R v Walto
[2022] ACTSC 187
•25 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Walto |
Citation: | [2022] ACTSC 187 |
Hearing Date: | 21 July 2022 |
DecisionDate: | 25 July 2022 |
Before: | Mossop J |
Decision: | See [88] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – rescuing by force a person who was in lawful custody – intentionally causing damage to property – dangerous driving – taking a motor vehicle without consent – assault occasioning actual bodily harm – assaulting a frontline officer – driving while suspended – significant criminal history – gravity of conduct requires custodial sentence – non-parole period below usual range due to reasonable prospects of rehabilitation and welfare of children |
Legislation Cited: | Crimes (Sentence Administration) Act2005 (ACT), s 116ZQ Crimes (Sentencing) Act 2005 (ACT), ss 11, 12A(3) Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 7(1) |
Cases Cited: | R v Newman; R v Reid [2016] ACTSC 102 R v Rosewarne [2021] ACTSC 217 R v Wright (No 2) [2019] ACTSC 46 |
Parties: | The Queen ( Crown) Lila Rose Mary Walto ( Offender) |
Representation: | Counsel M Smith ( Crown) F Purnell SC ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aulich Criminal Law ( Offender) | |
File Numbers: | SCC 111 of 2022 SCC 112 of 2022 |
MOSSOP J:
Introduction
On 4 May 2022, the offender, Lila Rose Mary Walto, pleaded guilty to the following offences:
(a)One count of rescuing by force a person who was in lawful custody, contrary to s 161(a) of the Crimes Act 1900 (ACT) (CC2021/7292). The maximum penalty for this offence is imprisonment for 14 years.
(b)One count of intentionally causing damage to property belonging to someone else, contrary to s 403(1) of the Criminal Code 2002 (ACT) (CC2021/7152). The maximum penalty for this offence is imprisonment for 10 years or 1000 penalty units, or both.
(c)Two counts of dangerous driving, contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (CC2021/7148 and CC2021/7288). The maximum penalty for this offence is imprisonment for one year or 100 penalty units, or both.
(d)One count of taking a motor vehicle without consent, contrary to s 318(1) of the Criminal Code 2002 (ACT) (CC2021/7150). The maximum penalty for this offence is imprisonment for five years or 500 penalty units, or both.
(e)One count of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (CC2021/7879). The penalty for this offence is imprisonment for five years.
(f)Two counts of assaulting a frontline officer, contrary to s 26A of the Crimes Act 1900 (ACT) (CC2021/7145 and CC2021/7146). The maximum penalty for this offence is imprisonment for two years.
(g)One count of driving while suspended, contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (CC2021/7149). The maximum penalty for a first offender is imprisonment for six months or 50 penalty units, or both.
Facts
The facts are agreed and are in summary as follows.
Kane Quinn (Quinn) was the offender’s partner. On 25 August 2017 Quinn was sentenced in the NSW District Court to an aggregate sentence of 14 years’ imprisonment to commence on 13 December 2015 and conclude on 12 December 2029, with a non‑parole period of nine years to commence on 13 December 2015 and conclude on 12 December 2024.
As at July 2021 Quinn was serving his sentence at the Alexander Maconochie Centre (AMC).
Some time prior to 9 July 2021 ACT Corrective Services staff at the AMC received intelligence that drugs had been concealed at a location at the Canberra Hospital and that Quinn would attempt to collect them. A package containing suspected illicit substances was located in the area referred to in the intelligence report and was removed.
On Friday 9 July 2021 Quinn told staff at the AMC that he had swallowed a battery. Arrangements were made to transport him to the Canberra Hospital for assessment.
Between 10:00am and 10:30am on 9 July 2021 the offender attended the Gulson Car Dealership located at 76 Newcastle Street, Fyshwick with her housemate Jade Mathias (Mathias).
She arranged to test drive a Jeep Wrangler. She gave a false name and provided a driver licence that was not hers. She told the salesperson a story about having a loan approved for $100,000 and wishing to buy such a vehicle. She, Mathias and the salesperson went for a test drive around Fyshwick and Queanbeyan for about 22 minutes before returning to the dealership. During the test drive, she repeatedly shook the steering wheel, saying she wanted to test the vehicle’s stability.
Upon returning to the dealership the offender discussed finances with the salesperson. She then asked to take the vehicle to show it to her sister who worked in Gungahlin. Part of her story was that her sister worked in a bank and had approved the $100,000 loan. The salesperson would not let her take the vehicle without accompanying her. They agreed on a second test drive with the salesperson in the vehicle. During this test drive, at around midday, the offender or Mathias asked to stop to have a cigarette. They pulled over on the Majura Parkway and got out of the vehicle. While the salesperson was taking a telephone call outside the vehicle, the offender and Mathias got back in the vehicle and accelerated away. (This is the offence of taking a motor vehicle without consent CC2021/7150.) In the course of doing so the Jeep collided with a Mini Cooper, the driver of which had stopped to see what was happening. (This is the offence of dangerous driving CC2021/7148.)
At about 3:30pm that day three male corrections officers were tasked with transporting Quinn to the Canberra Hospital. The officers will be referred to as officers A, B and C. They travelled in a white Toyota Camry sedan.
Officer A was driving and Quinn was seated in the rear middle seat, with Officer B on his right and Officer C on his left. Quinn had his hands secured in front of his body by handcuffs.
Officer A drove along the Monaro Highway, northbound towards Hindmarsh Drive. He exited west onto Hindmarsh Drive. He then drove west along Hindmarsh Drive, over Red Hill and started to come down the Garran side of the hill.
At this time the offender was driving the stolen Jeep in the area. Mathias was also in the vehicle. The offender used the Jeep to strike the Toyota Camry from behind at speed. The collision caused the boot of the Toyota Camry to bend up. (This and subsequent collisions with the Toyota Camry constitute the offence of intentionally causing damage to property CC2021/7152. The driving of the Jeep during its pursuit of the Toyota Camry is the offence of dangerous driving CC2021/7288.) The agreed facts do not disclose how it was that the offender knew that the Toyota Camry was the vehicle in which Quinn would be transported. However, counsel for the offender stated that the plan had been formulated between the offender and Quinn on the previous day.
The offender’s evidence was that she planned only a single collision which would cause the Camry to stop and it was intended that Quinn would escape at that point. However, the Camry did not stop.
The offender used the Jeep to collide with the Toyota Camry a second time. Officer A suspected that the driver of the Jeep was trying to “get” Quinn.
The offender hit the Toyota Camry with the Jeep a third time. This caused the Camry to spin out of control onto the median strip of Hindmarsh Drive.
Officer C used the radio to alert the AMC of the incident. Officer B used a mobile telephone to call triple zero. Officer A drove the damaged Camry back onto the northern side of the road and drove east back up Red Hill towards the Monaro Highway. As he drove down the eastern side of the hill, the offender again used the Jeep to collide into the driver side of the Camry.
Officer A turned off Hindmarsh Drive in an attempt to escape the Jeep. He drove along a median strip for a short distance in an attempt to evade the Jeep. The offender followed in the Jeep. There was heavy traffic in the area.
Officer A drove towards Canberra Avenue, Griffith. The offender followed in the Jeep. A short time later the offender used the Jeep to again collide with the Camry. This pushed the Camry onto a median strip near the Manuka shopping centre. Officer A drove the vehicle across the road and the Jeep again collided with the driver side of the Camry.
The Jeep briefly stopped and Mathias exited the car and left the area.
The offender then deliberately collided the Jeep with the driver side of the Camry. By this time the Camry was badly damaged but was able to continue moving. During the incident Quinn was shouting comments including: “They’re trying to kill me”, “I don’t want to get shot, fuck” and “Don’t give me the fuck over”.
Officer A drove the Camry into Oxley Street, Kingston opposite the East Hotel. The offender rammed the driver side of the Camry several more times, disabling it. Officer A jumped across to the passenger side of the vehicle to avoid injury and exited the Camry though the front passenger door. The Camry was unable to move and had suffered significant panel damage.
Officer A opened the back passenger side door of the vehicle. Quinn and Officers B and C got out. Quinn made comments including: “Get out, they’re going to fucking kill me” and “Hurry up man, they’re going to – trying to, like kill me”.
Quinn started to move away from the area. Officer B took hold of Quinn by the handcuffs. Quinn attempted to run with Officer B holding onto the handcuffs. He ran down a driveway shouting “let me fucking go”. As he did that, the offender drove the Jeep across the driveway and shouted out to Quinn to get into the Jeep. Quinn evaded Officer B and ran back towards the Jeep. Quinn got into the rear passenger side of the Jeep. The offender drove away with Quinn in the vehicle. (The course of conduct leading up to Quinn escaping in the Jeep Wrangler is the offence of rescuing by force a person in lawful custody CC2021/7292.)
As a result of in the incident, Officer C sustained an abrasion to his forehead, a bulging disc and a delayed concussion. (This is the offence of assault occasioning actual bodily harm CC2021/7879.) He also experienced sore ribs. Officer B experienced a sore back, elbow and head. (This is one of the counts of assaulting a frontline officer CC 2021/7146.) Officer A complained of a sore back and neck. All three officers were transported to the Canberra Hospital. (The assault on officer A is the other count of assaulting a frontline officer CC2021/7145.)
At about 8pm that evening, police received information that the offender and Quinn were at an address in Lyneham. Numerous police resources, including Australian Federal Police (AFP) Tactical Response and AFP negotiators were deployed to the residence.
At 8:15pm after a short negotiation, the offender exited the residence in the company of another person and was arrested.
Police continued to negotiate with further persons in the residence. Two males exited the residence. After that Quinn shouted out “I am not coming out until I have smoked all of my drugs”. Power tools could then be heard operating from the crawl space of the property.
After prolonged negotiations, Quinn exited the residence. He was still wearing the handcuffs placed on him by AMC staff earlier that day. The cuffs had been cut from his left hand and a lock pick was jammed into the lock mechanism of the right cuff.
At about 11:34pm the offender participated in a digital record of interview. She made partial admissions including that:
(a)it was my plan. It wasn’t Kane’s fault.
(b)[The plan was to] grab my kids and start a new life.
(c)[She] got to hug and kiss Kane.
The offender’s licence had been suspended on 10 March 2021 and remained suspended at the time of the offending. It was suspended for a failure to pay an infringement notice. (This is the offence of driving while suspended (CC2021/7149.)
Victim impact statement
Officer C provided a victim impact statement. He reported that his career as a senior corrective services officer of 19 years has been ended as a result of the trauma and injuries sustained in the incident. He described that he suffers both physically and mentally every day. He reportedly deals with chronic pain, post-traumatic stress disorder and anxiety as a result of the offender’s behaviour. He has also suffered financially as he had planned to continue working with ACT Corrective Services for at least a further 15 years.
He explained that in carrying out the plan, the offender failed to consider that the victims of the incident have family, children and friends. The victim stated that the offender placed her unrealistic belief to break a prisoner out of the Corrections vehicle above the safety of the ACT community, a car salesman, three corrective services officers and the offender’s passenger.
Objective seriousness
Rescuing by force a person in lawful custody: the offending in the present case was planned. Although the planning did not involve as much violence as actually occurred, it was persisted with over a substantial period even when it was clear that ongoing violence was necessary in order to effectuate the escape. The offending conduct put a large number of people at risk but this is accounted for in the second of the offences of dangerous driving. It was not aggravated by the use of firearms or weapons such as knives although, plainly enough, the vehicle was used as a weapon. There was no intention to cause physical injury to the corrections officers although a high level of recklessness as to that consequence was demonstrated. The offending is above the mid‑range of objective seriousness for this offence.
Taking a motor vehicle without consent (see R v Rosewarne [2021] ACTSC 217 (Rosewarne) at [123]): this offending involved a degree of planning and persistence in the execution of that plan. The motive of the offending was in order to facilitate further serious offending. The taking of the vehicle resulted in damage to the vehicle. Once again, this offending is above the mid-range of objective seriousness for this offence.
Intentionally causing damage to property belonging to someone else (see Rosewarne at [120]): this offence relates to the damage to the Toyota Camry. The damage was extensive, inflicted on multiple occasions over a substantial period and inflicted for the purpose of committing another offence. It is at the upper end of the mid-range of objective seriousness for this offence.
Assault occasioning actual bodily harm (see R v Newman; R v Reid [2016] ACTSC 102 at [14]): the nature of the offending conduct involved multiple blows by the Jeep Wrangler upon the Toyota Camry, one or more of which had the effect of injuring Officer C. It was inflicted in order to commit another offence. Of the injuries sustained, the most significant was a bulging disc. The offending is at the upper end of the mid-range of objective seriousness for this offence.
Two counts of assaulting a frontline officer: in each case, although the injuries were modest, the purpose for which they were inflicted involved persistence in actions involving recklessness as to the infliction of those injuries, which places this conduct in the lower end of the mid‑range of objective seriousness for this offence.
Two counts of dangerous driving: the first of these offences, which involved the collision with the Mini Cooper, is in the low range of objective seriousness. The second of these offences which relates to the pursuit of the Toyota Camry is in the high range of objective seriousness for this offence.
Driving while suspended: the offending is unremarkable except for the fact that the driving was for the purposes of committing criminal offences and is in the mid‑range of objective seriousness.
Subjective circumstances
The offender is currently 29 years old.
Her subjective circumstances are set out in a pre-sentence report dated 18 July 2022, a psychological assessment report of Dr Jeremy O’Dea dated 13 July 2022, a letter of the offender’s solicitor to the Commissioner of ACT Corrective Services dated 5 April 2022, letters of the offender to various victims dated 15 July 2022, a letter from the offender’s mother dated 18 July 2022, a statement of employment form from the AMC dated 13 July 2022, a letter of support from Toora Women Inc dated 8 July 2022, medical records from 2016, email correspondence about the availability of housing and various certificates demonstrating the completion of programs of varying length within the AMC.
The offender was born in the United States of America. When she was eight years old she relocated to Australia with her mother and sister. As a result, she ceased to have contact with her father who died in 2004. She felt resentment against her mother for this loss of contact. Her father’s death had a detrimental impact on her life with her behaviour changing from that point on.
She had a strained relationship with her mother and sister and she left the family home at the age of 16 due to ongoing conflict. Prior to the birth of her children, her mother disapproved of her lifestyle which involved alcohol, drugs, offending and putting her friends before her family. However, in the past two years her relationship with her mother and sister has improved. This has corresponded with the offender becoming a mother herself. The offender’s mother said that she had become a lot more responsible and that she still had “stupid crazy ideas” but decided not to carry them out. Her mother and sister are supportive and she communicates with them often. The offender’s mother visits the offender with the offender’s children while she has been in custody. The author of the pre-sentence report stated that her mother and sister appear to be pro-social individuals and that is consistent with my impression of her mother when she gave evidence. In her oral evidence her mother appeared to recognise the need for the offender to have ongoing support over a longer period, including drug and alcohol education.
The offender gave evidence that she is single as she has recently ceased her relationship with Quinn, in order to focus on her herself and her children. The offender met Quinn in primary school and they had been in a relationship for two years while he was in jail. The offender was in an “on and off” relationship with the father of her children for about four years. She claimed that this relationship involved domestic violence and an incident of sexual assault which resulted in the birth of her second child.
The offender has two children with her former partner, one aged almost three years old and the other 18 months old. The offender reported that she has a close relationship with her children and that they were removed from her custody by Child and Youth Protection Services (CYPS). CYPS records note that the service has an extensive history with the offender. Predominant themes in the reports are in relation to family violence, parental substance misuse, parental lifestyle and neglect. In June 2021 the children were placed in the care of their paternal grandmother. Their maternal grandmother has custody of them every second weekend and takes them to see their mother in prison. The evidence of the offender’s mother was that there are presently no formal orders in place requiring the children to be in the care of their paternal grandmother and the paternal grandmother is prepared to cooperate with a gradual restoration of contact between the children and the offender.
The offender does not currently have any accommodation outside of custody. Before custody she resided in her maternal grandmother’s home. However, the evidence establishes that she would have access to transitional accommodation if released from custody.
The offender completed Year 10 and subsequently completed a diploma in business management and became a qualified chef. She had employment as a chef and business manager for a landscaping firm. The offender had a consistent employment history until her incarceration in 2019. She had her first child in custody and was primarily a stay‑at‑home mother after her release.
She has been employed at the AMC since August 2021. She has progressed to higher trusted positions and is currently employed in the bakery. A statement of employment form from the AMC reports positive feedback in relation to her work ethic. The offender reported an intention to obtain employment upon her release and has reportedly received various offers including a part-time apprenticeship in an automotive repairs shop. In evidence, she expressed a desire to get work in a business management role in the construction industry.
The offender has a history of drug use and alcohol consumption. She recalled a period in which she would use methamphetamine and ecstasy. She used illicit substances until she fell pregnant with her first child in 2019. She claimed that she ceased illicit substance use at that time and remained abstinent for a two-year period. Following the removal of her children she consumed alcohol daily. On about 30 June 2021 after a conversation with her mother on the telephone in which she had been crying and out-of-control following the loss of her children, her mother asked police to check on her welfare. This was because the offender had threatened to kill herself. Police checked on her. They found her in a wardrobe. She assured them that she would not commit suicide.
In relation to the day of the offence, she gave evidence that in the early hours of that morning she had attempted suicide by hanging herself and Mathias had intervened and cut her down. She gave evidence that after she had been stopped she used illicit substances to cope with her emotions. She had approximately 10 premixed Jack Daniel’s drinks and ‘three points’ of methamphetamine.
The evidence of the lead up to the offending is difficult to reconcile. The offender admitted through her counsel that it was the day before the offending that she had planned with Quinn to break him out of jail during the hospital visit. Yet that evening, having made the plan, she was then in such a state that she had attempted suicide. Having attempted suicide and subsequently taken drugs, she then engaged in a detailed plan of deception in order to obtain access to the Jeep. Having obtained access to the Jeep, she filled in a number of hours during which she had plenty of time to think before carrying out the aggressive and persistent offending directed at Quinn’s escape. In oral evidence she agreed that she knew that the alcohol and drugs would affect her decision-making.
Since entering custody the offender has been subjected to five urinalysis tests. One test returned a negative result and the subsequent four tests returned a positive result for amphetamines, but these were consistent with her prescribed medication. The offender has expressed her desire to engage in interventions to address her history of illicit substance use upon her release from custody. The offender has completed several rehabilitation programs while in custody.
She reported being diagnosed with attention deficit hyperactivity disorder (ADHD) when she was eight years old. When she was 13 years old she was diagnosed with manic depression. When she was 16 years old she was diagnosed with bipolar disorder. When she was 20 years old she was re-diagnosed with bipolar Type II. Documentary evidence establishes that her regular medication at the age of 22 included lithium for her bipolar disorder. When she was 23 years old she was re-diagnosed with ADHD. The offender claimed she had consistently engaged with a psychiatrist to manage her ADHD and had been compliant with her medication. She reportedly has been unable to trial bipolar medications which are compatible with her ADHD medication while she has been in custody.
Of this history, Dr Jeremy O’Dea, a consultant forensic psychiatrist, said:
In addition to her history of Substance Use Disorder, in particular Alcohol and Amphetamine Use Disorders and ADHD; her history of trauma, mood swings, suicidal behaviour, and repeated offending behaviour, may be better understood in the context of a Personality Disorder, with borderline and antisocial traits, rather than a Major Mood Disorder, such as Bipolar Affective Disorder.
(Emphasis in original.)
He recommended that although her moods appeared to be under adequate control, she should be monitored in the longer term whilst abstinent from alcohol and illicit substance use in order to further clarify whether she had a major mood disorder in addition to her personality disorder.
As to any link between the offending and her mental health, Dr O’Dea concluded:
Whilst I note that Ms Walto was experiencing the specific and significant stressors of the separation from her children leading up to the index offences, with likely fluctuations in her moods as a result, that would have been further exacerbated by her reported use of alcohol and illicit substances at that time; and it is reasonable to assume that [her] moods and substance abuse would have impacted upon her judgement and behavioural control at the time of the index offences; I could not directly link, her mental health, independent of her alcohol and amphetamine abuse at the time, to the commission of the index offences, as referred to in section 28 of the ACT Criminal Code 2002.
The offender reported an intention to seek treatment for trauma when released and intends to obtain an updated mental health care plan and a referral to a new psychiatrist. The offender has engaged with Custodial Mental Health Services whilst in custody. Notwithstanding the absence of a causal link with her offending, the offender’s mental health, including her likely Personality Disorder, is a matter to be taken into account in sentencing her.
The offender stated to the author of the pre-sentence report that she was “shocked” and “horrified” that she had “done something like that”. She was able to identify the impact her actions had on the victims and had demonstrated victim empathy towards to the corrections officers involved. In oral evidence, she said that she felt horrible about the impact of her offending upon the corrections officers.
However, the motivations and thought processes associated with the offending are at best confusing and at worst disturbing. The author of the pre-sentence report recorded her stated motivations for the offending as follows:
Ms Walto explained she committed the offence because she had reported her former partner’s domestic violence to Police and as a result, her children were removed. Ms Walto stated that she attempted to rightfully submit a report to Police and seek their help, but they did not want to help her so, she decided to help herself. Ms Walto stated that she committed the offence in retaliation to Police, and because she also wanted physical affection from her partner. Ms Walto noted difficulties being able to obtain physical affection from her partner leading to the offence due to Covid-19 restrictions.
The author of the pre-sentence report assessed the offender as being a high risk of general reoffending. The assessed risk is due to her misuse of substances, mental health, unemployment and her engagement with negative associates. The author notes that the offender appears to be making efforts to reduce her risk factors and that if she continues to follow through with her current intentions her risk of reoffending may reduce. She was assessed as suitable for a good behaviour order with a high level of intervention and suitable for a community service work condition. After the availability of accommodation was clarified, she was assessed as suitable for an intensive correction order (ICO).
A letter from the offender’s solicitor was tendered. It included complaints to the management of the AMC that she was being unfairly treated or discriminated against because corrections officers were victims of her offending. While she has been subject to some adverse comments from corrections staff concerning her offending, the evidence is insufficient to establish a causal relationship between the various matters referred to in the letter and her offending. Therefore, contrary to the submissions put on her behalf, I am not satisfied that this is a case in which extra-curial punishment is significant for her sentencing.
Criminal history
The offender has a significant criminal history. So far as her criminal history in the ACT is concerned, in 2017 she committed five offences of obtaining property by deception for which she was given good behaviour orders with periods of community service. There were breach proceedings in relation to those good behaviour orders in 2020 and 2022.
Later in 2017 she committed the offences of unlawfully possessing stolen property, being an unlicensed driver, being a driver with methamphetamine in her oral fluid and a number-plate offence in relation to a vehicle. In 2020 she committed another offence of being a driver with methamphetamine in her oral fluid.
In New South Wales her criminal history commences in 2011 with an offence of common assault. In 2016 she committed firearms offences which resulted in suspended sentences of imprisonment. Breach action resulted in those sentences subsequently being partially imposed. In the same year she drove with an illicit drug present in her blood and was fined and disqualified for a period. She also committed the offence of possessing a prohibited drug. In 2017 she committed the offence of receiving stolen property and having goods in her custody suspected of being stolen. She received a bond on the former charge. She breached the bond. In 2018 she committed a number of offences of possessing a prohibited drug. She also had goods in custody suspected of being stolen, possessing or using a prohibited weapon and having custody of a knife in a public place. In 2019 she committed other offences of dishonesty.
As a result of breaching the bond for the 2017 offences and committing the 2018 and 2019 offences, she was sentenced to a partially suspended sentence of 17 months. The non-parole period was from March 2019 until March 2020. That was subsequently varied in the NSW District Court with the non-parole period being reduced to nine months from March until December 2019.
Plea of guilty
The offender pleaded guilty to all charges in the Magistrates Court. This was at the eleventh mention of the matter, after entry of pleas of not guilty and the provision of a brief of evidence, but before committal for trial.
A reduction in the sentence that would otherwise have been imposed of between 20 and 25 percent is appropriate in the circumstances.
Time in custody
The offender has spent 378 days in custody solely attributable to these offences. The sentences to be imposed will be backdated in order to take this time in custody into account. This gives a backdate date of 12 July 2021.
Reparation order
The Crown sought a reparation order in favour of Ray Gulson Pty Ltd in the sum of $48,058.98. This figure comprises of $45,500 being the value of the Jeep Wrangler and $2,558.98 which the dealership paid to the driver of the Mini Cooper in relation to the damage caused to her car when the offender was driving the vehicle. These losses were not covered by insurance. Subject to what follows, the statutory requirements for the making of such orders have been met.
The making of a reparation order was said to be futile having regard to the financial circumstances of the offender, particularly if she remained in custody. In R v Wright (No 2) [2019] ACTSC 46 at [12], I referred to the legislative provisions relating to the enforceability of reparation orders. In summary, in the absence of being made a condition of a good behaviour order, they are of limited enforceability. However, one of the clear purposes of reparation orders is to avoid the necessity for victims of offending to separately commence civil proceedings in order to attempt to recover amounts which would clearly be found to be owing. Even in cases where it appears that the prospects of recovery are low, there is some value in the making of such orders and allowing subsequent investigation of their value to the victim to be made. To the extent to which the legislative regime or the approach of the Territory to the making of agreements under s 116ZQ of the Crimes (Sentence Administration) Act2005 (ACT) mean that they are of little value to a victim then that is largely a result of a legislative choice which, it is necessary to assume, was made on some proper basis.
For those reasons I will make the orders sought.
Consideration
There was no issue that a custodial sentence was appropriate.
Counsel for the offender submitted that one of a number of options should be adopted that would allow, having regard to the substantial period already spent in custody, the offender to be released immediately. The options were a drug and alcohol treatment order, a sentence served by way of intensive correction in the community or a suspended sentence of imprisonment.
A drug and alcohol treatment order is not available because the aggregate sentence that I will impose exceeds the four year maximum specified in s 12A(3) of the Crimes (Sentencing) Act 2005 (ACT) (CS Act). Further, it would not adequately meet the purposes of sentencing.
So far as ICOs are concerned, subject to the terms of s 11 of the CS Act, it would be possible to impose such orders by either backdating them to cover the period during which the offender was in custody or by imposing a sentence which took into account, but did not include, the pre-sentence custody. It is not necessary to examine the availability of backdating such sentences in the present case because, on any view, they would involve the release of the offender upon an ICO immediately. That, in my view, would not be an outcome which would properly reflect the overall purposes of sentencing, in particular the need to denounce the conduct and deter others from committing such serious and dangerous offences.
So far as a partially suspended sentence of imprisonment is concerned, this is clearly an available option but, for the reasons which I have just given, not one which would be appropriate to achieve an immediate release of the offender from custody.
The circumstances of the offending and the objective seriousness are referred to earlier. An offence involving breaking somebody out of lawful custody involves a very direct challenge to one of the most basic functions of the state – detention of persons sentenced to imprisonment. In this case, even though it cannot be established beyond reasonable doubt that the offender planned to carry it out in the manner that she did, as opposed to only involving a single collision, it was carried out with persistent violence over a substantial period. Other offences committed at the time involved putting the public at risk.
The plan itself, like most plans involving a direct confrontation by an individual with a basic function of the state such as the lawful incarceration of prisoners, involved a lack of consequential thinking. The offender’s goal of uniting with her boyfriend, regaining her children and having a happy life was never going to occur as a result of her plan. Nevertheless, in her drug affected state, she pursued it with a degree of sophistication.
Any sentence must appropriately denounce the conduct, deter others from committing such offences and recognise the harm done to the victims of the offending. Those victims include the business from whom the Jeep was taken and who bore the liability to the owner of the Mini Cooper, as well as the corrections officers who must have been put in fear of their lives as a result of the conduct of the offender and at least one of whom has suffered significant injuries and for whom this is a life changing event.
Unfortunately, the gravity of her offending conduct is such that, notwithstanding her conduct in custody and her clear motivation to try to be a good mother to her children, it is not possible to impose a sentence which allows her immediate release from custody.
Having said that, there is a clear community interest in her rehabilitation. A period of incarceration which fails to take into account the interests of the offender in trying to be a decent mother to her children, and of her children in having a present and functional parent, would fail to promote the interests of the community. It would be more likely to entrench generational dysfunction. Further, while there is certainly hope as to her prospects of rehabilitation having regard to her motivation and her conduct in custody, any prognosis as to her future when released into the community must be guarded. Having regard to the personality structure of the offender and the possibility of a significant mood disorder, it is clear that any sentence imposed should involve a substantial period subject to supervision in the community so as to stabilise her life and ensure that she does not further damage the community by returning to the pattern of criminal behaviour demonstrated in her past.
In my view, the appropriate way to balance these respective factors is to impose a sentence of imprisonment that incorporates what would be a shorter than usual non‑parole period. That will allow an assessment of her suitability for release upon the expiry of the non-parole period but give her and her children the benefit of a substantial period during which she will be subject to supervision on parole.
The sentences that will be imposed are set out in the following table. The table describes the starting point, the sentence imposed after a discount for the plea of guilty and the degree of cumulation of a sentence upon the previous sentences.
Significant elements of concurrency are built into the sentences because of the need to consider the totality of the sentence and in order to recognise the overlap in the conduct giving rise to the offences.
Charge Starting point (months’ imprisonment) Sentence (months’ imprisonment) Cumulation (months’ imprisonment) Rescue from lawful custody
84
66
Damage to property
36
28
Dangerous driving
4
3
Dangerous driving
8
6
3
Take motor vehicle
36
28
6
Assault occasioning actual bodily harm
12
9
4
Assault frontline officer
4
3
Assault frontline officer
4
3
Drive while suspended
3
2.25
1
Total
80
Having regard to the reasonable prospects of rehabilitation, the significance of her children for that rehabilitation, the welfare of her children and the desirability of having a significant period subject to supervision in the community, it is appropriate to have a non‑parole period below the usual range, namely approximately 40 percent of the head sentence. The non-parole period will be 32 months.
There is no need to make any disqualification orders in relation to the driving offences as these are automatically imposed by the legislation: Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 7; Road Transport (General) Act 1999 (ACT), s 63.
Orders
The orders of the Court are:
1. On the charge CC2021/7292, rescuing by force a person from lawful custody, the offender is sentenced to imprisonment for five years and six months from 12 July 2021 to 11 January 2027.
2. On the charge CC2021/7152, intentionally causing damage to property belonging to someone else, the offender is sentenced to imprisonment for two years and four months from 12 July 2021 to 11 November 2023.
3. On the charge of dangerous driving CC2021/7148, the offender is sentenced to imprisonment for three months from 12 July 2021 to 11 October 2021.
4. On the charge of dangerous driving CC2021/7288, the offender is sentenced to imprisonment for six months from 12 October 2026 to 11 April 2027.
5. On the charge CC2021/7150, taking a motor vehicle without consent, the offender is sentenced to imprisonment for two years and four months from 12 June 2025 to 11 October 2027.
6. On the charge CC2021/7879, assault occasioning actual bodily harm, the offender is sentenced to imprisonment for nine months from 12 May 2027 to 11 February 2028.
7. On charge CC2021/7145, assaulting a frontline officer, the offender is sentenced to imprisonment for three months from 12 May 2027 to 11 August 2027.
8. On charge CC2021/7146, assaulting a frontline officer, the offender is sentenced to imprisonment for three months from 12 May 2027 to 11 August 2027.
9. On the charge CC2021/7149, driving while suspended, the offender is sentenced to imprisonment for two months and seven days from 5 January 2028 to 11 March 2028.
10. A reparation order in the sum of $48,058.98 in favour of Ray Gulson Pty Ltd, 92 Newcastle Street Fyshwick ACT 2609.
11. The non-parole period is 32 months commencing on 12 July 2021 and ending on 11 March 2024.
| I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 30 August 2022 |
3
7