R v Drury
[2016] ACTSC 39
•29 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Drury |
Citation: | [2016] ACTSC 39 |
Hearing Date: | 24 February 2016 |
DecisionDate: | 29 February 2016 |
Before: | Burns J |
Decision: | See [27]-[29] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – aiding in the unlawful taking of a child – plan with co-accused to abduct co-accused’s child – assistance to authorities – early guilty plea – good prospects of rehabilitation – sentenced to terms of imprisonment. |
Cases Cited: | Carpenter v Purcell [2008] ACTSC 34 R v Rubino (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 16 December 2013) WNB v R [2006] NSWCCA 269 |
Parties: | The Queen (Crown) Jesse Drury (Offender) |
Representation: | Counsel Ms J Campbell (Crown) Mr D Rutherford (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Offender) | |
File Number: | SCC 270 of 2015 |
BURNS J:
Jesse Drury, you appear before me today to be sentenced with respect to one charge of aggravated burglary and one charge of aiding NL to take a child, namely IL, who was then under the age of 12 years with the intention of unlawfully depriving another person, namely the Director-General of the Community Services Directorate, of the lawful control of the said child.
The aggravated burglary charge alleges that you entered an address in a Canberra suburb as a trespasser with the intent to commit an offence that involved threatening to cause harm to another person in the building. At the same time you had with you an offensive weapon, namely a knife and a black imitation pistol, and you were in the company of another person, namely NL.
You entered pleas of guilty to these charges on 15 December 2015 and you were committed to this Court for sentence. At the sentence hearing on 24 February this year, you adhered to your pleas of guilty. The maximum penalty for the offence of aggravated burglary is 20 years imprisonment, a fine of $300,000, or both. The maximum penalty for the offence of aiding another person to unlawfully take a child is 10 years imprisonment.
Background
As at 13 August 2015, you and NL were in a relationship and were living together. You had been in a relationship with NL since October 2014. NL is the biological mother of IL. On 18 December 2014, a Care and Protection Order was granted in the Childrens Court giving the Director-General of the Community Services Directorate supervision over IL for a period of one year. Since interim orders had been made in July 2014, NL had varying levels of contact with her daughter. In May 2015, NL’s contact with IL was reduced to one supervised weekly visit of two hours. The new conditions were a result of NL not abiding by previous conditions set by Care and Protection. These supervised visits were held at a Barnardos designated meeting house in a Canberra suburb. This Barnardos house is a house in a residential street and is not often used for supervised visits. When used for NL’s visits with her child, there would only be one employee from Barnardos present in the house during the visit. The address of the house is confidential and only provided to those attending contact visits arranged by Barnardos.
On 7 July last year, the Director-General sought leave to make an application to extend the order made in December 2014, in effect seeking orders until IL turned 18 years of age. On 23 July 2015, a magistrate granted leave to the Director-General to make the application. NL was upset by the Director-General’s application and she then began planning the abduction of the child. NL asked you to help her with abducting IL and running away together. She suggested that you and she take the child from the Barnardos house when a female worker would be on duty, that you should enter the building in a staged burglary allowing her to leave with the child. NL suggested that you should take a weapon in case the worker resisted.
You and NL bought camping and baby items in the weeks prior to the offence. You also purchased a knife in a black sheath and a toy gun to use in the burglary. You and NL had established a campsite at Warri near the Shoalhaven River with tents, food, water and camping supplies. In the weeks prior to the offence, NL and you stored baby items at the campsite and would often spend time there. NL and you arranged to carry out the plan to abduct IL from the supervised visit on Wednesday, 12 August 2015. You drove a black Honda CRV and dropped NL at a street a block away from the Barnardos meeting house in order to enable her to undertake the visit. NR was IL’s caseworker and usually supervised the visits between NL and IL.
On 12 August 2015, NR was not present and a male employee from Barnardos attended to supervise the visit. You parked the black Honda CRV a block away from the house and waited for text messages from NL. You and NL conducted a series of text messages in which it was agreed that you would abort the plan because there was a male worker at the meeting house to supervise the visit. It was agreed that the plan would be carried out the next day. A makeup contact visit between NL and IL was to occur the following day, 13 August 2015.
On that day, you drove NL and parked a block away from the Barnardos meeting house. NL and you agreed that NL would text you whether the door to the house was open. NR arrived at the house at about 11.50 am. She entered the house and turned on the heaters. No one else was present at the house at that time. She noticed NL outside at about 11.55 am and asked her whether she would like to come inside. NL said that she would wait for IL outside. You and NL then had a series of text conversations in which she told you that the female supervisor was working that day and that she had left the front door of the house unlocked.
The foster carer of IL arrived at about 12 noon. She handed IL to NL who carried IL inside the house, as I have said, leaving the front door unlocked. Shortly after, she sent you the text message to which I have referred telling you that the door was unlocked. You then attended at the house, opened the front door and came into the lounge room. You walked directly towards NR with your back to NL. NL acted scared as planned. You were carrying a toy gun with an orange tip in one hand and a knife in the other hand. You were wearing white gardening gloves. You said, “Everyone get on the floor”. NR got on the floor and NL grabbed IL. You came towards NR and told her to “lie down and count to 100”.
At that time, NL left the house with IL. NR put her hands out to the side and started to count. You said, “Count out loud, I’m going to search the house”. By the time NR got to 40, she noticed that you were no longer in the house, however, she continued counting to 100. She then got off the floor and checked the house and saw that there was no one in the house. She then checked outside and realised that NL, IL and you were gone. She then called the police. You drove the black Honda CRV with NL sitting in the back seat with IL out of Canberra along the Federal Highway. You stopped in Bungendore where you bought food from a bakery and again in Braidwood. You then drove to the campsite at Warri near the Shoalhaven River. You and NL took supplies from this campsite and went in search of a new campsite to avoid being seen. You set up a campsite in a remote location near Mogood in New South Wales.
At about 9.00 am on Friday 14 August 2015, police stopped a black Honda on River Road in Mogood. You were driving the car and you were the only occupant. You were arrested and informed police that NL and IL were camping nearby. You showed the police the location of the campsite on a map on your phone. You made admissions about being involved in the burglary and the abduction of IL. You stated under caution, “[NL] and I had an agreement to get [IL]”. You stated that you had used a fishing knife at the burglary and that it was now at the campsite. You further admitted that you had used a toy gun and had thrown it out of the car window with the gloves as you were driving along Macs Reef Road. Police seized a black handled kitchen knife, three mobile phones and a black beanie found in the car.
Police immediately attended the campsite and found NL and IL in a tent. Police conducted a search of the campsite. There was a large tent where NL and the baby were located. Another small two-person tent was being used for storage. It contained a large number of camping items, including kitchen items, food, baby food, baby bottles and clothes. Police found a large quantity of baby clothes and bedding in a large suitcase. Two knives matching the description of the knife used by you were found and seized. You were later extradited from the Batemans Bay Local Court and were conveyed to the Australian Capital Territory by officers of the Australian Federal Police. The campsite at Warri was searched with your consent and police found the campsite to be well stocked with camping items, water and food sufficient for an extended stay, in addition to baby items including nappies, clothes, food and toys.
I note that your co-accused was charged with aggravated burglary and unlawfully taking a child. She has pleaded not guilty and her trial is listed to commence in this Court on 7 March this year. You participated in a record of interview with police on 4 December last year where you admitted your involvement in these offences. You indicated that you are prepared to give evidence at your co-accused’s trial. Your evidence will be critical in providing evidence of joint commission of the offence of aggravated burglary and unlawfully taking a child by NL. I note that in the time that has passed since this sentence was handed down and subsequently published, NL has pleaded guilty to unlawfully taking a child and aiding aggravated burglary. NL is to be sentenced in May this year.
I note that you have been in custody since you were arrested on 14 August 2015.
Subjective Features
[Redacted for legal reasons.]
I take into account the contents of the Pre-Sentence Report that was prepared for the purpose of your sentence hearing. I note that you are 22 years old, that you were born in Sydney and you are the eldest of four children. You had a good childhood except that when you were about 10 years old, your parents separated. You took on greater responsibility for assisting in the care of your siblings at that time. You believed that this may have impacted upon your emotional and social development. You and your siblings moved in with your father not long after the separation, however, this became problematic. You did not get along with your father’s new partner and you moved in with your maternal aunt in country New South Wales when you were 14 years of age. This appears to have been a stable arrangement. You reported a good relationship with your family which has been strengthened by the support you have received in the last few months. You identify as indigenous and you have recently started employment with the Cultural and Land Management Program in the Alexander Maconochie Centre.
You reported three significant relationships throughout your life. The first was with a woman in Tasmania for a period of three years from which you have a son who is now three years old. After this relationship, you commenced another relationship from which a daughter was born who is now one year old. You have never met your daughter and your last contact with your son was about 15 months ago. You were in a relationship with your co-accused for approximately 12 months until you were remanded in custody in relation to these offences. The Report notes that this relationship was volatile with accusations of unfaithfulness and occasional threats of separation. At the time of these events, you were living with your co-accused and a member of her family about 30 minutes north of Canberra. Your mother continues to reside in Tasmania and, as I understand it, you intend to live with your aunt in country New South Wales for a period before moving back to Tasmania.
You were educated to year 10 standard in New South Wales and afterwards you commenced a mechanical engineering apprenticeship in Tasmania and then a chef’s apprenticeship in Sydney. You apparently did not complete either apprenticeship. You have had a number of other jobs but you have also been in receipt of Centrelink benefits for extended periods. You told the author of the Report that you had fears around being alone and abandoned for many years, which may have been a consequence of your parents’ separation. You advised that you had been sent to counselling when you were in primary school by both your teachers and your mother but you did not engage in that process. You said that you have learned not to talk about your feelings. You have apparently been seeing a community-based counselling service whilst in custody and you told the author of the Report that you have found this helpful and that you intend to continue with it. You also told the author of the Report that you were fearful of being alone if you did not commit the present offences. You said that your co-accused threatened to end the relationship if you did not participate in these offences. You knew that what you were doing was wrong. It was the opinion of the author of the Report that you fail to demonstrate insight into the impact that your offending may have had on the various victims of your offences. You were found suitable for both community service and periodic detention but neither of those sentencing options is realistic for these offences.
Relevant authorities
I was provided with a number of previous decisions relevant to sentencing for these offences. In R v Rubino (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 16 December 2013), the offender was sentenced to periods of imprisonment of three years and seven months, three years and nine months and four years and five months respectively for three offences of aggravated burglary. Those sentences were not overturned on appeal. The offender was between 23 and 24 years old when he committed the offences. He pleaded guilty to the offences and had a lengthy criminal history, having served previous terms of imprisonment. He had a long history of polydrug abuse and dependence. The offences were highly planned and occasioned very substantial damage to property. The offender was on conditional liberty at the time he committed the offences. The offender gave evidence at the sentence hearing that he acted under duress from his co-offenders but this was rejected with the primary judge finding that he was not a credible witness. Promised assistance by the offender to the authorities was described by the primary judge as of little value. In my opinion, this decision provides little assistance in sentencing for the present offences.
In Carpenter v Purcell [2008] ACTSC 34, Penfold J heard an appeal from sentences of imprisonment imposed in the Magistrates Court for offences of unlawfully taking a child. The offender was the mother of two children who were in the custody of the Director of the Office of Children, Youth and Family Support. After an arranged visit with her children, the offender and her sister returned to the childcare centre where the visit had occurred and forcibly removed the two children. The offender told staff within the centre that she had a knife although no knife was produced and it appears that the offender was not in fact in possession of a knife. The offender, her sister and her partner then travelled to Queensland with the children. The offender pleaded guilty and for each offence of unlawfully taking a child, a sentence of 12 months’ imprisonment was imposed to be served concurrently. These sentences were not disturbed on appeal.
In WNB v R [2006] NSWCCA 269, the New South Wales Court of Criminal Appeal reduced a sentence of 18 months’ imprisonment to one of 12 months’ imprisonment for an offence of unlawfully taking a child from the control of the Minister of the Department of Community Services. The offender was the father of the child for whom parental responsibility was transferred to the Minister by a court order. The offender abducted the child at a contact visit and took the child to Queensland. No harm came to the child during the four months that she was in Queensland. The offender pleaded guilty and the offence was one which carried a maximum penalty of 10 years imprisonment.
Consideration
I accept that you committed these offences because you were afraid that your
co-accused would terminate your relationship if you refused to assist her in regaining her child. I accept that your co-accused was the instigator of these offences. With respect to the offence of aggravated burglary, it is accepted by the Crown that you used a toy gun and not a real one. As such, there was no prospect of harm to the victim through use of this gun, although she was not to know that. You did, however, use a real knife. Even though you had no intention of harming anybody with the knife, there was always potential for circumstances to escalate out of control and for harm to occur.
With respect to the offence of aiding the abduction of a child, the Crown accepts that there was no nefarious purpose for you participating in this offence and your intention was to reunite the child with her mother, your co-accused. In reality, this is simply the absence of an aggravating circumstance. The same may be said of the fact that the Crown did not suggest that there was any possibility of harm to or neglect of the child during the period of the abduction. It is clear that both offences were the subject of considerable planning and premeditation.
It is accepted by the Crown that you were in the process of driving to the police station at Braidwood to surrender yourself when you were apprehended by the police. You had apparently spoken to your father by telephone and he counselled you to surrender yourself. After you were apprehended by police, you assisted them to locate your
co-accused and the child. You then participated in a recorded interview with police in which you made full admissions. You gave evidence in the sentence proceedings before me confirming the admissions which you made in your interview with the police. You also testified as to your willingness to give evidence at the trial of your co-accused. The Crown accepts that the assistance you have provided and have offered to provide is of considerable assistance. It is accepted that you have given complete and truthful accounts to the police and to this Court. There can be no doubt that you have provided and offered to provide assistance in a timely manner. There was no evidence before me that you are likely to be at risk in custody because of the assistance that you have provided and have offered to provide but it is well known that offenders who provide assistance to the police are always at increased risk in prison to some extent.
I take into account the fact that you are still quite a young man so that rehabilitation is a very significant sentencing consideration. In my opinion, you have good prospects for rehabilitation. You appear to me to be a very immature and insecure young man and I accept that your participation in these offences was, as I have said, a consequence of your fear that your relationship with your co-accused would break down. Nevertheless, I am satisfied that nothing less than immediate terms of imprisonment are appropriate with respect to these offences.
The appropriate sentence with respect to the offence of aggravated burglary, leaving aside your plea of guilty and your offered assistance to the authorities would be one of three years imprisonment. The appropriate sentence for aiding the unlawful taking of a child, leaving aside your plea of guilty and your offer of assistance to the authorities would be one of 12 months. I will reduce the sentence for the aggravated burglary by
9 months in order to reflect your plea of guilty leaving a sentence of 27 months. I will reduce the sentence for the charge of aiding the unlawful taking of a child by three months in order to reflect your plea of guilty, therefore leaving a sentence of nine months’ imprisonment. I will allow a reduction of a further nine months for your promised assistance to the prosecution in the trial of your co-accused which will be allocated by way of seven months to the aggravated burglary and two months to the charge of aiding the unlawful taking of a child resulting in sentences of 20 months for the aggravated burglary charge and seven months for the charge of taking a child.
Sentence
I record a conviction with respect to the charge of aggravated burglary and sentence you to 20 months imprisonment commencing on 14 August 2015, which is the date that you were arrested, and expiring on 13 April 2017.
I record a conviction with respect to the charge of aiding the unlawful taking of a child and sentence you to seven months imprisonment commencing on 14 January 2017 and expiring on 13 August 2017.
Therefore, there is an aggregate sentence of two years imprisonment commencing on 14 August 2015 and expiring on 13 August 2017. I set a non-parole period of
12 months commencing on 14 August 2015 and expiring on 13 August 2016. As I have said, I have reduced the sentence that you would otherwise have had to serve by nine months in order to reflect the fact that you are willing to give evidence in the trial of your co-accused.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: D. Scuteri Date: 22 March 2016 |
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