R v Kaihea
[2020] ACTSC 17
•17 April 2019 and 28 January 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kaihea |
Citation: | [2020] ACTSC 17 |
Hearing Date: | 17 April, 16 July, 22 July, 16 October, 2 September, 2 December 2019 and 28 January 2020 |
DecisionDate: | 17 April 2019 and 28 January 2020 |
Before: | Murrell CJ |
Decision: | Sentenced to imprisonment from 28 January 2020 to 11 March 2021, fully suspended for a drug and alcohol treatment order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Offence of aggravated robbery – When the offence was committed while the offender was on conditional liberty – Good behaviour order cancelled and offender resentenced – Drug and alcohol treatment order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 107(1), 110 Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A, 33 Criminal Code 2002 (ACT) s 310(b) |
Parties: | The Queen (Crown) Katalina Ruth Lotiola Kaihea (Offender) |
Representation: | Counsel V Conliffe / J Hiscox (Crown) J De Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 252 of 2018 SCC 253 of 2018 |
Murrell CJ
Offences
The offender was committed for sentence for the offence that, on 25 May 2018, she dishonestly appropriated property of David Jones Pty Ltd, and that immediately after doing so she threatened to use force with the intention of escaping the scene and that she had an offensive weapon (a syringe) with her.
The offence of aggravated robbery is contrary to s 310(b) of the Criminal Code 2002 (ACT) (Criminal Code). It carries a maximum penalty of 25 years’ imprisonment and/or a fine.
The offence was committed while the offender was on conditional liberty as she was subject to good behaviour orders imposed by the Magistrates Court on 1 June 2017. Pursuant to ss 107(1) and 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), the Court is also to deal with those breaches.
The offender spent 181 days in custody (25 May 2018 to 21 November 2018, which I will treat as six months) before being released on bail to attend Wayback, a residential rehabilitation facility.
On 16 July 2019, counsel for the offender informed me that the offender had been suspended from Wayback after she had failed to attend a meeting. I issued a warrant for her arrest for breach of bail conditions.
On 22 July 2019, the offender attended Court before the warrant had been executed. I withdrew the warrant and adjourned the sentence proceedings, bail refused. I indicated that the offender would be remanded in custody until further information about rehabilitation options could be obtained.
On 16 October 2019, the offender indicated that she had not been accepted back into the Wayback program.
On 2 December 2019, I referred the offender for a DASL eligibility screening assessment. The following day, Walker AJ granted her bail to undergo a DASL suitability assessment.
The offender spent 140 days in custody following her suspension from Wayback. She has spent a total of 321 days (181 days plus 140 days) in custody in relation to these offences.
Facts of breach offences
10. On 22 December 2016, police approached the offender in relation to a breach of bail conditions. She repeatedly provided them with a false name and falsely stated that she was visiting the ACT from Queensland. When police seized her left wrist, she tried to break free. When she could not free her arm, she stated that she had an uncapped syringe in her pocket and threatened that the police would “get sticked”. She pulled her arm free and ran away. After chasing the offender for about 200 metres, the police captured her and applied handcuffs.
11. The offender was charged with resisting a public official and escaping arrest. She pleaded guilty to each charge. On 1 June 2017, she was sentenced to five months’ imprisonment and two months’ imprisonment respectively. Each sentence was suspended upon entering a 12-month good behaviour order, from 1 June 2017 to 31 May 2018.
Facts of aggravated robbery offence
12. The offence of aggravated robbery was committed on 25 May 2018, in the final month of the good behaviour orders.
13. In September 2017, the offender had been banned from entering or remaining in the Canberra Centre for a period of 12 months.
14. On the afternoon of 25 May 2018, the offender attended the Canberra Centre and entered the David Jones Department Store. She placed clothing and other items valued at $767.75 into a plastic David Jones bag.
15. When the offender left the store, she was followed by two loss prevention officers, who asked her to return to the store. She walked back into the store. As she did so, she reached into her backpack and produced an uncapped syringe, which she presented to the officers, telling them that she had HIV and would stab them. When they stepped back, she left the store.
16. Three loss prevention officers and a Canberra Centre security staff member followed the offender. She entered a taxi. The officers waved it down.
17. The offender exited the taxi and approached a vehicle being driven by a female civilian. The offender begged for help, asserting that she was being chased by a group of men. She entered the civilian’s car. The civilian asked her to leave the car. The officers approached the vehicle and began banging on it. The offender produced a pocketknife, held it about 30 centimetres from the civilian’s face, and instructed her to drive away. The offender said that she was not going to hurt the civilian but needed to escape. The civilian pulled into the Dickson Bus Interchange and told the offender to leave the vehicle. The offender got out of the vehicle.
18. The civilian reported the incident to police. The offender was arrested later that evening. Due to the asserted recent consumption of heroin, she could not be interviewed. On 4 August 2018, she made limited admissions but denied the most serious aspects of the incident.
Objective seriousness
19. As indicated by the maximum penalty of 25 years’ imprisonment, any offence of aggravated robbery is a very serious matter.
20. I accept that the incident started as a simple theft and that the threat of force arose only in relation to escaping, not in relation to obtaining the property in the first place. I also accept that, while there was a threat of force, there was no direct physical application of force.
21. However, the episode bears significant seriousness because, in the course of the escape, there were two relatively separate incidents in which, by different means and at different times, numerous different victims were subjected to frightening threats that were associated with the use of a weapon (a syringe and then a knife).
22. It is of concern that the circumstances in which the offence occurred were similar to the incidents that are the subject of the breach of good behaviour orders.
Plea
23. The offender entered an early plea of guilty to the offence of aggravated robbery (concerning her conduct at David Jones) but a plea of not guilty to a charge of making a demand with a threat (relating to her conduct concerning the civilian).
24. At criminal case conferencing in the Supreme Court, the parties agreed that the plea of guilty would encapsulate the entirety of the offender’s conduct, including her conduct towards the officers at David Jones and the civilian driver. The agreement was made before the case was fixed for trial.
25. In these circumstances, it is appropriate to allow a discount of 20 per cent on the sentence that would otherwise have been imposed.
Subjective circumstances
26. The offender is 29 years old. She was 28 years old at the date of the offence.
27. Her lengthy criminal history dates from 2009, but the offences upon it are relatively minor. They include driving offences (including driving while disqualified and driving while affected by alcohol or a drug), several offences of minor theft, and minor drug matters. Generally, she has been penalised by way of a fine or a short good behaviour order. Previously, the offender has not served a sentence of fulltime imprisonment.
28. The offender is of Aboriginal background. She experienced a tumultuous upbringing. Her parents separated before she was born. Until she was eight years of age, she was raised by her mother, who consumed alcohol and illicit drugs at a problematic level. Between eight and 12 years of age, the offender resided with her father, a committed churchgoer. At 12 years of age, she relocated to the ACT to reside with her mother and siblings.
29. Recently, the offender reconnected with her father; she now sees him on weekends. The offender described her relationship with her mother as founded on their mutual interest in substance abuse, but stated that they are building a “healthier relationship”. She has positive relationships with four of her five siblings.
30. The offender has four children who reside in the ACT with her ex-partner. After the children were removed from her care in 2016, the offender maintained regular contact with them. I assume that the contact is ongoing.
31. At 13 years of age, the offender commenced binge drinking and illicit substance use, including the use of cannabis and methylamphetamines. By 17, she had begun to use heroin. From 19 years of age, she abused prescription medications. She maintained a polysubstance abuse problem at a moderate level until November 2018, when she entered Wayback. In February 2019, she was suspended from the program for two weeks for consuming illicit substances. Thereafter, she was readmitted.
32. A report from Wayback dated 15 April 2019 stated that the offender had progressed to Phase 2 of the program and had no demerit points or sanctions, reflecting her ongoing commitment to recovery. As a Phase 2 participant, she resided in a community house and complied with residency conditions, including a strict overnight curfew, twice weekly drug testing and pharmacotherapy. The report stated that she had last abused substances (benzodiazepines) on 11 March 2019.
33. As noted above, the offender was suspended from the Wayback program in July 2019 and failed to gain readmission.
34. The DASL suitability assessment report dated 23 January 2020 indicated that the offender had last used heroin and methylamphetamine on 19 January 2020, while on bail and undergoing assessment for a drug and alcohol treatment order.
35. The offender has accepted responsibility for her actions, appreciates the impact on the victims and understands the relationship between her criminality and her substance abuse.
36. In the past, the offender’s compliance with good behaviour orders has been mixed. She has been assessed as at medium to high risk of general re-offending, her primary risk factor being the history of substance abuse. The authors of the pre-sentence report had previously recommended that sentencing be deferred to enable the offender to complete the Wayback residential rehabilitation program.
Other sentencing considerations
37. The Court has regard to the factors in s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), insofar as they are known and relevant. The most relevant factors are referred to above.
38. Sentencing purposes are set out in s 7 of the Sentencing Act. The seriousness of the offence calls for a period of fulltime imprisonment to address sentencing purposes such as general and personal deterrence, accountability, and denunciation.
39. The offender has considerable insight into her substance abuse problem and its relationship with her criminality. She has engaged in a demanding rehabilitation program. She may well have reached a turning point in her life. Consequently, rehabilitation is an important sentencing purpose.
40. The time spent productively in residential rehabilitation will be deducted from the otherwise appropriate period of fulltime imprisonment at a rate of about 50 per cent.
41. The offender has been assessed as suitable for a drug and alcohol treatment order.
Sentence
42. On 17 April 2019, I found that the breach of each good behaviour order was established. I cancelled the good behaviour orders pursuant to s 110 of the Sentence Administration Act and imposed the original sentences:
(a)Resist Territory public official—two months’ imprisonment, from 25 May 2018 to 24 July 2018.
(b)Escape from arrest or custody—five months’ imprisonment, from 25 May 2018 to 24 October 2018.
These sentences have expired.
43. In relation to the offence of aggravated robbery, on 17 April 2019, I recorded a conviction and indicated that the appropriate sentence starting point for the sentence was two years and six months’ imprisonment, reduced by 20 per cent for the plea of guilty to two years’ imprisonment. I indicated that I would have made this sentence concurrent with the sentences for the breach offences for a period of three months, i.e. I would have imposed a cumulative period of one year and nine months’ imprisonment. I indicated that I would allow a further two months for the time that the offender had spent in residential rehabilitation to that date. With backdating, this would have seen the offender spend one year and seven months in prison, from 17 April 2019. I adjourned sentence proceedings to permit the offender to undertake further rehabilitation.
44. Having regard to the sentences indicated on previous occasions, the fact that the offender spent the period from 22 July 2019 to 3 December 2019 in custody and to the fact that s 12A of the Sentencing Act requires there to be a fully suspended sentence if a drug and alcohol treatment order is made, the offender is sentenced for the offence of aggravated robbery to imprisonment from 28 January 2020 to 11 March 2021.
45. I make a drug and alcohol treatment order fully suspending that sentence.
46. I am satisfied of the matters referred to in s 12A(2)(a) and I consider the making of such an order to be appropriate, taking into account the matters set out in s 12A(2)(b). I note that the offender has given informed consent to the order being made, pursuant to s 12A(2)(c).
47. The order will record that the offender's conviction is for the offence of aggravated robbery and that the total period for which the order is in force is from today until 11 March 2021, which is the custodial part of the sentence.
48. The treatment and supervision part will be a period of at least 12 months from today, or such further period as the supervising judges or judge directs. I require the offender to sign an undertaking to comply with the order and any other obligations under the Sentence Administration Act.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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