R v Nd
[2016] ACTSC 224
•16 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v ND |
Citation: | [2016] ACTSC 224 |
Hearing Date: | 16 August 2016 |
DecisionDate: | 16 August 2016 |
Before: | Elkaim J |
Decision: | i. On Count 1, the offender is sentenced to a period of imprisonment of 15 months to be served by way of an Intensive Correction Order to commence today, 16 August 2016 and end on 15 November 2017, with the offender to be released immediately. ii. On Count 2, the offender is sentenced to a period of imprisonment of 10 months, to be served by way of an Intensive Correction Order to commence today, 16 August 2016 and end on 15 June 2017, with the offender to be released immediately. iii. The offender is to report to ACT Corrective Services within 24 hours. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unlawfully take away a child – aided aggravated burglary – Intensive Correction Order |
Legislation Cited: | Crimes Act 1900 (ACT), s 40(a) Crimes (Sentencing) Act 2005 (ACT), ss 6,7,33(1)(za) Criminal Code 2002 (ACT), ss 312, 45A |
Cases Cited: | Carpenter v Purcell [2008] ACTSC 34 (28 April 2008) R v Drury [2016] ACTSC 39 WNB v The Queen [2006] NSWCCA 269 |
Parties: | The Queen (Crown) ND (Offender) |
Representation: | Counsel Ms J Campbell (Crown) Mr D Perkins (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Daryl Perkins Solicitor (Offender) | |
File Number: | SCC 248 of 2015 |
Publication Restriction: | The identity of the offender and her daughter are suppressed. |
ELKAIM J:
Introduction
The names of the offender and her daughter have been anonymised in line with suppression orders already made.
On 7 March 2016 the offender pleaded guilty to the following two charges:
Count 1 – That between 13 August 2015 and 14 August 2015, the offender by force and deception took a child under the age of 12 years, intending unlawfully to deprive another person of the lawful control of the child.
Count 2 – That on 13 August 2015, the offender aided Jesse Drury to enter a building as a trespasser with intent to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building and at the time Jesse Drury had an offensive weapon with him.
Count 1 was committed in contravention of s 40(a) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is imprisonment for 10 years.
Count 2 was committed in contravention of s 312 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT). The maximum penalty for this offence is a fine of $300,000, imprisonment for 20 years, or both.
On the same day the offender was referred for an intensive correction assessment. A report was prepared and is dated 24 May 2016. The recommendation of the report is that the offender is suitable for an Intensive Correction Order (“ICO”). The report notes that the offender has signed an undertaking to comply with all the obligations of such an order.
The matter was due to return to court some time ago but there have been a number of delays for various reasons but, most significantly, including the offender being involved in a motor vehicle accident in which she suffered potentially very significant injuries. She appeared today wearing a neck brace and I was informed that she is due to have further radiological testing. She is on painkillers and is also taking antidepressant medication, although the latter has been the case for some time.
At the commencement of the hearing learned counsel for the offender signalled that he had had some difficulty taking instructions and foreshadowed an application for an adjournment. I indicated that I thought an ICO was appropriate. The Crown said it would not oppose such an order. This led counsel to seek a short adjournment to obtain instructions.
Upon resumption counsel indicated that the offender wished to continue with the sentence hearing.
Background facts
The offender has a daughter who I will refer to as IL. The daughter was born on 10 April 2014. The offender is herself only 19 years of age.
On 18 December 2014, a Care and Protection Order was made in the ACT Childrens Court giving the Director-General of the Community Services Directorate supervision over IL for one year. Limited contact orders were made to allow the offender to see IL.
In May 2015 the offender’s contact with IL was reduced to one supervised weekly visit for two hours. These visits took place at the Barnardos designated meeting house in Scullin.
At this time the offender was living in a de facto relationship with Mr Jesse Drury. Mr Drury also pleaded guilty to similar offences and was sentenced by Burns J on 29 February 2016 (R v Drury [2016] ACTSC 39). He was sentenced as follows:
27.I record a conviction with respect to the charge of aggravated burglary and sentence you to 20 months imprisonment commencing on 14 August 2015, which is the date that you were arrested, and expiring on 13 April 2017.
28.I record a conviction with respect to the charge of aiding the unlawful taking of a child and sentence you to seven months imprisonment commencing on 14 January 2017 and expiring on 13 August 2017.
29.Therefore, there is an aggregate sentence of two years imprisonment commencing on 14 August 2015 and expiring on 13 August 2017. I set a non-parole period of
12 months commencing on 14 August 2015 and expiring on 13 August 2016. As I have said, I have reduced the sentence that you would otherwise have had to serve by nine months in order to reflect the fact that you are willing to give evidence in the trial of your co-accused.
Significant regard must be had to the sentence imposed by Burns J because of the need for parity between co-offenders. This is particularly so now that the offender has accepted the statement of facts which is consistent with the basis upon which Mr Drury was sentenced.
For this reason I will adopt the statement of facts as set out in the sentencing remarks made by Burns J as applicable here. There are however some important points of distinction that need to be made.
Firstly no weapon was held by the offender during the incident, nor did she make any threats Ms Quinlan who was supervising the contact visit. The offender is charged with aiding the burglary, not participating in it.
On the other hand the offender must be seen as having carried out a high level of planning and had an intention to take the child away indefinitely. This intention is consistent with the order that was being sought for her to be deprived of the supervision of IL until IL reached the age of 18.
It is also relevant to take into account that Ms Quinlan was subjected to a very frightening experience.
The effect on the foster parents is graphically described in the victim impact statement which is Exhibit 2. In this statement the foster parents describes the emotional upset and strain of the episode upon her and her husband extending to their concern for IL and the consequence that has been imposed on their current lives in the taking of security measures.
The facts outlined above render the first charge as being of at least medium objective seriousness and the second perhaps approaching medium objective seriousness.
Subjective factors
The offender is of Aboriginal descent as noted in Exhibit C. She does not however engage with the Aboriginal community.
The offender, in describing her background to the ACT Corrective Services officers, said her upbringing had been “chaotic”. Her mother is a long-term criminal who was only recently released from prison. Her father died some time ago. She was in foster care from the age of five. She has had the benefit of a very caring foster mother who is present in court today and has continued to provide support to the offender.
The offender left school in year nine. She has completed a Certificate II in Community Services and appears to have made genuine efforts to lead a law-abiding life notwithstanding her past. She has no criminal record and has no problems with alcohol or drugs.
She gave birth to IL when she was 17 years of age. The abandonment incident referred to in Exhibit 3, I was informed, was not an actual act of abandonment but rather of leaving IL in another person’s care for what was intended to be a short period.
While the Court in no way condones the offender’s actions, the Court does take into account the natural feelings of a mother towards a child especially at a time when the mother was faced with being deprived of the child on a long-term basis. The sentence that will be imposed however must contain an element of deterrence in order to uphold the respect that must be given not only to orders of the Childrens Court but to the whole community of persons, like foster parents, who strive to act for the betterment of the lives of children such as IL.
The offender did not plead guilty at the earliest opportunity. It may even be said she pleaded guilty at the last opportunity. It was also only today that the offender accepted her role as set out in the statement of facts (Exhibit 1). Nevertheless these concessions must be taken into account.
In addition the offender has already served 4 months in custody, which I have taken into account.
The ICO assessment report assesses the risk of reoffending as being in the low to medium range. It is necessary to bear in mind that the Childrens Court proceedings have not been finalised so that the offender must nevertheless be regarded as a person who may consider unlawful action in the future should the outcome of the proceedings not be to her liking.
The report does recommend the offender as being suitable for an ICO.
I have already mentioned that the offender recently had a motor vehicle accident which has left her with some injuries. She has been consulting a psychiatrist in Sydney on a weekly basis and it is important that this should continue. The doctor’s report is Exhibit D.
Dr Way’s report includes this description of the offender:
“Her adolescent years were marked by sexual violation, unstable relationships, and physical and emotional abuse by her boyfriends. She exhibited low self-esteem, emotional immaturity, and poor coping skills. She felt abandoned and hopeless.”
Consideration of sentence
Although there are two charges, they reflect a single incident. For this reason any terms of imprisonment should be concurrent. I am also of the view that a term of imprisonment, which must be viewed as a measure of last resort, would normally be applicable here, as it was to Mr Drury, but for the circumstances that I have set out above. In particular I refer to the subjective background of the offender and to the contents of the ICO assessment report.
In my view this is precisely the type of case that the ICO legislation is designed to address. In reaching this conclusion, and as a general statement, I have had regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7.
In relation to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT), I have had particular regard to the following authorities: WNB V The Queen [2006] NSWCCA 269 and Carpenter v Purcell [2008] ACTSC 34 (28 April 2008). Both of these cases stress the need for general deterrence. I have already mentioned the regard that must be had to the systems in place for the protection of children through the Childrens Court. As stated in WNB at paragraph 22:
It is necessary to mark out by way of a custodial sentence the need to protect the integrity of the system of child care and the authority of the Minister of Community Services to exercise the control conferred by the order of the Local Court. If a parent seeks to recover control, appropriate steps must be taken to have the Court order revoked or vacated. Furthermore, abuse of access arrangements, often permitted in the interests of the child, must be firmly discouraged.
I have also paid, as already mentioned, particular attention to the sentencing remarks of Burns J when dealing with Mr Drury. I note the Crown’s advice to me that an ICO was not an option available to Mr Drury.
When compared to the imprisonment terms imposed on Mr Drury, the circumstances for this offender reflect a different degree of involvement for the respective offences. In other words her involvement in the abduction was greater than that of Mr Drury but he was significantly more involved in the burglary.
I think that the term of imprisonment in respect of Count 1, the abduction, should be 18 months and the term for Count 2, aiding the burglary, should be 12 months. These terms of imprisonment need to be reduced on account of the pleas of guilty by approximately 15%. The reduction would have been greater had the pleas been earlier. The result is that the first term is reduced to 15 months and the second term to 10 months.
Both of these sentences should be concurrent and served by way of an ICO. The offender has consented to being subject to such orders.
I have considered whether additional conditions, besides the legislated core conditions, should be imposed. I have decided there should not be any extra conditions having had regard to the ICO assessment report which states that the offender’s mental health, unemployment and attitudes will be addressed pursuant to the order. I think it particularly important that the offender is able to continue her weekly consultations with the psychiatrist. To the extent necessary I recommend to ACT Corrective Services that this treatment be able to be continued.
Order
The convictions are confirmed and the offender is sentenced as follows:
(i)On Count 1, to a period of imprisonment of 15 months to be served by way of an Intensive Correction Order to commence today, 16 August 2016 and end on 15 November 2017, with the offender to be released immediately.
(ii)On Count 2, to a period of imprisonment of 10 months, to be served by way of an Intensive Correction Order to commence today, 16 August 2016 and end on 15 June 2017, with the offender to be released immediately
(iii)The offender is to report to ACT Corrective Services within 24 hours.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim Associate: Date: 16 August 2016 |
0
3
3