R v Serena (No 2)
[2020] ACTSC 99
•24 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Serena (No 2) |
Citation: | [2020] ACTSC 99 |
Hearing Date: | 24 April 2020 |
DecisionDate: | 24 April 2020 |
Before: | Elkaim J |
Decision: | See [23] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – previous offences – cancellation by the Sentence Administration Board of Intensive Corrections Order – aggravated burglary – common assault – unavailability of residential rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT) s 26 |
Cases Cited: | R v Serena [2019] ACTSC 231 |
Parties: | The Queen (Crown) Renee Serena (Offender) |
Representation: | Counsel M Howe (Crown) S McLaughlin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 43 of 2020 |
ELKAIM J:
On 28 February 2020 the offender pleaded guilty to two offences in the Magistrates Court. She was committed to this Court for sentencing.
The two offences and their maximum penalties are:
(a)Attempt aggravated robbery using force (CC2019/10443), contrary to s 310 of the Criminal Code 2002 (ACT). The maximum penalty is 25 years’ imprisonment, a fine of $400,000 or both; and
(b)Common assault (CC2019/10444), contrary to s 26 of the Crimes Act 1900 (ACT). The maximum penalty is 2 years’ imprisonment.
Although the Crown case is strong, the offender is still entitled to a discount for her pleas of guilty, which I assess at 20%.
The facts are set out in the Statement of Facts. In summary, on 23 September 2019, the offender entered the kitchen of a hotel restaurant in Ainslie. A chef noticed the offender take a loaf of bread and the chef’s phone. The chef confronted the offender. The offender took hold of a butcher’s knife and said to the chef: “You are not having your phone: you’re not having your phone. Are you a Commanchero?”.
The chef rejected any association to the motorcycle gang and requested the return of her phone. The chef moved away from the offender and into the lobby of the hotel. The offender followed her but then went outside and started to smoke a cigarette.
The chef told the manager what had occurred. The manager called the police. The chef went back to the kitchen. The offender reappeared and demanded the chef’s phone (which must have been returned to her possession). The offender said to the chef: “If you don’t give me your phone you’re going to die”. The offender then tried to stab the chef who fortunately was able to grab the offender’s arms as a means of defence. The knife touched the chef’s arms and stomach but left only a small puncture wound to an arm.
A struggle ensued, resulting in the chef being on her back over the kitchen bench. The chef called for help and was assisted by a hotel guest. The chef and the guest wrestled with the offender and managed to relieve her of the knife. Despite her resistance the offender was overpowered and moved into the lobby. Police arrived and arrested the offender. They found a hotel room key in her possession. In the room there was a handbag with six different medications which had been prescribed to the offender.
An ambulance also arrived at the hotel. It had been called by the offender because she was concerned about her own mental health. Clearly the offender anticipated that she might engage in illegal conduct and had sought assistance to help her avert the actions she took. Regrettably the help did not arrive in time.
To describe the background to this case as tragic is to understate its history. I sentenced the offender on 26 August 2019, following her plea of guilty to a charge of aggravated robbery (R v Serena [2019] ACTSC 231). My sentencing reasons included the history of this offender. I referred to the same report of Dr Furst which is before me again today. The passages I quoted remain relevant.
I sentenced the offender to 18 months’ imprisonment but ordered that the imprisonment be served by way of an Intensive Corrections Order (ICO) for a period of 18 months. In addition to the standard conditions of complying with directions of the Director‑General of ACT Corrective Services, I imposed a curfew (subject to rehabilitation requirements) and required the offender to live with her parents.
According to the Pre-Sentence Report dated 30 March 2020, the offender did not obey the curfew and did not reside with her parents. As a result the ICO was cancelled by the Sentence Administration Board on 1 October 2019. The recommittal order effectively continued the remaining period of her sentence of one year, three months and eight days, commencing on 1 October 2019 and expiring on 8 January 2021.
The offender has been in custody since her arrest on 23 September 2019. The Pre-Sentence Report says she has not behaved well in custody.
At [29] of my reasons I said this:
The nature of the offence makes imprisonment an almost certain result. But the offender has no criminal record, she has expressed remorse, she has followed recommended treatment and she has the capacity to return to a productive life. She must be given every chance of rehabilitation. Sentencing is not an exercise in punishment. It is rather a path to doing justice and recognising the demands of the community, the necessity for deterrence but also taking into account the subjective features of each offender.
It is immediately apparent that the current offences were committed only about one month after I imposed the ICO. The hope that I expressed for the rehabilitation of the offender was quickly dissipated.
The offence, as is evident from the facts I described above, contains a number of aggravating features, including the breach of the ICO, the use of the knife and the peril that was faced by the chef. Although there is no Victim Impact Statement, I feel sure the effects of the incident have and will remain with the chef. I think the primary offence is just below medium objective seriousness.
In the offender’s favour, there was clearly no premeditation and the offender was acting under the influence of her mental condition and drug use.
I have been provided with a letter from the offender’s parents. It details their pride in her and their distress at the course her life has taken. They hold out hope that she will return home having beaten the scourge of the drugs and mental health issues from which she is suffering. They conclude:
We do however wish to politely present our view that what Renee needs is support and an environment that is conducive to manifesting a recovery from drug addiction such as residential rehabilitation. We understand that is challenging at present due to Covid 19 but are hopeful that this too will pass sooner rather than later so that she might be able to access such services if your Honour considers that to be something that is possible.
I can assure the offender’s parents that if placing the offender in residential rehabilitation was a reasonable option, I would take it. But I don’t think it is. The offence is too serious and, in any event, there are no residential rehabilitation facilities currently available. The ICO made on the last occasion has failed.
This does not mean that rehabilitation should now be ignored. As suggested by the Crown, I think the only way this can be achieved is through a shorter than normal nonparole period. I would hope, and respectfully recommend, that on being released on parole the offender would be admitted to a residential rehabilitation centre.
The calculation of the nonparole period is made a little artificial because of the need to commence the nonparole period from the date of the earlier sentence, namely 9 July 2019.
I do not agree with the Crown that the sentence for the current offences should be wholly cumulative on the previously imposed sentence. Taking that course would result in an overly crushing sentence of imprisonment. There needs to be a degree of concurrency.
I also take into account that as a result of the current COVID-19 emergency, visits to the prison are not allowed and there has been a reduction in rehabilitation services. These are matters which will render the serving of a term of imprisonment more onerous and perhaps more dangerous to the offender’s well-being. For example I note that the counselling through the Women’s Health Service is not available to the offender at present. The offender told the authors of the Pre-Sentence Report that “she finds it difficult to maintain her Bi-Polar Disorder when in custody and has experienced episodes of intrusive suicidal thoughts”.
The orders of the Court are:
(a)For the offence of attempting aggravated robbery (CC2019/10443), the offender is sentenced to 24 months’ imprisonment (reduced from 30 months for the plea of guilty) to commence on 24 July 2020 and end on 23 July 2022.
(b)For the offence of common assault (CC2019/10444), the offender is sentenced to 8 weeks’ imprisonment (reduced from 10 weeks) to commence on 24 July 2020 and end on 17 September 2020.
(c)I set a nonparole period of 18 months to commence on 9 July 2019 and end on 8 January 2021.
(d)I confirm the cancellation of the Intensive Corrections Order made on 26 August 2019.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 24 April 2020 |