Director of Public Prosecutions v Loiterton
[2025] ACTSC 59
•27 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Loiterton |
Citation: | [2025] ACTSC 59 |
Hearing Date: | 30 January 2025 |
Decision Date: | 27 February 2025 |
Before: | Christensen AJ |
Decision: | See [90] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – drive at police officer – striking police officer causing injury and harm – particulars of offence – reckless – prevalence and general deterrence – imprisonment only appropriate penalty – remarkable rehabilitative progress – depth of genuine remorse and insight – two wrongs do not make a right – suspended sentence with community service imposed |
Legislation Cited: | Crimes Act 1900 (ACT) s 29A |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 |
Texts Cited: | Explanatory Statement, Crimes (Protection of Police, Firefighters and Paramedics) Amendment Bill 2019 |
Parties: | Director of Public Prosecutions ( Crown) Felicity Loiterton ( Offender) |
Representation: | Counsel B Chifuntwe ( Crown) K Lee ( Offender) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Numbers: | SCC 55, 56, 181 of 2024 |
CHRISTENSEN AJ:
Introduction
1․Felicity Loiterton is to be sentenced for an offence of driving a motor vehicle at police (CAN 2023/6986). The offence is contrary to s 29A of the Crimes Act1900 (ACT) (Crimes Act) and carries a maximum penalty of 15 years imprisonment.
2․Two additional offences are to be taken into account pursuant to part 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). These are two offences of possessing drugs of dependency contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) (CAN 2023/5164, CAN 2023/5165). These offences carry a maximum penalty of one penalty unit ($160.00). This offending is charged as having occurred between 9 July 2023 to 15 July 2023.
3․There is no dispute that the offending conduct was serious and warrants the imposition of imprisonment. On behalf of the offender, it was submitted that, having regard to Ms Loiterton’s progress with rehabilitation, the sentencing purposes are capable of being fulfilled by way of imprisonment served in the community. Ms Loiterton was assessed for suitability of both an intensive correction order and a drug and alcohol treatment order (treatment order).
The offending
4․On Monday 10 July 2023 at or about 4:15pm, a Leading Senior Constable of police, who is the victim the subject of the charge (“the police officer”) was on patrol in an unmarked Subaru Outback Wagon bearing ACT registration plates. The police officer was wearing his full police winter uniform and accoutrements.
5․While on patrol, the police officer stopped his vehicle at a red traffic light at Edinburgh Avenue and Marcus Clark Street in the suburb of New Acton. At this time, Ms Loiterton was driving a red Audi A4 station wagon bearing ACT registration plates (the Audi). Ms Loiterton was driving with a flat tyre. She turned right from Edinburgh Avenue onto Marcus Clarke Street.
6․The police officer drove behind the Audi and activated his police vehicle lights and sirens in an attempt to conduct a traffic stop. The offender did not stop. The offender drove the Audi onto Ellery Crescent and approached a cul-de-sac loop. This loop turns back onto Ellery Crescent.
7․The police officer followed the Audi onto Ellery Crescent and blocked the offender from driving out the other side of the loop. The police officer got out of his vehicle. Ms Loiterton stopped her vehicle. The police officer approached. Ms Loiterton then began to slowly drive towards the police officer. The police officer put his left arm out towards Ms Loiterton, indicating for her to stop her vehicle. He yelled “stop” in her direction.
8․Ms Loiterton stopped momentarily. She then began to drive slowly towards the police officer. He yelled out again, “stop there”. Ms Loiterton then stopped the Audi, however, did not turn off the engine of the vehicle. The police officer then yelled twice “turn the car off” and “get out of the car”.
9․Ms Loiterton then reversed the Audi back up the cul-de-sac, mounting a curb. She then accelerated forwards. The police officer took a few steps to his right then put his arm forwards. Ms Loiterton drove the Audi forward and slightly to her right, back up the part of the curb. As this occurred, the police officer was struck on the leg by the front passenger side of the front and bonnet of the Audi and was knocked onto the ground. Ms Loiterton continued to accelerate away at speed.
10․The police officer felt pain in his right knee, the back of his left hand, wrist area, and lower back. He was later assessed by ACT Ambulance Services and went to the Canberra Hospital. He was discharged the following day, at about 1:30am.
11․On 13 July 2023, at or about 9:30am, Ms Loiterton handed herself in to police. Police directed her to identify the driver of the Audi and she answered by saying “I was the driver”. She was then taken to the Watch House.
12․The Audi was then searched by police. Police located a cream-coloured plastic container in the lower storage area of the driver’s side door. Forensic examinations linked trace DNA from the interior of the container to Ms Loiterton.
13․Inside the container were five small clip seal bags containing substances. Three of the bags contained white powder, which was found to weigh in total 5.446 grams, with 81.5% of the powder being cocaine. The contents of the two other bags was a crystalline substance that weighed in total 5.160 grams, with 78.7% of the substance detected being methylamphetamine. The possession of these drugs is to be taken into account, and I will do so in the manner described by Mossop J in DPP v Vincent (No 2) [2023] ACTSC 379 at [64] and by Loukas-Karlsson J in R v Gatica [2020] ACTSC 22 at [64]. It is clear that these offences are inherently part of the offending in the sense that at this time, Ms Loiterton was deeply involved in substance use, and all of the offending engaged in related to this.
14․Ms Loiterton was remanded in custody following her arrest on 13 July 2023. This was solely in relation to the driving offence. She was granted bail on 18 August 2023. A total period of 36 days has been spent in custody.
Effect on the victim
15․There has, understandably, been a significant impact on the police officer who Ms Loiterton struck. The effects on the officer have extended to impacts on his family, and, I would expect, also on other serving police who had to respond to this incident.
16․The police officer read to the Court a victim impact statement which was of assistance in understanding the depth of the effects from the offending. He experienced physical impacts, being soft tissue injuries, grazing, and bruising. He experienced financial impacts from his medical treatment. Most significantly, he has experienced psychological impacts.
17․The police officer described the anguish he has experienced from having only intended to assist the driver with what was an unsafe vehicle. He considers himself, again, understandably, extremely lucky that more severe injuries were not caused. He describes the vulnerable position he was in, and the response he had to take to avoid further harm. He fears behaviour of this type becoming common place as “absolutely terrifying”.
18․There have also been impacts on his family. The offending occurred on his young daughter’s birthday, and it is something that she has gone on to remember. His daughter’s behaviour has been impacted and she has engaged with counselling.
19․This last aspect highlights that not only do police officers perform a vital role in protecting the community, but the risk they put themselves in when doing so has the potential to not only harm the individual officers involved, but also their own families. Such consequences are unacceptable, are denounced by the community, and warrant that accountability has prominence in the sentencing exercise.
The driving offence
20․Before moving on to the assessment of the nature and circumstances of the offending, it is relevant to consider the offence provision. It was inserted into the Crimes Act with effect on 10 June 2020. Section 29A of the Crimes Act provides:
29A Driving motor vehicle at police
(1)A person commits an offence if—
(a)the person drives a motor vehicle near or at a police officer; and
(b)the person knows, or is reckless about whether, the police officer is a police officer; and
(c)the police officer is exercising a function given to the officer as a police officer; and
(d)the person—
(i) intends to risk the police officer’s safety by that conduct; or
(ii) is reckless about risking the police officer’s safety by that conduct.
Maximum penalty: imprisonment for 15 years.
(2)Strict liability applies to subsection (1) (c).
(3)For subsection (1) (b), it is presumed, unless there is evidence to the contrary, that the defendant knew that the police officer was a police officer if—
(a)the officer identified themselves as a police officer; or
(b)the officer was inside a vehicle that stated “police” on the outside of the vehicle; or
(c)the officer was inside a vehicle and it was reasonably apparent that the vehicle was being used, or was ordinarily used, by a police officer in the exercise of the officer’s functions; or
(d)the fact that the police officer was a police officer was reasonably apparent, having regard to all of the circumstances, including the conduct and manner of the police officer.
(4)The defendant has an evidential burden in relation to evidence to the contrary mentioned in subsection (3).
(5)A person may be guilty of an offence against this section regardless of whether the person’s driving injured the police officer.
21․It is next relevant to consider the charge as indicted:
On 10 July 2023 at Canberra in the Australian Capital Territory, Felicity Marie Loiterton drove a motor vehicle near or at a police officer, who was exercising a function given to him as a police officer, and Felicity Marie Loiterton knew or was reckless about whether [the police officer] was a police officer, and intended to or was reckless about risking the safety of [the police officer].
22․As is apparent, the prosecution did not particularise the precise elements relied upon in the charge, but rather relied on the elements as provided by the offence provision. There is significance to what particulars of the charge are relied upon as it informs the assessment of the nature and circumstances of the offending. The offence provision provides varying forms that can establish the offence, and determining the objective seriousness of the offending requires, firstly, clarity as to what particular conduct, with reference to the offence provision, is said to have occurred.
23․At the sentence hearing, the prosecution submitted that the offending involved driving a motor vehicle near or at the police officer, such that it struck him, and that the offender intended to risk the police officer’s safety by that conduct. On behalf of the offender, it was submitted that the plea of guilty was entered on a basis of recklessness, and that intention to risk the safety of the police officer could not be established beyond reasonable doubt. Recklessness for the purposes of this section is as defined in s 20 of the Criminal Code 2002 (ACT):
20 Recklessness
(1)A person is reckless in relation to a result if—
(a)the person is aware of a substantial risk that the result will happen; and
(b)having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(2)A person is reckless in relation to a circumstance if—
(a)the person is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(3)The question whether taking a risk is unjustifiable is a question of fact.
(4)If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
24․I have had the opportunity to view the closed circuit television (CCTV) footage of the offending conduct. I am not satisfied that the conduct of Ms Loiterton was done with an intention to risk the police officer’s safety. It was conduct that certainly did risk his safety, indeed it actually caused harm. But I am not satisfied that Ms Loiterton’s conduct was done with an intention to do that.
25․The footage shows a manoeuvre by the offender that involved reversing, and then as she accelerated forward, a slight turn that was not aimed directly at the police officer.
26․In reaching this conclusion, I have given careful consideration to the multiple requests by the police officer signalling for the offender to stop the vehicle. This was by both vocal command and by physical actions. However, these actions occurred prior to the reversing action by the offender.
27․I have also had regard to the information tendered on sentence on behalf of the offender as to her explanation for the offending, as contained in a psychological assessment by Ms Vanessa Quigley (see further below at [59]-[61]). I accept this is an unsworn account, but it was not challenged, and indeed, the prosecution has sought that the Court make findings as to this issue without a resort to evidence being called at the sentence hearing.
28․Ms Loiterton provides that she engaged in the conduct as when the police lights “went on … I panicked”. She was worried she was going to be drug tested, she knew she was on a good behaviour order, and she became “terrified and just wanted to get away”. She left Canberra for three days, but then returned to hand herself in.
29․For those reasons, I find that the offending occurred with the offender being reckless about risking the officer’s safety.
30․I otherwise observe that, as is apparent from the section, the offence is committed simply by driving the vehicle “near or at” a police officer. In this matter it is unnecessary to resolve whether the driving here was ‘near’ or ‘at’ the police officer, although I would think it must be accepted as being ‘at’ given what is accepted as having occurred from the driving. Plainly, if it was driving that was only ‘near’ the officer, he would not have been struck. In any event, irrespective of what it involved in this regard, of most relevance is that the driving struck the police officer.
31․No submission was made that taking into account the striking of the officer, and the physical harm caused, offends R v De Simoni (1981) 147 CLR 383 at 389, and accordingly I will accept this aspect as relevant to the assessment of the offence. Offending conduct of this type that results in striking a police officer is clearly a most serious example of this offence. The nature and seriousness of the injury here was, fortunately, not the most serious, but it required hospital attendance, multiple planes of injury, and inevitably discomfort for the victim.
32․The parties informed the Court that there are no previous authorities in this jurisdiction that have considered this form of this offence. That is, the only previous offending contrary to s 29A has been simply ‘near or at’ the police officer, but not struck the officer, at least in a deliberate sense: DPP v Druett [2024] ACTSC 56; DPP v Coulter [2024] ACTSC 262; R v Rowlands (No 2); DPP v Rowlands [2024] ACTSC 143; DPP v Clarke (No 2) [2023] ACTSC 261; DPP v Allred [2023] ACTSC 184; R v Seymour [2021] ACTSC 152 (R v Seymour); R v Crawford [2022] ACTSC 166.
33․I have found it of relevance to consider the Explanatory Statement to the Crimes (Protection of Police, Firefighters and Paramedics) Amendment Bill 2019 (Explanatory Statement) as to the legislative reasoning for the introduction of this section. The Explanatory Statement includes that:
The policy objectives of the Bill are to:
·ensure that the special occupational vulnerability of police officers, firefighters and paramedics as providers of important emergency services is appropriately recognized through ACT criminal laws; and
·support the safety and protection of police officers while executing their duties on ACT roads.
In summary, the Bill will amend the Crimes Act 1900 to:
…
b) Create a new offence for intentionally or recklessly driving at a police officer and exposing a police officer to a risk to safety, with a maximum penalty of 15 years imprisonment.
…
Specific offences against driving at police officers and their vehicles recognises the special vulnerability these workers experience while executing their duties on our roads. These offences aim to reflect the serious criminality of dangerous driving activity targeting police officers and police vehicles and seek to deter others from engaging in this type of violent conduct.
34․It is clear that the legislature was responding to concerns as to the prevalence of this type of conduct, and the significant risk it is capable of causing to police officers. The legislature applied a high maximum penalty to such conduct, indicative of the seriousness with which such offending is to be regarded. As the prosecution submitted, given the apparent prevalence of this type of offending in the ACT, general deterrence is a salient sentencing principle. Potential offenders in charge of a motor vehicle that drive in a manner resulting in an impact on a police officer must understand that they will be met with stern penalties.
Nature and circumstances of the offending
35․As referenced above, at the sentence hearing CCTV footage of the conduct was played. The offending was also explained with reference to photographs from this footage. These images have enabled a depth of understanding of the nature and circumstances of the offending.
36․In accordance with the assessment of the offence as set out above, and the relevant factors that inform the assessment as set out in R v Seymour at
[35]-[37], this was a serious example of the offence. The police officer was struck, and physical injuries were caused. It was a relatively momentary act that led to the striking of the officer, but of sufficient force to cause the officer to fall to the ground. It was also of sufficient force, in the circumstances of how the strike happened, for the offender to have realised what had occurred. There was a callous disregard for the safety of the police officer. He was in a vulnerable position, on his own, on foot, and close to the vehicle seemingly in full view of the offender at the time she drove the vehicle in such a way that the officer was struck.37․The offender was also afforded multiple opportunities to not engage in the conduct that she did. As observed above (at [8]), the police officer warned her multiple times to stop. However, the extent to which this informs the moral culpability of the offender is to be considered with reference to what is considered below as to the offender’s moral culpability. It was also, as found, conduct that was done recklessly, rather than with an intention to risk the officer’s safety.
38․Further to the assessment of the offence outlined above, and the authorities that have considered such an offence in this jurisdiction, it appears to me that this is, to date, the most serious example of this type of offence. While other examples of the driving have involved more deliberate and sustained conduct, posing a higher magnitude of risk, in no other examples has an officer been struck. This is not to say that each case must not be considered with reference to its own facts and circumstances, the sentencing exercise not being one of comparison. It is to say, when considering the appropriate penalty with current sentencing practice in mind, and the authorities available, this is a most serious example of the offence.
39․Nevertheless, it does lack features of aggravation that arise in other examples of this offence. There was no damage caused to a police vehicle, and it was not driving in a busy locality or similar. There was also not a police pursuit in a typical sense, but it was conduct with the same motivation of a typical police pursuit with the distinction here being that the offending conduct occurred at the start of what have may very well have become a police pursuit. In this sense, the offending was, in accordance with the factors that inform the assessment, done with an intention to impede arrest, or at least engagement with police.
40․Finally, with reference to the factors that inform the assessment of the offence, I observe that, despite what the footage appears to show, the prosecution did not assert that there was a passenger in the vehicle at the time of the offence.
41․Having regard to all of these factors, there can be little doubt that the only appropriate penalty is one of imprisonment: s 10 Sentencing Act.
Plea of guilty
42․Ms Loiterton initially pleaded not guilty, and the matter was committed for trial in the Supreme Court. A plea of guilty was entered to the indictable charge after a criminal case conference. As provided by the Court of Appeal, a reduction in the sentence for such a plea of guilty is ordinarily at least 15 per cent: Blundell v The Queen [2019] ACTCA 34 at [14].
43․The prosecution made no submission as to the appropriate reduction in percentage terms in this matter. On behalf of the offender, it was submitted that a reduction at the higher end of the typical range following a criminal case conference is warranted, that is 20 per cent, given the matter had not yet been set for trial. I am not persuaded such a reduction is warranted for a plea of guilty at the stage it was entered. Taking into account the utilitarian value of the plea of guilty, I consider a reduction of 15 per cent for the plea of guilty is appropriate.
Assistance to authorities
44․On behalf of Ms Loiterton, it was submitted that a further reduction in the penalty was warranted due to her assistance to the police. This was with reference to Ms Loiterton having handed herself in to police three days after the offending. The prosecution accepted that there was a level of assistance. Neither party quantified what reduction should be afforded. If such a reduction was to apply, it seems to me to be a form of assistance that enlivens for consideration a reduction pursuant to s 36 of the Sentencing Act.
45․This section provides the Court with a discretion to impose a lesser penalty on the offender than it would otherwise have imposed having regard to the degree of assistance provided to law enforcement authorities. In deciding whether to impose a lesser penalty, s 36(3) of the Sentencing Act provides mandatory considerations. I have otherwise found it of assistance to consider the application of this section with reference to what was said in R v Ngata [2015] ACTSC 356 at [55]-[60].
46․In relation to the subsection (3) considerations, the effect of the offence on the victim and his family has plainly been significant. However, the significance and usefulness of Ms Loiterton’s assistance, and the nature and extent of it, is such that, it seems to me, had she not handed herself into police, the victim may very well have been left without any form of closure from the harm inflicted on him. This is because there is no basis, on the information known to this Court, that the offender was identified as the person driving the vehicle until she handed herself to police. The footage I have viewed does not enable an identification of the driver, and it isn’t known to this Court whether the vehicle was associated with Ms Loiterton. No evaluation of the assistance was provided.
47․As to the other considerations, the truthfulness, completeness, and reliability was plainly significant given Ms Loiterton’s acceptance of guilt. The timeliness of that assistance was not immediate, but it was not within an unduly lengthy period of time. There are no benefits to Ms Loiterton in having assisted in the manner in which she did. While her engagement with the criminal justice system has been a motivating factor in her rehabilitation (see below at [84(c)]), she had the option to rehabilitate of her own volition without exposing herself to the risk of imprisonment. The assistance is unlikely to cause harsher custodial conditions or any injury to her or her family, or at least, no submission was made that it could. The assistance was in relation to the offence that the offender is being sentenced for. Finally, if a sentence of imprisonment is to be served, there is an unlikelihood that the offender will commit further offences upon release, for reasons that will be explained below.
48․As already observed, the form of offending that occurred here was very serious. The experience of this Court is that it is also, unfortunately, often difficult to detect. It is often offending motivated by an attempt to avoid detection by police, and seemingly too often achieves this. While such offending is very serious, and here it has caused a significant harm on the victim and his family, there is a sound basis to recognise assistance to authorities in the form of an offender voluntarily surrendering to police for such offending. A motivation for other like-minded offenders to do as Ms Loiterton did is appropriate.
49․Nonetheless, conscious that a lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence (s 36(4) Sentencing Act), I consider an appropriate reduction for the assistance to be 10 per cent.
Subjective Circumstances
50․Ms Loiterton is now 31 years of age and was aged 30 at the time of the offending.
51․She experienced a challenging childhood. It was one with a household of mental health challenges, and an early introduction to substances. From the age of 12 years, Ms Loiterton took on the responsibility of caring for herself, and for her brothers. At this stage of her life, she has limited contact with her father and no contact with her mother. She has three remaining brothers with whom she has varying contact.
52․It was submitted on her behalf that the Bugmy v The Queen [2013] HCA 37; 249 CLR 571 principles are enlivened, and this was not opposed by the prosecution. I accept that they are, and that accordingly, Ms Loiterton’s moral culpability is reduced.
53․Ms Loiterton has been in a positive relationship for a period of six months. She has two children, and a positive co-parenting relationship. Ms Loiterton has secure and suitable accommodation available to her.
54․She completed schooling up to the age of 15 years. Since then, she has, to her credit, obtained multiple Certificates including in book-keeping, management, pathology, and fitness. She has previously commenced a medical science degree and was offered a place in medicine at the University of New South Wales. Her family demands at the time led to her declining the offer. She has worked in pathology for seven years. Ms Loiterton has more recently enrolled in a Certificate in community services. She has placed this qualification on hold pending the outcome of her court matters. For the reasons that this sentencing decision will show, it is to be hoped that she will continue this qualification given the likely valuable contributions she could make to such a sector.
55․Ms Loiterton reports a strong work ethic. She is currently employed fulltime working as a rigger. Her employer has praised her hard work and commended her for taking on a leadership role. He describes her as an integral part of their team.
56․In the limited leisure time Ms Loiterton has available to her, she has maintained a training schedule for martial arts, attending a gym for training multiple times a week. Her trainer speaks of her progress to a level of being a professional martial artist, who is extremely committed and focused.
57․Ms Loiterton meets her financial commitments for herself and for her children. She has a small group of pro-social friends, having removed herself from anti-social friendships. She completed the ‘Reversed’ course related to driving rehabilitation, and has secured the return of her license.
58․Ms Loiterton disclosed to Corrective Services diagnoses of attention deficit hyperactivity disorder (ADHD), complex post-traumatic stress disorder (CPTSD), and personality disorders. Her most recent review by Health Services has found no evidence of major mental illness. Ms Loiterton has maintained engagement with a counsellor since July 2014. This counsellor confirms Ms Loiterton’s frequent attendance and positive engagement in therapy. She is reported to have also pro-actively engaged with a second counsellor in December 2024 through Toora Women Inc (Toora). These sessions have been confirmed to have an alcohol and drug focus that utilises Toora’s clinical service. This service reports that Ms Loiterton’s engagement to date has been very positive.
59․Clinical Psychologist Ms Vanessa Quigley undertook a psychological assessment of Ms Loiterton. This assessment confirmed the reported diagnoses of CPTSD, ADHD, and personality disorder. Ms Quigley finds that Ms Loiterton meets the diagnostic criteria for Substance Use Disorder, in sustained remission. Ms Quigley does caution that Ms Loiterton still requires psychological support to develop skills to effectively manage her mental health and reduce the risk of relapse.
60․Ms Quigley also recommends a review with a psychiatrist for assessment of the appropriateness of pharmacological treatment for ADHD.
61․The opinion of Ms Quigley is that Ms Loiterton’s disorders impacted on her judgement, thinking, decision making, and resulting behaviour such that her offending behaviour is best understood through a combination of impairments arising from poor mental health. That is, at the time of the offending, Ms Loiterton was struggling with the effects of ADHD, CPTSD, and personality vulnerabilities, which were compounded by substance use.
62․On behalf of the offender, it was submitted that principles articulated in R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins) are enlivened. I accept that, with reference to the opinion of Ms Quigley, there is a clear causal connection between the conduct and Ms Loiterton’s mental health conditions, and that there is a reduction in moral culpability on this basis. I did not understand the prosecution to submit otherwise. Ms Quigley provides:
These mental health issues appear to have contributed to reactive decision making and impulsivity, and impaired reasoning. This is likely to have overridden her ability to rationalise and apply consequential reasoning to her decision-making.
63․It was also submitted that general deterrence should be moderated in accordance with limb three of Verdins. This submission was made primarily with reference to Ms Loiterton’s diagnosis of ADHD. The difficulty I have with that submission is the role that substance use had in compounding the conditions. It is very difficult, with reference to Ms Quigley’s opinion, to draw a firm conclusion as to the effect of this condition on the mental capacity of the offender at the time in circumstances of her using substances. I do not consider that limb three in Verdins is enlivened in this case.
Substance use history
64․Ms Loiterton reported having commenced substances with an early introduction to such at the age of 12 years. She commenced smoking cannabis from 16 years of age, and from 17 to 20 years of age, became a heavy user with her partner at the time. From 19 years of age, she commenced using methamphetamine on the weekends, due to her partner at that time actively using. This continued for six months, before the relationship ceased. At 20 years of age, she became more actively involved in sports and ceased using substances.
65․However, from 2021, she relapsed with use of cannabis. This was in a circumstance of time off from work due to an injury and the loss of a pet. It was in this period that Ms Loiterton was remanded to custody for the first time, and, as a result, she quit “cold turkey”, staying abstinent for six months.
66․However, she then relapsed, with methamphetamine, before again being returned to custody. Ms Loiterton was released to a residential rehabilitation where she reported to have been abstinent from substances for three months. By early 2024 she was on bail, and she ceased use of cannabis so as not to breach the order.
Criminal history, conditional liberty, and breach
67․Ms Loiterton has a limited criminal history that is seemingly inconsistent with the manner in which she conducted herself with this offending. Her criminal history commences in October 2022 with a conviction for a minor drug related offence in April 2022. She was convicted and fined. Thereafter, Ms Loiterton committed firearm offences, another minor drug offence, and an offence of driving with a prescribed drug in oral fluid between April and July 2022. For these offences, with convictions imposed in the Magistrates Court, she was fined, sentenced to the rising of the court, and placed on a short suspended term of imprisonment. Her offending on this occasion was an escalation in her offending behaviour. Nevertheless, her criminal history is such that limited leniency can be afforded. This is particularly so given the offending occurred while she was on conditional liberty which is an aggravating factor on sentence.
68․The suspended term of imprisonment was imposed on 13 October 2022 for an offence of sale/supply drugs of dependence. During a search of a bag that Ms Loiterton was carrying, police located methamphetamine and cannabis, as well as indicia of drug supply. At the time of this offending, Ms Loiterton was on conditional liberty, being bail for the firearm offending. Ms Loiterton was sentenced to three months imprisonment, which concluded on 5 November 2022 and which was partially suspended after 69 days in presentence custody, with a good behaviour order for a period of 12 months.
69․The offending that occurred here was committed some nine months after the imposition of that term, and some three months before the good behaviour order concluded. There is otherwise no suggestion of non-compliance with the good behaviour order. It was though breached by re-offending, which is serious.
70․There can be no doubt that typically non-compliance with an opportunity for leniency through a suspended term should be met with imposition to not bring such sentences into disrepute. However, the breach has occurred in the circumstances of the offending, that is, at a time when Ms Loiterton was within the depths of a drug dependency. Since then, Ms Loiterton has shown that the threat of imprisonment has sufficed as a deterrent effect for her to progress with rehabilitation and not to return to criminal offending. I consider it appropriate to resentence her for the original sentence. It remains that imprisonment is the only appropriate sentence, but at this time, to give effect to her rehabilitation and to reflect the time served on that sentence, as well as to reflect the totality of the overall sentence to be imposed, a nominal term is appropriate.
Rehabilitation
71․Ms Loiterton has shown significant progress with rehabilitation and solid prospects of achieving and maintaining that rehabilitation. There is a solid foundation on which to conclude this.
72․Firstly, Ms Loiterton completed a residential and day program at Toora in April 2024. She has also been engaged with Narcotics Anonymous and Alcoholics Anonymous. Ms Loiterton advises that she is aware of her addiction triggers now which helps her to do safety planning.
73․Secondly is the assessment done by ACT Health Services for the purposes of consideration as to whether Ms Loiterton is suitable for a treatment order. Health Services report that “given the effectiveness of her current treatment, her meaningful engagement in full-time employment, and Ms Loiterton’s denial of any substance use since October 2023, there are no additional treatment recommendations for Ms Loiterton, beyond what she is already proactively engaged in”. While finding that Ms Loiteron had a likelihood of a severe substance use disorder at the time of her offending, at the time of assessment by Health Services, Ms Loiterton scored a zero on a screening tool as to substance use. Health Services find Ms Loiterton unsuitable for a treatment order in these circumstances.
74․Thirdly are the assessments done by ACT Corrective Services for the purpose of consideration as to whether Ms Loiterton is suitable for either an intensive correction order or a treatment order. Corrective Services conducted urinalysis drug testing on five occasions during the assessment period and all results were negative for tested substances. Corrective Services describe Ms Loiterton as having strong protective factors. Corrective Services do find Ms Loiterton suitable for a treatment order, but observe that an intensive corrective order may be more beneficial as it would allow Ms Loiterton to continue her employment and maintain her protective factors. She is assessed as suitable for a medium level of supervision, and for a community correction work order (see further below at [86]).
75․Fourthly, Ms Loiterton has a number of positive support networks and associates available to her that speak to her rehabilitative progress and prospects. Prisoners Aid personnel speak of the organisation being extremely proud of Ms Loiterton’s achievements upon release. She has graduated from the Justice Reform Initiative’s Lived Experience Speakers Bureau which led her to speak at the Legislative Assembly. Long-term friends of Ms Loiterton speak of her valuable contributions to her family and the community before her period of substance use and offending, and their confidence that she has found her way back and will maintain this.
Remorse and insight
76․An additional consideration that gives confidence as to Ms Loiterton’s prospects of rehabilitation is the depth of genuine remorse and insight she demonstrates.
77․Ms Loiterton prepared a letter for the Court. From the outset, she expresses a sincere apology to the police officer. She describes that there is not a day that goes by where she does not think about the events that occurred. She demonstrates a depth of insight into the seriousness of the offending, expressing that:
I showed a lack of regard for him, and I put his safety at risk. I believe he has the right to go to work and fulfill his duties safely just as everyone else does and my actions denied him that right. I had no intention of harming him or scaring him, but my carelessness risked both of those things. I truly regret any fear, stress or pain I may have caused him.
78․Ms Loiterton describes the challenges she was experiencing with her mental health and substance dependency at that period of time. She also speaks of her engagement with rehabilitation, and her goals for the future which include supporting other women with their journeys of rehabilitation and recovery. Ms Loiterton expresses her concern as to the impact that a return to fulltime custody could have on her recovery, reintegration, and on her children. She recognises the seriousness of her conduct and commits to complying with any conditions required by a community based sentence.
79․The information as to Ms Loiterton’s remorse and insight also comes from other sources. A number of the people in her support network speak of the genuine remorse she has expressed to them. One friend describes that:
[She] takes full ownership of her actions and is deeply saddened that she has done such a thing. She has spoken to me in regard to the officer affected at the time and if given the chance would sincerely apologise as she recognises he was only doing his job and her actions could have seriously injured him or worse.
80․In addition, Corrective Services report that Ms Loiteron reflected that her mental state was poor at the time of the offending. She described that she was not thinking clearly and had relapsed. Ms Loiterton is reported as recognising that her actions were wrong and as taking responsibility for them. She was able to recognise the impact on the victim as something that should not have happened and described thinking about the mental injuries the event would have had on the officer daily.
81․Corrective Services report that from their contact with the victim of the offences, they have been informed that they did not have concerns regarding their need for protection from violence or harassment from the offender.
82․Corrective Services report that “overall, Ms Loiterton appeared to accept responsibility for her actions. She appeared regretful and demonstrated a level of insight in terms of how her actions had impacted others. This sentiment was echoed in the verification contacts who also expressed Ms Loiterton to have demonstrated to them, remorse and acceptance”.
Consideration
83․The offending and the offender here present a challenging sentencing exercise.
84․Typically, an offence of driving a motor vehicle at police involving physical contact with a police officer would compel a sentence involving a substantial period of fulltime imprisonment. There are though compelling reasons in this matter that dictate another course. These reasons are:
(a)The offender’s remarkable progress towards rehabilitation, such that fulfilling the sentencing purpose of the promotion of rehabilitation will best be met by not disrupting the offender’s rehabilitative path;
(b)Ms Loiterton’s criminal antecedents are not reflective of what might be thought of as typical for the usual type of offender for this form of offending. Ms Loiterton is not a recidivist offender, who has demonstrated an ongoing defiance of the police, the courts, and the law. She has previously lived a pro-social life. The need for specific deterrence to be reflected is reduced;
(c)A period of fulltime imprisonment has been served, albeit a short one. I am satisfied that it is appropriate to take the period in custody into account in this way, and, importantly, that this period has had a role in fulfilling sentencing purposes in this matter. Ms Loiterton reflected to Health Services that “being arrested, serving time in AMC and reflecting on my actions while using substances has changed my life for the better and is a blessing”;
(d)Ms Loiterton demonstrates a depth of genuine remorse and insight that is seldom seen with many offenders, let alone offenders involved in offending of this type;
(e)There is reduced moral culpability for the offending; and
(f)Ms Loiterton has available significant protective and motivating factors.
85․I add to this that an additional factor that has informed me as to no further fulltime imprisonment being warranted in relation to this offender, is that an available sentencing option is a community service work order. While Ms Loiterton has heavy family and work commitments, Corrective Services find that there is work available that she would have capacity to engage with.
86․It seems to me, in circumstances where Ms Loiterton has been found unsuitable for a treatment order as she no longer requires the level of intervention that would involve, nor does she require intensive correction, that a suspended term with a requirement to give back to the community for the harm she has caused by way of community service is appropriate.
87․In so determining, I have had a slight hesitation that making such an order may have detrimental repercussions from Ms Loiterton being exposed to participants who are not as progressed in their recovery. However, Ms Loiterton has available to her significant protective and motivating factors. Further, I would encourage Corrective Services to identify a community service option, to the extent possible, that can build on Ms Loiterton’s strengths with substance recovery, martial arts, and her interest in the community service sector. Inevitably, such a contribution will be more in the interests of the community than any period in fulltime imprisonment could provide.
88․In conclusion, the sentencing exercise in this matter reminds me of the notion that ‘two wrongs do not make a right’. Ms Loiterton plainly committed a wrong. To imprison Ms Loiteron at this time, in fulltime custody, would simply create another wrong. It would not make right the harm caused to the victim, nor reverse the effect from the offending on him and his family. It would not reflect the role of individualised justice in sentencing. Here, that involves an offender who reflects a model of rehabilitation efforts. She plainly has an innate strength and resilience, and, despite for a period of time developing a dependency on drugs and engaging in criminal behaviour, is now capable of being a valued member of the community.
89․The purposes of sentencing in this matter are best met by an outcome that does not disrupt the high likelihood that such conduct will not be again committed by Ms Loiterton. The appropriate sentence order is a fully suspended term, along with a substantial period of community service. In this way, Ms Loiterton will have the deterrent effect of imprisonment to encourage her to continue on her pathway of rehabilitation, along with an opportunity for her to give back to the community that she has harmed by her offending.
Orders
90․For those reasons the following orders are made:
(1)On the charge of drive motor vehicle at police (CAN 2023/6986) the offender is convicted and sentenced to 3 years imprisonment, reduced from 4 years imprisonment in accordance with ss 35 and 36 of the Crimes (Sentencing) Act 2005 (ACT), to commence on 27 February 2025 and end on 26 February 2028.
(2)In relation to CAN 2022/8678, the breach of good behaviour order is proved, and the suspended sentence and good behaviour order made 13 October 2022 is cancelled.
(3)The conviction of Felicity Loiterton of sale/supply drug of dependence (CAN 2022/8678) is confirmed and the offender is resentenced to the rising of the Court.
(4)The total period of imprisonment of 3 years, commencing on 27 February 2025 and ending on 26 February 2028, is to be fully suspended.
(5)Felicity Loiterton is required to sign an undertaking to comply with the offender’s good behaviour obligations pursuant to s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 3 years, from 27 February 2025 to 26 February 2028, with a probation condition that she accept supervision by the Commissioner of ACT Corrective Services or their delegate for the period of the undertaking or such lesser period as the person supervising her considers appropriate and obey all reasonable directions of the person supervising her, and the additional condition that she perform 300 hours of community service within 2 years.
| I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 7 April 2025 |
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