Director of Public Prosecutions v Roffel
[2023] VCC 975
•9 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01508
CR 22-01509
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUDE ROFFEL JADE MENHINNITT |
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JUDGE: | HIS HONOUR JUDGE KELLY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 May 2023 |
DATE OF SENTENCE: | 9 June 2023 |
CASE MAY BE CITED AS: | DPP v Roffel & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VCC 975 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Robbery – Common Assault – Reckless Conduct Endangering Serious Injury – High Speed Chase – Co-Offenders – Verdins & Bugmy considerations – Akoka Discount – Comparable Cases - Disparity in Sentence.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited:Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 262 CLR 428; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; DPP v Akoka [2017] VSCA 214; Worboyes v The Queen (2021) 96 MVR 344; Lowe v The Queen (1984) 154 CLR 606; Abdou v The Queen [2015] VSCA 359; Collins v The Queen [2015] VSCA 106; Director of Public Prosecutions v Bowen [2016] VSCA 283; The Queen v Hildebrant (2008) 187 A Crim R 42; Bugmy v R (2013) 169 CLR 571; Newton (a pseudonym) v The King [2023] VSCA 22; Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342; DPP v Cadby [2023] VCC 240; DPP v Henriquez [2020] VCC 711; DPP v Hanson [2017] VCC 742; DPP v Munkayilar & Hassen [2022] VCC 204; DPP v Austin [2020] VCC 614; DPP v Robinson [2022] VCC 2127.
Sentence:ROFFEL: Three years imprisonment; MENHINNITT: Six months imprisonment and a two year Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Allan | Mr R. Tudehope Office of Public Prosecutions |
For Accused Roffel | Mr C. Pearson | Ms A. Sutherland Greg Thomas Barrister & Solicitors |
For Accused Menhinnitt | Ms J. Clark | Ms S. Abell Law and Advocacy Centre for Women |
HIS HONOUR:
1Jude Roffel, you have pleaded guilty to one charge of robbery, one charge of intentionally cause injury and one charge of reckless conduct endangering serious injury. The maximum penalties for these offences are as follows:
·Robbery: 15 years;
·Intentionally Cause Injury: 10 years' imprisonment;
·Reckless Conduct Endangering Serious Injury: five years' imprisonment.
Circumstances of offending
2The circumstances of your offending were summarised by the Prosecution at your plea. In 2021, Ms Menhinnitt and you, Mr Roffel, were living together at San Marco Street, Mill Park. Jaspinder Singh lived in Point Cook, ran his own business, owned a Ford Mustang, and on the night of the offending was wearing rings on his fingers.
3Just after midnight on 2 November 2021, Mr Singh drove to Ms Menhinnitt's address following an exchange of messages with her on a dating site called Skout. They had been communicating on this platform since 17 October 2021. Mr Singh had not previously visited Ms Menhinnitt's home.
4Ms Menhinnitt led Mr Singh into the garage of the property. Mr Roffel, you were waiting for him. You demanded Mr Singh hand over his belongings. He tried to leave. Ms Menhinnitt left the garage, and three associates of hers entered it and joined you, Mr Roffel, in assaulting Mr Singh.
5Demands for Mr Singh's property and car keys were made by each of you. Mr Singh tried to alert neighbours by kicking the garage door. He was then punched and kicked by all four men, who continued to demand his belongings. Mr Roffel, you demanded Mr Singh's rings, threatening to cut them off his fingers with a knife. At some point, Ms Menhinnitt left the garage and returned with a knife, threatening to stab Mr Singh if he did not keep quiet. The demands for his property continued in her presence. This conduct forms the basis of Charge 2, Common Assault, referrable only to Ms Menhinnitt.
6The assailants obtained Mr Singh's belongings, consisting of a phone, two gold rings and the keys to his car. Mr Singh was eventually able to ward off his attackers with a metal rod. He opened the garage door. He stumbled out and yelled for someone to call the police. You, Mr Roffel, and another associate drove off in Mr Singh's car. This conduct forms the basis of Charge 1 on both indictments, Robbery.
7Mr Singh was later examined at Northern Hospital and had a number of injuries, including bruising and swelling to the upper cheekbones on both sides of his face, swelling to his nose, open wounds to the upper and lower lips of his mouth, bruising over his right back and scapula bone, and pain within normal range of movement of his right upper limb, bruising and pain to his right calf muscle.
8Mr Singh attended Footscray Hospital on 4 November 2021 to receive treatment for a chest infection and severe acute kidney failure. He was discharged on 9 November 2021. These injuries were sustained as a result of the kicks and punches by you, Mr Roffel, and your co-accused that make up Charge 2 on the indictment, Causing Injury Intentionally.
9At approximately 12.57 am, Senior Constable Scott Graham and Timothy Ellison observed Mr Singh's Mustang travelling south on Plenty Road, Bundoora, at an estimated speed of 135 kilometres an hour. The officers turned on their flashing lights, but the vehicle failed to stop, and police pursued it. The Mustang was driven by you, Mr Roffel.
10The Mustang sped at over 130 kilometres per hour and continued through the intersection of Plenty Road and Grimshaw Street, Bundoora, despite a red traffic control signal, making no attempt to stop or to slow. The Mustang accelerated to speeds of over 145 kilometres an hour on a stretch of road with a speed limit of 70 kilometres an hour, continuously overtaking other road users. Mr Roffel, you sped through an intersection against another red light, driving on the incorrect side of Kingsbury Drive in excess of the posted speed limit. Police at this point abandoned the pursuit due to the dangerousness of your driving.
11The Mustang was observed near Waiora and Outhwaite Roads in Heidelberg Heights at about 1.08 am, and at 1.40 am was seen parked at a Shell service station in Preston. Police observed you, Mr Roffel, leave the premises and get into the driver's seat before the Mustang took off quickly. The Mustang entered the intersection at Chifley Drive and Bell Street, travelling through a red light at an estimated speed of over 200 kilometres an hour. It is this episode of driving that constitutes Charge 3 on Indictment M12275479, Conduct Endangering Persons.
12At approximately 1.48 am, First Constable Nataly deployed a tyre deflation device on the northbound lanes on St Georges Road in Northcote, puncturing the Mustang's tyres and slowing it down. The car continued through various backstreets of Northcote and Preston before stopping outside 10 Kelley Court, Preston. Mr Roffel, you abandoned the car and travelled through various backyards before being arrested outside 7 Robeson Street, Preston. The car keys to the Mustang were located in the rear yard of 10 Kelley Street.
Prosecution submissions
13The prosecution submits that the offending in the garage was opportunistic, unprovoked and committed on an unsuspecting victim who was outnumbered by five offenders. An important issue for determination was the degree of
pre-planning involved. Ms Allan for the prosecution submitted there was some evidence of an arrangement, understanding or agreement between the parties notwithstanding that the plan may not have been hatched days or even weeks earlier. She pointed to the following:(1)The Skout messages exchanged between Ms Menhinnitt and Mr Singh in the lead-up to the offending show that Ms Menhinnitt invited Mr Singh to the address;
(2)There was a degree of urgency in Ms Menhinnitt's messages to Mr Singh, according to Mr Singh's statement. Ms Menhinnitt was very keen for Mr Singh to arrive;
(3)Mr Singh was told on arrival that there was another man there, but he would be leaving soon. There were four men there, and Mr Roffel did not leave;
(4)The demand for Mr Singh's property was made almost immediately;
(5)Ms Menhinnitt checked Mr Singh's car with her phone torch when he arrived, which suggests a degree of scouting;
(6)Ms Menhinnitt's text message exchanges with Mr Roffel after the event.
14Ms Clark, for Ms Menhinnitt, submitted that there was minimal evidence of
pre-planning. She said that whilst there might be some indication of minor
pre-planning in the minutes or hours before the offending, there is no evidence of anything more than that. Mr Pearson, on behalf of Mr Roffel, submitted that the attack on Mr Singh was spontaneous and that Mr Roffel was not part of any efforts to lure Mr Singh to the house. On his version, there was no plan.15There are two competing scenarios on the submissions advanced. The first, which derives from the submissions by Mr Pearson for Mr Roffel, involves an acceptance that Ms Menhinnitt was interested in Mr Singh, at least from Mr Roffel's perspective, and was anxiously awaiting his arrival to assess him as a prospective partner but that things took a dark turn suddenly after his arrival.
16According to the second analysis, it is improbable that Ms Menhinnitt spent the minutes before Mr Singh's arrival pacing the floor and double-checking her appearance. Messrs Roffel, Cauchi, Papadimitriou and their associate would not have been at the house if Ms Menhinnitt was anxiously preparing to receive a romantic prospect. On this view, Mr Roffel can only have been there to receive Mr Singh as a consequence of a plan either to threaten or to assault him. That plan may only have been an hour or two in the making, but it was a plan nonetheless, and Mr Roffel and Ms Menhinnitt were parties to it.
17That view is supported by the fact that Mr Singh was led to the garage, that Mr Roffel was waiting there, that the demand for Mr Singh's property was made almost immediately and that Ms Menhinnitt was not surprised by what Mr Roffel and his associates did to Mr Singh but armed herself with a knife to threaten him and suggested at one point bundling him into the boot of his car. I intend to sentence you, Mr Roffel, on the basis that you had agreed to lure Mr Singh to the house to separate him from his belongings.
18The prosecution submitted that the offending in the garage was not at the highest end of the range of seriousness but nor was it at the lowest end. The charge of reckless conduct endangering serious injury, Mr Roffel, is, the prosecution submitted, at the highest end of seriousness, and in support of this contention, Ms Allan cited the following:
(a)The driving involved extremely high speeds, including an estimated speed of up to 200 kilometres per hour on a stretch of road for which the speed limit was 70;
(b)The driving involved running red lights;
(c)The driving involved travelling on the wrong side of the road;
(d)The driving lasted for about an hour although I am unable to conclude that the driving was dangerous for that entire length of time.
19The prosecution further submitted that the offending is aggravated by the fact that you, Mr Roffel, were on a Community Correction Order at the time of the offending. The prosecution ultimately submitted that an immediate term of imprisonment with a head sentence and non-parole period was warranted in your case.
Defence Submissions
20Mr Roffel, Mr Pearson, on your behalf, argued that your plea of guilty demonstrates remorse and shows that you have accepted responsibility for what you have done. It was also argued that your guilty pleas have an added value due to the principle in Worboyes v The Queen. At a time when courts are still managing the effects of the COVID-19 pandemic, a guilty plea carries added utilitarian value, which accordingly warrants a greater discount on sentence.
21It is submitted that your prospects of rehabilitation remain reasonable and that the appropriate sentence is a combination of both gaol time and a therapeutically structured Community Correction Order. Mr Pearson highlighted that this offending occurred whilst you were affected by drugs although he appropriately conceded that self-induced intoxication is not a mitigatory feature, merely a contextual circumstance. He argued that your diagnosis of
attention-deficit/hyperactivity disorder (ADHD) and autism spectrum disorder (ASD) enliven the principles in the case of Verdins. I shall come to this consideration later.22It was submitted that the seriousness of your driving offending is lessened by virtue of the fact that this happened in the early hours of Tuesday morning, and no one was injured. That might be so, but evasive action had to be taken by other road users to avoid you.
23A number of reports from Uniting, a residential rehabilitation centre you attended, were provided to the court. They demonstrate mixed results in relation to your rehabilitation. It seems you made some progress but ultimately left the program in August 2022. You are now on remand. I am told by your counsel that you want to return to the Uniting program to do further work with them, and this is a positive sign.
Personal background – Jude Roffel
24Your history was summarised in the report of Gina Cidoni dated 22 May 2023. You were born in January 2001. You were 20 at the time of this offending. You were born in Melbourne and raised in Werribee by your mother and stepfather. Your parents separated when you were four, and you had limited contact with your biological father thereafter, which was a source of difficulty for you. You have two half-sisters who live with your mother and stepfather in Ballan. You reported to Ms Cidoni that you had a sound childhood.
25You attended Iramoo and Our Lady of the Southern Cross Primary Schools and MacKillop College and Western Autistic School in Laverton until Year 11. You reported that your ASD diagnosis impacted on your learning and led to you being severely bullied for being different.
26You left home at 17, living in Bacchus Marsh for a year before moving into your father's home in Preston. You have had a number of odd jobs, including a stint as a nightclub DJ which you say is the cause of your substance abuse issues. Following your most recent release from custody in September 2021, you went to live with Ms Menhinnitt and her three children. You were not in a romantic relationship with her, you say.
27You were diagnosed with ASD and ADHD at the age of eight, and you reported that growing up, you were often in trouble and did not get along well with other children. The report of Ms Cidoni notes that you have previous diagnoses of Separation Anxiety Disorder, Post-Traumatic Stress Disorder, Adjustment Disorder and Unsocialised Conduct Disorder. Although you were previously prescribed an antidepressant whilst in prison, you are currently not receiving any medication or engaging in any counselling.
28You started drinking at age 17, advancing to binge drinking during your work as a DJ. It is also as a DJ that you began to use cocaine, ketamine, MDMA and ecstasy – ostensibly, so that you felt able to socialise with others. You graduated to methamphetamine and GHB use by the age of 18 and continued to use these substances up until your 2021 incarceration. You have attempted residential rehabilitation on one occasion through the Uniting Gippsland residential rehabilitation program where you participated in group and individual therapy sessions. There were episodes of non-compliance with the program's rules, and you were discharged twice from the program. Despite this, you maintain contact with your Uniting team leader, and you hope to return to the program upon your release.
Comparable Cases
29I was taken by Mr Pearson to a number of sentences of this court which, it was submitted, I can consider. These have been useful in determining current sentencing practices, but I have also had regard to the comments of Justices Gageler and Gordon in Dalgliesh to this effect:[1]
“Sentences are not binding precedents but are merely 'historical statements of what has happened in the past' ... Examination of sentences imposed in comparable cases may inform the task of sentencing, but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.”
[1]Director of Public Prosecutions v Dalgliesh (A Pseudonym) (2017) 262 CLR 428, 454 [83] (Gageler & Gordon JJ).
30Annexed to these remarks is a table containing summaries of each of these cases. They have been of some limited assistance.
Verdins – Roffel
31Mr Roffel, you have been diagnosed, as I said, with both
attention-deficit/hyperactivity disorder and autism spectrum disorder. For this reason, Mr Pearson submitted that the principles in Verdins[2] are enlivened in your case. The prosecution argue that a causal link cannot be drawn between your mental condition and your offending, and your counsel made clear that he drew no such link. He said your moral culpability was not substantially lessened. Mr Pearson argued that your mental conditions would enliven principle 5 of Verdins; namely, that you would experience greater hardship in custody as a result of your dual diagnoses.[2]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
32In her report, Gina Cidoni concluded:
Mr Roffel's mental illness can significantly increase the burden and challenges of imprisonment beyond what an individual without these conditions might experience.
33She further writes:
The structured nature of prison life characterised by strict rules and regulations may not adequately accommodate his specific needs and challenges associated with his mental illnesses.
34I accept that your mental conditions would make prison life more onerous than one without them, and I moderate your sentence accordingly.
Akoka
35Mr Pearson relied on the fact that you, Mr Roffel, have spent periods in residential rehabilitation from 6 April 2022 until 20 May 2022, 44 days, and from 9 August 2022 until 26 August 2022, an additional 17 days. He argued that your liberty was relevantly restrained during those two periods, and you are entitled to a reduction in your sentence to reflect this hardship to you. I note you were able to escape and consume drugs, but I otherwise accept that the time you spent as a guest of the Gippsland Youth Residential Program impinged upon your liberty, and you are therefore entitled to an Akoka discount.[3]
[3]DPP v Akoka [2017] VSCA 214 (‘Akoka’).
Guilty Plea
36You have pleaded guilty following a contested committal hearing in which the victim and the informant were cross-examined. Despite this, it was accepted by the prosecution that you have pleaded guilty at an early stage. Your plea has utilitarian value in that it has both allowed witnesses to avoid the expense and hardship of providing evidence at a trial and have spared the expenditure of court resources that would otherwise have been used to conduct a criminal trial. I have ameliorated your sentence on the basis of this utility.
37Your pleas also have additional utility in that they have been entered into during a time when the courts are still feeling the effects of the COVID-19 pandemic. As such, I have mitigated your sentence to account for this additional utility in line with the principle outlined by the court in Worboyes.[4]
[4]Worboyes v The Queen (2021) 96 MVR 344, 356-357 at [39] (‘Worboyes’).
Objective gravity and moral culpability
38This robbery was committed at night, in company and upon a stranger. He must have been terrified by the threats made. The robbery targeted his means of transport and left him stranded and vulnerable. The physical attack was nasty, committed in company when he was defenceless and outnumbered. He was punched and kicked by four strangers on the floor of a stranger's garage. Your moral culpability, Mr Roffel, is high. The driving offence is a grave example of its type, and it calls for a gaol sentence.
Sentencing Principles
39Section 5 of the Sentencing Act provides that the only purposes for which you may be sentenced are:
(a)to punish you in a manner and to an extent which is just in all the circumstances;
(b)to deter you or others from committing similar offences in the future;
(c)to facilitate rehabilitation;
(d)to manifest the denunciation of your conduct;
(e)to protect the community;
40Or a combination of two or more of these purposes.
41For you, Mr Roffel, whilst your criminal history is more extensive than Ms Menhinnitt's, you are still young. You were only 20 years old at the time of the offending. Rehabilitation is an important sentencing consideration in your case. However, it is important that the courts both deter you and others from engaging in such dangerously reckless driving and for the court to denounce such appalling conduct.
42You were assessed for a Community Correction Order but were found unsuitable. You were described as having 'minimal insight' and you were assessed as being at high risk of offending. I have taken this assessment into account in determining the sentence I am to impose.
Parity Considerations
43Given that I am to sentence co-offenders, I have had regard to the principle of parity.
44This principle is derived from the notion of equal justice,[5] and requires sentencing courts to ensure consistency in punishment[6] by treating like offences alike. That said, relevant differences between offenders are capable of justifying different sentencing outcomes.[7] An offender's age, background, criminal history, health, character and roles in the offending are all relevant and may justify disparate sentences,[8] and a comparative analysis of the culpability and circumstances of co-offenders is indispensable to the application of the parity principle.[9]
[5]E.g., Lowe v The Queen (1984) 154 CLR 606, 610-611 (Mason J).
[6] E.g., Abdou v The Queen [2015] VSCA 359 at [62].
[7]Collins v The Queen [2015] VSCA 106 at [23].
[8]E.g., Director of Public Prosecutions v Bowen [2016] VSCA 283 at [53].
[9]E.g., The Queen v Hildebrant (2008) 187 A Crim R 42, 49 at [49].
45In this case, the different roles each of you played, together with Ms Menhinnitt's reduced moral culpability, have led me to impose disparate sentences.
Sentence
46Mr Roffel, can I ask you to stand.
47In your case, Mr Roffel, the appropriate sentence is an immediate term of imprisonment with a head sentence and non-parole.
48On Charge 1, Robbery, you are convicted and sentenced to two years' gaol;
49on Charge 2, Causing Injury Intentionally, you are convicted and sentenced to 18 months' gaol;
50on Charge 3, Reckless Conduct Endangering Serious Injury, you are convicted and sentenced to 18 months' gaol.
51Charge 1 is the base sentence. I order six months of Charge 2 to be served cumulatively upon the base sentence and six months on Charge 3 to be served cumulatively upon the base sentence and upon Charge 2, producing a total effective sentence of three years' gaol.
52I order that you not be eligible for parole until you have served 18 months of that term.
53I declare that the time you have spent in pre-sentence detention, namely 290 days ‑ ‑ ‑
54MS ALLAN: Two hundred and ninety-one, Your Honour.
55HIS HONOUR: Two hundred and ninety-one days.
56MS ALLAN: Not including today.
57HIS HONOUR: Not including today, be reckoned as time served.
58Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these offences, I would have sentenced you to five years' gaol with a non-parole period of three years.
59Lastly, your counsel conceded that you were under the influence of methylamphetamine and other drugs throughout this offending. As a result, by virtue of s87P(f)(iii) of the Sentencing Act, your motor vehicle offence is a serious motor vehicle offence for the purposes of that Act. By virtue of s89(2)(c) of that Act, the court must disqualify you from obtaining a licence for a period of not less than 12 months. I order that you be disqualified from obtaining a motor driver's licence for two years.
60MS ALLAN: As Your Honour pleases.
61MR PEARSON: Your Honour please.
62(Short adjournment.)
63MS CLARK: Just before Your Honour proceeds, can I indicate Ms Menhinnitt apologises for being late. She said she was in an Uber, and when she contacted my instructor about 2 o'clock, she really did think she was close, but her sense of geography let her down.
64HIS HONOUR: That is fine, Ms Clark, thank you.
Introduction – Jade Menhinnitt
65Jade Menhinnitt, you have pleaded guilty to one charge of robbery and one charge of common assault. You have also pleaded guilty to the rolled-up related summary offence of committing an indictable offence whilst on bail. The maximum penalties for these offences are as follows:
·Robbery: 15 years' imprisonment;
·Common Assault: five years' imprisonment;
·Committing an Indictable Offence whilst on Bail, 30 penalty units or three months' imprisonment.
Circumstances of offending
66The circumstances of your offending were summarised by the prosecution at your plea. In 2021, you and Mr Roffel were living together at 3 San Marco Street, Mill Park. Jaspinder Singh lived in Point Cook, ran his own business, owned a Ford Mustang, and on the night of the offending wore rings on his fingers.
67Just after midnight on 2 November 2021, Mr Singh drove to your address following an exchange of messages with you on a dating site called Skout. You had been communicating on this platform since 17 October 2021. Mr Singh had not previously visited your home.
68You led Mr Singh into the garage of the property. Mr Roffel was waiting for him. Mr Roffel demanded Mr Singh hand over his belongings. Mr Singh tried to leave. You left the garage, and three associates entered it and joined Mr Roffel in assaulting Mr Singh. Demands for Mr Singh's property and car keys were made by each of them.
69Mr Singh tried to alert neighbours by kicking the garage door. He was then punched and kicked by all four men, who continued to demand his belongings. Mr Roffel demanded his rings, threatening to cut them off his fingers with a knife. At some point, you left the garage and returned with a knife, threatening to stab Mr Singh if he did not keep quiet. The demands for his property continued. This conduct forms the basis of Charge 2 on Indictment M12275082, Common Assault.
70The assailants obtained Mr Singh's belongings, consisting of a phone, two gold rings and the keys to his car. Mr Singh was eventually able to ward off his attackers with a metal rod. He opened the garage door. He stumbled out and yelled for someone to call the police. Mr Roffel and another associate drove off in Mr Singh's car. This conduct forms the basis of Charge 1, Robbery.
71Mr Singh was later examined at Northern Hospital and a number of injuries were found, including bruising and swelling to the upper cheekbones on both sides of his face, swelling to his nose, open wounds to the upper and lower lips of his mouth, bruising over his right back and scapula bone, and pain with normal range of movement of his right upper limb as well as bruising and pain to his right calf muscle.
72At the time of offending, you were on bail, and therefore your offending in this matter constitutes Summary Charge 9, Committing an Indictable Offence whilst on Bail.
Prosecution submissions
73The prosecution submits that the offending was opportunistic, unprovoked and committed on an unsuspecting victim who was outnumbered by five offenders. An important issue for determination was the degree of pre-planning involved. Ms Allan for the prosecution submitted there was some evidence of an arrangement, understanding or agreement between the parties notwithstanding that the plan may not have been hatched days or weeks earlier. She pointed to the following:
(1)The Skout messages exchanged between you and Mr Singh in the
lead-up to the offending show that you invited Mr Singh to your address;(2)There was a degree of urgency in your messages to Mr Singh, according to Mr Singh's statement. You were very keen for Mr Singh to arrive;
(3)Mr Singh was told on arrival that there was another man there, but he would be leaving soon. There were, in fact, four men there, and Mr Roffel did not leave;
(4)The demand for Mr Singh's property was made almost immediately;
(5)You checked Mr Singh's car with your phone torch when he arrived, which is some evidence of scouting;
(6)Your text messages with Mr Roffel exchanged after the event.
Defence submissions
74Ms Clark submitted that there was minimal evidence of pre-planning. She said that whilst there might be some indication of minor pre-planning in the minutes or hours before the offending, there is no evidence of anything more than that.
75There are two competing scenarios on the submissions advanced. The first, which derives from the submissions by Mr Pearson for Mr Roffel, involves an acceptance that you were interested in Mr Singh, at least from Mr Roffel's perspective, and were anxiously awaiting his arrival to assess him as a prospective partner, but things took a dark turn suddenly after his arrival.
76According to the second analysis, it is improbable that you spent the minutes before Mr Singh's arrival pacing the floor and double-checking your appearance. Messrs Roffel, Cauchi, Papadimitriou and their associate would not have been at the house if you were anxiously preparing to receive a romantic prospect. On this view, Mr Roffel can only have been there to receive Mr Singh as a consequence of a plan either to threaten or to assault him. That plan may only have been an hour or two in the making, but it was a plan nonetheless, and you and Mr Roffel were parties to it.
77That view is supported by the fact that Mr Singh was led to the garage, that Mr Roffel was waiting there, that the demand for Mr Singh's property was made almost immediately and that you were not surprised by what Mr Roffel and his associates did to Mr Singh but armed yourself with a knife to threaten him and suggested at one point bundling him into the boot of his car. Accordingly, I intend to sentence you on the basis that you had agreed to lure Mr Singh to your house to separate him from his belongings.
78The Prosecution submitted that the offending in the garage is not at the highest end of the range of seriousness but nor is it at the lowest end. The prosecution further submits that the offending is aggravated by the fact that you were on bail for unrelated charges at the time.
79It was submitted that your limited criminal history made a combined sentence of imprisonment and a Community Correction Order open in this case. Ms Clark, on your behalf, submitted that you were not present for the worst part of the offending in the garage; namely, the punching and kicking of Mr Singh.
80Ms Clark submitted that a Community Correction Order was the appropriate disposition in your case because your children have been taken away from you as a result of this incident. You want to reunite with them, and a sentence served in the community rather than in prison would foster your rehabilitation by promoting your reunification with your children. Your duty to them would keep you committed to a quiet, unexceptional and dutiful life. She argued that a prison term would serve retribution but would only undermine your prospect of reunification with your children and thus your rehabilitation.
81Ms Clark argued that you were drawn into this offending by surrounding yourself with your accomplices for protection. You feared violence at the hands of your former partner, the father of your children, and invited male friends to share your home so that they could defend you if your ex-partner appeared at your doorstep. It was argued that you were at a low point in your life at the time of your offending, trying to piece your life together after an abusive relationship. You applied for housing in late 2022 and have been homeless for periods of time. Currently, you are living in Airbnb-style accommodation.
82Your children currently remain in foster care. You have some contact with them, which is conditional on providing negative drug screens. You did not have substance abuse issues before this offending, I am told, but since this incident, you have used various substances, at one point consuming 28 grams of cannabis every couple of days. I am told this drug use has stopped as a result of the need to provide negative drug screens to see your children.
83In light of your history, your support network and your motivation to be reunited with your children on a more permanent basis, I assess your prospects of rehabilitation as reasonable.
Personal background
84I now turn to your personal history. It was helpfully summarised in the report of Ms Carla Lechner dated 12 May 2023 and a letter from Mary Paterson, your case worker at the Law and Advocacy Centre for Women, dated 9 May 2023, which were tendered on your plea.
85You were born in November 1993, and you are 29 years old. You are the eldest of five children born to Trinity and Greg Menhinnitt, and you have four half siblings on your father's side. Your father died in 2008, and you report that you have had no contact with your mother or your siblings other than some contact with your full brother, Miles.
86You were in one long-term relationship, with a Mr Darren Dole, which ended prior to this offending, and three children were born to him. These children were taken into foster care following your remand on this offending, and you have access via weekly supervised visits.
87You were born in Box Hill and grew up in Queensland. Your family history was characterised as dysfunctional, with violence exhibited by both parents against each other, resulting in your father occasionally being placed in custody. You reported you did not have many friends, as you felt you could not invite them over to your house. You describe yourself as closer to your father, and your mother as the more violent of your two parents.
88You underwent numerous changes of home and school, including a stint of home-schooling. You apparently hated going to school, and your mum would not make you go. You attended Toowoomba State High School until Year 8 where, following the death of your father, you left school and moved to Melbourne to live with an aunt. You then worked part-time and continued to study, completing Year 11. Whilst living in Melbourne, you completed a diploma in beauty therapy and worked a number of odd jobs. Whilst working at the DFFS, you apparently fostered children for a period of approximately six months.
89You are currently unemployed. You are being assisted to obtain government housing, but the backlog of applications for this assistance means you remain homeless to date. Ms Paterson, case manager with the Law and Advocacy Centre for Women, notes that your eight-year-old son has been diagnosed with cerebral palsy and is likely to be permanently confined to a wheelchair within the next two years. He also has autism.
90Ms Lechner opines that you have demonstrated symptoms of adult ADHD or a cyclical mood disorder such as cyclothymic or bipolar mood disorder. You expressed to Ms Lechner that you have attempted suicide in the past. You are guided by your emotions and are likely to act on partial knowledge without consideration of the broader picture and implications.
91You report that your relationship with Mr Dole resulted in family violence against you; notably, on one occasion, when you were assaulted severely and admitted to the Northern Hospital for several days with a brain bleed. As a consequence of his violence against you, I was told you have developed a fear of living alone, and that has made you vulnerable to sharing your house with partners such as Mr Roffel, exposing you to their criminal activities and becoming ensnared in their schemes.
92You report that you did not use drugs prior to losing custody of your children, following which you got carried away with cannabis consumption. You also report using 'a little bit of cocaine and GHB' but denied using heroin, LSD, ecstasy or abusing prescription medications.
Bugmy Submissions
93Ms Clark submitted that your childhood, during which you were exposed to alcohol abuse, sexual abuse, the suicide of your father and family violence, lowered your moral culpability for your offending.
94Ms Clark urged the court to apply the principles in Bugmy v The Queen[10] in the general sense discussed in Newton v The King.[11]
[10]Bugmy v R (2013) 169 CLR 571, 594-5 at [43] (‘Bugmy’).
[11]Newton (a pseudonym) v The King [2023] VSCA 22 at [36].
95In submissions received this morning, the Prosecution accepts that your childhood exposure to alcohol abuse, family abuse, disruption to your schooling, the suicide of your father and other deprivations set out in the materials enliven the principles in Bugmy v The Queen. They also accept with conspicuous fairness that your childhood circumstances have compounded in your young adult life by your pattern of pursuing abusive relationships, the effects of which have continued after separation and are therefore contextually relevant to this offending.
96The prosecution concedes that your moral culpability for this offending may be moderated in a general way, having regard to your disadvantaged childhood, but they insist nonetheless that such considerations should not displace general deterrence, just punishment and community protection.
97I accept that your childhood exposure to violence, your mother's alcoholism and domestic dysfunction lower your moral culpability in the general sense identified by the court in Newton, and I have ameliorated your sentence to reflect this finding.
98There is some evidence that you have pursued relationships that replicate the dynamic you observed in your parents' marriage, and this has in turn exposed you to violence in your relationships. Your fear of violence at the hands of your ex-partner has led you to seek protection from marginal men, and that has exposed you to participating in this scheme.
Guilty Plea
99You have pleaded guilty following a contested committal hearing in which the victim and informant were cross-examined. Despite this, it was accepted by the prosecution that you have pleaded guilty at an early stage. Your pleas have utilitarian value in that they have allowed witnesses to avoid the expense and hardship of providing evidence at a trial and have spared the expenditure of court resources that would otherwise have been taken up conducting a criminal trial. I have ameliorated your sentence on the basis of this utility.
100Your pleas also have additional utility in that they have been entered into during a time when the courts are still feeling the effects of the COVID-19 pandemic. As such, I have mitigated your sentence to account for this additional utility in line with the principles enunciated by the court in Worboyes.[12]
[12]Worboyes (n 4) at [39].
Objective gravity and moral culpability
101This robbery was committed at night, in company and upon a stranger. He must have been terrified by the threats made. The robbery targeted his means of transport and left him stranded and vulnerable. You were complicit in it. The physical attack was nasty, committed in company when he was defenceless and outnumbered. He was punched and kicked by four strangers on the floor of a stranger's garage. Ms Menhinnitt, your moral culpability is high, subject to some amelioration due to the factors discussed in Bugmy v The Queen, as discussed previously. I note you sought to overcome Mr Singh's resistance by threatening him with a knife.
Parity Considerations
102Given that I am to sentence co-offenders, I have had regard to the principle of parity. As I have previously said, this principle is derived from the notion of equal justice and requires sentencing courts to ensure consistency in punishment by treating like offences alike. In this case, the different roles each of you played – that is, you and Mr Roffel – together with your reduced moral culpability, Ms Menhinnitt, have led me to impose disparate sentences.
Sentencing Principles
103Section 5 of the Sentencing Act provides that the only purposes for which you may be sentenced are:
(a)to punish you in a manner and to an extent which is just in all the circumstances;
(b)to deter you or others from committing similar offences in the future;
(c)to facilitate rehabilitation;
(d)to manifest the denunciation of your conduct;
(e)to protect the community;
104Or a combination of two or more of these purposes.
105Ms Menhinnitt, given your limited criminal history and relatively young age, rehabilitation is significant in your case. As part of Ms Clark's submissions on sentence, she took me to several passages from the case of Boulton[13] which delineate the almost limitless application of Community Correction Orders to offending large and small. I accept that such orders can have both punitive and rehabilitative components, and in certain cases, such orders alone can sufficiently meet the purposes of sentencing. However, I have found that there was a plan here to lure a man who was physically overwhelmed, threatened and beaten upon his arrival. You share responsibility with what happened to him with Mr Roffel, and that conduct needs to be denounced.
[13]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342.
106You were assessed for a community correction order, and you were found suitable. I have taken this assessment into account in determining the sentence I impose.
Sentence
107Ms Menhinnitt, please stand.
108Ms Menhinnitt, I intend to sentence you to a term of imprisonment followed by a Community Correction Order. You must consent to any community correction order I impose. Therefore, I should tell you about the conditions that would be attached to the order I intend to make, so listen carefully.
109The following core conditions apply to all Community Correction Orders:
(a)You must not commit, whether in or outside Victoria, during the period of the order an offence punishable by imprisonment;
(b)You must report to and receive visits from the Secretary of the Department of Justice or his or her nominee during the period of the order;
(c)You must report to a Community Corrections Centre – in your case, at South Morang Community Corrections Service – within two clear days following your release from custody;
(d)You must notify the Secretary or his or her nominee of any change of address or employment within two clear working days after that change;
(e)You must not leave Victoria except with the permission of the Secretary to the Department of Justice or his or her nominee;
(f)You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
110In addition to the mandatory conditions I have just outlined, I intend to impose a number of other conditions. They are as follows:
(a)You have to perform 300 hours of unpaid community work over a period of two years as directed by the regional manager. All hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition;
(b)You must be under the supervision of a community corrections officer for a period of two years;
(c)You are required to be supervised, monitored and managed as directed by the Secretary or his or her nominee;
(d)You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager;
(e)You must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the regional manager.
111I direct that I be advised by your corrections officer of any non-compliance of these conditions, and I will then determine if the matter should be brought back before me.
112I can only impose a Community Correction Order if you agree to such an order being imposed, so I need to tell you a little bit more about that. I should advise you that if you contravene or breach or break that order by committing further offences, you can be charged, and a sentence of imprisonment is one of the options that can be imposed for the breach. You can also be resentenced for the offences that are before me. One of the options available includes a term of imprisonment. For those reasons, you need to be extra careful for the next two years – no committing any further offences that might incur a gaol term – otherwise you are back before the court and you will be resentenced on these two charges that are before me. So you need to be careful.
113I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice – that is, a community corrections officer – a substantial fine can be imposed.
114Now, are you aware of all of that?
115OFFENDER MENHINNITT: Yes.
116HIS HONOUR: Do you understand that? Do you consent to the making of an order?
117OFFENDER MENHINNITT: Yes.
118HIS HONOUR: In that case, Ms Menhinnitt, I sentence you as follows. On Charge 1, Robbery, you are convicted and sentenced to six months' gaol; on Charge 2, Common Assault, you are convicted and sentenced to six months' gaol to run wholly concurrently with the sentence in Charge 1. On Charge 1, you are further sentenced to a Community Correction Order of two years' duration with the conditions I have just now outlined.
119I declare that the time you have spent in pre-sentence detention – namely, four days – be reckoned as time served.
120Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these offences, I would have sentenced you to three years' gaol with a non-parole period of 18 months.
121Any ancillary orders?
122MS ALLAN: No, Your Honour.
123MS CLARK: No, Your Honour. If Your Honour pleases.
124MS ALLAN: As Your Honour pleases.
125HIS HONOUR: Good luck. Sorry, do you want me to wait? I will wait while Ms Menhinnitt is removed. Sorry, there is one offence that I have not dealt with, and that is the summary offence.
126MS ALLAN: Commit an indictable offence.
127MS CLARK: The bail offence.
128HIS HONOUR: That is right.
129MS ALLAN: Sorry, Your Honour.
130HIS HONOUR: So convict and discharge in relation to that.
131MS ALLAN: Thank you, Your Honour. As Your Honour pleases.
132HIS HONOUR: Ms Menhinnitt can be removed.
‑ ‑ ‑
Annexed Cases
DPP v Cadby[14]
[14][2023] VCC 240.
133Concerned 1 charge of robbery and a summary charge of committing an indictable offence whilst on bail. The offending involved a demand for property, followed by a physical altercation between the offender and complainant in a residential property. the offending was deemed to involve some degree of planning and was committed whilst the offender was under the influence of narcotics. The victim suffered a fractured cheek bone requiring surgery, and the victim impact statement demonstrated the offending had a considerable psychological impact. This offender had an “extremely difficult” childhood, and substance abuse issues beginning in childhood which underpinned much of the prior offending. The Offender also had several medical diagnoses, including ADHD and PTSD. Both Verdins and Bugmy were enlivened. The court founded there was some indication of remorse and guarded prospects of rehabilitation despite a genuine motivation to overcome his drug habit. The sentence imposed was a combination of 13 months imprisonment and an 18 month CCO.
DPP v Henriquez[15]
[15][2020] VCC 711.
134Concerned one charge of robbery and one summary charge of committing an indictable offence whilst on bail. The offending was committed whilst in the company of the offender’s romantic partner, both of whom accosted a member of the public. The pair dragged the victim to a nearby bench and removed his backpack, taking his belongings. The offender experienced considerable childhood abuse which enlivened the full weight of the Bugmy principles. He also had longstanding polysubstance abuse problems beginning at the age of 13, being 36 at the time of sentencing. He lacked formal diagnoses, but there was evidence to suggest an acquired brain injury. By the time of sentencing the offender had demonstrated considerable progress in his rehabilitation and had an effective support network. The sentence imposed was 342 days imprisonment and a 12-month CCO.
DPP v Hanson[16]
[16][2017] VCC 742.
135concerned five counts of robbery, one count of recklessly causing serious injury and one count of recklessly causing injury, as well as the summary offence of possessing a controlled weapon without excuse. The offender was part of a group of young adults who on three occasions approached members of the public, demanded they hand over their belongings before inflicting injuries on them and fleeing with their belongings. At the time of offending Hanson had just turned 18 years old and had no prior criminal offending. Some of the victims sustained nerve damage, facial scarring and mental health problems as a result of the attack. The offender had experienced polysubstance abuse issues, and was impaired at the time of offending. He had learning difficulties at school and was deemed to have low intellect. The court found that Hanson had demonstrated positive prospects of rehabilitation through an ability to engage meaningfully in programs whilst on remand and abstaining from taking narcotics. The total sentence was 12 months detention in a Youth Justice Centre and a $200 fine.
DPP v Munkayilar & Hassen[17]
[17][2022] VCC 204.
136concerned two offenders, each charged with one charge of robbery, Munkayilar charged with theft and Hassen also with being a prohibited person possessing a handgun without a licence. Munkayilar convinced the victim to drive them back to the victim’s hotel room, following which Hassen came into the room and demanded the victim hand over his valuables. Munkayilar then took the victim’s bank card and withdrew $1,500, before both offenders left with all the victims belongings. There was no application of force to the victim beyond grabbing his collar. Both offenders had unenviable childhoods, and both had substance abuse issues which motivated their offending. Mr Hassen had limited relevant prior offending, and Munkayilar had been diagnosed with depression from a young age. Both were sentenced to a period of imprisonment and an 18-month CCO.
DPP v Austin[18]
[18][2020] VCC 614.
137Concerned one charge of robbery, one charge of intentionally causing injury and one charge of obtaining property by deception. The offender followed a member of the public at a distance, before grabbing her around the neck and dragging her to a park bench. The offender took the victim’s belongings before proceeding to stomp, kick and punch the victim. Having taken her bank card, the offender made several small purchases. The victim received superficial injuries because of the offending. The offender had a childhood which enlivened full mitigatory weight of Bugmy, and had begun consuming narcotics from a young age. He had an extensive and relevant criminal history, and presented with sufficient symptoms of intellectual disability, complex developmental trauma and stimulant use disorder to reduce his moral culpability in keeping with Verdins. The court was satisfied that the offender had demonstrated sufficient remorse for and insight into his offending and had made inroads into his rehabilitation. I note that this is a sentence of the Koori Court, and thus the sentencing process was guided by slightly different principles. The sentence imposed was 16 months' imprisonment, an 18-month CCO and a fine of $500.
DPP v Robinson[19]
[19][2022] VCC 2127.
138concerned one charge of robbery and one summary offence of sexual exposure in a public place. The offender met the victim after exchanging messages on a dating app, following which he convinced the victim to drive him to Broadmeadows. During the drive, the offender attacked the victim, and took the victim's mobile phone, wallet and sunglasses. Robinson had drug and alcohol abuse issues stemming from adolescence which motivated the offending and resulted in houselessness. There was an extensive relevant criminal history. The offender was preliminarily diagnosed with PTSD and had low intellectual functioning. Verdins was deemed not to apply due to no demonstrated causal link between the mental impairments and the offending. There was remorse, and substantial delay not attributable to the offender, who had made considerable progress in his rehabilitation during that time. On this basis the court deemed deterrence and community protection less relevant to the sentencing exercise. The sentence imposed was a two-year Community Correction Order.
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