Director of Public Prosecutions v Turner

[2022] VCC 409

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-01234

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHLOE TURNER

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2022
DATE OF SENTENCE:	31 March 2022
CASE MAY BE CITED AS:	DPP v Turner
MEDIUM NEUTRAL CITATION:	[2022] VCC 409

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Plea of Guilty – one charge aggravated burglary- one charge common law assault –  sentence indication – impact of post-traumatic stress – drug use – youthful offender – circumstances of COVID-19 pandemic

Legislation Cited:      Crimes Act 1958 (Vic) ; Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269

Sentence:                  Community Corrections Order of 24 months duration

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Paganis	The Office of Public Prosecutions
For the Accused	Ms J. Willard	Papa Hughes Lawyers

HER HONOUR:

Introduction

Plea of guilty and maximum penalty

1Chloe Turner, you have pleaded guilty to one charge of aggravated burglary on the basis that you formed an intent to assault, or and were knowing or reckless as to the presence of a person inside the property, an offence which carries a maximum penalty of 25 years' imprisonment, and one charge of common law assault, an offence which carries a maximum penalty of 5 years' imprisonment.

Circumstances of the offending

2The Prosecution Opening, dated 29 March 2022, sets out the circumstances of your offending. It was tendered on the Plea and became Exhibit A. It is attached to, and forms part of, these reasons. I will not repeat it here, but I will summarise some of the facts giving rise to your offending.

3The victim in this case, Ms Zoe Esperance had been living with your co-accused, Ms Thomson, for about a month before your offending at Ms Esperance's home in Balaclava. Ms Thompson was 42 at the time of this offending, Ms Esperance 39, and you were 19.

4Ms Esperance and Ms Thomson had a falling out over who was responsible for an electricity bill.

5Ultimately, and as a result of that disharmony, on 7 December 2019, Ms Esperance asked Ms Thomson to leave the home. She, that is Ms Esperance, sent Ms Thompson a text message asking her to remove all her belongings by the time she returned home.

6At about midday, Ms Esperance returned to the property and saw Ms Thomson still removing some of her things from the unit. Ms Esperance entered her home and locked the door.

7There were still bags of Ms Thompson's things inside. Ms Esperance was angry about that; she placed the remaining bags in the hallway near the entrance.

8Around 20 minutes later Ms Thomson returned to the property with you. You had an argument through a locked fly screen door with Ms Esperance for some minutes. Ms Esperance states you were both being abusive and threatening. There is a video of part of that interaction, taken on Ms Esperance's phone. You can be seen and heard cursing and threatening Ms Esperance through a screen door. You can be heard saying, among other things:

(i)'I don’t care if it’s now or at Hosier Lane cunt, I’m going to get you motherfucker, I’m going to fucking kill you bro'; and

(ii)'you are a spoilt little fucking slut'; 'you are fucking dead now bro'.

9You and Ms Thomson moved away from the door for a short time, and Ms Esperance picked up one of Ms Thomson's bags and opened the door.

10When she did so, you and Ms Thompson entered the apartment with some force. Some of these events were filmed by Ms Esperance, but only partially, on her phone. In that footage, you can hear Ms Esperance yell 'fuck off' and 'get out of my house'. We also hear you yell 'yeah cunt'. A struggle is heard, and Ms Esperance is yelling out in pain. After you entered the property, although this part is not captured on the film, you pushed Ms Esperance's head into a door handle a number of times. The Prosecution Opening describes Ms Thompson as the instigator, then notes she did not physically touch Ms Esperance. The time you and Ms Thompson spent outside the house is estimated to be approximately 10 minutes, and it was estimated that you spent 'a couple of minutes' inside.

11

A short time later, police arrived and observed fresh bruises on the complainant's left leg, a bump on her forearm, and an egg-shaped bump on her forehead. Ms Esperance was taken by ambulance to hospital. The ambulance officer described her injuries as ‘minimal’. Ms Esperance, I note, has a range of

pre-existing medical conditions not linked directly to these events.

Arrest and interview

12You were arrested on the evening of 20 December 2019; you were taken to the Richmond station where you exercised your right to silence. You were charged and bailed to appear at the Melbourne Magistrates' Court on 31 March 2020.

Sentence indication

13Now in this court, on 21 March 2021 you applied, pursuant to s207 of the Criminal Procedure Act 2009 (Vic) for a sentence indication on a plea of one charge of aggravated burglary, and one charge of common law assault. Although no longer a pre-condition to such an indication, the prosecution did indicate that they did not oppose the application. The prosecutor made the Director's position clear: an immediate sentence of imprisonment was warranted and appropriate in the circumstances of this case.

14I asked for some further information on the application, and when the matter returned to Court on 25 March 2022, I indicated that were you to enter pleas of guilty to the charges, I would not impose a period of imprisonment to be served immediately, and I had you assessed for a Community Corrections Order (‘CCO’).

Nature and gravity of the offending

15Your case resolved to a charge of aggravated burglary on the basis that, when you entered Ms Esperance's property, you intended to assault her and you knew, or were reckless as to her presence inside, but I infer from all the circumstances that you absolutely knew of Ms Esperance's presence and you then went on to assault her, giving rise to Charge 2. Your assault was in the context of the aggressive words and your entry to the unit without permission. Whatever had gone on between Ms Esperance and Ms Thomson in no way justified this behaviour, and I regard your treatment of Ms Esperance, a person with her own vulnerabilities, in her home, as deeply unacceptable. Aggravated burglary is always to be considered a serious crime, involving as it does the breach of a person's privacy, and their security in their home.

16

That said, I accept that your offending was unplanned and relatively spontaneous, if uncontrolled and violent. I have considered the Hogarth factors in assessing the gravity of what you did. No weapon was involved, there was no entry by stealth or surprise; these events occurred in the middle of the day. There was no

long-standing history between you and Ms Esperance and she had no particular reason to fear you, other than what had happened immediately before on that day. I accept the submission that while all aggravated burglaries are extremely serious, this on that scale, does not approach the most serious examples in this class of offending. The common assault is of a category of the more serious kind in its context, which I have already noted.

Personal circumstances

17You are now 21 years old, and you were 19 at the time of these alleged offences; you are of Aboriginal heritage.

18You were born in Sydney. Your mother had an addiction to opioids and has been in and out of prison. You witnessed your mother using drugs, including heroin and methamphetamine; your contact with your mother over the years has been sporadic. You recall smoking amphetamines with your mother from age 14 to 19 years old.

19You were raised by your grandparents from age 3 to 12, but lost your grandfather when you were 6, and when you were 16 your grandmother was diagnosed with dementia. From here, you spent years in foster and residential care.

20Your biological father was of Scottish descent; you commenced a relationship with him when you were 15. He was murdered some time later in that year, when you were incarcerated at Parkville, and if any part tells the whole of your story, it is that you, aged 15 and incarcerated, organised your murdered father's funeral from custody.

21You attended four primary schools. You struggled with behaviour, bullying and health issues. You have asthma, scoliosis, and nerve damage in your arm from intravenous drug use.

22You were in a relationship with Liden for about three years; he was 25, and there was a considerable degree of domestic violence in the relationship.

23You were assessed by Ms Gina Cidoni on 1 March 2022, and your ‘global cognitive functioning' was assessed as being within the low-average range. She also found you suffer from trauma symptoms, ADHD, and Borderline Personality Disorder. I will refer again to this material later in these reasons. Another short report, that of Professor Ogden, was also tendered, confirming some of these diagnoses.

Impact on victims

24I am obliged to take into account the impact of your offending on your victims. On the plea, a victim impact statement was tendered, and I have read it and I take the admissible parts into account. Ms Esperance ought never have been attacked in her home in that way, and the consequences still flow for her. She remains frightened.

Prior criminal History

25I have had regard to your prior criminal history in considering your sentence. It is troubling. You have been found guilty of arson, assaults, threats to inflict serious injury, damaging property, and perhaps less relevantly offences of dishonesty. You have been sentenced for armed robbery, burglary, and breaching the orders imposed in relation to those crimes. It is, quite frankly, a relentless and tragic history; but for one case in the Heidelberg Magistrates' Court (and something in another court, called the Bail on Remand Court) it unfolded in the Children's Court jurisdiction. This history, which falls between 2014 and 2019, would suggest quite bleak prospects for your rehabilitation. The two and a half years without offending after March 2020, however, suggest a different course might be open to you.

Matters in mitigation

Plea of guilty

26Although your plea, coming as it did after the cross-examination of the complainant at committal, is not to be regarded of the earliest kind, it is still valuable and important. At any time, your pleas of guilty would warrant a significant reduction in the sentence you must serve, but in these times, when the administration of justice is so impaired by the restrictions imposed in the context of the pandemic, your plea attracts a special and much greater discount, and your sentence in these circumstances, I make very clear, is significantly lower than it would have been in other times.

27I accept that your plea contains within it an aspect of remorse and your acceptance of responsibility.

Psychological material

28Unsurprisingly, given your personal history, you carry with you a range of psychological difficulties that have significantly affected your functioning so far. In the report of Ms Cidoni, you are diagnosed with ADHD and Borderline Personality traits. No particular Verdins' submissions were advanced, but I take into account the matters described in Ms Cidoni's report, and in the report of Professor Ogden in a general way in mitigating your sentence. You are described as having 'highly variable and unpredictable moods, untrusting and pessimistic outlook, and feelings of being misunderstood'.

29No particular causal links were made or advanced between the difficulties under which you labour, and your offending in this case. You were using methamphetamines during the period when your offending arose, and psychological material provides the context of your drug use, and of your offending.

Further context of the offending

30Your drug use, in particular your use and abuse of methamphetamine at the time of the commission of these offences, must also be seen in the context of your profound deprivation and dysfunction from early childhood. I accept that your drug use sits in this context, and I have regard to the circumstances in your background that led you down that path of addiction, and that in some part, though not wholly, caused the commission of these offences. As a child, it appears that you were almost completely denied stability and affection. Indeed, your mother introduced you to, and normalised your use of, methamphetamine, it would seem.

31I also accept that the principles described by the High Court in the case of Bugmy[1] are applicable in your case: you grew up surrounded by substance abuse and neglect, and I accept that your culpability is lower than that of an offender whose formative years had not been marred in that way.

[1] Bugmy v The Queen (2013) 249 CLR 571.

Youth

32You are also youthful. You were 19 at the time of these offences, and 21 now, and because of that I find therefore that your rehabilitation must be the primary focus of this sentence, notwithstanding the very serious nature of the charge.

33At 19, I accept that you had a lesser appreciation of the seriousness and consequences of your conduct than a mature person would have been able to have. You are still a young woman, and our community has a long-term stake in your recovery and your rehabilitation. I will come further to the gains you have made since these events, but it seems to me there is much that weighs in favour of consolidating what you have already begun while on bail.

Prospects of rehabilitation

34While it is clear that from a very early age, and until the time when you were 19 and committed these offences, your life has been characterised by chaos and neglect, it is also clear that in more recent times, from about March 2020, you have made some considerable steps towards your rehabilitation. First, I note that there is no subsequent offending, which in the circumstances of your life is significant. In March 2020 you moved to Queensland, and although you took your then partner with you, you were helped to leave that relationship, and a sister has welcomed you into her home, and you help to care for her young children. She writes of you affectionately in the letter before the court. You have undertaken study towards work and achieved various certificates that were tendered on the plea, and show your real progress in training towards work readiness. You are undertaking further training at the moment. Payslips were tendered that show you have commenced regular employment in the hospitality industry. You have done well.

35It has been nearly two and a half years since you were last in trouble. You have left your abusive relationship and formed another, and your partner is employed. You are now expecting your first child. You have, and again remarkably in the context of your life, been abstinent from substances since early 2020. It was submitted both in your sentencing indication hearing and on your plea that in these circumstances your sentence could take the form of Community Corrections Order (CCO).

36I note that you travelled from Queensland to Victoria to face your court case. You have not tried to run away or deny what waits for you here in Victoria.

37Although CCOs are unusual for the charge of aggravated burglary, they are not unknown. Perhaps even more unusually, your counsel submitted that your CCO ought be administered in Queensland, where you now live and work. At the sentence indication hearing I requested, and was later provided with, evidence from a Mr Squerzi of Corrections Victoria about how such an arrangement would work in practice. I am satisfied that there are arrangements that could be in place where you are supported to continue your rehabilitation in Queensland, but that still holds you accountable to this Victorian Court. One upside of the pandemic is the ability to maintain contact remotely via the online hearing system in your circumstances.

Current sentencing practices

38I have had regard to current sentencing practices in considering your sentence. Helpfully, I was referred to a number of sentences of this and higher courts in the course of your plea, and I have considered them and others for this charge. I have considered those sentences, as I have already mentioned, that set out the factors to think about in the assessment of the seriousness of aggravated burglary. No sentence is perfectly like yours, but I take into account the general landscape of sentencing in the area.

Sentencing principles

39I must apply the proper sentencing principles in your case. This sentence should deter you from ever behaving in this way again, and it should deter other people by example. Your conduct is denounced by this sentence: what you did was shameful and unacceptable. This sentence must punish you, but at the same time support your rehabilitation so that in the end the community is better protected. I regard this rehabilitation, as I have already said, as central to this sentence given your youth and what you have achieved so far.

40Were it not for the work you had done in Queensland so far, I would have regarded your prospects of rehabilitation as rather bleak. But over time in Queensland, you have demonstrated consistency of purpose and, most importantly, action. That is not nothing. With your history, there still will be challenging times ahead for you, as they are for any of us; but you know now that you can do it and, I hope, that you will continue to gather supportive structures around you. I do not suggest that your rehabilitation is complete, or that it will be simple or easy, or that it will not suffer setbacks or challenges. But now you have some experience in the community of education, a proper household, and employment. You are about to embark on parenthood in all its challenges and delights. You now have a template for a lawful and purposeful life: not a bad achievement in your circumstances.

Disposition

41Chloe Turner, on the charge of aggravated burglary and on the charge of common law assault, you are convicted and sentenced to a Community Corrections Order of 24 months' duration.

42Pursuant to s40 of the Sentencing Act1991 I note that I impose the same to cover both charges. I am going to require that you do 50 hours unpaid work, and I have moderated that number to take account of your current circumstances, and the fact that you are working and pursuing further study. I will come in a moment to more detail about that.

s6AAA sentence discount

43Pursuant to s6AAA of the Sentencing Act 1991, but for the plea of guilty, the sentence imposed would have been a period of 18 months’ imprisonment, with a non-parole period of 12 months.

44The order will be for the duration of 24 months. You will first be subject to the standard conditions of a CCO, and that means that you must not commit any other offences that are punishable by imprisonment, during the 24 month period; and let me be clear about this: if you do, you get brought back before the court and resentenced.

45You must report to the Dandenong Community Corrections Service within two days of today, and that can be done by telephone obviously.

46You are required to advise your supervisor in the Corrections office of any change of the address where you are living or working, and you must do so within two clear working days.

47I note that after your report to Dandenong Community Corrections Centre, a transfer of supervision to Queensland Probation and Parole, as it is known there, will be navigated. Informally, this has been confirmed to be the Caboolture office in Queensland. It is important that you understand you must report by telephone to Corrections Victoria first.

48It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of your Community Corrections Officer. both here in Victoria, and the ones in Queensland that take over the administration of your order. Although I note that there is a condition on every CCO that you not leave Victoria, I suggest that an implied permission has already been granted given the evidence that the court has heard about you completing your order in Queensland.

Special conditions

49These are the special conditions that I will attach to the order:

50You will be required to report for supervision as directed.

51You must submit to assessment and treatment for alcohol and drug dependence. That may or may not flow on to treatment, but I want you to be assessed and have something there in place if you need to.

52You are required to submit to mental health assessment and treatment as directed.

53I require you to do 50 hours of unpaid community work over the term of the order, but pursuant to s48CA of the Sentencing Act1991, I direct that time spent in treatment and rehabilitation programs be credited towards those hours. So, if you attend for appointment or therapeutic events, the hours clock up in this way. I am requiring you to do unpaid work, but if you are attending for treatment, or participation in group sessions, or what have you, that will clock up the hours.

54I will require you initially to participate in judicial monitoring, just so that I can supervise the engagement of the people in Queensland, to make sure that that transition happens smoothly, and you are not left wondering what is happening. That means that you will have to come back to court, by video, in two months. I want to hear from you, directly, how it is going.

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