Director of Public Prosecutions v Smith
[2019] VCC 273
•13 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTIONCR-18-02557
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
AMANDA EUNICE SMITH
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 18 February 2019 |
| DATE OF SENTENCE: | 13 March 2019 |
| CASE MAY BE CITED AS: | DPP v Smith |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 273 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr A Moore | OPP |
| For the Accused | Ms T Theocharous | Kurnai Legal Practice |
HIS HONOUR:
1 Amanda Smith, you have pleaded guilty to one charge of aggravated burglary and one charge of common assault.
2 The maximum penalty for these offences are – aggravated burglary, 25 years' imprisonment; common assault, 5 years' imprisonment.
3 At about 12.10 am on 15 July 2018 you attended at 63 Amaroo Drive, Churchill. The victim, Tracy Froud resided at that address. Her partner is your cousin. She was asleep in the lounge room as were her son and a family friend. You woke them all by banging on the windows and screaming “Tracy let me in.” You smashed four windows on each side of the front door and a lounge room window. You entered the house through the smashed lounge room window carrying an axe handle and yelling “Where’s Scotty.” Scotty was your boyfriend and he had attended the victim’s house for about an hour on the previous day.
4 The victim told you that Scotty was not present and that you could search the house. You did so and upon returning to the lounge room punched the victim to the left side of the face. This caused her pain. You left the house through the front door and drove away. The police arrested you at 5 pm on 22 July 2018. You have been on remand ever since.
5 Clearly, this is serious offending. It involves the unlawful entry into the home of another person with the intention of assaulting that person. The law regards such an invasion of another’s home as a very serious matter. In this case the victim was assaulted and suffered injury. Fortunately, she did not suffer a serious injury. General deterrence and denunciation are central aspects of sentencing in cases of this type.
6 You have a significant and relevant criminal history. It commences with an appearance at the Latrobe Valley Children’s Court in June 2009 when you were just 14 years old. You have been a regular offender in summary courts since that time. Your history includes appearances for serious offences such as robbery, intentionally cause injury and recklessly cause injury, reckless conduct endangering life and burglary. You have received probation orders, a youth detention order, Community Corrections Orders (CCO) and imprisonment orders. At the time of the current offending you were on a two year community corrections order, although I note that the current offending occurred in the last three days of that order.
7 Your counsel submitted that general deterrence should be given reduced prominence in this case because of your personal circumstances. He also submitted that notwithstanding your prior history, there were significant reasons why I should make an order focusing on your rehabilitation rather than upon deterrence and punishment.
8 I agree with those submissions and I do so for the following reasons –
· You are 24 years old and still a relatively young woman. You have spent 234 days on remand and during that time you have undertaken counselling and treatment for drug and alcohol abuse, you have maintained a drug free status and you have had a contact visit with your young son. Your son is two years old and is currently on a Care by Secretary Order. In the sentencing conversation you expressed strong determination to prioritise his needs in the future.
· You have had a very difficult life. A life of great hardship and deprivation. Your mother was only 17 when she gave birth to you. She had a significant substance abuse problem and you only remained in her care for two months. An old child protection report was tendered into evidence. It detailed your experiences of a transient childhood characterised by multiple caregivers and periods of child protection intervention. The report contains an allegation that you were sexually abused as a five year old. When you were 11 years old you were placed in a residential unit where you were introduced to the use of drugs and alcohol and met the young man who was to later become the father of your child. You have not been educated beyond primary school and you have never had employment. The ongoing abuse of drugs and alcohol has blighted your life. I agree with your counsel’s submission that your deprived background[1] is an important matter that mitigates your sentence.
[1] See William David Bugmy – v – The Queen [2013] HCA 37.
· Ms Lechner, a clinical psychologist, who assessed you on 29 January 2019, says this in her report - “Ms Smith presents with symptoms of Complex Development Trauma, Alcohol, Cannabis and Substance Use Disorder (all in early remission in a controlled environment), Major Depressive Disorder and Features of Borderline Personality Disorder. Her offending is linked with her chaotic lifestyle, involvement with other drug users, unresolved and untreated trauma and depression, all factors that undermine her judgement and decision making.” Whilst it is not submitted that your mental health issues allow the application of the Verdin’s principles, they are nonetheless relevant to your personal circumstances and should be taken into account in a general way, in determining your sentence.
· I am satisfied that you are very remorseful for your criminal behaviour. You made full admissions to the police and you pleaded guilty at an early opportunity. In addition, your plea has saved the victims from the trauma of giving evidence and saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.
· Finally, you consented to having the charges heard in the Koori Court. In doing so you agreed to participate in a process that involved appearing before Elders from the Aboriginal community. It was obvious to me from the way you participated in that process that you were genuinely sorry for what you had done and that you do have good insight into the issues in your life that you need to address. Clearly your drug and alcohol dependency is one such issue and appropriate engagement with therapeutic services is another. If you were able to act on your insights, your prospects for rehabilitation would be greatly enhanced. In this regard I agree with Ms Lechner’s assessment that you are in need of intensive therapeutic support.
9 Ms Smith, there are some cases where, notwithstanding the serious nature of the offending, the age and personal circumstances of an offender speak towards an order that offers intensive support and supervision, with the expectation that such an approach will assist the offender’s rehabilitation. If you are able to stop the cycle of offending then not only are you better off, so is the community. You have now done 234 days in custody and although there are still unresolved matters in the Magistrates’ Court, it does seem the right time to look at an order that balances the need for accountability with the prospect of your reformation.
10 You were supported in court by a drug and alcohol worker from the Gippsland & East Gippsland Aboriginal Cooperative. I asked him to ascertain if there were any residential drug treatment programs that could provide you with the intensive support that you need. The prosecutor did not oppose such a course.
11 You have been assessed as suitable to participate in the program run by Windana at their property at Maryknoll. The program provides residential drug treatment over a period of approximately 12 months. It is a comprehensive program offering therapeutic and educational support in a safe environment. I also had you assessed to see if your participation in that program could be supervised by way of a Community Corrections Oder. It can. While you are living at the Windana facility you will not be required to report to the Pakenham Office of Corrections. That office will liaise with Windana to ensure that you are complying with the residential condition and all other conditions of a community corrections order. Corrections have asked me to reiterate to you that you will be required under this order to reside at Windana. If you leave prior to completing the program, breach proceedings will be initiated and you will be brought back before me in this court.
12 Ms Smith, will you stand please? On Charge 1 you are convicted and sentenced to 234 days imprisonment and I make a declaration that you have served those 234 days. In addition, on Charges 1 and 2, you are released on a Community Corrections Order for a period of 24 months. You are required to report to the Pakenham Community Corrections Office within two working days of your release from prison. I have been advised by Corrections that that can be arranged by a phone contact from Windana.
13 The order will have the following special conditions –
· You are to be under supervision for the period of the order;
· You are to undertake assessment and treatment (including testing) at a residential facility for alcohol and drug abuse or dependency;
· You are to undertake mental health assessment and treatment; and
· You are to participate in offender behaviour programs, as directed.
14 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to an effective term of 3 years and 3 months' imprisonment with a minimum term of 2 years before you would be eligible for release on parole.
I make the disposal order sought by the prosecution and I also make an order pursuant to s.464ZF of the Crimes Act, that you undergo a forensic procedure for the taking of a scraping from your mouth. If you fail to cooperate in the taking of the sample, authorities may use reasonable force to obtain it and the sample may be a blood sample. I make this order because of the seriousness of the offending, your prior criminal history, the order is not opposed and it is in the public interest. So do you understand what has happened?
15 OFFENDER: Yes, Your Honour.
HIS HONOUR: A 234 day sentence on Charge 1, plus on Charges 1 and 2, a two year community corrections order. Importantly, that order requires you to live at Windana and complete the Windana program. And so Corrections will supervise that and as you know, the program can take anywhere up to 12, perhaps 15 months to complete. The whole purpose of the program is to assist you to deal with your drug and alcohol problems and to assist your reformation. Is that clear?
16 OFFENDER: Yes, Your Honour.
17 HIS HONOUR: Is there anything else, Mr Moore?
18 MR MOORE: No, Your Honour.
19 MS THEOCHAROUS: No, Your Honour.
20 HIS HONOUR: Ms Theocharous, you might have to liaise with Corrections just so that they understand that she is not going to be released until Friday.
21 MS THEOCHAROUS: Yes, Your Honour. I will do that.
22 HIS HONOUR: And then my understanding is that she can leave Latrobe Valley and go straight to Windana and then they will liaise with Pakenham.
23 MS THEOCHAROUS: I will make sure that happens, Your Honour.
24 HIS HONOUR: Yes, well thank you. Can I confirm that you understand what is going to happen, Ms Smith?
25 OFFENDER: Yes, Your Honour.
26 HIS HONOUR: You will go back into custody.
27 OFFENDER: Yep.
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HIS HONOUR: You will be taken to Latrobe Valley on Friday and hopefully,
Ms Theocharous will be able to persuade the magistrate to make orders that are consistent with mine. Thanks, Mr Moore, thanks, Ms Theocharous.
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