DPP v Petalas & Howarth
[2007] VSC 300
•23 August 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1450 of 2006
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REBECCA JANE PETALAS & NICOLE ANN HOWARTH |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 June 2007 | |
DATE OF JUDGMENT: | 23 August 2007 | |
CASE MAY BE CITED AS: | DPP v Petalas & Howarth | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 300 | |
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Criminal Law – Sentencing – Reckless conduct endangering life and other offences – Subsidiary role-players – Effective sentences of 2 years 80 days and 2 years 60 days – Non parole periods of 16 and 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elsten SC | Office of Public Prosecutions |
| For the Defendant Petalas | Mr S. Cash | Mr B. Balmer |
| For the Defendant Howarth | Mr D. Dann | Tony Hannebury Lawyers |
HIS HONOUR:
Rebecca Petalas and Nicole Howarth, you have each pleaded guilty to three offences that arise out of events that occurred in early July 2005. At that time, you were associating with a Benny Sahari. It suited Sahari to involve you in a feud that he was engaged in. The feud involved a woman with whom he had been in a failed relationship. I will refer to her after this as the victim. The first offence to which each of you has pleaded guilty is of an assault on the victim on 5 July 2005. The second offence is of reckless conduct endangering the life of the victim on 6 July 2005. The third offence is of criminal damage to her property on 6 July 2005. The statutory maximum penalties for these three offences are respectively, in years of imprisonment: 5 years, 10 years and 10 years.
As at 4 July 2005, you were both working as prostitutes in St Kilda. You were picked up there by Sahari. At that time, he and the two of you were users of heroin. The three of you used heroin together that day. You then stayed the night at Sahari’s apartment. There, the two of you came to be aware of the frequent messages passing between Sahari and the victim. Sahari told you a number of things about the victim. Those things included that she had been engaging in sexually explicit actions in front of his daughter, then aged 3. He also told you that the victim owed him money, that there was money and drugs at the home of the victim, and that it would be worth your while to go there to scare her and to rob her of the money and the drugs. Sahari’s stories were of a kind calculated to both arouse you emotionally against the victim and to interest you in obtaining her money and drugs. You were so stirred up, and so interested.
On 5 July, there was a direct contact telephone call between Sahari and the victim in your presence. You heard Sahari make threats to the victim. At around 11 p.m. on that night, he drove with you to the address of the flat of the victim. While you Rebecca Petalas stayed with Sahari in the car, you, Nicole Howarth, left the car and went to the flat. You knocked on the door, and it was opened by the victim. You forced the door open wide to permit entry. By that forceful opening of the door, the victim was assaulted and she fell. Fortunately for her, she had a male friend in her home. His presence precluded any further step being taken as to the victim. That assault made up the first offence.
Sahari and the two of you then returned in the car to his apartment. There he showed you a handgun. Your reaction to his doing so was regrettable, to put it mildly. You should have reacted by showing revulsion or at least shown concern at his having a gun on hand. You should have decided to have nothing further to do with Sahari. He was patently a man who should not have been in possession of a handgun. Instead you chose to continue to associate with him and in circumstances that revealed the possible use of the gun relative to the victim. On the day after he showed you the gun, Sahari drove you to a number of places. One place that the three of you visited was a gun shop in St Albans. Sahari made there an attempt to buy ammunition.
Around 11 p.m. that night, he drove the two of you again to the address of the flat of the victim. The three of you left the car to go to the flat. Sahari had with him the handgun. Your choice to go with him when he had the handgun was a very bad one yet it was not the only weapon taken to the flat. You, Nicole Howarth had a tyre lever from Sahari’s car. The three of you went to the door of the home of the victim. You, Rebecca Petalas, knocked on the door. When asked by the victim who was there, you said that it was the police. Wisely, the victim chose not to open the door. Instead, she worked on gaining time. She telephoned the police when in a position away from the door. As the knocking on the door increased, she came close to the door to give excuses for not opening it.
When she was close to the door, Sahari fired two shots with the handgun. One shot was directed at the door at a position close to the lock. The other was directed at the window adjacent to the door. The first bullet went through the door and into the wall opposite the door. The second broke a window and struck a lamp on the far side of the room. Fortunately for all four persons present, the victim was not in the path of either bullet. It seems that she was within a foot or so of the path of the first bullet. You, Nicole Howarth, then used the tyre lever to smash more glass from the window broken by the second bullet. You parted the venetian blinds on the inside of the window. The victim was seen to be on the telephone. That led to the two of you and Sahari moving away from the flat.
I have read the victim impact statement of the victim. The assault, the shooting and the window-breaking were clearly terrifying experiences for her. On the second occasion, she was lucky that she was not killed or injured. She has suffered major adverse psychological and financial consequences.
I turn to the background of each of you. You, Rebecca Petalas, were born on 24 May 1971. You are 36 years of age. You are a widow. You have five children. You, Nicole Howarth, were born on 23 August 1978. You are 29 years of age. Neither of you had much more than a rudimentary education. Both of you have had the sort of background that evokes empathy. Both were raised in dysfunctional circumstances. Both were demeaned and taken advantage of, in ways likely to damage your self-esteem. There have been some good times, but there have been lots of bad times. In both cases, the bad times led to your ending up working the streets and resorting to heroin. I accept that each of you has suffered badly at the hands of others in the past, including at the hands of your own family members. Those experiences should have made you more wary about setting out to inflict pain on another woman. It is troubling that that appears not to have been the case here.
You have both struggled with drug addiction, in particular addiction to heroin. You, Rebecca Petalas, are currently taking medication to treat drug induced schizophrenia from which you suffer. The reports of psychologists tendered upon the plea point to a need for both of you to undertake further drug rehabilitation and comprehensive psychological or psychiatric treatment, or both, if you are to have a genuine chance at turning your lives around. I have noted that you, Rebecca Petalas, appear to have successfully abstained from heroin while on methadone during a period from 1996 to 2003. You, Nicole Howarth, appear also to have successfully abstained from heroin usage while on methadone for some time in the past.
I turn to your previous convictions. The picture is of a continuing disregard for the law. Both of you have had many appearances before the courts. Neither of you have prior convictions for violence. After the events of July 2005, both of you were released on bail until the trial. Both of you have been in some further trouble with the law which has led to periods in custody. I was not told all the details but was told that, as to you, Nicole Howarth, there were driving offences. I must take into account, but only in an appropriate limited way, the fact of their being other sentences imposed.
For both of you, the current offences have added a significant greater dimension to your criminal history. Violence to the victim and damage to her property was planned. Further, the two of you proceeded on the second night with the knowledge that Sahari had the handgun with him. In proceeding to the victim’s flat a second time, you were effectively signing a blank cheque made out for major trouble. You were lucky it was not much greater trouble.
I must allow in your favour for a significant number of mitigating factors. Each of you has pleaded guilty to all three offences. Both of you co-operated with the police. It was accepted upon the plea that neither of you were the driving force behind these offences, Sahari having recruited you and having orchestrated the incidents from which they arise. In this sense, I accept that you were both used by Sahari. Again, I note the fact that you could and should have extracted yourselves from his company once you became aware that he was in possession of a handgun. I note that the psychologists’ reports tendered on the plea indicate that you have both shown insight into your responsibility for your part in these offences.
I have signed the orders for body sample retention as sought and not opposed. I must allow for the appropriate pre-sentence detention, and for the application of the principles of totality and parity. For you, Nicole Howarth, I declare 443 days of pre-sentence detention. For you, Rebecca Petalas, I declare 145 days of pre-sentence detention. I direct that that be entered into the records of the court.
The imposing of suspended sentences is not appropriate given the seriousness of the offending. I do propose to give both of you the chance of serving part of your sentence on parole. The periods of the sentences will be markedly shorter than those imposed on Benny Sahari, for reasons apparent from my reciting of the relative roles in the events giving rise to the offences. I propose to differentiate between you to a limited extent. The somewhat more active participation in the events of July 2005 by you, Nicole Howarth, is to a limited extent offset by the more, and hence more troubling, convictions of you Rebecca Petalas. But, even in that regard, the differences in age cannot be overlooked.
Nicole Howarth, on Count 2, reckless conduct endangering life, which I treat as the most serious count, I impose a term of 2 years of imprisonment. In what follows, I intend that, when stated to be cumulative, other periods will be cumulative on that period of 2 years imposed on Count 2. On Count 1, common assault, I impose a term of 40 days all cumulative. On Count 3, damaging property, I impose a term of 4 months, cumulative as to 40 days. The effective head sentence is 2 years and 80 days. I set a non-parole period of 16 months.
Rebecca Petalas, on Count 2, reckless conduct endangering life, I impose a term of 2 years imprisonment. In what follows, I intend that, when stated to be cumulative, other periods will be cumulative on that period of 2 years imposed on Count 2. On Count 1, common assault, I impose a term of 30 days all cumulative. On Count 3, damaging property, I impose a term of 3 months, cumulative as to 30 days. The effective head sentence is 2 years and 60 days. I set a non-parole period of 15 months.
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