Director of Public Prosecutions v Tobin

[2017] VCC 1175

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-01307

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMANDA TOBIN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	22 August 2017
CASE MAY BE CITED AS:	DPP v Tobin
MEDIUM NEUTRAL CITATION:	[2017] VCC 1175

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr A. Patton
For the Director of Public Prosecutions	Mr N. Hutton

HIS HONOUR:

1Amanda Tobin, you have pleaded guilty to one charge of armed robbery, one charge of burglary and one charge of theft.  Those crimes carry maximum penalties of 25 years, 10 years, and 10 years; respectively.

2You have also pleaded guilty to uplifted matters of use heroin, fail to answer bail and contravene a bail condition.  Those crimes carry maximum penalties of one year, two years, and three months.

3You are now 32 years of age, you pleaded guilty at the earliest reasonable opportunity and made full admissions to police.  As I understand it, you nominated the co-accused in your record of interview.

4I accept that your plea of guilty is accompanied by appropriate remorse and, of course, you must get the utilitarian benefit of that plea.  I have indicated you made admissions and that adds to the value of the plea that you have entered.

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

6Insofar as your criminal history is concerned, there are matters from some time ago and they are, in my view, absolutely no significance in this sentencing process and did not involve convictions in any event.

7I note from the outset that your co-accused, who did have a more significant criminal history, received a sentence of 18 months, plus a community corrections order.  I think you are in a very different position to him, by reason of your personal circumstances and I will outline that shortly.

8Summary of the offending is that you were in a relationship with a
Mr Washfold-Jones.  In August 2016 you were using ice and heroin.  A decision was made to, apparently, burgle a unit.  So on 4 August, you and your
co-accused went to a back of the unit in Dandenong.  You injected heroin.  You climbed in through a window, which Washfold-Jones had broken, and you opened the backdoor.  The pair of you searched the house, collecting items which were put into a bag and then took off up the road.

9Sometime later the owner of the house arrived home, saw broken glass and walked outside.  He saw the two of you up the road, he also saw his possessions on the ground and blue bag that he owned in the possession of the two of you.

10At approximately 5.40 pm, police were travelling east along David Street when they observed your co-accused step on the road to try and stop them.  They observed blood on him.  At that time you were sitting on a wall with the bags by your feet.

11You made full admissions when you were arrested and I cannot really take the matter much further.  It is clearly fairly hopeless sort of offending and my understanding is that items taken were food stuffs and all sorts of ridiculous unsaleable objects.  Were it not for the matter that follows, with the armed robbery, I dare say this would have been disposed of fairly quickly in a Magistrates' Court.

12The much more serious matter is that on 8 August, the two of you went into a United service station in Hampton Park.  About 30 seconds after you went in, he walked in from behind you, removed a large silver kitchen knife, grabbed you in a head lock and put it close to your throat.  He demanded cigarettes and cash from the man behind the counter.  He then produced a wooden pole from his pants, approximately two inches thick and started to hit the wiring above the service counter and said, "It will be trouble for you if I jump inside".  He handed over one packet of Rothman cigarettes and $80 cash.  The two of you then left the store together and with the co-accused still holding the knife to you.

13You were clearly aware that an armed robbery, of some description, was going to take place.  I accept from the submissions of your counsel that you were not sure how it was all going to work.  And on your instructions, even after the event, you were unable to score that night and immediately began to regret what you had done.

14I have read the victim impact statement in relation to that armed robbery and eloquently describes the ongoing trauma and psychological damage of offending such as this causes, and why in the normal course of events active custodial sentences are operative.  In any event you, again, made full admission to police and that is to go in your favour.

15Your co-accused, apparently, told the police he could not remember the incident.  But as I have indicated, you appear to have nominated him for police in any event.

16I do not have to go through the chronology of the history of the matter, it comes down to what this is all worth. 

17You have spent two days in custody, by way of presentence detention and I take that into account.

18The offending, certainly, the armed robbery has to be regarded as serious.  In the normal course of events, it calls for the application of general and specific deterrence; as well as denunciation and appropriate punishment.  In your circumstances you were 32 to when it occurred with, effectively, no prior convictions.

19After this you were put on a CISP program and complied well with that.  I have, before me, a report from Mr Parker; a forensic psychologist.  And also have a report from ACSO, in terms of you having been assessed for drug assessment.

20Your background is unfortunate, indeed.  You have described, and I have no doubt all of this is correct, that your parents were drug users.  That your father was in gaol when you were born, that you saw him die from HIV related conditions and you at the time only being about seven years of age.  Your mother continued to be addicted to heroin and when you were around about the age of nine, because of drug debts that she incurred, you were, apparently, kidnapped by somebody, and who I understand was, subsequently, gaoled for it - and sexually abused.  And again, as I understand it, your mother was not even aware you were not there for a couple of days.

21You have not had many jobs.  When you were 16 you fell pregnant at school and you left school at that point in time.  You have experience significant domestic violence in the hands of a former partner, that is the father to your youngest children, and have had intervention orders against him.

22It is quite clear that you have a, I would have thought, complex, post-traumatic stress disorder.  Including the kidnapping, the sexual assaults, the death of your father, and being the victim of domestic violence.  You have also, as is so common with woman who have been subjected to that sort of treatment, nightmares and you have been prescribed Seroquel for that.

23All those matters continue to operate upon you and you have engaged with mental health treatment whilst being released and that is very much to your credit.  I accept that you have been abstinent since September of last year and that, again, is very much to your credit.

24It would appear the prospects of your rehabilitation should be good.  The risk of you reoffending will depend, clearly, on whether you return to the use of drugs.

25It is pointed out in the report of Mr Parker, which I take into account, that you, because of the nature of your parents drug addictions and relationship; I suspect, you attended many schools, went to seven different primary schools and four high schools.  You were unable to maintain friendships because you moved so often, and your academic results were also impacted.  It is so often the case, in matters such as this, been having put through a large number of schools as a child; as I indicated there, relationships are not formed and it becomes very unsettling in later life.

26There seems to be history of mental illness in the family.  I do not, really, need to go into all that.

27The ACSO report points out your cannabis use from around about the age of 14.  You started using ice in September 2015, at the age 29.  You started to use heroin shortly after that as a means of getting sleep when ice affected and not having slept for days at a time.  They have pointed out in that report that subsequently you have been compliant with drug and alcohol counselling.

28Bearing in mind the significance or seriousness of the trauma that you suffered as a child and as a teenager.  And bearing in my you have to live with the dreadful consequences, as they often are, of post-traumatic stress, in a girl who has been in particular sexually abused.  It is my view that the fact that you have not offended until you were 29 or not used drugs of that sort till you were 29 is very much to your credit, and I would be prepared to say rare.  I am not saying it is unique, but yours is a situation where it is sad, indeed, to see somebody get into that position; having fought so hard to keep themselves together with such disabilities.

29In situation such as this, it is the normal situation where an active custodial sentence is imposed.  I have had you assessed for a community corrections order and you have been found to be acceptable.  I have read the CISP reports about the efforts that you made, whilst out on bail, leading up to these matters and obviously I am aware of what occurred with the co-accused.

30It is a situation where, obviously, your counsel relied heavily on the decision of Bolton and the subsequent cases that follow from that.  I think, also, in your given situation, with the lack of prior convictions and the prospects of the further that I can take into account; as the Court of Appeal said in the DPP v Leech, "It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which rebounds very much to the benefit of the community.

31And as Maxwell P said in the case of the DPP v Tokava, "A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community’s interest will be best served by that course. This Court should seek to promote public understanding of the fact that – apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself – there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime".

32As it stands you have three children and you have been making endeavours in respect of those.  I think the oldest resides with your mother and has his own difficulties.

33You are in a relationship with a non-drug using partner and have stability, and have accommodation stability.  All those matters, in my view, act as protective matters, in respect of your reoffending.

34Having given the matter consideration it is my view that a community corrections order does fulfil all the sentencing requirements and accordingly that is what I propose to do.  If you agree, you will be placed on a community corrections order, with conviction, which is a punishment in itself, for a period of three years.  You will be required to 250 hours of community work.  You will be required to do the drug and mental health treatment course, and in this situation I propose to have a condition of judicial monitoring.

35Insofar as that is concerned - I will make it 9.30, if this suits; I can be told if it does not.  9.30 am on 27 October when I am back.  All right, there will be no need for counsel to be here, no need for the Crown if they do not want to.

36MR HUTTON:  Yes, Your Honour.

37HIS HONOUR:  But you'd better.

38MR PATTON:  Yes, Your Honour.

39HIS HONOUR:  I'd also ask that I'd just be given a brief report from corrections - they'll see this - from corrections, as to how she's been going.  Now are there any other orders I need to make, 6AAAs inapplicable.

40MR HUTTON:  Disposal, Your Honour.

41HIS HONOUR:  I made that, didn't I?

42MR HUTTON:  I know you announced the 464 today but I'm not sure if you did the disposal last time.  It's done.

43HIS HONOUR:  Did I?

44MR HUTTON:  Yes.

45HIS HONOUR:  I normally do.  Yes, what I'll also do is I'll make the treatment hours - can be used as work hours.

46MR HUTTON:  Thank you, Your Honour.

47MR PATTON:  As Your Honour pleases.

48HIS HONOUR:  Do you want to go down with her Mr Patton?

49MR PATTON:  Thank you, Your Honour.  Thank you, Your Honour.

50(Community-based order signed and acknowledged.)

51HIS HONOUR:  All right.  Don't breach that, all right?  If you get brought back for a breach for that; for a stickup, it's that door.  All right.

52OFFENDER:  Thank you, Your Honour.

53HIS HONOUR:  All right.

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