DPP v Lacco [2018] VCC 1838 (9 November 2018)

Last Updated: 18 December 2018

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-01600

DIRECTOR OF PUBLIC PROSECUTIONS
v
NATASHA LACCO

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2018
DATE OF SENTENCE:	9 November 2018
CASE MAY BE CITED AS:	DPP v Lacco
MEDIUM NEUTRAL CITATION:	[2018] VCC 1838

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Attempted armed robbery

Legislation Cited: Bail Act 1977, Criminal Procedure Act 2009

Cases Cited: Boulton v The Queen (2014) VSCA 342, Verdins; Buckley; Vo [2007] VSCA 102; (2007) 16 VR 269.

Sentence: Total effective sentence of one year and six months and convicted and ordered to serve a community corrections order for a period of two years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A Upton	Director of Office of Public Prosecutions
For the Accused	Mr M Allen	Emma Turnbull Lawyers

HIS HONOUR:

1. Natasha Lacco, on 29 October 2018, you pleaded guilty to one charge on the indictment No. J10424685:

Charge 1, Attempted armed robbery of Darryl Herd. This charge has a maximum penalty of 20 years' imprisonment.

2. You also consented to a related summary charge being transferred to this court pursuant to s.145 of the Criminal Procedure Act 2009. You pleaded guilty to committing an indictable offence whilst on bail, which under s.30B of the Bail Act, the maximum penalty for that is three months' imprisonment.

Circumstances of your offending

3. The prosecutor tended a summary of prosecution opening. It was Exhibit “A” on the plea. I will read from it, as it sets out your offending clearly.
4. The victim in this matter is Darryl Herd. At the time of your offence, he had been unemployed for some five years and had been living out of his car in since April 2017. He had been parked on the side of the road at 12 Park Street in St Kilda, where the offence occurred, for approximately five days.
5. On Tuesday 13 February 2018, at about 8.30 pm, Herd took some pills and went to sleep in the back of his car. The pills were for pain management and an anti-depressant. He left the car windows down whilst he was asleep.

   At approximately 12.10 am on Wednesday 14 February 2018, you were walking down Park Street in St Kilda when you saw Herd's car parked on the side of the road with its windows open. Herd was asleep in the car at the time.

6. You were armed with a large hunting knife, approached the car, and entered it by climbing through the window. Mr Herd woke up to see you holding a knife at him. You were saying, "Move over" to Herd. Herd moved over because you were holding the knife. You asked him for cigarettes initially, to which he replied he did not have any. After asking for the cigarettes, you picked up the ashtray from the middle of the front of the car. You then asked for money and what else Herd may have had. You then rifled through the car, still holding the knife at Herd.
7. You then leaned forward in the front seat of the car and as you did Herd, fearing for his life, managed to unlock the right side back door and leapt from his own car. Once out of the vehicle, he began shouting for help. As he did, he looked back and saw that you were going through the front of his car, trying to find things to take. He leaned into the car to pick up some rocks and started yelling for help.
8. You then climbed out of the car and told Herd to shut up. You then came towards him, still holding the knife. Herd thought that you were going to stab him. As you have come towards him, he threw a rock at you. He missed you and hit a wooden fence. He was ready to throw more rocks at you when you went back to the car.
9. At this point, a co-accused by the name of “Andrew Dand” appeared from the footpath area with a garden stake as he attempted to strike Herd to the head. Herd raised his arms to defend himself, and was struck by the garden stake on the forearm, causing a large laceration to his arm. After that occurred, you have then taken a high-visibility work vest out of Herd's car. It was recovered nearby on the nature strip.
10. During the course of the incident, several members of the public called 000 to request police assistance. Police arrived at the scene very quickly and you and Andrew Dand were observed by them walking away from Herd. Herd identified the two of you to the police as the offenders involved in the incident. You both were arrested. You made a "No comment" record of interview, which is your right.

11. At the time of the offence you were on bail. On 5 February 2018, you had been arrested for contravening a family violence intervention order. You had been bailed to appear at the Melbourne Magistrates' Court on 27 April 2018. That is the factual basis for the related summary charge of committing an indictable offence whilst on bail.
12. Your co-accused, Andrew Dand, was charged with different offending and those charges were finalised in the Magistrates' Court on 21 August 2018.
13. Unsurprisingly, your victim Darryl Herd, has not filed a victim impact statement. Mr Herd was clearly someone who at the time of your offending had fallen on hard times and was living out of his car. He was a very vulnerable person at a very vulnerable stage of his life.

Your personal circumstances

14. At the time of the offending, you were 29 years old. You are now 30. Since your arrest, you have been in custody for 268 days not including this day. Up to the present time, your life has been one of a predictable tragedy. Your family life has been dominated by dysfunction, violence, drug addiction with your parents, and the chaotic result of no stability for you in your formative years.
15. You are the only child of your biological parents. You have siblings on your mother and your father's side in their relationships. When you were aged three, your parents separated. You remained with your mother initially and later moved to live with your father. By the time you were in your early teenage years you moved back and forth between your parents. These living arrangements were interspersed with staying at friends' places, as in couch surfing, group homes, hostels, juvenile detention centres and youth emergency accommodation.

16. In the course of this journey through life, you were diagnosed with ADHD and prescribed medication at the age of eight. You have received psychological counselling under the direction of Youth Justice. You also had psychological counselling from Dr Helen Barnacle in your early adult life. Unfortunately, there was no report from Dr Barnacle.
17. In 2011, you were tested by Dr Loretta Evans, neuropsychologist. A report dated 2 July 2011 was Exhibit “2” on the plea. Dr Evans diagnosed you with suffering from an Acquired Brain Injury (“ABI”). Dr Evans' psychometric testing led her to the opinion you suffer from a compromise to your frontal lobe. At that stage of your life, you had a diagnosis of an ABI, anxiety and depression.
18. By 2012, you were referred to a specialist list, as in a court list, known as the ARC list at Melbourne Magistrates' Court. This list is specially designed to cater for offenders with mental illness or cognitive impairment. You qualified for the ARC list on both bases.
19. Despite your drug use, including chromium and petrol sniffing, cannabis, and alcohol, and benzodiazepine use leading up to this time you did well on the ARC list and the final report, which was Exhibit “2”, is proof of that. Unfortunately, on your own report you started using ice at the age of 25. Your life has spiralled out of control since then. Ultimately, you ended up offending in this case, and as a result, have been in adult custody for the longest period of your short life.
20. You have been assessed by Dr Ian McKinnon, psychologist, for the purpose of this plea. His reports dated 20 and 25 October 2018, are Exhibit “3”.

    Dr McKinnon has diagnosed you as suffering from Post-Traumatic Stress Disorder (PTSD), which is of moderate to severe intensity. Your condition is chronic.

21. Dr McKinnon noted you had been slotted for the last two months at Dame Phyllis Frost Centre. This arises from your proximity to what was described as an "incident" at the prison and all persons present have been disciplined in the same manner as yourself.
22. You have worked in prison industries whilst incarcerated. Despite your cognitive disabilities, you have shown an aptitude for doing things with your hands. Consistent with that ability, you completed Year 10 certificates in mechanics, horticulture and hospitality. Your only paid employment has been in hospitality for a period of three months.
23. You are an Indigenous Australian. You have reported the desire to connect more fully with your cultural roots to further enhance your chances of rehabilitation.
24. Whilst you have endured many setbacks in your life, the most significant event occurred when you were 15. You were violently raped by two offenders, one of whom was prosecuted and incarcerated. You have survived that horrific event.
25. You have seven prior court appearances. Three of those court appearances are to do with a charge of armed robbery and two subsequent breaches of an ICO order hearing. The original armed robbery charge was in June 2010. Your compliance with court orders has not been without difficulties, but of note is that you complied with the ARC list supervision in 2012. I note you have a breach of CCO matter before the courts later on this year.
26. In summary, you have survived a life of violence, drug addiction, cognitive deficits and psychological symptoms for PTSD. I note you have survived attempts on your own life.
27. On the positive side, you have an aptitude for hands-on type work. You have support of two people in the community. One of them is Mr Rubenstein, who is in court to support you. You also have the advantage of a drug-free period whilst you have been on remand. In your case all is not lost.

Sentencing Considerations

28. The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, combined with the protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it, and your personal circumstances.
29. I am also required to balance the interest of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.
30. I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exclusively to the kinds of sentences imposed in comparable cases, and the statistics for the sentences of those cases. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case as indeed they are from one another.
31. Of course, current sentencing practices is only one of the considerations I must take into account. I am also mindful of the provisions of the Sentencing Act, and in particular s.5(4C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which the sentence is imposed.
32. I have reviewed the case of Bolton in considering if a community corrections order would be appropriate in your case, and I have had you assessed for a community corrections order. You have been assessed as being suitable. That is not the end of the matter.
33. You have pleaded guilty to this charge. Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters. Your plea vindicates the public confidence in legal process set up to protect the community.
34. Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty to this charge indicates and demonstrates remorse on your part.
35. I accept that you appreciate that your offending was perpetrated against a person who was suffering similar deprivations to yourself: homelessness and lack of hope. Now you are in a sober state of mind, you can see that situation clearly.
36. I accept that your childhood and family upbringing were chaotic and dominated by violence within your family and also directed to you personally. I accept your long-standing drug addiction and consequential psychological and cognitive difficulties are a direct result of your deprived upbringing.

    This background, which is personal to you, does in part reduce your moral culpability for the offending in this instance.

37. At the time of your offending, you have voluntarily engaged in the use of ice, methylamphetamine, and committed this offence in an intoxicated state. This factor on its own does not reduce your moral culpability.
38. On the basis of your documented history and treatment set out in Dr Evans' report and the assessments of Dr McKinnon, I accept that the principles of Verdins' case are applicable in this sentencing process. In particular, due to the compromise of your cognitive function and the severity of your PTSD symptoms, general deterrence and specific deterrence need to be moderated in this sentence.
39. I also accept that, given your PTSD symptoms and the opinion of Dr McKinnon, that your condition will deteriorate whilst in custody, that any time in prison will weigh more heavily upon you than a person of normal mental health and adversely affect your mental health at the same time. These considerations mitigate against the imposition of a long prison sentence.
40. You have a relevant prior criminal history for this particular offence.

    The offending on this occasion is properly described as opportunistic and unplanned. You were in possession of a dangerous-looking knife, but despite the confined space within the car, you have not wounded your victim with it. The fear you inflicted in Mr Herd was enough to make him escape from you and his car. The offence of attempted armed robbery is a serious offence. Your victim was a vulnerable soft target for your offending.

41. I have assessed your prospects of rehabilitation as guarded but have decided that you need a structured process to assist your recovery to a normal life.

    You have had a long-term problem with drug abuse. In 2012, under the ARC program you proved you can achieve a drug-free life. Custody has given you a drug-free period for the time you have been in custody.

42. Your rehabilitation will be enhanced if you have direct drug rehabilitation assistance upon your release from custody. You have support of

    Mr Rubenstein and Ms Brittain and I have now been told that you have a place to reside at upon your release.

43. In order to satisfy the sentencing considerations of general and specific deterrence, just punishment, denunciation of your actions, and rehabilitation, and protection of the community, the appropriate sentence is a combination of imprisonment and the imposition of a community corrections order upon your release.
44. Your counsel urged this disposition on the court. At the conclusion of Mr Allen's submissions, the prosecutor indicated her instructions were the combination sentence would also be appropriate in your case.
45. Would you stand, please?
46. On Charge 1, you are convicted and sentenced to 18 months' imprisonment.
47. You are to be also convicted and placed on a CCO for a period of two years, commencing upon your release from prison.
48. I declare you have served 268 days pre-sentence detention.
49. Pursuant to s.6AA of the Sentencing Act, I would have, but for your plea, have sentenced you to four years' imprisonment with a non-parole period of two years and nine months.
50. I did have a disposal order to sign, and I will sign that.
51. The conditions of your community correction order are as follows. That you are to perform 75 hours of unpaid community work, and I will come back to that in a minute. That you are to undergo treatment and rehabilitation services for drug and alcohol and mental health.
52. I order that the hours that you spend in rehabilitation, in the rehabilitation conditions, be counted as your community work hours. The reason I have done that is just to encourage you to take up the opportunity with rehabilitation.
53. I am ordering that you come for judicial monitoring on

    24 September 2019, and that the Corrections office applicable for you will be the Carlton Corrections Office. And you are to attend there 48 hours after your release from prison.

54. I will have those papers prepared.
55. COUNSEL: As Your Honour pleases.
56. HIS HONOUR: Is there anything else?
57. MS UPTON: There was also the 464ZF application that was made.
58. HIS HONOUR: Right.
59. MR ALLEN: Which is consented to.
60. HIS HONOUR: Yes. I do not think I have got those.
61. MS UPTON: Those all should have been e-filed. I'll make some enquiry into those and forward it to you.
62. HIS HONOUR: Thank you. I will just make it clear, I am making a disposal order that relates to the shoulder bag. Yes. In respect of the - thank you.
63. In respect of the sentence, I have just been reminded about the bail offence whilst on bail. You are convicted and sentenced to one month, but that sentence is to be served concurrently with the sentences undergoing.
64. I will sign those disposal orders. Thank you. Thank you. Mr Allen, you can -

    if you would not mind attending at the back. Yes, thank you.

65. MR ALLEN: Yes, Your Honour.
66. HIS HONOUR: Ms Lacco, I cannot even pretend to understand exactly how tough your life has been. But you will get a chance to turn it around. I know that is easy for me to say, but you have got a chance to turn it around if your serve your sentence, get out, and get out of these drugs, if you can. Catch up with your old mob, being your Indigenous mob, and get yourself something to do with your hands work-wise. You have got a great life in front of you. Good luck. Thank you.
67. MS UPTON: As Your Honour pleases. I can indicate, I am just attempting to email your associate the 464ZF order. I've got a soft copy. I just need to get it to her.
68. HIS HONOUR: All right. I will deal with that when it arrives.
69. MS UPTON: Thank you.
70. HIS HONOUR: I have got a whole lot of appeals waiting here. Before you go, thank you both for your assistance in this matter.
71. MS UPTON: If Your Honour pleases.
72. MR ALLEN: Thank you, Your Honour.
73. HIS HONOUR: Thank you.
74. HIS HONOUR: You are excused. Thank you.
75. COUNSEL: Thank you.