Director of Public Prosecutions v Van Egmond

[2019] VCC 129

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00390

DIRECTOR OF PUBLIC PROSECUTIONS

v

KELLIE MAREE VAN EGMOND

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 February 2019
CASE MAY BE CITED AS:	DPP v VAN EGMOND
MEDIUM NEUTRAL CITATION:	[2019] VCC 129

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

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr D. Brown
For the Accused	Mr G. Chisholm

HIS HONOUR:

1Kellie Van Egmond, on 29 September 2016, you were outside a house in Sebastopol acting as a lookout for your then partner, Daniel Tribokt and another man who were inside a house stealing part of a large crop of cannabis.  On 24 September 2018, I sentenced Mr Tribokt.  I will refer to the reasons for sentence with respect to the facts and circumstances of the crime throughout these reasons.

2The house had 228 cannabis plants, 76 were stolen.  The total weight was 128 kilograms.  This exceeded the threshold for commercial quantity by five times.  At the time of the burglary, Tribokt was under surveillance.  He has a significant criminal record and operates as a criminal within the Ballarat region.  As he was under surveillance, shortly after you and he and the other man returned to your house, you and he, that is Tribokt were arrested.  The other man fortunately for him had left.  At the time you were arrested, you were harvesting the plants.

3You have pleaded guilty to burglary of the house, the theft of the cannabis and the possession of the cannabis for sale, that is, trafficking in not less than a commercial quantity of cannabis.  As noted, your role was as a lookout.  You sent three text messages from outside to Tribokt during the course of his burglary.  Two mentioned that cars had turned up in the area and it gave rise to some concerns to you.  Thus your role was important, but far less than Tribokt and the unknown man who were inside the house.  Added to this, you have maintained that, in the context of serious domestic violence, you felt like you had little choice but to go with and help Tribokt.  That was also the case with the harvesting of the cannabis back at your house.  In your interview with the police after your arrest, you first denied involvement.  Then once faced with your mobile phone text, you confessed and explained why you felt you had little choice.

4In addition to the cannabis, you had some methylamphetamines on you or with you.  You pleaded guilty to the possession of that drug.  You were on bail for the other offences at the time you committed these offences and thus, you have breached your bail.  You have pleaded guilty to a charge of breaking bail.  As I said in the Tribokt sentences, your trafficking was the possession of cannabis in a commercial quantity, arising from the fact that the crop that was stolen, was from a productive cannabis operation.  Yours is not the sort of case where you were seeking out and obtaining significant quantities of already harvested cannabis, so you could sell it to others, thereby making significant profit.  This was an opportunistic set of circumstances in the sense that the house that was burgled had many healthy plants.

5Notwithstanding that, the burglary was organised and planned.  It had serious aspects to it.  It must always be kept in mind that cannabis is a drug that causes many users significant problems.  The community ultimately bears a great cost, while those who have cannabis, however they get it, usually are able to profit significantly.  Mr Tribokt and you with him would have been able to profit significantly by reason of selling the cannabis that was stolen.

6I have mentioned already that Tribokt's violent behaviour left you with a sense that you had little choice but to participate.  Your counsel gathered material that establishes the significance of the domestic violence.  That material was in the form of the police summaries of the significant assaults in 2016, together with the medical records of injuries which resulted in necessary medical treatment and stays in hospital.  This material was, in my view, sufficient to establish the serious domestic violence you suffered at the hands of Tribokt, accepting the accounts in other materials, psychological reports and other reports.  That these incidents de-tout in the  documents were not isolated events.  You endured, like too many women, the dreadful scourge of violence, control and threats by a cowardly unrestrained man.

7This domestic violence in the relationship with Tribokt came as the latest layer in a number of relationships that involved dreadful violence and threats.  Thus your involvement in this offending must be assessed in its proper and broader context.  Your role was much less and I consider that your moral culpability was significantly less.  I consider there is a connection between what has happened to you at the hands of Tribokt and your involvement in these crimes.

8In all the circumstances, the need for denunciation of you is less.  I think in all the circumstances, the community would not consider that you are the one to use as an example to others.  Certainly not to the degree that Tribokt should be, and was used to deter others.

9Other aspects of your personal circumstances, especially of late, means that any gaol term would be especially harsh and severe on you.  I do not ignore your prior convictions, however, these are not so severe or numerous so as to eliminate modes of punishment other than imprisonment into the future.

10As to your personal circumstances, you are now 39.  You were 35 at the time of these offences.  You were raised with two brothers and two sisters in a loving and supportive family.  Your parents remain very important to you, as supports, they were both here at the courthouse for this plea.  After school, you worked for about seven years in the local supermarket.  You were involved in a long relationship from your teenage years.  However, despite saving money and purchasing a house, the relationship ultimately deteriorated and your partner became abusive and controlling.  You took off for Queensland and stayed for about eighteen months or thereabouts to escape from that man.

11It seems the next relationship that you formed was more equal and steady.  You had two children who are now in the care of their father in Geelong.  You have moved to Geelong to be closer to those children and to be able to see more of them.  There are DHHS restrictions in respect of all of this due to your involvement with Tribokt and drugs.

12I have touched on your toxic relationship with Tribokt.  I accept the opinion of Ms Ferrari who saw you for Medico legal purposes in recent times.  I accept her opinion that you have the signs and symptoms of post-traumatic stress disorder, as a consequence of domestic violence.

13Importantly, you are now seeking expert assistance from the domestic violence counsellors here in Geelong.  It is critical that you keep with that program.  You formed a relationship with a man in Geelong.  He was himself a drug user and offender and ultimately became abusive to you.  I was told of two important events that have changed his attitudes and ways.

14First, you fell pregnant and gave birth to a daughter in September of 2018.  Second and most unfortunately, he was the subject of a frightening kidnap and anal rape by four offenders who are presently having their matters listed for committal.  You are an important witness in that prosecution.  The result as far as your relationship is concerned is that he is now more subdued.  You are not living together due to DHHS concerns about him with respect to the new baby, but he is working through supervised contact and the like, with the aim of a more standard family household arrangement into the future.

15There are no departmental protective concerns relating to you.  You have undergone the drug screens that you had been required to by the department and they are clean.  Indeed, you have been abstinent from drugs since these offences and since you broke from Tribokt, that is two years ago.  An important matter in mitigation is that you are cooperative with the prosecution, that is, the prosecution of those who were allegedly kidnapped and attacked your current partner.

16The accused in that matter who is now on remand in the female prison.  Thus risks to you if you were incarcerated are quite acute.  I factor into the equation in your favour, your cooperation with authorities and the significant risks that all that involves.  A plea of guilty in this case is valuable and your sentence will be less because of your plea.

17It is an important factor in opening up for consideration a different type of punishment than would be the case if you had pleaded not guilty and gone to trial.  In fact the matter had a long history before this court on the basis that you thought there was a defence of duress.  Your current solicitors have sorted things out.  I am not sure that you were well assisted by the solicitors you had at the outset.

18A sentence imposed on Tribokt is relevant, but there are significant differences in your role, prior histories and charges.  He faced a number of firearms offences as well.  Importantly, the difference in your prospects for the future means that a very different sentence can legitimately be imposed on you, without creating in him, any justifiable offence of grievance.  I consider that your abstinence from drugs since the offending, and also staying out of trouble since then are very positive signs of your prospects for reform.  Those prospects in my view are now good.  The responsibility of motherhood is also likely to keep you on the rails.  Your counsel urge that I impose an onerous community corrections order.  He conceded this would be a merciful outcome.

19The prosecution submitted that some gaol and a community corrections order was required.  The changes in the Sentencing Act have made clear Parliament's intent to give Judges wide discretion with respect to longer and more targeted community corrections orders.  The Court of Appeal in Boulton and the others provided guidelines to sentencing Judges, which amongst other things, established that community corrections orders were available for serious crimes that in the past may have attracted lengthy terms of imprisonment.

20Be under no illusion Ms Van Egmond, that those that traffic in a commercial quantity of cannabis, given the long maximum term and the serious impact that drugs have in this community, those that traffic at that level ordinarily go to gaol for a lengthy period of time.  However, this is a different form of trafficking in a commercial quantity that, as I have described, involved you at a lesser level than others.

21As noted, the crime of trafficking in a commercial quantity is different as I say to the usual.  Taking into account the need for denunciation, deterrence to others, although moderated in your circumstances, and also deterrence to you, as well as your rehabilitation which is connected in my view, to your move from Ballarat, your new baby, your cooperation with the prosecution and you putting drugs and offending behind you, it seems to me that now is the moment to seize and impose not a term of imprisonment, but a community corrections order that will punish and simultaneously establish conditions to facilitate your continued rehabilitation.

22I intend to impose one aggregate sentence for the four charges on the indictment, in the summary matter as well and the punishment is as follows.  You are convicted and placed on a community corrections order that will go for two years.  You must do 150 hours of unpaid community work.  You must be under supervision and you must do treatment and rehabilitation programs directed at reducing the risk of reoffending under s.48(d)(3)(f) an treatment and rehabilitation as directed under 48(d)(3)(g).  There are other conditions that are mandatory, I will explain those to you.

23Had you pleaded not guilty to these offences and been found guilty of them, which in my view was inevitable, as I explained a number of times to your lawyers, the sentence I would have imposed was three years with a minimum of twenty months.  Is there any other orders Mr Prosecutor?

24MR BROWN:  A forfeiture order, Your Honour.

25HIS HONOUR:  Thank you.

26MR CHISHOLM:  Consented to, Your Honour.

27HIS HONOUR:  There being nothing further, the community corrections order ‑ ‑ ‑

28MR CHISHOLM:  I know, Your Honour, we worked out what to do in respect to the other unrelated summary.

29HIS HONOUR:  Let me finish what is before me ‑ ‑ ‑

30MR CHISHOLM:  Sorry.

31HIS HONOUR:  ‑ ‑ ‑ and then tell me the complications that arise out of that, or if they are not.  But Ms Van Egmond can come out of the dock and come behind you to sign this community corrections order.

32MR CHISHOLM:  Yes, Your Honour.

33HIS HONOUR:  Just take a seat behind Mr Chisholm there.  Now Mr Chisholm what is the answer to this?

34MR CHISHOLM: So under section - there's a - Your Honour makes an order s.242(5).

35HIS HONOUR:  Yes.

36MR CHISHOLM:  To transfer the charges to the Ballarat Magistrates Court on 11 April 2019 for contest mention.  Two four two, Your Honour.

37HIS HONOUR:  Yes, somewhere - is 242(5).

38MR CHISHOLM:  Yes.

39HIS HONOUR: Pursuant to s.242(5) of the Criminal Procedure Act, I consider it appropriate to transfer the - a proceeding for related summary offences back to the Magistrates' Court for hearing and determination.  They are the twenty-one charges laid for breaching bail conditions arising out of alleged telephone calls with Mr Tribokt at the prison.

40The matter having been transferred, your bail is continued for those offences.  It is to be answered in the Magistrates' Court sitting at Ballarat on 11 April 2019 at 10 o'clock for contest mention.

41MR CHISHOLM:  Thank you, Your Honour.

42HIS HONOUR:  Thank you.  I know what her bail conditions, is there any ‑ ‑ ‑

43MR CHISHOLM:  There is reporting and I was going to just seek to clarify when we get the printout, what the bail conditions are and then if there needs to be amendment, that can be applied to ‑ ‑ ‑

44HIS HONOUR:  Where, here or ‑ ‑ ‑

45MR BROWN:  Your Honour ‑ ‑ ‑ 

46HIS HONOUR:  No, there's no need for - she's come to every court hearing throughout.  I've given her some leeway when she was having a baby, but she's always been here.

47MR BROWN:  Particularly if she's on a community corrections order at the time, Your Honour.  I think - an undertaking ‑ ‑ ‑

48HIS HONOUR:  She is going to be very much ‑ ‑ ‑

49MR BROWN:  She is.

50HIS HONOUR:  ‑ ‑ ‑ in the attention of the police ‑ ‑ ‑

51MR BROWN:  Yes exactly.

52HIS HONOUR:  ‑ ‑ ‑ because they want her in a remote room giving evidence against four accused.  That's the key here.

53MR BROWN:  Yes, so (indistinct words).

54HIS HONOUR:  Thank you.

55MR CHISHOLM:  Thank you, Your Honour.  So I'll accompany her afterwards, I think she'll need to sign an undertaking with the registrar.

56HIS HONOUR:  I don't know how - does it work - do we enter the bail here or is it - do I create a bail order?  I assume I do.

57MR CHISHOLM:  Yes.

58HIS HONOUR:  I normally do.

59MR BROWN:  Yes.

60HIS HONOUR:  And then it can be taken - signed off by the registrar downstairs.

61MR CHISHOLM:  Thank you, Your Honour.

62HIS HONOUR:  Thank you.  Well none of those twenty-one offences are uplifted into this court, so that my staff can do what is necessary to transfer them.  It's a computer thing, but it's fundamental.  Someone's just not put it in, whether it's the registrar here or ‑ ‑ ‑

63MR CHISHOLM:  If Your Honour makes the order under 242, myself or my instructors can sort out the Ballarat ‑ ‑ ‑

64HIS HONOUR:  Attach it to what?  I can't - I make an order attached to offences that are listed in this court.  They are not.  We'll have to get them listed for the purpose of transferring them back.  I believe that's the case.

65ASSOCIATE:  Yes, the only one (indistinct) there, Your Honour, is that summary charge (indistinct words).

66HIS HONOUR:  Yes, the only other ones there - so how do we know that they were brought to this court?

67MR CHISHOLM:  Only because I have received a notice of ‑ ‑ ‑

68HIS HONOUR:  Related summary offences.

69MR CHISHOLM:  Summary offences.

70HIS HONOUR:  All right.  Well that can happen.  They can be brought to this court by order of the magistrate at the time and thereafter, no one connected with the Magistrates' Court goes through their simple sole task of ensuring the charges are brought to this court.  They don't do it, we have to do their job for them.

71MR CHISHOLM:  Yes.

72HIS HONOUR:  With all these related summary offences, it's an ongoing problem.  If we get rid of this committal system and just bring people here who have committed crimes that we have to deal with and have a single system, we won't run through this drama.  That's another battle - no, that's many battles in a long war. 

73Ms Van Egmond, let us get back to your key matters.  You are on a community corrections order.  It is going for two years, it starts today and finishes on
12 February 2021.  There are mandatory conditions that apply to every community corrections order.  First of which I emphasise to you, you must not commit another offence for which you could be imprisoned during the time the order is in force.  That is every offence you can think of really.  So if you fall back onto drugs and all the rest of it, well you will come back before me, all of this will be just pushed to one side, I will recognise how naive I was, that you were saying things, but not going to go ahead with them, then I will put you in prison.  It is as simple as that and your child will - heavens knows.

74All right, the next set of mandatory conditions are really about cooperation.  So they need you to cooperate about matters set out in regulations.  They are about having your photograph taken so they know who you are and various things to identify you.  You must report to and receive visits from the Office of Corrections.  You must report there to the Community Corrections Office here in Geelong.  It is just over the road, over the park and the State Government Office is in Little Malop Street.  The address is here.

75You must let the Community Corrections officers know within two clear working days if you change your address or your job.  You cannot leave Victoria without getting permission and you have got to obey all their lawful instructions.  That applies to everyone.  What applies to you is you must perform 150 hours of unpaid community work over the two years.  You must be under supervision of the Community Corrections Office and you must participate in programs and courses that address factors relating to your offending.  You must participate in programs that are consistent with achieving the purpose of treatment and rehabilitation, which might include employment and various other things.  So they might have some programs for you. 

76They were quite clear that the work that you are doing with domestic violence, folk is important and they will be watching how that is unfolding.  Tell them all about it, cooperate with them, do not abandon that.  That would be diabolical.  It would not help you at all.  There is no need for drug or other mental health programs, they will monitor that though.  If you sign this, it will bring it to an end, so far as this court is concerned. 

77So that brings all that to an end.  If something can be sorted out with respect to the entry of these uplifted bail offences and then transferred back to the Magistrates' Court and bail extended, we will get to that, but I am going to stand down while that all happens, but she cannot go until she signs some bail undertaking.

78MR CHISHOLM:  No, I understand that.

79HIS HONOUR:  Mr Brown, if I might just talk to Mr Brown for a moment. 

80(At this stage the court proceeded with another matter.)

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