Curtis v The Queen
[2022] VSCA 5
•21 January 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0173
| KARINA CURTIS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 January 2022 |
| DATE OF JUDGMENT: | 21 January 2022 |
| DATE OF REASONS: | 28 January 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 5 |
| JUDGMENT APPEALED FROM: | DPP v Curtis (Unreported, County Court of Victoria, Judge Chettle, 1 December 2021) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary and intentionally causing injury – Applicant sentenced to nine months’ imprisonment with 18 month community correction order (CCO) – Exceptional family hardship – Appeal allowed – Appellant sentenced to time served with 18 month CCO.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Ms G Connelly and Ms B Kelly | Camerons Lawyers |
| For the Respondent: | Mr G Buchhorn | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
NIALL JA:
The applicant sought leave of this Court to appeal against sentences imposed upon her in the County Court on 1 December 2021 for aggravated burglary[1] (charge 1), intentionally causing injury[2] (charge 2) and possessing a drug of dependence[3] (charge 3). At the conclusion of oral argument on 21 January 2022, we granted the applicant leave to appeal against the sentence, allowed the appeal and resentenced her in the manner set out below.[4] These are our reasons for those orders.
[1]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[3]Drugs Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is five penalty units if the court is satisfied on the balance of probabilities that the offence was committed in relation to a quantity no more than a small quantity as defined — 50 grams — or the offence was not committed for any purpose related to trafficking in cannabis.
[4]See [24].
Now aged 30 years, the applicant’s offending took place in the early hours of 30 November 2019, when she was aged 27 years.[5]
[5]Her date of birth is 16 December 1991.
The applicant — who had no prior convictions — was acquainted with a male, ‘AC’, they both having previously resided in the same caravan park. In the afternoon of 29 November 2019, AC helped the applicant by bringing her a jerry can of petrol to refuel her car when it had run out of petrol. Later that day, the applicant and her two children — her daughter, ‘CS’, then aged eight years, and her son, ‘SJ’, then aged six — went to AC’s home to return the jerry can. The adults talked and drank together.
After they had returned home, CS apparently told her mother that AC had sexually interfered with her.
As a result, at 1.55 am on 30 November 2019 the applicant returned to AC’s address. AC and his partner were asleep inside. The applicant, armed with a flick knife, forced open the front door (charge 1 — aggravated burglary). AC was woken by a loud bang and got up to see what had caused it. He heard footsteps in the hallway, and heard the applicant screaming: ‘You sexually assaulted my daughter, I’m going to kill you’.
AC was in his bedroom. The applicant stopped about one and a half metres from him, continuing to scream and accuse him of sexually assaulting her daughter. She was swinging the knife around, before lunging forward and stabbing AC in the lower left abdomen. AC suffered a single stab wound (charge 2 — intentionally causing injury). After the applicant stabbed AC, she stopped yelling and left.
On 30 November 2019, AC underwent a keyhole surgical examination of the abdomen which identified a breach of the peritoneum. The stab wound was repaired and the victim stayed overnight in hospital, being released the next day.
At approximately 4.00 am on 30 November 2019, the accused was arrested at her residence. She was erratic and uncooperative.
A search warrant was executed at the applicant’s residence at approximately 11.50 am on 30 November 2019. A number of items were seized, including an amount of cannabis weighing 20.5 grams (charge 3 — possessing a drug of dependence).
On 12 October 2021, the applicant appeared before a judge of the County Court and pleaded guilty to the three charges on the indictment. Following a plea, on 1 December 2021 the judge sentenced the applicant in accordance with the following table:
Charge Offence Sentence 1 Aggravated burglary 9 months’ imprisonment 2 Intentionally causing injury 18 month community correction order (‘CCO’) 3 Possessing a drug of dependence Total effective sentence 9 months’ imprisonment followed by 18 month CCO Pre-sentence detention 60 days Section 6AAA statement 5 years’ imprisonment with 3 years non-parole
Before continuing, we pause to note two curious aspects of the judge’s sentence. First, although in tandem ss 40(1) and 44(1) of the Sentencing Act 1991 permitted the applicant to be sentenced to be imprisoned for up to one year in combination with a CCO on both the charge of aggravated burglary and of intentionally causing injury — those offences being founded on the same facts — the judge imposed a sentence of imprisonment on charge 1 and a CCO separately on charge 2. That was unnecessary and somewhat unusual. Secondly, s 37(a) of the Sentencing Act 1991 permits the imposition of a CCO only if an offender has been convicted or found guilty of an offence punishable by more than five penalty units. In the present case, however, charge 3 was punishable by not more than five penalty units, so that it was not open to the judge as a matter of law to impose a CCO on that charge. For that reason alone, this Court was required to intervene so as to impose a lawful sentence on charge 3.
The evidence revealed that both of the applicant’s children have significant developmental difficulties. Her daughter CS, now aged 10 years,[6] has a diagnosis of Autism Spectrum Disorder (‘ASD’), and her son SJ, now aged eight,[7] has a diagnosis of Attention Deficit Hyperactivity Disorder (‘ADHD’). At the time of her arrest, the applicant was a single mother, neither of the children’s fathers having any involvement in their lives.
[6]CS was born in September 2011.
[7]SJ was born in May 2013.
After the applicant’s arrest on 30 November 2019, upon the application of the Department of Families, Fairness and Housing (‘DFFH’), the Children’s Court made the children CS and SJ the subject of a Care by the Secretary Order. The DFFH initially placed both children in a kinship arrangement with the applicant’s father and his partner, but this arrangement broke down due to SJ’s behaviour. SJ was then placed in the care of the applicant’s younger sister. Given SJ’s developmental issues, however, neither the applicant’s father nor her sister were in a position to provide full-time primary care for him, and there were no other kinship placements available.
Prior to the plea hearing, the applicant had spent 60 days in custody. In the lead-up to the plea, the applicant’s two children were made the subject of a Family Reunification Order by the Children’s Court. The aspiration was that the children would be returned to the applicant’s full-time care by 28 October 2021 — that is, a little over a fortnight after the date of the plea — and would once more be able to reside together. It was made clear to the judge that, if the applicant were to be imprisoned, it was inevitable that SJ would have to be placed into foster care. Thus, in a letter dated 11 October 2021, tendered on the plea, a Child Protection Practitioner with the DFFH, Ms Michelle Matheson, explained:
I am Ms Karina Curtis’ children’s Child Protection case manager.
[CS] and [SJ] are currently on a Family Reunification Order to Ms Curtis. This order expires on 03/12/2021. Ms Curtis has actively addressed all of the protective concerns held by the Department and adhered to a clearly set out, staged reunification plan. Ms Curtis is currently having her children in her home overnight for 4 nights per week. Child Protection are aiming to have the children returned to Ms Curtis’ full time care by 28/10/2021. [CS] and [SJ] miss residing together and look forward to returning to their mothers [sic] care together.
[CS] and [SJ] are currently residing in separate placements. [CS] resides with Ms Curtis’ father and his partner. [SJ] is residing with Ms Curtis’ sister and her partner and baby. [CS] and [SJ] were both residing with their maternal Grandfather, but this placement broke down in April 2021 due to [SJ’s] behavioural issues. [SJ] has been diagnosed with ADHD and is engaged with a paediatrician and a psychologist. [SJ] often has emotional outbursts and angry moments when he does not get his own way or becomes overwhelmed. Ms Curtis’ sister has stated that she is finding it difficult to care for [SJ] due to his behaviours and call’s [sic] Ms Curtis for advice on how to manage [SJ]. Ms Curtis’ sister has advised Child Protection that if the children are not reunified to Ms Curtis on 28/10/2021 that she is unable to continue caring for [SJ]. In the event that Ms Curtis is imprisoned, Child Protection would have to place [SJ] into foster care. This may also result in [SJ] having to move schools. Currently [CS] and [SJ] both attend [named] Primary School where they are well supported by the teaching staff and benefit from the small class sizes.
Ms Curtis has actively engaged with a drug and alcohol worker, achieving abstinence, and is now providing clear drug screens. The drug and alcohol worker has recently finished working with Ms Curtis as she had met all of her goals.
Ms Curtis remains engaged with her GP and has telehealth appointments regularly with her psychologist to maintain her mental health. There has been a noticeable positive change in Ms Curtis’ presentation.
Ms Curtis is currently engaging with a Family Reunification Program through Family Care in Shepparton. This program provides Ms Curtis with intensive therapeutic support and education around parenting. Ms Curtis is engaging well and actively participating with this program.
Ms Curtis has worked extremely hard with Child Protection to ensure safety for her children and to have them returned to her full-time care.
A further letter from the DFFH, dated 20 January 2022, tendered upon the hearing of the application in this Court, set out the current situation of the applicant’s children. It makes plain that the applicant’s imprisonment has led to the children being separated from each other; and that, as a result of the trauma associated with his mother’s incarceration — which has had a markedly deleterious influence on his behaviour — the younger child has had to be placed in four different foster placements:[8]
[8]Emphasis added.
On the 27/10/2021 the children [CS] and [JS] had been returned to the care of their mother Ms Karina Curtis following Ms Curtis having addressed the child protection concerns adequality [sic] to ensure the safety of her children whilst in her care.
On the 1/12/[2021] the Ms Karina Curtis was incarcerated, and the children were placed into Out of Home care.
At this time kinship support options were explored for the care of the children however, all identified family members were unwilling to provide the ongoing care required pending Ms Curtis release post sentence.
Both children were placed into Out of Home Care Foster care placements, however, the children due to placement challenges the children had to be placed in separate placements.
[CS] has remain [sic] stable in her placement however, due to challenges [SJ] has experienced 4 different placement changes.
The children have been able to spend some time on respite with their maternal aunt Ms Aimee Curtis however, there periods were only of short durations as Ms Curtis could only provide respite and as opposed to longer term or ongoing care for the children. By Ms Curtis providing respite enable [sic] the children to be together as outside of this their placements were separated and on their sibling contact.
The children were able to be supported to remain connected to their school for the remainder of the year and it is envisaging that they will continue to remain connected to their school during 2022.
The children have managed this situation and will continue to be supported in care until their mother is released from prison however, it must be acknowledged that the children after a period of 10 months out of parental care and having been successfully reunified back into Ms Curtis care and 5 weeks later they have had to re-enter Out of Home Care. Unfortunately, they were unable to return to the full-time care of Ms Aimee Curtis who was previously their kinship carer, throughout the 10 months they were out of their mother’s care.
I would like to highlight that the reunification of the children into the mother’s care was an achievement that must be recognised and with the sudden incarceration of Ms Curtis so soon after the reunification has had a direct impact on the children, in particular [SJ] as he has displayed challenging behaviours once re-entering care and these behaviours which can be attributed the trauma of have having to be placed again away from his mother have led to placement changes. His current placement is a trial placement because of the challenge’s [sic] carers have experienced within placement as therefore, his is at risk of further placement changes.
No further have been initiated at this time for the children due to COVID-19 and the holiday period where services and staff have been on leave.
On the plea before the sentencing judge, the applicant’s counsel contended that a ‘combination sentence’ involving imprisonment — ‘where no further time is served’ — and a CCO ought be imposed. Relying on Markovic,[9] counsel submitted that the applicant’s is a case where exceptional circumstances justified the exercise of mercy.
[9]Markovic v The Queen (2010) 30 VR 589 (‘Markovic’).
As to the contention that a combination sentence ought to be imposed, the prosecutor submitted:
My instructions are that it is within that range [where a CCO could be imposed], that combination sentence would be an appropriate one or at least not an inappropriate one.
In his sentencing remarks, the judge observed:
I accept that the hardship to your family in this case is a factor that I can take into account and do take into account and it has reduced significantly the time in custody that I would otherwise impose for your offending.
With perspicuous fairness, in oral submissions in this Court counsel for the respondent submitted that he ‘cannot take issue with a finding that there was exceptional family hardship’. He submitted that ‘there are compelling mitigating features here, that’s why the prosecution took the position it did’ before the sentencing judge. Notwithstanding these concessions, however, counsel nonetheless submitted that the sentence that the judge imposed was open to him.
The principles relating to family hardship for the purposes of sentencing were discussed by this Court in Cross:[10]
[10]Cross v The Queen [2019] VSCA 310, [50]–[52] (Priest and Weinberg JJA). See also Borg v The Queen [2020] VSCA 191, [48] (Priest, Beach and Niall JJA).
Prior to Markovic, there was a school of thought that, notwithstanding that exceptional family hardship had not been demonstrated, there was still room for the extension of mercy in appropriate cases. Thus, in Carmody,[11] the applicant had pleaded guilty to being knowingly concerned in the importation of heroin with her husband. Having found that the sentencing judge had erred in the way in which he dealt with the applicant’s co-operation, necessitating the applicant’s resentence, the Court took into account the effect of the applicant’s incarceration on her four year old child. He had suffered convulsions when separated from her, but subsequently had been allowed to live with her in prison. Tadgell JA (with whom Winneke P agreed) said:[12]
[11]R v Carmody (1998) 100 A Crim R 41.
[12]Ibid 45.
I cannot regard this as a case where exceptional circumstances have been shown. Nevertheless, this Court is in a position — as the learned sentencing judge necessarily was not — to learn something, with less than satisfactory material, of the actual impact that the applicant’s incarceration has had on her son. We cannot act as though exceptional circumstances have been shown, for they have not been shown. We can, however, show some mercy, tempering the wind to the shorn lamb. I think this is a case in which to do it: compare Miceli (1997) 94 A Crim R 327 [R v Miceli [1998] 4 VR 588]. A similar attitude has been taken in the English cases of Vaughan (1982) 4 Cr App R (S) 83 and Haleth (1982) 4 Cr App R (S) 178. In each of those cases an amendment of sentence was made on appeal so as to achieve the immediate release of a prisoner in order to allow a sick child or children to be cared for.
As Markovic has since made clear, however, there is no residual discretion to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional. The Court said:[13]
[13]Markovic, 591 [5].
We have concluded that the established common law position should be reaffirmed. Our reasons may be summarised as follows:
1. Reliance on family hardship — that is, hardship which imprisonment creates for persons other than the offender — is itself an appeal for mercy.
2. Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.
3. Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.
4. The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application.
The Court observed that: first, it is almost inevitable that imprisoning a person will have an adverse effect on the person’s dependants;[14] secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime; thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less; and, fourthly, to treat an offender who has needy dependants more leniently than one equally culpable co-offender who has none would defeat the appearance of justice and be patently unjust.[15] For these reasons, it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account.[16]
[14]Ibid 591 [6].
[15]Ibid 592 [7].
[16]Ibid.
In our opinion, the hardship which the applicant’s imprisonment created for her children is exceptional. As her counsel submitted in this Court, she had reordered her life, and had worked extremely hard with Child Protection to ensure the safety of her children and to promote their welfare by having them returned to her full-time care. Indeed, the evidence demonstrated that she was uniquely placed to manage her son’s needs. Unhappily, however, the ‘achievement’ marked by the reunification of the applicant’s children into her care was largely undone by her incarceration so soon after that reunification had taken place. Undoubtedly the applicant’s imprisonment had a very significant detrimental impact upon her children, particularly SJ. Unquestionably, the hardship flowing to the applicant’s family as a result of the judge returning her to prison was, as we have said, exceptional. In those circumstances, we regarded the plea for mercy in the applicant’s case as being irresistible.
A finding of exceptional family hardship is a question of judgment, based on the available facts. It is not itself a finding of fact. In our judgment, the exceptional hardship that it could reasonably have been anticipated would be inflicted upon her children by the applicant’s return to prison ought to have led the judge to impose a sentence that involved no further custodial component. In the peculiar circumstances of this case, the sentence imposed by the judge — involving, as it did, a further custodial component — was not reasonably open to him in the proper exercise of the sentencing discretion.
Although the applicant had some substantial matters on which she could rely in mitigation of sentence, we entertain little doubt that, were they to stand alone, the sentence imposed for these very serious offences would have been lenient. The impacts on her children, however, and on her family unit, that a return to prison would have entailed meant that a period of further imprisonment was wholly outside the range of sentencing options available to the judge.
For these reasons, at the conclusion of oral argument on 21 January 2022 we made orders granting leave to appeal against sentence and allowing the appeal. In sentencing afresh, we imposed a combination sentence of 111 days’ imprisonment — representing ‘time served’ — on both charges 1 and 2 and we confirmed the CCO (save that we amended it by removing the reference to charge 3). We declared that 111 days’ pre-sentence detention had been served pursuant to the sentence. On charge 3, we ordered that the applicant be convicted and discharged. Pursuant to s 6AAA of the Sentencing Act 1991, we declared that, but for her pleas of guilty, we would have sentenced the applicant to be imprisoned for three years, with a non-parole period of two years.
As we have endeavoured to convey, the circumstances of this case were extremely unique. Self-evidently, therefore, the sentence that we imposed in exercising the sentencing discretion anew should not in any way be regarded as providing some kind of benchmark sentence for the offence of aggravated burglary, particularly in a case where injury has been caused to an occupant of the burgled premises.
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