Director of Public Prosecutions v Tuarae
[2023] VCC 1645
•14 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-22-02039
Indictment No. N10941432
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NIAHANA TUARAE |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 12 May 2023, 29 June 2023 and 1 September 2023 | |
DATE OF SENTENCE: | 14 September 2023 | |
CASE MAY BE CITED AS: | DPP v Tuarae | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1645 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – two charges of theft of a motor vehicle, one charge of armed robbery and one charge of dishonestly receiving stolen goods – uplifted summary matters – one charge of having been granted bail and without reason or excuse having contravened a conduct condition, namely to reside at a certain address and one charge of committing an indictable offence of armed robbery whilst on bail – pleas of guilty
Legislation Cited: Crimes Act 1958, s74, s88, s322T(i); Criminal Procedure Act 2009, s145; Bail Act 1997, s30A(1), s30B, Sentencing Act 1991, s3(1) and s5(2H); Mental Health Act 2014, s4(1).
Cases Cited:Worboyes v R [2021] VSCA 169; Phillips v R [2012] VSCA 140; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43; Guden v R (2010) 28 VR 208; R v Mills (1998) 4 VR 235; Balshaw v The Queen [2021] VSCA 78; DPP v Herrmann [2021] 160; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 296; Bugmy v The Queen (2013) 249 CLR 571; Dabaja v The King [2023] VSCA 209; Charles v The Queen [2011] VSCA 399; Farmer v The Queen [2020] VSCA 140 [51]; Fariah v The Queen [2021] VSCA 213 [25]; Marrah v The Queen [2014] VSCA 119; Barbaro v The Queen [2012] VSCA 288
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Kerlin | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr T McCulloch | Fitzroy Legal Service |
HIS HONOUR:
1Niahana Tuarae, on 12 May 2023, you pleaded guilty to the following charges on Indictment No. N10941432.
CHARGE 1 – That you, at Caulfield North in Victoria between 20 April 2022 and 21 April 2022, stole a Subaru Impreza sedan, registration ending 357, belonging to Ms Sims.
The offence of theft of a motor vehicle is contrary to s74(1)of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Section 89(4) of the Sentencing Act 1991, provides that where an offender is found guilty of stealing a motor vehicle and where a conviction is recorded, there is a mandatory period of licence cancellation to be ordered. There is no prescribed period of disqualification, but in the event that a court fails to specify a period, s89(5) of the Sentencing Act 1991 provides that the default period is three months.
CHARGE 2 – that you, at Preston in Victoria on 23 April 2022, stole a black Honda CRV, registration ending 168, belonging to Ms Serafim.
The offence of theft of a motor vehicle is contrary to s74(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Section 89(4) of the Sentencing Act 1991 also has application to this offence.
CHARGE 3 – that you, with two co-offenders at Westmeadows in Victoria, on 24 April 2022, robbed Ampol Service Station of certain property, namely, money, cigarettes, cigarette lighters and mobile phones, and at the time had with you an offensive weapon, namely a crowbar and sledgehammer.
The offence of armed robbery is contrary to s75A of the Crimes Act 1958 and carries a maximum penalty of twenty-five years’ imprisonment.
The offence of armed robbery is a Category 2 offence, as defined in s3(1) of the Sentencing Act 1991 where, as here, the offence was committed by an adult in company with one or more persons (see s3(1)(d)(a) of the Sentencing Act 1991). Accordingly, pursuant to s5(2H) of the Sentencing Act 1991, the Court must sentence you to a term of imprisonment (not including a combined sentence involving a community correction order) unless one of the relevant exceptions apply. Your counsel initially relied on the exceptions set out in s5(2H)(c)(i) and (ii) and also (e) of the Sentencing Act 1991. Ultimately, he relied only on the exceptions set out in paragraphs (c)(i) and (e).
CHARGE 4 – that you, at Greater Melbourne in Victoria, on 24 April 2022, dishonestly undertook in the retention of stolen goods, namely perfume, knowing or believing such goods to be stolen.
Such offence of receiving stolen goods is contrary to s88 of the Crimes Act 1958 and carries a maximum penalty of fifteen years’ imprisonment.
2Two summary charges were transferred to this court pursuant to s145 of the Criminal Procedure Act 2009. On 12 May 2023, you agreed to have these matters heard before this court and pleaded guilty to the following uplifted charges:
CHARGE 17 – that you, at Preston in Victoria, on 12 March 2022, having been granted bail did, without reasonable excuse, contravene a conduct condition, namely to reside at 24 Main Street, Thomastown, imposed on you by residing at 21A Newcastle Street, Preston.
Such offence is contrary to s30A(1) of the Bail Act 1997 and carries a maximum penalty of three months’ imprisonment or 30 penalty units (a penalty unit as at the date of the plea was $184.92 – the total potential fine, therefore, is $5,547.60).
CHARGE 18 – that you, at Westmeadows in Victoria, on 24 April 2024, did commit an indictable offence – armed robbery – whilst on bail.
Such offence is contrary to s30B of the Bail Act 1997 and carries a maximum penalty of three months’ imprisonment or 30 penalty units (see above).
3A disposal order is also sought in relation to your NFKEMB Apple iPhone. Such order is not opposed.
The circumstances of the offending
4Counsel for the prosecution tendered a document headed “Amended Summary of Prosecution Opening for Plea” dated 12 May 2023 (exhibit 1). I was informed by your counsel that the circumstances outlined in such document were accepted.
5I will not repeat all the contents of such document, but highlight the following important matters:
· You were born in October 2003 and are presently nineteen years old. At the time of the subject offending, you were eighteen years old, unemployed and living in Preston.
· Charge 1: Theft of motor vehicle
(i)You and unknown others, between 11.15am on 20 April 2022 at 6.15am on 21 April 2022, attended premises situated at Craddock Avenue, Caulfield North and entered the home of Ms Sims by an unknown means while she was sleeping;
(ii)You stole the keys to Ms Sims’ white Subaru Impreza from a bowl at the front door and stole the vehicle which was parked in the street;
(iii)The prosecution does not allege that you were the principal offender to the theft – rather the charge is on the basis that you were a passenger in the vehicle and complicit in the offending.
· Charge 2: Theft of motor vehicle
(i)At 4.15am on 23 April 2022, you attended the residential address of Ms Serafim in Preston and stole a black Honda CRV which was parked in a driveway;
(ii)Although Ms Serafim retained her keys, it is believed spare keys may have been stolen from inside Ms Serafim’s Lexus;
(iii)CCTV footage depicts you as a passenger in the stolen vehicle;
(iv)The prosecution does not allege that you were the principal offender to this theft, rather, the charge is from the basis that you were a passenger in the vehicle and complicit in the offending;
· Charge 4 – dishonestly receiving stolen goods
(i)At 6.20am, on 24 April 2022, two co-offenders attended the Chemist Warehouse situated in Campbellfield in the white Subaru Impreza (stolen from Ms Sims);
(ii)The co-offenders stole 197 bottles of assorted perfume;
(iii)Forensic analysis of your phone later showed that between 28 and 30 April 2022 you sought to sell the stolen perfume, sharing photos and price lists with contacts via SMS and Facebook messenger;
(iv)The Crown case is that you had joint control over the stolen goods and assisted with their disposal;
(v)It is not alleged that you participated in the robbery at the Chemist Warehouse;
· Charge 3 – armed robbery
(i)At 6.58pm on 24 April 2022, you and two co-offenders attended the Ampol Service Station in Mickleham Road, Westmeadows in the white Subaru Impreza. The co-offenders entered the store, which was open at the time, while you stood at the front of the store;
(ii)The two co-offenders approached and threatened the store owner, Ms Totawatte, with a crowbar and a sledgehammer. The co‑offenders screamed at her to “open the door”, before one of them climbed through the wire barrier, jumping the counter and demanding she open the cash register’
(iii)Ms Totawatte was frozen in shock and explained she did not know the password to the register;
(iv)The co-offender who jumped the counter grabbed and handed to the other co-offender the following items:
ꟷ two tills containing approximately $500 cash
ꟷ 228 packets of assorted cigarettes
ꟷ seventy-nine cigarette lighters
ꟷ approximately ten disposable mobile phones
ꟷ Ms Totawatte’s Samsung mobile phone;
(v)You kept watch at the front door for a short period of time, holding the sliding entrance doors open, before entering the store and assisting the co-offenders with loading the stolen goods into the white Subaru Impreza;
(vi)Ms Totawatte observed you get into the car and flee the scene with the two co-offenders, travelling north on Mickleham Road. She described herself being in shock at the situation, as it had never happened before. She feared her life was in danger;
(vii)Around 9.10am, the Subaru Impreza was located, ablaze, adjacent to Blake Street, Reservoir.
· Related Summary Charges 17 and 18 –contravening a condition of bail and committing an indictable offence whilst on bail
(i)On 12 May 2022, you, without reasonable excuse, contravened a condition of bail by residing at 21A Newcastle Street, Preston in breach of your bail condition that required you reside at 24 Main Street (Summary Charge 17).
(ii)You were on bail at the time of committing an indictable offence – armed robbery on 24 April 2022 (Summary Charge 18).
Arrest and interview
6The offending in relation to Charges 2 and 3 on the Indictment was captured on CCTV and reported to police. On 12 May 2022, you were arrested in relation to an unrelated manner. At that time your Apple iPhone was seized for analysis. Such analysis showed that that phone was connected to the sale of some of the goods in relation to Charge 4 on the indictment. You underwent a record of interview on 12 May 2022 in relation to the subject offending, and stated as follows:
(a) You denied being involved in any of the subject offending (Answer (“A”) 46‑50 at page 389);
(b) You refused to provide the names of your co-offenders (A291, page 362);
(c) You admitted owning matching runners and a matching Kathmandu jacket to those captured on the CCTV (A60-A110, pages 340-344);
(d) You were in possession of the Apple iPhone since the previous day (A27-31, page 337);
(e) You feared what might happen if you made admissions identifying the offenders to police (A277-299, pages 360-362);
(f) You admitted to being in possession of a mobile phone (0412 408 561), which was captured in cell-tower mapping in relevant areas on 24 April 2022 (A348-349, page 369);
(g) You had lost that phone at the Northland Shopping Centre about three or four days previously (A348-355, page 369 and A378-398, page 372).
7Following your arrest on 12 May 2022, you were remanded in police custody until released on bail at Melbourne Magistrates Court on 26 May, but were later re-arrested on 25 October 2022 and have been on remand since that date. I have been informed that your pre-sentence detention up to now, but not including this day, is 338 days.
Your criminal record
8Your criminal record, dated 8 February 2023, and which you agreed with, was tendered and marked as an exhibit (exhibit 2). It is to be noted that:
(a) At the Broadmeadows Children’s Court on 14 December 2021, you were charged with affray, four charges of committing an indictable offence whilst on bail, armed robbery, obtain property by deception, theft, unlawful assault, robbery and attempted robbery. Without conviction, the Children’s Court adjourned the matters to 9 August 2022 at Broadmeadows Children’s Court, with you being released upon entering a Good Behaviour Bond in the amount of $300. The following special condition applied to this order – for you to engage with Alice Minns and/or her nominee;
(b) Also at the Broadmeadows Magistrates’ Court on 14 December 2021, you were charged with theft from shop and unlawful assault, and that also was adjourned to 9 August 2022, again, on condition that you continue to engage with Alice Minns and/or her nominee;
(c) At the Heidelberg Magistrates’ Court on 13 April 2022, you were charged with attempted theft of a motor vehicle, committing indictable offence whilst on bail, theft, obtaining property by deception and dealing in proceeds suspected of being proceeds of crime. Without conviction, those matters were adjourned to 12 April 2023.
9I was informed by your counsel that on 22 May 2023 some outstanding matters were dealt with by the Melbourne Magistrates’ Court, with the disposition being an undertaking to be of good behaviour on a bond for 12 months commencing on 22 May 2023.
Chronology of events
10Counsel for the prosecution set out a chronology of events, as follows:
| DATE | EVENT | OUTCOME |
| 20-24 April 2022 | Date of Offending / Arrest | Offender arrested and charged |
| 12 May 2022 | Filing Hearing | Adjourned |
| 13 May 2022 | Filing Hearing | Committal Mention listed. |
| 26 May 2022 | Bail Application | Bail Granted |
| 4 August 2022 | Committal Case Conference | Adjourned to consider Defence Plea Offer |
| 23 August 2022 | Committal Case Conference | Adjourned for Defence to consider Prosecution counter-offer |
| 27 September 2022 | Committal Case Conference | Offender failed to appear |
| 25 October 2022 | Filing Hearing | Adjourned for Committal Case Conference |
| 4 November 2022 | Committal Case Conference | Committed SHUB plea of guilty |
| 23 March 2023 | Plea Hearing |
11The plea hearing on 23 March 2023 was administratively adjourned to 12 May 2023 (first day of this court hearing the plea), then adjourned to 29 June 2023 and briefly again on 1 September 2023.
12No Victim Impact Statements have been filed in this matter.
Your personal circumstances and background
13Your counsel tendered the following documents:
(a) A document headed “Submissions Outline”, dated 8 May 2023 (exhibit “A”);
(b) Psychological report of Ms Alison Mynard, dated 19 March 2023 (exhibit “B”);
(c) Letter from Ms Kirsty Moss, dated 9 May 2023 (exhibit “C”). Ms Moss is an housing outreach officer employed by Women’s Housing Ltd and in her letter dated 9 May 2023, she records that Women’s Housing Ltd is currently assisting you in a housing assessment and referral capacity at Dame Phyllis Frost Centre. In particular, Ms Moss states that Women’s Housing Ltd will assist you in the days following your release with temporary accommodation in a motel in your preferred area.
Also, Ms Moss notes that Women’s Housing Ltd has instructed you to attend Preston Haven Home Safe, your local access point for housing assessment and advice following your release. Preston Haven Home Safe can assist you with further crisis accommodation, referral to housing providers and support services, and assistance into affordable private rental programs;
(d) Letter from Ms Ninia Tairi, undated (exhibit “D”). In that letter, Ms Tairi describes herself as your maternal grandmother and having known you since the day you were born. She also describes her professional background is in managing the daily operations of residential support for people with disabilities and high complex needs and behaviours.
She notes that you are very upset about the subject charges and believes that you are sorry for what you have done. She also points out that you have been under tremendous stress with your father’s battle with liver cancer resulting in his death. She also confirms that you have been subject to physical and emotional abuse while in the care of your great aunt in New Zealand. During this time, she also records that your younger sister was molested by an uncle and you have always blamed yourself for not protecting your sister.
Also, she records that you are the oldest in your family and have been fiercely protective of your siblings, and that you have previously been involved in a domestic violence relationship which lasted for two years. Your parents were involved in gangs and domestic violence and, from your birth, you have had a “tough life”. She finally comments that any behaviour displayed that causes you to be charged here today is not reflective of who you truly are, but reflective of “the ongoing unresolved trauma evident in [your] life since birth”;
(e) Letter from you, undated (exhibit “E”). In that letter, you informed the Court that you “deeply regret” your actions causing suffering to the victims. You assert that your actions were extremely reckless and fuelled by intoxication. You note you are nineteen years old and have struggled in the past with substance abuse and self-medication as a way of dealing with the emotions of past traumas.
You still suffer with depression and anxiety as a result of your family background and separation from your siblings and also working through the grief and loss following the death of your father. You report you understand that, in the past, you have lacked direction and a sense of purpose, leading you to unhealthy behaviours, instability, crime and custody.
In particular, during your time in custody, you report that you have worked through your past behaviours and reconnected with your family, and have continued to commit to learning and growing as an individual to build a positive future. Also, you assert that you have a positive supportive network available to you upon your release from prison;
(f) Statement of results which consist of various certificates of courses undertaken by you during your period of remand. In particular, you have been very much involved with the operation of the prison kitchen, being exposed to a variety of skills;
(g) Forensicare report, dated 17 May 2023. In that report, authored by a registered nurse, Mr Gregory Lane, he notes he was provided with the psychological report from Ms Mynard, dated 19 March 2023.
He noted that, at his examination on 17 May 2023, you presented as stable in your mental state and reported motivation to participate in psychological counselling. In particular, you informed Mr Lane that you would like to focus on finding stable, independent housing, employment, recommence playing netball or rugby and not to misuse substances.
Ultimately, it was recommended that your mental health be made a condition of any community correction order made by the Court to promote wellbeing and reduce the likelihood of re-offending. In this respect, Mr Lane was of the opinion that your current mental state would not impede your ability to engage in a community correction order, or any recommended associated conditions.
14Partly based on some of those documents tendered on your behalf and partly based on various submissions made to me by your counsel, I note the following:
· You were born in New Zealand of Māori descent, with your mother being only fourteen years old at the time of your birth and your father seventeen years old. Both of your parents were involved in gangs when you were born and during your younger years. You recall that the most stable thing in your life was your maternal grandmother and, otherwise, there was no consistency or stability in your life as a child. In particular, you do not recall your parents being together when you were young, but they “lived around each other”.
· Child Protection Services were involved and you lived in and out of home placements throughout your childhood, as well as with your extended family. You grew up in Auckland, but was often moved from house to house, both in the North and South Islands of New Zealand.
· You have six brothers with the same mother, but different fathers; and your father has six daughters with different mothers. Over the years, all of the children were taken away by Child Services due to alcohol abuse, violence, gang activity and drug use. Prior to living with your great aunt, you reported to the psychologist that you were verbally abused and witnessed violence, but was not the target of any physical abuse.
· From the age of about seven to twelve you lived with your maternal great aunt (your grandmother’s sister), who you described to the psychologist as being “evil, jealous and abusive, and manipulative”. It was during this time with your great aunt that you were physically abused as well. In particular, you described to the psychologist that you were frequently labelled a “thief” by your great aunt, who would hit you, starve you and beat you “black and blue”. You never thought of escaping because there was nowhere to go, and on the occasions you did try and say something or run away, you got into even more trouble and belted even more.
· You finally left your great aunt’s house when you were about twelve years of age, but did not see your mother very often growing up, and explained that your father’s side of the family was always fighting over you and your sister.
· You informed the psychologist that your maternal grandmother was in a domestic-violence relationship and had come to Australia to lead a better life. Furthermore, your uncle and aunt also came to Australia to live, and it was planned that you and your sister come and live with them. In 2016, at the age of thirteen, you arrived in Australia.
· You had attended primary school in New Zealand, however your attendance was only sporadic and you moved to a variety of schools. On coming to Australia, you commenced Year 8 at a secondary school in Craigieburn, Victoria. However, in Year 9 you left school, describing yourself as not being “good at the academic work”, although stating that you can read, spell and write.
· On moving to Australia, you reported that you felt unfairly treated by your extended family and had some issues with your family, and sometimes clashed with your maternal grandmother. You were living with a partner for some years, and then was homeless with him. During these years you and he were often getting into trouble and you had a volatile relationship. You informed the psychologist that you felt you never had a good role model to understand what a healthy relationship looks like.
· In 2020, your father passed away from lung cancer and, due to your closeness to him, you struggled significantly over his death. In particular, you informed the psychologist that your distraction was committing crimes and armed robberies, and drinking alcohol. You also used marijuana, all of which you believed helped you to avoid your intense grief and emotions.
· Over the years since moving to Australia, you have occasionally spoken to your mother, who continues to live in New Zealand, but feel largely disconnected with her, and reported that your mother fluctuates with her own mental health.
· On leaving school in Australia, you obtained full-time employment at La Ionica Poultry in Thomastown on 10 November 2021 and worked there for a short time.
· You reported to the psychologist that alcohol has been an issue for you for many years since your early teens, often drinking a twenty-four-pack of alcohol every day. You described how you would get into a “zone” and it became an addiction for you, drinking in the mornings to get going. You described to the psychologist how it was like “drinking water”, just drinking to get through each day. Although other people told you to stop drinking, you continued nonstop. You also reported that you had two car crashes when intoxicated.
· Also, your friend, Bill, died several years ago, causing you to use around ten Xanax a day and ten Lyrica a day, and also to drink alcohol daily and heavily. You asserted to the psychologist that you committed the offending in this state and could not recall “half of the charges”.
· After being with a partner for two years, you reported that he became violent and abusive towards you. Police took out a safe contact order and then a no-contact order. Although, at stages, you wanted the relationship to resume, but noted that your partner could be nasty and verbally abusive towards you, causing your confidence being shattered.
· You record that, in your adolescence, you were often living on the streets and in trouble with the police, and usually you and Bill were always together. Prior to Bill’s death, you and Bill were “on the run” from police for eighteen months.
· In particular, you reported to the psychologist that, after Bill’s death, you felt unable to cope, felt overwhelmed and that nothing mattered anymore.
· You also reported that you were in a relationship with another man prior to your remand, however you separated from him when you were remanded in jail. You are still friends with this particular person.
The evidence of Ms Alison Mynard, clinical psychologist
15The clinical psychologist, Ms Alison Mynard, made a psychological assessment of you over a period of two hours on 3 March 2023, culminating in her report dated 19 March 2023 (exhibit “B”).
Ms Mynard had available to her the following information sources: letter of instruction from your solicitors, the indictment, prosecution opening, prosecution summary of offences, prior convictions, Youth Justice Bail Services assessment report, dated 30 July 2021, Youth Justice Bail Services final report dated, 10 December 2021, Youth Justice Bail Services assessment report dated 25 May 2022 and a support email from your grandmother dated 15 November 2021.
16Ms Mynard also gave evidence on 12 May 2023 (the first hearing day of the plea). In particular, she deposed that the matters of fact given in that report she continues to believe to be true and that the opinions expressed in such report on those factual matters continue to be held by her (Transcript (“T”) 49, Lines (“L”) 26-28).
17In her report, and confirmed in her evidence-in-chief, Ms Mynard is a qualified clinical psychologist, a member of the Australian Psychological Society, registered with AHPRA and a member of the College of Clinical Psychologists. Furthermore, she is also a qualified drug and alcohol counsellor, experienced in working with complex clients with forensic histories, drug and alcohol issues, and mental health issues. Her further academic qualifications include a Masters Degree in Clinical Psychology from Deakin University, a Post-Graduate Diploma in Drug and Alcohol and Post-Graduate Certificate in Adolescent Health and Development.
18She has been a psychologist for about fourteen years, and prior that that she was working as a counsellor. Her Masters Degree in Clinic Psychology involved preparation of a thesis, the subject being family substance abuse, antisocial behaviours and domestic violence, and how that impacts on young people growing up, and whether they are more likely to use substance and mental health disorders as a result of that.
19Ms Mynard gave evidence she has continued to work with both adults and children daily since she was admitted as a psychologist and treats people with substance use disorders.
20She was also queried about whether she had any expertise in treating people with an experience or background of trauma, to which she answered:
“Um, yes, so it’s my … main specialisation and I see people who have experienced trauma from a range of … places, including refugees, including complex trauma, childhood trauma … and comorbid issues such as substance use and trauma and severe mental health issues.” (T50, L37 – T51, L1)
21Ms Mynard was also queried as to whether, in the course of her practice, she kept abreast with current literature and she confirmed that was the case. Ms Mynard utilised the following psychological assessments – International Questionnaire for Complex Post-Traumatic Disorder, Prolonged Grief Questionnaire and the Alcohol Use Disorders Identification Test.
22After obtaining histories relating to your family, education, vocational and substance abuse, and the application of various psychological assessments, Ms Mynard diagnosed you to be suffering from:
(a) Complex PTSD;
(b) Complicated Bereavement Disorder;
(c) Borderline Personality Disorder (provisional diagnosis);
(d) Alcohol Abuse Disorder.
23At the time of her assessment, you were not on any medication and reported that you had not been on medication in the past. You did report that you had undergone a psychological assessment in 2021 or 2022, when you were at Parkville for other past offending. When you were in New Zealand, you reported that you had undertaken some counselling for one session, however, reported that you were not in a good headspace and did not engage. Ms Mynard recorded you reported that, since being remanded at the Dame Phyllis Frost Centre you had been engaging in a warehousing and retail course, and other courses that you can do.
24In her report, Ms Mynard opined in part as follows: that you had grown up in a volatile environment with very young parents who were unable to look after you, and you were exposed to violence, drug use, and abuse, and moved around between extended family, and then was in the care of child protection also.
25Ms Mynard stated in her report that, as a result of your trauma and instability as a child and adolescent, you have developed traits consistent with Borderline Personality Disorder and Complex Post Traumatic Stress Disorder (“PTSD”). Such conditions lead to you viewing yourself in a negative light with a negative self-concept and feelings of worthlessness. You have developed unhealthy relationships, because interacting with other people has become difficult when you have a fundamental lack of trust in others. This has led to isolation and alienation for you, when you could not trust your own parents, extended family or the authorities to keep you safe, and they were often the source of this fear and abuse. You have developed your own fierce independence and defensiveness, surviving on your own and within destructive relationships.
26Furthermore, she states you have abused alcohol over most of your adolescence and used other substances also, in order to self-soothe and avoid the memories and emotions associated with your traumatic past.
27In particular, Ms Mynard stated:
“At the time of the offending, [you] had been affected by substances, including alcohol, that serves to depress [your] nervous system, and impair [your] judgement, with clouded thinking, and impaired reasoning skills. [Your] ongoing mental health issues, including [your] PTSD and [your] prolonged grief issues, as well as [your] borderline personality traits are all similar in nature and resulted in impaired judgment at the time of the offending.
These symptoms that were prominent during the offending and on an everyday basis for [you], and include were hypervigilant, re-experiencing and avoidant symptoms, where [you were] using substances to manage these symptoms. [You have] always been alert and aware of danger, and [your] emotional state has fluctuated. [You have] subsequently had been using substances, however, these substances have continued to mean that [your] nervous system is even more dysregulated, heightened and [your] judgement on a daily basis is impaired.
All of [your] life, [your] complex PTSD has been exacerbated by ongoing trauma and traumatic grief, and these have magnified re-experiencing symptoms and negative affect, and confirmed beliefs that the world is unsafe and [you have] to protect herself, with no one else to do that for [you]. [You have] always felt very alone, even within [your] family, and subsequently, [you have] felt a strong sense of belonging with [your] peers, and this has placed [you] at higher risk for these antisocial behaviours.
It is evident that [you have] experienced care-givers who were abusive, neglectful or absent and as a result, [you have] been emotionally deprived. The negative impacts include disrupted attachments, and developmental milestones in terms of social, emotional and psychological development are not met. If [you] had experienced [your] parents as responsive and nurturing, a secure attachment would have formed, however, [you do] exhibit a disorganized attachment style that indicates that [you] developed an insecure attachment where [you] did not receive attunement and consistency of care. Without a healthy attachment system, [you have] been more vulnerable to stress and therefore more susceptible to having problems with trauma, anxiety, depression, and other mental illness. Attachment theory posits that the quality of the parents’ attachment system that developed in infancy will affect their ability to form healthy attachments to their own children and with other adults. It is paramount that [you] have the opportunity to develop a long term therapeutic relationship in order to experience a secure attachment and then be able to address [your] traumas within a safe relationship. This may be with a counsellor, psychologist or social worker, who gives [you] longer term care, in the context of a safe and secure connection.” (see paragraphs 55-58 of her report).
(My emphasis)
28Ms Mynard also opined that, if you are able to engage in targeted therapy for your psychological conditions, including addressing its underlying origins, you have a higher prospect of improvement for your mental health and reduction of risk of ongoing substance abuse. Furthermore, if you can stabilise in your mental health, Ms Mynard was of the opinion that your risk of re-offending would also reduce. It was also noted by Ms Mynard that you had stabilised somewhat in custody, however continue to keep your distance from others and maintain a sense of mistrust of others, independence and a reduced capacity to show your emotions.
29Ms Mynard was of the opinion that being a young offender you would benefit from treatment in the community in order to assist your rehabilitation, rather than becoming institutionalised. In particular, Ms Mynard stated:
“… Over time, [you] will likely find custody more onerous due to [your] mental health conditions, and [you] will likely deteriorate, in terms of becoming more habitually emotionally dysregulated, avoidant and mistrustful of others. At the core of Complex PTSD is an inability to cope with the environment that is unsafe, and being in custody compounds this for [you].” (see paragraph 60 of her report)
(My emphasis)
30Ms Mynard recommended that you undergo AOD treatment and trauma-informed counselling to assist you in gaining insight about yourself and your internal processes and learn more about yourself, and other ways to manage your mental health, other than substance abuse.
The viva voce evidence of Ms Mynard
31During the course of his examination of Ms Mynard, your counsel referred to a variety of matters (see T49 – T71), including the following:
(a) After confirming that one of her diagnoses was Complex PTSD, she was asked to explain the nature of such condition:
“So, um, most people would know post-traumatic stress disorder that’s often, um, a result of a single incident or, um, various incidents, um, that may be, um, traumatic where the person was helpless and unable to cope beyond their resources. Um, we add complex post-traumatic stress disorder to this, um, when it’s more, um, associated with childhood trauma and attachment trauma.
So when a child is in an unsafe environment and the people who are meant to be looking after her or being - she’s able to be safe with and not safe and they’re actually abusive, and that then can um result in symptoms of PTSD which are - including re-experiencing symptoms, avoidance symptoms, um hypervigilance and um low mood, those kind of symptoms. But for complex PTSD, we have additional symptoms and they are symptoms such emotional dysregulation, um the interpersonal difficulties and a negative self-concept. So they become more pervasive, um sort of presentation of PTSD, um not just associated with the actual trauma, but associated with sort - I - I would say like a personality type presentation of struggling with all sorts of areas of functioning in every - in the everyday life.”; (T52, L20 ꟷ T53, L11)
(sic)
(My emphasis)
(b) Ms Mynard was also questioned as to whether “emotional dysregulation” manifested itself in your life. She answered:
“M’mm, um so - for example, um when she - she reported that she has a very low mood and feelings of worthlessness. Um, and those kind of symptoms um I suppose relate to her depression and the negative aspect of PTSD, the negative um emotional state. And that reflects many years of having lack of attachments and lack of people telling her or you know, modelling to her positive behaviours. Um, and then that relates to then her seeking substances, to be able to self-soothe, um and reduce those feelings of that - of her low mood and feeling worthless. Um, so then we also - she also becomes emotionally dysregulated when she gets um - becomes anxious. Um, and she has ongoing sort of intrusive thoughts about the past and that comes up with sematic symptoms, like when she feels shaky or she feels ah her heart racing, um and they’re – they’re similar to anxiety and panic.
Um, and I believe they are related to her PTSD and the complex - complex attachment problems from when she was young and often those symptoms can be re-experienced in the body, um in your - in her beliefs about herself and also in her emotional sort of dysregulation on a daily basis.”; (T53, L16 ꟷ T57, 7)
(My emphasis)
(c) Your counsel also confirmed that Ms Mynard referred to you having depression and queried her as to whether that could impact on “cognition”, the ability to think clearly, to which she stated:
A:“Um, yes of course it does. So um when she is depressed and low in her mood, which has also been added to by the complex grief that she’s um experienced from the loss of her father, um this - when someone’s struggling with depression or long term grief, um the brain I suppose slows down. Um, it’s - often people - and I think for her, her um ability to think clearly is reduced. So she’s not thinking as clearly and reasoning. Um, it’s like she’s - there’s a cloud over her head when she’s in that depressed state, which has been quite a chronic condition for many years.
Q:Now you’ve referred to somatic symptoms, by that do you mean symptoms that have a physical manifestation?---
A:That’s right, yeah, yep, yep. So ‑ ‑ ‑
Q: So ‑ ‑ ‑?---
A: M’hmm.
Q:Sorry, I spoke over you, I was going to say things like shaking, heart racing, those types of symptoms?---
A:M’hmm, yeah that’s right. And it’s - it’s the final flight, I suppose the final flight um survival response and that’s - often we see that with people who have experienced trauma, um and for her it’s um the - the re-experiencing of that, feeling scared, um feeling unsafe. Um, that comes back and re-experiences in her body when she has um a trigger to feel unsafe or threatened.”; (T54, L11 – T55, L3)
(d) Ms Mynard was taken to paragraph 56 of her report whereat she opined that the symptoms suffered by you were prominent during the offending. When queried about whether the types of symptoms that she had been referring to in her oral evidence were the symptoms that were prominent at the time of the offending, Ms Mynard stated:
A:“Um, yes. Well there’s nothing to um tell me that these symptoms um disappear. Um, she has these symptoms on a very regular basis, um and in situations of higher stress or interacting with others or when she’s substance effected (sic), they all come in - into play, um in terms of reducing her I suppose normal ability to function in a normal sort of way without these kind of symptoms clouding her judgment.
Q:And do those - you’ve referred to effectively a fight or flight response being activated. Was that your evidence?
---A:That’s right, yes.
Q:When someone’s in that mode, are they more likely to be focused on their own physical and emotional safety than compared to someone who’s not experiencing those symptoms?---
A:Um, that’s right. So when someone’s in that final flight um state, um the - the prominent symptoms, um part of the brain that’s activated is the amygdala which is the emotional centre of the brain and the brain stem which is the um final flight, sort of that survival part of the brain. And that then sends signals all over the body to say ‘Quick, get out of there’ or ‘fight’ or ‘freeze’ or - you know, one of those kind of survival mechanisms. Um, and then that means that the front part of the brain shuts down. So we have less ability when we’re in that final flight or frozen mode to actually think clearly, reason effectively, have good judgment, because those executive functioning skills have been reduced. And that’s been a um, a - I suppose a long term problem um for her, in her ability to um move forward with her life again.”; (T55, L11 – T56, L7)
(My emphasis)
(e) Counsel queried her as to the activation of the amygdala and also the area where logic and reason for planning occur. Ms Mynard responded:
“M’mm that’s right. The front - frontal lobes um are where the - those reasoning and judgment and higher order thinking processes happen and um we know um trauma - you know a lot of trauma research has gone into this. So a lot of um - when someone is triggered or activated into this part of their brain, um those frontal lobes do shut down and they’re less - less able. Um, we don’t - you know when we’re feeling in a state of threat or feeling in a state that we can’t um stand up for ourselves, um that’s when the frontal lobes - we’re not thinking about you know um what to do tomorrow or writing a list or something or being able to you know think through our decisions. We just act very quickly and spontaneously.”; (T56, L11 – 24)
(f) Ms Mynard also gave evidence that she considered that such a situation has a bearing on the nature and type of relationships you form in the community and in particular you draw people to you who are “more disorganised and unable to provide that because that’s what she is familiar with”; (T57, L1-3)
(g) Ms Mynard was also queried that when she used the word “self-soothing” in her evidence, whether such behaviour was “less often” or the same as people who have been exposed to substance use in their formative years, to which Ms Mynard responded:
A:“Um, yeah well it’s - it seems to be the case that um when a parent is using substances, um that the young person models that behaviour and it becomes a normal way of coping. So um you know if you’re surrounded by it, it just seems like something - everyone does and then that becomes a very automatic coping mechanism.
Q:You say it’s a coping mechanism, so does the use of substances come as a response to the symptoms that Ms Tuarae is already experiencing as a result of her mental functioning?---
A:That’s right. So um because she’s you know having this constant state of fluctuating in her nervous system, um coming - going - coming and going from feeling you know low and um - then hypervigilant and re-experiencing memories, all of those kinds of symptoms, um she struggles to learn - know how to cope with these adaptively because her attachments were disrupted and normally we would go to a caregiver to help soothe, um and learn how to self-soothe in an adaptive way. So instead, because this modelling has been around her and been accessible, um she seems to turn to depressant substances such as alcohol and um prescription medication like Xanax. Um, and those substances um depress her nervous system and um reduce her anxiety I suppose and the panic and those kind of um re-experiencing triggers that she has.
Q:Yes and they would also have a secondary consequence of further impairing her judgment. Is that right?---
A:Well that’s correct, yes.”; (T57, L10 – T58, L7)
(My emphasis)
(h) Your counsel queried Ms Mynard as to whether you would have impaired mental functioning regardless of whether you had been using substances, to which she responded:
“Well I - I believe so yes, because she’s um - you know the underlying problem is her experiences that were quite severe trauma when she was growing up. Um and they’re - those experiences have um sort of set her nervous system on a trajectory that has not been a normal developmental pathway. Um, and (sic) a sense, have um set her up to have dysregulated emotions and nervous system - her nervous system to be hyper-aroused. So the substances, while they um obviously contribute to her impaired judgment, um that’s I suppose her coping mechanism um in response to that.”; (T58, L10-20)
(My emphasis)
(i) Ms Mynard also opined there were a range of treatments that are used to treat complex PTSD – some are targeting the basic symptoms that are coming upon a daily basis involving eye movement, desensitisation, and re-processing of some early attachment memories;
(j) Your counsel also queried her in relation to her opinion that there are some of your traits consistent with Borderline Personality Disorder and that you will require further assessment around those traits to determine if a full diagnosis is warranted, to which Ms Mynard agreed;
(k) Your counsel also queried Ms Mynard as to whether and how you would react to recent experiences of grief, for example, your father, to which Ms Mynard stated:
A:“M’mm yeah, that’s correct. So um when - when someone has um the - like the history of complex PTSD, that actually can cause um you know, issues with feeling abandoned, um feeling unsafe in relationships and be more prone to not being able to cope with that emotional - um, the grief and the emotional state, um and that distress of losing someone close to her.”; (T60, L25 – T61, L1)
(l) Your counsel queried Ms Mynard as to whether, because of the conditions suffered by you, it would make you more “impulsive”, to which Ms Mynard stated:
A:“Um, well I mean part of her um - the trauma, um that she’s experienced, does impact on ability to think about consequences, so that high order executive functioning we were talking about before. Um, and when someone doesn’t think about consequences so well and you know use those reasoning skills to think clearly, um that often turns into impulsive behaviour, um and not thinking about um why I should or shouldn’t do that behaviour at that time or you know, how that would impact on somebody else or thinking about empathy for a victim or um those kind of thought - thought processes are less likely to happen and for her, her impulsivity um comes along with that history of trauma and those - you know features of borderline personality um, um yeah.” (T61, L30 – T62, L12)
(My emphasis)
32Your counsel took Ms Mynard to paragraph 60 of her report, wherein she states:
“[You] will likely find custody more onerous due to [your] mental health conditions, and [you] will likely deteriorate, in terms of becoming more habitually emotionally dysregulated, avoidant and mistrustful of others. At the core of Complex PTSD is an inability to cope with the environment that is unsafe, and being in custody compounds this for [you].”
(My emphasis)
and then queried Ms Mynard as to whether she had seen evidence “to this point” of you experiencing a higher burden of imprisonment during your period on remand, to which Ms Mynard stated:
“Um, I’ve only see her the once, but when we spoke about, um, her experience in custody, um, she maintains this sense of mistrust of others. And I suppose that’s in a custodial environment, um, you know, being vulnerable and being able to connect with others, um, is I suppose an ideal that she may be able to, you know, form friendships. But for her she struggles to trust others and perhaps in a lot of ways we don’t want her to form antisocial connections with other women.
Um, so it really is a difficult situation where her complex trauma is constantly, um, I suppose in her face when she can’t, you know, really trust her own parents or her own family to keep her safe. Um, to be in a custodial environment, how does she trust people around her who are in there for other offending or, you know, staff members who may not, um - she may not feel like she can trust and feel vulnerable with. And that just compounds those - those habitual sort of responses to feeling emotionally dysregulating but keeping it to herself and avoiding, avoiding as much as she can.
So in what manner would she - sorry, I’ll withdraw that. In what manner would you expect that she will deteriorate and in over what time period?---Um, I think that, you know, over - over, I don’t know, maybe a, um - months to years, um, she, um, in one - on one hand it may look like she’s stabilised because she’s, you know, possibly working or possibly doing, you know, um, better without the substances, um, in terms of her everyday functioning.
However, her mental health underneath there is still bubbling away in a - in a way and, um, I would say that she will become more depressed and hopeless and it becomes difficult to reintegrate into the community again. She’s got four walls around her that help her regulate herself, but ideally she needs to be in the community learning how to regulate herself without those four walls and the structure around her.” (T66, L30 ꟷ T68, L3)
(My emphasis)
33Your counsel also queried Ms Mynard whether, given the types of symptoms that you have been experiencing, would you be able to engage in some level of complex planning, to which Ms Mynard answered:
A:“Um, yes, while I think that, um, you know, the brain - when we say that when you’re in the state of, um, the - the fight or flight, um, doesn’t mean that we can’t - that we’re lying on the floor and can’t do anything. Um, you can still think about things, but often it’s a limited - limited sort of thinking about the future. It might be just thinking about what’s happening right now or what I’m going to be doing in the next couple of hours but not necessarily thinking about, you know, empathy or thinking about consequences, long-term consequences, or thinking about how to manage emotions or thinking about, you know, more complicated sort of issues I suppose of emotions and mental health.
Q:So is it the case that Ms Tuarae could be labouring under those symptoms but could still use her phone, could still post things on the internet, could still sell things on a website, for example?---
A:Um, yes, of course. Yep.” (T70, L6-22)
34Your counsel also queried Ms Mynard as to whether or not you expressed any remorse or empathy for your victims in your offending, to which she stated:
“Um, I don’t believe that she could remember the offending, and she didn’t really talk, as far as I can recall, um, about the victims of the offending as just aside from the fact that she - what she knows about, that she was told that she did, that she regrets it and, um, knows that, um, it was wrong, and that she didn’t want to be part of it.” (T70, L25-31)
(My emphasis)
35Under cross-examination by counsel for the prosecution, Ms Mynard was asked questions in relation to the armed robbery as to how you were impaired at that time. In particular, I refer to the following evidence:
Q:“If I could take you, for example, to the armed robbery. I understand you’re aware of the circumstances from the prosecution opening. How is it that you say she was impaired at the time of that offending? And the second part of my question is: are you able to differentiate between impairment on account of the use of substances versus impairment on account of her condition, her PTSD?---
A:M’mm. Um, look, it’s - I mean, it’s - I suppose it’s very hard to - to distinguish between the difference between the impairment from substances and impairment from the mental health issues. Um, but I suppose when I, um, examined her, um, she didn’t appear to be substance-affected, and there was nothing to tell me that she was substance-affected. And so I would use the mental health symptoms as a base for understanding her impairment and then the substance use would be in addition to that impairment, um, in her functioning.
HIS HONOUR:
Q:Just on that, though, as you have said in your report - this is paragraph 30, the last sentence - she had demonstrated impaired judgment at the time of her offending due to ongoing mental health issues, which I take it will be a reference to the complex PTSD, and her substance intoxication and addictions?---
A:M’hmm.
Q:So you’re joining in, are you not, there the alcohol and drug aspects?
---A:That’s right, definitely, yes, m’hmm.
Q:How do you know she was drug-intoxicated or alcohol-intoxicated at the time of the offending?---
A:Well, she reported that she had had a pattern of using at that period - over those period of weeks, um, in terms of drinking alcohol daily and using up to 10 Xanax and 10 Lyrica on a daily basis.
Q: Yes?---
A: There’s nothing to suggest that she didn’t do it upon that day.
Q: Right?---
A:And the other evidence, I suppose, I understand that she doesn’t - says that she doesn’t recall, and Xanax - recall the offending. And Xanax is a very, um, well-known substance to - I mean, in addition to alcohol, really, but to, um, impair someone’s memory. Um, so that’s, I suppose, the, um, understanding I had in terms of having the - saying that statement.
Q:Just going back to counsel, who’s put two parts of the question?---
A:M’hmm.
Q:I think you’ve answered the second part about distinguishing between whether it’s PTSD and/or the drug and alcohol consequences or one or the other?---
A:M’hmm.
Q:But I think the first part of the question, ‘How do you know that she was mentally impaired at the time of the armed robbery?’ that’s the question I have to address in a variety of ways?---
A:M’mm, m’hmm.
Q:In other words, she was impaired by some - you’ve used the word ‘deregulation’, we’ve heard, and things like that. Why do you come to the view on that particular time that she was committing this offence that she was mentally impaired and that mental impairment, if it existed at that time, had some role in the offending?---
A:H’mm. Um, with, um, her - the - the mental health disorders that she has, um, which include this complex PTSD, um, in my experience with every client that has this particular disorder, it doesn’t just come and go, and one day you feel great, and everything’s fine, and another day, you know, you have, you know, the terrible symptoms.
Of course, people can fluctuate on a daily basis in terms of their symptoms, but, um, it doesn’t just disappear and then come back again. Usually, the symptoms fluctuate, and we use a graph, um, in our - in our treatment that understands this window of, like, feeling - a window of tolerance where we say the window is like the - being able to regulate yourself. But with people who are in trauma, they are either highly dysregulated with, um, anxiety and the hypervigilance and re-experiencing symptoms, and then they dip down into this low affect where they feel empty and lost and unable to think clearly.
So, um, with trauma, um, we know that there’s - the nervous system fluctuates from being very high to very low, but there’s very rarely, um, times where there is this emotional regulation and the ability to, um - to - to think clearly and have great judgment and, um, you know, have all these higher-order thinking processes, um, in the middle there.
So it would be I suppose a presumption that this is the case for, um, Ms Tuarae because we, um - you know, because of her severe trauma history and all the symptoms she’s reported. Um, I wouldn’t have any reason to think that these symptoms have suddenly disappeared on one particular day.” (T73, L10 – T76 L2)
(My emphasis)
36Counsel for the prosecution also suggested to Ms Mynard that it is difficult to say what exactly your mental state was at the time of the armed robbery and, indeed, the following evidence ensued:
“A: …
So it’s very difficult to say what exactly her mental state was at that moment; um, however, you know, with the ongoing symptoms that she’s presented with, um, and the ongoing history, um, there’s no reason to – to think that there was no symptoms at that time. Um, but she may have fluctuated from, you know, feeling triggered to feeling depressed to feeling anxious and panicky, um, to zoning out. So there’s all sorts of symptoms and that’s why it can be such a confusing disorder to have PTSD, um, because it’s just very hard to manage all of those emotions.
Q:But you’re not able to say, are you, which of those symptoms she was experiencing at the time?---
A:Um, no, not exactly. No.
Q:So it’s possible, is it not, that she was, as you say, coming in and out of those conditions? It’s possible that she wasn’t experiencing any of those conditions at the time?---
A:Um, I’m - I don’t - I don’t - I don’t feel comfortable saying she - it’s possible she wasn’t experiencing any of those symptoms. No, I wouldn’t say that.
HIS HONOUR:
Q:One of the things that just troubles me to some extent, assuming you - the diagnosis that you make is correct, and I’m not questioning that, but do you say on the evidence before you that that was causative of the armed robbery?---
A:Um, I wouldn’t say it caused the armed robbery. Um, I think that her being in that situation, um, and the relationships with the co-offenders and being unable to withdraw herself from that situation, um, and perhaps impulsively going along with them, I think her mental health issues contributed to that impaired judgment but not necessarily caused her offending behaviour.
Q:Just on that too, when you say contributed does it - are you talking about contributing to the concept of performing an armed robbery, that she thought an armed robbery at that time was okay because of some deregulation, or it’s just she went along with it maybe with her mates because this deregulation through the PTSD, complex PTSD, she just - to use my words, just didn’t think it through as to what the consequences were?---
A:Yeah, I think the latter would be more - more my thinking in terms of not thinking through the consequences, not being able to stand up or walk away from the people who were the co-offenders. Um, and, you know, not sort of being able to assert herself, um, because she’s got this clouded way of thinking.
Like, maybe, you know, we often talk about dissociation with PTSD. That, um - and that’s part of her avoidance symptoms where she’s not really realising the full reality of the situation, so she doesn’t remove herself.” (T76, L28 – T78, L15)
(My emphasis)
37Counsel for the prosecution also questioned Ms Mynard as to whether she can make any kind of assessment to how worse her mental condition would become if you were in custody for some period of time, to which she answered:
A:“Um, well, I suppose if she’s, um, already struggling with, um, mental health disorders, being in custody is, um, not always a safe environment and often, um, people need to be alert to what’s going on around them and other prisoners that may be volatile or situations where they don’t feel 100 per cent safe. Um, and there’s less ability to actually protect yourself or be able to isolate yourself ‘cause you have to come out of your room and you have to interact with other people.
So those kind of, um - that kind of environment I think, um, may predispose Ms Tuarae to - for her mental health to deteriorate in terms of, you know, building on those existing symptoms of already feeling unsafe with people around her and already feeling she can’t trust person, um, and already feeling depressed and anxious and panicky, all of those kind of symptoms will just be exacerbated over time.
Q:I think at paragraph 60 of your report you say that custody would be more onerous over time, her conditions are likely to deteriorate?---
A: M’hmm.
Q:Are you able to make any assessment as to how onerous that might be for Ms Tuarae on account of her condition? How much more onerous would it be, for example, to an ordinary prisoner? You’ve mentioned things like fear of being around other prisoners and some difficulties socialising and things of that type?---
A:M’hmm.
Q:Some of those matters would be common experiences of custody, is that correct?---
A:Um, well, they would be common experiences; however, because of her underlying trauma disorder, um, I believe that, um, her - her experience in custody would be, um, quite a bit more onerous because she’s already, um, had those underlying sort of difficulties. If there’s a prisoner standing next to her that’s never had any trauma in their life and never had any mental health disorders, well, they - they may likely cope with these kind of conditions in more adaptive ways, um, and, you know, be able to regulate themselves better.
But for her, she’s struggled to regulate herself at the best of times in the community, let alone in custody when she’s really struggled - you know, she’s struggling to manage those symptoms that, um, she’s always dealt with.” (T81, L19 – T82, L29)
(My emphasis)
38The Court sought the opinion of Ms Mynard as to whether or not it was consistent with her view that you were suffering from a mental impairment in view of the various courses that you had undertaken in prison and your work in the kitchen, to which the following evidence was given:
“A:“Well, I think that often when we find that, you know, people who have a mental health disorder like this, um - when they’ve got a task to do or something that they’re focused on it can actually reduce their anxiety about being around people.
So when she is actually with someone who instructs her, she feels a bit safer with that person, um, and then she can be focused on a task, um, and then that reduces anxiety because you can actually be, um, more focused on the task-orientated part of it rather than the interpersonal aspect of it. Um, and, you know, we have many, you know, um, programs in the community, including NDIS, that help people with - in mental health disabilities as well as intellectual disabilities, that, um, you know, assist people like Ms Tuarae in terms of being able to, um, you know, maybe repeat information or show her physically how to do things if she’s struggling with her anxiety or struggling with feeling, you know, a bit clouded in her thinking, to slow the instructions down or give her more information.
HIS HONOUR:
Q:Yes?---
A:And I don’t know exactly how she’s been instructed for these things, but I know that, you know ‑ ‑ ‑
Q:I must admit I don’t either?---
A:Yeah, m’mm.
Q:But the fact that she’s done them, I think, is clear enough, though, yes?---
A:Yeah, yep, yep, yep.” (T85, L18 – T 86, L12)
Matters in mitigation of your sentence
39Your counsel submitted various matters in mitigation of your sentence for the subject offending. Of course, it must be remembered that even if one or more of the exceptions do apply in relation to Charge 3 on the indictment (the armed robbery in company), many of the matters relied on by counsel have relevance to an appropriate disposition in relation to that charge.
40He referred to the following matters:
(a) Your plea of guilty
It was submitted that your plea of guilty was offered at an early opportunity. In particular, it was submitted:
(i)Such a plea of guilty had utilitarian value, as it has saved the Court, the Victoria Police, and the prosecution, a significant amount of time and resources.
(ii)Such a plea was entered into when the ordinary operation of the Court had been affected by the COVID‑19 pandemic, and such a plea should attract “a natural and palpable amelioration of sentence”. Reference was made to Worboyes v R [2021] VSCA 169 at paragraph [39] wherein the Court of Appeal (consisting of Priest, Kaye and T Forrest JJA) stated in part:
“For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”
(iii)It was also submitted that such a plea is “reflective of remorse and insight”, and, in particular, reference was made to exhibit E – that is, your letter in which you stated that you “deeply regret” your actions causing suffering to the victims of your crimes.
(b) Youthful offender
Bearing in mind that you were eighteen years old at the time of the offending, it was submitted that the principles enunciated in R v Mills [1998] 4 VR 235 (“Mills”) are relevant. Reference was also made to the Court of Appeal decision of Balshaw v The Queen [2021] VSCA 78, where at paragraph [54] the Court of Appeal (consisting of Kaye and T Forrest JJA) stated:
“[54]The appellant’s youth and immaturity were, in the circumstances of this case, considerations of particular importance as mitigating factors.
[55]The principles relating to the relevance of an offender’s youth as a mitigating circumstance have been well established. In R v Mills, Batt JA (with whom Phillips CJ and Charles JA agreed) expressed the principles in the following terms:
(i)Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(ii)In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
(iii)A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act.).
[56]The particular weight to be accorded to the youth of an offender must depend on the circumstances of the case. In that respect, it is recognised that as the level of seriousness of criminality increases, there will be a corresponding reduction in the mitigating effects of the offender’s youth. [Reference was made to Azzopardi v The Queen (2011) 35 VR 43, 57 [44]; DPP (Cth) v MHK (a pseudonym) (2017) 52 VR 272, 289 [56].] Similarly, where the offence is one which is commonly committed by young offenders, the youth of the offender in question may need to be accorded less weight as a mitigating factor, in order to ensure that the sentencing principles of general deterrence and specific deterrence be given sufficient weight. [Reference was made to DPP v Lawrence (2004) 10 VR 125, 132 [22] (Batt JA), 133 [25] (Winneke P).]”
(c) Application of Bugmy principles
Your personal background, drawn from your own reporting, from your grandmother, and the available Youth Justice documentation, demonstrates, so it is submitted, that you have experienced the type of “profound disadvantage” contemplated by the High Court case Bugmy v The Queen (2013) 249 CLR 571. In particular, I refer to paragraphs [40], [43]-[44] of Bugmy, which state:
“[40]… The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
...
[43]The Director’s submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[44]Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”
(My emphasis)
I also refer to the Victorian Court of Appeal decision of DPP v Herrmann [2021] VSCA 160. In that decision, the Court of Appeal (consisting of Maxwell P, Kaye, Nyall, T Forrest and Emerton JJA) explained that in Bugmy, the High Court expressed in two different ways the potential relevance of childhood deprivation to the assessment of moral culpability. The first – described as “more general” – was expressed by those words underlined in paragraph 40 above, and the second – described as “more specific” – was expressed by those words underlined in paragraph 44 above.
I also refer to the Victorian Court of Appeal decision of Marrah v The Queen [2014] VSCA 119 and, in particular, at paragraph 16 where the Court (consisting of Redlich and Tate JJA) stated:
“Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.”
(d) Application of Verdins principles
Your counsel also submitted that your background, coupled with the opinions of the psychologist Ms Mynard, enlivened the principles set out in the matter of R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269, a decision of the Victorian Court of Appeal. In particular, paragraph [32] of that decision (Maxwell P, Buchanan and Vincent AJA) stated:
“[32]Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
(My emphasis)
It was submitted that your impairment in personality, functioning, and mental health, justifies significant reductions in your moral culpability (principle 1), informs the type of sentence that ought to be imposed, and reduces the weight applicable to specific and general deterrence (principles 2, 3 and 4), and has the effect that a “custodial term would weigh more heavily and carry with it the risk of deterioration in custody” (principles 5 and 6). Such submissions were based on the evidence of the psychologist, Ms Mynard.
Further, it was submitted that the symptomatology that you experienced at the time of the offending:
(i)Impaired your ability to exercise appropriate judgment;
(ii)Impaired your ability to make calm rational choices;
(iii)Led to you acting in an impulsive or disinhibited manner; and
(iv)Is causally connected to the commission of the offences.
Furthermore, it was submitted that in your background of trauma an early onset of drinking and substance-use was appropriately seen as a symptom of your overall presentation, rather than a voluntary choice or one which substantially contributed to the offending behaviour itself. Again, the basis of these submissions was said to be the evidence of Ms Mynard.
(e) The risk of deportation
Your counsel submitted that there is the real prospect that you would be deported from Australia if convicted and sentenced to more than 12 months in prison.
Under the present provisions of the Migration Act 1958 (Cth), if you are sentenced to a period of imprisonment of 12 months or more, you face deportation (subject to ministerial intervention) which would mean your return to New Zealand. Following a line of authority commencing with Guden v The Queen [2010] VSCA 196 (see [25]–[27]), such a situation is relevant in potentially two ways:
(i)During your period of imprisonment you will have the prospect of deportation hanging over your head;
(ii)At the end of your prison sentence, deportation for you would have significant consequences including:
-you migrated as a child from New Zealand to Australia to escape dysfunctional family circumstances,
-you have little relationship with your mother or siblings who remain in New Zealand,
-your primary familial support is your grandmother who resides in Australia.
(f) Custody hardship
Your counsel submitted that bearing in mind you have been incarcerated for some period, a modest weight should be given to the restrictions that you have endured when in custody, and still continue to endure, albeit at a far lesser level, as a result of the pandemic.
(g) Furthermore, your counsel submitted that in relation to the offence of the armed robbery, you were a complicit offender who acted as a “lookout”. In this respect, although conceding that the armed robbery was a “high impact example on a vulnerable target”, and that the conduct of the unknown co‑offenders was undoubtedly terrifying for Ms Totawatte, your conduct ought be assessed against that background but with regard to the actions that you actually performed.
In this respect, it was submitted that your involvement in the offending is of a lower level of moral culpability, and in particular reference was made to the CCTV footage which demonstrated that you were not even the driver of the vehicle as it left the service station.
(h) In a similar way, your counsel highlighted in relation to the two charges relating to theft of motor vehicles (Charges 1 and 2 on the indictment), the prosecution accepts that you were not the principal offender in such thefts, but rather the charge is put on the basis that you were a passenger in the vehicle and complicit in the offending. Again, it was submitted that your moral culpability for such offending would be reduced somewhat because of such assertions.
(i) Furthermore, in relation to the charge involving dishonestly receiving stolen goods (Charge 4 on the indictment), your counsel also highlighted that the prosecution do not allege that you participated in the robbery at the Chemist Warehouse, but rather, you ultimately had joint control over such stolen goods and assisted in their disposal.
The exceptions set out in s5(2H)(c)(i) and (e) of the Sentencing Act 1991
41As already recorded, the offence of armed robbery in company is a Category 2 offence, as defined in s3(1) of the Sentencing Act and, accordingly, the Court must sentence you to a term of imprisonment (not including a combined sentence involving a Community Correction Order) unless one of the relevant exceptions apply. Again, as already recorded, your counsel relied on the exceptions contained in s5(2H)(c)(i) and (e) of the Sentencing Act 1991.
42I refer to s5(2H) of the Sentencing Act 1991, which states:
“(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
(a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or
(c) the offender proves on the balance of probabilities that—
(i)subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability; or
(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
(b) The application of Bugmy. Your counsel noted that in the submissions made by the prosecution, it was conceded that Bugmy had application, which operates, so it was submitted, to substantially moderate moral culpability and general deterrence;
(c) Your young age, being barely out of the Children’s Court jurisdiction, combined with the application of Mills – again which counsel noted, the prosecution in their submissions conceded is to moderate the need for punishment;
(d) The prospect of deportation and the relevance of the principles flowing from Guden (op cit) onwards, to which reference has already been made;
(e) The low objective gravity of the offending. The prosecution’s submissions on this issue (to which reference will be made shortly) ought to be rejected:
(i)the evidence permits no inference of any organising role in the offending. Your individual role and your individual culpability are to be assessed against what you actually did – acting as a lookout. The gravity of the overall conduct and your participation in the offending place it at a low level;
(ii)the only matter which elevates it is that the offending was in company and that is the same matter which renders it a Category 2 offence – and s5(2H)(e) is intended as a relief valve for that category of offence; and
(iii)the Court may also have regard to the concession by the Crown that a sentence of imprisonment combined with a Community Correction Order would not be in error – that is, within a permissible sentencing range for this conduct. (I should add such concession was made on the basis that the primary position of the Crown was that there should be no application of the exceptions and you be sentenced to a period of imprisonment with a non-parole period).
61It was ultimately submitted by your counsel that taking all of the above in combination, found the submission that the legislative test is met, although accepting that none alone would be sufficient, but their cumulative weight is. (See s5(2I)(a) and (b) of the Sentencing Act 1991.)
62The overall submission, made by your counsel, is that you ought to be released immediately onto a Community Correction Order.
The position of the prosecution
63Counsel for the prosecution tendered a further document headed “Prosecution submissions on sentence” dated 11 May 2023 (exhibit 3). In that document, counsel for the prosecution made the following submissions:
(a) Having regard to all the circumstances and applicable sentencing principles, it was the position of the prosecution that the Court should impose a sentence of imprisonment involving a head sentence and non-parole period given that the offending is “objectively serious”. It was submitted that such matters as general deterrence, specific deterrence, just punishment, rehabilitation, denunciation and protection of the community were all relevant in coming to an appropriate sentence;
(b) In assessing the objective gravity of your offending in relation to the armed robbery, it was submitted that the following features are relevant:
(i)The offending occurred in the early morning when the victim was alone. It was submitted that the victim was a vulnerable target, making it a feature in aggravation (reference again was made to Lee (op cit));
(ii)Your identity was obscured when you entered the store wearing a face mask, a hooded jacket and wearing gloves. Each of the co-offenders was dressed similarly and a stolen vehicle was used to commit that crime. Your co-offenders had a crowbar and sledge hammer which must have been “terrifying for the victim”. It was submitted as a general proposition that the type of weapon used is relevant to sentencing with the more dangerous the item or the greater its capacity to invoke fear, the more aggravating its use will be (reference was made to R v Roy (2001) 119 A Crim R 147);
(iii)Although accepting that the offending was unsophisticated, it was submitted that there was a degree of planning involved;
(iv)Again, although accepting that the duration of the offending was for a short period – between 6.58am and is completed by 7.03am, it was submitted that this is common for this type of offence;
(v)The damage caused to the service station was assessed at $6,183.46 and the following items were stolen:
- two tills containing approximately $500 cash;
- 228 packets of assorted cigarettes;
- 79 cigarette lighters;
- approximately 10 disposable mobile phones;
- Ms Totawatte’s Samsung mobile phone.
(c) It was submitted the role played by you was important, albeit secondary to your two co-offenders. You were the lookout who prevented the service station doors from being closed and assisted in placing some of the stolen goods in the car.
(d) Although there were no victim impact statements in relation to any of the offending, it was submitted it was under the court to refer how a victim would have responded in relation to the circumstances of the armed robbery. Furthermore, it was submitted, correctly in my view, that the court was entitled to have regard to the witness statement of Ms Totawatte wherein she stated that the armed robbery caused her shock, that it never happened to her before, that she was afraid she would be hurt, and that her life was in danger.
(e) Ultimately, in relation to this offending, it was submitted that it is objectively serious and at the mid-range for this type of offending having regard to the factors referred to above.
64In relation to the two offences involving the theft of motor vehicles (Charges 1 and 2), it was submitted that in assessing the objective gravity of such offending, the following features were of note:
(a) The nature of the property stolen is relevant to assessing the objective gravity of the offence. (Reference was made to The Queen v Ash [2005] VSCA 43.) It was submitted that, whilst the precise value of the motor vehicles stolen had not been assessed, motor vehicles, particularly motor vehicles such as those involved here, were inherently valuable and the theft of motor vehicles is an inherently serious offence;
(b) No restitution has been made to either victim on account of the theft of their vehicles. It was submitted that whilst restitution can be a mitigating factor, the absence of restitution cannot be taken into account as an aggravating factor. (Reference was made Keane v The Queen [2011] VSCA 156);
(c) It was conceded that there was no breach of trust in relation to the thefts as the offender was unknown to the victims;
(d) It was submitted that the motivation of the thefts was to produce a vehicle to commit other offences and were not offences committed out of need;
(e) In both cases, you were a passenger in the vehicle;
(f) It is submitted that the theft of motor vehicles in both cases was objectively serious.
65In relation to the offence of dishonestly retaining stolen goods, knowing such goods to be stolen, it was submitted that the following features were relevant in assessing the objective gravity of that offending:
(a) the offending relates to 197 bottles of perfume stolen from Chemist Warehouse. It was confirmed that the offender was not a party to that theft;
(b) you had joint control over those stolen goods and assisted in their disposal;
(c) you advertised those items for sale to your contacts via SMS and Facebook Messenger;
(d) whilst there was no evidence of the you making money from the sale of those items, the perfume was not recovered by police.
66Although there was no victim impact statements in relation to any of the offending, it was submitted that it was open to the Court to infer how a victim would have responded in relation to the circumstances of the armed robbery. Furthermore, it was submitted, correctly, in my view, that the Court was entitled to have regard to the witness statement of Ms Totawatte wherein she states that the armed robbery caused her shock, that it had never happened to her before, that she was afraid she would be hurt, and that her life was in danger.
67Although counsel for the prosecution accepted that no two cases are the same, reference was made to Sharkey v The Queen [2010] VSCA 273 and Collins v The Queen [2015] VSCA 106 as cases being examples of the application of sentencing principles for offending involving armed robbery.
68Counsel for the prosecution also made the following further submissions:
(a) That you did plead guilty “early during the pre-committal stage” and accordingly have saved the community the expense of a trial. Furthermore, it was accepted that such plea can be seen as indicating a willingness to facilitate the course of justice. It was also accepted that the inherent utilitarian value of a guilty plea is greater during the COVID‑19 pandemic (reference was made to Worboys op cit);
(b) It was submitted that it does not “automatically flow” that a plea of guilty is evidence of remorse (reference was made to Barbaro v The Queen [2012] VSCA 288). Before making a positive finding of remorse, it was submitted that a court must be satisfied that there is “genuine penitence and contrition, and a desire to atone and in many instances the most compelling evidence of this will come from testimony from the offender” (Barbaro op cit at [38]). Counsel noted your letter to the court wherein you expressed deep regret for your actions and the suffering caused to your victims. He also noted that such letter was “self-serving” and also the offending was, as you stated, “fuelled by intoxication”. You submitted that such letter provides some “bare support” for a finding of remorse;
(c) It was conceded that the principles of Bugmy (op cit) and Mills (op cit) apply which act to essentially moderate moral culpability;
(d) Noting that you are not an Australian citizen, the prosecution accepts that if you were to receive a term of imprisonment greater than 12 months, the Migration Act (Cth) provides that the minister may cancel your visa and accepts the prospect of deportation can impact on you in the ways which have already been described in these Reasons;
(e) Counsel for the prosecution accepted the principles 5 and 6 of Verdins are enlivened by the evidence, but disputes that principles 1, 2, 3 and 4 are enlivened by the evidence. In particular, counsel for the prosecution submits that in part, the psychologist, Ms Mynard, opined that you present with “traits of borderline personality disorder” on account of the “instability of her relationships, instability of her mood and her identity” and submits that such diagnosis is only “provisional”;
(f) Counsel for the prosecution accepted that bearing in mind you have a limited criminal history, Ms Mynard does provide a basis for positive finding in relation to your prospects for rehabilitation if you receive psychological treatment. However, bearing in mind your limited criminal history, specific deterrence does have a role to play in the makeup of the sentence.
69Counsel for the prosecution submits that, on the balance of probabilities, you have not established the exception under s5(2H)(c)(i) of the Sentencing Act 1991. Furthermore, he submits that on the material available to the Court, the exception set out in s5(2H)(e) of the Sentencing Act 1991 has no application.
70In particular, in relation to the exception set out in s5(2H)(c)(i) of the Sentencing Act 1991, counsel for the prosecution submitted essentially that there was “insufficient evidence of a sufficiently cogent connection between the offender’s PTSD and the offending to satisfy the requisite test of ‘substantially materially reducing’ the offender’s moral culpability”. In relation to the exception set out in s5(2H)(e) of the Sentencing Act 1991, it was submitted that the facts present in this matter, either individually or collectively, do not reach the threshold for such exception to apply. Counsel referred to the Court of Appeal matter of Farmer v The Queen [2020] VSCA 140 at [51] where it was stated that the exception “is a very high hurdle that will not often be surmounted”. However, it was noted that in the Court of Appeal decision Fariah v The Queen [2021] VSCA 213 at [25], the Court of Appeal stated “the mere fact that some individual circumstances [relied upon] may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare”.
71Counsel for the prosecution, although maintaining that neither exception was applicable to the circumstances of this matter, submitted that if the Court should so find that one or both exceptions applied, the Court would not fall into error in such circumstances if there was the imposition of a combination sentence of imprisonment and a Community Correction Order.
Conclusion
72You have pleaded guilty to a number of indictable offences which occurred over the period from 20 April 2022 to 24 April 2022, at which time you were eighteen years old. The indictable offences include two charges of stealing a motor vehicle, one charge of armed robbery, and one charge of receiving stolen goods. You have also pleaded to two uplifted charges – Charge 17, which involved you breaching a bail condition by residing at another property other than the one ordered as a bail condition, and Charge 18, which involved you committing an indictable offence – that is, the armed robbery – whilst on bail.
73The charges set out on the indictment are serious charges, as is made plain by their penalties – Charges 1 and 2, involving the theft of a motor vehicle, carries a maximum penalty of 10 years’ imprisonment for each offence, and Charge 4, involving the receipt of stolen goods carries a maximum penalty of 15 years’ imprisonment. In particular, Charge 3, the most serious charge against you, carries a maximum penalty of 25 years’ imprisonment.
74The prosecution accept that in relation to the two charges involving the theft of a motor vehicle and the armed robbery, such offending was undertaken with other co-offenders and the prosecution accept that you were not the principal offender, and in relation to the armed robbery, your role was essentially as a lookout, whereas your co-offenders were involved in wielding the crowbar and sledge hammer and confronting Ms Totawatte, the store manager at the service station.
75Also, the prosecution make clear that in relation to Charge 4 on the indictment – that is, you dishonestly undertaking the retention of stolen goods – you had no involvement in the robbery of the Chemist Warehouse from where the goods were stolen.
76Of course, the vehicle stolen, the subject of Charge 1, was the vehicle which was used to transport you to the site of the armed robbery and such vehicle was later located ablaze.
77The charge involving the armed robbery is the most serious charge as it involved offending against what is generally referred to as a “soft target” and where Ms Totawatte was frozen in shock when confronted by your co-offenders armed with a crowbar and sledge hammer. Although there is no victim impact statement from her, I accept, as both counsel submitted, it would have been an extremely frightening episode for her, notwithstanding the robbery only occurred over a matter of a couple of minutes.
78I consider that taking all the circumstances into account, the offending involving the armed robbery can be characterised as being mid-range in objective gravity. Although the theft of a motor vehicle is a serious offence given that the object of the offence can be an expensive item and indeed the inconvenience which is caused to the owner of such vehicle is also relevant – however, in all the circumstances of this matter, such offending is low to mid-range of objective gravity. The offending involving receiving the stolen goods and attempting to dispose of them, again does not have the same objective gravity as the armed robbery (bearing in mind that you were not involved in the theft of those objects) and given the amounts involved, are of a lower objective gravity again.
79Your offending must be seen in the context that you have some limited previous offending involving theft from a shop and attempted theft of a motor vehicle, and obtaining property by deception.
80However, I do consider in the circumstances of this matter you have very powerful mitigating factors consisting of:
(a) Your early plea of guilty which I accept had clear utilitarian value and which attracts a “palpable amelioration of sentence” considering that such plea was made during the COVID‑19 pandemic. Furthermore, such plea is also “reflective of remorse and insight”, and in this respect, I do refer to exhibit E in which you state you “deeply regret” your actions causing suffering to the victims of your crimes.
(b) As stated, you were eighteen years old at the time of the offending and I consider that the principles enunciated in Mills (op cit) clearly are relevant and applicable to your circumstances. Consistent with the principles enunciated in Mills (op cit); Azzopardi (op cit) and Balshaw (op cit), I consider that your youth should be a primary consideration in sentencing and, in the circumstances of this case, your rehabilitation is far more important than general deterrence.
(c) I consider that the principles enunciated in Bugmy (op cit) relating to what was referred to as the “more general way” and what was referred as the “more specific” way are both relevant to your circumstances. In this respect, the circumstances of your childhood described by you to the psychologist, and confirmed to some extent by your grandmother, can only be described as extremely dysfunctional, you being surrounded by alcohol abuse, drug abuse and violence, and you not having any particular role models through your parents. Over the years, you were sent to various foster families, underwent a horrible time during your stay with an aunt and, indeed, were exposed to violence in your various domestic settings.
In such circumstances, I do accept that your moral culpability is less than the culpability of an offender whose formative years had not been marred in this way. Also, based on the evidence of the psychologist, bearing in mind again your exposure to extreme violence and alcohol and drug abuse may explain your recourse to violence when frustrated such that your moral culpability for the inability to control that impulse may be substantially reduced.
(d) I also accept that all the principles enunciated in Verdins are enlivened by the evidence from the psychologist which I will make reference to shortly. As a result, I again consider your moral culpability in relation to the offending conduct in distinction from your legal responsibility is reduced which does affect the type of punishment that is just in all the circumstances, with denunciation being less likely to be a relevant sentencing objective and general deterrence moderated or eliminated as a sentencing consideration. In particular, I consider that principles 5 and 6 are also enlivened by the evidence the psychologist (and as accepted by the prosecution).
(e) I also consider that you do run the risk of deportation if convicted and sentenced to lengthy imprisonment, giving rise to a real prospect of being deported from Australia. As stated earlier, and as accepted by the prosecution, this situation manifests itself by hardship in prison when facing the prospect of deportation and the fact that deportation would be significant for you, given you would be deported to New Zealand, the very place which gave rise to your need to travel to Australia and avoid your dysfunctional family and all the circumstances attending it.
(f) I give some modest weight to the hardship you would have experienced in prison over the last 10 or so months, although such hardship would have been ameliorated over time as the more strident effects of the COVID-19 pandemic have receded.
(g) Again, bearing in mind the lesser role you played in both the offending in relation to the theft of the motor vehicles and the armed robbery, I consider you have a lower moral culpability in relation to these offences as compared to your co-offenders.
81The issue becomes whether or not one or both of the exceptions relied on by your counsel have application to the circumstances of this matter. After consideration of all the evidence, I am of the view that you have discharged your onus on the balance of probabilities that the exception contained in s5(2H)(c)(i) does have application to the circumstances of this matter. I have come to that view for the following reasons:
(a) Such view is based on the evidence of the psychologist, Ms Mynard. Ms Mynard is a highly qualified clinical psychologist, a qualified drug and alcohol counsellor and very experienced in working with complex clients with forensic histories, drug and alcohol issues and mental health issues. In particular, her qualifications include a Master’s Degree in Clinical Psychology, a Post Graduate Diploma in Drug and Alcohol, and Post Graduate Certificate in Adolescent Health and Development. She has been a psychologist for about 14 years and prior to that, she was working as a counsellor. Not only did I have her report tendered, I had the advantage of observing her give evidence and being cross-examined and found her to be an impressive witness. She also had experience and a background in trauma counselling, which she described as her “main specialisation”.
(b) Ms Mynard opined that you were suffering from:
(i)Complex PTSD;
(ii)Complicated Bereavement Disorder;
(iii)Borderline Personality Disorder (a provisional diagnosis);
(iv)Alcohol Abuse Disorder.
(c) In particular, the Complex PTSD was brought about as a result of your exposure to growing up in a volatile environment with very young parents who were unable to look after you, your exposure to violence, drug use and abuse, and being required to move around between extended families and also being in the care of Child Protection.
(d) Ms Mynard was of the opinion that as a result of such trauma and instability as a child and adolescent, you have developed, amongst other things, Complex PTSD which can lead to you viewing yourself in a negative light with negative self-concept and feelings of worthlessness. She noted that you have developed unhealthy relationships because interacting with other people has become difficult when you have a fundamental lack of trust in others. This has led to isolation and alienation for you when you could not trust your own parents, extended family or the authorities to keep you safe and they were often the source of this fear and neglect.
(e) In particular, Ms Mynard was of the opinion that at the time of the offending, your PTSD, together with other matters, resulted in impaired judgment at the time of the offending. The symptoms that were prominent during the offending and are on an everyday basis for you include being hypervigilant, re-experiencing avoidant symptoms and you always having to be alert and aware of danger and causing your emotional state to fluctuate.
(f) In particular, Ms Mynard gave evidence that the condition of Complex PTSD – which she opined you suffer from – has additional symptoms and those symptoms involve emotional dysregulation, interpersonal difficulties and negative self-concept which, over time, became pervasive. Ms Mynard was of the opinion that this type of PTSD occurred effectively on a daily basis.
(g) When queried as to why the symptoms were prominent during your offending (reference was made to paragraph 56 of her report), Ms Mynard stated that there was nothing to tell her that these symptoms disappear when you have symptoms on a very regular basis, and in situations of high stress or interacting with others, or when you are substance affected, they all come into play in terms of reducing your ability to function in a normal sort of way with those kind of symptoms clouding your judgment.
82In particular, I refer to the transcript of Ms Mynard’s evidence at p58, lines 10‑20, where she states:
“Well I - I believe so yes, because she's um - you know the underlying problem is her experiences that were quite severe trauma when she was growing up. Um and they're - those experiences have um sort of set her nervous system on a trajectory that has not been a normal developmental pathway. Um, and (sic) a sense, have um set her up to have dysregulated emotions and nervous system - her nervous system to be hyper-aroused. So the substances, while they um obviously contribute to her impaired judgment, um that’s I suppose her coping mechanism um in response to that.”
83I am satisfied, as a matter of probability, that at the time of the commission of the offending, you had impaired mental functioning that is causally linked to the commission of the offending and substantially and materially reduces your culpability.
84Furthermore, I do not consider that s5(2H)(a) negates any such finding. As is made plain by the Court of Appeal decision of Dabaja (op cit), the question to be answered by the Court is whether the impaired mental functioning that has been identified was caused by self-induced intoxication. In the circumstances of this matter, although there was intoxication involved during the offending, as is made plain by your letter to the Court and other histories, I formed the view that the impaired mental functioning to which I have referred was not caused by self-induced intoxication.
85In relation to the exception set out in s5(2H)(e) of the Sentencing Act, I have come to the view, in employing the two-step process set out in Lombardo (op cit), that the matters referred to by your counsel are not “substantial and compelling circumstances” in that they are not weighty and forceful or powerful enough to justify not imposing a custodial sentence. However, if I be wrong about that first step, I do not consider that the circumstances, even if they are “substantial and compelling” in the sense described above, are also “exceptional and rare”. In this respect, I consider that such circumstances are not “wholly outside the ordinary factors typical of the relevant offence” (see Lombard (op cit) at [71]).
Disposition
86The Court arranged for you to be assessed for a Community Correction Order and this was undertaken on 15 May 2023. On that day, you were interviewed by a Corrections officer via video link from Dame Phyllis Frost Centre. You were assessed as being suitable for a Community Correction Order. At the time of this assessment, you gave a history consistent with what you told the psychologist as to your past history of being exposed to family violence. In particular, you told the author of the report that your offending behaviour “was not right” and appeared to have insight into the underlying issues leading to your substance abuse and consequent offending behaviour.
87After a consideration of all of the evidence, and bearing in mind in particular your low moral culpability, and taking account of the various matters to which I have referred and in particular your youth, I consider that a combined sentence is appropriate.
88In particular, a Community Correction Order can be crafted in such a way as to expose you to various therapeutic measures to assist you with drug and alcohol dependency and the various psychological issues from which you suffer. Sight must not be lost that you are only nineteen years of age now and have had what can only be described as a frightening and distressing childhood.
89Accordingly, I make these orders:
(a) In relation to Charge 1, you are convicted and sentenced to one month’s imprisonment to be served concurrently with other sentences ordered this day;
(b) In relation to Charge 2, you are convicted and sentenced to one month’s imprisonment to be served concurrently with other sentences ordered this day;
(c) In relation to Charge 3, you are convicted and sentenced to 12 months’ imprisonment;
(d) In relation to Charge 4, you are convicted and sentenced to one month’s imprisonment to be served concurrently with other sentences ordered this day;
(e) In relation to uplifted Charge 17, you are convicted and sentenced to a fine of $250;
(f) In relation to uplifted Charge 18, you are convicted and sentenced to a fine of $400;
(g) The total effective sentence is 12 months’ imprisonment;
(h) I declare that you have served up to but not including this day, 338 days in pre-sentence detention and that such days should be administratively deducted from the sentence ordered against you;
(i) In relation to Charge 3, you are also sentenced to an 18 month Community Correction Order commencing two days after your release from prison. In addition to the standard conditions, the following conditions apply:
(i)Pursuant to s48D of the Sentencing Act 1991, you are required to undergo treatment and rehabilitation specified by the Court and/or the Secretary as follows:
– any assessment and treatment (including testing) for drug abuse or dependency;
– any assessment and treatment (including testing) for alcohol abuse or dependency;
– any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility;
– any program that addresses factors relating to your offending behaviour;
(ii)Pursuant to s48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary.
(iii)Pursuant to s48K of the Sentencing Act 1991, you are required to attend judicial monitoring – the first date being 15 December 2023.
(iv)You are required to report to South Morang CCS at 4A/545 McDonalds Road, South Morang, two days after your release from prison;
(j) The Court will make the disposal order sought;
(k) I declare that in the absence of your pleas of guilty, I would have sentenced you to 18 months’ imprisonment pursuant to s6AAA of the Sentencing Act 1991;
(l) Pursuant to s89(4) of the Sentencing Act, your licence is cancelled and you are disqualified from obtaining a licence for three months from this date.
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