R v Humphries
[2021] ACTSC 79
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Humphries |
Citation: | [2021] ACTSC 79 |
Hearing Date: | 28 April 2021 |
DecisionDate: | 28 April 2021 |
Before: | Mossop J |
Decision: | See [45] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated burglary – young offender – limited criminal history – strong prospects of rehabilitation – suspended sentence with good behaviour order and community service work condition imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), s 312 |
Cases Cited: | R v Catania [2017] ACTSC 264 R v Facer [2020] ACTSC 342 R v TauiliiIi [2020] ACTSC 11 |
Parties: | The Queen ( Crown) Letitia Humphries ( Offender) |
Representation: | Counsel K Marson ( Crown) S Zahnleiter ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 294 of 2020 |
MOSSOP J:
Introduction
The offender, Letitia Humphries, has pleaded guilty to one count of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty is a fine of $320,000, 20 years’ imprisonment or both.
Facts
The facts are agreed and are, in summary, as follows.
On 9 July 2020 at around 7:30pm, the offender and two of her co-offenders, Tianna Robb and Dylan Crick, went to Lighthouse Bar in Canberra. By around 8:45pm, the offender and Ms Robb were intoxicated. At some point after 8:45pm, the three left the bar and went to the Wanderlust adult club in Mitchell.
At approximately 10pm, the three were joined by Morgan Facer and Jordan Knight. Each member of the group knew the other. At some point in the night, the group began to speak to Marco Marzotto who was not previously known to members of the group. This conversation was captured on CCTV.
While at the club, Ms Robb became upset after members of the group began discussing a previous incident that involved Ms Robb and one of the victims, HG. Ms Robb alleged HG had raped her. There was also a suggestion that HG had circulated a video of the offender and Mr Crick engaged in sexual acts. One of the men in the group then suggested that they go talk to HG.
At some point, Ms Facer heard either Mr Crick or Mr Knight say words to the effect of “let’s go for a drive”. Ms Facer was asked to drive by Mr Crick. The offender, Mr Marzotto, Mr Crick, Mr Knight and Ms Robb got into Ms Facer’s vehicle and left the club at around 1:46am.
At about 2am, they arrived at an address in Spence. All of the members of the group, except Ms Facer who got back into the car, went to the front door of the property and began yelling for HG to come out of the house. After members of the group tried to kick in the front door, Mr Marzotto and either Mr Crick or Mr Knight went to the window adjacent to the front door. Either Mr Marzotto or Mr Knight threw something at the window and began punching the window until it broke. The group then entered through the broken window.
HG was inside the property with his mother, OG, and his sister, IG, who was pregnant. On hearing the noise from outside, he entered his mother’s bedroom and asked if she had heard anything. OG exited the bedroom to investigate and saw five people in the loungeroom. She began walking to the loungeroom. IG joined her mother in the loungeroom shortly after.
One of the male co-offenders pushed OG up the hallway back towards her bedroom and said, “if you don’t shut up, I’ll knock you out”. OG heard members of the group shouting that they wanted to kill HG.
10. The same man pushed IG into her mother’s bedroom, applying force to her upper body. He did not stop pushing IG or using force even after IG told him she was pregnant.
11. The man who pushed OG and IG then entered OG’s bedroom where HG was located. The other members of the group entered behind him. HG recognised Mr Crick and Mr Knight who he had known for approximately eight or nine years, as well as Ms Robb who he had known for two years and the offender who he had known for around 12 months. He did not recognise Mr Marzotto.
12. After entering, Mr Marzotto swung his arm at HG in an attempt to punch his upper body and head area. The punch did not land. However, HG landed on his back on the bed in his attempt to evade the punch. Mr Knight then held HG’s hand behind his back. Mr Crick punched HG with a closed fist two times in the head, once in the left eye and once in the head area.
13. Mr Knight then let go of HG’s hands and punched him in the ribs and the back of his head from behind, several times. Mr Crick was standing over the top of HG on the bed. HG heard Mr Crick asking, “where is your phone, where is your phone?”.
14. Mr Marzotto then picked up a decorative glass plate that was located nearby and smashed it on the back of HG’s head. This caused a small laceration. Ms Robb and the offender were in the bedroom at the time this occurred. Ms Robb was heard apologising a number of times.
15. Mr Crick grabbed HG’s mobile phone, another phone and iPod. The group then ran out the front door and got into the car with Ms Facer. Ms Facer observed each member of the group, including the offender to have blood on them.
16. They then returned to the Wanderlast club where the two mobile phones were destroyed.
17. At around the time the group left the premises, OG called ‘000’ to report the incident. Police arrived at the scene at 2:11am and 2:15am. HG told the officers who attended the scene that he recognised four of the five co-offenders. He identified the offender, Ms Robb, Mr Knight and Mr Crick. He provided police with a description of Mr Marzotto
18. HG declined to be transported to hospital by ACT Ambulance. IG was transported to hospital for observation due to her pregnancy and a high blood pressure reading.
19. Police arrested the offender, Ms Robb and Mr Crick at the Rex Hotel on the evening of 10 July 2020 after they were involved in an unrelated disturbance. The offender participated in a forensic procedure on 11 July 2020.
Objective seriousness
20. The offender entered the premises with four co-offenders. She did not participate in the kicking of the door or the breaking of the window. She did enter the premises through the broken window. Once inside she did not participate in the offence other than to be in the bedroom when HG was assaulted. The objective seriousness of her conduct is significantly less than that of Mr Marzotto, Mr Crick and Mr Knight who played a greater role in gaining access to the premises. Having said that, the incident involved what may be described as a home invasion, that is, the invasion of someone’s home by a group of people at a time when the residents are expected to be at home. The offending is at the low end of the mid‑range of objective seriousness for this offence.
Subjective circumstances
21. The offender’s subjective circumstances are described in a pre-sentence report dated 19 January 2021.
22. The offender is 21 years old. She is currently on supervised bail.
23. The offender was born and raised in Canberra. She is one of seven siblings in a blended family and one of four children from her parents’ union. She reported having minimal contact with her three older half siblings and her relationship with her brothers has been negatively impacted by her offending. However, she has a close and supportive relationship with one sister.
24. The offender reported that her childhood had been negatively affected by her father’s alcohol misuse and her parents’ frequent fighting. The offender’s mother advised that she and the offender’s father remain supportive and caring towards their daughter despite being disappointed by her recent offending.
25. The offender completed Year 12 in traditional schooling and reports receiving average grades. She has been employed in the hospitality industry in various positions since the age of 16 years. She held one position for a continuous two-year period. At the date of the pre-sentence report, she was in receipt of a Centrelink benefit but she is currently employed in a café as well as in a restaurant. She has also enrolled in a Certificate III in business administration at the Canberra Institute of Technology.
26. She resides in a two-bedroom private rental with a friend. She is single and has no dependents.
27. The offender’s drug misuse over a 12-month period was assessed by the author of the report as being at a moderate level. She started using cannabis at the age of 16 years, methylenedioxymethamphetamine (MDMA) at 17 years old and cocaine at the age of 18 years. While her cannabis use was reported to be infrequent, she reported that she used MDMA socially most weekends and that her cocaine use was becoming more frequent up until the date of the offending.
28. Since being released on bail, she reported having ceased illicit drug use and alcohol misuse because of her bail conditions. She returned negative urinalysis tests for illicit substances on 26 August 2020, 29 October 2020 and 18 January 2021.
29. The offender has been diagnosed with depression and anxiety and has a history of self‑harm. She currently takes a drug to treat depression and anxiety and her conditions are managed privately by a general practitioner.
30. The offender reported that she did not participate in any structured leisure activities and at times felt bored and socially isolated. Her spare time is spent cleaning or at the gym. She has a mix of prosocial and antisocial friends.
31. She told the author of the report that she agreed with the Statement of Facts, and in particular, she agreed that her actions were unlawful and that the offending behaviour was premeditated. She indicated that on the night of the incident, she was impaired by intoxication having consumed unknown quantities of alcohol and cocaine. She was able to identify intoxication, anger at the victims and antisocial companions as factors that contributed to her offending.
32. The author of the report observed that the offender displayed a level of empathy for the victims of the offending, however, she was also observed minimising and justifying her actions by reference to prior incidents that had resulted in anger towards the victims.
33. The offender was assessed by the author of the pre-sentence report as being suitable for a good behaviour order with a medium level of intervention by ACT Corrective Services and as able to serve a community service work condition. However, she was assessed as being not suitable for an intensive correction order (ICO) as she did not provide consent to being placed on such an order. At the sentencing hearing, the submission was made that she would be prepared to be assessed for suitability for an ICO.
34. The offender also tendered three references, two of which relate to her time working at a coffee shop in Charnwood. There was a further reference from a person who knows her through work. Each were positive about her conduct and character. A letter to the court from the offender was also tendered which recorded her remorse and intention to change from the situation that she was in at the time of her offending.
35. Medical records were also tendered indicating that she presented with anxiety, anger management problems, depression and panic attacks. A medical certificate from her doctor indicated that “some progress has been made with psychological therapy, medication and lifestyle changes” and the doctor indicates that she has a good prognosis for continued improvement.
36. She indicated an intention to provide evidence at any trial of her co-offenders. She indicated that she would comply with any subpoena to give evidence, would give evidence of the names of all of the people involved in the offending consistent with the statement of facts and would provide to the Crown a statement which she signed on 3 August 2020.
Criminal history
37. The offender has one previous charge for driving a motor vehicle with alcohol in her blood or breath on 6 March 2020. That offence was proved without conviction in the Magistrates Court and a good behaviour order imposed for a period of three months.
Plea of guilty
38. The offender plead guilty to this offence at the seventh mention in the Magistrates Court on 16 December 2020. This is a relatively early plea of guilty and I will allow a reduction of 25 percent on the custodial sentence that I would otherwise have imposed.
Time in custody
39. The offender spent three days in custody for this offence after her arrest. She was released on bail on 13 July 2020 following an appearance in the Magistrates Court.
Comparable cases
40. I take into account the sentencing decisions in R v Kelly [2017] ACTSC 285, R v King [2017] ACTSC 252; R v Catania [2017] ACTSC 264 and R v TauiliiIi [2020] ACTSC 11, all of which I was referred to.
41. I have also taken into account the sentencing decision in R v Facer [2020] ACTSC 342. Ms Facer who drove the vehicle to the premises but did not participate in the home invasion was charged with aggravated burglary (as an aider and abettor) and received a conviction with a good behaviour order for a period of two years and 200 hours of community service.
Consideration
42. While the offending in the present case is very serious, the offender’s role was less than the co-offenders who entered the building with her. The offence involved drunken and drug affected vigilante justice arising from perceived wrongs of the victim, HG. Plainly enough specific and general deterrence, denunciation and recognition of harm done to the victims are all important sentencing considerations in relation to such offending. However, it is important to bear in mind the offender’s youth and the fact that she appears to have made positive changes since the offending. Given the offender’s limited criminal history, her youth and the positive changes that have occurred since the offending, she may be sentenced with relative leniency.
43. Although there was considerable discussion at the sentencing hearing of the significance of the assistance that she might give to law enforcement or the administration of justice by reason of her preparedness to give evidence at any trial of her co-offenders, I have not reduced the penalty that I would otherwise have imposed because of those undertakings. That is not because I have not taken the assistance into account but rather because the assistance that will be given to police and the administration of justice is relatively modest in the circumstances of this case and the principal factors influencing the appropriate disposition are the offender’s youth and prospects of rehabilitation.
44. While a custodial sentence is clearly the only appropriate sentence having regard to the available options it is not essential that she serve a period of full-time detention. The starting point is, in my view, a sentence of 16 months’ imprisonment reduced to 12 months on account of the plea of guilty. The sentence will be wholly suspended subject to a good behaviour order for a period of 24 months with a probation condition and a requirement that she perform 80 hours of community service within 24 months.
Orders
45. The orders of the Court are:
1. On the charge of aggravated burglary (CC2020/8373) the offender is convicted and sentenced to imprisonment for a period of 12 months but that sentence is suspended forthwith upon the offender entering into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years and that for the period of two years or such shorter period as is determined by the Director-General the offender is to be on probation subject to the supervision of the Director-General and obey all reasonable directions of the Director-General and is to perform 80 hours of community service within 24 months.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 13 May 2021 |
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