Director of Public Prosecutions v Raeburn

[2021] VCC 1486

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-01151

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRACY RAEBURN

---

JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2021
DATE OF SENTENCE:	7 October 2021
CASE MAY BE CITED AS:	DPP v Raeburn
MEDIUM NEUTRAL CITATION:	[2021] VCC 1486

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              One charge of armed robbery and one summary charge of committing an indictable offence whilst on bail – 52 year old offender with significant criminal history including four convictions for armed robbery, one for robbery/assault with intent to rob, aggravated burglary and many other dishonesty offences including burglaries, thefts and handling stolen goods, assault offences including intentionally causing injury and intentionally or recklessly causing injury and offences of failing to answer bail – reservations about prospects of rehabilitation – background of severe deprivation, long term drug addiction and Post-traumatic Stress Disorder, depression and anxiety – utilitarian value of pleas of guilty during pandemic and mitigatory circumstances of more onerous imprisonment during the pandemic taken into account.

Legislation Cited:      

Cases Cited:

Sentence: Total Effective Sentence 21 months’ imprisonment with a non-parole period of 10 months. s.6AAA: 3 years and 6 months’ imprisonment with a non-parole period of 2 years.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr L Cameron	The Solicitor for Public Prosecutions
For the Accused	Ms J Prior	The Law and Advocacy Centre for Women

HER HONOUR:

1Tracy Raeburn, you have pleaded guilty to one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment.  In addition, you have consented to a summary offence of committing an indictable offence whilst on bail being transferred to this Court and have pleaded guilty to it.  That offence carries a maximum penalty of 3 months’ imprisonment or 30 penalty units.

2The circumstances of your offending are detailed in the agreed summary of prosecution opening (Exhibit “A”). 

3At approximately 5:06pm on Sunday, 27 January 2019, you went to the Caltex service station at 153 High Street in Northcote.  After loitering near the front of the store for a time, you entered the store at about 5:12pm.  You walked to the coffee machine and, whilst covering your hand with your sleeve, selected a disposable coffee cup and began to make a cup of coffee.  You then asked the sole attendant in the store to assist you, claiming that the coffee machine was broken.  The attendant, Mr Dinesh Arumalla, left his position behind the counter by going through a door and went to the coffee machine to help you.  You then pulled a black handled kitchen knife of approximately 30 centimetres in length from the left side of your pants and pointed the knife at Mr Arumalla’s stomach near his waist and, used your other hand to grab his shirt near his shoulder and directed him back behind the counter.  You demanded that he open the cash register and “pull out the cash”.  He handed over approximately $400 cash from the till.  You then asked him to “open the smokes and get me smokes” and he handed some five to six packets of cigarettes to you.  You placed the items in your jumper and forced Mr Arumalla to walk you to the door of the store whilst still holding the knife in your right hand and walking behind him.  You then left the store, running in a westerly direction.

4At the time of committing this armed robbery, you were on bail awaiting hearing of some charges in the Magistrates’ Court.  Hence, the summary charge to which you have pleaded guilty.

5The perpetrator of the armed robbery was caught on CCTV footage and on 8 February 2019 police conducted a media conference seeking the assistance of the public in identifying the offender.  Information was provided suggesting that you were the offender. 

6At approximately 3:10pm on 8 February 2019, police executed a search warrant at the address of your former partner, Ms Jacqueline Bampton at an address in Northcote not far from the Caltex service station.  You were arrested at that address and taken by police to Northcote Police Station where you were interviewed.  You denied any knowledge of the offending and told a number of lies to police.  When shown still photographs taken from CCTV footage, you denied that you were the person depicted. 

7You were remanded in custody following your arrest on 8 February 2019 but, ultimately, released on bail on 21 August 2019, albeit that three months of this period related to a term of imprisonment imposed for unrelated offending.

8The matter proceeded by way of straight hand-up brief to the County Court and your trial was initially listed to commence on 3 August 2020.  This date had to be vacated due to the inability of the Court to conduct trials during the Covid pandemic restrictions. 

9You made an application for a sentence indication which was heard on 16 October 2020.  At that time the presiding judge indicated that it was likely that a term of imprisonment would be imposed.  In May 2021 you indicated your intention to plead guilty to the charges and were formally arraigned and pleaded guilty to them on 8 June 2021.

10You are presently aged 55 years, having been born on 14 March 1966.  You come before the Court with an extensive criminal history dating back to 1 October 1986.  It includes four convictions for armed robbery, one for robbery/assault with intent to rob, aggravated burglary, and many other dishonesty offences including burglaries, thefts and handling stolen goods, assault offences including intentionally causing injury and intentionally or recklessly causing injury, and offences of failing to answer bail.  Over the years you have been given good behaviour bonds, fines, a Community Based Order, which you breached, suspended sentences and terms of imprisonment involving a head sentence and a non‑parole period on five occasions, as well as shorter sentences of imprisonment which did not involve a non‑parole period.

11In a comprehensive plea on your behalf by Ms Prior, the Court was told that you suffered a disturbing and significantly disadvantaged background.  Although your father apparently lived under the same roof as your mother, they lead separate lives, but he was physically abusive towards her.  You had a poor relationship with your mother.  Your father was a well-known criminal who was part of a notorious criminal family.  He would take you with him at times to places where you were exposed to violence, substance abuse and sexual activity.  On one occasion, after you revealed to him that a person known to him had sexually assaulted you, he severely assaulted that man in front of you.    It seems that you had very little nurturing or care from your mother and were treated as a son and dressed like a boy when with your father.  Notwithstanding this seriously aberrant parenting, you apparently loved your father.  Earlier sentencing remarks state that he was killed in violent circumstances when you were 12 years old,[1] as does a psychological report from Mr Ian Joblin dated 2 July 1998.[2]  However, Ms Prior stated that you were about 16 years of age when this occurred in 1982. 

[1] R v Raeburn [1999] VSCA 19 at paragraph 12; R v Raeburn [2005] VCC 1251 at paragraph 8

[2]        Exhibit “2”, page 2

12Following the death of your father, you went to live with a woman who was the wife of a former employer of your mother.  Your school attendance was sporadic until you finally ceased attending, partway through Year 9.  Apart from looking after the children of the woman with whom you were living and a couple of short periods of employment, you have little employment history.  You have apparently been in receipt of a disability support pension relating to a diagnosis of Post-traumatic Stress Disorder and chronic arthritis for many years. 

13According to a report from Ms Carla Lechner, clinical psychologist, dated 5 August 2020 (Exhibit “1”), you continue to suffer symptoms of Post-traumatic Stress Disorder relating to haunting memories of things you witnessed when you were with your father.  Ms Lechner stated that you also fulfil the criteria for a diagnosis of Major Depressive Disorder and reported having had suicidal thoughts and having slashed your wrists on a number of occasions in the past.  In addition, Ms Lechner noted that you had commenced using heroin at the age of 13 years and had a long standing addiction.  She assessed you as suffering an Opioid Use Disorder. 

14I note that in the previously mentioned much earlier report from Mr Ian Joblin, you had also been assessed as suffering a Borderline Personality Disorder characterised by unstable moods, impulsivity and self-destructive behaviour, including substance abuse and self-mutilation.  Back in 1998, Mr Joblin noted that you had problems with gender identity, that your personality disorder was profound and that you had had a considerable amount of psychiatric treatment.  Ms Lechner made no mention of you having a Borderline Personality Disorder, although I note from earlier sentencing remarks that another psychologist, Dr Sullivan, back in 2005, had opined that the more florid features of that disorder may dissipate and, by middle age, a greater degree of stability may be achieved.[3]

[3] R v Raeburn [2005] VCC 1251 at paragraphs 15-16.

15The thrust of the plea by Ms Prior on your behalf was that, notwithstanding your significant history, you had pleaded guilty to this offence and had spent a total of 6 months in custody up to 21 August 2019 (including a 3 month sentence from the Magistrates’ Court) where you had seriously reflected on your situation.  You had had a long term relationship of approximately 20 years with Ms Bampton and have a daughter together, Phoenix, who is now aged eight years.  The relationship ended in 2018 and Ms Bampton has full time care of Phoenix but you have continued to see her regularly and are very close to her and Ms Prior described her as being the most important relationship in your life. 

16Ms Prior stated that this offending occurred in the context of having broken up with Ms Bampton in the second half of 2018, after not having been before a court since 2008, except for a theft from a shop in 2012.  In addition, your estranged mother was dying from cancer and had requested a death bed reconciliation and, also, you were suffering symptoms of menopause.  It was put on your behalf that these three factors, in combination, provided the backdrop to your offending which occurred after you had relapsed into illicit drug use and needed money to satisfy an outstanding drug debt in a context of alleged threats from your drug dealer.

17Ms Prior told the Court that, since being released from custody in August 2019, you have made substantial rehabilitative gains.  With the exception of a lapse when you committed two charges of obtaining property by deception on 15 and 23 October 2019 respectively and one charge of handling stolen goods in November 2019 (of which 3 charges you were convicted and sentenced to an adjourned undertaking in the Magistrates’ Court on 12 May 2021), you have not reoffended and have largely remained free of illicit drugs.  She stated that you had engaged consistently with the Arrest Referral Program at Star Health, which provides intensive support via outreach services to assist women in breaking the cycle of drug use and offending, and also with the Pathways Program, and had adhered to a Methadone program.

18A letter from Ms Sally Boothby of the Arrest Referral Program at Star Health in South Melbourne dated 12 May 2021 was tendered as Exhibit “4”.  Ms Boothby stated that, prior to you being released from Dame Phyllis Frost Centre in August 2019, you had referred yourself to her and expressed interest in engaging with the Arrest Referral Program.  She stated that, upon release, you were referred to Chance Fitzgerald, pharmacotherapy support worker, who supported you for six months focussing on drug relapse prevention and that you attended every appointment with her and were keen to engage with as much support as you could.  You remained on a Methadone program and saw your general practitioner, Dr Blatt, for medication prescriptions.  She stated that you worked exceptionally hard at addressing identified issues and engaging with supports and were always respectful to workers and punctual to appointments and appeared to be dedicated to remaining drug and offence free.  Apparently Ms Boothby left Star Health in May 2021 and you were referred to Ms Alexandra Bletsas in the Pathways Program with Star Health for intensive case management and support services.

19Tendered as Exhibit “7” was a letter to the Court from Ms Bletsas dated 15 September 2021.  She confirmed that she was a case manager with the Pathways Program at Star Health St Kilda which provides support, advocacy and referral to community agencies for vulnerable and marginalised people.  She had first met you when you were being supported by Sally Boothby and stated that she had been working with you since 11 November 2020.  She confirmed that you engaged well and never appeared to be substance affected and had shown motivation and determination to work proactively on your recovery.  She confirmed your concern that, if you are imprisoned, you may lose your public housing accommodation which you have had for 10 years.  Also, that you are extremely concerned about the impact that your being imprisoned may have upon Phoenix, to whom you are very close.  She stated that she had recently commenced an NDIS application for you and Ms Lechner was shortly to conduct an assessment in support of the application.

20A letter from your former partner, Ms Bampton, was tendered as Exhibit “6”.  She is the birth mother of Phoenix.  She confirmed that you and she are still on good terms, that she assists you attending medical appointments and that you have the care of Phoenix every second weekend and assist her with home schooling during Covid. She stated that Phoenix suffers “selective mutism” and extreme anxiety and suffered emotionally when you were in custody last time and the relationship between the two of you is still affected by that, although it is improving.  She also confirmed the submission of your counsel that, at the time of committing this armed robbery, your estranged mother was dying, you were going through menopause and had an accumulated drug debt which you were paying off and which had resulted in the “creditor” committing criminal acts against her when she had gone to drop off a part payment of the debt on your behalf.

21Since May 2021, you also have received support and case management from Ms Mary Paterson, a case manager at the Law and Advocacy Centre for Women, who provided a letter to the Court dated 15 September 2021 (Exhibit “5”).  This case management support is available for the duration of your legal matters.  This letter reiterates much of what has been stated by Ms Boothby, Ms Bletsas and Ms Bampton.  Ms Paterson states that you are not currently using heroin and, since 2003, have been on a Methadone program prescribed by Dr Blatt.  She states that you have been “clean” since 2003 with only one significant relapse.  However, this does not seem to gel with the fact that you received an 8 month sentence of imprisonment on 5 August 2008 for a number of different offences, were fined on 15 February 2012 for a shoptheft, committed 3 dishonesty offences in October/November 2018 for which you were sentenced to 3 months’ imprisonment in April 2019 and, then, you committed the armed robbery for which I must sentence you in January 2019 allegedly to pay a drug debt. 

22Even though you have been on bail in the community since August 2019, it is clear from Ms Paterson’s letter that you do not have a current psychologist and nor do you have a current AOD counsellor.  This is concerning in the light of Ms Lechner having assessed you on 30 July last year and having recommended long-term therapy as you had struggled with symptoms of PTSD, depression, anxiety and heroin addiction for much of your life and had opined that these problems were linked to your offending.  Ms Paterson stated that you had been in contact with Bayside Alcohol and Other Drug Services for an assessment “this week” (that is, immediately leading up to the plea hearing), yet states that you are “stoic in (your) goal not to relapse and not to reoffend.”

23Ms Paterson stated that Housing Victoria has a policy that tenants will lose their property if they are absent for more than six months unless there are “extremely exceptional” circumstances.  She expressed concern that, if you were to be incarcerated for a period of more than six months, you may lose your housing and become homeless.

24Ms Prior submitted that, in the context of a very deleterious childhood, you had commenced heroin use at age 13 and had developed significant mental health issues and a sustained drug addiction, which explained your criminal history.  However, with appropriate supports, you had shown yourself capable of not offending for periods of time and had now not offended since October/November 2019, and had remained drug free.  She submitted that, were you to be returned to prison this would interrupt your rehabilitation, particularly as you had developed a rapport with your case manager from the Pathways Program, Ms Bletsas, and no one from Star Health would be available to continue to assist you whilst you were in prison.  She urged the Court to note Ms Lechner’s opinion that at the time she saw you, you reported symptoms of “likely severe mental disorder”, “extreme” depression and “severe” anxiety which fulfil the criteria of Post-traumatic Stress Disorder and Major Depressive Disorder such that you would benefit from long term therapy and that a further period of incarceration is likely to be very detrimental to your mental health.  Ms Lechner stated that she would anticipate a further decline in your mood and you may become suicidal. 

25In addition, Ms Prior emphasised your concern about your ability to keep your important relationship with Phoenix a close one and also about potentially losing your long term Housing Commission accommodation and being rendered homeless.  She also highlighted the higher utilitarian value of your pleas of guilty, as they had been made during a time when criminal trials were not able to be conducted, as well as the more onerous nature of conditions in prison occasioned by the pandemic restrictions.  In all the circumstances, she urged the Court to impose a sentence which did not involve any further time in custody but allowed for oversight and supervision by way of a Community Correction Order in combination with the 105 days of pre‑sentence detention served at the time of the plea hearing to enable you to pursue your commitment to ongoing rehabilitation.

26Mr Cameron on behalf of the Director of Public Prosecutions submitted that a disposition by way of head sentence and a non‑parole period was open, but there may be a combination sentence that could be fashioned to serve the relevant sentencing objectives, for example, by not reckoning the pre-sentence detention as time served but taking it into account in imposing a custodial component of a sentence of up to 12 months, together with a Community Correction Order.

27Ms Raeburn, there should be no need for me to tell you that the offence of armed robbery is a very serious one as reflected by its high maximum penalty of 25 years’ imprisonment, as you have been before the courts on four prior occasions for this offence.  On three of those occasions you were armed with a knife and your victim was, as in this case, a soft target at either a convenience store or a service station.  There is no suggestion that any condition of yours by way of Post-traumatic Stress Disorder or depression or anxiety played a role in the commission of the offending for which I must sentence you.  Indeed, your counsel specifically disavowed any reliance upon principles 1 to 4 of The Queen v Verdins[4] albeit that Ms Prior did rely upon principles 5 and 6.  The latter was not contested by the prosecution and is supported by Ms Lechner’s report.

[4]R v Verdins (2007) 16 VR 269

28Although the offence for which I must sentence you is not a particularly sophisticated example of an armed robbery, it was brazen as it was committed in broad daylight.  Also, there is evidence of a degree of premeditation.  Firstly, it seems that you made the decision to commit an armed robbery in order to clear some drug debt albeit that the submissions of your counsel and the letter from your former partner, Ms Bampton, did not detail when this debt had been incurred.  Ms Prior stated that, in the context of having lapsed into drug use, you had accrued a debt which you were paying off and still owed $500 and “reverted to an unsophisticated problem solving mechanism which (you) had used before”.  Elements of preplanning are evident from the fact that you attended at the service station armed with the sizeable kitchen knife which you used in the armed robbery.  Further, CCTV footage shows that you waited outside for some six minutes until all customers had left the store before you entered.  You were wearing large aviator-style sunglasses which partly disguised your face.  It appears that you had a strategy in mind in that you went straight to the coffee machine, where you ensured that you did not leave fingerprints by covering your fingers with the sleeve of the hoodie you were wearing as you touched the takeaway cup and machine.  You then lured your victim, Mr Arumalla, from his position of safety behind the counter, where he was protected by windows and a closed door, by falsely complaining that the coffee machine was not working.

29Although you did not physically harm your victim, the CCTV footage and still photographs taken from it show that you were a much more solid build than your victim’s thin frame.  You physically wielded the knife, which Mr Arumalla described as looking like a kitchen knife of about 30 centimetres in length with a black handle and a sharp edge.  You held the knife towards Mr Arumalla’s stomach and grabbed his shirt as you directed him back to the register.  You kept the knife out as you compelled him to return to the register to achieve what you wanted.  In the CCTV footage the knife is visible in your hand throughout the incident.  It is right next to the till when it is opened and it is in your right hand as you walk directly behind Mr Arumalla to the front door of the store prior to your departure. 

30There is no victim impact statement, but this must have been a very frightening incident for Mr Arumalla who simply complied with all your requests.  I note that part of the armed robbery involved theft of several packets of cigarettes and there is no suggestion that these were required to pay off any drug debt.  Ms Prior did not submit that the Court should find remorse on your part and there is no mention of it in any of the materials which have been filed on your behalf.  The psychological assessment focusses purely upon your emotional state and does not acknowledge any impact upon your victim.

31The Court acknowledges that you have a background of severe deprivation and that such an adverse background may have enduring consequences.  It is also apparent that there have been periods in the past when you have not offended, particularly between 2008 and 2012 and, again in the last two years since October/ November of 2019.  However, I do not regard your prospects of rehabilitation as being such as to overwhelm what must be the primary sentencing considerations for this serious, prevalent offence which are, denunciation of your conduct, general deterrence, specific deterrence and protection of the community.  It is imperative that the law protect members of the community from violent, dishonest behaviour like yours.  It is appalling that people like Mr Arumalla should be subjected to such frightening, anti-social behaviour whilst they are just trying to earn a living.  People are entitled to feel safe in their workplaces and must feel vindicated when their safety is violated in this menacing way.  A strong message must go out to those members of the community who commit such crimes that they will be appropriately punished.  In this regard, I have had the benefit of reading the reasons for sentence of both the Court of Appeal and Judges in this Court for various of your prior matters.  In its sentencing remarks on 15 February 1999, the Court of Appeal noted in relation to the charge of armed robbery which was the subject of the appeal that:

“   the difficulties faced by the applicant dealing with life outside prison, and our society’s singular lack of success in supplying her with the assistance to overcome those difficulties that she needs, do not result in the sentence imposed on the applicant being beyond the range of sentences open to his Honour when all the other relevant circumstances are considered. 

In particular I think that the sentencing judge was entitled to regard, as he did, the need to protect the community as a significant factor and to take into account the aim of general deterrence.  That aim was not rendered irrelevant by reason of the applicant’s psychological condition. 

… 

In my opinion the applicant’s mental condition was not one that precluded awareness of the consequences of her conduct.”[5]

[5]The Queen v Tracey Michelle Raeburn [1999] VSCA 16 paragraphs [11] – [14]

32Time and time again, over the years, you have told courts that you are determined to change your lifestyle of drug abuse and crime. 

33On 14 November 1996, the Court of Appeal recorded that “you told the Court you have turned over a new leaf and you asked for a chance to start your life again”.[6] 

[6]The Queen v Tracey Michelle Raeburn Supreme Court of Victoria (14 November 1996) page 2

34In 2002, His Honour Judge Dyett of this court was told that “you are fed up with your current situation and very anxious to rehabilitate” and “you are now thinking of other people rather than being self-obsessed…(and) … you are determined that you are going to make a fresh start.[7]  

[7]Sentencing remarks of His Honour Judge Dyatt in the County Court (7 May 2002) page 3

35In 2005, Her Honour Judge Sexton of this court noted that:

“It was submitted that you have, indeed, reformed to a certain extent.  For the first time you apparently successfully completed your parole period.” 

Her Honour noted that:

“… your ability to successfully complete this parole period has apparently been enhanced by your abstinence from substance abuse since your increased maturity, valuable support you have had in the community and some stability in your life with a long term relationship and with employment …” and, further, that your “attendance at the drug program in prison was a sign of your determination to remain drug free.”[8] 

[8]Sentencing remarks of Her Honour Judge Sexton (29 September 2005) [2005] VCC 1251 at paragraphs [12], [13] and [16].

36I note that, at your plea hearing before Her Honour Judge Sexton in 2005, you gave evidence that the context for committing another armed robbery was that “you were in the process of breaking off the long-term relationship with your girlfriend, which relationship had provided you with an aspect of stability.”[9]  Yet here we are some 16 years later with similar submissions being made by your counsel about the causative impact of your break up with Ms Bampton and subsequent relapse into drug use.  Ms Prior submitted that you will be removed from or there will be a real interruption to your rehabilitation if you do not remain in the community.  Ms Raeburn, as long ago as 1998, in spite of your mental health problems, Mr Joblin assessed you as being intelligent and insightful into your difficulties and wanting to straighten out your life.[10]  Unhappily, such strengths have not prevented you from offending again in a very serious way. 

[9] Ibid at paragraph [17]

[10]Exhibit “2” report of Mr Ian Joblin 2 July 1998 page 5.

37Whilst I accept that you are a vulnerable person and that you commenced taking illicit drugs at a very young age and that drug addiction is a scourge from which it can be very difficult to recover, you have had multiple opportunities to try to address those issues.  These included a very lenient sentence back in 1995 for an armed robbery, namely, 18 months of which 16 months was suspended for a period of 2 years, yet you were repeatedly before the Court for dishonesty offences in 1995 and 1996 and, then, your second armed robbery in 1998.

38You were 52 years old when you committed this offence for which I must sentence you.  Although your relationship with Ms Bampton had apparently ended by the time you committed this offence, it seems that you remained on good terms and continued to play a role in the life of Phoenix of whom Ms Bampton is the birth mother.  I accept that your relationship with Phoenix is an important one, but you knew this when you committed the offences of burglary and theft in September 2018 (for which you were sentenced on 10 April 2019 to 3 months’ imprisonment.)  You also knew this when you committed this armed robbery on 27 January 2019 as well as being aware of the fact that you were on bail at the time of committing that armed robbery.  Further, even after you were released from custody on bail again in August 2019, approximately two months later, you committed two offences of obtaining property by deception and handling stolen goods on 15 and 23 October 2019 and in November 2019.  Obviously you have already been punished for the burglary and theft committed in September 2018 and those later offences committed in October/November 2019, but they are relevant in terms of assessing your prospects of rehabilitation.  I also make plain that, although you were on bail when you committed the armed robbery for which I must sentence you, I am mindful of the fact that that should not be treated as an aggravating factor, as you have pleaded guilty to a separate summary offence relating to that.

39It seems that even the support of Ms Bampton, with whom you are said to have been in a lengthy relationship for some 20 years up to 2018, could not prevent the spate of offending for which you were sentenced on 5 August 2008.  Whilst I accept that you still have her support as indicated by the letter which she wrote to the Court on your behalf, along with the support of your case manager, Ms Bletsas, in the Pathways Program and formerly the support of Ms Boothby at Star Health, I have serious reservations about your prospects of rehabilitation.  In all the circumstances, I consider that the only appropriate sentence for this serious offence is a term of imprisonment with a head sentence and a non‑parole period.  I do not consider that a combination sentence of up to 12 months’ imprisonment together with a Community Correction Order reflects the gravity of your offending or appropriately serves the primary sentencing objectives of denunciation, general and specific deterrence, protection of the community and just punishment.

40In sentencing you, I take into account the long term impact of your traumatic and disadvantaged background.  However, as the prosecutor, Mr Cameron, submitted, this can be a double-edged sword in the sense that it adversely impacts upon your prospects of rehabilitation.  Indeed, this was a matter the subject of comment by The Honourable Justice of Appeal Buchanan as long ago as 15 February 1999 in upholding a sentence of imprisonment of 3 ½ years with a non‑parole period of 2 years for an armed robbery committed by you with a knife upon an attendant behind the counter of a service station.  On that occasion he stated, “I have found this application troubling, for I can see little basis for expecting that the applicant will be able, either by her own efforts or with help, to break out of the cycle of drug related crime in which she appears immured, and in a sense for which she appeared destined by her troubled upbringing.”[11]  In the past, you appear to have made some rehabilitative gains and have abstained from offending for longer periods than the two years since you were last released from custody (indeed, you have reoffended albeit to a much less serious extent, during that time).  Thus, whilst you are to be given credit for engaging with the support given to you since your release from custody, as I have said, it does not cause rehabilitation to be the dominant sentencing principle.  Moreover, it would wrong of this Court to tailor an inappropriately short immediate custodial sentence around the risk that you may lose your long term accommodation. 

[11]The Queen v Tracy Michelle Raeburn [1999] VSCA 16 at paragraph 18

41In sentencing you I take into account your pleas of guilty.  There is some tension within the submission by your counsel in this regard.  On the one hand, she urged the Court to regard your pleas of guilty as early ones, as they had initially been made to the Crown in April 2019, but then withdrawn and, even after a sentence indication had been provided in October last year it took you until May of this year to indicate that you would plead guilty to the charges.  The timing of your ultimate plea of guilty was such that Ms Prior called in aid the Court of Appeal decision in Worboyes[12] in support of the submission that your plea of guilty has enhanced utilitarian value during the period of the COVID‑19 pandemic restrictions when the conduct of criminal jury trials in this Court has been severely hampered and almost non-existent.

[12]Worboyes v R [2020] VSCA 169

42Mr Cameron for the prosecution explained to the Court that, when you made your offer in 2019 to plead guilty to the charge of armed robbery and committing an indictable offence whilst on bail, you were facing a number of other serious charges of armed robbery which were still being investigated by the Crown and, in particular, evidence of DNA analysis was not available at that stage.  Your offer to plead guilty to the two offences for which I must sentence you in satisfaction of all matters was rejected by the Crown.  Mr Cameron told the Court that your pleas were not reagitated until last year, in June, when you made an application for a sentence indication.  As previously mentioned, an indication that a term of imprisonment would be likely to be imposed was given in October 2020, but your indication of your pleas of guilty did not occur until some seven months later, in May 2021.  This happened in circumstances where the Crown had made a decision that there was insufficient evidence to proceed with the other charges.  It is something of a contrivance, but Mr Cameron submitted that the Court could regard your pleas of guilty as having been entered at “a relatively early stage” and, of particular note was that the matter had proceeded from the Magistrates’ Court by way of straight hand-up brief on 7 June 2019.  Thus, the time and expense of a committal and the inconvenience of witnesses having to be cross-examined was spared. 

43In the circumstances outlined by Mr Cameron, I accept the prosecution submission and, in sentencing you acknowledge the utilitarian value of your pleas of guilty albeit that I have found no evidence of remorse.  I also accept that, during the currency of the pandemic your pleas of guilty should attract greater mitigatory value in terms of the sentence imposed than usually would be the case.  This acknowledges that your pleas of guilty alleviate the burden on the lists of criminal matters in this Court, which are now very seriously behind because the hearing of criminal trials has been stymied by the pandemic restrictions.  Courts must encourage those who are guilty to plead guilty and give a real and tangible reduction of their sentence accordingly. 

44In sentencing you I acknowledge that you had a period of six months in custody in 2019 during which you apparently thought about your situation (even though three months of that time involved serving another sentence.)  I have taken into account Ms Lechner’s opinion about the likely adverse effect of a further period of incarceration, but I note that her assessment is now some 14 months ago and that, in the interim, you have had the support of Ms Boothby, Ms Bletsas and Ms Paterson and have maintained your regime of taking Methadone.  You are to be given credit for your engagement with those people and in adhering to your Methadone treatment and it is possible that, as a consequence, your psychological state is now somewhat more stable than when Ms Lechner assessed you, although your counsel stated that you are currently prescribed Valium and Xanax by your general practitioner, Dr Blatt. Nevertheless, I am conscious of your long term vulnerabilities and would urge custody authorities to endeavour to make psychological support available to you.

45I also note that Dr Blatt’s report mentions that you have liver cirrhosis, gastritis with stomach ulcers and a disc bulge and osteoarthritis in your back, albeit that no medication is apparently prescribed for these conditions.  In those circumstances, there is no material to suggest that any treatment required for those physical conditions could not be managed in custody. 

46Although your period of incarceration in 2019 was not subject to the restrictions of the pandemic, I have regard to the fact that, since remanding you in custody on 16 September 2021, you have been required to undertake a period of quarantine in isolation beyond the usual 14 days and are still in isolation today, 21 days later.  Indications have been given by a custody officer that you are likely to remain in there for a further two or three days.  Apparently, you had some concerning symptoms, even though you had acted responsibly by having two vaccinations against COVID-19 prior to being remanded by me.  In addition, your sentencing hearing has had to be adjourned twice, which must have protracted your anxiety about knowing your fate.  This is a very challenging way to commence a period in prison.  In addition, I take into account that, at the current time, conditions of imprisonment under pandemic restrictions are onerous: out of cell time is restricted in order to facilitate social distancing, the number of programs available is limited and contact visits from family and friends are not permitted, which is a significant source of deprivation, particularly your not being able to see Pheonix.  At the present time these restrictions are ongoing and, doing the best I can, I have factored them in to the sentence I intend to impose. 

47Taking into account current sentencing practices, the sentence I intend to impose may appear to be lenient, but your pleas of guilty and the matters relating to the COVID pandemic restrictions to which I have referred must be given weight, along with your personal circumstances of vulnerability and your attempts over the last 2 years to engage in rehabilitation.  In the light of all those factors, I propose to set a low non‑parole period so that, in the event that you are granted parole, you will have significant supervisory support as you transition back into the community.  As you will be well aware, whether you receive parole will depend upon your conduct in custody, particularly a determination to remain free from any illicit drugs which unscrupulous people within the prison system may offer to you.  Clearly, the decision as to whether you are granted parole is one for the Parole Board, but I note that, notwithstanding your disregard for the law over a lengthy time, including a disregard for bail conditions, you appear to have successfully completed parole on a number of occasions.

48On one charge of armed robbery, you are convicted and sentenced to a period of 20 months’ imprisonment.

49On the summary charge of committing an indictable offence on bail, you are convicted and sentenced to a period of 1 month’s imprisonment to be served cumulatively upon the sentence imposed for armed robbery.

50The total effective sentence is 21 months’ imprisonment.

51I order that you serve a period of 10 months’ imprisonment before becoming eligible for parole. 

52I declare a period of 126 days pre‑sentence detention to be time reckoned as already served under the sentence this day.

53Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty the total effective sentence imposed would have been 3 ½ years’ imprisonment with a non‑parole period of 2 years.

54Pursuant to section 78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the property referred to in the Schedule, namely, one ‘Foodary’ cup, and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.

55Ms Prior, would you like some opportunity to speak with Ms Raeburn whilst the link is available?

56MS PRIOR:  I might be guided by her, Your Honour, but she’s nodding, so yes, I’d be grateful.

57HER HONOUR:  Apart from everything else, although clearly it can be no part of my sentencing consideration because it’s an executive consideration, you might be able to explain to her the concept of management days under the Corrections Act and how that might impact, but of course-

58MS PRIOR:  Yes.

59OFFENDER:  Hang on, Your Honour-

60HER HONOUR:  -I make it plain that I can’t, sorry-

61OFFENDER:  They’re not paying management days.

62HER HONOUR: Sorry. Sorry. I can’t take that into account.

63OFFENDER:  They’re not giving management days.  I’m just saying.  Here’s the officer.

64HER HONOUR:  I can’t take that into account.  It’s a matter of executive action. But, I’ll leave it up to you to discuss that and, as I’ve explained, of course, parole is not my function.  I must operate on the basis that every day of the sentence may have to be served.

65MS PRIOR:  Thank you, Your Honour.

66HER HONOUR:  It’ll have to be served if parole is not granted.  So, I’ll grant you that opportunity and I’ll adjourn sine die and if the Court staff could ensure privacy to Ms Prior, thank you.

---