Director of Public Prosecutions v Spencer

[2017] VCC 115

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01969

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHANTAL SPENCER

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 February 2017
CASE MAY BE CITED AS:	DPP v Spencer
MEDIUM NEUTRAL CITATION:	[2017] VCC 115

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Hill	Office of Public Prosecutions
For the Accused	Ms J. Clark	Valos Black & Associates

Pages 1 - 6

 

 

HIS HONOUR: 

1Chantal Spencer, around 5 am on 19 August 2016, while you were under the effect of drugs, you went to the rear of a Chinese takeaway shop in Shepparton.  There, for some unknown reason, you took a metal exhaust fan.  The owner was awoken by the noise you were making, confronted you and your reaction was to greatly escalate your offending by producing a knife and telling him you would kill him. 

2You ran and were caught by local police as you were pushing a shopping trolley with the fan in it some short time later.  You were with some unknown man.  Upon your arrest, you were found with a small amount of methylamphetamine.  You have pleaded guilty to one charge of armed robbery and one charge of possession of amphetamine. 

3You are now 34 years old.  You have over the years accumulated many prior convictions, most resulting, in my view, in merciful penalties seeking to assist you to overcome lifelong addictions to drugs.  Unfortunately, you have not taken up all the opportunities that have been afforded to you. 

4In fact, the offending on 19 August 2016 breached a community corrections order that I placed you on following your appeal from sentences of imprisonment imposed by a magistrate for dishonesty and most troubling violent offending. 

5You are an aboriginal woman raised in Shepparton by your mother.  A neurological assessment in 2012 by Dr Vowels, the neuropsychologist, reveals problems with organisation, memory and cognitive capacity.  You were assessed in the borderline range of intellectual disability.  The latest report from a psychologist is from Ms Cidoni which saw stronger results in respect of your intellectual capacity. 

6However, in my view, you have lifelong intellectual problems and they have been taken into account by me in determining the sentence I am about to impose.  The weight therefore to be given to denunciation and deterrence both generally and specific to you have been moderated as a consequence of your intellectual deficits.  You have limited education and no work experience of note. 

7You were first pregnant at 17 and have had four children.  The Department of Human Services has been involved with your family for some years.  You have a long-term addiction to opiates, most prominently pharmaceutical opiates.  You have taken to ice in more recent years.  You have complex psychological and psychiatric problems involving significant depression, anxiety, hostility and suspiciousness and at times, delusions.  You have reported bizarre thoughts and auditory hallucinations. 

8To be more precise, Ms Cidoni described your mental health in her report in this way: 

"There were also signs of poor mental health and the evidence of chronic mood instability with depression at one end and mania at the other, possibly bipolar in nature.  Anxiety has emerged in response.  She has concerning psychosis which may be drug-induced. 

"There is evidence of maladaptive coping with difficulties in her life, resorting to substances over the years as a form of self-medication and escape.  She has considerable lack of psychological resources when dealing with problems and the stressors as they arise in her life.  Her symptoms are distressing, exhausting and significantly interfere with her daily function.  Drug use results in disinhibition and reality can be quite distorted. 

"She has not used illicit drugs since she was arrested, yet she continues to show concerning psychopathology.  Clear thinking remains impaired and her ability to make decisions seems very reduced to the present day."

9All that said, you have had some solid efforts of abstinence in drugs and rehabilitation over the years.  Your period of engagement with Odyssey House was positive but you did subsequently relapse. 

10You have been treated by the dedicated general practitioner, Dr McCartney, in Shepparton since 2014.  He is despairing that in the last 12 months the methadone program has ceased in Shepparton, with your only dispensary now in Mooroopna - some 14 km away from where you live.  You were unable to get to Mooroopna and your adherence to your rehabilitation and methadone program fell away. 

11I am guarded about your prospects of rehabilitation.  You have had opportunities to reform but have not been able to remain drug or crime-free for any length of time. 

12I had you assessed for a further community corrections order at the request of your counsel.  Having examined all the material, in particular, the recent breach reports and your adherence to the recent community corrections orders other than those that I imposed, led the community corrections officer to conclude that you are not suitable for a further community corrections order. 

13Your counsel, today, submitted that I should nonetheless place you on a community corrections order, notwithstanding the unfavourable recommendation.  She outlined her reasons for that. 

14Regrettably, I remain of the conclusion that in the end I agree with the community corrections officer.  It would, in my view, be setting you up to fail to place you on another community corrections order of any length.  It would not properly recognise the seriousness of the armed robbery that you committed and the other offences that led to the community corrections order that I imposed.  

15You have been on remand for 180 days or six months.  While hard it is being a period of abstinence, it may allow you to consolidate once you are released.  You have done all you can while in custody in respect of courses and that is to your credit.  Importantly, you have taken up art and it is something that helps your anxiety.  Hopefully, you can continue with that upon your release.  I encourage that.

16In respect of the breach of the community corrections order, it was comprehensive and in all the circumstances, what is required is in my view a term of imprisonment for the original two offences.  I take into account the principle of totality and ensure a proper measure of concurrency for all your offending.

17The appropriate denunciation or weight to be given to denunciation for your brazen armed robbery, together with the moderated measure of deterrence, in my view, lead to the one conclusion.  There must be a term of imprisonment.  Your rehabilitation is not overlooked, though sadly, as I have said, your future is one that I am guarded about.

18Your pleas of guilty to the armed robbery, possession of amphetamines together with the acknowledgement that you breached the community corrections order means that your sentences that I am about to impose are lower than they otherwise would have been. 

19However, in order to meet the gravity of the offending on the indictment - being the armed robbery in particular - and all other sentencing considerations, in my view, a term of imprisonment is the only appropriate sentence. 

20In respect of whether this should be combined with a community corrections order, I have considered that and the reasons provided by the Court of Appeal in a number of judgments, in particular Boulton v The Queen, as to the importance of terms of rehabilitation of community corrections order. 

21However, in my view, in all the circumstances, given your past history, this is a time to allow you to do a sentence of imprisonment and be assisted if granted parole by those who look after parolees.  They will be able to, I hope, assist you with the work that is done by the Odyssey House outreach program in Shepparton, together with the other matters that you might take up in terms of housing and in terms your art. 

22Doing the best I can, I impose the following penalties. 

23In respect of the armed robbery, you are sentenced to a term of imprisonment of 15 months.

24In respect of the possession of amphetamines, you are sentenced to seven days.  

25In respect of the breach of the community corrections order, it is proven and I cancel the order and re-sentence you to an aggregate term of one month on Charges 2 and 5 which were the original offences.  Thus, the total effective sentence for the community corrections order breach is one month.

26For the offence of breaching the community corrections order, I impose a sentence of one month imprisonment.  However, that will be concurrent with the sentence of one month that I have imposed in re-sentencing you for the original offences - Charges 2 and 5.  Thus, the sentences for the community corrections order breach are a sentence of one month.

27I order that this sentence be cumulative upon the sentence that I have imposed of 15 months on the indictment.  Thus, the total effective sentence that I have imposed is 16 months.

28I order that you serve eight months before being eligible for parole.  You have been on remand for a period of time of 180 days.  That has been reckoned and this period of 180 days is attributable to the sentence that I have just imposed.  I will ensure that this declaration that I have just made be entered into the records of the court so there can be no doubt that you have already served
180 days or six months of the sentence that I have just imposed.  If you are eligible for parole at your earliest release - that will be effectively a couple more months, however, whether you are granted parole is for others, not me. 

29Had you pleaded not guilty to the offences on the indictment or sought to plead not guilty to the community corrections order, I would have imposed a much lengthier sentence which in the aggregate would have seen you in prison for
30 months, with a minimum period of 20 months. 

30There are other orders relating to disposal and in respect of the taking of forensic samples and - I intend to make the order for disposal and make the order relating to the taking of a forensic sample.  The reasons that I make the order relating to the forensic sample is because of the seriousness of the circumstance of the offending warrant the order and the prior convictions you have also add to that, together with the fact that the granting of the order is in the public interest. 

31I will sign those orders in due course.  Is there anything further?

32COUNSEL:  As Your Honour pleases. 

33HIS HONOUR:  Thank you.  I will just hand back the order that seeks - when she was released.  Now, in respect of the forensic sample, I have to inform you that at the time that the authorities at the prison come to take the sample from you - it is just a scraping from your mouth.  They are authorised to use reasonable force to ensure that the procedure is successful if you do not cooperate.  The way through it is just to cooperate with it as you indicated you would. 

34All right.  I will provide that document.  You will get a copy of that.  Is there anything further?

35COUNSEL:  No, Your Honour.  

36HIS HONOUR:  Thank you very much for your assistance this morning,
Ms Clark.  It was very significant assistance.  Thank you.

‑ ‑ ‑