DPP v Oxborough [2021] VCC 2031 (8 December 2021)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYLA OXBOROUGH

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2021
DATE OF SENTENCE:	8 December 2021
CASE MAY BE CITED AS:	DPP v Oxborough
MEDIUM NEUTRAL CITATION:	[2021] VCC 2031

Subject: Criminal Law – Sentence upon plea of guilty
Catchwords: Robbery - Accused acted in Company – prior criminal history - drugs and
alcohol abuse – Bipolar disorder - good prospects of rehabilitation -

Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: Community Corrections Order for 18 Months.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Sivaratnam.	Ms M. Schwartz

For the Accused	Mr L. Barker	Mr D. McKenna

1 Tyla Oxborough, you pleaded guilty to one charge of robbery. The circumstances of the offending are summarised in the prosecution document for the plea which states agreed facts. I will outline these briefly.

2 At the time of the offending, you were 24 years old and living with your brother, Brandon, and your mother at Williams Landing. The victim in this case, one Stephen Atkins, was unknown to you.

3 On 2 November you, your brother and two others, one Justin Siaoloa and Seth Hoober were all at your residence. There a plan was devised to use your Facebook profile to contact a random man to persuade him to attend the premises for a likely sexual encounter, at which point the male would then be robbed.

4 On that day at about 7.30 am you added the victim as a friend and struck up a conversation. The subject turned to sexual in nature and after a few hours he was invited to the Williams Landing address. Having been lured there, in effect, he was instructed to park in the rear laneway at the residence.

5 At about 10.20 am the victim arrived and parked as instructed. He entered a garage at these premises and was greeted by you. You hugged him and let him kiss you on your cheek. He noticed you were not wearing any clothes underneath your coat. The two of you sat down on the couch in the garage and began talking. Your co-offenders, two of whom have been sentenced by me recently for armed robbery, went to the victim's vehicle to inspect it and then entered the garage, closing it by way of the roller door.

6 Your brother was in a wheelchair to which he is bound due to a motorcycle accident which left him a paraplegic. At this point, you left the garage and took no further active part in the commission of the offences that followed.

7 After you left, Atkins was threatened, having been surrounded by the others. Demands were made for money. He was restrained from using his phone. His phone and watch were stolen and his car and all its contents with valuable property was taken. The car was later recovered but not most of the property.

8 Inside the garage, during these events, a weapon in the form of an extendable baton was produced to menace him.

9 You were arrested on 6 November and when interviewed you made admissions as to your presence and as to your awareness as to the actions of your accomplices.

10 In your matter, committal conference and hearing were listed in 2020 from January to June. The committal was twice vacated due to the pandemic situation. I take this delay into account even though it was not extended it was nevertheless substantial and not of your making.

11 In January 2021 you entered pleas of guilty prior to examination of witnesses on your behalf, although the matter did proceed as a contested committal for other co-accused.

12 A prosecution offer was made in August, and you were arraigned in September 2021. There was therefore further delay in the resolution of this matter which was not of your doing. I also take this delay into account as requiring in your case some amelioration of sentence.

13 Your participation in this foolish escapade was not only ill conceived but involved criminal activity which is serious and could have been even more serious.

14 You allowed the plan to use you for bait in order to entrap the unsuspecting Atkins. The fact that you left when he was effectively ensnared in the trap minimises your involvement only in the sense that you did not participate in what took place later. But your role was fundamental in the agreed plan, and you played your part fully knowing what was likely to happen to the victim.

15 Such deceit and dishonesty in order to bring about theft by force is unacceptable and must be denounced by the court. The community looks rightly to the court to protect it from such conduct, and I am to impose just punishment.

16 As in the other cases involving your co-accused, no form of victim impact statement was received from Atkins upon your plea, however while I cannot conclude anything about the specific impact on a longer term or longer-term consequences upon him, I can note that such offences often cause trauma which may be long lasting and affect work, lifestyle, mental health and create hyper vigilance, lack of trust and confidence in everyday dealing with others.

17 Robbery carries 15 years imprisonment as a maximum penalty. By this the legislators have indicated the gravity of this behaviour, and this is reflective of the fear and consternation which the community and victims experience. It is conduct which must be deterred both generally for those who are minded to behave in this way and potentially. You specifically, the offending took place with a number of people arrayed together against him in a closed environment and your part in it is what got him in that position in the first place.

18 Your plea has a utilitarian value, having avoided a criminal trial, such value is enhanced having been made at a time of pandemic when the delay consequent upon it had severely disrupted the capacity of the criminal justice system to deliver its outcomes in a timely fashion.

19 Your plea and acceptance of responsibility in 2020 enables finality to be reached at this time and potentially also exposed you to the potential of incarceration which is made more burdensome by the pandemic and therefore must carry a greater than usual mitigatory value.

20 This is tempered by the outcome in this case in which no imprisonment will be imposed. However, you were not to know that until today. Your plea will reduce your sentence.

21 I take your background and history into account. You were born in Australia and you were two when your parents separated. When you were 16 your parents were reconciled but then separated again seven years later when you were aged 23 or so. You are the eldest of a blended siblings of seven. You were raised in the country until you were 10 and your childhood and teenage years were unremarkable. You maintained good relationships with your biological parents and regular contact with your six siblings. As a consequence of a motorcycle accident your brother is a paraplegic, and your mother is his carer.

22 In mid-2020 you had a daughter from a relationship. She is now seven months old. Tragically the father was killed in a motor vehicle accident in July of this year, about three months after your daughter was born.

23 You currently reside in Tarneit and share rental accommodation with a female friend. You were educated in Werribee but expelled in Year 10 which you completed at another school. You then went on to do a part of a diploma of beauty course and then completed some courses in hospitality and hotel services. You worked as a cashier at Woolworths, had multiple hospitality jobs and for two years you were employed at a restaurant at the Watergardens Shopping Centre.

24 You have not had employment since 2019 and are receiving Centrelink parenting payments. You have been in good health, free of serious medical conditions. In 2019 you were drinking alcohol heavily and taking Seroquel an anti-psychotic agent.

25 You are not currently taking any prescribed medication I was told. You intend to obtain a mental health care plan referral to a psychologist. Ian MacKinnon, a consultant psychologist assessed you and wrote a report dated 16 November 2021. You told him that you had sought previously the services of a psychologist because you were manic, impulsive spending, preferring bad people in effect and taking drugs. These traits led to depression and rumination about the death of your boyfriend and the accident which has maimed your brother.

26 You started smoking cannabis at age 14 or 15 and used Cocaine, Ecstasy and MDMA between the ages of 19 and 21.

27 After Brandon's accident in 2017 you started using Ice and GHB until 2020 when you became pregnant. You still drink alcohol every week and smoke cannabis.

28 You are currently the subject of a community corrections order with a substance abuse treatment condition but have not yet assessed or referred for treatment.

29 In Mr MacKinnon's opinion at the time of the offending you were suffering from symptoms which met the clinical criteria for major diagnosable psychological disorders, chronic bipolar affected disorder of severe intensity and polar substance abuse disorder.

30 You are of normal intelligence but manifesting severe depression and anxiety correspondent with unresolved grief. You remain vulnerable to manic phases of your disorder leading to extravagant and risky behaviour. Your polar substance abuse disorder is currently manifesting at mild levels.

31 Mr MacKinnon cannot suggest any environmental or experiential factors that may have contributed to the development of these disorders, but he opines that you do not possess an inherently anti-social or criminal character. These disorders will pertain to substance abuse, probably degraded your ability to reason and make sound judgment elevating your impulsivity and making your more open to suggestions by others. This may have diminished your sense of moral responsibility for what happened. Bipolar disorder while present is probably masked, says Mr MacKinnon by your intoxicated state.

32 You expressed your remorse for your involvement but did not display much victim empathy as you described Mr Atkins 'as a 40-year-old man with drugs trying to get young girls.'

33 Mr MacKinnon notes your recent stability and progress on the existing community corrections order which he says you are likely to complete. He writes that you are in urgent need of ongoing psychological therapy in conjunction with psychopharmaceutical medication. In his opinion your likelihood of re-offending is reduced with the rehabilitative prospects enhanced by this therapy.

34 You are a young widowed single mother of a seven-month-old baby, and you would likely find imprisonment extremely distressing.

35 You have a prior criminal history which relates to driving offences primarily which was dealt with in July 2019 with a community corrections order to perform 120 hours of community work and other conditions and supervisions and treatment.

36 I obtained an assessment for the community corrections order, and you were found suitable. In my view the conditions which can attach to such an order can have, in your case, appropriate components of punishment and rehabilitative force.

37 The prosecution took fairly no objection to this course. Testimonials tendered attest to you making an excellent effort of your mothering as well as progressing well in your obligation under the existing order. You have commenced some grief counselling with a counsellor in Altona and hopefully you will obtain a mental health plan from your GP.

38 Two subsequent court appearances were dealt with in February 2020 and July 2021. You served 42 days for assaulting a police officer and driving matters. In July 2021 you were before the court for driving matters and the breach of the July 2019 community corrections order.

39 TIPSTAFF: Sorry to interrupt, Your Honour. We seem to have lost
Ms Oxborough.

41 OFFENDER: I can hear you, Your Honour. Sorry about that my daughter just woke up.

43 So, In July 2021 you were before the court for driving matters and a breach of the July 2019 community corrections order. That order was confirmed.

44 In my view specific deterrence and community protection are still relevant but all sentencing principles and objects can be adequately met by a community corrections order. And I consider that your prospects of rehabilitation are good.

45 The community correction assessment dated 1 September 2021 finds you suitable. It recommends supervision, community work, treatment and rehabilitation for drug, alcohol, mental health, and programs to reduce re-offending and the report noted your two earlier orders.

46 The writer noted an email note on the current case manager for the order from Werribee corrections who commented on your progress saying that you had attended your supervision appointments and had engaged with corrections showing your willingness to engage in other specific discussions.

47 Currently community work has ceased, and you have begun some work from home. An assessment with ACSO COATS is scheduled December 7, that was yesterday. Did you undertake that assessment?

49 HIS HONOUR: Some hours completed from treatment and rehabilitation will be credited as hours of community work. Any mental health advice and response service assessment and recommendations will be endorsed and incorporated by corrections.

50 I will order that you perform 100 hours of community work. I will order that pursuant to s42 of the Sentencing Act that 40 hours of that work be cumulative on the current order. I will order that 40 hours of treatment will be credited to the work component.

51 During this order you must obey all lawful directions and instructions of corrections, attend supervising appointments and be of good behaviour and not commit any other criminal offence punishable by imprisonment.

52 You must notify any change of address or employment and report to the community service centre at Werribee within two days from today.

53 I understand that you consent to such an order. I should tell you that if you are in breach or contravention of this order there may be a charge of breaching the community corrections order and a penalty will apply to that breach and I may re-sentence you for this charge. Do you understand?

55 HIS HONOUR: Now, I do not expect that is what is going to happen. I suggest that you already have some experience with corrections and how to best work the order. Corrections really are there in order to assist you if you need help. I know that there is a work component that you are undergoing but more importantly you will get credit for attending to, like the assessment you underwent yesterday and if that flows onto other treatment and therapy that might assist you in the long term to look after yourself and your child then you should continue to do that to the best of your ability. If for some reason you cannot attend appointments, something happens with the baby or otherwise, just let them know. The trick about staying on top of the order is to continue communicating with corrections and that you do not disappear and not communicate with them. That will not lead to a good outcome.

56 My order will be for 18 months, and I will fix a judicial monitoring hearing for Monday 16 March next year so that I can monitor your progress and make sure that everything is going okay. And I will probably get a short report from corrections to tell me how well you are doing. That is what my expectation is.

57 I think your life situation in the last few months has changed dramatically and I appreciate that you are trying to stay on top of everything and making sure you do the right thing by your daughter and by yourself.

58 You just need to keep going and it won't be that hard. You just need to have some perseverance because you don't need to come back to court over and over and over again Tyla. Do you understand?

60 HIS HONOUR: Mr Sivaratnam are there any other ancillary orders or any other orders that I need to make?

61 MR SIVARATNAM: No, Your Honour, but just one matter that I wanted to raise with regards to the timing of the plea.

63 MR SIVARATNAM: I note Your Honour stated that it was in 2020 before the examination of witnesses at the committal. The plea was entered after committal at a mention on 14 September this year.

64 HIS HONOUR: Yes, that was a formal arraignment but the offer that was made for a plea was in August by the prosecution and it must've been accepted between then and the formal arraignment.

65 MR SIVARATNAM: Yes, it was accepted in September of this year, Your Honour. Thanks.

66 HIS HONOUR: Yes, thank you. Are there any other matters? Thank you. There'll be some paperwork that will need to be signed Mr Barker and perhaps those matters can be communicated electronically to your instructors.

67 MR BARKER: My instructor is present in the hearing, Your Honour,
Mr. McKenna.

68 HIS HONOUR: Mr McKenna will probably receive the documentation then from my associate and they can proceed from there. Thank you.

County Court of Victoria

DPP v Oxborough [2021] VCC 2031 (8 December 2021)