Director of Public Prosecutions v Sibley (No 2)
[2024] ACTSC 45
•27 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Sibley (No 2) |
Citation: | [2024] ACTSC 45 |
Hearing Date: | 26 February 2024 |
Decision Date: | 27 February 2024 |
Before: | Mossop J |
Decision: | See [35] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – forcible confinement and aggravated robbery offences – joint commission – agreement to unlawfully confine victim and to extract anything of value – where co-offender had lent money, items and drugs to the victim and sought repayment by force – offender had subordinate role in the offending – consideration of mental health issues – suspended sentence and good behaviour order imposed |
Legislation Cited: | Crimes Act 1900 (ACT), s 34 Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), ss 45A, 310 Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 |
Cases Cited: | DPP v Hyde [2024] ACTSC 44 |
Parties: | Director of Public Prosecutions Haylie Sibley (Offender) |
Representation: | Counsel S Saikal-Skea ( DPP) P Bevan ( Offender) |
| Solicitors Director of Public Prosecutions Bevan & Co Lawyers & Conveyancers ( Offender) | |
File Number: | SCC 284 of 2022 |
MOSSOP J:
Introduction
On 25 September 2023, a jury found Haylie Sibley guilty of the offences of forcible confinement and aggravated robbery. The proceedings are now before me for sentencing. The offences for which the offender is to be sentenced are as follows:
(a)Forcible confinement, contrary to s 34 of the Crimes Act 1900 (ACT) (CAN 7063/2022). The maximum penalty is 10 years’ imprisonment.
(b)Aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) (CAN 5690/2022). The maximum penalty is 2500 penalty units or 25 years’ imprisonment or both.
Her co-offender, Ms Hyde, has been sentenced at the same time: DPP v Hyde [2024] ACTSC 44.
Facts
The facts must be determined based on the evidence given at the criminal trial in a manner which is consistent with the jury’s verdicts. Ms Hyde 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 on 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 part of the money owed.
At around the same time, Ms Sibley and Matthew arranged to meet near Ms Hyde’s unit in Gordon so 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 his 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 and removed Matthew’s car 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 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, Ms Hyde and two other males approached the house. 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. 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” and they did stop. 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 Abrahams Crescent, 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, for the purposes of s 45A of the Criminal Code, an agreement 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.
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. The purpose of the confinement was the extraction of money or property from the victim. Significant fear was instilled in the victim, including, at one point, the fear of being killed. 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.
The offender’s role in the offending was a relatively minor one. Although she was initially involved with the victim, that appears to have been at the direction of Ms Hyde and, after Ms Hyde arrived, the offender played a peripheral role in relation to the unlawful confinement. She did not provide the “muscle” like Mr Sims or make threats of, or inflict, violence towards the victim. I assess her culpability for the offending as substantially less than Ms Hyde and Mr Sims.
Subjective circumstances
The subjective circumstances of the offender are described in a pre-sentence report, two letters from a psychiatrist and a letter from a psychologist.
She is 39 years old. She suffered trauma in her childhood, including physical abuse and neglect in her primary school years, particularly from her father. She continued to have very difficult relationships with her parents. She is single and does not have any children.
She completed Year 12. She had difficulty completing any further studies because of mental health issues. She obtained a real estate licence, working in that area for 15 years. She was last employed in 2021. She has recently been approved for a disability support pension. She reported having no friends with whom she is in contact. She has limited contact with her family and her emotional support appears to be provided by professionals.
She did not say anything about the offending to the author of the pre-sentence report because she is appealing against her conviction.
She gave some oral evidence of a number of occasions of being the victim of sexual assault in the past. She has received treatment for her mental health as an inpatient and in the community since 2005. She has had a private psychologist for the last 20 years. She has been diagnosed as having Borderline Personality Disorder, with the psychiatrist suggesting that this is preferably referred to as complex Post‑Traumatic Stress Disorder. She has also been diagnosed with Type 2 Bipolar Disorder. She has a history of “emotional instability, interpersonal issues, recurrent suicidal crises and several serious suicide attempts”. She has a long history of treatment by psychologists and psychiatrists. She continues to receive support for her mental health through the organisation known as Directions.
She has a history of ongoing use of methylamphetamine, cocaine and gamma hydroxybutyrate. She described her alcohol and illicit substance use as a form of “stress management”.
She was assessed as not suitable for a community service work condition because of her ongoing illicit substance use. She was assessed as not suitable for an Intensive Correction Order because she had a major problem with illicit substances. She had not demonstrated a period of abstinence that would support her claim that, if so sentenced, she would be able to abstain from illicit substance use.
Criminal history
The offender has a limited criminal history in the Australian Capital Territory, involving convictions for drink‑driving and minor theft and a non-conviction good behaviour order for unlawful possession of stolen property. In New South Wales, she has been subject to non‑conviction bonds for possessing a prohibited drug, drink-driving and a significant number of other matters, which were dealt with pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed) up until 2014. She then committed the offences of drink-driving (2015), destroying or damaging property (2016) and possessing a prohibited drug (2021). The pattern is indicative of minor drug use offending against a background of mental health problems.
Time in custody
The offender spent 33 days in custody in relation to these charges.
Consideration
The offender was clearly a subordinate player in the offending. She had some involvement with Matthew prior to the incident, including making efforts to assist him in the personal crisis involving a relationship breakdown and homelessness that he was going through.
The picture presented is of a woman with significant mental health issues. She appears to be socially isolated and dependent upon professionals for support. Because of her pending appeal, she has not provided any information about how she came to be involved with the offending.
I accept that her current state of mental health is significantly influenced by her childhood trauma and that this, in turn, has contributed to her involvement in illicit drug use. That carries with it involvement with people and activities, such as the present offending. I consider that imprisonment would be a greater burden upon the offender than it would be upon somebody without her mental health difficulties.
I accept, generally speaking, the need to deter and denounce violent and unlawful conduct associated with drug dealing and drug dealers and that this must be a very important sentencing consideration. However, the circumstances of each offence and offender must be judged individually.
Given her less significant involvement, I have assessed her culpability as being substantially less than that of Ms Hyde and Mr Sims. She appears to be less overtly motivated to address her ongoing drug use than Ms Hyde, although this may be a consequence of her more complicated mental health conditions.
Having considered the alternative sentences, I consider that only custodial sentences are appropriate. I have considered the pattern of sentencing as illustrated in the table of sentences for unlawful confinement provided by the prosecution.
On each charge, in my view, the appropriate starting point is a sentence of imprisonment of 12 months with the aggravated robbery sentence cumulative as to three months, but otherwise concurrent. This gives an aggregate sentence of 15 months’ imprisonment.
Counsel for the offender submitted that the matter could be appropriately dealt with by way of a suspended sentence with conditions upon a good behaviour order reinforcing her ongoing treatment by staff at Directions. In the alternative, he invited me to reject the recommendation of unsuitability by the author of the Intensive Correction Order assessment report because the problem with drug use was not a major one and the offender has demonstrated periods of sobriety in the past.
The offender has a regime of supervision by Directions that is in place. I consider that a suspended sentence with a good behaviour order which extends beyond the term of the suspended sentence is an appropriate disposition. Although the probation condition will be in general terms, it is obviously important that the offender be subject to a regime which addresses her mental health problems and her apparently ongoing illicit drug use.
Orders
For those reasons, the orders of the Court are:
1.On the charge of forcible confinement (CAN 7063/2022), the offender is convicted and sentenced to 12 months’ imprisonment commencing on 25 January 2024 and ending on 24 January 2025 which sentence is to be wholly suspended forthwith upon the offender having served 33 days’ imprisonment and entering into an undertaking to comply with her good behaviour obligations for a period of two years with the following additional condition: that she be subject to supervision on probation by the Director‑General for a period of two years and obey all reasonable directions of the Director-General during that time.
2.On the charge of aggravated robbery (CAN 5690/2022), the offender is convicted and sentenced to imprisonment for 12 months which sentence is to be wholly suspended forthwith upon entry into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following additional condition: that she be subject to supervision on probation by the Director-General for a period of two years and obey all reasonable directions of the Director-General during that time.
| I certify that the preceding thirty-five [35] 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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