Director of Public Prosecutions v Stephens and Conway

[2015] VCC 288

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00007
CR-15-00008

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEITH STEPHENS
JOANNE CONWAY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2015
DATE OF SENTENCE:	12 March 2015
CASE MAY BE CITED AS:	DPP v Stephens & Conway
MEDIUM NEUTRAL CITATION:	[2015] VCC 288

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Taylor
For Accused Stephens	Mr A. Pyne
For Accused Conway	Mr A. Sim

HIS HONOUR: 

1Joanne Conway and Keith Stephens, you have each pleaded guilty to one charge of armed robbery.  That crime carries a maximum penalty of 25 years imprisonment.  You, Joanne Conway, have pleaded guilty to an uplifted charge of committing an indictable offence whilst on bail.  On that charge, you are convicted and discharged. 

2The situation is that you are 27 years of age and 42 years of age respectively.  Each of you, when interviewed by police, made full admissions and accepted full responsibility.  You, Ms Conway, have a number of prior findings of guilt, none of which I note you were actually convicted for.  You, Mr Stephens have one matter which is of little concern here, other than to indicate that you have had a long-term drug problem.

3You, Ms Conway, must get the benefit of assistance, if it can be described as that, to the police, in terms of nominating your co-accused.  I do not know whether that would have been able to have been achieved without that, and you, Mr Stephens, in the face of the only evidence being a co-accused, made full and frank admissions and therefore your plea of guilty and your cooperation are of real significance.  Each of you, I accept, has displayed appropriate remorse and each of you pleaded guilty obviously at the earliest reasonable opportunity.  You must also get the utilitarian benefit of that plea in saving the victim in this matter from having to give evidence. 

4Having read all the material, I think it is fair to say that whilst each of you has had a long-term problem with drugs and difficulties associated with that, to offend at this level I think is very much out of character for either of you.

5Firstly, pursuant to s.464Z of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  Those orders having been made, I must advise you that, should you refuse to provide one, police may use reasonable force to take it from you. 

6I have put Box Hill as the police station; that would be right, would it not?

7MR SIM:  No, it is actually Doncaster East for Ms Conway, Your Honour.  But look, she will be going to Box Hill for her Corrections appointment, so I don't think that's ‑ ‑ ‑

8HIS HONOUR:  Box Hill is okay for each of them then?

9MR SIM:  Yes, Box Hill. 

10HIS HONOUR:  We will make it Box Hill. 

11MR SIM:  If Your Honour has done the order already, I will not get Your Honour to amend it.

12HIS HONOUR:  I can - it will only take me two seconds.

13MR SIM:  She has been reporting at Doncaster East which is a 24-hour station I'm told.

14HIS HONOUR:  Okay, I did not realise that, okay.  I will make hers Doncaster East then, that is okay. 

15MR SIM:  Thank you, Your Honour. 

16HIS HONOUR:  That is saliva only.  All right, those orders are made and handed down - we will wait when we have finished and then you photocopy them after we finish here. 

17The circumstances of the offending were that on 28 September 2014, the two of you attended at the Red rocks Charcoal Chicken shop in Whitehorse Road in Balwyn.  The victim in the matter, a female store attendant, approached the counter to serve the two of you.  You, Ms Conway, jumped onto the counter beside the cash register and demanded money.  She locked the cash register and you, Mr Stephens, then demanded money, producing a small knife, pointing it at her only one to two inches from her chest.  She picked up her phone and tried to call police but you, Mr Stephens, took the phone from her, saying, "Don't call police".  She then fled outside and asked a witness to call the police.  She went back into the store and saw you, Ms Conway, running out the back of the store and she realised that the cash register was missing, which contained approximately $300. 

18From then on in, phone calls were made to police.  The incident was not captured on CCTV, which makes the pleas of guilty more significant.  However, police on attending, identified a fingerprint of yours, Ms Conway, and the investigation went from there.  You were driving a motor vehicle which could be traced to you.  As I have indicated, when each of you in the next week or so were interviewed, you made full and frank admissions. 

19I accept that the armed robbery on the material before me was not premeditated, certainly not long planned and was carried out in a relatively amateurish way.  There were no gloves worn, which is what has led to the apprehension of certainly you, Ms Conway, though I note that the victim says, at least, that she had dealt with the two of you previously.  As the Crown conceded, it is certainly not at the high end of armed robberies.  However, armed robbery is almost invariably a serious crime and when somebody jumps on the counter in those circumstances, I have no doubt, having watched a number of these on CCTV, that it is an extremely terrifying situation for the person on the other side of the counter. 

20I have read the victim impact statement of the lady concerned and she talks about the difficulties that she has had in sleeping, her anxiousness and fearfulness at night.  They are the normal and natural consequences of being the victim of a crime such as this and why it is very usual for such crimes to carry an active custodial sentence.  As I have already indicated, you two are in a different situation, neither of you has any prior convictions for anything remotely like this, I think I can safely say.  However, the crime must be regarded, as I have said, as serious; calls for the application of general and specific deterrence, denunciation and appropriate punishment. 

21In this particular situation, I have had each of you assessed for a Community Corrections Order and each of you is deemed to be acceptable.  I will very briefly outline the reasons for that.  I make it clear for anybody reading this that I would have made this decision even absent the decision in Bolton.

22You, Mr Stephens, have family support.  Importantly, you are now of an age where you can clearly turn your life around and have had virtually no prior dealings with courts.  When you were arrested for this, you spent 10 days in custody and I have no doubt that that had a very significant effect upon you.  In so far as the Community Corrections Order is concerned, I am not going to impose work hours, because each of you has undergone a period of time of imprisonment and that, for my view, can be sufficient.

23In your case, Mr Stephens, a number of documents were filed.  There is a report from the CISP program; a report from  a Dr Golding, a psychologist; a report from Mr Jeffrey Cummins, a forensic psychologist; a report from Mr Wills, who has been counselling you in drug and alcohol use and a number of references.  Those references speak highly of you in a personal sense. 

24The CISP report, which has, as I said, been tendered, goes through how you conducted yourself since being arrested.  I must say that it is highly commendable.  You have had a long history of various drug use, cannabis from a young age.  You commenced using amphetamine at around about 26, following a marriage breakdown.  You were able to cease the use of that after a couple of months in rehabilitation, which, if I recall correctly, was in Odyssey House, and you did not start using heroin until you were 36 years of age.  If that be the case, you clearly have an addictive personality and you must be careful.  You had been drinking heavily for approximately eight years prior to this and at some stages were consuming up to four litres of wine per day.  It is not put that this offending had anything to do with the use of alcohol; it was to obtain money for drugs.  However, it is of concern that you do have all those potential, at least, difficulties lying in the background. 

25Since you started the CISP program upon your release, you have been in contact with an Alcohol and Other Drugs Commissioner, Mr Wills, who has provided a report.  You have seen him now on many occasions and have done very well.  His report is highly congratulatory of you in the way that you have gone about this.  You have also been seeing a psychologist, a Dr Donna Golding, and her report again says that you have been very efficient in that and have been getting a lot from it.  She reports that you want to make positive life changes and have presented with enthusiasm.  There is a mental health care plan that is going to be put into place and that can be done through Corrections.

26You had a good work ethic.  Over the years you have worked at various jobs.  You have had a number of things that have gone wrong in your life and it seems the worry with you is, and it seems to be throughout these reports, is the potential at least to resort to the use, the abuse, of substances when under stress.  However, as was put in the CISP program, and I accept this:

"Mr Stephens has completed three months on the CIS program and has attended every scheduled appointment to date.  Mr Stephens has demonstrated a commitment to the treatment and support offered by attending all scheduled appointments and assessments arranged.  Mr Stephens has often made his own treatment suggestions and followed up with the necessary information and appointments.  Mr Stephens has consistently presented polite, honest and with genuine thought and consideration during his appointments".

27And then it goes on to say what happens in the final month of that circumstance.  It is also suggested in one of the reports that you indeed would make a good counsellor, bearing in mind the history that you have had and the progress that you have made. 

28The report from Mr Cummins goes through your background, and at 42 years of age, I do not think there is much point in doing that.  Suffice to say, you had a difficult childhood.  Your parents separated and you had rheumatoid arthritis for a period of time.  You clearly were bullied at school and had, over the years, low self-esteem, which is certainly not an uncommon experience in these courts.  As I have indicated, though, you have worked and clearly do have a good work ethic when able to do so. 

29You described to Mr Cummins that the benefit you had received from Dr Golding the psychologist was "awesome".  That is all very much to the good and, as I read the reports from Corrections, those relationships with Mr Wills and Dr Golding can certainly be continued.  I accept that you have been drug-free since being released from your remand and I accept, as I think I have already indicated, that you found the time in gaol a very frightening and salutary experience. 

30In all those circumstances where Mr Cummins regards the risk of you reoffending as low, and I concur in that, I have no concerns at all that a Community Corrections Order is not the appropriate disposition.  You are shamed and embarrassed by what you did and you indicated to somebody at least that you vomited afterwards because of the look on the face of the victim.  That augurs well for your prospects of rehabilitation, and as I have said, the risk of you reoffending is, I think, very low. 

31Accordingly, in your situation, you will be placed on a Community Corrections Order for a period of three years, with conviction, which is a punishment in itself, with the conditions of drug and alcohol, mental health and programs to reduce offending. 

32I will deal with the judicial review date in a moment.  We will make that the same for each. 

33I will just indicate, the other material that was provided before me, including particularly a reference from a Mr Henderson, are all taken very much into account.

34You, Ms Conway, are in a similar situation.  You do have a number of prior findings of guilt, but clearly those matters have never been of real significance because of the lack of a conviction.  Your background is again outlined om a report from a Dr Chaudhry and from reports from Dr Chew, who is your GP.  You also have done a CISP program on release and it is clear from that that you have done very well indeed.  You also have had a difficult childhood and difficult upbringing and you have been using heroin for a very significant period of time.  You have indicated a desire to and a capacity to participate in drug and alcohol counselling and have obtained an appointment with your practitioner to get a referral for psychiatric assessment.  That was done by Mr Chaudhry and I have read that report.  He gives a diagnosis of anxiety and depression, and I take that into account.  You have had severe anxiety symptoms whilst in custody and you were in custody for something in the order of 25 days when you were not receiving your medication. 

35The CISP program again in your situation was very encouraging and said:

"Ms Conway has engaged well in CISP, attending all appointments for case management to date.  Ms Conway has presented with a positive attitude and demonstrated motivation to address her presenting needs by engaging in treatment".

36That then goes on to say what the focus over the forthcoming month would be.  Those matters give me confidence.  You again, as with Mr Stephens, are in a position where I do not need to go into the background of your family upbringing.  You clearly have difficulties and have had difficulties with your mother as a child.  You became the full-time carer of your father and when he died you recommenced using heroin to a significant level.  I am satisfied on the material before me that you are now the carer for your mother who has real difficulties, as described in the report of Dr Chew.  I do not need to consider whether those difficulties amount to exceptional circumstances in this particular situation.  I simply take them into account, but if you were to be incarcerated, and indeed you were for a period of time, that you would do that in the knowledge that your mother would be left in a very, very difficult situation indeed.  I think I do not need to take that any further for these purposes. 

37Very significantly in my view in that one month that you were on remand, you were able to complete a Kangan Institute course and, in participating in workplace safety arrangements, and I can simply indicate that for somebody who has only been on remand for a month and never been in gaol before, that is not a common thing to do.

38The report of Dr Chaudhry can remain on file.  I do not see any real purpose in going through the personal details of all that.  You started using heroin when you were about 17 or 18 years of age.  You worked in butcher shops for about seven or so years and, as I have indicated, you became the carer for your father who you were close to and he subsequently passed away.  Within a few months of that, you became the carer for your mother and are on a carer's allowance for that.  Clearly, in a Community Corrections Order you will be able to receive psychological assistance and psychological assistance may be able to deal with the underlying problems that you have, of which there is some suggestion which I have no doubt.  You also will be able to participate in the drug and alcohol programs that are available under that type of disposition. 

39Your prospects for rehabilitation I think are very good and the risk of you reoffending if you are able to rehabilitate should be low, as is the case with Mr Stephens.  Again, I do not in your situation propose to put any work hours in the Community Corrections Order, because you have already done that 25 days in gaol, which I think to you would have been a very significant matter indeed.

40In any event, taking all those matters into account in your situation, I am satisfied that a Community Corrections Order with conviction, which I have already indicated is a punishment in itself, is sufficient.  That will be with the same terms and conditions as for Mr Stephens. 

41In so far as a condition for judicial monitoring is concerned, I was looking at a date probably in June.  Counsel do not need to come if they do not want to.  Corrections send me a report.  I know the Crown do not come to them, so - have not been up to date anyway.  So, if we made that ‑ ‑ ‑

42MR SIM:  Just while that's being sorted out, Your Honour, Your Honour indicated the same conditions for Ms Conway as for Mr Stephens; there wasn't an alcohol treatment condition for Ms ‑ ‑ ‑

43HIS HONOUR:  There was not?

44MR SIM:  No there wasn't.

45HIS HONOUR:  No, sorry, okay ‑ ‑ ‑

46MR SIM:  There was no suggestion that was an issue at all in her life or rather to the offending.

47HIS HONOUR:  No, I have just read it.  That is the trouble when you get the things at five to nine.

48MR SIM:  There was drug treatment, mental health treatment, offender program ‑ ‑ ‑

49HIS HONOUR:  Okay, well, hers will not have the alcohol, yes.  I will make it Wednesday 10 June, because I will make it early and we will make that, say, 9.30.  There are no other orders I need to make, are there?  We will get those - and I do not to a 6AAA because there is no gaol. 

50COUNSEL:  As Your Honour pleases.

51HIS HONOUR:  I just need to get these signed.  It was Box Hill Corrections for each, wasn't it?

52MR SIM:  Yes, Your Honour. 

53

HIS HONOUR:  The only concern I've got with Mr Stevens' is

the ‑ ‑ ‑

54MR SIM:  May I approach the dock, Your Honour.

55HIS HONOUR:  Of course, yes.  I think I will take the "including testing" out of the alcohol one.  This was not caused by alcohol and I am not going to say now, "You can't have a beer", I'm not going to do that.  I will take that out.  I can just do that with a pen, that is okay. 

56MR SIM:  Ms Conway has signed that order, Your Honour.

57HIS HONOUR:  Just stand up for me for a moment, if you would.  I have made the two Community Corrections Orders.  Now, what you have really got to understand - and they are for three years, and we will just see how all that goes, and I have got total faith in each of you that you will not breach these, but just so there are no misunderstandings, you have been convicted of armed robbery, all right?  Now, in the normal course of event, a second armed robbery would probably get you three or four years, okay?  With a crime this serious, you just do get the one chance and if you are brought back for breaching it for anything like this or offending, you will go in, all right, and for a significant period of time.  Fair enough?  This gets transcribed and I can read it back to you if I ever have to.  I am confident with the two of you that I will not.  All right? 

58Thanks for that. 

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