R v Howsan
[2015] ACTSC 215
•28 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Howsan |
Citation: | [2015] ACTSC 215 |
Hearing Dates: | 23 and 28 July 2015 |
DecisionDates: | 23 and 28 July 2015 |
Before: | Murrell CJ |
Decision: | Sentenced to an effective term of 24 months’ imprisonment. Sentence suspended upon the offender entering into a good behaviour order. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – aggravated robbery – drive motor vehicle with prescribed concentration of alcohol – dishonestly take a motor vehicle belonging to another person without consent – mental health – moral culpability – rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT) s 309 Crimes (Sentencing) Act 2005 (ACT) ss 7, 35 Road Transport (Alcohol and Drug) Act 1977 (ACT) ss 19(1), 26(1), 33(3) |
Parties: | The Queen (Crown) Catherine Howsan (Offender) |
Representation: | Counsel Ms S Gul and Ms S Jowitt (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 109 of 2015; SCC 129 of 2015 |
MURRELL CJ:
The Offences
The offender adheres to pleas of guilty to the following offences:
(a)Aggravated robbery committed on 24 January 2015, contrary to s 310(b) of the Criminal Code 2002 (ACT). The maximum penalty is 25 years’ imprisonment and/or a fine of $350,000.
(b)Aggravated robbery committed on 22 January 2015, contrary to s 310(b) of the Criminal Code. The maximum penalty is 25 years’ imprisonment and/or a fine of $350,000.
(c)Drive motor vehicle with prescribed (level two) concentration of alcohol in person’s breath committed on 22 January 2015, contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) The maximum penalty for level two alcohol concentration is a fine of $1,500: s 26(1)(b) of Road Transport (Alcohol and Drugs) Act. A person with a level two alcohol concentration is disqualified from holding or obtaining a driver licence for a default period of 12 months: s 33(3)(a) of Road Transport (Alcohol and Drugs) Act.
(d)Dishonestly take a motor vehicle belonging to another person without consent committed on 22 January 2015, contrary to s 318(1) of the Criminal Code. The maximum penalty is five years’ imprisonment and/or a fine of $75,000.
With respect to (b), the aggravated robbery offence committed on 22 January 2015, I am asked to take into account the additional offence of possess offensive weapon with intent to do harm committed on 20 January 2015.
Background to the Offences
On 20 January 2015 at about 3.45 pm police responded to a report that the offender was sitting on a chair in the middle of a Kambah road. When they arrived, they observed her standing on the footpath and holding a knife above her head. Initially, she threatened to stab the police. A police officer drew a can of OC spray, raised his firearm and directed the offender to drop the knife. She dropped the knife as directed. She informed police that she was upset; she had had an argument with her father as he had refused to buy her alcohol. She told the police that she wanted to stab them or be shot by them and that, if she did not get more alcohol, she would rob a service station at knifepoint. She was transferred to the Mental Health Adult Unit at the Canberra Hospital and released the next day, 21 January 2015, on bail. This incident was the additional offence of possess offensive weapon with intent to do harm.
At 4.40 am on 22 January 2015, the offender attended a petrol station at Kambah. One employee was on duty. He recognised the offender because she was a regular customer. She entered the store carrying a black handled kitchen knife which was hidden behind her back. She approached the employee, demanding that she be given cigarettes on credit. When he refused to provide cigarettes on credit, she produced the knife and held it beside her head, pointing it at the employee.
The employee agreed to provide the offender with cigarettes. He knew the offender but was fearful because she had a knife and she was shaking. Her behaviour was erratic and unpredictable. She followed him as he walked to the area behind the counter. She stood on the other side of the counter. She placed the knife on top of the counter and specified that she wanted two packets of a certain sort of cigarettes. The employee provided the offender with the cigarettes. The offender took them and left the store. The cigarettes had a value of about $30. This matter was first reported to the police on 24 January 2015. This constituted offence (b), aggravated robbery.
At about 1.00 pm on the afternoon of 22 January 2015, the offender was seated on a chair in a public area near Kambah Village Shopping Centre. She observed an ACT Government employee cleaning public toilets. She spoke to him. He noticed that she appeared to be affected by drugs or alcohol. When he re-entered the toilets, the offender jumped in his vehicle, which was parked nearby with the keys in the ignition. She drove away, chased by the employee. This constituted offence (d); dishonestly take a motor vehicle belonging to another person without consent.
The employee telephoned a co-worker, who then saw the vehicle and followed it. Police were notified. The offender was apprehended. She informed police that she had stolen the vehicle from Kambah and was driving to Bombaderry to see her parents. Police observed wine and a glass within the vehicle. The offender was subjected to a roadside breath test, which returned a positive indication for alcohol. An alcohol breath analysis at the City Police Station returned a reading of 0.053. Police observed that the offender had slightly slurred speech, her eyes were bloodshot, her balance was unsteady and she smelt of alcohol. These observations are slightly inconsistent with the reading of only 0.053, but may be explained by the fact that the offender admitted to using heroin a short time before she was arrested. This constituted offence (c); drive motor vehicle with prescribed concentration of alcohol in person’s breath.
Following her arrest, the offender was charged and granted bail. Two days later, at about 1.30 pm on 24 January 2015, she attended a liquor store at Kambah. There was one employee on duty. A customer was also present. The offender placed two 10-packs of Jim Beam Bourbon and Cola cans and three six-packs of Jim Beam Bourbon and Cola cans into a trolley and wandered round the store for a while before approaching the employee. The employee recognised her because she had attended the store previously. The offender told the employee that she had a knife. The employee observed two knives inside the offender’s shopping bag. She told the employee to fill up her bag with cigarettes. The offender took hold of one of the knives in her right hand. The employee gave the offender two packets of cigarettes. She left the store with her shopping bag and pushing the trolley. This constituted offence (a); aggravated robbery.
The employee called the police. Soon after, they attended the offender’s premises. The offender participated in an interview during a search of her premises. She admitted to offence (a), the aggravated robbery committed on 24 January 2015. She said that she had had no intention of paying for the cigarettes. She admitted to being in possession of knives. She also informed police that she thought that her house was bugged.
She was conveyed to Canberra Hospital and detained pursuant to s 309 of the Crimes Act 1900 (ACT) for the purposes of a forensic mental health assessment. On 27 January 2015, she was placed into the custody of ACT Corrective Services.
On 19 March 2015, a psychiatric treatment order was made by ACAT for a period of six months. While she was in custody, the offender was interviewed in relation to the aggravated robbery on 22 January 2015. She admitted the offence.
The offender entered pleas of guilty at an early stage. Pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), in the context that the offender readily admitted to the offences, I consider that the utilitarian value of the pleas warrants a discount of 25% on the sentences that I would otherwise have imposed
Objective Seriousness
Any aggravated robbery is a matter of significant objective seriousness. The aggravating circumstance relied upon in relation to these matters is the possession of a knife(s).
In respect of offence (b), the aggravated robbery committed on 22 January 2015, the offender actually pointed the knife at the victim. The offence occurred at 4.40 am. The victim was in a vulnerable position as he was the sole employee at the petrol station. While the employee was frightened, he was familiar with the offender. Therefore, it was probably not as confronting a situation as it would have been if the offender was a stranger. The photos show that the offender placed the knife on the counter between herself and the employee when he acquiesced to her demand for cigarettes. This matter falls towards the lower end of the spectrum in terms of objective seriousness.
Offence (a), the aggravated robbery that occurred on 24 January 2015, also involved a threat to the employee of a store. However, this offence occurred in the middle of the day. Another person, a customer, was present. The employee could not be described as vulnerable as was the victim of offence (b).
Subjective Circumstances
The offender is 39 years of age. She has a relatively minor criminal history. In the 1990s she committed minor offences in New South Wales. The last such offence occurred in 2000. The heaviest penalty that she received was a 12 month good behaviour order, which was imposed in 2000. There was a gap in offending behaviour from 2000 until about 2008, when the offender’s ACT criminal history commenced. The offender received an 18 month good behaviour order for obtaining a financial advantage by deception in 2007. There was a drug offence in 2009, which resulted in a 12 month suspended sentence. In 2010, a community service order was imposed for a further offence of obtaining a financial advantage by deception. Prior to the commission of the current offences, the offender last breached the criminal law in 2010.
The offender was adopted when she was very young. She does not know her biological family. She enjoyed a very positive upbringing. She regards her adoptive parents as her only parents. She has an older brother in her adopting family. In recent times, she has had relationship problems with her parents and her brother. She readily acknowledges that her chaotic lifestyle and ongoing drug abuse have caused these problems. For example, she has demanded that her parents give her money to purchase alcohol and drugs, and she has behaved poorly when her requests have been refused
The offender completed her education in Year 10. She left school at 16 years of age to enter into a relationship and, at 17 years of age, she commenced a long-term relationship. That relationship produced two children. During the relationship, the offender was regularly subjected to physical abuse and she had to be hospitalised at times. The abuse has had a significant impact on her. The relationship was also marred by drug abuse.
The offender has held a number of casual unskilled positions. The most recent was held in 2007.
The offender has a longstanding history of polysubstance abuse. She commenced using cannabis in her mid-teens. Her first criminal entry in New South Wales in 1994 coincided approximately with the commencement of her long-term abusive relationship. From 1997 to 1999, the offender says that she was injecting amphetamines on a daily basis. In about 1999, when aged 23 years, she replaced heavy amphetamine use with heroin use. She continued to use heroin until approximately 2007, when she was aged 31 years. In 1999, 2000 and 2001, she engaged in drug treatment interventions, including a family treatment program at Karralika. In 2002, she commenced methadone treatment. She has continued with methadone treatment over most of the last 13 years.
When aged between about 16 and 21 years, the offender consumed a huge amount of alcohol on a daily basis. In about 2000, she stopped abusing alcohol. She says that she did not relapse into alcohol abuse until late 2014.
In about 2006 the offender began to experience mental health problems. She associates these problems with the use of methylamphetamine. Her first contact with Mental Health Services in the ACT occurred in November 2007, the year that the offender’s criminal record commenced in the ACT. The offender says that she was first diagnosed with schizophrenia and depression in about 2008, when she was aged 31 years. The first psychiatric treatment order affecting the offender was made on 31 January 2013. There have been a number of orders since that date. The most recent order was made on 19 March 2015.
In 2009, Children’s Services became involved in relation to the care of the offender’s two children. This motivated the offender to cease drug abuse. From 2009 to 2011, the offender remained abstinent from all drugs. At that time, she was under the care of Directions ACT and was dosing regularly with methadone.
In late 2014, the offender relapsed into drug abuse and experienced a related collapse of her mental health. She became psychotic. She resumed use of alcohol and ice. Between October 2014 and January 2015 there were a number of hospital admissions for mental health problems. In about October 2014, the offender ceased methadone use. It is not clear if this caused or contributed to her relapse into drug abuse and her mental health collapse.
The offences were committed when the offender was suffering from serious mental health problems. She continued to suffer from psychiatric problems for some months after being taken into custody in January 2015, and resulted in the making of a psychiatric treatment order in March 2015. On 5 March 2015 she attempted self-harm by asphyxiation. She was subsequently relocated to the Crisis Support Unit at the Alexander Maconochie Centre.
Other Sentencing Considerations
The maximum available penalty of 25 years’ imprisonment makes it clear that the offence of aggravated robbery is a very serious matter. However, mental health difficulties may impact upon sentencing for any offence, including aggravated robbery, in a number of ways:
(a)The suffering of a mental health condition may reflect upon a particular offender’s moral culpability. It is clear that on 22 and 24 January 2015, the offender was suffering from a serious mental health problem. This does not absolve her of criminal responsibility but it means that her moral culpability for the offending behaviour is much lower than would have been the case if she had been in a normal mental state.
(b)Because of her mental state at the time of the offences, the offender is not an appropriate vehicle for conveying the sentencing purpose of general deterrence. Specific deterrence is not an important sentencing purpose in this case because the offender was not in her right frame of mind at the time of the offences. The offences were quite out of the offender’s normal character.
(c)Imprisonment may be seen to be harsher for people suffering from mental health conditions, but there is no evidence to suggest that that consideration applies in the present case.
Section 7 of the Sentencing Act lists the sentencing purposes that the Court should bear in mind. Rehabilitation is the dominant sentencing purpose in this case. The offender does not have a history of serious criminal conduct. Her serious criminal conduct was very closely associated with a mental health crisis. She has good prospects of rehabilitation as she has a history of being able to remain drug free and free of mental health problems for a significant period. Her current maturity and motivation to address mental health and drug problems increase her prospects of rehabilitation. Those prospects support the sentencing purpose of protection for the community. Appropriate punishment must be imposed, but must take account of the offender’s reduced moral culpability.
Sentence
The offender is convicted of each matter.
For the offence of aggravated robbery committed on 22 January 2015, taking into account the additional offence of possess offensive weapon with intent to do harm, the offender would have been sentenced to 2 years’ imprisonment. With a discount of 25% for the early plea of guilty, the offender is sentenced to 18 months’ imprisonment, to be served from 24 January 2015 to 23 July 2016.
For the offence of aggravated robbery committed on 24 January 2015, the offender would have been sentenced to 2 years’ imprisonment. Taking into account a discount of 25% for the early plea of guilty, she is sentenced to 18 months’ imprisonment, to be served from 24 July 2015 to 23 January 2017.
For the offence of drive motor vehicle with prescribed concentration of alcohol in person’s breath committed on 22 January 2015, the offender is fined $50 and disqualified from holding or obtaining a driver licence for the default period of 12 months.
For the offence of dishonestly taking a motor vehicle belonging to another person without consent committed on 22 January 2015, the offender would have been sentenced to four months’ imprisonment. Taking into account a discount of 25% for the early plea of guilty, the offender is sentenced to three months’ imprisonment, to be served from 24 January 2015 to 23 April 2015. This period of imprisonment has expired.
The balance of the sentences is to be suspended from 29 July 2015 upon the offender entering into a good behaviour order. The good behaviour order is subject to the following conditions:
(a)The offender is to be released into the custody of her caseworker and is to proceed directly to the Step Up Step Down Program.
(b)The offender is to remain on the Program and any related follow up Program and comply with all reasonable requirements of those Programs.
(c)If the offender is discharged from either Program for non-compliance with Program requirements, she is to report to ACT Corrective Services or the Registrar of the Supreme Court within one working day of being discharged.
(d)The offender is to report to ACT Corrective Services at Eclipse House within two working days of completing the residential program and submit to the supervision of ACT Corrective Services for as long as ACT Corrective Services considers necessary.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 3 August 2015 |
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