Director of Public Prosecutions v Tansey
[2014] VCC 1150
•17 July 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00775
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAIN TANSEY |
| JUDGE: | HER HONOUR JUDGE HAMPEL | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 17 July 2014 | |
| DATE OF SENTENCE: | 17 July 2014 | |
| CASE MAY BE CITED AS: | DPP v Tansey | |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1150 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Nida | OPP |
| For the Accused | Mr D. Sala | Balmer and Associates |
HER HONOUR:
1 Kain Tansey, you had never been dealt with for committing criminal offences until four years ago, when you were 28.
2 Since then, you have been before the Magistrates Court four times, for multiple charges of dishonesty, drug use and possession, and using various illicit means to obtain drugs, property damage, and driving offences. You have received fines, a community based order, which you breached, suspended sentences, which you breached, and the Magistrates Court ones of which were restored, and short terms of imprisonment which you were required to immediately serve.
3 More significantly, you have previously been sentenced by this court for armed robbery. For that offence, you received a sentence of 18 months imprisonment, suspended for two years.
4 Surprisingly, although you were brought back before the Magistrates Court within nine months of receiving that suspended sentence from this court, that is, in June 2011, and there were dealt with for further offences, presumably committed after the imposition of the suspended sentence, and for breaching the community based order which His Honour Judge Montgomery had been told you were fully compliant with at the time of sentencing by him, no breach proceedings were taken in respect of the County Court imposed suspended sentence. You were again before the Magistrates Court two months after that for further offences, and again, that did not stir the responsible authorities to institute breach proceedings in respect of that County Court suspended sentence.
5 In one sense, fortunately for you, the time for initiating breach proceedings in respect of that suspended sentence has now expired. However, apart from concerns about the diminution in public confidence in an accountable sentencing regime brought about by the failure to take breach proceedings in respect of His Honour Judge Montgomery's sentence, it is possible that this offending could have been avoided had breach proceedings been taken in a timely fashion in respect of His Honour’s sentence, and your downward slide into resumption of drug use and offending been arrested by the restoration of that sentence. So although I said in one sense it was fortunate, in other sense it may have been unfortunate both for you and for the community. I want to make it very clear though, I say it is through no fault of yours that breach proceedings were not taken in respect of that suspended sentence.
6 The offences to which you have pleaded today are consistent with your past pattern of offending.
7
You have pleaded guilty before me to one charge of theft, one charge of armed robbery, and one charge of possession of a drug of dependence. The charges arise out of events that occurred on the afternoon of Sunday
9 February this year. At the time of your arrest the following day, 10 February, police located a large number of Oxycontin tablets inside your bag and that constitutes the subject of Charge 3, the charge of possession of a drug of dependence, the drugs being part of the proceeds of what was obtained in the course of the armed robbery, the subject of Charge 2.
8 So, going back to 9 February 2014. On that afternoon, you were captured on CCTV footage stealing an imitation pistol from the ‘Crazy Bargain’ store in Box Hill. You purchased and used paint pens to make that imitation pistol look real. You had with you things that you had prepared specifically, a homemade sheath, a large rock in a rubber glove, and a fishing knife.
9 In your interview with the police after your arrest on 10 February, you admitted stealing the imitation pistol with the intention of using it to assist in an armed robbery to obtain Oxycontin. You said that earlier on that day, that you had taken "a lot of Rivotril", an anti-epileptic drug, that you had been to a night club, that you had been drinking alcohol, that you had abused the Rivotril prescription medication and that you had had no sleep.
10 Having stolen the imitation pistol and doctored it to make it look real, you then went to the Forest Hill Medical and Dental Clinic. You used the sheath to force open the letterbox of the medical clinic and you stole hundreds of letters addressed to doctors and patients. It is the stealing of those letters addressed to the doctors and patients that is the subject of Charge 1, the theft. The stealing of the imitation pistol is wound up in the circumstances related to Charge 2, the armed robbery. You opened a number of the letters that you stole from the medical centre, in the hope that you would locate blank prescription books or bank cheques. In one of the envelopes you opened you found an NAB cheque, you inserted your name on that and indicated that your intention was to bank the cheque. In the circumstances following your arrest, all of the mail that you had stolen was recovered and returned to the medical centre.
11 But, after stealing the letters, you entered the medical centre and made your way to a consulting area, a place that is only accessible to medical staff or to patients in the company of medical staff. You, however, had managed to find your way in alone and when accosted said that you were looking for a band-aid, a patently false explanation. You left when asked to do so and then having been thwarted in your attempts to try and find a way of getting Oxycontin there, you spent the next hour or so, you told the police, trying to psych yourself up in order to commit an armed robbery on the pharmacy in order to obtain Oxycontin. And that is exactly what you did.
12 You put the pistol down the front of your trousers but with the handle visible, and went into the pharmacy. You first made demand of the young female attendant, asked for the pharmacist who came to assist you. You then showed him the pistol and demanded the Oxycontin. He unlocked the drug safe, gave you the Oxycontin and Endone that he had in the pharmacy and you left. All of this was captured on CCTV and you told the police when questioned that you had stolen the Oxycontin in part for your own use but also that you planned to sell some of it and that you had made arrangements for selling some of it on to other people.
13 When you left the pharmacy with your stash of Oxycontin and Endone, you went to a nearby school, took some of the tablets yourself, too many it would appear and passed out. You later came to and went to a nearby hotel where you asked the staff to call an ambulance and you were taken to Box Hill Hospital.
14 On your release from there the following day, you were arrested and made full admissions to the theft of the mail, the armed robbery, obtaining the Oxycontin, the possession of the Oxycontin and your intention to sell some or all of it.
15 These are clearly serious offences.
16 Theft of a mass of medical mail in the hope that you might find in some of it cheques or prescription pads is serious offending. It is clear that you gave no thought to the risk to patients or to the compromise of patient care from the wanton theft of medical centre mail, mail which was of no assistance to you but could have been of great significance to the health and to the treatment of the patients of the medical centre.
17 It was fortunate that you were arrested so quickly and to your credit that in your cooperation, that you took the police to where the mail was and it was able to be recovered and returned. But that is, in a sense, more fortuitous circumstance than any consideration or planning on your part, of thinking of the needs and interests of the patients to whom that may have related.
18 Armed robberies of pharmacies are serious and prevalent. Both the young attendant to whom you first spoke and the pharmacist are properly regarded as victims of the armed robbery. They were just at work, just doing their jobs. It is not part of a job description of a young girl working in a pharmacy or of the pharmacist, to be threatened with a gun, a gun that they do not know is false and to be forced to hand things over. No victim impact statements have been provided either by the pharmacist or by the attendant but it is not necessary to have individuals set out the actual effect on them to understand the likely effect. Not just the fear on the day, but the recurring fear that they may suffer.
19 The possession of that quantity of Oxycontin, stolen with a clear intent to sell much of it therefore to make money for yourself has little mitigating that can be said about it.
20 It is clear therefore, that subject to considerations personal to you, denunciation, just punishment and general deterrence must be given proper weight in the sentencing process.
21 You have expressed, and consistently so from the time that you were first arrested, regret for your actions, and empathy for your victims. But the very fact that you can so articulately express empathy for the victims and acknowledge the wrongness of your actions and an understanding of the harm or likely harm caused to them, is troubling. The very clarity that you are able to express of the understanding of the harm that could be caused to the victims and yet your decision to proceed regardless or not to be deterred by the likely harm to your victims, highlights the need in this case to give weight to specific deterrence, to protection of the community and in combination with the other matters to which I will now refer, to temper the weight otherwise to be given to your prospects for rehabilitation.
22 In your early childhood, you obviously had some significant trouble. By the age of five, you had been admitted to a specialist unit at the Austin Hospital because of troublesome and disruptive behaviour and some very troubling, highly sexualised behaviour that appeared to be indicative of you yourself having been sexually abused or exposed to trauma. Whilst you then and still maintain no recollection of sexual abuse, there are aspects of your behaviour then and since that have led a number of experts who have looked at you to consider you may have been exposed to significant trauma of some sort in your childhood. The intervention at the Austin seemed to be of significant assistance to you. After a period of special schooling at the Austin, you were able to be reintegrated into mainstream schools where you remained until you left at Year 10. Your schooling during that period seemed to be perfectly unremarkable in the sense that you were able to engage, that you were able to pass your normal milestones and you left school literate, numerate and with the levels of education one would expect from a person of overall average intelligence. You were teased and bullied at times at school but nonetheless you seem to be able to deal with most of that. That was all the more remarkable because family circumstances were not so easy.
23 Your mother had a history both of cannabis abuse and of psychiatric inpatient admissions and part of your extended maternal family had had significant mental health issues, including diagnosed depression. One of them took their life. The relationship between your parents ultimately broke down and by the time you were about 13, you made a choice to go and live with your father. That seemed to be a better and more stable background for you and you maintain a good relationship with your father and your two siblings and he, most importantly, remains a loving and supporting parent to you.
24
Since leaving school and up until the age of 28, you had a good employment history. Although you were relatively young to leave school, you obtained employment early on and whilst you had a number of changes of job, some of those jobs you held for three years or more before moving on to something else. You were making choices about where you wanted to be rather than being sacked or found to be unsuitable for the job you had. That is also significant because I am told that from about the age of 18, you began abusing various drugs and alcohol, yet until the age of 28 you maintained employment and were not in trouble with the law. During that time you had two long term relationships, the second of which seems to be in part an explanation of your decline into less controlled drug abuse and into criminal behaviour. I was told that your second partner was also a drug user and was abusive towards you, physically and emotionally. Your drug use worsened considerably during your relationship with him. He was your
co-offender in much of your earlier offending and that relationship had come to an end before you were sentenced for the other armed robbery by His Honour Judge Montgomery. From what I have been told you have not been in another significant relationship since that.
25 I was provided with a number of psychological reports, one from Ms Carla Lechner, which was prepared for the purposes of this plea and three reports which had been provided to His Honour Judge Montgomery and relied on in your previous armed robbery sentence: one from Dr Monks from Forensicare, one from Mr Rory Ford, counsellor, and one from the Office of Corrections, which was a progress report in respect to the community based order that you were on at the time that His Honour Judge Montgomery sentenced you.
26 Although differing in some details of your history generally, and your substance abuse history in particular, they present a broadly similar account. You have abused various drugs and alcohol since your late teens. At various times, the drug of choice has been cannabis, benzodiazepines, and more recently prescription opiates such as Oxycontin. You have also more recently abused Rivotril, an anti-seizure drug used to treat epilepsy but susceptible of abuse, and Valium. You have had what might be called short term experimentations with a number of other drugs, heroin, ecstasy and GHB and ice, but the ones that seem to have been the more constant drugs of abuse for periods of your life have been cannabis, benzodiazepines and the prescription opiates.
27 According to Ms Lechner's report, you present now with significant symptoms of clinical depression. I noted that you reported to her suffering depressive symptoms for much of your adulthood, but noted that you have only recently been treated for it. How much of that is related to your substance abuse, particularly the cannabis abuse that seemed to be used heavily by you from the age of 18 through to your early twenties, and alcohol, is not able to be determined. Similarly, the significance of the reported maternal family history of depression in predisposing you to suffering depression is unclear. The circumstance of your childhood and upbringing, the discovery of some of the more abusive aspects of your childhood, things that you were not aware of at the time but became aware of later, also could well have had an effect on you but the correlation again is not clear.
28 In 2010, when Dr Monks from Forensicare assessed you, he said at that time your primary diagnosis was alcohol and drug dependence, but he noted that you had also previously had a diagnosis of borderline personality disorder, and noted the past history of depression. It is unclear to me on the materials whether the depression was diagnosed before you first started appearing before courts, but certainly you have consistently recounted a history of depressive symptoms well before you might have sought and obtained medical treatment and diagnosis. But it seems that it is not since 2010 when you were already in the cycle of court appearances, that there was any concerted diagnosis or prescription of antidepressant medication or attempts to refer you to appropriate counselling.
29 You told Ms Lechner that you had been previously diagnosed as suffering bipolar mood disorder but you now believe that to be a wrong diagnosis. She also said that you also exhibited symptoms of what used to be known as Asperger's disorder, now classified as part of autism spectrum disorder.
30 Whatever the correct diagnoses are and whatever the correct labels are, it seemed to me clear on the way in which the plea was presented that your drug dependency was the major reason for this offending. As such, that was not, and quite properly, relied upon as a mitigating circumstance. Similarly, reliance on any of the principles in R v Verdins was expressly disavowed. Your history, and these various diagnoses, are clearly relevant to your background and to the circumstances of the offending, and I take them into account as part of the general mix.
31 I also take into account your cooperation with the police on your arrest, the full admissions you made when questioned, your early plea of guilty and your acceptance of the consequences, as evidenced by your conduct since the arrest. In particular, I accept that you accepted from the time of arrest that a sentence of a term of imprisonment was inevitable for you. You did not apply for bail and have used your time on remand to engage in what gainful employment has been available to you.
32 You have, I am told, been working as a billet in the kitchen at the MRC, and you have recently been upgraded to the highest classification, that of essential worker. That is a trusted position, it brings with it privileges, it recognises good past behaviour and good potential, but it requires continued good behaviour, consistency in work and application to it and of course, abstinence from illicit substances. So you have proved yourself and set goals for yourself to continue to achieve. I accept that and I accept that by being classified as an essential worker, that gives you, in effect, full time work in the kitchen. It keeps you occupied, and gives you a concrete way of demonstrating your commitment in a secure environment to becoming drug free and working towards your rehabilitation.
33 I accept that all of this, together with your admissions and your early plea, demonstrate remorse in the sense that that terms has been used by the Court of Appeal in Barbaro and Zirilli[1], that is, that you are showing in concrete ways a desire to change your ways and to get away from a pattern and a history of substance abuse and related offending.
[1]Barbaro; Zirilliv R [2012] VSCA 288.
34 You have good family support. Your father and your siblings are at court and it is clear they have maintained contact with you whilst you are in custody and are actively engaged in talks with you about what can realistically be arranged between you and them upon your release from custody. Your father impresses as having a realistic commitment to assisting you, by offering continued love and support but with setting boundaries and without condoning drug use or offending.
35 Mr Sala’s plea was directed to reflecting these matters that I have identified that count in your favour, and encouraging your continued commitment to rehabilitation, by structuring the sentence, the one he acknowledged was inevitably to be one requiring a term of imprisonment but allowing a considerable gap between the head sentence and the non-parole period. That is in all of the circumstances clearly a sound submission.
36 You have shown that you have benefited from the structured environment in prison, that you are keen to work and demonstrate that you can be trusted. You have so far resisted the lure of illicit drugs and the more you can do so in prison, the better equipped you will be on release to maintain that resolve. If you participate in drug and alcohol programs in prison and on your release you will again be better equipped to build on the progress that you have been able to make so far in remaining drug free since your arrest. You have in the past, whilst in the community, demonstrated that with support, you can for extended periods remain drug free and engage appropriately and positively in counselling. Whilst relapses are, to some extent, understandable in people who have had long term substance abuse histories and they are disappointing when they happen, the longer you can remain drug free before you relapse and the more quickly you can pull yourself out of each relapse period, the more likely you are to be able to have a sustained period of freedom from drug abuse, the better off you will be and of course, the better off the community will be.
37 It is clear from what I have said that I accept that correlation between your drug use and your offending. Obviously, the period immediately after release from prison is a challenging time for anyone and particularly for somebody who has had a drug abuse history. I am very strongly of the view that both you and the community would benefit if you were offered and afforded the support that parole can offer so that on your release you can, with still structured support but whilst living back in the community again, make that transition from prison to completely free living in the community without resorting to substance abuse and spiralling again into uncontrolled substance use and linked offending. The sentences that I impose are designed to do that, to reflect those sentencing principles, the ones that point to the imposition of the sentence, the ones that count in your favour to give you hope for the future and to give you prospect of a considerable period of support upon parole, if you continue to prove yourself in custody and the parole board should see its way clear to release you on parole.
38 I have taken the view that so far as Charge 1 is concerned, that that sentence should be served wholly cumulatively upon the sentence on Charge 2, the armed robbery because it is quite separate offending and because of the matters I have raised in relation to the harm or the potential harm from stealing correspondence like that without thought given to the risk to the patients and doctors that are compromised to their care, for something that was totally out of your interest.
39 As far as the armed robbery is concerned, the sentence is a higher one than would be given to a first offender for an armed robbery because you do have a previous conviction for armed robbery and it is a relatively recent previous conviction. It is also higher than many first offenders get for armed robbery because you are a 32 year old now, 31 at the time. You have a maturity and you should have a maturity that should better equip you to make conscious choices and to be able to withstand some temptation. The law rightly makes an allowance for young people who are immature, whose brains have not fully matured, but you are not in that category.
40 So far as the sentence for possession of the drug of dependence is concerned, as is clear from the discussion I have just had with Mr Sala, you fall into the higher of the two possible sentencing ranges for that, that is, to a maximum of five years imprisonment, not to a maximum of one year imprisonment, because on your frank acknowledgement to the police, your possession of those drugs was not just for your own use, but also for a purpose related to trafficking. I have imposed a period, but a modest period, of cumulation in respect of the sentence for the possession of drugs with the sentence for the armed robbery. They are very closely linked but it is the trafficking aspect to others that leads me to conclude that I should do a small but partial cumulation of the sentence on that. I have indeed allowed a significant gap between the head sentence and the non-parole period.
41 I hope that in the time that you are in custody that you will have made available to you not only appropriate drug and alcohol programs to assist you upon your release but also that you will also have available to you medication for your depression and that you will also have available to you some counselling or talking therapy to assist you in strategies to deal with the underlying depression and to deal with the drug use. I also hope that you are considered to be suitable for release on parole and that the parole authorities will assist you again in having you engage in drug and alcohol rehabilitation programs as part of your condition of parole and that they assist you in continuing your relationship with your family so that you and they can live harmoniously and safely together but without pressure either from you to your father and siblings or from they to you of unrealistic expectations.
42 Could you now please stand.
43 Kain Tansey, on the three charges to which you have pleaded guilty, you are convicted.
44 On Charge 1 of theft of the mail, you are sentenced to be imprisoned for a period of nine months.
45 On Charge 2 of armed robbery, you are sentenced to be imprisoned for a period of four years. That is the base sentence.
46 On Charge 3 of possession of the drug of dependence, you are sentenced to be imprisoned for a period of 12 months.
47 I direct that nine months of the whole of the sentence on Charge 1 and three months of the sentence on Charge 3 be served cumulatively upon each other and upon the sentence on Charge 2. That makes a total effective sentence of five years and I have fixed a period of two years and nine months as the time that you must serve before being eligible for parole.
48 I declare that you have spent 157 days in pre-sentence detention and direct that be counted and reckoned as part of the sentence already served.
49 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of seven years and I would have fixed a period of five years as the term that you would have had to have served before being eligible for parole.
50 I have been asked to make orders for compensation, forfeiture and disposal. You have although had very short notice of those, consented to the order for compensation to Hung Chan in the sum of $600 and to the forfeiture order and to the disposal order in its amended form, that is, in respect of all of the items in the schedule but for Item 2, the white iPhone. Are they all the orders that are required to be made?
51 COUNSEL: As Your Honour please.
52 HER HONOUR: Arithmetic correct?
53 COUNSEL: Yes, Your Honour.
54 HER HONOUR: Do the orders reflect what I said I intended to do?
55 COUNSEL: Precisely, Your Honour, thank you.
56 HER HONOUR: Thank you. Mr Tansey, I have to remain in court for the time that you are present in the dock although I suspect you had some opportunity to speak to your family members whilst I was off the Bench. I will remain on the Bench so you can speak briefly to them again before you have to leave.
57 MR SALA: Might I briefly approach to make sure things - - -
58 HER HONOUR: Yes.
59 MR SALA: Thank you, Your Honour.
60 HER HONOUR: Could you remove Mr Tansey please?
- - -
0