R v Campbell; R v Wray
[2017] ACTSC 386
•15 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Campbell; R v Wray |
Citation: | [2017] ACTSC 386 |
Hearing Date: | 15 December 2017 |
DecisionDate: | 15 December 2017 |
Before: | Elkaim J |
Decision: | See [34] – [48] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – aid and abet burglary – unlicensed driving – possessing a knife without a reasonable excuse. |
Legislation Cited: | Criminal Code 2002 (ACT) ss 45, 308, 311 and 312 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 65 and 66 Road Transport (Driver Licensing) Act 1999 (ACT) s 31(1) |
Cases Cited: | R v Hodge [2017] ACTSC 373 |
Parties: | The Queen (Crown) Samantha Jane Campbell (Offender) Rodney John Wray (Offender) |
Representation: | Counsel Ms A Mifsud (Crown) Mr T Pasipanodya (Offender – Campbell) Ms H Hayunga (Offender – Wray) |
| Solicitors ACT Office of the Director of Public Prosecutions (Crown) Prudential Legal Solutions (Offender – Campbell) Legal Aid ACT (Offender – Wray) | |
File Numbers: | SCC 176 of 2017; SCC 177 of 2017; SCC 246 of 2017; SCC 173 of 2017; SCC 174 of 2017; SCC 175 of 2017; SCC 331 of 2017 |
ELKAIM J:
There are two offenders before me for sentence today. For convenience, I will refer to them by their names.
On 11 October 2017, Ms Campbell pleaded guilty to two counts on an amended indictment. The pleas were accepted in full satisfaction of the indictment. The relevant offences are two counts of aid and abet aggravated burglary, contrary to ss 45 and 312 of the Criminal Code 2002 (ACT). The maximum penalty for these offences is a fine of $300,000 and/or 20 years’ imprisonment.
Ms Campbell is also to be sentenced in respect of two matters that have been transferred from the Magistrates Court. They are two charges of unlicensed driving, contrary to s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT). The maximum penalty for this offence is a fine of $3,000.
On 11 October 2017, Mr Wray also pleaded guilty to four counts on an amended indictment. The pleas were accepted in full satisfaction of the indictment. The four counts and their respective maximum penalties are:
(a)Three counts of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is a fine of $300,000 and/or 20 years’ imprisonment.
(b)One count of theft, contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is a fine of $150,000 and/or 10 years’ imprisonment.
In addition, Mr Wray entered a plea of guilty to a further offence of burglary, contrary to s 311 of the Criminal Code 2002 (ACT). The maximum penalty for that offence is a fine of $210,000 and/or 14 years’ imprisonment. This matter is also to be dealt with today.
Mr Wray also wishes me to take a number of additional matters into account in sentencing him for the burglary of the Shell Service Station, namely:
(a)A charge of possess knife without a reasonable excuse (CC 2017/3297);
(b)A charge of obtain property by deception (CC 2017/4494);
(c)A charge of trespass on premises without reasonable excuse (CC 2017/6001);
(d)A charge of damage property, not exceeding $5,000 (CC 2017/12056);
(e)A charge of common assault (CC 2017/3222); and
(f)A charge of trespass on premises without reasonable excuse (CC 2017/3221).
The three counts of aggravated burglary, to which pleas were entered on 11 October 2017, involved both the offender and another man, Mr Bradley James Hodge. Mr Hodge was sentenced by Mossop J on 25 July 2017 (R v Hodge [2017] ACTSC 373). This raises issues of parity which require consideration.
Mr Hodge is Ms Campbell’s brother. Mr Wray was Ms Campbell’s boyfriend.
Ms Campbell and Mr Wray were both involved in the aggravated burglary at Shell Service Station and Sassy Hair, which occurred on 18 March 2017.
Mr Wray and Mr Hodge were involved in another aggravated burglary on that date at the Yarralumla Post Office. At about 3.05 am, the offenders arrived in a stolen Suzuki motor car, driven by Ms Campbell, and broke into the Post Office. They could not find anything to steal so they left the premises.
At about 3.20 am, Mr Wray and Mr Hodge entered a service station in Curtin. Ms Campbell was the driver of a motor vehicle. Mr Hodge stole a quantity of milk drinks, iced coffee and energy drinks. The service station was shut at the time.
At about 3.25 am, Mr Wray, Mr Hodge and Ms Campbell arrived at a hair salon in Weston. The premises were broken into by Mr Wray and Mr Hodge and a number of items were stolen, including hair straighteners and hair products.
At about 4.00 am, the offenders arrived at a service station in Chisholm. They were observed by police and arrested. Mr Wray produced a knife. He made full admissions concerning the burglary at the hair salon and at the Yarralumla Post Office.
The separate burglary to which Mr Wray pleaded guilty occurred on 1 March 2017. Mr Wray kicked in the front door of a takeaway store. He jumped over the counter and left with $30 and a number of drinks.
Both offenders are entitled to have their pleas of guilty taken into account and receive a discount on their sentences.
Ms Campbell was born in Queanbeyan in 1991. She is one of eight children. She has two children of her own. She has been homeless a number of times.
Ms Campbell is of Aboriginal heritage and has contact with her community.
Ms Campbell started receiving Centrelink benefits after completing Year 7. She has had limited employment and has large debts. She has issues with alcohol and drugs. The Pre-Sentence Report indicates that there is a high risk of re-offending.
The authors of the Court Alcohol and Drug Assessment Service Assessment Report said that Ms Campbell:
…reported a highly traumatised and dysfunctional childhood…Ms Campbell was removed from her family shortly after she was born. She reported this was due to her parents’ use of alcohol and other drugs and their use of physical violence against both her and her siblings. Ms Campbell reported that she has scars on her back from being whipped with an electrical cord and belt by her mother. She also reported that her father had injected her with amphetamines when she was aged 13…
Ms Campbell has also reported self-harm. She has overdosed on drugs and attempted to take her own life. She has been admitted involuntarily to a mental health unit. She has also experienced a traumatic event.
Ms Campbell obviously needs to stay away from alcohol and drugs. She also needs to find work. This will not necessarily be easy to achieve. Ms Campbell has had a very disadvantaged upbringing. Her prospects for rehabilitation and becoming a contributing member of society are slim, but must not be disregarded. The Court has an obligation to punish her for her crimes but it also must do its best to give her a chance to improve her life.
It is well accepted that one of the ways in which rehabilitation can be achieved is by treating the symptoms behind the offending. The use of illicit drugs has played a major part in Ms Campbell’s offending.
Ms Campbell has expressed a desire to get her life in order and to gain access to and custody of her two children. She has taken advantage of programs at the Alexander Maconochie Centre (AMC). She has been touch with workers from Toora Women Incorporated. She has indicated that she is interested in participating in the Rehabilitation program following her release. Exhibit 1 includes a letter from Toora Women Incorporated stating that, following her release from custody, Ms Campbell will be supported by a case coordinator from the Coming Home Program.
Although, as a general rule, a person who acts as the ‘getaway driver’ will be treated in the same way as a person who breaks into premises there are, as conceded by the Crown, special circumstances in Ms Campbell’s case which entitle her to a more lenient approach. In particular, she has made real attempts to improve her life since the offences were committed, as evidenced in Exhibit 1.
One of the difficulties that Ms Campbell faces is that she was sentenced, in respect of unrelated offences, by Magistrate Fryar on 20 November 2017. Her Honour imposed 12 months imprisonment with a non-parole period expiring on 17 April 2018. Sections 65 and 66 of the Crimes (Sentencing) Act 2005 (ACT) require that any sentence imposed does not commence prior to 18 April 2018.
Mr Wray was born in 1983. He has a significant criminal record for a person of his age. He was born in Canberra and is one of three children. He has had very little contact with his biological father.
Mr Wray completed year 10 but had difficulty at school because he suffers from Attention Deficit Hyperactivity Disorder (ADHD). He began to display symptoms of schizophrenia when was about 15 years of age. His employment history is limited, probably as a result of his mental health issues and issues with drug use.
Mr Wray is on a disability support pension. He has a large debt to Housing ACT. He appears to spend all the money he has on drugs. He does not seem to be particularly motivated to turn his life around. He takes, and will need to continue taking, medication for his schizophrenia. He has attempted self-harm on three occasions. Mr Wray has sometimes said that “the voices made me do it”.
The sentencing of both offenders involves consideration of the principles and objectives of sentencing, as described in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is also important because it tells the court not to impose a sentence of imprisonment unless there is no other alternative. Neither of the offender’s counsel put forward a suspended sentence or an Intensive Corrections Order.
I suggested to counsel for both offenders that the principle of parity should be applied. There is no reason why the sentences imposed by Mossop J on Mr Hodge should not be applicable here. Counsel for Mr Wray submitted that, while both Mr Wray and Mr Hodge were similarly involved, I could take into account their different criminal records.
A comparison of their records reveals that Mr Wray has a longer record then Mr Hodge. However, on average, the offences contained in Mr Wray’s record are less serious than those contained in Mr Hodge’s record. While I accept that I am not bound to apply specific parity, I can see no reason to distinguish between Mr Wray and Mr Hodge, particularly having regard to my agreement with Mossop J as to the appropriate sentences.
In respect of Ms Campbell and Mr Wray I have applied the same discount on their sentences as that applied by Mossop J to Mr Hodge – namely, 25%. I also adopt his Honour’s assessment of the objective seriousness of the offences and generally his approach to concurrency and accumulation.
In respect of Mr Wray, a longer sentence has been imposed in respect of the aggravated burglary of the Shell Service Station, because I have taken into account the offences set out above, at [6].
I make the following orders:
Samantha Jane Campbell
In respect of count 3, aid and abet aggravated burglary (CC 2017/3540), the offender is sentenced to 12 months’ imprisonment commencing on 18 April 2018 and ending on 17 April 2019.
In respect of count 4, aid and abet aggravated burglary (CC 2017/3538), the offender is sentenced to 12 months’ imprisonment commencing on 18 July 2018 and ending on 17 July 2019.
In respect of the charge of unlicensed driving (CC 2017/3536), the offender is fined $300 with no time to pay.
In respect of the charge of unlicensed driving (CC 2017/3541), the offender is fined $300 with no time to pay.
The head sentence imposed is 15 months’ imprisonment.
I set a non-parole period of 9 months commencing on 18 April 2018 and ending on 17 January 2019.
Rodney John Wray
In respect of count 1, aggravated burglary (CC 2017/3892), the offender is sentenced to 18 months imprisonment commencing on 18 March 2017 and ending on 17 September 2018.
In respect of count 2, aggravated burglary (CC 2017/3893), the offender is sentenced to 18 months’ imprisonment commencing on 18 July 2017 and ending on 17 January 2019.
In respect of count 4, aggravated burglary (CC 2017/3298), the offender is sentenced to 24 months’ imprisonment commencing on 18 November 2017 and ending on 17 November 2019.
In respect of count 6, theft (CC 2017/3552), the offender is sentenced to 6 months’ imprisonment commencing on 18 November 2017 and ending on 17 May 2018.
In respect of the charge of burglary (CC 2017/12888), the offender is sentenced to 12 months’ imprisonment commencing on 18 December 2018 and ending on 18 December 2019.
The head sentence imposed is 2 years and 9 months’ imprisonment.
I set a non-parole period of 20 months commencing on 18 March 2017 and ending on 17 November 2018.
A reparation order is made in the amount of $400 in favour of Steve’s Melba Takeaway and Pizza, pursuant to s 19 of the Crimes (Sentencing) Act 2005 (ACT).
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 15 December 2017 |
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