R v Ann Lakiss

[2018] NSWDC 309

District Court

New South Wales

Medium Neutral Citation:	R v Ann Lakiss [2018] NSWDC 309
Hearing dates:	17 October 2018
Decision date:	26 October 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Community Correction Orders imposed. For orders see [69]
Catchwords:	Stalk or intimidate causing fear; use carriage service to menace/harass/offend
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995
Cases Cited:	R v Nelson [2016] NSWCCA 130
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Ann Lakiss (Offender)
Representation:	Counsel: G Jauncey (Offender)   Solicitors: A Pinkerton (Crown)
File Number(s):	15/132882
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender is to be sentenced in relation to the following two offences:

1. Stalk or intimidate intending to cause fear of physical or mental harm (personal violence offence) pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (“CDPVA”).

The maximum penalty is 5 years imprisonment and/or 50 penalty units.

2. Use carriage service to menace/harass/offend pursuant to s 474.17(1) of the Criminal Code Act 1995(Cth) (“the CCA”).

The maximum penalty proscribed is 3 years imprisonment.

2. There is no Standard Non-Parole Period proscribed for either offence.

3. The offender has also asked to be taken into account the purposes of s 16BA of the Crimes Act 1914 (Cth), a further offence of use carriage service to menace pursuant to s 474.17(1) of the CCA. She has admitted her guilt in respect of that matter.

4. The offences occurred on 4 May 2015.

5. At the time of the offending, the offender, who was born on 16 October 1995, and therefore 19 years of age, was subject to a s 12 bond for a period of 18 months. She was therefore on conditional liberty at the time of the offence. She was arrested on 5 May 2015 and spent a period of time in custody on call up for the breach of her bond. It is common ground that she has served 52 days in custody in respect of the subject offences.

6. Whilst on bail for the subject offence, the offender committed two further offences as follows:

5 February 2016 – possess prohibited drug. Fined $330 on 17 March 2016 at the Downing Centre Local Court.

30 November 2017 – shoplifting. Fined $330 on 16 January 2018 at the Downing Centre Local Court.

The sentence hearing

7. The matter was first listed for sentence hearing before me on 13 July 2018, having been earlier adjourned pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) on the offender’s application to obtain a pre‑sentence report and materials relating to her rehabilitation. A further adjournment was granted pursuant to s 11 and the sentence hearing took place on 17 October 2018.

8. The Crown Sentence Summary became Ex A on the sentence hearing. It included a Statement of Facts which may be summarised as follows.

9. The offender was known to the victim, Mr C Christodoulou, as an acquaintance of his brother George. George was a drug user with whom the offender associated.

10. At around 8.40pm on 4 May 2015, the victim was at home, outside in the courtyard of his property. He heard loud knocking to the door of his flat and a male voice yelling “George” several times. The victim yelled back that George was not there and the victim then heard a really loud bang. The victim could then hear several voices inside the flat yelling for his brother.

11. At 8.42pm the victim rang his brother Con, asking him to come home quick and help him. At that time, the offender came into the courtyard in front of a small group of men. The offender said to the victim:

“They are not going to hurt you Chris, they just want George.”

The victim replied that he did not know where his brother was.

12. One of the males behind the offender said to the victim:

“You’ve got half an hour to find George. If you don’t find George, the debt’s yours, the debt’s on your head.”

Another of the males said to the victim:

“Are you alright mate? Are you alright?”

13. The offender and the males then fled, one of the men saying, “We’ll be back”.

14. It was this conduct that constituted the offence of stalk or intimidate intending to cause fear of physical or mental harm pursuant to s 13(1) of the CDPVA.

15. The police arrived shortly thereafter and observed damage to the front door of the flat consistent with it having been forced in. Whilst the victim was talking to the police, he received three text messages on his phone from the offender’s mobile phone. The first at 8.47pm said:

“Chris, that bloke you just saw isn’t fucking around with you. If you can’t find George and get him to pay he said it falls on your head. I know it’s not fair.”

16. That is the conduct which constitutes the offence of use carriage service to menace/harass/offend.

17. A second text message at 8.48pm read:

“Deadline tomorrow midday.”

18. That conduct comprised the further count of use carriage service to menace/harass/offend, which is to be taken into account on the schedule pursuant to s 16BA.

19. Following her arrest on 5 May 2015, the offender participated in an ERISP interview in which she provided three different versions of events, yet admitting that she knew that the males would make the victim accountable for his brother’s debt. She admitted sending the two messages after feeling pressured to do so by one of the males.

20. Exhibit A included the criminal antecedents of the offender. On 3 March 2014, she had been sentenced for an offence of robbery in company – serious indictable offence, to imprisonment for a period of 1 year and 6 months, suspended on her entering a bond pursuant to s 12 of the CSPA. Following her arrest for the subject offences, she was sentenced on 10 August 2015 on call up to a period of imprisonment of 1 year and 6 months commencing on 5 May 2015 and concluding on 4 November 2016, with a non‑parole period with conditions of four months commencing on 5 May 2015 and concluding on 4 September 2015.

21. The offender had earlier been sentenced in 2012 and 2014 to various traffic offences for which she had received fines or bonds pursuant to s 10 of the CSPA. She had received a further bond pursuant to s 9 on 20 August 2015 at Sutherland Local Court for an offence of never licenced person drive vehicle on road – prior offence, and on 10 May 2016 was sentenced by way of a s 10 bond for a period of six months for the same offence.

22. On 11 August 2015, the offender had been sentenced for an offence of supply prohibited drug to a term of imprisonment of 12 months, suspended pursuant to s 12. On a further offence of possess prohibited drug, she was sentenced by way of s 10A of the CSPA, with a conviction and no other penalty. On 12 May 2016, for an offence of supply prohibited drug, the offender was sentenced by way of call up to a term of 12 months imprisonment commencing on 28 December 2015, with a non-parole period of four months commencing on the same date.

23. On 2 May 2016, the offender was sentenced on a charge of aggravated break and enter with intent in company to commit a serious indictable offence, to a sentence of 18 months imprisonment with a non-parole period of 8 months commencing on 28 August 2015.

24. Exhibit A included a pre-sentence report under the hand of Ms L Shardlow dated 28 June 2017. That report set out the offender’s history of supervision by Community Corrections which revealed that her response to supervision previously had been considered unsatisfactory due to her illicit substance use. Under the heading “Family/Social Circumstances”, the report noted that the offender was born in Lebanon and had been adopted as a very young child. When she discovered that at 10 years of age, her relationship with her adoptive family had become at times, tenuous. Since the offences, the offender’s relationship with her mother had improved, however, there was still concerns about her commitment to follow through with making more positive choices in terms of her peers and addressing her illicit substance abuse. The family was, however, supportive, particularly of her entering long-term residential rehabilitation.

25. The offender had completed year 10 and had then commenced an apprenticeship in hairdressing, which had ceased after 2 years due to her illicit substance abuse. Her substance abuse had also led to her offending.

26. The offender reported that she had commenced abusing illicit substances from her early teens and that included methylamphetamine. Within six months that had escalated to daily use. The offender had indicated that methylamphetamine was no longer an issue for her, however, she conceded that her cannabis use remained problematic.

27. The offender had been diagnosed with depression four or five years ago. Under the heading “Attitude to Offending”, the offender did not dispute the police facts and accepted responsibility for her actions. She indicated she had been using methylamphetamine on a daily basis, together with Xanax, in the lead up to the offences. She stated that she had not slept in approximately two weeks prior to the offending, along with the motive to settle an outstanding drug debt of $600.

28. The offender’s criminogenic needs were identified as:

• Companions

• Alcohol/drug problems

• Emotional/personal

• Attitude/Orientation

29. She was assessed as a medium risk of re-offending.

30. The offender acknowledged the inevitability of further periods of custody should she fail to invest in a lengthy period of time in a residential rehabilitation program. She gave an assurance that she was willing to pursue admission into a suitable program, and it was for that reason the matter was first adjourned. She was otherwise assessed as unsuitable for a Community Service Order.

31. Exhibit B was an updated assessment by Community Corrections under the hand of Ms A Porter, dated 27 August 2018. The report noted that since the previous report, the offender had had multiple short admissions to residential rehabilitation facilities, however, had failed to complete a program. She had abstained from methylamphetamine use for a period of four to five months and had abstained from cannabis use for two and half months. She preferred to seek out-patient psychological intervention rather than re-enter a residential rehabilitation facility.

32. The author opined that the offender would benefit from a period of supervision by Community Corrections, and that case management strategies would include referral for psychological intervention and if deemed necessary, residential rehabilitation.

33. Exhibit C was an updated custodial record issued by New South Wales Department of Corrective Services.

34. Prior to sentencing, the offender had numerous breaches of orders made and Ex A contained the court attendance notices, detention applications and statements of facts relating to those matters. Ex A also contained the Remarks on Sentence of Acting Judge Hosking dated 2 May 2016 of a co‑offender, Ms A Smith, in the subject offences.

Evidence adduced on behalf of the offender

35. The offender tendered the following documents:

1. Exhibit 1 – Was a letter from Ms P Jeffries dated 25 June 2018, advising that the offender was admitted into the Salvation Army Detox Unit in Sydney on 30 May 2018 to complete a medically supervised detox, prior to being transferred directly to the Dooralong Transformation Centre. She was admitted to that centre on 12 June 2018, but discharged on 25 June 2018.

2. Exhibit 2 – Was a letter dated 11 June 2018 from Ms E Langham who employed the offender as an apprentice hairdresser. The offender was described as “a very hard-working, passionate girl, who shows great potential”. Ms Langham was aware of the legal issues the offender was facing and the business was 100% supportive of the offender.

3. Exhibit 3 – Was a letter from Dr A Ahmed, forensic psychologist, who had been treating the offender since 24 September 2018. The offender had attended four sessions so far, and had denied use of ice for the past six months. The offender had attended regular fortnightly sessions and expressed a willingness to make changes necessary to her life to live a balanced, productive, positive lifestyle.

4. Exhibit 4 – Was a letter from Ms Jean Nguyen dated 17 August 2018, outlining the apprenticeship network providers support for the offender as an apprentice hairdresser.

The offender’s evidence

36. The offender gave evidence that over the last 15 months she had attended three rehabilitation centres, being Odyssey House, William Booth and Dooralong. She did not complete any of the programs, and when asked why she said that in each facility she knew a lot of people from her previous life, meaning her involvement in drugs. At William Booth she had “kept her head down” and remained for three months. However, she had tendency to fall into bad habits. Notwithstanding that, the offender gave evidence that she gained a lot from the experiences, in particular, with coping mechanisms. She had been at William Booth for a period of some six months in 2017. She was never put out, but was stood down for two weeks on three occasions. She had completed Level 1 of the program.

37. She left Dooralong after one week. She also applied and was accepted for the WHOS Program, but did not attend. She had not attended a residential rehabilitation program since her time at Dooralong.

38. The offender gave evidence that she sees Dr Nasar at South Hurstville. Her treatment had assisted her and she sees her every two weeks. She also saw Dr Ahmed, the psychologist referred to in Ex 4. The offender gave evidence that she was employed at a hair and beauty studio as a second year apprentice hairdresser. As part of her apprenticeship she attended TAFE one day per week. She enjoyed her work and had been working in salons for a period of four years.

39. The offender agreed that her attempts at rehabilitation had been on a stop start basis. However, she gave evidence that she had matured a lot since the offending three years ago, and that she would never be charged again.

40. In cross-examination the offender gave evidence that she wanted to retain her sobriety. She was pretty proud of herself for her progress with her rehabilitation, and now could not believe that she did these “things”, meaning her criminal offences. It was not her.

41. The offender gave evidence that she had the support of her family and her mother. She had been stood down from the William Booth facility on three occasions for verbal aggression, for not telling staff about an incident and for a shoplifting offence. Notwithstanding that she had never completed a rehabilitation program, she had still learned a lot.

42. The offender agreed that she had seen Dr Ahmed on only four occasions since 24 September 2018. She denied now using ice or any prohibited drugs.

The Crown submissions

43. The Crown submitted that the offender’s conduct had the effect of intimidating the victim, who was scared of the offender and the males accompanying her. He was alone in his home, at night time, and the actions of the offender, committed in the company of two other males, would have caused him to fear for his safety. The Crown submitted the following aggravating factors applied pursuant to s 21A(2) of the CSPA:

1. (2)(e) – The offending occurred in the company of two other males.

2. (2)(eb) – The offence was committed in the home of the victim.

3. (2)(j) – The offender was subject to a suspended sentence for robbery in company at the time she committed these offences.

44. The Crown submitted that the criminal history of the offender was not an aggravating factor, however, it did disentitle her to leniency in the sentencing process.

45. The Crown outlined general principles of sentencing, including the need for general deterrence and denunciation. It submitted that specific deterrence was a paramount consideration here, given the offender’s record, which revealed a significant and protracted history of non-compliance with court orders. It was submitted that her ongoing demonstrated disregard for court orders meant that her prospects of rehabilitation were limited. Notwithstanding that, on 25 July 2017, Acting Judge Hosking granted the offender an opportunity to demonstrate her prospects of rehabilitation, she had repeatedly since then breached her bail. This occurred by the two subsequent offences on 5 February 2016 (possess prohibited drug) and 30 November 2017 (shoplifting), referred to above, by which she was dealt with by way of fines. It also included seven further breaches between 20 October 2015 and 3 January 2018, the details of which are supported by court attendance notices and detention applications contained in Ex A. There is no need, for the purposes of sentencing, to rehearse the details of those breaches. It was submitted by the Crown that they, together with the commission of the two further offences, reflected the offender’s continued disregard for the law and orders of the court. In those circumstances, her prospects of rehabilitation are extremely guarded.

46. The Crown submitted that the s 5 threshold had been crossed, particularly given that the offender was on conditional liberty at the time of the offence and it was the Crown’s ultimate submission that a term of imprisonment should be imposed today. The offender’s plea of guilty had been entered on the first day of her trial and therefore the Crown submitted the offender was entitled to no more than a 10% discount in respect of the plea.

47. There is no issue that the offender had been in custody solely referrable to this matter for a period of 52 days. The Crown sought a final Apprehended Violence Order pursuant to s 39 of the CDPA for the protection of the victim.

48. In her oral submissions the Crown submitted that an additional aggravating factor, pursuant to s 21A(2)(b), was the threatened use of violence.

The Offender’s submissions

49. Counsel for the offender submitted that there could not be an aggravating factor pursuant to s 21A(2)(b), namely, the threatened use of violence, because the offence to which the offender had pleaded guilty encompassed a threat of violence itself.

50. It was further submitted that the offender, who was now 23 years, and had grown up in the three years since the offending, and now had a job and mentor, had good prospects for her rehabilitation. Further, there was limited risk of her reoffending, given that she was continuing to receive assistance and support from her family and extended family. Whilst her criminal history disentitled her to leniency, there was only one serious criminal offence included in it, namely, robbery. Counsel characterised her criminal antecedents as being “archetypal of a young drug user”.

51. It was conceded that general and specific deterrence were important in the sentencing process, and that the offending had occurred whilst the offender was on conditional liberty, and a further aggravating factor was that it occurred in the home of the victim.

52. It was submitted that the offences carried maximum penalties of 5 years and 3 years respectively, however, the offending was at the lower end of objective seriousness for such offences, and being part of the same course of conduct, there should be a high level of concurrency in sentence.

53. Counsel submitted that whilst the offender had not completed her residential rehabilitation programs, she should be given credit for time that she did spend, particularly at the William Booth facility. Whilst she would not be entitled to a 50% credit in relation to her time there, it was a matter the court should take into account, given that she was subject to a degree of restrictions whilst in that facility.

54. Notwithstanding that one of the offences was a State offence, and the other a Commonwealth criminal offence, counsel submitted that the offender could be sentenced pursuant to New South Wales legislation. Here, a Community Correction Order was available for up to a period of three years, and there was an emphasis on greater rehabilitation.

49. It was submitted that the offender had spent 122 days in custody in respect of the breach of the s 12 bond for her previous offence of robbery. She had subsequently spent 52 days in custody in respect of the subject offences. Her rehabilitation was well progressed and the offender had employment in the community. It was submitted that a full-time custodial sentence would be a detriment to both her and the community, and that she would receive no meaningful rehabilitation in custody, whereas she was under the care of a psychologist who she was seeing regularly in the community. A Community Correction Order with conditions would involve supervision by Community Corrections. Otherwise, counsel advocated that she should be sent for further assessment for sentence by way of an Intensive Correction Order.

Determination

56. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

57. I find the objective seriousness of the offending for the offence of stalk or intimidate intending to cause fear or physical or mental harm (personal violence offence pursuant to s 13(1) of the CDPVA), was below the mid‑range for an offence pursuant to that section, but towards the upper end of the lower range of objective seriousness for such an offence. It involved the offender, in the company of two males, breaking the lock on the front door of the victim’s premises, and then confronting him in the courtyard in an aggressive manner, telling the victim that he had half an hour to find his brother George, and that if he did not find him, the drug debt they were pursuing was on his head. Aggravating features of the offending were that it was committed in the home of the victim (s 21A(2)(eb)), and that it was committed in company (s 21A(2)(e)). I find that it was not an aggravating feature that the offence involved the actual threatened use of violence pursuant to s 21A(2)(b), as the offence already encompasses an element of causing fear of physical or mental harm, being a personal violence offence. It also occurred whilst the offender was on conditional liberty pursuant to a suspended sentence of 18 months for armed robbery in company.

58. I find that there was some limited planning for the offence, in that the offender and the two males had driven to the premises and clearly had a purpose for their criminal behaviour, namely, pursuing a drug debt.

59. I find that the objective seriousness of the offence pursuant to s 474.17(1) of the CCA (Cth) of use carriage service to menace/harass/offend, is towards the lower end of objective seriousness for such an offence. Consistent with that finding, the same offence the subject of a certificate pursuant to s 16BA of the Crimes Act 1914 (Cth) is at the lower end of the range of objective seriousness for such an offence pursuant to that section.

60. I have had regard to the maximum penalties of five years imprisonment and/or 50 penalty units for the offence pursuant to s 13(1) of the CDPVA, and the maximum penalty of three years imprisonment for the offence pursuant to s 474.17(1), as guideposts in the sentencing process. By taking into account the further offence pursuant to s 474.17(1) of the CCA, must mean some accumulation in sentence in respect of the subject offence.

61. General deterrence is important in the sentencing process here. A clear message must be sent to the community, and in particular like-minded members of the community, that Parliament has proscribed lengthy prison terms for such offences, and that the courts will impose custodial sentences in appropriate cases. I accept the Crown’s submission that specific deterrence is a paramount consideration here also, given the offender’s criminal history and in particular, her history of non-compliance with court orders. However, I note that she was re-sentenced on call-up for the breach of her s 12 bond, and served the balance of that sentence in custody. Her criminal antecedents disentitle her to any leniency in the sentencing process.

62. There are significant subjective factors to be taken into account on sentencing here. I was very impressed with the evidence given by the offender. She was 19 years of age at the time of the offending, and in the grip of an addiction to the drug ice. Whilst she had, on several occasions, attempted rehabilitation programs, and had failed to complete same, I nevertheless accept that she gained some assistance from those programs and in particular, has learnt coping mechanisms in order for her to live without relapse into drug abuse. I give particular emphasis to the fact that she was 19 years of age at the time of the offending, and she has now matured into a young woman with steady employment, the support of her employer and family, and most importantly, is under ongoing treatment from her psychologist, to whom she relates well. It is no small thing to overcome a drug addiction of the type she had, and her history of breaching bail conditions relates principally to her struggles with her addiction.

63. In addition to her employment, she is also attending TAFE one day per week.

64. The fact that the offender was 19 years of age at the time of the offending conduct and her immaturity are factors which must be taken into account in the sentencing process here – see R v Nelson [2016] NSWCCA 130.

65. I also find that the offender is entitled to a utilitarian discount on sentence of 10% for her late plea of guilty.

66. I have taken into account the fact that the offender has spent 52 days in custody in respect of the subject offences, as well as serving out a period of 122 days in custody in respect of the breach of the s 12 bond imposed for the offence of robbery. Having regard to all of the circumstances here, including the objective seriousness of the offending, the significant subjective matters referred to above, including her young age at the time of the offending, her struggle with addiction to prohibited drugs, and the progress she has made since, over a period of 3 years with her rehabilitation (notwithstanding her failure to complete one of three residential rehabilitation courses), and the fact that she has full-time employment, lead me to conclude that any sentence would be best served in the community by way of a Community Corrections Order pursuant to s 8(1) of the CSPA. This will assist in her rehabilitation.

67. Pursuant to s 20AB of the Crimes Act 1914 (Cth), this court is entitled to sentence the offender by way of a Community Correction Order for the offence of use carriage service to menace/harass/offend pursuant to s 474.17(1) of the CCA, having taken into account the further matter pursuant to s 16BA. I intend to sentence the offender in respect of that matter to a Community Correction Order for a period of 6 months from today, pursuant to s 8(1) of the CSPA.

68. In respect of the offence pursuant to s 13(1) of the CDPVA, of stalk or intimate intending to cause fear or physical or mental harm, I intend to sentence the offence pursuant to s 8(1) of the CSPA, instead of imposing a sentence of imprisonment, to a Community Correction Order. The order will be for a period of 22 months commencing today.

Orders

69. I make the following orders:

1. You are convicted of the offence of use carriage service to menace/harass/offend pursuant to s 474.17(1) of the Criminal Code Act 1995 (Cth).

2. Pursuant to s 8(1) of the CSPA, instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order for a period of 6 months from 26 October 2018.

3. You are convicted of the offence of stalk or intimidate intending to cause fear or physical or mental harm (personal violence offence) pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

4. Pursuant to s 8(1) of the CSPA instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order for a period of 22 months commencing on 26 October 2018.

5. The standard conditions for each Community Correction Order apply, viz:

1. You must not commit any offence; and

2. You must appear before a court if called on to do so at any time during the term of the order.

6. The following additional conditions also apply:

1. You are to accept the supervision of Community Corrections.

2. You are to accept any recommendation by Community Corrections as to drug and alcohol rehabilitation and relapse prevention.

7. If you fail to comply with the conditions of the order, further action may be taken against you. This may require you to return to court to be re‑sentenced.

8. You are to report to Community Corrections at Hurstville within seven days.

9. I make a final Apprehended Violence Order for the protection of Mr Christopher Christodoulou for a period of 2 years from 26 October 2018.

**********

Decision last updated: 26 October 2018