Director of Public Prosecutions v Spencer
[2021] VCC 804
•11 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-02320
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHANTELLE LOUISE SPENCER |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 June 2021 |
DATE OF SENTENCE: | 11 June 2021 |
CASE MAY BE CITED AS: | DPP v Spencer |
MEDIUM NEUTRAL CITATION: | [2021] VCC 804 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence.
Catchwords: Plea of Guilty – Koori Court Jurisdiction – False Imprisonment – Causing Injury Recklessly – Common Assault – Possession of a Drug of Dependence – Handling Stolen Goods – Prior Criminal History –Aboriginal Offender – COVID-19 Pandemic – Bugmy Factors.
Legislation Cited: Bail Act 1977 (Vic); Sentencing Act 1991 (Vic).
Cases Cited: Bugmy v The Queen [2013] HCA 37.
Sentence: 280 days imprisonment with an 18-month Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet with | Office of Public Prosecutions |
For the Accused | Mr J. Lowy | Docherty Legal |
HIS HONOUR:
1Chantal Spencer, you have pleaded guilty in the Koori Court of the County Court to one charge of false imprisonment which carries a maximum penalty of
10 years, one charge of causing injury recklessly which carries a maximum penalty of five years, one charge of common assault which carries a maximum penalty of five years, a charge of possession of a drug of dependence which carries a maximum of 12 months, and a charge of handling stolen goods which carries a maximum of 15 years.2You have admitted a relevant criminal record.
Circumstances of Offending
3The facts of the matter are set out in some detail in Exhibit A, which is the prosecution opening for the sentencing indication dated January 2021. I have relied upon that document - 19 January 2021 is the date of that document - that sets out the facts of the matter and forms parts of these reasons for sentence. I am not going to repeat that document in detail.
4In brief, you behaved in a very aggressive, violent, and demeaning way towards the victim, Donna Marie[1]. You violated her person by imprisoning her and assaulting her. It was a terrifying, humiliating, and painful ordeal for her. I am satisfied you feel appropriate shame for your conduct.
[1] A pseudonym.
5In very brief terms, the false imprisonment commenced when you approached victim when she was on the bed in the loungeroom. You aggressively removed her clothing, tied her hands together using a t-shirt, and her legs together using a rope. She had a piece of cloth around her mouth. You placed cushions over her face which restricted her ability to breathe. You hit her to the head and face region multiple times causing bruising to her left eye and cheek. That is the recklessly causing injury.
6Every time she tried to get up, you punched her back down. You punched her numerous times in the lower stomach region. You were trying to find some drugs. You found drugs nearby her, before assaulting her again. That is common assault.
7She was tied up for a lengthy period of time before she was able to escape when you fell asleep.
8In relation to handling stolen goods, investigating police located a passport in the name of Herry Saswanto, which had been earlier stolen in a burglary committed on his house.
9When they arrested you during a search, you were attempting to conceal a small bag of methylamphetamine in your mouth; that is the charge of possession of a drug of dependence.
10You also pleaded guilty to the relevant summary offence of committing an indicatable offence whilst on bail, because you were on bail at the time for unrelated offences.
Gravity of Offending
It is a serious set of offending. Serious offences which, as I have said, had a significant impact upon your victim. It was all to do with drugs. You were under the influence apparently at the time of methylamphetamine and of course, the precipitator of the offence or the motivation for the offence was your perception that Ms Marie was hiding something in relation to illicit substances.
11Your criminal record is one that reflects a lengthy and longstanding problem with illicit substance abuse.
History of the Proceedings
12You were on remand for this matter from when you were arrested on 17 July until I granted you bail on 22 April last year. That is some 280 days.
13The matter came before me for a bail application in late March or early April last year, shortly before a special hearing was listed in relation to this matter. That special hearing was then vacated due to the pandemic.
14I did not grant bail initially due to a concern in relation to your accommodation. But on 22 April, I granted you bail on strict conditions. A significant feature of granting bail related to your separation from your children and plans to try and reintegrate yourself into their lives. But also your background, including your experience as an Aboriginal person in the community and in custody, is a relevant factor under the Bail Act and it was certainly a pertinent factor once you had stable accommodation to release you, given the delays that were likely to take place in your matter.[2]
[2]Bail Act 1977 (Vic) (“Bail Act”).
15You have successfully remained on bail for over a year. Your frustration with DHHS - I think it is DHS now - regarding access to your children and in particular, infant twins, has continued. This is a matter that has caused you great distress whilst on bail. But nonetheless, you have maintained your status on bail for over a year, as I have stated.
16It took some time to resolve your matter. At the first bail application, I was told your matter would be a plea to all but the most serious charge. As I understand it, that is the basis on which it has now resolved. As I indicated at your plea, your counsel, Mr Lowy, and Mr Sonnet for the prosecution, and his instructors, deserve credit for resolving this difficult matter at a time when special hearings and trials could not be held.
17A sentencing indication was listed before me and as you know, I indicated at that sentencing indication that I would impose a combination sentence not exceeding the period of time you had served, which is 280 days, part of which was during the COVID pandemic, with all the uncertainty and anxiety that was associated at that time.
18Also, the significant restrictions on visits and activities within the prison and your separation from your children were significant factors in the indication I gave, as was what can inadequately be described as Bugmy factors in your case,[3] or just as inadequately described as factors relating to Aboriginal disadvantage, which I will come to in a moment.
[3]Bugmy v The Queen [2013] HCA 37 (“Bugmy”).
19Your plea of guilty, of course, and the significance of the utilitarian value of such a plea in the circumstances we have been in, particularly given the state of criminal trial lists and other matters, were all features leading me to indicate that a combination sentence of time served plus a Community Correction Order was appropriate in your case.
20In particular, whilst it was a sentence that nonetheless reflected the gravity of your offending and I was satisfied that it reflected the need for general deterrence and specific deterrence in your case, as well as denunciation of the offending, it was also a sentence that was appropriate given the need to break the cycle in your case, or try and break the cycle of illicit substance use and other factors leading to criminal offending and further time in custody.
21Whilst it was not a determinative factor, I have also considered that in a case such as yours, where a combination sentence is within range and time served is within range, the shocking overrepresentation not only of Aboriginal people, but in particular of Aboriginal women in custody, is another sound reason for the indication I gave.
22Since you were a child, you have been one of the far too many Aboriginal children who have found their way into the criminal justice system and have been in and out of custodial settings. In your case, I did ask your counsel prior to the matter being booked in for Koori Court, if I could be provided with the criminal history dating back to your childhood, and that was done. It notes that your first interaction with the criminal justice system was at the age of 12.
23It is a sad fact, that that history and experience continues to this day, and only yesterday, I was reading the report, Our Youth Our Way - The inquiry into the overrepresentation of Aboriginal children and young people in Victoria in the Youth Justice System.’ Your experience from a young age has been one of trauma and exposure to violence and drug and alcohol abuse. Also, unstable housing and unstable family relationships.
24Your experience has been sadly typical of many young Aboriginal people in our community; it is an experience which often leads to custody either by way of remand or by sentence. It is an unacceptable and often misunderstood legacy of the colonial experience and the history of dispossession, subjugation, and discrimination that has been part of the Aboriginal experience in this country. Your life and in particular, your early childhood, contains many examples of trauma and exposure from a young age to disadvantage and negative influences.
25Your personal circumstances are set out in Exhibit 1, which is the helpful defence outline of submissions prepared by your counsel, Mr Lowy, and relied on during the sentencing indication and the plea. It sets out in particular, as I mentioned, that your six children are a central aspect of your motivation to rid yourself of not only illicit substance abuse, but also the offending which has gone hand in hand with your drug problem over the years. Your children, Dylan, Jordan, Taliah, Angel, and the twins, Jaylin and Dominic, are clearly very important for you in your life. The twins are around 20 months of age.
26During the bail application, I also heard about Taliah, who is studying, and the other children who are in state care. During the sentencing conversation in the Koori Court, you discussed the difficulties with Angel being hospitalised weeks ago and your frustration at not being able to stay in the hospital once DHS turned up.
27It clearly caused ongoing trauma and frustration for you and they are matters for which it is a challenge for you to not slip and resort to drugs and alcohol to deal with the frustration. That in turn, of course, leads to criminal offending in your case.
28I am not going to go over all the personal circumstances set out in your history, and also in the report of Carla Lechner dated 5 March 2021 which was tendered on your plea. I was told that you were the subject of trauma as a child. These matters are referred to at paragraph 12 of the defence outline in relation to abuse and sexual assault whilst homeless and as a child. You were homeless and living on the streets of Melbourne as a child and it is at that time that you began using heroin. There are more details of your childhood experience set out in the materials, but I will not recite them in this sentence.
29The report of Carla Lechner notes your history of longstanding and chronic drug addiction, underlying symptoms associated with complex developmental trauma, depression and anxiety. Ms Lechner states that you currently present with symptoms of stimulant use disorder in partial remission on account of reported reduced consumption, and provisional diagnosis also of borderline personality disorder. Ms Lechner went on to say that you would benefit from involvement with treatment services.
30Your counsel made a number of submissions in relation to mitigating factors in your case, in particular, the period you had spent in custody of 280 days as being a specific deterrent effect in your case. You were away from the infant twins and four other children and that has had a significant deterrent effect upon you. Your successful navigation of bail for over a year, as I have stated, gives me further confidence in that regard.
31Your prior criminal history, it was submitted, discloses matters less serious than the current offending and that is clear from the record. It is also clear that you served the entire 15-month sentence for the most serious matter in your record, which is the 2017 armed robbery. That was raised by your counsel in the context of a submission, that the risk of institutionalisation is always a consideration in a case such as yours.
32I am satisfied that your prospects of rehabilitation, whilst I am guarded about them, you do present now as someone who, despite the difficulties that you are still navigating, is really determined to try and do something about your drug use and to reintegrate with your children. Mr Lowy also made submissions in relation to your background of social deprivation which I have touched upon, and the Bugmy factors. Also, the impact of trauma which has not diminished over time. They are matters that I accept.
33I accept that your plea of guilty in the context of the way the matter resolved, which I have already touched upon, can be regarded as a significant plea of guilty and a relatively early one.
34The Community Correction Order assessment noted further that you have an acquired brain injury received after a car accident some 15 years ago. One matter that was raised in the sentencing conversation by Auntie Pam Peterson related to NDIS funding and that is a matter that through Corrections and through judicial monitoring I can check up whether there has been any progress made. It is a matter that I expect Corrections can assist you with in trying to progress that funding.
35I was assisted greatly in this case by the detailed prosecution opening for plea dated 19 January 2021, which was really an opening for the sentencing indication, and the sentencing indication submissions by the prosecution - Exhibits A and B. Also, as I have stated, the defence outline which is Exhibit 1. I was greatly assisted by both of those matters.
36Defence have made a submission that the combination of time served and the Community Correction Order is the appropriate position in this matter. In all the circumstances, the prosecution accepts that such a sentence falls within the permissible range, thus it is open for the court to indicate that upon the entering of a plea, the court would not impose a sentence that would require the accused to serve a sentence that requires immediate imprisonment.
37The prosecution conceded some matters in mitigation. The prosecution conceded the mitigation available due to social deprivation. The prosecution did not take issue with the matters raised by defence in relation to family hardship, and the prosecution conceded that you are entitled to a significant discount by virtue of the plea of guilty, primarily on utilitarian grounds.
38The sentencing conversation was a matter you took part in and committed to. It is often not an easy process. In your case, it was not either. You were challenged and you participated fully in that conversation and rose to the challenge. You spoke up for yourself and explained yourself. You were challenged in particular in relation to the long drug history, and when you were going to do something about it.
39It was raised with you whether residential rehabilitation was an appropriate next step for you. But you were quite strong in explaining that you are dealing with it as best you can. You are reducing use, and you explain why in your view, residential rehabilitation was not going to work.
40Having listened to that aspect of the conversation, I was satisfied, and I am satisfied, that the best way forward for you is a Community Correction Order, where you remain where you are in the community with access to drug rehabilitation and treatment services in the community. You continue to access those supports and reduce your use and rehabilitate under your own steam, so to speak. In your particular case, at this particular point in time, I am satisfied that that is the best way forward for you.
41You told the Elders in the conversation that you were down to below half your usual use. You wanted to get involved with mother-child programs to help the family connections. You expressed and discussed the great frustration that you have in relation to your twins. I think you last saw them in January 2021.
42It seems to be frozen. Sorry, can you hear me still, Ms Spencer? You can hear me good.
43OFFENDER: Sorry, I put it on mute. Sorry, just didn't ‑ ‑ ‑
44HIS HONOUR: We are nearly towards the end. All right. You explained the great frustration you had in relation to DHS and it was apparent to all in the court what a significant matter that is for you and what an emotional aspect it is for you. You indicated you are committed to pursuing that reintegration and guarding against relapse into drug abuse during times of stress.
45It was an important part of the conversation that you were confronted in that way, and that you responded in the way that you did. It was challenging and emotional and that was apparent to all.
46The conversation ended on a positive note when the prospect of you attending the local art gallery and engaging there was discussed, and that is something which it seems is going to take place in the future. You have got an interest in participating in that and engaging with your Aboriginal heritage will be a positive and purposeful factor in your life as you move forward with the support of the Community Correction Order.
47So, I have taken into account your participation in the sentencing conversation. You opted to come into Koori Court when I had already given the indication outside of Koori Court. It was significant that you wanted to come and participate in the Koori Court conversation and it took some time to arrange that, and it is a matter that I take into account very much in your favour.
Sentence
48I will now turn to sentence, Ms Spencer, and as I have already stated, they are serious matters. It is serious offending and it had serious impact upon your victim, Ms Marie. I am satisfied you have appropriate shame for it and remorse. The community has to denounce the conduct by the sentence I impose. I have to deter others and yourself. I also take into account the matters that I have set out in mitigation.
49I am satisfied that having regard to all of those factors, it is appropriate that I sentence you as follows to an aggregate sentence in relation to all the matters before me. You are sentenced to a period of imprisonment of 280 days, together with an 18-month Community Correction Order with the conditions that I will come to.
50I declare that you have served 280 days as pre-sentence detention; that means that you can enter the Community Correction Order today. Do you consent to such an order, Ms Spencer?
51OFFENDER: Yes, Your Honour.
52HIS HONOUR: Thank you. I will now tell you the terms and conditions of it. There will be supervision you will be subjected to. Judicial monitoring initially in three months from today. I want to hear how you are going and also see whether there has been any progress made in relation to NDIS funding. I will require you to do 75 hours unpaid community work, but up to 50 hours of the treatment and rehabilitation conditions can be credited towards that.
53I direct the following treatment conditions: alcohol treatment and rehabilitation, drug treatment and rehabilitation, mental health treatment and rehabilitation, and programs to reduce reoffending.
54So, that is going to be quite a structured and demanding program over the next 18 months, Ms Spencer. You consent to it? All right.
55Pursuant to s6AAA, had you not pleaded guilty to these matters I would have imposed a total effective sentence of four years with a non-parole period of two and a half years.
56We are now going to have the Corrections order prepared. The first judicial monitoring date will be three months from today or thereabouts, so that is August. Sorry, it needs to be September, does it not? So, we will make it
10 September for the first judicial monitoring, and you can appear remotely. You do not have to come down from Shepparton for that. You can appear remotely but I want to hear from you and Corrections on 10 September at
9.30 am as to how you are going, and whether there are programs available and what is happening in that regard.57But I urge you, Ms Spencer, to also take up the opportunity that was discussed at the sentencing conversation to get down to the gallery and meet Auntie Laurel again and Auntie Pam will check up on you I am sure. That will be something that will be really good for you going forward I think. But most importantly, you have got to abide by this Community Correction Order. It is not a soft option. It is a detailed order. It is punitive.
58It is going to keep you under supervision and I am quite sure there is going to be many occasions when you are going to wish you were not on it. But you are just going to have to tough it out and commit to it and do it because it is in your best interests. Hopefully at the same time there will be a bit of resolution with family contact. It is demanding, but it is there to provide an extra layer of support to put you in a much better place in 18 months than you are now.
59OFFENDER: Yes.
60HIS HONOUR: All right.
61OFFENDER: Yes, I've actually got me son with me at the moment, so yeah.
62HIS HONOUR: Right. Hello. All right. So, that is going to be sent to you. You have got to report to Corrections. Mr Lowy can help explain all of that to you. But I do not want to hear there has been any confusion or muck up or anything like that. You are going to have to make sure you know what you are doing and when you are doing it. Keep them happy. I will see you on 10 June to see how you are going. Sorry, 10 September, to see how you are going with it.
63Now, Mr Lowy, is it Ms Jankovic, is it? I was going to say Mr Sonnet. But
Ms Jankovic, sorry.64MS JANKOVIC: Ms Jankovic, Your Honour.
65HIS HONOUR: I did not - it is different when we are all not in court. Look, there has been a media request for the indictment, the opening, and the defence outline. It is my practice to give the plea opening, which would have been the January 21 opening, and the indictment. I only give the defence outline if defence wants it to be given. You do not want it to be given, Mr Lowy? All right, look, unless there is any submission made, it is an open court, so I am going to release the other documents.
66MS JANKOVIC: As Your Honour pleases.
67HIS HONOUR: Mr Lowy?
68MR LOWY: As Your Honour pleases. Your Honour, there was just one further matter. In respect of Ms Spencer's signing the - sorry, I just put myself on mute by mistake.
69HIS HONOUR: In relation to her signing it, yes?
70MR LOWY: Yes.
71HIS HONOUR: All right, look, the oral consent she has given to me ‑ ‑ ‑
72MR LOWY: Got you. Yes.
73HIS HONOUR: ‑ ‑ ‑ I mean, I can read it out, the full thing to her. But the oral consent she has given to me, the Sentencing Act allows, it does not demand that it be signed.[4] The Sentencing Act provides it has to be consented to, and a signature has traditionally been the way of establishing that. But the oral consent that she has given places her on the order now that I have made, and the registry will stamp that and send it. So, it is fully processed and authenticated without her signature. So, she is on it.
[4]Sentencing Act 1991 (Vic) (“Sentencing Act”).
74MR LOWY: Understood.
75HIS HONOUR: All right. So, she is on the order now, and she will be subject to that order and have to contact Corrections in the normal way,
Mr Lowy. All right?76MR LOWY: Yes, Your Honour.
77HIS HONOUR: All right. Unless there is anything else, we will adjourn the court.
78MS JANKOVIC: Your Honour, just in relation to the opening being disclosed, I just note, Your Honour, that there is addresses and some identifying features in the opening, if they could be redacted?
79HIS HONOUR: Yes, and there is also - yes. Ms Marie should not be identified, even though I referred to her in the sentence. In my published sentencing remarks her name will be anonymised. So, we will redact all of that. Thank you, Ms Jankovic.
80MS JANKOVIC: As Your Honour pleases.
81HIS HONOUR: All right. Yes, we will adjourn the court.
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