Director of Public Prosecutions v Sawka
[2021] VCC 995
•24 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00483
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REBECCA SAWKA |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2021 | |
DATE OF SENTENCE: | 24 August 2021 | |
CASE MAY BE CITED AS: | DPP v SAWKA | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 995 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords: Plea of guilty – two charges of possession of a drug of dependence – one charge of possess counterfeit money – one charge of common law assault – one charge of robbery – related summary offence of dealing with suspected proceeds of crime – circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958 (Vic); Crimes (Currency) Act 1981 (Cth); Drugs, Poisons and Controlled Substances Act 1981(Vic); Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of 10 months imprisonment with a fine of $400
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Mr C. Terry | Stary Norton Halphen |
HER HONOUR:
Pleas of guilty and maximum penalties
1Rebeca Sawka, you have pleaded guilty to two charges of possessing a drug of dependence, the maximum penalty for which, in your circumstances, is 1 year imprisonment, one charge of possessing counterfeit money, the maximum penalty for which is 10 years imprisonment, one charge of common law assault , which has a maximum penalty of 5 years imprisonment and one charge of robbery, which has a maximum penalty of 15 years imprisonment. You also agreed to the summary charge of dealing with property suspected of being the proceeds of crime being dealt with in this court, and pleaded guilty to that charge, which carries a maximum penalty of 2 years imprisonment.
2
The offending dealt with in this sentence occurred on 23 June 2020, and 5 and
9 July 2020.
Circumstances of the offending
3The circumstances of your offending were set out in the Prosecution Opening, dated 12 August 2021. That document was tendered on the plea and became Exhibit A. It is attached to, and forms part of, these reasons. I will not repeat it here, but will summarise some of the facts giving rise to your offending.
4On 23 June 2020 you were a passenger in a car that was stopped by Police; the car was displaying stolen number plates.
5During a search of your handbag, police found your wallet, which contained a zip up pouch containing multiple small deal bags containing a white crystal substance inside. In total, the bags contained 0.4 grams of methylamphetamine. This forms the basis for Charge 1: possession of a drug of dependence.
6Police also found three $50 notes, which proved to be counterfeit. This forms part of the basis of Charge 2: possessing counterfeit money.
7A marine licence in the name of Geoffrey Williams was also found. This, with some other items I refer to later, forms the basis for the summary charge of dealing with property suspected of being the proceeds of crime.
8In a record of interview conducted on the same day, you admitted ownership of the methylamphetamine and stated that you did not know Geoffrey Williams, the subject of the marine licence.
9Some time late in the evening of 4 July 2020, 22 year old Luke Beers was out with his partner, 26 year old Kelly-Anne Maerz. Mr Beers got a Facebook message from his friend, Wade Warnock. It was decided that the three would meet at Douglas Crescent, in Castlemaine. According to Mr Beers, the purpose of this meeting was for Mr Beers to provide Mr Warnock with an ice pipe.
10Shortly after midnight on 5 July 2020, Mr Beers and Ms Maerz were sitting in her red Hyundai in Castlemaine. Mr Beers was in the passenger seat and Ms Maerz in the driver’s seat.
11
At this time, both Mr Beers and Ms Maerz saw a black Suzuki car pull up behind them, and two people get out. Ms Maerz assumed, incorrectly, that it was
Mr Warnock and his girlfriend.
12Ms Maerz unlocked the car and you got into the back of the car through the rear driver’s side door. Ms Maerz recognised you as someone she knew as Bec Mills, who she went to high school with.
13Shortly after, a man, who Mr Beers recognised, walked up to the passenger side door, banged on the window and told Mr Beers to open the door. Your co-offender reached through the open part of the window and unlocked the door.
14Mr Beers saw the co-offender had a box cutter in his hand. The co-offender then demanded money from Mr Beers or he would ‘give him a scar’.
15I note that your plea to robbery was accepted on the basis that you did not know co-accused was in possession of the knife before he produced it during these events.
16While this was occurring, Ms Maerz demanded that you get out of the car, she tried to start the car. She then sounded the car horn and you started punching her in the back of the head and to the nose, this comprises Charge 3: common assault. You stopped punching Mr Maerz after a short time.
17The co-offender told Mr Beers hand to over his gold chain. Mr Beers gave it to him. He then asked for Mr Beers’ watch. As he was taking it off, Ms Maerz grabbed it and said to the co-offender that she could try to transfer money into his account instead of handing over the watch. Demanding the watch forms part of Charge 4: robbery.
18
The co-offender agreed to the money transfer and Ms Maerz transferred funds using the co-offender’s phone number. He threatened Ms Maerz that if she did not give him money, he would take her car. Ms Maerz then transferred $490 to
him via the PayID function, this forms another part of the Charge 4: robbery.
19The co-offender then told Ms Maerz that she had 30 seconds to hand over Mr Beers’ watch or he would take her car. Ms Maerz gave him the watch and the co-offender told her that if she paid him an extra $1500 by the end of the day, she would get it back. The watch was then handed to him. The property the subject of the armed robbery charge relates to the watch, the necklace, and the $490 in cash.
20While the co-offender was doing this, you were looking through the back seat of the car. The co-offender said, 'If you see anything you like just take it'.
21Ms Maerz was uninjured, but reported having a sore nose as the result of the assault.
22On 9 July 2020, Police went to your address and conducted a search. The following items were found:
· two plastic cylinders containing 3.9 grams of Butanediol (see Charge 5);
· two counterfeit $50 notes (see Charge 2); and
· a white case containing stamps and diary, and a black jacket with the security tag still on (part of the summary charge of dealing with property suspected of being proceeds of crime).
Arrest and interview
23You took part in a record of interview on the same day. You denied being involved in the robbery; you told Police you had been home all night and that they could ask your sister.
Procedural History
24You were remanded in custody on the day of the interview and after one unsuccessful application in July 2020, you were granted bail on 11 September 2020: you had served 65 days imprisonment in that time. On 19 October 2020 your bail was revoked and you have since served a total of 374 days.
25A committal hearing was conducted on 4 and 5 March 2021; you pleaded not guilty and were committed on all charges. On 7 June 2021, there was a case conference before me in this Court and, by 7 July 2021, your case had resolved to these pleas of guilty .
Prior criminal history
26You have some relevant prior criminal history. Your history commences in the Magistrates' Court in 2015. In 2016 and 2017, you received adjourned undertakings or community-based dispositions for, what appear to be, in the main, minor drugs and dishonesty offences. In 2018, you were sentenced to your first term of imprisonment of 3 months’ duration, though I note this is for driving offending and therefore, not relevant to this exercise. You were also charged with contravening your Community Corrections Order. In July 2018, you were sentenced to an aggregate term of 45 days’ imprisonment, with a 24 month Community Corrections Order for charges relevant to these proceedings of assault with a weapon and recklessly causing injury. Although those charges continue to appear in your record , they are in fact your only prior convictions for violence. Your history contains a number of instances of breaching Community Corrections Orders.
Nature and gravity of the offending: Culpability and Degree of Responsibility
27I have given thought to the nature and gravity of the offending, your culpability and your degree of responsibility. I am obliged to articulate where your offending fits into a range of similar offending. On your plea, your counsel referred to the sentencing snapshots for robbery in the higher courts from 2015 to 2020. I have had regard to this data within its significant limitations. I have considered more broadly the sentencing landscape for similar offences to these.
28I accept that your role in the events giving rise to the robbery charge as lesser than that of your co-accused. I conclude that you were not the driving force in this offending, and the elements of the offence you pleaded to exclude the possibility of your knowledge of the co-offender’s possession of a knife prior to the events. I will also sentence you separately for the charge of common assault – and note you were more than a silent or passive participant in what occurred.
29There are certainly features of the offending that suggest disorganisation and lack of sophistication. You were known to your victim; your co-accused’s personal banking details were used. Notwithstanding the ID argument that you ran at committal, your detection, in my assessment, was likely from the start. The Prosecutor agreed the term ‘unsophisticated’ was applicable, but reminded me to consider the offending in relation to the maximum penalty of 15 years, which I have done, and also reminded me that the offending that occurred on 23 June was committed just 28 days after your release from custody and while you were subject to a Community Corrections Order.
30In relation to the other charges, I see them as fitting into a category of low-level drug and property offences, with their roots in your long-standing drug addiction. Notwithstanding the history of the matter, the case could have, at least technically once it was resolved, have been dealt with in the Magistrates’ Court.
31Taking all these factors together, there is nothing in the offending that causes me to elevate these events beyond the mid-level of robbery, but I also state clearly that this is very poor conduct that demonstrates your disregard for the rights of your victims.
32The offence of possessing counterfeit money was comprised of your possession of a total of five $50 notes. I regard this as a very low level version of this offence with regard to the value. The common assault took the form of punching to the back of the head of your victim and to her nose. Although there was no injury, and the acts were not sustained, the victim experienced some soreness to the face. The assault took place in the victim’s car and I have assessed the gravity of that offence in its full context.
Personal circumstances
33I will now turn to your personal circumstances. You committed these offences when you were 26 years old.
34You grew up in Maryborough with your parents and half siblings from your mother’s side. Your parents separated when you were about six years old; your father was abusive towards you and your mother. You continued to spend time with your father on weekends until you were about 10 years old; his violence persisted.
35Three years ago your mother passed away from cancer at 63. Your father passed away last year at 70. Your barrister submitted this left you unmoored. At the time you had two young children yourself.
36You left school after Year 11 and started a chef’s apprenticeship of which you completed two years, before you left after being diagnosed with depression and anxiety. You then worked as a waitress, a warehousing processing worker and a baker. You have not worked for the last five years since the birth of your two children.
37The children are now aged four and five years old. They live with your former partner's parents. You had lived with your children and their paternal grandparents, before you were asked to leave their home.
38You have had three significant relationships since the age of 15 years, but each has been marked by either physical or mental abuse, or both.
Impact on victims
39I am obliged to have regard to the impact of your offending on the victims in imposing this sentence. No victim impact statements were tendered, but I sentence you on the basis that it was alarming and frightening for your victims to be set upon in their own car, at night time, in an isolated place. Your counsel conceded it would have been at least ‘pretty scary’ for the victims.
Matters in Mitigation
Plea of guilty
40You entered a plea of guilty to these charges and by doing so, saved the community, but most particularly, the witnesses, from the costs, both human and financial, of conducting a trial.
41I note that originally you were charged on indictment with armed robbery. After a case conference, your plea was settled to a robbery. You ran a committal in the Magistrates’ Court on identity – which perhaps detracts somewhat from the argument that you might have settled this earlier to a robbery, had that been available to you. Whilst your plea was not achieved early, today’s indictment is significantly different from the one that was originally filed in the court. The settlement was arrived at after the case conference; your counsel submitted that this was a compromise of sorts, after each side made an assessment of their various prospects at trial. This practical settlement process still carries with it significant mitigation of sentence.
42There is great utilitarian value in your plea , particularly at this time, while the pandemic makes conducting cases in a timely way so difficult. This means that pleas of guilty at this time will, and must, attract a palpable amelioration of your sentence, because it has the effect of benefiting the beleaguered administration of justice in Victoria. [1]
[1] See Worboyes v The Queen [2021] VSCA 169 at [35].
43Further, I do find that an aspect of remorse inheres in your plea, in combination with how you spoke about things with the psychologist and I take that remorse, perhaps a little circumscribed, into account.
Psychological Material
44A psychological report authored by Pamela Matthews and Daria Sizenko was tendered on your plea and became Exhibit 1. No reliance was placed on this report to support particular legal submissions. Nevertheless, I have read it and taken its contents into account by way of context for your offending and for you.
45The report sets out your exposure to violence, both directly and indirectly, when you were very young. Most of your childhood memories relate to family violence. You have lost both your parents now.
46The report sets out the history of your drug use. This presents a significant problem for you. It has taken the form of daily methylamphetamine use and regular use of GHB. You have had a relatively unsuccessful pattern of drug treatment until now.
47When you were 18, you were diagnosed with depression and anxiety and have used various antidepressants since then. You described feeling like you will explode when overwhelmed with anxiety. You indicated to the psychologist that you do have an interest in returning to therapy upon your release. Your barrister argued that in the context of your previous breaches of Community Corrections Orders, that no such disposition should be imposed today. Rather, reliance was placed on the fact that you have voluntarily participated in the Restart Program, an ‘assertive outreach support program’ delivered by the Australian Community Support Organisation for short-sentenced prisoners.
48On your plea, a letter from Anna Wilson, forensic caseworker from Restart, was tendered and became Exhibit 3. That program has identified transitional support needs for you and has put in place a reintegration transition plan to prepare for your release. This assertive outreach would last for three months after the end of your sentence. Whether or not you take advantage of this assistance, is up to you.
Prospects of rehabilitation
49You told the psychologist that you are motivated by the goal of resuming access with children and that you have made a decision to move away from Bendigo where you feel susceptible to continuing your drug use.
50I note that you have some employment experience, and have voluntarily participated in the Restart Program while in custody. In his submissions, your counsel emphasised that the incentive of recovering first access, then perhaps custody of your children, is motivating you. At the moment, your contact with your children is limited to four visits per year. I understand you have been corresponding with their caseworker from gaol, in an effort to prepare for proving yourself capable of taking a proper role in their lives. I note this rupturing of your relationship with your children, which was well underway before your remand into custody, but which I nevertheless accept has been felt keenly by you, has made this time seem longer and more difficult.
51Even in the context of your significant prior history, I am not prepared to conclude that there is no reasonable prospect of your rehabilitation. You will need support and advice about how to do this and that is available to you, should you voluntarily accept it. In the context of the time you have already served in custody, I see this as a preferable course to imposing a community-based order on you, which has been of such limited assistance in the past. You have apparently gained some insight and tools for managing anxiety while in custody, and in the psychological assessment, you presented with some insight into the offending, and substance abuse problems and demonstrated something the psychologist called ‘fair judgement’. You know where to get support if you are able to keep your children’s needs at the front of your mind. It will not be easy.
Youth
52You are now 28; you were 26 time of this offending. Although ‘youthful’ is perhaps no longer the right word to describe you, the community still has a stake in your long-term rehabilitation and I take that into account.
Relevant sentencing principles
53I have regard to the relevant sentencing principles of general deterrence, specific deterrence, just punishment and community protection. I must impose a sentence that punishes you for what you did and that denounces your offending. The sentence I impose on you should discourage others from doing the same thing, and should discourage you from offending in similar ways in the future. The ultimate goal being that the community is protected from any further danger you might present.
54I note that you have spent 374 days in custody since your remand on this offence. This was punctuated by a period in the community, after which you were remanded. I have taken into account the totality of this experience in calculating the right sentence for you.
COVID-19 Pandemic
55As I deliver this sentence, the Victorian community is in its sixth lockdown and case numbers are still climbing. The anxieties and uncertainty of this time persist. It is clear that for some time, prisoners in Victoria, have suffered the anxiety of not knowing if or when the virus will re-enter the prison system. Access to visits and programs has been curtailed. You were serving your sentence in that more severe and uncertain climate and I take that into account.
Disposition
56Given your poor history of adhering to Community Corrections Orders, and given the not insignificant period of detention already served in your case, your counsel submitted that a ‘straight sentence’, that is imprisonment without parole, or an attached Community Corrections Order, was appropriate in the circumstances. I understood that you have other matters to be dealt with in the Magistrates’ Court after this, but I have not taken those into account, in arriving at what I hope is an appropriate sentence on these charges. The Prosecutor also argued that a straight sentence was the appropriate disposition in your case, but said it should be a higher sentence than that which you had already served.
Sentence
57On Charges 1 and 5: possessing a drug of dependence, you are convicted and sentenced to 1 month imprisonment on each charge.
58On Charge 2: possessing counterfeit money, (which I note is a rolled up charge taking into account the two separate occasions of such possession), you are convicted and sentenced to 2 months’ imprisonment.[2]
[2] See notes in addendum
59On Charge 3: common assault, you are convicted and sentenced to 4 months imprisonment.
60On Charge 4: robbery, you are convicted and sentenced to 8 months imprisonment.
61On the related summary charge of dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 1 month imprisonment.
62I direct 2 months of the sentence on Charge 3 to be served cumulatively upon the base sentence for Charge 4, resulting in a total effective term of 10 months imprisonment.
Pre-sentence detention
63Pursuant to s18 of the Sentencing Act, I declare that you have served 10 months imprisonment by way of presentence detention.
64The balance of the days served by you is noted, but not declared as part of this sentence.
Section 6AAA reduction
65Pursuant to s6AAA of the Sentencing Act 1991, had you proceeded to trial and been found guilty, I would have imposed a sentence of 2 years imprisonment, with a non-parole period of 15 months.
Ancillary orders
66A disposal order, which I will now make, was unopposed in relation to the seized drugs and the counterfeit $50 notes, the marine licence, and a pocketknife, which was not subject to any charge.
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Addendum
Following the sentencing hearing it came to my attention for the first time that Charge 2: possess counterfeit money is a Federal offence and therefore the penalty first imposed was unlawful.
The Court was reconvened the following day on 25 August 2021 for the purpose of amending the sentence on Charge 2 pursuant to s412 Criminal Procedure Act 2009 (Vic). The penalty imposed on Charge 2 was amended to a fine of $400. The parties were invited to make submissions; the prosecution submitted that the proposed course was not inappropriate in the circumstances.
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