R v Bell
[2020] ACTSC 37
•15 January 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Bell |
Citation: | [2020] ACTSC 37 |
Hearing Date: | 15 January 2020 |
DecisionDate: | 15 January 2020 |
Before: | Walker AJ |
Decision: | 15-months imprisonment with 12 months to be served as a Drug and Alcohol Treatment Order. See [25]-[28] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – drug and alcohol sentencing list – drug and alcohol treatment order – order granted – property damage – minor theft |
Legislation Cited: | Criminal Code 2002 (ACT) ss 318(1), 321, 403 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 80O, 80S |
Cases Cited: | R v Pang [2014] ACTSC 319 R v Verdins (2007) 16 VR 269; 169 A Crim R 581 DPP v O’Neill [2015] VSCA 325; 256 A Crim R 469 |
Parties: | The Queen (Crown) Kimberley Bell (Offender) |
Representation: | Counsel J Hiscox (Crown) M Jones (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sarah Boxall Legal (Defendant) | |
File Numbers: | SCC 329 of 2019 SCC 330 of 2019 |
WALKER AJ (ex tempore):
Summary of charges
Kimberley Bell is charged with one count of taking a motor vehicle without consent (CAN2019/10585) contrary to s 318(1) of the Criminal Code 2002 (ACT) (the Code) which, on conviction, carries up to five years imprisonment and a fine of up to $80,000, one count of minor theft (CAN2019/12857) contrary to s 321 of the Code which carries up to six months imprisonment and a fine of up to $8,000, and one count of damaging property (CAN2019/10879) contrary to s 403 of the Code which carries up to 10 years imprisonment and a fine of up to $240,000.
Ms Bell was also charged with one count of menacing driving. I am not to deal with that today as at the conclusion of these proceedings that charge will be withdrawn.
Ms Bell initially entered not guilty pleas to the summary charges and then to the charge of damage property which was laid in the Magistrates Court a few weeks later. Following a review of the brief of evidence, Ms Bell entered pleas of guilty to each of the charges in the Magistrates Court and was committed for sentence on the damage property charge and for assessment of her suitability for a Drug and Alcohol Treatment Order pursuant to s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The remaining charges were transferred for sentence as related charges.
Evidence
The evidence available to me on sentence consists of the statement of facts, photographs of the damage caused at 9 De Chair Street in Deakin, the offender's criminal history, a suitability assessment report dated 10 January 2020 under the hand of Ms Leah Robinson of the Alcohol and Drug Service, a letter from Wayback Drug and Alcohol Rehabilitation Centre dated 10 January 2020 under the hand of Theresa Mutafa, the client co-ordinator, a suitability assessment report dated 10 January 2020 under the hand of Ms Alex Durant, social worker with Forensic Mental Health, a suitability assessment report prepared by ACT Corrective Services dated 10 January 2020 under the hand of Ms Jessica Ryan, a report from Dr Danielle Clout, psychologist, dated 6 January 2020 and a personal reference from Mr Charles Foley, a friend of the offender, supplemented by his unchallenged oral evidence in court today.
I have also been provided with written consents by Ms Bell to participate in a Drug and Alcohol Treatment Order and for the sharing of information between those involved in the implementation of that order.
Factual circumstances
On 27 September 2019, Ms Bell took a Peugeot motor vehicle which was leased to the mother of her then girlfriend, Ms Davis, whilst Ms Davis was sleeping, along with Ms Davis' mobile telephone, a Samsung 10, and $480 in cash. The plan apparently was to go and purchase drugs. Between 5 am and 7 am, Ms Bell drove the car up and down De Chair Street in Deakin playing loud music and shouting.
It was apparently her intention to engage with a Ms Jessica Monaghan, one of the occupants of number 9. Mr Jeremy Brown, who also lived at that address, remonstrated with Ms Bell who then left the area. However, in the meantime she spoke with another person who encouraged her to stand up to Mr Brown. She returned to De Chair Street at about 7.40 am and drove the Peugeot motor vehicle into the front lounge room of number nine. Naturally, this woke Mr Brown and Ms Monaghan who had gone back to sleep. A sliding glass door and its surrounding brickwork were significantly damaged as were the electrical mains requiring power to the premises to be cut off.
Glass was shattered inside the lounge room of the premises. The car was also damaged; although, the charge does not relate to that damage. Thankfully and fortuitously, no occupant was harmed whilst the offence was committed. Ms Bell got out of the car. Mr Brown chased her. They exchanged blows and Ms Bell retreated over a fence. She was arrested in the suburb soon after.
In respect to the objective seriousness of the offences, the drive without consent involved a motor vehicle which was subject to a lease. It was taken and used for a crime. It was damaged in the process of that crime. In relation to the minor theft, it was of a telephone which, for most of us, is an essential piece of equipment in our daily lives, and what would not have been an insubstantial amount of money to Ms Davis, $480 in cash, noting that she too was somewhat strained in her circumstances. I assess these offences as being in the mid-range of examples of this type of offending.
In relation to the damage property charge, I accept that it was spontaneous and not pre-meditated. I have no specific information as to the cost of the repair to the house although one could quite sensibly anticipate that it would be in the thousands of dollars. Given the way in which the damage was effected and the vulnerability it placed the home occupants in, as well as the inconvenience which it no doubt caused them, I assess this offence as being in the mid-range of seriousness for an offence of its type.
A comparator was put before me in the form of a decision in R v Pang [2014] ACTSC 319. Although there are no cases which involve facts that are squarely the same as those subject to these proceedings, I note that Mr Pang effected significant damage to a building but that was an unoccupied business premises in the early hours of the morning. Mr Pang was clearly affected by mental illness, being a schizoaffective disorder, for which he was subject to a psychiatric treatment order and it was not associated with any other offending. I assess that as being a less serious offence than that which Ms Bell is to be dealt with today. Mr Pang was sentenced to 12 months imprisonment reduced from 16 because of the plea of guilty which he entered, and I consider that in determining an appropriate sentence today.
Subjective circumstances
Turning to Ms Bell's subjective circumstances. She is a 25 year old woman with a negligible criminal history from New South Wales, consisting of a low range PCA offence and driving as an unsupervised learner. Perhaps more concerningly, she has a conviction for common assault which included an attack on the victim’s neck from Tasmania in 2017.
Ms Bell was brought up in what appears to have been somewhat challenging circumstances, exacerbated when her parents separated when she was 12 years of age. There appears to have been a degree of violence in the home, although the nature of that is not entirely clear, and significant emotional tension. Despite that, her parents are now supportive of her. Ms Bell identifies as aboriginal although does not have close connections with her indigenous culture. She was educated to year 10 and has held some short term, relatively low skilled employment. I note the observation by Mr Foley, who himself is a man with significant experience in life, that she presents as an intelligent woman and perhaps has a capacity far greater than that she has yet realised.
Her exposure to alcohol and drugs commenced early, from the age of 10, and increased significantly from the age of 16. She has used methamphetamine since the age of 18 and regularly since the age of 22. There have been some periods of abstinence, largely in controlled environments in withdrawal facilities whilst undergoing rehabilitation, and whilst in prison. Ms Bell was using heavily at the time of this offending. She has also demonstrated what might be perceived as drug seeking behaviour in relation to benzodiazepine.
Ms Bell's mental health status is somewhat unclear. She was diagnosed by a psychiatrist recently during her time in custody as likely suffering bipolar affective disorder. Dr Clout, a psychologist who prepared a report on behalf of Ms Bell, prefers a provisional diagnosis of borderline personality disorder; she notes a 20 per cent co-morbidity between these two conditions and a significant overlap in symptoms. Dr Clout, at the time of her assessment, did not observe any sufficient length of symptoms, that is of the depressive or manic components, of a bipolar affective disorder which would allow her to come to that same diagnosis. What is clear is that Ms Bell suffers from a series of symptoms which are likely to fall within a formal diagnosis but, in any event, affect her social functioning. She has also suffered from an eating disorder, bulimia nervosa, and has had inpatient treatment for that in the past. Ms Bell is diagnosed currently with a substance use disorder.
She has engaged in self-harm in the past. There are clearly long-standing issues dating back to her mid-teenage years. Whatever the diagnosis, and of course there is no requirement for a formal diagnosis to consider the impact of mental health issues, that mental health situation expresses itself for Ms Bell particularly in emotional dysregulation, notably volatile anger, and fear of abandonment as well as poor self-image. Her offending appears to be related both to the emotional dysregulation and substance abuse which substantially contributed to her offending.
Her ability to make calm and rational choices appears to have been affected but it is not easy to say whether it was because of her emotional dysregulation, because of her substance abuse at the time, or because of a combination of the both. Ms Bell's anger has seen her disciplined in the AMC at least four times. This emotional dysregulation is a major issue and one which must be addressed if she is to avoid conflict and likely engagement with the criminal justice system in the future. She requires sustained treatment, possibly pharmacological, and likely ongoing therapy, Dialectical Behaviour Therapy in particular. I note that the latter is not available in custody and is a long term support treatment.
I note that Ms Bell is capable of both kindness, as evidenced by Mr Foley's reference, and a degree of insight, as is evident from the reports available to me. Her repeated attempts at addressing her substance abuse issue is evidence of some insight of the need to do so. Ms Bell has not had stable accommodation for a very long time and that was likely to be an important issue in how she would be dealt with today. It is, no doubt, a major risk factor for her mental health, substance abuse and therefore for future criminal offending. I note that she has been assessed at high risk of future offending.
Toora Women Inc has been able to offer some accommodation to Ms Bell which is available immediately. This may well be a lifeline for her in terms of her future and avoiding immediate ongoing imprisonment. I was concerned about the apparently ambivalent attitude that Ms Bell had disclosed in her engagement with Corrections to a Drug and Alcohol Treatment Order. I am prepared to accept at this point in time that that perhaps reflects a lack of understanding of what the order might involve, some concern about the intensive and potentially intrusive nature of the obligations that will flow, and a concern about the lack of accommodation. That in itself shows a degree of insight because an order of this type is not an easy option. In some instances, people may ultimately choose to be in prison as an easier option than undergoing what is required under a Drug and Alcohol Treatment Order.
Sentencing Considerations
I have had regard, in determining the sentence to be imposed, to sentencing considerations in s 7 of the Sentencing Act. Of course, there is a need for general deterrence in relation to damage property of this type. I have had regard to the need for specific deterrence, noting Ms Bell's volatile nature. The harm which has been effected on the community must be recognised and Ms Bell must accept responsibility although she has, of course, demonstrated that in part through her plea of guilty.
There is a real need for rehabilitation. Although certainly not a juvenile, Ms Bell is still a relatively young woman and there must be significant scope for that rehabilitation. I have regard to the factors in s 33 of the Sentencing Act; the relatively early plea, the taking of responsibility, the demonstration of remorse, or the articulation at least of that remorse, and voluntarily seeking treatment in relation to drug and mental health issues.
A little more complex is whether the principles in R v Verdins (2007) 16 VR 269 apply in relation to Ms Bell's situation. The prime of those considerations is whether her moral culpability is reduced because of her mental health state. It is likely that there is some contribution to her offending behaviour from her mental health state, but I find it difficult to conclude exactly what that is on the evidence before me. I also note that the Verdins principles have been considered more closely by several decisions, particularly in Victoria, since that decision was first handed down. DPP v O’Neill [2015] VSCA 325 is one of those. The courts have been keen to ensure that Verdins is not too readily applied and that there needs to be a very real connection between the mental health condition and any offending behaviour.
The ACT, in many decisions, has considered the application of the Verdins principles. In this particular instance, I cannot differentiate between the role of mental health and drug use and therefore I make no particular application of the Verdins principles to Ms Bell's circumstances. It does not mean, of course, that I am not cognisant of the mental health issues and the need for those to be addressed to reduce future offending.
I note that Ms Bell has been in custody since 27 September 2018 and that is, on my calculation, three months and 19 days to date. This time is to be taken into account. I also note that that is the first significant period that she has spent in custody and no doubt this has been challenging. I am to consider the relevant period of time which should be imposed, noting that there has been no view expressed to the contrary and that s 10 of the Sentencing Act applies. That is, that a sentence of imprisonment, albeit one of last resort, is an appropriate sentence. In relation to Ms Bell's circumstances, I am so satisfied and I can indicate that the periods of time that would be imposed in relation to these matters on the recording of a conviction are as follows.
Sentence
In relation to taking a motor vehicle without consent (CAN2019/10585), I would have imposed four months but that is reduced to three by virtue of the plea of guilty.
In relation to the minor theft charge (CAN2019/12857), I would have imposed three months but that is reduced to two by virtue of the plea of guilty.
I am satisfied that they should be served concurrently to the extent that the period of three months and 19 days should satisfy both of those periods of imprisonment and be taken as time served.
In relation to the charge of damaging property (CAN2019/10879), I would have imposed a period of imprisonment of 20 months but that is reduced to 15 months by virtue of the plea of guilty which has been entered.
I turn then to consideration of how that should be served. Of course, the committal to this court was for the purpose of assessment for suitability for a dug and alcohol treatment order. I am satisfied that Ms Bell meets the eligibility criteria and that is something which was considered early on when the matter was first before the court pursuant to s 12A and s 80S of the Sentencing Act. In particular, I am satisfied that she is dependent on a controlled drug and that her dependency substantially contributed to her offending behaviour.
I have had regard to the sentencing considerations, as detailed in s 7 and s 33, the objects of the Drug and Alcohol Treatment Order as detailed in s 80O and suitability considerations pursuant to s 80T of the Sentencing Act. I note that Ms Bell has consented to participate in this order. I am satisfied that an order of this type is appropriate.
I therefore order that 12 of the 15 months is to be served as a Drug and Alcohol Treatment Order, to commence on 15 January 2020.
| I certify that the preceding twenty-eight numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Walker. Associate: Date: 3 March 2020 |
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