Et v Yates [No. 2]

[2015] ACTSC 250

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

ET v Yates & Ors [No. 2]

Citation:

[2015] ACTSC 250

Hearing Dates:

14 July 2015

DecisionDate:

14 July 2015

Before:

Penfold J

Decision:

See [12] to [16] below.

Category:

Sentence

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment –

Legislation Cited:

Bail Act 1992 (ACT), s 49(1)

Crimes (Sentence Administration) Act 2005 (ACT)

Criminal Code 2002 (ACT), s 308

Criminal Code 2002 (ACT), s 321
Drugs of Dependence Act 1989 (ACT)

Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)

Parties:

ET (Appellant)

Paul Ronald Yates (First Respondent)

Nathan Thomas Weaver (Second Respondent)

Romy Hearn (Third Respondent)

Beau Tennant (Fourth Respondent)

Megan White (Fifth Respondent)

Representation:

Counsel

Mr H Jorgensen (Appellant)

Mr S McLaughlin (All Respondents)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (All Respondents)

File Number:

SCA 20 of 2015

1. In the matter of ET v Yates & Ors [2015] ACTSC 183, I upheld an appeal against sentences imposed on ET in the Magistrates Court on pleas of guilty to a total of seven offences, being one theft, two failures to appear on a bail undertaking, one trespass, two minor thefts and one possession of cannabis. The maximum penalties carried by the offences are set out in the table below:

Offence	Relevant legislation	Maximum penalty
Theft	Criminal Code 2002 (ACT), s 308	10 years imprisonment
Fail to appear on a bail undertaking	Bail Act 1992 (ACT), s 49(1)	2 years imprisonment
Trespass	Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)	$1,100 fine
Minor theft	Criminal Code 2002 (ACT), s 321	6 months imprisonment
Possession of cannabis	Drugs of Dependence Act 1989 (ACT)	$110 fine

1. The offences were described in my judgment on the appeal and there is no need to describe them again, except to say that they involve three incidents of shop lifting, one of which involved the offender returning to a store from which she had agreed to a banning order as a result of a previous theft from the store (that constituted the trespass) and one of which resulted in the discovery of cannabis seeds in her bag when it was searched, and two failures to appear in court as required by the conditions of the bail granted to her in relation to those offences.

1. I note that ET was taken into custody after the second fail to appear offence when she handed herself into police after realising she had missed the court date. 

1. ET was fined in relation to the fine-only trespass and possession offences, and sentenced to terms of imprisonment for the other five offences, for apparently concurrent terms of eight months, four months, three months, three months and two months.  I say "apparently concurrent", because although there was no mention of any accumulation, the sentencing Magistrate ordered that the two-month term be served in full-time custody while the other terms were fully suspended subject to 15-month good behaviour orders.

1. ET spent 22 days in custody before she was granted bail after her appeal, and four days in custody when her bail was revoked at one point during the Magistrates Court proceedings. 

1. As well as the statement of facts from the Magistrates Court, the prosecution in this re-sentencing relied on:

(a)ET's criminal history;

(b)an updated pre-sentence report;

(c)the original pre-sentence report before the Magistrate; and

(d)a CADAS report.. 

1. The defence relied on the letters from the Youth Support Transition Team and Karinya House that were before the Magistrate.

1. The updated pre-sentence report and CADAS report confirmed that the various support mechanisms seemed to be working well for ET.  The CADAS report said:

[ET] reported that her personal goals were to raise a good child, to stay at Karinya House until she transitioned to her own accommodation, to complete her Year 12. and to obtain a job once her daughter was old enough. 

[ET] politely refused offers of [Alcohol, Tobacco and Other Drug] treatment stating she was currently well supported by Karinya House Home For Mothers & Babies Inc., by her boyfriend, by her grandparents, and by her Youth Transition Worker Mr Robin Sale.

CADAS liaised with Mr Sale of Care and Protection Services Youth Support and Transition Team on 30 June 2015.  Mr Sale reported that [ET] was doing “amazingly well”, especially considering her history.  He reported no signs of substance abuse since he starting working with her in October 2014, and that she had had clean urine screening tests.  He believed that since becoming pregnant there had been a positive change in her attitude. 

CADAS does not recommend any treatment for alcohol or other drugs at this time.  CADAS is pleased that [ET] is doing so well and commends her efforts at creating positive change in her life.  [ET] is aware that she can access support from Alcohol and Drug Services in the future if required.  She stated that she would request her Youth Transition Worker to facilitate this if needed. 

1. I have already in the appeal judgment indicated my view that the three shoplifting offences are relatively minor.  In particular, I must differ from the sentencing Magistrate to the extent that he found that the offence charged as theft (rather than as minor theft) was of mid-level seriousness.  If that offence had been charged as a minor theft, it might have justified his Honour's assessment, involving as it did a theft to a value slightly more than half the maximum value of a theft that can be charged as a minor theft.

1. I agree with his Honour's comments that failures to appear on bail undertakings must be taken seriously because of the inefficiencies they create in the operation of the criminal justice system but, in my view, failures to appear that may be largely attributable to simple disorganisation should not be treated as equivalent to failures that suggest either a positive attempt to avoid legal processes or deliberate disregard for those processes.  It is in my view unsurprising that a person in ET's position during the relevant months of 2014 missed some court dates, and the fact that she did attend a number of other mentions of her matter, even at points when she was unrepresented, does not suggest to me any deliberate flouting of her bail conditions.

1. I have already mentioned ET's current circumstances.  In summary, her rehabilitation appears to be proceeding well and it would certainly not be helped if at this stage she was separated from her baby and returned to prison. 

1. ET, please stand. I note the convictions recorded in the Magistrates Court on the seven charges, being:

(a)one theft;

(b)two failures to appear on a bail undertaking;

(c)one trespass;

(d)two minor thefts; and

(e)one possession of cannabis. 

1. I now sentence you as follows: 

(a)for the theft, to three months imprisonment;

(b)for the first failure to appear on a bail undertaking, to three months imprisonment;

(c)for the second failure to appear on a bail undertaking, to two months imprisonment;

(d)for the trespass, to a fine of $250;

(e)for the first minor theft and the second minor theft, to 26 days imprisonment each; and

(f)for possession of cannabis, to a fine of $60.

1. I order that the fines (totalling $310) be paid within 18 months in accordance with the direct debit arrangement set up in relation to payment of the Magistrates Courts fines which, I understand, is $10 per fortnight. 

1. All the prison sentences are to run concurrently and will be backdated to 18 June 2015 to take account of the 26 days spent in full-time custody in relation to these offences.  The three prison sentences that have not therefore been fully served, being the theft and for the two fail to appear offences, will be immediately suspended on you signing a good behaviour undertaking for 12 months. 

1. So I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months. The good behaviour order will be subject only to the core conditions. You will be given a written copy of the good behaviour order, ET, and it will be read to you by court officials, but in short the thing you need to know is that for the next 12 months you need to keep out of trouble. If you commit another offence during that time, or if there's any other breach of those core conditions, you may find yourself back before this court to be re-sentenced for the three outstanding offences and, depending on exactly how you have breached your good behaviour undertaking, you could find yourself serving some or all of the remaining just over two months left of your sentences in custody.

1. You would have heard the discussion that I had with both counsel and with Mr Sale about not imposing any supervision conditions, and I haven't imposed a supervision condition, but basically I am trusting you to be sensible enough to stick with the supports that you are being given and not to fall into the trap of deciding it really would just be easier to go on your own way.  You have got really good support available to you at the moment, you really need that support so that you can do the best by yourself and especially the best by your baby, and I wish you all good luck with that. 

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.

Associate:       Kate Harris

Date:             24 August 2015