Director of Public Prosecutions v Priest-Apps
[2024] VCC 1284
•19 August 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
CR -23-01996
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ELLA PRIEST-APPS |
---
JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 August 2024 |
DATE OF SENTENCE: | 19 August 2024 |
CASE MAY BE CITED AS: | DPP v Priest-Apps |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1284 |
REASONS FOR SENTENCE
---
Subject: SENTENCE – CRIMINAL LAW
Catchwords: Armed Robbery
Legislation Cited: Sentencing Act 1991
Cases Cited:R v McKee [2003] VSCA 16, Bugmy v The Queen (2013) 249 CLR 571, DPP v Lombardo 102 MVR 19; R v Brooks [1999] VSCA 5; 103 A Crim R 234
Sentence: two year community corrections order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr C. Rattray | Office of Public Prosecutions |
For the Offender | Ms S. Joosten | Docherty Legal |
HIS HONOUR:
1Ella Priest-Apps, you have pleaded guilty in the Koori Court at Bendigo to two charges of armed robbery committed in company with the co-offender, Mr McLaughlin.
2The maximum penalty for armed robbery is 25 years' imprisonment. Armed robbery in company is a Category 2 offence and as such I am compelled to impose a sentence of imprisonment other than a combination sentence unless one of the exceptions are enlivened.
3At a sentencing indication hearing, after receiving submissions, I indicated that I would find the exception in your case and there has only been matters in your favour since that occasion.
4You are 21 and you were 19 at the time of the offending.
5You have no prior convictions and no subsequent matters – that is very significant.
6The circumstances of your offending, on my assessment, demonstrate your role as being a low level of culpability for an offence of this type when one considers the range of offending for offences of this type. Armed robbery, armed robbery in company, is objectively very grave offending, and that has been conceded of course during the hearing, but within that serious offence range degrees of culpability vary and your particular role, your particular circumstances, place it towards the lower end.
7I doubt very much whether the legislature, when contemplating armed robbery in company as a Category 2 offence, had in mind a role such as yours in circumstances such as your personal circumstances.
8I will not summarise the facts in detail. Exhibit A, the Summary of Prosecution Opening relied upon and read to again by Mr Rattray, has some disturbing aspects to it, particularly the utterances of your co-offender, Mr McLaughlin. He was armed with a fork, it was terrifying for your young victims, you were complicit in it, although playing a far more passive role than Mr McLaughlin, and I have accepted on the balance of probabilities that you were the victim of domestic violence, including on that particular day, and the lead-up to it as you expressed during the Sentencing Conversation.
9Notwithstanding that, it is still serious offending, and particularly Mr McLaughlin's role. His actions, supported by you, have left lasting impacts on the victims and I take that into account. It is relevant to my assessment of your culpability, your moral culpability.
10For an assessment of Mr McLaughlin's role and antecedents, I was provided with his criminal record, which for a man who is about a year younger than you, is lengthy, runs to about 27 pages. I note there are numerous prior appearances and convictions for contravention of family violence orders but other offences of violence and street level type violence. I am not here to sentence him, and he has been sentenced. I have not had access to those sentencing reasons but clearly an exception was found in his case also because a combination sentence was imposed in his particular case.
11The operation of s5(2)(h) of the Sentencing Act, however, prevents me from having regard to parity in making the assessment, which I had already made prior to today, making the evaluative assessment as to whether your circumstances were substantially compelling and exceptional and rare, such that they justified a departure from the requirement in the legislation to impose a custodial sentence.
12Mr McLaughlin's prior history, but also his role and instigation of the offending, on the face of it, based on his entry into the enterprise prior to you, is sufficient to satisfy me on balance that your role was substantially subservient to his.
13I accept the findings of Linda Borg in relation to cognitive profile and cognitive functioning and I will not go over that in detail, but those matters also assist in assessment of your role and culpability in the context of what I have accepted as to the domestic violence in the relationship. At the time of the offending you were a vulnerable young woman, a young Aboriginal woman who was pregnant at the time, and you now are again, of course.
14The impact on the victims, as I have stated, is always hard to assess. It is significant and it will be long-lasting - it may be very long-lasting. The young people, their families, are also traumatised, worst nightmare for they and their families. They feel violated, powerless, there was hopelessness at their predicament – phones being taken. It was a very traumatic experience and you should bear that in mind into the future.
15Your personal circumstances are very relevant for this sentencing exercise also. Yours has been a very difficult childhood and early adulthood, not through any fault of yours. It is a very significant consideration - profound childhood disadvantage and trauma leading to early drug use, poor schooling outcomes, homelessness, all in the context of your cognitive challenges.
16That you have no prior convictions and now no subsequent matters also, that is very significant in the context of your background. That fact gives me great confidence as to your prospects.
17Your personal circumstances are set out in Ms Joosten's outline of submissions, which were very helpful, Exhibit 1. Your personal circumstances are also set out in the reports of Dr Borg and Mr Simmons.
18Your parents separated when you were born and you became the subject of child protection orders. You were raised by paternal grandparents and your father lived with you from time to time. Your mother, I was told, was unable to care for her children due to drug use and a history of family violence. Your father had spent time in prison, including a six year term of imprisonment. Unfortunately, he passed away when you were 15, which had a significant impact on you, and you touch on that impact in the reports as to contributing towards your gravitation towards methamphetamine use. Your paternal grandmother passed away in 2023 which was also a significant passing for you.
19You commenced a relationship with the co-offender in this matter when you were 17, he was 16, and I was told, and I accept, that the relationship became violent when you were around six months' pregnant with your first child, Kyla, who was born in June 2022. There were periods of homelessness during that relationship, and drug use. You moved between Mildura, Swan Hill and Bendigo.
20Your daughter, Kyla, was removed from your care and that was a matter that was discussed during the Sentencing Conversation, as was your older two children and your steps to be reunified with them, which I will come to as another significant sentencing factor in your case.
21Instances of domestic violence perpetrated toward you by the co-offender are set out in Ms Joosten's outline. They are supported independently and I will not go over those in detail herein. As I have stated during the sentencing conversation, you made reference to something that took place on the day not long prior to the offending, and given the context, given other matters that I accept that are independently supported, I accept that on balance.
22You were charged on summons initially, which was perhaps a reflection of your history and the way matters were viewed. Since the committal, of course, you have been on bail and you have complied with bail. You have not committed further offences and you have been engaging with supports, BDAC, and what NDIS supports have been available. You have tried to deal with your living circumstances.
23You are now pregnant again and due in October. You have been working very hard in relation to the reunification with your older two children and have regular supervised access almost daily. That can be a stringent process. I am aware of the sorts of requirements, and quite rightly supervision, that DFFH require in relation to child reunification. Part of that involves drug screening, and you have been doing that and it is very much to your credit that you seem to be making great progress in respect of that reunification process.
24I am told that in respect of your – I was going to say middle child – soon to be middle child in respect of your son, Jarrah, that the prospect of reunification is imminent.
25I have referred to your childhood experiences and described it as profound disadvantage, and that attracts mitigation known as Bugmy mitigation. It is related to another head of mitigation with reference to the authority of R v Brookes and R v McKee where early gravitation towards drug use, which occurred in your case, around the age of ten due to the dysfunction and disadvantage in childhood years, is a relevant sentencing factor when it is also linked to the offending, as I accept it is in your particular case. Your cognitive profile together with PTSD, ADHD, and the particular level of functioning are also relevant matters to assess and form part of the overall assessment of your subjective culpability for the offending.
26Progress on bail to date has also been very significant. That is a separate matter from assessing the prospects of rehabilitation, which I am not permitted to assess as part of the s5(2)(h) evaluative assessment, but retrospectively, the fact that you are a young woman without prior convictions - and I am able to have regard to an absence of prior convictions, simply not prior good character – you being a young woman without prior convictions whose response to being charged with these serious matters has been to continue on bail and try and work on progressing in life in a positive way, is a significant matter. If nothing else, it shows that this was an aberration.
27So to summarise my prior finding in relation to substantial and compelling reasons that are exceptional and rare, I have regard of course to general deterrence and denunciation as the primary factors that I must consider and factors personal to you have less weight. I have not had regard to parity in that assessment and I have not had regard to previous good character, other than an absence of prior convictions or findings of guilt. Nor have I had regard to prospects of rehabilitation or parity with other sentences.
28First, I have decided whether there was substantial and compelling circumstances. Borrowing from Lombardo, that can mean circumstances that are weighty, forceful or powerful. For all the reasons I have set out they clearly are in your case, and I think I observed on the last occasion, or at the sentencing indication occasion that the young mother and mother to be at your age with no prior convictions and no subsequent matters, playing a secondary role in a street offence such as this, for the 32 years or so that I have been involved in these criminal courts in this jurisdiction the likely outcome would always be a Community Corrections Order. The mandatory legislation changes that and requires this evaluative assessment, which I made at the sentencing indication hearing and make again now.
29So there are substantial and compelling circumstances. Then I must consider whether they are exceptional and rare, such as that they justify not making a custodial sentence for this offence. And then deciding that balance, I had to have regard to the nature of the offence, of course objectively serious, but the nature of the offence involves your role and your moral culpability for it, which for the reasons I have set out is towards the lower end.
30The matters that in combination make it exceptional and rare are the profound disadvantage, low functioning leading to early drug use and other criminogenic factors such as homelessness, poor schooling outcomes, you are a mother as a teenager. Despite all those challenges you have no prior convictions, you have no subsequent convictions and you have progressed well on bail. You are trying to reunify with your children and you are making great progress in that regard. You should be encouraged to do so and you deserve credit for where you have got to from here.
31You also touched on during the Sentencing Conversation the reasons for your separation from your most recent partner, which again showed maturity and positive signs for ongoing progress in terms of that reunification. It is a goal that this court, where it can, should support that mothers are reunited with their children. Not only that you have another one on the way.
32Were the exception not available you would be incarcerated and facing the prospect of having a child in custody with the result that your third child is either removed or remains with you in custody, which is certainly a less than ideal outcome, to put it mildly. It would also impact on your son, whose reunification, I am told, is imminent. It would disrupt that of course. It would throw the progress you have made into disarray and would in no way serve the community in terms of protection or denunciation, in my view.
33For all those reasons I had no hesitation in finding that your case would be of substantial and compelling reasons that are exceptional and rare and justified not imposing the mandatory outcome.
34As an aside, but one which I think is worthy of mention, which I touched on in discussion with counsel today, the operation of s5(2)(h) prohibits me from considering parity in making that evaluative assessment. However, once the next stage of sentencing follows, whether the exception applies or not, parity is a relevant sentencing factor.
35It would create an extremely odd situation, but one which in my view would bring the administration of justice into disrepute, if in this case the exception could not be made out in your case where it clearly had for some reason, and in Mr McLaughlin's case that has not been appealed apparently, and the disparity between you and Mr McLaughlin is on the face of it extremely stark. He was the wielder of the weapon, the fork, he was the one who made the demands and gives the directions, on any view he was the architect of the offending.
36You, I will accept it on balance, had been the victim of family violence at his hands on that day. You are a person with the cognitive profile as described by Dr Borg and other mental health challenges as described by Mr Simmons and Dr Borg. You have available to you a significant degree of Bugmy mitigation which has a direct relationship with the criminogenic factors which led you to be in the situation you were in, alongside Mr McLaughlin on that day. By that I mean early gravitation towards drug use, poor parental models and a dysfunctional home environment, homelessness, poor education outcomes and just a general lack of guidance and support.
37Unlike Mr McLaughlin you have no prior convictions, nothing subsequent. You participated in the sentencing conversation, and this is a matter of mitigation. I accept that you showed appropriate contrition and acceptance of wrongdoing and preparedness to face the consequences. Principally, of course, you are endeavouring to reunite with your two children and you are pregnant with a third, and the aspects of that I have touched on, including delivery in custody if the outcome were different from what it is going to be today.
38So those disparities with Mr McLaughlin are extremely powerful on every level, on every score. Had I not already been able to find the exception made out based on the factors I have referred to, it is worthy of consideration as to whether the impractical impact for the potentially what would in my view bring the administration of justice into disrepute, if parity was endeavoured to be applied after an exception was not made out, that fact is deserving of some consideration in the evaluative assessment. But as I say, I mention that in passing.
39You spoke during the Sentencing Conversation with Respected Person, Peta Hudson, and talked about your living circumstances now and how interested in connecting with culture you are and what you are availing yourself of with the support of BDAC, in that respect and other respects. You spoke about the distancing from one side of your family that has taken place and some concern was shown by Respected Person, Peter Hudson, as to whether you – that you had to avoid being too isolated and you have acknowledged that. Jade Davey from BDAC also spoke about that being a concern but also a good thing in the sense that you have extricated yourself from negative influences.
40Clearly, the major motivation for you to continue on the positive path is being a mother and caring for your children, and you seem to be quite determined in that regard. That is what was impressed upon me by your participation in the conversation.
41So, I had you assessed, as I said I was going to do, and thankfully that assessment was done in good time and I am grateful to Mr Pianta for that. You have been assessed as suitable, and notwithstanding that I have given great weight to general deterrence and denunciation, I have not considered that specific deterrence is at the forefront of this particular sentencing exercise. But community protection, denunciation and general deterrence have been at the forefront and I am satisfied that weighing up all the factors as best I am able, and applying parity once I have found the exception, the appropriate sentencing outcome in your case is to sentence you to an aggregate sentence on both charges, because both charges given the overlap in terms of both – there are two separate victims but it is one episode and submissions were made about totality – given I am imposing a CCO I see no reason to impose anything other than a CCO, it covers both offences.
Sentence
42So I sentence you, Ms Priest-Apps, to a two year community corrections order, with conviction. You are to be subject to supervision, subject to drug assessment and treatment, subject to mental health assessment and treatment, as directed. You are to perform 110 hours of unpaid community work over that time. Forty-five hours of treatment conditions can be credited towards that unpaid community work.
43Now, do you consent to that order.
44OFFENDER: Yes.
45HIS HONOUR: That will be prepared and I will sign it, and then you will be asked to sign it.
46I must tell you that if you do not comply with the order, if you do not comply with the conditions of the order or if you commit further offences, you will be brought back before me, in all likelihood for re-sentencing. So that is important to understand. I will just give that to your barrister, Ms Joosten, to have a quick look at it and then you will be asked to have a look at it and sign it.
47MS JOOSTEN: Your Honour, may I approach Ms ‑ ‑ ‑
48HIS HONOUR: Yes, certainly.
49MS JOOSTEN: I'm just updating the address.
50HIS HONOUR: Just have to update the address, alright. I meant to say also, Ms Priest-Apps, of course I had regard to your plea of guilty and the stage at which you pleaded guilty, that was a matter in mitigation.
51Pursuant to s6AAA, if it was not for your pleas of guilty in this matter, I would have sentenced you to a community corrections order of three years' duration with 250 hours of community work.
52Alright, I have signed that now. Ms Priest-Apps, we will get some copies of that made, you will get one and your lawyers will get one, and the requirements of you will be explained to you. Just make sure you keep all the appointments. If you do that and keep accessing the supports that are available to you then I am sure I will not see you back here. Good luck.
‑ ‑ ‑
0
2
0