R v Parker
[2020] ACTSC 38
•7 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Parker |
Citation: | [2020] ACTSC 38 |
Hearing Date: | 7 February 2020 |
DecisionDate: | 7 February 2020 |
Before: | Walker AJ |
Decision: | 36 months imprisonment from 29 September 2019 to 28 September 2022, fully suspended from 7 February 2020. Drug and Alcohol Treatment Order of 12 months. See [34]-[38]. |
Catchwords: | CRIMINAL LAW – SENTENCING – Drug and Alcohol Sentencing List – aggravated robbery – Drug and Alcohol Treatment Order – recognition of time served on remand in custody |
Legislation Cited: | Criminal Code 2002 (ACT) ss 44, 310 Crimes (Sentencing) Act 2005 (ACT) ss 10, 12, 12A, 63 80O, 80S, 80T, 80Y |
Cases Cited: | R v Slifkas [2019] ACTSC 40 Hall v R; Barker v R [2017] ACTCA 16 R v Henry (1995) [1999] NSWCCA 111; 46 NSWLR 346 |
Parties: | The Queen (Crown) Crystal Parker (Offender) |
Representation: | Counsel M Dyason (Crown) J Campbell (Offender) |
| Solicitors ACT DPP (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 244 of 2019 |
WALKER AJ (ex tempore)
Summary of charges
Ms Parker is charged with attempted aggravated robbery, in contravention of s 310 of the Criminal Code 2002 (ACT) (the Criminal Code) by virtue of s 44 of the Criminal Code, on 20 May 2019 (CC2019/8707) and two counts of aggravated robbery, in contravention of s 310 of the Criminal Code, the first on 20 May 2019 (CC2019/8408), the second on 23 July 2019 (CC2019/8328). These charges attract a maximum sentence of up to 25 years imprisonment, a fine of up to $400,000 or a combination of both.
Evidence
For the purpose of sentencing, I have had available to me the statement of agreed facts, Ms Parker's criminal history New South Wales and Western Australia, Drug and Alcohol Treatment Order suitability assessment reports from Ms Leah Robinson, social worker from the Alcohol and Drug Service dated 23 January 2020, Ms Alex Durant, social worker from the Forensic Mental Health Service dated 22 January 2020 and Mr Andrew Cuthel a Community Corrections Officer of ACT Corrective Services dated 28 January 2020.
Factual circumstances
The offender is a mature woman. She has an eight year old son and a 20 year old daughter. In the last few years she became addicted to heroin, a habit which at the time of this offending was costing her approximately $150 a day. During that time, she was in a relationship with her son's father and held employment as a disability support worker. The relationship with her daughter from a previous violent relationship is complicated. Her daughter is the co-offender in relation to these matters.
On 20 May 2019 they went together to a private hospital at approximately 6.00 pm. The co-offender followed a staff member into an office whilst Ms Parker remained in the corridor. The co-offender rushed the woman, demanding money whilst brandishing a knife. She then lunged toward the woman who screamed. The co-offender said, 'Mum, it's not her' and they left. The incident was witnessed in part by a male staff member. The pairs' presence was captured on closed circuit television.
Later that evening, the pair went to a Braddon supermarket. The co-offender, again with a knife, demanded money and threatened to stab the storekeeper if she screamed. Ms Parker tried to close the front door, opened the cash register and took $1,590 from it. The co-offender took a can of premixed alcohol she had earlier placed on the counter and they ran off. A neighbouring storekeeper saw them get into a blue car and again, the incident was caught on closed circuit television.
On 23 July at about 8.30 pm, the pair went to another Braddon supermarket. The co-offender asked for the storekeeper's help at the back of the store whilst Ms Parker went behind the counter and took $450 from the till. The storekeeper approached and saw that the till was empty. She told them not to leave but they ran off. She tried to follow them, but the co-offender said, 'Don't move, I have a knife'. She again yelled for them to stop. A storekeeper from across the road ran after them but also stopped when the co-offender pulled a knife and said, 'Stop'. They drove off in a white car which turned out to be registered to Ms Parker. Police attended her address that night and arrested Ms Parker. She was interviewed and was cooperative, making complete admissions. The police assessed her expressed remorse as genuine.
Ms Parker has been on bail since 3 December 2019 and has complied with all that was required of her during that period. She has been assessed as suitable for a Drug and Alcohol Treatment Order.
In determining the objective seriousness of the offences, I have had regard to factors addressed in the guideline judgment of R v Henry (1995) 46 NSWLR 346 as applied in the ACT in the decisions of Hall v R; Barker v R [2017] ACTCA 16. Here, each of the robberies were of staff engaged in their employment who were alone at the time, rendering them vulnerable.
A knife was used to threaten, but not by Ms Parker. There was no profit from the attempted offence and relatively modest monetary gain from the other two. I have no evidence before me of the effect of the offending on the victims, although I note that the storekeeper on 23 July seemed to be quite robust in her pursuit of the offenders. I assume, however, that each were shaken but, absent further evidence, do not assume any significant lasting psychological effect. The robberies were quite unsophisticated, particularly as Ms Parker used her own car for the last one. There was no real attempt to conceal the offender's identity. Ms Parker even appears to have worn the same clothing on each occasion. Noting the statutory aggravation, I assess each of the offences as toward the low end.
Subjective circumstances
Ms Parker at 38 years of age is a mature woman, at least chronologically. She appears to have had an unremarkable upbringing, raised on the south coast of New South Wales. She relocated to the Queanbeyan/ACT region for education and employment as a 17 year old, initially training as a chef.
She had her first child, the co-offender, at age 19 and separated from her violent father when the girl was four years old. She submits that her daughter was physically abusive to her before leaving home at the age of 14. Her daughter was aware of her drug habit. Ms Parker submits that she held that over her, although that submission did not go so far as to claim that it was the sole reason for these offences. It appears though that Ms Parker's engagement with her daughter in this offending was at least, in part, a misguided attempt to maintain the relationship.
Ms Parker entered a relationship in 2007 with an IT worker, the father of her eight year old. She apparently suffered depression after the birth of that child. She later qualified as a disability care worker, a job she was doing prior to being arrested for these offences. She was also providing assistance at the school canteen one day a week. Her mother, to whom she was close, died from cancer in 2016.
She became a heroin addict after initial exposure to opioids through an oxycodone prescription for a shoulder injury in 2018. Her partner was completely unaware of her habit. She has been assessed as having a severe substance use disorder which has substantially contributed to this offending and, at least, it motivated her to steal to fund this habit.
She has a minor criminal record in New South Wales dating back to 2007 and driving offences in Western Australia in 2016.
Ms Parker readily accepted her responsibility for the offending that is the subject of these proceedings. Pleas were entered after a few mentions and no brief of evidence was required. It was a reasonably strong prosecution case against her. She was described by police as cooperative through admissions in interview and naming her daughter as her co-offender. The early pleas have had a significant utilitarian value.
She spent 132 days on remand in custody related to these charges. She has lived with her former partner and her eight year old son since her release. She is currently engaged in a Toora Women Inc drug counselling day program.
Ms Parker is unable to return to her former employment in light of these charges and has relied on her ex-partner for financial support. She is in the process of applying for Centrelink payments.
She met the eligibility criteria for a Drug and Alcohol Treatment Order and was referred for full assessment. She is considered suitable from the perspective of each of her assessors. Ms Parker has demonstrated real insight into her offending behaviour, the role of her drug use and its impact on her family.
She has been compliant and engaged during assessment, attending all appointments and complying with her bail conditions including not seeing her daughter. Her daughter was before the Supreme Court this week and has been given the benefit of a deferred sentence order with a warning that non-compliance will result in a lengthy period of imprisonment.
Sentencing considerations
In determining an appropriate sentence, I have regard to the need for just punishment, general deterrence, recognising the harm done to the community and rehabilitation, in particular. Ms Parker has already demonstrated accountability and as this is her first serious offending, specific deterrence whilst a factor, is less pressing than in some cases.
I note Ms Parker's early plea and demonstrated remorse and I apply a 25 per cent discount. I consider that her role was somewhat lesser than her co-offender in that she did not use a weapon, but I also note her relationship with her co-offender and that her engagement with a young person, especially her own child in this way, warrants condemnation.
I note her limited criminal history and good prospects for rehabilitation. I have regard to and apply the principle of totality consistent with the decision in Pearce v R [1998] HCA 57 at [45] and Johnson v The Queen [2004] HCA 15; 205 ALR 346 at [26] and R v Toohey[2019] NSWCCA 182 at [56] noting that:
“the focus is on a consideration of the similarity, differences and the degree of connection between the offences both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other: Pannowitz v R [2016] NSWCCA 13 at [40]. That calls for the identification and an evaluation of the relevant factors pertaining to the offences and will include the nature and seriousness of each offence.”
Having regard to the seriousness of the offences, the s 10 Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) threshold for imprisonment is met.
Having regard to the relevant provisions of the Sentencing Act, in particular, sections 12A, 80O, 80S and 80T, I am satisfied that Ms Parker is eligible and suitable for a Drug and Alcohol Treatment Order. Having regard to all of the circumstances and the nature of the offending, I am satisfied that such an order is appropriate.
Consideration of time served
An issue has arisen as to how time served on remand in custody is to be reflected, if at all, when a Drug and Alcohol Treatment Order is imposed. I make particular note of the interplay between s 12A(2) and s 63 of the Sentencing Act. Section 12A allows the court to make an order which fully suspends a sentence of imprisonment on an offender agreeing to complete a treatment program. Specifically, this is not a suspended sentence order as detailed in s 12(7) of the Sentencing Act. Section 63 of the Sentencing Act requires the court to take into account time served in custody in relation to the offence but not for a sentence of imprisonment that is fully suspended as outlined in s 63(3)(c). Despite s 12(7), the custodial part of a Drug and Alcohol Treatment Order appears to fall within the descriptor of a sentence of imprisonment that is fully suspended, although clearly this particular form was not envisaged when the Act commenced in 2005.
The issue which arises is the potential unfairness which flows if time in pre-sentence custody is not taken into account for a person sentenced to a Drug and Alcohol Treatment Order. Where an ordinary suspended sentence is imposed, it will usually be partially suspended taking into account any time served. That option is not prima facie available to a person who is sentenced to a Drug and Alcohol Treatment Order, potentially denying them the benefit of time served if such an order is imposed.
In the case of an ordinary fully suspended sentence which is breached, the court will impose a sentence or resentence. At that point, time served may be taken into account. It would be most unusual for a court not to take into account time served. It is open to the court to do that on breach of a Drug and Alcohol Treatment Order. Although because it has not already been taken into account, the person remains at risk of the full period being imposed in the event of a breach.
Further, in the event that a person subject to a Drug and Alcohol Treatment Order does not breach, even on completion of the treatment and supervision part of the order, they are required to remain subject to a good behaviour order for the remaining period. The effect of this is that they do not get the benefit of time served even when they have performed impeccably on the treatment and supervision part of the order. Whilst there is scope for the court to reduce the length of the treatment and supervision part of the order per section 80Z(f) of the Sentencing Act, a good behaviour order nonetheless must be applied for the remaining part of the custodial period.
A similar dilemma has arisen in relation to recognition of time served when imposing an intensive correction order under the Sentencing Act. There has been an inconsistent approach from this court as to how that is to be addressed. Justice Mossop, in R v Slifkas [2019] ACTSC 40, backdated an intensive correction order to take into account 286 days of presentence custody. Whilst not overtly stated, this was either in reliance on section 63 of the Sentencing Act or the common law position that an offender should get the benefit of time served in reduction of any sentence imposed. Given that his Honour did not make reference to either of these possibilities it may well be that the issue simply was not canvassed in any depth.
Contrast the approach of Penfold J in R v Ingram [2016] ACTSC 199 and Refshauge J in R v Ngerengere (No 3) [2016] ACTSC 299. In both cases their Honours concluded that section 29(1)(b) of the Sentencing Act precluded them partially suspending a sentence of imprisonment in recognition of time served. Justice Refshauge observed that “it is immensely problematic and calls for some reform” [60]. None has been forthcoming, and it appears that the problem has been repeated in the context of the Drug and Alcohol Treatment Order.
There are other inequities that may flow from a literal application of s 63. A person whose sentence would be in excess of four years, rendering them ineligible for a DATO but who has served sufficient time in pre-sentence custody to bring them under that threshold may thereby become eligible for the order if the approach of not taking into account pre-sentence custody is adopted. Whereas, if that person's co-accused who has not served a similar period on remand, perhaps because of an early plea, may be excluded. Conversely, a person who would attract a sufficiently lengthy sentence to be eligible for a Drug and Alcohol Treatment Order that is, over 12 months, may be excluded if pre-sentence custody is taken into account where their counterpart who was on bail would not.
There is also a risk in informally recognising the time served by simply applying a lower actual sentence. The risk is that of skewing sentence practice, noting that on the criminal record, only the actual sentence imposed is recorded not the factors which sit behind it. The simple fact of there being a Drug and Alcohol Treatment Order will not make it apparent why the custodial portion was of a particular length.
A purposive approach which best reflects fair sentencing practice is to interpret section 63(3)(c) of The Sentencing Act as meaning fully suspended from the date of imposition of the sentence. This is the approach I intend to adopt as least productive of injustice. The matter should be considered by the legislature.
Sentence
I record convictions on charges number 8407/2019, 8408/2019 and 8328/2019. I impose a Drug and Alcohol Treatment Order pursuant to s 12A(2) of the Sentencing Act.
The custodial part, pursuant to s 80W of the Sentencing Act is 36 months comprised of the following:
On charge 8407/19, the attempted aggravated robbery, 12 months.
On charge number 8408/2019, aggravated robbery, 18 months to be served concurrently.
On charge number 8328/2019, aggravated robbery, 18 months to be consecutive.
The custodial part will be taken to have commenced on 29 September 2019, recognising 132 days served. The remainder will be fully suspended from today. The custodial part completes on 28 September 2022. The suspension will be effective as of today in accordance with section 80W of the Sentencing Act upon the offender agreeing to enter a treatment program in accordance with that provision.
The treatment and supervision part of the order is for 12 months and will commence on the offender entering into the order. Core conditions as detailed in s 80Y(1) of the Sentencing Act will apply.
The offender is to complete a treatment program as agreed by the treatment team and as amended from time to time. Copies of the core conditions and treatment program are to be attached to the order.
I note that at completion of the treatment and supervision part of the order pursuant to section 80ZA of the Sentencing Act, the offender is to enter into a good behaviour order for the remainder of the custodial period.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Walker Associate: Date: 6 March 2020 |
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