R v West
[2016] ACTSC 128
•10 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v West |
Citation: | [2016] ACTSC 128 |
Hearing Date: | 10 June 2016 |
DecisionDate: | 10 June 2016 |
Before: | Penfold J |
Decision: | See [26] – [29] below. |
Catchwords: . | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender sentenced for aiding an aggravated burglary – plea of guilty – history of illicit drug abuse – co-offenders not identified – recent good behaviour – suspended sentence of imprisonment. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), ss 45, 312 |
Parties: | The Queen (Crown) Bobbie Lee West (Offender) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch Solicitors (Offender) | |
File Number: | SCC 179 of 2015 |
Introduction
Bobbie Lee West has pleaded guilty to one count of aiding an aggravated burglary, an offence arising under ss 45 and 312 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 20 years.
The incident
The incident from which these charges arose took place on Boxing Day 2014. Very early that morning Ms West borrowed a car from an acquaintance, saying she wanted to drive to the shop to buy cigarettes and drinks. Instead she picked up three men (who have not been identified) and drove them to the suburb of Conder, where she parked the car near the complainant’s house. She went to the front door and knocked. The complainant, who had known Ms West for a couple of months, unlocked the screen door and allowed her to come inside. Ms West and the complainant then shared some alcohol. About five minutes later, there was another knock at the complainant’s door. Ms West unlocked and opened both the solid door and the screen door, intending to let the three men in so that they could assault the complainant. The complainant tried to pull the screen door closed but was struck several times while inside his house. Shortly afterwards, the complainant came to his senses and found himself some distance away from his house. When he arrived home, a friend took him to the Canberra Hospital.
Meanwhile, the owner of the car had been trying to find out where it was for some time, and eventually Ms West contacted her, explained that “something urgent had come up”, and arranged to meet her at a specified location, insisting that she come alone. At the meeting place, the car’s owner found Ms West and three men, one of whom appeared to have blood spattered on the front of his jumper. Threats were made to the owner of the car, and against her children, of reprisals if she went to the police.
Although Ms West was not involved in the assault, I note that the complainant sustained extensive bruising and swelling to his face, multiple lacerations to his scalp, and injuries that I understand amount to what would commonly be called a broken nose.
Arrest and charging
Ms West was arrested in relation to an unrelated matter on 3 April 2015 and remanded in custody until 23 June 2015, a total of 82 days. When she was dealt with in the Magistrates Court on 23 June 2015, she was sentenced to 82 days imprisonment (being time served) for two of the offences; good behaviour orders were made in relation to other offences, one of which still has over a year to run, and she was granted bail in respect of the current offence.
On 7 April 2015 Ms West was charged with the current offence, and initially pleaded not guilty. She was committed to this Court for trial, but the indictment subsequently filed contained alternative charges of aggravated robbery and aggravated burglary. The matter was listed for trial on 30 March 2016. Shortly before that day, further information was provided by the Crown relating to the likely evidence of a neighbour of the complainant. On the day set for trial, the Crown filed a new indictment containing a single charge of aiding aggravated burglary, the offence with which Ms West had initially been charged, and she entered a plea of guilty.
Evidence
As well as the statement of facts, the following material is in evidence before me:
(a)Ms West’s criminal history;
(b)a pre-sentence report dated 8 June 2016;
(c)a CADAS report dated 7 June 2016; and
(d)statements of facts for an offence of drug-driving committed before the burglary offence and four offences committed since;
all of which documents were tendered by the prosecution.
As well, the defence tendered:
(a)a letter from Glenn Elliott confirming an offer of a job with his cleaning company;
(b)a letter from Directions ACT confirming the start of substance abuse counselling by Ms West; and
(c)an email from Corrective Services confirming Ms West’s completion of community service hours previously ordered, and the willingness of the Salvation Army to have her back to do more community service with their organisation.
Objective seriousness of the offence
In considering the objective seriousness of the offence, I note that the burglary charged was in the nature of what is often described as a home invasion, although Ms West was not a participant in the subsequent assault of the victim. I accept the proposition put by the Crown that home invasions are a kind of offence that affects the sense of members of the community that they are safe in their own homes.
Ms West seems to have abused her friendship with the complainant in transporting the assailants to his home, and in acting as a Trojan horse in enabling them to enter his home.
The pre-sentence report author reported that Ms West had shown some victim empathy, if perhaps not in the terms or with the enthusiasm that the pre-sentence report author would have liked.
Ms West’s offence is, in my view, of low-range seriousness in the context of what is in any case a relatively serious offence.
Subjective circumstances of the offender
I have also had regard in this sentencing to Ms West’s subjective circumstances.
Ms West is now 23. Her criminal history in the ACT before the burglary offence consisted mainly of driving offences. The most recent offending which, of course, post-dates the offence for which I am to sentence her, took place on two separate occasions.
In late March 2015, police were called to a flat in Belconnen by the sister of Ms West’s then partner, who said that her brother had assaulted Ms West. When police arrived, Ms West attempted to stop police dealing with her partner. She engaged in a violent struggle with two police officers, and was in due course charged with two counts of obstructing a Territory public official. These were the offences for which she was sentenced to 82 days by way of time served.
Not quite two weeks later, Ms West was observed by police driving a stolen car, and checks showed that she was at the time disqualified from driving. She was convicted of both these offences and good behaviour orders were made, the longer one for 24 months.
Ms West is one of three children of parents who separated when she was aged three. She says that she maintains positive relationships with both her parents and other family members living in the ACT, and I note that a number of family members supported her by attending this sentencing hearing. She was involved in a 6-year relationship from the age of 15 that produced a son who is now 4 years old. Her son’s father was sometimes violent and angry during their relationship, but he currently has full-time care of their 4-year-old. I understand that the child’s custody may become the subject of Family Court proceedings in due course.
Ms West is now in a new relationship and lives with her partner at the home of his parents, who are supportive of her and of their relationship.
Ms West completed Year 9 before leaving school and has had limited employment since then. She has been receiving Centrelink payments under a “work for the dole” program that involves doing gardening and landscaping work for 50 hours per fortnight. She told the pre-sentence report author that her mother’s partner may soon be able to offer her employment as a cleaner, and this has been confirmed by the letter from Mr Elliott.
Ms West told the pre-sentence report author that she had limited recall of the circumstances of the offence because she had been affected by cannabis, amphetamines and alcohol at the time of the offence.
Ms West began abusing alcohol at the age of 14, although claims to have no current problems with alcohol abuse. She had been smoking cannabis since the age of 15, but abstained while in custody. She seems, according to drug test results, to have continued with some cannabis use until quite recently; however a drug test on 13 May this year was negative for all substances. Ms West says she is determined to remain abstinent.
Ms West began smoking ice at the age of 19 and progressed to daily use. She abstained from that while in custody as well, although it seems there may have been some ice use in the first few months after her release from custody. Ms West says she has been abstinent from ice in the last three months and hopes to maintain that abstinence as well.
After her release from custody last year, Ms West spent two weeks in residential rehabilitation but did not find this effective. More recently she has begun counselling with the Directions Alcohol and Other Drugs Service. CADAS reports that counselling treatment appears to be appropriate for Ms West and is willing to continue to monitor her progress.
Plea of guilty
The Crown has accepted Ms West’s plea as a relatively early plea of guilty and it will be recognised with a sentencing discount.
Other matters
The Crown says, and defence counsel concedes, that this is an offence that requires the imposition of a prison sentence, but both counsel also noted that Ms West’s 82 days in custody seem to have had a significant effect on her, that there has been no further offending since she was remanded in custody 14 months ago or, more significantly, since she was released nearly 12 months ago, and that they understand that she is determined not to do anything to put herself at risk of more time in custody. I see no need to require any further custodial time at this point.
Sentence
Ms West, please stand. I record a conviction on the charge of aiding an aggravated burglary.
I now sentence you to imprisonment for 9 months, reduced from 12 months for your plea of guilty.
The sentence will be backdated to 10 May 2016 to take account of some of the period you spent in custody after being charged with this offence (but not all of it, since that whole period has already been attributed to two other significant offences). The remainder of the sentence will be immediately suspended, leaving 8 months to serve, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 18 months.
The good behaviour order is subject to the conditions:
(a)that for such period not exceeding 18 months as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General, or her delegate;
(b)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer including but not limited to activities in relation to substance abuse;
(c)that during the next 12 months you complete 80 hours of community service work; and
(d)that on or before close of business next Wednesday, you attend Corrective Services at Eclipse House to arrange your supervision.
It is not ideal finishing a sentence at 4.00pm before a long weekend because there is no way Corrective Services will be open by the time you get there this afternoon, but that means you need to remember when you get to the end of the long weekend that, ideally on Tuesday but by last thing on Wednesday, you go over to Corrective Services and make contact.
You will be given a written copy of the good behaviour order by the court officials and they will read it to you. But in short what it means is that for the next 18 months, you need to keep out of trouble, keep in contact with Corrective Services and comply with your supervisor's directions, and I should say especially those relating to your drug counselling, and of course you need to complete that 80 hours of community service work in the next 12 months. If you commit another offence during the next 18 months, if you do not do your community service or if you otherwise breach your good behaviour undertaking, you may find yourself back before this Court to be re-sentenced for this offence and, depending on how exactly you have breached your good behaviour undertaking, you could find yourself serving some or all of the remaining 8 months of this sentence in full-time custody. I am sure you do not want to do that, so I hope that you will make every effort to comply with all those conditions.
If you have any particular questions about the effect of the orders I have just made, please ask the court officials or Mr Sabharwal.
You may sit down.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: David Hoitink Date: 17 June 2016 |
0
0
2