Director of Public Prosecutions v Warren

[2018] VCC 689

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

AP-17-3245 & AP-17-3246

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMANDA WARREN

CARIS UNDERWOOD

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 May 2018
CASE MAY BE CITED AS:	DPP v Warren & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 689

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Stephen Devlin
For Accused Warren	Cecily Hollingworth
For Accused Underwood	Sharon Lacy

1HER HONOUR:  These matters came before me as appeals from the Magistrates' Court.  In relation to Caris Underwood, Appeal AP-17-3246, it is an appeal against the sentence imposed at the Magistrates' Court, which was four months' imprisonment, with a 12 month community corrections order, in relation to one charge of intentionally causing injury to an emergency worker.  The maximum penalty for that offence is ten years' imprisonment, with a minimum of six months, which may not apply in certain circumstances.

2In relation to Amanda Warren. Appeal AP-17-3245, is an appeal against the aggregate sentence of eight months' imprisonment, followed by a 12 month community corrections order in relation to Charge 1, intentionally cause injury to an emergency worker and two further charges, one of causing criminal damage and one of handling stolen goods.

3The maximum penalty for the offence is ten years' imprisonment and the charge of handling stolen goods, carries a maximum term of 15 years maximum. The sentence in relation to Charge 1 was imposed in accordance with s.10AA(4)of the Sentencing Act, given that no special circumstances apply.

4I now turn to the specific circumstances of each of the accused. Submissions were made on behalf of each of the appellants in relation to the application of that s.10AA(4) of the Sentencing Act and the fact that it carries the minimum term of six months, unless special reasons exist. In relation to Amanda Warren, she is in a different position from Ms Underwood, given her age. She is now aged 33. I note she has no prior offending. She does have two subsequent matters, an attempted shop steal and counterfeit money which were dealt with by way of a bond without conviction.

5I have been provided with a plethora of material relating to the difficulties she has faced in her life, which may, in some way explain, or provide some reasons for her appeal against the sentence of imprisonment she received in the Magistrates' Court.  In brief, she was brought up in a dysfunctional family, which included abuse and violence.  She was a ward of the State from the age of 14 and was, during the time that she was living in the care of the Department, subjected to further significant abuse.

6In 2004, Ms Warren was moved from State care to a psychiatric residence, where she met her current partner, who has been diagnosed with schizophrenia.  Two years later, having left the psychiatric residence, she underwent a period of difficulty in finding housing between 2007 and 2015 and she had five children, one of whom was stillborn.  By 2016, the Department of Health and Human Services was involved and Ms Warren was found to have significant cannabis and alcohol use problems and had not been taking the medication that she was prescribed in relation to her mental state.

7On 31 March 2016, this offending occurred and I note that Ms Warren attended the police station the next day on 1 April.  Bail was refused and on 4 April 2016, her four children were removed from the family on the basis of an interim accommodation order, not allowing Ms Warren any access, but with some contact allowed.

8She was released on bail on 14 April while on the Court Integrated Services Program (CISP), during which she had extensive drug and alcohol treatment, psychiatric counselling, grief counselling and other courses, including anger management.  Following her CISP involvement, she continued treatment and was recommended supports.

9On 17 June of 2016, a plea offer was made in relation to this matter.  On
27 June, Ms Warren became involved with Family First.  Her children were eventually returned to her custody on 1 August they were sent back to the family with conditions, and then followed a period of plea negotiations and offers, culminating in a written plea offer made on the third committal mention, which referred to the charges which are now on the plea indictment.  The Crown considered that offer for some eight months before rejecting it.

10This matter resolved eventually on the day of the committal.  Summary jurisdiction was granted and the matter was adjourned to a plea in the Magistrates' Court.  The hearing in the Magistrates' Court appears to have been heard over three separate days on 11 December 2017 and afterwards. 
Ms Warren referred herself to North Eastern Recovery, she was then under the Family Drug Treatment Court Program and she has continued the urine screens twice a week and attending progress hearings in court.

11On 18 May 2018, Ms Warren, I understand, will commence a day rehabilitation program through the Banyule Community Health Organisation and she is heavily supervised.  The children were returned to their mother under a family preservation order and she has been subject to the conditions of that order, including she must not drink alcohol, or use drugs.

12It is clear that Ms Warren has made an enormous effort to control her mental disorder and to be a good parent to her children. 

13She has taken very big steps to rehabilitate herself, despite the terrible start she has had in life, and as now with some difficulty has her drinking and drug use under control, and she has the children with her, heavily supervised under court orders.

14I take all those matters into account in deciding what should be the result in the sentence in this appeal. 

15In relation to Caris Underwood, her conviction related to one charge of intentionally cause injury.  Her history is also problematic. 

16Her parents separated when she was two years old when her mother returned to England, and Caris Underwood remained with her father.  At the age of 11 she was referred to the Gatehouse Centre, Royal Children's Hospital, following disclosure of abuse.

17Soon after that, she was placed in residential protective care at the age of 13 after disclosing further abuse by her father.  She gave birth to her first child at the age of 15 in 2012, and eventually moved from protective care under the Department of Health and Human Services into transitional housing in 2015.

18The offences which bring her before the court occurred when she was 18.  Her second child was born in 2017, since this offending, when she was age 19.  Similarly to Ms Warren, this matter resolved prior to committal.  Summary jurisdiction was granted also for her, and the matter was adjourned for hearing.

19A month before that hearing, the father of her first child was killed. A plea was heard in September 2017 and adjourned for sentence.  It was then further adjourned to 11 December, when she was sentenced to two months' imprisonment with the Community Correction Order, and she immediately filed a notice of appeal.

20On the evidence before me, I find that in relation to special reasons pursuant to s.10A, Ms Underwood suffered from a mental illness within the meaning of the Mental Health Act, and based on the evidence I have heard, I find on the balance of probabilities that she has a particular psychosocial immaturity, which has resulted in substantially diminished ability to regulate her behaviour in comparison with the norm for persons of her age.

21It was submitted during the appeal that the court may make finding that a special reason exists if the offender is over the age of 18 but under 21 years at the time of the offending, and proves that mental impairment which I have just referred to, on the balance of probabilities.

22I have little difficulty in finding that in relation to Ms Underwood.  She meets the criteria, given her age, and also the evidence of the witness Lesley Trumble from the Gatehouse Centre, who has treated Ms Underwood for many years.

23I note that both the appellants served 14 days' imprisonment following their arrest, and I note that they have both attended the police station on 1 April, and that a third person, a 15-year-old youth, was also charged. 

24So the four grounds submitted on behalf of Ms Underwood were that she is a young offender with reasonable prospects of rehabilitation, she is particularly impressionable, immature, unlikely to be subjected to undesirable influences in an adult prison, she is a young offender who has the particular psychosocial immaturity that I referred to, and there are substantial compelling circumstances that justify not imposing the mandatory gaol term, and they are the ones that I led out in relation to her life, from her childhood to the present day.

25I note that in her case, special reasons were also found by the magistrate. 

26I also take into account the fact that at the time of committing this offence,
Ms Underwood as on the verge of recovering custody of her first child from the Department, and on being charged with this offending, she lost the opportunity to regain custody of that child.

27On a further note, there has been no further offending since this offence.  She pleaded guilty at the earliest opportunity, although the plea was not accepted at the time, but she did plead guilty to the charges for which she has pleaded guilty at the Magistrates' Court at an earlier date.

28As far as her background goes, I note that her mother was absent for some six years, which had an extremely deleterious effect on her.  As her recovery goes, she has not used ice for over three years, and none of the people working with her have any concerns about her drug or alcohol consumption at this time. 

29I note that she's also undergoing involvement with the Department in relation to domestic violence, and the Department report that as a mother she cannot be faulted.

30As part of the evidence of Ms Trumble, from the Gatehouse Centre who occupied themselves with Ms Underwood for many years, her evidence was that it is common for young people to become stuck in a particular stage of their development, and if that is the case, they appear more like a 15-year-old than a 25-year-old.

She has, in her attempts at rehabilitation become very involved with yoga and gym attendance.  She has completed a Certificate III and is aiming higher, and is seeking to make a career in that industry.   Ms Trumble indicated that this was helping to develop new pathways to compensate for the parts of her brain which were damaged due to the abuse.  People who do suffer, those behaviours do, to a certain extent, resemble stroke victims, and she indicated that the activities that  Ms Underwood has now undertaken have helped create new neural pathways, and that the future looks good for her, being a contributing member of the community.

31Evidence was also given that she does not consume alcohol or drugs at all.  She has revealed remorse and shame for her behaviour, and perhaps for the first time has a positive prosocial environment.

32I therefore find that special reasons exist in relation to each of the accused.  Different reasons, in particular in relation to Ms Warren, her impaired mental functioning, which is causally linked to the commission of the offence, substantially reduces her culpability. 

33Equally, that impaired mental functioning would result in both of these appellants being subject to significantly more of a burden in undergoing a term of imprisonment than would people not suffering from the same burdens.

34Further, the substantial and compelling reasons relate to their family situations and the appalling experiences that they have both had during their childhood and adolescence.

35In summary, in relation to Ms Warren, I take into account the delay, given the incident occurred in March 2016.  Her previous record, her improving prospects of rehabilitation, the return of custody of her children to her following this offending, and her successful completion of programs, family support that she is receiving, and she is under the attention of the Children's Court Drug Program.

36Also, the extremely early offers to plead, and the traumatic experiences of her youth.

37Having concluded on that basis that six months' minimum sentence is not applicable, I now turn to the seriousness of this offending. 

38This offending is serious and prevalent in this community.  It has become such a problem that Parliament has intervened to ensure that severe sentences are handed down in most of these cases.  The effect of the assault has been traumatic for Mr Judd and his victim impact statement reveals that his life has changed completely, as I indicated, following the incidents that bring him before the appellants before the court.

39The appellants were charged with intentionally causing injury.  I note that the injury that he did suffer, appears to be serious, with multiple fractures to his foot and resulting in lengthy hospitalisation.  He also suffered wounds to both arms.  I take all of those matters into account but, as I have indicated, the actual sentencing, what I have to have regard to in sentencing in relation to these two appellants are matters which go beyond the effects on the victims of the assault.

40Having considered all of those matters in relation to sentencing, I am required to balance those matters and balance the seriousness of the offending against the matters put on behalf of the appellants in mitigation.  In sentencing, I am required to take into account specific deterrence and I find that in relation to these two appellants, specific deterrence has probably already been effected, given that they both spent a period of time imprisoned, lost their children and have taken extraordinary efforts to rehabilitate themselves.

41In relation to general deterrence, I find that in the circumstances of these two appellants, in relation to each of them, they are not suitable vehicles for general deterrence.  General deterrence relates to the hope that people in the community are deterred by the sentence which is imposed from committing offences and that is indeed what Parliament has sought to do by imposing higher sentences.  But I find that they are not suitable vehicles for general deterrence.

42I have balanced the effects on the victims against the submissions made in mitigation and I have reached the conclusion that in relation to
Ms Warren, the pre-sentence detention of 14 days, together with a community corrections order of three years is appropriate. 

43In relation to Ms Underwood, I intend to deal with the matter by way of community corrections order alone, although I note that she has spent 14 days in custody, I do not intend to deal with her by actually imposing a term of imprisonment, given her lesser role in the matter and her age and lack of prior convictions.  That is what I intend to do. 

44Now, I have had reference to the previous assessments in relation to the community corrections orders and I will just read that.  Is there anything anyone wanted to say?  Ms Hollingworth?

45MS HOLLINGWORTH:  I think Your Honour mentioned, with the subsequent, in relation to Ms Warren being one.  There was, I believe, a second one, being the counterfeit money, so it is just a minor mistake in what Your Honour's said.

46HER HONOUR:  But they were dealt with - sorry, there were two charges but they were dealt with by way ‑ ‑ ‑

47MS HOLLINGWORTH:  A bond.

48HER HONOUR:  A bond.

49MS HOLLINGWORTH:  Yes, that is correct.

50HER HONOUR:  Yes.  Sorry, I will add that.

51MS HOLLINGWORTH:  Thank you, Your Honour.

52HER HONOUR:  They were dealt with at the same time?

53MS HOLLINGWORTH:  I will double-check, Your Honour.  I believe so.  I think that could have been dealt with on separate occasions, Your Honour.  I have go the old LEAP or criminal history extract that only refers to the attempted theft, which was the good behaviour bond, without conviction.

54HER HONOUR:  Right.

55MS HOLLINGWORTH:  But there was the other matter of the counterfeit money which was at - I believe she handed over a note at a hotel and that was without conviction, bond, as well, from memory.

56HER HONOUR:  Right.

57MS HOLLINGWORTH:  Because there was a new updated criminal history.  But I apologise, I do not have that.

58HER HONOUR:  Right.  Well, I apologies with two - the two matters which have occurred subsequent but I balance those against the efforts that have been made at rehabilitation.

59MS HOLLINGWORTH:  Thank you, Your Honour.

60HER HONOUR:  The orders, I will - so, Ms Warren, can you stand up for me please?  In relation to the charges which bring you before the court, that is one charge of intentionally cause injury and one charge of intentionally damage property and one charge of retention of stolen goods, you are convicted and sentenced to 14 days' imprisonment, which you have, in fact, already served.  You are then to be released on a three year community corrections order, which will involve 100 hours of unpaid community work.  I have kept that to a reasonable minimum. 

61You must be under the supervision of a community corrections order for that period of the order.  You must undergo assessment and treatment, including for drug abuse and dependency as directed and I know that you are already under strict regimes but this will be a backup regime.  You must undergo assessment and treatment, including testing in relation to alcohol abuse or dependency as directed by the regional manager. 

62You must undergo any mental health assessment, that may include psychological and neuropsychological treatment as directed by the regional manager, and you must participate in programs and/or courses that address factors relating directly to the offending, as directed by the regional manager.

63I am also going to have you back before me for judicial monitoring and I am going to ask that you come back on 9 November to this court and I will have a report about what you all are doing on the order.  You will have to attend the Reservoir Community Corrections Services at 909 High Street, Reservoir, within two clear working days after the commencement of this order.  That would be by tomorrow and the next day.  Right, so ‑ ‑ ‑

64COUNSEL:  Can I just raise one matter, Your Honour?

65HER HONOUR:  Yes.

66COUNSEL:  Again, it is not my job to quibble but just in relation to the number of hours, Ms Warren initially had 150 hours.  Did I hear Your Honour only say 100 hours?

67HER HONOUR:  I said 100 hours but it is over three years because I was wondering whether she would be able to do the 150 hours. 

68COUNSEL:  Yes, Your Honour.

69HER HONOUR:  I would have made it more than that but I thought, realistically, that may be ‑ ‑ ‑ 

70COUNSEL:  Yes.  I just wanted to point it out because Ms Underwood had 100 and Ms Warren had 150.

71HER HONOUR:  Yes.

72COUNSEL:  But as long as Your Honour's taken that into account.

73HER HONOUR:  Yes.  No, I am sorry, I thought it was 100 but really - sorry, I am going to correct that, I will make it the 150 hours.

74COUNSEL:  Thank you, Your Honour.

75HER HONOUR:  It is 150 hours.  Done with that and now, in relation - thank you, Ms Warren.  Ms Underwood ‑ ‑ ‑

76COUNSEL:  Sorry, before moving on, Your Honour.

77HER HONOUR:  No, sorry.

78COUNSEL:  Was Your Honour going to order compensation and ‑ ‑ ‑

79HER HONOUR:  Yes, I make the compensation orders, yes.

80COUNSEL:  ‑ ‑ ‑ the forensic sample?

81HER HONOUR:  And the forensic sample.

82COUNSEL:  Thank you.

83HER HONOUR:  Yes, I presume there is nothing going to be said about the forensic sample.

84MS HOLLINGWORTH:  No, Your Honour.

85HER HONOUR:  I do not think I have actually been handed those orders.  I thought they were going to be handed up to me but ‑ ‑ ‑

86COUNSEL:  I will check.  They were to be forwarded to Your Honour's associate and I will make sure that is done.

87HER HONOUR:  They may have been but if you will make sure that is done.

88COUNSEL:  Thank you, Your Honour.

89HER HONOUR:  I will make those orders because of the seriousness of the offending and that is in the interest of justice to do so and I will make those.

90Now, Ms Underwood, your order is going to last for two years and you must perform 50 hours of unpaid community work over that period.  You must be under the supervision or a community corrections order officer for a period of two years and you must undergo the assessment and treatment in relation to drugs, in relation to alcohol use or dependency.  You must undergo any mental health assessment and treatment that may include psychological and neuro-psychological or psychiatric treatment as directed by the - that regional manager.  You must participate in programs and/or courses that address factors relating to the offending as directed the regional manager.  You must attend for review on 8 November 2018 at 10.00 am so I can hear what is happening in relation to this order.

91PROSECUTOR:  Again I do not want to be impertinent but Your Honour, once again, I am not sure if I made it clear at the start that Ms Underwood had 100 hours initially and Your Honour's order's 50.

92HER HONOUR:  Where did I get the 50 hours?

93DEFENCE:  It does not say, Your Honour.  I am not sure why
Mr Prosecutor is cavilling with Your Honour's order which has been appealed successfully ‑ ‑ ‑ 

94HER HONOUR:  Yes.

95DEFENCE:  ‑ ‑ ‑ and whether Your Honour ought to have a forum hearing that.

96HER HONOUR:  I am not sure where the 50 - why it said ‑ ‑ ‑ 

97PROSECUTOR:  Your Honour, I am not cavilling.  I just want to make sure Your Honour is aware of what the initial order was.

98HER HONOUR:  All right.  You are asking whether I have turned my mind to it.  But I have now - the 50 hours that will remain for Ms Underwood but I'll make it 150 in relation to Ms Warren.

99DEFENCE:  As Your Honour pleases and the forensic sample order was not opposed in relation to Ms Underwood.

100HER HONOUR:  Yes thank you and I make it on the basis of the seriousness of the offending.

101DEFENCE:  Yes, Your Honour.

102HER HONOUR:  So I think that completes the matters.  We will just get the orders drawn up.

103PROSECUTOR:  As Your Honour pleases.

104HER HONOUR:  I presume that Mr Judd is aware of any possibilities of looking for compensation.

105PROSECUTOR:  I'll take that - I'm sure he has but - and he's receiving worker's assistance and I'm sure that will be conveyed to him but I will take that up with him, Your Honour. 

106HER HONOUR:  Yes thank you.

107DEFENCE:  Your Honour, I just - we note that you have each of the appellants returning before Your Honour on different dates.

108HER HONOUR:  Yes.

109DEFENCE:  Was that intended?

110HER HONOUR:  Yes.

111DEFENCE:  Yes, thank you.

112HER HONOUR:  Thank you.  So we will just get each of the appellants to sign the orders.  Do you want to go and assist?

113DEFENCE 2:  If I may, Your Honour?

114HER HONOUR:  Yes.  You are both excused from the Bar table.

115DEFENCE:  Your Honour, just one issue.  The corrections centre that is listed on the order was Reservoir ‑ ‑ ‑ 

116HER HONOUR:  Yes.

117DEFENCE:  Ms Underwood is living in St Kilda.  I think Prahran is probably the closest.

118HER HONOUR:  Yes.  So we will change it to Prahran.

119DEFENCE:  So she has signed this if Your Honour wants it ‑ ‑ ‑ 

120HER HONOUR:  I think we should probably redo the order because it - we'll have to redo the order.  I'll sign this one and we'll amend it and then we'll - (indistinct) take them to sign because there is no Office of Corrections at Prahran apparently.  There's not one at St Kilda.  It might be Moorabbin.

121DEFENCE:  Or the city.

122HER HONOUR:  All right, we will just check.  I think there was and it closed recently, Your Honour.

123HER HONOUR:  I think everything is - although the court's still there.  I think the court's still there.

124DEFENCE 2:  Sorry, Your Honour, that was my iPad, I apologise. 

125HER HONOUR:  It's Carlton.

126Mr Judd, I want to say to you that I wish there were more that I could do for you.  I understand that you are suffering and you feel there has been a great injustice done.  I can see that from the look on your face.

127But I have to deal with what I have to deal with and the situation is that there were a lot of things I had to take into account in sentencing people from very difficult backgrounds two years down the track, and in particular these two young women who have made an enormous effort and it's probably no comfort to you but hopefully they will become useful members of the community.

128But I can't - I'm really sorry that I can see that you are very badly affected and I hope that you can get some help to help recover and to be able to go back to work eventually.  Thank you.  I will make the order for compensation in relation to the damage of the ambulance.

129On here I don't have the police station that they need to attend at.  Has either of these orders changed?  Are they just informed of which police station it is because it's not on the order?

130COUNSEL:  I think, Your Honour, that the law has changed so that if there was DNA it was automatic retention of the DNA, but given there's been no sample taken they would need to attend a police station for that to happen.  I think it's within the 28 days.

131HER HONOUR:  What I've got is s.464ZF(2) in line, but there's no address, so we'll have to get the address.

132COUNSEL:  It may be that the Crown can send the draft orders across, but I think it needs to - I could be wrong, but it needs to specify.

133HER HONOUR:  I'll make the order.  I think we'll get you to send the draft order.  We don't have the orders if they were sent.

134COUNSEL:  Ms Warren is Preston Police Station.  So Ms Warren's order is correct.  I'd have to check the order for Ms Underwood.  I dare say that needs to be changed if she's ‑ ‑ ‑

135HER HONOUR:  I can't see where it mentions Preston.

136COUNSEL:  In the paragraph ‑ ‑ ‑

137HER HONOUR:  I've got Ms Underwood's says she's got to attend the Preston police station.

138COUNSEL: That needs to be changed.

139HER HONOUR:  So they're both wrong?

140COUNSEL:  Ms Warren's is right.

141HER HONOUR:  Ms Warren doesn't have any police station.

142COUNSEL:  The one I have, Your Honour, has got Preston, but I will resubmit Ms Underwood's.

143HER HONOUR:  If you would.

144COUNSEL:  To St Kilda police station.

145HER HONOUR:  We'll make it St Kilda.

146COUNSEL:  In the paragraph above "reasons", Your Honour, Preston is inserted there, that's correct.

147HER HONOUR:  Yes, I've got that now.

148COUNSEL:  Thanks.

149HER HONOUR:  The reasons are the seriousness of the circumstances of the offending warrant the order, the order is not opposed and the granting of the order is in the public interest.

150COUNSEL:  Thank you, Your Honour.

151HER HONOUR:  You're going to resubmit the one?

152COUNSEL:  I'll resubmit Ms Underwood's for Your Honour's signature.

153HER HONOUR:  I'm going to order, Ms Warren, that you undergo a forensic procedure.  It will be a taking of a swab from your mouth and I know that you've consented but I am obliged to tell you that if when you are asked for that sample you do not consent a police officer is entitled to use reasonable force to make sure that it is taken.

154The same warning goes for you, Ms Underwood.  I do not actually have your order but I am doing it because of the seriousness of the circumstances, it is not opposed and the granting of the order is in the public interest, but I do not actually have your order here at the moment.

155You will have to attend, as I understand it, St Kilda police station.  I have now signed the two corrections orders.  Yes, Ms Warren, your order is to attend Reservoir Community Corrections Services within two working days.  Thank you.

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