R v Bower
[2022] ACTSC 382
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Bower |
Citation: | [2022] ACTSC 382 |
Hearing Date: | 14 December 2021 |
DecisionDate: | 4 January 2022 |
Before: | Refshauge AJ |
Decision: | 1. The proceedings be adjourned to Wednesday 2 March 2022 at 11:00 am for sentence. 2. The parties be at liberty and on short notice to relist the matter earlier, including in the event that a placement at Karralika Programs Inc becomes available for Hollie Maree Bower, or that the placement for Hollie Maree Bower at Toora Women Inc become unavailable. 3. Hollie Maree Bower be granted bail to appear in Court for sentence on Wednesday 2 March 2022, on the following conditions: 1. That she reside at the Justice Housing Program or Toora Women Inc. during the remand period and comply with the rules of the facility and obey all reasonable directions of the person in charge of the facility; 2. That she engage in such counselling or other programs as may be reasonably available to her; 3. That she not leave her place of residence between 8:00 pm each day and 8:00 am the next day, except in the case of emergency or with the consent of the Court or the person supervising her under condition 4; 4. That she accept the supervision of the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person supervising her, including as to attendance at programs of counselling or treatment; 5. That she regularly attend meetings of Narcotics Anonymous and, if reasonably feasible, engage with the Canberra Alliance for Harm Minimisation & Advocacy; 6. That she not consume alcohol, cannabis or illicit drugs; 7. That she undergo urinalysis or breath testing if required by the person supervising her under condition 4; 8. That she attend the ACT Supreme Court on 7 January, 21 January, 4 February and 18 February 2022 at 2:30 pm and at any other time when directed by the Court; 9. That, if she leaves or is discharged from the Justice Housing program or Toora Women Inc, she present herself to ACT Corrective Services by 4:00 pm the next business day with a view to having her bail reviewed; and 10. That she report to ACT Corrective Services today, 4 January 2022, by 4:00 pm to arrange for supervision. 4. An Intensive Correction Assessment of Hollie Maree Bower be prepared for Court on 2 March 2022 and the Director-General of Justice and Community Safety provide a copy of that Assessment to the Court, the Director of Public Prosecutions and to Hollie Maree Bower’s solicitor. 5. ACT Corrective Services provide a Bail Supervision Report, either orally or in writing, to the Court on 21 January, 4 February and 18 February 2022. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – Bail Pending Sentence – Drug and Alcohol Sentencing List – Burglary – Knowingly Concerned In – Theft – Receiving – Obtaining Property By Deception – Dishonestly Ride Motor Vehicle Without Consent – Unlawful Possession of Stolen property – Breach of Good Behaviour Order – Subjective Circumstances – Drug Dependence – Rehabilitation Opportunity – Bail Granted with Conditions |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 46J Criminal Code 1992 (ACT) ss 45, 308, 311, 313, 318, 324, 326 Supreme Court Act 1933 (ACT) Pt 8 |
Cases Cited: | Auld v The Queen [2013] ACTCA 21 Battams (1979) 1 Cr App R(S) 15 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | The Queen ( Crown) Hollie Maree Bower ( Offender) |
Representation: | Counsel C Daly (14 December 2021), N Deakes (4 January 2023) ( Crown) G Briggs ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Briggs Law ( Offender) | |
File Number(s): | SCC 31 of 2021 SCC 32 of 2021 SCC 78 of 2021 SCC 79 of 2021 |
REFSHAUGE AJ:
Introduction
Hollie Maree Bower is to be sentenced, on her pleas of guilty, to nine offences with which she has been charged. They are two counts of burglary (one, though, being knowingly concerned in the burglary by another person), one count of theft, one count of receiving, two counts of obtaining property by deception, two counts of dishonestly riding in a motor vehicle without the owner's consent, some of which was being driven by the co-offender, Mr Gavin Massey, and one count of unlawfully possessing stolen property.
Ms Bower is, it is accepted, dependent on illicit drugs. She has a criminal record of significance.
In order to decide on the appropriate sentence, it is necessary to have regard to all the facts and circumstances of the case. This is mandated, effectively, and to some extent itemised in the legislated requirements under s 33(1) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
While it has been said by Herron CJ in R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274, with respect quite accurately, that “all purposes [of the criminal law and punishment] may be reduced under the single heading of the protection of society, the protection of the community from crime”, the Sentencing Act sets out, in s 7, the legislative purposes for which a sentence may be imposed. These are, generally, the purposes that have been traditionally accepted in the common law (see R v Weldon (No 2) (1978) 33 FLR 409 at 410–11) with some additions and refinements. These may, nevertheless, be seen as purposes that are all directed to that single objective.
The difficulty for the sentencer is to balance these various purposes which, as Blackburn J said in R v Weldon (No 2) at 410 when quoting Wells J in R v Kear (1977) 75 LSJS 311 at 213, “jostle one another in their endeavours to gain paramountcy.”
Thus, in this case, the effect on sentence by Ms Bower's dependency on illicit drugs, which has clearly led to her continued offending, is something like effect on sentence of the abnormality of mind affecting an offender that was discussed by Brennan J, later Chief Justice of the High Court, but then a Judge of the Federal Court, who pointed out in Channon v The Queen (1978) 33 FLR 433 at 436:
The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality.
The same is true of drug dependency.
An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem on one view to lead towards a lenient sentence, and on another to a sentence which is severe. That is not an unusual phenomenon in sentencing, where the court must fashion a sentence which either reconciles or balances the various objectives of sentencing, sometimes giving emphasis to one of the objectives of sentencing, sometimes giving emphasis to another.
Though there are some obvious differences between the circumstances of Ms Bower and those of Mr Channon with his mental health challenges, the tension his Honour describes is acutely present here. In summary, Ms Bower's serious offending, her criminal history and her failure to reform, point to a severe sentence, where the purposes of punishment and specific deterrence might be said to predominate. On the other hand, her express wish to rehabilitate and the substantial cause of her offending, namely her dependency on drugs, might be said to favour reformative means, especially as Ms Bower now says that she recognises her need for help to rehabilitate and to achieve the ability to manage her dependency and remain crime and drug free.
On sentencing, the Court received the updated Crown Tender Bundle, which was tendered without objection. It contained two Indictments and documents relating to an offence transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT), to be dealt with under Part 8 of the Supreme Court Act 1933 (ACT).
It also contained an Agreed Statement of Facts, Ms Bower's Criminal History, two Pre-Sentence Reports dated 10 February 2021 and 16 September 2021 respectively, the Statement of Facts and Criminal History of Gavin Massey, who was involved in one of the offences to which Ms Bower has pleaded guilty, and a Drug and Alcohol Sentencing List Suitability Assessment Report dated 6 December 2021 prepared by the Alcohol and Drug Service.
In addition to the latter Report, the Crown tendered, without objection, a Drug and Alcohol Treatment Assessment dated 5 November 2021 prepared by ACT Corrective Services. These two reports were Drug and Alcohol Assessment Reports (Suitability Assessments) prepared under s 46J of the Sentencing Act.
Finally, the Crown also tendered, without objection, the Bench Sheets and Statements of Facts from proceedings in the Magistrates Court for offences for which Ms Bower was sentenced to two Good Behaviour Orders, which the commission of these current offences will breach.
The contents of none of this material was challenged or controverted, save for the expressed concern by Ms Bower about a placement at Toora Women Incorporated. She says, and it is accepted, that this concern referred, in fact, to Canberra Recovery Services, not to Toora.
Tendered, without objection, for Ms Bower, was a letter she had written to the Court and a bundle of documents including a letter from the Justice Housing Program team of ACT Corrective Services and five certificates of programs completed by Ms Bower between 26 February 2020 and 4 November 2021. Again, the content of these documents was not challenged.
Comprehensive, thoughtful and well-prepared written submissions from both Mr M Dyason, counsel for the Crown, and Ms G Briggs, counsel for Ms Bower, were submitted.
Insofar as there were factual matters raised in the submissions, which were not otherwise adduced in evidence, the Court was advised that they were not challenged and reliance could be placed upon them
Both counsel made oral submissions, helpfully engaged with the Court and answered many of its questions.
From this material, the following findings are made.
The facts
There are four sets of offences, one set committed in 2018, the other three in 2020. They shall be dealt with, each in turn.
Sometime before 9:10pm on 20 May 2018, Ms Bower entered the secured underground car park of an apartment complex in Civic. She and her partner had lived in the complex previously, but had moved out in 2017.
When entering the car park of the complex, Ms Bower was in the company of two other people. Ms Bower was shown in the car park on CCTV footage. None of the persons who entered the car park had permission to be there.
The companions gained access to a storage cage associated with one of the tenancies of the building. That tenant came into the carpark and approached Ms Bower's companions. One ran away, but the other was in the course of breaking into the storage cage by cutting the lock with some bolt cutters. The tenant asked him what he was doing and he said he was “getting his stuff back”.
The Agreed Statement of Facts is not entirely clear, but it appears that the companion with the bolt cutters managed to take some of the tools from the cage before he returned to the car and the three persons left the carpark. The value of the tools taken was not in evidence.
The two companions were later interviewed by police and both said that they had been asked by Ms Bower to help her collect items from her old storage cage. The male companion said that, when he saw Ms Bower struggling with the bolt cutters, he had stepped in to help her.
The manager of the property told police that, when the lease of Ms Bower and her partner was terminated, they were not welcome back into the complex and that none of her property had been left on the premises. In any event, the locker into which she and her companion were breaking was not that associated with the apartment that they had leased.
These are the facts that founded the first count of burglary and the count of theft.
On 6 August 2020, Ms Bower sat in a parked car in Hawker. She was acting as a lookout while a residence in the street was being burgled. Ms Bower was sitting in a motor vehicle, a BMW X1, that had been stolen from premises in Moncrieff five days earlier. There was no evidence to show that Ms Bower stole the motor vehicle.
A number of items of jewellery including some watches, a slingshot, some cash, a Bluetooth speaker and a credit card were stolen in the burglary. The property was then given to Ms Bower. She used the credit card to purchase a $10 phone credit card at a service station, a transaction captured on CCTV. She then used that credit card again at a supermarket to purchase a $55.95 Valentine's Day voucher, a transaction also captured on CCTV. A forensic examination of the motor vehicle found Ms Bower's DNA and fingerprints on a soda can in the vehicle and her DNA on part of the trim.
These were the facts upon which was based the count of being knowingly concerned in a burglary, one count of riding in a motor vehicle without the owner's consent, one count of receiving and two counts of obtaining property by deception.
On 8 August 2020, Ms Bower was a passenger in a motor vehicle, a Honda Civic, that had been stolen earlier that morning from premises in Franklin. The vehicle was driven into a service station at Nicholls and parked there. Ms Bower got out and entered the service station, approached the counter and purchased some items valued at $187. She paid with a credit card belonging to another person from whom it had been, also earlier that morning, stolen from his vehicle, which was parked in the front of his residence in Nicholls. Later that morning, Ms Bower was again a passenger in the stolen Honda Civic motor vehicle when it was driven into a car park at a shopping complex in Belconnen.
These facts led to Ms Bower being charged with two counts of riding in a motor vehicle without consent and one count of obtaining property by deception.
On 28 August 2020, police executed a search warrant where Ms Bower lived with her then partner, the driver of the Honda Civic motor vehicle. Police found a range of stolen property in her bedroom, including various bank cards and a key card, a passport, numerous sets of keys with ACT Government tags, two wallets, a driver licence and various identifications.
These were the facts on which the police relied to charge Ms Bower with unlawful possession of stolen property.
The proceedings
The proceedings were somewhat complex and not easy to follow from the material available, including the committal material.
The investigation of the first serious offences took some time. The tenant who interrupted the burglary and the manager of the apartments provided formal statements on 31 October 2018 and the charge of burglary was laid on 15 January 2019. A warrant was issued for Ms Bower's arrest and she was charged with them when she appeared before the Court on 1 April 2019. She pleaded not guilty on 3 April 2019 and was released on bail. She was also charged with burglary, trespass and attempted theft.
The proceedings were adjourned on a number of occasions. On 21 May 2019, Ms Bower failed to attend and a warrant was issued, but she was granted further bail on 4 July 2019.
On 19 July 2019 she was charged with further offences, namely driving whilst disqualified and failing to give driver particulars, which are further referred to below (at [38]).
After the investigation of the offences committed on 6 and 8 August 2020, Ms Bower was arrested on 28 August 2020 and appeared in court the next day. She was charged with offences relating to these matters and refused bail. She was remanded in custody and the proceedings were adjourned. On 24 September 2020, she was charged with an offence of aggravated burglary of the Civic apartments and on 2 October 2020 charged with the possession of stolen property on 28 August 2020, when the search warrant had been executed in her bedroom.
Although she remained in custody on remand, on 3 March 2021 she was sentenced for the offences for which she had been charged on 19 July 2019, fined on the offence of failing to give driver particulars and sentenced to imprisonment for the two offences of driving whilst disqualified. The sentences were backdated to commence on 29 August 2020 until 28 April 2021.
Accordingly, though bail had been refused since 28 August 2020, she was not entitled to count the period of that sentence as part of the pre-sentence custody for the current offences. That did mean, however, that one day was to be applied to pre-sentence custody for the present charges.
On 15 February 2021, however, the remaining charges, save for one charge of trespass, were dealt with when Ms Bower was committed for trial to this Court on charges of aggravated burglary, burglary, dishonestly obtaining property by deception, driving in a motor vehicle without the owner’s consent and riding in a motor vehicle without the owner’s consent.
The charges of trespass, attempted theft, dishonestly obtaining property by deception, five counts of possession of stolen property and possession of false registration plates were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT).
The proceedings were mentioned before the Acting Registrar on 4 March 2021 and adjourned a number of times. Ms Bower remained in custody. In March and April 2021, four of the charges were remitted to the Magistrates Court.
On 29 April 2021, Ms Bower was granted bail to proceed with residential drug rehabilitation. A Criminal Case Conference was listed for 10 June 2021, but did not proceed.
On 8 July 2021, Ms Bower was remanded in custody for breaching bail and her bail was revoked on 16 July 2021.
An Indictment was filed on 13 April 2021. It related to the offences alleged to have been committed on 20 May 2018. The Indictment comprised a count of aggravated burglary and, in the alternative, a count of burglary, and a count of theft. The latter count of theft appears to have replaced the charges of attempted theft being therefore an ex officio count.
On 6 September 2021, Ms Bower was further dealt with in the Magistrates Court for an offence of possession of stolen property. Ms Bower was sentenced to two months imprisonment, from 8 July 2021 to 7 September 2021.
The Criminal Case Conference was held on 20 August 2021 and resolved the issues in relation to the matters relating to 6 and 8 August 2020. As a result, an Indictment was filed on 7 September 2021 relating to those offences. It contained counts of being knowingly concerned in a burglary, receiving, two counts of dishonestly riding in a motor vehicle without the owner's consent, and two counts of obtaining property by deception.
The two charges of obtaining property by deception, which had earlier been laid, being the two transactions with the same credit card including purchase of a Valentine's Day voucher were, it appeared, rolled into one count on that Indictment. The charge of dishonestly driving a motor vehicle without the owner's consent was changed in the Indictment, also, as a count of dishonestly riding in a motor vehicle without the owner's consent.
The proceedings were listed on 8 September 2021 and Ms Bower pleaded guilty to the six counts on the Indictment dated 7 September 2021. While a trial date had been set for 29 November 2021, and though the proceedings were listed in a central criminal callover list, that listing for hearing does not appear from the file to have actually occurred, nor been vacated.
Later in September, the parties managed to resolve the issues related to the counts on the Indictment dated 13 April 2021 and, on 8 October 2021, Ms Bower pleaded guilty to the alternative count of burglary and the count of theft. It might be implied that she pleaded not guilty to the count of aggravated burglary, but that is not recorded. It might also be implied that the Crown accepted the pleas in full satisfaction of the Indictment, but that is not recorded either.
The Court was informed, however, that that count of aggravated burglary was not proceeding. It seems to me necessary, accordingly, for a Notice Declining to Proceed to be filed for that count: R v Aniezue [2016] ACTSC 82 at [11]. It is arguable that it is not required where the accused has pleaded guilty to an alternative count (see R v Carmody [2016] ACTSC 382 at [46]), but it is desirable to do so at the very least.
Of the committal and transfer charges, it appears that a number of them are also not proceeding, namely the charges of trespass, attempted theft, possession of false registration plates and dishonestly driving a motor vehicle without the owner's consent, though that became an offence of riding in a motor vehicle without the owner's consent, and a number of charges of unlawful possession of stolen property and of dishonestly obtaining property by deception.
Some of these are indictable offences, which have, as noted (at [48]), been included in a different form as a count in one of the Indictments, for example, by adding together the amounts deceptively obtained by the misuse of the same credit card and by alleging riding rather than driving in a motor vehicle without the owner's consent. Whether these are simply permissible amendments to the committed charges, or ex officio counts on the Indictment is not a matter on which submissions have been heard. If ex officio counts, the committed charges should be concluded by the filing of a Notice Declining to Proceed or by offering no evidence, in which latter case they cannot later be prosecuted, as may occur with a Notice Declining to Proceed: Beckett v New South Wales [2013] HCA 17; 248 CLR 432 at 451; [43]–[44] and 457; [61].
In respect of the transfer charges, however, it is not clear whether they remain summary proceedings, such as not to be amenable to a Notice Declining to Proceed (see Crimmins v Pearson [2016] ACTSC 195 at [34]), or whether they have effectively become an Information and so subject to a Notice Declining to Proceed: see R v Hancock [2021] ACTSC 52 at [53]–[55]. The Court is inclined to the latter view, but the Crown should address these matters.
This rather complicated history of the proceedings is important, not just to show the background to the proceedings, but to enable an understanding of the part to be played by a plea of guilty entered by Ms Bower. It resolved what could have been a complex and somewhat unwieldy trial by reducing the number of counts, though without a great deal of reduction in the criminality. There was, however, some of that too, such as the charge of dishonestly driving a motor vehicle without the owner's consent being converted into riding in such a motor vehicle and, of course, not proceeding with the count of aggravated burglary. This will allow proper consideration of the principles set out in R v Nicholas; R v Palmer [2019] ACTCA 36 at [52]–[54].
It was also important to note the period of pre-sentence custody that is required to be taken into account. This encompasses 28 August 2020 and also the period from 7 September 2021 to today, 4 January 2022. That is a total of 121 days.
The offences
The sentencing of offences is one of the most important and difficult tasks that a Court must carry out. In order to do so, it is necessary to have regard to all relevant matters. At common law, this required consideration of the appropriate circumstances relating to the offender and the offending: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 593; [11]; 611–12; [76] and 632; [132]. This has been codified in legislation, which has, to some extent, expanded it, giving more prominence to the interests of victims especially and the wider community.
In this, however, the nature and circumstances of the offence remains important: s 33(1)(a) of the Sentencing Act. This requires, of course, a consideration of the facts. Those are set out above (at [18]–[32]).
In order to assess the nature of the offence, the maximum penalty prescribed by the legislation is centrally important, as explained by the High Court in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]–[31]. The reason is that this is the legislated prescription, but also because it enables a comparison of the instant offence committed by the offender with the worst possible case and provides, when taken and balanced with all the other relevant factors, a yardstick.
Further, the precise nature of the actual offence committed is to be assessed by considering the particular features of the case in order to determine the objective seriousness: R v Tumo’uma [2017] ACTCA 9; 12 ACTLR 103 at 108; [24]. This attention to current sentencing practice (s 33(1)(za) of the Sentencing Act) identifies what the collective wisdom of sentencing judges and courts of appeal on sentencing appeals have identified as relevant aggravating or mitigating factors.
Burglary is made an offence by s 311 of the Criminal Code 1992 (ACT), which provides for a maximum penalty of 14 years imprisonment or a fine of $224,000, or both.
Where an offender is knowingly concerned in the commission of an offence, then s 45 of the Criminal Code provides that the “person is taken to have committed an offence” and if found guilty is liable to the same punishment as if “the person had committed the offence.” Thus, burglary, or being knowingly concerned in a burglary, is a very serious offence, though not as serious as aggravated burglary.
In R v McHughes (No 3) [2021] ACTSC 344 at [27]–[28], the Court reviewed a number of cases and set out the relevant factors to be considered when assessing the seriousness of a burglary offence. The matters that were there identified do not need to be set out. The following are relevant.
The nature of the premises is important. In the offence of 20 May 2018, the premises were part of a residential complex, but as they were at the garage of the complex, partially separate from the residential area, it was not as serious a location as a residence itself.
In the offence of 6 August 2020, the premises were a residential premises and so the offence was more serious.
There was no evidence of any damage on entry in either case. In the first case, once they entered, the locks of the secure cages were broken, but no other damage was in evidence. In the second, there was no evidence of any damage during the burglary at all.
As set out above (at [21]), the tenant who had leased the cage associated with the leased apartment did come into the garage and confronted Ms Bower's companion, making it somewhat more serious. There was no evidence of any such presence of occupants in the second burglary.
There was no evidence of any particular premeditation in the case of either burglary, though it did involve a degree of preparation to get bolt cutters and recruit companions, so far as the first burglary was concerned. There was the necessity of identifying Ms Bower as a lookout in the second burglary and of identifying the house to be burgled. This was, however, fairly limited premeditation.
It is not clear from the evidence what the motivation was for the commission of the offences, though it can be assumed that it was to gain funds to purchase drugs for the purpose of Ms Bower's dependency.
As Ms Bower was knowingly concerned in the second burglary, her role is relevant. It can, as a lookout, be regarded as anywhere from minor (Director of Public Prosecutions v Mitchell [2021] VCC 643 at [23]) to crucial (Director of Public Prosecutions v Matthews [2019] VCC 1755 of [117]) and the culpability can, as a result, be lesser than the actual burglar: R v Fitzgerald; R v Noveski [2018] ACTSC 168 at [28]. In this case, there seems little likelihood of the burglary being interrupted and Ms Bower's role is assessed as a relatively minor one, though she still participated in a serious offence.
Theft is contrary to s 308 of the Criminal Code and attracts a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It is, thus, a less serious offence than burglary, but still a serious offence.
Principal in assessing the seriousness of the offence is the value of the property stolen. This is not, of course, limited to monetary value, but it will include the sentimental or personal value that make some items especially important to the owner, especially if irreplaceable: R v John [2017] ACTSC 144 of [44]–[45].
Some items have also what might be regarded as inconvenience value. Loss of keys or access mechanisms, passports, driver licences and the like can provide significant inconvenience and replacement can be costly in time, effort and expense as can even the mere making of insurance claims: (R v Forrest (No 2) [2017] ACTSC 83 at [73], [75]–[76].
In this case, as regrettably so often happens, there was no evidence given of any value. The tools taken in the first burglary were clearly of some value, but unless they were tools of trade for the owner, of which there was no evidence, they are unlikely to have particular inconvenience value.
In addition, unless the value is significant or there is some other circumstance not identified here, the sentence is ordinarily made largely concurrent with the sentence imposed for the burglary offence: R v McMahon [2014] ACTSC 280 at [94].
The circumstances of the offence are also relevant. In this case, though the premises were part of a residential complex (see R v Parker [2018] ACTSC 55 at [21]), they were somewhat separate, in an underground car park.
Similarly, there was no indication that the victims were particularly vulnerable or that the theft was systemic, though there was some planning: R v Leighton [2016] ACTSC 354 at [22].
Receiving is prohibited by s 313(1) of the Criminal Code, which sets out a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It is, as appears appropriate, of a similar seriousness to the offence of theft.
A significant matter is that people who receive stolen goods encourage thieves. Indeed, some are part of the ecosystem in which thieves operate, by providing the funds they steal the property to gain. If thieves had nowhere to dispose of the property they stole, there would be far fewer, perhaps no thieves (see Cantley J in Battams (1979) 1 Cr App R(S) 15 at 16, an approach adopted in this Territory: Saga v Reid and Collett [2010] ACTSC 59 at [80]; Heard v The Queen [2015] ACTCA 6 at [18](f)).
The principal consideration will be the value, and perhaps the quantity, of property stolen that the offender receives: R v Forrest (No 2) at [83]. It is also relevant to ascertain the circumstances in which the property came to be received. Thus, a professional operation which is conducted on a sustained basis is clearly more serious than an opportunistic acceptance of the property or a transaction between friends or acquaintances, especially if it is a “one-off” transaction. It has been said that deliberate accumulation for significant profit is more serious than an offence resulting from impulsivity or recklessness: R v Davidson [2018] ACTSC 227 at [27].
In this case, there were quite a large number of items. Again, regrettably, there was no evidence of value, but the description of the jewellery does suggest it was not only of some reasonable monetary value, but also had sentimental value, some of it being described as “christening jewellery”, for example. Given the circumstances, it is reasonable to accept that Ms Bower was proposing to sell them for funds to support her drug dependency. No submission contrary to that conclusion was made.
Riding in a motor vehicle without the owner's consent is a crime under s 318(2) of the Criminal Code and renders Ms Bower liable to a maximum penalty of five years imprisonment or a fine of $80,000 or both. It is, thus, a serious offence, but not as serious as those already discussed.
As said in Sampson v De Haan [2016] ACTSC 327 at [43], the deprivation of the owner of a motor vehicle is a serious matter, especially as it is often the most expensive purchase by the owner after a house. It also causes inconvenience, especially in a city like Canberra, which is so dependent on the motor vehicle. See also R v Crawford (No 1) [2020] ACTSC 245 at [38].
It is accepted that, although the maximum penalty is the same for both offences, it is more serious to drive such a motor vehicle than to be only a passenger and ride in it: R v Reid [2021] ACTSC 334 at [28].
A number of authorities have been considered in R v Fry [2021] ACTSC 138 at [49], setting out the relevant factors that need to be considered. Without repeating them, it is appropriate to note the following. In both cases, the motor vehicle was used to transport Ms Bower to commit other offences, an aggravating feature. There was, however, little evidence as to how long she had been riding in the motor vehicle or how far it had been driven since it was stolen. There was no evidence of any damage to the motor vehicle or that it was not ultimately returned to the owner, which can be assumed.
There was no value given to the motor vehicle, though it may be accepted that a BMW X1 was an expensive vehicle. Both it and the Honda Civic, however, were substantial purchases for the owner.
Obtaining property by deception is criminalised by s 326 of the Criminal Code, for which it specifies a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It is a serious offence.
As with most dishonesty offences, the main consideration is the value of the property obtained. Other factors identified in Mitchell v The Queen [2006] NSWCCA 72 at [10] are not present, or not such as to increase the seriousness of the offence Ms Bower committed.
The offence is usually committed by the misuse of a stolen credit card, now made an easier offence to commit because of the widespread ability to tap the card on the retailer's terminal. This, in itself, suggests a stern sentencing response is required.
In the case of these offences, the amounts involved were not great: $10, $55.95 and $187. The first two offences were charged before me as a rolled up count, but, even then, the amount was only $65.95. The approach to a rolled up count is summarised in R v John at [106]–[107] and that shall be followed.
The final count of unlawful possession of stolen property is made a crime under s 324 of the Criminal Code, where the maximum penalty is specified to be six months imprisonment or a fine of $8,000 or both. Though comparatively not a serious offence, it needs to be carefully addressed as it is akin to receiving as an offence: Saga v Reid and Collett at [80].
There was, in this case, as in most cases, no value given in the evidence of the property. Indeed, much of it would have little monetary value, but would have considerable inconvenience value that would possibly have been identified by a Victim Impact Statement, but none was available. Given, also, that many items involved identification of the owner, they would be susceptible to identity theft and fraud. Of course, while that possibility is relevant to a general assessment of the seriousness of an offence, Ms Bower must not be punished for a crime that she has not committed and which, indeed, she may have neither the intention nor capacity to commit.
Subjective circumstances
Ms Bower is a 28-year-old woman of Aboriginal heritage. She is the eldest of her parent's three children, all daughters. Her father also had four children from another relationship. Her parents separated when she was 12 years old. Ms Bower alternated between the two homes of her parents, but preferred the freedom of her father’s home as she could “run wild”. There was, however, no neglect and her parents had stable employment.
She was, for a time, receiving no support from her parents, neither of whom have contacted her while she was in custody. That situation is, it was submitted, now changed and her mother is not only in touch with her, but is “extremely supportive” as is her brother. Indeed, she has contact with her mother and her children weekly.
Ms Bower did not have a very successful education, though her grades were said to be average. She left school in Year 11 when she was pregnant with her twin sons, though she says that she had disengaged well before then.
She has had some casual employment in sales, cleaning and hospitality, but never for longer than nine months. She is currently employed in the bakery while in custody and has completed a hospitality course, where her engagement was regarded as satisfactory.
Her first significant relationship was with the father of her twins, but that ended as a result of domestic violence. The twins are in the care of her mother, but she does see them when they are in the care of their father.
Ms Bower also has a daughter from another relationship. Her daughter is in the care of her daughter’s father and she has not seen her since Christmas 2019, for nearly all of her life.
She is said to have been in her current relationship for four years, though her partner is currently also in custody and he also has a criminal history.
Ms Bower's physical health is satisfactory though, in common with many without great resources, she has some dental problems. She has been diagnosed with depression and anxiety at age 16 and has been currently prescribed medication for that. As noted in these remarks (at [97], [101]), she has experienced some trauma.
A nine month relationship about six years ago involved her being subjected to coercion and violence from her partner who asked her to keep using drugs, allegedly to keep her compliant. Her partner introduced her to heroin, where she would use every day for two and a half years. She also used benzodiazepines, unaware of the potential harm from mixing them with heroin. The relationship ended when she lost custody of her children.
Ms Bower has a long history of substance use. She has never been much of a drinker of alcohol, though she smokes tobacco.
She was first introduced to cannabis at age 12. It was always accessible in her father's home. Her use varies from a lot to not much. She has, in recent years, preferred other substances.
At age 14, she first used methamphetamine, which she has smoked until about two months before entering custody on this occasion, when she started using it intravenously.
She first used heroin when introduced to it by her then partner at age 21 and has used ever since, using as much as she can get for two and a half years. She has, however, been placed on a methadone program and her heroin use is, at best, now sporadic and she says it no longer appeals to her.
Alongside her heroin use, Ms Bower has become dependent on non-prescribed benzodiazepines. She describes it as “ever since that first day, I have never put them down.” She has used alprazolam, pregabalin and olanzapine. Their use has led to her overdosing when also using methadone.
Ms Bower has had some limited alcohol and other drug treatment. She attended at the Wayback Rehabilitation Facility (see R v JM [2014] ACTSC 380 at [44]), but lasted about three weeks. She found the limited structure and supervision unsatisfactory, but was discharged for non-compliance. She has, however, completed a number of programs while in custody. These include First Steps Alcohol and Drug Program, Harm Minimisation, Introduction to Recovery, Working Together and Self-esteem, the latter four after she had been remanded to custody following her short period at Arcadia House.
Before her incarceration, she was attending meetings of Narcotics Anonymous and involved with CAHMA at Belconnen. In May 2021, she was bailed to attend the Arcadia House rehabilitation facility (as to which, see R v Wilkins [2015] ACTSC 145 at [40]–[41]), but was discharged when she was found to have a phone and she breached some other rules by bringing her partner onto the premises. He is currently in custody, as noted above (at [99]).
Ms Bower has a rather depressing criminal history. It started in 2013 and she has accumulated 42 offences, of which 12 are driving related, though including one of drug driving. Apart from one offence each of stalking, using a carriage service to menace or harass and trespass, and four offences of possessing drugs, the remaining offences are all dishonesty offences. She has, however, no prior offences of burglary or of dishonestly taking, driving or riding in a motor vehicle without the owner's consent, though she has two prior offences of receiving, two of unlawful possession of stolen property and 10 of obtaining property by deception.
Ms Bower wrote a letter to the Court, which was admitted into evidence. She explained that she has “struggled with addiction for many years and has had very little treatment.” In fairness, she has made some attempts, but was unable to engage and comply with treatment. She explains, however, that some of the distractions are being managed and she “strongly” feels that she “will be able to focus on myself and my recovery.” She seeks a chance and also wants “to show my kids the best version of myself and be the mother I was before drugs ruled my life.” She commits herself “to do what I have to do" at Toora Women Inc, while a bed at Karralika Programs Inc is currently sought.
Sentencing practice
A legislatively mandated requirement under s 33(1)(za) of the Sentencing Act, imposed on a Court sentencing an offender, is to consider current sentencing practice, so far as relevant and known to the Court. In general, a Court has ready access to current sentencing practice, though it does properly rely on counsel to draw any relevant material to its notice.
Of course, as set out above (at [57]–[92]), part of this has already been considered when addressing the nature of the offences. The other part is to consider the actual sentences that have been imposed. This will lead to the important value in sentencing of consistency and assist in leading to a just and adequate sentence.
There are a number of ways that it may be achieved. Consideration of comparable cases is always helpful though, of course, no sentence is a precedent. It can also be difficult to find decisions that exhibit the same, or relevantly similar, characteristics of the offence and the offender. Nevertheless, the principles on which sentences are set by similar cases can show how consistency and fairness might be achieved.
The decisions of appellate courts can be similarly valuable as they set standards and can identify ranges, not as hard boundaries, other than, perhaps, when identifying manifest excess or inadequacy, but as useful yardsticks and signposts that help to identify the appropriate sentences.
A further means is the statistical information contained in the ACT Sentencing Database. This has useful information, but also significant limitations. Again, it is important not to read the statistical ranges as mandatory ranges, nor to overlook the fact that the characteristics identified in the Database are often, but not always, relevant. They are also limited and often do not address crucial issues such as, for example, the value of property or damage in relevant offences.
Nevertheless, some information can be obtained about current sentencing practice through these means.
So far as the offence of burglary is concerned, reference to R v Elphick [2021] ACTSC 9 at [154] shows that sentences of between 12 months and three years and six months are commonly imposed according to the Database, noting the limitations to which reference has already been made. This is consistent with what was said in R v Bennett; R v Simonds [2020] ACTSC 221 at [85].
It is relevant, however, that of the 294 cases recorded in the Database, 212 resulted in full-time imprisonment where, as noted, 80 per cent were of terms between 12 months and three years. It is to be noted, however, that 51 of the 294 sentences were fully suspended, with periods of between 13 and 18 months and 11 of the sentences were of Good Behaviour Orders. It is further noted that 21 of the full-time sentences were of nine months or less.
While there is also information relating to theft, it is an offence that is committed in such a wide variety of circumstances, especially with regard to the value of the property stolen — monetary, sentimental and inconvenience — that the information available is not particularly helpful.
In relation to the offence of receiving, the Court of Appeal in Heard v The Queen at [41]–[47] has identified a helpful range of sentences, especially related to the value of the property and that is taken into account.
So far as dishonestly riding in a motor vehicle without the owner's consent is concerned, the cognate offence of dishonestly driving a motor vehicle without the owner's consent was considered in R v Massey (No 1) [2020] ACTSC 256 at [76]–[79]. The Database showed for this offence a range of between six and 12 months imprisonment. Some account must be taken of the somewhat lesser seriousness of the offence for which Ms Bower is to be sentenced: R v McHughes (No 3) at [55].
Consideration
There are some other issues to be considered at this time. In the first place, Ms Bower committed the first series of offences, the 2018 offences, while on conditional liberty. Although not affecting the objective seriousness of the offences (Beniamini v Craig [2017] ACTSC 30 at [114]), it does require a more serious sentence because, at least in part, of the abuse of the liberty granted her that the commission of these offences in those circumstances constitutes: Auld v The Queen [2013] ACTCA 21 at [9]; R v Collins (No 2) [2021] ACTSC 262 at [117].
On 16 August 2017, Ms Bower was convicted of five offences. The first in time was an offence of driving whilst disqualified on 17 May 2016. For this offence she was fined $600.
The second series involved driving whilst disqualified as a repeat offender on 29 January 2017, and also failing to state her name and date of birth to a police officer. When she was intercepted by police, she stated that she was Chelsea Bower, born 13 April 1998. For that offence she was fined $50. She was, at the time, driving when she had been disqualified for holding or obtaining a licence on 9 January 2017. For that offence she was sentenced to imprisonment for four months, suspended immediately with a Good Behaviour Order for 18 months. Thus, the offences of 20 May in 2019 breached that Good Behaviour Order.
The third series involved her driving whilst disqualified as a repeat offender and failing to state her name and date of birth to a police officer. On this occasion, on 11 February 2017, she was driving not very long after the earlier offences, and she was again intercepted by police. She again falsely stated that her name was Chelsea Bower, born 13 April 1998. She was still disqualified from holding or obtaining a driver licence. For failing to state her name and date of birth, she was fined $500 and for the driving whilst disqualified she was sentenced to six months imprisonment, released after two months when the balance of the term of imprisonment was suspended for a Good Behaviour Order for 18 months.
These two Good Behaviour Orders will be breached by convictions for the sentences committed on 20 May 2018.
Another relevant matter is the delay in resolving these matters. The offences were committed on 20 May 2018, more than three years and seven months prior to today. Ms Bower did know that her offending had been discovered as she was interrupted by the tenant of the apartment while engaging in the burglary and theft. The investigation did not appear to be complete until at least 31 October 2018 and she was not brought before the Court until April 2019, although the summons was issued on 15 January 2019. There were then, after April 2019, 13 adjournments until the matters were committed to this Court on 15 February 2021. It is to be noted, however, that the offence of aggravated burglary had only been preferred on 24 September 2020, some 28 months after the offence and 20 months after the first charge arising from these offences was laid.
Delay, in itself, is not relevant to sentencing. It is not clear that the offences would relatively easily avoid detection or investigation given the CCTV, the eye-witness account, the interviews of the companions and the evidence of the apartment manager. Ms Bower did not appear to seek to evade detection and, indeed, she remained in the jurisdiction, committed further offences and was easily detected as having committed them.
Ms Bower has, accordingly, been subject to a certain anxiety and uncertainty about the ultimate disposition of these offences. See, for example, R v Miceli (1997) 94 A Crim R 327. She has attempted some rehabilitation, though without much success, save for most recently when she has completed courses in custody. This can be mitigating: R v Todd [1982] 2 NSWLR 517 at 519–20; R v SP [2004] ACTCA 16; 149 A Crim R 48 at 56–7; [31]–[35].
Ms Bower has, nevertheless, sought to engage in rehabilitation. Despite some failure, she should not necessarily be deprived of further opportunities: Saga v Reid and Collett at [89]. There must be a rational basis for further attempts. In this case, several matters are relevant. In the first place, she is recognising that unless she addresses her drug dependency, she will be denied a part in the lives of her children. In the experience of the Drug and Alcohol Sentencing List, this can be a powerful motivating factor for rehabilitation.
The second is that her current partner is currently in custody and his negative influence on her behaviour will be that much less. Thirdly, her behaviour in custody has shown positive signs. She has engaged satisfactorily with employment and education during this period. Next, she has taken some steps to progress her rehabilitation. She was described as having shown “insightful reflection on her treatment needs.” Finally, she is said to have accepted responsibility for her criminal behaviour and her pleas of guilty are a positive sign.
There is, of course, no guarantee that she will be successful. If that were to be a precondition, rehabilitation would never be offered in sentencing. Nevertheless, she has shown some progress since her unsuccessful attempts at rehabilitation and some of the negative factors have been addressed. While it has been recommended that she complete a drug rehabilitation course in custody and there is some attraction to that, the most relevant program, the Solaris Therapeutic Community Program, is not available for female detainees.
There is no doubt that, given the seriousness of the offences and Ms Bower's history, a sentence of imprisonment is the only appropriate sentence: s 10 of the Sentencing Act. There is, however, a real question as to how it should be served.
At present, a Drug and Alcohol Treatment Order under s 12A of the Sentencing Act is the option sought by Ms Bower. She is currently regarded as unsuitable because the only appropriate treatment is at Karralika Programs Inc and there is no current bed placement available. Were that available, she may be suitable.
Ms Bower has been offered a place at Toora. This does not have the same program options as Karralika, nor is it as regulated. There is, for example, no supervision or support after business hours. In particular, however, it will provide counselling in relation to the experiences of domestic violence suffered by Ms Bower.
It seems to me that Ms Bower should be given an opportunity to show that the changes identified have really commenced to work and that she can benefit from rehabilitative opportunities. The best option is, of course, the residential drug rehabilitation program at Karralika. That is, however, not presently available, but it will be a test if Ms Bower can comply with the Toora opportunity to see whether further opportunities at Karralika should be offered.
Accordingly, it is proposed to adjourn the sentencing of Ms Bower and bail her with strict conditions with a degree of judicial supervision to see if she is genuinely committed to rehabilitation.
Orders
The orders are that:
1. The proceedings be adjourned to Wednesday 2 March 2022 at 11:00 am for sentence.
2. The parties be at liberty, and on short notice, to relist the matter earlier including in the event that a placement at Karralika Programs Inc becomes available for Hollie Bower, or if the placement for Ms Bower at Toora Women Inc becomes unavailable.
3. Hollie Maree Bower be granted bail to appear in the Court for sentence on 2 March 2022 at 11:00am on the following conditions:
(1) That she reside at the Justice Housing Program or Toora Women Inc. during the remand period and comply with the rules of the facility and obey all reasonable directions of the person in charge of the facility;
(2) That she engage in such counselling or other programs as may be reasonably available to her;
(3) That she not leave her place of residence between 8:00 pm each day and 8:00 am the next day, except in the case of emergency or with the consent of the Court or the person supervising her under condition 4;
(4) That she accept the supervision of the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person supervising her, including as to attendance at programs of counselling or treatment;
(5) That she regularly attend meetings of Narcotics Anonymous and, if reasonably feasible, engage with the Canberra Alliance for Harm Minimisation & Advocacy;
(6) That she not consume alcohol, cannabis or illicit drugs;
(7) That she undergo urinalysis or breath testing if required by the person supervising her under condition 4;
(8) That she attend the ACT Supreme Court on 7 January, 21 January, 4 February and 18 February 2022 at 2:30 pm and at any other time when directed by the Court;
(9) That, if she leaves or is discharged from the Justice Housing program or Toora Women Inc, she present herself to ACT Corrective Services by 4:00 pm the next business day with a view to having her bail reviewed; and
(10) That she report to ACT Corrective Services today, 4 January 2022, by 4:00 pm to arrange for supervision.
4. An Intensive Correction Assessment of Hollie Bower be prepared for Court on 2 March 2022 and that the Director-General of Justice and Community Safety provide a copy of that Assessment for the Court, the Director of Public Prosecutions and to Ms Bower's solicitor;
5. ACT Corrective Services provide a Bail Supervision Report, either orally or in writing, to the Court on 21 January, 4 February and 18 February 2022.
[His Honour then spoke directly to Ms Bower]
Ms Bower, this is the first step in a long process. It can end early if you botch this opportunity and, if you do, you may go back to gaol. It is a long process because we are not clear how we are going to get there, but the process is to arrive at, first of all, you being drug and crime free and then you can be a mother. That is where we are going. It is going to be hard along the way and there will undoubtedly be problems.
Drug dependency, especially for such a long period as you have experienced, is pernicious. It is awful and it is the easy way out when things get tough. You have got to be really strong to say “no”, particularly when you are around people who are doing it. Toora should give you a good opportunity. It is not the structure that would support you at Karralika. There is no one there supervising you at night, but you need to be strong. You need to be committed and, if you can, then this Court will support you.
I am going to take the slightly unusual course of bringing you back from time to time in Court. I just want to see how you are going, but I also want you to learn to say that “if things are getting tough, I can ask someone for help. I can say to the Court this is not working. Toora is not the place for me. I have got to go somewhere else.” We might be able to find it. We might not. I might have to say, “No, that is not on,” and then we will work it through.
This is your opportunity to avoid just running away and putting your head in the sand. What you are looking at, if you run away, is going back to AMC and that is not the life you want and that is certainly not the life that will give you that opportunity to be a mother to your children. So, be strong. Come back and be proud when you say to me, “I have done it,” and be prepared to say, “it is getting really tough. I need more help.”
You have got a copy of the bail conditions and you will have a formal bail application undertaking that you will sign also. Make sure you understand what the requirements are. Do not fool about with them. You do not need to be out on the town between 8 o'clock at night and 8 o'clock the next morning. Just be at Toora. There are some good women there. There is a good learning opportunity there for some of the trauma that you have experienced, that you should not have experienced, but you have experienced in your life. You need to confront and manage that.
The most important thing is not to run away. If it gets too tough, then that is not good, but come back to the Court. I will make myself available and we will work something out. I cannot guarantee you that it will not be the AMC, but that is certainly the last possible option that I want for you, and you have got my commitment on that, but it might have to be. If you run away and do not come back, then that almost certainly will be where you will end up. Confront your demons, confront the challenges, confront the difficulties, and ask people for help.
People will help you and then you will be able to succeed and you will be able to get what you have said to me in a very nice letter, which I hope is more than words. I hope it is your commitment and your intention and you are able to put that into practice as well and not forget it. Your intention is to be a better person, to be the person you really can be, the good person that you are and the mother that you want to be to your children.
Make sure you get to Corrective Services this afternoon, or today as soon as you are released.
This, while you are released on bail, is the danger period. You are out and you say, “Help. It is not going well. I have got to do something else,” and we will work something out, but hopefully it will not be back to AMC. Or, “no, it is going all right,” and then fortnightly after that until we have got to finally have a result. If Karralika becomes available, we might send you there earlier. If it is still not available, we might have an Intensive Corrections Order or something else might come up in the meantime.
So, take this opportunity with both hands, run with it as fast as you can and do your best. We will support you.
THE PARTICIPANT: Thank you and I'll give it my best shot.
HIS HONOUR: I do not want your thanks. I want you to achieve it. That is the real thanks. Do it and you will make me proud.
| I certify that the preceding one hundred and fifty [150] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge Associate: Date: 23 March 2023 |
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