Director of Public Prosecutions v Dowling
[2023] ACTSC 49
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Dowling |
Citation: | [2023] ACTSC 49 |
Hearing Date(s): | 16 March 2023 |
DecisionDate: | 17 March 2023 |
Before: | Norrish AJ |
Decision: | See [89] |
Catchwords: . | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Robbery – Ride Motor Vehicle without Consent – Cooperation – Plea of Guilty – Drug Addiction – Manipulation by Co-Offender – Offender “at the crossroads” – Good prospects of Rehabilitation – Good Behaviour Order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 13, 35, 36, 37, 57 |
Cases Cited: | Hall v The Queen [2017] ACTCA 16 |
Parties: | Director of Public Prosecutions ( Crown) Taylee Elizabeth Dowling ( Offender) |
Representation: | Counsel S Janackovic ( Crown) S McLaughlin ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number(s): | SCC 321 of 2022 |
Norrish AJ
Introduction
Taylee Elizabeth Dowling, the offender, on 6 December 2022 pleaded guilty in the ACT Magistrates Court to a charge of aggravated robbery committed in Canberra, ACT on 5 August 2022. There is, in respect of this principal offence, a related offence to be taken into account of riding in a motor vehicle without the owner's consent committed on the same date in the ACT.
The offence of aggravated robbery carries a maximum penalty of 25 years imprisonment and/or a fine of $400,000. That maximum penalty serves as a yardstick against which to assess the objective seriousness of the offending, inviting comparison between the worst possible case and the case presented to the Court.
This is in the context of the consideration of other relevant matters, including subjective circumstances of the offender and other mitigating features. The related or additional offence that I am concerned with carries a maximum of five years imprisonment if dealt with discretely and/or a fine of $80,000.
Although the matter was mentioned a number of times in the Magistrates Court, ultimately, having regard to the relatively short time between the arrest of the offender and the entering of the plea of guilty, the offender being arrested approximately a week after the commission of the offence, the plea should be regarded as having been entered at the earliest opportunity in consideration of s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Act). The plea has substantial utilitarian value. The Crown, in its submissions, conceded that the offender was entitled to a “full discount” for the offence. That is, a discount of 25 per cent upon the otherwise appropriate sentence to be imposed.
The facts
The particulars of the offending in the charge that was originally laid were that the accused dishonestly appropriated property, namely a white iPhone, keys to a Kia Cerrato, as well as the motor vehicle itself belonging to the victim, with the intention of permanently depriving her of her property and at the time of depriving her of her property, threatened to use force against her with the intention of dishonestly appropriating the property, being in possession of an offensive weapon, namely a black handled serrated kitchen knife that was in the offender’s possession.
The evidentiary and other material available to the Court is the Crown bundle, including an agreed statement of facts, a pre-sentence report, committal documents and detailed Crown submissions for which I am very grateful.
The defence tendered a number of references, a document in the form of an email relating, as it turned out by reference to the oral evidence, to an act of domestic violence against the offender, a report relating to mental health counselling and a photograph of the offender displaying an injury to her left cheekbone caused by her then partner.
The offender and her mother gave evidence and were subject to the test of cross-examination. Counsel for the offender made detailed oral submissions and the Crown made supplementary oral submissions. All the evidentiary material and the submissions have been taken into account.
Whilst there is an agreed statement of facts setting out relevant matters in relation to both the principal offence and the additional offence, the detail of the agreed statement of facts is substantially enhanced or supplemented by the oral evidence of the offender who, in her evidence, specifically identifies her then boyfriend as the person who drove her to the scene of the robbery, provided her with the knife that she used and gave her the instruction to commit the crime that is the principal offence in this Court. That person, Michael Manning, has to this point not been charged because of insufficient evidence to identify him as the driver of the Mazda vehicle referred to in the facts as conveying the offender to the scene of the robbery.
The additional offence with which I am concerned, or the “scheduled offence” as the Crown referred to it, concerns the fact that he had access to his mother's motor vehicle in New South Wales for a period of time with her permission but that consent from his mother was revoked on 24 July 2022 when Mr Manning took the vehicle from his mother's residence without her permission. He was in possession of that motor vehicle, as I understand it, up until the time that the principal offence was committed in the ACT and drove the vehicle in the ACT with the accused as a passenger.
The evidence the offender gave concerned the circumstances of the offending and other matters pertinent to her personal circumstances. I accept her evidence as truthful. I indicated this to the Crown in the course of submissions and understood the Crown to state that my analysis of her evidence, in the general sense, was a fair appraisal.
The offender had been in a relationship with Mr Manning for a period of months before August 2022. As I understand the matter, although the precise details are not clear, he is a person with a far more extensive criminal history than this offender and is a person with a significant drug addiction problem.
Up until the time of the offending and after the offending, in fact, after the offender had been charged in relation to the current offences, the victim had been in a violent relationship with this man and had been the subject of a number of acts of domestic violence, including physical violence causing damage to her teeth, her cheekbone and her head as described shortly in the email forming part of the defence bundle.
There can be no doubt, having regard to the evidence of the offender, that she was pressured, or manipulated, into the commission of the offences, particularly the principal offence on 5 August 2022. She and Mr Manning had attracted a drug debt which could only be discharged, as she understood it, by the payment of the sum of $6,000 or the delivery of a motor vehicle as payment for that debt.
There was evidence before me of threats having been made against the two persons, the offender and her then partner, and threats that implicated her family. I am satisfied on the evidence it was Mr Manning who persuaded the offender to commit the offence of robbery after some discussion during which the offender, amongst other things, stated that, “she didn't want to go through with it”.
Whilst those discussions occurred over a couple of hours, nothing had been resolved until shortly before the commission of the offence. Those discussions occurring in the vicinity of where the robbery was to be committed. The particular victim was not chosen until almost the last moment. The victim was unknown to both the offender and Mr Manning.
The offender's account of being cajoled into the commission of the offence fell short of the defence of duress in the legal sense, but it explains some aspects of the offender's presentation described by the victim and set out in the agreed facts.
The victim parked her vehicle in the vicinity of the University of Canberra at about 11:33 am on Friday, 5 August 2022. She had many possessions in her car including clothing, shoes, cooking implements and other personal items because she was moving house the following day. She was standing outside of her vehicle holding her car keys, her laptop and her white iPhone with a case around it when she described being approached from behind and being grabbed “gently” by both arms. When she turned around, she saw the offender holding a black kitchen knife in the vicinity of her own chest, not the chest of the victim. The offender said to the victim in a “soft voice that sounded almost apologetic” words to the effect, “Don't scream. I'm sorry to have to do this”, telling the victim to give the car keys and mobile phone to her. Apparently, the victim was allowed to keep her laptop.
The victim saw a male, who in the agreed facts was not identified, sitting in the driver's seat of the Mazda vehicle nearby. It is clear from the agreed facts and the victim impact statement that the victim was greatly frightened by the presence of the knife and the threat she perceived of being struck by the Mazda. After taking the keys, the offender entered the Kia and drove off, followed by the other car. The victim ran off to make immediate complaint.
A police investigation followed and the next morning, Mr Manning was arrested in a suburb of Canberra in possession of the Mazda. That vehicle was reported stolen in New South Wales and was the subject of inquiries in that State. A forensic examination of the car several days later located a black handled kitchen knife similar to the description given by the victim and the victim's white iPhone missing its cover near the rear passenger seat. The offender's identity was established from correspondence addressed to her and medical documents relating to her.
The evidence shows that at the time of the commission of the principal offence, she was not disguised and not wearing gloves. This highlights the lack of sophistication of the principal offending behaviour.
The offender was arrested at a motel in the ACT on 12 August 2022 and subject to the usual forensic procedures. The Kia was located being driven by another person in the suburb of Evatt, ACT on 15 August 2022. Unfortunately for the victim, her personal belongings within the car were not recovered. The Kia was valued at approximately $13,500 and she valued the personal possessions within the car at over $1,000.
The offender on arrest gave limited information to the police as to the whereabouts of the property. The victim's impact statement sets out in considerable detail the effect upon her emotionally and financially of the robbery. The conduct of this offender has caused the victim significant financial stress and she had lost items of significant sentimental value. She had to wait for such compensation as was available from her insurance. I am not provided with any detail about what she was paid by the insurance company in respect of items stolen from her car.
The experience of being threatened still causes the victim considerable distress. She had a number of other parallel or related stressors such as steps she had to take to cancel her phone account, contact the insurance company, her bank and the University. There were disruptions to her education. She makes the important point, as have just mentioned, that she was violently threatened in a place where she should expect to be safe. She believes that she was deliberately targeted although I cannot find that this was so. Targeted she was, but not specifically because of any particular characteristic she had save for the fact that she was alone beside her car. She said that she has lost “any feelings of safety when in public”.
Pre-sentence report
A pre-sentence report was prepared by ACT Corrective Services dated 10 March 2023. The offender was raised in Gunning, NSW and identifies as an Aboriginal woman. The detail of that was not made known to me. Her parents separated when the family moved to Yass, NSW when she was approximately 15 years of age. She had been in a relationship, as I said, for some time with Mr Manning.
There is a current Protection Order in place concerning Mr Manning. She did not wish this to be so until about a month ago. But since the interviews with the ACT Corrective Services Officers, there has been a significant change in her relationship with Mr Manning because of an act or acts of physical violence against her. She had, at the time of the preparation of the report, indicated that she wished to maintain a relationship with him notwithstanding his clear negative influence upon her.
However, this situation has changed. The reporter preparing the pre-sentence report noted that while the relationship continued, there were significant dangers for the offender relapsing, both in terms of the use of drugs and possible future offending.
The offender has qualifications in horticulture, aged care and individual support but has been on Job Seeker benefits for the last five years. She has produced documentary evidence to the Court that in recent times she had employment in Goulburn, NSW, travelling there from Yass, working at a motel. But had to give that up because of the fact that Mr Manning has moved into that motel or hotel in Goulburn.
As a teenager and in her early twenties, she had been a regular user of recreational drugs including amphetamines, but her use of amphetamines had increased significantly because of her relationship with Mr Manning and because of his dependency upon those drugs. By mid 2022, she was heavily dependent upon amphetamines and was a heavy user up until her arrest.
After her arrest on 12 August 2022, having spent approximately a day in custody, she ceased use of the drug except for a one off relapse in November 2022. This is reported to ACT Corrective Services and was the subject of evidence by the offender. She claims that she is not a regular user of alcohol but some medical records from January 2023 suggest otherwise.
She has a history of treatment for mental health issues since 2014 and has received, at various times, counselling and prescribed medication for her mental health issues. She has had minimal contact with any ACT Mental Health services but that is to be explained largely because she is resident in New South Wales.
This mental health issue, as it is referred to in the pre-sentence report, has to be understood in the context of some evidence from the offender's mother which I will refer to shortly. The offender stated to the reporter that at the time of the offending, she was motivated by “threats against her and her family due to an outstanding drug debt”. She also claimed to be under the influence of illicit substances. She expressed disappointment to the reporter about herself and her offending behaviour, specifically her conduct towards the identified victim.
Her statements of contrition in the report are confirmed in her oral evidence and in the evidence of her mother who impressed me as a responsible parent. The assessment of the reporter is that the offender comes from a positive upbringing. The antisocial conduct of the offender commenced relatively late, bearing in mind the fact that the first criminal convictions for the offender occurred in 2020 in circumstances where the offender, being born in March 1997, would have been in her early twenties. She is assessed by Community Corrections as requiring a medium level of supervision and her immediate needs relate to counselling in relation to drug and alcohol consumption, mental health counselling and in relation to her association with Mr Manning.
This is, as I said earlier, in the context of the reporter believing that she was still in a relationship with him. Her dependence upon amphetamines is thought by the ACT Community Corrections to be a contributing factor to her offending. The primary risk factors and her risk of re-offending may “begin to reduce” if she was to dissociate herself from that man and the service said it can assist her in a range of ways.
Various dynamic risks were identified in the report which I have taken into account and I need not state here. If there is any supervision required, the Community Corrections state that it should only be for a period deemed necessary by the ACT Corrective Services and, in due course in the conditions I fix for the Good Behaviour Order, I will reflect that opinion in the report. She is said not to be suitable for community service work, nor eligible for an Intensive Correction Order having regard to living interstate and with unresolved dependency issues.
The offender’s case
The offender in her evidence, expressed genuine remorse for her conduct and ready identification, with the benefit of hindsight I hasten to say, with the loss of property suffered by the victim. The evidence of the offender's mother supports the offender's account of the character of the relationship with her former partner and the fact that in recent times, the relationship has finally come to an end with Mr Manning being the subject of various Protection Orders and the offender desiring to end the relationship. It is to be borne in mind, as the offender herself pointed out, that both before and particularly after the offending, she was not only the subject of physical abuse but also the subject of emotional manipulation.
It is clear from all the evidence, having regard to the issue of drug dependency, that her heavy drug use was very much dictated by her relationship with Mr Manning. Whilst it is correct that the offender acknowledged a relapse from abstaining from the use of illicit drugs in November 2022, and that the offender has not at this stage undertaken any specific drug rehabilitation programs or counselling, I am satisfied that she is sincere to avoid the use of drugs and does have the capacity to abstain, providing she does not revive the relationship with Mr Manning.
The Crown, quite properly in cross-examination of the offender and in submission, noted that there has to be concern at the risk of relapse being ever present. This is acknowledged for sentencing purposes here. But, in the circumstances where the offender's domestic situation is now more stable, residing with her family in Yass, obtaining some temporary employment and most particularly seeking more permanent employment in the NSW area, endeavouring to obtain what is described as an “Aboriginal traineeship” in a local mine, the offender has the means to maintain abstinence, notwithstanding the absence of any formal rehabilitation program or counselling at the present time. It is correct to note that opportunities for access to rehabilitation and counselling in Yass could be considered as less available than in the Australian Capital Territory. However, I do not believe that moving to the Australian Capital Territory to undertake such programs would provide greater stability than the offender has at the present time in her home town.
Submissions and consideration of the evidence
The Crown's written submissions identify a number of matters of principle and other relevant matters, including a schedule of comparative cases. In the context of principles enunciated in decisions such as Hall v The Queen [2017] ACTCA 16 and R v Nicholas; R v Palmer [2019] ACTCA 36 at [74], the Crown also identifies relevant considerations arising under s 33 of the Act, that is the statutory circumstances to be taken into account, and that the charge has an aggravation of being armed with a weapon although capable of inflicting serious bodily harm.
She referred to features of the offending such as the level of force, the apologetic approach but nonetheless posing a real threat of violence to the victim of the offence, the somewhat opportunistic characteristic of the offending as it is pointed out in the written submissions to be considered in the context of the evidence of the offender, the small amount of premeditation and limited planning. It is to be noted that the offence was committed in broad daylight at a University campus.
I note that the offender, as the Crown does, was under the influence of drugs and motivated to commit the offence due to the drug debt.
I also note by reference to the issue of planning, as it may be described, the factor now available to the Crown in the evidence of the offender, not available at the time of the preparation of the written submissions, that Mr Manning was the man who supplied the knife and drove the offender to the scene of the crime. The Crown points out that substantial property was taken and the possessions were personal and significant to the victim and were never recovered.
The Crown also points out, by reference to the victim impact statement, the harm suffered by the victim, particularly the immediate psychological response noted in the agreed facts and in the observations of the victim in the victim impact statement. These are expressed in my recitation of them as matters identified by the Crown that can be connected to particular matters required to be considered under s 33 of the Act.
So far as the scheduled offence is concerned, the Crown concedes that it was a low level of offending although it was an association with the vehicle used to facilitate the commission of the robbery. The Crown points out this is to be taken into account in the proper way in accordance with s 57 of the Act as discussed in R v Campbell [2010] ACTCA 20 at [46]-[50]. The Court there noted that when the section refers to “taking offences into account”, it means taking into account in the same way as other matters are taken into account for the purpose of sentence. It may, in some cases, have the result of increasing the sentence to be imposed or altering the nature of the sentence to be imposed. It may also be relevant to the assessment of the prospects of rehabilitation of the offender. The Court said at [50]:
What is clear .... is that the offender is not to be sentenced for the additional offence. There may be occasions when it is appropriate for a judge to refer to the effect that he gives to the additional offences taken into account in that way, but it is not obligated for him to do so.
It must be said that this was an unusual, but not unique, offence relating to the taking of a motor vehicle in the circumstance where the principal offender was related to the owner and, at various times, had previously had permission to take the car but had not the permission of the owner at the time when the offence was committed. It seems to me obvious that the offender, so far as her knowledge of the matter, even though she has pleaded guilty to the offence, would have had an understanding at least that the car in which she was being driven was in fact the car of the mother of her co-offender.
This additional offence is not a significant matter in this sentencing exercise, particularly noting the leading role of the partner in the taking and the use of the vehicle. To my mind, the offending in the additional offence is not of the character that warrants substantial alteration to the appropriate penalty for the principal offence, given the unusual features of its commission and what I would see to be the minor role of the offender played in the commission of that offence.
The Crown reminds the Court, and I am fully aware that this is so, that I am required to have regard to the purposes of sentencing arising under s 7 of the Act. I note, of course, in relation to s 7 and the specific purposes of sentencing contained in s 7(1). Section 7(2) observes:
To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.
In the circumstances of this matter, particularly having regard to the lack of prior significant criminal history, I do not believe there is a requirement to make an Order that recognises the need to “protect the community from the offender”. That particular purpose of sentence is not fully engaged, but the other purposes of sentences certainly are to varying degrees. Of course, general deterrence is always of significance in a crime of violence of this type.
This is emphasised in the decision of R v Henry [1999] NSWCCA 111 (Henry) to which I was referred in the course of submissions and particularly cited by the Crown in the enunciation of features of armed robberies that are common and justify, what was pronounced in Henry, to be a guideline for the sentencing of armed robbery offences in the State of New South Wales. In that respect, I refer to the matters identified in Henry at [162]-[170].
The weight of personal deterrence here is not as great as the weight to be given to general deterrence. Here, we have an offender who not only has little in the way of significant history but whose offending on this occasion can be seen in the context of particular circumstances that do not apply at the present time. We do not have an offender who has demonstrated no remorse or who has, by her conduct in relation to this offence, demonstrated what is sometimes described as a “continuing disobedience of the law” by the commission of the subject offence. Here promotion of her rehabilitation is an important matter alongside other purposes that I need not detail but that include the consideration of adequate punishment and making the offender accountable for her conduct.
I am required, as I pointed out earlier by the reference to the Crown's submissions, to take into account the relevant matters that arise under s 33 of the Act. The considerations that arise here coming back to the Crown's submissions and the matters conceded by Mr McLaughlin for the accused also include recognition of the circumstances of the victim, the effect on the victim of the offending, her losses both physical, psychological and material as set out in the victim impact statement and also those matters that can be identified particular to the offender.
A number of those matters here operate in mitigation of what would otherwise be the appropriate sentence. These include the apparent influence upon her of her relationship with the male offender, as I said, the absence of a history of continuing disobedience to the law and some positive steps the offender has taken since her arrest to address the issues underlying the commission of the offences, particularly the robbery offence.
Ultimately, it can be concluded that there is, in this matter, an absence of substantial planning by the offender. Of course, there was discussion about what was to be done as I have earlier indicated with the co-accused, emerging not from the agreed facts but by admissions made by the offender when she gave evidence.
I have had regard to a number of comparative cases helpfully provided by the Crown to ensure, if it can be achieved, consistency in sentencing for offences of a particular type. The schedule provided by the Crown refers to seven different decisions at first instance in the ACT Supreme Court between 2015 and 2022 and also a decision of the Court of Appeal of the ACT in 2016 confirming the decision of the sentencing judge given in 2015 relating, as I understood, to the judgments to aggravated robberies particularly concerned with the taking or attempted taking of motor vehicles in the presence of the owner.
Those cases are as follows: R v Campbell (No 2) [2022] ACTSC 370 per Refshauge AJ; R v Marshall [2022] ACTSC 102 per Berman AJ; R v Rezwani [2021] ACTSC 7 per Mossop J; R v Serena [2019] ACTSC 231 per Elkaim J; R v Collins [2018] ACTSC 204 and R v Collins (No 2) [2018] ACTSC 294 per Mossop J; R v Parlov [2018] ACTSC 248 per Burns J; R v Ridgeway [2018] ACTSC 8 per Elkaim J and Barrett v The Queen [2016] ACTCA 38 where Burns J was the Judge at first instance.
Usually in respect of all of those matters, there were other offences for sentence at the same time. Some included offences not committed at the same time as the aggravated robbery. Terms of imprisonment were imposed in all the cases. Some did not involve discounts for plea of guilty such as in the decisions of R v Marshall and R vCollins and a number of offenders had “significant”, “serious” or “lengthy” criminal histories such as in the decisions of R v Campbell (No 2), R v Marshall, R v Collins, R v Collins (No 2), R v Parlov and Barrettv The Queen.
I note that there were discounts given for pleas of guilty that did not attract the accepted maximum discount recognised for the utilitarian benefit of the plea of guilty. Such was the case in the decisions of R v Rezwani and R v Parlov. Further, in the case of Barrettv The Queen, the offender committed the offence while subject to conditional liberty. Mr Barrett was a person with a poor history of compliance with community based orders and had previously been sentenced to numerous sentences of imprisonment.
The ages of the various offenders dealt with range from 20 to 39 years of age. In the matter of R v Marshall, the knife used by the offender was held against the victim's throat. That offender, it should be pointed out, was the youngest of the sample group but at the time of the offending that offender was subject to two suspended sentences and, of course, received no discount, having regard to the fact that he went to trial by judge alone.
The range of sentences imposed in these cases without regard to discounts was between two years and three years and three months, six of the sentences imposed commencing at a point less than three years imprisonment. On the information available, this offender would appear to have a less significant criminal history than all of the offenders except for R v Rezwani and R v Serena. I note that the most significant sentence imposed of the range of sentences drawn to my attention in the matter of R v Collins involved an offender with a significant criminal history stealing a vehicle worth $110,000. He was sentenced in the absence of any contrition.
In considering these purportedly comparative sentences in the context of the Crown's proper observation of the need for consistency in sentencing, I am also mindful, as the Crown reminded me, of the observations of Refshauge J in R v TL (No 2) [2016] ACTSC 289 at [44].
Other evidence produced by the defence included a report confirming counselling by teleconference in respect of her mental health, a reference from a part-time employer as to the offender's character, who noted that the offending of which she was aware was out of character and that she believed the offender had “quite honestly remorsefully and courageously” indicated her criminal culpability to her and taken ownership of her current circumstances.
Another referee who had known the offender's family since 1983 speaks positively of the offender's mother as a responsible person to care for her daughter, the fact that the offender had never been exposed by her mother to abuse of alcohol or domestic violence or substance abuse. This referee speaks of the offender's compassion for others demonstrated by her past work with people in aged care and with people with disabilities for which she has some qualifications. This referee noted that the offender is a popular person, but must overcome lifestyle issues to return to the person she was before her relationship with Mr Manning. The mother of the offender noted in part in her evidence that with the severance of the relationship with Mr Manning, the offender had returned to the person she had been before that relationship had started.
The referee to which I previously referred also noted the full support of the offender from her family. As I said, this was evidenced by the offender's mother in her evidence and also in the written reference that she provided. That written reference is of wider scope than her oral evidence. The mother noted the changed person the offender was as a result of her relationship with Mr Manning. She said that her daughter was a person who was vulnerable to suggestion and expressed the opinion that her daughter, during the relationship was “not of normal frame of mind”. She noted the offender's regret expressed to her for her offending behaviour.
She importantly noted significant health issues the offender had as a teenager that required surgery over a period of some three years from when the offender was approximately 15 years of age and this led to treatment for anxiety and depression that required her to be placed on antidepressants. She confirmed the support that would continue to be given to the offender, being a home of “very high moral standards”. She had a positive belief, as she expressed it in her reference, that the offender would regain “her self-esteem, confidence, respect and compassion” that she had lost through the relationship with Mr Manning.
The oral submissions of the parties, to which I earlier referred, identified a number of matters arising from the evidence, some of which have already been addressed in my findings. There are a number of legal issues arising from both legislation and authorities, some of which again I have already dealt with. There was specific reference to legislation concerning the way in which evidence of co-operation with law enforcement authorities should be recognised in sentencing and in that particular regard, I was taken to specifically ss 36 and 37 of the Act.
Counsel for the accused submitted, and I accept, that the offender could be described as being at this stage “at the crossroads”. This is an expression that has been noted in a number of authorities, particularly I note, in the decision of Henry which is of such importance in sentencing for offences of this type. The expression, as it is understood, reflects the fact that an extension of leniency or the tailoring of a sentence to accommodate the personal circumstances of an offender may have the benefit for the offender and the community of leading the offender to reform or rehabilitation or otherwise deflect the offender from further offending: see R v Osenkowski (1982) 30 SASR 212 per King CJ at 213. This decision was specifically referred to in Henry.
Counsel for the accused went through the various criteria identified in Henry seeking to distinguish some of the features of this matter from those identified at [162] and [170] of that judgment and I need not repeat the matters raised against him although he importantly drew my attention to the fact which would not have been understood from the agreed facts that the reference to the holding of the knife against a chest was not against the chest of the victim but against the chest of the offender herself.
That having been said, of course, it was small comfort for the victim. Counsel for the accused noted the lack of sophistication in the offending and whilst he accepted the victim was vulnerable to an extent in the sense that she was by herself, the reality was the offence occurred in broad daylight, not in an isolated area. In that regard, although he did not specifically cite it, one may consider the facts in R vParlov to which I made earlier reference. He submitted that the offence was not committed against a vulnerable victim such as a cab driver driving at night or a retail employee alone at night in a service station. I am prepared to accept those particular submissions. I accept his submission that the offence can be regarded as below the “mid-range” objectively.
He also identified in the context of the evidence I have referred to above in respect of the mental health issues affecting the offender, the significance of the evidence of the mother and the treatment of the offender from the age of 15 years leading to surgery which has had a significant impact upon the offender.
There are two aspects of Henry of note in the context of the submissions that were made by the parties. It was acknowledged by the learned Chief Justice in Henry particularly at [10] that whilst general sentencing purposes, such as formulating a guideline for robbery offences, must be established, these principles are necessarily framed in general terms and the general principles must, of their nature, “be adjusted to the individual case if justice is to be achieved”. His Honour cited with approval the observations of Mahoney ACJ in a decision of R v Lattouf (Court of Criminal Appeal, 12 December 1996, unreported) at 7:
There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit serious crime. But there are other interests to which the sentencing process must have regard; these are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case.
The other matter that arises from Henry, particularly pertinent to this matter, is that whilst the Court in Henry (and other cases subsequently decided in the ACT) held that drug addiction was not a mitigating factor in sentencing for armed robbery matters, the Court of Criminal Appeal, through the judgment of Wood CJ at CL [at 273], noted with the fact that whilst drug addiction was not a mitigating factor, the fact that an offence is motivated by such need can be taken into account as a factor relevant to the objective criminality of the offence insofar as it may throw light upon either the impulsivity of the offence, the extent of planning or perhaps the state of mind or capacity of an offender to exercise judgement.
His Honour also said that drug addiction or committing offences in the context of the drug addiction may also be relevant in subjective circumstances as a matter that may impact upon the prospects of recidivism and rehabilitation. That dependency on drugs arose from circumstances beyond the control of the offender and, as I foreshadowed from some earlier remarks, that “special consideration must be given in a case of offenders judged to be at the crossroads” citing with approval the decision of R v Osonkowski. I was told in submission that ACT authority supported the proposition that offending obtain funds for drugs had equivalence with committing an offence to settle a drug debt.
Counsel for the offender also submitted by reference to the capacity of the offender to further abstain from the use of drugs her attempts at obtaining employment, the counselling she had received in relation to mental health issues and ultimately submitted that she had positive prospects of rehabilitation with which submission I agree, particularly now that I know that she severed her relationship with Mr Manning.
The offender impressed me both in examination and cross-examination by her frank evidence. She made substantial admissions against interests both in her evidence-in-chief and cross-examination and it confirmed her capacity to take positive steps to improve her life in the future.
The Crown's position in its oral submissions as to what the Court should do did not urge a particular direction but submitted that the Court should give serious consideration to the imposition of a full-time term of custody, bearing in mind the relapse of the accused last year and the fact that the truth is that by incarceration, the risk of relapse will diminish. The Crown, in this context, expressed concern that the offender had not taken more positive steps to address her drug dependency other than by abstinence. I have dealt with that aspect of the matter earlier.
The Crown noted the criminal history of the offender. As I have earlier indicated, the criminal convictions of the offender are not significant in this particular matter. In fact, having regard to the evidence the offender gave, one could view such convictions as she had as relatively minor and certainly far removed from the type of offences of dishonesty with which I am now concerned. The offender gave evidence about the findings of guilt in relation to the matter of assault and affray which suggests that those charges arose from her getting embroiled in the misconduct of others.
There is one feature of the matter that I need briefly to refer to and that is the issue of Bugmy principles, bearing in mind there has been reference to the “Aboriginality” of the offender. I note the decision of Bugmy v The Queen (2013) 249 CLR 571, particularly the observations of the majority at [42]-[45]. No specific attention was drawn by the parties in their submissions to this decision and having regard to the evidence in the case, there is no evidence of any features of the matter that reflect the disadvantage the subject of discussion in the majority judgment in the passages to which I referred. But the offender's aboriginality has been taken into account to the extent that it is relevant in these proceedings.
The leading of evidence from the Crown as to the identity of the male and the leading of evidence by the Crown of the willingness of the offender to give evidence against Mr Manning if required is a matter that needs to be taken into account in the context of sections 36 and 37 of the Act as I earlier said, having regard to the terms of those sections and to at least one authority which discusses ss 35A and 37 of the Act, but is of relevance. That is the decision of Ulrich v The Queen [2019] ACTCA 30 particularly at [24]-[26], [40]-[45], [53] and [98].
Notwithstanding the difficulties for the Court in the absence of some independent assessment of the value of the co-operation and the absence of other material relevant to consideration of the matters identified in s 36(3) of the Act, particularly bearing in mind I have no knowledge of what action is going to be taken by investigating authorities in relation to the evidence, I have determined that I should specifically acknowledge the fact of the offender's assistance to law enforcement authorities. It is made without the offer of benefit arising from her evidence. I note its lack of timeliness. But that may be explained to a considerable extent by the character of her relationship with the person I can describe as a “co-accused” and her own legal predicament.
In the circumstances, I propose to accord her a discount of 5 per cent upon what would otherwise be the appropriate sentence for her “cooperation” in conjunction with the discount of 25 per cent for her plea of guilty as I earlier outlined. I propose to express this as a combined discount of 30 per cent. Having regard to the particulars identified by the Crown in relation to the comparative cases and the range of sentences imposed for offences of like nature, this sentence I propose to impose is within the range identified in the comparative cases.
I have concluded thus the starting point of the sentence for the offence of aggravated robbery, taking into account the additional offence, should be two years six months imprisonment without the discounts which I will apply discretely.
It should be pointed out that evidence of the offender relating to her willingness to give evidence makes stronger her claim for consideration of some mitigating factors such as contrition, her prospects of rehabilitation, her insight into the effect of her actions upon the victim and, of course, taking responsibility for her conduct. These additional matters that flow from her willingness to co-operate with law enforcement officers are in themselves not matters amenable to a discrete discount.
Having concluded the term of imprisonment that a term of imprisonment must be imposed and having regard to the length of the term of imprisonment, taking into account all that has been put by the Crown and the defence and noting that the accused is ineligible for service of a term of imprisonment by way of an Intensive Correction Order (ICO), the calculated sentence, that is one year nine months, is to be suspended pursuant to s 12 of the Act with the requirement that the offender enter into a Good Behaviour Bond pursuant to s 13 of the Act.
So far as the suspension of a term of imprisonment, I note the judgment of Howie J in R v Zamagias [2002] NSWCCA 17, a judgment approved many times since by the NSW Court of Criminal Appeal, where his Honour discussed the significance of imposing a term of imprisonment. His Honour noted particularly at [31]-[32] that the imposition of a form of imprisonment whether it be suspended or not is to be regarded as a deterrent both in the general sense and a deterrent for the particular offender.
Thus, I concluded that the conditions of supervision will include conditions requiring the offender to engage with mental health counsellors and manage mental health issues by way of prescribed medication, undertake any appropriate program or counselling required to address her offending behaviour, seek assistance to obtain employment, abide by conditions of any protection orders and perform 100 hours community service work at the direction of the ACT Corrections or alternatively transferring the supervising of that responsibility to the New South Wales authority. If not practical to perform the work in New South Wales, she will be required to perform the work in the ACT. I will require her, as a condition of the bond, to report to ACT Corrective Services within seven days.
I have given consideration to the issue of reparation for payment to the victim of lost property that was in her car at the time of taking. In light of the information provided to me during the sentence proceedings, whilst the loss of that property is directly related to the conduct of the offender, I note she endeavoured to provide some information to investigating police that if pursued may have led to the recovery of that property but then I also note the victim has made claim upon her insurance in circumstances that are not known to me.
I am also aware of the fact that the offender does not have the financial resources at this point to be able to meet a reparation order of the magnitude that will be required in the case.
I note also that whilst I will require the offender to perform community service work, the ACT Corrections officers have indicated that she is not suitable for the performance of that work, being a resident of New South Wales. I am permitted to make this a condition of the bond, as I understand it, by operation of s 89(5) of the Act. That permits the making of such an order when it is not recommended by ACT Corrections.
Thus, the Orders I propose to make in this matter are as follows:
1. Taking into account the scheduled offence (ride motor vehicle without consent – CAN 2022/7898) a conviction is recorded for the principal offence.
2. In respect of the offence of aggravated robbery (CAN 2022/7896), with a commencement point of two years six months imprisonment, the offender is sentenced to one year nine months imprisonment commencing on 17 March 2023 expiring on 16 December 2024.
3. Pursuant to s 12 of the Crimes (Sentencing) Act 2005 the sentence of imprisonment will be suspended upon the entry into a Good Behaviour Order for a period of two years with core conditions pursuant to s 86 of the Crimes (Sentencing Administration) Act 2005 and the following additional conditions:
a. The offender be supervised by ACT Corrective Services Community Corrections for 12 months or such time as deemed appropriate by it, such supervision permitted to be transferred to New South Wales authorities.
b. The offender continue engagement with mental health counselling and management of mental health issues by way of prescribed medication.
c. The offender abide by the conditions of any protection orders.
d. The offender to undertake any treatment, counselling, and/or programs as directed by ACT Corrective Services that may address her offending behaviour.
e. The offender seek assistance to obtain employment.
f. The offender perform 100 hours of community service at the direction of ACT Corrective Services within 12 months, which obligation can be transferred to supervision by the relevant New South Wales authority.
g. The offender report to ACT Corrective Services with a copy of the good behaviour orders within seven days of 17 March 2023 (up until 5:00pm on Friday, 24 March 2023).
| I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish. Associate: Date: |
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