Director of Public Prosecutions v Rigney

[2016] VCC 478

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00615

DIRECTOR OF PUBLIC PROSECUTIONS

v

KERRY RIGNEY

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 April 2016
CASE MAY BE CITED AS:	DPP v RIGNEY
MEDIUM NEUTRAL CITATION:	[2016] VCC 478

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms J. Malobabic
For the Accused	Mr B. Newton
For the Department of Human Services	Ms J. Preston

HIS HONOUR:

1Kerry Ellen Rigney, you have pleaded guilty to one charge of armed robbery and one charge of robbery.  Those crimes carry maximum penalties of 25 years and 15 years respectively.  You pleaded guilty at the earliest reasonable opportunity and have expressed in Koori Court remorse, which I accept.  You must also of course get the utilitarian benefit of that plea of guilty. 

2Now on my calculations, 38 years of age, is that right or is it 37?

3MR NEWTON:  How old are you Kerry?

4HIS HONOUR:  I do not think she knows.

5MR NEWTON:  All right.

6HIS HONOUR:  That was the trouble.  It has come up about three - I will make her 38, all right?  And have some prior convictions.  However, when going through that prior history, it is mainly for street offences, shoplifting and begging.  There is nothing of a serious nature there and these particular crimes are way out of what is normally your league Ms Rigney.  I take all those matters into account on your behalf.

7The circumstances of the offending are unfortunate indeed.  You and your husband as I understand it, Mr Lesley have three children together.  You were both using drugs heavily at the time.  The offending occurred on
1 November 2014 and occurred against an elderly man living on a disability pension in Fitzroy North in a boarding house.  His income was about $300 a week.

8On 1 November 2014, he walked to the 7-Eleven in Hoddle Street to get some cigarettes and a newspaper.  When he came home, you two were standing in the hallway.  You both walked into his room and sat down.  You were there for about five minutes.  Mr Lesley told him to hand over his card and pin number.  You grabbed a pair scissors from the draw and threatened him with it.

9He wrote down his pin on a piece of paper and gave his Commonwealth bank card to Mr Lesley.  He left and went and withdrew money.  He lied about how much he had taken, but that is something I will deal with at a later time.  You took his cigarette packet and gave him three cigarettes and took the rest.

10He walked to the ATM and found that his account had basically been cleared out, he had no money.  He went to the Fitzroy Police Station and reported it.  On 7 November, detectives attended at his home and took photographs, I have seen those.  He told the police that he was in fear of having these people return and did not want the police involved at that stage.

11On 15 November, he was in his room of the boarding house when he heard a knock on the door, it was you.  You walked in and said "Let's go to the bank I know you're getting paid today".  He saw a car outside.  You said "The boys are in the car".  He recognised that car and was scared.  He said "I'll go to the bank and withdraw some money.”  He was scared that you might kill him.

12The two of you walked to the bank.  Money was extracted from it and you threatened him.  He said that he was very frightened and after the money was taken, he returned home and then contacted police and action was taken. 

13On 11 December 2014, police attended at your home.  You and your three children were there and you were taken to Melbourne West where you were interviewed.  As I understand it, it is from that point on that the DHS became involved in the children were taken.

14You told police that Alex, that is the man's name, had asked for sex.  It may well be true, but the fact of the matter is that it was pretty disgraceful offending really Ms Rigney.  I have no doubt that you now understand that he was obviously a very vulnerable man, living by himself.  I have read the materials that he provided.  He took a great deal of pride in his little room in the boarding house.  He then had to leave it because of fear and you basically subjected him to that.

15It has to be regarded as serious offending and has to attract some form of custodial sentence, even though, at your age, with your background and your relevant lack of priors, it needs to be moderated.  As I said, he had to shift because of anxiety and fear. 

16It calls for the application of general deterrence.  In your situation, specific deterrence I do not think played a great part as we have now been able to be informed that you have an intellectual disability.  There has to be denunciation and is clearly conceded by your counsel as appropriate punishment.

17Your co-accused Mr Lesley who had one less charge was given gaol and a community corrections order which he has now breached.  I do not know where he is, I have got a rough idea, but not too sure.  Anyway, the warrant has not been executed just yet.  So I do not really take that into account other than there has to be some aspect of parity involved.

18You were released, assessed for a community corrections order and found to be acceptable.  You then failed to appear and were ultimately extradited from South Australia.  I have a significant amount of material in front of me, including a report from Mr Healey, a report from Disability Services, a report from Corrections and they outline your background.

19Yours is the sadly typical background of a young Aboriginal woman, who began smoking cannabis at 11.  At 15, injecting amphetamine and at 22, using heroin.  You have the so commonly described history of disadvantaged and abuse and have struggled all your life.  In many respects, your criminal history is far less than one might have anticipated.

20In this situation - I am not going to humiliate you by going through everything that happened to you as a child, and as an adult.  I will simply direct that the reports of all those people remain on the court file and also bearing in mind of course, the Crown's attitude to this.  So anyone with a genuine interest can have access to them. 

21Over the last year or so since this offending occurred, the children have been taken.  You have been making desperate attempts to get in contact with them or to recover them, as has - certainly when he has been well, your husband.  It has all been an unfortunate history.  You are now in circumstances where you do have support.  Upon your release, you will have accommodation organised at William Onus.  You are getting support so far as the children are concerned and you now have a justice plan which has been prepared, which will assist you in your future rehabilitation.

22What I am going to do in this situation is give you the chance to rehabilitate.  It is entirely up to yourself whether you can.  I am very much comforted by the efforts that you have made in gaol in doing courses, in understanding your difficulties and endeavouring to rehabilitate yourself.  I think it is fair that in this situation, you will be given the opportunity to further that and it will be on a community corrections order.

23The community corrections order will be for a period of two years.  It will have the conditions of treatment and rehabilitation for drugs.  There will be supervision and/or health assessment and offending behaviour programs.  You will also be required to comply with the justice plan that has been tendered and I also take into account, obviously in this situation, the statement of intellectual disability that has been filed.

24So that community corrections order will - where is the nearest going to be - Corrections Northcote I suppose?  Where is the nearest Corrections office to William Onus?

25OFFENDER:  Ah, in Preston.

26HIS HONOUR:  Preston, all right. 

27OFFENDER:  Reservoir or Preston.

28HIS HONOUR:  My tip would be Reservoir actually.

29OFFENDER:  Yeah, Reservoir.

30HIS HONOUR:  Yes, all right.

31OFFENDER:  I know where exactly it is.

32HIS HONOUR:  Yes.  So we will make it - they can always transfer if there is a problem.  We will make it Reservoir. 

33MR NEWTON:  The plan is - in this part of the reunification is that they'll be trying to secure accommodation, three bedroom accommodation down the track.

34HIS HONOUR:  What I was thinking of doing was this, in terms of the time aspects of it, I am worried about her just walking out the door ‑ ‑ ‑

35MR NEWTON:  Yes, so ‑ ‑ ‑

36HIS HONOUR:  ‑ ‑ ‑ for fairly obvious reasons.

37MR NEWTON:  Yes.

38HIS HONOUR:  And I don't how long it's going to be before the accommodation can be organised.  But what I'm looking at doing is, giving about another week, one for her to get her head around being released and two, to make sure that the accommodation is there.  I don't want her walking out of the gaol with nothing in place. 

39OFFENDER:  Excuse me, sir.

40HIS HONOUR:  Yes.

41OFFENDER:  Can I say something?  Um, Jayde ah, had organised for us to go to Housing on Monday um, to do - to organise transitional housing cause they can't do nothing without me being released.

42HIS HONOUR:  You've got to get out before they can do it?

43OFFENDER:  Yeah, so ‑ ‑ ‑

44HIS HONOUR:  You're taking ‑ ‑ ‑

45OFFENDER:  ‑ ‑ ‑ they want to put me into a property ASAP, but they - I need to be out and go and look at the property.

46HIS HONOUR:  All right.

47OFFENDER:  And sign for the keys and stuff.

48HIS HONOUR:  So if I let - well ‑ ‑ ‑

49OFFENDER:  That's why she's organised William Onus to go in as - only just for temporary till Monday and then Monday we're going to um, with - I've got to meet Jayde at head office.

50HIS HONOUR:  So you can go to William Onus today?

51MR NEWTON:  Yes.  Just that email sir, I ‑ ‑ ‑

52HIS HONOUR:  We gave it back to you.

53MR NEWTON:  Did you?  Thank you.  I'll just go to that - all right this is from Jayde Preston.  She said, "Hi Robin, by way of update, Kerry has a room at William T Onus".

54HIS HONOUR:  Yes.

55MR NEWTON:  "Our original accommodation which we're funding initially.  We have further appointments with Housing upon her release in aim of something accommodating to the reunification of her family".

56HIS HONOUR:  All right, I didn't realise.  I thought that - yes, that's all right.

57MR NEWTON:  And then she also says, "Also if Kerry is to be released on Friday, I'm hoping to discuss options in time for her return to Melbourne to accommodate her accessing payment and accommodation".

58HIS HONOUR:  Very well, all right.  So what will we do?  If I give her 190 days.

59MR NEWTON:  Yes sir.

60HIS HONOUR:  Plus - and declare it, what's going to happen then?  She'll get released and what happens then?

61MR NEWTON:  Well they said one night including today.  So I just wonder if you gave her 189.

62HIS HONOUR:  Yes, I mean - but what's going to happen to her when she gets out of the - walks out of the cells?

63MR NEWTON:  Well ‑ ‑ ‑

64HIS HONOUR:  She's not - she won't ‑ ‑ ‑

65OFFENDER:  Um, I've got to go and pay for a ticket and go back - this is what me and Jayde's discussed.  We - I've got to go and pay for a ticket.  Jayde's meeting ‑ ‑ ‑

66HIS HONOUR:  Have you got any money?

67OFFENDER:  Jayde's meeting me at the other end.  Um, and take ‑ ‑ ‑

68HIS HONOUR:  No, that's all right.  If you ‑ ‑ ‑

69MR NEWTON:  I can pay for the ticket, Your Honour, that's not a problem.  So the court can be assured that there will be a train ticket.

70HIS HONOUR:  I don't know, I was going to get it out of the poor box for her if we had one.  I don't know, I'm sure there's ‑ ‑ ‑

71MR NEWTON:  Well if you've got a poor box, Your Honour, I might upgrade the 2001 Laser.

72HIS HONOUR:  No, no, no but I'm sure - no, no you shouldn't even need to.  I don't think it's fair to pay for your client's fare, but ‑ ‑ ‑

73MS MALOBABIC:  I'm sorry sir.  Ms Preston's here and she can update the court of the plan.

74HIS HONOUR:  Yes.

75MS MALOBABIC:  How to get Ms Rigney to ‑ ‑ ‑

76HIS HONOUR:  Sorry to have cut you out on all that Ms Preston.  It's just
Mr Newton and I are planning the - so if I - I'll sentence her to the time served with the community corrections order.  She'll have to go back to the cells just for central records to say it's okay, we'll let her go.  I just want to be sure she just goes straight over - walk that 50 yards and get on a train, that's all.

77OFFENDER:  I will.

78MS PRESTON:  Your Honour, I understand that and we had made pending - plans pending the potential ‑ ‑ ‑

79HIS HONOUR:  I'm sorry I can't hear you.  Can you come forward a bit for me?

80MS PRESTON:  Sorry?  Yes.  So Ms Rigney and I did speak and made potential plans pending her release and she's - after the release from prison records, she will go to Centrelink to access her crisis payment and get a train from Morwell to the city ‑ ‑ ‑

81HIS HONOUR:  All right.  Yes, you don't ‑ ‑ ‑

82MS PRESTON:  ‑ ‑ ‑ where I will meet her and support her to William T Onus.

83HIS HONOUR:  That's all right. 

84MS PRESTON:  Thank you.

85HIS HONOUR:  Someone can make sure that works down there though.

86MR NEWTON:  Yes sir.  I plan on being in Latrobe Valley.

87HIS HONOUR:  Well the other thing I can do - Lilly can you go and get Bron?

88ASSOCIATE:  Yes.

89MR NEWTON:  May I just approach ‑ ‑ ‑

90HIS HONOUR:  Yes of course.  I'll try and get my Koori Court officer to go with her.

91MR NEWTON:  Yes.

92HIS HONOUR:  Bron, I'm just about to give Kerry a sentence and she'll be - she's got to go back on a community corrections order.  Can you print the community corrections order for me?  She's going back to the cells and then she'll be released from the cells.

93ABORIGINAL LIASION OFFICER:  Yes.

94HIS HONOUR:  Then she's got to go down to Centrelink and get emergency payment for the train.

95ABORIGINAL LIASION OFFICER:  Yes.

96HIS HONOUR:  This is - we're sitting in Koori Court at the moment, brought up from Melbourne.  Would you be able to give her a hand to do that?

97ABORIGINAL LIAISON OFFICER:  Yes.

98HIS HONOUR:  That'd be good. 

99ABORIGINAL LIAISON OFFICER:  No worries.

100HIS HONOUR:  (Indistinct words).

101OFFENDER:  Hello.

102HIS HONOUR:  (Indistinct words).

103OFFENDER:  Yep, nice to meet you.

104ABORIGINAL LIAISON OFFICER:  Yes, I'm happy to do that, Your Honour.

105HIS HONOUR:  No, that'll be great.  Thanks Bronnie.  So you follow that?

106OFFENDER:  Yep.

107HIS HONOUR:  So when they're about to let you go, which should be pretty quickly, I'll get - if we can get the station to just give Bronnie a ring.

108OFFENDER:  Yeah.

109HIS HONOUR:  And Bronnie can come straight over and take you down and then everybody knows.

110OFFENDER:  Okay.

111HIS HONOUR:  All right, it's not that I don't trust you.

112OFFENDER:  Yep.

113HIS HONOUR:  But the last bloke I let go on one of these in Melbourne didn't reach Spencer Street station.

114OFFENDER:  Oh I'll definitely be there.

115HIS HONOUR:  Never even got to the station.

116MR NEWTON:  Yes ‑ ‑ ‑

117HIS HONOUR:  So I'm a bit paranoid.

118MR NEWTON:  Well no that was V/Line's fault.

119HIS HONOUR:  Yes, I think he - that's probably what he'll tell me.  He didn't actually.  While we get this done, Bronnie can you just talk to Jayde Preston who's there about what you need to do at Centrelink.

120MS PRESTON:  Yes.  Ms Rigney's aware of - she needs to attend Centrelink where she can access what's called her crisis payment.

121ABORIGINAL LIAISON OFFICER:  Yes.

122MS PRESTON:  Which was a payment of about $300.  So Ms Rigney's aware of that process and from there she can purchase a V/Line ticket from Morwell to Southern Cross where I'll meet her.  And she has my mobile phone number written down.

123ABORIGINAL LIAISON OFFICER:  All right, so the payment will go in today?

124MS PRESTON:  Yes, she will receive it today.

125ABORIGINAL LIAISON OFFICER:  Okay, that's good.  Yes I can show her where Centrelink is and then we can just go straight from there to the train station.

126MS PRESTON:  Perfect, thank you so much for your assistance.

127ABORIGINAL LIAISON OFFICER:  You're welcome.

128MS PRESTON:  That's fantastic, thanks.

129HIS HONOUR:  All right, so I'll make it the 189 days to be followed by the community corrections order and declare the 189 days be reckoned as having been served under this sentence.  I will direct that.

130(At this stage the court proceeded with another matter.)

131HIS HONOUR:  Can I just - sorry, I have just got this thing put in front of me.  Yes, I will make the compensation order.  Mr Newton I am making the compensation order.

132MR NEWTON:  Yes sir.

133HIS HONOUR:  What was the go with - in her situation, (indistinct words)?  Did she consent to a 464 or not?  I can't remember.

134MR NEWTON:  Well, Your Honour, in view of the intellectual disability, it would be my most respectful submission that - I appreciate Your Honour's got to take into account the ‑ ‑ ‑

135HIS HONOUR:  I thought I told Ms - I couldn't remember if I just said no or not.

136MR NEWTON:  Your Honour, I've got no note of you having made that order and I may have indicated to you previously that there wasn't going to be opposition.  But in view of the assessment of the intellectual disability and in all the circumstances, Your Honour, I say it's a matter for the court.

137HIS HONOUR:  Well does the Crown want to say anything about the 464?  And I know you weren't there so ‑ ‑ ‑

138MR NEWTON:  I'll just check my notes.

139HIS HONOUR:  ‑ ‑ ‑ Ms Malobabic, but my recollection is that I said I wouldn't because the priors didn't justify it.  But ‑ ‑ ‑

140MS MALOBABIC:  Well, Your Honour, in my submission, this is serious offending and it will be an interest of justice to impose an order for an ‑ ‑ ‑

141HIS HONOUR:  Yes, no I understand that, I understand that.  But that decision of Justice Gillard says that the offence itself is not enough.  Just went through this the other day. 

142MS MALOBABIC:  Yes, Your Honour, but - well Your Honour wanted the assessment for a community corrections order.  Ms Rigney is indeed assessed as a high risk of reoffending and in my submission, that also should be given consideration, whether the DNA order ought to be imposed.

143HIS HONOUR:  Yes well that's their assessment, however it's my assessment that matters.

144MS MALOBABIC:  As Your Honour pleases.

145HIS HONOUR:  Yes.  I had a bloke with about ten sex priors the other day, it was a low risk apparently, it's a view I didn't share.

146MR NEWTON:  A low risk of what, Your Honour?

147HIS HONOUR:  I don't know.  Low risk of seeing out the decade I suspect.  No, look I think in the situation, she's not - I will do it I think.  I'm just a bit concerned about all this.  So it'll be saliva only. 

148MR NEWTON:  All right.  As Your Honour pleases.

149HIS HONOUR:  Yes.  No, I'll do that.  What's the date today?

150ASSOCIATE:  The 22nd.

151HIS HONOUR:  I'll stick her down as not opposes.  Saves me writing everything else down.

152MR NEWTON:  Yes.

153OFFENDER:  Just to let you know, Your Honour, um I do have an A Group tonight at 7.30 in Carlton.

154HIS HONOUR:  All right, good on you.  All right, well we'll get you to that all right, well V/Line will hopefully.  All right, now what I've done Kerry, I've made an order for a saliva sample, all right?  Now that means you've got to go within 28 days.  Brad will explain it to you.  In 28 days you have to go to Reservoir Police Station, all right?  And give a saliva sample.  It's just a scraping, there is no needles or anything.

155OFFENDER:  Why is that?

156HIS HONOUR:  Brad will explain it to you. 

157OFFENDER:  Okay.

158HIS HONOUR:  All right.  Yes, and I what I say to you is that once the order is made, you have got to provide it.

159OFFENDER:  Yep.

160HIS HONOUR:  All right, so he will explain to you what you have got to do.  You just go down to the police station, they just do a little swab. 

161MR NEWTON:  If Your Honour just gave me a moment now, I'll - could I just ‑ ‑ ‑

162HIS HONOUR:  Well I need the community corrections order signed first.

163MR NEWTON:  Yes sir.

164HIS HONOUR:  All right, the community corrections order is made.  All right, there is no orders I need to make?  No other orders anyone needs?

165MS MALOBABIC:  Your Honour, just s.6AAA declaration.  I don't think
Your Honour made one.

166HIS HONOUR:  No, not where I've given a community corrections order, is inapplicable.  It's not in the same division.  The joint sentences isn't in the same division as the 6AAA.  The Sentencing Advisory Council actually asked for my opinion on that and I have given it.  The first time they have ever asked me anything.  Yes, I just wanted ‑ ‑ ‑

167MR NEWTON:  Your Honour, I just raised with the excellent Bronwyn, in relation to the payment of the $300.  I don't want Kerry being stood over by someone ‑ ‑ ‑

168HIS HONOUR:  No, neither do I.  I'm just a bit toey about ‑ ‑ ‑

169MR NEWTON:  And we'd discussed whether or not perhaps half of that can be set aside - in safekeeping for Monday.  Whether - I'm happy to personally do that.  I don't want someone standing over her by Friday night, because they - you know she's got everything in her possession, including the $300.

170HIS HONOUR:  Yes.  No, I agree with that.

171MR NEWTON:  It's not a - in any issue a concern that - about Kerry, you know not spending the money properly and I appreciate these are politically difficult issues, but ‑ ‑ ‑

172HIS HONOUR:  No, I understand exactly what you're saying to me.

173MR NEWTON:  ‑ ‑ ‑ I'm greatly appreciative to the Koori Liaison Officer for working with me on that and ‑ ‑ ‑

174HIS HONOUR:  All right, well I will let you guys work that out.

175MR NEWTON:  Yes.

176HIS HONOUR:  But I would be a bit toey about that myself.

177MR NEWTON:  Yes.

178HIS HONOUR:  All right, so what is happening Kerry, you will get released soon.  You have got to go back to the police station.

179OFFENDER:  Yep.

180HIS HONOUR:  But you are on a community corrections order.  I have not put any work hours or anything because you have done six months, all right.  That is enough in this situation.  But what you have got to understand is, with the community corrections order, all right, if you breach it by anything like this, I mean - you know, it is going to be a real whack, all right?  You cannot do stick ups and then do it again. 

181OFFENDER:  No I won't.

182HIS HONOUR:  All right.  No, I know everyone says that, but really this has got to be understood.  You jump too far by doing a stick up, all right?  So if you get back before me for breaching it for something like this, like a robbery or something, you are going to get a lot more than six months.  Fair enough?

183OFFENDER:  Yeah.

184HIS HONOUR:  I am confident.  I reckon you are going really well, but just keep that in the back of your head that you know one of those, is going to cost you a year or two, all right?

185OFFENDER:  Yeah.

186HIS HONOUR:  All right.

187OFFENDER:  I'm just taking one day at a time at the moment.

188HIS HONOUR:  No, you are doing well, you look well.  You are doing the programs, you are doing everything right, all right?  You got good people to support you.

189OFFENDER:  Yep.

190HIS HONOUR:  Yes. 

191MR NEWTON:  And it's not just going to cost her more time in gaol, Your Honour, ‑ ‑ ‑

192HIS HONOUR:  It's going to cost her the kids.

193MR NEWTON:  ‑ ‑ ‑ it's going to cost to her family.

194HIS HONOUR:  Precisely.

195(At this stage the court proceeded with another matter.)

196HIS HONOUR:  Thanks for that.

197MS MALOBABIC:  Thank you, Judge.

198HIS HONOUR:  Thanks Phil.  Good luck Kerry.

199OFFENDER:  Thank you.

200HIS HONOUR:  All right, I don't want to see you again mate, all right?

201OFFENDER:  All right, you won't.

202HIS HONOUR:  It'll be ugly if I do.

‑ ‑ ‑