Director of Public Prosecutions v Scott - [2023] ACTSC 19

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Scott
Citation:	[2023] ACTSC 19
Hearing Date:	15 February 2023
DecisionDate:	15 February 2023
Before:	Mossop J
Decision:	See [14]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – breach of good behaviour order – further offence of theft – resentencing – nominal period in custody prior to suspension of sentence and breach – good behaviour order cancelled – re-sentenced to period of imprisonment followed by release into community subject to good behaviour order
Legislation Cited:	Crimes Act 1900 (ACT), s 114C Crime Sentence Administration Act 2005 (ACT), s 110 Prohibited Weapons Act 1996 (ACT), s 5
Cases Cited:	R v Annabelle (a pseudonym) [2021] ACTSC 196
Parties:	ACT Director of Public Prosecutions Samantha Scott ( Offender)
Representation:	Counsel G Meikle ( DPP) J De Bruin ( Offender)
Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender)
File Numbers:	SCC 113 of 2022 SCC 114 of 2022

MOSSOP J

Introduction

The offender was previously sentenced by Burns J: R v Annabelle (a pseudonym) [2021] ACTSC 196. She was sentenced in August 2021 for unauthorised possession of a prohibited weapon on 1 February 2020. This is an offence contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) for which the maximum penalty is five years’ imprisonment, or a fine of $80,000 or both. She was also sentenced for dealing with the proceeds of crime on 18 February 2020 which is an offence contrary to s 114C of the Crimes Act 1900 (ACT) for which the maximum penalty is two years’ imprisonment, a fine of $8000 or both.
Burns J imposed an aggregate sentence of 10 months’ imprisonment. This comprised of a sentence of seven months for the prohibited weapon charge and five months for the proceeds of crime charge. These were concurrent as to two months. They were suspended from the date of the sentence hearing, that is, after she had spent 24 days in custody. The period in custody was from 24 July 2021 until 16 August 2021. The period during which she was subject to a good behaviour order was 17 August 2021 until 23 May 2022, approximately nine months.
Unfortunately, on 24 December 2021 she committed a further offence. That was the theft of some scooters worth $1000 from an ALDI store. That offending was four months and eight days into the good behaviour order.
For that offence she was given a three month sentence of imprisonment in the Magistrates Court. She also had another suspended sentence of four months which was then imposed. Those sentences were concurrent as to one month giving a total sentence of six months’ imprisonment from 18 October 2022 until 17 April 2023.
Under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) the court must either impose the suspended portion of the sentence order or re-sentence the offender.
Having regard to the very small portion of the earlier sentence required to be served by full-time detention and the nature of the breach offending I consider that it is appropriate to re-sentence the offender rather than to simply impose the balance of the term. That will allow both a period of full-time detention consistent with the need for deterrence as well as a period of supervision in the community following her release.
The personal circumstances of the offender are outlined in the earlier sentencing decision. I take into account the very dysfunctional upbringing that she has had which has clearly affected her outlook on the world and her progress in life. The ongoing consequences of that dysfunctional upbringing are reflected in her criminal history.
Since the decision of Burns J, she now has a new partner which, having regard to what his Honour said in the earlier sentencing decision, can be seen as some progress. Unfortunately, the pre-sentence report records that she and her current partner admit to using illicit drugs together. However, on the positive side, he has a business in which she is employed and he has offered to continue employing her in that business when she is released.
The offender has also undertaken courses while in custody. Although she, in effect, chose to be sentenced by Magistrate Walker rather than pursuing residential rehabilitation, she articulated that she adopted this course because she thought that she was more likely to be off illicit drugs in custody than via a residential rehabilitation program. In addition to undertaking courses while in custody, she is employed and drug tests during the preparation of the pre-sentence report have come up negative.
The opinion of the author of the pre-sentence report dated 13 February 2023 appropriately reflects the mixed picture presented by her current circumstances. It provides:
The offender’s identified areas of risk included her strained financial circumstances, unemployment history, limited familial support, lack of pro-social associates, extensive drug use history, unresolved mental health concerns and attitudes and orientation. However, [the] offender’s stable accommodation and engagement in pro-social group activities are regarded as protective factors.
Ms Scott is a recidivist offender with entrenched drug use concerns. The offender has previously failed to satisfactorily comply with community supervision orders and has also failed to engage in relevant rehabilitation treatment programs. The offender further appeared to justify her actions and it appeared Ms Scott was also supportive of a criminal lifestyle as evidenced by remarks like “I did what she had to do to survive”. The offender’s lack of insight into her actions, and their consequences, also appears to be a major risk factor.
It was noted that while Ms Scott has actively and compliantly engaged in rehabilitative avenues available in a controlled custodial setting, given Ms Scott's documented pattern of poor compliance in the past, Ms Scott would have limited capacity to remain compliant whilst in the community with limited supervision.
The submission made on behalf of the offender is that she should be resentenced in the same terms as she was by Burns J. Alternatively, the whole of the balance of the sentence should not be imposed and that the sentence should be suspended after having served some further additional period in custody.
The position of the prosecution was consistent with this alternative course, namely a re-sentence which required her to serve some further period in custody
In my view it is appropriate to re-sentence the offender and impose a sentence which requires her to serve an additional period in custody. Although there are some positive signs, there is still a very clear need for specific deterrence and denunciation of the conduct which occurred at a time when she was given an opportunity by Burns J. To fail to require her to serve any additional period of time in custody as a result of the breaches would, in my view, tend to bring the institution of suspended sentences into disrepute. She also needs a period subject to supervision so as to manage the transition from custody to the community and, hopefully, avoid relapse into drug use and offending behaviour. Her prospects must be judged, at this stage, as guarded.
These goals can be achieved by re-sentencing her to the same head sentences imposed by Burns J with the same degree of concurrency. That leads to an aggregate sentence of 10 months’ imprisonment. That will be backdated from the end of her current sentence on 17 April 2023 by three months to reflect the time served previously and provide a degree of concurrency with the existing sentence. That means that there is a total of seven months of the sentence to be served. Three months of that will be in custody and four months in the community subject to a good behaviour order. Consistent with that, the orders of the Court are:
1.Discharge the non-publication order made on 20 July 2021.
2.Discharge any order requiring that the offender be identified by a pseudonym.
3.Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) the good behaviour order entered into as a result of the orders made by Burns J on 17 August 2021 is cancelled and the offender is resentenced as follows:
a.On the prohibited firearm charge (CC 2020/3473) the offender is convicted and sentenced to 7 months’ imprisonment commencing on 18 January 2023 and ending on 17 August 2023.
b.On the charge of dealing with the proceeds of crime (CC 2020/3474) the offender is convicted and sentenced to 5 months’ imprisonment commencing on 18 June 2023 and ending on 17 November 2023.
c.The sentence is suspended after having served six months from 18 January 2023 to 17 July 2023 upon entering into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months with an additional condition that she be subject to supervision by the Director-General for that period or such lesser period as is determined by the Director-General.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop

Associate:

Date: 2 March 2023