper suggested that you put Mr Kelly in the boot of his car.  Mr Kelly feared for his life throughout the incident.  William Piper continued to yell aggressively and threatened Mr Kelly.

9On three or four occasions, you, Barbara Piper, told your son to leave the house which he did before returning and repeating the threats and striking Mr Kelly.  In the course of the incident, William Piper searched the house taking Mr Kelly's mobile phone, his wallet, some keys and a bag of cannabis from the coffee table.

10You, Lance Piper, took the key to the roller door.  The three of you left the house and drove away in Mr Kelly's BMW motorcar.  You, Barbara Piper, used an ANZ key card that was in the centre console of the car to make two unauthorised transactions at an ATM in Wantirna.  You withdrew a total of $650.

11Mr Kelly reported the incident to police at 12.30 am on 29 September 2017.  A few hours later, you were both intercepted in the BMW.  William Piper was also in the car.  You, Lance Piper, were driving and were unlicensed at the time.  When arrested, you, Lance Piper, were found in possession of a small quantity of methamphetamine on your person for your own use.

12William Piper was in possession of the knuckle dusters.  Inside the car, the police located the three notes which Mr Kelly had been forced to sign.

13Mr Kelly sought medical attention for his injuries on 30 September 2017.  He was found to have small laceration and contusion marks behind his right ear, on his right occipital region, on the centre of his chin, on the left parietal region of his head and behind his left ear.  Mr Kelly's left molar was also loose.

14Mr Kelly had previously been in an intermittent intimate relationship with you, Barbara Piper, over a 20-year period.  You have children together.  In a victim impact statement dated 4 November 2018, Mr Kelly said that this incident has changed his life forever.  He has not maintained a relationship with his children as he is reluctant to have a connection with you, Barbara Piper, wanting to keep his whereabouts from you.

15He described experiencing anxiety and feeling trapped with fear at the time.  He has been traumatised and does not feel safe.  Despite being protected by intervention orders against both of you and William Piper, he remains concerned for his safety.

16In light of the seriousness of this incident, I accept Mr Kelly's concerns are genuine.  To have been awoken and confronted by a group including a man armed with a machete, threatened and assaulted with knuckle dusters on several occasions must have significantly affected his self-confidence and feeling of security.  I take the relevant content of the victim impact statement into account.

17I am satisfied that the case against both of you and William Piper is one where you were complicit in the joint criminal offending described in
Charges 1, 2 and 3.  Whilst this was not a sophisticated offence, the criminal conduct escalated very quickly.  Notwithstanding the withdrawal of the most serious charges, in light of the victim being confronted with weapons, threatened and assaulted in his home, this remains a serious example of criminal offending.

18It is accepted by the Crown that you, Lance Piper, had no prior knowledge that William Piper carried a set of knuckle dusters with him.  Despite this, you hit Mr Kelly to the head after the knuckle dusters had been used and after observing blood pouring from his injuries.

19The charges of aggravated burglary and armed robbery were alleged at the outset, being withdrawn after a contested committal hearing.  Upon the withdrawal of these charges, both of your matters resolved as pleas of guilty.  Whilst your guilty pleas were not entered at an early stage, they were entered at the earliest opportunity in light of the charges that ultimately proceeded.

20Lance Piper, you were interviewed on 29 September 2017.  You cooperated with police admitting that you were present, that you had a machete with you and you admitted hitting Mr Kelly in the ribs and across the head.  You said you were not aware that your co-offender had knuckle dusters at the time of entering the premises.  The account you provided is not inconsistent with the agreed summary of facts.

21You offered to plead guilty on 13 June 2018 to charges that are not dissimilar to the charges that have now proceeded in this court.  That offer was refused by the Crown resulting in the running of a committal hearing.

22Barbara Piper, you were interviewed on 29 September 2017.  Whilst you admitted that you were present at Mr Kelly's residence with your co-offenders and that you took his car, you denied threatening Mr Kelly, saying that he wrote the notes himself.  You denied the presence of a machete and said that you wore knuckle dusters to use them to strike Mr Kelly.

23It appears that you have tried to reduce the seriousness of this incident in your interview.  You also advised that on numerous occasions, you tried to remove your son from the scene of the incident in light of his aggressive behaviour.  It is agreed by the Crown that you intervened in this way on the night.

24In all the circumstances, you are both entitled to a full benefit for your plea of guilty.  That plea was entered at a time when the most serious charges were no longer alleged by the prosecution.  That plea has a significant utilitarian benefit.  You have saved the witnesses and the community time and expense of running a trial.  In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that.

25Barbara Piper, you are 33 years of age.  Lance Piper, you are her younger brother and now 30 years of age.  William Piper is your son, Ms Piper, and your nephew, Mr Piper.  He was 17 years of age at the time of this offence.

26The principle of parity has very limited application in this case.  William Piper pleaded guilty and was dealt with in the Ringwood Children's Court.  He was sentenced under the Children, Youth and Families Act 2005 and was released on a youth supervision order without conviction for a period of six months. The statutory sentencing considerations that governed his sentence do not apply to adult offenders.

27Whilst both of you, Lance and Barbara Piper, are to be dealt with in this jurisdiction, there is a significant disparity in your criminal history.  That difference is relevant to the sentencing functions of specific deterrence and prospects for rehabilitation.

28Barbara Piper, you have no alleged criminal history and no relevant prior convictions.

29Lance Piper, your first contact with the criminal justice system was at the age of 12 when you appeared in the Children's Court.  You have an extensive and relevant history for matters of violence including offences of intentionally causing serious injury, recklessly causing serious injury, assault, threat to kill and threaten to inflict serious injury.

30You have been sentenced to terms of imprisonment for these offences.  I have read the sentencing remarks of His Honour Judge Gucciardo from 30 January 2009 and Her Honour Judge Lawson from 26 October 2009 which relate to your two previous appearances in the County Court.

31In 2013, you were found guilty of driving offences and sentenced to a CCO with conditions including a justice plan.  You successfully completed this order.  You have not had the opportunity to participate in another corrections order since that time.

32Most recently, you were released from prison in August 2017 after serving a term of imprisonment of 12 months.  That was imposed at the Latrobe Valley Magistrates' Court on 29 September 2016.

33Your offences that are now before the court occurred approximately seven weeks after your release.  You were not subject to any court orders at the time of this incident, nor had you been given the opportunity to be released on parole despite that sentence being fixed with a minimum term.

34I turn now to your personal circumstances.

35Lance Piper, you are an indigenous man and aged 30 years.  In a neuropsychological report prepared by Susan Carey at the request of your instructing solicitors dated 23 September 2018, you provided a detailed history of your personal circumstances.  I will briefly summarise your history here.

36Your childhood was unhappy and unstable.  You led an itinerant lifestyle frequently moving around Victoria.  The Department of Health and Human Services were involved due to the turmoil at home, linked to both your parents’ abuse of alcohol and to abuse between them.

37You attended a number of schools including a school for the intellectually disabled and have longstanding difficulties with literacy.

38Your parents separated when you were young.  You lived with both your father and your mother at different times.  Your father passed away when you were 11 years old.  You were subject to verbal and physical abuse throughout your childhood.

39In light of information about your youth being subject to social deprivation and disadvantage, violence intransience and grief, your counsel submitted that the decision of Bugmy v The Queen [2013] HCA 37, was a relevant consideration in your case.

40Their Honours said at paragraphs 43 and 44,

"The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience.  It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

"Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision."

41In my view, these remarks have application to both sentencing exercises before me.

42I accept that the disruption in your family life is likely to have impacted on your personal development.  I accept that whilst I am required to give weight to the principles of general deterrence, specific deterrence and punishment for your offending behaviour, your moral culpability is reduced in light of those factors coupled with your cognitive impairment.

43At the age of four, you were injured when you fell and hit your head losing the sight in your right eye.  When you were 14, you were diagnosed as having an acquired brain injury.  As a teenager, you were involved in a motor vehicle accident that Ms Kerry believes has significantly contributed to your long term cognitive impairment.

44You have had limited employment as a fruit picker.  You have been in receipt of the disability support pension since the age of 14.

45Notwithstanding that fact, an assessment undertaken by the Department of Health and Human Services in this case found that you do not meet the criteria for someone with an intellectual disability and you are not eligible for a justice plan should a community corrections order be imposed.

46Your history of drug and alcohol use dates back to your early teenage years.  You began to consume large amounts of alcohol after the death of your father.  You started to smoke cannabis at the age of 12 and have constantly done so since that time.

47You commenced amphetamine use when 18 years of age and progressed to methamphetamine at the age of 20.  You have used methamphetamine regularly since that time.  You have experienced and used other drugs throughout your life.  You reported that you use substances to manage depressive symptoms.

48Detoxification has previously occurred whilst in custody but has not continued when you have been released back into the community.  You report that the only time you ceased the use of illicit substances over the last few years was between 2012 and 2016 when you had the custody of your three children who are now aged eight, nine and ten.

49In order to abstain from drug and excessive alcohol use when you do return to live in the community, you would benefit from the supervision and intervention of professional organisations.  You describe quickly returning to substance abuse when released in the past and you admit that your risk of relapse is high without assistance.

50In her opinion, Ms Carey found that you do not have an intellectual disability.  She found that your premorbid intellect fell within the borderline low average range and that your history of substance abuse will have exacerbated your premorbid cognitive difficulties.

51You are described by Ms Carey as having the low average cognitive abilities and limited educational attainment with impairments in your verbal ability.  She has diagnosed you as having a stimulant use disorder, an alcohol use disorder and a cannabis use disorder all of which are in remission in a controlled environment.  She indicates that you will require substantial assistance to compensate for your cognitive impairments when you are released into the community.

52You advised being affected by methamphetamine at the time of this offence.  In her professional opinion, Ms Carey states that your methamphetamine and alcohol use disorders are associated with your offending, reducing your ability to make sound judgements when substance affected and by committing offences to fund your drug use.

53In a report prepared for the court on a previous occasion dated 2 December 2011, Jane Lofthouse, clinical neuropsychologist, described your full scale IQ as 72 which is significantly below average and within the borderline range.  She found that you had a significant level of intellectual impairment and that you ought to be included in the criteria set out in the Disability Services Act 2006 as having an intellectual disability.

54I take into account that you have been remanded in custody since this incident occurred, approximately 440 days on remand.  Given the seriousness of the offending and the context of a criminal history, a term of imprisonment is required in this matter.

55The prosecution agreed with your counsel's submission that a combination disposition being a term of imprisonment coupled with a community correction order would be appropriate disposition in the circumstances of this case.  The Crown agree that the appropriate supervision upon your release provides the best protection for the community from your offending.

56In a report prepared for the court by Paul Sguerzi, you indicated that you were willing to comply with a community corrections order if one was imposed.  You showed insight into your offending and an understanding of what is required to minimise your risk of reoffending when released from custody.  You also showed some insight into the effects of your offending on your victim and said that you regret the action you have taken.

57Mr Sguerzi gave evidence on your plea that after he had read the reports and spoken to you, despite him having no formal qualifications, he was surprised that you were not eligible for a justice plan.  However, he confirmed that you may be eligible for disability support through National Disability Insurance Scheme.

58He also indicated that support services through the Reconnect Program provided through the Victorian Aboriginal Legal Service would be available to assist your reintegration into the community.  This outreach service would last for up to 12 months.

59He advised that should your corrections officer be concerned about your capacity to comply with a conventional corrections order, application to have a justice plan condition added to the order could be facilitated should the matter come back to court for judicial monitoring.

60You are fortunate to have accommodation with your brother-in-law when you are released.  You express a desire to obtain employment and recognise that it would be a protective factor in your chances of successfully reintegrating into society.  You have undertaken and completed short cultural programs, drug and alcohol programs, educational courses and behavioural programs whilst in custody.

61I am very cautious of your prospects of rehabilitation.  Your successful reintegration into the community requires the involvement of appropriate support services.  I accept that this the best way to ensure the protection of the community.

62Given the gravity of your offending and your lengthy and highly relevant criminal history, I am satisfied that a term of imprisonment is required.  I have listened to the submission made by your counsel and the prosecution about a proposed structure of the sentence that would allow you to participate in a community corrections order.

63I have decided to structure the sentence so that the time on remand is not declared as taken into account as part of your sentence.  I propose to sentence you to a further 12 months' imprisonment from today.  This combined with a community corrections order with supervision and treatment is the most appropriate means to provide you with some prospect for reform.  If it can be achieved or even partially achieved, then the community benefits.

64In imposing a sentence, I also take into account the sentencing principles of general deterrence, specific deterrence, denunciation and punishment.  Given your cognitive disability, I do not accord general deterrence the significant weight that it would otherwise demand.

65I also take into account the maximum penalties of these offences and current sentencing practices.

66Mr Piper, would you please stand?

67Charge 1, you are convicted and sentenced to nine months' imprisonment.  This will be the base sentence.

68Charge 2, you are convicted and sentenced to nine months' imprisonment and I direct that two months of that term be cumulative upon the base sentence.

69Charge 3, you are convicted and sentenced to eight months' imprisonment and I direct that one month of that sentence be cumulative.

70This is a total effective sentence of 12 months' imprisonment with no PSD reckoned as having been served.

71In relation to those three charges, being Charges 1, 2, 3 plus the offences of possession of methamphetamine and unlicensed driving, you are convicted and sentenced to a community correction order for a period of two years.  The order will be one with drug and alcohol treatment, mental health treatment, rehabilitation, supervision. I make an order for judicial monitoring.

72Your license is cancelled.  You are disqualified from driving for a period of 12 months.

73I make orders for forfeiture of cannabis and of the methamphetamine.

74My declaration under s.6AAA is had the matter not proceeded as a plea of guilty, the sentence I would have imposed would be a sentence of three years' imprisonment with a two-year minimum.

75I also make the orders for disposal that have been requested by the Crown.

76MR NORTON:  Your Honour, I just missed the judicial monitoring date.

77HER HONOUR: 11 February 2020 will be the date for judicial monitoring.

78MR NORTON:  If Your Honour pleases.

79HER HONOUR:  Mr Piper can be removed to the cells.  Thank you.

80I now turn to you, Barbara Piper.

81Madam, you are an indigenous woman born in Wagga Wagga.  You had a disrupted childhood, your parents both being heavily reliant on alcohol.  You witnessed significant abuse between your parents.  Your schooling was interrupted at the time your parents separated.  You also spent some time as a child living in foster care or in out-of-home care with a family history of intervention by the Department of Health and Human Services.

82Your father was your primary carer until you left home at the age of 12 running away to join a local carnival in Bairnsdale where you then lived on site.

83At the age of 13, you developed chicken pox and left the carnival, joining your mother to live in Tasmania.  Your mother consumed large quantities of alcohol at that time. It seemed to you that her lifestyle was one where she was not able to be an attentive parent.

84Your father became unwell when you were 15 and all your siblings ultimately moved to live with your mother.  Your father died in April 2000.  You had stopped attending school by that time and your drug use had escalated.

85When you were 16 years old, you left home again.  Your first child and the co-accused in this case, William Piper, was born when you were 14 years old.  At the age of 16, you commenced a relationship with the victim in this matter, Kevin Kelly, who was 35 at the time.  You had three children whilst in a relationship with Mr Kelly.

86You suffered abuse at the hands of Mr Kelly.  Both you and your children including William were the affected family members in two intervention orders that were made by the Magistrates' Court when Mr Kelly was the respondent.

87In cross-examination at the committal in this case, Mr Kelly confirmed that in the past, he had been found guilty of offences where you were the victim.  He admitted breaching the intervention orders where you were a protected person.  Further, he admitted that he had assaulted you and threatened to inflict serious injury on you.  He said that he had threatened to cut your throat.  As a result of the family violence, you left Mr Kelly.

88You have had three more children since that time.  All of your children, with the exception of William, and your youngest child, who is now four years of age, are in foster care and have been for approximately three years.  Your youngest child currently resides with her father.

89On 28 September 2017, Mr Kelly was residing at a house owned by one of your friends.  You had lived at that address intermittently over approximately 12 years.  Mr Kelly had been given permission to stay there although there was some conflict between the owner of the premises and Mr Kelly.  You assert that after receiving an email from the owner, you attended that the premises to ask Mr Kelly to leave and to find somewhere else to live.

90Your instructions are that there was no love lost between you and Mr Kelly, in light of the violence that he had subjected you to in the course of your difficult relationship.

91In an assessment with the Office of Corrections, you also stated that your actions were as revenge for years of domestic violence by Mr Kelly towards you.  You advised that you were affected by drugs and alcohol on the night of this event.

92You are someone with a lengthy history of alcohol abuse having commenced binge drinking in your youth.  You have used cannabis in the past and methylamphetamine in the last six years.  You were a heavy user of ice at the time of these offences and have continued to use ice until early November 2018.

93You have been assessed by psychologist, Gina Cidoni, and a report dated 23 November 2018 has been provided to the court.  Ms Cidoni indicates that you have a borderline intelligence with an IQ of 74.  She described you as having acute distress related to your circumstances.  She describes you as suffering from post-traumatic stress disorder and comorbid persistent depressive disorder with anxious distress.

94You also presented with substance use disorder and confirmed that you were under the influence of a large quantity of ice at the time of your offending.  Ms Cidoni is of the opinion that you are in need of drug treatment and psychological counselling.

95You have most recently undertaken employment at Wilsons Security in Maribyrnong.  You will not retain your security license as a result of your participation in these offences.  You are currently unemployed.

96At the age of 33, you have no relevant prior convictions.  Your counsel has referred me to the sentencing considerations in Bugmy v The Queen.  As I have accepted in your brother's case, your background is one of considerable social deprivation and that is a mitigating factor in your plea.

97Further, you have suffered violence at the hands of your former partner, Mr Kelly, and I take that into account when considering the extent of the deprivation suffered throughout your life.

98I take into account that you have spent 32 days in prison before being released on bail.  You describe your time in custody as terrifying and upsetting.  Since your release from custody in October 2017, you have not been charged with committing any further offences.

99In October 2018, you relocated from Gippsland to live with your brother, Robert, and his partner.  His partner, Chantelle Meloury, has written a letter to the court confirming that you have their support and that you can continue to live with them at their address.

100You have recently attended at the Nixon Street Medical Centre in Shepparton and commenced a mental health plan.  In early November 2018, you also engaged with Primary Care Connect and commenced drug and alcohol counselling with a Koori alcohol drug diversion worker.  You have agreed to engage in treatment.

101Both the prosecution and defence counsel have submitted that a combination sentence of imprisonment and a community correction order would be appropriate.

102In the DPP v Graoroski [2018] VSCA 332 at paragraph 40, the court recently considered the merits of a combination sentence. The court confirmed the recent decision of the Court of Appeal in Williams v The Queen [2018] VSCA 171 [47] from earlier in 2018. They said,

"As was made clear in Boulton, in an appropriate case, a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously.  A CCO can be fashioned to address the particular circumstances of the offended and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation.  And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending."

103You have been assessed as suitable for a community corrections order and indicate that you are willing to comply with one.  In the assessment provided, you showed insight into your offending indicating that your anger management issues needed to be addressed.  You state that you regret the action taken in the relevant offending and the impact that it has had on you, on your family and also on your victim.  You indicated that you are motivated to engage in a community correction order.

104You are able to access culturally appropriate programs to address a number of issues and are prepared to do so.

105I am unable to agree with the submission that 32 days served on remand is sufficient to deal with the objective gravity of your offending.  Although the charges of armed robbery and aggravated burglary have both been withdrawn, I regard your offending as requiring a further term of imprisonment beyond the time served.  You have participated in a serious criminal offence and the community expects you to be punished.

106In light of your lack of criminal history, I assess your prospects for rehabilitation as good.  As I indicated earlier, I consider that the sentencing principles in Bugmy have real application in your case.  I doubt that there is any need for specific deterrence although the principles of denunciation and punishment must be given some weight.

107Ms Piper, would you please stand?

108Charge 1, you are convicted and sentenced to three months' imprisonment and that is the base sentence.

109Charge 2, you are convicted and sentenced to three months and I direct that one month be cumulative upon the base sentence.

110Charge 3, you are convicted and sentenced to three months' imprisonment and I direct that one month be cumulative upon the base sentence.

111Charge 4, you are convicted and sentenced to one month to be wholly concurrent.

112The total effective sentence is five months' imprisonment.  I enter in the records of the court that 32 days have been served under this sentence.

113I also direct that once you are released from custody, you are to be released on a community corrections order for a period of 12 months.  The community corrections order will have conditions addressing drug treatment and rehabilitation, mental health treatment and rehabilitation, programs to reduce reoffending and supervision.

114The declaration I give under 6AAA is that had the matter not proceeded as a plea of guilty, I would have imposed a sentence of nine months and a community corrections order.

115The Crown have made an application under 464ZF to obtain a sample of saliva from Barbara Piper.  The application is opposed.

116In light of the seriousness of the circumstances of the offending and the findings that I have made of Ms Piper's participation in the offence, I am satisfied that the granting of the order is in the public interest. I will direct that she is to provide a saliva sample by way of a buccal swab.  If she refuses to comply with the order, the police may use reasonable force in order to obtain that sample.

117HER HONOUR:  Yes, you can remove Ms Piper.  Thank you.

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