R v Bower (No 2)
[2022] ACTSC 388
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Bower (No 2) | ||
| Citation: | [2022] ACTSC 388 | ||
| Hearing Date: | 14 December 2021, 4 January 2022, 9 June 2022, 22 July 2022, 10 August 2022 | ||
| Decision Date: | 13 September 2022 | ||
| Before: | Refshauge AJ | ||
Decision: |
|
amended by omitting “27 April 2018” and substituting “28 April
2018”.
2. Hollie Maree Bower be convicted of burglary and be sentenced to 12 months imprisonment to commence on 16 March 2022 and end on 15 March 2023.
3. Hollie Maree Bower be convicted of theft and be sentenced to 3 months imprisonment to commence on 16 January 2023 and end on 15 April 2023.
4. Hollie Maree Bower be convicted of burglary and be sentenced to 10 months imprisonment to commence on 16 January 2023 and end on 15 November 2023.
5. Hollie Maree Bower be convicted of receiving and be sentenced to 6 months imprisonment to commence on 16 August 2023 and end on 15 February 2024.
6. Hollie Maree Bower be convicted of dishonestly riding in a motor vehicle without consent and be sentenced to 8 months imprisonment to commence on 16 November 2023 and end on 15 July 2024.
7. Hollie Maree Bower be convicted of obtaining property by deception and be sentenced to 6 months imprisonment to commence on 16 March 2024 and end on 15 September 2024.
8. Hollie Maree Bower be convicted of dishonestly riding in a motor vehicle without consent and be sentenced to 9 months imprisonment to commence on 16 May 2024 and end on 15 February 2025.
9. Hollie Maree Bower be convicted of obtaining property by deception and be sentenced to 6 months imprisonment to commence on 16 November 2024 and end on 15 May 2025.
10. Hollie Maree Bower be convicted of unlawful possession of stolen property and be sentenced to 3 months imprisonment to commence on 16 March 2025 and end on 15 June 2025.
11. Hollie Maree Bower be convicted of dishonestly riding in a
motor vehicle without consent and be sentenced to 9 months
imprisonment to commence on 16 March 2025 and end on 15
December 2025.12. Hollie Maree Bower be convicted of minor theft and be sentenced to 2 months imprisonment to commence on 16 October 2025 and end on 15 December 2025.
13. The Good Behaviour Order made in the Magistrates Court on 16 August 2017 be cancelled.
14. Hollie Maree Bower be resentenced for driving while disqualified to 4 months imprisonment to commence on 16 September 2025 and end on 15 January 2026.
15. Hollie Maree Bower be resentenced for driving while disqualified to 4 months imprisonment to commence on 16 November 2025 and end on 15 March 2026.
16. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Hollie Maree Bower for 2 years from today (commencing on 13 September 2022 and ending on 12 September 2024) in respect of the primary offence of burglary of which she has been convicted and for which she has been sentenced to 12 months imprisonment.
17. That Order be extended to the offences of theft, two offences of burglary, receiving, three offences of dishonestly riding in a motor vehicle without consent, two offences of obtaining property by deception, unlawful possession of stolen property and minor theft of which Hollie Maree Bower has been convicted and for which she has been sentenced, and which are associated offences of the primary offence.
18. It be noted that convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.
19. The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 13 September 2022, until 15 March 2026.
20. Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Hollie Maree Bower be required to sign an undertaking to
comply with the offender’s Good Behaviour obligations under
s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 12 September 2024, until the end of the total sentence, 15 March 2026, with a probation condition that she accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising her considers appropriate and obey all reasonable directions of the person supervising her including as to urinalysis, counselling and treatment.
21. For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:
a.
The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;
b.
Hollie Maree Bower travel directly from this Court today to Karralika Therapeutic Community conducted by Karralika Programs Inc, at Isabella Plains, ACT, and admit herself to the residential drug rehabilitation program at that facility as soon as reasonably possible today, 13 September 2022;
c.
Hollie Maree Bower be directed to complete the residential drug rehabilitation program at Karralika Therapeutic Community, to not leave the facility until she has completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility;
d.
Should Hollie Maree Bower leave or be discharged from the program before completing it, she report to ACT Corrective Services by 4 pm on the next business day with a view to having her Drug and Alcohol Treatment Order reviewed;
e.
Hollie Maree Bower undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where she resides, with whom she associates and her attendance from time to time; and
f.
Hollie Maree Bower comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
22. Hollie Maree Bower be directed to appear by electronic means in Court on Friday 23 September 2022 at 12:30pm.
23. Hollie Maree Bower be directed to attend the Court Registry before she leaves the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force.
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Theft – Receiving – Dishonestly riding in a motor vehicle without consent – Obtaining property by deception – Unlawful possession of stolen property – Minor theft – Driving while disqualified – Delay – Breach of conditional liberty – Rehabilitation while on bail – Sentence of imprisonment – Drug and Alcohol Treatment Order application – Application successful |
| Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 35, 46J, 63, 80O, 80S, 80W, 80Y, 80ZA, 80ZD Human Rights Act 2004 (ACT) s 22 Supreme Court Act 1933 (ACT) Pt 8 |
| Cases Cited: | Blanco (1999) 106 A Crim R 303 Channon v The Queen (1978) 33 FLR 433 Mill v The Queen (1988) 166 CLR 59 PR v The Queen [2014] ACTCA 40 R v Bennett [2017] ACTSC 104 R v Bower [2022] ACTSC 382 R v Crawford (No 1) [2020] ACTSC 245 R v Curtis (No 2) [2016] ACTSC 34 R v Cuthel [2016] ACTSC 91 R v Forsyth [2013] ACTSC 179 R v Hancock [2021] ACTSC 52 R v Harrison (1990) 48 A Crim R 197 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Kelly (No 2) [2021] ACTSC 253 R v McMahon (No 2) [2017] ACTSC 299 R v Ogilvie [2016] ACTSC 265 R v PM (No 2) [2015] ACTSC 358 |
| R v Po’oi (No 4) [2022] ACTSC 198 | |
| R v SP [2004] ACTCA 16 R v Stacker [2020] ACTCA 34 R v Todd [1982] 2 NSWLR 517 | |
| Parties: | ACT Director of Public Prosecutions (Crown) |
| Hollie Maree Bower (Offender) | |
| Representation: | Counsel |
| C Daly (14 December 2021, 9 June 2022, 22 July 2022, 10 August 2022), N Deakes (4 January 2022), K Stitt (13 September 2022) (Crown) | |
| G Briggs (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Briggs Law (Offender) | |
| File Numbers: | SCC 31 of 2021 |
| SCC 32 of 2021 SCC 78 of 2021 | |
| SCC 79 of 2021 | |
| SCC 170 of 2022 | |
| SCC 171 of 2022 | |
| REFSHAUGE AJ | |
| Introduction |
1. Hollie Maree Bower has pleaded guilty to 11 offences, namely two offences of burglary, one charge of theft, one charge of receiving, three charges of dishonestly riding in a motor vehicle without consent, two charges of obtaining property by deception, one charge of unlawful possession of stolen property and one charge of minor theft.
2. The offences were committed on various dates over the last four years: 20 May 2018, 6 and 8 August 2020, 28 August 2020, and 27 and 28 April 2022.
3. The proceedings have been quite extended and, to that extent, somewhat complicated.
4. Ms Bower sought that a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), be made.
5. The history of the proceedings and most of the sentencing material has been set out in R v Bower [2022] ACTSC 382, though, as shown below (at [8]), there are two further offences committed by her since then for which she must also be sentenced.
6. The recommendations of Alcohol and Drug Services in their Drug and Alcohol Treatment Assessment (Suitability Assessment) prepared under s 46J of the Sentencing Act was that Ms Bower was not suitable for a Treatment Order. Subsequent amended or updated Suitability Assessments of both Alcohol and Drug Services and ACT Corrective Services, however, did recommend that a Treatment Order be made, but only if Ms Bower could engage in residential rehabilitation. Even at that late stage, a suitable placement was not available and Ms Bower was released on bail to reside at premises managed by Toora Women Inc.
7. Unfortunately, that was perhaps not, with the benefit of hindsight, the most appropriate way forward, however, it was not unreasonable, even with that hindsight, that Ms Bower not be detained in custody in those circumstances.
8. Not only did the placement prove uniformly negative, Ms Bower, in company with her then partner, David Bosma, committed further offences which are to be the subject of sentencing today, as mentioned above (at [5]). Other offences, including a breach of bail, have been dealt with in the ACT Magistrates Court.
9. Given that no decision had been made on whether a Treatment Order was possible for Ms Bower, the proceedings were further delayed to permit those matters to be heard in the Magistrates Court and sentence to be imposed and served. This is important, since the imposition of a sentence of imprisonment after a Treatment Order has been made, whether or not the offence was committed after the Treatment Order was made, requires the Treatment Order to be cancelled: s 80ZD(3) of the Sentencing Act.
10. While that may not appear to be obviously appropriate, it is consistent with a requirement that a person, subject to a Treatment Order, not be subject to any other sentencing order (s 12A(1)(c) of the Sentencing Act) as such a sentence would likely interfere with the proper administration of the Treatment Order. It would then not, therefore, achieve the objects of the Treatment Order as set out in s 80O of the Sentencing Act.
11. In addition to the material set out in R v Bower, the Court has received further material during the proceedings this year. No objection was made to the tender of any of this further material, nor were the contents of any of them the subject of any challenge.
12. This material was an updated Crown Tender Bundle, which included the relevant material for the offences committed in 2022, details of Ms Bower's former partner, the updated and amended Suitability Assessments and an Intensive Corrections Order Assessment Report. Also tendered were two further documents. The first was an updated criminal history, which was dated 18 July 2022 and included some of the sentences imposed in 2022 in the Magistrates Court. The second were the updated Suitability Assessments of Alcohol and Drug Services dated 29 June 2022 and of ACT Corrective Services dated 19 July 2022.
13. For Ms Bower, the additional material consisted of two letters from Toora Women Inc dated 22 February 2022 and 18 July 2022, some medical certificates not presently relevant, an email from Karralika Programs Inc to Ms Bower's solicitor dated 9 August 2022 concerning the availability of a placement at the Karralika Therapeutic Community, a further letter from Ms Bower to the Court dated 31 July 2022, a letter certifying her compliance with a pharmacotherapy program from March to June 2022 and certificates of completion of programs she had undertaken in the Alexander Maconochie Centre.
14. Written submissions from Ms Bower's counsel were also provided.
15. Both counsel made helpful and thoughtful oral submissions which were of great assistance to the Court.
16. From this material, the following findings are made.
Facts of the further offences
17. David Bosma, Ms Bower's then boyfriend, was, in 2022, a member of a gymnasium club franchise where access to the premises is provided by a swipe card issued to members.
18. At about 5:00pm on 27 April 2022, another member of the franchise parked his car, a Kia Optima sedan, in an open area car park nearby to the civic gym conducted by the franchise. He proceeded into the changing room at the premises and hung on a hook in the shared lobby a red jacket he had been wearing. He left the keys for the motor vehicle in the jacket pocket. He then proceeded to the gym area.
19. Mr Bosma then accessed the premises using his swipe card and also let Ms Bower into the premises, though she was not a member. While Mr Bosma went into a change room, Ms Bower remained in the lobby, went to the red jacket and, looking around to ensure that she was alone, took out the car keys and left the premises. Mr Bosma left the premises about 10 minutes later. The incident was captured on the CCTV of the premises. The keys had, on the evidence, a replacement value of $400.
20. These were the facts that founded the charge off minor theft.
21. When the owner of the motor vehicle had finished his engagement at the gym, he went to get his keys and found them missing. He went to the car park and found his motor vehicle also missing. He reported the thefts to police after he had been able to view the CCTV footage at the club, which showed the theft of the keys.
22. At about 3:11am the next day, 28 April 2022, Mr Bosma drove the motor vehicle to another gym of the franchise at Conder, ACT. Mr Bosma got out of the driver's seat and Ms Bower from the passenger seat. Both entered the premises for a short period, left, returned to the motor vehicle, and it was driven off.
23. The motor vehicle was later seen outside an adult products shop in Fyshwick at about 7:41pm, when Ms Bower got out of the passenger seat of the vehicle, went into the shop, browsed for a short period, purchased a product and left.
24. These were the events that founded the charge of dishonestly riding in a motor vehicle without consent.
25. There is no evidence to show that Ms Bower rode in the motor vehicle on 27 April 2022. While there may be suspicion, there are a number of circumstances that would not justify that finding being made. The evidence, not challenged by Ms Bower, is that she did ride in the motor vehicle on 28 April 2022.
26. This is relevant as the Information preferred in the Magistrates Court and on which Ms Bower was committed put the date of the offence at 27 April 2022. There being no objection by either party, the Information was amended by the Court, relying on the
principles set out in R v Hancock [2021] ACTSC 52 at [53]–[55].
27. Police located the motor vehicle on 29 April 2022 outside premises in Karabar, New South Wales. Ms Bower had, on 18 February 2022, been granted bail to live in premises at Karabar, but not in the premises outside which the motor vehicle was located. In the motor vehicle, police found various items of clothing that had been worn by Ms Bower and Mr Bosma, as well as the item purchased in Fyshwick. The clothes included those visible on the CCTV footage seen by police.
28. The motor vehicle was, however, undamaged, so far as the evidence shows, and was returned to the owner.
The proceedings
29. An Information was laid on 30 June 2022 in relation to these offences. It is not clear why there was a delay between this date and the earlier dates of the police being informed of the theft of the motor vehicle keys on 27 April 2022, the recovery of the motor vehicle on 29 April 2022 and its return to the owner on 6 May 2022, when Police also received and viewed high quality CCTV footage from the gym franchise.
30. Nevertheless, Ms Bower appeared in Court on 30 June 2022, having earlier been arrested. She was remanded in custody and, on the next day in Court, 12 July 2022, entered a plea of guilty. She was committed to this Court for consideration within the Drug and Alcohol Sentencing List with the other offences then before the Court.
31. By that time, Ms Bower had been in custody from 8 June 2022, when she was arrested following her failure to appear in Court on 15 March 2022 in answer to her bail undertaking.
32. The updated Suitability Assessments were then directed to be prepared. Ms Bower remained in custody and has been in custody since then. Some of that time, however, has been as a result of her being sentenced for other matters in the Magistrates Court.
33. The further offences included a breach of bail relevant to bail granted for these offences, but which, it appears, is not, within the meaning of Pt 8 of the Supreme Court Act 1933 (ACT), a related offence to the principal offences for which the bail was granted and, being a summary offence, cannot be the subject of a committal nor a
transfer: R v McMahon (No 2) [2017] ACTSC 299 at [15]–[25].
34. In addition, the Court was informed that Ms Bower faced 11 further charges of obtaining property by deception, which offences were committed in February 2022.
35. The periods of pre-sentence custody, which are attributable to one or more of the current offences, not including such other custody when serving a sentence, total 181 days. This will be taken into account on sentence under s 63(2) of the Sentencing Act.
Delay
36. Most of the matters ordinarily to be taken into account on sentence have been
addressed in R v Bower — the offences, Ms Bower's subjective circumstances,
sentencing practice. Insofar as they need to be addressed further, that will be done
below.37. Since the 2022 offences are of the same type as the offences for which she is already to be sentenced (save that the 2022 theft is in fact a minor theft), the nature of the offences has already been addressed and does not need to be addressed again.
38. A major issue, however, is the delay in bringing the matters to finality. This is complex as the evidence before the Court does not always enable a complete answer to questions about this issue, especially why such delays have happened.
39. Nevertheless, the fact is that the first offences were committed well over four years ago and not prosecuted until 12 months after they were committed. There is no explanation for this, especially as there was no question of identity to be addressed, or of the legality of Ms Bower's entry into the premises on which she trespassed, or of any right to enter the storage unit she tried to access, or of any right to any of the goods there.
40. It must be accepted, however, that Ms Bower does not, on the evidence, seem to have
been approached by police for some time, so the “state of uncertain suspense”, (R v
Todd [1982] 2 NSWLR 517 at 519), would not be so keenly felt by her. Nevertheless, once the proceedings were commenced they did not proceed speedily, but there is no clear explanation as to why this was and, of course, Ms Bower was in that state of uncertainty about whether a custodial sentence was going to eventuate.
41. Nevertheless, she then proceeded, two years or so later, to commit some further very serious offences which resulted in her returning to Court and, for a period, being remanded in custody. In that sense, the need for a sensible disposition of all matters did require the taking of steps resulting in a further passage of time passing.
42. The fact is, however, that Ms Bower is now to be sentenced for offences that are quite old.
43. Some of the delay was caused by Ms Bower's wish to engage in rehabilitation. This is a laudable object and can be accepted as a reasonable basis for deferring sentence.
See R v Po’oi (No 4) [2022] ACTSC 198 at [67].
44. That rehabilitation has been patchy. Ms Bower's time at Arcadia House was not successful and she was ultimately returned to custody only a few months after she had been bailed to attend the facility. Similarly, the period at the Toora facility was not successful. It is no criticism of that important facility to find that Ms Bower did not find the support or environment that she needed. Nevertheless, she did not, by the same token, show the commitment that prevented continuing drug use and ultimately further offending.
45. She was, so the Court was informed, placed in a residence where a person who was consuming and supplying illicit drugs also resided. She did request to be moved, but that did not happen. This led to Ms Bower being exposed to drug use and anti-social contacts.
46. In addition, Ms Bower found that she was pregnant, adding further stress, confusion and pressure, though she subsequently suffered a miscarriage, also causing distress.
47. Given the severity of her dependence on drugs and the long-term nature of that problem, this is, perhaps, understandable. It does also reinforce the need for her to have a more structured regime and a more interventionist, therapeutic approach if she is to succeed in addressing her entrenched drug dependence.
48. Delay is clearly undesirable in the criminal justice system, though the passage of some time is inevitable. It is, of course, a matter expressly dealt with in s 22(2)(c) of the Human Rights Act 2004 (ACT). The jurisprudence of this has been carefully and extensively considered by this Court with reference, as permitted, indeed encouraged, to international jurisprudence, in R v Forsyth [2013] ACTSC 179. It is not necessary to refer to specific matters mentioned in those reasons, though the consideration there is to be taken into account.
49. The specific principles relevant to the effect of delay on sentencing have been set out
in R v Todd at 519–20, a decision accepted by the High Court in Mill v The Queen (1988) 166 CLR 59 at 65–6. The principles are that delay can be taken into account
where:
(a) it may enable an accused to demonstrate rehabilitation, entitling the Court to explore rehabilitation where this will mean the accused is unlikely to reoffend; (b) it may also justify some consideration where the accused suffers some psychological pressure from the uncertainty and suspense; and (c) the present situation is shown to have changed for the accused from that which was part of the offending. 50. These principles have been accepted in this jurisdiction. See R v SP [2004] ACTCA 16
at [31]–[35], though it is noted also that, where the delay is not the fault of the
prosecuting authorities, it is not necessarily a matter of leniency. Of course, any fault is not limited to intentional delay. It seems that unexplained delay can amount to a dilatory attention by investigators or prosecutors to the need for prompt progress of such prosecutions.
51. This raises what was accepted in PR v The Queen [2014] ACTCA 40, namely the additional matter identified in Blanco (1999) 106 A Crim R 303 at 306; [16], expressed as follows:
the fact that a sentence [is] for a stale crime does call for a measure of understanding and
flexibility of approach.52. Included in this is that an offender remains in a state of uncertainty, not necessarily knowing what punishment will be imposed: R v Harrison (1990) 48 A Crim R 197 at
198–9.
53. Ms Bower has not made much progress in her rehabilitation, unfortunately. This, of course, may be partly a function of the depth of her dependence and the need for intensive therapy, particularly apart from anti-social associates which, in this case, for example, can be regarded on the evidence as somewhat of a driving force in the most recent offending. Mr Bosma, after all, had the gym membership and was, at all times on the evidence, the driver of the stolen motor vehicle.
54. To the extent that these principles apply, they must be taken into account.
55. It was further submitted that Mr Bosma had a significant influence on Ms Bower. She
felt “controlled or coerced” by him during their relationship. For example, he refused to
allow her to have her own phone and would monitor the persons to whom she spoke
on the telephone.56. Further, while she did have earlier accommodation provided to her by the Justice Housing Program, she was living in isolation and a number of the supports she anticipated were not provided, including in relation to counselling, food and employment.
57. While the actual progress to rehabilitation is thin, Ms Bower, despite all these matters, continues to be committed to her rehabilitation, and it was reported in the updated
Suitability Assessment of ACT Corrective Services that she has shown “insight into the challenges she faces in addressing her use of illicit substances”.
58. Finally, while her period in the community has been problematic, Ms Bower has, even there, continued with pharmacotherapy until she was remanded in custody. She has also, while in custody, completed some courses that have shown an important level of commitment.
Breach of conditional liberty
59. When Ms Bower committed the first offence of burglary and associated offence of theft, she was subject to a Good Behaviour Order made in the Magistrates Court when two sentences of imprisonment for two offences of driving whilst disqualified had been suspended. One sentence was for four months and the other for six months, suspended after serving two months imprisonment.
60. There are two matters that are relevant. The first is the need to address what is often referred to as the breach of the trust encompassed in the granting of conditional liberty, constituted by the suspension of a sentence of imprisonment and the making of a Good Behaviour Order, which allowed Ms Bower into the community.
61. In this case, that moderates the effect of the delay by making the appropriate sentence somewhat more severe because of that breach.
62. As to the Good Behaviour Order itself, notwithstanding that it has expired, it must, as the second matter, still itself be addressed. The factors relating to that are set out
recently in R v Kelly (No 2) [2021] ACTSC 253 at [12]–[13]:
12. In the event of a breach of a Good Behaviour Order, as is the case here, the Court must then proceed to take appropriate action. In the case of a Good Behaviour Order made when the sentence of imprisonment is suspended, or partly suspended, and where the Court is satisfied that the offender has breached that Order, it must cancel the Good Behaviour Order and either impose the suspended sentence, or re-sentence the offender: s 110 of Crimes (Sentence Administration) Act 2005 (ACT). Unlike some other jurisdictions, there is no presumption in the ACT section in favour of imposing the sentence that was suspended: Guy v Anderson and Telford [2013] ACTSC 5 at [83]. The Court has a discretion: Gyory v The Queen [2012] ACTCA 28 a[t] [9].
13. As with all such discretions, it must be exercised judicially. One relevant matter is that the breach of the Good Behaviour Order constitutes a breach of the trust that the Court has offered to the offender to be in the community and not in custody. That must be recognised: R v Ogilvie [2016] ACTSC 265 at [30], [66]; R v Curtis (No 3) [2017] ACTSC 101 at [30]. Thus, failure of a court to act effectively following a breach will likely bring such sentences into disrepute: Saga v Reid and Collett [2010] ACTSC 59 at [99]-[100]. Nevertheless, re-sentencing may still be an appropriate response: Saga v Reid and Collett at [102]. Thus, even where imprisonment is appropriate, questions of suspension and community service, even Intensive Corrections Orders, will be appropriate: Thompson v Young [2008] ACTSC 11 at [10].
63. It is important, when considering the breach of the Good Behaviour Order, to have the material relevant to the original offending available and that material was available to the Court. Also relevant is the proportion of the Good Behaviour Order served before the breach occurred: R v Curtis (No 2) [2016] ACTSC 34 at [18]; R v Kelly (No 2) at [15](a). In this case, Ms Bower had served approximately seven months of the 18 months of the Order, which is not an irrelevant period of time, though not substantial.
64. Secondly, the Court must address the rehabilitation achieved in the time during which the Good Behaviour Order has been served: R v Curtis (No 2) at [18]; R v Kelly (No 2) at [15](b). In this case, not a lot of rehabilitation had been achieved, particularly as she further committed two offences of driving whilst disqualified later on, though they did not, unlike these offences, breach the Good Behaviour Order.
65. The prospects of further rehabilitation are relevant and the relative seriousness of the offences which constitute the breach of the Order is also relevant (R v Curtis (No 2) at
[18]; R v Kelly (No 2) at [15](c)–(d)), though, in this case, the offences which breached
the Order were significantly more serious than those for which the original sentence was imposed. They are not, therefore, of similar conduct, which is also a relevant factor.
66. The Court must consider whether the breach or breaches are so serious as to show in Ms Bower a disregard for the need to be of good behaviour (R v Ogilvie [2016] ACTSC 265 at [38]; R v Kelly (No 2) at [15](f)) and, in this case, although it is arguable that this is a sign of such disregard, given the further offending that Ms Bower has committed, it may not be as serious as otherwise might be suggested.
67. It has also been suggested that it is important to note whether the offender has been warned of the breaches, especially where they are not breaches constituted by further offending (R v Cuthel [2016] ACTSC 91 at [18]; R v Ogilvie at [75]; R v Kelly (No 2) at [15](g)), but that is not the position here, and Ms Bower, so far as the evidence shows, was not warned of what would happen if there were breaches.
68. The Court may take into account any level of understanding of the obligations and the terms of the Good Behaviour Order and the consequences of the breach (R v PM (No
2) [2015] ACTSC 358 at [20]–[22]; R v Kelly (No 2) at [15](h)) and there is no reason to
suggest that Ms Bower was not well aware of those matters. The nature of judicial and community resources previously devoted to the offender is also relevant (R v Bennett [2017] ACTSC 104 at [11]; R v Kelly (No 2) at [15](i)), but not in this particular case.
69. In this case, she has committed serious offences which breached the Order and therefore action must be taken and, prima facie, that action should be by the imposition of the sentences that were suspended.
70. Further, as was noted earlier, she had committed two further offences for which she was then sentenced, but to a significantly greater term of imprisonment which was served, thus, to some extent, recognising a failure of the earlier sentences as a corrective.
71. For this reason, the sentences now to be imposed need to be in the context of that further sentencing.
Consideration
72. When proceeding to sentence, it is important to have a clear view of the purposes for which the sentences are to be imposed. As said in many decisions, such as Channon v The Queen (1978) 33 FLR 433 at 437, the various purposes are all directed to the one principle of the protection of the community. This can only be achieved by identifying the particular purposes which will achieve that, when synthesised to produce the one sentence that must finally be imposed.
73. In this Territory, as elsewhere, the courts have the legislated purposes of punishment to assist them and these are set out in s 7 of the Sentencing Act.
74. Thus, punishment for the wrongs done to the community is an important objective which, given the serious nature of a number of the offences Ms Bower has committed, must be part of the sentence. This helps to set the norms of behaviour that are acceptable and necessary in a civilised community.
75. In this way, too, it can be directed to the prevention of such behaviour by others, and so the sentence will include an element of deterrence to those in the community who may be likely to commit such offences. Similarly, such a sentence will also denounce the conduct of Ms Bower by the appropriate severity of the punishment.
76. Ms Bower herself must also be deterred from engaging in such behaviour and committing such crimes. This is important here, for, while Ms Bower has previously committed offences of dishonesty, as many of her present crimes are, and has committed quite a number of offences both in this Territory and in New South Wales, they have not, so far, included the more serious ones such as burglary for which she now needs to be sentenced. It is important that her escalation of offending must, if possible, be brought to an end.
77. This can also be effected by her rehabilitation, as well as her deterrence, and in appropriate cases rehabilitation can be more effective for achieving that ultimate objective.
78. Nevertheless, the sentence must also acknowledge that there are individuals who are the victims of her crimes. The harm she has caused and from which they have suffered, and in many cases may continue to suffer, must be acknowledged in the sentence.
79. In these ways, the sentence will, to be the best of the Court's ability, achieve the protection of the community.
80. Ms Bower originally pleaded not guilty in the Magistrates Court to all but the 2022 offences. In relation to these latter offences, she pleaded guilty at a very early time. It was at the second mention and prior to the requirement for the prosecution to prepare its Brief of Evidence.
81. For all the other offences, however, while they were the subject of pleas of not guilty and committed for trial, nevertheless pleas of guilty were ultimately entered in this Court consequent upon the Criminal Case Conference and, in fact, not all the charges the subject of the committal proceedings did proceed to pleas of guilty and charges before the Court, but were discontinued.
82. For all the current offences, then, the Court must consider, under s 35 of the Sentencing Act, whether the sentence should be discounted for the pleas. The timing of the pleas is relevant. In relation to the 2022 charges, a discount of some significance is appropriate, though the evidence was very strong, perhaps not quite to the level overwhelming.
83. For the other offences, the evidence was also generally strong, though not overwhelming, but the circumstances of the pleas nevertheless have been accepted in this jurisdiction as justifying a discount in the sentence also. See R v Stacker [2020]
ACTCA 34 at [103]–[112].
84. These discounts will be reflected in the sentences to be imposed.
85. While Ms Bower's attempts, earlier in the proceedings, to show her commitment to her rehabilitation have not been successfully translated into action, it is not correct to say that her expressed wish to do so is to be disregarded. She has explained that the relationship in which she was engaged, and which has now ended, was a difficult one, including her then partner exercising controlling behaviour and coercion. This is perhaps not entirely an excuse, but is certainly an explanation, which does not completely undermine her continued expression of that commitment.
86. This is particularly so where the limited and, to some extent, rather tentative steps that she has taken towards her rehabilitation are considered, including the continued pharmacotherapy, her ongoing exploration of rehabilitation options and her willingness to engage in and complete courses directed to her rehabilitation and employment while currently in custody, to which reference is made in R v Bower at [96], [129] and [132].
87. Important, too, is the motivation that is represented by her wish to reconnect with her children. This Court has seen that, in many cases, especially for mothers, that is an effective motivation. She also is at an age which shows that this motivation is highly likely to become stronger with the passage of time for a variety of reasons. Perhaps, too, the tragic loss earlier will make this possibility a more important motivation for her.
88. Nevertheless, the fact that, while seeking to show to this Court that she could conduct herself appropriately in the community and take initial steps to rehabilitation, she absconded, failed to comply with her bail undertaking and committed further offences, is by no means irrelevant and must be weighed significantly by the Court.
89. It is also relevant that she has been charged with, though, so far as the Court is aware, has not entered a plea to a number of serious offences alleged to have been committed in May this year in New South Wales. Ordinarily, charges laid but not proved by a plea of guilty or a finding of guilt cannot be taken into account and, of course, the Court cannot assume that she is guilty of them.
90. The relevance, therefore, is very limited, but may need to be recognised in whether any sentence here will be put at risk by the need for her to deal with those matters in due course, though she may be found not guilty of them. It also shows that it cannot be assumed that she has committed no offences, though that ultimately may be shown to be the position.
91. Ms Bower has, too, suffered some childhood disadvantage. Although, as explained in
R v Bower at [93]–[94], she did not suffer neglect, she did, for a time, have no parental
support, though this has changed, and also little parental control leading to her settling
into a pattern of behaviour she described as “run[ning] wild”. Her education was also
disrupted.
92. While this has now changed and she has more recently received support from her mother, the early experiences do go some way to explain her behaviour, especially in the context of her relatively early introduction to drugs, including not just the use of cannabis at age 12, but the use of methamphetamine at age 14. Such longstanding drug use has led to dependence, recognised in the professional assessments of the Suitability Assessments.
93. As well as these matters, it is important to have regard to the matters referred to in R v Bower and earlier in these reasons, namely, the nature and circumstances of her offending and the effect that these have had on the victims of her crimes. Though no Victim Impact Statements were presented into evidence, the Court can, nevertheless, in general terms, understand those harms. In addition, her personal circumstances, as there and here set out, must be taken into account.
94. Ms Bower is generally to be held responsible for her offending, though it is accepted there has been a degree of coercion, especially in the more recent offending, as explained in the unchallenged submissions. That Ms Bower was affected by drugs is relevant, as set out in s 33(1)(p) of the Sentencing Act. At common law this has been held to be no mitigation and that may, depending on the statutory reference, still apply, though there have been no submissions on this particular statutory construction. The circumstances in which she became dependent are, however, both as referred to in the statute as well as at common law, a factor usually accepted as justifying mitigation in
sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 384–5; [194].
95. As noted above, Ms Bower has spent significant periods in custody in respect of these offences. Those periods have to be taken into account and it is appropriate that this be done by backdating the start of the sentence, as permitted under s 63(2) of the Sentencing Act.
96. Having carefully considered all the relevant factors as mentioned, it is clear that no other sentence than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
97. There are, of course, multiple offences for which Ms Bower must be sentenced. For
each offence, a sentence has to be imposed; there are, in this Territory, no “general sentences”. Careful consideration must be, and has been, given to each sentence to
ensure that it is just and adequate and to ensure that Ms Bower is not to be punished
twice in the imposition of any sentence.98. The Court is also required to decide whether any of the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct or contain common elements. This does apply here, for example, where the theft was committed in the course of the burglary, or the goods received were part of the burglary in which she was knowingly concerned. Similarly, the involvement in a number of the offences were all part of one course of conduct, justifying consideration of appropriate concurrency. This must, of course, not be such that it leaves any impression that Ms Bower may commit multiple offences with impunity.
99. The total sentence must be carefully considered to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the total criminality of the offences, but no more than that. The total sentence must not be excessive and must leave open the realistic prospect of reform for Ms Bower from her offending and leave her with the hope that she can take an effective part in the community and with her family and realise her aims when she is released.
100. This, of course, may result in what, to some, seems like leniency, especially with some concurrency, but while Ms Bower's total criminality is important to be adequately reflected in the sentence, her commitment to her rehabilitation, though only translated into action in a very limited way, as well as her childhood circumstances and her early introduction to drug taking, must be taken into account and are relevant. Thus, the sentence will be proportionate to her culpability for the crimes for which the sentence is to be imposed, but also to her personal circumstances and to the value of her reform to the community generally, as well as to herself.
Sentence
[His Honour then spoke directly to the offender]
101. Ms Bower, please stand.
(1) The Information dated 30 June 2022 for the charge of dishonestly riding in a motor vehicle without consent be amended by omitting “27 April 2018” and substituting
“28 April 2018”.
(2) You are convicted of burglary and sentenced to 12 months imprisonment to commence on 16 March 2022 and end on 15 March 2023. Had you not pleaded guilty, you would have been sentenced to 15 months imprisonment. (3) You are convicted of theft and sentenced to three months imprisonment to commence on 16 January 2023 and end on 15 April 2023. Had you not pleaded guilty, you would have been sentenced to four months imprisonment. (4) You are convicted of the second burglary and sentenced to 10 months imprisonment to commence on 16 January 2023 and end on 15 November 2023. Had you not pleaded guilty, you would have been sentenced to 12 months imprisonment.
(5)
You are convicted of receiving and sentenced to six months imprisonment to commence on 16 August 23 and end on 15 February 2024. Had you not pleaded guilty, you would have been sentenced to seven months imprisonment.
(6)
You are convicted of the first occasion of dishonestly riding in a motor vehicle without consent and sentenced to eight months imprisonment to commence on 16 November 2023 and end on 15 July 2024. Had you not pleaded guilty, you would have been sentenced to nine months imprisonment.
(7)
You are convicted of obtaining property by deception and sentenced to six months imprisonment to commence on 16 March 2024 and end on 15 September 2024. Had you not pleaded guilty, you would have been sentenced to seven months imprisonment.
(8)
You are convicted of the second offence of dishonestly riding in a motor vehicle without consent and sentenced to nine months imprisonment to commence on 16 May 2024 and end on 15 February 2025. Had you not pleaded guilty, you would have been sentenced to 11 months imprisonment.
(9)
You are convicted of the second offence of obtaining property by deception and sentenced to six months imprisonment to commence on 16 November 2024 and end on 15 May 2025. Had you not pleaded guilty, you would have been sentenced to seven months imprisonment.
(10) You are convicted of unlawful possession of stolen property and sentenced to three months imprisonment to commence on 16 March 2025 and end on 15 June 2025. Had you not pleaded guilty, you would have been sentenced to four months imprisonment.
(11) You are convicted of dishonestly riding in a motor vehicle without consent and sentenced to nine months imprisonment to commence on 16 March 2025 and end on 15 December 2025. Had you not pleaded guilty, you would have been sentenced to 12 months imprisonment.
(12) You are convicted of minor theft and sentenced to two months imprisonment to commence on 16 October 2025 and end on 15 December 2025. Had you not pleaded guilty, you would have been sentenced to three months imprisonment. (13) The Good Behaviour Order that was made in the Magistrates Court on 16 August
2017 is cancelled.(14) Your conviction for driving whilst disqualified is confirmed. You are sentenced to four months imprisonment to commence on 16 September 2025 and end on 15 January 2026. Had you not pleaded guilty, you would have been sentenced to 5 months imprisonment. (15) Your conviction for the second offence of driving whilst disqualified is confirmed. You are sentenced to four months imprisonment to commence on 16 November 2025 and end on 15 March 2026. Had you not pleaded guilty, you would have been sentenced to 5 months imprisonment. 102. That is a total sentence of four years, commencing on 16 March 2022 and ending on 15 March 2026.
103. You may be seated.
Drug and Alcohol Treatment Order application
104. Ms Bower has sought that she serve the sentence by way of a Treatment Order. There are, under ss 12A and 80S of the Sentencing Act, certain eligibility requirements. The eligibility requirements under s 80S of that Act relate really to suitability and can be dealt with in that context.
105. The requirements under s 12A of the Sentencing Act will be considered first. Ms Bower has been sentenced to a term of imprisonment of 12 months for the offence of burglary, which is within the minimum period of imprisonment, namely 12 months, for which a sentence must be imposed to render her eligible for a Treatment Order to be made.
106. The total sentence of four years is also within the maximum period, namely four years, for which a total sentence may be imposed. Ms Bower is also not currently subject to any other sentencing order within the meaning of the Act. While Ms Bower has expressed a wish, in due course, to move to the south coast to be closer to her children, she has been resident in the Territory for about seven years and has shown no immediate wish to move. The Court can be satisfied that she will remain in the ACT for the next two years, at least.
107. Ms Bower has signed a form consenting to the making of a Treatment Order and has indicated in it that she has had the obligations under and requirements of such an Order explained to her that, and her current commitment is evidence that she has shown to the Court that she understands those obligations. It also shows, as her counsel submitted and as the Suitability Assessments show, that she has had an opportunity to ask any questions about the Treatment Order and has had those questions answered in language that she can understand.
108. Ms Bower is, on the evidence, dependent on methamphetamine, and that dependence has substantially contributed to her commission of the offence of burglary, indeed, of all the offences.
109. Accordingly, Ms Bower is eligible to be subject to a Treatment Order.
110. The Suitability Assessments, on a careful reading, are comprehensive, professionally prepared and clear in their factual presentation, reasoning, opinions and recommendations. These have been of considerable assistance in the preparation of these sentencing remarks and in deciding how to proceed. Both the original Suitability Assessments for Ms Bowers have found Ms Bower unsuitable. The updated and amended Assessments, however, both recommend that Ms Bower is suitable for a Treatment Order to be made, so long as it is in a residential drug rehabilitation facility.
111. A placement at the Karralika Programs Incorporated residential drug rehabilitation facility is presently available to her. Thus, satisfactory arrangements for the administration of such an Order are also available. None of the indicators of unsuitability for a Treatment Order set out in table 46K of the Sentencing Act are such as to justify a finding that Ms Bower is not suitable to be subject to an Order.
112. The Crown, however, submitted Ms Bower should not be found suitable. It was submitted that Ms Bower's history of non-compliance with community-based orders and
her “fleeting attempts at addressing her drug abuse problem” rendered her unsuitable.
These submissions were, it must be said, made in the context of the original Suitability
Assessments, one of which had also recommended that she was unsuitable.113. Having had an opportunity to consider carefully the updated and amended Suitability Assessments, having regard to Ms Bower's more recent conduct, albeit in custody, and having considered all the circumstances, it seems that the more recent assessments are now appropriate and she is suitable for the making of such an Order.
114. Finally, although the sentence of imprisonment commences on 16 March 2022, which period has, from that date until today, been a sentence served in custody, and it only now will be suspended, this does not prevent Ms Bower from being subject to a Treatment Order because of the reasons set out in R v Crawford (No 1) [2020] ACTSC
245 at [91]–[111].
Drug and Alcohol Treatment Order
[His Honour again spoke directly to the offender]
115. Ms Bower, please stand again.
(16)
A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for you for two years from today, commencing on 13 September 2022 and ending on 12 September 2024, in respect of the primary offence of burglary of which you have been convicted and for which you have been sentenced to 12 months imprisonment.
(17)
That Order is extended to the offences of theft, the two offences of burglary, an offence of receiving, three offences of dishonestly riding in a motor vehicle without consent, two offences of obtaining property by deception, an offence of unlawful possession of stolen property and an offence of minor theft of which you have been convicted and for which you have been sentenced and which are associated offences of the primary offence.
(18)
It be noted that convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order.
(19)
The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act (ACT) from today, 13 September 2022, until 15 March 2026.
(20) Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), you are required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 13 September 2024, until the end of the total sentence on 15 March 2025, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking, or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you, including as to urinalysis, counselling and treatment.
(21) For the treatment and supervision part of the Drug and Alcohol Treatment Order,
a.
The core conditions of the Order, set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT), are hereby imposed;
b.
You are to travel directly from the Court today to the Karralika Therapeutic Community conducted by Karralika Programs Incorporated at Isabella Plains, ACT, and admit yourself to the residential drug rehabilitation program at that facility as soon as reasonably possible today;
c.
You are directed to complete that residential drug rehabilitation program at the Karralika Therapeutic Community, to not leave the facility until you have completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility;
d.
Should you leave or be discharged from the program before completing it, you are to report to ACT Corrective Services by 4:00pm on the next business day with a view to having this Order reviewed;
e.
You are to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where you reside, with whom you associate and your attendance from time to time; and
f.
You are to comply with any directions of the Court from time to time about attendance in Court in person or by electronic means.
(22) You are directed to appear by electronic means in Court on Friday 23 September
2022 at 12:30pm.(23)
You are directed to attend the Court Registry before you leave the Court precincts to sign a sealed copy of this Order and the undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that the Order is in force.
116. Ms Bower, you are starting on a really important journey now. It is a journey that I encourage you to take, but I am hesitant. You have not been that successful so far. You have, however, remained absolutely steadfast in wanting to address your drug dependence and put drug use and crime behind you. That is the only way you can become a good mother to your children, current and any future children you might seek to have.
117. If you keep that steadfastly in your mind as what you really want to do, then this program will assist you. Karralika will assist you, your counsellors will assist you, this Court will assist you, the Team that assists this Court will assist you.
118. Ultimately, however, you have got to do it yourself. We cannot do it for you, but we are here to assist you. I do not say that in a patronising way. If you really want this, and if you do not want to go back to gaol, if you do not want a life where you are in and out of gaol and looking behind you and doing silly things, if you want to be like other members of the community who have a fulfilled life, who can make some contribution to the community, whether through their family, their friends or more widely, in the jobs they do or in the other contributions that they make to the family, then this is a really good way, and a proven way, in which it can be done.
119. One of the really important things is honesty. You need to be honest about what you are doing, what you have done, what you are proposing to do, all those kinds of things. It is also important to be honest with yourself. You have got to live with yourself and it is very easy for us to see what we do through a slightly rosy glow. We do something
and we think “It wasn't really that bad,” but it really was that bad.
120. If you can be honest with yourself about that, then you can be stronger in yourself because you know that you are being honest and you can address it. If you pretend to yourself that it is not that bad, then you do not think it is worth putting effort into it. It is really important to be honest with yourself.
121. Secondly, be honest with us, and feel comfortable about exposing yourself a bit vulnerably to us. If there are problems, share them. You will come and see me for the first few months regularly, probably about every week. That is an opportunity for me to tell you how I see you going. I will congratulate you and encourage you if you are doing well and if you are not doing well, I will tell you to pull your socks up and do better.
122. If there are problems, share them. This is your occasion to do that. I am a Judge and I have lots of power. I do not have all power. I cannot solve everything. Homelessness can be a big problem that I just cannot solve. We try, but I am also supported by some amazing professionals who often I can encourage to assist you to address these things.
123. If you do not open up about them, if you do not tell us about them, they often fester, and suddenly it will all be too hard and you will abscond, as you did before. Running away is one of the worst things you can do. We have, I think it is fair to say, recovered nearly everyone who has absconded and they are back in custody. It might take time, it might take months, which is even worse if you have got to go back for nearly four years after you have been out in the community for a long time. So do not run away.
124. If it becomes too much, let me know. Let me know and we will try and work it out. I cannot guarantee that there will not be a problem and, sometimes, at the end of the day, you might have to go back to prison. That might be the only option. We struggle to avoid that if we can, but sometimes it happens. I have got to be honest with you and that is the situation.
125. If you are silly enough to leave, come back and see us. It is much better to do that and face the music and let us work it out. Almost inevitably, you will have to spend a short time in prison, up to 14 days, but we work hard to try and get you back on track if that is possible and not have to cancel the Order and send you back for the rest of the four years. Keep that strongly in mind.
126. Karralika is tough. It will be tough, but you can get through it. We will help you the best we can to get through it, but every time something looks terrible, you will be able to overcome it and by overcoming it you will become stronger. It will be easier next time and easier and easier, and then you will finally not be in the position that you have been. Hopefully I can then graduate you and put you back in the community with that certification that you are drug-free and crime-free and hopefully will remain that way for the rest of your life.
127. If you commit to that journey with us, then it will work. This is a really important time for you. It is a really important opportunity for you and we really want to make it work. Let us work together to make it work.
128. It only remains for you to wish you, and I genuinely do, good luck in this. Put your heart and soul into it and it will work.
129. You may be seated.
I certify that the preceding one hundred and twenty- nine [129] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge
Associate:
Date: 25 May 2023
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