R v Weaver
[2015] ACTSC 49
•17 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Weaver |
Citation: | [2015] ACTSC 49 |
Hearing Dates: | 15 October 2014, 11 and 17 December 2014 and 17 February 2015 |
DecisionDate: | 17 February 2015 |
Before: | Murrell CJ |
Decision: | Three months imprisonment, wholly suspended upon the offender entering into a good behaviour order for a period of 12 months |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentencing – rehabilitation – mental health – drug abuse |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 12 Criminal Code 2002 (ACT) s 717 |
Cases Cited: | R v Weaver [2014] ACTSC 228 |
Parties: | The Queen (Crown) Jamie Weaver (Offender) |
Representation: | Counsel Ms S Gul (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Mark Fleming Lawyers (Offender) | |
File Number: | SCC 25 of 2014 |
MURRELL CJ:
Following a judge alone trial, on 29 August 2014 the offender was found guilty of the offence that on 7 April 2013 at Canberra she assisted Miroslav Jovanovic, who had committed the offence of intentionally inflicting grievous bodily harm, with intent to allow him to escape apprehension or prosecution. The offence of accessory after the fact is contrary to s 717 of the Criminal Code 2002 (ACT) and carries a maximum penalty of 15 years imprisonment.
Offending Conduct
The facts are fully set out in my reasons for decision: R v Weaver [2014] ACTSC 228. Briefly, at about 4.50pm on Sunday, 7 April 2013 the offender was at the Belconnen Bus Interchange in the company of her then partner, Mr Jovanovic. He used a knife to stab the victim, causing serious injury. Mr Jovanovic’s apparent motive for doing so was to exact retribution for an injury that he believed had been caused to his son by the victim. After the stabbing incident, which the offender witnessed, the couple walked away from the Interchange, across the road, around a corner and along the western side of the Belconnen Westfield Shopping Centre.
When they were about 58 metres from the scene of the stabbing, Mr Jovanovic handed the knife that he had used to the offender and she placed it in her bag. The offender continued to walk away from the scene as police arrived and apprehended Mr Jovanovic. She must have disposed of the knife because, despite extensive searches, it was never located. The stabbing incident and most of the subsequent passage of the offender and Mr Jovanovic were captured by CCTV.
During the course of the stabbing, the offender said, “Don’t stab him” and she took hold of the arm of Mr Jovanovic in which he was holding the knife. As she walked away from the scene of the stabbing the offender said to the victim, “You should be in the gutter dead or bleeding out.” The offender was opposed to Mr Jovanovic using the knife, was aware that he had done so and voluntarily received the knife from Mr Jovanovic shortly after the incident.
Subjective Circumstances of the Offender
The offender is 26 years of age. She has a short criminal history. A number of appearances relate to non‑compliance. The criminal history contains matters of drinking, driving and drugs; matters such as drive while disqualified and driving with a prescribed concentration of alcohol in her blood. She has not previously been convicted of any offence of violence.
She has served one prior period of full‑time imprisonment in 2011. It related to drinking and driving matters. An effective sentence of seven months' imprisonment was ultimately imposed, of which the offender served six months. The sentence was suspended for the last month.
There was no offending behaviour between January 2011 and the offence in April 2013. There has been no subsequent offending behaviour.
The offender was raised in a household characterised by alcohol abuse and domestic violence. She left school prior to completing Year 12.
Since 14 years of age, the offender has been in one relationship or another involving a significantly older man. Her relationship with Mr Jovanovic ceased when she was remanded in custody. She has since entered a new relationship. At the time of the offence, the offender was pregnant to Mr Jovanovic. The offender is on Centrelink benefits and she has been paying off a Centrelink debt and fines.
A number of features point to a high risk of reoffending, unless appropriate interventions are in place. First, she has no pro‑social contacts. Second, she is not in employment. Third, she has a long‑standing problem of polysubstance abuse. She has had that problem since 13 years of age. Currently, she is receiving pharmacotherapy treatment for heroin abuse. Whether she is compliant with that treatment I do not know. She attends licensed premises daily for reasons that are not clear to me, but are of concern, considering her history of substance abuse and the fact that she is said to have a gambling problem.
Since her teen years she has suffered from a mental illness of unclear diagnosis. This mental illness causes emotional lability, which she cannot control and which makes her aggressive with little provocation. Recently, she was referred to a psychologist and prescribed medication, but she has not commenced that treatment. The Pre-Sentence Report (PSR) refers to her poor attitude to supervision and non-compliance with previous community based orders. For these reasons, she is described as having a high risk of reoffending.
A number of issues require further investigation. The Court may be assisted by a CADAS report and/or a report from a psychologist. The Court would also be assisted if it knew that the offender had actually commenced interventions and was motivated to continue with those interventions.
Objective Seriousness of the Offence
The Crown has submitted that the objective seriousness of the offence is more than low range.
There was no premeditation in relation to the taking of the knife from Mr Jovanovic. The offender voluntarily received it, but in relation to commission of the offence and presumably possession of the knife generally, she had been against Mr Jovanovic using the knife. An independent witness heard her say, “Don’t stab him”, referring to the victim. However, having taken the knife, she must have disposed of it because subsequent thorough enquiries failed to locate the knife. The offender was well aware of Mr Jovanovic’s conduct of repeatedly stabbing the victim, and her disposal of the knife must be viewed in that context.
The offence is at the lower end of objective seriousness. It is not at the bottom end of the range. Some sort of sentence of imprisonment is the only appropriate penalty. The question of how that sentence should be served will depend upon the outcome of further enquiries and the further information that is provided to the Court. The Court would like to be convinced that the offender is willing to comply with appropriate interventions and, therefore that her risk of reoffending is reduced.
Proposed Sentence
The offender should receive a short sentence of imprisonment in the range of three or four months. If the offender undertakes appropriate interventions and demonstrates a capacity to adhere to those interventions, then the sentence should be suspended for a significant period, probably in the range of 12 to 18 months, on strict conditions.
If I am satisfied that it would be appropriate to suspend the sentence then the offender will be placed on a good behaviour order. The offender is to indicate what she is prepared to do and what would be appropriate.
To enable the Court to receive appropriate reports and to enable the offender to demonstrate commitment to appropriate interventions, I will adjourn the proceedings until 11 December 2014 and grant her bail on conditions.
The conditions are as follows:
(a)To report to Eclipse House by 4pm today, 15 October 2014, and submit to the supervision of ACT Corrective Services;
(b)To take all reasonable steps to secure a mental health treatment plan and to commence the treatment advised under that plan;
(c)To discuss her attendances at licensed premises with ACT Corrective Services and agree upon an appropriate plan for attending such premises;
(d)To undertake such counselling treatment and programs as are recommended by ACT Corrective Services and/or her treatment providers regarding polysubstance abuse; and
(e)On 11 December 2014 to present the Court with a plan for her conduct during any good behaviour bond.
A CADAS report and a bail progress report from ACT Corrective Services are to be prepared for 11 December 2014.
Proceedings on 11 December 2014
The matter came before me again on 11 December 2014. I ordered that the matter be relisted for 17 December 2014 and bail be continued on the same conditions. The offender was to present a mental health treatment plan at the next hearing.
Proceedings on 17 December 2014
I adjourned the matter until 17 February 2015 for the purpose of ascertaining the offender’s compliance with the following bail conditions:
(a)That today, 17 December 2014, the offender make an appointment to see her GP as soon as possible for the purpose of reviewing her current treatment, including her methadone use;
(b)She continue to take Zoloft medication and any other medication prescribed by her GP and to take methadone as prescribed by her GP or methadone provider and to undertake any other treatment that her GP recommends;
(c)She is to undertake her mental health treatment plan and meet with her GP in relation to that plan prior to 8 February 2015;
(d)She is to attend counselling with Catholic Care on 20 January 2015 and thereafter as recommended by Catholic Care and her GP; and
(e)She is to report to Eclipse House by 4pm today, 17 December 2014, and submit to the supervision of ACT Corrective Services including undertaking such drug testing as is requested.
An updated PSR was ordered for 17 February 2015.
Proceedings on 17 February 2015
The matter was originally adjourned until 17 December 2015 and then further adjourned to 17 February 2015 so as to ascertain whether the offender had complied with bail conditions.
I have received an updated PSR.
I am satisfied that the offender has complied with her bail conditions. She made an appointment to see her GP. She continues to take methadone. She has engaged well with the Canberra Alliance for Harm Minimisation and Advocacy. She has reported to Eclipse House as required.
The offender is convicted and sentenced to 3 months’ imprisonment. Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) I make an order suspending the whole of the sentence from today, 17 February 2015, upon the offender entering into a good behaviour order for a period of 12 months.
The good behaviour order is subject to the following conditions. The offender is:
(a)To submit to the supervision of ACT Corrective Services for as long as ACT Corrective Services considers necessary;
(b)To report to Eclipse House by 4pm today, 17 February 2015 and
(c)To continue to seek and accept treatment from her GP and other health care professionals as recommended by her GP and/or ACT Corrective Services, including treatment in relation to mental health issues and substance abuse.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 3 March 2015 |
0