Director of Public Prosecutions v Young

[2019] VCC 137

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00160

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAZMINE YOUNG

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2018, 17, 26 April 2018, 17 October 2018, 8 February 2019
DATE OF SENTENCE:	15 February 2019
CASE MAY BE CITED AS:	DPP v Young
MEDIUM NEUTRAL CITATION:	[2019] VCC 137

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Koori Court – pleaded guilty to aggravated  burglary, armed robbery, false imprisonment, theft –  2 male co-accused – drug taking from early age -  post-traumatic stress disorder -  attended Odyssey House - now pregnant.
Sentence: 14 months imprisonment, 221 days pre-sentence detention -  12 months CCO -  supervision – drug and mental health programs – judicial monitoring

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Dickson	OPP
For the Accused	Mr B. Newton	Matthew White & Associates

HER HONOUR: 

1Jazmine Young, you have pleaded guilty to one charge of aggravated burglary, one charge of armed robbery, one charge of false imprisonment and one charge of theft.  You were 18 years old when on 4 September 2017, you went with two older co-accused to the home of the victim, Peter Bell in Langwarrin and committed these offences.  You had not met your co-offenders before the night in question, having met them that day in the boarding house where you were living.

2The background of the offending is that Mr Bell worked at Bay Sea Farms in Mornington and he regularly drove another worker, Jake Lucas to work.  On Sunday, 3 September 2017, Mr Bell informed Lucas that this arrangement was at an end and that he should henceforth make his own arrangements.  Lucas did not go to work that day - the next day, 4 September and in the evening he rang the Bay Sea Farms production manager expressing his displeasure about Mr Bell not picking him up for work.  He said he was going to go to Mr Bell's premises and beat him up.

3Soon afterwards at about 7 pm, Mr Bell was at home when you, Lucas and Taylor Hazel arrived at his front door.  Lucas banged on the security door and called out, "Open up".  You and Taylor Hazel stood back in the dark.  Both of you were unknown to Mr Bell.  Mr Bell opened the internal sliding door and saw Lucas and then opened the security door.  The three of you entered the house and Lucas grabbed Mr Bell by the shoulders and pushed him onto a couch, berating him for failing to pick him up that morning. 

4Mr Hazel produced a device known as a Taser and pointed it towards Mr Bell's neck saying, "I'm going to give you 10,000 volts and kill you with this Taser".  Hazel said, "Where's your money?" to which Mr Bell replied that he did not have any.  Hazel then punched Mr Bell numerous times to the side of his head, then demanded his wallet, car and keys.  Lucas and Hazel began searching for things in the house while you stayed with Mr Bell and verbally abused him.  Hazel located paperwork for Mr Bell's 1996 Mazda 323 and demanded that
Mr Bell transfer ownership to him.  When Mr Bell refused, Hazel punched him in the head and bit him on the nose and on the ear.

5The two men stole Mr Bell's mobile phone, car keys and a packet of cigarettes.  Hazel passed the Taser to you and told you to keep an eye on Mr Bell while he and Lucas went out to the Mazda.  You said to Mr Bell, "I'm going to tase you", and waved it in front of him and activated it.  You abused him for not taking Lucas to work and said, "We're taking your car".  In this manner you continued what had been started by the men, this being the most serious aspect of your participation.

6The two men returned to the room and you gave the Taser back to Hazel.  Both the men further threatened Mr Bell.  The three of you then left in Mr Bell's car with Hazel driving.  Mr Bell estimated the episode lasted for about 45 minutes.  He suffered a black eye and a cut above it, bite marks on his nose and ear and bruising to his ear.  Shortly afterwards, Hazel drove the car to a BP service station in Hall Road, Skye and while you and Lucas were in the back seat he filled the car with petrol worth $30 and drove away without paying.

7On 10 September 2017, you and Mr Hazel were arrested in Orange in New South Wales for unrelated matters and three days later you were interviewed there in relation to these matters.  You told police that you had been brought along to help and it got too full on.  You said that when you remained inside with Mr Bell, guarding him, you were trying to ensure he did not get hurt again.  You also said you had been under the influence of ice at the time.  Following your release from custody in New South Wales, after having served two months in an adult gaol, you were arrested in Victoria on 29 November 2017, and you remained in custody until 26 April, a total of 149 days.

8You pleaded guilty at the earliest opportunity when the matter resolved on
19 January.  You also applied for bail that day but it was not granted as you had nowhere to live.  You only have one prior court appearance which was in the Children's Court in 2016, and you were placed on a short good behaviour bond.  Accordingly, you have no prior convictions.  Your plea of guilty means you are entitled to a discount on your sentence for having avoided a trial and I also accept it as an indication of remorse.  And I will come back to that later.

9The psychologist, Ms Pamela Matthews assessed you on 2 March 2017, for the purposes of the court and Ms Matthews took a detailed history from you.  You are from an indigenous family and as a 14-month-old baby you were placed in foster care with your older sister, as your parents were unable to care for you.  Your father suffered from schizophrenia and your mother who was very young was a drug addict.  When you were four, you and your sister were separated but were reunited after a court hearing.  From the age of five, unfortunately, you suffered sexual abuse from your foster carers which ceased when you took part in counselling at school.

10In Year 8 you ran away from that home and found your mother using Facebook and she began court proceedings to regain your custody; however, after eight months you ran away to live with your boyfriend.  Your mother now has five young children, your half siblings and you get on well with her partner but as of April last year there had not been regular contact with your mother.  That has now changed and you speak to her regularly.  You have remained in contact with your sister.  Sadly, your father died in 2010 of a drug overdose.

11At school you were an average student but good at sport and it would seem that behavioural problems prevented real progress and resulted in you being expelled in Year 9.  You have been interested in pursuing your education at TAFE but you need to complete Years 10 and 11 and Youth Justice has offered you assistance with this.  You were first given cannabis at the age of seven or eight and used it regularly from the age of about 13, starting with a gram a day, peaking at 3.5 grams a day when you were 16 for a year or two and then reducing until you ceased when incarcerated in October 2017.

12You also used methamphetamine from the age of 16 and drank large quantities of alcohol which did not cease until you were imprisoned.  The current period of abstinence since you were remanded and including your time at Odyssey and afterwards is your longest.  You were assisted with medication during the first period in custody to combat paranoia and anxiety and you believe abstinence made your mind clearer and restored some of your memories.  At that stage you said you were happier than ever before.  Since then, because of the fact that you are now pregnant you have ceased antidepressant medication for the sake of the baby's health and your mental state is being monitored in prison.

13Returning to Ms Matthew's report, you told her that at a very young age, around the time you were first given cannabis, you were diagnosed with bipolar schizophrenia, which Ms Matthews believes may have been a reference to schizoaffective disorder bipolar type.  Ms Matthews doubts that this diagnosis was correct; however, you do meet the criteria for post-traumatic stress disorder as well as various disorders relating to substance abuse.  You told Ms Matthews that you are very remorseful for what you did to Mr Bell.  You are sorry it ever happened and that you regret it every day.  You said you recognised that it must have been very traumatic for him.

14Ms Matthews noted that your removal from your mother's care, the separation from your sister and the years of disruption which followed caused a disconnection from your tribe and culture and you know almost nothing of your own people and culture.  She also noted that the offences of burglary and causing injury are the most common offences for which indigenous women are imprisoned and that indigenous women in custody are more likely to be drug and alcohol-dependent than other woman in custody.  Your circumstances mean that you fit into this profile of disadvantage.  Indeed it is a quite profound disadvantage, resulting in an immature young woman, barely out of adolescence, lacking necessary care and direction in life, making poor choices and judgments.

15In addition to that background of disadvantage, there are several other mitigating factors.  The first is your youth.  You are now 20 and have just emerged from several years of serious drug and alcohol abuse.  You had quite a long relationship with a man six years older than you, also a drug user who was imprisoned for having assaulted you.  You told Ms Matthews that he bashed you black and blue while under the influence of methamphetamine.  You have little education, as I said before, but you are motivated to remedy this and to obtain some vocational qualifications leading to employment.

16In custody you have completed quite a large number of vocational and other courses which is to your credit.  You have pleaded guilty at an early stage, so a trial has been avoided and, as I said a moment ago, you are entitled to a discount for that.  You have no previous history of violence and you are very remorseful, and your prospects for rehabilitation are good.  Importantly you appeared in the Koori Court and took part in a conversation with the Elders which is accepted as a challenging experience for an offender.  It is an indication of your acceptance of responsibility for your actions.

17At your plea hearing, a group of school girls from an Aboriginal school happened to be in court to observe the process.  You probably remember this.  You were made aware of their presence and knew then that you were under the scrutiny of your own people only a little younger than you, as well as the scrutiny of the Elders.  In sentencing you I take into account that you agreed to engage in a process that was far from easy, requiring you to speak publicly about your offending and to be questioned about it.  The gravity of the offending is something I must also take into account.  The invasion of a person's home by three people at night, accompanied not only by threats but by injury as well and the theft of his property is very serious offending.

18Your role was limited but it contributed to the violence and the seriousness overall.  The principle of general deterrence calls for severe punishment and denunciation of such behaviour by the courts.  However, there are several persuasive mitigating factors as I have outlined, and one of them is your readiness and willingness to undertake drug rehabilitation as you have done.  There seems to have been considerable success in this regard in that you have remained drug-free and it appears that you have a much-improved attitude towards the way you should live your life.

19The more recent history of what has occurred is that you were released on bail as part of an order, deferring sentence to attend Odyssey House and you went there on 26 April 2018.  The plea was then adjourned until 17 October.  A letter from a therapist at Odyssey House confirms the date of your arrival and that you successfully moved through the assessment phase into the second stage of the treatment program and you left the program on 8 August 2018.  You have said since then that the experience of Odyssey House changed your life and you have not used drugs since, apart from a few occasions.  Urine screens in custody have been clean. 

20From Odyssey House you went to live with your mother and her family initially.  You have instructed your legal representatives that you telephoned the informant to say you were leaving but as he was not available, you left your phone number and your mother's address to be passed on to him.  It appears that this was not done but in any event you did not appear in court on 17 October and as your whereabouts were unknown to the court, a warrant of apprehension was issued and that resulted in your apprehension on 5 December.

21You were brought before me on 6 December and you were remanded in custody.  A mention was held on 7 December at which you were further remanded and the further plea was adjourned until a later date.  On
5 February 2019, whilst at Dame Phyllis Frost Centre you were assessed as to your suitability for detention in a Youth Justice centre.  A report of that date was provided by Mr Steven Reardon, whose discussion with you produced information as to your progress in recent months.

22You told him that you had to leave Odyssey House after four months before completing the program because you had a relationship with another client which is against the rules.  You are now five months pregnant with the baby due on 5 June.  Since your return to Dame Phyllis Frost Centre, you have been working, doing light duties and attending parenting classes and learning about the birthing process at the mother and baby unit.  The possibility of the baby remaining with you in prison if you are there at the time of the birth is being determined by the authorities.  Your plan for your eventual release is to live with your partner at a property owned by your uncle where you and your partner were living immediately before your arrest in December as I understand it.

23You already have an allocated worker through the re-start program who will be able to assist you with finding more permanent accommodation.  You have remained in contact with your mother and you hope that this contact will become more regular once you are released.  You told Mr Reardon that if you are to remain in custody you would prefer to be at the Dame Phyllis Frost Centre when the baby is born because of the support that would be available there, as opposed to youth detention where you would be housed with adolescent girls and without such support.

24Mr Reardon noted the maturity evident from that reasoning, although he considered that you are immature for your years in other respects, which goes some way to explaining your offending.  Although you are considered suitable for youth detention, it does not seem to be an option that would be in your best interests.  It is now almost a year and a half since the offending.  The case progressed quite quickly up to the plea hearing on 5 March last year and since then the delay has been connected to your placement at Odyssey House, both awaiting reception there, the four months you spent there and the time since you left.  If you had not absconded, the plea could have been resumed in October and you would have been sentenced then or soon afterwards.

25The sentencing submission from Mr Newton, your counsel, is that given the compelling mitigating circumstances in your case, you be released on a Community Correction Order, for which you have already been assessed as suitable, with no need for any further time to be served.  Mr Newton referred to the two months spent in prison in New South Wales in 2017 and the four months at Odyssey House last year as time which should be taken into account in a general way but not as to pre-sentence detention, which stands at 221 days.

26The prosecution's submission is that the gravity of the offending warrants further time in custody but that this could be combined with a Community Correction Order.  My conclusion after carefully considering all these matters is that an appropriate sentence warrants further time in custody.  It should be noted that the maximum penalties for these offences are all very high; 25 years' imprisonment for aggravated burglary and armed robbery and ten years for false imprisonment and theft.

27Your youth and other circumstances mean a quite different sentence is necessary.  Mr Newton submitted that the Verdins principle should apply in respect of your likely experience of prison in that it would be more difficult for you serving a sentence than for others.  That is because of your youth in an adult prison, the fact that you have few, if any visitors, that you are dealing with the cessation of drug use and you are pregnant.  However, given the level of support you are receiving, which is apparent from Mr Reardon's report, I am not persuaded that the Verdins principle applies.

28Will you stand now please, Ms Young.

I sentence you to 12 months' imprisonment for each of Charges 1 and 2, three months for Charge 3 and two months for Charge 4. 

The sentence for Charge 1 is the base sentence and two months of the sentence for Charge 2 will be served in cumulation upon it.  The other sentences are to be served concurrently.  That results in a total effective sentence of 14 months. 

You have already served 221 days, which is about seven months so you will have to serve a further seven months approximately.

29As soon as you are released you will begin to serve a Community Correction Order which will last for 12 months from then.  You will be under supervision and must take part in treatment for drug abuse and mental health issues and in programs to reduce offending.  You must also attend judicial monitoring which will require you to come to court to see me and discuss your progress from time to time.  Upon your release you will have two days to report to the corrections office in Dandenong, which is at 46 to 50 Walker Street. 

30The first date for the judicial monitoring here at court will be Tuesday,
12 November at 2 pm.  So, on that date, Ms Young, you will come here.  There will not be any lawyers here, just you and your case manager and you can come with anyone such as a friend or family member if you wish.   I will have a report about your progress by then and I will discuss that report with you.  So, it will just be a very informal hearing, usually lasts about ten minutes or so.

31Section 6AAA declaration:  If you had pleaded not guilty to these charges, I would have sentenced you to 18 months' imprisonment. 

32The 221 days of pre-sentence detention is to be reckoned as already served.  I will note that on the court record. 

33Are there any other ancillary matters, Ms Dickson?

34MS DICKSON:  No, Your Honour.

35HER HONOUR:  All right, thank you.  Anything else, Mr Newton?

36MR NEWTON:  No, Your Honour.

37HER HONOUR:  The CCO is ready for signature.  Would you like to have a look at that?

38MR NEWTON:  May I approach the dock?

39HER HONOUR:  Yes, certainly.  That completes everything I believe.

40MR NEWTON:  Yes, Your Honour.

41HER HONOUR:  Mr Newton, can I thank you for your assistance over a long period of time and the same thanks are due to the prosecutor who can't be here today.  But perhaps you could convey those, Ms Dickson.

42MS DICKSON:  Yes, Your Honour.

43MR NEWTON:  It's our privilege, Your Honour.

44HER HONOUR:  Ms Young, I hope everything goes well for you in the future.  And in particular, I hope the birth of the baby goes well and I will see you in November and you can tell me about it then.

45OFFENDER:  Thank you, Your Honour.

46HER HONOUR:  Thank you.  Adjourn the court please.

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