Director of Public Prosecutions v Russell

[2019] VCC 94

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01298

DIRECTOR OF PUBLIC PROSECUTIONS

V

GRACE RUSSELL

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2018
DATE OF SENTENCE:	6 February 2019
CASE MAY BE CITED AS:	DPP v Russell
MEDIUM NEUTRAL CITATION:	[2019] VCC 94

REASONS FOR SENTENCE

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Subject: Criminal law - sentence            

Catchwords:   plea of guilty to one charge of armed robbery – in company – soft target – minimal planning – motivated by drug use – youthful offender – limited criminal history – ADHD learning disorder leading to difficult adolescence – early poly-substance abuse -  complex history of emotional & behavioural disturbances – borderline personality disorder - reasonable prospects for rehabilitation – insight into offending - residential drug rehabilitation partly completed – long-term counselling established.

Sentence:   12 months Community Correction Order   

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Bruhn	OPP
For the Accused	Mr J Miller	Doogue & Associates

HER HONOUR:

1Grace Russell, you have pleaded guilty to one charge of armed robbery. 
On 28 March 2018 at about 7 pm, you and a co-accused went to a fish and chip shop in Kingsville where the proprietors, Mr Feng Chen and Ms Li Meng, and their 19-year-old son, Yuxi Chen, were working.  The co-accused, a young woman aged 17 or 18, had a jumper wrapped around her head and face.  You had no disguise but carried a bag in front of you with your hand in it.

2The two of you approached the counter where Yuxi Chen was working, and the co-accused produced a 30-centimetre kitchen knife, raising it above the counter.  You said, "Give me the money."  Mr Chen said he did not understand, and you replied, "I come for robbing."  Ms Li Meng went to the counter from the back room and saw the co-accused hit the counter with the knife handle.  Her son translated what you had said:  that it was a robbery.

3He gave you $50, but the co-accused waved the knife around and you said this was not enough, that you wanted the whole box, and you were given another $50.  Ms Li Meng grabbed a plastic chair from the back room, and followed by her husband, she chased you and the co-accused out of the shop.

4They chased you briefly down the street, and at the same time, a customer drove after you, and having located you, he called the police.  You were arrested shortly afterwards in a nearby street.  The knife was found in some bushes in the same street.  When interviewed by the police immediately after your arrest, you gave "no comment" answers until later in the interview, when you admitted to having committed the armed robbery.

5The victims have not provided victim impact statements, but clearly their experience would have been very frightening and Ms Li Meng said as much in her statement.  As store keepers, they were and are vulnerable to crimes such as armed robbery, and for that reason, they are known as "soft targets."  They are entitled to feel protected from people intent on robbing and harming them, which is why a severe penalty of a long prison term is available as punishment and deterrence, however, it will always depend on the circumstances of the case.

6The co-accused was dealt with in the Children's Court, where she was placed on probation for 12 months.  Because of that difference, the question of parity does not arise directly except insofar as she was given a community-based disposition, despite having been the offender who carried the knife. 

7Turning to your personal background, you were aged 20 at the time of the offence and you are now 21.  You live with your parents and younger sister and you are on good terms with all your family who are a great support to you. 
I have had the advantage of reading a considerable amount of material dating from your early childhood, documenting difficulties from those years which developed into quite complex problems during your adolescence and continuing today.

8You were born at about 28 weeks' gestation and experienced a considerable range of neonatal, medical, and developmental difficulties.  You met most developmental milestones, but once at primary school, learning difficulties in several areas began to emerge in combination with Attention Deficit Hyperactivity Disorder or "ADHD."  These were not neglected, indeed, it would seem that your parents and teachers all paid careful attention to your deficits and needs in both a cognitive and a psychological sense with positive points, such as your general resilience and good social skills, being noted in test results and reports.

9At secondary school, these problems led unfortunately to diminished self-esteem and self-confidence.  As a result, you left school early, starting but not finishing Year 11.  At age 14, you began using alcohol and cannabis in a social setting, escalating to daily use within a year, when you decided that these substances helped you to regulate negative emotions.

10That has continued until recently, and at the time you committed the armed robbery, you were under the influence of alcohol, Xanax and possibly another benzodiazepine.  Unfortunately, it seems that it has taken this offending to act as a “wake-up call’ for you to realise how serious your behaviour was.

11You pleaded guilty at an early stage at a committal case conference, without a committal hearing, and that has meant there has been no delay with the case being heard very quickly.  The delay since the plea hearing has been brought about by the intervening opportunity for residential drug treatment, commencing in September.

12The plea has considerable utilitarian value in having saved the expense and inconvenience of a trial, but most importantly, it has spared the witnesses from having to give evidence at all.  It is also an indication of your remorse and that you have accepted responsibility for your wrongdoing.  You have also expressed your remorse to others, and I take those matters into account and place considerable weight upon them.

13That brings me to refer to the report of Ms Carla Ferrari, a consultant psychologist who saw you in July for the purposes of providing a report for the plea hearing.  In her very detailed report, Ms Ferrari concluded that your offending stemmed indirectly from your underlying anxiety and emotional instability and your difficulties in regulating and expressing this in an appropriate manner.

14She noted that you have a tendency to act out aggressively or engage in impulsive actions which temporarily alleviate your distress, and the condition of ADHD, which is untreated, exacerbates this.  Ms Ferrari noted your earlier diagnosis of borderline personality disorder, which she said adds to the risk of impulsivity. 

15A combination of events led you to offend the way you did, ultimately due to a deterioration in your mental state and your reliance upon drugs and alcohol to help you to cope.

16Ms Ferrari considered that a strong support system is very important for you, as are also protective factors such as extricating yourself from antisocial peer group influences.  Going to prison would not assist that process but could expose you to negative patterns of behaviour.  According to Ms Ferrari, that exposure would make your experience of prison more burdensome than for others less vulnerable, and I take into account both those matters.

17Ms Ferrari recommended that you engage with a therapist with specialised expertise in something called dialectical behaviour therapy, which is specifically designed - and here I am quoting from Ms Ferrari's report:

"…to address issues stemming from personality vulnerabilities and to teach skills which help regulate the pervasive distress and turbulence associated with this."

18In addition to this, you also need intensive drug and alcohol support, particularly given that currently, at least at the time of the plea hearing, you did not see that as problematic and were not prepared then to cease completely.  It seems this is because attempts to stop in the past have caused a lot of distress for you. That is apparent from the letter written by Emma Burke at Origin Youth Health in early 2017.  In that letter, Ms Burke summarised the discussions she had had with you and it provides helpful information about your struggles.

19Returning to Ms Ferrari, she considered that you understand the need to take responsibility for your criminal actions, that you are genuinely remorseful and disappointed in yourself, and that you deeply regret your behaviour.  She said you understand the serious consequences of it and how traumatising the ordeal would have been for the victims.

20You explained to her how you had felt rejected and abandoned at the time of the breakup of your relationship just before the offending, and you had gone on a “bender” using drugs and alcohol in the company of the friend who committed the offences with you.  The idea of stealing money from a shop for your friend to buy drugs arose in that context and presented as a way for you to avoid further rejection or abandonment.

21Your appreciation of the seriousness of that behaviour, together with your remorse, suggests a positive indication for rehabilitation.  You have very strong support from your family who are prepared to help ensure that you engage in treatment.  You are intelligent and you have no criminogenic or antisocial attitudes that would heighten the risk of recidivism.

22Your sentencing was delayed in order for you to attend a three-month drug rehabilitation program in September last year, as I mentioned earlier,
at Westside Lodge Rehabilitation Centre at Sunshine Hospital in accordance with Ms Ferrari's recommendation.  You had already been engaged with drug and alcohol counselling since March 2018, attending fortnightly and doing well.

23A recent report dated 4 February 2019 informs me that you spent three weeks at Westside Lodge in what is called the "dual diagnosis rehab centre", but you were too mentally unwell to withstand the environment there.  Later, you completed a further three weeks at the Women's Day Rehab Program, and it is reported that you made good progress and that you will continue to attend long-term counselling, with reviews by an addiction specialist, Dr Theedar Limor. 

24It is also reported that you are now working in your family's business, something which you had tried before but were then unable to sustain.

25As I stated earlier, your early plea is important and you are entitled to a discount on your sentence because of it.  You also deserve some leniency because you are young, you have a limited criminal history, and your mental health problems have played a considerable role in leading you towards serious criminal behaviour.

26The maximum penalty for armed robbery is 25 years' imprisonment, which indicates how serious it is.  Fortunately, this instance of the crime was over quickly and no-one was physically harmed.  It was unplanned, you did not use any disguise, and it was unsophisticated in its execution.

27For young offenders, the importance of rehabilitation means that a sentence other than imprisonment should be given very careful consideration, and in your case, a Community Correction Order is the preferable disposition. 
The prosecution approach to sentencing in this case was that it is open to me to impose such an order in the circumstances. 

28You have been assessed as suitable for a Community Correction Order and the details of that order will be as follows.  I will ask you to stand now, please, Ms Russell, while I explain that to you.

29The order starts today and will last for 12 months.  You will be under supervision and you must take part in any further drug treatment or monitoring that is considered necessary, as well as treatment for mental health and programs to reduce the risk of reoffending.  You must also take part in judicial monitoring, meaning that you must come to court from time to time to discuss your progress with me.  I will receive a report about your progress, which will also be given to you.  There will be no lawyers here, only your case manager, but you can bring a family member or friend if you wish to.

30You will not be required to do any community work because the main purpose of the order is therapeutic, which is the best means of facilitating your rehabilitation.

31I should also add there that the punitive aspect of the Community Correction Order is that you have to give up your time to attend supervision and any other programs, and if you were to breach the Community Correction Order in any way, you would have to return to court to be re-sentenced.

32The prosecution seeks orders for the disposal of the knife and forfeiture of a sum of money, and I understand those orders are not opposed.  I make those orders. 

33There is also an application for an order for a forensic sample of saliva under s.464ZF of the Crimes Act.

34MR MILLER:  That is not opposed, Your Honour.

35HER HONOUR:  Not opposed.

36MR MILLER:  I earlier said that it was automatic, but I was wrong when I said that.  It is the retention section that now has automatic operation, but the application for taking the sample is not opposed.

37HER HONOUR:  Thank you.  So I will just explain that, Ms Russell.  You will be asked to provide a sample of saliva and the police do have the power to use reasonable force to obtain that sample if necessary, but I trust that will not be the case.   I make that order.

38The first appointment for judicial monitoring will be in a couple of months' time, and so I will just ascertain with you, through your counsel, perhaps, the best day of the week.  The week beginning 18 March, Mr Miller?

39MR MILLER:  May I take some instructions from ‑ ‑ ‑ 

40HER HONOUR:  Yes, certainly.  It will be at 9.30 on one of those mornings. 

41MR MILLER:  Any date that week is fine, Your Honour.

42HER HONOUR:  All right.  In that case, I will make it Wednesday 20 March at 9.30.  It will only take about ten minutes or so, Ms Russell, and so you will be in and out of here pretty quickly.  Now, the CCO will be printed out in a moment and you will be asked to sign that.  So just take a seat while that is prepared.  Do you want to have a look at that, Mr Miller, and accompany my associate to the dock?

43MR MILLER:  Thank you, Your Honour.  I'll do that.

44HER HONOUR:  Are there any other matters?

45MS BRUCE:  Nothing further, Your Honour.

46MR MILLER:  No, Your Honour. 

47HER HONOUR:  Thank you. 

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