McDonald v Vandervalk (No 2)

[2014] ACTSC 76

ACT SUPREME COURT

Case Title:

MCDONALD v VANDERVALK (No 2)

Medium Neutral Citation:

[2014] ACTSC 76

Hearing Date:

11 April 2014

DecisionDate:

11 April 2014

Before:

Burns J

Decision:

See [9]–[12]

Catchwords:

CRIMINAL – SENTENCE – Re-Sentence after appeal from Magistrates Court upheld – mental health – recent improvements in rehabilitation

Legislation Cited:

Criminal Code 2002 (ACT), s 326

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

Cases Cited:

McDonald v Vandervalk (No 1) [2014] ACTSC 67

Parties:

Katrina May McDonald

Scott Carl Vandervalk

Serena Wong

Representation:

-     Counsel

Mr A Doig (Appellant)

Mr M Mansfield (Respondents)

-     Solicitors

Darryl Perkins Solicitors (Appellant)

ACT Director of Public Prosecutions (Respondents)

File Number(s): 

SCA 63 of 2013

Katrina May McDonald v Scott Carl Vandervalk & Serena Wong
RE-SENTENCE

1. I note that on 13 February this year, I heard the appeal in relation to the sentences that were imposed upon the appellant in the Magistrates Court and at that time I determined that the appeal should be allowed and reserved my reasons (for my reasons see: McDonald v Vandervalk (No 1) [2014] ACTSC 67). I adjourned the matter until today to hear submissions and to receive any further evidence in relation to re-sentencing the appellant.

2. I note that the offences which are now before me for sentencing occurred in 2012.  The most serious offence, being one of dishonestly obtaining property (s 326 Criminal Code 2002 (ACT)), occurred on 22 February 2012. I note that the property involved was a sum of $100 so that it cannot be suggested that it was a particularly serious example of this type of offending.

3. The second offence, which was one of failing to appear (s 49(1) Bail Act 1992 (ACT)), occurred on 6 September 2012. It appears that there has been no offending since that time.

4. At the time of sentences being imposed for the above offences in the Magistrates Court, the appellant was also re-sentenced as a result of a breach of Good Behaviour Order in respect of a sentence imposed in 2011. An appeal from the re-sentence having been allowed by me on 13 February 2014, I must also now re-sentence the appellant in respect of that offence, being an offence of forgery.

5. I note that there is clear evidence of the appellant living a particularly chaotic existence throughout a large portion of her life.  A psychiatric report, which has been put before me, speaks of her having a traumatic history during her developmental years.  It refers to her being subject to physical and sexual abuse during her childhood within her family and also being subject to a violent serial sexual assault at 14 years of age.

6. The psychiatrist who prepared the report noted that it appears that she developed symptoms of Post-Traumatic Stress Disorder but that at the date when he prepared the report, which was July last year, she appeared to have only residual symptoms.  At that time, he diagnosed the appellant as having a Dysthymic Disorder whereby she was depressed most of the time.  She would also qualify for a diagnosis of Borderline Personality Disorder.

7. She has a long standing substance abuse issue which is hardly surprising bearing in mind her traumatic development. 

8. There have been slow but, I think, significant improvements over the last two years with respect to the appellant.  Firstly, there has been no further offending.  Secondly, she has now secured permanent accommodation whereas previously she was either sleeping rough or alternatively sleeping on the streets.  She also now has prospects for employment.

9. As I indicated on 13 February, the appeals will be allowed.  The sentences imposed by the learned Magistrate will be set aside and I will re-sentence the appellant. 

10. Would you stand please? 

    ·On the charge of dishonestly obtaining property, I will confirm the conviction that was recorded by the Magistrate and you will be sentenced to a period of two months’ imprisonment commencing on 6 March 2014 and I have backdated that to take into account the period of custody that you spent before you were released on bail.

    ·On the failure to appear offence, again I confirm the conviction recorded by the Magistrate and you will be sentenced to one month imprisonment commencing on 5 April 2014. 

    ·On the breach matter that was dealt with by the learned Magistrate, you will be sentenced to three months imprisonment commencing on 6 May 2014 and expiring on 5 August 2014. 

11. That means there will be an aggregate sentence of five months' imprisonment.  That sentence will be served by way of full time imprisonment from 6 March 2014 until yesterday, being 10 April 2014.  The balance of the sentence is suspended and there will be a Good Behaviour Order for a period of 18 months from today with conditions:

    a.Firstly, that you are to accept the supervision of ACT Adult Corrections; 

    b.Secondly, you are to undertake such counselling and/or treatment for substance abuse as directed by ACT Corrective Services; and

    c.Thirdly, you are to participate in such counselling or treatment for mental health issues as directed by officers of ACT Corrective Services. 

12. I will also confirm the reparation order that was made by the Magistrate.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Sentence herein of his Honour Justice Burns.

Associate:

Date:     19 May 2014