Director of Public Prosecutions v Sutton
[2016] VCC 4
•19 January 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KYLIE SUTTON |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November, 4 and 9 December 2015 | |
DATE OF SENTENCE: | 19 January 2016 | |
CASE MAY BE CITED AS: | DPP v Sutton | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 4 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Warren | OPP |
| For the Accused | Mr L. Richter | Slades and Parsons |
HIS HONOUR:
1 Kylie Sutton, you have pleaded guilty to one charge of burglary; two charges of theft; and one charge of arson. In addition, you have pleaded guilty to a summary charge of committing an indictable offence, burglary, whilst on bail.
2 The prosecutor opened the circumstances of the offending by reading from a written "statement of facts", which was tendered.
3 The brief summary of the offending that I am about to recite is not intended to be a substitute for the more detailed account outlined by the prosecutor.
4 Between 25 and 27 December 2014, you broke into the house of your father and step-mother and removed a considerable amount of property, valued at $72,619. You removed the property in the victims’ motorcar on three separate occasions over the nominated period.
5 Your father and step-mother were on holidays at the time and when they returned, they discovered that the house had been ransacked and a very considerable amount of property had been stolen.
6 One charge of theft concerns the property taken from the premises. The other concerns the motor vehicle.
7 On 2 January 2015, you drove the car to a housing estate, poured petrol over it, set it alight and fled. This constitutes the charge of arson.
8 You were interviewed on 21 January and 3 April 2015. You made "no comment" responses to the allegations on the first occasion, but on the second occasion you admitted the charges but disputed that you were responsible for taking all of the property stolen from the house. The total value of which was about $250,000. You nominated another as the person likely to have removed the additional property.
9 Your plea hearing began as a contest, concerning whether the prosecution could exclude the possibility that another acting independently of you was responsible for taking the items beyond those you agreed you took by marking those admitted items on a list of all the stolen items. I resolved this dispute in your favour.
10 You told police that your motivation was to cause harm to your step-mother.
11 Victim impact statements from your father and step-mother were tendered. Despite being insured they have incurred financial loss. They have also both suffered considerably. They have requested that the extent of their emotional suffering not be articulated in court and I will say no more about this.
12
At the time of the offending you were on bail, which you entered on
22 December 2014 for possession of a drug of dependence. You were subsequently dealt with for this and other offending and released on a adjourned undertaking on 1 October 2015. The other offending included dishonesty and property offences, as well as driving offences.
13 On conviction for the car theft, I am required to cancel any licence you hold and disqualify you for a minimum period of three months.
14 You were remanded in custody for 26 days in January and February this year concerning the drug possession and other charges for which you were placed on the adjourned undertaking just referred to.
15 Given your drug history, your counsel submitted that your criminal history is notable because of your relative lack of prior offending, rather than the presence of prior offending. You have some prior matters for dishonesty in 2014 for handling stolen goods and shoplifting, but on each of these two appearances, you were released on non-conviction adjourned undertakings.
16 Your counsel, Mr Richter, sketched your personal background, emphasising the following matters:
17 You are 31 years old. Your parents separated when you were two and both re-partnered. You remained with your mother, who formed a relationship with an addicted gambler. Your mother had Crohn’s disease and did not work. It seems the family struggled financially.
18 You were educated to Year 9 and have only a limited history of employment.
19 You were evicted from home aged 15, after you started smoking cannabis. You came home one day to find your bags packed and you were told to get out. You did return home, but this was never satisfactory.
20 You remained in contact with your father and step-mother until the age of about 18 or 19, when they broke contact with you. This resulted from a dispute you had with your step-mother concerning which you claim to have been falsely accused of threatening her.
21 You began using cannabis aged 15. You were abusing alcohol at around 17 or 18, and using heroin at 22. More recently you have been using methamphetamine. Although you have had periods of abstinence from drugs, substance abuse seems to have been a focal feature of your life for some time.
22 You have been homeless or transient for a significant part of your life. You have stayed with friends, lived in short-term or crisis accommodation, and slept in cars. This was your lifestyle at the time of the current offending.
23 You were diagnosed with ADHD at age ten and this condition has persisted into your adult life. You have been prescribed dexamphetamine for this condition. This enables you to manage your life, but prevents you from being prescribed medication for serious depression, which you also suffer.
24 The current offending seems to have occurred when you did not have access to your medication, it being stolen from you.
25 You have three children. A daughter born when you were about 18. This child lives with her father. You have two other daughters with your current partner. They live with your mother and you have access rights to them, although I was told access was denied by DHS over the Christmas period in 2014 when the offending occurred, presumably because of your drug use. The absence of contact with your children seems to have been another element of instability, along with the absence of your medication, that might provide some explanation for your offending during this period.
26 You have a history of panic attacks, anxiety and have expressed suicidal ideation. Indeed you told your counsel that you contemplated committing suicide at the home of your father and step-mother and that was a motivation for attending their house, but you changed your mind after drinking at the premises.
27 When you went into custody in mid-January last year, you were recommended for Intensive Case Management by the CREDIT/Bail Support Program (CBS). You commenced the program on 22 January. Within a short period you were remanded again for bail condition breaches and were not again released until 26 February, when the CBS Program was re-instated. You were a challenging client because of your heavy drug dependency. You were also showing symptoms consistent with “severe depression and/or anxiety disorder”. You were referred for counselling and because concerns about an acquired brain injury, an ARBIAS assessment was recommended to test your neurological functioning.
28
Once again you proved to be a challenging client with a constellation of problems that required assistance. You failed to take advantage of a number of services offered to you. You did not access neurological services. You expressed a preference for psychiatric treatment from the psychiatrist,
Dr Kruk, who had been treating you prior to engagement with CBS, you having been referred to him by DHS. Although you expressed a strong desire for stable accommodation, you continued to move accommodation, experiencing transience. These accommodation disruptions made it difficult for you to attend appointments arranged to assist you.
29 Nevertheless, those assisting you noted a marked improvement in your personal management skills and general demeanour, whilst you were taking your prescribed medication. The critical features precipitating engagement seemed to be medication compliance and visits with your children.
30 At the time of plea submissions on 13 November, you were living in the Yarrawonga area and wanted to continue to do so to enable contact with your children. You were living with a family. The accommodation was not ideal, however it was stable and you were and, as I understand still are, on a waiting list for rural accommodation.
31 You were living with the father of your children who is who is about six years younger than you. You and he have been together for about six years. Your partner has a history of drug addiction and has also been diagnosed with ADHD. You had been attending some appointments with him and it seems Corrections was assisting you both as a couple, for example, you had been attending couples counselling. You told your counsel that you want to receive supervised assistance.
32 You relapsed into substance abuse during the CBS program, particularly when not able to visit your children, however you seem to have insight into these triggers and the need to be medication compliant. Despite the setbacks and difficulties with stable accommodation, you are regarded as having successfully completed the CBS Program, which was in operation in two stages between February and September.
33 A psychological report from Warren Simmons, dated 2 September 2015, was tendered. This report had been prepared for your Magistrates Court hearing in October. Mr Simmons took an extensive history from you, noting your dysfunctional childhood following your parents’ separation. He noted that your current relationship with the father of your children is dysfunctional because of violence and drugs. He said there was clear evidence that you are suffering from a depressive disorder and that there may well have been a long-term difficulty with your emotions beyond your ADHD. Drugs have enabled you to avoid the discomfort of your life and deal with unpleasant emotions. He thought you would benefit from drug and alcohol counselling and cognitive behavioural treatments for your chronic depressive disorder. You also need support with general life skills, including parenting.
34 There is no doubt that your offending is serious. So much was conceded. However, your counsel argued that the offending arose out of a destructive and resentful relationship with your father, and step-mother in particular; your transient lifestyle; your drug use; and in particular, the absence of medication and contact with your children.
35 You must benefit from your pleas of guilty.
36 Mr Richter argued that I should conclude that imprisonment would weigh more heavily on you than others without such a condition, and that you would not receive medication in custody for your ADHD because it was an amphetamine based medication.
37 On 13 November, Mr Richter relied upon the substantial rehabilitative steps you have taken since being released in February. Although you face serious challenges, once the protective factors of medication and access to your children are in place, he submitted I should have confidence in your ability to remain crime-free, paying regard to your relative absence of a criminal history.
38 You have had a chaotic and difficult life, Mr Richter argued, and the offending arose in a discrete setting and was directed towards resentment you felt for mistreatment when in a state of serious despair.
39 When making submissions in November, Mr Richter argued that if it were thought that the experience of prison was required to facilitate rehabilitation, then you have had that experience, albeit for a relatively short but salutary period, and thus have been able to avoid offending since that time.
40 You have now spent more time in prison because of your recent arrest, a matter to which I will refer in a moment.
41
Mr Richter argued in November and maintained the submission today that
I should release you on a community corrections order (CCO).
42 During submissions on 13 November, the prosecution argued that, although it would be beneficial to you and the community for you to be placed on a CCO, this should be combined with a period of immediate custody. The serious nature of the offending required this, it was argued.
43 Although it was accepted that your motivation in part was revenge for a perceived grievance, the prosecution argued that you must also have had a financial motive, given your drug addiction and need for money. I think this is fair. In any event, argued Ms Warren, the motive of desiring to cause personal harm to your step-mother in particular is two edged.
44 The victim impact was considerable, argued Ms Warren, which I think is clear.
45 Ms Warren argued that there was no reason to think the needs of specific deterrence could not be met by the imposition of a CCO but the requirements of general deterrence and denunciation meant a term of immediate custody was required. The prosecution did not suggest that such a period needed to be lengthy, but rather it should be combined with a CCO.
46 The prosecution argued that it is commonly accepted that depression is likely to be aggravated by imprisonment and to this extent, there was no resistance to the submission that the Verdins principles were activated.
47 Finally Ms Warren reminded me that your offending occurred whilst on bail, although Mr Richter responded that the penalty for the offences for which you were on bail was modest. In addition, Mr Richter noted that your drug use seems to have been due to your underlying psychological state, as noted by Mr Simmons.
48 At the conclusion of submissions on 13 November, I stated that I would be assisted by further material directed towards the impact of imprisonment on you mental state conditions, particularly your depression. Although I was prepared to accept that there would be an impact, a matter conceded by the prosecution, I considered that a clearer identification of the extent of the impact would assist me. I also sought information on the prospects of you receiving your amphetamine-based medication in prison.
49
Your hearing was adjourned to 19 November and then further adjourned to
4 December, and once again adjourned until 9 December, and then until today.
50
On 4 December, a letter from the Department of Justice concerning the prescribing of medication in prison, as well as a further report from
Mr Simmons, dated 27 November, was tendered.
51 I was also informed that you had been arrested the previous weekend and had been remanded in custody. Apparently you were found in a motor car with your partner on 28 November. The charges relate to offending over the previous month and include aggravated burglary, but within the Magistrates' Court jurisdiction. A bail application in the Magistrates' Court was refused later that day. The charges were adjourned to yesterday.
52
At the hearing yesterday at Shepparton Magistrates' Court, the brief of evidence was not complete and the proceedings were adjourned to
16 February for contest mention. As discussed this morning, you make no concessions concerning these pending charges and in those circumstances,
I draw no conclusions concerning your guilt of these allegations. No bail application was made yesterday and the practical consequence of the pending charges is that you will remain in custody on these matters until granted bail, or until you are found not guilty, or guilty and have served any sentence that might be imposed.
53 I was told on 4 December that you had not been prescribed dexamphetamine for your ADHD and it seems likely that you will not be prescribed this medication because of the risk of it being taken from you and traded by other prisoners.
54 Mr Simmons has indicated that there is no clear evidence of you having an acquired brain injury.
55 Mr Simmons thought that imprisonment would almost certainly lead to a decline in your mental health, given that you have “previously developed a significant depressive issue whilst in custody and will be denied dexamphetamine”. He thought you needed much support in the community if you were to “stay away from illicit substances”.
56 I accept that whilst in prison you will find absence of contact with your children difficult.
57 Today Mr Richter told me you are making the most of your time in prison. You have enrolled in courses, but are unable to undergo them without being a sentenced prisoner. You were initially in a closed unit, then transferred into the general population, but you requested a return to a lockdown unit. You find prison onerous.
58 The critical question is whether it is appropriate to release you on a CCO as Mr Richter has submitted, although the commencement date would have to be delayed, or to impose immediate imprisonment in combination with a CCO as submitted by the prosecution.
59 In my view, a term of imprisonment is required.
60 I accept the submissions from both counsel that a combined sentence of imprisonment, coupled with a CCO can be imposed for all of the offending, or at least all of the indictable offences, as permitted by s.44 of the Sentencing Act 1991. In any event, it would be open to me to impose such a penalty as an aggregate sentence.
61 I had you assessed to determine your suitability for release on a CCO and you were found suitable.
62 You will be convicted of the summary offence of committing an indictable offence whilst on bail and discharged.
63 You will be convicted on all of the four indictable charges and sentenced to a term of six months' imprisonment, in combination with a CCO for two years, to commence on release from prison on completion of this sentence of imprisonment.
64 You have served 41 days in pre-sentence detention and this is to be reckoned as time already served under the sentence I have imposed.
65 Does your client have a licence?
66 MR RICHTER: I actually don't know, Your Honour.
67 HIS HONOUR: She is shaking her head. In any event, I will cancel any licence and disqualify your client from obtaining a licence for a period of three months.
68 The conditions of the CCO are:
(1) that you are to be under supervision;
(2) that you are to perform 150 hours of unpaid community work;
(3) that you are to undergo treatment and rehabilitation for drug abuse or dependency;
(4) you are to undergo treatment and rehabilitation for psychological, neuropsychological and/or psychiatric treatment.
69 I note that although Mr Simmons indicated that there was no evidence that you had suffered an acquired brain injury, those assessing you for suitability for release on a CCO considered that this matter should be further investigated.
70 I am not sure how s.6AAA can sensibly apply to the type of order I have imposed, but doing the best I can, had you not pleaded guilty, I expect I still would have imposed a combined sentence of imprisonment and release on a CCO, however the period of imprisonment would have been greater, probably nine months.
71 Anything that needs to be corrected that counsel can identify?
72 MS WARREN: No, Your Honour, no.
73 MR RICHTER: No, Your Honour.
74 MS WARREN: As Your Honour pleases.
75 MR RICHTER: As Your Honour pleases.
76 HIS HONOUR: I know your client has been in gaol for quite some period now, but I am troubled about some of the matters that were raised by Mr Simmons and I cannot remember whether at any stage, material has been provided to the gaol authorities concerning her condition, as described by Mr Simmons and I think it is desirable if I provide the prison authorities with a copy of his two reports.
77 MR RICHTER: Yes, Your Honour.
78 HIS HONOUR: Particularly given that Ms Sutton has expressed suicidal ideation in the past.
79 MR RICHTER: Yes.
80 HIS HONOUR: So I will do that and I will make that note on the appropriate records.
81 MR RICHTER: Yes, Your Honour, that's appropriate.
82 HIS HONOUR: All right, I think I will - - -
83 ASSOCIATE: It is ready, Your Honour.
84 HIS HONOUR: It is ready?
85 ASSOCIATE: Yes, it's printing.
86 HIS HONOUR: Can I get Ms Sutton to sign that and would you mind assisting her please, Mr Richter.
87 MR RICHTER: No, of course, Your Honour.
88 HIS HONOUR: Thank you. All right, nothing else?
89 MR RICHTER: No, Your Honour.
90 MS WARREN: No, Your Honour.
91 HIS HONOUR: Thank you both for your assistance.
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