Director of Public Prosecutions v Stemphelet

[2019] VCC 143

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01461
CR-18-02598

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARA STEMPHELET

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 February 2019
CASE MAY BE CITED AS:	DPP v Stemphelet
MEDIUM NEUTRAL CITATION:	[2019] VCC 143

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	Ms A French	Office of Public Prosecutions
For the Accused	Mr R Backwell	Greg Thomas Barrister & Solicitors

HIS HONOUR: 

1Cara Lee Stemphelet, on Indictment ending 470, you have pleaded guilty to one charge of aggravated burglary and one charge of theft.  On Indictment ending 466, you have pleaded guilty to one charge of attempted theft; two charges of aggravated burglary; two charges of theft; one charge of obtaining property by deception; and one charge of attempted aggravated burglary.

2The matters are on two indictments because originally you came before me on Indictment ending 470 and it was ascertained that there were a number of matters outstanding in the Magistrates' Court and very sensibly, you have remained in custody for a period of time whilst all these matters were organised.  As I understand it, upon your release which will come today, you have no matters pending but I will worry about that at the time.

3The circumstances of all this are that you are 29 years of age.  You pleaded guilty at the earliest reasonable opportunity and indeed to the second indictment, where you could well have had a successful defence to most, if not all of the charges. 

4I accept that when you are well, you have appropriate remorse for the things that occur and obviously you get the utilitarian benefit of that plea of guilty.  That is further, an interest of justice so witnesses do not have to be called and all those sorts of things. 

5You do have a significant criminal history, which involved all sorts of offending.  It involved prison, it involved community corrections orders and every disposition known to man just about. 

6What I will do firstly is give a summary of the offending and then go through your personal circumstances. 

7Insofar as the first charges are concerned, on 11 April 2018, a family was sitting in their house in Keon Parade in Reservoir after eating dinner.  Their car was parked outside.  Mr O'Brien, who was the father in that family, went to the backyard to feed pets, left the door unlocked.  At approximately 9.55 pm, you entered the property through the front gate, walked along the side of the house and entered the house through the backdoor.  That gives rise to Charge 1 of aggravated burglary, that is, people present. 

8You walked into the bedroom of a child which was near the backdoor.  He saw you enter the room and sat up.  He asked you who you were.  You said, words to that effect of, "Don't be scared, I'm just here to talk to your mum.  Don't be scared."  You stayed in that room for approximately two minutes, then left the house and went out through the backdoor. 

9The child got out of bed and went to his father and said what had happened.  The father went to the room where there was a strong scent of perfume.  He had been told that you were there.  He could not see you.  He then telephoned 000.  He checked the house to see if anything had been stolen and then noticed that the interior light of the Holden Barina, his car that is, was out the front and that a walled containing the credit cards and the like had been taken. 

10He saw a bright coloured handbag on a chair on the back porch which did not belong to anyone, searched it and found shoes which belonged to the lady of the house, and an air freshener which had been in the car.  He also found a black Lonsdale jacket.  CCTV footage indicates you had been wearing that previously.

11At about 10 o'clock, PSOs at Keon Park railway station had seen you, said you were substance affected and were acting erratically, boarding a city-bound train.  On the basis of that description, communications were then made and it was discovered that you, behaving quite erratically, had taken up a seat outside the Reservoir Community Centre. 

12At approximately 10.20 pm, police attended and arrested you.  You threw away the cards that had been in the wallet.  You presented as highly agitated and were speaking nonsensically.  The police were told that someone had stopped to assist you, as you jumped in front of his vehicle.  Whether that was a suicide attempt or not, I do not know.  In any event, you were taken to the Heidelberg police station and were found not fit to be interviewed.  You were held and then you were bailed on June 21.

13You were at liberty for a few weeks and then the following happened:  Late on the night of 31 July 2018, a Martina Gemmola and her husband saw you sitting in her husband saw you sitting in her car which was parked in their driveway in Spring Street in Coburg.  A torch was shone through the window into your face, but you did not react.  You simply left on foot.  You did not take anything and had left a padlock in the car. 

14At 2 am on 1 August, that is early the next morning, you entered an apartment in Brunswick through an unlocked front door while the occupier was asleep.  You took a number of items, including a wallet, phone, hair dryer and a leather jacket which was on the lounge room table.  That man woke up at approximately 4.30 am, notice things were missing and a phone call was made. It seemed that you had used one of the credit cards to obtain objects.  That gives rise to a property by deception.

15After you had left his apartment at approximately 2.11 am, you attempted to enter another apartment in Brunswick through an unlocked door.  The resident there awoke and prevented you from entering by placing her hand on the door.  You asked her apparently whether she had a cigarette lighter and whether she knew of a house with a white door.  You then simply walked away. 

16After leaving that house, you entered a house in Hutchinson Street in Coburg and there was a person home.  You removed a number of items from the fridge, including a Pepsi can, which you drank from.  It has been noted your DNA was found on that can, which is effectively how you have been identified.  You took a handbag with you, but dropped it on a nearby front lawn. 

17At 6 am on that morning, you attended at another address in Brunswick, where you took off your Ugg boots and put on a pair of shoes values at $80 and you then departed the scene. 

18Calls were made to police by a number of people that a severely mentally unwell woman was yelling in a backyard in Coburg.  Police attended the area and located and arrested you.  You were taken to hospital for treatment and observation.  You left the hospital before police became aware of the offending from the earlier evening.  Within a day, however, you were arrested and you were conveyed to Brunswick police station and you have remained in custody since.

19Prior to all this, you had completed a gaol sentence of over 200 days and as
I have indicated, you spent a lot of time in prison over the years.  For these matters in total, as I understand it, you have 232 days pre-sentence detention. 

20There are no victim impact statements.

21Usually this sort of offending is regarded as serious and there would be a need for general and specific deterrence, as well as denunciation and appropriate punishment.  Yours is a very sad and very disturbed set of circumstances. 

22It is clear from the materials before me, and I will go through that in a moment, that your moral culpability in these circumstances, when you are unwell, is very limited, it is literally non-existent.  Accordingly, all the principles in Verdins are brought into operation.  Whether it is harder for you in gaol is another question, because it probably assists you in some ways of staying well with medication and the like.  But I take those matters into account. 

23This is a very unusual set of circumstances for somebody who committed the offending whilst very unwell, from an emotionally impoverished background and with a number of disorders, which I will refer to in a moment, which I do not wish to.  As I have indicated to you, Cara, I have to do that.

24Firstly, as we ascertained during the first hearing, you are of Koori descent from Tasmania and you wish - and you have indicated that too, endeavour to have contact again with your culture. 

25A number of documents were tendered on your behalf.  Mr Backwell, who has appeared for you now on a number of occasions, put in very, if I may say so, concise sentencing submissions.  He said:

"Ms Stemphelet had a severely chaotic and neglectful childhood.  She witnesses and experienced family violence, including sexual assault.  She spent a significantly amount of time in residential care.  As an adult, she's had a history of unstable accommodation, homelessness, mental health issues, domestic violence and periods of incarceration.  She suffered three still-births at ages 14, 21 and 25.  Her mother passed away in September of this year while she was on remand and she wasn't allowed to go to the funeral."

26You have obtained a general education certificate whilst in custody.

27The report that was tendered from Ms Cidone, who works in Mr Healey's office, goes into - again, in laudably, concise terms, your history.  I need to go through - I will direct that this report stay on the court file, but I do need to go through some of it.  It is clear that you have no signs of intellectual disability.  You have post-traumatic stress disorder, stemming from instability and childhood trauma, including sexual abuse, substance abuse and violent relationships.  You have previously had a diagnosis of bipolar affective disorder in the NorthWest Unit.  You were re-diagnosed as having a schizoaffective disorder.  There are substance abuse issues, grief issues, a lack of regular mental health treatment.  You sometimes have auditory hallucinations and you are very vulnerable, due to your earlier experiences. 

28Your father left when you were two.  Your mother re-partnered and used heroin.  You had a half-brother who died young.  There is another brother who you did not discover until you were much older.  Your step-father at that stage was a very violent man.  You and your siblings were regularly assaulted.  You often had to protect your mother and siblings.  You had difficulties with another member of the family, in terms of sexual advances, that I now understand is under control.  But you were then placed in foster and residential care that broke down several times.  You have had about 15 placements from the age of eight years.  You had been sexually abused at two of those homes. 

29You met a man in your late-teenage years, which has been an on and off again relationship.  That relationship, and I am not going to name him, has involved severe physical and sexual abuse by him towards you.  At the time of this report, you did not know whether that had ended or not.  It goes on to report how your mum had died whilst you were in custody.

30You have sustained a head injury in a car accident when you were much younger and you self-harmed in gaol.  You suffered repeated rape incidents in your teenage and early adult years.  You started using drugs at a very early age.  You commenced using alcohol at a very early age.  And this is a devastating paragraph:

"Diagnoses include PTSD, depression, anxiety, schizoaffective disorder, bipolar affective disorder, borderline personality disorder.  There have been multiple admissions to psychiatric care.  She was treated with anti-psychotics and anti-depressants and electroconvulsive therapy.  She takes sodium valproate, a mood stabiliser and Olanzapine, an anti-psychotic." 

31It tells how many schools you went to and goes through all that detail. 

32I understand totally what post-traumatic stress involves and you suffer very, very badly from it.  You are bothered by memories, dreams, flashbacks.  You tend to avoid situations and avoid people and places.  You try to block these thoughts and have panic attacks and find it very, very difficult indeed to survive. 

33The report ends by saying that your mental difficulties are "severe".  And I have no trouble in accepting that. 

34You have now been, for these matters, in custody for 232 days and we have had the benefit of continuance of counsel throughout and Mr Backwell, who obviously cares a great deal about you, who has acted for you and explained your circumstances clearly.  What has happened in more recent times, is that the Community Integration Program at Dame Phyllis Frost through Forensicare are endeavouring to assist you and you clearly are getting a lot of help from them. 

35When you are released, which will, I am assuming, will be today, you will have mental health matters in place and I will be sending a copy of these reports obviously to Corrections.  You will be going to NorthWest Area Mental Health for voluntary case management and you will be getting psychological and psychiatric support in the community.  I am told from the Bar table that Forensicare are aware of your release today. 

36You will remain engaged with them until late-April, when you will be reassessed and hopefully in that period of time, you are with a case manager who you can get on with and you will have attended a number of appointments.  All those matters are being put into place.

37Further than that, with the Women's Housing Ltd, they are going to assist you in the days following your release with making a plan for long-term accommodation.  They have dealt with you before and there is somebody there that you do get on well with, who as I understand it, that you trust.  You have previously lived in an Office of Housing property and hopefully that can occur again.

38Of real importance in your situation, Cara, is that your sister, who you are obviously very close to, has appeared at court with you every day that you have been here in respect of the continuation of this matter and it is obvious that there is a bond between the two of you which is going to be of great assistance. 

39Obviously in a situation such as this, I have to take into account totality and apply an appropriate sentence.  Community dispositions have not worked in the past, in the sense that your mental issues have overtaken you.  But in these circumstances, since you have been in gaol, you have been able to get yourself a position as a unit billet and you have done really well, I think and I think those associated with you think this is a real chance for you to be able to repair, as well as you can, the damage that has been done to you over a very long period of time.

40I am not going to go into cases such as Tomgeunen  or Bugmy or any of those matters.  There are some people in this community who have been treated extraordinarily badly and it is the duty of the judicial system, certainly from where I sit, that it do everything it can to enable you to have a proper and happy life, but at the same time, to not have other people being affected by your misconduct when you are unwell. 

41In your situation, I have taken the view that a community corrections order is sufficient, together with the time that you have served in prison. 

42The community corrections order, if you agree, will be for a period of 18 months and we will have a judicial monitoring and the condition will be that you appear before me at 10 o'clock on 29 March of this year. 

43I will also include the mental health condition.  There are other conditions that are recommended within their acceptance report, but I think in your situation, you are clearly operating at the moment with people that you trust and who are looking after you and I am not prepared to take the risk of there being personal differences between you and others in a situation where they have the upper hand, if that occurs. 

44There is aspects of the report which I am not happy with.  To say in these circumstances, that you:

"Possess as an entrenched criminal attitude after being predisposed to ongoing family violence, illicit substance use and significant trauma throughout your life."

45It is not a particularly encouraging for me or anybody else to read, so the least you have to do with them, I suspect, the better and as I say, I may have to do it a couple of times now and trying to have you working with people who actually care about you.

46The offending objectively is serious, even though it's ameliorated to a very, very large extent by your mental state.  What I am going to do is this.  And I will make this as simple as I can.  On the indictment ending 740, you are sentenced to be imprisoned for a period of 232 days and I direct that 232 day be reckoned as having been served under that sentence. 

47On Indictment ending 446, again, an aggregates sentence of 232 days to be served concurrently with the sentence imposed on 470.  And again, I declare that a period of 232 days be reckoned as having been served under that sentence.  That is the gaol component. 

48Now the problem arises with a CCO from there.  When I look at this - otherwise we would have to have two CCOs.  So what I am going to do is this.  When
I look at it objectively, I think the time served is sufficient for the second indictment.  The first indictment where you actually did have contact with a child who would have experienced trauma from it, that is the indictment that I will place the CCO on. 

49So the indictment - so the CCO will be with conviction for 18 months with those conditions and that will be attached to the offences on 470.  If that CCO is breached in that 18 month period of time, as you will fully know, you get brought back before me to be dealt with again and we would just have to see where we went.

50All right, in these circumstances, I suppose I have got to give a 6AAA, do I not? 

51MS BARRETT:  Yes, Your Honour.

52HIS HONOUR:  All right.  But for your pleas of guilty to these matters, I will leave aside the prospect of acquittal on Indictment No.2 and I will simply say that
I would have given you 12 months plus a CCO.

53All right.  Nothing else needs to be ordered?  I have signed the - sorry, I think there is a disposal order ‑ ‑ ‑

54MS BARRETT:  Yes, just a couple of exhibits from the first indictment, Your Honour.  The jacket and a handbag.

55HIS HONOUR:  Yes, if you have got - I will sign that now if it is there and I - and he's been off the CCO. 

56MR BATTERSBY:  As Your Honour pleases. 

57HIS HONOUR:  Yes.  I will need to get her to sign the CCO, I will just leave some.  All right, that order is made. 

58Cara, what we will do, I will see you again on the 29th, all right?  Now, what
I want you to do for me, is in that period of time, it is going to be a number of weeks.  If things do start to go wrong or you are not travelling well, you have got lots of people to contact and talk to, all right?  You have got your sister, you have got the people at the gaol who have been looking after you, you have got - you can have all sorts of people that you can contact, all right? 

59OFFENDER:  Thank you, Judge.

60HIS HONOUR:  And what has happened in the past is obviously that you have then sort of, you know, tried to self-medicate and all - I understand all those things.  But this, I really believe this is a chance for you.  Everything has been brought into one hit, looked at properly and I think that if you can keep it together and talk to people if it starts to go wrong, all right? 

61OFFENDER:  I understand.

62HIS HONOUR:  Now, Mica's here in court.  Obviously it is a situation where it is time that you started to understand your Koori background more and relate to it, all right?  Now I have told you this before, I am sick of locking up Maynards from Tasmania, all right?  I have locked up one too many, all right?  So look into those areas of your culture.  There is lots of things you can do.  You are still 29, sweetie, all right?  You have got plenty of time left in this world.

63OFFENDER:  Thank you so much. 

64HIS HONOUR:  All right, so I will see you on the 29th and I want you coming back as fat as a butter ball and doing well, all right? 

65OFFENDER:  Thank you so much.

66HIS HONOUR:  All right.  Thanks. 

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