Director of Public Prosecutions v Rose
[2020] VCC 165
•28 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00456
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LINDA MAREE ROSE |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July, 26 August and 25 November 2019 and 24 February 2020 | |
DATE OF SENTENCE: | 28 February 2020 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Rose | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 165 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Khan | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr C. Pearson | James Dowsley & Associates |
HER HONOUR:
1 Linda Maree Rose you are to be sentenced in respect of one charge of armed robbery and one charge of intentionally damaging property contrary to s75A and 197(1) of the Crimes Act 1958. You pleaded guilty when arraigned before me on Indictment No J13097073 on 12 July 2019.
2 The maximum applicable penalties are:
· Armed robbery – 25 years’ imprisonment; and
· Criminal damage – 10 years’ imprisonment.
Circumstances of Offending
3 Your stepfather, John Leck, had been living in a flat previously occupied by you and owned by the victim in this matter, Joseph Yammouni. It was a term of the rental agreement that Mr Leck would be responsible for paying for electricity and that Mr Leck and Mr Yammouni would share responsibility for the water bills. The flat was situated behind Mr Yammouni’s pawn broking store named “Cash Deal” in Rosebud.
4 Prior to the incident, you had accused Mr Yammouni of overcharging Mr Leck for electricity and water bills. Mr Leck apologised to Mr Yammouni for your unjustified behaviour.
5 Your stepfather passed away in November 2018 and you assisted in cleaning his flat out after his death.
6 At 1.08 pm on 27 November 2018, you telephoned your friend, Frank Kanakaris, and asked him to pick you up from your residence in Sandringham. You told him you would pay him $50 and directed him to bring a hammer with him. Within minutes, you telephoned the Rosebud Police Station and spoke to Constable Natalie Wiggins. You told Constable Wiggins that you were going to see Jo at Cash Deal about your father’s belongings. You said that you were upset about the amount that Jo had charged your stepfather for utilities. You also said that you were going to collect some of your father’s belongings from Cash Deal as you had been informed that they had been stolen from your stepfather and pawned at the shop. Constable Wiggins attempted to calm you down and urged you to come to the police station to report the crime rather than take matters into your own hands. Constable Wiggins offered to help you. You then told Constable Wiggins that someone was coming to pick you up and that you would be there soon.
7 When Kanakaris arrived at Sandringham to collect you, he asked you where to drive you. You told him that you were going to go and smash up Cash Deal in Rosebud because your stepfather who had been renting a place at the back of the store had passed away about a week ago. You said that you were angry that Cash Deal had been charging your stepfather the full cost of the water bill, the full cost of the electricity bill on top of rent. Mr Kanakaris agreed to drive you to Cash Deal. On the way, you drank approximately seven cans of VB beer.
8 At approximately 3.30pm, as you neared Cash Deal, you telephoned Rosebud Police Station again, and on this occasion spoke with Constable Myfanwye Mills. Mr Kanakaris heard your end of the conversation. You told Constable Mills that you had previously spoken with a female police officer that day and that you were going to go to Cash Converters [sic] with a knife because, “He killed my dad”. Constable Mills asked how she could help you and she encouraged you to come to the police station, but you refused to do so.
9 A short time later, you and Mr Kanakaris arrived at Cash Deal and parked nearby. You directed Mr Kanakaris to wait in the car and you got out of the car, taking a hammer and a knife with you. You said to Mr Kanakaris, “I’m going to smash Cash Deal up”.
10
You then proceeded into Cash Deal where Mr Yammouni was working at the shop counter with his assistant, Callum Swift. As you entered the store,
Mr Yammouni greeted you. You responded aggressively, saying, “Don’t you fucking say hello to me”. As you walked towards Mr Yammouni, you smashed a jewellery cabinet with the hammer. That is the subject of Charge 2, criminal damage.
11
You then rushed at Mr Yammouni, brandishing the knife. Mr Yammouni was able to deflect the blow. He grabbed your forearms and started pushing you away from the counter. All the while, you were screaming at Mr Yammouni, saying it was his fault that your stepfather had died. You accused
Mr Yammouni of stealing your stepfather’s clothes. You also screamed at him, threatening to kill him. Mr Yammouni replied, “What the fuck are you going on about?” and yelled at you to go away. You then started swinging the hammer at Mr Yammouni, which he was again able to deflect. Again,
Mr Yammouni ordered you to leave the store.
12 You turned around and headed for the door. As you passed the jewellery cabinet, that you had earlier smashed, you reached in and grabbed two rings. That is the subject of Charge 1, armed robbery. Mr Yammouni tried to grab your arms as you reached for the jewellery and a brief scuffle ensued.
13
At this point, your son-in-law entered the store and broke up the scuffle. He told you to leave and he told Mr Yammouni to let you take what you wanted because you had a knife. You then left the store and returned to
Mr Kanakaris’s car. Mr Yammouni called Triple Zero to report the incident to police.
Arrest and interview
14 Upon leaving the store, you directed Mr Kanakaris to take you to the Rosebud Police Station where officers had just received notification of your offending via police communications. Upon your arrival at the police station, you were arrested and spoken to by police. After being cautioned, you stated “I told you I was going to go down there and fix them up”. Police searched you and found the two stolen rings. The hammer and knife that you wielded during the incident were located in the footwell of Mr Kanakaris’s car.
15 When Constable Wiggins learned of your arrest, she spoke to you briefly. She introduced herself as the person with whom you had spoken on the phone earlier that day. She asked why you had not just come into the police station, as per your discussion. You apologised for not doing what had been agreed, but explained that you thought it was the only way to get your stepfather’s things back. I hasten to add that the two rings you stole did not belong to your stepfather.
16
Police observed that you were affected severely by alcohol at the time of your arrest. You were lodged in custody while police conducted further enquiries. At 5.19pm, you were taken to hospital after you head-butted the cell door and then fell over. Upon your release from hospital later that night, you were returned to the Rosebud Police Station and formally interviewed. You made no comment to the allegations. You spent 22 days on remand from the date of your arrest on 27 November 2018 until your release on bail on
18 December 2018.
Gravity of your offending
17 The crime of armed robbery is a particularly serious one. Its inherent gravity is marked by the maximum applicable penalty. Although your crime was not motivated by a desire to enrich yourself, it was motivated by feelings of revenge and hostility towards the victim. You took the law into your own hands to correct what you perceived to be an injustice perpetrated against your stepfather. You persisted in your plan, even after being counselled by members of the police not to do what you had threatened to do. You had hours to think about your conduct and, despite this time for reflection, you determined to go ahead with your plan for revenge.
18 Ordinarily in cases such as these, general deterrence and protection of the community are very significant sentencing factors. As to the gravity of the criminal damage charge, I regard it as particularly serious, taking into account the level of planning involved and also the fact that you committed the crime in a shop in which people were present.
Impact of your offending on the victim
19
CCTV footage of the incident was tendered as Exhibit C. It reveals a terrifying and violent incident. In his victim impact statement sworn 12 July 2019,
Mr Yammouni stated:
“After the attack, at first I was having nightmares and jumping at anything that wasn’t normal to my routine. I was and at times now going through my head what I could have done to prevent the attack. Seeing the cabinet get smashed, then having Linda come straight for me with the knife and hammer fearing for my life. After seeing a counsellor and speaking to her about the scenario I realised this was a calculated attack by a very disturbed person. She had plenty of opportunity to smash other cabinets on her way to the counter where I was standing but only smashed the jewellery cabinet so she can steal some jewellery. The only reason she didn’t take more was because I started to stand up to her. I still have to keep checking my surrounding anywhere I go. I don’t feel comfortable with people like I used to. My staff member left because I believe he didn’t feel safe. Due to this attack I gave up my soccer coaching. I don’t feel comfortable coaching the kids in the state of fear I am in.” [1]
[1]Exhibit F
20 Mr Yammouni also stated that as a result of the incident, he suffered from a bruised arm and described his mental state as “short fused, snappy, no patience, always yelling at family members, staying home more”. He noted that he had lost income due to the closure of the store while it was being repaired.
Plea in mitigation
21 Your counsel, Mr Pearson, identified a number of factors which he submitted combine to justify releasing you on a Community Correction Order. I now turn to those matters.
Guilty plea
22 You determined to plead guilty to the charges following negotiations between your legal advisers and the prosecution. On 6 March 2019, you announced your intention to plead guilty and the matter was then listed for plea hearing before me on 12 July 2019. As mentioned earlier, you pleaded guilty when arraigned.
23 A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount. I consider that your guilty plea must be given considerable weight for the following reasons:
(i)you indicated your intention to plead guilty at a very early time;
(ii)you are entitled to a statutory discount because of your plea;
(iii)you have avoided the cost of a trial and spared witnesses the inconvenience and ordeal of giving evidence at trial;
(iv)there is social utility involved in your plea; and
(v)there is an element of remorse evident in your plea.
Factors personal to you
24 At the time of offending, you were aged 49 years. You are about to turn 51. There are many details about your background that are unclear. It is not possible to be accurate about your history because, as has become evident during the course of the hearings, you have been a most unreliable historian. When Mr Pearson first outlined your personal circumstances, he stated that you were in poor mental and physical health because you had suffered many traumas, such as having part of your brain removed, suffering from cancer, suffering from multiple strokes, being the victim of multiple rapes, and being the victim of police misconduct. The reason why there have been so many hearings in this matter was because I offered you the opportunity to present evidence to support the allegations made by your counsel. As it turns out, most of what was put to me by way of your personal background is false. I shall return to this a little later.
25 As to the detail of your background, it does not appear to be in dispute that you grew up in the Heidelberg area. Your parents separated when you were a baby, although it is possible they reconciled on a number of occasions. Your mother subsequently partnered with Mr John Leck, whom you described as your stepfather. You took the death of your mother hard. You have four children, all of whom are now adults. It is a little difficult to trace your history, although it appears you have led somewhat of a chaotic life. You have previously worked in the sex industry and it would appear that over the years you have relied heavily on alcohol. In 2010, you were the victim of a serious assault when a person you knew slashed you across the face with a machete. Exhibit 4 comprised of a number of photographs pertaining to this nasty attack upon you.
Prior criminal history
26 You have admitted to a number of prior convictions. These date back to 1986.
27 Your first court appearance was in the Heidelberg Magistrates’ Court on 24 October 1986, where you were charged with theft from a shop. You received a 12 month Good Behaviour Bond on that occasion. Your next court appearance was not until years later when you appeared in the Frankston Magistrates’ Court on 15 December 2004 on a charge of unlawful assault. On that occasion, without conviction, the matter was adjourned for 12 months.
28 Your next appearance was in Frankston Magistrates’ Court on 25 June 2010, where you faced charges of assault police, being drunk in a public place, discharging a missile to cause injury or danger, resist police, assault by kicking, using insulting words in a public place, unlawful assault, possess prohibited weapon and possess a controlled weapon without excuse. It would appear this court appearance was very soon after the knife attack upon you. On each of these charges, without conviction, the case was adjourned for 12 months on condition that you continue with treatment with medical professionals as and when required.
29 On 18 July 2011, you appeared in the Frankston Magistrates’ Court on a charge of possess a controlled weapon without excuse. On that occasion, you were convicted and fined $600. On 7 February 2012, you appeared in the Frankston Magistrates’ Court on two charges of theft from a shop. You were convicted and released on a Community Correction Order for 6 months. On 25 October that year, you were brought before the Dromana Magistrates’ Court on a charge of contravening the terms of your Community Correction Order. The original order was varied by extending the operational period to 12 months. On 13 December 2012, you again appeared in the Dromana Magistrates’ Court this time on a charge of assault police and a charge of being drunk in a public place. You were convicted and fined on that occasion.
30 I accept that your over‑indulgence of alcohol and a loss of personal control over your actions has resulted in the misconduct the subject of your prior offending.
False assertions made about your history
31 In a document that you prepared entitled “Brief History” tendered as Exhibit 7, you stated:
“Linda’s health is both physically and mentally affected at this current time, she has battled with cancer for over a decade (breast, skin & thyroid cancer). In recent times she has suffered a heart attack. Her mental health is at an all-time low as she feels scared and now fears the police and men in general.”
32 Apart from the injuries you sustained when you were attacked by a person with a machete, most of the claims you have made about your poor health are inaccurate. You have repeated these false allegations on a number of occasions in court proceedings and to those providing reports to the Court. For example, in the Court Integrated Services Program (“CISP”) report dated 6 March 2019, Exhibit 9,[2] the author reported:
“Ms Rose disclosed having thyroid cancer, skin cancer, and three strokes in the past. She also reported having a mild heart attack approximately three weeks prior to assessment. Ms Rose indicated she has three cysts in her lower spine and is due for a review to determine if they are cancerous.… Ms Rose disclosed historical family violence resulting in multiple head injuries. She also reported a significant head injury in 2012 sustained during an assault. She reported injuries to the right side of her face and head in this assault, requiring reconstructive surgery and 12 months of recovery. Ms Rose added that part of the right frontal lobe of her brain was removed due to significant damage after this assault, and a plate was inserted. She also indicated having three strokes in the past.”[3]
[2]Exhibit 9
[3]CISP Report, exhibit 9, p4 and 5
33 Upon reviewing the medical evidence tendered on your behalf,[4] it became apparent that, apart from the physical injuries sustained in the assault upon you when you were slashed by the machete, you do not suffer from any of the other conditions you claimed as burdening you such as cancer, cysts, strokes, heart attack, and removal of part of your brain.
[4]Medical documents of Frankston Hospital, exhibit 3; clinical notes of Dr Duff, exhibit 5; bundle of medical reports, exhibit 11; bundle of records relating to the psychiatric or mental health of the offender, exhibit 12; and index to exhibits 11 and 12, exhibit 13
34 I am not satisfied that you suffer from any physical conditions that would make a term of imprisonment any more onerous for you. So much now appears to be common ground.
Verdins factors[5]
[5][2007] VSCA 102
35 On 12 July 2019, the first day of the plea hearing, a report prepared by Carla Lechner, clinical psychologist, was tendered as Exhibit 2. In that report, Ms Lechner noted your personal history as including your assertions about suffering from serious health issues, including “cancer – three spots on my spine and one spot on my breast, three strokes and a minor heart attack”.[6] You also alleged to Ms Lechner that you were raped by a school teacher who then told the other students that he had done this. You also stated that you had acted as a police informer about drug dealers and stated that a particular detective asked you for sexual favours in return for helping your daughter.
[6]Exhibit 2, p3
36 Ms Lechner reported that you exhibited a range of behaviours and symptoms consistent with a diagnosis of borderline personality disorder, including:
(i)a pattern of unstable and intense interpersonal relationships;
(ii)identity disturbance;
(iii)impulsivity in areas that are potentially self-damaging;
(iv)recurrent suicidal behaviour or self-mutilating behaviour;
(v)affective instability;
(vi)chronic feelings of emptiness;
(vii)inappropriate, intense anger or anger management problems;
(viii)frantic efforts to avoid real or imagined abandonment; and
(ix)transient, stress-related paranoid ideation or severe dissociative symptoms.[7]
[7]Exhibit 2, p3 and 4
37 Ms Lechner opined that persons with a diagnosis of borderline personality disorder generally have a history of Complex Developmental Trauma arising from multiple traumatic experiences in their formative years. As for your drug and alcohol history, Ms Lechner reported that you stated that you were not currently taking prescribed medication although you had previously been on the anti-depressant, Zoloft. You said that you “took an overdose and gassed yourself and died”.[8] You also told Ms Lechner that alcohol was not a problem for you, although you were drinking a lot. Ms Lechner observed that it appeared that drinking has been more problematic than you would like to admit.[9]
[8]Exhibit 2, p4
[9]Exhibit 2, p4
38 When describing the events the subject of the Indictment, you seemed to blame the victim for your conduct. Ms Lechner reports:
“… The offences occurred in the context of a complicated relationship between her, her stepfather (now deceased) and the victim. She reports that her step-father was renting a room from the victim. She stated that her step-father was being charged what she believed was an exorbitant amount. She stated that the victim also ‘wanted sex (from her) in exchange for accommodation’ for the couple of months that she stayed there. She stated ‘My stepfather had a heart attack and he (the victim) wouldn’t let me visit … when John died, I was heartbroken and he was being robbed, I got angry’. She stated that John died on 8/11/18 and the incident occurred on 27/11/18 – ‘a week before this happened, we had a gathering for John, then I opened his paperwork and saw that he was charged $300-400 per month for electricity and I texted Joe [the victim] and asked why and he didn’t respond’. She further stated, ‘I smashed a jewellery cabinet and grabbed two pieces and handed myself in’. She admitted that she had consumed a lot of alcohol prior to the incident and that she basically wanted to make a point.”[10]
[10]Exhibit 2, p5
39 I note that this account is different to what you told police on the day of the incident. That day you conveyed that you were going to get back Mr Leck’s possessions that had been pawned in the shop.
40 Ms Lechner considered that you impressed as cognitively capable of reflecting upon the impact that your behaviour has on both yourself and on others, but that you are easily overwhelmed by social and emotional factors that, together with your alcohol abuse, undermine your judgment and decision making. You told Ms Lechner that you regretted your actions, admitting that you had not fully thought through the potential consequences.
41 Ms Lechner opined that you presented with symptoms of a major depressive disorder.
42 In view of the apparent inaccuracies in your report of various medical conditions that you claimed to have, I noted my concern about the effect this might have on the validity of the opinions expressed by Ms Lechner in her report. The matter was adjourned to enable you to gather further evidence.
Resumption of plea hearing
43 The further plea hearing of this matter continued on 26 August 2019. On that occasion, Ms Lechner was called to give viva voce evidence on your behalf. Ms Lechner had prepared an additional report dated 16 August 2019, tendered as Exhibit 10. Although Ms Lechner had not assessed you for the purposes of her addendum report, she adhered to her original diagnosis. She stated:
“Ms Rose’s claims to have serious physical ailments could be due to a number of factors, including: i) a belief that despite medical evidence to the contrary she is very unwell because she feels very unwell (for example, she may have misinterpreted a panic attack as a heart attack and preferred to regard it as a physical issue); ii) a desire to draw attention to herself in the belief that her psychological distress is not being recognised or being adequately treated (this is not necessarily at a conscious level); iii) a tendency to exaggerate her physical illnesses in order to draw attention to herself or to garner support and sympathy. Again, this is not necessarily a deliberate act but rather represents a way of relating to others in a manner that has perhaps helped her to gain the support that she has needed in the past.
In other words, Ms Rose’s apparently exaggerated medical history is not inconsistent with her psychological disturbance. Furthermore it is not unusual for persons experiencing a high level of psychological distress to present with somatic complaints as it is easier to address physical rather than psychological pain.”
In her sworn testimony, Ms Lechner confirmed her diagnosis that you are suffering from a borderline personality disorder.
44 When cross-examined, Ms Lechner conceded that it was difficult to say whether your false statements about your health were totally fabricated.[11] She mentioned that there is a disorder known as “factitious disorder” where a person fabricates physical symptoms of medical conditions from which they do not suffer.[12] Ms Lechner was asked to distinguish between factitious disorder and malingering. She explained that factitious disorder has less of a conscious aspect to it, whereas malingering is outright lying.[13] Ms Lechner agreed that she had not had a further interview with you before preparing her addendum report and she conceded that she had not done any testing to check whether you suffered from either a factitious disorder or from malingering.[14] Even so, Ms Lechner thought that your exaggeration of your physical health problems was not inconsistent with the diagnosis she had previously given of a borderline personality disorder.
[11]Transcript (“T”) 28
[12]T28
[13]T29
[14]T29
45 Ms Lechner was of the opinion that your time in custody would be more onerous for you because of your borderline personality disorder and your major depressive illness.[15] Ms Lechner agreed that her report did not suggest any link between any of your conditions and your offending.[16] In any event, your counsel does not suggest that there is any causal nexus between your physical or mental state and the offending.
[15]T34
[16]T35
46 Ms Lechner agreed that lying is not a symptom of a borderline personality disorder, nor is exaggeration. She stated:
“It’s not listed as a symptom, but it’s a pattern – it can be part of a pattern of relating to people, where there’s exaggeration.”[17]
[17]T35
47 When re-examined by your counsel, Mr Pearson, Ms Lechner was asked:
“Q.In terms of assessing whether Ms Rose suffers from a factitious disorder, whether she’s just plain malingering, or whether she suffers from a borderline personality disorder, would a further consultation with her assist you in terms of determining that final issue?---
A.I don’t know that it would.”[18]
[18]T36
48 Ms Lechner stated that she was not sure that there was any specific testing that could be done, however she stated neuropsychologists could test for malingering. She agreed that she had no experience of conducting any tests for malingering. She did not know whether there are any formal tests to make a diagnosis of factitious disorder.[19]
[19]T37
49 Finally, Ms Lechner agreed that she would be prepared to undertake further testing to explore any further diagnoses of your mental health condition.
50 The matter was then adjourned to 25 November 2019.
Further plea hearing
51 The plea hearing resumed on 25 November 2019.
52 An additional report prepared by Ms Lechner dated 30 October 2019 was tendered as Exhibit 14. Also a report of Dr Linda Borg, clinical neuropsychologist, dated 22 October 2019 was tendered as Exhibit 15.
53 In her final report, Ms Lechner stated that you had moved in to live with your daughter, who provided considerable support for you. You told Ms Lechner that you had “virtually ceased drinking alcohol”,[20] and that you had been largely abstinent for one month. You told Ms Lechner that you were still under medical attention and that you had presented to hospital with chest pain (thought to be an anxiety attack) and that “other medical tests [were] being undertaken (unspecified).”[21] Ms Lechner administered the Paulhus Deception Scale, a self-report instrument that measures the tendency to give socially desirable responses. Your pattern of responding was considered to be consistent with persons who tend to be generally well socialised, but when they do have problems, they lack the insight to deal with them and appear rigid. Ms Lechner stated, “Of note her response pattern was not indicative of a person who is ‘faking bad’.”[22]
[20]Exhibit 14, p2
[21]Exhibit 14, p2
[22]Exhibit 14, p2
54 You were required to complete an MMPI-2, a self-report questionnaire. Your responses indicated “that there was a strong possibility that [you] may have been exaggerating [your] problems by positively endorsing a large number of symptoms. This may have rendered the profile invalid.”[23]
[23]Exhibit 14, p2-3
55 Ms Lechner went on:
“Given that Ms Rose has already demonstrated a propensity to exaggerate her difficulties, this was not an unexpected finding. Her profile was interpreted with some caution bearing in mind this level of exaggeration. The most striking feature of the profile in terms of clinical significance was the marked elevation on scales 4 (psychopathic deviate) and 6 (paranoia) and, in contrast, the low score on scale 5 (masculinity-femininity). This pattern of responding is most commonly known as the ‘Scarlett O’Hara V’ pattern and signifies a self-centred, emotionally dependent, emotionally labile person who is rigid in her thinking pattern. It is typically indicative of persons with a background of childhood sexual abuse and those who are diagnosed with a personality disorder, most likely Borderline Personality Disorder or Narcissistic Personality Disorder. They may have passive-aggressive traits.
Ms Rose’s profile indicates high levels of depression, anxiety and concern for her physical health and a range of somatic complaints. She reports some persecutory ideas, paranoia and a sense of disconnection from both herself and the broader community.”[24]
[24]Exhibit 14, p3
56 Ms Lechner stated that she did not believe that you were malingering. She considered that an immediate term of imprisonment is likely to be additionally onerous for you in light of your personality structure and high level of psychological distress. She thought you are unlikely to cope well with interpersonal conflicts, the politics of the jail environment and managing your mood in the absence of the family support that you now receive. Ms Lechner considered you would benefit from engagement with psychological counselling, preferably with a clinician who has experience in working with clients with borderline personality disorders who respond best to a dialectical behaviour therapy approach to intervention.[25]
[25]Exhibit 14, p4
57 In her sworn evidence before me on 25 November, Ms Lechner stated that it was difficult for her to tell when you told deliberate lies or when you had subconsciously told an untruth as a result of convincing yourself that something that is not true is true. She agreed that you have the cognitive ability to understand and differentiate truth and falsehood.[26] Ms Lechner also acknowledged that in the period of the adjournment and since her previous assessment of you, you had taken no steps to obtain treatment for depression. Nor had you engaged with any health care professional to follow the treatment recommendation that Ms Lechner had previously made.
[26]T29
58 A report prepared by Dr Linda Borg, senior clinical neuropsychologist, dated 22 October 2019, was tendered as Exhibit 15. Dr Borg conducted a comprehensive neuropsychological assessment. Dr Borg found:
“Findings: In the context of premorbid intellectual capabilities likely within the Low Average to Average range, with greater dominance in perceptual functions, Ms Rose demonstrates preserved literacy and intellectual function. Hence, her profile is not indicative of an intellectual disability, nor a formal learning disability. Attention capabilities at both a basic and higher-level are broadly preserved – although a mild degree of cognitive slowing is apparent. Incongruent with her attentional function, Ms Rose’s memory and learning capabilities are unreliable. Specifically, her capacity to acquire and learn verbal information is impaired, with forgetting of material that is presented without structure or repetition. These performances indicate bilateral inefficiencies in the memory system – more prominent in the verbal domain. In terms of executive functioning, whilst reasoning bilaterally is within functional limits, severe rigidity in thought does impede Ms Rose’s ability to effectively apply such reasoning. This is congruent with a dissociation between knowing and doing, as well as observations of strong egocentric tendencies at a conversational level. Planning and problem solving are generally effective in instances where Ms Rose has a structure to guide her approach. Without same, she is highly disorganised, struggles to establish an effective starting point and often blatantly disregards task rules – resulting in frequent errors. Despite this, Ms Rose is not overtly impulsive. Insight is impeded by dissociation between knowing and doing, meaning that she struggles to apply awareness in order to adapt behaviour.
Opinion: With regard to diagnosis, it is considered that Ms Rose’s cognitive profile is multi-factorial in nature. Firstly, the presence of bilateral deficits in memory and new learning is likely indicative of brain changes associated with chronic alcohol abuse – with some of these deficits likely compounded presently by elevated levels of anxiety, depression and stress. Given that Ms Rose has only been abstinent from alcohol for a brief period, the potential for further improvement in the coming months means that making a determination regarding the permanence of these changes is considered pre-emptive at this time. Despite this, cognitive inefficiencies associated with long-term alcohol abuse are considered a contributing factor to her memory dysfunction at the present time and the possibility of a mild alcohol related brain injury cannot be discounted.
Overall, the relative impact of alcohol related brain changes to Ms Rose’s clinical presentation is considered mild - with the predominant contributor considered to be a diagnosis of Borderline Personality Disorder. Hence, in accordance with the findings of Ms Lechner, I concur that Ms Rose ‘exhibits a range of behaviours and symptoms consistent with a diagnosis of Borderline Personality Disorder’.”[27]
[27]Exhibit 15, p8-9
59 Dr Borg considered that your presentation and cognitive profile is not suggestive of deliberate feigning or malingering (despite the presence of external gain). She thought there to be little evidence to support a diagnosis of factitious disorder.[28] She opined:
“Finally, while the disparity between Ms Rose’s account of events and the objective evidence regarding same is very clear, both her cognitive and psychiatric profile are considered to account for same. Specifically, Ms Rose demonstrates inefficient memory capabilities bilaterally, which indicate that dysfunction within the temporal regions of the brain as a result of prolonged alcohol abuse does inhibit her capacity to reliably recall events. Furthermore, in line with a diagnosis of borderline personality disorder, Ms Rose demonstrates a pattern of consistent over-emphasis of negative information in her autobiographical history. Clinical research supports the findings that individuals with borderline personality disorder habitually attend to negative information, have disproportionate access to negative memories, and make negatively biased interpretation and evaluations of otherwise unambiguous information.
When taken together, it is considered that Ms Rose’s deficient memory capabilities from chronic alcohol abuse often lead her to ‘fill in the gaps’ in her recollection (a form of confabulation). This is further compounded by an unstable underlying personality structure that results in frequent distortion of information and tendencies to make negative assumptions (i.e. ‘think the worst’) and over-state or exaggerate often benign events. Inflexibility and egocentric thought processes also contribute to her clinical presentation, increasing the propensity for rumination on such themes (irrespective of whether or not they are based in reality).[29]
[28]Exhibit 15, p9
[29]Exhibit 15, p10
60 In her sworn evidence before me, Dr Borg agreed that sometimes the statements you make are more than exaggerations. They are simply without substance. She agreed that you have made those statements knowing that what you are saying is untrue.[30] Dr Borg stated that you have a tendency not only to exaggerate, but also to be deceitful at times. She stated:
“There’s a difference between exaggeration and lying and deception so she does exhibit both features though. But there was no evidence to indicate that in this instance that that was a deliberate production in order to feign bad or for a psychological need to assume the sick role. So there is a distinction there but that’s not to say, I acknowledge as I have in the report, that there is a documented history of exaggeration and at times deceit.”[31]
[30]T8-9
[31]T9
61
Dr Borg agreed that it was an outright lie when you told the police that
Mr Yammouni had killed your father.[32]
[32]T9-10
62 As I stated, Dr Borg agreed that some of your assertions were not exaggerations; rather, they were outright lies. For example, some of your assertions about your medical conditions proved to be utterly false since there were no medical records confirming your claimed ailments when Dr Borg made independent checks to verify the information you had provided. Dr Borg agreed that in some cases your assertions may have been founded on a grain of truth, but that you exaggerated upon them and blew them out of proportion.[33] There was no substance whatsoever to your assertion that you had suffered from strokes.[34] Similarly, there was no substance to your assertion that you had had brain surgery. As Dr Borg stated: “I don’t have anything to indicate that that has some element of truth to it.”[35] Nor was there any independent evidence to support your assertions of being sexually abused by the policeman to whom you claimed to be giving information.[36]
[33]T10
[34]T11
[35]T12
[36]T12
63 Asked whether gaol would be more onerous for you in terms of your psychological issues, Dr Borg stated:
“As a result of her psychiatric issues in terms of the borderline personality disorder there is a potential that there may be some psychological or psychiatric decompensation from - you know, I would say from a purely cognitive perspective. I don’t see that there would be any, … particularly onerous results from being incarcerated in terms of her cognitive function but the potential for psychological decompensation is there in my opinion.”[37]
Asked whether this was a real possibility or just a remote possibility, Dr Borg responded: “It is a possibility and [you] would need ongoing monitoring from a mental health standpoint in my opinion.”[38]
[37]T13
[38]T13
64 Dr Borg observed that you would have access to mental health services and access to psychiatric input if incarcerated.[39] She recommended that if ordered to serve a term of imprisonment, a risk assessment should be conducted as well as the provision of ongoing regular psychiatric monitoring to ensure your safety.[40]
[39]T13
[40]T14
65 Asked whether there is anything that can be done to improve your condition, Dr Borg stated:
“From a psychiatric standpoint there is a well established basis for dialectical behavioural therapy and schema based forms of therapy for treatment of borderline personality disorder. I would recommend a period of intensive treatment with a specialist service – for example, such as Spectrum along that line who provide services to individuals with borderline personality disorders and there is good treatment efficacy for those programs. So that would be the treatment that I would recommend.”[41]
[41]T14
66 Dr Borg testified that if imprisoned, your major depressive disorder could be treated with psychological and psychiatric support. She considered the psychiatric support would probably be more from a medication standpoint, which you would be able to maintain with an established diagnosis. She conceded the feasibility of the sort of counselling intervention you require may be somewhat restricted in that context. She also stated that you would have access to drug and alcohol intervention in the prison setting.[42]
[42]T17
67 I am satisfied, on the balance of probabilities, that you do most likely suffer from a borderline personality disorder and that you have a major depressive illness. None of these conditions contributed to your offending, nor does your counsel seek to make any such connection. I am satisfied that some of your exaggerations are explicable by your borderline personality, however, your deliberate lies cannot be dismissed as a symptom of such a condition. I accept, however, that because of your personality disorder there is a potential for psychological or psychiatric decompensation if you are imprisoned. I accept Dr Borg’s evidence that jail would not be particularly onerous for you in terms of your cognitive function.
Remorse
68 Although you have stated to Ms Lechner and to others that you are remorseful,[43] you nevertheless continue to blame the victim for your actions.[44] Your victim-blaming undermines somewhat the significance of remorse as a sentencing factor in your case.
[43]See, for example, exhibit 8, letter addressed to the Court dated 11 July 2019
[44]See, for example, exhibit 2, p5, wherein the offender stated that the victim “wanted sex from her in exchange for accommodation, that she was heartbroken that her stepfather was being robbed by the victim and that this made her angry”. See also extended pre-sentence assessment outcome report dated 24 December 2019 where the author states “It is acknowledged that Ms Rose has displayed remorse and states she fully accepts that her actions were wrong. However, when discussing the offending, it appears that Ms Rose still blames the victims for her actions as well as attributing her behaviour to excessive alcohol consumption” – p6 of report
Sentencing submissions
69 Your counsel submitted that taking into account your background, your personal circumstances, your history of depressive illness together with your borderline personality disorder, your early plea of guilty and your remorse, I should release you on a Community Correction Order.
70 The learned prosecutor agreed that it would be open to release you on such an order, but only if combined with a term of imprisonment. You have already spent 22 days by way of pre-sentence detention. The prosecution conceded it would be open to count this period of pre-sentence detention as the imprisonment component of such a combined disposition.
71 As you know, I ordered that an extended pre-sentence assessment be conducted to assess your suitability for a Community Correction Order. The further hearing of the plea was adjourned until 24 February 2020 to enable the assessment to be completed.
Further plea hearing 24 February 2020
72 On 24 February 2020, counsel made further submissions in light of the opinions expressed in the pre-sentence report. The assessment finds that you are a suitable candidate for a Community Correction Order. The author assesses you as being of a medium risk of general reoffending. The author stated:
“Ms Rose has a known criminal history dating back to 1986 with prior involvement with Community Correctional Services (CCS) with a community based disposition imposed in 2012 which was initially contravened but successfully completed in 2013.
During assessment, Ms Rose presented as co-operative but became upset at times. She expressed concern that people thought she was a liar however she insisted that some things were a misunderstanding. Ms Rose said that the CISP report mentioned that she had said ‘part of her brain was removed’ however she insisted ‘I never said that’ and reported that she had been referring to her accident as a child when a dummy had embedded into her head.”[45]
[45]Pre-sentence report, conclusion and recommendation, p7-8
73 Should a Community Correction Order be imposed, the author recommended the following conditions:
(i)supervision under s48E of the Sentencing Act;
(ii)unpaid community work under s48C;
(iii)alcohol assessment and treatment under s48D(3)(b);
(iv)mental health treatment under s48D(3)(e); and
(v)area exclusion under s48H, specifically prohibiting you from entering or being within close proximity of the Cash Deal premises where the offending occurred.
Prospects of rehabilitation
74 If you participate in the treatment that has been recommended for you, your prospects of rehabilitation will be much improved. You have shown little indication that you are motivated to obtain such treatment on your own. I agree with counsel that a structured form of order that will compel you to participate in treatment will assist you. Your rehabilitation is not only for your benefit but also for the community’s benefit. As mentioned, you do pose a medium risk of re-offending.
Sentences to be imposed
75 I take into account all of the matters personal to you to which I have referred, including your prospects of rehabilitation. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. Notwithstanding your Borderline Personality Disorder and depressive illness, you are still an appropriate vehicle for general deterrence, although I have modified the weight to be placed on this factor, taking into account your circumstances. I am also required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
76 Taking account of all factors relevant to my task in sentencing you today, and with some reservation, I propose to give you one further opportunity to avoid immediate imprisonment. As I mentioned before, not only will your rehabilitation be a positive outcome for you, but it will benefit the community more generally.
77 I propose to release you on a Community Correction Order for a period of two years. In making this order, I take account of the fact that you have already spent 22 days by way of pre-sentence detention. In the period since your release on bail, it appears that you have stayed out of further trouble. I am satisfied that your limited experience in custody provides sufficient incentive for you to grasp the opportunity that I am now giving you. I can only make a community correction order if you consent to my taking such a course.
78
So that you are in a position to make an informed decision about whether you will give your consent, I will tell you something about the course I propose. The length of the Order will be two years. The Order will commence today,
28 February 2020.
79 Every Community Correction Order, including the one I propose in this case, contains seven mandatory conditions. They are:
1. You must not commit, whether inside or outside Victoria during the period of the Order, an offence punishable by imprisonment;
2. You must comply with any obligation or requirement prescribed by the Regulations.
3. You must report to and receive visits from the Secretary during the period of the Order.
4. You must report to the Community Corrections Centre specified in the Order, in this case the Frankston Justice Service Centre, 431 Nepean Hwy, Frankston, within two clear working days after the Order coming into force, namely within two days of today.
5. You must notify the Secretary of any change of address or employment within two clear working days after the change.
6. You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary; and
7. You must comply with any direction given by the Secretary which is necessary for the Secretary to give to ensure that you comply with the Order. Any such directions may be given to you either orally or in writing.
80 I am also required by law to attach at least one condition in accordance with s47 of the Sentencing Act. In attaching these conditions I bear in mind:
(a) the principle of proportionality; and
(b)the purposes for which a sentence may be imposed, as set out in s5 of the Act; and
(c)the purpose of a Community Correction Order set out in s36 of the Act, which is to provide a community-based sentence for a wide range of offending behaviours, while having regard to and addressing your circumstances.
81 These are the proposed additional conditions.
1. The Court requires you to perform 500 hours of unpaid community work during the next 12 months. The purpose of attaching this work condition is to adequately punish you in the community;
2. The Court requires you to undergo treatment and rehabilitation, which I shall soon specify and as is directed by the Secretary, unless otherwise directed by the Court. In attaching this treatment and rehabilitation condition, I have paid regard to:
(a) the need to address the underlying causes of your offending; and
(b) the recommendations, information and matters identified in the Pre-Sentence Report concerning your treatment and rehabilitation. Under s48CA of the Sentencing Act 1991, I determine that 100 hours satisfactorily completed for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
The treatment and rehabilitation specified by the Court is as follows:
i. Assessment and treatment, including testing for alcohol abuse or dependency;
ii. mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility; and
iii. any program that addresses factors related to your offending behaviour.
3.You will be required to be under the supervision of, and be monitored and managed as directed by the Secretary, for the period that the Order is in force. I propose attaching this supervision condition for the purpose of ensuring your compliance with the Order.
4.I also propose to attach a condition directing that you must not enter or remain within 100 metres of the Cash Deal shop at 1355 Point Nepean Road, Rosebud. This condition will apply for the period that the Order is in force. I have taken into account your ongoing feelings of hostility towards Mr Yammouni when imposing this condition.
82 My proposal, then, is to record a conviction and make a Community Correction Order containing all the conditions that I have just mentioned.
83 You must understand that if you breach any of the conditions of this order, you may be charged with the offence of contravening a Community Correction Order. That offence carries a maximum penalty of 3 months’ imprisonment. There may be other consequences. If you are found guilty of the breach, in addition to the penalty imposed for that offence, the Court might vary or cancel the Order, or resentence you in respect of the offences before me today. That might mean you will be sent to prison as a result. Do you understand?
84 PRISONER: Yes.
85 Do you consent to the Order in the terms that I have just outlined in the full knowledge of the consequences of breaching such an order?
86 PRISONER: Yes, your Honour.
87 Very well, the Order may be prepared in the terms I have indicated.
Section 6AAA statement
88 I am required to state the sentences and non-parole period, if any, that would have been imposed in respect of the offences but for your plea of guilty. Therefore, pursuant to s6AAA and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that, but for your guilty plea, the sentences I would have imposed are as follows.
89 On Charge 1, armed robbery, you would have been convicted and sentenced to 18 months’ imprisonment.
90 On Charge 2, criminal damage, you would have been convicted and sentenced to six months’ imprisonment.
91 I would have allowed for total concurrency of the sentences, taking into account the overlap of offending.
92 I would have directed that you serve a minimum of 12 months’ imprisonment before becoming eligible for parole.
93 I direct, pursuant to s6AAA(4), that the sentences that would have been imposed but for the plea of guilty, be noted in the Court’s records. I am about to turn to the ancillary orders but you will need to sign the Community Correction Order. You may step out of the dock and sit behind your counsel.
94 PRISONER: Thank you.
95 HER HONOUR: Would counsel please check the terms of the Community Correction Order? I will just repeat the conditions. So the additional conditions are 500 hours of unpaid community work during the next 12 months, treatment and rehabilitation, assessment and treatment including testing for alcohol abuse or dependency, mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, any program that addresses factors related to offending behaviour.
96 Supervision and monitoring by the Secretary for the period the order is in force, condition directing that the prisoner must not enter or remain within 100 metres of the Cash Deal shop at 1355 Point Nepean Road, Rosebud for the period that the order is in force and I have directed 100 hours of satisfactorily completed treatment and rehabilitation are to be counted as hours of unpaid community work. All there?
97 MS KHAN: Yes, Your Honour, it is, Your Honour.
98 MR BARRATT: Yes, Your Honour.
99 HER HONOUR: Thank you. Can you please have Ms Rose sign the order? Ms Rose, that is your signature?
100 PRISONER: Yes, it is.
101 HER HONOUR: You consent to the making of the order knowing full well the consequences of breaching the order?
102 PRISONER: Absolutely.
103 HER HONOUR: Those consequences are you will likely be brought back before me. I have made very lengthy sentencing remarks in case I have to re-sentence you. You understand that?
104 PRISONER: I do.
105 HER HONOUR: It is not necessarily so that the same level of mercy will be given to you next time. Understood?
106 PRISONER: Understood, thank you.
107 HER HONOUR: I now turn to the ancillary orders. There is a disposal order. Is that right?
108 MS KHAN: Correct, there are three ancillary orders, Your Honour. There is a disposal order, there is a 464ZF and a compensation order.
109 HER HONOUR: A 464ZF order and a compensation order?
110 MS KHAN: Yes, I understand they are all by consent.
111 HER HONOUR: Dealing first with the 464ZF order, is the order by consent?
112 MR BARRATT: Yes, Your Honour.
113 HER HONOUR: Thank you. Pursuant to s.464ZF(2) of the Crimes Act I order that you, Linda Marie Rose, undergo a forensic procedure for the taking of a scaping from the mouth. A sample in accordance with Sub-Division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database.
114 I further order that pursuant to s.464ZF(2A) of the Crimes Act you, Linda Marie Rose, for the purpose of undergoing the said procedure report to the officer in charge at the Frankston Police Station at 15 Fletcher Road, Frankston, during the period of four weeks commencing 28 days after the day of sentence or once any instituted conviction appeal is finally determined and the conviction for the forensic sample offence is upheld, whichever is the later.
115 The charges to which this order relates are all charges on Indictment Number J13097073. Having considered the seriousness of the circumstances of the forensic sample offences listed above I am satisfied that in all the circumstances the making of the order is justified for the following reasons.
116 The seriousness of the circumstances of the offending warrant the order, (ii) the prior convictions of the respondent are such as to warrant the making of the order, (iii) the order is by consent and, (iv) the granting of the order is in the public interest.
117 Linda Marie Rose, I must warn you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand?
118 PRISONER: Yes, I do.
119 HER HONOUR: I now turn to the compensation order. That is by consent?
120 MR BARRATT: Yes, Your Honour.
121 HER HONOUR: Thank you. I order that Linda Marie Rose pay to Joseph Yammouni compensation in the sum of $880. I will sign the order in the draft minutes submitted for signature. I now turn to the disposal order. That is by consent?
122 MR BARRATT: Yes.
123 HER HONOUR: Again by consent I will make the disposal order in the form submitted for my signature. It orders disposal of the hammer, the knife, a packet of JPS Super King blue cigarettes and a blue Bic cigarette lighter.
124 MS KHAN: As Your Honour pleases.
125 MR BARRATT: As Your Honour pleases.
126 HER HONOUR: Is there anything else?
127 MR KHAN: Nothing further, Your Honour.
128 MR BARRATT: No, Your Honour.
129 HER HONOUR: Thank you. Sine die.
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