Director of Public Prosecutions v Pope (a pseudonym)
[2021] VCC 1838
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTIN POPE (a pseudonym) |
‑‑‑
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 November 2021 |
| DATE OF SENTENCE: | 15 November 2021 |
| CASE MAY BE CITED AS: | DPP v Pope (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1838 |
REASONS FOR SENTENCE
‑‑‑
Subject: CRIMINAL LAW
Catchwords: Sentence – Home invasion – Theft – Possession of a drug of dependence – dishonestly receive stolen goods – Drug and Alcohol Treatment Order – plea of guilty -
Legislation Cited: Sentencing Act1991(Vic)
Sentence: Drug and Alcohol Treatment Order of 2 years and 2 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. Harrison | Office of Public Prosecutions |
| For the Accused | Ms S. Tricarico | Sarah Tricarico Lawyers |
HIS HONOUR:
1Kristin Pope,[1] you have pleaded guilty to one charge of home invasion (Charge 1), for which the maximum penalty is 25 years’ imprisonment; two charges of theft (Charge 2 and 3), for each of which the maximum penalty is 10 years’ imprisonment; one charge of possession of drug of dependence (Charge 4), for which the maximum penalty is five years’ imprisonment; and one charge of dishonestly receiving stolen goods (Charge 5), for which the maximum penalty is 15 years’ imprisonment.
[1] A pseudonym.
2You have also pleaded guilty to the related summary charges of committing an indictable offence whilst on bail (Summary Charges 4 and 7) and contravening conduct conditions of bail (Summary Charges 5 and 9), one of which, I note, was leaving, after one day, a rehabilitation facility, residence at which had been an express condition of your bail. The maximum penalty for each of these summary charges is three months’ imprisonment.
3Tendered as Exhibit 1 on the Determination Hearing was a Summary of Prosecution Opening, in which the agreed circumstance of your offending and the procedural history of this matter were set out.
4In brief, the circumstances of your offending were as follows.
5On 10 May 2021 at approximately 6:21 AM you, along with two co-offenders Oliver Gibson[2] and Brad Page,[3] gained entry to an apartment building located in Collins Street, Melbourne. Your initial entry, which is captured on CCTV footage, was gained by pressing buttons on the intercom until someone gave you access.
[2] A pseudonym.
[3] A pseudonym.
6Once inside, you proceeded to the mailbox area. You picked up a package and hid it within your jacket, whilst also looking through other mailboxes and removing a small number of items from one of them (Charge 3). You stayed at this area for approximately two minutes.
7You then took the lift to the 11th floor. CCTV footage shows the three of you walking along the corridor trying the door handles of various apartments. On the second attempt, Mr Page was able to gain access to the apartment of Ms Hazel Wood,[4] who was then 25 years of age and unknown to you and your two co-accused.
[4] A pseudonym.
8Once inside, members of your group began to rifle through Ms Wood’s belongings. You took a set of keys (Charge 2).
9Ms Wood was home alone listening to a podcast. Upon hearing noises, she went downstairs to investigate and was confronted by the three of you standing in her living area. She recalls being frozen and in disbelief. Whilst Mr Gibson and Mr Page fled, Ms Wood grabbed hold of you to prevent you from leaving. Mr Page returned and pushed Ms Wood to the ground, which led to all three of you fleeing the apartment. You were all inside her apartment for approximately 50 seconds (Charge 1).
10Whilst on the phone to 000, Ms Wood looked for her keys in order to give access to emergency services and at that point noticed that they were missing. As you were fleeing, you dropped the package you had previously taken from the mail area.
11The following day on 11 May 2021 at approximately 6.34 PM, you were arrested in Melbourne. A search warrant was executed at your premises and among the items found were:
· 1 x clip seal bag containing a white crystalline substance (Charge 4; Summary Charge 7); and
· 1 x Bank of China letter in the name Mengake LIAN (Charge 5).
12You participated in a Record of Interview, were cooperative and made some admissions to police.
13At the time of the offending, you were on bail for multiple offences. You had been released from custody on 28 April 2021 and admitted to bail (Summary Charges 4 and 7). It was also confirmed that you had departed your premises at approximately 5.00AM on the morning of the incident, in breach of a curfew condition of bail (Summary Charge 5). You were then remanded in custody.
14On 25 June 2021, you were re-admitted to bail with a condition, among others, that you reside at the DayHab Addiction Treatment Centre premises at 128 Railway Avenue, Ringwood East, and that you must not leave that premises unless permitted. The following day, 26 June 2021, you left the rehab and did not return (Summary Charge 9). Your bail was then revoked on 2 July 2021 and you have been in custody on remand since that date.
15The filing hearing for these matters took place on the 13 May 2021. The matter resolved shortly before a contested committal on 27 August 2021 and proceeded by way of straight hand-up brief. On the 27 September 2021, the matter was adjourned into the Drug and Alcohol Treatment Court (DATC) and a Determination Hearing was held on the 9 November 2021.
16I turn now to your personal circumstances.
17You were born in October 1997 to Kevin[5] and Debbie Pope.[6] You are now 24 years old and were 23 years old at the time of this offending. You have no priors but you do have subsequent criminal matters.
[5] A pseudonym.
[6] A pseudonym.
18You were raised in suburban Melbourne, the middle child of three. You have an older brother and a younger sister. Both your parents worked - your father in an administrative role with the Commonwealth Bank and your mother as an aged care worker.
19You attended local primary schools and started High School at Kilbreda College in Mentone before moving in Year 10 to Parkdale Secondary College. As a child, you loved modern dance in all forms, travelling on one occasion to Disneyland in the USA to perform. Unfortunately, a career in dancing was not pursued. You left school before completing your Year 12 exams.
20Upon leaving school you trained as a barista and have since worked in the hospitality industry and in other short-term employments. You have struggled to maintain employment due to your escalating drug use. You have expressed a desire to work again soon.
21You describe a family life that was framed by a background of frequent arguments between your parents, fuelled by your father’s alcohol abuse, and often ending with your mother “kicking your father out of the house.” You had a distant relationship with your mother, with whom you have always clashed, believing that she hated you. You now have a positive relationship with your father and although you have not physically seen your mother in over two years, you have had video calls with her whilst in custody and are ‘rebuilding’ that relationship. Your mother has also indicated that she would support you if you were placed on a Drug and Alcohol Treatment Order (DATO).
22When you were aged 17, your father was diagnosed with cancer, a traumatic event which impacted upon your mental health. Your parents separated in 2020. You reported feelings of guilt at this and that their arguments were your fault.
23You have had minimal interactions with your siblings in recent times. Your brother, now aged 27, works as a tradie and has overcome his own struggles with substance dependency. I was told that he had been in touch with some of your friends from high school, and they were willing to support you upon your release. Your relationship with your sister, now aged 18, has been strained. I note she attended Court for your sentence.
24You have had one intimate relationship with Michael Santiago.[7] You spent time living with this person whilst you were homeless. You have come to question the nature of the relationship; categorised by drug use and infidelity. You advised that the relationship turned “really toxic” and that you subsequently separated.
[7] A pseudonym.
25Exhibit 2 on the Determination Hearing was a Clinical Advisor Assessment Report by Mr Harry Howe, dated 19 October 2021. Exhibit 3 was a Case Management Assessment Report by Ms Chloe Reese, dated 20 October 2021. The clinical reports outline your personal history, upbringing, family dynamic, and substance abuse and forensic history.
26Mr Howe identifies a probable diagnosis of stimulant use disorder that is severe in nature (Exhibit 2). You identify methamphetamine as your primary drug of concern.
27You first smoked tobacco and drank alcohol at age 16 and first smoked cannabis at age 17. You began to go out with your friends to nightclubs. where you first took ecstasy and MDMA. You describe initially being surrounded by good friends when you went out on the nightclub scene. However when you were aged 18 and 19, you would go back to people’s homes after the club closed and, in that context, were introduced to methamphetamine. Your use quickly escalated to daily use and your life began to unravel.
28You stopped attending school and left before completing your final Year 12 exams. Your parents would not tolerate your drug use and you were eventually told to leave the family home. You were told that you could return if you engaged in rehabilitation. You stayed in a residential rehab for 28 days and engaged in post-discharge AOD services. You managed to remain abstinent for a period of nine months in total before you relapsed. You do not identify any particular trigger for your relapse.
29Your family would no longer support you and your drug use, and you found yourself on the streets, itinerant and reliant upon emergency housing. In this world, you were introduced to a new cohort of drug users and drug use. You began to inject methamphetamine, using up to a gram per day. You also began to use GHB and overdosed on that drug on no fewer than three occasions, each time requiring hospitalisation.
30This was the life you were living at the time of this offending and at the time of your subsequent criminal matters, which included offences of deception, burglary, theft, counterfeit money and possession of drugs of dependence.
31Following your arrest, your mother stood surety for you and your father paid for another program at residential rehab. You absconded after one day.
32Both reports (Exhibit 2 and Exhibit 3) identified your challenges, yet concluded that you were a suitable candidate for a DATO and set out treatment plans for your engagement and supervision and therapeutic intervention.
33Neither party filed a notice of intention to dispute the court ordered assessment reports and I proceed on the basis that no challenge is made to the contents or conclusions of the reports.
34Mr Howe notes that whilst in custody, you were prescribed Largactil for two weeks to “calm [you] down a bit” (Exhibit 2). This will need further review. Perpetuating factors for your substance use likely include your lack of safe and stable accommodation up to this point, your continued association with negative peers, and your disconnection from significant support networks, such as your family. You also present with low feelings of self-worth, limited emotional coping skills, and ongoing psychological distress.
35Protective factors are the current support of both of your parents and reconnection with your siblings. You are being offered a place of residence back in the family home, with the opportunity to rebuild these primary relationships. Your family remain a strong support for you (Exhibit 7RM).
36Mr Howe notes in clear terms the relatively severe and harmful pattern of substance use with which you present (Exhibit 2).
37During your assessment with Ms Reese, you appeared receptive to further therapeutic interventions to support your goal of achieving abstinence, articulating your desire to be viewed by others as non-criminal, disliking that others saw you as a “junkie” (Exhibit 3). Ms Reese noted: “Whilst this is not fully formed, expressing and developing a prosocial internal self-image, and acting in line with this image, can support the process of desisting from crime”.
38You present with low to moderate forensic needs, although your address outside the gazetted area is not without operational and risk management considerations. Ms Reese is confident, however, that those concerns can be managed with specifically targeted intervention, tailored specifically towards the treatment of women and/or young adults.
39The particular purposes of a Drug and Alcohol Treatment Order (DATO) are[8]:
(a) to facilitate the rehabilitation of the participant (offender) by providing a judicially-supervised, therapeutically-oriented, integrated drug and alcohol treatment and supervision regime;
(b) to take account of the participant’s drug or alcohol dependency;
(c) to reduce the level of criminal activity associated with drug or alcohol dependency;
(d) to reduce the participant’s health risks associated with drug or alcohol dependency.
[8] Sentencing Act1991 (Vic), s 18X(1).
40Ms O’Brien, on your behalf, submitted that that your circumstances and the circumstances of your offending made it appropriate for you to be placed upon a DATO. In support of that submission, Ms O'Brien pointed to your personal circumstances.
41Ms O'Brien referred to your youth, to your plea of guilty, to the ongoing support of your family, to the remorse that you expressed to Ms Reece, and to your seeming willingness to engage in treatment.
42Ms Gurry, on behalf of the Director, accepted that, as an example of the offence of home invasion, this was toward the lower range but was nonetheless a serious offence aggravated by the fact that you were on bail at the time. Your criminal history demonstrates an escalation in your criminal offending, consistent with your escalating drug use. There was an implied acceptance that you were a suitable candidate for a DATO. She did not seek to argue against a DATO by virtue of the address at which you would be living, which would be a 25-minute drive and outside the formally gazetted post code area, recognising the protective factor of family support. However, she emphasised the importance of supervision so that purposes of community protection could be sufficiently achieved.
43Your criminal history, she submitted, demonstrated an escalation in your criminal offending, which was consistent with your escalating drug use.
44Home invasion is a serious offence, as is made clear by the maximum penalty of 25 years’ imprisonment. It represents a violation of the very domestic space where people should feel safe and secure; their home. Ms Wood came downstairs to find three strangers in her living room intent on taking whatever of value they could find. Although no Victim Impact Statement has been tendered, it must have been a frightening experience and challenging to her sense of well-being. When she tried to detain you she was pushed by a co-accused, although of course you are not charged with this offence.
45Your actions were driven solely by your own needs and displayed a complete disregard for the welfare, rights and property of others, both Ms Wood and the other occupants of the building whose mailboxes you rifled through. However your offending does sit in the lower range for offending of this kind. Your intent was to steal; you clearly did not expect someone to be present and you were in the apartment for no more than 50 seconds. While sentencing purposes of general and specific deterrence and denunciation are all relevant sentencing considerations, they can be suitably moderated in your case.
46In 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. I must have regard to current sentencing practices and to 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.
47These sentencing purposes as identified in s 5(1) of the Sentencing Act 1991 are all still to be considered in your case. 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.[9]
[9] S 18X(2) Sentencing Act
48On all the material in front of me I am satisfied on the balance of probabilities that:
(a) you are dependent upon methylamphetamine;
(b) that your dependency contributed to the commission of the offending in front of me;
(c) that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years; and
(d) that you are not charged with offending nor are you subject to any order that would make you ineligible for a DATO.
49It is clear from the material in front of me that you were impacted in ways unknown to you by ongoing family conflict in your childhood, and the deep sense of separation from your mother. Whatever the precise cause, from your first taste of methamphetamine at the age of 18 you swiftly descended into dependence and living on the street and, in that descent, you lost your home, your family and all your connections.
50You are still a relatively youthful offender.
51Your guilty plea brings with it the utilitarian benefit of saving the community the time and expense of a trial. It also has particular value in the time of the COVID-19 pandemic.
52I accept that you are remorseful.
53I accept that you have the support of your immediate family, which is an important step on the road to recovery.
54As Mr Howe noted, you are a young adult with a relatively short substance use history (relative to the typical DATC population). You have had limited prior exposure to AOD treatment, although you have in the past achieved eight months of sobriety. You have significant recovery capital.
55You have an opportunity of taking back the life that has been so swiftly hijacked by your methamphetamine dependence.
56Having regard to all of the matters above, I am satisfied that in all the circumstances of your case it is appropriate to make a Drug and Alcohol Treatment Order.
57On Charges 1, 2, 3 and 5, and Summary Charges 4, 5 and 9, you are convicted and placed upon a Drug and Alcohol Treatment Order (DATO).
58A 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.
59The 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.
60The core conditions will operate for 26 months, or until further order.
61The program conditions, which are that:
(a) you must submit for drug and alcohol testing, as directed;
(b) you must submit to detoxification or other treatments specified in the Order, as directed;
(c) you must attend vocational, educational and employment programs, as directed;
(d) you must submit to medical, psychiatric and psychological treatment, as directed;
(e) you must not associate with Michael SANTIAGO, Oliver GIBSON and Brad PAGE;
(f) you must reside at [address omitted] Parkdale, for the duration of the Order or until further Order;
(g) you are subject to a curfew that you must remain at [address omitted] Parkdale, between the hours of 9:00 pm and 6:00 am, which is required until further order;
(h) you are not to use a drug of dependence without lawful authorisation;
(i) you are to abstain from alcohol; and
(j) you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning:
(i)your drug and alcohol dependency; and
(ii)the personal factors that the Drug Court considers contributed to your criminal behaviour.
62These program conditions will operate for two years, or until further order.
63The 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 26 months. That is made up as follows:
· Charge 1: 22 months’ imprisonment;
· Charge 2 and 3: aggregate sentence of 5 months’ imprisonment;
· Charge 5: 1 months’ imprisonment;
· Summary Charge 4: 5 weeks’ imprisonment;
· Summary Charge 5: 2 weeks’ imprisonment; and
· Summary Charge 9: 6 weeks’ imprisonment.
64I order that two months of the aggregate sentence imposed on Charge 2 and 3, and one month each of the sentences imposed on Summary Charge 4 and Summary Charge 9, run cumulative to each other and cumulative to the sentence imposed on Charge 1.
65On Charge 4 and Summary Charge 7, you are convicted and discharged.
66I understand that you agree to the making of the DATO and that you agree to comply with the treatment and supervision part of it.
67Pursuant to s 6AAA of the Sentencing Act, had you not pleaded guilty, you would have been sentenced to a term of imprisonment of three years and three months’ imprisonment, with a non-parole period of two years and two months.
68I declare that you have served 151 days of Pre-Sentence Detention.
69I have made the disposal order as sought.
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