R v Wieland

[2020] ACTSC 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Wieland

Citation:

[2020] ACTSC 16

Hearing Date:

1 February 2019; 19 November 2019; 5 February 2020

DecisionDate:

5 February 2020

Before:

Elkaim J

Decision:

See [23]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – arson – take motor vehicle without authority – pleas of guilty

Legislation: 

Parties:

Criminal Code 2002 (ACT) ss 318, 404
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33

The Queen (Crown)

Priscilla Lee Wieland (Offender)

Representation:

Counsel

K Lee (Crown)

T Kelliher (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 299 of 2018

ELKAIM J:

1. On 23 November 2018 the offender pleaded guilty to the following offences:

(a)Taking a motor vehicle without consent (CC2018/7552), contrary to s 318(1) of the Criminal Code 2002 (ACT). The maximum penalty is five years’ imprisonment, a fine of $75,000 or both. The offence occurred on 4 June 2018.

(b)Arson (CC2018/12607), contrary to s 404(1) of the Criminal Code 2002 (ACT). The maximum penalty is 15 years’ imprisonment, a fine of $225,000 or both. This offence occurred on 7 June 2018.

1. The pleas of guilty were made at a relatively early stage, entitling the offender to a discount of 20%. This discount recognises the strength of the Crown case.

1. The offender was arrested on 8 June 2018. She has spent 165 days in custody for these offences.

1. The background to the offences is set out in the Crown Statement of Facts. In summary, on 3 June 2018, the offender met a Mr Brady who she had come to know through a dating website. He picked her up in his Holden Commodore utility. They went to a hotel. Mr Brady fell asleep. Early the following morning he awoke to discover that the offender had left and she had apparently taken his utility.

1. On 7 June 2018 a house was set alight in Mawson. It belonged to Housing ACT. Enquiries conducted by police revealed the premises had been occupied by the offender. She had removed her clothes and placed them in Mr Brady’s utility. She set fire to the premises and drove away in the utility.

1. The matter originally came before me on 1 February 2019. On that date the offender sought an adjournment and requested that I order a Forensic Mental Health Report. The Report discloses the tragic past of this offender. The matter was again adjourned for the offender to undertake residential rehabilitation at Calvary Riverina Drug and Alcohol Centre. That rehabilitation ended on 15 November 2019. The matter was adjourned for a final time on 19 November 2019 to allow for an Intensive Correction Order (ICO) Assessment to be undertaken.

1. The offender is now 34 years of age. She grew up in the Australian Capital Territory. She described an abusive upbringing, including exposure to illicit drugs and sexual abuse. She has a close relationship with an aunt and a cousin but did not enjoy such a relationship with her parents. She has three sons of her own, aged between 5 and 14 years. She has no contact with her eldest son. The children do not live with her.

1. The offender was educated to Year 10. She has had some employment but not for very long. She stopped working five years ago because of childcare obligations.

1. The offender has had significant problems with alcohol. In fact she blames alcohol, together with drugs, for the offences. She has a history of substance abuse, including cannabis, heroin and methamphetamines. She has spent a good deal of time in rehabilitation and detoxification facilities. She says that she had about 10 years without drugs but began using them again in 2018.

1. The offender has mental health issues, including a diagnosis of a bipolar disorder. At one stage she was taking antidepressant medication but this has ceased. She attempted suicide while on remand. During her time in custody she has completed six sessions of Cognitive Behavioural Therapy. She says this has helped her.

1. The authors of the Pre-Sentence Report have assessed her as having a medium to high risk of general reoffending. The ICO Assessment Report has assessed her as not suitable for an ICO, but only because she does not have a residential address in the ACT.

1. Sentencing requires consideration of ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). In addition s 10 is important because it says a person should not be sent to prison except as a last resort. Other relevant matters can be found in s 33.

1. Arson is always an objectively serious offence. Although no person was put at risk by the fire it did involve public housing accommodation, which could have been used by another person. It is common knowledge that public housing is in short supply.

1. In addition, firefighters were required to attend and no doubt put their well-being at risk. Surrounding houses, as shown in Exhibit C, were put at risk and some $260,000 of damage was caused. All of these matters render the arson offence objectively serious.

1. The theft of the motor vehicle was opportunistic and the offence is clearly of a less serious nature.

1. In relation to the time spent in custody so far, Mr Kelliher, on her behalf, has submitted that this is sufficient. While he recognises that a continuing custodial sentence is appropriate, he says it should be suspended with conditions attached.

1. The Crown says that the arson offence is so serious that it demands at least a further period of full-time imprisonment before any suspension takes effect. Without more, I would agree with the Crown. However, as fairly acknowledged by the Crown, there are powerful subjective circumstances in this case. Most of all is the fact that the offender has now reached a stage of abstinence from drugs and alcohol. Against her background this is significant progress which should not be jeopardised.

1. She is in stable accommodation in Wagga Wagga. The premises are occupied by a Mr English who told me that he is happy for her to remain at his home and she has not been the source of any difficulties to date. He impressed me, although his interchange was effectively from the bar table and without any cross-examination, as a decent person likely to provide a safe environment for the offender.

1. The letters making up Exhibit 2 give hope for the continuing rehabilitation of the offender. Her great aunt, Mrs Rosewarne, says she has noticed considerable change since the offender left the rehabilitation program at the Farm. She is hopeful that the offender can reacquaint herself with her children and she is willing to support this endeavour.

1. The Pathways drug and alcohol service in Wagga Wagga says it will continue to support the offender on a regular basis. There is a report from Dr Johnathan Ho dated 14 January 2020. He refers to her positive engagement in rehabilitation. He notes that she has agreed to continue treatment and he has set out a treatment plan which he would supervise. His qualifications indicate his experience in drug and alcohol treatment. He also states his undertaking to report the offender if she does not comply with the treatment regime.

1. Rehabilitation is very important in a case like this. To place the good work that has been achieved so far at risk by putting the offender back in prison for a period of time is not justified. She will know that if she breaches the Good Behaviour Order that I intend to require, that she will almost certainly go back to prison.

1. I accept the need for general deterrence, but on the facts of this case, and noting that the offender has had a good dose of full-time imprisonment, the course that I intend to take is, I think, appropriate.

1. I make the following orders:

(a)In relation to the offence of take motor vehicle without consent (CC2018/07552), the offender is sentenced to 6 months’ imprisonment (reduced from 7 months for the discount) to commence on 24 August 2019 and end on 23 February 2020.

(b)In relation to the offence of arson (CC2018/12607) the offender is sentenced to 2 years’ imprisonment (reduced from 30 months for the discount) to commence on 24 December 2019 and end on 23 December 2021.

(c)The total period of imprisonment is 2 years and 4 months.

(d)The balance of the sentence as of today is suspended with immediate effect on condition that the offender enter into a Good Behaviour Order for a period of two years on the following conditions:

(i)She is to accept the supervision of ACT Corrective Services for a period of two years, or such lesser period as deemed appropriate by the supervisor; and

(ii)She is to comply with the treatment plan outlined by Dr Jonathan Ho in his report of 14 January 2020.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 5 February 2020