Director of Public Prosecutions v Purcell

[2018] VCC 869

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02491

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE-LEE PURCELL

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2018
DATE OF SENTENCE:	24 May 2018
CASE MAY BE CITED AS:	DPP v Purcell
MEDIUM NEUTRAL CITATION:	[2018] VCC 869

REASONS FOR SENTENCE
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Subject:         Armed Robbery x 1, Theft x 1

Sentence:      4 1/2 years' imprisonment / 3 years non-parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Harrison
For the Accused	Mr N. Goodfellow

1HIS HONOUR:  Jamie-Lee Purcell, you have pleaded guilty to:  one charge of theft, for which the maximum penalty is ten years' imprisonment; one charge of armed robbery, for which the maximum penalty is 25 years' imprisonment; and one charge of attempted armed robbery, for which the maximum penalty is 20 years' imprisonment.  Those offences are charged on indictment.  At the time that you pleaded guilty, you also agreed to having a summary offence dealt with by me.  That is a charge of committing an indictable offence whilst on bail, and the penalty for this summary offence is imprisonment for three months.

2You are aged 24, and were born on 2 November 1993.  The offences committed by you each occurred on 22 September 2017, at which time you were aged 23 years.  The circumstances of your offending are contained in a prosecution summary dated 29 March 2018.  The summary was summarised in open court by the prosecutor, Mr Harrison, and your counsel, Mr Goodfellow, agreed that the summary was accurate, and forms a proper basis from which I can sentence you.  I marked the summary as Exhibit A.

3It is not necessary that I here set out in detail that which is explained in full by the summary, and I will do so only in an abbreviated way.  These sentencing remarks should, however, be read in conjunction with what is contained in the summary.  On 19 September 2017, you were released on bail on other matters from the Prahran police station.  Those offences included drug offences.  Around 1.15 pm on Friday 22 September, you entered Woolworths in St Kilda West where you stole a knife from a shelf and unwrapped it from the packaging.  Charge 1, theft.

4You then went to the Beer Wine and Spirits store through Woolworths where you approached the attendant, saying to him, "I need $250 and you have got two seconds."  You started counting, and pointed the knife at the attendant before hiding it behind your back.  The attendant removed $250 from the cash register and gave it to you, and you left the store.  Charge 2, armed robbery.  The offending was captured on CCTV, and I have viewed the footage.  Although fairly unsophisticated, your offending in this charge was nonetheless serious.

5You threatened an unarmed shop attendant engaged in his employment.  He was a soft target.  You took no steps to disguise yourself, and your offending was, I think, spontaneous, born out of your uncontrollable desire to buy drugs immediately after the offending.  In a separate episode of offending at about 8.15pm on the same day, you entered Danish Blue, an adult store in Fitzroy Street, St Kilda.  Again, this business was attended by a lone female shop attendant.  She asked, "How are you?" at which point you were observed to stagger backwards, bumping into a wall or shelf.

6You appeared to be either drug or alcohol affected.  Again, this was captured on CCTV, which I have viewed.  You produced a kitchen knife from beneath your top, and pointed it at the attendant, and demanded $250.  The attendant told you she wasn't going to give you anything.  You then raised the knife above your head, pointing it at the attendant, who then activated an alarm.  The attendant was yelling at you not to hurt her, and she called out to other customers in the store, warning them that you were armed with a knife.

7You yelled at the attendant, "Call the cops, I don't care."  As the attendant tried to back out of the counter area, you walked towards her with the knife still raised in the air.  When the attendant went to a room at the back of the store, you left the store.  The police were called.  Charge 3, attempted armed robbery.  As with Charge 2, your offending was again serious.  You behaved in an erratic fashion whilst armed with a knife, and repeatedly threatened the shop attendant with it.  This was a truly frightening experience for the person involved.

8I received into evidence a victim impact statement from the relevant shop attendant which reveals the extent of harm which your offending in Charge 3 has caused her as the victim.  In short, she feared for her life, and this has left her psychologically damaged.  In passing sentence, I have taken this into account, as I must.  Whilst again serious, your offending in Charge 3 was again, in my opinion, unplanned and unsophisticated.  Again, you were not disguised in any way.  Again, it seems your offending was spontaneous, driven by your craving for drugs.

9Indeed, you were obviously drug affected when you committed the crime.  The fact you were drug affected explains in part all of your offending, but it does not excuse it.  All of this is conceded appropriately by your counsel, Mr Goodfellow, who filed a helpful outline of submissions with the court, which I marked as Exhibit 1.  In sentencing for offending of this kind, the court must have proper regard to the application of the principle of general deterrence.  The sentence imposed must deter others who would seek to offend as you have.

10Because of your prior convictions, the sentence here must have proper regard to specific deterrence:  you must be deterred from re-offending.  The sentence imposed must denounce your offending, and, in my view here, must also have proper regard to the need to protect the public from you.  You have pleaded guilty to the charges, and that is to your credit.  By your pleas of guilty, you have saved the time and costs of what might have been two trials.  By your pleas of guilty, you have thus facilitated the course of justice.

11You were arrested and charged with these offences on 23 September 2017, and you were remanded in custody, and have remained in custody since that time.  As of today, you have served 244 days' pre-sentence detention.  At the time of your arrest, you were sitting in the bicycle lane outside 1 Fitzroy Street, St Kilda.  You were assessed as being severely drug affected, and you were taken by ambulance to the Alfred Hospital.  You were later assessed as being unfit to be interviewed, but admitted your commission of these offences at the outset.

12You indicated that you would plead guilty to the charges at the first committal case conference.  I treat you as having indicated that you would plead guilty at the earliest opportunity in the criminal process.  For that, you are entitled to a reduction in sentence, and this reduction will be reflected in the sentence that I will shortly pass.  Further, I treat your pleas of guilty as evidencing your remorse for your offending.  I turn to some matters related to your background and personal circumstances.

13When you pleaded guilty, you admitted prior convictions from three court appearances in 2012, 2014, and 2015.  On the hearing of your plea, I asked the prosecutor and your counsel to agree on a history of your offending and the time you have spent in custody.  After the plea, I have received this agreed document, which I will mark as Exhibit E.  In 2012, aged 19, you were sentenced in this court on charges of armed robbery and attempted armed robbery and failure to answer bail, for which you received a total effective sentence of two years' imprisonment, with a non-parole period of eight months.

14You were granted parole on 27 May 2013, but your parole was cancelled on 11 June 2013 because of further offending.  You completed your sentence on 30 June 2014, but remained in custody on remand.  You were released on bail on 2 July 2014, but bail was revoked, and you were again remanded on 14 July 2014.  On 3 September 2014, you were convicted in the Magistrates' Court on offences involving violence, for which you received a total effective sentence of six months' imprisonment.  Taking into account pre-sentence detention, you completed that sentence on 24 January 2015, but remained in custody on remand.

15On 5 November 2015, you were again sentenced in this court on three charges of armed robbery and one charge of attempted armed robbery, one charge of assault with a weapon, and theft.  You received a total effective sentence of two years and eight months' imprisonment, and a non-parole period was fixed of 18 months.  A declaration of 334 days' pre-sentence detention was made, so that you were released from custody on 4 August 2017.  You remained free until 23 September 2017 when you were again remanded in custody for this offending, and you have served 244 days' pre-sentence detention on remand for this offending.

16According to the history agreed, since the first time that you were remanded on 18 June 2012 until now - nearly six years - you have been out of custody for only 94 days.  It is of great concern, not only for you and your well-being but also from the community point of view, that you have repeatedly re-offended in the way that you have, and so soon after having been dealt with by the courts for similar offending.  I was also told, appropriately, that you have other charges pending in the Magistrates' Court.  These involve drug and dishonesty offences and threats to inflict violence.

17I infer it was these offences that resulted in you being on bail at the time that you were committed for these offences - I beg your pardon – at the time that you committed these offences.  Yours has been a tragic life.  You were born in Tasmania, and you are an aboriginal woman.  You come from a clear background of disadvantage, neglect, and serious abuse both physical and emotional but also sexual.  You have never known your father.  You have three half siblings each born of a different father.  You have no contact with any of your family and you are alone in Melbourne.

18When you were born, your sister was taken out of your mother's care because of neglect.  Between the ages of eight and ten, I was told and accept you were physically and sexually abused by a step-father.  You told your mother, who did nothing.  I was told and accept that your own mother was emotionally abusive towards you, and she was neglectful of you.  You have been the subject of a care and protection order in Tasmania from the age of 12 years.  Your mother was often unable to provide housing, resulting in you often being either homeless from a young age or placed in state care and protection.

19At age 18, you came to Victoria and since have had no family contact and no support from outside whilst inside prison, either serving a sentence or whilst on remand.  Your education was constantly disrupted by the family moving from place to place in Tasmania.  Between 1999 and 2007, you attended 12 different schools.  You were expelled in year 7 and that brought your education to an end save for literacy and numeracy programs undertaken by you whilst in custody.

20A ray of light or hope for you is the fact that whilst in custody, especially more recently, you have embraced education, and you now participate in education five days per week, including a music program.  That is to your credit, and one can only hope that it will assist you onto a path in life free from drugs.  Anyone reading these sentencing remarks, I think, would have to agree your background history is a tragedy, both from your own personal point of view and also from the community's.

21More should have been done to protect you as a child.  It was not, and you were left to fend for yourself without family help and with only protective assistance from the State in a time of crisis.  Once each crisis passed, it seems you were again left to fend for yourself.  All of this, of course, does not excuse your offending, but it goes a long way to explaining it.  You are a drug addict of a poly substance kind.  It seems you will take any drug.

22In your world, gaol at least takes you away from drugs to some extent, and provides you with a roof over your head and three meals a day and, finally, educational opportunity. Indeed, it provides you with supports that you have never had in your life.  I am cognisant of the fact that a long sentence runs the risk you will become institutionalised to prison, if you have not already done so.  Further, I am mindful of the fact the sentence I will impose will be the longest sentence of imprisonment that you have received.

23That is because the need for the sentence to properly reflect specific deterrence because of your prior convictions.  I admitted into evidence a psychiatric report from Dr Danny Sullivan, dated 14 November 2014, and psychological reports from Mr Kereth West, dated 19 October 2009, and from Dr Julie Janev, dated 30 January 2014.  You have been diagnosed as suffering from borderline personality disorder, post-traumatic stress disorder, as well as substance abuse disorder.  You are of low-average intelligence.  You have a history of self-harm, including whilst in custody, and this is documented.

24You are still a young woman, and it is not too late to have a meaningful life.  Whilst I think it will be very hard for you to rehabilitate yourself and that you are a significant risk of re-offending, nonetheless I am impressed by the fact you have embraced the limited opportunity you have had whilst in custody to educate yourself.  As I say, this is a ray of hope, and I sincerely hope that whilst in custody you can be guided to grasp it fully, so that it may affect your life for the better.

25I accept you are remorseful, and I accept that you have expressed appropriate empathy for your victims, especially in relation to Charge 3.  Whilst I am mindful of the length of time you have been in custody previously, and that I must have regard to totality - which was stressed by Mr Goodfellow on your plea - I must also have regard to the sentencing principles outlined above and of the need to impose a sentence that is fair and just and which gives you the best chance of rehabilitating yourself.

26In passing sentence, I have endeavoured to properly have regard to all of these matters.  On Charge 1, theft, you are convicted and sentenced to a term of imprisonment of one month.  On Charge 2, armed robbery, you are convicted and sentenced to a term of imprisonment of three years.  On Charge 3, attempted armed robbery, you are convicted and sentenced to a term of imprisonment of two and a half years.  On the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of one month.

27I direct that 18 months of the sentence imposed on Charge 3 cumulate upon the sentence imposed on Charge 1, making a total effective sentence of four and a half years' imprisonment, and I direct that you serve a minimum term of three years before being eligible for release on parole.  I declare that there has been 244 days' pre-sentence detention under the sentences passed this day, and that 244 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.

28For the purposes of s.6AAA of the Act, I state I have imposed sentences being terms of imprisonment, and I have reduced the overall sentence I would have imposed but for your pleas of guilty.  Had it not been for your pleas of guilty to the charges, I would have imposed a total effective term of imprisonment of seven and a half years, and I would have fixed a non-parole period of five years.  Mr Goodfellow, I will allow you to approach your client.  She wants to say something.

29MR GOODFELLOW:  Thank you, Your Honour.  She's just requested that I indicate to the court that she is aware that imprisonment is in fact the best thing for her at the moment, and that she intends, in effect, to use that time as productively as she can.

30HIS HONOUR:  Very good, Ms Purcell.  I wish you all the best.  Now are there any questions?  Have I calculated the pre-sentence detention accurately?

31MR GOODFELLOW:  Yes, Your Honour.

32HIS HONOUR:  Is that agreed?

33MR GOODFELLOW:  Yes.

34MS SPENCE:  Yes, Your Honour.

35HIS HONOUR:  Thank you, Ms Purcell.  Would you take Ms Purcell back into custody, please?  Thank you for your submissions, Mr Goodfellow, which were helpful, succinct, and to the point.

36MR GOODFELLOW:  Thank you, Your Honour.

37HIS HONOUR:  Thank you.  Adjourn the court until 11 o'clock.

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