Director of Public Prosecutions v Talisa
[2021] VCC 1043
•13 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 20-01175
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROSE TALISA |
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JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2020, 2 February 2021 (mention), 3 May 2021, 28 June 2021 | |
DATE OF SENTENCE: | 13 July 2021 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2021] VCC 1043 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – category 2 offence – early plea of guilty – impact of COVID-19 – parity
Legislation Cited: Crimes Act 1958 (Vic) – Sentencing Act 1991 (Vic)
Sentence: Imprisonment of 2 years and 6 months – non-parole period of 15 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Peter Triandos | Office of Public Prosecutions |
| For the Accused | Mr Jacob Kantor | Emma Turnball Lawyers |
HER HONOUR:
Introduction
1 Rose Talisa, you have pleaded guilty to an indictment containing a single charge of armed robbery contrary to s.75A of the Crimes Act 1958 (Vic). The maximum penalty for armed robbery is 25 years imprisonment. Further, as a result of the offence being committed in company with another person, it is a Category 2 offence under the Sentencing Act 1991 (Vic). Your counsel has conceded that none of the circumstances set out in paragraphs (a) to (e) of s.5(2H) apply. Accordingly, I must impose a custodial sentence upon you for the offence and the custodial sentence cannot be combined with a Community Correction Order.
2
This offence arises from an incident which occurred on the evening of
22 January 2020. At the time, you were 29 years of age.
Circumstances of the Offending
3
The full circumstances of the offending are set out in the summary of prosecution opening dated 5 November 2020 which was tendered as
Exhibit B on the plea.
4 However, in brief compass, shortly before 7.30 pm on 22 January 2020, yourself, your co-accused Mr Yak and another male Mr Deng attended at the KFC outlet at Wyndham Vale. Mr Deng remained at the KFC outlet, whilst you and Mr Yak walked into a nearby BP Service Station.
5
The victim in this matter, Mr Jain, was working as an attendant in the store. He was behind the counter when you and Mr Yak entered the store at
7.30 pm. Each of you were carrying a green shopping bag. The two of you approached the counter and you asked Mr Jain for two packets of cigarettes.
6 Mr Yak handed Mr Jain the shopping bag that he was carrying and both you and Mr Yak selected various items – a carton of Big M, three sandwiches, a packet of chips and a packet of beef jerky – and placed them on the counter. Mr Jain then scanned the items and, as he was placing them into the green shopping bag, you reached into the shopping bag that you were carrying and produced a 30-centimetre-long knife which you pointed at Mr Jain. According to one witness, you were holding the knife at about chest height and waving and pointing it at Mr Jain. Another witness was concerned that you were going to stab Mr Jain.
7 You told Mr Jain to give the two of you the items that you had selected for free. There were other customers in the service station waiting to be served at the time, including a woman who also worked as a console operator at that BP service station. She heard what took place and told Mr Jain to co-operate and to give the two of you the items.
8 After you had produced the knife, Mr Yak pulled his jumper over his head in an attempt to conceal his identity. He then grabbed the green shopping bag containing the items off Mr Jain and the two of you ran from the store. The total value of the items stolen was $165.00.
9 An eyewitness called the police who arrived a short time later and saw you, Mr Yak and Mr Deng walking together nearby. When the police called out to your group to stop and drop what you were holding, you all ran back along the road and through a floodway next to the service station before separating. Both Mr Yak and Mr Deng were arrested shortly thereafter, however, you managed to avoid police.
10 Just prior to being arrested, Mr Yak tripped and dropped the knife – which was in his possession by that time – and the shopping bag. Both items were seized by police and DNA located on the knife was supportive of your involvement in the offence.
Arrest, interview and remand
11 On 4 June 2020, you presented yourself at the Wyndham Vale Police Station and were arrested. You participated in a record of interview at the Werribee Police Station later that same day and told police that you had been going through a hard time since losing your kids, that you had lost your house and then had tried to take your own life. You also said that you had started drinking on a daily basis in December, after you had been prevented from seeing your son on his birthday. When asked about the allegations, you essentially gave no comment, although, at one point you did deny that you were involved. When asked why forensic material belonging to you had been located on the knife, you stated that anyone could have come into your house in Wyndham Vale, as you had not been there since your children were removed in November 2019.
12 You were remanded into custody after your arrest on 4 June 2020 and were released on bail on 12 June 2020. You remained on bail until 3 May 2021, at which point I revoked your bail and remanded you into custody. As a result, you have served 80 days of pre-sentence detention, not including today.
Victim Impact
13
Tendered on the plea as Exhibit A was a victim impact statement from
Mr Jain. He has been working at the BP Service Station since his arrival in Australia in late 2018 as he could not find a job in his skilled field of finance. He was working at night at both the BP part-time and as a taxi driver part-time to support himself and his wife in Australia and his family overseas. However, this incident has made him scared to not only work at his workplace and work at night, but also to leave his wife home alone at night. It has caused him to be anxious, worried and stressed when he is working as he feels unsafe and feels that he must always be vigilant and prepared for any threat that might come through the door. I have had regard to the content of this victim impact statement. There is no doubt that Mr Jain was, and remains, traumatised by this incident.
Prior criminal history
14 As revealed by the criminal record filed with this court, you have a relevant prior criminal history. Whilst there has been a gap in your offending between 2016 and now, between 2010 and 2016 you were sentenced in the adult jurisdiction in respect of multiple offences. These included, relevantly, three unlawful assaults, six charges of trespass and a number of dishonesty offences. Most significantly, in October 2015, you were sentenced in respect of theft, robbery and failing to answer bail and were convicted and placed on a 12-month Community Correction Order with supervision and treatment conditions.
15 These prior matters are relevant when considering the sentencing purposes of specific deterrence, community protection and rehabilitation.
Guilty Plea/ Remorse
16 This case resolved at a relatively early stage, only three and half months after you had been charged. The matter had been listed for a contested committal, however, you entered your plea of guilty prior to cross-examination of any witnesses.
17
Your plea is a significant one for a number of reasons. Firstly, it has saved
Mr Jain from the ordeal of having to give evidence and re-live the traumatic events of 22 January 2020. Your plea also facilitates the course of justice and has utilitarian value, especially in the current climate of the pandemic and the significant impact that COVID-19 has had on the efficient running of the criminal justice system. I also accept that your plea of guilty is reflective of remorse for your conduct, despite your original partial denial of involvement when interviewed.
18 In the circumstances, I have given you a substantial discount on sentence for your plea of guilty.
Personal Circumstances
19 You are now 30 years of age. You are of Tongan background and are one of eight siblings to your mother and father. As a young child, your father was often alcohol-affected and you regularly witnessed your father physically abusing your mother. Your parents then separated when you were eight years of age and you remained living with your mother. You had a close relationship with your grandpa but he passed away when you were in grade 3. You found this especially hard.
20
You have, over more recent years, spent some of your time living with your mother, six of your siblings, some of your siblings' children and your own three children – Angel (who is ten years old), Kasili (who is nine years old) and Alisi (who is 5 years old). At other times, due to conflict within the family unit and DHHS involvement, you have lived away from home. Most recently, prior to your remand into custody in May 2021, you were 'couch surfing', having been excluded from the family home via an intervention order where your
13-year-old sister was named as the protected person.
21 You have a limited education and work history and have been subjected to a number of traumatic incidents in your life. At 13 years of age you were raped by a stranger. Your mother was supportive but you were faced with judgment by others in your family and the community. You undertook some counselling with CASA but noted that, from this point on, that you felt anger and rage more often and would invariably react to conflict with anger or violence. You also started drinking alcohol in the aftermath of the sexual assault, initially drinking three times per week as a 13-year-old, but with this use significantly increasing over the years, to the point where you would drink a bottle of spirits in one sitting and regularly drinking to the point where you would pass out.
22 You completed year 10 at The Grange P-12 College and shortly after met Angel's father when you were 18 years of age. During your relationship with both Angel's father and Alisi's father, from when you were 18 years of age through to when you were 23 or 24 years of age, you were subjected to domestic violence in the home. Whilst you were in the relationship with Alisi's father, a family violence intervention order was put in place with Alisi's father as the respondent. That order remains in force today, with an expiration date in 2022. I am told that Alisi's father has breached that order multiple times, both during the relationship and after it concluded, which has had a considerable impact upon you and your children.
23
In 2013, when you were 22 years of age, your doctor referred you to
Dr Andre Gomez, a psychologist at Wings Wellness Clinic, for counselling for depression. You attended at least six sessions with Dr Gomez at that time, but it appears that you were sporadic in your attendance and were ultimately exited from treatment in September 2014 on the basis of non-attendance. In 2015, you undertook a further five sessions of counselling with clinical psychologist Ilan Lohr. You were referred for anger management and associated psychosocial and legal issues and it appears that you undertook some cognitive behavioural therapy but did not fully engage in the testing or homework assigned to you during that therapy.
24 As noted in your record of interview, you were again having significant difficulties in 2019 in the period leading up to this offending. In early 2019, Alisi's father had returned to live with you and your children and is alleged to have physically abused both you and your children, leading to his removal from the home and criminal charges. You were referred by your doctor for counselling related to family violence in June 2019. You engaged well, attending six sessions between July and December 2019. It appears that, during the period of this counselling in September 2019, you and your children were confronted by Alisi's father near your home and he stabbed you in the wrist in front of the children. He had recently been released from prison at the time.
25 You then had your children removed from your care in late November or early December 2019 for reasons which were not entirely clear on the material before the court. Around that same time, you were unable to make payment on your rental accommodation and were evicted. You also started drinking alcohol on a daily basis and on 10 December 2019, you attempted suicide by hanging yourself. The documents from Werribee Mercy Hospital indicate that you were only kept in the hospital for approximately three hours before being released into the care of an aunt and uncle.
26 It would seem that there were still concerns about you in early January 2020, as only two hours before the offending, police had been asked to make a welfare check on you due to you having missed an appointment with a service provider. I have very little information from which to be able to glean the state of your mental health at that time, save that I am told that you attempted suicide again in February 2020. As with your previous admission in December 2019, you were admitted to Werribee Mercy Hospital but then discharged within a few hours into the care of an aunty.
27 On being released from custody in June 2020, you were placed on the Court Integrated Support Program (CISP) as part of your bail conditions. According to the CISP Final Progress Report dated 17 November 2020, during the period of the program you obtained a mental health care plan, attended one session of counselling with a psychologist, four sessions of counselling in respect of alcohol abuse, and completed a white card accreditation. Your case manager Ms Robinson, said that you engaged well throughout your CISP episode and made considerable efforts to address factors relevant to your offending.
28 Despite your progress in this regard, your counsel expressed concern that you appeared to be continuing to struggle with your mental health in recent times. Accordingly, I ordered a Forensicare Pre-Sentence Psychological Report to assist in the sentencing process.
29 You were assessed by Dr Rachael Watson in custody on 19 May 2021, approximately two and a half weeks after I had revoked your bail. You reported to Dr Watson that your mood had been low when you were first remanded but had improved since then. You have managed to engage in a couple of courses to date, as well as undertaking work in the kitchen at the prison. Further, you have signed up for one-on-one counselling, although, you are still currently on the waitlist for that service. It seems that your time in custody to date has acted as a circuit breaker of kinds, providing you with a measure of stability and time to reflect.
30 Whilst it is not submitted on your behalf that your mental health issues previously or currently are such as to enliven Verdins considerations, the report from Dr Watson is useful in a number of respects.
31 In Dr Watson's opinion, the death of your grandfather and the sexual assault, both of which occurred when you were young, are critical in understanding your current presentation. Dr Watson is of the opinion that you do not have a personality disorder or a mood disorder. Rather, you have significant adjustment reactions in response to stressors that can then lead to suicide attempts or self-harm at times. Dr Watson is of the opinion that it is possible that anger is a safer emotion for you to feel rather than grief, powerlessness, or distress. Further, you use avoidance strategies to deal with your distressing emotions, including blaming or lashing out at others, running away or leaving a situation, and consuming alcohol.
32 Insofar as your alcohol use is concerned, Dr Watson noted that you have poor coping skills and that you will quickly fall back into alcohol use in response to stressors. You also have low resilience in the face of setbacks and your progress tends to fall apart in response to crisis.
33 Whilst Dr Watson assessed you as a high risk for future violence and a moderate risk for imminent violence, it is apparent from her report that your prospects for rehabilitation are firmly wound up with your ability to engage in and benefit from a range of supports and treatment. Dr Watson recommends that you:
· be provided with intensive intervention, monitoring and support around your alcohol use, especially in the community;
· be provided with mental health support;
· undertake offence-specific intervention for your violence risk; and
· undertake additional anger-management work to assist in addressing your offending risk.
34 I have taken these recommendations into account when determining the type of sentence to be imposed in this case.
Impact of COVID-19
35 Your counsel submitted that in determining the type of sentence to be imposed in this case, I should also take into account that the burden of both your pre-sentence detention and any further period of imprisonment imposed upon you, is increased by reason of the COVID-19 restrictions which are currently in force. You have already been subjected to a 14-day period of quarantine, have been unable to have any face-to-face contact with your family and friends, including your three children and, at least in the near future, you will have a reduced ability to access courses, programs and work opportunities whilst in custody.
36 Further, whilst there are still concerns about COVID-19 transmission in the community, imprisonment will cause additional stress for both you and your family in respect of concern for your health should the virus spread in prison and concern for the health of your family in the community.
37 I do take these considerations into account in your favour.
Gravity of the Offending and Moral Culpability
38 Turning now to the gravity of the offending.
39 Prosecuting counsel submitted that the armed robbery falls into the mid-range of seriousness for this kind of offending, given that it was committed in company, on a soft target, in circumstances where you produced a knife.
40 By contrast, your counsel submitted that the circumstances of this offence, taken together with your personal circumstances, distinguish this armed robbery from the majority of armed robberies. In particular, Mr Kantor submitted that your offending was short in duration, in circumstances where you were affected by alcohol and suffering mental health issues. The target of the offending was cigarettes and food items to the value of $165 and there was an absence of other aggravating factors such as the application of actual physical violence or the occasioning of any physical injury.
41 Whilst I accept that you did not commit any physical violence or cause any physical injury through your conduct, I am still of the view that your offending falls in the mid-range of seriousness for this kind of offending. You committed an armed robbery at night, with a knife, on a soft target. Further, I note that whilst you committed the offence in company, you were the principal offender and your offending occurred in the presence of three members of the public, as well as the console operator, all of whom indicated in their police statements that they were scared and/or shaken up by the incident. In my view, there is nothing in the psychological material provided to the court that reduces your moral culpability for the offending or reduces the weight to be given to deterrence in the sentencing synthesis.
Prospects of Rehabilitation and Community Protection
42 Having said that, I do accept that you were in a situation of some crisis at the time of the offending. You were drinking, you had been subjected to considerable family violence, you had lost custody of your children, you were effectively homeless and, given your limited ability to cope with crises as identified by Dr Watson, you attempted suicide on two occasions shortly before and shortly after the offending and received very little support and assistance in the aftermath of those attempts.
43 It is apparent that you can make progress towards rehabilitation when you have stability and supports around you, as evidenced by both your progress on CISP and your stabilisation since you have been in custody. Dr Watson also observed that you are currently motivated to obtain behavioural change, in particular, to regain custody of your children. Ultimately, in my view, both your rehabilitation and ongoing community protection, are going to be best achieved by you having the opportunity for an extended period of supervision and support in the community upon your release from custody.
Co-Offender and Parity
44 In respect of your co-offender and parity, on 13 July 2020, your co-accused Mr Yak pleaded guilty before me to one charge of armed robbery and one charge of possession of a controlled weapon. On 17 July 2020, he was sentenced to six months imprisonment and a Community Correction Order for a period of two years in respect of the armed robbery. He was fined $750 for possession of the controlled weapon.
45 There are substantial differences between Mr Yak's circumstances and your own which justify disparate sentences in this case.
46 You fall to be sentenced as the principal offender with responsibility for instigating the offending and producing the knife. By contrast, Mr Yak was sentenced on the basis that he was unaware that you were in possession of the knife until you produced it whilst standing at the counter but became complicit in the offending after that time by remaining at the counter after the knife was produced, attempting to conceal his identity and then taking the bag containing the items from the counter and running from the store.
47 Further, Mr Yak fell to be sentenced as a youthful offender, with very limited prior matters and significant cognitive deficits that reduced his moral culpability for the offending, moderated the weight to be given to general deterrence and increased the burden of imprisonment upon him. Moreover, Mr Yak's impaired mental functioning provided him with a special reason under s.5(2H) of the Sentencing Act, thereby broadening the sentencing options available to the court in respect of the charge of armed robbery.
Sentencing submissions
48
Given the limited sentencing options available to me in this case, both
Mr Kantor and Mr Triandos submitted that the only available sentencing disposition would be a term of imprisonment with a non-parole period. However, both counsel further submitted that, given the particular circumstances of this case, it would be appropriate for you to be given the opportunity of an extended period of time on parole. I agree with this submission for the reasons I have already identified earlier.
49 In sentencing you, I have taken into account that you may be required to serve every day of the sentence which I impose, but I have also factored in the opportunity for you to have an extended period of time supported and supervised in the community on parole. Having carefully considered the various sentencing considerations raised by this case, I am of the view that the sentence I intend to impose adequately balances the need for deterrence, denunciation and punishment of your conduct, whilst also providing the opportunity for rehabilitation and community protection.
Sentence
50 Ms Talisa, you will be sentenced as follows. On Charge 1, armed robbery, you will be convicted and sentenced to a term of imprisonment of two years and six months.
51 I direct that you serve a minimum period of 15 months before becoming eligible for parole.
Pre-sentence Detention
52 The period of 80 days of pre-sentence detention, not including today's date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
S 6AAA Declaration
53 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that, had you pleaded not guilty to the charge for which you have received a term of imprisonment today and had been convicted of it, you would have been sentenced to a term of imprisonment of four years, with a non-parole period of two years and nine months.
Ancillary Orders
54 I note that there are no ancillary orders in your case, given that I have already made a disposal order for the knife on 17 July 2020 upon the sentencing of your co-accused Mr Yak.
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HER HONOUR: Mr Kantor, what I intend to do is to prove a copy of my reasons and also a copy of the Forensicare report and also the other documents to Corrections so that they can also be provided to the Parole Board so that they have the reasons why I have attempted to give, if possible - obviously, I can't interfere with their decision - but if possible, an extended period of time on parole for Ms Talisa. Have you got any issue with me forwarding all of those documents for that reason?
MR TRIANDOS: No, Your Honour.
HER HONOUR: All right. Are there any matters which either of you wish to raise, either about the sentence or the reasons for sentence?
MR TRIANDOS: No, Your Honour.
MR KANTOR: No, Your Honour.
HER HONOUR: No, all right. So, Ms Talisa, I know that sounds like a long time but there's a lot of things that I have to weigh up in the sentencing process. What I've endeavoured to do is to give you the opportunity, as long as the Parole Board allow you to be released at your earliest opportunity, to give you an opportunity to be able to have half your sentence affectively spent out in the community and only half of your sentence in custody. As I say, I don't control the Parole Board so I can't guarantee that, but that is what I'm endeavouring to achieve through this sentence. You've already done almost three months of the sentence, so you've just over 12 months to go and then you will be eligible for release on parole. I really hope that you are released at that earlier stage and that you're given lots of support when you return to the community, because I think if you are given that support, you really are somebody who could make big changes in your life and go to being a good mum and being able to have your children back in your care and I really do hope that happens for you, all right?
OFFENDER: Thank you.
HER HONOUR: All right. Mr Kantor, would you like an opportunity to be able to speak to Ms Talisa before we turn off the link?
MR KANTOR: Yes, if the court pleases, thank you.
HER HONOUR: All right. I'll step down and we'll get Mr Triandos off the link and then you'll be able to do that. All right, thank you.
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