R v Jones
[2020] ACTSC 329
•9 December 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Jones |
Citation: | [2020] ACTSC 329 |
Hearing Date: | 9 December 2020 |
DecisionDate: | 9 December 2020 |
Before: | Elkaim J |
Decision: | [27] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence – joint commission aggravated robbery – guilty verdict – suspended sentence |
Cases Cited: | R v Murray [2016] ACTSC 173 Apps v The Queen [2020] ACTCA 53 |
Parties: | The Queen (Crown) Melanie Jones (Offender) |
Representation: | Counsel R Christensen (Crown) M Sahu Khan (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service ACT/NSW (Offender) | |
File Numbers: | SCC 82 of 2020; SCC 83 of 2020 |
ELKAIM J:
The offender came to trial before a jury on 24 November 2020. She faced a single charge of aggravated robbery. A co-accused, Mr Daniel Craft, faced the same charge.
The maximum penalty for an aggravated robbery is 25 years imprisonment and/or a fine of $400,000.
On 30 November 2020 the jury found the offender guilty. Mr Craft was found not guilty.
In short summary the Crown alleged that in the early hours of 12 December 2019 a Mr Pasha was lured to a baseball park in Narrabundah where two men set upon him, together with the offender, stole his Mercedes-Benz motorcar. Mr Pasha suffered significant injuries including two long gashes to the head and a broken finger.
The offender was charged on a joint commission basis alleging that she had agreed with the two men that Mr Pasha would be robbed. Mr Craft was alleged to be one of the two men.
Following her arrest, the offender participated in a recorded record of interview with the police. In this interview she accepted that she had been present at the baseball park but said that she had been alone and that she had caused the injuries suffered by Mr Pasha in her endeavours to ward off his inappropriate advances. On this version neither of the two men was present in the park or took any part in causing the injuries suffered by Mr Pasha.
Mr Craft also gave an interview to the police in which he denied being present at the park.
It is evident from the verdicts given by the jury that Ms Jones’s version was not accepted and that the Crown had proved its case against her. It is to be recalled that on her version she was present at the ballpark and she did not dispute the injuries suffered by Mr Pasha.
Although, at first sight, there might seem to be an inconsistency in the jury verdicts, in that if the jury rejected Ms Jones’ version it followed that Mr Pasha had been attacked by the two men, logically including Mr Craft. The difficulty for the Crown however, in respect of Mr Craft, was that although he had been identified in the presence of Mr Pasha at a different location before the assault, the evidence placing him in the ballpark was weak.
It was therefore entirely open to the jury to find that Mr Pasha had been assaulted by two men but remain not satisfied beyond reasonable doubt that Mr Craft was one of those two men.
There may be a subtle irony in that if Mr Craft was in fact one of the two robbers he has spent, to date, about the same time in custody as Ms Jones.
The Crown accepts that proof of its case does not involve there having been a firearm present in the circumstances of the assault.
There is also a charge transferred from the Magistrates Court of driving while disqualified, as a repeat offender. Ms Jones acknowledged the commission of this offence in her record of interview and again through her counsel following the jury verdict. The offence carries a maximum penalty of one year imprisonment and/or a fine of $16,000. There is an automatic licence disqualification for a period of 24 months or longer.
Ms Jones has a lengthy criminal record. There are lots of driving offences but also no offences of violence. There are some offences relating to the care of animals.
Ms Jones was born in 1989. She is of Aboriginal heritage. She is one of 11 children. When she was 5 years of age she was placed in care although later returned to her mother before setting off on her own.
The offender did eventually complete Year 12, but she has had little employment since. She has 2 children. She has a long history of drug and alcohol problems. She started smoking cannabis when she was 8 years of age.
She has a truly tragic background. She started living in a refuge when barely a teenager. She has been abused, sexually, physically and emotionally. She has serious mental health problems. She has attempted suicide on a number of occasions.
A mental health assessment in May 2020 said the following:
Ms Freeman-Jones’ clinical presentation is complex, due to her history of substance use, personality vulnerabilities, complex trauma and multiple diagnoses. Ms Freeman-Jones has a history of diagnoses including Bipolar Affective Disorder, Borderline Personality Disorder, complex PTSD, polysubstance use disorder and drug induced psychotic symptoms.
The victim of the robbery was badly injured. He suffered significant gashes to his head as well as a broken finger. Some of the injuries can be seen in the photographs which were tendered during the trial.
On the Crown case, which the jury must be taken to have accepted, there was a degree of planning involved in delivering the victim to the scene and then bashing him, apparently for the sole purpose of driving away in a worn out Mercedes-Benz which had travelled over 200,000 km.
The crime was senseless and no doubt motivated by wanting to have a good time, induced by drugs and alcohol, for the short term pleasure of stealing the victim’s motor car.
The victim was a somewhat unappealing person. He was spending the evening driving while intoxicated, under the influence of cannabis and in breach of bail conditions to which he was subject. Nevertheless, he was significantly injured and the criminal law does not cater for contributory negligence.
Because of the planning and the extent of injury, the offence is at about the mid-range of objective seriousness.
I note the Crown has said I can have guidance from the cases of R v Murray [2016] ACTSC 173 and Apps v The Queen [2020] ACTCA 53.
The offender’s criminal history makes it difficult to mitigate her sentence. However her personal history, including her upbringing and mental health problems, callout for leniency. The version given to the police was obviously fabricated, at best a somewhat amateur attempt to protect the identity of the two co-offenders.
The offender has been in custody since 12 December 2019, although her period in custody attributable to this offence is from 11 March 2020. I think that is enough. The seriousness of the crime demands a longer term of imprisonment but I think the balance of any term can be served out of prison. I intend to suspend the rest of her sentence subject to a Good Behaviour Order. In doing so, I am giving particular relevance to the hope of rehabilitation
The order of the Court is:
(a)For the offence of joint commission aggravated robbery (CC13202/2019) the offender is sentenced to three years imprisonment to commence on 11 March 2020 and end on 10 March 2023
(b)For the offence of driving while disqualified as a repeat offender (CC13204/2019), the offender is sentenced to two months imprisonment to commence on 11 March 2020 and end on 10 May 2020.
(c)The above sentence of imprisonment is suspended with immediate effect on condition that the offender enter a Good Behaviour order from 9 December 2020 until 10 March 2023 on core conditions.
(d)Additional conditions of the Good Behaviour order are that:
(i)The offender reports to Corrective Services within one working day of release, the report to be in person.
(ii)The offender is to reside at the residence of her father at Waramanga or ACT Housing or as directed by Corrective Services.
(iii)The offender is to engage and participate in the Yarrabi Bamirr Program for as long as Tjillari Justice considers appropriate.
(iv)The offender is to submit to the supervision of Corrective Services, including undertaking all treatment and other programs recommended by Corrective Services and to submit to all requests for drug testing.
(v)The period of supervision is to be at least 18 months from the release date. Thereafter, Corrective Services may terminate supervision if they consider it appropriate to do so.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 9 December 2020 |
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Amendments
16 December 2020 replace “The above sentence of imprisonment is suspended with immediate effect on condition that the offender enter a Good Behaviour order for a period of 18 months commencing today on core conditions” with “The above sentence of imprisonment is suspended with immediate effect on condition that the offender enter a Good Behaviour order from 9 December 2020 until 10 March 2023 on core conditions”. Paragraph: [27(c)]
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