Director of Public Prosecutions v Turner

[2016] VCC 1938

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01927

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIENNE TURNER

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 December 2016
CASE MAY BE CITED AS:	DPP v Turner
MEDIUM NEUTRAL CITATION:	[2016] VCC 1938

REASONS FOR SENTENCE
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Subject:Make threat to kill – unlawfully on premises – unlawful assault – possess controlled weapon

Catchwords:  Co-accused Shaun Thompson

Legislation Cited:
Cases Cited:

Sentence:14 months imprisonment -

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Saville
For the Accused	Ms B. Franjic

Pages 1 - 8

 

 

HER HONOUR: 

The Charges

1Adrienne Turner, you pleaded guilty of one charge of make threat to kill.  The maximum penalty for this offence is ten years' imprisonment.  You have also pleaded guilty to the summary charges of being unlawfully being on the premises, for which the penalty is 25 penalty units or six months' imprisonment, unlawful assault for which the maximum penalty is 15 penalty units or three months' imprisonment and possess a controlled weapon without excuse for which the maximum penalty is 120 penalty units or one years' imprisonment.

Circumstances of Offending

2The full circumstances of your offending are set out in the prosecution opening.  At the time, you were residing with your co-offender, Shaun Thompson, his mother, Gail Thompson and her partner, Greg Russell.  On 3 May 2015,
Mr Russell drove you and Mr Thompson to 27 Regent Street, Oakleigh, where Megan Snow and her daughter, Courtney, resided.  Thompson was acquainted with Megan Snow and after he knocked on the front door, she invited you both in and asked Thompson if he wanted a drink.  At this time, Thompson produced a small handgun and pointed it at Megan Snow.  He demanded that she give him her gold necklaces and rings.  She had been sitting on the couch.  When she attempted to stand up, the gun discharged beside her left ear.  Thompson then grabbed the necklaces from her neck and struck her to the fact with the firearm.

3Megan Snow screamed for help.  Courtney had been upstairs at the time, came downstairs on hearing her mother's scream.  This is really where your involvement begins.

Unlawful Assault

4The charge of unlawful assault relates to your actions when you left the lounge room and confronted Courtney on the stairs.  You grabbed her left arm and punched her on the face.  When she attempted to throw you off her, you grabbed her left leg with both your hands.  Thompson then emerged from the lounge and pointed the gun at Courtney and told her to, "Fuck off." 
Megan Snow had also left the lounge and she tried to grab the gun from Thompson but was unable to do so.  She ran to the back of the house to call for help.  Thompson then left by the front door.

5Meanwhile, Courtney Snow returned upstairs and yelled at him from the balcony.  Thompson pointed the gun at her and she ran back inside the room.  

Threat to Kill

6Your involvement commences again when you return to the lounge room and Megan Snow followed you.  She stood at the entrance to the lounge room, blocking your exit.  You swore at her several times, telling her to, "Fucking move."  The charge of making a threat to kill relates to you saying to her, "I'll fucking stab you if you don't move."

7At this time you had a large kitchen knife in your hand which you held above your head and pointed towards her.  You called out to Thompson, who came back into the house and pointed the handgun at Megan Snow.  While he pulled the trigger, the gun failed to discharge and he struck her to the face with the gun.  You and he then left the property via the front door and you both were taken away by Mr Russell. 

Possess Controlled Weapon

8Summary Charge 7, possess controlled weapon, relates to the possession of the kitchen knife by you. 

Unlawfully on Premises

9Summary Charge 6, being unlawfully on the premises relates to the fact that your entry to the house became a trespass at a later stage, due to your conduct and your possession of the knife. 

10You were arrested the next day and assessed by medical officers as being unfit for an interview.  You were granted bail on 2 September 2015, after spending 121 days in custody. 

Personal Details

11The court had details of your personal circumstances, from both your counsel and Dr Diane Kirby, a consultant psychiatrist at the Alfred Hospital and also from Dr Lester Walton. 

12You were raised in Frankston.  You have five sisters.  Your mother was an alcoholic, your father was abusive. You were placed in the care of the Department of Human Services when you were 13, due to substance abuse and self-harm.  You left school after completing Year 8.  At the age of 16, you became pregnant. Your 11 year old daughter lives with one of your sisters.  You also have a 9 year old son who has been in foster care for the past four years.  Apparently, you maintain contact with the children.  Unfortunately, you have a long history of drug abuse, staring with cannabis when you were 13.  In more recent times, it appears that methamphetamine and GHS are your drugs of choice. 

Dr Kirby’s Report

13In her report of 15 May 2012, Dr Diane Kirby diagnosed you as having a severe borderline personality disorder with polysubstance abuse.  She reported that as a result of your borderline personality disorder and your drug issues, you had recurrent episodes of self-harm, including cutting, over-dosing.  You had mood swings with aggression, chronic suicidal ideation at times and chronic feelings of emptiness.  At time, you also experienced psychotic symptoms. 

14You counsel tendered a number of discharge summaries from the Monash Health, which confirmed that you had a history of multiple admissions to hospital, suffering from chronic auditory hallucinations, usually after drug use or attempt to self-harm. 

Dr Walton’s Report

15In his report, Dr Walton also diagnosed you as having a borderline personality disorder and he thought it was probable that you were in a state of drug-induced psychosis at the time of your offending.  While your depressed mood and suicidal intensity were inherently part of your borderline personality disorder,
Dr Walton considered that they were “sufficient, in themselves, to warrant an independent diagnosis”.

16With respect to the effect of gaol on your mental state, he noted that when you were previously in custody, you had to be moved to the psychiatric unit for your own safety.  In his opinion, gaol would be onerous for you than others and he also was of the opinion that any form of confinement tended to aggravate your borderline personality disorder. 

17As a result of your personality disorder and drug abuse, you have often been homeless and your only employment has been as a sex worker.  You have a criminal history commencing in 2008, the most recent court appearance was at Melbourne Magistrates' Court in January 2014 on threats to possess controlled weapon without excuse, threat to inflict serious injury and fail to comply with - yes, sorry, and threat to inflict serious injury. 

18You have a number of prior convictions for possess controlled weapon without an excuse.  Your counsel inform the court that the reason for these priors was that you had a knife with you, at times, to protect yourself when you were working in the sex industry.  At the time of the offences I am sentencing you on, you had been in a defacto relationship with Mr Thompsons for approximately two years.  You instructed your counsel that you are no longer in a relationship with him. 

Defence Submissions on Circumstances of Offending

19In her submissions today regarding the circumstances of your offending, your counsel informed the court that:

·you had accompanied Mr Thompson to Megan Snow's house in order to buy drugs;

·you had no knowledge of his intention to rob and assault her;

·you had the knife with you for personal protection and that you had not intended to harm anyone with it;

·when Megan Snow had blocked your exit from the lounge room, your action in pointing the knife at her and threatening her had been spontaneous as she was preventing you from leaving the room;

·your offending was of short duration and at the lower end of the spectrum for threat to kill. 

20In essence, it was submitted that if the court was to find you unsuitable for a community corrections order, time served or close to it, was an appropriate sentencing disposition. 

Mitigating Matters

21In making this submission, your counsel relied on the following mitigating matters: 

·you had pleaded guilty at a relatively early stage in the proceedings;

·you had a number of relevant criminal convictions, you did not have a significant history of offending involving personal violence; 

·your offending took place during a period of your life which was characterised by significant psychiatric disturbance, drug abuse and social instability; 

·      you had a difficult childhood with parental conflict, physical and sexual abuse and self-harming behaviour.  

·      Dr Walton's opinion that due to your disturbed mental state, gaol would be more onerous for you than for others and that your conditions would be aggravated by your confinement. 

22At the first plea hearing, the prosecutor did not contend that a community corrections order was not within range.  However, with respect to principles 5 and 6 in Verdins case, the prosecutor relied on the DPP v O'Neill[1] as being authority for the propositions that the principle in Verdins do not extend to personality disorders. 

[1] [2015] VSCA 325; 47 VR 395

23Dr Walton's opinion was that gaol would be more onerous for you because of your condition and that it would aggravate your condition. Verdins case says that I can take these matters in account if I am satisfied by medical evidence that independent of your personality disorder you suffer from depressed mood with suicidal intensity.

CCO Assessment

24Taking all these matters into account, I organised for you to be assessed to determine your suitability for a community corrections order.  You did not attend the first assessment appointment and in your absence, you were found unsuitable.  You were then reassessed in custody and, once again, you were assessed as being unsuitable with a high risk of reoffending. 

25The assessment reveals that you have five previous unsuccessful community correction orders.  Given that fact, it is not surprising that you have been assessed as being unsuitable for yet another community corrections order.  I consider that, given your history, the only appropriate disposition is a sentence of imprisonment. 

Sentencing Remarks

26In sentencing you, I have taken into account all the various mitigating factors referred to by your counsel.  I have given you a discount for your plea of guilty and I have also taken principles 5 and 6 of Verdins case into account as factors mitigating punishment.  In doing so, I have accepted Dr Walton's opinion that your episodes of depressed mood and suicidal intensity, were insufficient in themselves to warrant an independent diagnosis. In so far as your mental health is affected by depressed mood and suicidal thoughts, as distinct from a personality disorder, I accept that imprisonment would be more difficult for you and that it could have an adverse effect on your mental health.

27However, in sentencing you I also have to take into account general and specific deterrence and denunciation of your conduct.  They remain important sentencing considerations. 

28I accept your counsel's submission that when you went to the premises, you were unaware of Mr Thompson's intention to rob and assault Megan Snow.  I also accept that when you pointed the knife at her and made the threat, it was a spontaneous action by you, as your exit was being blocked.  However, when you made the threat to stab Megan Snow, you pointed the knife at her and, no doubt, it would have been a terrifying experience for her. 

29You have a prior for threat to inflict serious injury and two priors for assault with a weapon.  You were also involved in a physical altercation with Courtney Snow.  While I accept that you have psychological issues, you are not helping yourself by continuing to take drugs.  It is not difficult to conclude that your substance abuse is a large factor in the worsening of your mental health issues.

30In his report, Dr Walton provided a glimmer of hope for you, in that recent research has established that a very significant portion of persons with personality disorders improve with the passage of time.  You are almost 30.  It is about time you took control of your life and dealt with your issues. 

Sentence

31On the charge of threat to kill, you are sentenced to term of imprisonment or
12 months.  On the charge of unlawful assault, you are sentenced to a term of imprisonment of one month.  On the charge of possess a controlled weapon, you are sentenced to a term of imprisonment of three months.  On the charge of unlawfully on the premises, you are sentenced to a term of imprisonment of two months.  The base sentence is the 12 month term of imprisonment on the charge of threat to kill  I cumulate 14 days of the sentence of the charge of unlawful assault, one month of the sentence on possess controlled weapon and one month of the charge of unlawfully on the premises. 

32Effectively, what this means is that you have a head sentence of 14 months and 14 days.  I fix a non-parole period of eight months and 14 days.  This effectively means that you have a four and a half month sentence remaining to be served, taking into account time you have already served. 

336AAA, I would, but for your plea of guilty, have sentenced you to two years to serve 15 months.  PSD, I declare - your counsel will explain if you are confused about what has happened, I am sure your counsel will explain it to you.  What is the pre-sentenced detention?

34MS SAVILLE:  One hundred and twenty-eight days.

35HER HONOUR:  I declare pre-sentence detention of 128 days.

36MS SAVILLE:  As Your Honour pleases.

37HER HONOUR:  No ancillary orders?

38MS SAVILLE:  There was a 464, I believe, Your Honour, which ‑ ‑ ‑

39HER HONOUR:  Has that been handed up?

40MS SAVILLE:  That is a good question.  I do not remember, Your Honour, if it was or not.

41HER HONOUR:  Is that objected to?

42MS FRANJIC:  No, Your Honour.

43MS SAVILLE:  I can certainly have it emailed through if it is not on the file.

44HER HONOUR:  All right, I have also got to inform you, Ms Turner, that you have consented to having a forensic sample taken.  It will be a scraping from your mouth.  If you were to resist that physically, the police can use reasonable force to restrain you.  It is not painful, it does not hurt and I am sure you will not resist it.  Yes, thank you.

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