Director of Public Prosecutions v Robertson
[2014] VCC 2014
•12 November 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01444
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KYLIE ROBERTSON |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 29 October 2014 | |
DATE OF SENTENCE: | 12 November 2014 | |
CASE MAY BE CITED AS: | DPP v Robertson | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2014 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G. Walton | OPP |
| For the Accused | Mr B. Grimshaw | VLA |
HER HONOUR:
1 Kylie Robertson, you have pleaded guilty to two charges of armed robbery. The offending the subject of both charges happened close in time on the afternoon of 19 May 2014.
2 At about 4.20 that afternoon, you approached a couple – a Mr Mulross and a Ms Shanley – and asked them for a cigarette. Mr Mulross refused. You said, “I have a knife”, and pulled a large kitchen knife from your back. You held it close to Ms Shanley’s chest and said, “I don’t care about doing jail time”. Mr Mulross then gave you a cigarette. The two victims walked away but you followed them. They asked you to stop following them and you eventually walked past them. It is this that gives rise to charge 1 of armed robbery.
3 Ten minutes later you entered a pharmacy in Dandenong. The pharmacist, Mr Tang, was working behind the counter. You walked up to the counter and produced a large kitchen knife from your bag – presumably the same one you threatened Mr Mulross and Ms Shanley with only minutes before – and held it up in your right hand. You walked behind the counter towards Mr Tang. The only other customer who was in the store fled. You said to Mr Tang, “I want everything”.
4 Trying to keep a safe distance from you, Mr Tang held a stool up between and you and himself. He saw that you were bleeding from your left wrist. Frightened, he backed off. You again told him that you wanted everything. By then, the pharmacy assistant, Ms Timms, had rushed over and pushed the alarm button under the counter. Mr Tang pushed past you and he and Ms Timms escaped out the front door. They then locked the front doors from the outside so that you could not escape. You began kicking the doors. I have watched the CCTV footage of this whole incident and it is frightening. It is this conduct that constitutes charge 2 of armed robbery.
5 Police arrived shortly after. You had placed the knife on the dispensary table and you showed the police where it was. You were arrested and remanded in custody. You told police, amongst other things, that you used the knife to cut your wrist and that you were at the pharmacy to obtain Valium. $130 was found in your pockets. You were taken to Dandenong Hospital where you underwent surgery to repair the injury to your arm. No record of interview was conducted.
6 You were charged the following day, 20 May 2014, and you have remained in custody since your arrest on 19 May.
7 Both of these armed robberies to which you pleaded guilty are examples of serious and prevalent offences. They were frightening experiences for your victims. In her victim impact statement, Ms Shanley speaks of being shocked and angry and states that she has not been able to go back to the area.
8 The pharmacist, Mr Tang, and his assistant, Ms Timms, were just at work doing their jobs. Being threatened with knives and being told to hand over your goods or your takings is no part of the job description of a pharmacist or a pharmacy assistant. As Mr Tang says in his victim impact statement, “I’m an ordinary person just doing my job and was left feeling frightened and distrustful as a result. I no longer feel safe in my own shop and am always in alert mode as the next armed robber might strike”.
9 Similarly, in her victim impact statement, Ms Timms describes regularly feeling anxious and easily frightened and of being fearful of people wearing sunglasses and hoody, as you were at the time.
10 It is important for you to understand that these are just some of the consequences of your behaviour on that day and the consequences are long-lasting and significant for your victims.
11 It is clear, therefore, that subject to consideration of matters personal to you, denunciation, deterrence and just punishment are important sentencing considerations.
12 At the age of 38, you have a troubling criminal history. This is the second time you have been before this court for armed robbery charges. The first was in 2002. Then you were sentenced by His Honour Judge Gullaci to 24 months imprisonment with a non-parole period of 16 months. Since 1994, you have amassed approximately 17 court appearances for a range of offences including drug use and possession, various dishonesty offences – including theft, burglary, theft from shops, theft of a motor vehicle – fail to answer bail, breach of a suspended sentence, driving offences, unlawful assault and various offences relating to possession of stolen goods.
13 Significantly, however, there have been only two court appearances since you were sentenced for the armed robbery charge in 2002 and a cluster of summary offences at about the same time.
14 In 2006, you received a suspended sentence for burglary, assault and associated offences and in 2009 you were fined for driving offences and one charge of shop-stealing.
15 Your criminal history reflects your life or childhood instability, deprivation and disadvantage. When you were a child your family moved house often. Schooling and the ability to make friends was interrupted as a result. You were exposed to the violence meted out to your mother from your father and then from her subsequent partners. You were exposed to their significant substance abuse, including your mother’s heroin abuse and significant alcohol abuse by her longest term partner after your father’s departure. You were also exposed to the consequences of your mother’s own struggles with her mental illness.
16 Sadly, your adult life followed the pattern of your mother’s in some ways. You began to abuse drugs and alcohol yourself and your relationships with men were marred by abuse.
17 You have, I am told, had eight children. For about eight years following your release from prison after that first armed robbery sentence, your life – although marred by significant domestic violence from your long-term partner – was relatively stable. You and your partner and a number of your children were living in public housing in Ascot Vale. You were almost completely out of trouble and the family was stable enough for children to remain in your care and for you and for them to have, despite the violence, a real semblance of family life.
18 Things began to unravel. Your partner was ultimately sentenced to a term of imprisonment in respect of acts of violence committed on you and, soon thereafter, took his own life. In what was a sad and cruel act, he left a recording containing what the forensic psychologist, Mr Simmons, described as a long diatribe directed towards you expressing quite ambivalent emotions before ending his life. Not surprisingly, that had a marked effect on you.
19 Your substance abuse escalated and you added methamphetamines to the cocktail of illicit drugs and alcohol with which you were already too familiar. Eventually, those children who had been living with you were returned to the care of their father or went to other places.
20 Despite the neglect and deprivation of your upbringing, you loved your mother and her death, not long before the commission of these offences, is seen by Mr Simmons as the other significant life event which helps explains your downward spiral into depression, substance abuse and homelessness, which cumulated in the commission of these offences by you. During that period, your substance abuse led to at least one episode of hospitalisation for drug-induced psychosis.
21 You have been in custody since your arrest in May of this year. You are now being treated with antidepressants and anti-psychotic medication. Mr Simmons is unsure how much of your depressive symptoms are reactive to the circumstances of charge and imprisonment and how much of it is unresolved grief over the death of your partner and the death of your mother and how much of it is a resurgence of your earlier diagnosed and long-standing depression. What is clear is that you would benefit from assessment and treatment for your mental health and your substance abuse. Such treatment needs to extend beyond the prescribing of antidepressant medication – something significant in itself. However, you need to engage in counselling for your mental health and for your substance abuse in order to assist you to develop relapse prevention strategies, to appreciate the strength that you have been able to show over extended periods during your life and to give you the confidence to start afresh, better, more safely and more happily.
22 Mr Simmons also recommends a neuropsychological assessment. He conducted a neuropsychological screening test which indicated some deficits in your cognitive functioning, particularly executive functioning. If there are deficits in decision making, judgment and impulse control attributable to impaired cognitive functioning, then assisting you to find strategies to help you compensate for those deficits will also clearly assist you in reducing your risk of further offending and of being able to make better choices about your life and your future. It is clear that that is what you want to do.
23 I endorse Mr Simmons’ recommendations for drug and alcohol counselling for mental health assessment and treatment and for neurological assessment and, if recommended, treatment.
24 You have demonstrated in the past the ability to remain offence-free and to keep your use or abuse of substances at least within manageable proportions for most of the time, and that is particularly the case when the rest of your life is more stable. That indicates to me that you have better prospects for rehabilitation than a cursory glance at your criminal history or a look at the circumstances of these offences would otherwise suggest. But it is clear that in order to encourage those prospects for rehabilitation, you will need support, supervision, treatment and, importantly, stable housing.
25 Mr Grimshaw’s submissions were directed towards the imposition of a combined sentence of imprisonment with a community correction order taking advantage of the recent amendments to the Sentencing Act which permit a sentence of up to two years imprisonment followed by a community correction order. Previously, the maximum term of imprisonment that could be imposed in combination with a community correction order was three months.
26 Mr Grimshaw’s submission was, I thought, a well-founded one. It allowed for the punitive effect of a term of imprisonment of longer than three months combined with a customised set of conditions attached to a community correction order. Such conditions could address your particular needs, the factors which, unaddressed, were likely to lead you to commit further like offences and other offences.
27 Such conditions would reduce your risk of reoffending, encourage your rehabilitation, give some shape and structure to that desire you express and have consistently expressed since your arrest and imprisonment to make positive changes in your life and to live an offence-free and substance abuse-free life.
28 I consider a Community Correction Order in combination with a term of imprisonment would also act as a deterrent to you, because of the consequences of breach of the Community Correction Order and because there will be a long-term, strictly supervised and highly structured set of conditions around you. It, therefore, in my view, also acts to serve, in part, the need for general deterrence because anybody facing court, facing charges like yours and looking at the prospect of release on a Community Correction Order after imprisonment must appreciate that this is a combination of a punitive and highly supervised regime. It is not an easy way out for anyone.
29 It also is, I consider, particularly appropriate for your circumstances as your offending must be understood to link back still to your deprived and disadvantaged upbringing. It is clear that although, at 38, you can regard yourself as a mature adult, the long-term effects of childhood deprivation and disadvantage are well recognised to carry through into adult life and to form or inform poor decision making all the way through adult life unless considerable assistance is given to overcome the disadvantage.
30 I had you assessed for suitability for release upon a Community Correction Order after a term of imprisonment and, save for one vital consideration, you were assessed as suitable. That vital consideration is this: you have nowhere to go on release. You have, as I have noted, lost your public housing following your downhill spiral in the aftermath of the suicide of your partner. Your mother is dead and your father long out of your life. Your maternal grandmother – who appears to be the one family member who has been a constant support in your life – feels herself unable, at this stage, to yet again offer you shelter with her upon release.
31 Homelessness is something that particularly affects women prisoners and is a significant risk factor in their reoffending generally. I have twice adjourned your sentencing to see if stable safe accommodation could be arranged upon your release. Your grandmother has declined and no public housing or housing provided by government agencies, government funded welfare agencies or private welfare agencies or organisation assisting women prisoners on release has been able to be found who can, at this stage, offer you a secure guarantee to accommodation upon your release.
32 Whilst there are prospects of securing accommodation once your release date is known and closer to that date, at the moment the way the system works with public housing, with corrections, with the government funded and charitable organisations established to support those in need of accommodation, nothing can be done for women in prison until they are just about to be released. It seems to me to be a terrible catch 22. It is worse than that; it is a scandalous situation. A community which punishes people by depriving them of their liberty should, in my view, take responsibility for making safe and stable accommodation available to prisoners who would otherwise be homeless on their release. Prisoners otherwise eligible for parole or for release on a Community Correction Order after serving a term of imprisonment should not be denied the opportunity for release on such orders because they have no family, friends or means to provide them with somewhere safe to go.
33 In my view the State cannot deny prisoners the opportunity for release on parole or on a Community Correction Order because they have no accommodation and the State will not provide it. Just as the State must provide the supervision or mental health or drug and alcohol assessment and treatment conditions mandated in conditions able to be imposed by the parole board or in conditions able to be imposed by a judicial officer when imposing a Community Correction Order, so too, in my view, must the State provide accommodation to those whose release depends upon it at least as a starting point.
34 If I thought there were any prospect of securing accommodation now against your future release, given more time, or of, at this stage, compelling the State to provide it – and you were willing to languish un-sentenced for longer whilst that was pursued, I would further adjourn. But Mr Grimshaw has indicated that he has exhausted all avenues known to him and to you and that you have indicated you want finality. You want to be sentenced. I accept that since the last adjournment each of you has done all that you can to try and find suitable and appropriate means of accommodation.
35 You want to know your fate. You want to be able to plan for your future and, significantly, to begin to be able to participate in the courses that corrections offers to those in custody designed to assist their rehabilitation and the work opportunities available for those in custody but which are only available to sentenced prisoners. Having been informed last week that you and Mr Grimshaw had exhausted all possible opportunities known to you to find accommodation that you could now identify that would be available for you on your release.
36 I was initially of the view that it would be inappropriate to impose the sentence that I consider would best combine just punishment and denunciation with addressing the causes of your offending, namely a term of imprisonment followed by that customised CCO I have been referring to. Such a sentence would, in my view, best reduce your risk of further offending because it would offer opportunities to someone willing – as you have indicated you are – to take advantage of them to address the causes of your offending.
37 It would, in my view, give proper weight to your prospects of rehabilitation by providing the opportunities to somebody who has shown an ability to maintain an offence and substance abuse-free life for sustained periods and who expresses the determination now and has since her remand in custody to commit herself to her rehabilitation. Successful participation in mental health assessment and treatment, drug and alcohol counselling and any neuropsychological treatment if recommended, in my view, would provide an effective means of deterring you from future offending.
38 The risk of breach and resentencing also serves to act as a significant deterrent both personally and generally. I do think that you are at heightened risk of reoffending without housing. I was concerned that I would be setting you up to fail by imposing a Community Correction Order to be served after service of a term of imprisonment if you had nowhere to go but it seems to me you would be equally at risk if you were released on parole without anywhere to go or if you were denied parole and released at the end of your whole sentence and you had nowhere to go.
39 In my view it would be grossly unfair if you were denied parole – although otherwise eligible – because you had no accommodation and the corrections authorities could not themselves – or in cooperation with other government agencies, government funded welfare agencies or charitable organisations dedicated to assisting the disadvantaged – find you accommodation on release.
40 Similarly, I consider it would be grossly unfair if you were denied the opportunity to undertake a Community Correction Order after a term of imprisonment because accommodation could not be found for you and you could not find it yourself.
41 So I have decided to do what I think is just and fair in sentencing, balancing the need to punish, denounce and deter with the allowance properly to be made for your background of deprivation and disadvantage which is the root cause of your offending and the matters properly counting in your favour. In addition to the matters I have mentioned I should also indicate, of course, that you pleaded guilty and did so at the earliest available opportunity. That clearly has not only utilitarian value but is consistent with the attitude you have expressed since you sobered up after your arrest, of acknowledging responsibility for your conduct and expressing real regret for the consequences of your conduct upon others. I accept it, therefore, as evidence of remorse and counting towards my assessment of your better than would otherwise be anticipated prospects of rehabilitation.
42 Ms Robertson, can you now please stand.
43 Kylie Robertson, on the two charges of armed robbery to which you have pleaded guilty, you are convicted. On charge 1, the armed robbery in respect of the cigarette, you are sentenced to be imprisoned for a period of 15 months and to the CCO that I will announce in a moment. On charge 2 you are convicted and sentenced to be imprisoned for a period of 15 months and the CCO which I will announce in a moment. So far as the term of imprisonment is concerned I direct that three months of the sentence on charge one be served cumulatively upon the sentence on charge 2. That makes a total effective sentence of 18 months.
44 I declare that you have been in custody in respect of these sentences for 177 days and direct that that be reckoned as part of the imprisonment already served under this sentence and which is to be deducted administratively. In addition, on charges one and two you are ordered to serve a Community Correction Order for a period of two years. The order commences upon the completion of your term of imprisonment and runs, thereafter, for a period of two years. I must identify a community correctional service for you to attend upon your release. At this stage I am going to make it Dandenong because of what I have been told about your circumstances but you will be able to change that to the corrections centre closest to where you are living upon release.
45 So as you find your accommodation and before your release if it is not going to – if Dandenong is not the closest community corrections centre you can contact corrections and make the necessary adjustment. But at this stage the order is that you attend at the Dandenong Community Corrections Services within two days of your release. There are mandatory terms that apply to all Community Correction Orders and they are these: that you must not commit another offence for which you could be imprisoned during the time the order is in force; you must comply with any obligation or requirements prescribed by regulation 17 of the Sentencing Regulations. That means you cannot be impaired by any substances – illicit substances or alcohol – when attending at corrections and you must submit to testing if directed to do so; you must report to and receive visits from the secretary or delegate; you must let a community correction officer know within two clear working days if you change your address, if you get a job or if you lose a job or get a new job; you must not leave Victoria without first getting permission to do so from the secretary or delegate; and you must obey all lawful instructions from and directions of the secretary or delegate.
46 In addition to those mandatory terms I am imposing the following customised conditions for you: you must be under the supervision of a community correction officer for a period of two years; you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager; you must undergo assessment including testing for alcohol abuse or dependency as directed by the regional manager; you must undergo a mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric assessment and treatment in a hospital or residential facility as directed by the regional manager.
47 And I am also imposing a condition of judicial monitoring. So it comes back to this court and before me on a regular basis for me to monitor your progress. I hope you will be able to report to me what advances you are making in finding stable housing; what advances you are making in your drug and alcohol treatment and assessment; in your mental health assessment and treatment and the neuro-psychological assessment and treatment, if directed. If there are delays in Corrections providing any of the assessments of programs that I have directed, that that can be ironed out and ways through can be found before you are put in a position where you get overwhelmed by it or corrections decides to institute breach proceedings.
48 Now, do you understand the effect and the conditions of this order and do you consent to it being made? All right. I will ask Mr Grimshaw to take that down to you, go through it with you and when you are sure you understand it – you understand the conditions you are binding yourself to, to sign it as an acknowledgement of your consent. I have fixed the first date for judicial monitoring for 12 February 2016. That is approximately three months after your release so you should be able then to have started to stabilise and to be in a position to tell me how you are going and look forward to giving me a positive report about what’s happening.
49 I have signed the Community Correction Order. We need to have a copy of that made before you are taken downstairs. I have also been asked to make a disposal order in respect to the knife. I note that is by consent I make that order. And I declare, pursuant to s.6AAA of the Sentencing Act 1991 that but for your pleas of guilty I would have sentenced you to a total effective sentence of five years in prison and fixed a non-parole period of three years.
50 Now, are they all the orders that are required to be made?
51 MS WALTON: Yes, your Honour.
52 HER HONOUR: The form in which I pronounced them correctly reflects what I am required to do and what I said I intended to do?
53 MS WALTON: Yes, your Honour.
54 HER HONOUR: Just take a seat, Ms Robertson, while the CCO is copied so you can be given a copy of it. And I will ensure that a copy of the reasons for sentence and of Mr Simmons’ report together with the CCO are provided to prisoner management so that the recommendations I’ve made in respect of drug and alcohol assessment and treatment and psychiatric assessment and treatment are conveyed to the prison authorities so that that can be factored into the programs made available to you whilst in custody. All right. Thank you.
55 You can now remove Ms Robertson. Okay. Adjourn.
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