DPP v Winslett
[2004] VSC 426
•22 October 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1441 of 2004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTY MARIE WINSLETT |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 22 October 2004 | |
DATE OF SENTENCE: | 22 October 2004 | |
CASE MAY BE CITED AS: | DPP v Winslett | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 426 | |
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Criminal law – sentencing – armed robbery with blood–filled syringe (two counts) – plea of guilty – normal sentence substantial term of imprisonment immediately to be served – exceptional circumstances – fully suspended sentences of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr R. Elston | Office of Public Prosecutions |
| For the Accused | Ms J. Hughes | Robert Stary and Associates |
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
HIS HONOUR:
Kristy Marie Winslett, you have pleaded guilty to two serious crimes: first, that at Dandenong on 17 February 2004, you robbed Saj Palanagama of money when you had with you an offensive weapon, namely a blood-filled syringe; and, second, that at Hampton Park, five days later, on 22 February 2004, you robbed Dawn Kettle of money when you had with you an offensive weapon, again a blood-filled syringe.
Those two offences are serious offences of armed robbery. They are doubly serious because in each case you inflicted upon the two victims very real fear of a dreadful sort. And they are trebly serious because on each occasion your victim was alone: in the first instance a young man loyally serving customers and in the second instance a middle aged woman loyally serving customers. In each case the victims were alone, unprotected and vulnerable.
In the first instance, Count 1, on 17 February 2004 you robbed a young man staffing the retail area of the Safeway Plus Service Station at South Gippsland Highway, South Dandenong. He was 25 years of age and a part-time employee. I have observed the security video of the scene and I have seen the young man in the video. Plainly he was a courteous and helpful person.
He had commenced his work shift at 7.00 pm on 17 February 2004. At about 5 past 10 p.m., when he was alone serving and you were alone in the shop, you went up to him, and after some desultory questions by you, he came from behind the counter to show you where the chocolates you enquired of were. You then grabbed his right arm and said, "Give me the money, don't try anything, I am going to stab you". You were holding a blood-filled syringe. You held the blood-filled syringe up to his face, as though you were going to stab him. The victim said he could see it was a syringe containing what looked like blood and he was very shocked at what was happening. The victim complied with your directions at the point of the blood-filled syringe, returned to the counter, having come out to help you, and then opened the till. You took the money from the till, being some $340. You then ran from the shop. The young victim pushed the alarm button and locked all the doors. Shortly thereafter the police came.
Five days later, at Hampton Park, you again committed a serious armed robbery, being Count 2. On that occasion the shop server was a woman aged 59 years of age, although in question 205 in your record of interview you said you thought she was "about 45".
On Sunday, 22 February 2004, five days after the first robbery, the woman commenced work at a florist’s at 10.00 am. She was working alone. At 1.10 p.m. you came into the shop. Again after some desultory conversation, you produced the syringe to this woman, who was unprotected and alone and vulnerable, and said, "I want the money". You held the syringe about 3 cm from her upper left arm and said, "Don't move". Again, as with the first victim, so too with the second victim most understandably she was extremely afraid. You reached into the till and took money, approximately $100 in notes, and then ran from the shop. The victim remained where she was in a shocked state for a few seconds and then went to the front door but you had disappeared.
On each occasion you were acting alone. You had no co-offender. You walked to the relevant premises and ran from them. You did not use a motor vehicle. After each offence you squirted the blood from the syringe after you ran from the scene.
Both robberies were planned and deliberate. On the first occasion, you filled the syringe by extracting blood from your arm on the way to the premises. On the second occasion, you filled the syringe by extracting blood from your arm before you left the temporary premises where you were living. There clearly was a significant element of deliberation in each instance.
Although, as your counsel, Ms Hughes, in a most comprehensive and helpful plea, has submitted, there were no further threats or fear-inducing utterances by you as can happen in cases of syringe robberies, nonetheless as you said yourself in your police interview you intended the victims to be afraid, and plainly they were, and plainly they were entitled to be most afraid.
There is no victim impact statement of the first victim. The victim impact statement of the second victim shows commendable fortitude. Most fortunately, it appears that neither victim has suffered substantial psychological injury of a long term sort. However, that is no thanks to you. I have no doubt that both victims were deeply traumatised. Further, there was a high risk of injury, even if unintended by you, in holding the syringe so close to the persons in the situations I have described.
Robberies of this type, with a blood-filled syringe, are especially threatening and frightening and often haunting, as some citations from relevant authorities to which I shall come eloquently demonstrate.
The offences occurred on 17 and 22 February 2004. On 26 February 2004, then homeless and without clothes other than those few you were wearing, you attended at the Dandenong Police Station in order to obtain assistance in relation to some clothes of yours to which you had been denied access at the place where you had until recently been boarding. During the police inquiry, the owners of the property informed the police of your recent behaviour, as a consequence of which you were interviewed at the police station and charged with these offences. You were fully co-operative throughout the interview and made full admissions as to your criminal conduct. You said you were desperate for money and "were scared of having nowhere to live again" (question 161). You said you were not under the influence of drugs at the time of either offence but had been using speed for two to three years. In respect to the first offence, you said that if the victim had not cooperated you would have "run" (question 158) and would not have stabbed the victim (question 159). In respect to the second offence, you said that if the victim had not co-operated, you would have "left the shop" (question 255). However, neither victim knew that. Indeed, they would have believed the opposite or the real threat of the opposite.
At the time of the offences in fact you did not suffer from any disease or infection. Again, however, neither victim knew that.
Having been interviewed by police at the Dandenong Police Station on 26 February 2004, you were charged with these offences.
On 20 May 2004, at the Melbourne Magistrates' Court, you pleaded guilty to the charges and were committed for hearing to the County Court. On 18 October 2004, pursuant to the provisions of s.359(1) Crimes Act 1958, I directed that your trial be heard in this Court. You have been on bail with reporting and residential conditions. You have spent eight days in pre-sentence detention, being four days after being charged and four days this week after your plea on Monday until today, Friday.
The courts rightly take the view that offences of this sort, threatening vulnerable and lonely persons in service areas with a blood-filled syringe, are most serious indeed.
In R. v. Roy[1], Tadgell, JA described such offences in these terms:
[1][2001] VSCA 61 at [7].
"These kinds of armed robberies, prevalent as they are and easy to perpetrate as they are upon soft targets, need to be dealt with as a particularly horrible species of an undesirable genus, but always having regard to their own facts. They are commonly perpetrated by unstable criminals, usually drug addicts, and calculated to instil into the victim an exquisite sense of anguish and fear of the unknown. It is almost as if the criminal is engaged in a kind of biological warfare that will naturally introduce great apprehension into the mind of the victim. To that extent armed robbery with the wielding of a syringe full of blood is to be viewed sui generis (meaning of a special kind) and in the context of all other circumstances surrounding the case, dealt with appropriately."
The learned President agreed and said at [9]:
"Blood-filled syringes are undoubtedly a fearful weapon because they instil into the victim a legitimate fear of being pricked by a person who is usually a drug addict and out of control, with the consequence that the victim goes through the anguish of not knowing whether any of the fatal ramifications might flow. This no doubt is a factor which judges will take into account in imposing the appropriate sentence, including the weight which should be given for the purpose of general deterrence."
Buchanan, JA also agreed in the judgment of Tadgell, JA.
In R. v. Cotry[2], the learned President, in whose judgment Brooking and Charles, JJA agreed, stated:
"Our courts are all too commonly being called upon to deal with relatively young drug-addicted offenders who threaten and rob law-abiding citizens at the point of a syringe ... (Judges) must bear in mind sentencing principles which this Court has, from time to time, stated for their guidance. In cases of armed robbery of citizens with the use of syringes, this Court has frequently said that a primary purpose of punishment must be deterrence... The point has been made that syringes, whether blood-filled or not, are particularly fear-producing and provide a cheap and effective weapon for robberies of soft targets. Nor can sentencing judges lose sight of the fact that Parliament has been increasing the maximum penalties for armed robbery and the maximum now stands at 25 years."
[2][2002] VSCA 13 at [8].
In R. v. Pratt[3], Eames, JA, in whose judgment Winneke, ACJ and Phillips, JA agreed, said:
"This Court has on many occasions stated that offences of this type are prevalent and that because of their seriousness, mitigating factors personal to offenders must, to a degree, give way to the primary purpose of punishment for such offences, namely, deterrence."
Eames, JA then footnoted the two cases that I have just cited.
[3][2003] VSCA 186 at [20].
With every respect, I agree with what was stated in those authorities and of course, in any event, am bound by them.
Offences such as this should be dealt with ordinarily by substantial sentences of imprisonment to be immediately served in custody. That is because the victims are vulnerable, the victims usually are alone, the quality of the offence is particularly terrible and dreadful psychologically speaking, is very oppressive upon victims and often is haunting thereafter and there are high objective risks. Further, often such offenders, as the courts have pointed out, are young persons, often drug addicts, and the means of committing the offences, namely a blood-filled syringe, is readily available to such persons. All of those considerations involve that normally the proper disposition of such cases is a substantial term of imprisonment to be served immediately, including for persons with no prior convictions. The courts rightly have emphasised that in such cases deterrence of others (even if the individual accused does not require substantial specific deterrence) is the primary factor in sentencing. I respectfully agree.
I have concluded, however, after giving this matter careful consideration throughout this week - which was why I remanded you in custody, Ms Winslett, so I could give it long consideration during this week - that in your case I should in each instance impose upon you on each count a fully suspended sentence of imprisonment of three years, which is the maximum suspended sentence permitted under the legislation. That means that you are sentenced to a term of imprisonment of three years in each instance (Count 1 and Count 2) but that sentence is immediately suspended and that you will not be required to spend any further time in custody.
I explain to you, Ms Winslett, that if you commit any other offence in the next three years which is punishable by imprisonment, you will be brought back to court and are likely then to be required to serve the three years' imprisonment which is the Order which I today impose but suspend temporarily.
The reasons I have come to the conclusion that you should be the exception to a very sound general rule of substantial immediate imprisonment for a blood-filled syringe armed robbery are matters which are especially personal to you, and I shall turn now to those.
You were born on 14 December 1978 and are now 25 years of age. You have three children aged 7, 4 and 2 years. That is the first but not the only matter which I think is of especial importance in deciding to suspend fully your sentences of imprisonment: the fact that you have three very young children.
You have no relevant prior convictions, as I have already stated.
You were raised in the Frankston area. You were one of two children, your sibling being an elder brother to whom you were always very close. Your parents had their difficulties, which are referred to in the psychological report of Ms Carla Lechner, of Hawthorn, dated 14 October 2004, being Exhibit 4 before me, and which I do not here need to rehearse. You were educated at local schools and left school at the beginning of Year 10. You then commenced a productive period of employment of 7 years working as a child care assistant, studying at TAFE to further your work. You worked up to 10 hours a day, 4 days a week. Two 1995 reports of the Frankston College of TAFE were tendered as Exhibit 1 before me. One spoke of your "quiet, warm manner with the children" and the other stated that you were "working at a high standard in all areas ". Tendered today are two exhibits, 6 and 7, both from 1999, further attesting to the excellent quality of your devoted work to children during those good years. A reference, Exhibit 2, tendered before me, being a statement by the mother of a former partner of yours and by whom you had one of your three children, states:
"Kristy is a very loving mother who cares about her children deeply. She worked in a child care centre and when a child cried it would be Kristy who would pick up the child and comfort them until they were smiling again. This is how she has always been with her own children, reading stories, teaching them to count and letting them help her cook etc. She always said a child should always feel important and special because that would help mould the person they would become later on in life. I cannot fault her as a mother and a friend. She is one of the kindest and most caring people I have had the pleasure of knowing".
However, tragedy struck you young. Your beloved elder brother, to whom you were so close, committed suicide in February 2000 when he was 23 years of age. He hanged himself. You were devastated. Then, in 2002, your mother attempted suicide and was hospitalized as a result. While your mother was in hospital your father committed suicide. You felt especial pain when he took his life because you had been with him that very day, had thought you had counselled him through his troubles, went to visit your mother in hospital and returned to find your father dead. He too had hanged himself.
Unsurprisingly, your life started to unravel. You found another partner in an unwise choice by you. He introduced you to amphetamines and assaulted you. On one occasion while you were holding your child in your arms he poured petrol over you and the infant and threatened to incinerate you both. He is yet to be sentenced for that crime.
In the end, by late 2003, you utterly lost your way, left your children with your mother and drifted away. And during that dark time, effectively homeless, you committed these two offences, in February 2004.
The psychological odyssey you underwent is described in two references, Exhibits 2 and 3, tendered on your behalf and to which I have briefly referred. In Exhibit 2, the reference of the mother of one of your former partners and which I have already cited, the mother states:
"Kristy is a beautiful person but has lost her way in the last few years as she has had to cope with a lot of pain; first, losing her brother Lonnie to suicide, which placed a lot of strain on her relationship with Phillip, my son. This relationship deteriorated and then ended, as both Kristy and her mother both suffered severe depression. Kristy then met a drug addict and, to free herself from pain, she started to use drugs with the unrealistic belief that this would numb her pain. Kristy's mother also tried to end her own life and while she, Linda, was in hospital, Noel, Kristy's father, took his own life. It was left up to Kristy to tell her own mother what had happened. Not long after this Kristy's partner Mark and father to her then 6 month old daughter, assaulted her and poured petrol over both of them and threatened to burn them both in a drug-induced rage. Kristy, unable to cope with the pain and desperate to escape, tried to take her own life in May of this year [2004], saying that everything was just too hard and that she couldn't do it any more and was ashamed of the person she had become."
In Exhibit 3, to which I have also briefly referred, the following is stated:
"Kristy always displayed a loving, polite and caring nature which is why her first job as a child care worker was so well suited for her. She was a happy and caring member of our community until her best friend, her brother, was tragically taken away from her. Lonnie committed suicide. Kristy's whole world fell apart from that moment. She never dealt with Lonnie's death. She withdrew from life. Friends dwindled away. Her parents dealing with their own grief found it hard to help her. The family unit slowly fell apart. Kristy became very depressed with an overwhelming sense of helplessness. Kristy's relationship with the children's father ended at the same time so Kristy was now trying to deal with a young family and felt very much alone. Kristy had no grief counselling as then she would have had to acknowledge her brother's death and this was something too painful for her to accept at the time. Kristy met a man in the darkest time of her life. He used drugs and convinced her to use drugs to help her cope with the pain in her life. He became violent when she refused drugs. Kristy became pregnant to him and her nightmare with him got worse ...Kristy's mother tried to take her life. Kristy was caring for her mother, sitting at the hospital, trying to convince her mother to live and, while she was doing that, her father then successfully committed suicide after promising Kristy that he would always be there for her. When dealing with all of this, the baby's father doused her with petrol while Kristy was holding their baby. Not long after these issues Kristy became more dependent on drugs to help ease the pain she was feeling. She left her children so that they couldn't see the damage that she was doing to herself. Even at her lowest point she always made sure that her children were safe and cared for."
The impact upon you as a young caring woman of two suicides by hanging in your most immediate family - your only brother and your father - being the directly precipitating circumstances which led you to lose your way, is the second significant factor distinguishing your case from the many others of young persons with problems who resort to drugs. That distinguishes your unhappy case from many other unhappy cases of persons in low points of lives with no prior convictions who resort to robberies with drug-filled syringes. Your personal history is especially tragic and difficult and involves significant objective phenomena.
An insightful report of Ms Carla Lechner, of Hawthorn, clinical psychologist, to which I have referred, upon a comprehensive examination of you on
7 October 2004 including administration of the WAIS and the Beck Depressive Inventory, concluded you suffered clinical depression at the top end of the moderate range at the time of testing. You informed the psychologist that that was a "huge improvement" on how you had felt over the past few years.
Unlike many offenders, you are not self-centred. The psychologist observed that you were "immensely ashamed of your actions", that you have "appropriate victim empathy" and that you have "a good understanding of the impact of your behaviour upon both yourself and others". The psychologist stated that you reported to her that you
"keep waking up in the night thinking of how they (the victims) would feel ... how it affected them" (page 5).
Since being charged with these offences you have sought to rehabilitate yourself. It has not been easy, but you have persisted and the signs are positive. You are living with a partner. You have sought medical help in relation to drug taking, having commenced on 6 October with a low dose methadone course to help you through these proceedings and to seek to ensure that you do not lapse. You have worked in a voluntary capacity with the Open Family Service, a distinguished officer of which, Mr R. Tregear, was present in court on Monday and has tendered a report before the Court today, being Exhibit 8, signifying substantial regard for your effort and your potential. The reference Exhibit 2, which I have quoted, states:
"Kristy told me that she has to live with the shame of what she has done and says that, given the chance, she wants to give back to the community in some way and feels she can do this."
That is demonstrated by the exhibit tendered today, Exhibit 8, in which the Open Family officer, Mr R Tregear, spoke of you coming in to the Open Family in Footscray a number of times to work, that you were very quiet and unassuming and that, in his wide experience, he considered from his observations and interactions with you that these offences were foreign to your nature and that
"Open Family is willing to support this young woman in her attempt to claim back her self-respect and dignity as she surely had lost those qualities with the committing of these offences."
The reference Exhibit 3, which also I have previously quoted, states:
"Even at her lowest point Kristy always made sure her children were safe and cared for ... After the entire emotional trauma Kristy has been through she is doing really well now ... Her children love her dearly and she loves them."
Your children at present remain in the care of your mother. Importantly, the psychologist in her report stated (page 4) you "take pride in being a good mother and are determined to rehabilitate yourself and resume their care" and that you are "focused upon resuming care of your children".
The psychologist also observed (page 2):
"Ms Winslett has made significant gains since her apprehension ... She has detoxified from drug use and remained largely abstinent. She has recently commenced a methadone program. She is focused on having her children returned to her full-time care. Her symptoms of depression have improved somewhat and she is willing to engage in both drug rehabilitation and personal counselling. Her prognosis is favourable."
The psychologist concluded her report thus (page 7):
"In view of her very limited offending behaviour her actions do seem uncharacteristic of her usual functioning and confined to a period of significant stress. With support and guidance, I believe that her progress is favourable and that the risk of further offending is minimal."
You have one minor prior conviction nine years ago and which is irrelevant. You suffer no psychiatric illness or psychological disorder other than depression.
That personal history, Ms Winslett, in my view, has two exceptional elements. One is your own highly commendable and good personal qualities. The other is the tragic odyssey you underwent with the consequence of your losing your way for a brief but significant period of time and in which these offences were committed.
I am satisfied that the history that I have cited is so exceptional that this should be the exception to the otherwise sound general rule that persons, even with no prior convictions, who commit armed robberies with drug-filled syringes should be punished by a substantial term of immediate imprisonment.
As a consequence, I have concluded, but only after some days' deliberation, that I ought impose in each instance, on Count 1 and Count 2, a sentence of fully suspended imprisonment.
Under the relevant legislation, s.27(4) Sentencing Act 1991, I explain the following to you. The purpose of the suspended term of imprisonment is, first of all, to punish you for your very serious offences. Second, it is to seek to ensure that you can productively resume your life, as I am confident you can. Third, it is to help you resume mothering your three children, as I am confident you will. And, fourth, it is to enable you to get the counselling that you should and to stay off drugs. In that way I hope that, using your intelligence, which clearly you have, you will not be before the courts again. I do tell you that, if in the next three years you commit any other offence which is punishable by imprisonment, you will be brought back to court and are likely to be required to serve the full three years' imprisonment which today I impose but suspend. That means that you should not take any risks, Ms Winslett. Don't play with fire, and don't come back.
I declare the period of 8 days' pre-sentence detention already served under the sentence I impose and so certify.
Pursuant to s.464ZF(2) and (2A) Crimes Act 1958 I direct that you provide a forensic sample, and I shall sign the Order accordingly, because of the seriousness of the two offences and because the granting of the Order is in the public interest. That sample may be provided within 14 days of today and that can be arranged with the help of your solicitors.
I have been most assisted by the submissions of Ms Hughes who appeared on your behalf. She intelligently directed the plea to the seriousness of the offences, the fact that deterrence, as the authorities state, is central in a case such as this, but that in this individual case there are exceptional circumstances.
Accordingly, on Count 1, armed robbery on 17 February 2004, I sentence you to three years' imprisonment, wholly suspended, and on Count 2, armed robbery on 22 February 2004, I sentence you to three years' imprisonment, wholly suspended.
Ms Winslett, when I leave the Bench, you are free to leave the Court.
[After discussion]
ORDER
The Order of the Court is that on each count the sentence of 3 years’ imprisonment is fully suspended for the period of 3 years. The sentence on count two is wholly concurrent with the sentence on count one.
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