R v Stott
[2020] ACTSC 284
•15 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stott |
Citation: | [2020] ACTSC 284 |
Hearing Date: | 30 September 2020 |
DecisionDate: | 15 October 2020 |
Before: | Burns J |
Decision: | See [18]–[21] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by judge alone – unlawful confinement – making a demand accompanied by a threat – recidivist offender – guarded prospects for rehabilitation – lack of remorse – consideration of Intensive Correction Order |
Legislation Cited: | Crimes Act 1900 (ACT) ss 32(2) and 34 |
Cases Cited: | R v Evans; R v Stott [2020] ACTSC 220 |
Parties: | The Queen (Crown) Sharon Stott (Offender) |
Representation: | Counsel K Lee (Crown) S Whybrow (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender) | |
File Number: | SCC 90 of 2019 |
BURNS J:
Sharon Stott, you appear before me today to be sentenced for one offence of unlawful confinement, contrary to s 34 of the Crimes Act 1900 (ACT) (the Crimes Act) by virtue of s 45A of the Criminal Code 2002 (ACT) (the Criminal Code), and one offence of making a demand accompanied by a threat, contrary to s 32(2) of the Crimes Act by virtue of s 45A of the Criminal Code. Both offences occurred on 18 January 2019. Both offences carry a maximum penalty of 10 years’ imprisonment. I found these offences proved after a trial by judge alone in May and June 2020. I handed down my findings on 14 August 2020: R v Evans; R v Stott [2020] ACTSC 220.
In brief, I am satisfied that as part of a joint criminal enterprise you and your co-offender unlawfully confined the victim at an address in suburban Canberra for approximately one hour on 18 January 2019. During this unlawful confinement, you made demands of the victim that he pay you the sum of $20,000. You represented to the victim that this was a debt which he had owed you for 10 years. I am satisfied that there was no debt and you invented the supposed debt as a pretext to extort money from the victim. Your co-offender was armed with a baseball bat and made multiple threats to cause serious physical injury to the victim during the period that he was unlawfully confined and during which you were demanding that he pay you the $20,000. As I said in my judgment on 14 August 2020, I am satisfied that you and your co-offender were acting in concert as part of an agreement to stand over the victim, by which I mean that there was an agreement that you would make demands that the victim pay you money while your co-offender would make threats to the victim with a view to encouraging him to meet the demands you made. This plan unravelled when your co-offender commenced attacking the victim with the baseball bat, resulting in the victim moving into the kitchen of the premises and obtaining a knife. I accept that you attempted to stop your co-offender assaulting the victim with the baseball bat. I was not satisfied that it was part of your agreed plan to cause injury to the victim. I was satisfied that the joint criminal enterprise was confined to making threats to the victim and confining the victim with a view to extorting money from him.
Objective seriousness
In assessing the objective seriousness of the offence of unlawful confinement, I take into account that the period of the confinement was approximately one hour and that the purpose of the confinement was to commit a further offence, that is, making a demand accompanied by a threat. I am satisfied that the victim was terrified during the period in which he was held against his will. Indeed, the whole purpose of the exercise was to terrify the victim into agreeing to your demands. I do not take into account the injuries that were sustained by the victim, as they will be taken into account in sentencing your co-offender for the offence of intentionally inflicting actual bodily harm. I would assess the present offence as falling in the lower end of the mid-range of such offences.
In assessing the objective seriousness of the offence of making a demand accompanied by threats, I take into account that the threats were to cause serious injury to the victim by use of a baseball bat, to further restrain the victim using cable ties and to transport him in the boot of your car to your house. There was a further veiled threat that you may use your dogs to attack the victim at your house. I am satisfied that the victim was terrified by the threats that were made. I acknowledge that it is important not to double punish you with regard to the two offences by reason that the victim was terrified by your actions and those of your co-offender which formed part of the joint criminal enterprise. I take into account that multiple demands were made as well as multiple threats over the period of one hour.
It was submitted on your behalf that these offences were opportunistic and were not the subject of any significant planning or premeditation. I accept that your choice of victim was opportunistic, but I cannot accept the proposition that these offences did not involve any planning or premeditation. The way in which the offences unfolded from the moment that you entered the premises with the victim speaks of a pre-existing plan. I have no doubt that you were aware that the occupant of the premises was a
small-time heroin supplier. If you waited in the premises, there was a likelihood that someone would attend for the purpose of purchasing heroin. Alternatively, the occupant of the premises could be subject to threats and extortion. Such people are relatively easy targets for this type of offending, because they are less likely to go to the police and report any intimidation or extortion. Even if they do, their credibility can be attacked and, as occurred here, it can be suggested that they were drug affected. Whatever the correct scenario, the evidence speaks of a pre-existing plan.
There were no verbal communications between you and your co-offender about demanding money from the victim, or the use of a baseball bat, or the making of threats from the time that you and your co-offender entered the premises in the company of the victim, until your co-offender locked the front door and picked up the baseball bat, and you sat down and started to make your demands. This speaks very clearly of a pre-existing arrangement in which you would make demands of somebody in the premises and your co-offender would act as your muscle. I am satisfied that cable ties were brought with you in your car; some were left on the front seat and some were in the boot. There are possible scenarios which may explain your arrival at the premises at the same time as the victim, but I accept that they are speculative. I am however satisfied beyond reasonable doubt that you went to the premises with your co-offender for the purpose of engaging in the conduct which you did ultimately engage in should the opportunity arise. I accept that the choice of victim was opportunistic. I would assess this offence as in the upper end of the mid-range of such offences.
Subjective circumstances
You have a very significant criminal history. On 30 January 2020 you were convicted of an offence of aggravated robbery which occurred on 10 January 2019 and sentenced to one year and seven months’ imprisonment, suspended after serving 12 months’ imprisonment. Prior to that, it appears that your most recent offending occurred in 2015. In 2011, you were convicted in this Court of forcible confinement and sentenced to three years and six months’ imprisonment, which was partially suspended. You have previous convictions for trafficking in drugs and conspiracy to supply drugs. Your history disentitles you to any significant leniency in sentencing for the present offences.
You are 58 years old and the Pre-Sentence Report prepared for the sentence hearing rightly describes you as a recidivist offender. You have served multiple terms of imprisonment and been subject to supervision on multiple occasions. You have been subject to breach action in the past, however your compliance with supervision during your present period on bail was described as satisfactory. The Report notes that you were subject to stringent bail conditions with which you substantially complied.
You were born and raised in Western Sydney. Your upbringing was chaotic and traumatic, and your father died when you were approximately seven years old. Your mother was frequently violent and inflicted unpredictable physical abuse on you. The effects of your upbringing undoubtedly remain with you. You have several half-siblings with whom you have no relationship.
You have been single for approximately 15 years. You have had a number of partners during your life, some of whom have been killed in acts of criminal violence. You are the mother of two adult sons, with whom you have positive and supportive relationships. Your education suffered as a result of your chaotic upbringing. After leaving the formal education system, you commenced work as an auctioneer selling livestock. You have now been in receipt of government benefits for a number of years. You told the author of the Report that you have made a significant income through dealing drugs in the past and this has led you to become accustomed to a comfortable lifestyle.
You have a long history of illicit drug use. You commenced smoking cannabis during your school years, and you continue to frequently smoke cannabis. You do not consider this to be problematic. You commenced amphetamine use later in life and used that substance intravenously between 1992 and 2005. You have relapsed into intravenous amphetamine use from time to time, and until recently you smoked methamphetamine recreationally. As part of your bail conditions you connected with Directions ACT to receive counselling, and you made contact with that service approximately once a week. Your engagement was described as significant.
Directions ACT stated that you have shown insight into your triggers for drug use and developed a relapse prevention plan.
Your social network is predominantly comprised of criminal connections. Evidence was placed before me which establishes that you have connections within an
Outlaw Motorcycle Gang within the ACT. You have no current health concerns, but you have experienced some anxiety surrounding these court proceedings.
You denied to the author of the Pre-Sentence Report any involvement in the current offences. You claimed that you made a spontaneous decision to drive to your friend’s home for a social visit. You placed culpability on your co-offender, and claimed that you were the victim of assault by the victim and that he also damaged your car. You did not show any remorse towards your victim.
A letter dated 25 September 2020 from Directions ACT was tendered at your sentence hearing. That letter states that if an appropriate service could be identified, you would benefit from more intensive and specialised treatment options, such as residential rehabilitation, day programs or counselling/psychotherapy. You were assessed for the Directions ACT day program, but this program has been put on hold due to COVID-19 restrictions. The letter states that you have proactively engaged with Directions ACT for support since 4 June 2020, and that organisation is willing to continue to provide support for you in the future.
Pleas and remorse
You maintained pleas of not guilty to these charges, as you were entitled to do. You are not, however, entitled to any reduction in sentence for the utilitarian value of your plea of guilty. You continue to maintain your innocence with regard to these charges, so that I am satisfied that you have demonstrated no remorse for your offending. Your prospects for rehabilitation must be considered guarded.
Consideration
It was submitted on your behalf that you are willing to undertake an Intensive Correction Order, despite the Pre-Sentence Report indicating that you had expressed unwillingness to undertake such an Order. The Report assessed you as suitable to complete such an Order. Completing a sentence of imprisonment by way of an Intensive Correction Order involves a significant amount of leniency compared to
full-time imprisonment. Having given the matter careful consideration, I am satisfied that it would not be appropriate to impose an Intensive Correction Order in the present matter. Your total lack of remorse means that it is important that you feel the full weight of the sentences of imprisonment which are the only just and appropriate sentences for your offending. In addition, general deterrence is a very important sentencing consideration for serious offences of this type. Your criminal history and your lack of remorse make rehabilitation a sentencing consideration which should be given less weight in this matter. I am satisfied that only sentences of full-time imprisonment are appropriate.
Both offences of which you are convicted occurred as part of the same criminal enterprise. As such a significant degree of concurrency is warranted. I also take into account the requirements of totality. You have served 53 days in pre-sentence custody relating to the present charges, but you also spent one year in custody in relation to the offence which occurred on 10 January 2019. I will backdate the commencement of the sentences which I intend to impose by 6 months in order to reflect your pre-sentence custody and also the need to consider totality regarding the sentences imposed on
30 January 2020 and the sentences which I impose.
Sentence
On Count 1 on the indictment, the charge of unlawful confinement (CC2019/1702),
I record a conviction and you are sentenced to two years and eight months’ imprisonment, commencing on 15 April 2020 and expiring on 14 December 2022.
On Count 3 on the indictment, the charge of making a demand accompanied by threat (CC2019/1703), I record a conviction and you are sentenced to
three years and two months’ imprisonment, commencing on 15 June 2020 and expiring on 14 August 2023.
The aggregate sentence which I have imposed is therefore one of
three years and four months’ imprisonment, commencing on 15 April 2020 and expiring on 14 August 2023.
I set a non-parole period of two years and two months’ imprisonment, commencing on 15 April 2020 and expiring on 14 June 2022.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |