Director of Public Prosecutions v Walker (a pseudonym)
[2017] VCC 564
•10 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KATRINA WALKER (a pseudonym) |
‑‑‑
JUDGE: | His Honour Judge McInerney | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2017 | |
DATE OF SENTENCE: | 10 May 2017 | |
CASE MAY BE CITED AS: | DPP v Walker (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 564 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – theft – armed robbery – robbery – obtaining property by deception – attempt to obtain property by deception – possess drug of dependence – guilty plea
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence:Convicted and sentenced to 3 years and 6 months with a non-parole period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms H. Bate (Plea) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Van Arkadie | Victoria Legal Aid |
HIS HONOUR:
1 Katrina Walker[1] pleaded guilty on 2 May 2017 before this Court in regard to the Indictment.
[1] A pseudonym
2 Ms Bate appeared on behalf of the DPP, Mr Lew appears today and Mr Van Arkadie appeared on behalf of Ms Walker.
3 Ms Walker is now aged 38. She was 37 at the time of this spate of criminality.
4 The eleven offences in this Indictment took place over a period, 3 September 2016 to 12 October 2016.
5 The first charge on 30 September, is a charge of theft, the maximum penalty for which prescribed by Parliament is 10 years. That involved a theft of a number plate.
6 The most serious charge is Charge 2, which was the armed robbery committed at the Oakleigh Railway Station. The seriousness of this is demonstrated by the fact that the maximum penalty prescribed by Parliament is one of 25 years. The armed robbery was committed with the use of a knife. Most concerningly, it was committed by Ms Walker with the aid of her son and niece, who I will not name, given their ages.
7 The offender and her son were initially in her car. The niece then entered the car with knives in her possession and then, from the materials, it seems that they decided to look for a soft target upon which to commit an offence. They found the soft target being a person at 7.30 pm, going about her normal lifestyle, that is, getting off a train and walking home. From the materials, she was seen to be "soft" because, firstly, she was Asian, and secondly, she was female.
8 She was attacked, the use of the knife was actually undertaken by the niece, however, Ms Walker was there and the driver was her son.
9 The victim impact statement, Exhibit B, demonstrates the terror that this young woman went through. The victim not only had the physical issues (she was assaulted) but the trauma that emanated from that and the impact upon her is obvious from the victim impact statement. She was aged 44 at the time.
10 What astounds the Court, often in these cases, and in particular, in this case, is that such a serious offence could be committed for such paltry results. The money obtained from the victim was approximately $30 together with a back pack valued at about $200. However, that is the reality of the situation.
11 The co-perpetrators have already been dealt with in the Court below, that is, the Children's Court.
12 The third charge is one of robbery. The maximum penalty prescribed by Parliament is 15 years, and while not as serious as Charge 2, clearly, a serious charge.
13 This occurred the same day as Charge 2 and indeed, on the materials, some ten or fifteen minutes thereafter. It occurred in Windsor, where, again, a woman walking home from Chapel Street along Dandenong Road, was set upon. The victim had come apparently from Chapel Street, as I said, at about 7.40 pm. Fortunately, no physical harm was wrought to her and indeed no threats were made. However, she, in the circumstances, handed over her purse, her iPhone and her credit cards. The victim obviously handled herself quite well, however, clearly, in her statement, indicates her concern. It was that concern being so confronted that led to her handing over her property.
14 It was indeed the credit cards that were taken from that victim that were then the basis for the subsequent spree of crime on that day.
15 Charge 4, being the use of the credit card to obtain alcohol at Woolworths, in the sum of $25; obtaining property by deception, being a charge which brings with it a maximum penalty of 5 years.
16 An attempt, at the same offence, was also undertaken, being Charge 5, and then, Charge 6, was a further successful obtaining property by deception, when the cigarettes to the value of $15.75 were obtained from the IGA Supermarket at Murrumbeena.
17 We then move to 2 October 2016, when another registration plate was stolen at Officer, which makes up Charge 7.
18 Thereafter, with the stolen registration, I presume on their car, or on her car, anyway, or the car Ms Walker had; Charges 8, 9 and 10 were committed. Each of those was a drive-by at a petrol station, fleeing without paying. The first on 2 October 2016 was at a Coles service station where $80 petrol was taken. On 4 October 2016, Charge 9, again, at a Coles Express service station where $62.15 in petrol was stolen; and; Charge 10, on 7 October 2016, at the BP station in Officer where petrol in the sum of $70.08 was stolen.
19 In this instance, if it was not bad enough that Ms Walker committed the armed robbery with her 17 year old son and niece; in this instance, the driver who drove off, insofar as Charge 10 was concerned, was her 14 year old daughter.
20 The final charge, Charge 11, occurred on 12 October 2016 being the date of apprehension, some five days later after the spate of crimes, when Ms Walker was found to be in possession of methylamphetamine, some 3.96 grams; the maximum penalty, for which is prescribed, in her instance, being not for trafficking purposes under s.73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), of a one year maximum and/or 30 units.
21 As indicated to the Court, the apprehension took place apparently from the recognition of one or other of the co-conspirators, I think, the cousin, and the arrest took place at the cousin's address in Clayton, where each of the three parties were arrested, that is, the three parties to the armed robbery.
22 Insofar as the circumstances were concerned, they are more fully summarised in Exhibit A which was the Prosecution Opening, which was accepted by Mr Van Arkadie as the facts upon which I am to sentence Ms Walker.
23 The record of interview and the comments made therein by Ms Walker are set out, in particular, from pp.5 through to 7 of Exhibit A.
24 Ms Walker comes before the Court with prior offences. She was at the time, on a Community Correction Order for a period of 12 months and therefore committed this criminality in breach of such order; such order being imposed in October 2015 for possession and dishonesty charges. She has a series of other charges going back to 1998: a drug offence in Queensland in 2003 and a theft charge in 1998. The point to be made, however, there is nothing in any way of this dimension.
25 The pre-sentence detention served today is agreed at 210 days. The plea was first indicated in January 2017, which is obviously utilitarian; it assists the course of justice, given that these offences only happened in September of last year.
26 Insofar as the plea was concerned, to the Court, Mr Van Arkadie provided a chart which gave me details as to Ms Walker's children. Also tendered was, Exhibit 1, his Outline of Submissions. Exhibit 2 was the extensive report by Ms Gianvanni, psychologist, dated dated 27 April 2017, and there are a number of additional exhibits, to which I will refer.
27 There was one negative drug screen dated 4 January 2017, taken when Ms Walker has been on remand, Exhibit 3. There was a Certificate of Completion of ‘Ice Effects Program,’ Exhibit 4. There is a bundle of course certificates undertaken while on remand, Exhibit 5 and two certificates of Corrections Offending Behaviour Programs ‘Managing Worry’ and ‘Coping with Change,’ Exhibit 6.
28 Mr Van Arkadie made the point as to the offending, that it was essentially a six-day crime spree. He emphasised the point, I have already made: despite the seriousness, in particular, of Charge 2, the limited value obtained with all of these matters, somewhere between $1,000 to $2,000. He accepted the seriousness of, in particular, Charge 2, the use of the knife and the injuries suffered when the victim actually took hold of the knife, and cut her finger.
29 Mr Van Arkadie stressed the concern in the community was accepted, where people choose soft targets in these circumstances; and made the point that, while the knife was not used as such to injure, it was used to threaten and effect the armed robbery. The injury came about from the victim, perhaps panicking, grabbing the knife herself.
30 Insofar as Charge 3 was concerned, the particular role of Ms Walker in that instance was that she was driver and that there were no physical injuries to the victim.
31 As Mr Van Arkadie put to the Court, the rest of the charges, can be seen to be relatively minor. I accept that totally.
32 Mr Van Arkadie submitted that the record of interview was quite helpful insofar as this investigation was concerned; that the early plea of guilty, not only serves justice but indicates remorse on behalf of his client, which I accept. Such resulted in the committal being conducted by way of hand-up brief.
33 Mr Van Arkadie took me to the personal background of Ms Walker. I described it, and I do not do it disrespectfully, but the personal background and the impact of drugs upon Ms Walker, her own precociousness, the circumstances where she left home so young, where she has essentially been on the street, the fact that she has had ten children to some six different fathers, the comments of her as to how she was able to exist, the need for her to offer sexual favours for her to get accommodation; all that adds up, as I described, to a modern horror story. As I say, I do not say that disrespectfully, but this is one of the issues that our community has to deal when persons are beset by drugs.
34 Remarkably, as often happens in this Court, Ms Walker's parents were present at the plea to support her. As I said, she left home at a very early age. She has lived a very transient existence. As Mr Van Arkadie put to the Court, she essentially grew up on the streets.
35 Ms Walker then became subject to alcohol and polysubstance abuse and got to a stage of injecting amphetamines, to the level of 1 gram a day. She has suffered from psychological distress, and the particulars in regard to that were set out in the report of Ms Gianvanni, psychologist, Exhibit 2.
36 This psychological distress has been with her, most of her life. It is particularly described by Ms Gianvanni at pp.21 through to 24. Ms Walker is described as having a borderline personality disorder; suffering from impulsivity in regard to self-harm and sexual activity.
37 At [8.15], p.23, it was the psychologist's opinion, at the time of the offences, Ms Walker was, "experiencing symptomology related to her psychiatric conditions". She went in the next number of pages to indicate why. I accept, by way of general background, clearly, this is what happens when you live in this milieu. Those matters were detailed, as I said. There was no submission as to R v Verdins (2007) 16 VR 269, however, it was necessary for the Court to understand the background of Ms Walker, which has led her finally to commit such a serious offence.
38 As was said at [8.16] p.25, by Ms Gianvanni, "with regards to her offending behaviour, it is the writer's opinion, Ms Walker's psychiatric conditions have, to a degree, contributed to her offending behaviour…” and she went on to detail the reasons for such opinion.
39 Ms Walker remained essentially untreated. There was some concern expressed at [6.17], p.14, as to her appreciation of her difficulties. It would appear that this has improved since she has been in prison. That may be in the context of the number days she has been in prison and as a result of the various courses that she has undertaken, which I have referred to by way of the exhibits.
40 As I said, given her history, Ms Walker hardly needed to undertake a course as set out in Exhibit 4, being an Ice Effects Program. She well knows that. Equally, I would have thought, she does not need to be in custody to attain insight into her problems.
41 As I understand the position, she is still supported by her parents, especially if she effects rehabilitation, but the reality, coming from Exhibit 2 and all the material before the Court, is that she must stop drugs. If she does not, then she is going to be involved in even more serious criminality.
42 I think the point to be made, however, is that until now, Ms Walker has not committed such serious offences. It is to be hoped that the impact of gaol and the sentence that I am about to pronounce, will ensure that she does not leave prison and go straight back to the life she has led, unfortunately since the age of twelve years.
43 Mr Van Arkadie conceded given the relevant principles, the need for gaol in this matter. He submitted that it would be appropriate to consider a combined order. However, the problem is the current legislation. There was no Verdins submission, the plea was conducted in the context of Ms Walker’s mental health issues and her drug issues and lifestyle; and the crimes being committed in the context of that lifestyle, which I accept totally. As I said to Mr Van Arkadie, with the Government's recent amendments to the Community Correction Order limiting such a combined order with a period of imprisonment of 12 months; it was very difficult to contemplate that an appropriate sentence could be passed, which recognised the criminality and culpability in this matter, by way of a combined order with such restriction.
44 Indeed, that was the submission of the prosecutor who said that a combined order, in this case, was out of range. That is, because of the limitation of the 12 month period of imprisonment.
45 The prosecution stated these offences were committed while Ms Walker was on a Community Correction Order, passed for drug and dishonesty offences. These offences were committed within 12 months of such order.
46 The prosecutor, submitted that rehabilitation must always be a factor that the Court takes into account, however, submitted that the reality, in this case, had to be accepted that such depended on Ms Walker not continuing on drugs, when she was released.
47 While it was accepted that the planning for this matter was unsophisticated, the prosecutor remarked that clearly the immediate planning was not, in the sense that after the cousin entered the car with knives, they sought out a particular victim, that is, in regard to the armed robbery.
48 The prosecutor stressed the impact that is demonstrated in the Victim Impact Statement, and that the armed robbery, was aggravated by the kneeing, uppercut and by the fact that the victim herself grabbed the knife. She also referred to the comments made by Ms Walker, which seemed somewhat unbelievable, but perhaps indicate her circumstances. The statement of Ms Walker in the record of interview, Question 206, that the victim, "seemed determined for me to cut her open. The bitch," seems a remarkable statement for anyone to make.
49 The prosecutor questioned, the degree of insight and remorse of Ms Walker, given that statement?
50 The prosecutor accepted that there was no physical assault in regard to the robbery charge, however, stressed that here again was a young female on her own at night who complied with the demands, because she was concerned what may happen if she did not.
51 Insofar as parity is concerned, given the particular circumstances, the difference in age, the difference in backgrounds, the fact that the co-accused were dealt with below - I think if I recall, the son was placed – what was Mr ‑ ‑ ‑
52 MR VAN ARKADIE: It was a 12 month order of imprisonment, I understand.
53 HIS HONOUR: Detention.
54 MR VAN ARKADIE: Detention.
55 HIS HONOUR: Detention in youth training; and I do not think that niece has been dealt with, has she?
56 MR VAN ARKADIE: She received a supervision order?
57 HIS HONOUR: She got – that is right, she got the supervision order. Yes, I apologise.
58 In those circumstances, clearly parity, while always appropriate to be considered, has limited application given the difference in age and backgrounds.
59 The learned prosecutor stressed the need for general deterrence, specific deterrence and just punishment to be effected, and stressed the prevalence in the community of drug-fuelled crime.
60 While rehabilitation was an obvious important factor for the community, the Court, here it was submitted, was limited, given the restrictions on a combined CCO.
61 The Court did not request a report. It was not my view, given the seriousness of these crimes, and given the limitations, that a Community Corrections Order could be passed. That is the reason why such report was not sought.
62 Ms Walker has been around long enough to understand what I have said. Clearly, despite her background, her offences to this date were somewhat limited. However, she made a jump into the big league. This was a very big step: Charges 2 and 3 are very serious. Added to that the irresponsibility of having her own child and niece involved is quite obvious.
63 Ms Walker, if you would stand, please?
64 Insofar as these crimes are concerned, you will be sentenced as follows:
65 On Charge 1, a charge of theft, a period of imprisonment of 1 month;
66 In regard to the charge of armed robbery, Charge 2, a period of imprisonment of 3 years;
67 In regard to the robbery charge, Charge 3, a period of imprisonment of 14 months;
68 Charge 4, the obtaining of property by deception, a period of imprisonment of 6 months;
69 Charge 5, attempt to obtain property by deception, a period of imprisonment of 3 months;
70 Charge 6, obtaining property by deception, a period of imprisonment of 6 months;
71 Charge 7, theft, a period of imprisonment of 1 month, as I impose for Charges 8, 9 and 10;
72 In regard to the possession of a drug of dependence, Charge 11, a period of imprisonment of 2 weeks or 14 days.
73 Using as the base sentence, Charge 2, that is 3 years, I order that 6 months of the sentence imposed in regard to the robbery charge, Charge 3, be cumulated upon the base sentence, making a total effective sentence of 3 and a half years. All other sentence are obviously to be served concurrently.
74 The period that you must serve before being eligible for parole is a period of 2 years.
75 I note that it is agreed that the pre-sentence detention period that needs to be declared today is one of 210 days and I declare that period served on remand is a part of this sentence and such declaration be recorded in the records of this Court.
76 Ms Walker, it is important for me to emphasise to you the impact of your plea to you. Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), Parliament requires me to tell you what would have happened to you had you not pleaded guilty. It is a very difficult requirement because when a Judge sentences, I do not sentence only the basis of one factor. However, doing as best I can, can I indicate to you that had you not pleaded guilty, the sentence that would have been imposed upon you, by way of maximum sentence, would not have been 3 and a half years but would have been 4 years and 8 months. The minimum period that you would had to serve is not the period that you have to serve of 2 years but a period of 2 years and 9 months. The importance of that is to indicate to you the value of your plea.
77 I have signed the disposal order. You are old enough to know what your life is going to bring. You have been in prison now for a considerable time. You are going to be in prison for a considerable time after.
78 It is obviously necessary for you to change your lifestyle because once you start committing these serious offences, the next time you come back here, it will not be good, because this Court has to give consideration to harsher sentences which helps no one, certainly not you.
79 I must say, I feel for your parents sitting here. But there you are, they are still supporting you, so good luck and let us hope that things change.
80 Do I need to clarify any matters?
81 MR LEW: No, Your Honour.
82 MR VAN ARKADIE: No, Your Honour.
83 HIS HONOUR: Yes, the offender can be taken away. Thank you. Yes, thank you both. We will stand down.
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