R v Bennett
[2015] ACTSC 36
•16 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Bennett |
Citation: | [2015] ACTSC 36 |
Hearing Dates: | 18 December 2014 and 16, 18 and 20 February 2015 |
DecisionDate: | 16 February 2015 |
Before: | Murrell CJ |
Decision: | Sentenced to three years’ imprisonment, backdated to 11 August 2014 and suspended from 16 February 2015 on a good behaviour order with immediate residential rehabilitation. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – early guilty plea – aggravated robbery – rehabilitation |
Legislation Cited: | Criminal Code 2002 (ACT) s 310 Crimes (Sentencing) Act 2005 (ACT) ss 33, 35 |
Cases Cited: | R v Henry (1999) 46 NSWLR 346 |
Parties: | The Queen (Crown) Melissa Anne Bennett (Offender) |
Representation: | Counsel Ms P Burgoynes-Scutts (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 231 of 2014; SCC 232 of 2014 |
MURRELL CJ:
The offender adheres to a plea of guilty entered at the earliest reasonable opportunity to the offence that on 27 June 2014, she committed an aggravated robbery. This is an offence contrary to s 310(b) of the Criminal Code 2002 (ACT). It carries a maximum available penalty of 25 years’ imprisonment and/or a substantial fine.
Pending sentence, the offender breached bail by failing to attend an appointment and by submitting a urine sample that tested positive. As a result, bail was revoked and the offender has been in custody since 13 August 2014.
The Offence
On 27 June 2014, the victim was working behind the counter at Coles Express in Braddon. The manager was present in a back office.
The victim observed the offender ride her bicycle into the petrol pump area at about 5.00 pm. He observed her acting suspiciously; she was wearing a hooded jacket with the hood pulled up over her head and forehead.
The offender entered the store, removed a silver bladed knife from her front area and approached the victim. She pointed the knife at him and said aggressively, "Give me the money or I'll fucking kill you."
The victim opened the till and removed a $50 note. The offender jumped onto the counter, placing her torso under the lower piece of security wire. She reached towards the open cash register and grabbed notes from the tray. The victim threw a $50 note towards the offender but it landed on the floor on his side of the counter. The offender demanded that he pick it up or she would "kill him." The victim threw the note onto the counter towards the offender.
The offender took the cash and ran from the store. She mounted her bicycle and rode off. She had taken $230 from the cash register.
CCTV footage recorded the incident. Later that afternoon, the offender was arrested. When she was searched, police located the knife that had been used in the robbery and a significant quantity of the currency that had been taken from the service station.
Subjective Circumstances
The offender was 37 years of age at the time of the offence. Her criminal history was not insignificant, but it generally related to matters that differed from that before the Court. There are no serious matters of dishonesty on the offender’s criminal history. There are no matters of violence on her criminal history. There were a number of matters involving drugs, some driving matters and other relatively minor matters. The most significant matter on the criminal history was a 2008 offence of trafficking in drugs. This resulted in an 18 month sentence that was suspended after the offender served six months. She served other short sentences concurrent with that sentence.
She is the youngest of eight children. A brother died three years prior to the offender's birth and the offender's mother found it difficult to cope with that situation. The offender’s mother was then raising a large number of children as a single mother. The offender did not receive a great deal of nurturing in her younger years.
She was educated to Year 8. She completed her schooling in Canberra. She suffered some childhood trauma. When she was 16 years of age, she was seriously assaulted. At least in part, that was the impetus for symptoms of depression and anxiety in association with post-traumatic stress disorder. The condition was not treated at the time.
There have been recent traumas in the offender's life. She has two children. She has a 12-year-old daughter who resides in Wagga Wagga with a former partner. There is a son who was two years old at the time of the offence. The son lived with the offender, and she was a single mother at that time. The boy’s father is in custody. The offender was under a lot of pressure at the time of the offence. Her mother had undertaken some surgery which rendered her a paraplegic. The offender assumed responsibility for caring for her mother, undertaking shopping and other tasks.
The offender has mental health issues of uncertain aetiology. These date - at least - from when the offender was 16 years of age. She takes anti-depressant medication and perhaps anti-psychotic medication as well. Her medication regime is beneficial. An old mental health report suggests a probable personality disorder and raises the possibility of bipolar disorder.
The offender certainly suffers from depression. One of the reporters noted that the offender’s mental health problems are interconnected with drug use. Until the drug use is resolved, it may be difficult to determine with certainty the nature of the offender's mental health issues.
The offender has a long history of poly-substance abuse. She was a heavy user of non-prescription benzodiazepines at the time of the offence. She was also a very heavy user of heroin and “ice” at that time. The offender's lifestyle was chaotic. She lacks a clear memory of the incident at Braddon on 27 June 2014. This is probably due to the very large quantity of benzodiazepines, heroin and ice that she was consuming at the time.
To the offender's credit, since she has been in custody she has availed herself of every opportunity to address her problems. She is highly motivated to address them because she wants to resume the care of her young son. Previously, she has not undertaken residential rehabilitation. She is on methadone. The offender has undertaken a number of programs in prison. Unfortunately the Solaris program which is an extremely helpful in-custody residential substance abuse program is not available to women prisoners. However, the offender has formulated a rehabilitation plan.
Applicable Law
R v Henry (1999) 46 NSWLR 346 is a New South Wales guideline judgment in relation to sentencing for armed robbery. It does not apply as a guideline judgment in the ACT, but it is a useful decision. It identifies factors that apply in a “typical case” and concludes that the effective starting point for a sentence in such a case is about five and a half years. Henry refers to a shorter sentence in the context of a late plea of guilty. The “typical case” discussed in Henry involves a young offender who uses a weapon like a knife; against a vulnerable victim; from whom a small sum of money is taken; and where the offender has little, if any, criminal history. Other factors are also discussed.
In some respects, this case could be described as typical; it was a robbery at knife point and a small sum of money was taken. The offender has a relatively minor criminal history and no record for matters of this nature. On the other hand, the victim was not especially vulnerable. He was not working in an isolated situation late at night. Another employee was present. The offence occurred on a Friday afternoon. The offender could not be described as a young person in the sense discussed in Henry.
In the ACT, the starting point for sentences in aggravated robbery matters is generally slightly lower than the starting point in New South Wales. This is despite the fact that, in the ACT, the maximum available penalty is 25 years as opposed to 20 years in New South Wales for the equivalent offence. The table provided by the Crown and my investigations on the Sentencing Database confirm that proposition. In the ACT, the mid-point for sentencing for such offences is about three and a half years’ imprisonment. A not insignificant number of offenders, 37% in all, receive a fully or partially suspended sentence. Sixty-one percent receive a sentence of full time imprisonment. In relation to partially suspended sentences, the mid-point for sentencing is two years and the 80% range is 18 months to three years.
In sentencing the offender, the Court is required to consider sentencing patterns in the ACT (to which I have already referred). The Court has referred to Henry on many occasions as providing some assistance in relation to sentencing for matters of aggravated robbery.
The Court is required to consider (insofar as they are known and relevant) the matters in s 33 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). I have referred to some of the relevant matters above, including the nature and circumstances of the offence and the financial loss associated with the offence. However it appears that some of the moneys were recovered. No doubt there was a psychological impact on the victim. The offender has accepted responsibility for the commission of the offence. That is indicated by the early plea of guilty, and statements that the offender has made to reporters. I have considered the subjective circumstances of the offender and the fact that she was affected by a substance at the time when the offence was committed. I have considered the other matters in s 33 of the Sentencing Act.
Under s 35 of the Sentencing Act, the Court does not merely consider the plea of guilty and the stage at which the plea was entered. The Court is also required to consider matters such as the seriousness of the offence. How that is then factored in is somewhat obscure. The approach that is commonly taken is that the primary consideration is the stage and circumstances in which the plea of guilty was entered, and I adopt that approach.
Sentence Imposed
The appropriate starting point for the sentence, taking into account the objective and subjective circumstances, the maximum available penalty and the other matters to which I have referred, is four years' imprisonment. For the early guilty plea a discount of 25% will be given, reducing the sentence to three years' imprisonment.
Taking into account the period spent in custody since 13 August 2014 and other days that were spent in custody in connection with the matter, the appropriate starting date for the sentence is 11 August 2014.
The offender has formulated a plan for residential rehabilitation. This involves her obtaining a place at an establishment known as "Lesley's Place." Lesley’s Place provides support for people with drug and alcohol problems in a shared house residential setting. At Lesley's Place, the offender will be able to access a program known as "The Wired Day Program." It is an eight week program running Monday to Thursday that supports people who are addressing substance abuse. From there, when a bed is available, the offender can move to the Karralika residential rehabilitation program, where she will probably be a resident for at least six months. She can transition into the community through related Karralika programs, possibly over a period of about 12 months.
The offender cannot go directly from prison to Karralika because she is on methadone. Karralika will not accept people directly from prison if they are on methadone.
The matter was adjourned until a place became available at Lesley’s Place for the offender.
Sentence Given on 16 February 2015
The offender is convicted and sentenced to 3 years’ imprisonment.
The sentence of imprisonment is to commence on 11 August 2014 and end on 10 August 2017. It is to be served by way of full-time imprisonment from 11 August 2014 to 16 February 2015. It is to be suspended from 17 February 2015 upon the offender entering into a good behaviour order for the balance of the term of imprisonment.
In addition to the core conditions, the offender is subject to the following conditions for the duration of the good behaviour order:
(a)Proceed immediately on release to Lesley’s Place Residential Program for the purpose of undergoing treatment for drug and alcohol dependence;
(b)Remain in and participate in any programs or treatment as directed and obey all reasonable directions of the staff of Lesley’s Place;
(c)Not to terminate or absent herself from the Lesley’s Place Residential Program without the prior permission of the Supreme Court;
(d)While at Lesley’s Place Residential Program actively pursue her application for a place in the Karralika Therapeutic Community Residential Program;
(e)Remain in Lesley’s Place Residential Program until she is offered a place in the Karralika Therapeutic Community Residential Program;
(f)Upon being offered a place in the Karralika Therapeutic Community Residential Program proceed directly to that program;
(g)Remain in and participate in any programs or treatment as directed and obey all reasonable directions of the staff of Karralika Therapeutic Community Residential Program;
(h)Not to terminate or absent herself from the Karralika Therapeutic Community Residential Program without the prior permission of the Supreme Court;
(i)If discharged from either program for any reason report as soon as possible and in any case within 24 hours to the Registrar of the Supreme Court during business hours or otherwise to any police station in the ACT;
(j)Accept the supervision of ACT Corrective Services and obey all their reasonable directions;
(k)Report to ACT Corrective Services by telephone within 24 hours of her release from custody;
(l)Take all medication including methadone that is prescribed for her;
(m)Not consume intoxicating liquor or illicit drugs; and
(n)Submit to urinalysis as requested by Corrective Services.
Variation of the Conditions of Good Behaviour Order on 18 February 2015
It became necessary to vary the conditions of the good behaviour order imposed on 16 February 2015. The offender was released from the Alexander Maconochie Centre (AMC) on 16 February at 5pm, instead of 17 February 2015, as was envisaged by the orders. The offender stayed with her mother that evening. Lesley’s Place was not prepared to accept the offender as she had not come directly from the AMC. They required that the offender first undergo a detoxification program. It was necessary to vary the conditions of the good behaviour order so as to allow the offender to reside with her mother until she was able to obtain a place at a detoxification centre.
The good behaviour order made on 16 February 2015 was amended as follows:
(a)The offender is to reside at her mother’s place of residence or in a detoxification centre in Canberra;
(b)She is to make all reasonable efforts to obtain a place in a detoxification centre in Canberra; and
(c)While residing with her mother, the offender must not leave the residence between 5pm and 8am.
Variation of the Conditions of Good Behaviour Order on 20 February 2015
The offender obtained a place at a detoxification centre. It was therefore necessary to amend the conditions of the good behaviour order so as to enable her to transition to Lesley’s Place.
The variation made to the conditions of the good behaviour order on 18 February 2015 was deleted.
The conditions of the good behaviour order made on 16 February 2015 were amended so as to require the offender to proceed immediately on release from the Canberra Detoxification Centre to Lesley’s Place.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: 27 February 2015 |
Amdendments
27 February 2015
That in the head note “Legislation Cited” the words “Crimes Act 1900” be replaced with “Criminal Code 2002”.
That at [1] the words “Crimes Act 1900” be replaced with “Criminal Code 2002”.
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