Director of Public Prosecutions v Stewart

[2016] VCC 1278

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

AT MILDURA
CRIMINAL JURISDICTION

CR 16-01148

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMBER STEWART

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	24 August 2016
CASE MAY BE CITED AS:	DPP v Stewart
MEDIUM NEUTRAL CITATION:	[2016] VCC 1278

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	Mr A. Lew
For the Accused	Mr J. Pruden

Pages 1 - 10

 

 

HIS HONOUR: 

1Amber Stewart, you have pleaded guilty to one charge of criminal damage, one charge of aggravated burglary and one charge of common law assault.  Those crimes carry maximum penalties of ten years, 25 years and five years respectively.

2You are 22 years of age and therefore still a youthful offender, though not necessarily by definition.  You have pleaded at an early opportunity and I accept that there is appropriate remorse in this matter and indeed shame at the offending that has occurred.  You must also of course get the utilitarian benefit of that plea of guilty.

3You do have prior findings of guilt and indeed were, at the time of this offending, on a community corrections order involving violence.  The other findings of guilt for violence go back to your early childhood, which I accept was a very difficult one indeed and took place, or were heard, in the Children's Court.  I am aware of those matters and I am aware of the nature of the breach of the CCO, which I have dealt with some minutes ago.  It involved an assault on another young woman, which leads me to the summary of this particular offending.

4Charges of aggravated burglary must always be looked at in the circumstances in which they occurred, which may involve a multitude of factors.  In this particular situation you at the time of the offending were I think 21 years of age by a very short distance and had had a child some two months previously.  You went around to a house believing that the occupant, or one of the occupants of that house, a 17-year-old, had been having a sexual relationship with the father of your child.  You, having had a very deprived background and having had anger management problems for years and having also had to deal with alcohol and drug addiction, I accept would have been in a very stressed and emotional state.  Very difficult in those circumstances for a young person in your situation to make rational and clear judgments.

5In any event, as at 15 March 2016 you had been dating one Isiah Shore-Rose for approximately 19 months.  You had a daughter to him, who at that time was approximately two months old and is now approximately eight months old.  I note that you too have two older children, each of whom is presently in the care of the Department of Human Services.

6You went to the premises of one Sherilee Norman, who was then aged 17.  She was there with her three-year-old son.  I accept that the small child was present, though it is somewhat debatable as to whether you were aware of the small child's presence at the scene. I must be careful not to sentence you for that knowledge if you may not have had it.  The victim Sherilee was aged 17, with a three year old child, so I have no real understanding of her background or where she came from, but she was clearly impregnated at around about the age of 13 or 14 and this may be all just part of a very sad scenario.

7In any event, you gathered this knowledge and not long afterwards, went round to the house.  You got your sister to drive you there.  She has been dealt with for unlawfully being on the premises and I do not really see her as being representative of parity in this particular situation.  You wanted to confront the victim about the sexual relationship, went to the house and you walked to it.  Once at the house you started yelling abuse and calling her to come out and telling her that, "You fucked my man".  You proceeded to smash two front windows, though you said in your record of interview, as I understand it, that you were trying to frighten rather than actually smash the windows.  In any event, you have pleaded to it.

8At that time the victim was home with her three-year-old son and there were Mr Isiah Shore-Rose, your boyfriend and another male friend were present.  Ms Norman was afraid and went to her bedroom, hiding behind her bedroom door with her three year old son.  You kicked the front door of the house open and once inside, proceeded to kick the front door of the bedroom open.  I have no idea at that stage what the other two men in the house were doing.  The opening does not reveal that to me, but in any event, once you got into the bedroom, the complainant - sorry, the victim, told you to fuck off, because her son was with her, which you allege to have replied, "I don't give a fuck."  That is inconsistent with your record of interview and I do not propose to make any finding as to which of the two occurred.  In any event, you grabbed Norman by the hair and began scratching her face. She fought back.  She was grabbing and punching and the two of you ended up wrestling on the floor.  That gives rise to the charge of common law assault.  The kicking into the bedroom door, as I understand it, is what gives rise to the aggravated burglary.

9Your sister, who had been outside talking on her phone, heard what was going on.  She and the two men entered the bedroom and tried to break up the fight.  Your sister pushed past, grabbed the three-year-old, who was hiding, and took him out of the bedroom.  The victim then went to the other end of the house.  You apparently left and your sister followed you.  The victim suffered some small scratches and marks to her face and ended up with your blood on her.  I am not sure whether that blood comes from the windows, or from the fight, but it makes little difference.  Clearly the injuries themselves are not of great significance.

10When you were interviewed by police, you made full and frank admissions, which goes very much in your favour.  You stated that you were angry and upset when you found out about the relationship and that would hardly be a surprising reaction.  You admitted that you went there to "get" or "hurt" Norman.  You said you didn't mean to smash the windows and that you had intended to hurt her and had indeed punched her and that you couldn't control yourself.  You were then charged, as I understand it, with all the offences.

11I am not cognisant of all the milieu in which this all took place.  Aggravated burglary is regarded as a serious offence but, as I have said, has to be looked at in the circumstances in which it occurred.  It is easy to say that there are two children in the house.  I do not know much about them, or anything about them, really, but I have to sentence you for a crime that the community does not like.  You must be sentenced, bearing in mind aspects of general deterrence, even though the justification may have seemed to you to be great, you cannot do it.  Specific deterrence, I think that is probably the situation with yourself now, bearing in mind your shame and the progress you have made, that is not particularly necessary.  Denunciation is difficult in a situation like this, where the provocation was such but there must be an appropriate punishment.  I do not regard you as being a danger to the community.

12Accordingly, I take all those matters into account.  There is no, as I understand it, victim impact statement, though I have no doubt that the victim was afraid, albeit having fought with you.  This of course all occurred whilst you were on a CCO for other violent offending.  It would often be the situation that, taken totally objectively, without any reference to the matters personal to you, that a situation like this would call for a significant custodial sentence.  It is my strong view that this particular matter is very far from that particular case.

13You participated in Koori Court and that is to your credit.  It takes some courage to sit there and talk to the elders and discuss your offending and admit to your shame.  It is clear that you have an anger management problem and have had since you were very young.  Your background involved a "toxic" relationship between your parents, which I am told and have no doubt is correct, involved violence, there also difficulties with your siblings.  From a very young age you were exposed to that sort of behaviour and, as the decision in Bugmy points out, putting it colloquially, you do not get over that sort of childhood in five minutes. 

14In any event, after this offending had occurred and whilst you were on bail you came from Ballarat to live in Mildura.  You have since you have been here, that is a number of months, had assistance.

15At the sentencing conversation I heard from Jennifer Berry and Darlene Thompson, both very experienced workers in this area and very experienced women working with people such as yourself and with Koori people in general.  They spoke on your behalf during the course of that hearing and I found each to be very impressive, very genuine and to have a great deal of insight into the circumstances in which you find yourself. 

16In that two months you have been able to satisfy them that previous drug abuse is no longer existent.  You were described by Ms Thomas as being someone who she did not think would re-offend and it was confirmed by the elders that she would have seen many, many young women in your circumstances.  I am comforted by that belief of no further re-offending.

17Ms Berry, who has been working with you also, pointed out that you are very positive, that you see a future for yourself, that you have a sense of a future which quite often young Koori girls in your situation simply do not have.  That is very promising and must be encouraged. 

18On the community corrections order that you originally on, for reasons that I do not fully understand, you were given 175 work hours whilst you were six months' pregnant.  That to my view, in the relatively short period of time that a magistrate's CCO goes for, was somewhat untenable.  It has been explained to me by Corrections, who are indeed supportive of you, that obviously there was this re-offending.  There are also a significant number of non-attendances.

19The reason that they are unacceptable is because you did not substantiate them with other written material.  You have said that each of those or most of those non-attendances was due to your concern for your small child because of it being unwell or otherwise and I accept that that is the case.

20I have already indicated that I propose to put you on another community corrections order and I am advised that matters have been put in place whereby there may be child care whilst you do work hours.  I am sure the appropriate workplace will be ascertained.  The order that I intend to impose will be for two years and that will give sufficient time for there to be the work hours and for there to be any suspensions or deferments of those work hours depending upon your state of health during the pregnancy that you are currently undergoing.

21The prospects for you, having spoken to you and having heard you, listened to the elders and having heard the reports from those who have been closest to you over the last two months, are very good.  One very important aspect, it seems to me, of all this is that you now have the eight-month child in your care and are clearly, as was described to me, a "loving mum".  You will in the months to come have another child, which I have no doubt will also remain in your care.  You have two other children who are, as I have indicated, with DHS. 

22There had no reunification plan in effect of the last couple of years, I have been informed.  But over the last couple of months with the assistance of others and because of the progress and the determination of yourself, there is now a reunification plan being formed.  The hope is that the children will be brought to Mildura.  You are currently in stable accommodation.  You do not have financial difficulties and you are drug and alcohol, effectively, free.

23Plans are afoot with those helping you to get you independent accommodation for yourself, your partner and children that will make it easier, if there were to be such a word in these situations, to get the boy and the girl into your care.  There is no reason to doubt that with your anger management circumstances being dealt with, as I have already indicated, and the other deleterious aspects of your life being dealt with, that you could be a very useful and very proper member of the community.

24In this particular situation, as I have already indicated in open court, I would have no doubt that to incarcerate you would throw all that extraordinarily good work over the last couple of months into chaos.  DHS would undoubtedly take the child.  Kinship placement for the other two children failed.  The effect that losing that child to DHS would have on you in your present state of mind would be anybody's guess and as a judge I am certainly not prepared to take such a risk.  I think that to incarcerate you, with all these factors involved, would not be in the community's interest, would not be in your interest and it is something I am simply not prepared to do. 

25In saying that, I refer to the decisions in the Court of Appeal, which I do not happen to have with me but Toumngeun and those sorts of matters, which point out that the rehabilitation of the offender rebounds very much to the benefit of the community even when there is serious offending.  To put someone such as yourself in a custodial environment I have no doubt would have a very deleterious effect on you and I do not think that any right-minded person would consider it an appropriate punishment for what you have done.

26Obviously by the imposition of a community corrections order you will realise that if you breach that community corrections order by offending of this nature either myself or another judge would probably have no choice but to enforce such a sentence.  If that occurred, as I am sure you well know, you would lose the kids.  That is a dreadful consequence, but there comes a time when the system simply cannot allow for this sort of conduct.  You have not as yet reached that point.

27I also take into account very much, this having been heard in Koori Court, that you have been disconnected from your culture and, with my understanding and what has been explained to me by the elders on many occasions and by the people in court today, that often leads to anger difficulties which can last for a long time.  You are in a very good position with very good support particularly in Mildura, I might say, to have those cultural matters dealt with, for you to learn about who you are, where you come from and to feel calmer in yourself.

28They are all open to you and I am sure that you are genuine in your desire to achieve those results.  The elders have pointed out to you what is available to you and, putting it bluntly, you would be a very silly girl not to listen to and to put into effect what they have said to you.

29Having made all those comments - and if there are any matters I have left out, I will put them in later.  I do not think there are.  Prospects of your rehabilitation I think are good.  The risk of you re-offending, I am very much comforted by what I was told at the table and I think that is, if you continue with this treatment, low.  Accordingly, if you agree, you are on the three charges to be placed on a two-year community corrections order.  It will be with conviction, which I am aware is a punishment in itself.

30I will order in this situation 150 work hours.  I will order that the undertaking of programs can be counted as community work hours in this scenario.  I am aware that 150 hours, where the maximum is much more than that, might not seem a lot, but in a situation where you do have a small child, you are pregnant and you will in the near future have another small child - I think those factors all have to mitigate against giving a very extensive period of community work.

31Pursuant to s.464 - I have not done this yet, have I?  Your cultural program will come within programs to reduce re-offending, will it not?  Yes, and then they can do what they like.  Programs to reduce re-offending.

32Pursuant to s.464 I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I advise that if you do not provide such a sample to police they can use reasonable force to take one from you.  What I suggest is - she is in Mildura.  Once this is over, go round, someone take her straight round and get it done.  They might not be able to do it on the spot, but this is - they always seem to lose track of it and the police do not pursue it and then all of a sudden it is - so if someone would just take her round, at least make an appointment, that would be a flying start with that.

33All right, we will just get that.  Are there any other orders I have got to make or any ‑ ‑ ‑

34MR LEW:  Section 6AAA, although I am not sure that it applies with a CCO.

35HIS HONOUR:  No, not with a CCO.  No, it does not apply with a CCO.

36MR LEW:  Yes. 

37HIS HONOUR:  Can I just ask something.  I should have asked this earlier in the week.  That condition, cannot leave Victoria, what do I do with that? 

38CORRECTIONS OFFICER:  I do not believe to have got any - I do not believe you can remove it, Your Honour.  It is a core condition.

39HIS HONOUR:  I cannot remove it.

40CORRECTIONS OFFICER:  But in circumstances where she may - when offenders may need to travel interstate, they can apply for permission, which can be granted by management dependent on the reasons for travel and their compliance with the order.  So there are - we often allow people to travel interstate, but they cannot travel freely.

41HIS HONOUR:  That is bizarre.  I mean I have been giving CCOs to people a short swim away.  Anyway, it is not my problem, I suppose.  Are you going to take the sentence for ‑ ‑ ‑

42MR LEW:  I am not, Your Honour.  Ms Taylor is due back.

43HIS HONOUR:  She will be sufficiently well to do that, will she?

44MR LEW:  I think she has recovered somewhat this morning.

45HIS HONOUR:  That is good.

46MR LEW:  Somewhat.

47HIS HONOUR:  Somewhat, yes.  All right, the community corrections order is made.  There is nothing else we need to do. 

48MR LEW:  No, Your Honour.

49HIS HONOUR:  Thanks, Mr Lew.

50MR PRUDEN:  Not at my end.

51HIS HONOUR:  Yes, thanks, Mr Pruden.  All right, up to you.  All right?

52OFFENDER:  Thank you.

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