Director of Public Prosecutions v Sawyer

[2020] VCC 2016

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00619

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICOLE SAWYER

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2020; 9 December 2020
DATE OF SENTENCE:	10 December 2020
CASE MAY BE CITED AS:	DPP v Sawyer
MEDIUM NEUTRAL CITATION:	[2020] VCC 2016

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter	Office of Public Prosecutions
For the Accused	Ms T. Kohr	Victorian Aboriginal Legal Service

HER HONOUR:

1At 1.25 pm on 6 February this year, you, Nicole Sawyer, were seen by a staff member at Kmart in Cranbourne placing items into your bag.  The store manager was alerted.  Before you had left the store, the manager, Mr Peels, grabbed hold of your trolly and asked you to provide him with the receipts for the items in your bag.  You did not give him the receipts. Instead you said, ‘No, I am going to fucking stab you’.  You then pulled out some scissors from your bag, pointed them at Mr Peels and repeated the threat. 

2Mr Peels backed off and allowed you to leave the store, but followed you from a distance.  You continued to threaten him.  It is that conduct of taking the items from the store that you had not paid for, threatening Mr Peels with the scissors  and leaving the store without paying that constitute the charge of armed robbery, to which you have pleaded guilty.  It is estimated that the value of the items you stole was between $400 and $500.

3There was a security guard at the shopping centre, Paul Sasa. You had been pointed out to him and he followed you as you went up High Street.  He approached you and told you that, if you returned the items you had taken, you could go free.  You told him to, ‘Piss off' or you would stab him.  You then pulled out the scissors and lunged at him but missed.  It is this conduct of pulling out the scissors and lunging at Mr Sasa that constitutes the basis of Charge 2, common assault, to which you pleaded guilty.

4Police then arrived and approached you. You started throwing the stolen items at them and yelling, ‘Take them.  Take them’.  They arrested you and interviewed you.  When interviewed, you made full admissions to what you had done.

5You were on bail at the time of this offending and so you have also pleaded guilty to a related summary charge of commit an indictable offence whilst on bail.

6The maximum penalty for these charges is one measure of their seriousness:  the maximum term of imprisonment for armed robbery, 25 years; for common assault, five years; and for commit indictable offence whilst on bail, three months.  Although no-one was injured as a result of what you did and no victim impact statements have been filed, it is clear that both Mr Peels and Mr Sasa would have been fearful during this offending.  They were just at work doing their job and it is not part of their job to be threatened by someone with scissors, particularly when that person has stolen items from the store and all they are trying to do is to stop them and get the goods returned.  Everyone should expect to feel safe whilst they are at their place of work and you have clearly undermined that sense of safety.

7Despite this, the offending itself is properly characterised as falling within the low range of objective gravity for offences of this type.  Although when you were interviewed you told police that you had told your friend earlier on that day that you might “go stealing”, there appears to have been no pre-planning.  You acted alone, you were not disguised and you made no attempt to conceal what you were doing or what you were taking.  The items in the trolley, it would appear, were taken at random. They were things that you did not need or want.  You just walked out with them in your bag and the trolley without paying.  You produced the scissors from your bag after being challenged by Mr Peels as you went to leave.  There is no suggestion that you went into the Kmart with the scissors in your bag or with the intention of using them as a weapon, and no one was injured as a result of what you did.

8You have a long history of involvement with mental health services and, at various times, you attracted diagnoses of bipolar disorder, schizophrenia, drug induced psychosis and schizoaffective disorder.  Between 2014 and the time of this offending, you had engaged episodically with the Recovery and Prevention of Psychosis (RAPP) team at Monash Health.  You had been prescribed long acting antipsychotic medication which is administered by fortnightly depot injection, but the report from the RAPP team indicates that your attendance for injections was erratic, that you often needed a number of phone calls and reminders to follow up and come in for your injection and that you were overdue for a depot injection at the time of the offending.

9You were at the time subject to a community treatment order which made the administering of that medication compulsory.  That community treatment order was discharged when you were arrested and remanded in custody for this offending.

10You were also substance-impaired at the time. You have a long history of abuse of both cannabis and methamphetamine and you were, as you frankly acknowledged to the police, impaired by methamphetamine at the time.

11Although you have no previous court appearances for offences of this type you have a troubling criminal history that begins in the Dandenong Children's Court back in 2011.  You were then placed on 12 months’ probation without conviction for assault, fail to answer bail, theft from a shop, contravene family violence intervention order and wilfully and intentionally damage property.  The probation order was breached and you were dealt with for that in 2012 and the order was confirmed.  You were at that time also facing further charges, again of contravention of a family violence intervention order, criminal damage, recklessly cause injury, theft from a shop and assault.

12Since October 2012, you have had four other charges of criminal damage or wilful destruction of property; one charge of theft from a shop; one of stalking; one of unlawful assault; and two of fail to answer bail.  Almost all of these charges were Children's Court charges and you were generally sentenced to a good behaviour bond without conviction.  Most recently, you have been before the Dandenong Magistrates' Court where you were fined for, amongst other things, failure to answer bail.  You have never received a community correction order.

13I have been greatly assisted by the comprehensive plea submissions of
Ms Khor and the wealth of material provided by her.  In particular, I was assisted by the report of Dr Zimmerman.  Her report is what I call an exemplar of a psychiatric report provided to the court for the purposes of sentencing. 
Dr Zimmerman's careful analysis of the history provided by you and its comparison with, and detailing of, the extensive materials from other sources is exemplary.

14This is truly a case where the principles set out by the High Court in Bugmy[1] have application. In Dr Zimmerman's opinion, made more powerful by the understated nature of the wording she used, it is likely that the effects of multigenerational trauma have impacted adversely upon you.

[1]                  Bugmy v The Queen (2013) 249 CLR 571.

15You were 22 at the time of the offending and you have now turned 23.  You are a Gunditjmara woman, born in Frankston and you grew up in Hampton Park as the youngest of four siblings.  Your father died when you were two and you have not had a father or father-figure in your life.  You are unclear as to the circumstances in which your father died, which in itself demonstrates part of what I am going to say about your childhood and upbringing.

16You described your childhood to Dr Zimmerman as mainly happy, but
Dr Zimmerman, having reviewed the extensive materials that were available to her from DHHS and from other agencies, reported that you grew up in a family with a long history of involvement with drug and alcohol services, DHHS, Child Protection, justice services, Aboriginal Health Services and South East Centre Against Sexual Assault (SECASA).

17You were placed in foster care at the age of 11.  It would appear that you are the only one of your siblings who was removed from the family.  In the years after that, you were regularly placed in residential care and you regularly absconded.  You would return to your mother, or couch surf, before being returned to residential care.  In Dr Zimmerman's opinion, you, as a result, failed to develop a secure attachment to your mother and this intense and unstable relationship was related to your subsequent removal from the family home and some of your offending (specifically the breaching of intervention orders).[2]

[2]                  Report of Dr Nina Zimmerman, 11 September 2020, [62].

18You are very young, but you have experienced multiple significant traumas in your life.

19When you were 12, you were raped.  You were too distressed to participate in a medical examination and as a result the police investigation did not really get off the ground and no-one was charged.  You have been encouraged to consider engagement in counselling but you told Michelle Williams, one of the respected persons who took part in the sentencing conversation with you, that you were still not ready to address this trauma in your past.  Given the multiple other traumas and problems that you face at the moment, that is an understandable position.  That adds obviously to the difficulties and burdens that you carry.

20You first became pregnant at the age of 14.  Your relationship with the father of that unborn child was unstable. A combination of your youth, your unstable life, a partner who apparently did not want to be saddled with the responsibility for a child and who, I am told, indicated that he did not care whether you kept the child or not, ultimately resulted in your being persuaded to terminate the pregnancy.  You believe that, by the time you attended for termination, the foetus may have already died but you were compelled to undergo that procedure anyway.  They are two devastating experiences for one so young.

21Despite reports that you had some learning difficulties, you completed primary school and, although you were expelled from your first year of secondary school for fighting, you continued at another school and ultimately completed your VCAL at a school for children who were otherwise disengaged from the school system.  You have clearly got intelligence, capacity, ability and determination to be able to go through and to do your VCAL.

22By the time you were 19, you had become became pregnant again and you had given birth to your son, Sam.[3]  He has given your life purpose, but you have been unable to provide him with a stable and safe home, and he has spent much of his short life in kinship care, initially with your sister, but for most of the time with your mother.

[3]                  A pseudonym.

23Apart from one short period of employment in a chicken shop after leaving school, you have no vocational or employment history.  You have aspirations, and you would like to do a photography course and have a career in photography.

24When Sam turned one, you separated from his father.  It was then that he was placed in your sister's care where he remained for 10 months.  That was because of your drug use.  You regained custody of him after completing a drug rehabilitation program and showing that you could be trusted.  You remained drug free for eight months, but then you re-partnered and your new partner was violent.  You relapsed into drug use and again lost custody of Sam in 2019. He has been in your mother’s care ever since.  Although he has been in your mother’s care, you are clearly a loving and devoted mother and you have done all you can to show that you can be trusted to have supervised contact with him every day or nearly every day and to cooperate with DHHS in demonstrating commitment to his care by addressing your substance abuse.

25You have a long history of drug use.  You began using cannabis at 13 and methylamphetamine when you were 14.

26You reduced your drug use when you were pregnant with Sam, again showing commitment to that child even before he was born, and a capacity to address your substance abuse problems.  But you relapsed soon after he was born and after your relationship with his father ended.

27You have been motivated in the past to address your substance abuse, not only before Sam was born, during your pregnancy, but also after you lost custody of him.

28When you first lost custody of him, you went to Bunjilwarra for drug rehabilitation.  As a result of your successful completion of that program, Sam was returned to your care and, as I have already noted, you managed to remain drug free for eight months before relapsing, in the context of an abusive relationship that you went into.

29Before this offending that brings you before me, you had again made efforts to address your drug use, understanding that it was escalating and you needed to deal with it.  You had reengaged with a counsellor and you had been accepted into Windana for detoxification.  It was your intention to return to Bunjilwarra after you had completed the Windana detox.  But on the very day you were due to be admitted to Windana you abused amphetamine or methamphetamine and it was in that context that you committed these offences.

30As a result of being charged you were remanded in custody and spent two months in custody before being bailed.  Since your release on bail, you report being methamphetamine-free and to have been working on reducing your cannabis intake.

31At the time of your assessment with Dr Zimmerman, you told her that you were smoking about one gram of cannabis each day but denied having used methamphetamines for about two months. You repeated this during the plea and said that it was a condition of your reunification with your son that you provide clean drug tests to DHHS.

32Turning then to your psychiatric history, you told Dr Zimmerman that you were first admitted to a child and adolescence psychiatric unit in 2014 after your mother had rung the hospital concerned about your welfare.

33Dr Zimmerman notes that your first contact at the age of 14 was two years after you were raped and at the time that you had to go through the abortion.  It was in that context, she said, that you presented as emotionally unstable, threatening towards your mother and yourself, in the context of what Dr Zimmerman described in the clinical notes available to her as a verbally abusive style of parenting, from your mother.

34Dr Zimmerman notes though that it is important to note, that despite all of these difficulties, you consistently ran away to be with your mother when you were placed in residential care and you have a positive relationship with her now.

35After that first admission at the age of 14, you subsequently had a number of admissions to psychiatric wards.  You denied having a mental illness, but you told Dr Zimmerman that you had been told that you had psychosis or schizophrenia.  You have denied experiencing psychotic symptoms but said you sometimes have panic attacks, nightmares about being raped and episodes of low mood, although you struggle to recall for how long they were.  Dr Zimmerman said:

Ms Sawyer has attracted a range of diagnoses but has most recently been diagnosed with schizoaffective disorder, indicating that clinicians have observed separate episodes of both a mood and a psychotic nature.  While she has received involuntary treatment under the Mental Health Act in the past, Ms Sawyer is currently treated as a voluntary patient by an Area Mental Health Service team specialising in youth with psychotic illnesses.  Ms Sawyer is documented as having a family history of schizophrenia.  Given this biological predisposition and the nature of her symptoms when unwell, I believe that Ms Sawyer is appropriately diagnosed with schizoaffective disorder, with a differential diagnosis of schizophrenia.  I believe that she is appropriately managed on a depot antipsychotic, given her lack of insight into her illness.  Schizoaffective Disorder is a lifelong, relapsing and remitting illness.  Ms Sawyer’s prognosis will improve if she develops greater insight into her illness and is able to desist from using illicit drugs.  Times of stress represent potential triggers for episodes of psychosis and assistance in managing challenging emotions and events will also assist Ms Sawyer manage her psychotic illness.

36I note that you have been receiving treatment from the RAPP Team at Monash since 2014.  Since your release on bail, you have been voluntarily engaging with the RAPP team and have attended fortnightly for your depot injections.

37You elected to have these charges heard in the County Koori Court.  That is not an easy option.  The sentencing conversation with the elders and respected persons, Aunty Jacqui Stewart and Michelle Winters, was confronting.  They spoke directly to you and confronted you with some uncomfortable truths.

38It is because a sentencing conversation can be direct and confronting as this one was, involving, as it does, a direct conversation between you, as the offender, and the elders and respected persons, without your counsel speaking on your behalf, that the Court of Appeal has repeatedly described the sentencing conversation as a matter that can have a significant impact on sentencing. 

39In this case, I am satisfied that, as a result of your participation in the sentencing conversation, you were shamed by being confronted with the uncompromising attitude of Auntie Jacqui Stewart and Michelle Winters about the unacceptability of what you did on that day in confronting the two victims as you did and of being in a position where you were not engaged properly with your mental health treatment services and you were substance impaired.  They told you that this was unacceptable behaviour within the community of which you and they are a part.  They challenged you about taking personal and moral responsibility for your conduct in the offending and in relation to your son's welfare.  They noted that you said that you were sorry and explained that it was the combination of the substance impairment and the being late in getting a depot injection that had put you in the state that you were in. You expressed regret and remorse for what you had done that day to those men. I accept as genuine these expressions of your regret and remorse and accept the genuineness of you saying that it was unlike you and the sort of person that you are or have been or want to be.

40It is clear that you love your son, Sam, deeply and you are motivated by that love to work to address your mental health, substance abuse issues and eventually the multiple traumas which have impacted on you and which the elders spoke to you about addressing after dealing with the offending itself.  In strong but encouraging terms, they commended you for the efforts you made to date and encouraged you to keep working with them and to understand and to build on the clear strength that you have.  They were impressed, as was I, by the respectful way you spoke to them and treated the sentencing conversation.  And it is for those reasons that I consider you are entitled to the full proper weight to be given to the genuineness of your participation in the sentencing conversation.  It is the first time that you have been involved in sentencing in the Koori Court and it has clearly been a significant matter for you and I take into account as a significant matter in sentencing.

41It is greatly to your credit, as the elders and respected persons told you, that you have, since your release on bail, engaged so positively with mental health and substance abuse services and with DHHS in relation to planning for reunification with your son.

42I accept that, following the conversation, you have demonstrated remorse, not only by the appropriate acknowledgement of the impact on your victims, but by showing that you understood, and had already begun acting on addressing, your mental health and substance abuse problems which were contributors to the offending, and which you now acknowledge stand in the way of the return of your son to your care.

43Therefore, I give full weight to the principles in cases such as Morgan[4] and Honeysett.[5]

[4]                  R v Morgan (2010) 24 VR 230.

[5]                  Honeysett v The Queen [2018] VSCA 214.

44As the sentencing conversation progressed, you opened up about the steps that you had taken to address your substance use and mental health and you seemed to blossom as you were given credit for the steps that you had taken.  Encouraging you to continue to keep on with the good work is clearly a very important part of ensuring that you stay substance and offence free.

45The elders and respected persons in turn made it easier for me to understand, as the conversation progressed, why your efforts in obtaining accommodation of your own, of giving up relationships with bad men, of removing yourself from the importuning of others to move in with you or spend time with you in order to address your own problems were so commendable.

46They also helped me understand why a combination of Koori-specific and mainstream services are necessary for you to help you address your complex needs, borne out of that history of trauma.

47At the hearing, you told us you had a Children's Court Family Division hearing, the purpose of which was ultimately to have Sam returned to your care.  What I was really impressed by was how realistic you were about the steps that you would have to take and understanding the fact that, until you were in a stable and safe position, you had to work with DHHS in order to be able to get him back to your care.

48You were working to make sure you had as much safe contact with him as you could to maintain that very strong bond that you clearly have with him.  That, I might say, stands in stark contrast to a number of the people I have had appear before me, who appear to be angry and resentful that they cannot have a child returned to their care and minimise the harm that they may be posing to themselves and their child, and the need to address their own problems first.  You have shown selflessness in understanding that you have to get well first and putting that ahead of your desire to have this child in your care.

49I adjourned the first hearing of the plea in part so that I could be provided with more information about the Children's Court proceedings, about your abstinence from drug use and your engagement with mental health and substance abuse services.  Since that hearing, considerable additional material, over and above the excellent material that had already been provided to me, has come in.

50A further report from Melissa Ng, your case worker from RAPPS at
Monash Health, has been provided. So far as substance abuse is concerned, a very helpful report from Renee Melges of EACH and an email chain from HiRoads has been provided. Finally, the Children's Court readiness report prepared by DHHS for the hearing last week, as well as a letter from your solicitors, Barwick and Associates, setting out what you had done and how well you had engaged, was also provided.

51I do note particularly that, although DHHS in its report, had reservations about your capacity to address your substance abuse issues and about the appropriateness of working on a reunification program, Ms Clancy from Barwick and Associates reported that Magistrate Fleming had indicated her view, given that you had recently been complying with regular screens that showed you were methamphetamine free (although not cannabis free), that you had commenced engagement with EACH and were having regular contact with Sam, supervised by your mother, who is Sam's carer, that working towards a family reunification order was appropriate.  And so, I am satisfied that this material shows again the strength of your engagement and commitment and the supports that you have put around you and are accepting having around you.

52I also take into account, in your favour, in considering the appropriate sentence, your pleas of guilty.  You entered them at the committal mention.  That evidences acceptance of responsibility, legal as well as moral.  It saved the victims the ordeal of having to relive the offence, having to give evidence and perhaps face the indignity of being challenged on the truthfulness of their account.  Your guilty pleas are entitled to be given weight for their utilitarian benefit and their role in advancing the interests of justice more generally.

53I also take into account the importance of entering pleas of guilty at a stage when COVID-19 is still a risk in our community and a risk in the prison system.  Whilst the prisons are to be commended for their success in managing that risk so far, if it does find its way into the prison system, it is obviously a real health risk and a real fear of somebody who is facing a prospect of imprisonment.  So, it takes courage to agree or to plead guilty, bring a matter on earlier and to face a risk of being sentenced to a term of imprisonment in that COVID environment.

54Dealing then with general sentencing considerations, it is clear that, for charges of armed robbery and assault, deterrence, both general and specific, denunciation and just punishment are important factors in the sentencing mix.  In this case too I must consider the weight to be given to your prospects for rehabilitation and to protection of the community.

55I accept that, so far as the offending was concerned, mental illness and substance abuse both played a role.  Usually, offending committed when a person is substance-impaired and when they are unmedicated for a known mental illness which requires medication are not mitigating factors.  They might even make the offending worse.  But here, your substance abuse must be seen the context of your childhood trauma and disadvantage.  That makes you less culpable than those who make conscious decisions as adults to abuse substances and commit offences whilst impaired by them.  Your mental illness here also played a significant role. In the circumstances of your background, being overdue for your depot injection is not an aggravating feature and I consider that your moral culpability for the offending is lowered as a result of your mental illness and not aggravated by your substance abuse.

56Dr Zimmerman said:

Ms Sawyer’s developmental experiences of trauma and disturbed attachments combined with repeated placements in state care left her with a poor sense of self-esteem and an impaired ability to cope with stress or negative emotions.

Her lack of stable attachments meant that Ms Sawyer did not have the opportunity to learn to self-sooth or manage negative emotional states, resorting instead to substance misuse.

57That is the evidentiary support for the conclusions that I have just expressed.

58I also consider that the principles in Verdins[6] apply to lessen your moral culpability and reduce the weight to be given to deterrence and effect the type of sentence to be imposed by reason of your mental illness.

[6]                  Verdins v The Queen (2007) 16 VR 269.

59In addition, you are still young, and the sentencing principles relevant to sentencing young offenders clearly have considerable weight in your case.  Not only your youth, but the history of disadvantage and the efforts you have already made to address your substance abuse and manage your mental illness make this a case where encouraging rehabilitation is to be given and must be given greater weight, and general deterrence accordingly to be given less weight than it would for older, less disadvantaged offenders.

60Dealing then with your prospects for rehabilitation.  This is your first offence of this type, armed robbery, and it is your first time in the County Court.  Your efforts to date to address the underlying causes of your offending are, I consider, commendable.  The reports from RAPPS and from EACH, the work you have done through EACH, your commitment to obtaining your own housing so you can look after yourself and your focus on getting better so as to be able to have your son back in your care are all extraordinary efforts for somebody coming from a background that you have.

61Dr Zimmerman said this:

Factors that will increase the risk of reoffending include substance misuse, mental illness and difficulties coping with stress. Clearly these factors are all interrelated. The question of her access to her son and her relationship with her mother are also factors that potentially create stress for Ms Sawyer and are areas where she will need ongoing support. It is positive that she remains linked in with RAPPS, as they are a team who have managed Ms Sawyer’s mental health over some years and who have established her on depot antipsychotic to minimise the chance of non-compliance. It is absolutely crucial that Ms Sawyer be linked in with a culturally appropriate drug and alcohol service. She has a ten-year history of misusing drugs and will struggle to cope with life stresses without illicit drugs. It is to her credit that she participated in a drug rehabilitation program in the past, largely motivated by her desire to have her son back in her custody and it is heartening that she continues to value her relationship with [Sam].

High Risk Offenders Alcohol and Drug Service (HiROADS) is a state wide specialist forensic alcohol and drug service, delivered by Caraniche, in partnership with the Department of Health and Human Services. It is designed to meet the needs of offenders with complexities such as mental health, histories of repeat offending and breaches of community orders and using an assertive outreach model that may be useful for Ms Sawyer, helping her to remain linked in with her corrections and mental health appointments.

62Given the supports that you have accessed and your commitment to get better because of your son, you are properly to be regarded as a person who has actively sought, in advance of hearing, to address the underlying causes of your offending.  It is not just reactive to being charged.

63Ordinarily, a charge of armed robbery would attract a term of imprisonment.  But yours is in no way a typical case.  I have already said that the offending is lower level, in terms of objective gravity.  But your youth, your history of complex trauma, of serious mental illness, substance abuse dating back to childhood and attributable to complex trauma, the failure of state care in adolescence to properly care for you, the powerful motivating force of the love of your son and your efforts to address your problems all point to a sentence where the weight to be given to general deterrence must be significantly moderated and the weight to encouraging rehabilitation already underway emphasised.

64I do not consider in the circumstances that imprisonment is the only sentence properly available that would meet those needs of deterrence, denunciation and just punishment.

65I had you assessed for suitability for a community correction order.

66In a helpful report, which was contributed to by Forensic and Clinical social worker, Mr Kenna Morrison, from Mental Health Advice and Response Service (MHARS), you were assessed as being a high-risk offender, suitable for a community correction order.

67MHARS has just become available in this court and I commend the efforts of those who have worked so hard to make it happen.  And the report and
Mr Morrison's participation in the CCO assessment demonstrate its worth and significance to this court in the sentencing of people with complex mental health needs.

68In the report, it was recommended that you be subject to supervision. This, because of your risk assessment, will require you to report to your case manager on a weekly basis initially.  Because of current COVID-19 restrictions, supervision appointments will be facilitated by phone until otherwise directed.

69The report also recommended that you be assessed by the Australian Community Support Organisation (ACSO) and brokered to an alcohol and other drug counsellor for consultancy and care.  Noting that you are currently receiving counselling by EACH in Dandenong, it is anticipated that you will be able to continue your treatment there as part of your CCO.  Random urinalysis testing will also be facilitated under this condition.

70I requested that the CCO assessment consider referral to HiRoads, the service that had been recommended by Dr Zimmerman.  The report authors noted that referral and endorsed it.  They have said this,

Ms Sawyer will be referred to HiRoads via referral from her case manager to ACSO.  HiRoads is a specialist forensic AOD service designed to address the treatment needs of offenders with complexities that may increase the risk of recidivism.

71This treatment pathway was recommended by psychiatrist Dr Nina Zimmerman in her report dated 11 September 2020 and will be mandated as part
Ms Sawyer's CCO should I consider imposing it.

72The assessment noted the reports that have been provided by RAPP, and which I provided to them, and your information that you are coping well on your medication and that you are continuing to be medication-compliant.

73The assessment by Mr Morrison, from MHARS, was very strongly in favour of the inclusion of a mental health treatment condition and I did intend to do that, and again it is intended to work with and through RAPPS.  That means you will still keep your case manager, Melissa, and there will be overall coordination of your care so that you will not be having to bounce between too many separate workers.  That was something that was spoken about in the course of the sentencing conversation and everyone understood the need for that.

74I had asked for you to be assessed for some vocational training because, in the sentencing conversation, we talked about the need for you to have an aim to get some training and a job. You intend to enrol in a photography course next year through Chisholm TAFE but that is not yet confirmed.

75But Corrections recommended against putting a vocational training component in the order because you have got enough to do to look after your mental health, your drug and alcohol issues and get your son back, and it was thought it would overload you.  So, I am not including that as a condition.

76I am, however, going to include a condition of judicial monitoring, so that you come back before me and report on how you are going in a few months’ time.  That is just to make sure everything is going well, rather than as additional punishment.

77But it is my view that all of these conditions are a punishment in themselves, address the needs of deterrence but, more importantly, are positive encouragements to assist this rehabilitation, address the underlying reasons for your offending and so reduce your risk of further offending.  It is no easy option. It is punishment, but it is rehabilitation.

78On all charges to which you have pleaded guilty, Nicole Sawyer, you are convicted.

79On each of Charges 1 and 2, that is armed robbery and common assault, you are sentenced to be placed on a community correction order, and I will give you the conditions of those in a moment.

80On that Related Summary Offence, Charge 5, of commit and indictable offence whilst on bail, you are convicted and discharged.

81So far as the CCO is concerned the conditions are these:  It is an order for three years commencing today and ending on 9 December 2023.  You must attend at Dandenong Community Correctional Services within two clear working days after the commencement of the order and I think that will be a telephone contact.

82OFFENDER:  Okay.

83HER HONOUR:  The telephone number which we will put on the order which is 8765 5222.

84There are mandatory terms that apply to all community correction orders.  They are these:  you must not commit another offence for which you could be imprisoned during the time the order is in force.  That is just about anything apart from littering.

85You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations.  That means you must not be substance impaired when you are doing any part of your community correction order and you must submit to drug or alcohol testing if requested to do so by the Secretary or delegate.

86You must report to and receive visits from the Secretary or delegate.

87You must let a community corrections office know within two clear working days if you change your address or your job.

88You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from, and directions of, the Secretary or delegate.

89In addition, the following special conditions for you.  You must be under the supervision of a community corrections officer for the full period of three years of the order.

90You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager.

91You must undergo any mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric treatment or treatment in a hospital or residential facility as directed by the regional manager.

92And you must participate in programs and/or courses that address the factors relating to the offending as directed by the regional manager and, specifically, programs relating to anger management and violence treatment.

93And you will be subject to judicial monitoring.  You must reappear at this court, before me for a review of your compliance on 10 March 2021 at 9.30 in the morning.

94Now do you understand the effect and conditions of this order, Nicole?

95OFFENDER:  Yep.

96HER HONOUR:  And do you consent to it being made?

97OFFENDER:  Yes.

98HER HONOUR:  All right.  I am going to sign that order now.  I am going to send a copy of it to Ms Kohr and she will make sure that a copy of it is sent to you.  A copy will also be sent to Corrections.

99HER HONOUR: I declare pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, if you had not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and I would have made you serve 18 months of that time before being eligible for parole. That is not your sentence, that is the sentence I would have given you if you pleaded guilty. Your sentence is a three-year CCO.

100I note that you have spent 62 days in pre-sentence detention.  Because I have not imposed a term of imprisonment, I am not making a pre-sentence detention declaration.

101And I make the disposal and forfeiture orders in the terms that have been sought.

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