Director of Public Prosecutions v Hyde
[2024] ACTSC 44
•27 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Hyde |
Citation: | [2024] ACTSC 44 |
Hearing Date: | 26 February 2024 |
Decision Date: | 27 February 2024 |
Before: | Mossop J |
Decision: | See [55] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – forcible confinement, aggravated robbery and drug trafficking offences – joint commission – agreement to unlawfully confine victim and to extract anything of value – where offender had lent money, items and drugs to victim and sought repayment by force – offender motivated to address drug addiction – long-term interests of community served by rehabilitation – where offender has already spent 483 days in custody – sentence by way of intensive correction imposed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 34, 114C Crimes (Sentencing) Act 2005 (ACT), s 11(3) Criminal Code 2002 (ACT), ss 45A, 310, 603(7) Criminal Code Regulation 2005 (ACT), Sch 1, Pt 1.1 Drugs of Dependence Act 1989 (ACT), s 171(1) |
Cases Cited: | R v Hyde [2017] ACTSC 337 R v Hyde [2020] ACTSC 301 |
Parties: | Director of Public Prosecutions Natalie Hyde (Offender) |
Representation: | Counsel S Saikal-Skea ( DPP) S Lynch ( Offender) |
| Solicitors Director of Public Prosecutions Aboriginal Legal Service (NSW/ACT) ( Offender) | |
File Numbers: | SCC 343 of 2022 SCC 344 of 2022 SCC 199 of 2023 SCC 200 of 2023 |
MOSSOP J:
Introduction
These are sentencing proceedings in relation to Natalie Hyde.
In September 2023, Ms Hyde faced a jury trial in relation to allegations of aggravated robbery and forcible confinement. On 25 September 2023, a jury found her guilty of the following offences:
(a)Forcible confinement, contrary to s 34 of the Crimes Act 1900 (ACT) (CAN 7062/2022). The maximum penalty is 10 years’ imprisonment.
(b)Aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) (CAN 5705/2022). The maximum penalty is 2500 penalty units or 25 years’ imprisonment or both.
She has also pleaded guilty to a transfer charge of possessing a prohibited substance, contrary to s 171(1) of the Drugs of Dependence Act 1989 (ACT) (CAN 5707/2022). The maximum penalty is 50 penalty units or two years’ imprisonment or both. This related to a clip seal bag of methylamphetamine found in her possession on 12 June 2022.
On 22 August 2023, Ms Hyde pleaded guilty to the following offences which were committed on 13 December 2022:
(a)Trafficking in a controlled drug, contrary to s 603(7) of the Criminal Code 2002 (ACT) (CAN 12203/2022). The maximum penalty is 1000 penalty units or 10 years’ imprisonment or both.
(b)Possession of property suspected to be the proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT) (CAN 12204/2022). The maximum penalty is 200 penalty units or two years’ imprisonment or both.
Facts
Forcible confinement and aggravated robbery
The facts must be determined based on the evidence given at the trial in a manner which is consistent with the jury’s verdicts. The offender was a drug dealer. The victim of the offending will, in these reasons, be identified by the pseudonym Matthew. The offending arose out of an arrangement between Matthew and Ms Hyde, whereby Matthew had received money from Ms Hyde for food, fuel and drugs on credit. Ms Hyde had given Matthew a pair of keys to a house on Abrahams Crescent, where he was to rent a room and do some work installing security cameras.
In the evening of 8 June 2022, Ms Hyde became increasingly angry that Matthew had not yet repaid her the money and demanded that he “have the money to me within 30 minutes”. The two texted back and forth and ultimately determined that Matthew would return the keys to Abrahams Crescent as well as some of the money owed.
At around the same time, Ms Sibley and Matthew arranged to meet near Ms Hyde’s unit in Gordon so that Matthew could hand over the keys. At 12:19am, Ms Sibley told Matthew that she was “parked round the back”, and Matthew indicated that he was on his way. Matthew later arrived at the meeting place and asked Ms Sibley, “where are you”. He informed her that he would go to the house on Abrahams Crescent and parked in the driveway of that house.
Shortly after Matthew arrived, Ms Sibley pulled up in the driveway behind Matthew’s car, accompanied by Jack Sims. Mr Sims exited the car and opened the passenger side door of Matthew’s car. He took a seat on the passenger side and began yelling at Matthew, holding a small hammer. He demanded the keys to Abrahams Crescent and ordered Matthew to get inside the house. Ms Sibley approached the driver’s side of the car and removed the keys from the ignition. Mr Sims told Matthew to “get out or I’ll hit you with a hammer”. Ms Sibley located the keys to the house in the centre console and unlocked the front door.
Once inside the house, Mr Sims continued to yell at Matthew. At one point, Mr Sims swung the hammer near Matthew. Matthew asked Ms Sibley to call Ms Hyde to come and talk.
A short while later, Matthew observed another car arrive at the residence. He watched Ms Hyde and two males approach the residence. When Ms Hyde arrived, she joined Mr Sims in questioning Matthew about the money. She began hitting Matthew on the back of his head, saying “why are you lying to me”. One of the group members forced Matthew to drink from a glass containing a clear liquid. Matthew recalled feeling dizzy and experiencing difficulty speaking after drinking the contents. The liquid in the glass was later analysed by police and found to contain no traces of drugs. Members of the group questioned him about the money and whether he was an undercover police officer and hit him multiple times.
During this time, Ms Sibley had been outside looking through Matthew’s car. She located some paperwork relating to family violence proceedings that Matthew and his ex-wife were involved with and came inside to question Matthew about it.
Matthew’s phone was taken from him, and he gave up the pin code to the phone after being threatened with a hammer. Members of the group went through his phone. At around 1:43am, there were multiple security code messages from myGov, suggesting that somebody was trying to access Matthew’s myGov account. Matthew recalls the group members tried to access his banking applications, Centrelink and myGov.
Finally, Ms Hyde told the other males to “stop hitting him”. Matthew asked to go to the toilet and was allowed to do so. Once in the toilet, he locked the door, opened the window and kicked out the fly screen. He then jumped out of the window and ran away from the house, seeking help from a neighbour who called the police.
Prior to arriving at the Abrahams Crescent house, Ms Sibley and Mr Sims were aware that Matthew owed Ms Hyde money and that she was frustrated that Matthew had not repaid her. The evidence establishes that there was an agreement, for the purposes of s 45A of the Criminal Code, between the three to unlawfully confine Matthew by threatening him and preventing him from leaving at his own will. Further, at least by the time Ms Hyde arrived, there was an agreement that they would extract anything of value from Matthew. That included the $50 that was taken from him and was consistent with Ms Sibley continuing the search of Matthew’s car.
Transfer charge – possession of a prohibited substance
Police executed a search warrant at the offender’s house on 12 June 2022. During the execution of the search warrant, police found a clear clip seal bag of methylamphetamine in the offender’s black handbag. There are no agreed facts as to the purity of the methylamphetamine or its weight.
Traffic in controlled drugs and possession of property suspected to be proceeds of crime
The prosecution tendered an agreed Statement of Facts in relation to these offences. The agreed facts were as follows.
On 13 December 2022, police executed a search warrant at premises in Conder. Ms Hyde was present at the location, alongside five other people. At the time of police entry, Ms Hyde was holding some freezer bags. A clip seal bag containing a white crystalline substance, electronic scales, clip seal bags and an ice pipe were on the coffee table.
During the execution of the search warrant, police located and seized the following items:
(a)a bayonet;
(b)digital scales;
(c)an Optus mobile phone belonging to Ms Hyde;
(d)$10,740 cash;
(e)approximately 155 g of methylamphetamine;
(f)a vacuum sealer device; and
(g)a shotgun shell.
Police conducted a search of Ms Hyde’s mobile phone, which contained encrypted electronic messages relating to drug trafficking and images of drugs.
Police made a recording during the execution of the search warrant, in which Ms Hyde made the following admissions:
(a)she had $10,500 cash in her bedside table;
(b)she dealt drugs to supply her habit; and
(c)she was residing at the address the subject of the search warrant and at another address located in Gordon.
Police observed belongings at the location which supported her statement that she lived at the address, and formed the belief that she did in fact reside there.
Ms Hyde was later arrested for drug trafficking and breach of bail.
The trafficking charge arises from the 155 g of methylamphetamine and the possession of the proceeds of crime charge relates to the $10,740.
Objective seriousness
In assessing the objective seriousness of an unlawful confinement, it is relevant to take into account the length of the unlawful confinement, the extent to which it was premeditated or planned, the way in which it was effected, the purpose of it, the conditions under which the victim was confined, the extent of fear instilled and the injuries inflicted.
In the present case, the unlawful confinement lasted for approximately one hour. It involved some violence, but mainly the express or implied threat of violence. Limited injuries were inflicted upon the victim, although at one stage he feared for his life. The purpose was the extraction of money or property from the victim. There was some planning, sufficient to give rise to an agreement that founds the charge based on joint commission.
The aggravated robbery relates to the taking of the $50. It was aggravated because it was in company and Mr Sims had a weapon. It is in the mid-range of objective seriousness for an aggravated robbery and the circumstances of aggravation largely overlap with the forcible confinement.
In relation to the trafficking of methylamphetamine, the amount found was 155 g. The trafficable quantity is 6 g and the commercial quantity is 3 kg: Criminal Code Regulation 2005 (ACT) Sch 1 Pt 1.1. The offender may be characterised as a user-dealer. It is in the mid-range of objective seriousness.
So far as the possession of the proceeds of crime is concerned, the money was a moderate amount in the context of dealing in methylamphetamine. It is at the low end of the mid-range of objective seriousness for this offence.
Because there was no agreement or evidence as to the amount of methylamphetamine found in the offender’s handbag or its purity, it is only possible to conclude that there was a nominal amount of the drug. It is therefore offending at the low-end of objective seriousness for this offence.
Subjective circumstances
The subjective circumstances of the offender are disclosed in a pre-sentence report, a psychologist’s report of Ms Vanessa Edwige, various letters, including one from the offender herself, and various certificates relating to courses completed by the offender while in detention.
Ms Hyde is 45 years old. She is the youngest of two children born to her parents. Her father is Aboriginal, her mother is not. Her childhood was marred by domestic violence. Her parents separated when she was 10 years old. She continued to live with her mother and her mother’s new partner. She continues to have contact with her mother, but only has limited contact with her brother. Her father re-partnered and had further children and she felt abandoned by him.
She has no children. She has had two long-term relationships. One of her partners died unexpectedly of a heart condition. The other relationship broke down when she was 29, following her partner’s incarceration.
She lives in public housing. She is currently in receipt of a disability support pension and has been unemployed for the past 10 years. She worked as a dog groomer from the ages of 17 to 30. She worked briefly as a cleaner and then as a dog groomer again for another two years. When released from custody, she would like to go back to dog grooming.
She ceased using alcohol 10 years ago. She has been abstinent from cannabis for 20 years. Her problematic use of methylamphetamine commenced after her second relationship breakdown when she was around 29 years old. At the peak of her use, she used 1.5 g per day, including intravenously. Prior to her most recent arrest, she was using methylamphetamine daily.
She had previously tried to address her illicit drug use. She attended the Canberra Recovery Services residential program in November 2019. She was discharged from that in February 2020, but then readmitted in March 2020, and remained in the program until it was completed, a total of 11 months. Unfortunately, she slipped back into her addiction and recommenced selling drugs. She identified her main risk factors for continuing use as loneliness, boredom and antisocial peers. Prior to her arrest in December 2022, she was booked in for a further period of rehabilitation with Canberra Recovery Services.
She has taken steps to engage with rehabilitation services while in prison and has been offered a place in the Arcadia House 12-week residential program. She then has a place in the Ngunnawal Bush Healing Farm day program after that.
In relation to the trafficable quantity of drugs offence, she told the author of the pre‑sentence report that she had been holding onto the substances for an associate and that, upon reflection, she was being used as a scapegoat so that the owner could keep themselves safe from prosecution.
The author of the pre-sentence report was of the opinion that she appeared to be genuinely motivated to address her criminogenic risk factors and lead a prosocial lifestyle with the aid of culturally appropriate supports and alcohol and other drug treatment. She was assessed as suitable for a community service work condition and suitable for an intensive correction order. Ms Edwige identified that she presented as an intelligent but anxious person.
She is diagnosed by Ms Edwige with Stimulant Use Disorder in early remission and Persistent Depressive Disorder with Anxious Distress.
The various letters indicate that, in addition to the availability of residential rehabilitation and the subsequent day program, there are other supports available to her upon her release from custody. She appears to have made the most of her time in custody, being employed in the bakery and completing a range of different courses.
Criminal history
The offender has a criminal history in New South Wales and the Australian Capital Territory. In New South Wales, there are minor driving and drug possession offences. In the Australian Capital Territory, there are some driving offences in 1999 and then in 2009. In 2017, there is an offence of driving with prescribed drugs in her oral fluid. I sentenced her in 2017 for trafficking in a controlled drug other than cannabis, giving her a sentence of 12 months which was suspended after six months’ imprisonment: R v Hyde [2017] ACTSC 337. She was sentenced in 2018 for a series of drug possession offences. In 2020, she was convicted of trafficking in a controlled drug other than cannabis and sentenced to 13 months which, along with other sentences, led to a head sentence of 16 months’ imprisonment: R v Hyde [2020] ACTSC 301.
Plea of guilty
The offender pleaded guilty to the possession and proceeds of crime charges in the Magistrates Court. Pleas were indicated six days after the offender was first charged and confirmed many months later. There were multiple adjournments during this period, but no brief of evidence was prepared. In those circumstances, a discount of 25 percent on each charge is appropriate.
The parties could not identify the date when the offender pleaded guilty to the possession charge, other than that it was after transfer to the Supreme Court. I have taken that guilty plea into account.
[Heading redacted]
[Paragraphs 44 to 47 redacted]
Time in custody
Prior to today, the offender has been in custody from 11 June until 22 July 2022 (42 days) and from 13 December 2022 until 26 February 2024 (441 days). That gives a total of 483 days and hence a backdate date of 1 November 2022.
It is appropriate that the time in custody be taken into account by way of backdating the sentences imposed.
Consideration
While the offender does have a substantial history of drug use and trafficking, she appears to be at an age and stage where she is motivated to get over her drug addiction and avoid antisocial conduct in the future. She has clearly been so motivated and made attempts at rehabilitation in the past, and yet slipped back into drug use and dealing. The other offending that she is to be sentenced for arose out of that drug dealing environment. It is very clear that the long-term interests of the community will be served by successful rehabilitation of the offender. There is a significant difference between the position at the time of the earlier offending and her current circumstances.
Each of the purposes of sentencing is relevant to the sentences to be imposed. Specific deterrence is obviously significant having regard to her previous criminal history. General deterrence is obviously significant because of the need to deter both drug dealing and unlawful violence and theft relating to such activities. The conduct must be denounced. The harm done to the victim must be recognised. The desirability of rehabilitation of the offender remains an important consideration.
Each of the offences, except the possession charge, considered in light of the offender’s subjective circumstances, requires a custodial sentence. The sentences and extent of cumulation will be as follows.
Charge Sentence Cumulation Forcible confinement 30 months 30 Aggravated robbery 24 months 3 Trafficking 13 months 6 Possess proceeds of crime 5 months 1 40
The possession charge may be dealt with by a modest fine.
The real issue is how these sentences are to be served. She has already served a substantial period in custody. Given her history of drug use, motivation to deal with that issue and the supports that are available to her, I consider that service of the custodial sentences by intensive correction is an appropriate disposition. I have had regard to the matters referred to in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT) in relation to the sentence on the charge of forcible confinement.
Orders
For those reasons, the orders of the Court are:
1.On the charge of forcible confinement (CAN 7062/2022), the offender is convicted and sentenced to 30 months’ imprisonment commencing on 1 November 2022 and ending on 30 April 2025.
2.On the charge of aggravated robbery (CAN 5705/2022), the offender is convicted and sentenced to imprisonment for 24 months commencing on 31 July 2023 ending on 30 July 2025.
3.On the charge of possessing a prohibited substance (CAN 5707/2022), the offender is convicted and fined $200 to be paid within six months.
4.On the charge of trafficking in a controlled drug (CAN 12203/2022), the offender is convicted and sentenced to imprisonment for 13 months commencing on 31 December 2024 and ending on 30 January 2026.
5.On the charge of possessing property suspected to be the proceeds of crime (CAN 12204/2022), the offender is convicted and sentenced to imprisonment for five months commencing on 29 September 2025 and ending on 28 February 2026.
6.Each of the sentences of imprisonment is to be served by intensive correction in the community.
7.Note that the offender has spent 483 days in custody prior to the sentence date.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 14 March 2024 |
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