Stafrace v Carter
[2017] ACTSC 371
•2 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Stafrace v Carter |
Citation: | [2017] ACTSC 371 |
Hearing Date: | 1 November 2017 |
DecisionDate: | 2 November 2017 |
Before: | Mossop J |
Decision: | See [31] |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – sentences alleged to be manifestly excessive – possession of a prohibited weapon – prohibited weapon being a taser – common assault – family violence offence – appellant has a long standing illicit drug addiction – sentences manifestly excessive – appeal upheld – specific deterrence – appellant resentenced – consideration of time previously spent in custody and residential rehabilitation in regard to these offences |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), s 63 |
Cases Cited: | Chatfield v Badman [2015] ACTSC 209 Dalton v The Queen [2015] ACTCA 48 The Queen v Stanley [2015] ACTSC 322 |
Parties: | Monica Terisa Stafrace (Appellant) Robyn Carter (First Respondent) Mark Treloar (Second Respondent) |
Representation: | Counsel R Davies (Appellant) M Thomas (First and Second Respondents) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (First and Second Respondents) | |
File Number: | SCA 43 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 16 May 2017 Case Title: Mark Treloar v Monica Terisa Stafrace Robyn Carter v Monica Terisa Stafrace Court File Numbers: CC2016/12937 CC2017/866 |
MOSSOP J:
Introduction
This is an appeal from a decision of the ACT Magistrates Court on 16 May 2017. The appellant, Monica Stafrace, appeals from two sentences imposed in relation to charges of common assault (charge CC2017/866) and possess/use a prohibited weapon (charge CC2016/12937).
The ground of the appeal is that the sentences were manifestly excessive in all the circumstances.
The sentences
The penalty imposed in relation to the possession of a prohibited weapon charge was four months imprisonment from 12 January 2017 until 11 May 2017. The penalty for the common assault was six months imprisonment from 12 February 2017 until 22 May 2017 and thereafter suspended upon entering into a Good Behaviour Order for a period of
18 months. The offender had been in custody since 12 January 2017 and was to enter a residential rehabilitation facility on 22 May 2017. She had a history of drug abuse but her only conviction was for being an unlicensed driver in 2014, for which she was fined $150.
The effect of the sentences was that they were:
(a)a total period of full time detention of four months and 11 days;
(b)concurrent to the extent of three months and 10 days;
(c)cumulative as to 21 days served by way of full-time detention; and
(d)approximately two months and 10 days of imprisonment on the common assault charge were suspended.
The offences
The possession of a prohibited weapon occurred on 12 December 2016. She was pulled over by police while driving a vehicle and had in her possession an instrument described as a taser. The police statement of facts which was tendered before the magistrate said:
Initial police enquiries show that the suspected Taser is a Chinese brand of Conductive Energy Weapon, capable of 6 million volts, but are awaiting a forensic weapons report to confirm this. As such this weapon is a prohibited weapon as per the Prohibited Weapons Act 1996, being “A hand-held or other electric device designed to administer an electric shock on contact”.
The appellant was also charged and convicted of unlawful possession of stolen property, using an uninsured vehicle, using an unregistered vehicle, and using incorrect number plates arising out of this traffic stop. She was given fines in relation to each of these offences, however no complaint is made about those sentences. She was given no time to pay these fines consistent with an expectation that the fines would be discharged by service of time in detention.
The magistrate did not make any explicit finding in relation to the objective seriousness of the offending conduct. She said:
In terms of objective seriousness, the driving matters are fairly, unfortunately, unexceptional, one might say; that is, of course, with the exception of the prohibited weapon, which is always dangerous to carry such weapons and it appears from your subsequent or your lie to police that you were well aware that you should not have had that weapon in your possession.
The lie referred to by her Honour was the statement by the appellant to police at the time that the device was discovered that it had been given to her son at school but it did not work. Counsel appearing for her said that she was aware that it was a weapon and she had it for personal protection.
Later in sentencing remarks, the magistrate said:
In relation to the weapon, that is always dangerous. It is not a properly regulated weapon. It could have done significant harm and if used on the wrong person, could well have killed somebody, particularly somebody with a heart condition.
The common assault occurred on 11 January 2017. The assault occurred at the appellant’s mother’s house. Her mother told her to leave. She refused to leave and asked her mother to contact the ACT Crisis Assessment and Treatment Team. Her mother contacted her neighbour who was a witness to what followed.
The appellant rushed towards her mother repeatedly pushing her in the chest with force. The mother was pushed up against a wall and was trapped between the appellant and the wall. The appellant struck her mother’s face using her right hand with her palm open, her mother’s glasses fell from her face and she began to fall to the ground. Her mother attempted to grab the appellant to stop herself from falling. The appellant used both hands to take hold of her around the biceps or shoulder region. The appellant then thrust the complainant repeatedly into the hallway wall. As the appellant drew her arm away as if to hit her mother with a closed fist, the neighbour intervened from behind and put her in a headlock. The appellant lost consciousness but when she regained consciousness, she said to her mother: “You’re gonna be dead” and “I’m going to kill you”.
Both parties submitted that the offending conduct was in the mid-range of objective seriousness. The magistrate assessed the objective seriousness of the assault as being in the mid to upper range of objective seriousness for a common assault.
In relation to the subjective circumstances of the offender, the material before the magistrate was a Pre-Sentence Report and a CADAS Report. Although her Honour used what appear to be formulaic statements:
I take into account your age and your personal circumstances … I take into account the facts and matters set out in the CADAS report. I take into account the facts and matters set out in the presentence report.
She did in her reasons make reference to the essential issues: the appellant’s limited criminal history, the evidence in relation to the prospects of rehabilitation, and her mental health and physical health.
The Pre-Sentence and CADAS Reports disclosed that the appellant had a long history of drug use and abuse and that her social network consisted only of drug users. She had had a 10 year relationship, which produced two children and which commenced at the age of 14 years. She had only completed Year 9 at school as she was pregnant with her first child. She had attempted to complete Year 10 but had instead chosen to complete a course in beauty therapy. She had worked in beauty therapy and administration. Her parents had taken custody of her children. She was, at the time of sentencing, homeless. She had decided to leave the ACT to prevent further interactions with antisocial peers. She suffers from a chronic autoimmune disorder that was, at times, debilitating due to chronic pain. It also affects her capacity to be treated with methadone because of an adverse reaction. She did not appear to the author of the Pre-Sentence Report to accept responsibility for her actions in relation to her mother. The author of the Pre-Sentence Report assessed her as being at a medium risk of general reoffending.
The offender had been in custody since the assault. She was first before the Magistrates Court on 12 January 2017. She pleaded guilty on 21 February 2017. She never applied for bail. When, on 11 April 2017, the matter first came before her Honour for sentence a request was made for an adjournment. Unusually, the offender told her Honour that she did not want to be released on bail until she had a place in a residential rehabilitation facility. As a consequence she remained in custody for the period from 11 April until 16 May 2017 when the matter came back to Court. On 16 May 2017 a place in a residential rehabilitation facility was available commencing on 22 May 2017.
The principles relating to a claim that a sentence is manifestly excessive are usefully summarised in the decision of the Court of Appeal in Dalton v The Queen [2015] ACTCA 48 at [18]. It is not necessary to repeat them here.
So far as the prohibited weapon offence is concerned, the appellant placed significant reliance upon the decision of Murrell CJ in Chatfield v Badman [2015] ACTSC 209. In that case, her Honour found that there had been an error in the assessment of the objective seriousness of an offence in very similar circumstances to those in the present case. The points made by Murrell CJ in Chatfield (at [12]) were as follows:
In this case, the offence could not be characterised as one of medium objective seriousness.
(a)There was no evidence that the device was operational, or that the appellant had ever operated or had the capacity to operate it.
(b)There was no evidence that the device was capable of doing more than merely startling the recipient with a shock. There was no evidence that the device was capable of stunning or otherwise incapacitating the recipient.
(c)There was no evidence that the appellant had ever taken the device outside her home or that she had possessed (let alone had produced) it in the company of others. Consequently, the fact that it was disguised was a matter of relatively little importance.
(d)Possession of the device was not associated with the appellant’s involvement in an offence of violence, or any suggestion that she had or may be involved in such an offence. There was no evidence to suggest that the device was connected with any other illegal activity. For example, there was no evidence to suggest that it had been acquired for protection in relation to drug dealing.
(e)The weapon was not one of the most serious types of prohibited weapon. It was a prohibited weapon by virtue of being an “other prohibited weapon” within Part 1.4 of Schedule 1 to the Prohibited Weapons Act. Part 1.4 also includes bombs, grenades and devices capable of killing or incapacitating someone.
(f)The objective seriousness of the offence must be measured against the range of conduct captured by the offence provision. Section 5 of the Prohibited Weapons Act provides that a person commits an offence if they either possess or use a prohibited weapon without authority to do so. Generally speaking, offences involving the use of a prohibited weapon will be more objectively serious than those involving the possession of a prohibited weapon. Of course, it always depends upon the circumstances of the particular use or possession.
The device in that case was very similar to the device in the present case. There are some differences however from the circumstances in Chatfield. In Chatfield there was a finding that, as at the date of the offence, the device was not operational. In the present case there was no such finding, and although the offender had said that the device was not operational, that was inconsistent with what her counsel said to her Honour about the reasons for carrying it. Further, the Statement of Facts, which was admitted without objection or qualification, described the device in the manner set out above. In those circumstances, in my view it was open to her Honour to sentence on the basis that the device was operational.
So far as (b) above is concerned in the present case, there was the statement in the Statement of Facts that the weapon was capable of delivering six million volts. While that sounds significant, there was no statement about the amperage which was delivered or what the effect on a human of its use would be. The references in the Statement of Facts to the device being a “Taser” tended, because of the association of that name with devices used by police, to distract from the fact that it was simply a device designed to administer an electric shock on contact. The potential effect of the device is not obvious and not something about which the Court is entitled to take judicial notice. Therefore the consideration in (b) is equally applicable in the present case. It appears, having regard to the description of the potential effect of the device given by her Honour quoted above, that she was influenced by the description of the device as a “Taser”.
So far as the consideration at (c) above is concerned, there was evidence that the appellant had taken it out of her home because it was found in her handbag when she was stopped by police. However there was no evidence that she had ever taken it out or used it in anyone’s presence.
Having regard to the nature of the item in the circumstances in which it was possessed, even though the item should be taken to be operational, I would assess the objective seriousness of this offence as being at the low-end of objective seriousness for an offence under that section. I note that no submissions were made that drew her Honour’s attention to the absence of evidence about the likely effect of the device and her Honour’s attention was not drawn to the decision in Chatfield.
In those circumstances, I consider that having regard to the absence of a relevant criminal history, a sentence of imprisonment of four months was manifestly excessive. That is the case even though it was made largely concurrent with the sentence for the common assault.
So far as the common assault was concerned, notwithstanding the submissions of the parties that characterised the assault as being in the mid-range, it was open to her Honour to characterise it as being in the mid to upper range having regard to the aggravating features of the offence and the general imprecision associated with the description of the spectrum of objective seriousness. The aggravating features of the offence were that it included multiple applications of force, it involved a slap to the face, it occurred over a significant duration where the complainant had no means of escape, it occurred at a time when the offender was on conditional liberty, and it occurred in the context of the familial relationship between mother and daughter.
The appellant directed some criticism to the description of it as being aggravated by being in a family violence context. I do not consider this to be an error. Judges of this Court have routinely described such a circumstance as being a circumstance of aggravation: see R v Wyper [2017] ACTSC 50 at [31]-[32] and The Queen v Stanley [2015] ACTSC 322 at [66]. It is important to recognise however that the description of an offence of a family violence or domestic violence offence is really a conclusion that the offence in question bares some or all of the characteristics often associated with family violence which need to be recognised and which make the offending conduct more serious. As Johnson J described in R v Hamid (2006) 164 A Crim R 179 at 193, those features include that the conduct involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect people beyond the primary target (including children and other family members), and contributes (in the usual case) to the subordination of women. It often involves a violation of trust by someone with whom the victim shares or has shared an intimate relationship. Any particular case may involve to a greater or lesser extent some or all of these features. The use of the label “family violence” or “domestic violence” is a useful shorthand method of describing the existence of such characteristics. However each case is different and regard must be had to the significance of the characteristics in any particular case which lead it to be described by the shorthand reference to domestic violence or family violence.
In the present case, the relationship was between mother and daughter; that relationship provided the context in which the offender was present in her mother’s home and in which she felt able to make demands about her conduct which escalated into violence. While in some ways the existing relationship provided the opportunity for the offending conduct, the offending in this case did not involve the exploitation of the characteristics of a relationship often involved between women and their partners or ex-partner’s. Thus whilst the offence can be characterised as a family violence offence, the features that led to that characterisation were not significantly aggravating factors when compared to other cases in which that label may be used.
Having regard to the maximum penalty that was available, a sentence of six months imprisonment was manifestly excessive. The starting point for her Honour had been a sentence of eight months which was reduced on account of the plea of guilty. The imposition of such a sentence was manifestly excessive when regard is had to the limited criminal history and the intention on the part of the appellant to engage in rehabilitation for her long standing illicit drug use.
The conclusions that I have reached above take into account the fact that her Honour was faced with a position whereas at the date of sentencing, as a result of the fact that no application for bail had been made and that the offender had positively requested to be remanded in custody, she had spent four months and five days in custody. Further, the Pre-Sentence Report had assessed the offender as being unsuitable for community service work and with limited resources which would make it difficult to pay a fine. Although her Honour did impose fines for the other offences, it is clear that her Honour anticipated that these would be expunged by serving a period of time in custody because she allowed no time to pay them. The unsuitability for community service and the inability to pay a fine narrowed the range of options available to her Honour. Further, it would have been unjust for her Honour to impose a fully suspended sentence as any service of the imprisonment that was suspended would necessarily be in addition to the period where she had actually been detained in full-time custody on remand. Notwithstanding these unusual features of the case, the offender was entitled to have a sentence imposed that was appropriate in all the circumstances and took into account the period that she had spent in custody even if it did not, to use the words of counsel for the appellant, “soak it all up”.
Having regard to my conclusion that both sentences were manifestly excessive, it is necessary to set aside the sentences on those charges and resentence the offender. On the resentencing it is necessary to also take into account the fact that the offender successfully graduated from the residential rehabilitation program in which she was engaged, which commenced on 22 May 2017 and concluded the day prior to the hearing of the appeal. Plainly it is important under s 63 of the Crimes (Sentencing) Act 2005 (ACT) to take into account the period that she has spent in full-time custody on remand.
So far as the prohibited weapons charges concerned, having regard to the nature of the offending conduct, the negligible criminal history and the other penalties imposed upon the appellant for offences on that day, the purposes of sentencing will be adequately met by a Good Behaviour Order for a period of 18 months covering the same period as the Good Behaviour Order imposed by the magistrate upon the suspension of the period of imprisonment for the assault charge and subject to substantially the same terms as that Good Behaviour Order.
In relation to the assault charge, it is important to note that this offence was committed after the various offences committed on 12 December 2016. The sentence must therefore reflect a reduced degree of leniency and an increased need for specific deterrence. I consider that having regard to the objective seriousness of the offending conduct and effect on sentencing options of the offender’s personal circumstances and the period that she has spent in custody, that notwithstanding her limited criminal history, only a custodial sentence is appropriate. Having regard to the fact that she has in fact spent a substantial period in custody, I consider that it is appropriate that the sentence be served by way of full-time detention. Taking into account the purposes of sentencing, I consider that they will be met by a sentence of one month imprisonment.
The orders of the Court are:
1. The sentences in relation to each of the offences CC2016/12937 and CC2017/866 are set aside.
2. In relation to the charge of possessing a prohibited weapon, the offender is convicted and required to enter into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months starting on 22 May 2017 and ending on 21 November 2018 and requiring her, in addition to the core conditions, to comply with the following additional conditions:
i.To supply samples of breath, blood or urine for alcohol or drug testing if required by a corrections officer.
ii.To attend such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed, particularly in relation to mental health, financial management, ongoing drug and alcohol counselling, assistance with gaining accommodation away from antisocial influences.
3. In relation to the charge of assault, the offender is convicted and sentenced to a period of imprisonment from 12 January 2017 until 11 February 2017.
| The preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 8 December 2017 |
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