R v Howsan (No. 2)
[2016] ACTSC 41
•9 March 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Howsan (No. 2) |
Citation: | [2016] ACTSC 41 |
Hearing Date: | 4 March 2016 |
DecisionDate: | 9 March 2016 |
Before: | Refshauge J |
Decision: | 1. Ms Howsan is convicted of the aggravated robbery on 27 September 2015 (CC 15/9359). 2. The commission of the aggravated robbery on 27 September 2015 breaches the GBO made on 22 September 2015. 3. The Good Behaviour Order of 22 September 2015 is cancelled. 4. The conviction for aggravated robbery on 22 January 2015 (CC 15/4820) is confirmed. 5. Ms Howsan is sentenced to 18 months imprisonment commencing on 9 September 2015. 6. The conviction for aggravated robbery on 24 January 2015 (CC 15/1190) is confirmed. 7. Ms Howsan is sentenced to 18 months imprisonment commencing on 9 March 2016. That is to be cumulative as to 6 months on first sentence for aggravated robbery. 8. Ms Howsan is convicted of damaging property on 17 December 2014 (CC 15/8075). 9. Ms Howsan is sentenced to 12 months imprisonment commencing on 9 May 2016. That is to be cumulative as to 2 months on the sentence for aggravated robbery on 24 January 2015. 10. For the aggravated robbery on 27 September 2015 (CC 15/9359), Ms Howsan is sentenced to 18 months imprisonment commencing on 30 May 2016. That is to be cumulative as to 6 months on the sentence for damaging property and backdated to take into account pre-sentence custody of 163 days. 11. Ms Howsan is convicted of preventing lawful apprehension with a threat (CC15/10574). 12. Ms Howsan is sentenced to 9 months imprisonment commencing on 30 March 2017. That is to be cumulative as to 1 month on sentence for the aggravated robbery of 27 September 2015. 13. That is a total sentence of 2 years, 3 months, 21 days. 14. A non-parole period of 12 months be set, to commence on 9 September 2015 and expire on 8 September 2016. 15. It be recommended to the Sentence Administration Board that they consider a condition to maintain Ms Howsan’s participation in the methadone program and possibly counselling with Mr Panozzo, if that is appropriate. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – re-sentencing – aggravated robbery – damaging property – preventing lawful apprehension with threat – damage using motor vehicle – threat with knife – threat to police officer – offender on conditional liberty – breach of Good Behaviour Order – breach through further offending – delay in prosecution – serious mental illness – drug abuse – co-morbidity – application of Verdins principles |
Legislation Cited: | Crimes Act 1900 (ACT), s 32(2)(b) Crimes (Sentence Administration) Act 2005 (ACT), ss 86(1)(a), 110 Criminal Code 2002 (ACT), ss 310(b), 318(1), 403(1) |
Cases Cited: | Guy v Anderson [2013] ACTSC 5 Markarian v The Queen (2005) 228 CLR 357 |
Parties: | The Queen (Crown) Catherine Fiona Howsan (Defendant) |
Representation: | Counsel Ms K McKenzie (Crown) Mr R Davies (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Defendant) | |
File Number: | SCC 242 of 2015 SCC 109 of 2015 SCC 129 of 2015 |
REFSHAUGE J:
There can be no doubt that addiction to drugs commonly leads to criminal behaviour, sometimes of a very serious kind.
Nevertheless, the answer to the protection of the community from criminal behaviour, which is the ultimate aim of the criminal law, is not as simple as stating the need to address drug addiction.
The addiction to drugs is pernicious and ineradicable . The addict always lives with the addiction but can learn to manage it and, thereafter, live successfully within the community.
Nevertheless, as I pointed out in Saga v Reid [2010] ACTSC 59 at [89], the road to the management of drug addiction is one of hard work and there is no shortcut or quick fix. Indeed, it can take a number of failed attempts at rehabilitation before it is successful.
Courts need to explore ways to meet this challenge. These ways need to be evidenced based but do not exclude the need, from time to time, to incarcerate offenders because they commit serious offences which demand such a response or, indeed, to show that the courts are serious about the need for offenders to exert their own efforts towards rehabilitation.
The problem is, however, compounded when the offender has a mental impairment. For many years, the rehabilitation options were limited for such people, agencies only accepting those with either addiction or impairment but not both. Fortunately, this has now changed, but a combination of the two is not easy to address for an offender and options are neither obvious nor simple.
This is the sentencing challenge faced regularly by judicial officers.
Appearing before me for sentence is Catherine Fiona Howsan, who pleaded guilty in the ACT Magistrates Court to offences of aggravated robbery, damaging property and preventing her lawful detention with a threat to endanger the safety of a person other than herself or an accomplice.
Aggravated robbery is an offence contrary to s 310(b) of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 2500 penalty units (that is, at the time, a fine of $375,000) and 25 years imprisonment.
Damaging property is an offence against s 403(1) of the Criminal Code, for which the prescribed maximum penalty is 1000 penalty units (that is, at the time, a fine of $100,000) and 10 years imprisonment.
Preventing lawful apprehension with a threat to endanger the safety of a person other than the offender or an accomplice is an offence prescribed by s 32(2)(b) of the Crimes Act 1900 (ACT), for which the maximum penalty is 10 years imprisonment.
As the High Court has pointed out many times, in cases such as Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[31], the maximum penalties provided for a statutory offence are an important yardstick or marker of the seriousness of the offence.
The facts
In this case, there were two incidents, one involving the first offence on 17 December 2014, and the other involving the first and third offences on 27 September 2015.
At about 11:35 am on 17 December 2014, Ms Howsan reversed her Mitsubishi Magna sedan into and through the front sliding doors of a service station shop in Kambah, causing damage to the front sliding doors and shelving units inside the shop.
When police arrived about 20 minutes later, the doors, about two and a half metres high and a metre wide, were hanging out of their guide rails and the pane of glass in one of the doors was shattered but still held within the metal frame of the door. The police saw the display units inside the shop had been pushed aside and a quantity of loose stock strewn over the floor.
Closed circuit television footage captured the incident, showing Ms Howsan driving into the service station forecourt, turning so that the rear of the vehicle aligned with the front doors of the shop and then reversing into the doors. She drove forward a few metres and again reversed into the front doors causing further damage and pushing aside several stock display units, spilling stock from the shelves onto the floor.
In doing so, she narrowly missed contact with the manager of the service station. She then drove forward and left the area.
Later that day, police spoke with Ms Howsan, who admitted the offending. She told police that she had been “having issues”. She had started drinking alcohol about 8:00 am that morning and had consumed about one to one and a half litres of wine.
During the morning, she had also smashed the front window of her residence with a hammer and had driven her car through the front fence of her residence before she had gone to the service station.
When asked why she had done these things, she replied “I just got the idea into my head and then did it”.
She also told police that she thought the service station might be “after” her because she had put petrol in her vehicle the previous day and driven off without paying for the petrol. She declined to participate in a recorded interview.
It appears that she was not arrested as, on 20 October 2015, a summons was issued for her appearance in court to answer that charge. It is not immediately clear to me why it took over 10 months for the summons to issue, despite, as appears below, Ms Howsan being arrested for other offences subsequently. I will address the issue further below. After several adjournments, she pleaded guilty on 10 November 2015 and was committed for sentence to this Court.
In relation to the other offences, Ms Howsan attended a liquor store at Kambah shops at about 12:15 pm on Sunday, 27 September 2015. At the time, one staff member was on duty.
On entering the store, Ms Howsan approached the counter, placed her handbag down and said, “Give me all your money”. The staff member said, “Are you joking?” and Ms Howsan responded, “I’m not. Give me all your money, I’ve got a gun”.
Ms Howsan then asked the staff member to get her a packet of cigarettes from behind the counter, which the staff member did. She then again told the staff member to give her all the money and the staff member complied, handing her all the notes from the till. Ms Howsan placed the money in her handbag.
While she was at the counter, an off duty police officer entered the store. Ms Howsan left the store and the police officer approached the counter asking the staff member if she was ok. The staff member stated that she had just been robbed by the lady at the counter and she would have to close the store. The police officer left the store, following Ms Howsan. They entered the rear car park and the police officer saw Ms Howsan running towards the parkland behind the store. When he was about twenty metres from her, he produced his police warrant card and badge and said, “Stop, Federal Police, you are under arrest”.
Ms Howsan then reached into her bag and produced a steel bladed knife with a black handle, about 10 to 15 centimetres in length, and held it out towards the police officer. She lunged towards him saying, “I will fucking stab you”. The police officer said, “No, you won’t. I won’t let you. Put the knife down and sit on the ground. You are under arrest”.
Ms Howsan remained standing holding the knife in her hand and the police officer maintained a distance of about 10 to 15 metres from her. She advanced towards him a number of times and he backed away.
Ms Howsan said, “Let me go” but the police officer said, “You’re under arrest. You cannot out-run me and you cannot hurt me. You cannot get away as I will follow you. Give up and sit on the ground. Police are coming”.
The police officer then called ACT Police Operations requesting police attendance. A short time later, police arrived at the scene and arrested Ms Howsan.
On arrest, police seized the steel bladed knife, a packet of cigarettes and $1,060.20 in Australian currency. The majority of which, it would appear, came from the robbery.
Conditional liberty
At the time of the offending in September 2015, Ms Howsan was subject to a Good Behaviour Order made on 22 September 2015.
Ms Howsan had committed a number of offences in 2015, for which she was on conditional liberty at the time of committing the most recent offences. The detail of these offences are set out in detail in the remarks on sentence in R v Howsan [2015] ACTSC 215.
A summary of these offences are as follows.
(1) On 22 January 2015, Ms Howsan attended the same petrol station as is the subject of the present offence of damaging property with her car. She was carrying a black handled knife, which she produced and demanded cigarettes. Her behaviour was erratic and, at one point, she placed the knife on top of the counter and specified the particular sort of cigarettes she wanted. The cigarettes had a value of about $30. This constituted the offence of aggravated robbery.
(2) Later that day, while she was at Kambah shopping centre, apparently affected by drugs or alcohol, she saw an ACT Government employee cleaning the toilets. She spoke to him and, when he re-entered the toilets, she jumped into his vehicle which was parked nearby with keys in the ignition. She drove away. This constituted the offence of dishonestly taking a motor vehicle belonging to another person without consent. This is an offence contrary to s 318(1) of the Criminal Code which attracts a maximum penalty of 500 penalty units (that is, at the time, a fine of $75,000) and five years imprisonment.
(3) On 24 January 2015, Ms Howsan attended the liquor store at Kambah which is the subject of the present aggravated robbery offence and collected a number of items of alcohol which she put in her trolley before approaching an employee at the counter. She said she had a knife and the employee could see two knives in a shopping bag that she had with her. She took one out and told the employee to fill up her bag with cigarettes. The employee gave her two packets of cigarettes and she left the store with her shopping bag and the trolley with the cigarettes and alcohol. This constituted the second offence of aggravated robbery.
After taking the ACT Government employee’s vehicle, she was arrested and subject to a road side breath test which returned a positive indication for alcohol. She was taken into custody and subject to breath analysis which showed a reading of .0053 grams of alcohol per 210 litres of breath.
She entered pleas of guilty to these offences and was, on 14 May 2015, committed for sentence to this Court.
On 28 July 2015, she was sentenced in this Court. For the first offence of aggravated robbery she was sentenced to 18 months imprisonment to commence on 24 January 2015, to take into account pre-sentence custody. On the second offence of aggravated robbery she was sentenced to 18 months imprisonment to commence on 24 July 2015, that is to be cumulative as to six months on the sentence for the earlier offence of aggravated robbery. For the offence of dishonestly taking without consent a motor vehicle belonging to another person she was sentenced to three months imprisonment, wholly concurrent on the earlier sentence, to commence on 24 January 2015.
The sentences were suspended on 29 July 2015 when a Good Behaviour Order was made, including conditions that she attend a rehabilitation program. See R v Howsan at [33].
She left the rehabilitation program, however, on 3 August 2015, of her own volition and against the advice of program staff and, on 22 September 2015, appeared in the ACT Supreme Court to deal with the breach of bail constituted by her leaving the rehabilitation program.
She was re-sentenced to a total of 18 months imprisonment to commence on 22 September 2015 for the two aggravated robberies. The sentence for the dishonestly taking without consent a motor vehicle belonging to another person had been completely served.
The sentence was suspended that day and a Good Behaviour Order made with conditions including that she participate in a methadone program.
The offences committed on 27 September 2015, constituted a breach of a core condition of the Good Behaviour Order made on 22 September 2015: s 86(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT). Ms Howsan admitted the breach. I shall have to deal with that when I sentence Ms Howsan.
Subjective circumstances
The personal circumstances of Ms Howsan are set out in the earlier sentencing remarks, R v Howsan at [16]-[25]. I do not need to repeat them.
I summarise her background as follows. Ms Howsan is 39 years of age. She was adopted as a child and does not know her birth parents. As with many adopted children, she had a positive upbringing, though recently there have been some problems between her parents and brother and herself. These seem to arise principally from her abuse of alcohol and drugs.
She completed year 12 and left school to enter a long term relationship, which produced two children, but it was a seriously abusive relationship, overlaid by drug abuse. The children were subject to Child Services supervision from 2009.
She has had some employment in unskilled positions, but not since 2007.
Her drug use commenced with consumption of cannabis in her mid-teens, leading to daily use of amphetamines, subsequently replaced by heroin.
She has engaged in some drug rehabilitation interventions and, in 2001, commenced on a methadone program for treatment which she has generally continued.
Her alcohol use started when she was 16 and quickly got out of control until 2000 when she stopped using, but relapsed in 2014.
Ms Howsan began to experience mental health problems in 2006, perhaps because of her methamphetamine use. She was diagnosed with schizophrenia and depression in about 2008. A Psychiatric Treatment Order was made on 31 January 2013 and has been continuously renewed since then.
In 2014, Ms Howsan relapsed into drug abuse and experienced a deterioration in her mental health. She also resumed abuse of alcohol. This resulted in a number of hospital admissions but, on 13 January 2015, her condition had stabilised sufficiently for her to be discharged into the community.
This, however, did not last and she committed the first aggravated robbery on 22 January 2015 and, following her arrest on 24 January 2015 for the second aggravated robbery, she was re-admitted to the Adult Mental Health Unit. She was, however, not deemed to have committed the robbery because of her psychotic nor depressive disorder and was discharged.
Ms Howsan’s current treatment under a Psychiatric Treatment Order involves fortnightly injections which she is now receiving whilst in custody.
Following her sentencing on 28 July 2015 and her departure from the mandated treatment program, her mental health deteriorated rapidly.
Ms Howsan does not have a long criminal record, although it is becoming more serious more recently. She has a number of offences committed in New South Wales prior to 2000, the date of her most recent offence in that State, the offences being mostly less serious offences or less serious examples of offences, such as damaging property, all of which were either dealt with by a caution, fine or bond.
Since 2007, she has appeared in ACT courts on 11 October 2007, again, for mostly less serious offences, until her conviction on 28 July 2015, for the offences of aggravated robbery and other offences which I have mentioned earlier. She committed no offences between 7 August 2008 and 22 January 2015, which also leads to the conclusion that, when her mental health and her drug addiction is under control, she is unlikely to commit the kind of offences she has more recently committed and that those offences are more likely to be related to her mental impairment and her drug abuse.
Ms Howsan has acknowledged the influence of her poor mental health and substance abuse on her offending behaviour. That is an important insight which should be reflected in the sentencing.
Methadone treatment, however, has generally had a positive effect on her. Although she had re-entered the methadone program prior to the commission of the most recent offences, it had only been for a short period and it was submitted that the ameliorative effects of such a program had not had time to become effective. This treatment regime, however, seems to have been the most effective as, while on the program, she seems to have been free of alcohol abuse and mostly free of drug use.
Ms Howsan has a tenancy of a government home which she will lose as a result of any significant extension of her present custody. That is unfortunate but likely to be the inevitable consequence of her offending.
She is generally polite and co-operative with medical personnel and is said to have a good relationship with the nurses at the opioid treatment centre where she receives her methadone dose.
She is rather isolated in the community and this is a significant risk factor for her re-offending. It is difficult, however, for the court to address this in a sentencing situation.
Ms Howsan has, however, expressed no interest in participating in further residential rehabilitation, such as the GROW Community program which caters for co-morbidity of drug and alcohol use and mental impairment.
It appears that she has been referred to a Mr Panozzo, an ACT Health Alcohol and Drug Service co-morbidity counsellor, whom she has seen, and it has been recommended that she may benefit from further consultations with him.
The offences
Aggravated robbery is a most serious offence; indeed, it is the most serious of the offences of dishonesty in the criminal calendar, aggravated as it is by threats of or actual violence.
The offence committed by Ms Howsan was, however, not the most serious version of the offence. It was aggravated by the possession of a knife which, the courts have consistently held, makes an offence more serious. Nevertheless, she mentioned to the staff member that she had a gun and did not produce the knife.
The experience must have been seriously disturbing and frightening for the victim and I accept that, even though no victim impact statement was provided.
The commission of the offence while Ms Howsan was on conditional liberty was also an aggravating feature, as the courts have consistently held. See, for example, R v Wallace [2007] NSWCCA 63 at [15]. It was more aggravating that the offence was committed only five days after Ms Howsan was admitted to conditional liberty.
Damaging property is also a serious offence but a less serious offence. Part of the seriousness stems from the value of the damage caused. Though I did not have any details of that in this case, I can accept that there would have been a significant cost in repairing the damage that Ms Howsan caused on that occasion.
Neither of these offences were particularly sophisticated, particularly as Ms Howsan was known at both businesses and took no steps to hide her identity. In both cases, her offending was captured clearly on closed circuit television. She also used no actual violence against persons and, indeed, in the aggravated robbery, did not produce the weapon at all.
The offence of preventing lawful detention was a serious version of the offence because the threat was by the use of a knife, though the making of a threat to endanger the person attempting to detain Ms Howsan is an element of the offence itself and the aggravating feature must not double punish her for what is also an element of the offence.
Delay
It is clear that there has been an unexplained delay in the prosecution of the offence of damaging property. None of that delay can be attributable to Ms Howsan. Indeed, she was arrested by police, placed in custody and appeared in court on other charges during the period between the commission of that offence and the date on which the summons for the offence was actually issued.
As pointed out in Mill v The Queen (1988) 166 CLR 59, this delay should be approached as if Ms Howsan had been dealt with for that offence on 29 July 2015, when issues of totality, as at that time, would have been properly addressed.
Mental health
Ms Howsan’s mental health is clearly an issue which needs to be addressed. While there has been some uncertainty in the psychological report of a hospital psychiatrist that this was not related to her offending, the formal report I received from Dr Barker makes it clear that Ms Howsan has “a serious mental illness, exacerbated by her extensive history of drug abuse and/or poor psychological adjustment, low self-esteem, negative peer influences, some borderline personality traits, limited emotional coping skills and significant domestic violence.”
It suggests that, for the earlier offences, she was likely experiencing active symptoms at the time of the offending and this would likely have affected her judgment, especially in rationally assessing the consequences of her behaviour. Her symptoms, however, do not explain her behaviour completely. Nevertheless, I accept that her mental health affected the offences for which I need to deal with her and impose sentences.
As explained in R v Verdins (2007) 16 VR 269 at 276; [32], a serious mental impairment may have, at least, the following relevant impacts on the sentencing for any offence, including a serious offence such as aggravated robbery:
(a) Suffering a mental health condition may ameliorate the offender’s moral culpability. It is clear to me that on 27 September 2015, Ms Howsan was suffering from a serious mental health problem. This does not absolve her of criminal responsibility but it means that her moral culpability of 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, Ms Howsan is not an appropriate vehicle for conveying the sentencing purpose of general deterrence. Specific deterrence is not such an important sentencing purpose in this case because Ms Howsan was not in a right frame of mind at the time of the offences. She has, however, committed additional offences of a similar type and that may bring into play some element of specific deterrence. The offences were out of the offender’s normal character as shown by her earlier history, though there is becoming worrying repetition.
(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 to Ms Howsan, contrary to the submissions of her counsel.
I shall apply these relevant principles.
I do note, however, that Ms Howsan is worryingly tending to resort now to similar serious offending behaviour when her drug abuse and mental illness gets out of control. That cannot be tolerated in our community, despite these ameliorating circumstances.
Consideration
I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). As noted, the role of general deterrence is, while not completely to be disregarded, given less weight than in sentencing a person not mentally affected as is Ms Howsan.
Specific deterrence is not so significant either, but must play some part because of Ms Howsan’s recidivism. Her repeated offending in the same way must be shown to be unacceptable.
Rehabilitation looms large and, while some further period of full time custody is inevitable, the possibility of some structured release into the community is also important, as this will ultimately be the surest protection of the community.
I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act and, so far as I know them, they are set out above and in the remarks on sentence of R v Howsan.
I have regard to the objective seriousness of the offences as I have described them above. I also take into account, however, Ms Howsan’s personal circumstances.
In my view, no penalty other than a term of imprisonment is appropriate, a significant part of which must be served by full-time custody.
I accept that Ms Howsan has also breached the Good Behaviour Order made on 22 September 2015. Under s 110 of the Crimes (Sentence Administration) Act, I may either impose the sentence then suspend it or re-sentence Ms Howsan.
There is, as I have pointed out in Guy v Anderson [2013] ACTSC 5 at [83]-[91], no presumption in favour of imposing the sentence then suspended, but, in this case, the proximity of the re-offending and the nature of the offence makes that option the most appropriate.
I have, however, some concern that the re-sentencing on 22 September 2015 did not appear to take into account the pre-sentence custody which Ms Howsan had served. That is not quite true, since one of the sentences was reduced, which may have had that effect. Nevertheless, given that the breach was her departure from the rehabilitation program and not the commission of further offences and the Good Behaviour Order effectively substituted another rehabilitation regime, it does not appear to me that it would have justified a further six months imprisonment, though that does not appear to have actually occurred.
In order to address this issue, however, I propose to re-sentence Ms Howsan, but to the terms of the original sentences of imprisonment imposed
Given that there are multiple sentences, I have carefully considered the length of each of the sentences to ensure that when there are overlapping common elements between any of the offences, Ms Howsan is not punished twice. I have also considered whether these sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise.
I have then reviewed the length of the total term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed but not more than that, that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of Ms Howsan’s goals when she returns to the community.
Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences. I considered too that Ms Howsan will require a significant period of supervision when released from custody. Due to her mental impairment and the progress she has made, I consider that a shorter than usual non parole period is appropriate.
Ms Howsan, please stand.
1. I convict you of the aggravated robbery on 27 September 2015 (CC 15/9359).
2. I find that this breached the Good Behaviour Order made on 22 September 2015 and I cancel that order.
3. I confirm the conviction for aggravated robbery on 22 January 2015 (CC 15/4820).
4. I sentence you to 18 months imprisonment to commence on 9 September 2015 to take into account pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to two years imprisonment.
5. I confirm the conviction for aggravated robbery on 24 January 2015 (CC 15/1190).
6. I sentence you to 18 months imprisonment to commence today, that is to be cumulative as to six months on the first sentence for aggravated robbery. Had you not pleaded guilty, I would have sentenced you to two years imprisonment.
7. I convict you of damaging property on 17 December 2014 (CC 15/8075).
8. I sentence you to 12 months imprisonment to commence on 9 May 2016, that is to be cumulative as to two months on the sentence for aggravated robbery on 24 January 2015. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
9. I sentence you for the aggravated robbery on 27 September 2015 (CC 15/9359) for 18 months imprisonment to commence on 30 May 2016. That is to be cumulative as to six months on the sentence for damaging property but backdated to take into account your pre-sentence custody of 163 days. Had you not pleaded guilty, I would have sentenced you to two years imprisonment.
10. I convict you of preventing lawful apprehension with a threat on 22 September 2015 (CC15/10574).
11. I sentence you to nine months imprisonment to commence on 30 March 2017 and that is to be cumulative as to one month on the sentence for aggravated robbery on 27 September 2015. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.
12. That is a total sentence of two years, three months and 21 days.
13. I set a non-parole period of 12 months to commence on 9 September 2015 and end on 8 September 2016.
14. I recommend to the Sentence Administration Board that they consider a condition to maintain your participation in the methadone program and possibly counselling with Mr Panozzo, if that is appropriate.
[His Honour then spoke directly to Ms Howsan]
Ms Howsan, you probably understand what I have said but that is the formal legal order that I have made. I have said, taking everything into account, that it seemed to me that something in excess of two years and nine months was the appropriate period of imprisonment.
However, I do not expect you to serve that whole period of time in custody and I have set a non-parole period of twelve months to allow you to be released in September of this year, if you are able to satisfy the Sentence Administration Board that you should be released. Your compliance in prison will be important. It is possible that, if you undertake programs or assistance in prison to make sure that you continue on your methadone program and that you have some kind of interaction with Mental Health Services so that your treatment order is continued and that you have that under control, the Sentence Administration Board hopefully will allow you out.
There is a long period of parole with that hanging over your head but I think, in the circumstances, you need that kind of support at this stage and particularly when you get out. You are going to be vulnerable, as we have seen in the past. Hopefully this period of time will be therapeutic for you, so that you get your head in the right space so that, when you leave, things will not go crazy and that you will not repeat this kind of offending and you will have some support.
Hopefully your parole officer can assist you with some kind of activities at some of kind of agencies that might be able to assist you. You will rely on the nurses at the OTC and that is a good thing. That is great, but you cannot rely on them for the whole of your time out in the community.
I hope that you will be able to manage this. You were able, between 2008 and 2014, to manage your alcohol abuse, to manage your drug abuse and to be under appropriate care for your mental health. Hopefully you can get back to that and this will be a sad, serious, but isolated, incident that you can put behind you.
| I certify that the preceding ninety-six [96] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 21 March 2016 |
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