Director of Public Prosecutions v Sclater

[2018] VCC 1737

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 17-02138

DIRECTOR OF PUBLIC PROSECUTIONS

v

KATE SCLATER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	26 October 2018
CASE MAY BE CITED AS:	DPP v Sclater
MEDIUM NEUTRAL CITATION:	[2018] VCC 1737

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G Hevey	Office of Public Prosecutions
For the Accused	Ms N Smith	Farrelly Legal

HIS HONOUR:

1Kate Sclater, on 2 January 2017, you agreed to sell a car to the victims. 
As to the price agreed, it seems it was unclear as to whether it was $340 or $400.  The victims paid $100 deposit.  The next day, they paid a further $240.  A receipt was signed, stating the sale was for $400.  For some reason, the victims believed by paying the $340 they had satisfied the full amount for the car.  Over the next three weeks, you, Ms Sclater, sent messages to the victim as ultimately, at the end, demanding $160.

2Around 7 to 7.30 pm on 25 January, you went to the victims' address to confront or speak to them about the money you thought was owed.  The victims were not home, so you waited.  The victims drove home, and you confronted them while they sat in the car.  You demanded the $160 and you held a pair of scissors at the male victim, close to his neck.  Ultimately, the victims handed over $100, two $50 notes.  You dropped the scissors and walked away.

3You were arrested that day.  In your interview, you put forward that you were owed money for the sale.  Ultimately, you accepted in your interview that you were not owed $160 but probably $60.  In fact, you accepted that you owed the victims $40, as you had their $100, which was more than what was owed to you once you assessed things.

4Notwithstanding any claim of right, you pleaded guilty to an armed robbery prior to the committal.  Your plea of guilty is of very considerable value in all the circumstances.  In addition, your plea of guilty is one of many facts and testimonials evidencing your genuine remorse.

5I refer to Ms Williams' letter of yesterday's date, 25 October 2018.  She has been providing family assistance to you as a family reunification worker at the drug and alcohol centre here in Warrnambool.  She says she has had the opportunity to discuss her armed robbery charges with you, and you have displayed genuine remorse for involvement in these matters, and its effects on the victims and her family.  She sees the events as having occurred in "her past life, and Kate says, and I agree with her, that from her demonstrated actions, she has left that life behind her."  This is one of many examples of your expression of genuine remorse.

6The offence of armed robbery is always concerning.  However, this is an example at the very lowest end of the scale.  The victims were in fear after the crime and felt that they had to move out of the place where they were living. 
I have not overlooked the impact on the victims in finding the gravity of your offence to be low.  I have read and taken into account their victim impact statements.

7As to your moral culpability, I also see it to be at lower than what is usually the case with armed robberies.

8As to your personal circumstances, your counsel, in her comprehensive written plea, outlined the considerable catalogue of compelling mitigatory matters. 
I note the disadvantage and trauma of your childhood.  The trauma, as outlined in the expert medico-legal psychologist's report, Mr Cummins, at paragraph 21, remains a factor that adversely affects you.  I do not consider it necessary to elaborate.

9In your adult life, you were bedevilled by excessive drinking to the point of frank alcoholism.  You also used cannabis in your teens, and later, amphetamines.  In the week before this crime, you took up smoking methylamphetamines.

10You have two children from two relationships.  The second of those was involved - your partner in that relationship, I should say, was violent to you. 
The relationship ended at the time of the offence.  And as we know, the difficulties of those who face domestic violence, even when those partners leave them, it causes psychological difficulties and chaos.  And that is where you were at the time of this offending.  So the role of domestic violence and your ex-partner's effect on you are not unconnected to how you deteriorated to the point of committing the crime.

11What is most stark and encouraging is your very significant rehabilitation since your offending.  Your counsel's written submission skilfully put it in this way.  Just bear with me.  Paragraph 29 of her outline of submissions, she says:

"In January 2017, Ms Sclater was alcoholic dependent, experiencing emotional turbulence because her partner had recently left her, and she was endeavouring to care for two young children on her own.  She'd been subjected to domestic violence for six years, from a recently separated partner.  She was experiencing difficulties and alcohol addiction, and was using methamphetamines.  She was unemployed, not receiving counselling for emotional stresses and difficulties she was experiencing, and was irregularly using anti-depressive medication."

12The submission goes on to say, or highlight, your circumstances now; that is, 18 or more months since the offending in January 2017.  It notes that you have your two children with you in full-time care.  They had previously been removed from you following the offending in February 2017.  No small matter for a mother.

13You had gained employment and remained in employment for about six months.  That was a significant period of time of employment for you, the first of some length, but you ceased that work to return to be a full-time carer for your two children.  Your oldest child is at a special development school, and your youngest child has just started school.

14You started to receive and did receive significant counselling from Mr Parkinson of the St John of God Hospital.  You received counselling from a consultant psychiatrist that you were referred to and you reviewed every six months, and
I read his report.  I think it is his report, or the report of Dr Anakie.

15Of course, you have not committed any offences since this.  You have been - and most importantly, you have abstained from drug use and alcohol use.  Abstinence from alcohol use for an alcoholic is no easy thing.

16You have sought out and have become committed to a range of supports, being the Freedom Church.  You work with a drug and alcohol counsellor who is described as the "reunification officer", and I have referred to her report, and you have intensive family services provided to you by Ms - again, I think it is
Ms Campbell.

17MS SMITH:  Mister.

18HIS HONOUR:  Mr Campbell.  Elijah Campbell, who says this:

"Over the period I've engaged with Mr Sclater professionally, I've observed her to make large improvements in her life.  Since Kate has had full-time care of both her children, she's been actively engaged in family services and the church community.  Within this time, she's demonstrated pro-social values with her main focus being on her children and the Church."

19Your counsel's written submission goes on that you are motivated to look after your children and remain free of criminal trouble or anti-social behaviour. 
You hope to commence and complete a Diploma in Community Services.

20There are concerns you have about your sister's health, and there have been positive outcomes since the commission of the armed robbery, which prompted you to cease drinking and cease any experimentation with methylamphetamines.  You take care of yourself much better, including, and most importantly, I would think, your mental health.

21Your counsel submitted that all sentencing purposes could be satisfied by the imposition of a community corrections order.  She relied on a detailed analysis of the important guideline decision of our Court of Appeal in Boulton v The Queen.  Plainly, a community corrections order can punish sufficiently the crime that you committed.

22And in your case, there can be enhancement of your already positive progress to rehabilitation by reason of you being on an order, should you breach it, then there would be a high likelihood you would be placed in prison, putting to an end your rehabilitation.  So the fact of a community corrections order can operate to enhance your already positive steps in rehabilitation.

23Usually, a community corrections order with unpaid work, which I will order, would be combined with specific treatment programs.  In your case, you have undergone such programs and continue to do so without being mandated by a court.

24It seems to me that you will continue with mental health assessments and treatment via your general practitioner and your treating psychiatrist.  You are undergoing drug and alcohol treatment - in particular, alcohol treatment in the sense of dealing with it via all the counsellors you see.  It seems to me it is not necessary to mandate that you do that via the Office of Corrections.  In my view, it is likely they would dovetail into those programs, in any event, without establishing any new ones.

25I have no doubt that you would be assessed as suitable for any community corrections program.  You have few prior convictions and none of them are relevant.  I have full confidence that you will grasp this opportunity on a community corrections order to ensure that you never return to the courts again.

26What I intend to do is, you will be convicted and placed on a community corrections order for one year - 12 months.  I take into account the long delay that has occurred since you pleaded guilty to this offence until this time in establishing the length of time of the community corrections order.

27You will have to do - given all the other things that you are doing, and looking after children, which is no easy matter with the ages and the difficulties they confront - you will have to do 75 hours of unpaid community work.

28Had you pleaded not guilty to these offences - I am not sure I have to announce this by operation of law, but I do anyway - I would have imposed a gaol term of nine months.  So it is more difficult in the sense that they are a claim of right, but nonetheless, you should see that your plea of guilty has been of very significant benefit to the community by reason of you not running a trial.

29You have been asked - an order has been sought by the prosecution that you pay some money back to the victims.  I will order that you pay $60 to them.  That is a matter that - you will see documentation about it, but - who does she pay it to you?

30MR HEVEY:  The informant, Detective Senior Constable Gwynn.

31HIS HONOUR:  You will give that money to the informant.  All right?  Ms Smith will help you through that.  Is there any other orders required?

32MR HEVEY:  No, thank you, Your Honour. 

33MS SMITH:  No, Your Honour. 

34HIS HONOUR:  Ms Smith, I am very grateful to you for what I hope you have understood is probably the most comprehensively put-together plea that I have seen in a long time.

35MS SMITH:  Thank you, Your Honour. 

36HIS HONOUR:  Ms Sclater, a document is produced.  Come out of the dock and if you sign that - now, there are conditions that apply to every community corrections order.

37You must not commit an offence for which you could be imprisoned during the time that the order is in force.  Well, do not commit another offence at any time from now on.  But if you do in the next 12 months, well, you will come back before me.

38You must comply with obligations and requirements under sentencing regulations.  I am told that means that the Office of Corrections will need to get a photograph so they can identify who you are and that sort of thing.  So just cooperate with that.

39You must report to and receive visits from the Office of Corrections.  You must report to the community corrections centre within two clear working days. 
The correct address is now on this form, down in Raglan Street.  So go there as soon as possible.

40You must tell the community corrections people if you change your job or your address.  You cannot leave Victoria without getting their permission, and you must obey all lawful instructions and directions.

41In addition to those mandatory terms and conditions, a specific condition that applies to you is that you must perform 75 hours of unpaid community work over 12 months.

42If you sign that, it brings the matter to an end.  Thank you.  You will get a copy of that.  Is there anything else required in this matter?

43MR HEVEY:  No, thank you, Your Honour.

44HIS HONOUR:  Can I just say that in general terms, that was the point that Judge Hannan and myself had in getting lawyers to do outlines of their plea in advance:  so that matters like this, which would, but for a knife, be done in the Magistrates' Court in this sort of timeframe could be done.  So I am very grateful it was done as it was.

45MS SMITH:  Thank you, Your Honour. 

(At this stage the court proceeded with another matter.)

46HIS HONOUR:  Is Ms Sclater all right to stay here for a moment longer.?

47MS SMITH:  Certainly.

48HIS HONOUR:  Yes, all right. 

(At this stage the court proceeded with another matter.)

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