Director of Public Prosecutions v Risley

[2019] VCC 1417

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 18-02253

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHONA RISLEY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Ballarat
DATE OF HEARING:	2 September 2019
DATE OF SENTENCE:	2 September 2019
CASE MAY BE CITED AS:	DPP v Risley
MEDIUM NEUTRAL CITATION:	[2019] VCC 1417

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy	Office of Public Prosecutions
For the Accused	Mr C. Baker	Adrian Paull Lawyers

HIS HONOUR:

1Shona Risley, you are a 35-year-old mother of four.  Two of your children are teenagers, and the two youngest are nine and five.  By all accounts, including that of the victim, you are a dedicated mother, committed to ensuring your children have a good chance of becoming decent and law-abiding adults. 

2You, yourself, were raised in a loving family.  When your mother died, too young, about five years ago, grief overtook you and you became a very heavy daily drinker.  You had also abused painkillers for a period but had stopped that about seven years ago after a serious health scare. 

3In the context of your daily intoxication and your sense or protecting your children, you saw the victim using a drug pipe to take drugs in full view of the street.  You lived opposite her and had done so for about 14 months.  You, yourself, and your family had lived in that neighbourhood for years. 

4The victim's impact statement refers to other troubles in the neighbourhood which she thought were not of your doing.  But it was that that was causative of difficulties between you and the victim.  Whether that was so or not probably does not need to be resolved.  But as I will later outline, the victim impact statement is forgiving of you.  The victim impact statement is relevant in the sense that it is forgiving of you but it is not determinative of any sentence.

5But as it turned out, on 29 May 2018 at 1.45, you saw the victim using drugs through the window into her house, can be clearly seen from the street.  You yelled at her to stop and to come outside to speak to you.  She did not answer or come outside.  You banged on her front door and then you came in through a window.  You took her ice smoking pipe from her and smashed it.  You used a small hatchet that you found there that was used to cut kindling, you took that and smashed her bong pipe which she used for smoking cannabis.  You then left. 

6The police had been called by the victim.  They attended after you left.  Later, the police were able to get you to come in for an interview.  That occurred on
2 August 2018.  You made full admissions.  You have maintained that approach by pleading guilty at the earliest point in time.  Thus, your sentence will be significantly less and of a different kind because of your early plea of guilty.

7You have a very limited prior criminal history, being an adjourned undertaking without conviction for a shop theft in 2017.

8You and your partner raise your four children.  Your partner, himself, has significant health problems.  Your eldest is about to do VCE.  She has hearing difficulties, as do you.  Your youngest also has problems with his speech.  In other words, with limited resources, your family circumstances are not easy.  You have the ongoing support of your partner and your in-laws. 

9Importantly, you have moved from your previous address, away from the victim.  You are well settled in a different address.  I consider, in all the circumstances, your prospects of resuming your previous law-abiding ways are excellent.  I consider you have been very significantly deterred by these proceedings and are unlikely to return back to the courts.

10Your plea of guilty evidences remorse, as does what you said to the psychologist, Ms Cidoni, about now realising how wrong it was to go into the victim's house.  She was entitled to feel safe in her house, notwithstanding what you say she was up to.  Rather, what you should have done, and you realise it now, is to call the police yourself to deal with the victim's drug taking. 

11You have some underlying psychological problems of anxiety and depression that are being managed by medication.  You need to keep on top of those problems and not by resort to alcohol or any other substances. 

12Aggravated burglary is a serious crime, usually warranting imprisonment, often substantial imprisonment.  However, as the Court of Appeal has made clear in the important decision of Boulton v The Queen, community corrections orders are appropriate penalties, even for serious crimes that may have in the past received mid-range sentences of imprisonment. 

13A community corrections order has the benefit of advancing your rehabilitation and, at the same time, that is simultaneously punishing you for what you did.  Gaol is the punishment of last resort.  I take into account what has been said of the benefit of community corrections orders and that is it keeps families together; that is important in this case. 

14It was referred to by the Court of Appeal in Boulton and it actually arises from the second reading speech of the then Attorney-General who introduced the new regime of community corrections orders.  So I take into account that, on his own, your partner would have significant difficulties in raising the children if you were in prison. 

15I note all that was said in the victim impact statement, as I have already made clear, I do that subject to the submissions made by your counsel, Mr Baker, who made a concise and helpful oral plea on your behalf that was supplemented by his written outline. 

16As I have said, the victim's expression of forgiveness is relevant and important but not determinative.  There are other good reasons for why a community corrections order is appropriate in this case. 

17This is an usual example of aggravated burglary, in which your broad intent was to stop the drug use in full sight of the street by assault.  The gravity and moral culpability, in my view, are lower.  The sentencing purposes of denunciation and deterrence, especially to others, and your rehabilitation are well satisfied by an onerous community corrections order. 

18I intend to impose an aggregate term, that being for the aggravated burglary on indictment and the related summary offence of an unlawful assault, a single community corrections order with conviction that will last for 18 months.  You will be required to do unpaid work, that will be 150 hours of unpaid work. 

19You also have to undergo assessment and treatment for alcohol abuse, an assessment as to programs that may assist you with offending behaviour.  All treatment programs that I have just outlined in relation to alcohol and offending behaviour, all hours successfully completed can count as unpaid community work.

20Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of two years' imprisonment with a non-parole period of one year. 

21The prosecution have sought that you provide a forensic sample.  I have consider that application and, as I understand it, notwithstanding the lack of prior matters, the offence, in my view, is serious and it is in the interest of justice that you provide the forensic sample. 

22What that means is that you have to get yourself to a nearby police station, the address will be provide to you, where a scraping from your mouth will be taken, a swab from your mouth taken so your DNA can be extracted.  When they go to do that, if you do not cooperate, they can use reasonable force to get the sample.  Is there anything further required?

23COUNSEL:  No, Your Honour.

24HIS HONOUR:  Thank you.  In respect to the community corrections order,
Ms Risley, there are certain conditions that apply to everyone.  They are the following, you must not commit an offence for which you could be imprisoned during the time this order is in force.  So if you commit some offence, any offence, such as shoplifting, it is punishable by imprisonment even if the magistrate does not do that.  But you breach this order and you will come back here. 

25You must cooperate with the office of Corrections in the following ways, you must comply with obligations or requirements under the sentencing regulations, they will need to take a photograph of you and identify you, you have just got to cooperate with that.  You must report to and receive visits from the office of Corrections.  You must report to the community corrections centre there in Ballarat - the address is here - within two clear working days of this order starting.

26You must let the community corrections officers know within two clear working days if you change your address or your job.  You cannot leave Victoria without getting permission to do so and you must obey all lawful instructions.  That applies to everyone.  What applies to you is you have to do this 150 hours of unpaid community work, they will find the appropriate work for you, and you just have to do it each and every time. 

27You must undergo assessment and treatment for alcohol abuse, that will continue.  And you must participate in programs relating to your offending.  If you sign this order, it will bring this matter, as far as this court is concerned, to an end.  And there is another document I will just sign.  Come out of the dock please, come up to where your counsel are.  Take a seat behind Mr Baker, thank you. 

28Can I just say, Ms Risley, that will bring the matter to an end.  If you do not do each and every one of these conditions, then the mercy shown will not be repeated.  You have just got to do it.  So if there is some reason why you cannot do something, you must cooperate with them, talk to them, tell them in advance, get documents if it is medical.  I am not going to have you come back here on a breach and someone tell me, 'Oh, there was just too many difficulties with children', or something.  I have factored that into it so it is not much longer; do you understand?

29ACCUSED:  Yes, I do. 

30HIS HONOUR:  Thank you.  I do not think there is anything else required,
Mr Baker.  Thank you for your assistance.

31MR BAKER:  As Your Honour pleases.

32HIS HONOUR:  Thank you. 

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