The Queen v Belinda Walker
[2013] ACTSC 282
•7 November 2013
THE QUEEN v BELINDA WALKER
[2013] ACTSC 282 (7 November 2013)
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Burglary – Theft – No matter of principle
Crimes (Sentence Administration) Act 2005 (ACT), Pt 4.4
Criminal Code 2002 (ACT), ss 308, 311
Muldrock v The Queen (2011) 244 CLR 120
R v Campbell [2010] ACTCA 20
Walden v Hender (1987) 163 CLR 561
EX TEMPORE JUDGMENT
No. SCC 76 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 7 November 2013
IN THE SUPREME COURT OF THE )
) No. SCC 76 of 2013
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
V
BELINDA WALKER
ORDER
Judge: Refshauge J
Date: 7 November 2013
Place: Canberra
THE COURT ORDERS THAT:
Belinda Walker be convicted of burglary on 8 March 2013.
Belinda Walker be sentenced to two years’ imprisonment to commence today.
Belinda Walker be convicted of theft on 8 March 2013.
Belinda Walker be sentenced to twelve months’ imprisonment to commence on 7 June 2014, that is, to be cumulative as to three months on the sentence of the burglary.
That sentence be suspended from today for a period of two years.
Belinda Walker be required to sign an undertaking to comply with the Offenders Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT), for a period of two years.
Burglary, which is the invasion of homes and businesses for the committing of other crimes, is a very serious offence. But, as with every sentencing decision, the actual circumstances are always important.
Belinda Julie Walker has pleaded guilty to an offence of burglary and an offence of theft.
Burglary is an offence contrary to s 311 of the Criminal Code 2002 (ACT), rendering her liable to a maximum penalty of 1,400 in penalty units, that is, a fine of $154,000, or fourteen years’ imprisonment, or both.
Theft is an offence contrary to s 308 of the Criminal Code and attracts a maximum penalty of 1,000 penalty units, that is, a fine of $110,000, or ten years’ imprisonment, or both.
As the High Court said in Muldrock v The Queen (2011) 244 CLR 120 at 133; [31], “[t]he maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence”. Accordingly, the courts are required to regard these offences as serious offences. That does not, of course, lessen the need for the courts to pay careful attention to the conduct which constitutes the offence itself and the actual circumstances in which the offences are committed: Walden v Hender (1987) 163 CLR 561 at 577.
THE FACTS
The male owner of the house, the subject of a burglary, and whom I will call the male victim, met Ms Walker when she worked at the bar of the Belconnen Soccer Club, and hired her as a house cleaner. He gave her keys to his home so that she could carry out her duties.
By about December 2012, the male victim and his partner, whom I shall call the female victim, became unhappy with Ms Walker’s performance as a cleaner and terminated her employment. Ms Walker returned the keys to the premises.
The son of the victims saw Ms Walker at Kaleen shops on 4 March 2013 and had a conversation with her, during which he told her that his parents had gone down the coast.
Between about 10:00 am and 11:00 am on 8 March 2013, Ms Walker went to the home of the victims. She explained that she had heard from a friend that the male victim had been telling people that he had slept with her. As a result, she drove to their home to confront the male victim about these rumours. When she arrived, she saw a red car parked in the driveway and knocked on the door, but no one answered.
As she felt aggrieved, she took a screwdriver from the car, forced the lock, and entered the house. She took a number of items including a safe, a money-tin, bottles of alcohol, some jewellery, and some electronic equipment. Subsequently, she used a grinder to cut open the safe and found that, as a result, items in it including some money and other papers, had been burned. She took, she said, about $1,000 of the cash from inside the safe to buy food and pay a debt of $400.
About mid-afternoon, a friend of the victim’s son returned to the premises, found it burgled, and contacted the Police. The victims identified stolen items. These were, in the agreed statement of facts, a black pearl necklace worth $600, a safe which contained $10,500 in Australian currency, a gaming console worth $500, another gaming console worth $500, and a gold watch worth $2,000.
Later that evening, Police conducted a traffic stop on a vehicle being driven by Ms Walker. They searched the vehicle with her consent and located a number of items, following which, they interviewed her.
Ms Walker also consented to a search of her premises, and when she took them round the premises, she pointed out all the items that she had taken from the burglary. The items were seized and later returned to the victims. Apart from some of the cash, it appears that all the stolen items were returned.
Ms Walker also asked that two other thefts be taken into account. The thefts were committed by her on 18 April 2013 when she took a bag that did not belong to her from a restaurant in the Hellenic Club in Woden, containing various items valued at a total of $1,863.25.
Police identified Ms Walker from CCTV and interviewed her some time later. She admitted stealing the bag. She expressed remorse and stated that she had shown poor judgement. She said that she had taken an ecstasy tablet and a small quantity of alcohol prior to the theft, and this contributed to her impaired judgement leading her to commit the crime. She produced the bag with its contents and gave it to the Police. As the items stolen were owned by two different people, there were two different charges arising out of the one episode. Again, it appears that all the stolen items were returned.
SUBJECTIVE CIRCUMSTANCES
Relationship, education and employment history
Ms Walker was born in Canberra, the eldest of two children. Her parents’ marriage ended when she was five years old, and she has had little contact with her father since then. She had a good relationship with her mother, but does not have a good relationship with her sister or a half-brother. Although her mother suffered from severe mental health issues resulting in several hospitalisations, she was, according to Ms Walker, a loving parent to the best of her ability.
Ms Walker went to school in Canberra, Queensland, and New South Wales, but left when she was fourteen, as she had become pregnant. This was a result of her first significant relationship, but her partner was abusive and she left the relationship at about age twenty, when her second child was four months old. She eventually lost custody of her two children, but her son has recently returned to living with her full time.
Ms Walker had a second relationship lasting thirteen years, from which there was one child who resides with his father as he did not want to move to Queensland when Ms Walker did so.
After school, Ms Walker gained employment as a bartender and hotel cleaner. She has completed a Certificate IV in Hospitality and is currently enrolled in a Responsible Service of Alcohol qualification course, which she will complete after these matters are resolved. She also showed me certificates showing completion of various courses including Surviving a Robbery, Dealing with Difficult People, Providing Responsible Gambling Services, as well as showing she was Employee of the Month at Belconnen Soccer Club in 2009.
She is currently unemployed, though there is a permanent job available to her in the hospitality industry, after completion of these court matters.
While on bail, Ms Walker relocated to Queensland with her fourteen year old son, to live with her mother. She considered this a permanent move, and Ms Walker’s mother told the author of the helpful Pre-Sentence Report, tendered to me, that they are welcome to remain with her indefinitely.
Use of alcohol and illicit substances
Ms Walker began drinking alcohol when she was fifteen, but began to drink excessively following the end of her most recent relationship. She has reduced this since moving in with her mother, though it is still at a higher level than is perhaps desirable.
Ms Walker began smoking cannabis when she was fourteen, and, for about nine years, was a “habitual smoker”. It is not clear exactly how much cannabis she currently smokes, but it seems limited. After the end of the most recent relationship, she was “couch surfing” for about thirteen months, and did use recreational pills or cocaine, but only if offered to her. She committed the scheduled offences while under the influence of drugs.
Physical and mental health
Ms Walker was involved in a motor vehicle accident with her father when she was twenty-two months old and, as a result, has some memory and spatial reasoning deficits. She suffers back pain from scoliosis and the earlier traffic accident and has had some oral ill health.
Criminal history
Ms Walker has only six offences on her record. Worryingly, one of these is an aggravated burglary, but with intent to assault, associated with an offence of assault occasioning actual bodily harm. These offences, however, were committed in January, 2001, some twelve years ago.
Her most recent offence is a drink driving offence dealt with in court in October 2008. The other offences are minor thefts, though, again, committed twelve years ago, namely in April 2001. Accordingly, these are not the first offences of this kind, although they have significant differences from her earlier offences. They are, also, offences which come after a very considerable period of non-offending.
Reference in support of Ms Walker
I had a personal reference for Ms Walker, showing that she has, more recently, been living a “normal life”. She is described as a “capable and caring person who has dealt with many challenges in her life and has always managed to pick herself up, dust herself off and start again”. It re-affirmed her remorse.
THE OFFENCES
The courts have said, many times, that burglary and theft from residential premises are serious offences, and the courts must do their part to protect the community from these offences.
This was, however, as her counsel, Mr A Doig, pointed out, a “really stupid offence”. It was however, criminal, and seriously so. The amount of property stolen was quite substantial and she did use some of the property for her own purposes, notwithstanding that I formed the view that they were not offences committed for greed.
The trespassing and entry into people’s homes is a severe intrusion into private life, and often makes people feel unsafe and insecure in their own homes. It also involves the loss of property which not only has monetary value, but often sentimental or personal value. In this case, all the property has been returned, however, and that is to her credit.
Theft of such property also increases insurance premiums, which affect the whole of the community.
As is noted above, the penalties for the offences are serious and indicate to the courts that such offences should be taken seriously, though regard must be had to the particular circumstances.
CONSIDERATION
I take into account Ms Walker’s plea of guilty. She readily admitted the offences when questioned by Police and entered a plea of guilty on a second appearance in court on 9 April 2013. She was not committed for sentence to this court until 12 June 2013 because of successful negotiations about what was actually stolen from the house, but it was an early plea made after earlier admissions and shows remorse as well as facilitating the administration of justice.
I take into account Ms Walker’s early childhood circumstances and her subjective circumstances as I have set them out above.
I note that she is assessed as at a moderate risk of re-offending, though this would be lowered were she to participate in programs to address her substance abuse issues, and also were she, as suggested, to obtain employment.
I accept that Ms Walker is remorseful for her actions. She told the author of the Pre-Sentence Report that, in hindsight, she is “appalled at her behaviour and [said] ‘I still can’t believe I did it’”. I have also taken into account the reference that made comment on her remorse.
I take into account the offences in the list of additional offences under Pt 4.4 of the Crimes (Sentencing) Act 2005 in the way set out in R v Campbell [2010] ACTCA 20 at [46]-[50].
I note that, because she lives in Queensland, Ms Walker has been assessed as unsuitable for a community service work condition to a good behaviour order, or for periodic detention.
I consider, however, that only a sentence of imprisonment is appropriate for such offences as these.
Ms Walker please stand:
1. I convict you of burglary on 8 March 2013.
2. I sentence you to two years’ imprisonment to commence today. Had you not pleaded guilty, I would have sentenced you to two years and eight months’ imprisonment.
3. I convict you of theft on 8 March 2013.
4. I sentence you to twelve months’ imprisonment to commence on 7 June 2014, that is, to be cumulative as to three months on the sentence of the burglary. Had you not pleaded guilty, I would have sentenced you to one year and four months’ imprisonment.
5. I suspend the sentence today for a period of two years.
6. I require you to sign an undertaking to comply with the Offenders Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT), for a period of two years.
[His Honour then spoke directly to Ms Walker]
Ms Walker, I am prepared to accept that this was really an aberration in your life. You have got yourself back together after a period of problems twelve years ago, but you let your guard down, and you let it down really, really big time. These are serious offences, they do deserve imprisonment, but in your case, I am prepared to risk letting you go into the community because I am confident, on what I have read and what I have seen and what I have heard, that this really was an aberration, and that you will not offend again.
You are under sentence of imprisonment for two years. If you commit an offence which is punishable by imprisonment in that period of two years, you can be brought back before me, and I will re-sentence you, and that could include a period of an actual term of imprisonment.
I have not made a probation condition. It seems to me that you are strong enough now, and I had regard to the reference, that you can look after yourself, but there are agencies that are available if you need assistance and if things get tough. You do not go around burgling peoples’ homes and stealing from them.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 31 March 2014
Counsel for the prosecution: Mr D Sahu-Khan
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the defendant: Mr A Doig
Solicitor for the defendant: Mark Fleming Criminal Lawyers
Date of hearing: 2 September 2013
Date of judgment: 7 November 2013
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