Director of Public Prosecutions v Saddington
[2020] VCC 317
•24 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01870
CR-19-01869
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMBER SADDINGTON and BRIANNA KOOTSTRA-DENTON |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2020 | |
DATE OF SENTENCE: | 24 March 2020 | |
CASE MAY BE CITED AS: | DPP v Saddington & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 317 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Harrold | Solicitor for the Director of Public Prosecutions |
| For the Accused Saddington | Ms C. Gomez Vazquez | Victorian Legal Aid |
| For the Accused Kootstra-Denton | Mr C. Terry | Chris McLennan & Co |
HER HONOUR:
1 Amber Saddington and Brianna Kootstra-Denton you have each pleaded guilty to one charge of armed robbery. The maximum penalty applicable to that offence is 25 years' imprisonment.
2 This crime arises out of events which took place on 19 June 2019, involving the victim of your offending, Mohammad Ali Bakhsh (“Bakhsh”).
3 It is not necessary for me to recount in great detail the facts of this matter, as the matter was opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
4 Amber Saddington, you were at the time of this offending 23 and are 24 at sentence.
5 You, Brianna Kootstra-Denton, at the time of this offending were 20 years of age and also 20 at sentence. You lived at the same address as Saddington. You had both been in a relationship for approximately nine months at the time of your offending.
6 The victim of your offending, in the three weeks prior to it, had been selling shoes through a Facebook “Buy, Swap & Sell” group.
7 He had sold shoes to you, Saddington, on two previous occasions in the days leading up to this offence.
8 On 16 June 2019, he met you, Saddington, to sell you a pair of Nike Air shoes. On that day you were in the company of a male known to the victim as “Jay”.
9 On 18 June 2019, the victim again met with Saddington to sell you two pairs of shoes. During those discussions about the sale, the victim asked to see a naked photo of Kootstra-Denton, Saddington refused to show him one.
10 I turn to your offending. In the afternoon of 19 June 2019, Saddington asked the victim if she could purchase all the victim’s remaining stock of shoes. The victim agreed and arranged to deliver them that night. Saddington asked the victim to meet her at an address in Frankston and he arrived shortly before seven o’clock and parked on the street. He messaged Saddington, who told him that she was nearby and would be bringing two ‘female’ friends with her, Becky and Jay.
11 When you, Saddington, arrived, you directed the victim to park in a car park at nearby parkland and the victim refused as the area was not well lit.
12 You, Saddington, then asked the victim if he had brought all the shoes with him. He said, yes, and got out of his car.
13 Once out of the car, you, Kootstra-Denton with an unidentified male emerged from behind the bushes and approached the victim. The male was holding a knife approximately 20 centimetres long. He swore at the victim, he grabbed him and held the knife close to his neck.
14 Both you and Saddington opened the rear passenger doors of the car and placed the eight pairs of shoes that were on the back seat into two large bags (Charge 1, armed robbery – complicity basis).
15 The male told the victim to empty his pockets and asked for money and his phone. The victim said he had to go the ATM to get cash. The male also asked for the victim’s car key and the victim refused.
16 Both of you and the male then fled the scene. The victim drove approximately 100 metres away and called police.
17 You were both arrested on 20 June 2019 when police executed a search warrant at your home. The eight pairs of stolen shoes were located in the bedrooms and kitchen of the dwelling.
18 You were taken to the Frankston Police Station and interviewed.
19 Prior to the interview you, Saddington, told police, “I organised it. Dumb thing to do.”
20 You, Saddington, gave a predominantly “no comment” interview and it was, of course, your right to answer that way. You did, however, admit meeting the victim on 16 and 18 June to purchase shoes. When asked if you could give any insight why the offending occurred, you said the victim had asked for naked photos through Facebook Messenger.
21 You, Kootstra-Denton, made admissions to the offending and said both you and Saddington were involved in it, but you did not know the male who was with you. It was conceded by those representing both of you at the plea hearing, the male with the knife was known to both of you however you were then and remain too scared to name him. You said that you and Saddington walked to the scene of the offence from your home, about 45 minutes away, and met with the male third offender there.
22 You, Kootstra-Denton, said you did not know anything about the victim and had never met him before. You said you did not know the full extent of what was going to happen but you went along with the offending and did not ask questions. When you saw the knife, you did not freak out, rather just went with it.
23 Kootstra-Denton told police that after grabbing the shoes from the vehicle, you both ran home. When both you and Saddington met the victim your intention, you said, was to rob him because he had asked for a sexy picture from Saddington and had been ripping you off by selling fake shoes.
24 In relation to your offending, the prosecution submitted, and was accepted by you, that you were both liable for the armed robbery in that you intentionally assisted or encouraged the unidentified male in the commission of the offence.
25 I note neither of you have any prior criminal history nor anything subsequent or pending.
26 Turning to a chronology of this matter, you were released on bail following interview. There is no pre‑sentence detention to declare for either of you.
27 There was a filing hearing at the Magistrates’ Court on 21 June 2019. At a committal case conference on 13 September 2019, both of you pleaded guilty to the charge before me and your plea hearing was listed for 13 March 2020. There was no contested committal.
28 Turning to the relevant sentencing provisions, the offence of armed robbery is a Category 2 offence within the meaning of s3(1)(da)(iii) Sentencing Act 1991.
29 As a result, pursuant to s5(2H) Sentencing Act 1991, a custodial order must be imposed unless one of the criteria set out in s5(2H)(a)-(e) applies.
30 Both your counsel urged I should find substantial and compelling circumstances that were exceptional and rare, that justified not making an Order under Division 2 of Part 3.
31 I shall return to that later in these sentencing remarks.
32 A Victim Impact Statement was not filed. I note however in the victim’s statement to police (24 June 2019), he said that since that night he was nervous and scared, could not sleep and was nervous about going to work.
33 You have both pleaded guilty to armed robbery and you are both entitled to have that fact taken into account in your favour and I do so. The community has by your pleas of guilty been spared the time and cost of a trial and witnesses, including the victim, have been spared the need to give evidence upon your trial.
34 I accept your plea of guilty and that of Kootstra-Denton has utilitarian benefit and is indicative of remorse. I accept it shows a willingness by you both to facilitate the course of justice and acceptance of responsibility for your offending.
35 Further, I have taken into account in respect of both of you that you have intimated early your intention to plead guilty to these charges and without a contested committal.
36 I am prepared to accept in the circumstances that your pleas of guilty by both of you indicate remorse for your offending.
37 I turn to you, firstly, Ms Saddington. A written outline of submissions for your plea hearing was provided by your counsel, Ms Gomez Vazquez, and addressed during the course of your plea hearing.
38 Your counsel urged that your plea of guilty was entered at the earliest opportunity. I accept that is so.
39 Your counsel appropriately conceded the offence of armed robbery is an inherently serious offence. That is so. It often involves soft targets. In my opinion this victim fell into that category as I discussed during the plea hearing.
40 Your offending, you instructed, was motivated by an inappropriate request made to Saddington by the victim for sexual photographs and also due to dissatisfaction of having previously been sold fake sneakers by the victim.
41 It was conceded by your counsel that there was a degree of planning involved in this offending, that is so. The weapon, she urged, however, was not part of the plan rather produced by the male co‑offender. I accept that is the case referable to you and Kootstra-Denton.
42 It was submitted your culpability for this offence was less than that of the male offender. In that regard, however I note, once you were aware of the knife you nevertheless participated/continued in your offending.
43 It was submitted yours was a low level “in company” armed robbery offence. That it lacked sophistication with no effort made to disguise. I accept that description.
44 Further, that you, Ms Saddington were always going to be identified as the offender as you had previous contact with the victim. It was also urged the attack was not prolonged but they often are not.
45 Despite the lack of Victim Impact Statement, it was conceded by Ms Gomez Vazquez that the impact on the victim of the armed robbery would have been significant, consistent with his statement to police.
46 Turning to your personal circumstances, you were 23 years of age at the time of this offending and 24 at the time of sentence.
47 You were raised by your mother in Frankston. You were placed in your father’s care in Tasmania from 8 years of age, returning to Melbourne when you were 17 to again live with your mother. Thereafter you had periods of homelessness.
48 Regarding your relationship with Kootstra-Denton, you met in October 2018 and continued to live together.
49 Your counsel referred to a report from Martin Jackson, neuropsychologist, to which I shall shortly refer, which indicated you had a full scale IQ of 76 - in the borderline range. Mr Jackson opined your profile was indicative of a “longstanding specific learning disability with associated reading problems.” Your counsel was not relying upon the principles in R v Verdins & Ors[1] relevant to sentence and that was an appropriate concession on the material before me.
[1](2007) 169 A Crim R 581 (‘Verdins’).
50 You attended multiple primary schools in Frankston and Seaford before you moved to Tasmania. You then attended high school in Tasmania completing Year 11. Thereafter completing a Certificate III in Tourism and Hospitality and a Certificate II in Construction.
51 When you were 17 you worked for approximately one month at a pizza shop in Mornington. You currently receive the Newstart allowance.
52 You began cannabis use at age 12 and when 17 were introduced to a drug dealer and became a user of ice, GHB, speed, acid and MDMA until you were about 21 or 22 years of age. You instructed you had been abstinent from illicit drug use since the start of 2018.
53 At 19 years you were diagnosed with rheumatoid arthritis.
54 A major depression diagnosis was confirmed by your general practitioner, Dr Andrew Taylor, upon your return to Melbourne from Tasmania when you were seventeen.
55 Your counsel noted, as do I, no prior convictions and no subsequent offending.
56 Your counsel urged your intention to plead guilty was indicated at an early stage and that you made admissions to police upon arrest. I am aware of all of that.
57 Your counsel referred to nine months having passed since this offending with no offending in that time.
58 Your counsel referred to your disadvantaged background. Referable to disadvantaged background most recently is the decision of DPP v L’Eveille[2] the Court noting, whether such was relevant in mitigation of sentence was in essence a matter of degree. There must be detailed evidence to establish the disadvantage and its application in a particular case (L’Eveille paragraphs 26, 28, and 30). I accept your background reduces to a degree the weight to be given to general deterrence in your case. Also applicable to a degree to Kootstra-Denton.
[2][2018] VSCA 60 (‘L’Eveille’).
59 Parity was urged in relation to your offending and that of Kootstra-Denton. In my opinion that is an appropriate submission given the circumstances of this offending taking into account matters personal to you and Kootstra-Denton.
60 Your counsel also submitted you had expressed remorse and insight to Mr Jackson, urging you had very good prospects of rehabilitation. I would describe them as good if you addressing drug/alcohol use and mental health issues.
61 Your counsel urged you were still a youthful offender, 24 at sentence, and that rehabilitation was an important sentencing consideration. I agree noting also your lack of criminal history.
62 In court to support you at your plea hearing was your mother, father, stepfather and older sister. You now saw both your parents, and I understood were living a few streets away from your father.
63 I was told that you and Kootstra-Denton had recently moved from the home you were sharing at the time of this offending as a result of feeling unsafe there. You now lived together at another address and the relationship between the two of you was now going well.
64 Regarding your offending being a Category 2 offence (s5(2H)(e)), there were, Ms Gomez Vazquez urged, substantial compelling reasons to not impose an immediate term of imprisonment in your case, relying upon the isolated nature of this offending; that is, the absence of prior convictions or anything subsequent; the nature and gravity of the offending, your age and associated rehabilitation. You were not the weapon holder and that a weapon was not part of the initial plan. You had not previously been incarcerated. Also your background.
65 Turning to sentence, you counsel urged that I need not impose a custodial sentence. That there were substantial and compelling reasons why I should not impose an immediate term of imprisonment.
66 Ms Gomez Vazquez urged a Community Correction Order was the appropriate disposition to address appropriate punishment and rehabilitation referring to Bolton v The Queen.[3]
[3][2019] VSCA 21.
67 I turn to the report of Mr Jackson, neuropsychologist, dated 17 January 2020. He provided further detail about your background and history which I will not repeat but have read.
68 Regarding your offending behaviour, you reported to Mr Jackson the victim had inappropriately requested nude photographs of both you and your partner. You decided to get him back, planned the whole episode “and set the victim up”. You said you did not know the male was going to use a knife. You said you were not going to 'lag' that male. He had not been charged.
69 Regarding current treatment, you were seeing your GP, Dr Andrew Taylor on an “as needed” basis at Frankston Health Care practice. You were prescribed medication, for your rheumatoid arthritis. Whilst you were, however, supposed to see a specialist for that, you have not attended for an appointment in the past 3 years.
70 A number of tests were conducted by Mr Jackson, who, as I said, concluded you had a full scale IQ of 76, in the borderline range.
71 Further details were provided regarding your relationship with your co‑offender (page 10).
72 You reported symptoms suggestive of extremely severe depression, anxiety or stress, although Mr Jackson concluded those reports were incongruent with your clinical presentation and self-report. The author noted you reported nearly every symptom as the maximum degree of severity which appeared to him to be a degree of catastrophisation. You did not report symptoms suggestive of primary mood disorder, psychotic disorder or behavioural disorder, nor did you present with any overt symptoms of mood disorder, such as depression, anxiety or stress, psychotic disorder or behavioural disorder, poor impulse control or poor anger management.
73 In conclusion, the majority of your cognitive skills were in the low-average to average range and intact. Your profile was indicative of longstanding learning disability and reading problems. Mr Jackson concluded you would not have been under the effects of drugs at the time of this offending.
74 Your full scale IQ score of 76 precluded you from a formal diagnosis of intellectual disability and there was also no convincing evidence you had another neuro-developmental condition. That a neuropsychological condition you did have did not affect your ability to understand the wrongfulness of your actions. You were able to think clearly, make calm and reasoned decisions, make appropriate judgments and control your emotions.
75 In the opinion of Mr Jackson, there was no relationship between any neuropsychological condition and this offending. Yours was a specific decision to “get back” at the victim because of the victim’s inappropriate behaviour.
76 If incarcerated, he anticipated a possible initial period of difficulty for you, taking in information from other prisoners or prison staff. However, you would learn well with repetition. The initial period of difficulty would be overcome with time.
77 Your cognitive profile would not deteriorate as a result of being imprisoned. As I have previously noted your counsel was not relying upon the principles in Verdins and that was an appropriate concession.
78 I turn to your Ms Kootstra-Denton.
79 I received a written outline of submissions from your counsel, Mr Terry. In mitigation of sentence, he referred to your early plea of guilty and that you made full admissions of your offending to police. That you did not have any prior or subsequent convictions. You were 20 years of age at the time of the offending and also at sentence. He also urged your limited role in this offending and urged it was a relatively low level example of the offence of armed robbery and I have already accepted that description.
80 Mr Terry referred to your difficult upbringing, borderline personality disorder and grief issues and I discussed the applicability or otherwise of Verdins principles with Mr Terry noting his written submissions in that regard. As discussed with him I did not consider the principles were enlivened by the report of Mr McKinnon to which I shall shortly refer.
81 Mr Terry urged you had good prospects for rehabilitation, subject to you successfully addressing drug use and mental health issues.
82 Ultimately, Mr Terry urged the court not impose a custodial sentence for your offending. Should I, however, determine a custodial sentence be imposed, he urged a sentence in a Youth Justice Centre, subject to you being assessed as suitable.
83 I turn to your background and history. You are 20 years of age at sentence. Your parents separated when you were 3. You lived with your mother after your parents’ separation, your mother later re-partnering.
84 In your childhood you spent a few nights each week living with your father, the rest of the time with your mother and stepfather.
85 Your mother apparently did not accept your sexual identity and that caused significant problems in your relationship with her. You left home when you finished school.
86 You attended Churchill North Primary School where you described being bullied. You then attended Kurnai College in Churchill until partway through VCAL Year 12.
87 When at school you also worked at McDonald’s between the ages of 15 and 17, then at Coles after leaving school in Year 12.
88 In the past 12 months you had been working as a sex worker.
89 Your counsel submitted your childhood development was adversely affected by your parents’ separation and attitude to your sexual identity.
90 As a result you developed anxiety and depression in your teenage years which led to substance use.
91 You described a close relationship with your father. He passed away in 2016 when you were sixteen, which led to further drug use by you, your drug use in recent years escalating.
92 This offending occurred against a background of homelessness, chaotic lifestyle, drug use and untreated mental health issues he urged. I refer again to L’Eveille, and accept your background reduces ‘to a degree’ the weight to be given to general deterrence in your case (as with Saddington).
93 Mr Terry referred to admissions made by you to this offending and that you did not know the full extent of what was going to happen nevertheless went along with your offending knowing of the presence of the weapon and did not ask questions.
94 You said that when you and Saddington met with the victim, your intention was to rob him because he had asked for naked pictures and had been ripping you off selling fake shoes. You said you did not know who the male who had the knife. As previously noted you do know his identity however did not want to divulge same due to apparent fear of him.
95 Mr Terry submitted this was a relatively low level example of armed robbery, with limited preplanning, and no injuries caused by either accused. The incident was of short duration and with limited gain. He urged the victim was not “a soft target”. I disagreed with that submission as I discussed and the transcript will reveal.
96 He urged there were “substantial and compelling” reasons not to impose an immediate term of imprisonment when sentencing you.
97 He referred to your lack of prior criminal history and lack of anything subsequent. Your personal circumstances he urged remained relevant, and were not excluded from consideration by s5(2H). The plea of guilty could still be taken into account (albeit not whether it was early). That you made full and frank admissions to police in your interview. Your youth and therefore in that context your rehabilitation and role in this offending.
98 Further that s5(2H) referred to ‘less weight’ to personal circumstances, nature and gravity of the offence but not to ‘no weight’.
99 Whilst not the same difficult upbringing as in Bugmy v The Queen,[4] nevertheless there were some difficulties in your background. He referred to your parents having separated and that your relationship with your mother was very difficult in your adolescent years with issues that continue between you and she. Whilst not a causal link to your offending, he nevertheless urged your emotional issues and lifestyle were part of the background to this offending, albeit not enlivening Verdins.
[4](2013) 249 CLR 571 (‘Bugmy’).
100 He urged the objective gravity of your offending was low-level and that there were compelling circumstances in your case which meant I would not be required to impose a term of imprisonment. A non‑custodial Order, specifically a Community Correction Order should, he said, be considered appropriate for your offending.
101 I also received a report from Ian Mackinnon, consultant psychologist, dated 8 March 2020. You were referred to him for a psychological assessment which occurred on 4 March 2020. Details were provided within that report of your background and history and I will not repeat those.
102 You were very upset when your father passed away when he was 54 in 2016. Your relationship with your mother was elaborated upon within that report (pages 2 to 3).
103 You described ongoing drug use (page 4) and a long history of polysubstance abuse commencing in your early adolescence regularly consuming alcohol and smoking cannabis. You still smoked ice approximately half a gram a day, that habit is “quite severe” (page 5).
104 Test results indicated your general cognitive functioning fell within the normal adult range. At the time he assessed you, you were suffering symptoms of borderline personality disorder, amenable to amelioration and treatment.
105 Mr Mackinnon noted your assessment and diagnosis was somewhat confounded by your long history of substance abuse, although your psychotic symptoms may well have an underlying disorder that predated your substance abuse. It was impossible for him to ascertain either way.
106 You were in his opinion vulnerable to deteriorating in the face of substance abuse. In his opinion, in stable and favourable circumstances, you had the potential to thrive at a tertiary level of study, succeed in an apprenticeship program or pursue other vocational pathways with good prospects for completion. Unfortunately, since your father passed away your living circumstances had been highly chaotic, changeable and even unsavoury. Those factors had not been conducive to improving your life.
107 At the time of assessment you expressed appropriate remorse and provided a partial explanation for your offending. You understood the meaning of ‘right and wrong’.
108 At the time of this offending, you met the clinical criteria for borderline personality disorder. That diagnosis which assumed substance abuse degraded your ability to reason and make sound judgments.
109 In his conclusion, Mr Mackinnon noted your childhood development was adversely affected by your parents’ separation, blended family issues; frequent bullying at school; and other personal issues. By the time of your early adolescence, you had developed low level chronic anxiety and depression leading to substance abuse. Your father’s death and your mother’s rejection of your sexual identity contributed to developing symptoms consistent with borderline personality disorder.
110 Mr Mackinnon noted you remained psychologically unwell and continued to be a polysubstance abuser (page 10). In his opinion you urgently required ongoing individual psychological therapy and substance abuse treatment. For you to succeed with therapy, you would need to establish a stable and productive therapeutic relationship with a therapist you “clicked” with. You appeared to be open to engaging in long term therapy.
111 Mr Mackinnon flagged concerns that you were probably easily influenced by people you associated with which posed an ongoing risk to your rehabilitative prospects.
112 In prison you would be unlikely to cope well, leaving you vulnerable to others with a potential risk to your safety.
113 The prosecutor, Ms Harrold, conceded the gravity of both your offending fell at the lower end. However she pointed to the maximum penalty applicable for the offence of armed robbery, being 25 years’ imprisonment. In addition your offending occurred in company.
114 There was also evidence, she said, that this robbery was planned. Whether or not your victim was described as a ‘soft’ target, you had nevertheless deliberately lured him to a location intending him to be vulnerable at that location. I agree.
115 She referred to the impact upon the victim of your offending.
116 The prosecution submitted that you, Saddington, were the organiser with a higher role in this offending than you, Kootstra-Denton. In my opinion the sentence imposed should be the same for both of you.
117 Regarding the nine-month delay between offending and hearing, Ms Harrold urged such was not inordinate, rather speedy. I agree, however, I note no further offending in that nine months.
118 Ms Harrold submitted that whilst disadvantaged background was relevant in certain cases in mitigation of sentence, it was a matter of degree and here relevant to both of you, it was not to the level of Bugmy. I accept, however, as I have said, some reduction due to your respective backgrounds and history.
119 Regarding the report from Mr Mackinnon. Ms Harrold submitted the author did not address Kootstra-Denton’s substance abuse and was not clear when formulating his assessment whether substance use had been taken into account and how it did or did not affect you at the time of offending.
120 Regarding you, Kootstra-Denton, Ms Harrold submitted should I consider a term of imprisonment was the only appropriate disposition in your case, I could, if I thought appropriate, have you assessed for a Youth Justice Centre disposition.
121 The principle of parsimony requires that a custodial sentence only be imposed as a last resort, however, overlaying that principle are mandatory sentencing provisions.
122 Regarding s5(2H), it does not appear that the words “substantial and compelling” have been considered by the Court of Appeal in the context of s5(2H), however has been considered relevant to s10A(2)(e) in
DPP v Hudgson[5] where the Court said “the word “compelling”, connotes powerful circumstances of a kind wholly outside what might be described as ‘run of the mill’ factors typically present in offending of this kind.” Section 5(2H) was introduced into the Sentencing Act 1991 after s10A(2) and was clearly modelled on it. I see no reason not to follow the Court of Appeal’s reasoning in Hudgson.
[5][2016] VSCA 254 (‘Hudgson’).
123 Both counsel submitted there were a combination of factors, which together, amounted to substantial and compelling reasons not to impose a custodial sentence. When I say both counsel, I am talking about Saddington and Kootstra-Denton's counsel. In my opinion those factors previously described in these sentencing remarks in combination do provide ‘substantial and compelling’ reasons within the meaning of s5(2H).
124 As well as matters personal to you, including your prospects of rehabilitation which I find to be in both your cases to be good, subject to addressing matters such as drug use and any mental health issues.
125 I also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
126 Whilst there needs to be an element of specific deterrence when sentencing you, it need not loom large in the sentencing process in particular given your lack of prior and subsequent criminal history.
127 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. Given your lack of other criminal offending or anything subsequent, I have some comfort in that regard.
128 I am also called upon by the Sentencing Act 1991 to manifest denunciation of your conduct and generally to impose a just punishment.
129 Both counsel urged that I have you assessed for a Community Corrections Order.
130 I arranged to have you both assessed for such an Order and received reports from Paul Sguerzi. In your case, Ms Saddington, you have been found suitable for a Community Correction Order and consented to the same being imposed being aware of the likely conditions of it and ramifications of breach. You, Ms Kootstra-Denton, have also been found suitable for a Community Correction Order and, as I understand it, also consented to being placed on it, also being aware of the likely conditions and ramifications of any breach.
131 So I want to indicate what I propose regarding sentence and I will explain it each individually so that you can each follow it. All right? Listen carefully.
132 Turning to you, Ms Saddington, I propose to sentence you as follows. This is not the formal sentence. This is just the preliminary leadup before I pronounce formal sentence subject to the answers to the questions I ask of the two offenders. So I hope that makes sense.
133
On Charge 1, I will be proposing that you be convicted and sentenced to a
3 year Community Corrections Order.
134 And before I ask if you consent to be on such an Order, I have to tell you something about it.
135 The following Core conditions would apply to that Order and apply to you:
·You must not commit, whether in or outside Victoria, during the period of the Order, which would be 3 years, an offence punishable by imprisonment.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order, i.e. 3 years.
·You must report to the Community Correction Centre at Frankston within two clear days and I will get you a date for that in just a moment.
·You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
136 There would be a number of other conditions which would be attached to this Order, and they apply to you specifically:
· You must perform 200 hours of unpaid community work over a period of 18 months as directed by the Regional Manager (s48C). 50 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition (s48CA).
· You must be under the supervision of a Community Corrections Officer for a period of 3 years.
·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E) for 3 years.
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager (s48D(3)(a)).
· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s48D(3)(e)).
· Whilst not recommended by Mr Sguerzi, a further condition would be that you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager (s48D(3)(f)).
· You must also attend for review of your progress and compliance or otherwise with conditions of this Order and you have got to come back before me on 8 September 2020 at 9.30am (s48K).
137 Now, I can only impose a Community Correction Order if you agree to such an Order being imposed. So I still have to tell you more about it. Keep listening.
138 I should advise you that if you contravene or breach that Order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach alone (s83A(d)).
139 You can also be re-sentenced for the offence that is before me. One of the options available includes a term of imprisonment (s83A(s)) and that is a very real risk you run.
140 So you would have to be extra careful for the next 3 years. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the Court and you will be re-sentenced on this charge before me. You would need to be very, very careful.
141 I also advise that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections worker, or officer if you like, as part of this Order, you can be fined; a substantial fine can be imposed (s83A(e) and A(f)).
142 Now, I will ask you, do you want to speak to your counsel. I think you would better. All that is pretty quick. Do you want to go back and have a quick word before I ask if she consents to that Order because if she does not, we start again but that is not a threat; that is just the fact. So do you want to go and have a chat to her and explain what I have just said?
143 MS GOMEZ VAZQUEZ: Yes please, Your Honour.
144 HER HONOUR: Yes. Off you go. Take your time. Did you have enough time? That is important?
145 MS GOMEZ VAZQUEZ: Yes, Your Honour.
146 HER HONOUR: Now, just with your client, is she the one with the rheumatoid arthritis?
147 MS GOMEZ VAZQUEZ: She is, Your Honour.
148 HER HONOUR: Well, I want to know before I ask the question of whether she consents, is this going to stop her from doing community work because I will not tolerate an excuse, 'Gosh, my arthritis was a bit bad that day, so I couldn't get to community work', because I will not buy that.
149 MS GOMEZ VAZQUEZ: Yes, Your Honour. That seems to be the fact that was contemplated in the assessment.
150 HER HONOUR: I would like that stated.
151 MS GOMEZ VAZQUEZ: Yes.
152 HER HONOUR: So can you go back and check?
153 MS GOMEZ VAZQUEZ: Thank you.
154 HER HONOUR: Right. What are your instructions? Nice, loud voice. Will it not stop her of doing the community work?
155 MS GOMEZ VAZQUEZ: No, Your Honour.
156 HER HONOUR: No medical condition that she has or is likely to - well, you cannot tell the future but - - -
157 MS GOMEZ VAZQUEZ: I think that she needs to provide a medical certificate - - -
158 HER HONOUR: That is correct.
159 MS GOMEZ VAZQUEZ: - - - to satisfy them but then they can find - - -
160 HER HONOUR: Then they will find some other work.
161 MS GOMEZ VAZQUEZ: That is right.
162 HER HONOUR: Correct. So we are not going to have an excuse - - -
163 MS GOMEZ VAZQUEZ: No.
164 HER HONOUR: - - - that, yes, all right, that, 'I couldn't do the work that they were going to find for me upon receipt of that' - - -
165 MS GOMEZ VAZQUEZ: She thoroughly understood that, Your Honour.
166 HER HONOUR: And does she understand that she has got to provide that medical certificate? She cannot just say, 'I'll eventually get that certificate, Thanks very much.' She would have to provide it.
167 All right. Have a seat. Now, where is the microphone?
168 Now, Ms Kootstra-Denton, can you go up and sit right up that end there? Can you now go and sit at the microphone - stand at the microphone? Right. All right. Ms Saddington, listen carefully.
169 Now, being aware of those conditions and the ramifications if you breach this CCO, that is back before me and I have to re-sentence you on a charge of armed robbery, you can think the only options would be give you another CCO, why on earth would I do that when you did not comply with the one I have given you, fine you, no way for armed robbery, leaves jail. I cannot spell it out any clearer than that.
170 ACCUSED SADDINGTON: Yep. Yes, Your Honour.
171 HER HONOUR: So you have got to be extra careful for the next 3 years.
172 ACCUSED SADDINGTON: Yes, Your Honour.
173 HER HONOUR: If you breach this Order by any offence that can have a term of imprisonment attached to it, e.g. a driving offence, it does not have to be another armed robbery, it does not have to be a robbery, it does not have to a robbery, it does not have to be a theft. It can be a driving offence where there is a penalty of potential jail term. You are going to be extra careful because I do not accept excuses. This is why I have this little speech, this little discussion right now.
174 ACCUSED SADDINGTON: Yes, Your Honour. Sorry.
175 HER HONOUR: So I am told that you have rheumatoid arthritis. Are you able to complete the community work if they find you something that they say you can do?
176 ACCUSED SADDINGTON: Yes, Your Honour.
177 HER HONOUR: All right. Now, nice, loud voice because it makes a rehearing very quick if we get to this stage.
178 Being aware of all those conditions of the Order and any ramifications if you breach it, do you consent to being placed on that Community Corrections Order?
179 ACCUSED SADDINGTON: Yes, Your Honour.
180 HER HONOUR: All right. Back to where you were. You back to the middle. Right.
181 Now, I turn to you Ms Kootstra-Denton. Stay seated for the moment. Listen carefully. I know it is the same speech but I have got to tell you. I propose to sentence you as follows. This is what I am proposing to do. This is just letting you know the plan. I have not formally announced it just yet in your case.
182 So, I am proposing that on Charge 1 you will be convicted and sentenced to a 3 year Community Corrections Order.
183 Before I ask if you consent to being on that Order, I must tell you about it.
184 The following Core conditions apply to all Community Correction Orders and they apply to you:
·You must not commit, whether in or outside Victoria, during the period of the Order, which is 3 years, any offence punishable by imprisonment.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, i.e. a Corrections worker, during the period of the Order, that is for the next 3 years of your life.
·You must report to the Community Correction Centre at Frankston within 2 days and I will give you a date for that in a minute.
·You must notify the Secretary, or his or her nominee, or a Corrections worker if you like, of any change of address or employment within 2 clear working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee, i.e. a Corrections worker.
·You must comply with any direction given by the Secretary, or Corrections worker if you like, that is necessary for the Secretary to give to ensure you comply with the Order.
185 There are a number of other conditions that apply to you as well as those Core conditions:
· You have to perform 200 hours of unpaid community work over a period of 18 months as directed by the Regional Manager (s48C). 50 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition (s48CA).
· You must be under the supervision of a Community Corrections Officer for a period of 3 years.
·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E).
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager (s48D(3)(a)).
· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s48D(3)(e)).
· You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager (s48D(3)(f)).
· You must attend for review of your progress and compliance or otherwise with conditions of the Order and you have got to come back before me on 8 September 2020 at 9.30am (s48K).
186 Now, I can only impose a Community Correction Order if you agree to such being imposed. So I have to tell you a little bit more about that.
187 I have to tell you that if you contravene or breach this Order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for the breach (s83A(d)).
188 You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment (s83A(s)).
189 So you have got to be extra careful for the next 3 years. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the Court and you will be re-sentenced on this charge that is before me. So you have to be extra careful.
190 I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, or worker if you like, as part of this Order, a substantial fine can be imposed (s83A(e) and A(f)).
191 Now, just stand up for a minute.
192 Now, just to make it abundantly clear. You do not have any problems with the community work, I gather? You do not have any medical issues or anything that would prevent you from doing it? Yes or no?
193 ACCUSED KOOTSTRA-DENTON: No, Your Honour. No.
194 HER HONOUR: No? All right. Do you understand that if you breach this Order, I have to re-sentence you on the charge of armed robbery?
195 ACCUSED KOOTSTRA-DENTON: Yes.
196 HER HONOUR: Do you understand there are very few options then available to me on re-sentencing? You ask yourself; if you breach this Order, would I give you another one? Why would I, I ask. I have given you a chance. You messed it up. Why would I give you a second chance? The other option is a fine. Fine for armed robbery in this case in company? Same as I said to Ms Saddington but I added a little bit there but the same applies to her in case there is any confusion. Then you can expect jail effectively. You would not get a fine for armed robbery.
197 ACCUSED KOOTSTRA-DENTON: No.
198 HER HONOUR: So you have got to be extra careful of that.
199 Now, being aware of the conditions of that Order, being aware of ramifications of any breach of that Order before I ask if you consent to that Order being made in those terms and conditions, I am going to have your counsel go back to you and explain to you where I have gone wrong or anything that he wants to make clear. Thank you. Off you go, Mr Terry.
200 MR TERRY: Yes, my client well understands all that, Your Honour.
201 HER HONOUR: Yes. Is she going to consent to it?
202 MR TERRY: Yes.
203 HER HONOUR: All right. Nice, loud voice. You heard about what can happen on this Order. It is going to be for the next 3 years of your life, which at your age is a long time. Same thing applies to Ms Saddington. I did not tell her that specifically but then she is not - you know, it is not rocket science. It is a long time at your age.
204 ACCUSED KOOTSTRA-DENTON: Yep.
205 HER HONOUR: So, do you consent to the Corrections Order being made with all those terms and conditions being imposed? Yes or no?
206 ACCUSED KOOTSTRA-DENTON: Yes, Your Honour.
207 HER HONOUR: Nice, loud voice. Excellent. All right. Have a seat.
208 So, I formally sentence you both as follows.
209 Ms Saddington, you are convicted and sentenced to a 3 year Community Corrections Order effective from today’s date subject to the terms and conditions I have just outlined.
210 Ms Kootstra-Denton, you are convicted and sentenced to a 3 year Community Corrections Order from today’s date subject to the terms and conditions I have just outlined.
211 For completeness, should I need to revisit this sentence, which I hope I do not, I have not declared any pre-sentence detention pursuant to s.18(4) Sentencing Act 1991 referrable to either of you.
212 Pursuant to s.6AAA Sentencing Act 1991, had you each pleaded not guilty to this offence, so both of you had pleaded not guilty to this offence but then been found guilty of it, I would not have given you or imposed a Community Corrections Order, rather I would have sentenced you each, both of you individually, to 5 years' imprisonment with a non-parole period of 3 years.
213 Now, were there any other orders sought?
214 MS GOMEZ VAZQUEZ: No, Your Honour.
215 HER HONOUR: I did not think so.
216 Now, just for completeness, you need to report - no excuses accepted, you need to report to the Community Corrections Centre by 4 pm this Thursday, that is the 26th. You do not turn up, you potentially have breached the Order by failing to attend your very first appointment. It would mean I see you very quickly which would not be good. You should aim to not see me until the date in September because if you see me before then, there is a problem but if I see you on 8 September or whatever date it was and everything has been going swimmingly, it will be a five-minute hearing but if it has not been going well, - anyway, counsel will explain all of that I trust.
217 Now, you have got to sign these orders. All right. Now, the process will be, my associate will hand it to counsel, counsel will wander down the back and then hand it to - then discuss it with the parties and have them sign it if they are still willing to. That is just the way it is. All right? I try to avoid handling and - now, do counsel have any questions before I hand the documents down? Is anything unclear?
218 MR TERRY: Nothing is unclear, Your Honour. Just in relation to the judicial monitoring.
219 HER HONOUR: Yes, 9.30. It can be at the CCS. I do not mind.
220 MR TERRY: And does Your Honour require representation?
221 HER HONOUR: No, but it is always a good idea if - if you have not been complying with the Order when I see you in September, you might want to think about getting a barrister or a counsel or a solicitor to come along but if it is all just swimmingly, we usually do not bother. All right?
222 MR TERRY: As Your Honour pleases.
223 HER HONOUR: So I guess it just depends on the day. Usually, if it is - I might indicate, Mr Terry, if this would further assist you, usually if there is a problem, i.e. and I might have to re-sentence, I would not be doing that on the day anyway. So I would probably adjourn it off with a very clear indication that this is a real problem.
224 MR TERRY: Yes.
225 HER HONOUR: So I would be very - I cannot think of any case where I have actually gone ahead on the day with a breach if you follow what I mean.
226 MR TERRY: Yes, Your Honour. I follow, Your Honour.
227 HER HONOUR: Yes. Does that help you?
228 MR TERRY: Yes. Thank you.
229 HER HONOUR: So now is the time, ladies. Let us know if there is anything you do not understand. All right? Your counsel are going back with you now.
230 All right. Everyone all right? All right.
231 Now, my associate will come and collect them from you and then run off copies for both of you and the Crown of course.
232 Do not forget, Ms Harrold. They usually email the copies, is that - do you want a hard copy or are you all right with that?
233 MS HARROLD: No, Your Honour. As long as they email that, that is suitable. Thank you.
234 HER HONOUR: Yes. That is fine. All right. Nothing further?
235 COUNSEL: No, Your Honour.
236 HER HONOUR: No. All right then.
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