R v Scott
[2004] SADC 111
•16 August 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SCOTT
Reasons for Sentence of His Honour Judge Smith
16 August 2004
CRIMINAL LAW
Sentencing - multiple offences - twelve counts of various offences - penalties include imprisonment and fines - consideration of imposing global penalty pursuant to s18A Criminal Law (Sentencing) Act - discussion of impermissibility of imposing global penalty of imprisonment for offences for which penalty prescribed is only a fine - global penalty of imprisonment arrived at by fixing notional penalties discounting for pleas of guilty and then applying principles of totality - refusal to order compensation due to no real prospect of defendant being able to comply with such an order.
Bail Act 1985 s17; Criminal Law Consolidation Act 1935 s134; Summary Offences Act 1953 s6(1), s6(2), s18(2), s41(1), s21(1); Motor Vehicles Act 1959 s137; Controlled Substances Act 1984 s31(1)(a), 52; Criminal Law (Sentencing) Act 1988 s18A, s13; Criminal Assets Confiscation Act 1986 s8, referred to.
Hermel v Police (2000) 76 SASR 336; R v Tu (2001) 216 LSJS 279; R v Major (1998) 70 SASR 488; R v Gale (1999) 74 SASR 325, applied.
CRIMINAL LAW
Sentencing - breaches of suspended sentence bond - whether proper grounds to forgive breaches - whether proper grounds excuse failure to comply pursuant to s58(3) of Criminal Law (Sentencing) Act 1988.
Criminal Law (Sentencing) Act 1988 s58(3)(b)(A), s58(3)(b)(D), s58(3), referred to.
Heal v Police (1999) 75 SASR 331, considered.
R v SCOTT
[2004] SADC 111Introduction
Lee-Anne Scott has pleaded guilty to 16 offences. These are as follows:
• Fail to answer questions;
• Resist police (3);
• Possessing amphetamine;
• Unlawful possession;
• Loitering;
• Assault police;
• Failure to comply with bail agreement (7);
• Dishonestly take property without owner’s consent; and
• Permit persons of bad character to frequent the premises.
The defendant is before the District Court because she has breached a bond, entered into on 3rd April 2003 before Judge Rice. For an offence of possessing methylamphetamine for supply committed on the 9th day of February 2002 the defendant, in the District Court on the 3rd April 2003, was imprisoned for two years with a non-parole period of 12 months. That term of imprisonment was suspended upon the defendant entering into a bond to be of good behaviour for a period of two years. That bond has been breached by the abovementioned 16 offences. The defendant has acknowledged the breach of bond.
Circumstances of the Offending
I shall deal with the breaching offences in chronological order.
On 20th October 2003 police attended her home and asked her questions regarding the driver of a motor vehicle. She did not answer truthfully. She was arrested and charged with failing to answer questions. On arrest, she ran away from the police, only to be apprehended on her neighbour’s front lawn. She then resisted the arrest by flaying her arms and twisting her body. This resulted in the further charge of resist police.
On 30th November 2003 the police raided the defendant’s premises and a small amount of amphetamine was seized. There were three bags containing some white powder which contained traces of amphetamine. This, the defendant alleges, was the residue of her own amphetamine. The defendant was charged with possessing amphetamine. In addition to the amphetamine police also found a red jacket and a quantity of jewellery. The red jacket still had the security tags attached. Both the jacket and the jewellery were seized as being suspected of having been stolen and traded for drugs. These items are the subject of the unlawful possession charge.
On 14th December 2003 the defendant’s partner, Kamahl Chambers, had not returned their child, Rhyce, to the defendant. The defendant contacted Mr Chambers and informed him that she was going to break into his home in order to retrieve their child. Mr Chambers notified the police of this and the police intercepted the defendant enroute. After three requests by the police for the defendant to leave, she was charged with failing to cease to loiter. Whilst attempting to arrest her, the defendant flayed her arms and twisted her body in order to resist police, which resulted in the further charge of resist police. Upon arrest she was taken to the police station, and subsequently given bail. In an attempt to resolve the dispute with Mr Chambers, the police took the defendant back to his address. An argument ensued. This resulted in the defendant punching a police officer with a clenched fist to the right side of the head. Efforts were made to arrest her, but it took three male police officers at the scene to do so. This resulted in the further charges of assault police and resist police.
Further, the defendant has pleaded guilty to the following charge:
• Between the 5th November 2003 and the 15th December 2003 being a person who is the occupier of premises frequented by reputed thieves and prostitutes s21 of the Summary Offences Act 1953.
On the 18th December 2003 she was arrested for that offence and granted bail on condition that she not permit named reputed thieves to be present at her premises at 25 Italia Crescent, Hackham West. Included in the list was the father of Rhyce, namely Kamahl Chambers. Surveillance of Italia Crescent revealed three breaches of the said bail condition:
• On 28th December 2003 police discovered reputed thief Litisha Drenkovski at the house;
• On 8th January 2004 police saw Kamahl Chambers and his friend Jason Wilson leaving the premises both listed as reputed thieves;
• On 12th March 2003 police attended at Italia Crescent and in the house in company with the defendant were three reputed thieves, namely Sharon Chadwick, Kylie Patty and Kain Leonard. The defendant was arrested.
The fourth breach of bail offence was slightly different. The defendant was bailed on home detention to her mother’s house. On 10th May 2004 she rang Home Detention to obtain permission to go to Centrelink but was denied. She went in the belief it was impossible to conduct her business with Centrelink over the telephone. She realised she was going to breach the conditions and out of frustration, in an argument, the defendant cut the electronic ankle transmitter off. This action led to the breach of bail and the theft charges.
The further three breach of bail arose in the following manner:
• On 12th January 2004 the defendant entered into a fresh bail agreement for her first two breaches of bail. Condition 4 of this bail agreement was to “be under the supervision of a Community Corrections Officer and obey the lawful directions of the officer”. The defendant reported for supervision on 12th March 2004 and signed a “notice of Acknowledgement of the condition of a bail agreement”. The defendant was directed to report for supervision on 19th March 2004 but failed to do so. This is the fifth breach. The defendant was sent a letter on 30th March 2004 directing her to attend on 5th April 2004. She failed to do. This is the sixth breach. A further letter was sent on 29th April 2004 directing her to attend on 6th May 2004. Again, she failed to attend. This is the seventh offence.
The defendant has pleaded guilty to these further three bail offences.
Circumstances of the Offender
I have read and taken into account the following material:
• Antecedent report;
• Sentencing remarks of His Honour Judge Rice in this court dated 21st March 2003 and 3rd April 2003;
• The apprehension reports for all of the breaching files;
• The pre-sentence report dated 4th August 2004;
• A letter from Bernie Milburn for Drug and Alcohol Services Council dated 30th June 2004;
• Letter from Yorel Stendahl dated 13th July 2004;
• Letter from Melanie Kay from Good Beginnings dated 14th July 2004;
• Letter from Kirsten Hicks from OARS with the faxed date of 13th July 2004; and
• Affidavit of Robert Ian Silk, Constable of Police dated 15th March 2004.
The defendant is 32 years of age. She was born in Adelaide and was the youngest of three daughters. Her father died when the defendant was three years of age. She had a stepfather for a period of time but this was an unhappy relationship. The defendant left the familial home at the age of 14 years, living with friends and in squats, before moving in with a friend at the age of 15. She attended Wirreanda High School and finished in Year Ten, continuing on until the age of 16 regardless of the fact she was no longer at home. She commenced part-time work as a sales person at a Katies Store in the city of Adelaide. She remained there until her first child, Emma Jane, was born in 1995, now being 9 years old. The father of that child is Mr Sten Rivers and they had a second child in 1997, Sara Ann. She is now 7 years old. They are currently attending Calvary Luthern Primary School and staying with Mr Rivers. Mr Rivers’ mother is also helping with their care. The defendant has worked only sporadically since the birth of her first child.
Sometime after 1997 she broke up with Rivers due to his heroin usage. She moved out of the house they shared and into shelter accommodation until the Housing Trust provided her with the accommodation at Italia Crescent, where she remained until being incarcerated.
At about 1999, the defendant began a relationship with Mr Chambers and she has had one child of that relationship, a one year boy named Rhyce. The defendant is currently pregnant with their second child. She is due to give birth on about the 1st September 2004. Currently Mr Chambers is in custody.
The defendant commenced drinking when she was 13 years age, but by the time she was 16 she was drinking four days out of seven. She currently states she does not drink due to her pregnancy. She first smoked marijuana at the age of 13, but ceased at that time. She recommenced at the age of 22 years old with heavy usage until she was about 27. She still uses it occasionally. The defendant dabbled with amphetamine usage at about 19 years of age and began to use heavily when she was 22 for about a year. She ceased using when the relationship with Mr Rivers broke down in 1997. She turned again to amphetamine use to help her deal with depression and this escalated to daily use, but ceased upon her pregnancy. This is confirmed by negative urine analysis results.
The defendant’s antecedent report discloses mainly vehicle and driving offences, notwithstanding a long history of drug use.
His Honour Judge Rice sentenced the defendant for trying to smuggle drugs into Northfield Prison, for her partner Kamahl Chambers. He sentenced her to a two years term of imprisonment, with a non-parole period of twelve months, but suspended it upon the defendant entering into a bond with conditions to be of good behaviour for two years. As indicated the defendant did not comply with the bond.
There are however some encouraging signs which I will turn to in a moment.
Sentencing Considerations
The defendant is entitled to the full discount for her plea of guilty for all 16 of the breaching offences. I will give her the full 25% discount.
The defendant has remained in custody since 21st May 2004. In addition to this there was an earlier period of six days she spent in custody between being arrested on a breach of bail and being granted home detention bail.
The maximum penalties for these offences are as such:
• Fail to answer questions $250 fine;
• Resist police (3) $250 fine and/or six months;
• Possessing amphetamine $2,000 fine and/or 2 years;
• Unlawful possession $10,000 and 2 years;
• Loitering $1,250 and 3 months;
• Assault police $10,000 and 2 years;
• Failure to comply with bail
agreement (7) $10,000 and 2 years;
• Dishonestly take property without
owner’s consent 10 years.
• Permit persons of bad character to
frequent the premises $750 fine
I note that the Department of Correctional Services have applied for compensation for the cost of the removed ankle transmitter. Pursuant to s13 of the Criminal Law (Sentencing) Act, I am unable to order compensation because there is no real prospect of the defendant being able to comply with such an order.
I intend imposing one global penalty of imprisonment for the offending for which terms of imprisonment are prescribed (see s18A Criminal Law (Sentencing) Act). It is clear that any global penalty of imprisonment cannot be applied to an offence for which only a fine is prescribed (see Hermel v Police (2000) 76 SASR 336).
I am empowered to excuse the failure of the defendant to comply with the terms of the suspended sentence bond entered into by her on the 3rd April 2004 if the failure to comply was “trivial” or “that there are proper grounds upon which the failure should be excused” (see s58(3) of Criminal Law (Sentencing) Act 1988). There is no suggestion and nor could there be, that the breaching offences were trivial. It remains for me to decide whether “proper grounds” exist to excuse non-compliance.
Sentence
Before proceeding to the global or single penalty, it is necessary to identify the process by which I arrive at it, by fixing notional sentences for the individual offences as if s18A was not available (see R v Tu (2001) 216 LSJS 279 per Martin J at 300; R v Major (1998) 70 SASR 488; R v Gale (1999) 74 SASR 235). The notional penalties then are as follows:
• Resist police (3) 1 month each concurrent
• Possessing amphetamine 1 month
• Unlawful possession 1 month
• Loitering conviction without penalty
• Assault police 1 month
• Failure to comply with bail
agreement (7) 1 month
• Dishonestly take property without
owner’s consent 1 month
Total 6 months
• Fail to answer questions truthfully conviction without penalty
• Permit persons of bad character to
frequent the premises conviction without penalty
As indicated, monetary penalties only are prescribed for the last two offences listed above. So a global penalty of imprisonment could not include a penalty for these offences. Rather, I have imposed a conviction without penalty as indicated immediately above.
I allow the discount of 25% for the pleas of guilty and so that the notional term of imprisonment reduces to 4½ months.
To account for the time spent in custody since the 21st May 2004 and the earlier period of six days, I reduce the 4½ months to 1½ months.
I now turn to the breach of bond. I have had regard to the parameters set out in Heal v Police (1999) 75 SASR 331.
Proper grounds (s58(3) Criminal Sentencing Act)
After some anxious consideration I have decided that there are “proper grounds” upon which to excuse the defendant’s failure to comply with the conditions of the bond. In my view there is some disproportion between the seriousness of the bond offence and the individual breaching offences from the point of view of both the character of the offences and the sentence to be activated. Nonetheless the sheer accumulation of breaching offences makes the matter serious. However, I will excuse the breach primarily because I see a distinct prospect that the defendant may continue with the rehabilitation measures now in place and so I have decided to give her one last chance.
In particular, I rely upon the following matters:
• with the exception of Judge Rice’s decision the defendant does not appear to have had a life rich with realistic opportunities;
• the defendant has taken steps to ensure that she is drug free and I accept that she is determined to remain so;
• through Centacare she has been allocated a house in the northern suburbs of Adelaide which she is able to move into immediately. This will effectively remove her from the negative peer influences in the southern suburbs (see pre-sentence report 4/08/04);
• Centacare will provide ongoing support in particular in relation to long-term housing, budgeting, and mental health (see pre-sentence report 4/08/04);
• Ms Melanie Kay from Good Beginnings Australia has been counselling the defendant in gaol and has indicated a willingness to support her in the community with a view to re-uniting her with her three children, Emma Jane, Sara Ann and Rhyce. In particular, Ms Kay has indicated the willingness of Good Beginnings Australia to assist with the arrival of the defendant’s fourth child who is to be born on approximately 1st September 2004;
• the defendant’s willingness to continue drug counselling with Mr Bernie Milburn of Drug and Alcohol Services Council (see letter from DASC 30/06/04);
• the two children, Emma Jane and Sara Ann, are currently being cared for by their paternal grandmother Mrs Yorel Stendahl who is a teacher working at the Thebarton Senior College. In a letter to me Mrs Stendahl has expressed concern that she is not able to continue to care for the children who are in urgent need of a stable home life and she exhorted me in that letter to facilitate them returning to the care of their mother whom she will continue to support (see letter from Mrs Stendahl 13/07/04); and
• the authors of the pre-sentence report, Teresa Adams and Susie Owens, together with Kirsten Hicks of OARS (SA) have identified a positive and willing attitude in the defendant to rehabilitate herself.
For those reasons and also on the basis of the wider material in the said letters and reports tendered to me I find that there are proper grounds to excuse the breach of the bond and I do so.
So I refrain from revoking the order suspending the sentence of imprisonment imposed by Judge Rice. The bond has less than a year to run. I will extend the period of that bond for a period of 1 year and further I will vary the conditions of the bond so that they are the same as the conditions which I now intend to impose in respect of the sentence of 1½ months which I have imposed.
Sentence – Orders
Therefore the orders of the Court are as follows:
1.for the 16 breaching offences the defendant is sentenced to 1½ months imprisonment to commence today. There is no non-parole period to be fixed;
2.the said sentence is to be suspended on condition that the defendant enter into a bond in her own recognisance in the sum of $500 to be of good behaviour for a period of 2 years. The conditions of the bond to be as follows:
• that the defendant be under the supervision of a Community Corrections Officer and comply with his or her lawful directions;
• that the defendant undertake counselling and/or treatment courses in respect of substance abuse in accordance with the directions of the said officer;
• that the defendant reside where directed by the Community Corrections Officer;
• that the defendant abstain from the possession and consumption of illicit drugs and non-prescribed medication; and
• that the defendant submit to urine analysis for non-prescribed medication as directed by her Community Corrections Officer;
3.the defendant is excused for breaching the bond into by her on the 3rd April 2003 pursuant to s58(3) of the Criminal Law (Sentencing) Act on the basis that there are proper grounds for so excusing;
4.that the said bond of the 3rd April 2003 is varied pursuant to s58(3)(b)(A) and (D) by extending the term by 1 year, so that the period of good behaviour is 3 years from the 3rd April 2003 and further the conditions of the bond are varied so that they are the same as the conditions of the bond relating to the 1½ months imprisonment.
5.Further, I order forfeiture of all items seized by police to be forfeited to the Crown, pursuant to s52 Controlled Substances Act 1984 and s8 Criminal Assets Confiscation Act 1996.
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