The State of Western Australia v O'Brien
[2007] WASC 292
•1 NOVEMBER 2007
THE STATE OF WESTERN AUSTRALIA -v- O'BRIEN [2007] WASC 292
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 292 | |
| 03/12/2007 | |||
| Case No: | INS:146/2007 | 1 NOVEMBER 2007 | |
| Coram: | EM HEENAN J | 31/10/07 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Sentencing adjourned for 12 months Pre-sentence order imposed, with programme and supervision requirement, referral to Drug Court programme, and review by this court in 3 months | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA JEMMA LOUISE O'BRIEN |
Catchwords: | Criminal law Sentencing Armed robbery Pleas of guilty First-time offender Mother of three dependant children Remorse Prospects of rehabilitation Underlying drug addiction Offences occurring all in the space of 2 days Parental and spouse support Willingness to undergo drug rehabilitation treatment Potential sentence of imprisonment Pre-sentence order Supervision and programme requirement Drug Court Periodic review Adjournment of sentencing for 12 months |
Legislation: | Bail Act 1982 (WA) Criminal Code (WA), s 392, s 393 Sentencing Act 1995 (WA) Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Channon v The Queen (1978) 20 ALR 1 Cooley v The State of Western Australia [2005] WASCA 160; (2005) A Crim R 528 Miles v The Queen (1997) 17 WAR 518 R v Shaharuddin [1999] WASCA 229 R v Tsiaras [1996] 1 VR 398 R v Valentine [2003] WASCA 7 Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 Taylor v The Queen (Unreported, WASCA, Library No 980152; 6 April 1998) The State of Western Australia v Reynolds [2006] WASC 31 The State of Western Australia v Wells [2005] WASCA 23 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- State
AND
JEMMA LOUISE O'BRIEN
Accused
Catchwords:
Criminal law - Sentencing - Armed robbery - Pleas of guilty - First-time offender - Mother of three dependant children - Remorse - Prospects of rehabilitation - Underlying drug addiction - Offences occurring all in the space of 2 days - Parental and spouse support - Willingness to undergo drug rehabilitation treatment - Potential sentence of imprisonment - Pre-sentence order - Supervision and programme requirement - Drug Court - Periodic review - Adjournment of sentencing for 12 months
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Legislation:
Bail Act 1982 (WA)
Criminal Code (WA), s 392, s 393
Sentencing Act 1995 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Sentencing adjourned for 12 months
Pre-sentence order imposed, with programme and supervision requirement, referral to Drug Court programme, and review by this court in 3 months
Category: B
Representation:
Counsel:
State : Mr S M Stocks
Accused : Ms B A Ayling
Solicitors:
State : Director of Public Prosecutions (WA)
Accused : Legal Aid (WA)
Channon v The Queen (1978) 20 ALR 1
Cooley v The State of Western Australia [2005] WASCA 160; (2005) A Crim R 528
Miles v The Queen (1997) 17 WAR 518
R v Shaharuddin [1999] WASCA 229
R v Tsiaras [1996] 1 VR 398
R v Valentine [2003] WASCA 7
Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313
Taylor v The Queen (Unreported, WASCA, Library No 980152; 6 April 1998)
The State of Western Australia v Reynolds [2006] WASC 31
The State of Western Australia v Wells [2005] WASCA 23
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1 EM HEENAN J: The accused, Jemma Louise O'Brien, has pleaded guilty to an indictment charging three counts of armed robbery, one count of aggravated assault with intent to rob and one count of assault with intent to rob. Upon entering these pleas, she has been convicted of each of the charges via the fast-track procedure for sentencing. Detailed antecedent, pre-sentence and psychological reports have been prepared and submitted to the court, together with other materials, all of which I have examined.
2 Ms O'Brien was born in Western Australia on 13 October 1977 and is, therefore, now aged 30 years. Of the five offences, the first was committed on 30 June 2007 and each of the four others was committed on the following day, 1 July 2007, so that Ms O'Brien was aged 29 years when she committed these crimes.
3 The five charges in the indictment in respect of which convictions have been recorded are:
1. That on 30 June 2007 at Greenwood, Jemma Louise O'Brien stole from Chloe Anne Di Giuseppe, with threats of violence, money the property of Mad Matz Pty Ltd trading as Mad Matz Megamart, and that at the time she was armed with an offensive instrument, namely a blood-filled syringe (Criminal Code, s 392).
2. That on 1 July 2007 at Duncraig, she stole from Amjad Richani, with threats of violence, prescription medication the property of Philip John Ledger and Nathan John Ledger trading as Duncraig Pharmacy, and that at the time she was armed with an offensive instrument, namely a blood-filled syringe (Criminal Code, s 392).
3. That on the same date at Kingsley, with intent to steal money, she threatened to use violence to Norman Maxwell in order to obtain money which she so intended to steal, and that at the time she was armed with an offensive instrument, namely a blood-filled syringe, and that Norman Maxwell was of or over the age of 60 years (Criminal Code, s 393).
4. That on the same date at Greenwood, she stole from Sacha Jenelle Campbell, with threats of violence, money the property of Elice Francis McGuire and others trading as Civic Video Greenwood, and that at the time she was armed with an offensive instrument, namely a blood-filled syringe (Criminal Code, s 392).
5. On the same date at Greenwood, with intent to steal money, she threatened to use violence to Minh Thien Do in order to obtain
- money which she so intended to steal, and that at the time she was armed with an offensive instrument, namely a blood-filled syringe (Criminal Code, s 393).
Material facts
4 The first offence was committed at about 4.05 pm on Saturday, 30 June 2007, when the offender attended at the Mad Matz retail shop, located at Shop 22, 2 Calectasia Street, Greenwood. Before entering the shop, Ms O'Brien had formed the intention to rob the store. She filled a clear plastic syringe with her own blood, obtained a pillow case to collect stolen cash and entered the store. Once inside, she held the syringe in her left hand, approached and threatened the store attendant, saying: 'I am serious, I have this syringe and it's full of blood. I don't want to hurt you but I will if I have to, if you don't give me the cash'. The attendant could clearly see that the syringe contained blood and she asked the intruder what she wanted. Ms O'Brien replied: 'Give me all the notes'. The store attendant unlocked the cash till and removed all the cash notes amounting to a total of $330. She placed the cash in the pillow case held open by Ms O'Brien, who then immediately left the premises. None of the stolen cash has been recovered.
5 The second offence was committed the following day, that is, on Sunday, 1 July 2007, at about 12.15 pm, at the Duncraig Pharmacy located at the Duncraig Shopping Centre at 50 Marri Road, Duncraig. As with the first offence, Ms O'Brien had decided to rob this premises and had filled a clear plastic syringe with her own blood and taken a pillow case to collect stolen items. She entered the pharmacy and, at that time, there was only one attendant in the store, a man, who was then serving an elderly female customer. On seeing this, Ms O'Brien selected items from display shelves, walked around the interior of the store for a short period, but then returned each of the items to their original place and left. However, a short time later, she re-entered the pharmacy and selected further items from the front of the store. At this point the attendant was still serving the elderly lady customer. Ms O'Brien became impatient and began pacing around the store between displays. Once the lady had concluded her purchases and left the store, the offender approached the counter, removed the blood-filled syringe from a cotton bag she was carrying and said: 'This is a blood-filled syringe'. She then demanded Temaze, Xanax, Valium and 'anything else'. The male attendant, fearing for his safety, asked Ms O'Brien to remain on the other side of the counter and told her that he would get the drugs from the dispensary. Ms O'Brien waited where she was and the attendant selected two boxes of Temaze,
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- valued at $3.40, and two boxes of Xanax, valued at $13.76. He returned to the counter and, at the direction of Ms O'Brien, placed the drugs in the cloth bag. At this point, Ms O'Brien demanded money. The attendant told her that the store did not have any money on a Sunday and she left the store. The attendant followed her for a short distance and then returned to the store.
6 The third offence was committed about 50 minutes later, at about 1.05 pm on Sunday, 1 July 2007, at the Kingsley DVD and Video Store located at 3 Kingsley Drive, Kingsley. Again, before entering the store, Ms O'Brien formed the intention to commit a robbery. Again, she took a clear plastic syringe filled with her own blood, together with a pillow case to collect stolen cash, and entered the store. Once inside, she held the syringe in her hand, approached the store attendant and said: 'This is a hold-up and this is a syringe'. It was clearly visible to the store attendant that the syringe contained blood. At this point the attendant produced a baseball bat from beneath the counter and told Ms O'Brien to leave the premises. When confronted with this response, she left the premises without stealing any property.
7 The fourth offence was committed about 45 minutes later, at about 1.50 pm on Sunday, 1 July 2007, at the Civic Video Store located at Shop 5/6, 120 Cockman Road, Greenwood. Having left the Kingsley DVD and Video Store without success, Ms O'Brien decided to rob this store. She still had in her possession the clear plastic syringe, filled with her own blood, and the pillow case that was to be used to collect any stolen cash. She entered the Civic Video Store, approached the attendant and said: 'This is a hold-up'. She produced the blood-filled syringe from her left jumper sleeve. She removed the cap from the syringe and threatened the store attendant, saying: 'I don't want to have to use this but I will if I have to, will you co-operate?' Again, the fact that the syringe contained blood was clearly apparent to the attendant. Fearing for her safety, the store attendant gave the accused cash as demanded. Ms O'Brien handed over the pillow case into which the attendant put $460 in cash from the till. Ms O'Brien asked if there was any more money under the till and, when told that there was not, she took the pillow case and said: 'Don't worry you can claim this on insurance'. She then immediately left the store. None of the stolen money has been recovered.
8 The fifth offence was committed only about 10 minutes later, at about 2.00 pm on Sunday, 1 July 2007, this time at Ming's Bakery, located at 8/132 Coolibah Drive, Greenwood. Ms O'Brien went to that store after leaving the Civic Video Store, again intending to commit a
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- robbery and still in possession of the clear plastic syringe filled with her own blood and the pillow case to collect stolen cash. She went inside the bakery and said to the attendant: 'This is a hold-up'. She produced the blood-filled syringe from her left jumper sleeve. She removed the cap from the syringe, flourished it in front of the attendant, stating: 'I want money'. The attendant replied: 'What money?' Ms O'Brien then said: 'Give me money, if you don't give me money ... '. At that time, the blood contents of the syringe were clearly visible to the attendant. Afraid for her safety, the attendant told Ms O'Brien that there was no cash and held up a pair of tongs to protect herself. At this point Ms O'Brien looked around and immediately left the store.
9 The police were later called and detectives noticed Ms O'Brien at the corner of Calectasia Street and Coolibah Drive, Greenwood. She was apprehended at about 4.30 pm that day and taken to the Regional Investigation Unit, where she participated in a video record of interview. She made full admissions in relation to three of the offences committed earlier that day, on 1 July 2007, but stated that she could not recall the offence committed on 30 June 2007. She was then taken by the police to the Perth Watch-house and charged in relation to counts 1, 3, 4 and 5 on the indictment.
10 On Wednesday, 3 July 2007, the pharmacy attendant reported the robbery of the Duncraig Pharmacy to the police. On Thursday, 19 July 2007, detectives spoke to Ms O'Brien about the matter at Bandyup Prison. She declined to participate in a video record of interview and stated that she had no recollection of the incident. She was informed that she would be charged with this further offence and this charge (count 2 on the indictment) was then preferred.
11 Ms O'Brien appeared before the Magistrates Court on four of the five charges for the first time on 2 July 2007 and was remanded in custody. She remained in custody until she was granted bail on 26 July 2007, subject to home detention pursuant to the conditions in Sch 2 Pt D cl 3(3) of the Bail Act 1982 (WA).
12 On 15 August 2007 she again appeared before the Magistrates Court, this time on all five charges, where they were adjourned to the Perth Drug Court, with bail extended. The reference to the Perth Drug Court was to allow consideration to be given to whether or not Ms O'Brien might be assessed and accepted for supervision by the processes available to that court. However, I am informed by counsel that when the matter came before the Drug Court, the learned magistrate took the view that, given the
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- gravity of the charges and the severity of circumstances, the Drug Court ought not accept her into its programme of supervised offenders because any decision about the ultimate disposition of her case should be made by this court.
13 Her charges then came on before the Magistrates Court on 27 August 2007 and again on 10 September 2007. On the latter date she was remanded on conditional bail, with electronic monitoring, for sentencing in this court. A plea of guilty to all the charges was entered in the Magistrates Court but, of course, admissions had been made by Ms O'Brien, or her counsel, well before then.
14 Ms O'Brien remained in custody from 2 July to 26 July 2007, a total of 25 days. Counsel for the State accepts that credit should be given for that period of incarceration and that in the event of a custodial sentence being imposed, it should be backdated to commence from a date which would give effect to that period in detention.
15 The total amount of cash stolen was $790. The value of pharmaceuticals stolen during the second robbery was $27.16. The State has sought orders for restitution for the value of the property stolen. Consequently, orders will be made that Ms O'Brien pay a total of $817.16 as restitution, pursuant to s 120 of the Sentencing Act 1995 (WA).
16 It will be noted that all the offences were committed in the Greenwood/Duncraig/Kingsley area, which appears to be a locality with which the offender is familiar. She was at the time living at an address in Greenwood and must have frequented those shops or outlets in the ordinary course of her activities.
17 The police antecedent reports record that Ms O'Brien provided full admissions and co-operated with the police at the first opportunity. No other persons are suspected of being involved in any of the offences, nor has any other person been charged in relation to any of the incidents arising from the charges against her.
18 Despite the nature of these offences, Ms O'Brien's age and her prior problems with addictive substances, which I shall describe later, she has no previous convictions of any kind, including traffic convictions, recorded against her. This is the first time that she has appeared before the courts. There are, however, some other matters - charges of careless driving, driving while her motor driver's licence had expired and driving an unlicensed vehicle - which are pending before the Joondalup
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- Magistrates Court and upon which a first appearance was due on 12 November 2007.
19 According to the reports, Ms O'Brien has been compliant with her bail conditions and has followed the requirements for requesting leave from her home in accordance with those conditions. It is further reported that she has not been subject to any prior community supervision.
Personal background
20 I have already noted that Ms O'Brien was born on 13 October 1977. She is the youngest of three siblings, having one brother and one sister. Her parents' marriage ended in divorce when she was aged eight. She then lived with her mother for some time, but later spent time in both her mother's and father's separate households. Both parents remarried. Her father's second wife has children of her own. There is also a further child as a result of the new marriage, which has meant that the father has had little time or contact with Ms O'Brien or his other children. Ms O'Brien has a difficult relationship with her mother's new husband, whom she refers to as her step-father, and has been banned from their home. Her mother has also had another child from her new marriage and, until she was arrested and charged, Ms O'Brien has had infrequent contact with her. Since these events, however, both her mother and father and siblings have come to her support and their relationships have improved.
21 Ms O'Brien attended school from the age of six to 16. She completed Year 11 education at Forrestfield High School before embarking on Year 12 education at Craigie High School in 1995. However, she did not complete Year 12 because she became pregnant. After the birth of her daughter, she lived at home, caring for the baby, and, later, worked as a part-time pizza delivery driver.
22 Ms O'Brien has been living in a permanent de facto relationship with her partner and has had two further children. The oldest child is a daughter, now aged 11 years, and the younger two are twins, a boy and a girl, each aged 3 years. The children live with, and are maintained by, Ms O'Brien and her partner.
23 In 2000, Ms O'Brien successfully completed a 12-month TAFE course in Equine Management. Following that training she was employed in various positions, including as dog groomer for a period of 2 years. In 2003, in the course of that employment, she was involved in an accident. She sustained a spinal injury which caused a protruded spinal disc lesion, requiring surgery and an extended course of narcotic analgesia, including
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- methadone, which appears to have resulted in the establishment of a therapeutic based dependency on addictive narcotics. The back injury is a source of continuous pain and she is due to be reviewed for further surgery in the near future.
24 Following her back injury, Ms O'Brien has not been able to work because of ongoing pain. Consequently, she was not employed at the time of the offence. Nor was she in receipt of any Centrelink benefits because she was ineligible for them, having received compensation for the back injury suffered in the course of her former employment. Her partner, presently caring for the children, receives Centrelink benefits which are used to pay for child care, rent and household expenses. Neither Ms O'Brien nor her partner have any assets or savings to speak of, nor any significant debts. It seems that the damages which she received following her back injury were used to repay debts which she had incurred following her injury and, to a significant extent, squandered on the purchase of illicit substances.
Mental health
25 Ms O'Brien is also known to be suffering from some form of mental illness and related depression and at the time of her arrest was attending for medical treatment awaiting a diagnosis for this condition. It is reported that she has experienced significant moods swings and anxiety since the birth of her eldest daughter 11 years ago and a tentative diagnosis of bi-polar disorder has been ventured but, as yet, not fully confirmed.
26 Ms O'Brien has been prescribed Zoloft, Avanza and Seroquel and is under the care of Joondalup Mental Health. These medications appear to be effectively treating her symptoms but, in the weeks leading up to these offences, in June and July of 2007, her medication was changed. In the weeks beforehand she had also been misusing illicit substances and prescription medication.
27 A doctor at Joondalup Mental Health confirmed to Community Justice Services that she had seen Ms O'Brien on three occasions and was currently providing medication and supportive psychotherapy. She expressed the view that imprisonment would appear to be detrimental to Ms O'Brien's mental health and bonds with her children. If Ms O'Brien were to receive some non-custodial sentence, the doctor stated that she would continue to see her, initially on a fortnightly basis, in conjunction with the community mental health nurse and psychologist. The frequency of these appointments could then be expected to reduce over time if her
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- condition appeared to stabilise. The doctor confirmed that so far a definitive diagnosis of bi-polar disorder had not been made because of the stresses associated with court appearances and the prior drug use, but that this would be reviewed. The current medication being prescribed is that usually prescribed for patients with a bi-polar disorder.
28 A report from a clinical psychologist has also been produced to the court. Psychological tests administered showed significant elevations in the scale measuring personality patterns of schizoid, avoidant, dependent, anti-social and self-defeating behaviour. Those and other tests were interpreted as revealing an individual who copes with poor self-esteem and depressed mood by withdrawing socially, avoiding emotional attachment, assuming a passive attitude to maintaining relationships, drug use and self-defeating behaviours. They also disclose in Ms O'Brien a feeling of abandonment by her parents because of their new marriages, little support from siblings and friends, and the development of a poor self-image.
29 However, the report also indicates that Ms O'Brien's experience on remand in prison during the month of July 2007 revealed a sense of achievement while being involved in constructive activities as simple as gardening. This is encouraging in that it suggests an ability to adhere to imposed routines which would be difficult for her to follow spontaneously.
30 The psychologist reported that the tests administered revealed a medium level of risk for reoffending arising from difficulties in maintaining employment, prior dependency on illicit substances (discussed below), lack of insight and the presentation of unrealistic goals.
Substance abuse
31 According to the pre-sentence report, Ms O'Brien had experimented with alcohol from the age of 14 years. She engaged in binge drinking for a year before turning to cannabis at the age of 15 - initially using it on a weekly basis but, later, increasing to daily use. Cannabis use continued for two years until she became pregnant with her first child. When her eldest daughter was aged two, Ms O'Brien began experimenting with amphetamines by using the substance nasally. Her pattern of use increased to weekly or fortnightly and then she began intravenous dosages which continued for about seven years. She claims to have used heroin first at the age of 16 and then not again until she was 26. According to her, the heroin was used to assist with 'coming down' from amphetamines. She continued with this use until being arrested for the current offences.
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32 Following her accident in 2003, Ms O'Brien was prescribed morphine for pain management. However, her tolerance rapidly grew and she commenced 'doctor shopping' to obtain ever larger doses of morphine.
33 Ms O'Brien has undertaken counselling for drug abuse in the past - however, with an apparent lack of success. More recently she has sought counselling through the Holyoake Institute, which provides for alcohol and drug addiction resolutions. A report of her initial interview on 27 September 2007 has been provided to the court.
34 The psychologist's report indicates that Ms O'Brien's offending appears to be predominantly motivated by her illicit substance use and would escalate if she were to be intoxicated with drugs. This clear implication is supported by her underlying drug-dependency history - and her family disintegration, deteriorating educational performance followed by pregnancy, spinal injury and lack of employment, which has led to an expansion in the drug habit - and an associated degree of mental illness which had only recently approached diagnosis and effective pharmacological management.
Mitigating factors
35 Ms O'Brien shows signs of remorse and maintains that she never intended to cause any actual harm to her victims, although she appreciates that her offences have probably caused significant emotional distress to them. She also asserts that the proceeds of the offences were used to purchase heroin, but that she was willing to pay restitution and that the offences were otherwise totally out of character.
36 The pre-sentence report concludes with the observation:
She [Ms O'Brien] realises that due to the seriousness of her offences that a custodial penalty is likely. It is assessed that Ms O'Brien would benefit from Supervision and Program conditions should a community Order be considered by the Court for her current offences. Such conditions would endeavour to support Ms O'Brien to continue addressing the antecedents to her offending behaviour including family of origin issues, substance misuse and mental health.
Ms O'Brien is considered a suitable candidate for parole eligibility, and would be assessed for such an Order at the appropriate time.
- It is to be noted that counsel for the State accepts that, in the event of a custodial sentence being imposed, a parole eligibility order should be made.
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37 Despite her problems, Ms O'Brien appears to be a devoted mother, anxious to care for her children. Her mother and sister attest to her care for her children and assert that she has been free of illicit drugs and substances since being released on bail.
38 There does appear to be the prospect for some form of structured, but rigorous, drug rehabilitation programme. And, as mentioned, in September this year she attended for assessment at the Holyoake Institute and agreed to commence the Holyoake Women's Programme. Since her initial assessment she has also attended two group sessions and has been regarded by the counselling psychologist as a willing participant in a programme which is designed to deal with personal difficulties, alcohol and drug use, low self-esteem, shame, parenting issues and like problems.
39 Similar testimonials of support come from her father, step-mother and sister, who each also mention, with approval, her relationship with her children and the signs of transformation which have followed her arrest, imprisonment and release on bail.
40 There are four particular features of this case which, to my mind, call for a particular consideration. The first is that, although she has reached the age of 30 years and has obviously been involved in illicit drug activity and personal consumption for many years past, this is the first time that Ms O'Brien has been convicted of any offence. Her immediate reaction was to admit the offences, co-operate with the police and plead guilty at an early opportunity - showing both remorse, responsibility and a constructive attitude when dealing with an acute personal problem.
41 The second feature is that the offences were all committed within a 48-hour period and at a time when Ms O'Brien's medication had recently been changed and when she had resorted to the use of other drugs to cope with the ensuing difficulties. In a real sense, the crimes were uncharacteristic of any form of previous behaviour or personal predisposition.
42 Thirdly, Ms O'Brien is a woman with responsibilities for three children, two of whom are of pre-school age, who are dependent upon their mother for personal care, attention, encouragement and security. Despite the many problems in her life, Ms O'Brien appears to be generally recognised as a capable and attentive mother and devoted to her children. Immediate imprisonment would create severe problems in the care for the children because their father could be expected to face great difficulties in caring and providing for them alone.
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43 Fourthly, I have no doubt that the real cause for the commission of these offences is the degree of drug dependency which Ms O'Brien has developed over many years. She is not free from personal responsibility for this situation because she engaged in illicit drug use from an early age; but there are mitigating factors even then - namely, the break down in the family and the subsequent isolation which she developed from her parents and siblings. Further, the severe injury requiring spinal surgery and subsequent narcotic analgesia has, significantly, had the effect of predisposing her towards relapses into narcotic drug use. It seems that this is a real factor in the continuation and escalation of her drug use and in the commission of these offences. Again, she cannot, with any credibility, claim that it is this therapeutic episode which caused her drug problems because, clearly, she was already involved in that scene. But the need for long-term methadone treatment for drug relief and, also I suspect, to suppress the effects of opiate addiction, means that the court is dealing with an offender who has made considerable progress in extricating herself from a drug addiction programme, but who has not completely succeeded, and who is almost certainly prone to a real risk of relapse. Her present personal inclinations, her family support and the obligations which she has to her children are all powerful incentives to avoid offending in the future, but any addict is, by definition, susceptible and personal determination, however powerful, is not always sufficient to cope successfully with the path towards rehabilitation and abstinence. However, if rehabilitation can be achieved, all the pointers suggest that Ms O'Brien is likely to avoid future offences and unlikely to pose a threat to the community.
44 That is a very big 'if', but the identification of that contingency is enough to reveal that it would be very much in the interests of Ms O'Brien, and to the advantage of the community, if a method of disposition likely to optimise the prospects of rehabilitation and abstinence is utilised. Any disposition of these offences would, I am certain, require some detailed process of supervision by councillors and therapists, experienced and qualified in the techniques of drug and dependency rehabilitation, because it is most unlikely that Ms O'Brien would be able to achieve that herself, even if obliged to serve a lengthy term of imprisonment. All this raises a number of difficult and sensitive questions as to the proper disposition and the court's role in imposing sentence.
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Sentencing principles
45 Section 6 of the Sentencing Act 1995 (WA) directs that a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of the offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and, any mitigating factors. In particular, the section prescribes that a sentence of imprisonment must not be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community otherwise requires it.
46 There are a number of options prescribed by Parliament as to the penalties which may be imposed following conviction. They are set out in s 39 of the Sentencing Act. They range from imposing no sentence or making a spent conviction order with immediate release of the offender, to imposing a fine, imposing a community-based order, imposing an intensive supervision order or imposing a term of imprisonment. The term of imprisonment may be suspended, allowing the immediate release of the offender with or without conditions. Parliament has directed that a court must not use a more severe sentencing option unless it is satisfied that it is not appropriate to use any one of the less severe options available.
47 In the present case there are five separate offences, each of which is serious and each of which involved threats whilst armed with a blood-filled syringe being made to victims whom I regard as vulnerable in all the circumstances. The penalties prescribed by Parliament for the offences which Ms O'Brien has committed involve sentences of up to life imprisonment, for both the offence of armed robbery (Criminal Code, s 392(c)) and the offence of assault with intent to rob whilst armed with an offensive weapon (Criminal Code, s 393(c)).
48 Aggravating factors are those which, in the court's opinion, increase the culpability of the offender, while mitigating factors are those which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. A plea of guilty by an offender is a mitigating factor and the earlier in the proceedings that it is made, or an indication is given that it will be made, the greater the mitigation.
49 In deciding how to deal with Ms O'Brien's case, consideration must be given to the personal circumstances of the offender, which I have
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- already described, including the prior absence of convictions, her assistance to the authorities and early admissions and pleas of guilty, the remorse which has been shown and the underlying apparent mental illness and psychological impairment. I must have regard to the gravity of the offences and the effect of the offences on the victims.
50 I must also have regard to the purposes of imposing punishment - that is, to punish an offender for the breaches of the law and to deter both the offender and others from committing offences in the future. In that latter regard I must take notice of the prevalence of armed robbery and like offences, particularly of small business and retail outlets and other places where cash may be found. The prevalence of this form of unlawful conduct has unfortunately become more common and Parliament, on behalf of the community, has reacted by increasing the sentences which can be imposed for these offences. Finally, if I reach a conclusion that a sentence of imprisonment must be imposed, I am obliged to consider afresh whether or not a sentence of imprisonment should be suspended under the provisions of s 76 of the Sentencing Act, or whether, having regard to the nature of the offence and the need for the protection of the community, an immediate sentence of imprisonment must be imposed.
51 In Miles v The Queen (1997) 17 WAR 518, 521, Malcolm CJ observed that the offence of robbery had become 'significantly more prevalent' and that sentences had therefore 'tended to firm up' so that, by 1997, the range of sentences commonly imposed for a single offence of armed robbery, depending upon the circumstances, was from 6 to 9 years. In the light of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), that range has been reduced by 1/3 and is now 4 to 6 years. That is still commonly the range of sentences imposed for a single offence of armed robbery at present: The State of Western Australia v Wells [2005] WASCA 23; Taylor v The Queen (Unreported, WASCA, Library No 980152; 6 April 1998); R v Valentine [2003] WASCA 7. It has also been accepted in Miles v The Queen and in Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313, and in many other cases, that a discount between 25% and 35% for a fast-track plea of guilty is ordinarily appropriate.
52 Despite these precedents, the possibility of a non-custodial sentence in respect of a conviction for armed robbery remains open. In the State of Western Australia v Wells [10], Wheeler JA referred to the observations of Malcolm CJ in R v Shaharuddin [1999] WASCA 229 [13] which indicated that in 1999 a non-custodial sentence was imposed in about 7% to 10% of armed robbery cases. Her Honour then referred to statistics
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- from the University of Western Australia Crime Research Centre Crime and Justice Statistics for Western Australia - 2002, which indicated that by 2002 approximately 20% of robberies resulted in a non-custodial disposition. Her Honour went on to observe that one would expect that a non-custodial disposition in the case of aggravated armed robbery would, however, be relatively rare.
53 In The State of Western Australia v Reynolds [2006] WASC 31 I had occasion to consider these authorities and these principles in the case of a young unreformed drug offender who had committed six offences comprising two counts of attempted armed robbery (one in circumstances of aggravation), two counts of armed robbery (one in circumstances of aggravation) and two counts of burglary. These offences occurred on six separate occasions over a period of a little over six months. At the time, the offender did appear to represent a threat to the community and immediate sentences of imprisonment were imposed. However, in the process I made reference to some general principles of sentencing which appear to be apposite in the present situation. This included distillations of principle set out in Thomas DA, Principles of Sentencing (2nd ed, 1979), which I respectfully consider to be applicable. Among these is that author's observation that:
In the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public have no greater interest than that he should become a good citizen. The difficult task for the Court is to determine what treatment gives the best chance of realising that objective (18).
- The same author then made reference to offenders with a history of mental or psychiatric illness and observed:
The general policy of the Court towards the offender who is in need of psychiatric treatment, individualisation is the dominant theme and the considerations which underlie the tariff are virtually excluded. Treatability has replaced culpability as the effective criteria; in the majority of cases concerning offenders needing psychiatric treatment, the important questions are the practicability of treatment in various settings and the extent to which the risk of grave offences in the future justifies prolonged confinement. Abandoning the tariff in this context may well mean that the offender is subjected to a period of constraint for longer than would be considered justified by the immediate offence (24).
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- See also R v Tsiaras [1996] 1 VR 398 and Cooley v The State of Western Australia [2005] WASCA 160; (2005) A Crim R 528 [102] - [113].
55 I have already said enough to indicate that, subject to suitable supervision and control, coupled with a real and effective threat of more severe sanction, Ms O'Brien is unlikely to present a significant threat to the community in the future, but the element of general deterrence cannot be ignored.
56 These are factors which raise as a very real and significant prospect for the disposition of the present case a sentence of imprisonment - albeit suspended on prescribed conditions, requiring the offender to undertake suitable programmes. The difficulty of this, however, is that armed robbery and like offences are very serious and their impact on the community, particularly the individual victims, is profound and deeply resented. A sense of proportionality is therefore expected from the courts by Parliament, as the voice of the community standards. There is no shortage of authority to remind a sentencing judge that it is not the interest of the offender which is the sole, or even dominant, consideration. The responsibility of sentencing also involves the recognition and protection of the public interest and, so far as that is reasonably capable of achievement, specific deterrence from the repetition of similar offences by the individual offender and general deterrence to others in the community who may be tempted to engage in offending conduct of this nature.
Pre-sentence order
57 It is with these considerations in mind, and with the assistance of submissions from counsel, that my attention has been directed to the opportunities presented by the pre-sentence order (PSO) procedure available under Pt 3A of the Sentencing Act and to the effective employment of this procedure which has been exemplified by the practices of the Drug Court in this State in recent years.
58 The particular advantages of this PSO procedure which commend it for consideration in the present case are the close degree of monitoring which is effected over the offender, the requirement to undergo regular counselling and, if thought appropriate, urinalysis or other drug testing. As a consequence of these features, any tendency towards a relapse is quickly detected and can be dealt with, in most instances, without abandoning the whole programme and resorting to imprisonment as the only default option. That can, I acknowledge, also be achieved by conditional suspended sentences of imprisonment, with supervision and programme requirements. However, the Drug Court example of closer
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- supervision under the PSO regime appears to me, with respect, to be more flexible and immediate. It has the advantage of allowing a supervised trial period of up to two years without abandoning all other sentencing options. Sentencing can there occur, either at the end of the period or, in the event of notable failure of the supervised regime for want of compliance or otherwise, at an earlier point in time. This approach allows a court to balance the need for rehabilitation against the need to protect the community and, if an offender does not commit fully to the programme or defaults in compliance with it, the offender may still receive a traditional sentence which may include prison.
59 For the duration of the PSO, aside from being under the supervision of the Department of Corrective Services, the programme is reviewed by the sentencing court at periodic intervals and at the end of the programme period when a disposition is made. Even then, any sentence which might have been imposed, including immediate imprisonment, can still be ordered. In other words, the court does not abdicate or relinquish the responsibility to impose a condign sentence if, in all the circumstances, that is considered to be justified.
60 It is not without significance that the role of the Perth Drug Court was recently reviewed by the Depart of the Attorney General: A review of the Perth Drug Court (November 2006), which followed a more extensive evaluation of the Perth Drug court conducted by the Crime Research Centre in 2003. This report acknowledged that one of the intervention types offered by that court involved 'more intensive treatment intervention for those whose offending and/or substance use behaviours were more serious and required a more intensive level of intervention and supervision'. It also found strong evidence that 'involvement in a Drug Court programme had a positive effect in reducing the level of re-offending among individuals charged with a drug-related offence'. Further, its approaches were found to be associated with a significantly higher net reduction in recidivism when compared to prison and other community-based programmes. One of its advantages, as stated by Perth Drug Court Magistrate King in 2006, and endorsed by the report, was that:
[D]rug courts usually involve more serious offenders and a more intense program over a longer period than court diversion programs, with ongoing judicial case management, residential and/or community based treatment, urinalysis, the use of penalties (including incarceration), behavioural contracts and graduation ceremonies.
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61 It seems to me, with respect, that this court, and the community at large, should always be vigilant and receptive to new opportunities to deal effectively with the scourge of drug-related crime, both with a view to prevention of this criminal activity within the community and rehabilitation of the individual offender. In a suitable case, where, properly managed, the offender is unlikely to pose a threat to the community, then such a supervised structure appears to me to be not only a benevolent but a wise and efficient measure, especially where it is appreciated, as it must be, that the supervising court retains all options of sentencing, including immediate imprisonment, at any point in the programme or at its completion, if then warranted.
Disposition of the court
62 The offences which Ms O'Brien has committed are very serious. As set out above, there are binding judgments of the Court of Appeal in this State, which I am obliged to apply, which provide that, ordinarily, the commission of an offence such as she has committed would warrant a sentence of immediate imprisonment of somewhere between 6 and 9 years. This would be reduced by a factor of 1/3 because of the 2003 amending legislation. The sentence might then be subject to further reduction for her early pleas of guilty and for other mitigating factors. Her plea of guilty would, I am satisfied, ordinarily warrant a discount of some 25% to 35% if a sentence of imprisonment were to be imposed. But, nevertheless, because of the number of offences, she could expect a sentence of several years of imprisonment, having regard to the principle of totality.
63 Nevertheless, the reason why I have decided not to impose such a term of immediate imprisonment at present is because it seems to me that Ms O'Brien's situation is very largely produced by chronic drug abuse - perhaps greater abuse and dependency than is disclosed in the papers or to which she has admitted. It is important, both in the interests of the community and Ms O'Brien, that she should recover from that addiction completely. Optimism in this regard, however, should be reined in by a more steely reality. Long experience of the courts and the community in dealing with drug addicts shows that there are many falls and stumbles on the road to recovery. Every expectation and encouragement can be offered to an offender to do his or her best and to comply with orders and programme requirements but it is, nevertheless, unrealistic to expect that there may not be some occasional relapses. Accordingly, any regime to deal with Ms O'Brien needs to acknowledge the possibility that such relapses may occur. If they do, they should receive their own sanction,
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- but in a way that would not obstruct further progress towards recovery if that remains a realistic and practical objective.
64 As a result of amendments to the Sentencing Act made by Parliament through the introduction of Pt 3A, there are now options available to this court which will increase the prospects of achieving this purpose. The option which I have decided upon is to postpone sentencing Ms O'Brien for these offences for a period of one year. This means that the decision as to whether or not Ms O'Brien should go to prison or be sentenced to some other penalty for these offences is deferred for one year. There is no assurance that a sentence of imprisonment will not be imposed, but there will be this 12-month opportunity for Ms O'Brien to tackle her underlying problem. If she does this successfully or adequately, then she will have reason to expect that this court would be more disposed than otherwise to impose a non-custodial sentence as the choice of dealing with her case in 12 months' time. That is not a guarantee but it is a hope. Much will depend on Ms O'Brien. It will be for her to see that this 12-month opportunity is not wasted and that, despite weaknesses on her part, and occasional falls or stumbles, there is still adequate supervision and protection for the community imposed as part of this regime.
65 I am informed that although the procedure may still be in its infancy and not fully developed, it is contemplated that the Perth Drug Court should accept referrals from this court or from the District Court in cases of serious offences where either court, in the exercise of its own authority and responsibility, considers that that would be an appropriate course to pursue. It is clear that potential supervision by the authorities was considered a possible option before Ms O'Brien was committed to this court but, for reasons which I consider, with respect, to be entirely correct, proper and responsible, the learned magistrate in the Drug Court declined acceptance of the case initially because of the view then formed that these were offences which warranted the jurisdiction of this court to be exercised. If I may say so, with respect, that was entirely appropriate procedure. However, since the option of the PSO and acceptance by the Drug Court is open for consideration by this court, I am satisfied that it should be selected in the present instance.
66 I further order that Ms O'Brien come back to this court in three months time, in early February 2008, for the court to consider how she is progressing and to see any evaluations then available from those responsible for supervising her case. Until then, Ms O'Brien must remain on home detention, notwithstanding the restrictions that that inevitably entails.
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67 The next order is that Ms O'Brien must submit to a supervision requirement and a programme requirement, as these are defined in the Sentencing Act. These require Ms O'Brien to submit to the authorities, who will analyse her case and decide what regular periodic supervision is warranted and what medical or other investigation and treatment may be needed. Ms O'Brien will be obliged to co-operate with those requirements and to obey the recommendations of those who are making them. They may well be quite intrusive. Under this regime Ms O'Brien may have to undergo regular blood or urinalysis treatment. She may have to undergo special therapy. She may have to undergo special counselling or other sessions. A number of other requirements may also be imposed. She will not be a free agent but will remain very much under the supervision of the authorities with a view to seeing whether or not this hope of rehabilitation can actually be achieved.
68 When Ms O'Brien is required to report to this court again, in February 2008, the court will have the option of deciding whether, and if so when, a further review should be undertaken and, if so, to fix a date for that to occur (perhaps in another interval of three months). Any decision in that regard will depend on developments and progress between now and February 2008.
69 Next, when Ms O'Brien returns to this court for sentencing in November 2008, if not earlier, this court will retain the jurisdiction and power to impose such sentence, including a sentence of immediate imprisonment or some other sentencing option, as could have been imposed were I to have sentenced her immediately. That ultimate choice is likely to be affected very greatly by the progress towards rehabilitation achieved during this 12-month period of intensive supervison. Unlike a period of suspended imprisonment, which would expire following the period of suspension, in this instance the court would be entitled to impose a community-based order or a suspended form of imprisonment with conditions, which may extend, in other ways, programmes of supervision and compliance. This ensures that the maximum flexibility is retained and that all the sanctions of the court available under the Sentencing Act continue to be available if then needed.
70 Accordingly, the formal orders of court will be:
1. Judgments of conviction be entered upon pleas of guilty to each of the charges.
2. Sentencing be adjourned to 3 November 2008.
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- 3. Offender re-appear before the court for review on 4 February 2008.
4. A pre-sentence order be made, commencing 1 November 2007, with the following conditions:
• supervision requirement;
• programme requirement - also to deal with medical psychological and dependency problems (alcohol, drugs or other deleterious substances);
• offender to reside at her present home address unless supervisor otherwise determines or this court orders;
• there be an assessment by the Drug Court of Ms O'Brien's case for the purpose of deciding whether she should be admitted to its programme, and a report of that outcome be provided to this court by the review date on 4 February 2008.
5. Home detention bail to continue on the same terms until the review date on 4 February 2008.
6. There be an order for restitution in the amount of $817.16.
7. There be liberty to apply for variation of any of the orders made where good cause shown.
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