R v Chatfield
[2021] ACTSC 352
•15 October 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Chatfield |
Citation: | [2021] ACTSC 352 |
Hearing Date: | 12 October 2021 |
DecisionDate: | 15 October 2021 |
Before: | Refshauge AJ |
Decision: | 1. Samantha Gaye Chatfield be convicted of arson and sentenced to 18 months imprisonment, to commence on 15 October 2021. 2. The sentence be served by way of Intensive Correction Order under s 11 of the Crimes (Sentencing) Act 2005 (ACT) with the following conditions: a. the core conditions mentioned in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT); b. that Ms Chatfield be at her place of residence between 8:30 pm each day and 8:00 am the next day (which hours may be varied by the Commissioner of ACT Corrective Services or his delegate) except in the case of medical or other emergency and that she present herself at the door of that residence during those hours to any police officer who requests it; c. that Ms Chatfield engage in programs or counselling or both as directed by ACT Corrective Services in relation to her illicit substance use; and d. that Ms Chatfield engage with a medical practitioner to obtain an updated mental health care plan and undertake the recommendations in the plan. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Arson – Intensive Correction Order – Rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT) s 117 Crimes (Sentence Administration) Act 2005 (ACT) ss 42, 107, 108, 116, 160 Criminal Code 2002 (ACT) s 404 |
Cases Cited: | Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Beniamini v Craig [2017] ACTSC 30 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Texts Cited: | Andrew C Scott, “When Did Humans Discover Fire? The Answer Depends on What You Mean By ‘Discover’” Time (online, 1 June 2018) Elias Visontay, ‘NSW bushfires: police set to charge a dozen with arson’ The Australian (online, 17 December 2019) Sir Anthony Mason, ‘Mandatory sentencing: implications for judicial independence’ (2001) 7(2) Australian Journal of Human Rights 21 |
Parties: | The Queen (Crown) Samantha Gaye Chatfield (Offender) |
Representation: | Counsel M Howe (Crown) J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) T Kelliher; Tim Sharman Solicitors (Offender) | |
File Number: | SCC 204 of 2020 |
REFSHAUGE AJ:
Introduction
Samantha Gaye Chatfield has pleaded guilty to an offence of arson for which she must, therefore, be sentenced. She is to be sentenced today.
Arson is, the courts have consistently said, a serious offence which usually calls for a substantial period of imprisonment: R v S (A Child) (1992) 60 A Crim R 121 at 134, R v Relph [2002] ACTCA 6 at [26], R v Booth [2004] ACTCA 21 at [26].
It was noted in R v Raeyers [2014] ACTSC 134 at [33], however, that it is an offence that covers a wide range of circumstances. This is shown by the fact that there are two statutory offences of arson: one under s 117 of the Crimes Act 1900 (ACT) and the other under s 404 of the Criminal Code 2002 (ACT).
The Criminal Code offence criminalises the conduct of persons who cause damage to a building or vehicle by fire or explosive, intending to do so or being reckless about doing so.
The Crimes Act offence criminalises the conduct of persons who damage any property by fire with intent to endanger the life of another person or with a view to gain as a result. Thus, the Crimes Act offence is one of specific intent: R v McLaughlan [2008] ACTSC 49; 218 FLR 158 at 173; [95].
The Criminal Code offence is the one with which Ms Chatfield has been charged. It, however, can be committed itself in a wide range of circumstances.
Mr Andrew C Scott said in “When Did Humans Discover Fire? The Answer Depends on What You Mean By ‘Discover’” Time (online, 1 June 2018), “[f]ire is one of the most important forces on earth. The use of fire by humans has long been considered as a defining property of intelligence, separating us from other animals.” The Greek myth of Prometheus giving humans the gift of fire is no longer believed, but it does emphasise the value of fire to human civilisation.
On the other hand, rather like many other things of great value to human society, such as independent transport (see R v Seymour [2021] ACTSC 152 at [1]–[2]), there are risks and opportunities for misuse. As we know only too well in Australia, fire can deliver great destruction and, of course, death, as Australia has experienced in the last few years. This is the basis for the seriousness with which the criminal law regards the misuse of fire in the offence of arson.
Just recently in 2019–20, we saw destruction of vehicles, houses, large swathes of bushland, the death of animals, especially native animals, and, of course, a number of tragic deaths of humans from major and large fires. This was, of course, principally due to the change in climate, but there were some alleged to have been deliberately lit, that is, caused by arson: Elias Visontay 'NSW bushfires: police set to charge a dozen with arson' The Australian (online, 17 December 2019).
These disastrous consequences are mentioned to show why such an offence must be taken seriously. As has been observed, however, it is important not to sentence an offender for an offence not committed: R v Dowling (No 2) [2021] ACTSC 200 at [51]. Similarly, an offender must be punished for the offence actually committed, including the risks it created, but not what other crimes have caused.
Ms Chatfield has pleaded guilty to causing damage to a building by fire, she being reckless about causing that damage.
For the sentencing, the Crown has tendered its Sentencing Tender Bundle containing an Agreed Statement of Facts, Ms Chatfield's Criminal History, an Intensive Correction Order Assessment Report made under s 46C of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) which was ordered on 6 July 2021, and the Police Statements of Facts for the crimes in respect of which she was on conditional liberty at the time.
Ms Chatfield tendered a Psychological Report dated 27 September 2021 prepared by a Ms Vanessa Edwidge, registered psychologist, and a reference from her father.
No objection was taken to the admission of any of these documents and, subject to one matter mentioned below, no challenge was made to the contents of any of them.
No oral evidence was given.
The Court was greatly assisted by the written and oral submissions of Mr M Howe, counsel for the Crown, and Mr J Sabharwal, counsel for Ms Chatfield.
From these materials, the Court makes the followings findings.
The facts
Ms Chatfield was, as referred to below, dependent on illicit drugs, especially methamphetamine. She was, in May 2020, in a toxic relationship involving drugs and crime. Her partner had a lengthy criminal history of well over 100 convictions, including for offences of violence, and is said to have been violent towards Ms Chatfield. He was also very jealous of Ms Chatfield’s previous relationships and she was in fear of his behaviour.
On 1 April 2019, Ms Chatfield obtained the lease of a government townhouse in Denman Prospect, ACT. At some stage in early 2020, her partner moved into the premises.
On 6 May 2020, Ms Chatfield had a distressing argument with her then partner and decided that she would destroy all the letters and photographs she had relating to her previous relationships. She put them in a box, poured petrol out of a jerry can into the box and set fire to it with a hand lighter. That fire did not spread outside the courtyard where she set fire to the box.
At about the same time, however, she caused a fire to be started inside an open space between the kitchen and the lounge room of the house. That fire soon spread, gained in intensity and got out of control. She gave several versions of how all this occurred, but it is not necessary to decide which, if any of them, was correct. She has pleaded guilty to an indictment which, by amendment agreed to on 6 July 2021, only charges that she was reckless about the fire causing damage. It is accepted that the escalation was not intended.
The fire was noticed by an unidentified female who yelled “fire” and drew it to the attention of some bricklayers working nearby. They ran to the house and Ms Chatfield ran out of the house shortly afterwards. She was alone and said that there was no one else inside. She did, later, mention that there was a motorbike inside, apparently her partner’s, and said “he’s going to kill me”.
A number of people had come to the area, presumably in part to help with anyone in the house who needed to get out, though her statement would have meant that no such assistance was required.
Her partner arrived soon after and yelled at her. Ms Chatfield got into the car that he was driving and they drove off. Ms Chatfield did not report the fire to police, ACT Fire and Rescue Services or ACT Housing that day.
Police and ACT Fire and Rescue personnel arrived soon after, by which time smoke was issuing from both floors of the two-storey townhouse and it was visibly alight. The Fire and Rescue personnel extinguished the blaze.
The following damage was identified in the Agreed Statement of Facts:
· Smoke damage to the upper level window and eaves.
· Intense heat damage to the exterior corrugated metal sheets at the north east corner, causing the eaves to partially collapse in this area.
· Smoke and heat damage to both front security and timber doors.
· Significant fire and smoke damage to the ground floor windows and doors.
· Heavy fire damage to the glass sliding door
· Smoke damage to the upstairs rooms[,] […] the downstairs bedroom and the toilet areas, […] but no direct fire damage.
· Thermal heat and fire damage in the lounge room and kitchen, causing the ceiling to collapse in both areas.
· Thermal heat and fire damage to the laundry, causing the ceiling to collapse in this area.
The total estimated cost of the damage was $378,083.69.
An investigation confirmed the two distinct areas of origin of the fire and found a fire-damaged jerry can located in the open space between the kitchen and the lounge room, though there was a fire damaged yellow nozzle and yellow plastic lid near the courtyard fire. There was a distinct smell of ignitable liquid or odour in both places.
There was no further evidence to explain precisely how the larger fire was caused and the express limitation of the charge in the indictment meant that no intent to cause the damage can be imputed to Ms Chatfield. Any damage was caused unintentionally but recklessly.
Police contacted Ms Chatfield the next day to check on her welfare and follow up their investigation and she provided police with a version of events. She also contacted ACT Housing on 7 May 2020 and gave them a slightly different version of the events.
The proceedings
Ms Chatfield appeared in the ACT Magistrates Court on 8 June 2020 and was charged with the offence. She had been arrested on 6 June 2020 on an unrelated matter and offered an opportunity to speak to police. She applied for bail, but it was refused and she was remanded in custody.
On 12 June 2020, she entered a plea of not guilty and the proceedings were adjourned. She was remanded in custody. After a number of adjournments, she was granted bail on 27 August 2020, having been in custody on this charge for 65 days. On that day, maintaining her plea of not guilty, she was committed for trial to this Court.
She first appeared in this Court on 17 September 2020 and her bail was continued. After a number of appearances, the matter was listed for Criminal Case Conference on 10 February 2021 but was not then resolved. A trial date was set, commencing on 5 July 2021. A Basha inquiry (see R v Basha (1989) 39 A Crim R 337) was held.
On 6 July 2021, however, the Crown was granted leave to amend the indictment, which was done. Ms Chatfield was arraigned on the amended indictment and pleaded guilty. The matter was listed for sentence. An Intensive Corrections Order Assessment under s 46C of the Sentencing Act was directed to be prepared. The sentence date was subsequently vacated so that Ms Chatfield could be examined by a psychologist.
During the period of these proceedings, Ms Chatfield is alleged to have breached her bail on five occasions.
The offence
The imposition of sentence is a most important and most difficult task. It is critically important that the proceedings be fair, as all court proceedings must be. It is also important that the sentence to be imposed must be according to law and just and adequate: Singh v The Queen [2017] ACTCA 17 at [93]; R v Miller [2019] ACTCA 24 at [21].
In order to do this, the sentencing court must take into account a range of matters. Some are mandated by the legislature. In this jurisdiction, they are set out in s 33 of the Sentencing Act. In addition, as the Courts have pointed out, the legislature has prescribed a maximum penalty for the offences it creates, and the High Court has, on many occasions, emphasised the importance of having regard to that maximum penalty.
Thus, in Elias v The Queen [2013] HCA 31; 248 CLR 483 at 494–5; [27], the High Court pointed out the importance of the prescribed maximum penalty and the need for courts to have regard to it. It is, of course, the legislative mandate and the legislature's assessment of the relative seriousness of the offence. In addition, it invites comparison between the instant case and the worst possible case and, balanced with all the other relevant factors, acts as a yardstick.
Arson of the kind to which Ms Chatfield has pleaded guilty is an offence under s 404(1) of the Criminal Code and prescribes a maximum penalty of 15 years imprisonment or a fine of $240,000 or both. It is thus, as the Courts have said, a serious offence, not the most serious in the criminal calendar, but certainly more serious than any offence that Ms Chatfield has yet committed.
Because of the wide circumstances in which the crime of arson can be committed, the Courts have identified various factors that are relevant to an assessment of the seriousness of the actual criminal conduct for which Ms Chatfield must be sentenced. In part, this is the current sentencing practice referred to in s 33(1)(za) of the Sentencing Act.
After an examination of the cases, this Court has set out various factors that need to be considered: see R v Wrigley [2015] ACTSC 114 at [34]. I do not need to repeat what was there said, but I take them into account and, where relevant, address them here.
Thus, the intent of the offender in committing the offence is said to be “the real seriousness of the offence”: R v Storey (1984) 6 Cr App Rep (S) 104 at 107. In this case, Ms Chatfield intended to burn papers and photographs, not the house. She was reckless about doing that, which led to the substantial destruction that she actually caused, but on the basis of her plea and the facts as they have been found, this was not her intent. This places the offence in a less serious light.
The amount of damage is highly relevant, though not necessarily a measure of the culpability of the offender. Here, the damage was extensive, as described above (at [26]–[27]), and costly. This is a serious factor, though moderated to some degree by the circumstances of the offence. The amount of damage shows the care required of people who start fires for whatever reason.
There is, of course, also the risk that such fires cause to people who do or are required to attend to them. This includes police officers, members of the Fire and Rescue Service and members of the public who seek to assist either extinguishing the fire or rescuing people or property at risk from it. While there were a number of members of the public present, there was no evidence to suggest that they were placed in actual danger. Certainly, police and fire personnel also attended but, again, there was no evidence of the actual risk caused to any of them other than, of course, the inevitable risk of fire personnel extinguishing the fire. There was no evidence that, for example, they had to put themselves in immediate danger. The Court cannot speculate on such matters.
Apart from the explanation provided by Ms Chatfield, no other intent by her or, in particular, as articulated by the Crown, any “nefarious intent” was in evidence in this case. The only comment by Ms Chatfield was about burning the photographs and she added “the fire flared up when she sprayed water onto the fire” which, given the evidence, suggests she may have done that from the jerry can, which could have contained more accelerant as well as water. She added that “it got completely out of control”.
There were, however, none of the aggravating circumstances outlined in R v Wrigley at [34](i) and this also moderates the seriousness of the offence compared to other examples of the crime. In particular, there was no financial gain to be obtained by Ms Chatfield and no real risk to other persons, though the house was a duplex. There is no evidence about whether there were any persons in the other house of the duplex who may have been put at risk and that, therefore, cannot be taken into account.
There was not any relevant premeditation or planning. Obviously, Ms Chatfield must have obtained some petrol to pour on the papers and photographs, but that would not have involved much planning.
It is also relevant that the premises were social housing provided by the government for people in necessitous circumstances. In this context, it is worth noting the comments of the New South Wales Court of Criminal Appeal in R v Pitt [2001] NSWCCA 156 at [27] to the effect that damage to public housing should be taken seriously since:
resources for public housing are hard pressed, and … the diversion of funds for their replacement or for the repair of wanton damage, is only likely to disadvantage other persons in need.
The public expense, which has been mentioned, is clearly also relevant here.
Subjective circumstances
As Kirby J observed in Ryan v The Queen [2001] HCA 21; 206 CLR 267 at 299–300; [110],“sentencing of offenders always involves consideration both of matters relevant to the offence and matters relevant to the offender”. This is enshrined in ss 33(1)(m)–(n), (p), (r), (t)–(w) and to some extent (o) of the Sentencing Act.
Ms Chatfield was born 30 years ago in Campbelltown, New South Wales, the third of her parents' four children. Her parents were Aboriginal, but she has not had much experience or exposure to her culture. Recently, she has expressed an interest in connecting with it.
She described her home life to the Intensive Correction Order (ICO) Report assessor as positive and free from substance abuse or family violence, but a more detailed description to Ms Edwige presents a somewhat more problematic picture.
There is no indication of illicit drug use or family violence at home. Her father, however, left the family when Ms Chatfield was three years old. Her mother and the children moved to Canberra and have been here ever since.
She told the ICO Report assessor that she reconnected with her father when she was 18 and her father and mother reunited. She told Ms Edwige, however, that her father moved to Batemans Bay, remarried and had two children and that she and her siblings would visit during school holidays, though she added that they did not want to go.
Ms Chatfield's mother drank alcohol heavily and would do so at a local tavern, leaving the children unsupervised, though her maternal grandfather moved into the home when Ms Chatfield was seven years old, due to a terminal illness.
Ms Chatfield's mother was dependent on government payments and, while there was always enough food, there was rarely enough money for other items such as clothes and accessories.
Ms Chatfield was very close to her grandmother and greatly affected when she died about five years later.
Ms Chatfield started her education in Canberra, but in Year Four was sent to live with her cousin in Orange, New South Wales, because of behavioural issues. She completed years five to seven in New South Wales regional schools, then returning to Canberra where she completed years eight to 10 and left school. The change of schools impacted on her.
She had behavioural issues at school and was frequently suspended, though she did not have any learning difficulties.
Ms Chatfield has had a number of close personal relationships. The first commenced in 2010 and she and her partner had their first child when she was 19 years old. They had two further children together, but her partner was violent to her. He was also a user of methamphetamine and introduced her to its use in 2017.
The relationship was particularly violent and Ms Chatfield was hospitalised a number of times for self-harm, probably triggered by the relationship. They finally separated in 2017 but, because of her drug use, her partner was granted custody of the children and it is unclear how much contact she has had with them, particularly with the COVID-19 restrictions. She does appear to have at least telephone contact and wishes, when these proceedings are over, to gain greater access.
Ms Chatfield then formed a relationship with a man with whom she was involved at the time of this offending. He was, however, her sister's partner and that had a really bad effect on the family. He was frequently in trouble with police and had a long and serious criminal record, including for offences of violence, as already mentioned. It was a toxic relationship and she was afraid of him, but ended the relationship this year.
She has repaired the relationship with her sister.
Ms Chatfield has then formed a relationship with another man in 2021, but he was also very violent towards her and she ended the relationship about two and a half months ago.
Although Ms Chatfield left school at the end of Year 10, she says that she undertook some further business studies, but there was no information about that.
Ms Chatfield has not been employed since 2010. There was no information about earlier employment though there seems, by implication from the ICO Report, to have been some. She wishes to become employed.
As noted above (at [60]), she was introduced to methamphetamine in 2017 and soon was using daily. She started using cannabis in 2020 as a self-medication for her mental health problems and was soon using that daily also. She says that she has not used methamphetamine since July 2021. She does not drink alcohol.
She has had no significant drug treatment, although she did attend some courses while in custody.
Ms Chatfield has been diagnosed with depression and anxiety. She has been hospitalised twice following suicide attempts. She has made at least two other attempts. She has, however, had no counselling or treatment for her mental health problems.
She suffered some physical injuries from the violence she experienced in her relationships and the head injury she suffered may have impacted her short-term memory.
She currently lives in government housing, though it has been assessed as unsuitable by the ICO Report assessor because of “ongoing safety risks” of which there is no further information. She has, however, sought a transfer from ACT Housing.
Ms Chatfield does not have a particularly long or serious criminal history. She has no offences recorded as a child. Up to 8 June 2020, she has 17 offences on her record. The most serious are offences of theft and assault occasioning actual bodily harm. There is one other offence of violence, two offences of stalking and contravening a Personal Protection Order. Including the offence of larceny, she has five offences of dishonesty. She has twice failed to appear in accordance with a bail undertaking and has five driving offences on her record. She has not been sentenced to imprisonment, other than when an Intensive Corrections Order was made in New South Wales, which she did not serve in immediate custody.
Ms Chatfield now accepts responsibility for the offence. Up to and including in discussion with the ICO Report assessor, she denied committing the offence, claiming that she pleaded guilty “to get it over and dealt with”.
Ms Chatfield's father wrote a helpful reference. He wrote that she expressed her regret that her life had got to this stage. She has regular contact with her children and wants greater contact, which he has been able to facilitate in the past. He also wrote of the effect of her brother's death earlier this year. He noted that “she has matured of late” and he considered that “with support professionally and from her loving family” she would “start afresh with her children” which he considered she “will do… with pride and become a proud and responsible member of the community again”.
Current sentencing practice
In addition to the matters dealt with above (at [40]–[49]) in connection with the obligation under s 33(1)(za) of the Sentencing Act in relation to current sentencing practice, the courts have accepted that the actual sentences imposed by courts are a relevant matter.
This allows the courts to have the benefit of the “collective wisdom of judges” (R v Ellis (1993) 68 A Crim R 449; R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 at 280; [179]) which may be provided by comparable sentences (Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at 73; [38]; Director of Public Prosecutions (Vic) v Dalgleish (a pseudonym) [2017] HCA 41; 262 CLR 428 at 454; [83]) and, though with much greater caution, statistics such as those compiled from the ACT Sentencing Database (R v Mathews [2020] ACTSC 364 at [45]; R v Elphick [2021] ACTSC 9 at [154]).
In this case, four comparable cases were referred to by counsel for the Crown, in his helpful written submissions. Nevertheless, I have researched some other cases as well.
In R v Wells [2018] ACTSC 121, Mr Wells went to a service station, filled a jerry can with petrol and then went home, poured the petrol into the corner of the kitchen and lounge room and set it alight because he was upset with his partner. The damage was assessed at $271,850. He was 62 years old with a long psychiatric history including a diagnosis of schizophrenia. He had limited criminal history. He was sentenced to 19 months imprisonment, suspended immediately with a Good Behaviour Order for two years. The offence was more serious than the offence Ms Chatfield committed, though the damage was comparable. His subjective circumstances were more mitigating.
In R v Miles [2016] ACTSC 83, Mr Miles got into an argument with his parents and then became violent. Police later attended at his premises where he was alone, his parents having vacated it apparently because of his behaviour. Police tried to contact him, but he was highly agitated and barricaded himself in. He then doused the house with flammable liquid quite extensively and lit fires throughout the residence. There was no evidence of exactly how much damage the fire caused. Mr Miles was 37 years of age. He acknowledged a happy childhood and completed Year 12 at school. He had been employed and was in a relationship. He was a consumer of alcohol, sometimes to excess, and he used illicit drugs, by the time of the offence confined to cannabis. He had a short criminal history. He was sentenced to 18 months imprisonment. This is a more serious offence than that committed by Ms Chatfield, but with some mitigating and some serious subjective circumstances in comparison to the personal circumstances of Mr Chatfield.
In R v Nguyen [2018] ACTSC 146, Mr Nguyen, with other offenders including the subject of the next case, NF, discussed on social media detonating an explosive device to set a local empty aged care facility alight. They created some devices from sparklers and cannisters of nitrous oxide. They then ignited the devices which exploded loudly and created a large fire which spread quickly. The fire caused $187,195.50 worth of damage. The offence was said to be of “substantial objective seriousness”. Mr Nguyen was 19 years of age at the time with a limited criminal history. He had a good education to year 12 and completed some certificates. He was employed though in unskilled occupations. He was an occasional binge drinker. He complied with strict bail conditions. He tried to minimise his role and attributed blame to “the principal offender” but accepted responsibility making full disclosures after arrest. He was convicted and sentenced to one year and 11 months imprisonment, to be served by an Intensive Correction Order with a community service condition. This is a more serious offence than that committed by Ms Chatfield, but Mr Nguyen has some more mitigating subjective circumstances.
In R v NF [2018] ACTSC 165, NF was sentenced for the arson described above as well as a number of other serious offences. The Court noted in this case that the arson was committed for “thrill seeking… not… for personal gain” (at [54]). There was some, not insubstantial, but unsophisticated planning. The offence was deliberate and the damage caused intentionally. NF was 18 years old at the time of the offence. He had a long criminal history and this offence, with others, breached a Good Behaviour Order made when a two year and six month sentence of imprisonment was suspended. NF had a positive home life, though he had difficulties including being bullied at school. He had used and trafficked in illicit drugs. He had had some employment. He was sentenced to two years and three months imprisonment for the arson offence. While the offence was more serious than that committed by Ms Chatfield, his age is more mitigating, but his other subjective matters are somewhat more serious than in the case of Ms Chatfield.
In R v Dash-Greentree (Unreported, Australian Capital Territory Supreme Court, Penfold J, 9 January 2013), Mr Dash-Greentree went to see a man to whom he had been introduced by another man, whom he thought was a paedophile. He could not make contact after several attempts and so emptied a can of petrol under the door of the house and lit it. The fire was soon put out, but caused $2,675 worth of damage. Mr Dash-Greentree expressed no remorse for the offence. He had, however, a relatively serious psychiatric disorder which had resulted in him being subject to several Psychiatric Treatment Orders. He had a brain injury as a child and was later involved in a violent incident which caused Post-Traumatic Stress Disorder resulting in him experiencing hallucinations. His parents separated when he was young, but he seems to have otherwise had a positive upbringing. He had no employment because of his mental health condition. He was dealt with for other offences at the same time and sentenced to 15 months imprisonment for the arson offence. The sentence was suspended and a Good Behaviour Order made for eight months. It was a more serious offence because of the intent, but the damage was less than from the offence committed by Ms Chatfield. The subjective circumstances were quite different from those of Ms Chatfield and it is somewhat difficult to compare.
In R v Haigh (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 9 August 2013), Mr Haigh was living in a government flat. After the flat had been broken into, he told other residents and his sister that he was going to set fire to it. He did so and fire officers attended and put it out, but not before it had caused $100,000 worth of damage. Despite his statements, Mr Haigh was charged with arson being reckless as to the causing of damage. He pleaded guilty. He had no clear memory of the incident and cannot explain why he did it and expressed regret for doing so. He did suffer from depression and appears to have been suffering from a psychotic episode when he committed the crime. He was 41 years old at the time of the offence. He abused alcohol and illicit drugs. He had a long criminal record. He was also sentenced for an offence of theft, which was taken into account and aggravated the sentence. He was sentenced to three years imprisonment with a non-parole period of 18 months. This was a more serious case than Ms Chatfield's offence because the adjacent units were occupied, though the damage was less costly. The personal circumstances were, again, different and it is not easy to compare.
In R v Raeyers [2014] ACTSC 134, Mr Raeyers set fire to clothing and bedding in his cell at the Alexander Maconochie Centre. The damage was costed at $5,418.60. He was 29 years old. He pleaded guilty at the earliest opportunity. He had an “absolutely shocking criminal record”. He had chronic substance abuse problems and a psychiatrist “would not diagnose him with a mental illness”, but he had “a predominantly anti-social personality”. He was sentenced to 12 months imprisonment. It was a more serious offence than Ms Chatfield's offence because of the intent, though the damage was less. Mr Raeyers' subjective circumstances were more serious than those of Ms Chatfield.
In R v Wrigley, Mr Wrigley got into a fight after a long bout of drinking and later drove away. He then doused the vehicle with petrol and set it alight, but no significant damage appears to have been done to it. He pleaded guilty at a relatively early stage. He had a short criminal history, mostly related to his alcohol use. He was sentenced to four months imprisonment fully suspended with a Good Behaviour Order for 12 months. It was, perhaps, a less serious offence than Ms Chatfield's despite his intention and his subjective circumstances were more mitigatory.
In R v Pearce [2016] ACTSC 393, Mr Pearce set fire to a plastic chair in a public housing complex but then splashed petrol around. Finally, the arson was the spraying of an accelerant onto the curtains of his unit, pouring petrol on the floor and then lighting the curtains. “Significant" damage was caused. This was part of an incident where Mr Pearce had threatened another resident and created a “standoff” with police. He was 39 years old with a minor criminal history, but a long history of substance abuse and had been diagnosed with depressive schizophrenia. He was sentenced for the arson offence to 20 months imprisonment, suspended after seven months with a Good Behaviour Order for 13 months. This was perhaps less serious than Ms Chatfield's offence, but serious because of the intent. The mental issues of Mr Pearce mitigated his culpability to some extent.
In R v Richardson [2019] ACTSC 9, Mr Richardson set fire to a business causing “significant damage” and equipment loss. Mr Richardson was diagnosed with paranoid schizophrenia and other mental health issues. He had some history of cannabis use. He had some criminal history, but the details were not mentioned. He was sentenced to 20 months imprisonment suspended after 15 months (of which five months had already been served in pre-sentence custody) with a Good Behaviour Order for 18 months. This was a serious offence, more serious than that of Ms Chatfield's, but with significant mitigation through his mental condition.
In R v Thomas [2019] ACTSC 306, Mr Thomas set fire to a government housing unit, but was found to be reckless rather than intentional in doing so. He was 43 years old and had some history of drug use, but had been diagnosed with schizophrenia, the effects of which he was suffering from at the time of the offence. He had a criminal history, including periods in custody. He pleaded guilty in the Magistrates Court. He was sentenced to 18 months imprisonment suspended immediately with a Good Behaviour Order for 12 months. It was a serious offence, more serious than Ms Chatfield's. Mr Thomas' mental health provided some reduction to his culpability.
In R v Hartley [2020] ACTSC 210, Mr Hartley consumed drugs leading to a degree of psychotic symptoms and lit some serviettes in the unit of a charitable organisation where he was living. He damaged the unit, but no information was given in the decision about the extent, save that it was described as “significant”. Mr Hartley was 26 years old and, despite the psychosis, no mental health issues were established. He had a serious drug problem and an extensive criminal history. He was sentenced to 12 months imprisonment to be suspended after seven months with a Good Behaviour Order for 12 months.
In R v Howsan [2020] ACTSC 172, Ms Howsan set fire to her cell at the Alexander Maconochie Centre. She was dependent on drugs and had mental health crises. She had a “variable” response to a deferred sentence order, though generally compliant but with three lapses into heroin use. She was sentenced to 12 months imprisonment suspended with a Good Behaviour Order for 18 months. It is difficult to assess the seriousness as the offence is not detailed in the sentencing remarks, nor are Ms Howsan’s subjective circumstances.
Conditional liberty
Ms Chatfield was at conditional liberty at the time of the offending. That is to say, on 26 November 2018, she had been sentenced to Good Behaviour Orders in the ACT Magistrates Court for three offences of driving whilst her driver licence was suspended, two offences of driving with a prescribed drug in her oral fluid and an offence of minor theft. The Crown's Sentencing Tender Bundle contained the Police Statement of Facts for the offences. The Good Behaviour Orders were made for two years to run concurrently, each with a probation condition.
She breached that Order on 22 January 2020 by committing an offence of common assault but, though the breach was proved, no action was taken. That offence, however, was not dealt with until 8 September 2020 and, as of 6 May 2020, when the current arson offence was committed, she was on bail for that offence.
In addition, Ms Chatfield had, on 22 July 2019, been dealt with in the Queanbeyan Local Court for offences of common assault, stalking and larceny. She was sentenced to a Community Correction Order for 11 months from the date of sentence and so was subject to that Order when committing the present offence.
Each of these sentences and the bail permitted Ms Chatfield to be in the community and not in custody. This is a matter of trust or a privilege that is granted to the offender: see R v BC [2019] ACTSC 233 at [25]. It is a matter of aggravation of the sentence to be imposed for the offence that an offender breaches that conditional liberty: Beniamini v Craig [2017] ACTSC 30 at [115].
Where a Good Behaviour Order has been breached by further offending, s 107(1) of the Crimes (Sentence Administration) Act 2005 (ACT) permits the Supreme Court to deal with the breach even if the Order was made in the Magistrates Court: R v Mathews at [39]. Since the Good Behaviour Order was not made when a sentence of imprisonment was imposed, the powers to deal with the breach are set out in s 108 of the Crimes (Sentence Administration) Act, ranging from taking no action to cancelling the Order and re-sentencing the offender.
In this case, the Good Behaviour Order had expired; it ended on 25 November 2020. Section 116 of the Crimes (Sentence Administration) Act allows a court to act despite the expiry of the Order. This section is rather unclear. I have, in the past, expressed some reservations as to whether a court can cancel a Good Behaviour Order that is expired: R v Avis [2013] ACTSC 294 at [5]. Nevertheless, s 116 may permit such cancellation. After all, s 160(2) of the same Act seems to imply necessarily that a parole order that has expired can be cancelled. Indeed, that appears to be the position: R v Wallace (No 2) [2016] ACTSC 38 at [20].
Nevertheless, the Crown submitted that, in the circumstances, the Court should take no further action in respect to the Good Behaviour Order, but should still take the breach into account as an aggravating factor in the sentence. I shall proceed accordingly.
As to the breach of the Community Correction Order, it was made by a New South Wales Court. It, too, has expired, ending on 21 June 2020. I do not know whether action can now be taken but, in any event, the Court has no jurisdiction to do so.
Finally, where the conditional liberty is afforded by a grant of bail which is then breached by the commission of an offence, the only response that can be made, apart from taking the breach into account on sentence, is to address the bail by revoking it, varying it by, for example, adding conditions, or taking no further action. As the bail is no longer in force, the Court can do none of these things. Accordingly, the only thing to do is to take the fact of the commission of the offence while on bail into account on sentence for the arson as an aggravating factor: Grooms v Toohey [2012] ACTSC 25; 7 ACTLR 1 at 13; [59].
Disadvantage
It is clear from the personal history of Ms Chatfield outlined above (at [50]–[74]) that she has suffered considerable disadvantage in her life.
This started at home where her mother abused alcohol. While this did not result in Ms Chatfield’s abuse of alcohol, Ms Edwige points out that “[r]esearch suggests that 'consistent exposure in the home of drugs and alcohol may contribute to the child eventually developing [alcohol or other drug] problems'.”
Ms Chatfield also experienced disrupted schooling both by changes of school and suspensions. Again, Ms Edwige points out that research shows that such schooling patterns can lead to lowered educational or employment outcomes and exclusion, such as by suspensions, can reinforce feelings of exclusion. Ms Edwige points out Ms Chatfield's social exclusion at school, that she was not accepted as an Aboriginal person because of her fair skin and that she experienced racism were effective to affect her self-esteem and her mental health.
In addition, Ms Chatfield was disconnected from her Aboriginal culture and identity.
Ms Chatfield has also experienced significant loss and grief through the separation of her parents, loss of family connection, grief from the death of her grandmother, with whom she was very close, and, recently, the death of her brother. Ms Edwige describes these as “profound” and her opinion is that they “had a significant impact on Ms Chatfield's social and emotional wellbeing”.
It is, accordingly, unsurprising that Ms Chatfield also experiences depression.
These matters suggest that Ms Chatfield's social disadvantage is a relevant factor to be considered. This was pointed out in R v Fernando (1992) 76 A Crim R 58 at 62–3 which, in turn, has been distilled from Neal v The Queen (1982) 149 CLR 305 and other sentencing decisions as well as the National Report of the Royal Commission into Aboriginal Deaths in Custody (15 April 1991).
This approach was considered also in Victoria in Director of Public Prosecutions (Vic) v Terrick [2009] VSCA 220; 24 VR 457 at 468–9 where the Court of Appeal pointed to the following matters:
1. The individual circumstances of an offender are always relevant to sentencing.
2. Circumstances of disadvantage, deprivation or (sexual) violence may be explanatory, if not causative, of the offending or (if relevant) of the offender's alcohol or drug addiction.
3. The (relative) weight to be given to circumstances of disadvantage or deprivation is a matter for the sentencing judge, and will depend on:
(a) the nature and extent of the disadvantage;
(b) the nexus (if any) with the offending; and
(c) the (relative) importance in the particular case of sentencing considerations such as rehabilitation, deterrence (specific and general), community protection and social rehabilitation.
4. The same sentencing principles apply irrespective of the offender's race. Thus, Aboriginal offenders are not to be sentenced more leniently than non-Aboriginal persons on account of their race. (citations omitted)
This general approach was accepted by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594–5; [41]–[45]. Importantly, the High Court pointed out that such matters persist and are not to be ignored following further offending. As was explained in R v Crawford (No 1) [2020] ACTSC 245 at [86]:
the High Court accepted in Bugmy v The Queen […] that childhood deprivation could explain subsequent behaviour such that the offender's moral culpability “may be substantially reduced”: at [44]. The principles of the application of this principle were recently helpfully summarised by Loukas-Karlsson J in R v KN [2020] ACTSC 218, at [98], as follows:
In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]–[44]. What is clear from Bugmy, and subsequent case law, is that:
(a) the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];
(b) the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and
(c) the application of the Bugmy principles is not discretionary: Irwin at [3].
In this context, Ms Edwige's diagnosis is relevant. She said:
It is my opinion that Ms. Chatfield at the time of the offence was suffering from the psychological condition: Post Traumatic Stress Disorder. It is my opinion that this disorder, her background of disadvantage and her substance misuse, would have significantly impacted on her decision making and her behaviour. It is my opinion that at the time of the offence Ms Chatfield's decision making was significantly impaired as a result of her substance misuse and her presenting mental health issues at the time. […]
It is my opinion that Ms. Chatfield has been exposed to cumulative traumatic stressors over her lifespan and her constant exposure to violence and abuse have caused immense psychological distress resulting in her diagnoses. […]
It is my opinion that should Ms. Chatfield receive a further custodial sentence this would have a significant impact on her already fragile mental health. I have also considerable concerns for Ms. Chatfield in custodial setting due to her history of self-harm, suicidal ideation and her previous attempts.
Mr Howe did challenge the suggestion in the first quoted paragraph that the Post Traumatic Stress Disorder led, in part, to the impairment of Ms Chatfield's decision making. He submitted that this was not explained.
This is strictly correct, but the meaning of the paragraph was that it was her opinion as an expert and should be evaluated in that context. He did not appear to make the same submission in relation to the other matters, namely her background of disadvantage and her substance abuse.
Nevertheless, he did accept that the Bugmy principles did apply in this case.
I was not asked by Mr Sabharwal to find that Ms Chatfield was impaired in a legal sense, but only that the social disadvantage catalogued by Ms Edwige and summarised by me did moderate Ms Chatfield's culpability, which was the effect of the Bugmy principles.
I shall, accordingly, apply those principles and assess Ms Chatfield's culpability for sentencing purposes in the context of her social disadvantage.
Plea of guilty
Ms Chatfield pleaded guilty to the charge. The offence is such that there is a real likelihood that Ms Chatfield could be sentenced to a term of imprisonment. Accordingly, under s 35 of the Sentencing Act, I must consider whether the penalty should be reduced because of the plea.
In general terms, this should be done unless there is some good reason not to do so.
In this case, the Crown case is strong, indeed, it might be called very strong. Ms Chatfield was the only person in the house when the fire started. She admitted that she had, in fact, started a fire there. There was evidence of an accelerant in the premises on investigation. Thus, under s 35(4), the discount should not be substantial, though there may still be substantial utilitarian value to be recognised in the discount: Miller v The Queen [2018] ACTCA 21; 273 A Crim R 27 at 41–2; [73]–[74].
Further, the timing of the entry of the plea is relevant: s 35(5). In this case, Ms Chatfield entered the plea after the Criminal Case Conference had been held, which had been delayed and after a trial date had been set.
The plea was entered after a Basha inquiry had been held at the commencement of the trial. The Crown submitted that the evidence that was adduced at the inquiry did not particularly weaken the Crown case or provide much support for a defence case in response.
The question of discount has been subject of a number of decisions by the Court of Appeal in recent times: see Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80; Cranfield v The Queen [2018] ACTCA 3; Williams v The Queen [2018] ACTCA 4; Blundell v The Queen [2019] ACTCA 34; R v Nicholas; R v Palmer [2019] ACTCA 36; and R v Stacker [2020] ACTCA 34.
The utilitarian value of a plea at a late stage is not large and should not attract a substantial discount. Nevertheless, the Crown did seek to amend the indictment and restrict the case to one of recklessness rather than intentional arson.
I note the clear statement in Cranfield v The Queen at [37] that “[t]he discount is a question of discretion.”
While the utilitarian value of the plea is important and, perhaps, the most important consideration (R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at 10–11; [32]), there is nothing in s 35 of the Sentencing Act to limit it to that consideration.
Nevertheless, having regard to the change of indictment, the lateness of the plea, the saving of Court, Crown and witness time from the lack of need for a trial and the strength of the Crown case, some discount, but not a substantial one, is appropriate.
Consideration
The Sentencing Court must determine a just and adequate sentence. This, of course, requires a consideration of the matters set out in s 33(1) of the Sentencing Act, but it also requires consideration of the purposes for which the sentence is to be imposed. In this jurisdiction, they are helpfully set out by the legislature in s 7 of the Sentencing Act and the Court has regard to them.
The seriousness of the offence requires that the sentence reflects an element of punishment, to show the seriousness of the breach of the standards expected in the community that its members observe to achieve a peaceful and prosperous society. It must also show to other members of the community that such breaches are not to be tolerated and deter other persons from behaving in that way.
The sentence must also protect the community from Ms Chatfield and it can achieve that in various ways. It may do it by depriving Ms Chatfield of liberty for a period, thus preventing continued depredations on the community as this achieves, in part, the purposes of punishment, but at some stage she will be released.
It can, however, also be done by including a part of the next purpose, namely rehabilitation of Ms Chatfield. As French CJ said in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 536–7; [32], “rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”.
See also what Sir Anthony Mason wrote, extra-curiallly, in 'Mandatory sentencing: implications for judicial independence' (2001) 7(2) Australian Journal of Human Rights 21, 29.
Nevertheless, this must not be a course taken at the expense of making Ms Chatfield accountable for her actions and, as punishment will do, denouncing her actions.
That there is no person who can be identified as a victim of the offence does not mean that this is a victimless crime. The Police and Fire and Rescue Service workers as well as members of the public who attended are victims, as are members of the general community, whose asset has been damaged, and, indeed, other disadvantaged members of the community who will have less access to affordable housing. The sentence must reflect the harm done to them and to the community.
These purposes do point in different directions. This is done by the sentence being formulated by an instinctive synthesis which balances the “different and often conflicting features”: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 611–12; [74]–[76].
I have regard to the nature and circumstances of the offence as I have already described it and the personal circumstances of Ms Chatfield as I have already described them, especially as assessed by Ms Edwige and including her cultural background, character, criminal record, age and mental condition.
I take into account the damage done and the effect on the victims as I have identified them, including the community. I take into account Ms Chatfield's responsibility for the offence, being, in this case, relevantly, one of recklessness and not intent, her plea of guilty, her wish to reform and the steps she has taken, especially in relation to refraining from illicit drugs. She has now accepted responsibility for the offence.
No other sentence than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act. Neither counsel submitted otherwise. An important question is, however, how it is to be served.
Having taken current sentencing practice into account, as set out above, a sentence of 18 months imprisonment is appropriate. In coming to that sentence, account has been taken of the period of pre-sentence custody served by Ms Chatfield.
Intensive Correction Order
Ms Chatfield sought an assessment for an Intensive Correction Order. These orders have been explained in some detail in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]–[28].
In that case, the Court set out the way in which such an order should be approached. At [23], it was said:
Given the similarity between the Intensive Correction Order to the equivalent sentence in NSW, the approach to making such orders as set out in Douar v R (2005) 159 A Crim R 154, may be appropriate as a guide, namely:
· the Court must first be satisfied that, having considered all other relevant alternatives, no penalty other than a sentence of imprisonment is appropriate: at 165; [70];
· then the Court should determine the period of imprisonment without regard to the manner in which it will be served: at 165–6; [71];
· finally, the Court must consider whether the service of the sentence other than by way of full-time imprisonment, such as by a suspended sentence or an Intensive Correction Order, would result in a sentence that reflects the objective seriousness of the offence and fulfils the statutory purposes of punishment: at 166; [72].
The principal focus of such an order is rehabilitative. It also has a clear punitive element and does impose some significant restrictions on the subject offender.
I have regard to the ICO Report and note that the assessor has recommended that Ms Chatfield is unsuitable for an Intensive Correction Order. The reasons for that are set out in the report as
· Ongoing illicit substance use
· History of poor compliance towards community-based orders
· Risks associated with nominated property.
These concerns rather remind me of what Penfold J said in R v EL [2016] ACTSC 241 at [43], that “[i]t would be curious if intensive correction orders were only available to people who really did not need any help.”
In assessing these, I have carefully read the ICO Report. I have also had regard to the Report of Ms Edwige. Both Reports have been carefully and professionally prepared. I have also had regard to all the other material before the Court.
So far as Ms Chatfield's substance abuse is concerned, it does not seem to me to be so serious as to mean that she could not comply with the obligations under such an Order. Ms Chatfield has presently ceased use. Of course, those dependent on illicit drugs can cease for a time, but often, without considerable help and guidance, will relapse. Indeed, recently, I was reading of a criminal case where the offender had committed a serious offence after having been abstinent for over 10 years. Nevertheless, this is a promising sign by Ms Chatfield that she is determined to rehabilitate.
While Ms Chatfield is reported to have breached her bail on five previous occasions, there is now motivation for her to comply. Ms Edwige identified the following protective factors which suggest a different state of mind with Ms Chatfield:
· Her desire to connect and form positive relationships with her children
· A now functioning relationship with her parents and siblings
· Her determination to abstain from ice.
· Her desire to have a stronger connection to her Aboriginal culture and her cultural identity.
While not all of these are very recent, they do combine to suggest a change of attitude and commitment of Ms Chatfield. This is supported by the reference of Ms Chatfield's father who also attests to her change of attitude.
It will, of course, be hard for her. She does, however, have family support and a great motivation is the possible greater access to her children and an awakening of the connection she can make with the wonderful, affirming and supportive culture that she has inherited, but not yet connected with properly or fully.
The final issue is the housing one. This is problematic. She has sought a transfer to more suitable accommodation but that has not yet occurred. Given the depressing state of the availability of social housing, I can have no confidence that it will happen soon.
Unfortunately, the reasons for unsuitability are very general, namely that ACT Policing has reported that “there are ongoing safety risks associated with the nominated property”. These risks are not identified as to whether they are matters of personal safety, risks from associated crime, other drug users or other matters. It may be that those drug users in the other units will put at risk Ms Chatfield's determination to refrain from drug use and cause her to relapse.
Without some specificity, it is difficult for the Court to assess the strength of this objection. Ms Chatfield is seeking a transfer, is aware of those risks and wishes to distance herself from them and that is, of course, a significant protective factor in itself.
Given the assessment of Ms Edwige, the evidence of her father, the changes Ms Chatfield has made and her attitude, it is appropriate to require her to serve the sentence by an Intensive Correction Order.
Given that the term of imprisonment is not for more than two years, the Court does not have to consider the matters set out in s 11(3) of the Sentencing Act, as was helpfully pointed out by Crown counsel.
Ms Chatfield has been assessed as unsuitable for community service work. This is a pity, because that can sometimes lead a person such as her back into employment, an important part of the achievement of rehabilitation. While she has ceased drug use at this stage, it seems that I should not override this assessment.
The ICO Report assessor also strongly recommends that a curfew be imposed. That recommendation is accepted.
The other recommended conditions should also be accepted, namely that Ms Chatfield engage with drug rehabilitation programs or counselling and obtain an updated mental health care plan. The Court will make those orders.
Sentence
[His Honour then spoke directly to the offender]
Ms Chatfield, please stand.
1. You are convicted of arson on 6 May 2020.
2. You are sentenced to 18 months imprisonment to commence today. Had you not pleaded guilty, you would have been sentenced to 20 months imprisonment.
3. The sentence is to be served by way of an Intensive Correction Order under s 11 of the Crimes (Sentencing) Act 2005 (ACT) with the following conditions:
(a) the core conditions mentioned in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT);
(b) that you be at your place of residence between 8:30 pm each day and 8:00 am the next day (which hours may be varied by the Commissioner of ACT Corrective Services or his delegate) except in the case of medical or other emergency and that you present yourself at the door of that residence during those hours to any police officer who requests it;
(c) that you engage in programs or counselling or both as directed by ACT Corrective Services in relation to your illicit substance use; and
(d) that you engage with a medical practitioner to obtain an updated mental health care plan and undertake the recommendations in the plan.
Ms Chatfield, that is a lot of words that I have said, but I am now required to explain the sentence to you. In summary, I have said that this was a really serious offence and deserves a substantial period of imprisonment, not perhaps as substantial as otherwise may be because it is moderated by your circumstances and the other matters that I have mentioned. It seems to me that there is some evidence that you are now at a turning point and that, with support, you can put this kind of criminality behind you, but it will be hard. It will be difficult and you have got to apply yourself to it.
The thought that you can have more access to, possibly even, one day, custody of, your children hopefully will motivate you and keep you committed. But the stupidity of the offences that you have committed before just cannot be allowed to continue. If you do, then it is likely that the Intensive Correction Order will be cancelled and you will have to spend the time in custody.
Now, apart from pre-sentence custody when you were arrested and refused bail, you have not spent time in custody. I hope, however, that that short period of pre-sentence custody (65 days) has taught you that that is not the place you want to be, so you must put in effort.
Your father is here. Your father has said that he will support you, that is a great help to you, but you have got to do the work yourself and you have got to be really strong about it. There will be professional people who will assist you through Corrections, but also through the programs and counselling that I hope you will get in relation to drug use. It is all very well to say “I've stopped since June”, that is not very long. As I said, there are people who stop for 10 years and then relapse. There is no guarantee, but at the end of the day, some assistance professionally will help you to prevent relapse.
The other issue is your mental health. Your depression is recognised, but there are other factors from the issues that you have experienced in your life, the domestic violence which is awful stuff and very tragic and you do not need any more. It must have had an effect on you, and Ms Edwige says it has, and some professional assistance in that will be of assistance and you must do it.
Now those are obligations and you must commit yourself to them. If you do not, you will come before the Sentence Administration Board, not back to me, so you cannot come back and say “well, look at how you dealt with me. I didn't mean it,” and so on.
The Sentence Administration Board may be less forgiving than I am. I do not know, but if they cancel the Intensive Correction Order then you are back in custody.
This is an opportunity for you. You have shown some efforts, but they are only beginning efforts. You have got some support. If you now commit yourself then you can have a wonderful family life, you can access the amazing and nurturing and supporting culture that is available to you and that you have not yet been able to enjoy in the way that you ought to be able to do from some of the terrible things that you have experienced at school and elsewhere.
I hope that you will take this opportunity and make the most of it because it will be good for you, it will be good for your children, it will be good for your family and it will be good for the community. I cannot do any more than I have done save one important thing, is to wish you the very best of luck and I hope this works.
You may be seated.
| I certify that the preceding one hundred and sixty-five [165] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 16 November 2022 |
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