R v Hanson
[2022] ACTSC 107
•13 May 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hanson |
Citation: | [2022] ACTSC 107 |
Hearing Date: | 13 May 2022 |
DecisionDate: | 13 May 2022 |
Before: | Mossop J |
Decision: | See [82] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – ride in a motor vehicle without consent – obtain property by deception – attempt to obtain property by deception – aggravated burglary – unauthorised possession of a firearm – being knowingly concerned in aggravated robbery – medium risk of general reoffending – breach of good behaviour orders – breach of suspended sentence – offending consistent with falling in with antisocial associates and drug use – pleas of guilty – real prospects of rehabilitation with stable employment, housing and responsibility for children – reduction in sentence for assistance to authorities – importance of deterrence and recognition of harm – terms of imprisonment imposed – imprisonment to be served by way of intensive correction order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 10, 11, 36 Criminal Code 2002 (ACT), ss 44, 45, 45A 310, 312(a), 318(2), 326 Firearms Act 1996 (ACT), s 43(1)(iii) |
Cases Cited: | The Queen v Ngata [2015] ACTSC 356 |
Parties: | The Queen (Crown) Jennifer Hanson (Offender) |
Representation: | Counsel E Wren (Crown) J Moffett (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds and Associates (Offender) | |
File Numbers: | SCC 33 of 2022 SCC 34 of 2022 SCC 66 of 2022 |
MOSSOP J:
Introduction
On 8 February 2022, the offender, Jennifer Hanson, pleaded guilty to the following offences:
(a)Two counts of riding in a motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002 (ACT). The maximum penalty is five years’ imprisonment, 500 penalty units or both.
(b)One count of obtaining property by deception, contrary to s 326 of the Criminal Code. The maximum penalty is 10 years’ imprisonment, 1000 penalty units or both.
(c)One count of attempting to obtain property by deception, contrary to s 326 of the Criminal Code by virtue of s 44 of the Criminal Code. The maximum penalty is 10 years’ imprisonment, 1000 penalty units or both.
(d)Aggravated burglary, contrary to s 312(a) of the Criminal Code. The maximum penalty is 20 years’ imprisonment, 2000 penalty units or both.
Each of these pleas were entered in the Magistrates Court of the Australian Capital Territory (ACT) after initial pleas of not guilty, but before the matter had been committed for trial.
On 10 March 2022, after an initial plea of not guilty and approximately six weeks before the hearing date, the offender pleaded guilty to one count of unauthorised possession of a firearm, contrary to s 43(1)(iii) of the Firearms Act 1996 (ACT). The maximum penalty is five years’ imprisonment.
On 13 May 2022, following criminal case conferencing, the offender pleaded guilty to one count of being knowingly concerned in an aggravated robbery, contrary to s 310 of the Criminal Code by virtue of s 45 of the Criminal Code. The maximum penalty is 25 years’ imprisonment, 2500 penalty units or both.
Facts
The facts are agreed and are in summary as follows.
Being knowingly concerned in an aggravated robbery
The offender has pleaded guilty to being knowingly concerned in an aggravated robbery committed by three primary co-accused, being Mr Butkovic, Mr Haddara and Mr Trewartha.
On 23 and 24 August 2021, the victim, a man, received multiple text messages and missed calls from Mr Haddara. These messages alleged that the victim owed Mr Haddara money and needed to pay him. The victim had never met Mr Haddara. On 23 August 2021, the victim also missed calls from Mr Butkovic. He returned a call and spoke to Mr Butkovic, who said the victim owed him $600 for cocaine that Mr Butkovic had previously supplied him with.
At some point before the evening of 25 August 2021, the offender was in contact with at least one of the co-accused. The offender agreed to lure the victim to her house so that the drug debt could be obtained from him. The offender was aware that force may be used but did not know that weapons would be used.
The offender initiated contact out of the blue with the victim via an Instagram message on 25 August 2021 at 5:27pm. The victim knew the offender through a mutual friend, but the two had only met once or twice previously.
On 26 August 2021, the offender again messaged the victim suggesting that he visit her house. This contact was again initiated by the offender. She suggested that the victim stay the night at her house because they would be drinking. The victim agreed to go to the house later that day. The offender transferred to the victim $50 to purchase alcohol for the evening. At 5:35pm, the offender sent her house address to the victim via Snapchat. At 5:59pm, the offender phoned Mr Butkovic and at 6:01pm, the offender texted Mr Butkovic saying “are you guys ready to come whenever from now”.
The victim arrived at the offender’s house at approximately 6:30pm that evening. The victim and the offender sat in the lounge. At approximately 7:45pm, four men approached the house and entered through the front door. The offender had been on the phone but immediately got up to answer the knock at the door. She ignored the victim when he asked who was knocking. The three co‑accused males entered, accompanied by a fourth unidentified male.
The victim did not see the offender after she answered the door. The offender was predominantly in her bedroom for the duration of the aggravated robbery that ensued.
The four men were wearing black and each wearing masks. Each co-accused pulled down their mask to speak with the victim. Mr Trewartha was holding a wooden baseball bat. Mr Trewartha identified himself to the victim as “Jake”. The victim was assaulted several months beforehand and had been shown footage of the assault. He recognised Mr Trewartha as the man who assaulted him.
Mr Butkovic was holding a box-cutter in one hand and a four or five-inch-long knife in the other hand. The victim knew and recognised Mr Butkovic. Mr Haddara was also holding a knife. The unidentified fourth male was holding a machete with a large blade. The victim attempted to leave through the back door of the house, but the males grabbed him, pulled him back to the couch and attacked him.
At about the same time, a friend of the offender who had tried to enter the house after the four males and had the door slammed in her face, was pulled into the loungeroom by one of the males. The offender then appeared in the loungeroom and pulled the friend into her bedroom. The offender said to her friend words to the effect of “What are you doing here? You shouldn’t be here. He’s got – He’s in the game but he is in a lot of debt. He fucked up. I lured him here. I only met the guy tonight.”
Meanwhile in the lounge room, the men demanded the victim provide them with money. Not having any cash on him, the victim made two internet banking transfers via his mobile phone totalling $800 to Mr Butkovic. The victim tried to make a third transfer, but this was unsuccessful. Mr Trewartha then struck the victim with a baseball bat and the men continued to attack him. The victim tried to explain that he thought the failed transaction was because he had reached his daily limit, not because he was “fucking around”.
The unidentified male came from the kitchen and threw something small and hard at the victim’s face before striking him repeatedly to the head. This lasted about 10 seconds. Mr Haddara pulled the unidentified male off the victim and said “no more” and “we don’t want a home invasion”.
After Mr Butkovic obtained his bank account details, the victim transferred $2515.60 to Mr Butkovic’s account. Mr Butkovic and Mr Trewartha again assaulted the victim and Mr Trewartha said “let’s just put him in the boot”. Mr Haddara told them to stop saying “no we can’t do that. We don’t want this to look like a home invasion”. Mr Haddara then told the victim that their boss was going to be “very pissed off” because his legs were not broken. Mr Haddara said “we came here to break every bone in your body - like your fingers, your toes, like every bone in your body basically”. The victim thought the men were going to kill him.
In total, the victim was struck three times to the head with a baseball bat and punched multiple times in the face.
Mr Haddara told the victim to leave with the four men. Mr Haddara then told the victim to get in his own car and go. He told the victim that if he went to the police or the hospital or cancelled the transactions, they would put him in the boot of the car, take him somewhere and kill him.
As a result of the incident, the victim suffered diffuse bruising to the left upper eyelid and onto the left cheek, a bruise to his right shoulder, two bruises to his chest and tenderness to the top of his head, left eye, back of his forearms, inner forearms, right upper chest and left upper thoracic spine.
Unauthorised possession of a firearm
On 14 September 2021, police executed a search warrant at the offender’s residence at an address in Moncrieff, ACT. During the execution of this warrant, the police located and seized a firearm in the third bedroom of the residence. This firearm was found in between clothing in the wardrobe. Specialist police attended to inspect the firearm, which was secured in an evidence bag. During the record of search warrant, the offender denied knowledge of who owned the firearm and how it came to be in her house. She denied seeing it before. The offender acknowledged that she did not hold a firearms license nor have authorisation to possess the firearm.
Forensic examination of the firearm resulted in the conclusion that it met the definition of a firearm and pistol under the Firearms Act.
Police arrested the offender on 22 September 2021. At that time, they also seized the offender’s phone and completed a download of its contents. A number of videos and photographs of the offender handling the firearm were located. The offender was depicted wearing underwear and fishnet stockings while holding the firearm in different poses, including pointing it at the camera, against her chest and against her head. In one video, the offender was depicted with another person who is known to police.
Offences committed on 9 and 10 December 2021
On 9 December 2021, between 2:30am and 2:50am, a silver Toyota Prado bearing a New South Wales (NSW) registration was stolen from a residence in Jerrabomberra, NSW. At approximately 3:43pm that same day, the vehicle attended the Shell Coles Express service station on Newcastle Street in Fyshwick. The vehicle dropped a male off at the premises, and the male stole a Toyota Camry sedan with an ACT registration while the owner was inside paying for fuel.
At 4:08pm on the same day, the Prado and Camry parked at the Swinger Hill IGA. CCTV footage obtained from the IGA clearly identified the registration of the two vehicles. The offender entered the IGA and used a card owned by the driver of the Camry, left inside the Camry at the time it was stolen in Fyshwick, to make two purchases for alcohol and cigarettes. The transactions totalled $91.98. The CCTV clearly identified the offender as wearing three quarter length jeans and a yellow top. This is the offence of dishonestly obtaining property by deception (CC2022/468).
A male wearing a black cap, black shorts with a white stripe running up the outside of each leg and a black shirt with a white stripe running up each arm, entered the IGA after the offender. This was the same male as seen in the Shell Coles Express service station CCTV.
At 5:34pm on the same day, the offender used the driver of the Camry’s card to place an online order with Goldmark Jewellers for three gold chains. The total value of the order was $2607. The mobile phone number listed on the online order was the offender’s mobile number. Goldmark Jewellers subsequently cancelled the order without processing the payment. At no point did the offender have permission to use the card. This is the offence of attempting to dishonestly obtain property by deception (CC2022/469)
At approximately 9:09pm the same evening, CCTV captured the Camry reversing into a car parking space in front of the “Coffee Guru” premises in Casey. A female, later identified as the offender, exited the front passenger seat of the Camry and entered the shopping centre. She made purchases at Supabarn and returned to the vehicle. She did not have the permission of the owner to ride in the vehicle. This is the offence of dishonestly riding in a motor vehicle without consent (CC2022/466).
At approximately 3:52am on 10 December 2021, a silver Toyota Prado four-wheel drive arrived at the front of the Coffee Guru store. The registration was unable to be seen on CCTV. The driver and front passenger (who appeared to be males) exited the vehicle before entering and re-entering it, ramming into the front of the store three times across a nine-minute period. The males tried to attach a cable from the front of the vehicle to something inside the store.
While the vehicle was ramming the store, the offender exited the back passenger seat of the vehicle and walked around to get into the driver’s seat and manoeuvre the vehicle. The offender was seen on CCTV wearing the same clothes as earlier in the evening. Her involvement with the breaking into the shop gives rise to the offence of aggravated burglary (CC2022/11832). At no time did the offender have permission of the owner to ride in the Prado. This is the offence of dishonestly riding in a motor vehicle without consent (CC2022/467).
At about 7:09am on 10 December 2021, the Prado was found burnt out in Sutton, NSW.
The offender, who had previously been granted bail, was arrested again at approximately 2:21pm on 10 December 2021.
At the time of her arrest, the offender was on conditional liberty in that she was:
(a)on bail for the aggravated robbery;
(b)subject to good behaviour orders imposed on 15 October 2021 by the ACT Magistrates Court for offences of obstructing a territory official, driving with a drug in her oral fluid, unlawful possession of stolen property and driving while suspended; and
(c)under the conditions of a good behaviour order with a suspended sentence attached for the offence of using a false document.
Victim impact statement
The victim of the aggravated burglary offence provided a victim impact statement which was tendered by the Crown. In this statement, the victim described the wide-reaching impact of the burglary on his business, extending from the physical damage to the shopfront to having to manage young staff who were upset and unsettled as a result of the incident. The statement referred to the significant damage caused to the internal fit out of the store, which also had the impact of discouraging patrons from visiting. The victim also referred to the fact that he and his co-owners run the business to provide for their families, and the offence has impacted upon their ability to do so.
Objective seriousness
Aggravated robbery
The aggravated robbery was a serious one which involved enforcement of an asserted drug debt. It involved the actual use of violence. It involved the use of weapons, although not the most serious weapons. It involved the making of realistic threats of death to the victim. The offender was, however, charged on the basis that she was knowingly concerned. Although not being immediately involved in the robbery, her role in delivering the victim to her address was fundamental to the robbers’ plans.
Possession of firearm
The nature of the firearm and the limited evidence about the possession of it indicates that this offence is in the low range of objective seriousness for this offence.
Obtaining property by deception
The offending on 9 and 10 December 2021 is aggravated by the fact that the offender was on conditional liberty.
This offence involved a modest use of a tap and go bank card. It is in the low range of objective seriousness for this offence.
Attempting to obtain property by deception
The amount of money attempted to be obtained was significant. The evidence is insufficient to identify the prospects of the payment being successfully processed. The attempt was relatively unsophisticated in that it was clearly tied to the offender. Had the offending been successful it would have been a mid-range offence.
Riding in a motor vehicle without consent
This offending relates to the Toyota Camry. It arose out of participation in further offending conduct. It is at the low end of the mid-range of this offence.
Riding in a motor vehicle without consent
This relates to the Toyota Prado. Once again, it arose out of participation in further offending conduct. Once again, it is at the low end of the mid-range of this offence.
Aggravated burglary
The aggravated burglary is one arising by joint commission under s 45A of the Criminal Code. The offender was involved as a participant and participated by way of sitting in the driver seat and manoeuvring the vehicle at one point. The two males with her appeared to take a greater role in the physical acts. Her evidence was that the initial decision to burgle the premises was made by the males without any particular planning.
The offending related to commercial premises. However, the damage caused to those premises during the course of the burglary was extensive. It is in the mid-range of objective seriousness for this offence. However, the offender’s involvement was much less objectively serious than that of the two males.
Subjective circumstances
The offender’s subjective circumstances are set out in a pre-sentence report dated 9 May 2022.
The offender is 27 years old, about to turn 28. She was born in Queensland and is a descendant of the Torres Strait Islands’ Erub Tribe. She reported that when she was 14 years old, she left her two siblings and the family home and was put on a plane to the ACT to be met by a family friend. However, she indicated that this friend never met her, and she was “left to fend for herself” from that point. She reported staying at various adolescent refuges, attending school three days per week and working at a market for the other four days.
The offender described her relationship with her father as distant until she turned 18 years old, at which point the relationship developed into a close and supportive one. The offender reported resuming contact with her mother, who lives in Queensland, for the first time during her current period in custody and advised that she is working on rebuilding this relationship.
The offender reported having three children aged eight, six and four. She described herself as a devoted stay at home mother until the youngest two children were removed from her care by their father. The offender described her relationship with the children’s father as “constantly marred by family violence and abuse.” The offender reported that although she had contact with her eldest daughter each weekend when she was in the community, she has not had contact with her two younger children since 2020. The offender stated that there were no formal custody orders, but her ex-partner had ceased allowing her to access her children. The offender reported that apart from her children, she has no family support in the ACT.
The offender reported that she currently holds a lease for a public housing property, although ACT Housing indicated that there are arrears of rent.
The offender reported completing her Year 10 certificate while working part-time at a market to support herself. She maintained this job for eight years until 2013, when she became a mother and stayed home to care for the children. The offender reported that she gained full-time work with an appliance retailer but that this job ended in 2020 with the first COVID-19 lockdown. The offender reported her most recent employment as being as a sex worker through an escort agency. The offender’s escort agency confirmed the offender’s six-month-long employment with the service and confirmed that the offender would have a job, not necessarily involving sex work, upon her return to the community.
The offender reported that she is currently managing financially and has no outstanding debts, although she does have a debt to ACT Housing.
The offender reported placing herself in a vulnerable situation through an antisocial peer network and by allowing people, who she believed to be in genuine need, to shelter in her home. She indicated that through this, she was introduced to people involved in the criminal justice system and drug use. The offender reported her intention to distance herself from this antisocial network through employment and spending time with prosocial friends.
In relation to drug use, the offender reported that she engaged in monthly, recreational cocaine use in social settings for a period. After July 2020, her illicit substance use increased to include methamphetamine use. She was using methamphetamine daily from this time. From February 2021, she had begun injecting methamphetamine. She had also used cannabis and GHB (gamma‑hydroxybutyrate). The offender described herself as a “functioning drug user”, reporting that her drug use does not impact her ability to work or maintain daily living skills. The offender disclosed that although she has not been prescribed Xanax, she has used it in her efforts to control anxiety. She indicated that she had ceased illicit substance use while in custody.
She reported that she had not previously engaged with treatment or counselling designed to address illicit substance use when she was last in the community.
The offender disclosed a diagnosis of borderline personality disorder, and this information was confirmed by ACT Health.
In terms of the offender’s attitude to the offences, the offender gave an implausible explanation to the author of the pre-sentence report that she thought she could facilitate the victim and the robbers discussing and peacefully resolving their issues. She also said that the victim had embellished the extent of his injuries. When she gave oral evidence at the sentencing hearing, she accepted that these statements were false.
In relation to the attempting to obtain property by deception and dishonestly obtaining property by deception charges, the offender acknowledged that she knew the credit card she was using had been stolen. She declined to indicate how she had come to have it. The offender reported making the purchases at the request of another to try and fit in with her peers. She disclosed that she felt bad about her actions because the offending occurred close to Christmas. She agreed with the police statement of facts and accepted responsibility for her actions.
In relation to the joint commission aggravated burglary, the offender did not agree completely with the statement of facts. She disputed her involvement in the offence and disagreed with the facts about her being in the driver’s seat of the vehicle and about her intentions at the time. The offender indicated that she got into the driver’s seat to try and leave, because being present would mean she would be breaching her bail and good behaviour order conditions at the time. The offender did not accept responsibility for her actions in relation to this offence and placed blame on others, claiming that she had been in the wrong place at the wrong time. Once again, by the time she gave oral evidence at the hearing, she accepted that her statements were false, that she had manoeuvred the vehicle and participated in the offending. She did however give evidence that the decision to burgle the premises was made by the males at very short notice.
The author of the pre-sentence report assessed the offender as being at a medium risk of general reoffending. The offender has criminogenic risks relating to illicit substance use, mental health, financial strain, an antisocial peer network and a limited insight into her offending behaviour. The offender appears to have some accommodation stability through ACT Housing, but reported that because of her kind nature, she allows anyone in need to live with her. The author noted that this seems to have led to the offender spending increased time with antisocial peers.
The author expressed concern that the offender’s offending behaviour seems to have escalated in severity and the offender seems to have limited insight into the impacts of her actions on victims or the community more generally. However, giving her oral evidence, she seemed to have a greater insight into the adverse consequences of her behaviour and the need to avoid offending in the future.
The author of the pre-sentence report noted that the offender’s criminogenic risks may be reduced if she engages with community-based organisations. Despite the fact that the offender has previously had an unsatisfactory level of compliance with community‑based supervision orders, the author was of the view that the offender may benefit from the strict conditions of an intensive correction order (ICO).
The author expressed the opinion that the offender is also suitable for a good behaviour order with a medium level of intervention by ACT Corrective Services.
Three letters were tendered by the offender. The first is from the Yeddung Mura Aboriginal Corporation which indicates that the offender has expressed interest in programs run by that organisation dealing with addiction, anger and domestic violence. It also indicates that assistance in finding employment is available.
A letter from Toora Women Inc indicates that she has been in contact with and is able to receive support from that organisation upon her release.
Finally, there is a letter from the grandmother of the offender’s first child, who is the mother of her ex-partner. The grandmother indicates that she has cared for the daughter since June 2020 as well as a period in 2018-2019. She said that when the offender was able and the child was ready, she would support the transition to the offender caring for her daughter again.
The offender gave oral evidence. That included an explanation of the impact of a significant period in full-time custody and her ambitions in relation to her children and the potential for employment if she is released from custody. Her evidence appeared to involve a genuine recognition of the broader effects of illicit drug use which has been brought home to her by being in custody with other offenders for a significant period of time.
Criminal history
The offender has a criminal history in both the ACT and NSW. In the ACT she has nine convictions, five of which are for driving related offences. The offending occurred between February and June 2021. For an offence of driving with a prescribed drug in her oral fluid, she received a sentence of 24 days’ imprisonment. For the offence of using a false document she received a three-month suspended sentence of imprisonment. She has four convictions in NSW for offences committed on one day in September 2020 for which she received fines. The pattern and timing of the offending is consistent with falling in with antisocial peers and drug use, as described in the pre‑sentence report. In her oral evidence, she explained that her 24 days in prison involved a substantial period during which she was sick with COVID and hence did not experience the full lessons of living in prison in the way that she has during her present period of incarceration.
Plea of guilty
The timing of the pleas of guilty are described earlier in these reasons. Having regard to the timing of the pleas and their utilitarian value, each of the sentences will involve a reduction of 20 percent on account of the pleas of guilty, except the firearms and aggravated robbery offences which will have a reduction of approximately 15 percent.
Assistance to authorities
The offender gave evidence about what occurred during the aggravated robbery, including identification of the three charged co-accused. She indicated that she was prepared to give that evidence at the trial of the co-accused. That evidence is significant in placing the offenders at the scene of the crime, providing corroboration of the victim’s evidence as to the identification of the co-accused and identifying weapons used during the offending. It significantly strengthens the Crown case against the co-accused.
While it is open under s 36 of the Crimes (Sentencing) Act 2005 (ACT) to give a lesser penalty in relation to sentences unrelated to that for which the assistance of given, in the present case where assistance has been given in relation to one of the offences for sentence but not in relation to the others, it is appropriate that the discount be in relation to the offence where the assistance is given.
The principles to be applied in relation to reductions in penalty for assistance to authorities are summarised in The Queen v Ngata [2015] ACTSC 356 at [55]-[58]. It is also necessary to take into account the matters referred to in s 36(3) of the Crimes (Sentencing) Act. The only one that requires specific mention is that the timeliness of the undertaking to assist s 36(3)(e) has been affected by the desire to avoid harsher custodial conditions because of the undertaking to assist s 36(3)(g). I have also borne in mind that the lesser penalty must not be “unreasonably disproportionate” to the nature and circumstances of the offence: s 36(4).
In the circumstances, the appropriate discount is an additional 20 percent reduction in the sentence for the aggravated robbery so that the combined discount for plea of guilty and assistance to authorities is approximately 35 percent. Notwithstanding that the reduction is only in relation to the sentence for aggravated robbery, I have also taken into account the assistance to authorities more generally as reflecting upon the offender’s prospects of rehabilitation. That is a matter of significance in relation to the manner in which the sentences of imprisonment are to be served.
Time in custody
The offender has spent 155 days in custody solely in relation to these offences, including today. At the time of the offences of 9 and 10 December 2021, the offender was on bail for the aggravated robbery offence. Bail was refused when she was arrested on 10 December 2021. The offender described this period as a “massive wake up call”. Although such a claim is not uncommon and, in some cases, may be treated with scepticism, in the present case I accept that it is a genuine expression of the effect of the significant period of incarceration.
Breach of good behaviour orders
As a result of the offending on 9 and 10 December 2021, the offender is in breach of a number of good behaviour orders that formed part of sentences imposed by Magistrate Taylor on 15 October 2021.
These are as follows:
(a)CC2021/4275, unlawful possession of stolen property: good behaviour order of 10 months from 15 October 2021 until 14 August 2022.
(b)CC2021/3748, using a false document: three months imprisonment suspended upon good behaviour order of 12 months from 15 October 2021 until 14 October 2022.
(c)CC2021/3750, driving while suspended: good behaviour order of six months from 15 October 2021 until 14 April 2022 plus disqualification of two months.
(d)CC2021/6480, driving with prescribed drug (methamphetamine) in oral fluid: good behaviour order of six months from 15 October 2021 until 14 April 2022 plus disqualification for six months.
(e)CC2021/6640, obstructing or resisting territory public official: good behaviour order of 12 months from 15 October 2021 until 14 October 2022.
Consideration
The pattern of offending reflected in the offender’s criminal history is consistent with that which has been disclosed in the pre-sentence report, namely, a pattern of contact with antisocial associates which, combined with adverse life events, has led the offender into drug use and the unlawful conduct associated with it.
The present offending involves more serious offending. It occurred in the context of associating with others who played a greater role in the offending conduct. Consistently with what is said in the pre-sentence report, although there is a medium prospect of reoffending, there appear to be reasonable prospects of rehabilitation if the offender’s drug use can be addressed and she limits her contact with antisocial associates. She appears to be genuinely motivated to rehabilitate herself, although any path to rehabilitation from methamphetamine use must carry with it a risk of failure. Plainly enough, both general and specific deterrence must play a role in any sentence, as must recognition of harm done to the victims of the offending.
Having regard to the nature of the offending and the offender’s criminal history, the threshold for a custodial sentence in s 10 of the Crimes (Sentencing) Act is passed in relation to the present offending.
In relation to the breaches of good behaviour orders, the offending occurred relatively soon after the good behaviour orders were imposed. I will deal with them by imposing the suspended sentence but, in light of the other custodial sentences that I will impose, take no further action in relation to the other good behaviour orders. Issues of totality require a significant degree of concurrency among the sentences.
The sentences that will be imposed are as follows:
Charge
Starting point
Sentence
Cumulation
Aggravated robbery 24 months’ imprisonment 16 months’ imprisonment Aggravated burglary 12 months’ imprisonment 10 months’ imprisonment Six months Possessing a firearm Eight months’ imprisonment Seven months’ imprisonment Three months Dishonestly obtaining property 10 months’ imprisonment Eight months’ imprisonment Three months Attempting to dishonestly obtain property 10 months’ imprisonment Eight months’ imprisonment Three months Riding in a motor vehicle without consent 10 months’ imprisonment Eight months’ imprisonment Three months Riding in a motor vehicle without consent 10 months’ imprisonment Eight months’ imprisonment Three months Using a false document (suspended sentence) Three months’ imprisonment Two months Total 39 months’ imprisonment
The total sentence is three years and three months’ imprisonment.
Having regard to the relative recency of her offending behaviour, the association of that with drugs and antisocial associates and the opinion of the author of the pre-sentence report, this is a case in which an ICO would be appropriate. That will maximise the incentives for rehabilitation. It will allow a long period subject to supervision with strong incentives for compliance with the requirements of supervision. There are real prospects for the offender’s rehabilitation including stable employment and increased responsibility for her children. An ICO is more appropriate than an immediate term of imprisonment either by way of full-time detention with a non-parole period or by way of a suspended sentence. In reaching this conclusion, I have taken into account the matters in s 11(3) of the Crimes (Sentencing) Act. It is not clear that this provision applies in circumstances where each individual sentence is no more than two years even though the aggregate sentence is greater than two years. However, I have considered these provisions and none of these matters are sufficient to displace the appropriateness of an ICO in the present circumstances.
Orders
The orders of the Court are:
1. On the charge of aggravated robbery (SCCAN2022/17) the offender is sentenced to imprisonment for 16 months commencing on 10 December 2021 and ending on 9 April 2023.
2. On the charge of aggravated burglary (CC2021/11832) the offender is sentenced to imprisonment for 10 months commencing on 10 December 2022 and ending on 9 October 2023.
3. On the charge of possessing a firearm when not authorised (CC2021/1408) the offender is sentenced to seven months’ imprisonment commencing on 10 June 2023 and ending on 9 January 2024.
4. On the charge of dishonestly obtaining property (CC2022/468) the offender is sentenced to imprisonment for eight months commencing on 10 August 2023 and ending on 9 April 2024.
5. On the charge of attempting to dishonestly obtain property (CC2022/469) the offender is sentenced to eight months’ imprisonment commencing on 10 November 2023 and ending on 9 July 2024.
6. On the charge of dishonestly riding in a motor vehicle without consent on 9 December 2021 (CC2022/466) the offender is sentenced to imprisonment for eight months commencing on 10 February 2023 and ending on 9 October 2024.
7. On the charge of dishonestly riding in a motor vehicle without consent on 10 December 2021 (CC2022/467) the offender is sentenced to imprisonment for eight months commencing on 10 May 2024 and ending on 9 January 2025.
8. On the charge of using a false document (CC2021/3748) the good behaviour order entered into as a consequence of the orders of the Magistrates Court made on 15 October 2021 is cancelled and the sentence of three months’ imprisonment is imposed commencing on 10 December 2024 and ending on 9 March 2025.
9. In relation to the breach of the good behaviour order on CC2021/3750 no further action is taken.
10. In relation to the breach of the good behaviour order on CC2021/6480 no further action is taken.
11. On the breach of the good behaviour order on CC2021/6640 no further action is taken.
12. On the breach of the good behaviour order on CC2021/4275 no further action is taken.
13. The sentences of imprisonment imposed by orders 1-8 are each to be served by intensive correction in the community under s 11 of the Crimes (Sentencing) Act 2005 (ACT).
| I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 1 June 2022 |
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