Director of Public Prosecutions v Pursell

[2015] VCC 1577

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02030

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE-LEE PURSELL

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 November 2015
CASE MAY BE CITED AS:	DPP v PURSELL
MEDIUM NEUTRAL CITATION:	[2015] VCC 1577

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	Mr A. Sherwood	OPP
For the Accused	Mr D. Care	Dowsley & Associates

HIS HONOUR: 

1Jamie-Lee Pursell, you pleaded guilty to one charge of theft, one charge of attempted armed robbery and three charges of armed robbery.  There was also a related summary offence which I will deal with as well in this sentence.

2The summary of agreed facts was tendered on the plea and was exhibited for purposes of this sentence.  Suffice to say, on 14^th of July 2014, you were released from prison and you went to a convenience store in St Kilda.  You asked to see a knife for purchase and the person at the counter showed you a box cutter, and when you obtained it you failed to pay for it and walked out, having stolen it.  This was the first Charge.

3A few minutes later, you went to the fast food store in Fitzroy Street and approached a customer who was eating a meal there.  You grabbed the back of his neck with your hand, pulled him towards you and you pushed the box cutter against his throat.  You demanded money.  He refused to hand over money and his phone.  When the store owner approached you, you released the man and walked out.  This was Charge 2 of attempted armed robbery.

4A few minutes later, you committed two offences of armed robbery.  You went into a restaurant again in Fitzroy Street.  There were over twenty diners seated there.  You approached two women, put your arm forcefully around the throat of one as she sat at the table.  You pushed the box cutter against the throat and demanded money.  All the victim could hand over were coins so you pulled her tighter and asked her for her bank cards.  While the box cutter was pressed to her neck, she attempted to free herself and was injured, receiving small cuts to three fingers.  You then demanded money from the other woman with whom the first victim had been sitting while holding the box cutter to the neck of the latter.

5A member of staff pulled you away and as he did so, you slashed at him, causing him to move back in fear.  This was an assault the subject of the summary offence.  You demanded money also from him, you then took hold of the first woman again and again demanded money from her and from the staff member.  You then grabbed the second woman's wallet which held cards and $60 in cash as well as well as a mobile phone.  The approximate value of the property taken was about $1500.  You then ran out.

6A few minutes later, you went to the chemist on the same street.  You approached a staff member and told her you had a prescription for Xanax.  When the staff member questioned the matter of having the prescription, you said, "Give me Xanax now."  You lunged at her and she fell back; you stood over her waving the box cutter at her and you screamed, "Where's the Xanax, give me the Xanax."

7You then approached the pharmacist and demanded Xanax.  He handed you a box of paracetamol.  You pushed past him and grabbed six boxes of paracetamol plus and you then left.  This medicine was valued at just over $55 and was later recovered and returned.

8Very shortly after this, you were seen by police in the area.  Upon approaching you, they requested that you to lie on the ground.  You brandished the box cutter at them, they then deployed capsicum spray to disarm you and arrest you.  Police recovered some items but the cash and mobile phone were not found.

9At the St Kilda police station, you were interviewed and made full admissions.  You said, "I'm sick of everything, sick of people using me and ripping me off, I'm sick of people treating me like shit.  Now it's my turn and see how they like it."  You were, you said, looking for money to buy drugs and you said that you had been ripped off in a drug deal that morning.  You admitted using a number of drugs and you expressed no remorse because your victims were better off than you.  You admitted selling the phone to get money.

10Victim impact statements were received from the two women diners, victims of your armed robbery in the restaurant.  The first of them I shall refer to as T, reported being terrified by the experience.  The robbery caused great fear and anxiety not just at that time but thereafter.  She did not go out for a period of time, changed her work shifts to avoid the evening and she avoided social contact.  She suffers now from an adjustment disorder in which she relives the moment and trauma of the robbery.  She is a student and these events have created difficulties with her concentration, confidence and as a consequence her academic performance and her sleep patterns have been affected.  She says she is fearful and hypervigilant, and her enjoyment of life has been diminished.  She has developed alopecia in response to the trauma, a condition which requires treatment and is an obvious mark on her of your offending.  She could not afford to replace the phone.

11The other victim impact statement comes from the second woman to whom I shall refer to as M.  She was the person who received the cuts to her fingers.  Apart from those injuries, the robbery caused her great fear and trauma.  She experiences anxiety when out in public especially at night, and she too is hypervigilant.  The events have isolated her socially and her sleep has become irregular.  She experiences lack of energy, lethargy and depression.

12I take these significant impacts into account in this sentence.

13You were charged on 15 July 2014, and at the committal case conference in mid-November 2014, you entered pleas of guilty.  Because of this plea, your sentence will be discounted appropriately.  I accept that not only your plea of guilty has a utilitarian value to the community and the justice system, but it is accompanied by remorse.

14OFFENDER:  Do I stand?

15HIS HONOUR:  No, not now.  I'll tell you when to stand.

16I note that the maximum penalty for armed robbery is 25 years' imprisonment and an attempt attracts a maximum of 20 years.  Theft carries a 10 year maximum.  By these high penalties, the law indicates the seriousness of these offences.  The armed robbery and the attempt were perpetrated as serious, it was a course of criminal conduct not an isolated incident.  They were committed upon unsuspecting vulnerable members of the public and an essential service provider, a pharmacy, which provides assistance to the community.  These were easy targets and the use of this dangerous weapon, a box cutter, only fortunately did not cause more significant or serious injuries.

17These events were terrifying to all involved and despite their somewhat unsophisticated pedestrian nature, the impact is substantial and they should be regarded as serious examples which must be punished by the court.  The community rightly looks to the court for protection and to denounce in no uncertain terms such conduct in order to deter, by its sentence, anyone who would be like-minded to behave in this way.

18You are now 22 years old of Aboriginal background.  You were born and raised in Tasmania.  You are the second child of four to different fathers.  You have not met your biological father and are estranged from family members.  Your stepfather as of early 2014 had been a violent, abusive man.  It appears from past reports that most of your difficulties stem from your mother's neglect and abusive behaviours in your childhood.  Such behaviour extended to the video-taping of sexual abuse by your grandfather.  Your upbringing was a torturous and difficult period which has left you with post-traumatic stress, personality issues and substance dependency issues.

19You have a poor academic record, having been expelled from secondary school in Year 7 for violent behaviour.  You had effectively no employment since.  You are single and without children but the relationships which you have had have invariably been dysfunctional and abusive.  You have been unable to secure ongoing accommodation, often finding yourself essentially couch-surfing or on the streets.  Your substance abuse commenced in childhood.

20In a report by Dr Janeith dated 30 January 2014, she reported you had been dependent on heroin and unsuccessfully treated with methadone at that time.  You told Dr Sullivan (for a report which he provided dated September 2014) that you were made a ward of the state and that no one wanted you.  You were placed in group homes but not with other children and you reported frequently absconding, alcohol abuse and promiscuity.  At that date you were on Seroquel, a sedative antipsychotic medication as well as a mood stabiliser, on a daily basis.

21A more detailed account of your disadvantaged background is contained in the report of Kerrick West, clinical psychologist, dated 19 October 2009.  He had engaged with you since November 2008 as your principal therapist when you were 14 years old.  Already at that time, there were recurring themes of self-harm and suicidal behaviours which run throughout your mental health history.

22He reported diagnosis of an emerging borderline personality disorder.  Such a disorder, he pointed out, is not a mental illness per se but describes the maladaptive way of individual response to the world.  Whether by neglect, abandonment in early years or by significant trauma in childhood, and concurrent arrest in normal emotional development, such a disorder in my view must be taken into account when a person of such background commits a crime and is to be punished for it in amelioration of the sentence.

23The sexual abuse and violence experience have contributed to your post-traumatic stress disorder.  These events have left you with emotional and behavioural dysregulation, and often the fact with feelings of shame reinforcing your long held belief that you are a bad person.  I note that not only the tendency to hurt yourself and others by attempting to strangle is said to be connected to past traumatic experiences but that violence directed to your victims' neck is also a feature of these current offences.

24I have taken into account the extremely comprehensive two reports of Kerrick West, Dr Janeith and Dr Sullivan.  In particular, Dr Janeith in January 2014 confirmed the borderline personality disorder, post-traumatic stress disorder and substance use disorders, all of which become aggravated by environmental instability factors such an unemployment, periods of homelessness, familial discord, as a result of which you managed your distress with drug use and explosive aggression.  This is descriptive of your behaviour on the occasion of these offences.

25In Dr Janeith's opinion, your anger, anxiety and impulsivity reduced your ability to form rational judgements or think clearly or consider the true consequences of your actions.  In addition, incarceration is said to be detrimental to you because it aggravates your psychological pathology and entrenches your institutionalisation.  Your long history of incarceration for someone so young suggests prison no longer serves as a behavioural deterrent, if such an outcome was ever possible.

26Dr Sullivan's report dated November 2014 outlines substance use history and forensic history which I have noted.  In the report in which he determined that you were fit to be tried, he included a review of the current offences and your account of them.  You reported using ice, heroin and cannabis at the time of these offences.  You stayed at a hotel in St Kilda and engaged in street sex work to get money for drugs.

27In his opinion, you satisfy a diagnosis for a severe mixed personality disorder with borderline and antisocial elements.  He did not consider that a mental impairment defence was available to you.  Importantly, he opined that there was no clear indication that mental illness was relevant to the alleged offending and this is not unusual given that the proper understanding and classification of the disorder as I have described above.  He agreed that your experience in incarceration is markedly more burdensome than others would due to your disorder.  He hopes, as I do, that (during incarceration) opportunities are provided to you, with appropriate intervention to address your issues.

28When your plea was listed for the first time, I wished to have an updated report on your situation.  Unfortunately, this process has taken longer and it has been more difficult than I had envisaged, either because you have been transferred, hospitalised or unwilling to cooperate.  However, ultimately through the persistence of Dr Pandurangi, a report was able to be obtained and is dated 14 September 2015.  He agreed with much of the material I have referred to and with the onerous nature of a term of imprisonment.  In the prison setting, you have been managed in an extremely restrictive regime which is also likely to lead to your deterioration.  Conversely, you are unlikely to meet the criteria for an admission to a psychiatric unit in the community.

29I have taken into account also your prior criminal history which is relevant to your prospects of rehabilitation and a complete understanding of your background.

30I note your prior conviction for armed robbery, an attempted armed robbery in November 2012.  I have read the sentence of Her Honour Judge Hogan on that date of two years with a non-parole period of eight months.  Importantly, the circumstances of those offences are alike to these with which I am dealing.  You used a knife to rob, demand money, and threaten to stab the victim in the throat on a bus which contained about ten to twenty people including children.

31You have priors from 2006 to 2012 including assaults, disorderly conduct, arson, attempted aggravated armed robbery and armed robbery.  Despite your history, your sentence is a challenging exercise as indeed Judge Hogan stated in 2012.  Your moral culpability in my view is somewhat reduced by your situation and state of health.  This justifies moderation upon the principles of general and specific deterrence.  I take into account the burdensome nature of your reclusion.

32As Her Honour noted, the need for assistance in setting you up in the community and providing support to rehabilitate you and address all your issues in a coordinated way will be a challenging task.  I therefore impose a longer than usual period.

33Is there an agreed time - agreed number of pre-sentence detention dates?

34MR SHERWOOD:  Yes, Your Honour, the time is now - inclusive of today, 335 days.

35HIS HONOUR:  Yes.  You have spent 334 days exclusive of today as pre-sentence detention, and I will note these days in the records of the court.  I will sign disposal orders in relation to the box cutter.

36I should also add matters which post-dated the current offences were properly brought to my attention.  I am not sure, upon what I was told, how the matters were dealt with; they involved offences committed whilst at the Dame Phyllis Frost Centre, Ravenhall, and they belong to a time in mid-June 2013, a number of assaults of prison officers in July 2013.  You were apparently bailed and accommodation was found for you, but you relapsed into drug use.

37I have also received a letter from you which I read and which I accept demonstrates remorse and an appropriate effort to demonstrate that, and I appreciate the effort you have made in writing to me.

38I should say that I consider that the period of cumulation between Charges 2 and 3, the armed robbery charges, should reflect the fact that these were separate victims, but that to a large extent the armed robbery was essentially one course of conduct so that the cumulation is a minimum.

39Could you stand please, Ms Pursell.

40On Charge 1, the charge of theft, you are convicted and sentenced to one month imprisonment.  That sentence will be concurrent with other sentences.

41On Charge 2 on attempted armed robbery, you are convicted and sentenced to 20 months' imprisonment.

42On Charge 3 of armed robbery, the base sentence, you are convicted and sentenced to 24 months' imprisonment.

43On Charge 4, armed robbery, you are convicted and sentenced to 24 months' imprisonment and also on Charge 5, the last armed robbery, you are convicted and sentenced to 24 months' imprisonment.

44On the summary charge of assault with a weapon, you are convicted and sentenced to six months.

45I order that two months on Charge 2 of the attempted armed robbery, two months on Charge 4, three months on Charge 5 and one month on Charge 6 be cumulative, that is, eight months cumulative on the two year base of Charge 3.  That makes 32 months.

46I order a non-parole period of 18 months.

47But for your plea I would have sentenced you to three and a half years with a two year non-parole period.

48I note for the records of the court that you have spent 334 days by way of pre-sentence detention.  On a very rough calculation, you have served approximately a year; you have got about six months to go, more or less.

49I will sign disposal orders although I do not - let me just have a look whether they have been handed up to me at this stage.  Take a seat.

50I don't seem to have those, Mr Prosecutor, do you have copies of ‑ ‑ ‑

51MR SHERWOOD:  Your Honour, I may be able to produce them if I'm given a minute.

52HIS HONOUR:  Yes.

53Actually, I've got them here.  Thank you.

54MR SHERWOOD:  Thank you, Your Honour.

55HIS HONOUR:  Were the details of that sentence clear?

56MR SHERWOOD:  Yes, Your Honour.

57MR CASE:  Yes, Your Honour.

58HIS HONOUR:  All right.  Sine die.

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