Director of Public Prosecutions v Proposch, Claire
[2012] VCC 1734
•5 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01991
CR-12-01415
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLAIRE PROPOSCH |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 November 2012 | |
DATE OF SENTENCE: | 5 November 2012 | |
CASE MAY BE CITED AS: | DPP v Proposch, Claire | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1734 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms DM Hogan | |
| For the Accused | Ms FH Todd |
HIS HONOUR:
1 You have pleaded guilty to an indictment containing three charges, one of armed robbery which was committed on 11 May this year, the second a charge of attempted armed robbery committed on 13 May this year, and the third a charge of robbery which occurred on 22 October this year.
2 You also admitted a number of prior convictions mostly for offences relating to dishonesty of a relatively minor nature compared with the offences to which you have pleaded guilty on this indictment. I note that you have been the beneficiary of a number of community-based orders in the past and that you have breached those orders on six separate occasions, the last being on 19 April 2010.
3 The maximum sentence for armed robbery is 25 years imprisonment. For attempted armed robbery 20 years imprisonment. And for robbery 15 years imprisonment. I take those statutory maxima into account in determining the appropriate sentence in this case.
4 The prosecution tendered an amended summary of prosecution opening which is Exhibit A on the plea hearing and that was read out in full this morning. I do not propose to read it out again. I note however that in relation to the first offence, that is armed robbery, you were in possession of a knife and at one stage you moved closer to the victim and lunged at him. It is nevertheless the case that the victim indicated that he was not scared but said that he could not believe that it has happened. However another employee who was also present said that she felt very afraid and thought someone was going to get hurt. She stated that the incident was very scary.
5 In relation to the charge of attempted armed robbery on 13 May of this year. Again you have produced what appears to have been the same knife used on the previous occasion and used that knife to threaten the pharmacist working at the pharmacy on that occasion. It is true that at the pharmacist's invitation you put the knife down on the counter and you left the store soon afterwards but the victim says that she was in shock and was extremely fearful when you first pulled out the knife. She did not know what you were going to do.
6 In relation to the robbery that occurred on 22 October of this year, you did not have a knife with you, that of course having been collected by the police from the pharmacy the subject of the attempted armed robbery. But you shouted that you have got a gun and attempted to obtain what you required in the form of Xanax using that threat. The pharmacist working at the time stated that she felt very afraid for her safety during the incident.
7 These are serious offences and very much more serious than any offending conduct you have engaged in, in the past. As the learned prosecutor pointed out to me during the course of the plea hearing, these offences were committed against offenders in their place of work. They are generally referred to as soft targets and the courts to have an obligation to take note of the need to offer a measure of protection to people who work in such vulnerable circumstances. These offences are undoubtedly prevalent. Frequently they are committed by people who have one form of substance abuse history or another, or some form of addiction to a narcotic substance. It is true that although you may never have intended to inflict injury with the knife, you did use the knife in close proximity of your victims and in circumstances where events could have led to a more serious outcome, if the victims have attempted to tackle you or otherwise engage with you in response to the threat that you were offering to them.
8 It is true that your offending cannot be regarded as sophisticated. But the offences are serious even if properly characterised and I think they are properly characterised as being at the lower end of the spectrum of offences of this kind.
9 Turning to matters personal to you, your counsel tendered on your behalf a letter from your father, a report dated 5 October 2012 from Warren Simmons, psychologist. A report or letter dated 8 October 2012 from Samantha Bartholomews, a drug and alcohol counsellor with the Eastern Drug and Alcohol Service. A letter dated 18 July 2011 from Dr Lyn Hall. And a report dated 14 September 2011 from the Department of Justice, Corrections Victoria, in relation to a community-based order which had been imposed for earlier offending.
10 The report of Mr Simmons conveniently sets out a background history which indicates that your parents' marriage broke up when you were at a relatively early age. Initially you stayed with your mother but about age 13 you went to live with your father. It seems that the disciplinary regime which your mother's household had imposed was not to your liking and that the rather more relaxed atmosphere at your father's home as well as no doubt his support and affection was more to your liking at that stage of your life.
11 Unfortunately it seems it was not long after that that you became involved with a young man and also became involved with taking illicit drugs. It seems that through your first boyfriend, you were aged 14, you were introduced to heroin use and soon became addicted. Subsequently you were introduced to amphetamines apparently during a heroin drought. You ceased using heroin and had not use that as a drug of choice at any rate since that time although you have been taking methadone to deal with and reduce the risk of your returning to heroin use. Thereafter you used other drugs and more recently it seems that you have had prescribed for you at the rate of two and a half milligrams a day the drug Xanax to control your anxiety.
12 Unfortunately the experience these courts suggest that persons with a background in drug abuse and in particularly persons with benzodiazepine addiction or history of benzodiazepine addiction which you apparently had, have a great deal of difficulty in controlling and regulating their use of Xanax.
13 I have no doubt that your use of and perhaps addiction to Xanax was a very significant if not the sole driver of your offending conduct in relation to each of these offences. I have no hesitation in finding that there is a clear nexus between your addiction to Xanax and the commission of these offences.
14 I indicated to your counsel during the course of the plea hearing that the principles that were underscored by the Court of Appeal in this State in the case of R v Lacey [2007] VSCA 196 do apply in the sense that in circumstances such as these, the nexus between offending conduct and drug addiction can mitigate sentence significantly. I think that the evidence supports that conclusion. Indeed very fairly the prosecution have indicated that they accept that as a proposition.
15 You are fortunate I think that your parents are here today as it shows support for you and they will be a support for you I have no doubt in the future. You have of course admitted these offences immediately when confronted by the police and you did not seek in any way to prevaricate. I accept entirely that you had no intention of causing any actual harm to any of your victims. I accept that you now appreciate the kind of fear that your conduct would or may have instilled in those who witnessed your conduct and to that extent that you are remorseful for your conduct. I think that you are probably ashamed of your conduct on those occasions.
16 You have also pleaded guilty at the earliest reasonable opportunity to your offences which supports the proposition that you are remorseful. There is also a utilitarian benefit. You have saved the State money in pleading guilty rather than contesting the charges and you are to be given credit for that as well as for the remorse which the plea indicates or supports.
17 Drug abuse has blighted your life and prevented you I think from leading any worthwhile working career up to now. It will continue unless you do something about it. I think it is fair to say that you had to some extent tried to grapple with this problem at various stages of your life but dealing with this problem requires great discipline and continued application of that discipline and the sustained effort on your part which drives through to a point where you can control your life. It seems that you have made efforts and I think that is to your credit. But unfortunately you haven't yet demonstrated that degree of discipline. The breaches of your community-based orders up to now may not, any of them, be serious breaches but they do represent a pattern of a failure up to now to observe that degree of discipline which is required.
18 I would like to say that I was convinced that you do at the moment have good prospects of rehabilitation. I am sure that you wish to be rehabilitated. But I think the kindest way I can put it was what I said to you in the course of the plea that one would have to be guarded at best about your prospects because your history at the moment has not really shown that ability quite to force it through.
19 I would like to be able to treat you as a person who simply had to be rehabilitated and as a medical case if you like. I have also to ensure that other sentencing considerations are given proper weight. One of those is the denunciation of this court of conduct of this kind particularly where the offending conduct is prevalent. I do need I think to punish you for your offending conduct and to ensure to the extent that it is reasonable that you do not commit offences of this kind again.
20 I also have to consider the deterrent effect of the sentence on others. I also have to consider your rehabilitation in the mix of competing considerations that I have just outlined. That is a balancing exercise and not an easy one. I think I indicated during the course of the plea hearing the difficulty that you have placed a court that would otherwise have been perhaps well disposed towards erring on the side of rehabilitation by committing an offence whilst on bail. That is a difficult one for the court to ignore.
21 I cannot say how I would have dealt with you if I had to deal with you on 11 October this year but certainly it would have been much easier to have acceded to the submissions of your counsel.
22 I unfortunately find myself persuaded that the only sentence that I can properly pass upon you is a term of imprisonment. Your counsel very eloquently made a case for a community correction order. It is true that community correction orders can even in a serious case be made where a prison sentence would otherwise be appropriate but I think I would be failing in my duty having regard to the commission of the further offence whilst you are on bail.
23 I accept that it will be harder for you doing time when you are still a person struggling with addictions and with a history of substance abuse and I take that into account in assessing the appropriate sentence. Just as I approach sentencing on the basis that I think that the link between your drug addiction and the commission of the offences substantially mitigates the culpability of your offending conduct and should result in a substantial reduction in sentence below that which would otherwise be appropriate for what you did.
24 Taking all those factors into account I am now ready to pass sentence upon you so would you please stand.
25 On Charge 1 of armed robbery I sentence you to 15 months imprisonment and convict you. On Charge 2 of attempted armed robbery I sentence you to 12 months imprisonment and convict you. On Charge 3 of robbery I sentence you to nine months imprisonment and convict you.
26 The sentence on Charge 1 is the base sentence and I further order that two months of the sentence on Charge 2 and the nine month sentence that I pass on Charge 3 are to be served cumulatively upon each other and with the sentence that I have imposed on Charge 1. So the total effective sentence is 26 months imprisonment.
27 I order that you serve a minimum of 15 months before being eligible for parole.
28 I have taken the view that having regard to all the circumstances the range put forward by the prosecution is too high and I have reduced what might otherwise be an entirely appropriate sentencing range because of the effect of your addiction on the offending conduct as well as the other factors that I have outlined. It seems to me that giving proper effect to that mitigating fact the sentencing range put forward by the prosecution was as your counsel suggested, too high.
29 But for your pleas of guilty, I would have sentenced you to a total effective sentence of three years and three months imprisonment with a non-parole period of two years.
30 I declare that 59 days that you have already served is time served upon the sentence that I have passed and should be deducted from that sentence. So you will have to do 13 months thereabouts.
31 It is not for me to lecture you as to how you might go about spending that time but I would strongly recommend that you pursue whatever avenues you can to obtain help whilst you are in custody. There are programs available. You may have to work hard to get on to them but if you can get on to them then they could help you. It very much depends upon you as to how much benefit you get out of the period of your forced incarceration and hopefully you will find people along the way who will give you the kind of help that you are going to need when you get out. I would suspect that you will get parole at the end of that period and that too is an opportunity to seek and obtain further help along the pathway which I think you want to be on and stay on. You are going to need all the help you can from your parents and friends siblings along the way to keep you on that path.
32 I further order that the forensic sample that you have already provided be retained in accordance with the draft order that I have been provided with.
33 I further order a disposal order in terms of the draft that I have been provided with and that relates to the kitchen knife that you used in the first two offences.
34 I decline to make any order on the applications for compensation.
35 Are there any other orders?
36 COUNSEL: As Your Honour pleases.
37 HIS HONOUR: All right. You may take her down. I will hand the signed orders.
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