R v Summers; R v Miller (No 2)
[2019] ACTSC 11
•29 January 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Summers; R v Miller (No 2) |
Citation: | [2019] ACTSC 11 |
Hearing Date: | 29 January 2019 |
DecisionDate: | 29 January 2019 |
Before: | Murrell CJ |
Decision: | See [38]-[43]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Unlawfully take a child under 12 years of age – Joint commission – Attempt to pervert course of justice |
Legislation Cited: | Crimes Act 1900 (ACT) s 40 Criminal Code 2002 (ACT) ss 45A, 713, 44 Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | R v Summers [2018] ACTSC 324 |
Parties: | The Queen (Crown) Mark Summers (Defendant) Tatania Miller (Defendant) |
Representation: | Counsel Ms R Christenson (Crown) Mr P Edmonds (Offender Summers) (Defendant) Mr R Davies (Offender Miller) (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Defendant) Legal Aid ACT (Defendant) | |
File Numbers: | SCC 138 of 2018; SCC 141 of 2018 |
Murrell CJ
Introduction
Following a judge alone trial, on 22 November 2018 each offender was found guilty of the offence that, on 17 June 2017 at Canberra, they unlawfully took a child under 12 years of age by joint commission, contrary to s 40 of the Crimes Act 1900 (ACT) (Crimes Act), and s 45A of the Criminal Code 2002 (ACT) (Criminal Code). The offence carries a maximum penalty of 10 years' imprisonment.
Mr Summers was also found guilty of the offence of attempting to pervert the course of justice pursuant to ss 713 and 44 of the Criminal Code. This offence carries a maximum penalty of seven years' imprisonment.
Neither offender has served any relevant period in custody.
Although neither offender entered a plea of guilty, some facts were agreed and the principal lay witness, Mrs Southwell, was not extensively cross-examined. The offenders are entitled to some credit for this approach.
Facts
The facts are detailed in my reasons for decision of 22 November 2018: R v Summers [2018] ACTSC 324 (Summers).
In summary, the offenders are partners. Ms Miller is the mother of a child who was born in January 2014 (the child). Since infancy, the child has been cared for primarily by Ms Miller's mother.
In August 2014, consent orders were made under the Family Law Act1975 (Cth) giving Ms Miller's mother sole parental responsibility for the child. Thereafter, the relationship between Ms Miller and her mother deteriorated to the point where there was little or no contact.
In mid-2017, Ms Miller's mother gave the child to Mrs Southwell (who is her mother and Ms Miller's grandmother), on the understanding that Mr and Mrs Southwell would take the child to meet with Ms Miller and Mr Summers.
Accordingly, on 17 June 2017, there was a lunch meeting at the Canberra Southern Cross Club in Phillip, Canberra. Prior to lunch, at Mr Summers’ suggestion, Ms Miller used the pretext of taking the child to a play area within the Club to effect the child’s removal from the Club. Mr Summers joined Ms Miller shortly thereafter and the couple drove from the Club with the child in a rear seat child restraint. In accordance with a prior arrangement, the child was taken to the home of Mr Summers' aunt and uncle.
10. At the trial, I found that Mr Summers’ misrepresentation—that Ms Miller was taking the child to the play area for a brief period and would then return to the Club restaurant with the child—induced Mrs Southwell to believe that the child would remain in the immediate vicinity and that, by inducing that belief, the offenders were able to remove the child from the Club: Summers at [127]. I also found that each offender acted in accordance with a pre-existing plan to remove the child: Summers at [95].
11. At around 9 PM that evening, after police had spoken to Mr Summers, Ms Miller told Mr Summers' aunt and uncle that they should relinquish the child to the police. They did so.
12. The offenders were charged with unlawfully taking a child by deception.
13. In December 2017, the offenders were living in Queensland. Mr Summers asked Mrs Southwell to visit them, saying that Ms Miller was very distressed. Mrs Southwell flew to Brisbane to stay with the couple. This was the first time that she had met the offenders' four-month old child (the infant), who was living with the offenders.
14. All went well until the offenders and Mrs Southwell returned home after a convivial dinner and found court documents relating to the ACT criminal charges in the letterbox.
15. Mr Summers became very upset and agitated towards Mrs Southwell. He asked her to “put a stop to all this by changing [her] statement”. She agreed to do so because she was too frightened to refuse. The following day, the couple drove Mrs Southwell to the airport and they parted on apparently good terms.
16. At the trial, I found that the demand by Mr Summers that Mrs Southwell change her statement was not idle or trivial. It was not a fanciful threat, but a real one. Mrs Southwell took the threat seriously and agreed to change her statement, although she did not want to do so. As it transpired, she never did so: Summers at [135]. In making the demand, Mr Summers intended to obstruct, if not defeat, the course of justice; that was the only purpose for which the demand could have been made: Summers at [141].
Objective seriousness
17. In relation to the objective seriousness of the offences of unlawfully taking a child, the following matters are significant:
(a)The offences were planned prior to the meeting on 17 June 2017, although the plan was not a sophisticated one and it was inevitable the child would be recovered at some point.
(b)The taking of the child directly violated a court order with which the offenders were well acquainted.
(c)The child was only three years of age.
(d)The child was detained for nine hours, a relatively short period, and was returned to the police at the direction of Ms Miller. However, the detention ended only when Ms Miller learned of the involvement of police.
(e)The taking was effected by deception rather than direct physical force.
(f)The child was taken by persons known to her, rather than by a complete stranger. On the other hand, the offenders were not well known to the child.
(g)The purpose of taking the child was to reunite Ms Miller with her biological child. It was not for a purpose such as financial gain.
(h)The child was not physically harmed. There is no evidence of overt distress, although some level of distress must be inferred. The child was never at risk of physical harm and was always in a physically safe environment.
18. In relation to the objective seriousness of the offence of attempting to pervert the course of justice, the following matters are significant:
(a)The attempt was spontaneous and not planned.
(b)However, it occurred in the context of belligerent behaviour by Mr Summers towards Mrs Southwell, which was not transient; I estimate that it lasted at least five minutes.
(c)The offender’s conduct caused Mrs Southwell to become so frightened that she agreed to change her statement, although she did not wish to do so.
(d)Mrs Southwell was in a vulnerable position as an unseasoned traveller who was away from home and a guest in the offender’s home.
Subjective circumstances
19. Ms Miller and Mr Summers have been in a de facto relationship for three years. They continue to care for the infant, who is now 18 months’ old. Dr Prado, the infant’s consultant paediatrician, reported that the infant is thriving. The infant enjoys support from his parents and extended family. Despite knowing that both offenders have a mental health history, Dr Prado expressed no concern about the infant's upbringing. He described the infant’s environment as stable and strongly supportive. He said that the infant had a very close attachment to both parents, and stated:
I am concerned that there may be a significant deterioration in any relationship between the infant and Mr Summers if they are separated for any significant period of time, as they developed such a strong bond.
20. I take the doctor’s concern into account in relation to sentencing.
21. The offenders and the infant receive strong support from Mr Summers' family in Queensland, especially from his mother, with whom he is in daily contact. In addition, each offender is locked into important therapeutic relationships which have existed for a significant period of time.
Mr Summers
22. At the time of the offences, Mr Summers was 26 years old. He is now 28 years old. He has a significant criminal history.
23. Importantly, on 5 November 2013, the Queanbeyan Local Court sentenced him for a number of offences of moderate seriousness, to a total sentence of 18 months’ imprisonment with a nine-month nonparole period concluding in June 2014. This sentence comprised several concurrent sentences, including one for the offence of acting with intent to influence a witness. The facts of that offence concerned a text message conversation between the offender and a victim in relation to whom the offender had contravened an apprehended violence order. During the text message communication, the offender pleaded with the victim, asking that she not appear in court to give evidence against him, and offering money if she agreed to that proposal.
24. Mr Summers was raised by his mother and step-father. His biological father has been absent and unreliable for most of Mr Summers' life. At eight years of age, Mr Summers was diagnosed with ADHD. Dr Prado cared for Mr Summers through his childhood and is aware of the significant attentional, behavioural, and social difficulties associated with the offender's ADHD. Mr Summers has difficulty concentrating and has found literacy to be almost impossible. Currently, he is under the care of a treating psychiatrist and is prescribed daily medication. Dr Prado reported that the treatment that Mr Summers is receiving for ADHD is proving to be highly effective.
25. I consider it very likely that Mr Summers' mental condition affected his conduct in attempting to pressure Mrs Southwell to change her police statement and is significant to the assessment of his moral culpability for that offence. His mental condition makes it more likely that he will behave impulsively and fail to fully appreciate social norms, as well as the impact of his conduct on others.
26. After leaving school at the conclusion of Year 10, Mr Summers completed a certificate course in laboratory techniques, and then went on to employment in “countless jobs”. He informed the author of the pre-sentence report that he was “fired from at least 60 per cent [of the jobs] due to his ADHD”, which “impedes his ability to focus and follow” instruction, interpret requests, and engage in appropriate social interaction.
27. Since July 2018, Mr Summers has been employed as a truck driver by a steel company. Finally, he has found a vocation that suits him. He is highly regarded by his employer and work mates. His employer described him as “a very talented truck driver with good customer service skills” and referred to a positive “can-do” attitude. The author of the pre-sentence report noted that Mr Summers has been offered a scholarship to study computer science in 2019 and is interested in accepting the offer.
Ms Miller
28. At the time of the offence, Ms Miller was a very young adult (20 years of age) with significant personal problems. She had given birth to the infant relatively recently and was no doubt emotionally vulnerable. She had no criminal history.
29. Ms Miller’s treating psychiatrist provided a report stating that Ms Miller suffers from developmental trauma (also known as complex post-traumatic stress disorder) and ADHD. These conditions were caused or aggravated by childhood abuse, compounded by poor attachment with her primary caregivers and the separation of her parents when she was a baby. From eight years of age, Ms Miller displayed behavioural disturbances and aggressive outbursts as well as episodes of depression. Currently, she receives medication for ADHD and social anxiety and undertakes dialectical behavioural therapy, which should assist her to develop social skills.
30. A reporting mental health social worker stated:
Ms Miller contends with severe instability with mood, interpersonal relationships, self-image and behaviour. This instability has caused problems in Ms Miller’s everyday life, work, social relationships and the identity of the patient itself.
31. Ms Miller has completed a certificate course in work experience and is seeking an apprenticeship in business administration. Her treating psychiatrist considers the obtaining of gainful employment to be an important long-term goal for Ms Miller.
32. Both offenders tendered a written apology for their actions, acknowledging the hurt caused to the victims.
Sentencing purposes
33. In relation to the offence of unlawfully taking the child, general deterrence is an important sentencing consideration, as are the considerations of adequate punishment, denunciation, accountability, and recognition of harm to the community that is associated with the flouting of a court order.
34. In relation to the offence of attempting to pervert the course of justice, general deterrence is an important sentencing consideration, although in the circumstances of this case, its importance is somewhat diminished due to the impact of the offender’s mental condition on his moral culpability. The offender’s criminal history suggests that specific deterrence is an important consideration.
35. As Ms Miller is a young offender with no relevant criminal history, rehabilitation is a prominent sentencing purpose. Ms Miller has multiple problems and is doing her very best to address them. She is succeeding in relation to caring for the infant, maintaining appropriate psychiatric treatment, and working towards the goal of employment. It is important that her circumstances be disrupted as little as possible. Her culpability does not demand a sentence of imprisonment.
36. In relation to Ms Miller, it was submitted that the Court should proceed under s 17 of the Crimes (Sentencing) Act 2005 (ACT). Section 17 enables a court to make a non-conviction order either with or without a good behaviour order. Section 17(3) requires that in deciding whether to make a non-conviction order, a sentencing court must consider certain matters, including the seriousness of the offence.
37. In the circumstances of the offence committed by Ms Miller, the objective seriousness of the offence and the related sentencing purposes mean that a non-conviction order is inadequate. However, I do consider it appropriate for the court to proceed by way of a good behaviour order.
38. Mr Summers is not a young offender and he does have a relevant criminal history. However, his mental condition has caused him great difficulty with education and all social interactions. Currently, he enjoys a strong level of support and it is in the interests of the community that his favourable living circumstances (particularly, his employment and family support) be maintained to the extent possible. For that reason, I consider that the imposition of an intensive corrections order would be counterproductive. However, the sentencing purposes of specific deterrence, punishment, accountability and denunciation mean that a sentence of imprisonment is the only appropriate one. Some of those purposes demand that a short period of full-time imprisonment be imposed.
Sentence
39. Ms Miller is convicted. I make a good behaviour order with an undertaking to comply with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 3 years. The good behaviour order is subject to the condition that Ms Miller report to ACT Community Corrections and submit to their supervision or that of any body to whom the task is delegated for the period that the supervisor deems appropriate.
40. Mr Summers is convicted of each offence. In relation to the offence of unlawfully taking the child, he is sentenced to 12 months’ imprisonment from 29 January 2019 to 28 January 2020. The sentence will be suspended on 25 February 2019, after he has served 4 weeks.
41. In relation to the offence of attempting to pervert the course of justice, Mr Summers is sentenced to 12 months’ imprisonment from 29 April 2019 to 28 April 2020. That sentence is fully suspended.
42. The total sentence is 15 months’ imprisonment, suspended from 25 February 2019.
43. In relation to each suspended sentence order, I also make a good behaviour order for the period during which the sentence is suspended. In relation to the 12-month sentence for unlawfully taking the child, the good behaviour order is for a period of 11 months from 25 February 2019. In the case of the 12-month sentence imposed for the offence of attempting to pervert the course of justice, the good behaviour order is for the total period of the sentence—12 months from 29 April 2019 to 28 April 2020.
44. It is a condition of each good behaviour order that the offender report to ACT Community Corrections within one working day of his release from full-time imprisonment and submit to the supervisor of Corrective Services or any other body to whom they may delegate his supervision for such period as the supervisor deems appropriate.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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