R v West
[2018] ACTSC 222
•31 July 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v West |
Citation: | [2018] ACTSC 222 |
Hearing Date: | 31 July 2018 |
DecisionDate: | 31 July 2018 |
Before: | Murrell CJ |
Decision: | Suspended sentences, good behaviour order and fines imposed: see [35]–[41]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary, theft and dishonestly drive vehicle taken without consent – sentencing purposes – rehabilitation – offences committed on conditional liberty |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 16 and 35 |
Parties: | The Queen (Crown) Bobbie Lee West (Offender) |
Representation: | Counsel Mr P Dixon (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 84 of 2018; 85 of 2018; SCC 179 of 2015 |
MURREL CJ:
The offender is to be sentenced for the following offences:
(a)On 4 December 2017, burglary. The maximum sentence is 14 years’ imprisonment.
(b)On 4 December 2017, theft of sunglasses. The maximum sentence is 10 years’ imprisonment.
(c)From 4 December 2017 to 6 December 2017, dishonestly driving a motor vehicle taken without consent. The maximum sentence is 5 years’ imprisonment.
(d)On 5 December 2017, disobeying a no right turn sign. The maximum penalty is a fine of $3000.00.
(e)On 6 December 2017, possessing property suspected of being stolen. The maximum sentence is 6 months’ imprisonment and/or a fine of $1500.00.
Disqualification provisions also apply. I will note them later.
The offender was committed to the Supreme Court for trial and pleaded guilty five weeks later. The pleas of guilty carried significant utilitarian value, and in my view the offender should receive a sentence discount of about 15 per cent, taking into account s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The offender spent 56 days in custody after she was arrested, from 6 December 2017 to 31 January 2018.
The offences placed the offender in breach of a good behaviour order associated with a suspended sentence. The breach proceedings are also before me.
Facts relating to December 2017 offences
At about 8:20 PM on 4 December 2017, the offender attended a residence in Wanniassa. She knocked on the door and called out the name of the female occupant. A male occupant was the only person at home. He ignored the knock.
The offender entered. When the male occupant heard a noise downstairs and went to investigate, he saw the offender walking up the stairs. He recognised her. He saw her entering a bedroom and told her that she should not take anything. He felt intimidated.
Before leaving the residence in a vehicle belonging to one of the occupants, the offender removed a pair of sunglasses.
The police were called.
On the morning of 5 December 2017, the offender drove the stolen vehicle through a McDonald’s takeaway outlet and then turned right against a no right turn sign. There was a passenger in the vehicle.
Later that day, the offender was observed by two occupants of the Wanniassa premises to be driving the vehicle, in which there was a passenger.
There was a minor collision between the vehicle driven by the two occupants of the Wanniassa premises, the vehicle driven by the offender and another vehicle.
Following the collision, there was an altercation during which the offender was punched and sustained injuries to her head and right arm. Police attended.
The offender was arrested and taken to Canberra Hospital. She presented to the emergency department suffering from a fracture of the lower end of the humerus with moderate displacement, and a number of soft tissue injuries to her face and arms.
When they searched the vehicle that had been driven by the offender, the police located numerous cards (including health cards and sports club cards) in the name of a third party who had reported them stolen during a burglary of her home on 21 November 2017.
Objective seriousness
The burglary matter committed in December 2017 was certainly not the most serious type of burglary, but nor was it a matter of low objective seriousness. It may have been relatively opportunistic but it was a brazen incident that involved entering premises when a person happened to be at home and, as a consequence, the person was intimidated.
The theft was a minor matter. One pair of sunglasses was taken; albeit the sunglasses were taken after the occupant of the premises had expressly requested that the offender take nothing. I infer that the sunglasses were of little monetary or intrinsic value.
The driving matter was of some seriousness because the offender drove the vehicle for several days. She had passengers in the vehicle. Ultimately, the vehicle was damaged in a collision.
All the December 2017 offences are of some seriousness because they were committed when the offender was on conditional liberty for an offence of dishonesty in relation to which she had been given a number of opportunities.
Facts of breach offence
In the early hours of 26 December 2014, the offender drove three men to the victim’s home. She knocked on the front door. The victim, who knew the offender, allowed her inside.
Five minutes later, there was another knock on the door. The offender unlocked the door and allowed men inside against the wishes of the victim. The men entered and struck the victim many times, causing significant injuries.
On 10 June 2016, Penfold J sentenced the offender for aiding an aggravated burglary to 9 months’ imprisonment, suspended upon her entering into an 18-month good behaviour order.
On two occasions, the offender breached the good behaviour order by failing to engage with supervision, and Penfold J cancelled the good behaviour order and re-sentenced the offender to a further period of imprisonment, suspended upon her entering a good behaviour order. Most recently, she was re-sentenced to 9 months’ imprisonment from 29 August 2017, suspended upon entering into a good behaviour order for 18 months. When re-sentencing the offender, Penfold J took a lenient approach partly because, while the offender was non-compliant with supervision, she had not re-offended.
By re-offending in December 2017, the offender breached the good behaviour order imposed by Penfold J. Further, she committed an offence of the same type as that for which she had been placed on conditional liberty by Penfold J.
Subjective circumstances
The offender is 25 years old.
Her criminal history, includes, most notably, the breach offence and an offence of riding or driving in a motor vehicle without consent that was committed in April 2015 and resulted in a two year good behaviour order with a community service condition.
Early this year, the offender moved to Bermagui, NSW. She resides alone but has the support of her family. She has considerable contact with her six year old son during school holidays. She works in the hospitality industry. According to her family, she is making a concerted effort to change her lifestyle to a stable law-abiding lifestyle.
The offender has a history of substance abuse. She has used cannabis since her teens. After the birth of her son, she began to use amphetamines as a response to depression. When sentenced by Penfold J in June 2016, the offender had spent two weeks in residential rehabilitation but had found it to be ineffective. She had begun counselling for substance abuse. At the time of the December 2017 offences, the offender had relapsed. However, on entering custody, she ceased drug use.
The offender provided a report from a psychologist who has developed a mental health treatment plan for her which is designed to address anxiety and depression, and support the offender’s rehabilitation from substance abuse. He notes that the offender has suffered from depression and anxiety for at least six years, since being diagnosed with prenatal and antenatal depression after the birth of her son, and that her mental condition has been worse over the last couple of years because she has been in a relationship involving domestic violence.
Sentence
The offender has accepted responsibility for the offending behaviour. She has stated that she intends to cease all contact with negative associates and address the issues underlying her criminal conduct, in particular substance abuse.
She has already taken an important step towards changing her life by moving to Bermagui where she is close to her parents and where she is living a different sort of lifestyle.
It is true that Penfold J gave the offender several opportunities by to change her lifestyle and her attitude to supervision but the offences of December 2017 were committed nevertheless. They demonstrate a disregard for the leniency extended by her Honour. Further, the seriousness of these offences is exacerbated by the fact that they were committed while the offender was on conditional liberty in relation to a similar matter.
As far as the driving offence is concerned, that was a relatively serious offence of its type and the offender has a similar matter on her record.
However, I am impressed by the fact that the offender has accepted full responsibility and has taken important steps towards changing her life. It would be unfortunate if she was required to enter prison for the first significant period in her life at a point where she is making such big changes.
Although she is not a very young offender, she is still relatively young. In the circumstances, I consider that rehabilitation is a prominent sentencing purpose.
I find the breach established. The offender will be re-sentenced to nine months’ imprisonment, which will be suspended from today upon her entering into an 18-month good behaviour order on the condition that she reports to Community Corrections by 4:00 PM, 1 August 2018, and submits to their supervision.
In relation to the burglary matter, the starting point for the sentence is two years’ imprisonment. I have deducted approximately 15 per cent for the plea, arriving at a sentence of 20 months’ imprisonment. The offender is sentenced to imprisonment from 5 June 2018 to 4 February 2020. That sentence is suspended from today, 31 July 2018, upon her entering into a two year good behaviour order on the same conditions as that referred to above.
In relation to the theft offence, she is convicted and sentenced to a fixed term of imprisonment from 5 June 2018 to 31 July 2018. That sentence has expired.
In relation to the offence of driving a motor vehicle without consent, I would have imposed a sentence of 18-months’ imprisonment. Less 15 per cent for the plea of guilty is a sentence of 15-months’ imprisonment. That sentence is fully suspended upon the offender entering into a two and a half year good behaviour order commencing today, 31 July 2018.
In relation to the offence of unlawful possession of stolen property, she is convicted and I impose a fine of $250.00.
In relation to disobeying the no right turn signal, she is fined $150.00. The fines total $400.00.
Section 16 of the Sentencing Act enables the Court to make a disqualification order should it be considered appropriate. Given the offender’s regional location and need to drive to work and attend medical appointments, I consider that it would be counterproductive to impose a disqualification order and I decline to do so.
| I certify that the preceding fourty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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