Director of Public Prosecutions v Rees

[2024] VCC 640

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01711

DIRECTOR OF PUBLIC PROSECUTIONS

v

TENILLE REES

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 May 2024
CASE MAY BE CITED AS:	DPP v Rees
MEDIUM NEUTRAL CITATION:	[2024] VCC 640

REASONS FOR SENTENCE

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Subject:  SENTENCE – CRIMINAL LAW

Catchwords:  Attempted armed robbery- attempted theft – related summary charges-  Renzella time- offender suffering from acute schizophrenia -  reduced moral culpability -  early plea of guilty- cooperative - remorseful.

Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic).

Sentence:Time served plus 12 month CCO with treatment conditions;  Renzella time declared; 6AAA declaration – a longer sentence.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Croxford	Office of Public Prosecutions
For the Accused	Ms S. Gillahan	Victoria Legal Aid

HER HONOUR:  

1Tenille Rees, you have pleaded guilty to two indictments before me, the first, N11405933, related to offending in July 2022, one charge of attempted armed robbery which carries a maximum penalty of 20 years' imprisonment and one charge of theft which carries a maximum penalty of 10 years' imprisonment. The commission of the first charge led to a related summary offence which was commit indictable offence whilst on bail which carries a maximum penalty of 30 penalty units or three months' imprisonment.

2But then you also pleaded guilty to another indictment, P10542868, which had one charge on it, and that was some eight months later where you committed one charge of attempted theft which carries a maximum penalty of five years' imprisonment and on the same day that led to the commission of two related summary offences, one of unlawful assault which carries a maximum penalty of 15 penalty units or three months' imprisonment, and one charge of commit indictable offence whilst on bail which carries a maximum penalty of 30 penalty units or three months' imprisonment. 

3The summary offences could have been dealt with in the Magistrates' Court, but you agreed to let me deal with them and you pleaded guilty to those charges as well as the charges that I have just summarised. 

4I have been told in relation to those offences, that on the date of the first group of offences, 6 July 2022 in the evening, you went to the Caltex Service Station in South Melbourne, you walked up to the counter holding a broken glass bottle in your hand, and the victim was at his place of work behind the counter.  It is alleged that you shouted at him to give you cash and you used the bottle in a frightening way.  You did not manage to get any money and that is the offending referrable to that first charge of attempted armed robbery.  The victim, as I have mentioned at his place of work, was distressed and he found it scary, and he called Triple 0.  The police attended the service station fairly quickly and found you in the driveway eating some food items that you had taken from the service station and those food items are what is found in that second charge of theft.

5You told police at the time 'Excuse me, I need to go to gaol, I just did an armed robbery.'

6The police note that you were cooperative with them.  The police found the broken glass bottle that you had used and unfortunately once they did take you into custody that was very upsetting for you, because as we now know, you were having a very distressing mental health episode.  You were not interviewed with police, but you were taken into their custody, which I will get back to.

7In sentencing you for those offences, I must take into account - now I will leave to one side your mental health which I will come back to - but once we look at it from the outside, I need to tell you that it is serious offending.  You used something as a weapon, and you caused the victim to feel distressed and scared.  He thought his number might have been up.  He was at work, he was just trying to earn a living and you were on bail at the time. I also take into account other factors including the fact that the offending was over very quickly, and you were polite and cooperative with the police.

8The next offending, as I have mentioned, related to March 2023 and we see some similarities, some differences.  Sunday 12 March 2023 in the morning, you went to the Woolworths store at Moe, went up to the cigarette counter and the victim, Stacey Richards, recognised you and was friendly with you, asked you what you wanted.  You asked for two packets of smokes.  She asked you how you planned to pay, and you opened your handbag and pulled out a pair of scissors and used words. 

9Now, the request for the cigarettes without paying is the attempted theft.  Separately, the words used is your related summary offence of the unlawful assault.  She refused to hand the smokes over.  She was a bit scared, like the first gentleman, and the police were summoned.  Commission of this offence also breached the bail undertaking.  Like at the first time, police arrived, you handed over your scissors to them and you were good to deal with, but again, you did cause the victim fear and you were taken back into custody and they did not interview you because like in the first offence, you were experiencing a fairly difficult mental health episode, which of course I will get back to in a moment.

10Now, I was told that you were charged and remanded into custody on the attempted armed robbery matter, and you spent 127 days in custody before being bailed and then unfortunately, you committed your new offences and you were placed back into custody. On both occasions there was time spent in police cells and remand, but there was also quite a bit of time spent in Thomas Embling Hospital because of these mental health episodes. 

11You were bailed eventually on the second set of charges as well, by which time you had accrued another 200 days of pre-sentence detention.  I take into account and accept though that the matters resolved at committal, case conference which is the earliest opportunity for a plea of guilty, fantastic, and it was at a time when the court was experiencing delay because of the COVID-19 pandemic.  So, you pleaded guilty to all charges at the earliest stage and that plea was of special significance at the time that you entered those pleas. 

12But let us talk about the good news, which was once you were bailed on the second set of charges and your matter was listed for plea, you were released back into the community, and you have had really, really good help for these mental health issues that I have mentioned a few times, and I am about to get stuck into reviewing them in much closer detail.

13Now, I was told about your personal circumstances, your family history, heard about your daughter, currently in Year 12, and that you contact her from time to time, you are staying in touch while she lives with your family.  I was told about your education and employment and here is really where I have to dig in.  I was told you were assessed by a very skilled forensic psychiatrist and here I note you have a diagnosis of schizophrenia, that has been difficult for other medical profession to treat properly. 

14I am sorry to see that you were admitted to hospital for the first time in 2015, now nine years ago, and in those nine years, you have been readmitted 17 times since, and of course, I have mentioned that while you were on remand on for these offences twice, you spent time in Thomas Embling Hospital.

15The reason why I mention all of this is because it is closely linked to your offending, and sometimes when your condition surges up, you feel this temptation to offend so that you might be taken back into custody and that is for complicated reasons. 

16The problem is that each time you go through this pathway, your behaviour causes others such fear and distress, so one of my jobs is to try to help you break the pattern of those surges in your mental health.  We will leave those to one side, because mental health will surge and it will subside, but the problem is that twice now it has surged, and you have used a pathway that causes terror to other people to get what you think you might need at that moment which is to be locked up. 

17The law says I must take that into account in a few different ways.  I take it into account because when assessing your moral culpability which is how, I suppose, evil is probably too-strong-a word, but what you were thinking at the time, you were compromised, you are just not the same as the next person that might commit these crimes because they enjoy it or seeing someone being afraid or because they just want to get to the end-point, so your moral culpability is reduced and I am also not going to use you to send messages to other members of the community.  You know, we do not usually use fragile people to send messages to the community about how you cannot commit those offences. 

18But then on the other hand, I still need to take into account that once we do look at those crimes, once I do really look at the terror and the distress of the victim, which I also need to take into account, I have to say, especially looking at your history, please it is time to get that support, the support that you now have so that we can break this pattern.  I still do need to punish you.  I still do need to say, 'enough is enough.'  So that is why it is quite a difficult exercise because I need to balance all of that.

19So, let us look at the good news.  I have mentioned your prior criminal history.  Look, it is not great, but I am hoping that we are coming to the end because it seems that things are about to stabilise and that is because you have been on bail now for over five months.  You live in a private rental in Morwell, and you may or may not agree with the approach that is taken to your care. 

20I was relieved to hear that you are getting two anti-psychotic medications that the doctors believe are helping you, and importantly, you also have support from a community mental health practitioner and support coordinator from Mind Australia, senior mental health clinician from Coal Valley Support Services, another person from Support Services and other independent support workers that help you getting to and from appointments and give you domestic assistance and assistance with shopping and meal preparation. 

21That for me was such a good news story, because it meant that you have shown me that you might be out of the woods and your prospects for rehabilitation, you know, when I look at your priors I think, 'Oh dear' then I heard about the last five months and that made me start thinking, 'Maybe if I hang in there, she's going to be okay.'

22I have taken all of that into account.  I accept that you are remorseful but I also need a little bit more from you because when I was looking at the Office of Corrections report, I can see that you were very, very honest with them, but you also said when asked, 'Do you want to do a Community Correction Order?' you said, 'It would just be another thing I have to do' and I thought, 'Oh Ms Rees, please.'  So, part of this exercise is reminding you that while I can support you and recognise your good qualities, I also need to remind you that you are on the hook with me for another 12 months, in that if you muck up, then you will have to come back before me. 

23So, I have taken all the matters urged upon me into account by your representative who was very good in each of the hearings.  She said to me, I can impose a combination sentence and the prosecutor was very, very fair and reminded me that that option is available to me under the law and may not completely agree with the numbers that I have chosen, but they understand this is my job to balance this difficult exercise and so it is my name that is on the line if it turns out I have made a terrible mistake and you stuff up in the next 12 months, so could you please take all of that into account. 

24So, the ultimate sentences that I have passed, I have already mentioned.  Now, if this matter had proceeded to trial, but resulted in guilty verdicts, I am going to say counsel, as far as my 6AAA calculation, it would have resulted in a longer sentence.  That is what the order is going to be and the comment that I make is because I cannot quantify it because of:

25The related summary offences as being very relevant, and a jury would not have heard those charges and (2) Is the fact that Renzella time was calculated so there is an artificiality about giving you a number on a 6AAA when it is unclear as to whether that would have been inclusive or exclusive of Renzella time. 

26So, I will keep it simple by saying 'a longer sentence' and if you are curious as to why it is that general, I have given you those reasons.  Now, as I understand it, now was it a disposal order that you sought Ms Croxford?

27MS CROXFORD:  Yes, Your Honour.  Yes, I believe there will be two disposal orders.  One for the glass and the other for the pair of scissors.

28HER HONOUR:  Yes, and I cannot imagine, Ms Gillahan, you need to be heard.  I will just go ahead and make those orders. 

29MS GILLAHAN:  (Inaudible response).

30HER HONOUR:  You are on mute in any event, but I have seen a nod.  Next is last opportunity it was rather a casual sentence because I tried, possibly unsuccessfully, to please everyone in terms of keeping things as simple as I possibly could, but also explaining some of the technicalities of my legal reasoning, but what I would like to do now is to make sure that I have done justice to the facts of the case, in case I have misstated something, or I might have overlooked something.  Ms Gillahan, anything to add?

31MS GILLAHAN:  Nothing, Your Honour.

32HER HONOUR:  Sounds like nothing.  Ms Croxford, have I missed anything?

33MS CROXFORD:  No, Your Honour. 

34HER HONOUR:  Thank you.  So Ms Rees, we have heard your agreement to the Office of Corrections order, and I am going to include that in our order.  Next is, you have heard what I have had to say, please as part of my order, skates on, off to the Morwell Corrections Centre by close of business Monday. 

35OFFENDER:  Yes, all right.  Yep, no worries.

36HER HONOUR:  Good, and they will have the order there for you to physically sign, so you will need to - and that explains the conditions.  Ms Gillahan, I wonder whether you might spend a moment with your client, just double-checking that she understands what a community correction order is.  She has had one in the past, but there are some conditions that she might have questions for you about. 

37MS GILLAHAN:  (Inaudible.)

38HER HONOUR:  I have seen a nod again, and thanks to both teams, especially for the sensitivity with which this plea has been conducted.  I am indebted.  Let's adjourn sine die please. 

39MS CROXFORD:  As the court pleases. 

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