Director of Public Prosecutions v Rouxelle

[2017] VCC 1414

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-02065

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARITA ROUXELLE

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	30 May 2017
CASE MAY BE CITED AS:	DPP v Rouxelle
MEDIUM NEUTRAL CITATION:	[2017] VCC 1414

EX TEMPORE REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For the Accused	Ms R. Waters

Pages 1 - 10

 

 

HIS HONOUR: 

1Marita Rouxelle, you have pleaded guilty to once charge of armed robbery and two charges of handling stolen goods, which carry with them maximum penalties of 25 years' imprisonment and 15 years' imprisonment respectively.  In addition, you have pleaded guilty to a summary charge of possess a prohibited weapon without approval, which carries with it a maximum penalty of two years' imprisonment. 

2The circumstances surrounding your offending are set out in the summary of prosecution opening, which became Exhibit 1 on the plea. 

3You are a New Zealand national and are now aged 24 years of age.  At the time of the offending, you were 23 and had no fixed place of address. 

4The circumstances of your offending are that in the early evening of Thursday 17 March 2016, your victim, Vishalmar Ramesh, was walking home from Rosslyn Park in Bendigo after attending a cultural festival at the Chinese Museum.  He was listening to music from his headphones that was being played on a Samsung S3 mobile phone.  You and an unknown male associate were standing of the corner of View Street and MacKenzie Street.  You were holding a sports bag and you had a red cigarette lighter in your hand.

5As your victim walked up View Street, he crossed MacKenzie Street and passed you and your male associate.  You yelled out to him and then ran in front of him.  He could not hear what you were saying as he had his earphones in.  He took them out and heard you asking to use his mobile phone.  He refused, stating that his phone was running out of battery.  You then produced a silver imitation firearm from behind your back and said, "give me your fucking phone cunt."  At this point, you were holding the imitation firearm in your right hand and had a cigarette in your left hand.

6Your victim grabbed your right hand and there was a struggle for the control of the imitation firearm but you resisted and you used your left hand to click the weapon before saying to him, "it's loaded, I could fucking shoot you now, don't mess me."  The victim then told you that he would give you the phone but asked if he could remove his SIM card first and you agreed but told him to hurry up.  He took his SIM card and SD memory chip out of the phone.  You took the phone, the battery and the phone case from him and ran off toward Forest Street. 

7Your victim, on 24 March, viewed a photo board and identified what appeared to be the closest photograph to you.  Subsequent forensic testing on cigarettes found at Forest Street matched your DNA.  It turns out that you were staying at the Oval Motel at Barnard Street in Bendigo between 15 and 16 March after this armed robbery, the armed robbery occurring some 500 m away from where you later were staying. 

8The following month on 10 April 2016, police were called to attend a dispute between yourself and your sister.  It was then discovered that you were wanted for questioning in relation to the armed robbery and you were placed under arrest.  You then made some admissions during the course of the interview which implicated you in the armed robbery. 

9Located on you at the time of your arrest was an iPad and an empty box from an imitation firearm and a Nokia mobile phone.  Enquiries confirmed that the iPad had previously been reported stolen to police on 2 April 2016 and the Nokia mobile phone had likewise been stolen, thus Charges 2 and 3 of handling stolen goods.  You were also found in possession of a black machete with a sheath which relates to summary Charge 5 of possession of a prohibited weapon.

10Offending such as this serious.  People are entitled to go about their ordinary business in public streets without being accosted by people such as you making demands of them and threatening them with firearms, imitation or otherwise.  As was properly conceded by Ms Waters during the course of a plea, the fact that it was an imitation firearm made no difference whatsoever to the victim.  Nonetheless, although every armed robbery is a serious offence, the fact that it was an imitation firearm at least leads to a conclusion, together with other factors, that this was a relatively low level armed robbery. 

11You come before the court as a 24 year old woman with a full scale IQ of only 64, placing you in a situation where 99 per cent of the population would perform better than you.  This low IQ is not as a result of an acquired injury but it is a congenital impairment. 

12In Mr Ball's most helpful psychological report, he sets out your family background which was a deprived one to say the least.  You are one of five siblings with three brothers and a sister.  Mr Ball notes that:

"She described a grossly dysfunctional family of origin characterised by substance abuse and domestic violence.  She said that her family members were ‘drug addicts’ and that her parents were abusive towards each other ‘physically, mentally and emotionally’. 

13You were apparently kicked out of home by your mother when you were nine months pregnant to your now two-year-old daughter.  Two weeks after having been kicked out by your mother, you were then kicked out of your sister's family home.  The end result is that at the time of this offending you, an illiterate and innumerate woman who was living a itinerate lifestyle with no supports and no money.  It is useful to move ahead to what Mr Ball considers should be the supports offered to you upon your release. 

14At p.5 of his report, Mr Ball observes:

"Ms Rouxelle is a woman who may have the capacity to rebuild her life.  However, this will require extensive, intensive and structured treatment immediate upon her release aimed at drug relapse prevention, mood management and therapy aimed at the borderline and dependent aspects of the psychological functioning.  The necessity for active and thorough treatment combined with supervision and support cannot be overstated.  Treatment may be provided under the auspices of a community corrections order or similar conditional release." 

15You are, however, an unlawful non-citizen and are subject to deportation upon your release from custody.  Thus, what you need cannot be provided in Australia, for you will be deported.  What you need cannot be the subject of any order I make to be effected in New Zealand for I do not have the jurisdiction. 

16In Mr Ball's report he further observes that you denied any current or prior symptoms of frank mental illness, hallucinations, delusions or other psychotic symptoms and he could find no evidence of psychotic symptoms in clinical interview.  He states, "She has a history of substance addiction and provides as socially isolated and living on the fringes of the community."  So it was and so you were living on the fringes of the community, without support and unable to live without being in a dependent relationship. 

17You have twice experienced incarceration because you absconded on bail and your period of incarceration has been a not insignificant period of some 262 days, or approximately eight and a half months.  I have no doubt that you, facing deportation and the uncertain, if not highly problematic, situation with your daughter, have worried about your prospects of reunification with her whilst you have been incarcerated and that you worry for the future generally. 

18You come before the court with no prior criminal history.  You have pleaded guilty at the earliest reasonable opportunity and I give you full benefit for those pleas of guilty, not only in terms of the utility of the pleas but as some further demonstration of your remorse and insight into your offending. 

19You said to Mr Ball, as to that offending, among other things:

"It was stupid.  Just stupidity.  I was just in a really mind space.  I felt everyone had turned on me.  I was really angry.  I didn't care about myself.  As a New Zealand citizen I couldn't get Centrelink benefits." 

20You expressed simplicity to remorse and victim empathy according to Mr Ball, saying, "He", i.e., the victim, "won't be able to trust anyone now because of my stupidity." 

21Finally, on this point, Mr Ball observes

"Although she does not feel tough or secure by herself, she looks to others to provide protection from a cruel and insensitive world in which people are interested only in personal gain." 

22Mr Ball diagnoses you as satisfying the DSM-V domestic criteria for severe stimulant, alcohol and cannabis use disorders in early remission in a controlled environment.  He is also satisfied that you fulfil the DSM diagnostic criteria for borderline personality disorder, considering your condition in that regard to be chronic and severe. 

23All of these matters demonstrate to me, in no uncertain terms, your dependent personality, your struggles with not having what others expect in life such as a supportive family, your difficulties arising from your congenital mental impairment with a full scale IQ of 64, as I have said, and being not only illiterate but also innumerate.  As so often is the case, as it is here, people with such chronic difficulties commit offences in circumstances where if they had half a chance, even a quarter of a chance, they would fare better. 

24I am satisfied that in all the circumstances, because of your mental disability that you are not as suitable a vehicle for deterring others.  I consider that your moral and legal culpability is reduced because of those significant factors. 

25In addition, Ms Waters has pointed to your young age, though you are not a young offender, you are a person who without prior convictions and have prospects of rehabilitation that are what I regard as reasonable in the circumstances. 

26Whilst I am satisfied that your two periods of incarceration have had a salutary experience upon you there is still nonetheless a need for the sentence that I impose to be one which deters you from further offending.  Albeit, as I have said, I consider that your prospects of rehabilitation are, in all the circumstances, reasonable. 

27On Charge 1 of robbery, I sentence you to be imprisoned for period of 14 months. 

28On Charge 2 of handling stolen goods, I sentence you to be imprisoned for a period of two months. 

29On Charge 3 of handling stolen goods, I sentence you to be imprisoned for a period of 14 days.

30On Summary Charge 5, I sentence you to be imprisoned for a period of seven days. 

31Charge 1 is the base sentence and I direct that one month of the two months on Charge 2 be served cumulatively upon the base sentence of 14 months.  The other charges are to be served concurrently, producing a total effective sentence of 15 months' imprisonment. 

32I declare that but for your pleas of guilty, I would have imposed a sentence of two years' imprisonment and set a minimum non-parole period of 18 months.  I declare that pre-sentence detention is 262 days.  Does that cover the matters?

33MR DEVLIN:  Sorry, Your Honour.  If I understand Your Honour, you have got a total effective sentence of 15 months.

34HIS HONOUR:  Correct.

35MR DEVLIN:  Your Honour ‑ ‑ ‑

36HIS HONOUR:  Fourteen months on Charge 1.

37MR DEVLIN:  Yes.

38HIS HONOUR:  Two months on Charge 2.

39MR DEVLIN:  Yes, one month concurrent.

40HIS HONOUR:  One month cumulative, that gives you the 15 months. 

41MR DEVLIN:  Your Honour did not set a non-parole period?  Was that your intention?

42HIS HONOUR:  Well, I can.  I have not as yet.  I will hear actual submissions upon that.  The setting of a non-parole period is regardless of whether or not there is any deportation.

43MS WATERS:  Yes.

44MR DEVLIN:  Yes, Your Honour.  The query is was it ‑ ‑ ‑

45HIS HONOUR:  I must say ‑ ‑ ‑

46MR DEVLIN:  ‑ ‑ ‑ did Your Honour intend not to set a non-parole period?

47HIS HONOUR:  Well, I must say, Ms Devlin, I had not turned my mind to hit and I will hear submissions on it. 

48MR DEVLIN:  Really, it is my learned friend's submission, I think.

49HIS HONOUR:  That is right, Mr Devlin.  Ms Waters, what do you say about a non-parole period?  If I did set one, it would have to be a minimum of six months, bringing it down to 15 months with a minimum of nine months.

50MS WATERS:  Yes, Your Honour.

51HIS HONOUR:  I do not have to set a minimum term - I cannot, under 12 months but I can between 12 months and two years.  What do you say about setting a minimum term?

52MS WATERS:  Your Honour, in relation to Ms Rouxelle's deportation, it is submitted - and I have just lost the case at this stage but that the court is not prohibited from imposing ‑ ‑ ‑

53HIS HONOUR:  I know that.  But indeed the deportation has got nothing to do with whether I decide to set a minimum term - I think I put that aside or am I wrong about that?

54MS WATERS:  Pardon me, Your Honour, if that last ‑ ‑ ‑

55HIS HONOUR:  Well, the fact that she is going to be deported, does that make any difference as to whether I decide to set a minimum term or not?  I think not.

56MS WATERS:  No, Your Honour.

57HIS HONOUR:  Yes.

58MS WATERS:  The only other matter that perhaps should be taken into consideration is that Ms Rouxelle will be, once paroled or her sentence is finished, she will be placed in immigration detention.  She will not necessarily be deported immediately ‑ ‑ ‑

59HIS HONOUR:  No.

60MS WATERS:  ‑ ‑ ‑ and there may be some time. 

61HIS HONOUR:  Well, I think the bottom line to it is when I consider, as I now, whether I should set a minimum term, I put aside the question of her being deported because well, I think that is the law.

62MS WATERS:  Yes, Your Honour.

63HIS HONOUR:  Does everyone agree with that?

64MR DEVLIN:  Yes, Your Honour.  I raise it out of clarity so that is all.

65HIS HONOUR:  Yes.

66MR DEVLIN:  There is not much point setting a non-parole period when one is being deported.

67HIS HONOUR:  Well, that is true but that does not - it may not be much difference but nonetheless, it is, I think, an irrelevancy in determining whether I should set a non-parole period. 

68MR DEVLIN:  That is right.

69MS WATERS:  Your Honour, I would accept that there is no point in setting a non-parole period when someone is being deported.

70HIS HONOUR:  No, I am not saying - what I am saying is it is an irrelevancy.  I set it without having regard to whether or not she is going to be deported.

71MS WATERS:  Yes, yes.

72HIS HONOUR:  It is a decision I make regardless.

73MS WATERS:  Yes, Your Honour.

74HIS HONOUR:  Well, in the circumstances, I intend to set a non-parole period of nine months.

75MS WATERS:  As Your Honour pleases.

76HIS HONOUR:  Whether that has any impact on the deportation or other is a matter for the relevant administrative authorities.  Yes, anything else?

77MR DEVLIN:  No, Your Honour.

78HIS HONOUR:  That gives a total effective sentence of 15 months with a minimum of nine months. 

79MR DEVLIN:  Yes, Your Honour.  Was Your Honour disposed to make the orders?

80HIS HONOUR:  Yes.

81MR DEVLIN:  They will be either will or they have been forwarded to Your Honour's associate.

82HIS HONOUR:  Yes, I have got them here.  I noticed that you have already got a DNA sample.  It is only the forfeiture that you want, is it not?

83MR DEVLIN:  Yes, it is automatic.  The short answer is yes, Your Honour.

84HIS HONOUR:  Yes, I have made those forfeiture orders.

85MR DEVLIN:  Thank you, Your Honour.

86HIS HONOUR:  Yes, you can remove Ms Rouxelle, please? 

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