Director of Public Prosecutions v Sansbury
[2019] VCC 1479
•23 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-18-02123
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GWENDOLINE SANSBURY |
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| JUDGE: | His Honour Judge Johns |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 August 2019 |
| DATE OF SENTENCE: | 23 August 2019 |
| CASE MAY BE CITED AS: | DPP v Sansbury |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1479 |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing - Attempted armed robbery – Koori Court – participation in sentencing conversation – aboriginal offender – Community Correction Order imposed.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Raimondo Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Ms G. Connelly | Law and Advocacy Centre for Women |
HIS HONOUR:
1Ms Sansbury, you have pleaded guilty to one charge of attempted armed robbery and the maximum penalty is 20 years' imprisonment.
2The facts of the matter are set out in Exhibit A, the Prosecution Opening which forms part of these reasons for sentence. In brief terms, your victim, Mr Huang, attended a laundromat in Flinders Street, Melbourne on Thursday, 16 November 2017. You were there with a friend of yours and an altercation of sorts arose over some bags that Mr Huang had left behind. No doubt they would have appeared to you to be abandoned by him and you put some clothing in them.
3When he returned he asked for them back and you complied and indicated you would give them back and were taking your clothes out of the bags. At some point during that process a disagreement occurred and Mr Huang reached for the bag. You said words to the effect of you ‘would do it,’ you would ‘unpack the bags’ and you took exception to his conduct. No doubt it annoyed you. No doubt part of your annoyance was due to the fact that you had been using ice.
4The use of ice, methyl-amphetamine, has been a problem of yours for several years. You have also been a heroin user for some years in the past and the abuse of illicit drugs, first heroin and in more recent years methylamphetamine, has been the cause of much disruption in your life: itinerancy; homelessness; and criminal offending.
5A few minutes after this minor altercation over the bags you contacted your partner, Gerald Lofthouse, your co-offender in this matter, who I sentenced on 24 April of this year. You rang him, he arrived at the laundromat, you pointed at Mr Huang. Mr Lofthouse walked up to Mr Huang and stood maybe two or three steps away from him, was aggressive towards him and yelled, 'What are you trying to do to my girlfriend?' Mr Lofthouse started waving a knife at the victim. The victim raised his hand to try and protect himself. Mr Lofthouse swung the knife in an upwards direction, not intending to connect but the knife did connect with the victim's palm and cut through the top of his hand, between his middle and index finger. You are not responsible for that conduct and you are not criminally responsible for the injury suffered to Mr Huang. However, it sets the context for what happened next.
6You were looking out the shop window to see if anyone was coming. You yelled, 'Maybe he's going to call the police, so grab his phone'. Mr Lofthouse then said to the victim, 'Give me your phone'. Mr Lofthouse was pointing the knife at the victim while he said this. The victim moved his hand over his pocket where his phone was and held his pocket closed and did not hand over the phone. You and your partner and co-offender left.
7It is the conduct relating to the demand for the mobile phone which constitutes the offence of attempted armed robbery. As was stated by your counsel at the plea hearing, the purpose of the attempt was not acquisitive. You had assessed the situation and seen the injury that was caused and were concerned that the police might be called and you wanted to prevent that. Nonetheless you assisted your co-offender in that demand for the phone whilst armed, which constitutes the offence of attempted armed robbery.
8The victim was transported to St Vincent's Hospital and treated. In my reasons for sentence in relation to Mr Lofthouse I set out the treatment and the injuries suffered by Mr Huang. There is no need to do so in your case. Indeed, there is particular reason not to focus on the injuries given you are not charged with causing injury to Mr Huang.
9A victim impact statement was tendered. The victim impact statement demonstrated how devastating unlawful violent encounters like the one you were involved in are for members of the community. There is ongoing stress and anguish that is caused by these types of crimes on law abiding members of the community. It is very serious offending. I am also satisfied that you are ashamed of your actions and I am satisfied that as you have stated to
Ms Ogilvie, from the Law and Advocacy Centre for Women, you have realised that your drug use and your lifestyle at the time were the setting for conduct by you which you recognise was wrong and for which you are ashamed and which you would not ordinarily engage in.10There are indicators of some remorse in your case. Your plea was entered at a later stage than your co-offender and partner Mr Lofthouse entered his. Nonetheless I regard it as a not insignificant matter of mitigation given your acceptance of criminal responsibility. I regard it as expressing your contrition and some remorse in relation to the matter. You also expressed some remorse in your Community Correction Order assessment and, indeed, in Exhibit 2, which is the letter from the Law and Advocacy Centre for Women, which I found very helpful in relation to determining the appropriate sentence in your case.
Personal Circumstances
11You are 41 years of age, born in Adelaide on 17 December 1977. You are a Narrunga woman on your mother's side and I am told Anangu Pitjantjatjara and Yankunytjatjara on your father's side. Your country thus spans through the centre of Australia from South Australia to the Northern Territory.
12You were raised by your grandmother. Tragically your grandmother passed away whilst you were in prison several years ago. Most of your family live in South Australia and the Northern Territory, including a brother in Darwin and a brother in Alice Springs. You have four children: Lindsay, 17 years of age; Jenaya, 15 years; Deja, 11 years, and Munaitya - 8 years old. Your three youngest children are cared for by their father, who lives in the Northern Territory. Your oldest child lives in Adelaide and with his partner, who is expecting your grandchild in January 2020. You are excited about becoming a grandmother for the first time, I am told, and despite the distance your intention is to play a meaningful role in the child's life.
13Your partner, Mr Lofthouse, is also from South Australia and also, in my recollection, a Narrunga man. After arriving in Victoria you were homeless for some time, including at the time of the offending, and this, of course, is a significant matter. Stability in your life starts with stability in housing and having purposeful pursuits and activities and ambitions, which you are now starting to establish. You have had them in the past intermittently but, as I have pointed out, your history has also been marred by what I will broadly term the drug lifestyle which has led to criminal offending and, in your case, periods of incarceration.
14I am told you now have permanent housing in Port Melbourne and you have demonstrated a willingness and a commitment to engaging with services that are available to you, which is significant because it leads me to the view that you recognise your need for support in the community and you have demonstrated that you do have prospects of rehabilitation and you have a commitment to your rehabilitation.
15You consented to having the charge heard in the Koori Court and in doing so you agreed to participate in a process that involved appearing before elders from your Aboriginal community. I was told something of your connection to the Aboriginal community and I have already made note of your connection to Narrunga country in South Australia.
16It was apparent to me from the way you participated in the process of the sentencing conversation that you were appropriately ashamed of your actions and that you were sorry and that you have a degree of insight into your issues in your life that you need to address. Clearly illicit substance abuse is one of those issues. I consider that your participation in the sentencing conversation revealed not only your insight into your offending behaviours but an understanding of how you can make improvements to your lifestyle in the future and avoid reoffending.
17Participation in that process is not easy. You were challenged by the elders and respected persons about your offending and pressed on details of your personal circumstances. You obviously listened carefully and were open. Particular emphasis during the hearing was placed upon the need for you to have some support in your life, housing stability but also supports and engagement with the community in a positive sense, and it is pleasing that there are steps that have been in place for some time, endeavouring to achieve exactly that.
18It was significant that at the sentencing conversation Katherine Ogilvie, the social worker from the Law and Advocacy Centre for Women, who authored a four page report which became Exhibit 2 on the plea, was present at the table. Ms Ogilvie participated in the sentencing conversation, and clearly, you have developed a good rapport with her. A friend of yours also sat alongside you, who was clearly also a positive support in your life. Exhibit 2 set out that there are a number of services and supports that you have accessed and have available to you in the community to maintain a positive drug free and offence free lifestyle, including the Victorian Aboriginal Health Service pharmacy where you get your methadone. As I have pointed out, you had a heroin addiction for some years and you have been on methadone for several years.
19The Djirra Koori Women's Space, which involves basket weaving workshops, amongst other things, is a service that you are also engaging in, and that was the subject of some discussion during the sentencing conversation in a very positive light. You have engaged with Ruby from Ngwala Willumbong, St Kilda for general support and access information around housing. Also the Star Health Group offers the indigenous access and equity program which you are interested in engaging with. You are able to have the ongoing support of Ms Ogilvie from the Law and Advocacy Centre for Women, and this is a positive matter for your future.
20The report states, at page3,
'Ms Sansbury reports coming to Victoria to start a new life. Ms Sansbury states that the incident that led to these charges was a momentary lapse in judgment and that she wants to ensure this does not happen again. Ms Sansbury now has stable housing and is linked with a number of services that she accesses regularly and feels a lot more settled in herself now. Ms Sansbury is heavily focused on her family and their support needs and feels that she would like to be more involved with her family and community and build further on the strong connection that she has with them. Since being in Victoria, Ms Sansbury has missed some significant life events, such as the funeral of her grandmother's sister in South Australia'.
21It goes on,
'Ms Sansbury presents as very motivated to utilise the supports that are available to her to encourage desistence from interaction with the criminal justice system and is keen to work toward improving her future and living a positive and healthy life.'
22The Law and Advocacy Centre for Women can continue to provide case management support to you in the community.
23I accept the matters that are set out in that report. I further accept the matters that were advanced by your counsel on the plea, both in oral and helpful written submissions, and it is clear that the context of the offending in this matter is very relevant. You were homeless at the time. You have struggled with drug addiction for many years and, as I stated in the sentencing reasons in relation to Mr Lofthouse, these apply to some degree, perhaps not the same degree, but to some degree in your case as well, that the degree of moral culpability for leading a lifestyle dominated by drug use must be viewed in light of your antecedents and your earlier life experiences, including trauma and intergenerational trauma.
24Your counsel urged that I place you on an adjourned undertaking. This submission was predicated significantly on the submission that the offence itself was, whilst being a serious one of attempted armed robbery, the actual circumstances of it and the particulars that made it an attempted armed robbery, were such that I could consider a sentence which would be untenable in most other cases of attempted armed robbery.
25I have considered that a Community Correction Order is the preferable course and the more appropriate sentence to impose in your case. This is for reasons of parity with Mr Lofthouse, your criminal history, which is a relevant matter, the fact that this is a serious offence of attempted armed robbery, and particular aspects of your history, including your criminal history, which highlight the desirability of supervision to some degree, of you in the community.
26You were assessed for a Community Correction Order. You were assessed as suitable for a Community Correction Order. As I have stated, you expressed some remorse for your actions during that assessment. You were able to identify the correlation between your substance use and your behaviours and actions on that day, admitting that you would have reacted differently if you had not taken ice that day and the unfortunate events that followed would have been avoided.
27You indicated to Corrections your hopes to engage with Star Health for additional support services and Djirra in Abbotsford for cultural programs made by and for Aboriginal women. These programs will no doubt be of great comfort and assistance to you in moving forward in a positive fashion. Corrections will endeavour to encourage and facilitate your participation with these providers in addition to the other conditions that I will order. You reported to Corrections that you have abstained from heroin for the past 17 years since your son, Lindsay, was born. However, clearly substance use issues, in particular ice, is a matter that needs addressing in the form of a condition in the Community Correction Order.
28I take into account the serious nature of the offence, the impact on the victim, your plea of guilty and including those matters personal to you, and I have had regard to general deterrence, denunciation and just punishment. I am going to impose an 18 month Community Correction Order.
Sentence
29In relation to Charge 1, attempted armed robbery, you are placed on a Community Correction Order of 18 months' duration. That order will have conditions that you perform 100 hours of unpaid community work over 18 months as directed by the regional manager. I also order supervision, that you be under the supervision of the Community Correction Order for a period of 18 months, that you undergo assessment and treatment, including testing, in relation to drug abuse, as directed by the regional manager. I direct that you undergo treatment and rehabilitation and assessment in relation to mental health.
30You will be subject to judicial monitoring. I am setting a judicial monitoring date of 24 October, which is not too far away. The reason I have chosen 24 October is Mr Lofthouse is also set for judicial monitoring on that day.
31I make an order that up to 50 hours of treatment and rehabilitation satisfactorily undertaken can be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
32Had you not pleaded guilty I would have imposed a sentence of two years' imprisonment with a non-parole period of one year. Do you consent to engagement in the Community Correction Order, Ms Sansbury?
33ACCUSED: I do.
34HIS HONOUR: You do. All right, well, that will be prepared. There was a 464ZF application. I cannot recall, Ms Connelly, whether that was consented to. I mean there is a history there. I am minded to make it.
35MS CONNELLY: Yes.
36HIS HONOUR: If there was no history for this matter I would probably think twice about it but given the seriousness of the offence, the prior convictions, there is no strong opposition to it, I will make the order.
37Ms Sansbury, I am making an order that you undergo a forensic procedure for the taking of a scraping from the mouth, which is a forensic sample. It is done in many cases. It is nothing that is particular to your case but in many cases involving offences of this seriousness the order is made and I am making it for the reasons I have just briefly stated. I must tell you that if at the time of the request for the mouth scraping you do not consent, then reasonable force may be used to enable that a forensic procedure be conducted.
38All right, now I will sign that order. I will have a look at the conditions. Yes, I will hand that down. Ms Connelly, you can approach and check that and get her signature and then I will sign it.
39MS CONNELLY: Thank you, Your Honour.
40HIS HONOUR: All right. I have signed that order, Ms Sansbury. You can take a seat now and you can step out of the dock now and come out. We will get a copy of this provided for you and Ms Connelly will, and no doubt Ms Ogilvie, will explain to you where you have got to attend. I am sure you will do your best, as you have been doing lately, and you will continue to make use of the supports and the services that are available and that will be - I know you know that that will be really good for you and that will be something that will help you on the way forward and then you will be able to help your partner as well and I will see you back here on 24 October just to see how you are going, all right.
41All right, yes, adjourn the court, thanks.
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