Director of Public Prosecutions v Wilson

IN THE COUNTY COURT OF VICTORIA

AT SHEPPARTON (SITTING AT Melbourne)

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

General List

Case No. CR-21-01428
CR-21-01430
CR-21-01431

DIRECTOR OF PUBLIC PROSECUTIONS

SCOTT WILSON
ERIN KILNER
GAIL ARTHUR

---

JUDGE:	HIS HONOUR JUDGE DEMPSEY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 and 19 May 2022
DATE OF SENTENCE:	19 May 2022
CASE MAY BE CITED AS:	DPP v Wilson & Ors
MEDIUM NEUTRAL CITATION:	[2022] VCC 713

REASONS FOR SENTENCE

---

Subject:CRIMINAL LAW – Sentence.
Catchwords:              False imprisonment, causing injury recklessly, threats to kill, trafficking – three offenders, prolonged imprisonment of victim and accompanying assault of victim to recover goods taken by victim, plea of guilty during pandemic, parity, totality, all offenders with behavioural and drug issues capable of being treated under the auspices of a CCO (by way of combination sentence).
Legislation Cited:      Sentencing Act 1991 (Vic).
Cases Cited:R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; Re Diab [2020] VSC 196; DPP (Cth) v Stanley (a Pseudonym) 2020 VCC 898; DPP v Sulieman [2020] VCC 454; DPP v Teplin [2020] VCC 846; DPP v Hoblos [2020] VCC 720; DPP v Vu [2020] VCC 775; DPP v Zampatti [2020] VCC 628; DPP v Bietman [2020] VCC 894; DPP v Danci [2020] VCC 575; DPP v Noble [2020] VCC 600; DPP v Lang [2020] VCC 759; DPP v Osman [2020] VCC 638; DPP v McInnes(a Pseudonym) [2020] VSC 799; Worboyes V The Queen [2021] VSCA 169; Boulton v The Queen (2014) 46 VR 308.
Sentence:                  Wilson – 14 months imprisonment (reckoned as served) followed by 18‑month CCO with conditions (s.6AAA: 3 years 9 months with non‑parole period of 2 years and 6 months).
Kilner – 28 days (reckoned as served) and 2-year CCO with conditions (s.6AAA: 1 year and 8 months with non-parole period of 10 months) plus aggregate concurrent sentence for summary offences.
Arthur – 20 days (reckoned as served) and 2-year CCO with conditions (s.6AAA: 2 years and 2 months with non-parole period of 18 months).

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Teo	Office of Public Prosecutions
For the Accused Wilson	Ms K Temperley	Cahills
For the Accused Kilner	Mr D Langton	Peter Baker & Associates
For the Accused Arthur	Mr D De Witt	Cahills

HIS HONOUR:

Introduction
1Scott Wilson pleaded guilty to:
Charge 1 – Causing injury recklessly (maximum penalty of five years).
Charge 3 – False imprisonment (maximum penalty of 10 years).
Charge 4 – Make threat to kill (maximum penalty 10 years).
2The entirety of this offending occurred against Kayla Parker in Bendigo on 25 January 2021 (with your co-offenders Gail Arthur and Erin Kilner where Charges 2 and 3 are in common).
3Gail Arthur has pleaded guilty to:
Charge 2 – Common assault (maximum penalty of five years).
Charge 3 – False imprisonment (maximum penalty of 10 years).
Charge 5 – Traffic drug of dependence between 22 January 2021 and 29 January 2021 at Bendigo (maximum penalty 15 years).
4Erin Kilner has pleaded guilty to:
Charge 2 – Common assault (maximum penalty five years).
Charge 3 – False imprisonment (maximum penalty of 10 years).
RSO[1] 7 – Commit offence on bail (maximum penalty three months or 30 penalty units).
RSO 8 and 9 – Breach intervention order (maximum penalty of two years each).
[1]Related Summary Offence.

The offending
5The offending was set out in the Summary of Prosecution Opening, filed on 16 May 2022 with some amendments,[2] the relevant portions I shall deal with now.
[2]Exhibit A: Amended Summary of Prosecution Opening for Plea dated 16 May 2022.
The Accused
6Scott Wilson (‘Wilson’) was 50 years of age at the time of offending. Gail Arthur (‘Arthur’) was 44. Erin Kilner (‘Kilner’) was 27.
The Complainant
7The complainant is Kayla Parker (‘Parker’). She was 24. The three accused and complainant were all known to each other prior to the allegations. Wilson and Kilner were in a relationship at the time of the offending (a relationship that has since ended) and Wilson had been involved in a previous relationship with Arthur at another point in time. Critically, it seems that Wilson had provided support and assistance to Parker when she most needed it, making the events that I am about to describe the catalyst for the present offending. That offending is as follows.
Offending
8At about 11.16 am on Sunday 24 January 2021, Arthur and Parker arranged to meet at a supermarket to meet socially. Later the same day, they went to Wilson’s room at the Old Crown Hotel in Hargreaves Street, Bendigo.
9At one point, Parker was alone in Wilson's room at the Old Crown Hotel. After Parker had left, Wilson discovered that his watch and other property had been stolen. Some of that property belonged to Arthur.
10At 9.13 pm, Arthur began sending messages to Parker requesting her to contact her. Arthur sent texts to Parker saying, ‘I need to get my stuff’. ‘I want it all back now, Kayla. I've been sticking my neck out for you all day, we all have. Bring it all back now!’
11Parker lied and said she had not taken anything, ‘Bring all what back? Like word I didn't take anything from you. I left everything on the bed with a little note?’ Arthur accused Parker of taking a large amount of property from Wilson’s room. Arthur sent Parker two more messages saying, ‘Answer the phone Kayla’, and, ‘I will find you’.
12Parker again replied that she did not take any of Arthur’s money and asked who else had been in Wilson's room. Arthur responded, ‘Just Scotty! Bring all my shit back now please and I will leave it at that, and Ben’s coin’. Parker continued to deny taking anything and suggested that Fatty (otherwise known as Adam Lloyd (‘Lloyd’)) had gone back to the room and taken Arthur’s money.
13Arthur also sent messages to a contact identified as ‘Rever’ about Parker stealing her property.
14On Monday 25 January 2021 at 7 am, Parker sent a series of messages to Zac Widdicombe (‘Widdicombe’) offering to swap the very watch that she was accused of stealing, for drugs. Widdicombe agreed to see if an associate would take it in exchange for drugs. Parker sent a photo of the watch belonging to Wilson to Widdicombe at 11.16 am.
15At approximately 2.07 pm, Wilson sent a message to Kilner asking for help. At 6.09 pm, Wilson sent a further message to Kilner stating, ‘You say your always their for me stand up and be counted’, then, ‘Need help now’, and, ‘Need your help now or become an enemy’.
16At 6.47 pm, Arthur picked up Wilson from the front of the Old Crown Hotel in her vehicle, a blue Honda Cruze. They then drove to Lansell Plaza shopping centre and collected Kilner. Arthur then drove to Parker’s residence. At the time, Arthur was the only one of the three who knew where Parker lived.
17At 7 pm, Arthur walked a short distance uphill from Parker’s residence. Wilson and Kilner walked off before Arthur and approached the units. Wilson observed Lloyd and punched him in the face. Wilson and Kilner walked up the driveway to another unit and began banging on that door and demanding that Parker come out. Arthur called out to them from the front of Unit 1 and indicated that in fact it was Unit 1 that was Parker’s unit.
18Wilson started banging on Parker’s door, demanding the return of the watch and to be let in. He opened the flyscreen door and started kicking the main door. Wilson was yelling, ‘Come here, bitch, you stole things’, and, ‘Open the fucken door’. Parker was fearful and attempted to hold the door closed. Dwane Harding, an occupant inside the unit, ran out the back door and jumped the back fence while Wilson was attempting to gain entry. Arthur and Kilner were a short distance behind Wilson.
19Wilson then hit Parker, stating, ‘You're coming with us’. Witness Agnes Walsh observed Arthur and Kilner at the door of the house, with Kilner pulling the hair of Parker, causing her to fall to the ground. Witness Jake Graham observed Parker being dragged out, down the stairway by her hair. Kilner hit her multiple times to the head and body and dragged by her hair into Arthur's car. This constitutes: Charge 1: Recklessly Cause Injury (Wilson); and Charge 2: Common Assault (Arthur and Kilner).
20Parker was placed in the nearside front passenger seat – sorry, in the nearside rear passenger seat behind Kilner and behind Wilson, who sat in the front passenger seat. Thus commences: Charge 3: False Imprisonment (Wilson, Arthur and Kilner).
21Arthur returned to her vehicle while Wilson was still yelling at Parker. There was also a dog in the car.
22Parker directed Arthur to a person called ‘Mez’s’[3] house to collect Wilson’s watch. Parker stated she felt like Kilner was hitting her in the car the whole way to the destination. She directed Arthur to Mez’s house on Arthur Street and told Wilson that Widdicombe had the watch.
[3]An associate of Widdicombe.
23At approximately 7.23 pm, the co-accused and Parker arrived and parked in King Street, Bendigo, near the intersection of Arthur Street. That area is covered by CCTV cameras.
24The CCTV depicted not only the attire of each accused, but also Kayla Parker wearing a black dress and visibly injured.
25After parking the car, Wilson told the others to stay where they were as he got out of the car and walked into the backyard of the Arthur Street residence. A short time later, Kilner got out of the car and went to the near passenger side of the car, ensuring Parker did not exit the car. Thus continues: Charge 3: False Imprisonment.
26Wilson went into the house and demanded his watch back from the occupant, Widdicombe.
27At 7.26 pm, Wilson walked back out and returned to the car and yelled, ‘Let’s take this dog now to kill her’, referring to Parker. This constitutes: Charge 4: Make Threat to Kill (Wilson).
28Wilson then yelled, ‘You give my watch away to him, cunt’. Kilner opened the door and said, ‘Did ya? Cockroach!’ as Parker cowered, putting her hands and feet to stop being assaulted further. Wilson yelled, ‘Get in the car, cunt’, to Parker, and Kilner forced the car door shut with her shoulder. Wilson then told Kilner to get in the back.
29Widdicombe ran from the house and got into his vehicle, parked a short distance ahead of Arthur’s. Wilson yelled, ‘Zac, get the fuck out of Bendigo, cunt’, and then got back in Arthur’s car. Kilner got in the back and continued assaulting Parker. Parker screamed and pleaded for the assault to stop.
30Another person came out of the house came out of the house and told the accused to let Parker out. That person then called Parker a ‘fucking dog’, opened the door and started dragging Parker out of the car by her foot. Parker tried to remain in the car to stop being further assaulted. Wilson yelled at Parker to get out of the car. The third person – in this case, the fourth person – then began punching Parker as Wilson and Kilner physically pushed Parker out of the car. This is the conclusion of: Charge 3: False Imprisonment.
31The uncharged individual then repeatedly punched Parker, who fell to the road where she was kicked and punched further. Wilson got out of the car and encouraged this person as Arthur and Kilner waited for him to get back into the car. I do not have regard to these actions, as they are agreed to be beyond the scope of Wilson’s criminality.
32At 7.27 pm, Wilson got back in the vehicle and Arthur drove off as the uncharged person continued to kick and punch Parker, who was on the ground. Arthur drove back to Parker’s unit to collect property that was gathered on her and Wilson's behalf by Lloyd.
33By my reckoning, Parker was falsely imprisoned for about 25 minutes.
34The injuries suffered by the complainant are depicted in photographs found in the Depositions, constituting grazes to her elbow, ankle and knee.[4]
[4]Exhibit B: Photographs extracted from pages 133–135 (inclusive) of the Depositions.
35At 7.32 pm, Lloyd sent a message to Arthur, ‘This what we found so far we still looking’. He then sent a photo of the watch with the caption, ‘Is this the one?’ The photograph of the watch was taken on an armchair inside Parker’s unit. A short while later, Lloyd asked Arthur, ‘Can someone please come and pick up the stuff we've got here of Scott’s please’. Arthur replied, ‘Yeah, she’s been dropped off to other victims, I'll come by soon’.
36The accused then dropped the dog off at the Old Crown Hotel. Arthur then drove back to Parker’s unit and collected the property that Lloyd had placed in an Aldi shopping bag.
37On the same evening, Widdicombe sent messages to Wilson containing screenshots of a conversation between Widdicombe and Parker as part of a conversation claiming he had not known the watch was Wilson’s.
38At 7.39 pm, Arthur was involved in a text conversation with someone recorded in her phone as ‘Rana’, who asked how her day was. Arthur replied, ‘Had my injection today, been sleeping until I went and taught a lesson with someone that stealing isn't nice’. Rana replied, ‘Good on you hope they learnt hahaha’. Arthur responded, ‘Not sure she’ll walk away, or ever again’.
39The three accused and Lloyd then drove back to the Bendigo CBD. Arthur parked outside the Coles supermarket while Kilner went inside and purchased dog food. When Kilner got back in the car, Arthur drove off and parked her vehicle in Bull Street, Bendigo, and all four went to the Old Crown Hotel at about 8.12 pm. Wilson was carrying the bag of items that had been taken from Parker’s unit and was hand in hand with Kilner.
40At 8.51 pm, all four left the hotel. Wilson and Kilner walked back through the Bendigo CBD to Arthur Street while Arthur and Lloyd drove north along Pall Mall.
41On Wednesday 27 January at 6.08 am, Wilson began sending a series of messages to Kilner accusing her of being unfaithful. During that series of text messages, Wilson wrote to Kilner, ‘I won’t be saying anything to protect you from going to gaol when you bashed her obviously so have fun with the gaol time’. Another part of the series read, ‘I will direct cops to you as I'm not wearing all the charges when it was you who bashed her and kidnapped her so enjoy those charges and gaol time’.
Arrest, interview and investigation of Wilson and Arthur
42At 11.15 am, Wilson and Arthur were arrested as they entered the Old Crown Hotel with another male. A search warrant was conducted. Police seized clothes worn by Wilson during the offending, as well as a massage gun, Aldi bag and other items that had been taken from Parker’s residence. The watch that was taken by Parker and subsequently obtained back from Widdicombe was also photographed.
43Wilson and Arthur were transported to the Bendigo police station for interview. Both Wilson and Arthur willingly and cooperatively supplied PIN codes for their phone, which were found to contain evidence of the offending, and they were and subsequently photographed.
44Arthur’s vehicle was found by police parked in Bull Street, Bendigo. This was subsequently examined forensically, and blood was found inside the vehicle in the area occupied by Parker on the lower and upper part of the rear of the front passenger seat. Wilson, Kilner and Arthur were all forensically linked to that vehicle.
45Wilson was interviewed on Wednesday 27 January 2021, the same day as Arthur.
46Arthur’s phone was examined, and police located text and Facebook messages which indicate Arthur was trafficking GHB and attempting to source methylamphetamine—
(a)   There was a message conversation with a contact ‘Rever’ in which Arthur offers 20 millilitres of GHB for sale at $3.50 per millilitre on 22 January 2021. The conversation indicated Arthur was going to deliver them by nine, was late and finished, ‘I’m here’. Arthur again offered GHB to ‘Rever’ on both 25 and 26 January and said that she will only accept cash;
(b)   There was a message agreeing to supply 50 millilitres on 29 January to a contact known only as ‘Kait’;
(c)   There was a message to ‘Rana’ indicating she had GHB for sale on 26 January;
(d)   There was a message to another contact, ‘Shontelle’, that she had GHB available on 24 January. Those messages I have just described form the basis of: Charge 5: Traffic in a Drug of Dependence (Arthur).
47On 31 January 2021, Kilner was sent a message from a contact recorded as ‘Matt Old Crown’, asking, ‘Heard any more about Scotty yet?’ Kilner replied, ‘Not yet I haven’t found out what’s wrong though I am pretty sure. I’m doing my best to make some slut change her mind about things or ill put up a huge asuraty bail but fuck I will do anything to get the stupid fuck out’.
Arrest, interview and investigation of Kilner
48On 7 February 2021, Kilner was in bed and was arrested at an address in Short Street, Kangaroo Flat. She provided her mobile phone to police and also provided the PIN code to unlock it.
49It ought to be noted at the time of the offending, Kilner was on bail. Summary Charge 7: Commit Indictable Offence Whilst on Bail (Kilner).
50A family violence interim intervention order had been made on 15 December 2020 and included Matt Smart as one of the three named protected persons. Senior Constable Walker had served the order upon Kilner on 23 December 2020 and explained her obligations under that order.
51On 3 February 2021, at 7.24 am, Kilner called Matt Smart’s mobile phone, which was not answered. She called a second time at 7.25 am. That call was not answered either. That is: Summary Charge 8: Contravene Family Violence Intervention Order (Kilner).
52Kilner then called her mother and stepfather’s phone and arranged to call back at 4 pm to speak to Declan May, her son, and wish him a happy birthday. She did make that call and wished her son happy birthday. Summary Charge 9: Contravene Family Violence Intervention Order (Kilner).
53I add that the original charges against the accused at the time that they were first charged included home invasion, aggravated burglary, kidnapping, causing injury charges and in the case of Kilner, perjury. I turn now to matters personal to the accused. I begin with Wilson.

Matters personal to the Accused
Wilson
Personal circumstances and background[5]
[5]Exhibit SW-1: Outline of Plea Submissions dated 13 May 2022.
54Wilson is 51 (but was 50 at the time of the offending) and single. He grew up in Eaglehawk before moving to Shepparton to attend Shepparton Technical School at the age of 13.
55He describes his childhood as ‘all right’ but not particularly stable. He went into foster care at the age of seven and lived with the Ridges family on and off until he was 13.
56He moved to Shepparton and lived with an aunt and uncle until he completed school in Year 8.
Family
57His mother is deceased and his father lives in a nursing home in Bendigo. Wilson has had no contact with his father during his time on remand, as he was not permitted to add the nursing home to his call list.
58Wilson has two brothers that he has no contact with and has not had anything to do with them for some time.
59He has three adult sons and has maintained telephone contact with them whilst in custody. He has an eight-year-old daughter, Charlie, with whom he has no contact since being remanded. This was on the basis that the child’s mother thought it was inappropriate. Understandably, this has caused him a great deal of distress.

Employment
60After leaving school, Wilson enlisted in the navy and served five and a half years as a clearance diver. This involved clearing debris and dealing with bombs underwater. Clearance divers use explosives to remove obstructions and clear unexploded bombs. Wilson was discharged from the navy after going through an internal trial process in relation to an assault. He spent a period of approximately 28 days in the Defence Force Correctional Establishment at Holdsworthy and was stripped of his rank.
61In order to remain in the navy, he was required to complete a drug and alcohol course that he instructs he did attend, involving AA meetings several times a day for three months. He was still only 19 years of age at this time, and he struggled particularly with this and was unable to complete the requirement. He then left the navy.
62Wilson then worked in a personal security role with the Australian Protective Services and gradually rose to the position of supervisor. During this time, he moonlighted as working as a bouncer in a nightclub. Both these roles came to an end when Wilson was charged with assaulting an off-duty police officer while working security at a nightclub, and he served a six-month term of imprisonment, I am told, at Pentridge.[6]
[6]Technically, he received a 12-month sentence, but he states that it was set down as ‘six months in and six months out’ in that parole was automatically granted after the six months inside.
63Upon his release, he undertook various labouring roles until he had two fingers severed from his right hand in 2013. This was the result of his getting his hand getting caught between a truck and a forklift.
64Until his remand, he was working as a caretaker of the Old Crown Hotel, which I have referred to earlier, a position that he ultimately (and I add, realistically, it seems) hopes to resume.
Health
65He has struggled, though, with a number of physical and mental health issues over the later period of his life.
Physical health
66He was diagnosed over a decade ago with oesophageal cancer and was required to have surgery at the Peter Mac Cancer Centre. He was in remission for nine years before it re-emerged. He instructs he is back in remission as of the start of this year, having received treatment in custody.
67He instructs that the injury to his hand affected his nerves and in 2018/2019, two of his lower vertebrae collapsed onto his spinal cord. This necessitated back surgery that was largely, but not entirely, successful. He is lucky not to have been rendered a paraplegic but does not experience significant pain. I will add to this that he is currently prescribed morphine tablets that are difficult to obtain on an ongoing basis in custody.
68Given the physical limitations of the setting he is in and his difficulty, he only manages to get about four or five hours' sleep per night while in prison.
69As I have alluded to earlier, prior to being remanded, Wilson had been receiving significant pain medication, but that had been ceased upon his imprisonment.
70He is prescribed particular pain medication to manage his condition but notes that it is not sufficient. He has been assessed and had been assessed by a pain specialist from St Vincent’s hospital and was due to commence morphine patches, which only commenced recently.
71On his ultimate release, he will follow up with further appointments with his general practitioner, and it is entirely likely he will require further surgical intervention.
Mental health
72In terms of mental health, a report of Dr Ball was of real assistance to me.[7] Dr Ball noted that Wilson suffered from both PTSD and ASPD, along with severe stimulant and alcohol use disorders (in early remission in a controlled environment) and he suffers from high anxiety and low mood associated with physical pain, drug use and social isolation. Very sensibly, no reliance was placed on these matters by way of invoking the principles in R v Verdins,[8] but rather this was a constellation of problems in Wilson’s life that were relevant to the type of sentence I must impose and the level of assistance he requires.
[7]Exhibit SW-2: Report of David Ball dated 30 August 2021.
[8](2007) 16 VR 269 (‘Verdins’).
73After being released from Pentridge, he suffered an injury that I referred to earlier, leading to his two fingers being severed. It was then that he started self‑medicating, principally with methamphetamine.
74Prior to being remanded — and I note that that was at a time approximate to this offence — he was using approximately a gram a day. He had tried other substances (primarily cocaine and GHB) but methamphetamine was his primary issue. He has remained clean whilst in custody. He accurately and insightfully describes his life as ‘spiralling totally out of control’ by the time of his remand.
75The MHARS review,[9] conducted as part of his assessment for suitability for a Community Correction Order (‘CCO’) revealed he had never received a mental health review or treatment from an area mental health service (including Forensicare). Noting the comments of Dr Ball, Mr Lane, the author of that report, concluded that Wilson has a mild mental health difficulty that would benefit from ongoing GP review (both in terms of physical and mental health), trauma-informed counselling with a focus on practical skills needed to assist him to manage his mood and his thoughts, to manage thoughts of distress or perceived provocation from others. Needless to say, a GP could advise on the efficacy or otherwise of medication. All of this seems totally necessary and utterly achievable, in my view.
[9]Exhibit SW-7: MHARS Report dated 18 May 2022.
Forensic history
76Wilson admits an unenviable prior criminal history, though, dating back to 1991, involving street-level offences and then offences of violence nearly 30 years ago. That history appears to be one largely informed and motivated by uncontrolled drug use.
77He has prior convictions for armed robbery, for which he received a head sentence and non-parole period in 1994, followed by reasonably persistent appearances in the Magistrates’ Court for driving matters and the like until 2000. Again in 2009, he was dealt with for armed robbery and aggravated burglary, for which he received a substantial term of imprisonment. I will correct that date in a moment. In 2003, he was again sentenced to a head sentence and non-parole period, this time for trafficking and other drug-related offences. In 2009, he was sentenced to a suspended sentence for drug-related offending. He received similar dispositions for similar offending (coupled this time with offences of dishonesty in 2012). Then, for six years between 2015 - then for, sorry, the three years between 2015 and 2018, he was dealt with very few times, twice in very benign ways for breaching family violence orders and once for shoplifting. That is the extent of his criminality for nearly a decade between 2012 to the present offending.
Arthur
78I will turn now to the matters personal to Arthur. Her personal history was set out in the report of Ms Gina Cidoni, psychologist, dated 12 March 2021,[10] as well as written submissions filed on her behalf.[11]
[10]Exhibit GA-2: Report of Gina Cidoni dated 12 March 2021.
[11]Exhibit GA-1: Outline of Plea Submissions and Chronology.
Early childhood
79Arthur was born in Victoria and lived with her parents, Christine and Gary, and two sisters (Julie, now 51, and Rhonda, now aged 50) until her parents separated when she was eight.
80Prior to their separation, she was exposed to significant family violence perpetrated against her mother and older sisters by her father, who himself struggled with alcoholism and drug addiction. Her earliest memories include attending hospitals when her mother had been treated for injuries sustained during ‘arguments’ with her father.
81At eight years of age, she fled the family home with her mother and siblings following the breakdown of her parents’ relationship. Within 12 months of this, her sisters left to live in care or with other family. Arthur and her mother resided in refuges and caravan parks.
82Her mother suffered from bipolar disorder and became addicted to prescription medication. Her mother was extremely unpredictable, sometimes physically assaulting Arthur without warning. During this period, she was largely left to fend for herself in dangerous environments. She was abused by neighbours and her mother’s friends on numerous occasions throughout her childhood.
83At the age of 12, she left her mother’s home, residing with her father for eight months before leaving due to his new partner’s treatment of her. Between the ages of 12 and 15, she lived between different households and couch surfed.
84During this period, she was introduced to alcohol and drug use and quickly commenced consuming substances to manage what is now well recognised as being trauma and mental health conditions.
85At age 15, she commenced significant use of amphetamines. In the same year, she was placed in a shared apartment by a government-run youth program. She enjoyed no support from her family, with whom she had cut ties during this period. It is worth noting that I am invited to find that this is a childhood and adolescence of such deprivation and dysfunction that the principles articulated in Bugmy v The Queen[12] should apply. The Crown, with typical fairness, did not cavil with this characterisation of your background. It is sufficient to note right now that I agree.
[12](2013) 249 CLR 571 (‘Bugmy’).
Education
86Consistent with that rather bleak upbringing I have just described, her education was disrupted due to constant changing living arrangements. She attended something along the lines of 16 different schools during her primary school years. She attended multiple high schools, eventually leaving partway through Year 11.
87She supported herself with government benefits. Despite being homeless and then in a residential unit, she attempted to complete her education but ultimately was unable to meet the costs of even textbooks and uniforms.
Employment
88After leaving school, she secured a broad range of employment in retail, hospitality and security work. Her lengthiest period of employment was with the Just Group where she worked and managed various retail stores in Werribee, Highpoint and Essendon over a period of six years. During this time, she was responsible for training managers at other stores.
89After leaving this role, she went on to work as a retail manager at an optometrist and at Tradelink. She left this role to relocate to Bendigo with her daughters. In recent years, she has struggled to secure work as a result of police checks, and her employment history has been further disrupted by her struggle with drug dependency.
Adulthood and family
90She commenced a relationship with Nathan at the age of 17 years and fell pregnant with her first child, Cheyenne (now aged 26), two years later. After having Cheyenne, she returned to live with her sister, Julie, for support, and continued to live there for several years.
91At 26, she had a second daughter, Kayla (now aged 19), with Joe. She separated from Joe after 11 years. Following that separation, she relocated to Hoppers Crossing with her daughters.
92At 34, she met Trevor at a party and commenced a relationship with him, marrying in 2012. During that relationship (which ended in 2019) she had four sons:
(a)   Seth Arthur (born in 2010);
(b)   Harley Arthur (born in 2012);
(c)   TJ, who died in utero in tragic circumstances in September 2016;
(d)   Marshall Arthur (born in 2017).
93Throughout the relationship, Trevor himself struggled with long-standing drug dependence issues and was violent. Arthur herself relapsed into drug use during this period and was convicted for drug-related offences.
94In 2013, Trevor was sentenced to a period of two years’ imprisonment for trafficking. Arthur had managed to achieve abstinence during this period when she was the sole carer for her children. Upon Trevor’s release and his inevitable relapse into drug use, she similarly relapsed and recommenced using methamphetamine. That use significantly worsened following the loss of the couple’s unborn child in 2016.
Forensic history
95Arthur’s prior criminal history is limited when viewed against Wilson’s. In 2012, she was sentenced to a term of imprisonment (albeit suspended) for trafficking ecstasy and methamphetamine. Seven years later in 2019, she was placed on a CCO for dishonesty, drug offences and breached of bail. In mid-2020, she was fined for a raft of dishonesty offences, possession of drugs, weapons and driving offences. These offences before me occur approximately six months after that penalty was imposed.
96I have been very properly taken to her subsequent matters (that I have dealt with below) as part of the plea by her counsel. Indeed, much reliance is placed on her current progress on a CCO for those subsequent matters in this hearing.
Mental health
97Arthur was assessed by Gina Cidoni on 12 March 2021. Ms Cidoni provided a report on that date in which she opined:
(a)   Arthur’s verbal comprehension and working memory was within the ‘low average’ range;
(b)   Arthur meets the criteria for PTSD, major depressive disorder and anxiety disorder;
(c)   These conditions manifest in a dependency that has previously rendered Arthur more vulnerable to the influence of others;
(d)   Her mental health symptoms cause her reasoning to be compromised. There is a causal link between the offending and this condition;
(e)   Incarceration would exacerbate her mental illness. She would find prison more onerous or burdensome than a person without her conditions;
(f)    Ms Cidoni recommends long-term psychotherapy to assist Arthur to manage her trauma and reduce her mental health symptoms.
98Counsel for Arthur submits weight should be attributed to each of the limbs of the Verdins principle, considering the contents of the report. The Crown takes issue with the applications of these principles, though, as I said, it totally accepts that Bugmy has real application in this case.
99During the process of having Arthur assessed for a CCO, the MHARS assessor made pertinent, sensible observations and suggestions, with Arthur’s history of trauma, distress, adversity, anxiety, issues with emotional regulation and dependence, poly substance abuse, unresolved grief, it is hardly surprising that conditions designed to assist her underlying long-term issues is recommended. That she is presently on a CCO and very much suitable for another one is very much in her favour.
At time proximate to the offending
100By the time of the present offending, the Department of Human Services had removed Arthur’s sons from her care in 2018 due to concerns about the couple’s capacity to care for their boys.
101The Department placed the boys with Trevor’s sister where they continue to reside.
102In an effort to have her sons returned to her, Arthur separated from Trevor and quit drug use. She engaged with the Department and provided clean urine screens several times a week for an eight-month period up until the December 2020 Children’s Court hearing date.
103Despite the obvious progress that she had made, the court refused to return her children to her care in that hearing. Arthur was advised by the magistrate that a decision had been reached on the premise of increased visit time with her children.
104Shortly after this hearing date, COVID-19 resulted in contact centres being closed, and Arthur’s time with her sons became phone contact only, which were not properly facilitated by Trevor’s sister.
105In this context, Arthur ‘gave up’ and relapsed into drug use. She isolated herself from her daughter (who she was living with at the time) and started associating herself with negative peers.
106These are the rather bleak and self-destructive personal circumstances she found herself in at a time proximate to this offending.
Kilner
107Kilner is now 28 years of age. She is nearly, of course, two decades younger than her co-accused. She was born in Sydney.
108Her father is a welder and a member of the Aboriginal community in Blaxland, New South Wales. Her mother is a theatre nurse. She had to cease this employment in 1997 following a workplace accident that resulted in severe back injuries. Her mother now works at Bunnings.
109Her parents separated not long after she was born. Kilner is the only child of this union.
110Her mother took her to Bendigo in order to be with Kilner’s maternal grandfather, who died in 1991. Her father remained in Sydney. Kilner did not see him until she was 18.
111In the meantime, her mother re-partnered when Kilner was aged between seven and 14.
112Kilner describes him as being physically and emotionally abusive to both her and her mother. Her mother confirms this.
113Kilner left home at only 15 years of age, initially to live with her boyfriend and his family.
114She then lived in no less than 24 foster homes until the age of 18. She describes this life, modestly, as ‘awful’ but at least did not suffer any further abuse.
Education
115Kilner attended various Catholic schools in the Bendigo area and spent Grade 4 in Perth when her mother and stepfather set up a motorcycle business there. She still, herself, has an interest in motorbikes.
116Despite that litany of obvious disadvantages in life, Kilner was the dux of the school in Year 11 and completed VCE at a Catholic college in Bendigo.
Employment
117After school, she then undertook a hairdressing apprenticeship and worked as such for a few years. She then conducted a diploma in community services and volunteered at Lifeline at age 22. She held a genuine desire to be a social worker; however, her criminal record would prohibit her from undertaking many types of that work.
Mental health
118During the course of being assessed by MHARS, the author of the report said this:
Information accessed through CMI (Victorian Public Mental Health database) and Forensicare databases indicate that Ms Kilner has received mental health review and treatment from Bendigo, Barwon and Werribee Mercy area mental health services since March 2010. Ms Kilner has had seven psychiatric inpatient admissions since March 2010 at Bendigo Hospital. Her last admission was between 13/7/2018 and 16/7/2018 at Bendigo Hospital. Ms Kilner was the recipient of involuntary mental health treatment … between May 2010 and January 2011. Ms Kilner has been diagnosed with Acute Stress Reaction (2018); Adjustment Disorder (2016); Emotional unstable personality disorder borderline (2016); Severe And Mild Depressive Episodes (2010, 2016); Post-Traumatic Stress Disorder (2010) and Suicidal Ideation (2010). Ms Kilner has never previously been assessed by Forensicare.[13]
[13]Exhibit EK-3: MHARS Report dated 18 May 2022.
119Though she is not presently medicated, she has been in the past. She presents well at the moment and displayed some insight into the need for her to participate in psychological counselling to assist her to remain stable and to work on unresolved trauma issues. Her problems promoted the assessor to note that she could benefit from learning psychological skills to self-manage her mood, emotions and thoughts. Psychological counselling could assist her to identify her values and to focus on achieving her pro-social life goals, and it was recommended that mental health treatment be included in a CCO, along with encouragement to seek out a mental health plan or psychiatric help if required.

120Much like in the case of Wilson, I have not been asked to make a finding about these various diagnoses in the sense that I am not being asked to make a finding with respect to Verdins. Rather, they inform me of an astonishing raft of potential issues that need addressing if this accused is to have any real hope of reform.
Forensic history
121Kilner admits a prior criminal history in adult courts dating back to 2017 when she was in her early 20s. She has been on a 15-month CCO (after a period of two months on remand) on 8 November 2018 for a multitude of dishonesty offences. She appears to have no prior convictions for offences against the person. There has also been further CCO breaches, including one for a CCO for 12 months, with 150 hours’ unpaid community work.
122Orders have been breached in the past, by March 2019, through non-compliance and further offending (notably, burglary, theft, theft of motor vehicle, drug and driving offences). She was given a further opportunity to complete the CCOs in March 2019, with the orders being confirmed for a further 15 months.
123Again, Kilner breached the orders in August 2020, and again new orders were confirmed.
124It appears that the offending that is before me occurred during the course of a CCO.
125To make matters worse, Kilner failed to appear at the initial directions hearing on 3 November 2021. She was ultimately arrested on 6 December 2021 and later bailed.
Family
126Of note is the fact that Kilner has two sons, aged 10 and seven. Both live with their father. The intervention order he holds against Kilner has recently been eased to allow her further contact with those children.
127She now also has a daughter born in February 2022. She is on good terms with the father, who I note is present with the child today although he lives separately. He moved from Bendigo to Melbourne in recent times.
128Kilner lives alone with her infant child and dog. She has no other family support in Bendigo and, as I said, minimal support.

Offending
Context
Wilson
129Wilson and Parker were known to each other, and she had addressed him as ‘uncle’. He states that he knew her whole family and had effectively known her since birth.
130Given their shared history, he had taken her in when she was homeless, and he was working as the caretaker at the hotel. In her desperation, she is alleged to have stolen his watch (amongst other things) in order to exchange them for drugs.
131That watch was of particular significance, given its sentimental value. Wilson said it had a monetary value of $1,500 but had been given to him by a friend, initially, for safe keeping. That friend had asked Wilson to care for it on his behalf and to ensure that the friend did not sell or exchange that watch for drugs and asked him to keep it if anything happened to him. That friend subsequently died of a drug overdose.
132Wilson felt deeply betrayed by Parker’s actions on two levels: first, the betrayal of their shared history, and secondly, of the fact that he had taken her in and helped her.
133That is not raised in any way to justify Wilson’s action but merely to provide an explanation for this disproportionate and extreme reaction.
Arthur
134Arthur’s involvement in the offending came about in circumstances where her life was that as I just described. She has been all but defeated by the circumstances of her life and had given up in despair.
135More specifically, prior to the offending, it was Arthur who brought the complainant up to Wilson’s hotel room. I add that that is not for any nefarious purpose.
136After Wilson discovered that his things had been stolen, he contacted Arthur and asked her to drive him to the complainant to recover his watch.
137Arthur attempted to recover the stolen items due to her concerns about how Wilson would respond. When asked to transport him to see the complainant, Arthur felt she was unable to refuse without inviting the impression she was involved in the theft.
138She also feared for her safety in the event that she did not assist Wilson, who had, as it is acknowledged, a reputation for violence and who was in a heightened mood.
Kilner
139Kilner was in a relationship with Wilson at the time. She was much younger than him. I note from the tone of Wilson’s messages there was a great deal of pressure brought on his co-offenders by him to join him in locating the victim and the stolen property.
Role – Common offending
Wilson
140In terms of role, Wilson, given the motivation articulated earlier, then inveigled Arthur and Kilner to assist in recovering the watch and states that he was simply not able to control his anger. He concedes that Arthur and Kilner were not in much of a position to resist. He was the driving force of the offending. Wilson was compliant with police and ultimately made full admissions in his interview.
141He now ultimately regrets, deeply, those actions. In his own words, he says, ‘I’m getting too old for this’, and that no item with monetary or sentimental value is worth the time that he has spent in custody.
Arthur
142Arthur was not part of any plan prior to the altercation between the co-accused and the complainant to assault her and drag her into the car.
143Her counsel submitted that her role can be clearly distinguished from the others’, given:
(a)   She was not present when the co-accused entered the complainant’s home, assaulted her and dragged her into the car;
(b)   Arthur never participated in any physical assault of the complainant (nor did she encourage others to do so);
(c)   Arthur’s role was confined to driving the co-accused and complainant to various locations. It is acknowledged she pleads guilty to the charges relating to this complainant on a complicity basis.
Kilner
144Kilner had always expressed a preparedness to plead guilty to the charge of common assault. She made a statement to police that corresponds to the indictment and the summary alleged against her. This was in part the violent act of dragging a victim by her hair. The matter resolved following contested committal proceedings and case conferencing.
145In another sense, it is put, much like Arthur, Kilner was playing a secondary role in the offending. I accept that that is so.
Gravity
146Bearing in mind those comments I have just made with respect to role, I make the following comments about the joint offending.
147This offending is best described as meting out summary justice with both menace and violence. The victim had clearly done wrong by Wilson, but that provides no justifiable reason for the retribution that followed.
148Why a 50-year-old former clearance diver would need to recruit two women to recover property is hard to fathom. I infer the recruitment of others was for the purposes of teaching the victim a lesson as much as recovering items of monetary or semimetal value.
149Even though the co-accused may have been to some extent pressured into this exercise at first, it seems apparent to me they were nothing other than willing participants in the assault and the false imprisonment of the victim for nearly half an hour. It was said on Kilner’s behalf that the false imprisonment was relatively brief. I do not accept this. I do accept that the offending is absent what Mr Langton referred to as ‘intensive restraint’.
150No victim impact statement has been provided, though it is safe for me to infer that this would be an inherently terrifying event, to be assaulted, injured, deprived of her liberty for such a period of time and, at the hands of Wilson, threatened to be killed.
151The accused’s conduct (although varying in degrees) is uniformly worthy of condemnation.
Arthur trafficking
152I will turn to Arthur’s trafficking. At the time of the offending, Arthur was selling small amounts of drugs to others at the direction of her own drug supplier. She instructs she was being paid with drugs to support her own habit and made no financial profit herself. I am unable to make a finding one way or another with respect to that matter. Arthur, of course, has prior convictions for trafficking that resulted in the imposition of a term of imprisonment that was suspended in full. I find that there is particular value in my sentence reflecting a measure of specific deterrence.
153I accept, though, that the only evidence of this offending comes from text messages on Arthur’s phone that she so readily and compliantly handed over to police upon their request. She could have exercised her rights or pretended not to know how to access the phone and perhaps prospered. It is a matter that I take into account in her favour.
Kilner breach of IVOs
154As far as Kilner is concerned, family violence orders are made for good reason. They are expected to be honoured, and the community expects there to be consequences upon their breach.
155In the scheme of things, though, and given the demonstrated issues you have had with emotional regulation, and the nature of the breach — seemingly only to wish your son a happy birthday — this conduct falls at the lower end of the scale of seriousness for offences of this kind.
Kilner breach of bail
156The same cannot be said about your breaches of bail. You have a poor history of complying with court orders.
157The charges the subject of the indictment were committed on bail for other offences. The fact that you commit these matters while on bail is a relevant matter, but I will not punish you doubly for it. I will simply take it into account as an aggravating factor on the substantive offences that you were on bail at the time they were committed. I will turn now to matters post-offence.

Post offence
Wilson
Remand
158Wilson remained in custody since his arrest and has now served 477 days. That is nearly 16 months in particularly onerous conditions. I will deal with the punitive effects of being a remandee in a moment.
159Whilst in custody, Wilson has made use of his time to the extent that he has been able to in light of the impacts of COVID-19. He has taken on the role of induction billet and is a peer-to-peer support worker. Programs have largely not been run at Fulham during his time there as a result of COVID-19, and he completed the one program he was able to — that is, the program of Ice and Me.
Plea
160He conducted a contested committal in a way that was necessary to see the matter resolve in the way it did. There is nothing outstanding or pending.
Arthur
Remand
161Arthur was remanded between her arrest date, 26 January 2021, and 17 February 2021 where she was bailed on strict conditions. This was Arthur’s second time in remand (the first being for a brief period in 2009).
162She found the conditions in custody during COVID-19 as being more difficult (particularly the two-week period of isolation in which she was not permitted access the outdoors).
Bail
163After being bailed, Arthur reconnected with her daughter and ceased all ties with previous negative peers. She commenced a relationship with Paul, whom she had known for some years.
164In further tragic circumstances of the kind that appear to have marred her life, Paul unexpectedly died as a result of an overdose. Arthur was asleep in the room when he died.
165Her progress was understandably disrupted. She relapsed and was soon charged and remanded for a further fortnight from 12 July 2021.
166She was bailed at the Bendigo Magistrates’ Court on the CISP program and attended Paul’s funeral shortly after.
167Arthur completed the CISP program on 1 November 2021. She was commended by her case management for the high standard of engagement.
CCO
168She is now on a 12-month CCO for new offending from December 2021. Her progress is nothing but encouraging.
169That progress includes:
(a)   Engaging with Bendigo Community Health for drug and alcohol counselling;
(b)   Attending supervision with Bendigo Community Corrections;
(c)   Engaging with a psychologist from the local community health centre; and
(d)   Attending consistent appointments with her GP to manage her mental health and physical issues.
170I also note that she is to undertake 100 hours’ community work.
171She has a close relationship with the employment agency worker, Simone, who secured her employment at the Eaglehawk Motel as a cleaner in the past six weeks. Simone continues to maintain contact with Arthur and support her.
172She works five to six days a week. She reports feeling no anxiety about going to work and has impressed her employer. Her financial position has significantly improved.
173She is residing in Bendigo down the road from her eldest daughter, who she regularly spends time with. She speaks to her younger daughter (living in Melbourne) daily. She has recently become a grandmother.
174In a meeting held as recently as 13 May 2022, Arthur was advised by the Department that they intend to apply for a permanent care order for her sons. This has been a cause of concern for her, and she has been referred for urgent legal advice about the same.
Plea
175Arthur’s plea immediately following a proposed Crown resolution that most accurately reflected her role in the offending. It is submitted that this plea ought to be found to have been entered at the earliest opportunity. I agree.
176It is put on Arthur’s behalf that the plea reflects her remorse, acceptance of responsibility and willingness to facilitate the course of justice. This might, at first blush, appear at odds with the CCO report where Arthur denies criminality in some sense, but as I discussed with her counsel, this appears to be more a result of a failure to appreciate the notion of complicity rather than a lack of remorse.
Kilner
Remand
177Kilner spent 71 days on remand. This was her third time in custody.
Bail
178She was bailed on conditions and, as I said, her compliance has been, so far, poor.
179I am informed that there are pending matters in the summary stream, including a breach of CCO at the Ballarat Magistrates’ Court on 3 June 2022.
Plea
180As noted above, Kilner had always expressed a preparedness to plead guilty to the common law assault.[14] I agree that her plea should be taken to be an early one.
[14]See also, Kilner’s statement made to Police: Exhibit 24 of Depositions.

Matters of sentencing principle
Matters applicable to all parties
181Turning to matters of sentencing principles, all parties accept in general terms that the principles of parsimony, punishment, general deterrence, denunciation and protection of the community are relevant.
182Each focused on their client’s respective capacity to reform (allied as it is to the notion of specific deterrence and offering a degree of protection to the community).
Burden of remand and imprisonment in pandemic
183Firstly, I will deal with the burden of remand and imprisonment in the pandemic. In the case, Wilson spent nearly 16 months in custody, the bulk of which was during the pandemic.
184Arthur spent 22 days in custody.
185Kilner spent 71 days.
186By March 2020, Corrections took steps to protect the prison system from outbreaks of the disease. Those protective measures negatively impact detainees and increase the burden of imprisonment.
187I will list the many and various ways that the pandemic has affected our correctional system:
(a)   it generally makes time in custody very difficult and/or significantly more difficult for all prisoners;[15]
[15]Re Diab [2020] VSC 196, [38] (‘Diab’); DPP (Cth) v Stanley (a Pseudonym) 2020 VCC 898, [63] (‘Stanley’).
(b)   it creates greater social isolation for prisoners by restricting face-to-face visits;[16]
(c)   it reduces access to education and programs for prisoners;[17]
(d)   there is an increased burden caused by lockdowns;[18]
(e)   infection ‘scares’ occur at various prisons;[19]
(f)    the increased anxiety arising from concern regarding contracting the virus in prison;[20]
(g)   an inability of prisoners to protect themselves from exposure by avoiding areas of concern or even distancing themselves from others;[21]
(h)   the fact that the risk in prison of contracting the virus is higher than in a person’s home;[22]
(i)    the fact a 14-day period of isolation is obligatory for all new prisoners;[23]
(j)    increasing the fear and concern, both for family members and by them;[24] and
(k)   making the plea of a greater utilitarian benefit.[25]
[16]Diab, [38]; Stanley, [63]; DPP v Sulieman [2020] VCC 454, [81]–[88] (‘Sulieman’); DPP v Teplin [2020] VCC 846, [44] (‘Teplin’); DPP v Williams & Anor [2020] VCC 739, [75] (‘Williams’); DPP v Barnfield [2020] VCC 631, [42] (‘Barnfield’); DPP v Hoblos [2020] VCC 720, [121] (‘Hoblos’).
[17]Diab, [38]; Stanley, [63]; Teplin, [44]; DPP v Vu [2020] VCC 775, [27] (‘Vu’); Hoblos, [121].
[18]DPP v Zampatti [2020] VCC 628, [59]–[67] (‘Zampatti’); DPP v Bietman [2020] VCC 894, [63]; Teplin, [44]; Williams, [75].
[19]Stanley, [63]; DPP v Danci [2020] VCC 575, [55].
[20]Zampatti, [59]–[67]; Teplin, [44].
[21]Zampatti, [59]–[67]; DPP v Noble [2020] VCC 600, [50] (‘Noble’); Hoblos, [121].
[22]DPP v Lang [2020] VCC 759, [117]; Noble, [51].
[23]Zampatti, [59]–[67]; Sulieman, [81]–[88].
[24]DPP v Osman [2020] VCC 638, [87]; Sulieman, [81]–[88]; DPP v McInnes (a Pseudonym) [2020] VSC 799, [35]; Vu, [27].
[25]Teplin, [43]; Barnfield, [41].
188Specifically, Wilson was unable to receive visits from his family for most of his time on remand. He was very close to his daughter, and she would have otherwise been able to visit him in custody, face to face. The pandemic operated to make Wilson’s time in custody more burdensome than it otherwise would have been.
189As a simple and direct example of the havoc COVID-19 has played more broadly in the criminal justice system, and in this case particularly, Wilson was recently housed in the MRC for 48 hours until he could be assessed for a CCO. There was an outbreak there only last night. Prior to this, there was an outbreak at the prison where he had spent most of his time, which is now in lockdown.
190I accept that there has not been a more difficult time to be a prisoner or remandee in this State than it has been in the past two years. Wilson experienced 16 months of this. The sentence I impose will reflect the additional burden of imprisonment he has already served.
191I also take into account the relatively brief periods spent in custody by both Arthur and Kilner. I am loath to return either of them now, some 16 months after the offending, to such an environment, particularly in circumstances where one is making demonstrable progress on a CCO and the other is still young and the mother of a three-month-old child.
Plea of guilty
192By way of plea of guilty, each accused was facing more serious charges before a contested committal. The matter resolved after that exercise.
193By resolving, each accused has spared the complainant and other, many witnesses from giving evidence and being cross-examined at a trial.
194By their pleas, they have acknowledged their wrongdoing and demonstrated a willingness to facilitate the course of justice.
195Pleas are of real utilitarian benefit to this court, particularly in the context of the pandemic, as our Court of Appeal said in Worboyes V The Queen:
A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. [The sentencing judge] must ensure that the plea of guilty result in a perceptible amelioration of sentence.[26]

[26][2021] VSCA 169, [39].
196Each plea, in my view, warrants a significant moderation and reduction of the sentence to be imposed. I emphasise ‘significant moderation’.
Parity
197By way of parity, the accused played different roles in this offending, and although it was Wilson that caused injury to the victim, Arthur and Kilner were by their own admission and plea involved in her assault and the unlawful deprivation of her liberty.
198Wilson was of course the older, primary motivator, with a more extensive criminal history.
199Arthur and Kilner have not had that same level of involvement in either this offending or with the justice system generally except for Arthur’s dishonesty and drug offences.
200There is a basis to distinguish the sentences I impose for the reasons I have just articulated. Each accused had a different path through the criminal justice system (largely reflective of their role and prior criminal history, I expect).
201Wilson was remanded in custody for nearly 16 months in extremely punitive conditions while the others were not. The punitive aspects of a sentence have effectively been met in Wilson’s case, though they have not yet been served as far as the others are concerned.
202As far as I am concerned, I can properly balance all sentencing considerations (noting that they will often pull in different directions) by acquiescing to the sentencing submissions so sensibly and forcefully made by counsel on behalf of each accused.
Bugmy – Arthur only
203The application of Bugmy applies to Arthur. I take into account her personal circumstances. You had overcome significant adversity that had shaped your makeup. It is not hard to have sympathy for her plight or admire her resilience. I cannot ignore that her unfortunate history explains some of her later conduct.
204I am minded to take into account your very difficult childhood and the way it shaped you not just out of historical curiosity but because the effects of social disadvantage do not dissipate or diminish over time. They appear to have had profound and lasting effect and consequence on your personality and can explain, but not excuse, your previous offending and this offending. Taking lifelong damage that is the result of childhood exposure to neglect into account when sentencing is in my view the mark of a humane society. It is also relevant when applying the fundamental principles and sentencing purposes.
Wilson
205Wilson argued that time served and a lengthy CCO were appropriate. In support of that submission, the following were relied on:
(a)   such a penalty would be appropriately parsimonious;
(b)   parity would not be infringed;
(c)   the objective of just punishment has already been met but can persist for the duration of the order;
(d)   the court can denounce this conduct and protect the community best by imposing conditions that promote Wilson’s reform;
(e)   while accepting that general and specific deterrence have a role to play in this offending, such considerations can be met with a combination sentence;
(f)    Wilson's prospects for reform should be viewed as at least reasonable.
Arthur
206In terms of Arthur, it was submitted that a CCO would most properly achieve the balance of punitive and rehabilitative sentencing objectives in this matter.
207In light of the above matters (including her plea), it was submitted that Arthur should be sentenced to a strict CCO (which would operate alongside the existing one).
208A CCO, it was said, with tailored conditions is capable of meeting all competing sentencing purposes, particularly:
(a)   a CCO is intrinsically punitive and can achieve sentencing objectives of general and specific deterrence;
(b)   further punishment can be imposed by the imposition of unpaid community work;
(c)   the conditions of a CCO could be tailored to promote Arthur’s continued rehabilitation in addressing her mental health and drug misuse as well as imposing structured support through Corrections supervision;
(d)   judicial monitoring can be imposed to add additional elements of supervision and accountability.
209It was submitted that a CCO represents an alternative to imprisonment that would allow Arthur the opportunity to maintain her current progress in reform.
210Conversely, it was rightly said, a term of imprisonment would only serve to disrupt her momentum by:
(a)   resulting in the loss of her job;
(b)   further destabilising her mental health;
(c)   separating her from her family and adversely impacting her prospects of recovering her sons; and
(d)   removing her from established therapeutic supports (and almost inevitably triggering the contravention of an existing on which she is doing so well).
211While Arthur’s period of pre-sentence detention should be considered as a meaningful vehicle in terms of achieving punitive sentencing objectives, the court was not invited to formally reckon this as part of a combination sentence but rather to be taken into account when determining the appropriate penalty.
212Proceeding in this manner, I was told, would assist Arthur to achieve rehabilitation by preserving her history from the imposition of any recent terms of imprisonment.
213I had her assessed for a CCO, and the assessment was nothing other than positive. Arthur was insightful in terms of needing to build on the foundations laid by the existing progress she has made on the order. It made the conclusion I am about to come to irresistible.
Kilner
214For Kilner, given the maximum penalties available for the offences and the level of seriousness of these examples — the way in which this offence can be committed, it is submitted that any period of pre-sentence detention was ample by way of punishment for this offending. Any further punitive response that is necessary, I was told, can be adequately met with a CCO.
215Although Kilner’s performance under a number of orders to date has been less than satisfactory, her current circumstances, particularly with the birth of her child, have provided perhaps a renewed focus and impetus to comply with same.
216In the CCO assessment process, the assessor appears to misconstrue Kilner’s account as victim-blaming.[27] It is not clear to me if the assessor had a copy of the MHARS report either. Kilner is charged largely as an accessory and did make admissions to assaulting the victim to police even if she says to the assessor she witnessed assaults but that alone. She goes on to say that she had an understandable conflict about the situations she was in. On the one hand, she felt horror at her own offending, and on the other hand, understandable anger at the victim for stealing from friends and breaching trust. I do not consider this to be victim-blaming at all, and it is certainly no basis to conclude that she is unsuitable or unworthy for a CCO.
[27]Exhibit EK-2: CCO Pre-Sentence Assessment Report dated 18 May 2022.
217The same can be said about her previous history of homelessness that she gives as a partial reason for her previous lack of compliance.[28] I accept that inability of Kilner to remain focused or motivated to complete orders is one factor, but one only needs to look at her history and the MHARS report to better understand that issue. I am concerned that she is not apparently being treated or medicated despite her own acknowledgement or understanding that she suffers from a potential range of behavioural disturbances or illness.
[28]This is in fact fortified by the remand summary that was tendered on day two of the plea where it was noted she had seven addresses in 12 months, suggesting itinerancy and later, no fixed place of abode: Exhibit C: Remand Brief with Updated Criminal Record (Kilner).
218Despite her apparent unsuitability for such an order, she will receive one. She is worth persisting with. She has an infant child, who, it is hoped, provides impetus for her to reform. She has stable accommodation in a way that she did not on previous orders.
219There is also a raft of conditions available at my disposal that I can impose that would strike the necessary balance between the competing sentencing considerations.
The Crown
220Finally, Mr Teo with conspicuous and typical fairness, conceded to me that a combination sentence was open. I consider this to be a fair and proper sentence.

Wilson sentence
221Mr Wilson, can you stand up, please.
222I am of the view in your case, because of the mitigating factors, I am justified in imposing a combination sentence involving time already served and a CCO to commence immediately. The quality and cumulative effects of the matters relied on in the plea fortify my conclusion that such a penalty is both open and appropriate. A CCO, whether standalone or in combination with a term of imprisonment can in certain circumstances be an appropriate sentence to impose even for serious offending. And make no mistake: this is serious offending.
223In my view, having regard to the principles established in Boulton v The Queen,[29] this is such a case, provided the right scaffolding can be placed around you to continue to help you and guide your reform. I had you assessed for a CCO. You were assessed as someone who, notwithstanding as being a high risk of reoffending, was highly motivated to improve their life and very much amendable to supervision and treatment. It is worth emphasising as part of the CCO assessment program, you were assessed as being a candidate for offender-specific programs. I urge you to avail yourself of the opportunity for specific programs that might help you in the future.
[29](2014) 46 VR 308.
224Balancing and weighing all sentencing considerations, I have arrived at the following conclusion. On all charges, you are convicted and sentenced to a combination sentence. The custodial part of that sentence is 14 months. I declare 477 days in custody as satisfying that component of the sentence.
225Upon your release, which should be immediately, you will be placed on an 18‑month CCO with conditions. Every order of that kind includes core conditions, and they are these:
(a)   you must not commit another offence punishable by imprisonment during the currency of the order;
(b)   you must comply with any obligation or requirement prescribed by the Regulations;
(c)   you must report or receive visits from the Secretary during the period of the order;
(d)   you must report to Bendigo Community Correctional Services within two working days of the commencement of the order;
(e)    you must notify the Secretary of any change of address or employment within two working days after that change;
(f)    you must not leave the State of Victoria except with the permission of the Secretary;
(g)   and you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
226Those are the core conditions. These are the special conditions:
(a)   that you complete 140 hours of unpaid community work over the duration of the order;
(b)   you are subject to the supervision of the office of Corrections;
(c)   you engage in offender-specific programs;
(d)   you receive assessment and treatment for drug abuse as directed;
(e)   you receive mental health treatment;
(f)    I am prepared to incentivise your engagement in community programs by deducting 30 hours of treatment from the community work component. Put another way, Mr Wilson, if you do 30 hours of treatment, that comes off the 140 hours of unpaid community;
(g)   Finally, you will be subject to judicial monitoring, the first being three months from now.
227I can only impose such an order, Mr Wilson, if you consent to such an order.
228You will need to understand: if you were to breach this order in any way by committing an offence or not complying with the core conditions or the special conditions, that is an offence. The offence of breaching a CCO carries a maximum penalty of three months’ imprisonment. So if you breach the order, you would come back to court and be sentenced for the breach offence as well as being sentenced for these offences at a later date. If I were you, Mr Wilson, I would do everything in your power not to be back before me on a breach.
229To repeat, pursuant to s.18 of the Sentencing Act 1991 (Vic), I declare that you have served 477 days pre-sentence detention, not including today’s date, in satisfaction of a custodial portion of the combined sentence that I have imposed.
230To give you some sense of what your plea is worth, Mr Wilson, had you not pleaded guilty under s.6AAA of the Sentencing Act, I am obliged to tell you what I would have sentenced you to. But for your plea of guilty to the charges on this indictment, I would have sentenced you to a total effective sentence of three years and nine months with a minimum term of two years and six months. Take a seat.

Arthur sentence
231Ms Arthur, can you please stand.
232A CCO assessment commissioned on your behalf confirms that you are familiar with your obligations on a CCO and are making genuine progress, and I will not interrupt that now.
233I have decided to convict you on each charge and I will sentence you to a combination sentence involving both the term of imprisonment that has already been served and a CCO. This is a reflection that, in my view, the gravity of this offending required some portion of your sentence to be served in custody. You will be convicted and sentenced to a period of 20 days in prison, followed by a two‑year CCO. That 22 days has already been served as satisfaction of the custodial portion of this combination sentence.
234The core conditions I will need to repeat, even though you just heard them from Mr Wilson—
(a)   You cannot commit another offence punishable by imprisonment during the period of the order.
(b)   You must comply with any obligation or requirement prescribed by the regulations.
(c)   You must report to or receive visits from the Secretary during the period of the order.
(d)   You must report to Bendigo Community Correctional Services within two working days of the commencement of the order.
(e)   You must notify the Secretary of any change of address or employment within two working days after that change.
(f)    You must not leave the State of Victoria except with the permission of the Secretary.
(g)   And finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
235Those are the core conditions. The special conditions as far as you are concerned are as follows:
(a)   you are the subject of supervision by the office of Corrections;
(b)   you are to complete 80 hours of unpaid community work over the duration of the order.
(c)   In order to incentivise you, I am prepared to deduct 20 hours of treatment that you engage in as coming off the community work component.
(d)   You will be directed to receive treatment for drug and alcohol addiction as directed, mental health treatment as directed;
(e)   Undergo programmes to reduce risk of re-offending; and
(f)    You too will be the subject of judicial monitoring, the first appointment of which will be about three months from now on 22 August 2022.
236I can only make such an order if you consent to it being made, Ms Arthur. Do you consent?
237OFFENDER ARTHUR: Yes.
238HIS HONOUR: Again, you need to understand that should you breach this order, that in itself is an offence, and it triggers a resentencing process where you will be brought back, and this process will start again but without the benefit that you have right now. I know you understand that.
239Pursuant to s.6AAA of the Sentencing Act, I give the following indication. Had you not pleaded guilty to this indictment, I would have sentenced you to a period of two years and two months' imprisonment and set a non-parole period of 18 months. Take a seat.

Kilner sentence
240Finally, Ms Kilner, you do not have any idea how close you were to not going home today, but having carefully considered balance and weighing all the relevant sentencing considerations as best I can, I have decided to convict you on each charge and sentence you too to a combination term of imprisonment and a CCO.
241The custodial part of your combined sentence is a period of 28 days. You have served a period of 71 days already. Providing you consent, I will sentence you to a further two-year CCO.
242The core conditions are as follows:
(a)   you are not to commit any other offence punishable by imprisonment during the next two years;
(b)   you must comply with any obligation or requirement prescribed by the regulations;
(c)   you must report to or receive visits from the Secretary during the period of the order;
(d)   you must report to Bendigo Community Correctional Services within two working days of the commencement of the order;
(e)    you must notify the Secretary of any change of address or employment within two working days after that change;
(f)    you must not leave the State of Victoria except with the permission of the Secretary;
(g)   and you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
243There are additional conditions in your case.
(a)   You are the subject of supervision by the office of Corrections.
(b)   You too are to engage in 80 hours of unpaid community work over the duration of the order.
(c)   You are to engage in programs designed to reduce the risk of reoffending.

(d)   You are to engage in treatment and rehabilitation for drug and alcohol use.
(e)   You are to engage in treatment for mental health.
(f)    And if I have not indicated so far, I will deduct 20 hours of treatment time off your unpaid community work condition.
(g)   Be subject to judicial monitoring — the first of which is on 23 August 2022.
244It is necessary for me, even though you have heard it twice, to tell you directly that you might have had a bit of a charmed life so far on breaches of orders. I would not gamble on breaching this one. If you breach this order, you will be brought back before me. Breaching the order is an offence, and this whole process begins again, and you will be resentenced, and you might not like the sentence that is imposed. And you have, in my view, too much going for you to want that.
245OFFENDER KILNER: Yes, Your Honour.
246HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty to the charges on the indictment, you would have been sentenced to a total effective sentence of one year and eight months, and I would have set a minimum term of 10 months.
247I ought to add for the record, had the assaults and the injuries on this victim been more severe, or the false imprisonment been longer, or it involved greater restraint on the victim, or it involved in any way a contested plea, that would have been reflected in a far more punitive penalty for all involved.
248I make the orders sought by the Crown by consent.
249I would be surprised if I have not covered everything.
250MR TEO: Your Honour, I do not want to complicate matters, but - - -
251HIS HONOUR: And yet you will.
252MR TEO: And yet I will. Ms Kilner is before the court on unrelated summary charges. In terms of aggregate sentences, is that - - -
253HIS HONOUR: That is part of the aggregate sentence - - -
254MR TEO: Yes.
255HIS HONOUR: - - - if I have not made that clear. Can they not be?

256MR TEO: Well, an aggregate sentence can only in in relation to offences of the same nature or - - -
257HIS HONOUR: If necessary, then, on the - are you talking about the related or the unrelated summary offences?
258MR TEO: The unrelated summary offences. So an aggregate sentence can only be in relation to offences which are of the same nature or - - -
259HIS HONOUR: Well, that can be easily rectified. Ms Kilner is convicted and sentenced to 14 days’ imprisonment as an aggregate, and it is to run concurrently with the sentence imposed as part of the combination.
260MR TEO: Yes, Your Honour.
261HIS HONOUR: It was not my intention to overlook that. I had quite a bit going on, but I do not think it would change my result. Thanks for complicating things for me, Mr Teo. Thanks for your patience, everyone, and despite my demeanour at times, I was very grateful for everyone's assistance. Do not let me down, you three. Any other matters?
262MR TEO: No.
263MR LANGTON: No, no, Your Honour.
264MR DE WITT: No, Your Honour.
- - -

[2022] VCC 713

19 May 2022