R v Charles
[2020] ACTSC 39
•7 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Charles |
Citation: | [2020] ACTSC 39 |
Hearing Date(s): | 7 February 2020 |
DecisionDate: | 7 February 2020 |
Before: | Walker AJ |
Decision: | 25 months’ imprisonment from 29 October 2019 to 28 November 2021, including a 12 month Drug and Alcohol Treatment Order. On successful completion of the Drug and Alcohol Treatment Order, the offender is to enter into a Good Behaviour Order for the remainder of the custodial part. See [29]-[32]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drug and alcohol treatment order – aggravated burglary - riding in a motor vehicle without consent |
Legislation Cited: | Crimes Act 1900 s 26 Crimes (Sentencing) Act 2005 (ACT) ss 12A(2), 17, 33, 80W, 80Y, 80Z, 80ZA Criminal Code 2002 (ACT) ss 312, 318(2), 326 |
Cases Cited: | Bugmy v The Queen [2013] HCA 27; 249 CLR 571 R v Parker [2019] ACTSC 38 |
Parties: | The Queen (Crown) Delphine Maree Charles (Offender) |
Representation: | Counsel M Dyason (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number(s): | SCC 343 of 2019 |
Walker AJ (ex tempore)
Summary of charges
Ms Charles is charged with offences occurring on three separate occasions:
· riding in a motor vehicle without consent (CAN 9915/19), contrary to s 318(2) of the Criminal Code 2002 (ACT) (the Criminal Code) and obtaining property by deception (CAN 9921/19) contrary to s 326 of the Criminal Code on 30 June 2019;
· aggravated burglary with intent to cause harm (CAN 8801/19), contrary to s 312 of the Criminal Code and two counts of common assault (CAN 8802/19 and 8803/19) contrary to s 26 of the Crimes Act 1900 on 10 July 2017; and
· riding in a motor vehicle without consent (CAN 9920/19), contrary to s 318(2) of the Criminal Code, on 8 September 2019.
The most serious of these offences is aggravated burglary, which carries a maximum penalty of up to 20 years' imprisonment, a fine, or a combination of both. The offence of riding in a motor vehicle without consent carries up to five years' imprisonment or a fine or both. The offence of obtaining property by deception carries up to ten years' imprisonment, a financial penalty, or combination of both.
These matters were committed to the Supreme Court for sentence, following the entry of guilty pleas, after receipt of a brief of evidence in the Magistrate's Court. The offence of common assault carries up to two years' imprisonment and is therefore summary only. These charges were transferred for sentence as related charges. Committal was sought for the purpose of assessment of Ms Charles' suitability to serve her sentence on a drug and alcohol treatment order.
Evidence
I have available to me an agreed statement of facts, Ms Charles' prior criminal history and assessment reports as to her suitability for a drug and alcohol treatment order. Namely, the report of Ms Alex Durrant, social worker of the Forensic Mental Health Service, date 22 January 2020, a report from Ms Elayne Cheong of the Alcohol and Drugs Service dated 23 January 2020, and a report by Mr Andrew Cuthel of ACT Corrective Services (ACTCS) dated 29 January 2020.
Ms Charles has been on bail whilst being assessed and there have been oral updates provided in conference prior to her appearance at court on a number of occasions during her bail.
Factual circumstances
On 30 June 2019, Ms Charles was recorded on video getting out of a vehicle which had been stolen from its owner that day. She was recorded in various shops in the suburb of Dickson using a bank card which belonged to the owner of the motor vehicle, the card also having been stolen that day. The value of the items acquired was $300.55. The circumstances in which she came to be in the vehicle and how long she spent in it are unknown to the court. The offence on itself must be assessed as being at the lower end. The obtaining property by deception reflects multiple uses of a card against commercial objects of low financial value and is low in offending of its type.
On 10 July 2019, Ms Charles went to the home of Cassandra Leighton with her daughter and co-offender, Ms Keira Brown. She entered the premises uninvited but without the use of force. Ms Charles screamed at Ms Leighton and two other women who were present. One of those, Ms Err, she kicked in the back of the head, causing her to spill the contents of a drink she was holding. She also punched Ms Leighton in the shoulder, causing both discomfort and fear.
The incident was not protracted, nor was any weapon used. The common assaults did not involve a great deal of force, although the kick to the head was obviously to a vulnerable part of a person's body. Whilst inherently serious, the burglary is at the lower end of the scale for an offence of this type. The common assaults are in the low to mid range of seriousness.
In September 2019, Ms Charles was seen getting out of a vehicle that had also been stolen from another person. There appears to have been an altercation with other occupants of that vehicle as Ms Charles and another woman threw rocks at it after getting out. No charges have been laid in respect of that conduct. Again, it cannot be said how long Ms Charles was in the stolen motor vehicle, or the circumstances in which she came to be travelling in it, and therefore this offending must be assessed as being toward the lower end.
Subjective circumstances
Ms Charles is 38 year old Aboriginal woman from Griffith in New South Wales. She is the eldest, apparently, of 15 children. She has been out of her birth family home since she was 14 years of age, when she came to Canberra to live with extended family. She is the mother of seven children, many of whom are in the care of the state. She is currently pregnant with her eighth child and is undecided as to her course of action in respect to that pregnancy.
Her upbringing was, by all accounts, traumatic. She was exposed to drug use and was the victim of sexual and physical assault by family members, some of that not reported to police. She has limited education and no employment history to speak of. She is in receipt of a Centrelink disability support pension and living in public housing which she has maintained well.
Physically, she has significant challenges, including endocarditis, a condition effecting her heart and causing fatigue, and significant dental problems. She has been involved in many relationships, each of her seven children having a different father. Those relationships have generally been marked by domestic violence and shared substance abuse.
She has had various levels of involvement with her children, from no contact, in relation to the youngest, to a close relationship with her oldest daughter, Keira. She is hopeful that if she remains in the community, her 12 year old daughter, Dakota, could live with her rather than with her father, with whom she currently resides. The remaining children are subject to Care and Protection orders.
As to her substance use, Ms Charles has been drinking alcohol since she was 14; up to a cask of wine a day during her teens. When she became pregnant at 18, responsibly, she drastically reduced that. She started using crystal methamphetamine and cannabis in her early teens and was using the ice daily intravenously before being remanded in custody in respect to these offences.
She has been diagnosed variously with adjustment disorder, schizophrenia, post-traumatic stress disorder, antisocial personality disorder, substance use disorder and alcohol use disorder. When assessed by Dr Joey Lay, consultant psychiatrist, in custody in November 2018, he formed the view that her presentation was consistent with complex trauma rather than psychotic symptoms.
She has undertaken some counselling and a short period of residential rehabilitation in the past for her drug use. She has struggled to maintain abstinence for a lengthy period, however. Ms Charles is currently facing a difficult decision about whether to proceed with her current pregnancy, as well as the challenges of her 17 year old son becoming a father, and her eldest daughter awaiting sentence.
Ms Charles' criminal history is appalling, both in New South Wales and the ACT. Commencing in the Children's Court, she has an extensive history of driving or riding in motor vehicles without consent, obtaining property or financial advantage by deception, and other offences of dishonesty. She has a significant number of convictions for possession of a prohibited drug or substance. Violence does not feature significantly, however, in Ms Charles' criminal history. She has spent time in custody, most recently being released from sentenced imprisonment in February 2018.
Ms Durrant of the Forensic Mental Health Service expressed the view that Ms Charles' psychological health would need to be addressed in stages. Firstly, addressing her substance abuse to the point where she could manage distress without recourse to substances and then engaging in interventions to address her complex trauma. She would also require psychosocial and functional recovery support to assist in improving functioning and the quality of her life and maintaining her recovery.
Ms Charles has not accepted full responsibility for her offending, minimising the aggravated burglary in particular. It is evident that she is also prepared to blame others both for her offending and drug use, particularly her male partners. It will be essential that she develops a sense of personal responsibility in the future.
With reservation, she was assessed as suitable for a drug and alcohol treatment order by ACTCS initially, however a health assessor, Ms Cheong, expressed doubt about her ability to comply with such an order. Early in the assessment period, Ms Charles failed to attend three appointments with her health case manager and was dealt with for her breach of bail. She was also warned as to the need to comply. Subsequent appointments were either rescheduled or missed with the excuse that she was unwell, but she failed to provide medical certificates in support of that, and, indeed, had not attended, on checking, at her health provider.
Initially, she engaged reasonably well with ACTCS during her assessment on bail, but more recently she failed to attend at the correct time for ACTCS and health appointments, despite a direct warning from the court about her need to do so when sentencing proceedings were adjourned on the last occasion. She finds punctuality almost impossible. Given her recent inability to comply with meeting arrangements, Mr Cuthel of ACTCS now also holds considerable reservation about her ability to complete a drug and alcohol treatment order.
I have no doubt on the evidence before me that Ms Charles' offending is closely related to her substance use. She clearly needs intensive support to address those historical issue which have caused difficulty for her in her life functioning, and which are intrinsically related to the onset and most likely the continuance of her substance use. Whilst Ms Charles has indicated a desire to engage in a treatment order, and consented to the requirements of it, which have been explained to her, I too have some reservations about her capacity and commitment to complete such an order.
This is a case in which the principles in Bugmy v The Queen [2013] HCA 27; 249 CLR 571 loom large. Substance use is not in itself a mitigating factor for offending, noting the lack of choice inherent in becoming so entrenched in it at a relatively young age. Much like the psychosocial impacts addressed in Bugmy, it may be seen as a feature of a person's makeup. There is no doubt that Ms Charles' traumatic upbringing continues to impact on her psyche and her difficulty in achieving a fully functional lifestyle. That is, no doubt, reflected in her difficulty meeting her obligations of attendance, particularly at health appointments.
She is a person who would require a great deal of monitoring in order to achieve positive outcomes on any community-based order. However, she is also a person whose circumstances are exactly what an order of this type is geared towards, and I note through her counsel today that she has indicated a preparedness to consider residential rehabilitation. Whilst I unreservedly accept Ms Cheong's assessment that Ms Charles will currently struggle to meet the demands of the drug and alcohol treatment order, I am satisfied that there is some potential to do so with intensive support.
It is very much in the community interest that Ms Charles be supported to establish herself as a contributing member of the community. Should she fail to respond to this opportunity, the failure will be met by a cancellation of the order, and the otherwise inevitable cycle of imprisonment upon which she has already commenced will continue. Should she choose to continue with her current pregnancy, that would almost inevitably result in a further child beginning its life in the care of the state. That would be an incredibly sad outcome.
Sentencing considerations
I refer to the observations I made in relation to consideration of time served in my sentencing remarks in R v Parker [2019] ACTSC 38 [25] – [33] and adopt those. I take into account presentence custody. I apply the provisions of ss 17 and 33 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) and note the need for specific and general deterrence.
I note the need for Ms Charles to take responsibility for her offending behaviour and its impact on the rest of the community, and the need to protect the community and to achieve, if at all possible, her rehabilitation.
I note the scope for application of the totality principle, and I also note that there is scope to apply a discount on plea of 25 per cent.
Sentence
I record convictions on the charges before the court.
I impose a drug and alcohol treatment order, pursuant to s 12A(2) of the Sentencing Act.
The custodial part of the order, pursuant to s 80W, is 25 months comprised as follows:
· in relation to the ride without consent (CAN 9915/19) on 30 June 2019, three months' imprisonment; and
· for the obtain by deception (CAN 9921/19) on the same date, three months' imprisonment, concurrent as to one month, being four months.
In relation to the aggravated burglary (CAN 8801/19) on 10 July 2019, I impose 18 months' imprisonment.
For each of the common assaults (CAN 8802/19 and 8803/19) on the same day, I impose three months' imprisonment, each of those three sentences is to be served concurrently, consecutively on the existing four months.
In relation to the ride without consent (CAN 9920/19) on 8 September 2019, I impose a further three months' imprisonment to be served consecutively.
The sentence is backdated for 101 days to reflect time served. It is taken to have commenced on 29 October 2019 and will complete on 28 November 2021. The sentence of imprisonment is suspended as of today, in accordance with s 80W of the Sentencing Act, upon the offender agreeing to enter into a treatment program in accordance with the act.
The treatment and supervision part of the order is for 12 months, commencing today. Core conditions, per s 80Y of the Sentencing Act, apply. The offender is to complete a treatment program as agreed by the treatment team, and as amended from time to time. Copies of the core conditions and treatment program are to be attached to the order.
I note that at the completion, optimistically, of the treatment and supervision part of the order, pursuant to s 80ZA of the Sentencing Act, the offender is to enter into a good behaviour order for the remainder of the custodial period.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Walker Associate: Amne Alrifai Date: 17 March 2020 |
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