Director of Public Prosecutions v Rose

[2019] VCC 1222

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-00287

DIRECTOR OF PUBLIC PROSECUTIONS

v

TANISHA ROSE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	4 April 2018, 25 July 2018, 29 November 2018
DATE OF SENTENCE:	8 August 2019
CASE MAY BE CITED AS:	DPP v Rose
MEDIUM NEUTRAL CITATION:	[2019] VCC 1222

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O’Doherty	Office of Public Prosecutions
For the Accused	Ms T. Theocharous with Mr Cameron	Kurnai Legal

HIS HONOUR:

1Tanisha Lillian Rose, you have pleaded guilty to one charge of attempted armed robbery and one charge of possess a drug of dependence on indictment ending 432.  For the charge of possess a drug of dependence I simply convict and discharge.  There is also one uplifted summary matter of possess a, well, poison, I suppose, is the word, and on that charge I simply convict and discharge as well.

2You are now 24 years of age.  You were 22 years of age at the time of the offending.  You pleaded guilty at an early opportunity and, indeed, you made admissions to police.  You have endeavoured to express remorse insofar as all this is concerned and you participated in Koori Court.  You must, of course, get the utilitarian benefit of that plea of guilty.  There has now been a significant delay since your co-accused was sentenced, and that delay was brought largely because of attempts to assist you in rehabilitating.  Those attempts have proved unsuccessful despite numerous adjournments and changes of bail conditions.  That does not aggravate the situation but it certainly gives me concerns insofar as rehabilitation is concerned in the future.

3A look at your prior criminal history indicates that there is one but by and large in the Children's Court and you have never actually been convicted.  You are not a newcomer to the court system, however, and neither was your co-accused.  In this situation your ages and relevant priors seem roughly consistent with each other, and I will come to the question of parity in a moment.

4The circumstances of the offending were that your co-accused, Mr Stevenson, had committed burglaries and stolen firearms.  On 29 August 2017 he was in Sale, driving a stolen car, in possession of stolen property.  According to the Crown opening, by chance he met up with you.  You clearly knew him.  He told you that he needed money and he was going to do an armed robbery.  The two of you then spent the rest of the day together, driving around Sale and spent some time with his mother and siblings in Sale.

5At some stage during the course of the afternoon you became aware of there being firearms in the vehicle and ammunition as well.  You, I think, at one stage in your record of interview, say that you knew that he had been stealing such objects.  At around about 5.30 pm on that afternoon you were at Gippsland Centre in Sale where purchases were made at Target and the Priceline pharmacy.  The two of you then drove around again, looking for a place to rob.  You drove to the shops on Guthridge Parade, intersection of MacArthur Street, and watched for a while.  Mr Stevenson then decided it was too busy and drove on.

6At approximately 6.45 the two of you drove to the shops on Dawson Street in Guthridge Parade.  The car was parked outside the general store and liquor store at that location.  Mr Stevenson placed a handgun in his jacket pocket and tied a red and white bandanna around his face.  He left the car running and the driver's door open as he walked into the store.  You remained in the car.  You clearly are complicit in what took place after this.  I accept that you probably did not believe that he would actually fire that gun but the fact of the matter he did and you have to accept an element of responsibility for that.  You were clearly aware that an armed robbery was going to take place and it was going to be taking place with what will be a loaded firearm.

7Mr Stevenson was the only customer in the store and Mr Roberts was the only staff member in the store.  Stevenson went into the store and demanded money.  Mr Roberts was behind a glass counter.  He said he would not hand over any money, that he would ring the police.  He then reached for the store phone and rang for the police.  Mr Stevenson then fired a shot from his handgun.  The round struck and shattered the glass counter in front of
Mr Roberts.  The impact point of the bullet was the glass counter and was only a foot away from where he was standing.  I understand, and it was not disputed on the last occasion, that the gun in effect had rat shot in it and was unlikely to kill anybody but it certainly could have caused a serious injury if it hit someone in the face.  He was not convicted of reckless endangerment in that sense but this is a serious example of an attempted armed robbery.

8He then ran from the store and into the car.  He drove away, south, down Guthridge Parade.  He told you that he had fired the handgun because the owner would not give him any money.  What followed was an extremely dangerous escapade of driving.  You are not charged with that and I accept that you, during the course of that driving, which I do not even really need to go into here, were telling Stevenson that you wanted out, to pull up and let you go.

9The matter first came on, as I recollect, in April of last year or thereabouts, when I sentenced Mr Stevenson.  When I sentenced him I referred to the victim impact statements that had been filed.  As I said to him, you have heard the victim impact statements read out.  They were read out once in court and then again in Koori Court.  As I said:

'The owner and victim was clearly not a young man and his victim impact statement points out very articulately the reasons why offending such as this is regarded as so serious.  He said that he and his wife had owned the business for about 19 years and were desperate to sell it due to their age.  They did not have the energy required to successfully run a seven days a week business.  They received offers to buy it but they were not sufficient.  The impact of what you did to them, and that is including -

10Or him.  I am including you in that even though these words were to
Mr Stevenson, as he said was:

'Quite similar to the straw that broke the camel's back'.

11It placed stress on their relationship and they had to take an offer that was well under what they viewed their business as being worth and they were finding it almost impossible to operate the business.  He pointed out that:

'Unfortunately we were forced to finish our working lives because of a crime which at our age was clearly frustrating and economically devastating.  My only current income is the age pension.  My wife has applied for a Newstart allowance'.

12That is a couple of years ago and I have no reason to think that their circumstances have improved.  The situation is that the offending has got to be regarded as serious.  Any conduct such as this with a loaded firearm when indeed it is then fired, takes it into another level as far as I am concerned.  It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.

13On that day, being 6 April of last year, I sentenced your co-accused,
Mr Stevenson, to a total sentence of five and a half years with a minimum term of three.  He was also charged with driving offences and a different burglary and theft and things like that.  On the actual charge of attempted armed robbery he was sentenced to be imprisoned for four years.  As I have indicated, your ages and criminal histories are quite similar.

14In your situation I think that whilst there has to be an element of parity, it is significantly moderated by the fact that the attempted armed robbery was clearly his idea, he was the driving force behind it, he in fact pulled the trigger, he was the one who was in possession of, and obtained the firearms and he was the one who had left the driver's door open so that he could drive in a get-away situation.  Your role in all this was clearly one of joint enterprise but all the acts and facts which gave rise to the actual crime itself were in fact carried out by him.

15That means that your sentence can be, I think, significantly lower than his but still must remain a sentence which reflects just the seriousness of what you did. It has to be a gaol sentence, of appropriate proportions.  I had been initially, in your situation, contemplating the imposition of a combination sentence, and we were hopeful that you would be able to, so some form of rehabilitation to give rise to a CCO, but that simply has not occurred and any form of combination sentence here I think is just simply out of range.

16Firstly, you did appear in Koori Court and you spoke to the elders about what your intentions were and they tried to grapple with you the ramifications of what you had done, and you assured them that you were going to try and rehabilitate.  I know from the time that the matter has come on subsequently that we have not sat again as a Koori Court and I know that the elders are disappointed in what has occurred over the last year and a half.  You have been given opportunities which are very rarely given to accused in your set of circumstances and you simply have not taken advantage of them.

17I then look to matters personal to you in determining the length of the sentence that has to be imposed, and I have had helpful submissions from your counsel as well as a report from Carla Lechner, a clinical psychologist.  You are currently now in custody and you have had one period of 43 days earlier on, after the original offending, which did not seem to have taught you too much, and another nine days to be added on to that since your bail was revoked quite recently.

18The report from Ms Lechner outlines a very disadvantaged background and, again, one becomes very used to having to do this with young Aboriginal people, to go through this history, which just seems so common.  Ms Lechner points out that you have only had one before this prior appearance in an adult court.  She said that you presented with a history characterised by exposure to drug use and violence in your formative years.  You were pregnant at the age of 15 years.  I understand you had a number of children and very recently had another, these all being in the hands of DHHS.  Your relationships with the father of a couple of the children have been violent and you have suffered depression most of your life.  You are clearly still suffering from it because you were on medication in gaol.  You have a significant loss of family members.  There has been a stillborn son.  Your father passed away a few years ago and just a couple of years ago your mother.

19You described how you had grown up with your mum and dad smoking dope and they tried to hide ice and speed use.  There was domestic violence.  Your dad bashed your mum but not you kids.  That situation changed when you lived with your father for a while and you reported, and I have no reason to doubt this, that he bashed you pretty badly.  You have told Ms Lechner that he suffered from a mental illness and was, 'Super paranoid and violent'.  He was angry a lot of the time'.

20You went to secondary college for a few years but dropped out on account of becoming pregnant.  Again, I do not think need to go through the involvement with DHS in all of these matters.  You have also described to Ms Lechner the death of close family members, and as is often the case, I think that you have almost certainly got sorry business that has just never been properly approached or properly dealt with.  Your father in fact died of asphyxiation, probably choking on his own vomit from drinking.  You had to arrange the funeral.  Your mother had only died just not long before Ms Lechner had seen you and it was you who at your tender years had to make the decision to switch off a life support machine that she was on.  You said you had only  just come out of gaol around the time of all this occurring.  You were shocked, obviously, by the loss of your mother and relapsed into drug use.  You went through, and again I do not need to do this in any detail, the nature of the relationships that you have been in.

21You were described by Ms Lechner of being of average intelligence and you do have the capacity to reflect on the impact your behaviour has on others and yourself.  She says you are too easily overwhelmed by social and emotional factors, that together with drug use, undermine judgment and decision making.  She takes the view, as you do, that there is just simply too many negative influences in Gippsland for you, and she says that you have high emotional dependency needs and get caught up in relationships that ultimately are not in your best interests.

22I think ultimately it is going to be up to you whether you are able to come out of all this and rehabilitate.  It is clearly going to be a difficult prospect for you to do that Gippsland and ultimately it will become a matter for the Parole Board.  As I indicated to your counsel, I am going to give you an earlier opportunity for parole than might otherwise be the case.  In terms of rehabilitation it is up to yourself.  What you have done over the last 18 months gives me no confidence at all that you are ultimately going to be able to get out of all this.  You have got a number of children who seem to suffer loss after loss.  You have got mood disturbance, long term drug addiction, and come from a very dysfunctional family.

23The matters referred to in the decision of Bugmy obviously play a significant part in this sentencing process.  It seems to me that whilst you do have a number of concerns and a major depressive disorder, and stimulant and convict use disorders, it seems to me that the matters in Verdins that are not really enacted here.  This was a calculated decision, decided over a period of a day.  I accept that during the course of that day you would have been drug affected and you probably in your own mind saw your co-accused as being responsible for all this, but you agreed, you aided and abetted.  I think this would have been the term used at that time, and unfortunately, so much time down the track, you are just going to have to pay the consequences of it.

24Accordingly, as I have indicated, the two other charges will be convict and discharge. On the charge of attempted armed robbery you are sentenced to be imprisoned for period of two years and three months and I direct that 14 months be served before you become eligible for parole and I direct that 52 days be reckoned as having been served under this sentence.  That is a significantly different sentence to what your co-accused got.  I have endeavoured, in the simplest terms as I can, to outline why I condition there be significant differences between the two of you.

25All right, are there any other orders?  I have 6AAA, three with a two.  Any other orders I have to make?

26MR VINGERHOETS:  I believe the disposal order has already been made.

27HIS HONOUR:  Sorry?  I think I made all those orders last time.  All the disposal orders were the co-accused's gun and things like that.  All right, so there was nothing else I needed to do?

28COUNSEL:  No, Your Honour.

29HIS HONOUR:  No, all right.  Yes, you can take Tanisha now, thank you.

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