Cristy Lee Holder v Dale Wayne Brennan (No 2)
[2014] ACTSC 383
•26 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Cristy Lee Holder v Dale Wayne Brennan (No 2) |
Citation: | [2014] ACTSC 383 |
Hearing Date(s): | 16 September 2014 |
DecisionDate: | 26 September 2014 |
Before: | Refshauge J |
Decision: | 1. The conviction for the offence of minor theft committed on 6 January 2013 be confirmed. 2. Cristy Lee Holder be sentenced to imprisonment for thirty-six days to commence on 20 August 2014. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Re-sentencing following successful appeal |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 63 Criminal Code 2002 (ACT), s 321 |
Cases Cited: | Holder v Brennan [2014] ACTSC 195 Saga v Reid [2010] ACTSC 59 |
Parties: | Cristy Lee Holder (Appellant) Dale Wayne Brennan (Respondent) |
Representation: | Counsel Mr R Davies (Appellant) Mr S McLaughlin (Respondent) |
| Solicitors Legal Aid (ACT) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 28 of 2014 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Morrison Date of Decision: 19 March 2014 Case Title: Dale Wayne Brennan v Cristy Lee Holder Court File Number(s): 162801 |
Refshauge J:
On 14 August 2014, I upheld an appeal by the appellant Kristy Lee Holder against a sentence of three months’ imprisonment imposed on her in the ACT Magistrates Court for an offence of minor theft. See Holder v Brennan [2014] ACTSC 195. The theft committed on 6 January 2013 was of two boxes containing digital video recorders each valued at $499 from a store in Fyshwick. Minor theft is an offence against s 321 of the Criminal Code 2002 (ACT), and attracts a maximum penalty of 50 penalty units (that is, at the time, a fine of $5,500, or imprisonment for six months, or both.
Ms Holder lodged her Notice of Appeal on 15 April 2014, that is, twenty-six days after the sentence of imprisonment was imposed. On the lodgement of the Notice of Appeal, her sentence was stayed under s 216 of the Magistrates Court Act 1930 (ACT).
Nevertheless, she remained in custody until a bail application she had made was successful on 24 April 2014 and she was released on conditions including that she participate in the New South Wales Magistrates Early Referral into Treatment Program (MERIT), that is to say, she remained in custody for a further ten days. Ordinarily, this period would be regarded as pre-sentence custody, to which s 63 of the Crimes (Sentencing) Act 2005 (ACT) applies. That time in custody, in my view, should be so regarded in this case.
I have set out the facts of the offence and Ms Holder’s subjective circumstances in Holder v Brennan at [12]-[31] and [35]-[50]. I do not need to repeat them but incorporate them into these reasons.
The offence was a fairly brazen, but not a typical example of shoplifting with a degree of planning and premeditation. The value of the property stolen was mid-range of the value for the offence.
Ms Holder has had a challenging early life and struggles with drug addiction. Unsurprisingly for a drug addicted person, she has a number of offences on her criminal record.
I had, however, material from the MERIT Program and a Pre-Sentence Report that had been tendered in the proceedings in the Local Court at Queanbeyan where she had pleaded guilty to an offence of breaking, entering and stealing property valued at less than $60,000, being three frozen pizzas and some milk. She said that she was under the influence of drugs at the time and that the premises were open and accessible.
While the reports of the MERIT Program were reasonably positive and she was attempting to enter a residential drug rehabilitation program, her general compliance with supervision has been considered poor. She is, however, undergoing medically supervised inpatient withdrawal management and random urinalysis while she awaits admission to a residential rehabilitation facility. The most recent report states
Ms Holder is well known to this Service. Her attendance during this treatment episode was problematic and subsequently hindered a better treatment outcome. She is a young woman entrenched in an active addiction who struggles to maintain positive changes. Ms Holder clearly recognises the advantage of a drug free lifestyle and has a comprehensive understanding of the detrimental effects of addiction. Ms Holder accepted that the best treatment option for her is long-term residential rehabilitation. She has participated in a number of assessments and has registered for admission to three programs. Ms Holder has been advised, by MERIT and the Rehabilitation Program delegates, that an admission date was imminent but depended upon her maintaining contact with all Services.
The Pre-Sentence Report suggested that Ms Holder also engaged with local psychological services. Ms Holder was assessed as unsuitable for a community service order, an order similar to the community service work condition to a good behaviour order in the ACT.
I have set out in Saga v Reid [2010] ACTSC 59 some of the difficulties of addressing drug addiction. I there said (at [89])
In my view, it can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it. That may be merely the nature of the offence. For example, sentencing on a drug offence may allow further attempts to be made, whereas, in the absence of some other factors, continuing burglaries or robberies would make a sentencing court much more hesitant about further attempts after multiple failures. It seems to me that Ms Holder’s continuing offending needs to be addressed by some punishment but balanced with as much encouragement as can reasonably be given to her efforts to manage her drug addiction for so long as she genuinely commits to that.
Her addiction is presently being managed through the MERIT program and I do not see a need to interfere with or add to that. She must realise, however, that, when she ceases to make genuine efforts to address her drug addiction, the courts will not continue with the leniency that may otherwise be appropriate.
It seems to me that a period of imprisonment was not out of the range for the offence, having regard to the circumstances of its commission and the personal situation of Ms Holder, including her prior criminal record. If I had, however, been sentencing her initially, I may well have suspended it and made a good behaviour order with the condition she attend rehabilitation in some form.
That aspect is now really being addressed by her participation in the MERIT program. The efforts she appears to be making, albeit rather tentatively, to address her addiction means that in my view, no further penalty than that she has already suffered is necessary.
Ms Holder, please stand:
(1)I confirm the conviction of the offence of minor theft committed on 6 January 2013.
(2)I sentence you to imprisonment for thirty-six days to commence on 20 August 2014. Had you not pleaded guilty, I would have sentenced you to six weeks’ imprisonment.
[His Honour then spoke directly to Ms Holder]
Ms Holder, that is the end of this matter altogether, but it is not the end, of course, of your need to address your lifestyle and situation. Residential drug rehabilitation is a good option but it is hard. If, however, you want to avoid the possibility of further imprisonment, then really you need to think seriously about that.
The MERIT people no doubt are assisting you and you should continue with that assistance if you can. Otherwise you will be back in court and you will be back in jail and you know what that is like.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge. Associate: Date: 2 February 2015 |
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