R v Gardner
[2014] ACTSC 260
•15 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Gardner |
Citation: | [2014] ACTSC 260 |
Hearing Date(s): | 15 September 2014 |
DecisionDate: | 15 September 2014 |
Before: | Murrell CJ |
Decision: | Fourteen months’ imprisonment on each matter. Total period of 20 months’ imprisonment. Entire sentence suspended upon offender entering into a good behaviour order for 20 months. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – guilty plea – accessory after the fact to aggravated robbery – discount for assistance |
Legislation Cited: | Criminal Code 2002 (ACT) ss 310, 717 Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 33, 36, 37 |
Parties: | The Queen (Crown) Tahya Gardner (Offender) |
Representation: | Counsel Mr M Reardon (Crown) Mr A Hopkins (Offender) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) pappas, j - attorney (Offender) | |
File Number(s): | SCC 180 of 2013 |
MURRELL CJ:
Ms Gardner (the offender) adheres to two pleas of guilty entered on 25 August 2014. The first offence is that on 24 August 2012 she was an accessory after the fact to an aggravated robbery committed by her partner (the accused) contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code), with intent to allow the accused to escape apprehension or prosecution. The second matter is an offence of being an accessory after the fact to an aggravated robbery that occurred on 21 May 2013.
The offence of aggravated robbery carries a maximum available penalty of 15 years' imprisonment. The offence of being an accessory after the fact is created under s 717 of the Criminal Code and carries the same maximum penalty.
The history of the pleas of guilty is somewhat complex. The accused was originally charged with three offences of aiding and abetting an aggravated robbery. The matters were listed for trial. On 20 August 2014, five days before the trial, the Crown filed an ex officio indictment charging four matters of being an accessory after the fact (rather than aiding and abetting). On 22 August 2014, the offender indicated that she would enter a plea of guilty to two of the four matters on the indictment. That was an early response to the fresh indictment. The pleas were subsequently entered and accepted by the Crown in full discharge of the indictment.
The offender lived in a domestic relationship with the accused from early 2011. On 24 August 2012 and 21 May 2013 the offender was present in a vehicle when the accused entered commercial premises, a liquor store and a supermarket respectively, and committed robbery armed with a knife of approximately 20 cm long. In each case, he recovered a moderate amount of cash and some other items. He returned to the vehicle and instructed the offender to drive off.
The pleas of guilty to being an accessory after the fact relate to the offender’s concession that she drove him away, knowing that he had committed the offences and with the intention of allowing him to escape apprehension or prosecution. But she has not admitted to being a knowing party to the offence from an earlier point in time.
The offender is now 26 years of age. She has a minor prior criminal history, including an offence of damage property and an offence of obtain property by deception, each of which resulted in a good behaviour order. The latter offence was committed between the dates of the subject offences. There are also two minor driving matters that resulted in fines.
The offender comes from a very troubled background, the full details of which are not known to me. She is the mother of six children, all of whom have been removed from her care. They are aged between nine months and nine years. There were three different fathers. One of the reports says that all of the offender’s past relationships have been physically and verbally abusive.
The relationship with the accused was attended by very substantial domestic violence, such that in November 2011 the police were called to the household. The accused had caused extensive damage to the house and had been violent towards the offender while she was pregnant. As a consequence, he was charged and he received a significant sentence of imprisonment. He was released subject to the supervision of Corrective Services. He may well have been subject to supervision at the time that he allegedly committed at least one of these offences.
The offender tendered evidence from her father and sisters that attests to the high level of domestic abuse to which she was subjected around the time of the offences. Family members witnessed bruising, and they received numerous serious complaints from the offender about physical abuse. The family members have also told of mental abuse by the accused, including very controlling behaviour. As a consequence of such behaviour, at the time of the offences the offender was largely cut off from family and community support. On the other hand, on at least two occasions the accused contacted one of the offender’s sisters and asked her to collect the offender because he had seriously injured her. There is no doubt that, at the time that the offences were committed, the offender was the victim of a very difficult relationship attended by significant physical and mental abuse. Her participation in the offences must be viewed in that context.
She is now in a different relationship, which she says is a non-violent relationship. She ended her relationship with the accused in mid‑2013.
The offender left school in Year 10 and thereafter worked as a cleaner, but she has been unemployed for several years, due to her numerous pregnancies and the need to care for her children.
It is not surprising to learn that the offender has some mental health issues. She has symptoms of OCD and anxiety. Her symptoms include difficulty sleeping, difficulty socialising, nightmares, feelings of fear and anxiety and obsessive behaviour. She has been a heavy smoker and has, at least in the past, used cannabis to assist her to relax and sleep.
It seems that part of the abusive relationship between the offender and the accused centred around one of the offender’s children, whom the accused believed was not his child. When the offender was pregnant with the child and following the birth, the accused was particularly violent towards the offender. He also made threats against her family. She says that she did not report the offences, to police because of fears that she held.
Pursuant to ss 36 and 37 of the Sentencing Act the discount will be an additional 20 per cent. The relevant matters are also taken into account in relation to the manner of service of sentence.
In sentencing the offender the Court is required to take into account the sentencing purposes in s 7 of the Sentencing Act and relevant aggravating and mitigating factors in s 33 of the Sentencing Act. In relation to sentencing purposes, a factor that I consider to be very relevant is rehabilitation. The offender comes from a very troubled background and her participation in the offences was, to a significant extent, a manifestation of that troubled background. If she receives adequate support, she may well be capable of rehabilitation, particularly given her age and the fact that her prior criminal history, despite her many problems, is very minor.
The offences are towards the lower end in terms of their objective seriousness. The offender engaged in the offences without significant reflection. The period of her engagement was relatively brief. The nature and duration of her involvement was minor and brief and was largely prompted by the relationship between herself and the accused. The offender's culpability is towards the lower end.
The discount applicable for the plea of guilty is to be seen in the context of the offender's volunteering her role, in effect, as an accessory after the fact. The discount for that factor will be 20 per cent. In addition, the discount under ss 36 and 37 of the Sentencing Act will be 20 per cent, but the nature of the assistance will also be taken into account in relation to the manner of service of the sentence.
The offender has accepted responsibility for her conduct. The plea of guilty and the statements made in the record of interview demonstrate remorse. The offender has sought treatment, although she will need some encouragement to pursue treatment.
I have referred to the sentencing statistics for similar matters, which reinforce me in my view that it is appropriate to deal with these matters by way of suspended sentences and an associated good behaviour order.
In each matter, I impose a sentence of 14 months’ imprisonment, discounted by 40 percent from a starting point of two years’ imprisonment. The first sentence of 14 months is from 15 September 2014 to 14 November 2015. The second sentence is from 15 March 2015 to 14 May 2016. Pursuant to s 12 of the Sentencing Act I make a suspended sentence order suspending the whole of the sentence of imprisonment. I also make a good behaviour order for the total period of 20 months. The good behaviour order is subject to the conditions that the offender report to Corrective Services at Eclipse House by 4 pm tomorrow, 16 September, and submit to the supervision of Corrective Services for as long as the Services consider necessary.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 31 August 2015 |
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